Bandura & Dembek

FEDERAL CIRCUIT COURT OF AUSTRALIA
Bandura & Dembek [2021] FCCA 1547

File number(s): BRC 11323 of 2017

Judgment of: JUDGE VASTA

Date of judgment: 14 July 2021

Catchwords: FAMILY LAW – parenting – where father not engaged with proceedings – proceedings between paternal grandmother and mother – where the paternal grandmother has been caring for the child because of the mother’s incapacities – where the mother has relocated interstate – best interests of the child.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65C, 65D, 65DAA 65DAB, 65L, 121

Cases cited: N/A

Number of paragraphs: 244

Date of last submission/s: 2 July 2021

Date of hearing: 14, 15, 16, 17 ,18 June and 1 and 2 July 2021

Place: Brisbane

Counsel for the Applicant: Mr O’Meara

Counsel for the Second Respondent: Ms Read

Counsel for the Independent Children's Lawyer: Mr George

Solicitor for the Applicant: Hodgson Lawyers

Solicitor for the Second Respondent: Oliver Oks Lawyers

Solicitor for the Independent Children's Lawyer: Carter Farquar Mediation & Family Law
ORDERS

BRC 11323 of 2017

BETWEEN:
MS BANDURA

Applicant

AND:
MR DEMBEK

First Respondent

MS DEMBEK

Second Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

14 JULY 2021

BY WAY OF FINAL ORDER, THE COURT ORDERS:
(1)That the Applicant and the Second Respondent have equal shared parental responsibility for the child X born in 2010 (“the child”). In exercising their shared parental responsibility, the Applicant and the Second Respondent are to consult with the maternal grandparents about issues in relation to the child’s long term care, welfare and development.
(2)That the child spend no time with the First Respondent.
(3)That the child live with the Second Respondent until 11 December 2021 and thereafter the child will live with the Applicant and the maternal grandparents from 11 December 2021.
(4)That the parties are to engage in email correspondence and telephone conversations as to the care of the child, his day to day activities and health with the intent of keeping each other up to date with the care, health, welfare, development and activities in which the child is engaged.
(5)These orders shall act as an authority for any treating medical practitioner/health care provider associated with the child to release and provide the other party with information that they are lawfully able to provide about the child and shall act as an authority for either party to speak to any treating medical practitioner/health care provider associated with the child and to obtain from them copies of all reports and any other document associated with the child’s health care and wellbeing, and all information that either party may, from time to time, seek in relation to the child’s health care and wellbeing.
(6)The parties authorise, by this order, the schools attended by the child to give each of the parties information about the child’s progress and other care/school related activities and to supply them with copies of school reports, photographs, certificates and awards obtained by the child, and other school related documents (at the requesting party’s expense).
(7)Until 11 December 2021, the child spend time with the applicant as follows:
(a)For one weekend each school term in Adelaide from 10am Saturday until 4.00PM Sunday;
(b)During the September school holidays:
(i)For a week from 10.00am Monday of the first week of the holidays until 10.00AM the following Monday with the maternal grandfather and grandmother present;

(c)For the whole of the Christmas 2021/2022 holidays beginning on 11 December 2021;

(8)After 11 December 2021, the child spend time with the second respondent as follows:
(a)For one weekend each school term from 10.00AM Saturday until 4.00PM Sunday with two of those visits being in Brisbane and the other two visits being in Adelaide
(b)During the April, June/July and September school holidays for a week from 10am Monday of the first week until 10.00AM the following Monday. Two of those weeks will be in Brisbane and one week will be in Adelaide.
(c)For the Christmas school holidays for a block of two weeks in Adelaide at a time agreed between the parties.

(9)That the child continue to have FaceTime communication with the party with whom he is not currently residing with.
(10)That neither party is to:
(a)Exercise physical discipline on the child,
(b)Expose him to family violence of any sort;
(c)Expose him to drug taking paraphernalia;
(d)Expose him to any person under the influence of drugs or alcohol including themselves, or allow any third party to do so.

(11)That the parties are to share equally in the costs of travel for the child, the second respondent to Brisbane, and the applicant to Adelaide.
(12)Pursuant to s.65L of the Family Law Act 1975, the Second Respondent and the child X born in 2010 shall attend an appointment with Family Consultant Dr B at a time and date as directed by the Family Consultant at the Federal Circuit Court of Australia Adelaide, Roma Mitchell Commonwealth Law Courts Building, 3 Angas St Adelaide 5000, for the purpose of explaining these Orders to the child.
(13)Pursuant to section 121 of the Family Law Act 1975 the reasons for judgment produced in these proceedings be released to any counsellor or medical practitioner attended upon by the child or either party.
(14)That the Independent Children’s Lawyer be at liberty to apply in the event there is any unreasonable non-compliance with these orders.
(15)That the Independent Children’s Lawyer provide the Court with a short report by 8 February 2022 and upon receipt of such report, the Independent Children’s Lawyer be discharged.

NOTATION:
A. That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
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 under the pseudonym Bandura & Dembek is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION

X was born in 2010. His parents are the mother, Ms Bandura (who was born in 1990) and the father, Mr Dembek (who was born in 1984). The paternal grandmother (“the PGM”) is Ms Dembek (who was born in 1962).
The mother and the father began living with the PGM in Adelaide in early 2009. They were living in the granny flat behind the main house of the PGM. After X’s birth and toddler years, the PGM allowed the mother and father to live in the main house and she (the PGM) mainly resided in the granny flat.
In July 2015, the PGM asked the mother to leave the premises. This coincided with a “breakup” of the relationship of the parents. The mother moved to her own residence but often left X with the PGM. For a number of reasons, the PGM became the main carer of X towards the end of 2015.
The PGM removed X from the situation that was the downward spiral of the life of his mother and father and went to Victoria. The PGM returned to Adelaide in March 2017 to make arrangements to sell the house in Adelaide. She was approached by the mother and father and asked if she would return X to their care. The PGM refused and told them that they had “to clean up their act and go into rehab” and after this, they could talk.
On 9 September 2017, the mother, together with her sister and brother-in-law, attempted to kidnap X. This ended in a very serious incident in which the grandmother was viciously assaulted. This also had a traumatic effect upon X. The PGM returned to Victoria with X. The following month, the mother initiated proceedings in the Federal Circuit Court at Brisbane asking the Court to make parenting orders in relation to X. It was a year later before the PGM became aware of these proceedings.
The main question for the Court to decide is whether X should remain living with the PGM or should he now resume his life with his mother in Queensland.
The Father
Whilst the father is technically the first respondent to this application by the mother, he has not been served with any of the material and has not evinced any intention to engage with these proceedings. The PGM has not spoken to the father in any meaningful way since a phone call in May 2016.
Apart from seeing the father when he came to her house with the mother in March 2017, and another encounter on the street in Adelaide a few days later, the PGM has had no communication at all with the father since that time. It would seem that the mother has had some communication with the father, though the evidence does not allow for the discernment of the level of such communication.
On the evidence before me, the father perpetrated family violence upon the mother during their relationship. Notwithstanding that, the PGM said that she did not ever see the father physically harm or even remonstrate with the mother. It seems to me that the family violence perpetrated by the father was also physical. It may be that the father curbed his behaviour in front of his mother.
There is still a “domestic violence order” in force where the father is the respondent and the mother is the aggrieved. The PGM has also testified that she has not allowed X to have any contact with the father since early 2016 because “X is not safe with his father”.
Events leading up to July 2015
The family of the mother are originally from Country C and are justifiably proud of their Country C heritage. In 2005, the family moved from Country C to South Australia and set up their home in Adelaide. Around September 2008, the maternal grandmother and maternal grandfather moved from Adelaide to Town D, just outside Brisbane in Queensland.
The mother had already commenced a relationship with the father but was living with her sister when the parents moved to Queensland. About three months later, the sister of the mother moved back to Country C and the mother moved into the granny flat with the father at the house of the PGM. I also note that the sister of the mother moved from Country C to Queensland around 2015.
I have accepted that there was family violence in the relationship between the mother and the father. Whilst this was mainly perpetrated by the father, I accept that the mother would also shout and scream at the father and throw objects at him. Notwithstanding this, it seems to me that there was a controlling aspect to the family violence that the father was conducting.
The complicating factor in this relationship was that both the mother and father became addicted to drugs; mainly methamphetamine, but also a variety of other illicit drugs.
In 2013, the mother was diagnosed with a number of medical conditions. This included Systemic Lupus Erythematosus (“lupus”) which is an autoimmune disease. The mother also suffers from fibromyalgia and sciatica and has had documented epileptic-type seizures. The mother also has a bulged disc caused by a fracture in her spine.
These conditions caused the mother great pain. The mother took X and went to live with her parents around August 2013, soon after the diagnosis. There are medical records showing that the mother saw a GP in August 2013 who referred her to a rheumatologist. The referral noted that “despite medication her pain is worsening and she has poor memory. She was attending specialists in Adelaide”.
There is a certificate from a doctor that the mother is medically unfit to work long term.
By November 2013, the mother had returned to Adelaide with X. She was prescribed Oxynorm for her pain. The head of the pain management unit at the Adelaide hospital noted, in November 2013, that this drug was commenced in Queensland. She then noted, in her report to the GP of the mother, that:-
…This Unit would not support the ongoing use of a short acting drug like Oxynorm, nor would we recommend that a 23 year-old should be on opiates long term.
She needs to learn other strategies to manage her pain, and while awaiting appointments in the Pain Management Unit it would be worthwhile organising a Health Care Plan and getting her to see a physiotherapy [sic] and psychologist to learn some pain management strategies.
My recommendation therefore is that you do not provide her with any more opioids, and organise a Health Care Plan to get her into a multidisciplinary management process while she is awaiting appointments here in the Pain Management Unit.
The evidence also discloses that on 11 December 2013, the GP of the mother wrote that he was not allowed to prescribe Oxynorm. On 30 January 2014, the medical records show that the mother was given a Fentanyl patch but, because of the heat in Adelaide at the time, she was sweating profusely which meant that the patch was not adhering properly. There was a recommendation that the mother resume oral oxycodone. On 25 February 2014, the medical records show that this medication was to continue and that there would be reviews.
The pain unit made a number of appointments for the mother in March 2014. They were for her to see a physician, followed by a psychiatrist, followed by a physiotherapist and then finally for there to be a meeting at the pain unit (presumably to discuss the multidisciplinary approach to management of the symptoms of the mother). There is no evidence that the mother attended these meetings and no evidence that she continued to engage with the medical teams. In fact, there is a dearth of material from any medical professional after this time.
There are other medical reports that seem to have originated from the superannuation funds to which the mother belonged. These reports described that the mother has a total and permanent disability and would not be able to work. The evidence before me is that the mother was paid a sum of $105,000.00 from one fund, $106,000.00 from another fund and then, from her third superannuation fund, a payment of over $300,000.00. These payments seem to have all been made in the early part of 2014, and do seem to correlate with the “disengagement” of the mother with the South Australian health system. It would also seem to correlate to the period when the mother became a drug addict as opposed to someone who took illicit drugs.
The PGM testified that she had told the mother (and the father) in 2014 that she thought that X should be going to some form of kindergarten so that he could socialise with children his own age.
The PGM said that on 10 August 2014, at about midday, a passer-by rang an ambulance after having seen the mother in her car passed out in the driver’s seat with the engine running. The car was in front of the house of the PGM. The PGM said that police attended and found a glass ice pipe in her possession. X was inside the house at this time.
The PGM said that on 3 July 2015, the mother had a seizure. An ambulance attended and she was taken to hospital. The PGM said that the mother was questioned and became violent towards staff. The PGM believed that the mother had taken the drug “fantasy”, also known as GHB.
Shortly after this incident, the PGM said that she overheard the mother yelling and swearing at X to get out of her room. She also heard the mother smack X. The PGM said that she confronted the mother about her drug use and mistreatment of X. The PGM said that, as a result of that argument, she told the mother to move out of the house. She told the mother that X could stay but that the mother would have to leave. The mother left and took X with her.
The mother moved into her own unit with X. It would seem that the father remained at the house of the PGM but would often stay at the unit of the mother. While the mother said that her moving out of the house of the PGM was due to the cessation of her relationship with the father, it does not seem that this was truly the case.
Records of SA Police and Child Safety
The mother was somewhat vague as to what was happening in her life from the beginning of 2014 until the end of 2016. The records of the police and the Department of Child Protection can fill in those blanks to some extent from late 2015 onwards.
On Sunday, 6 September 2015, the mother woke to find the father going through her phone because the father believed that the mother was “cheating” on him. The father then became very aggressive and threw the mother to the ground. The father then said words to the effect that “I am going to kill you, then X and then I am going to kill myself”. The mother said that she went outside of the house but could hear the father inside the house throwing things around. The mother said that the father then took her mobile phone from her and left the premises in the mother’s car. When she went back inside, she found that the TV and the game consoles of X had been damaged. The mother was treated for a minor head injury and a knee injury at the hospital.
Police applied for a family violence order in favour of the mother. Originally the order had X as a named person, but this was soon changed because the mother needed the PGM to assist with looking after X and the father had given his address as the address of the PGM.
On 14 September 2015, the Department of Child Protection was contacted. The Department noted that there was now an active family violence order because of the incident that occurred on 6 September 2015. The Department was told that the mother had been diagnosed with illnesses, and this caused concerns for her ability to be the sole carer of X. It was reported that the mother “involuntarily passes out and is unable to be woken up”. It was also reported that the mother was prone to fits and has been hospitalised frequently over the last two years.
It was reported that the mother had been arrested for drug use and that she had passed out at the wheel of her car under the influence of drugs. It was reported that the mother was still known to be using ice or crack while X was in her care. It was reported that the mother has no family in South Australia and that friends and people in her life and household are ones that are associated with her because of drug use.
It was reported that the mother frequently goes missing for extended periods of time without notifying anyone of her whereabouts or what her intentions are and that she turns her phone off during those times and remains uncontactable. It was reported that X was often witnessing his mother under the influence of drugs and displaying manic/violent behaviour and that he had stated that he does not want to live with his mother any more.
On 9 October 2015, the police were notified that there was a breach of the family violence order. It would seem that the mother and father were at a service station and began having a loud argument about the purchase of cigarettes.
On 23 October 2015, the Department of Child Protection was again notified. It was reported that there were grave concerns for the safety of X as the mother’s drug use was increasing. It was reported that the mother drives under the influence of drugs with X in the car. It was reported that the mother’s car was currently defective and that the mother’s driver’s licence was suspended but that she nevertheless was still driving. It was reported that the father attended the mother’s home address to visit X and found him with an unknown male, and that the mother was not present.

It was reported that the police then attended the mother’s address and the police spoke with the mother who did not appear to be drug affected at the time. It was reported the police spoke with X who seemed healthy and happy. It was noted there were no immediate concerns for X although the environment of drug abuse was concerning.
Another report was made to the Department the next day, 24 October 2015. On this occasion it was reported that the mother had been smoking from a glass pipe. The police attended the mother’s address almost immediately and found that the mother was passed out in her car at the nearby BP service station. The police broke the window of the mother’s car and restrained the mother and searched her car finding a glass pipe.
It was reported that the mother was fined and her vehicle was given a defective vehicle notice. It was reported that the mother had been saying that the police were stupid because they did not even find the mother’s stash of ice in her face cream container, or a syringe that had been filled with fantasy. The report also reiterated the details of the previous report though it does seem that the notifier was a different person.
The records note that the Department considered that the information did not clearly demonstrate how the mother’s drug misuse interfered with her daily functioning or care and supervision of X. For this reason there was no intervention, but a note that the matter may warrant reassessment.
On 27 October 2015 (three days later), the Department was again notified. On this occasion the information was that the PGM had gone to the mother’s home address to drop-off X. X had been staying with the PGM because of an agreement between the PGM and the mother. When the PGM arrived, the mother was not home. When the PGM called and texted the mother, there was no reply. It was reported that the side door was unlocked so the PGM went inside to see if mother was home, but she was not. It was reported the PGM took some clothes for X and then she and X went out for the day.
It was reported that the mother later texted the PGM and said that she would be home that evening. The PGM went to the house again and, again, the mother was not home. The PGM called and texted the mother, but again there was no response. It was reported that police were contacted and were asked to classify the mother as a missing person who had abandoned her child. The police asked if the mother had done this before and was told that she had, due to the mother associating with bikies and selling drugs, and that she was living a lifestyle where anything could happen to her.
It was reported that the mother’s house smelt of old rubbish and that the sink and the countertops were full of smelly used dishes and pots. It was reported that the fridge also smelt and had food that had gone off inside of it.
On 30 October 2015, police attended the premises of the mother and searched the house pursuant to a search warrant. In the garage there was a drink container containing about 300 grams of a liquid substance which police suspected to be amphetamine. Police also located a bottle which contained approximately 50 grams of a liquid that they suspected to be fantasy. The mother had $4,000.00 in cash in a handbag and a mobile phone for which she declined to provide the PIN to allow police access to the phone. There was also $5,500 in cash in the rear yard which had been placed underneath carpet.
The mother was then arrested and taken to the police station. At the police station she fell into an unconscious state and was taken to the hospital for treatment. She was discharged from the hospital and taken back to the police station where she was bailed in relation to two counts of trafficking in a controlled drug. There were a number of conditions attached to this bail.
On 10 November 2015, the father contacted police to say that he had been involved in an argument with the mother. He telephoned police because of the fact that there was a family violence order in place and that he was worried that the mother would make false allegations. He told police that X was present but that he was asleep during this argument. He said that he would be walking to cool off and then would come back and pick X up and return home with him.
On 11 November 2015, police found the mother in the garage of her property and located a safe. Within the safe there was a quantity of methamphetamine, fantasy, four glass ice pipes and a home-made bong. The mother was charged with possession of those items as well as breaching her bail (as it was a condition of her bail that she not be in possession of any illicit substance).
On 16 November 2015, police went to the house of the mother at about 11.50 PM. She was not home. This was in breach of her bail. One of the conditions of her bail was that she would be at home between the hours of 9.00 PM and 7.00 AM and she would present herself to police at the front door on request unless absent for medical emergencies.
On 3 December 2015, police went to a hotel room at the E Hotel in Adelaide. The mother was in this room and, because she was wanted for a breach of bail she was arrested. The mother was found with 3 grams of a crystalline substance suspected to be methamphetamine. She was charged with trafficking with respect to this drug and also with a further breach of bail for being in possession of an illicit substance.
Because this was the second major drug charge that the mother faced after being put on bail on 31 October 2015 for drug charges, and that this was the fourth time that she had been charged with breaching that same bail, the mother was remanded in custody. It seems that the mother spent the following 15 days in custody until she was released on bail on 18 December 2015.
The Care of X from November 2015
On the evidence before me, it appears that X had been in the care of the PGM from the time that she unsuccessfully tried to drop him home in late October, but certainly had been in the care of the PGM from mid-November 2015. The PGM testified that the father had asked her to become X’s sole caregiver on 9 November 2015. The PGM said that she tried to get in touch with the mother to ascertain her attitude, but could not find her.
After the mother was released on bail, the PGM spoke to the mother, on 19 December 2015, and informed her that the father had asked her to be X’s sole caregiver. The PGM said that she told the mother that she (the mother) had not been taking care of X and she could not have his best interests at heart because she continued to spend time going out and leaving him at home or in the care of the PGM.
The PGM testified that the mother agreed and confirmed that she also wished for the PGM to be sole caregiver for X. The PGM said that the mother also agreed to notify Centrelink of this, but she never did so.
The mother denies this conversation but does not have a clear memory of any of the events that occurred around this time. When one looks at the history that is painted by the records of the police and the Department of Child Protection, it is not surprising that the mother is somewhat vague about what was happening in her life at this time.
On 19 February 2016, police were called to a particular address because there was a disturbance. The mother was inside these premises behind locked gates. She attempted to hide from police. Police acquired the key to the premises from the owner. The dog squad conducted a search of the premises in order to locate mother. The mother was located at the western side of the building underneath a motor vehicle. She was arrested, ostensibly because she was again in violation of her bail which restrained her from leaving her address between 7.00 PM and 6.00 AM.
As police began to escort her from the premises, the mother began to have a seizure. The ambulance attended and the mother was taken to the hospital for treatment. She was discharged from the hospital later that morning and was taken by police to the police station where she was charged.
According to the PGM, she and X went on a trip to a friend’s farm and then went to Melbourne around March 2016. The PGM was somewhat vague about to whom she had spoken regarding these plans, but gave evidence that she felt that she needed to get X out of the environment in which he was living, for his own safety. The PGM described unsavoury characters, whom she believed were part of the drug culture, coming to her house at different hours, looking for the mother. The PGM said that she stopped all contact between X and the father around March 2016.
The mother testified that the father told her that the PGM and X were going on a camping trip to Victoria. Once the PGM arrived in Victoria, she started living with friends in Suburb F in Melbourne. She said that she contacted the Department of Child Safety in Victoria and explained the situation to them. She said that the Department told her not to disclose her address to the mother or the father. There is no confirmation of this in writing.
The PGM was concerned about sending X to school as X may have been more easily found if either the mother or father were looking for him. The PGM applied to home-school X. The Victorian registration and qualifications authority gave permission to the PGM to home-school X.
On 22 May 2016, the mother was charged with stating a false personal detail.
The PGM said that she had a phone conversation with the father in May 2016 but did not tell him where she was living. The PGM said that she did have some information from her other sons as to a violent incident between the father and his brother (another son of the PGM).
In the meantime, the mother was still ensconced in her drug addiction. Her own parents (the maternal grandparents) started to become aware of the lifestyle that the mother was leading. They tried to have some form of intervention using the employee services given to the maternal grandmother through her employment with Employer G.
On 8 July 2016, the mother was charged with a stealing offence and hindering police. She was given bail.
On 19 August 2016, the mother was driving her car with the father as a passenger. During this trip they began to argue. Once they arrived at their destination, the father became very angry and began to smash the windscreen of the mother’s car with various objects. The mother called the police. This was a breach of the family violence order.
In September 2016, the maternal grandparents came to Adelaide and met with the Adelaide chaplain of Employer G. The three of them met with the mother in an “intervention” type meeting to try and get the mother back on to “the straight and narrow”. Unfortunately, this action was not immediately successful.
On 23 September 2016, the father sent three text messages to the mother. In these messages, the father said that X had been killed in a car accident and that this was the fault of the mother. The sending of these messages was another breach of the family violence order and the mother told police that she suspected that the father was sending these messages as a ploy to try and get a reconciliation between the two of them.
On 5 October 2016, the Victorian registration and qualifications authority wrote to the PGM to thank her for notifying them that X would continue to be home schooled in 2017.
On 9 November 2016, all of the offences committed by the mother were finalised. The trafficking charges were discontinued and the mother was given a combination of good behaviour bonds and probation for the remaining offences.
The mother testified that shortly after this time, she realised that she did have to get her life together and that she needed to rid herself of drugs. She said that she wanted to have X back in her life. In a period of just over two years, she had spent all of the $500,000 that she had been paid out by her superannuation funds. She said that she had spent the money on trips, hotels and shopping. Given the history of the mother, it is inconceivable that the majority of that money was not spent on drugs.
The mother attempted to say that she had been prevailed upon by the PGM to give the PGM some of that money. She said that the PGM wanted the money for renovations to the bathroom and kitchen. The mother said she gave the PGM a total of $15,000. Even though the mother attempted to paint this out as some form of extortion, the mother admitted that she had not given the PGM any other money at all during the 6 ½ years that she had lived with the PGM.
The mother decided to move back to the Brisbane area with her family. The family fully supported her as she attempted to rebuild her life.
March 2017
The PGM returned to Adelaide for a period of approximately four weeks in March 2017. The reason for the return was that she had decided, with the co-owner of the house, to sell the property and she wanted to see what needed to be done in order to have the property prepared for sale. She brought X with her back to Adelaide.
The mother testified that she had been told by the father that the PGM was back in Adelaide. The mother travelled from Brisbane to Adelaide and met up with the father. On 27 March 2017, both the mother and father came to the house and confronted the PGM. The PGM refused to allow the mother and the father to see X and informed them that they needed to “have gone to rehab and fixed up their lives” and then she would see what would happen.
The mother telephoned the police and told them that the PGM had stolen her child and was refusing to return the child. Police attended and spoke with all parties. The police took no action and told the mother, the father and the PGM that they needed to sort this matter out in the Family Court. The mother and father left the premises of the PGM.
Four days later on 31 March 2017, the mother and father confronted the PGM on the street in Adelaide. The PGM reported that both the mother and the father became very abusive to her and the police were called again. The police reiterated that the matter needed to be sorted out in the Family Court. The mother indicated that she would be going to the Court very soon.
Notations from the records of the Department of Child Protection from 5 April 2017, show that:
…There are concerns for child’s safety if he was removed and placed back in parents care. Both parents have drug history and violence. The grandmother states that the child was kept out of school by both parents and she now home schools him because he missed first 2 years of school and kindy.
The records further state that “there is no information to suggest the child is at significant risk in his grandmother’s care where he is currently staying”.
The PGM had no idea how it was that the mother or the father came to know that she was in Adelaide at that time. She had not spoken to, nor seen either one of them for at least 10 months before this incident. The mother said that the father had told her that the PGM had returned, but was otherwise vague upon what else she was told or how the conversation occurred.
The Incident of 9 September 2017
The PGM returned to Melbourne in April 2017, but came back for a very short visit to Adelaide in September 2017, ostensibly for the same purpose of preparing the house for sale. The mother said that she was again given information by the father that the PGM was back in Adelaide, though again she was very vague on the details as to how this information was given to her and the circumstances in which she was in contact with the father.
The mother travelled to Adelaide with her sister, Ms H, and Ms H’s de facto husband, Mr J. The plan was to snatch (or more realistically, kidnap) X. The three persons lay in wait outside the home of the PGM. They saw the PGM and X leave the house and enter the car of the PGM. They followed the PGM as she drove.
The PGM was on her way to see her son Mr K so that X could see his uncle.
As the PGM got out of her car, X also got out of the car and came around to stand next to her. The PGM heard a noise that caused her to turn around and she saw the mother and her sister running towards her and X. The sister was yelling “we’re taking him with us”. The PGM put her arms around X and turned her back towards them both to protect X.
The sister then punched PGM (who was then aged 55 years) to the right side of her head from behind. The sister pushed the PGM to the ground. The PGM lay on her side and wrapped her arms and legs around X to keep a hold of him. The mother began pulling at X’s arms and legs and the sister continued to hit the PGM in the head.
The sister kneed the PGM in her side and was trying to pull her arms apart, and kept pushing the head of the PGM repeatedly into the ground. The PGM tried to reassure X that everything was going to be okay. She started screaming for help from her son. She was holding onto X and the mother started elbowing the PGM and hitting at her arms trying to pull them away from X. The PGM kept yelling at both of them to get off her because she was concerned that they were leaning on X.
The sister then put her knee onto the chest of the PGM and put her hands around the PGM’s throat. The sister began choking the PGM and screaming that they were going to take X. The PGM was scared and felt as though she was about to pass out when her son, Mr K, came to the rescue. The PGM does not know how the sister stopped putting the pressure on her airways, but she still felt someone trying to pull her legs away to get to X.
The PGM saw Mr J remonstrating with her son Mr K. The PGM just focused on keeping hold of X and was screaming to someone to call the police. PGM said that Mr K was able to take hold of X and the mother and the sister desisted in the physical attack for enough time for the PGM to call the police.
The police came and took statements from the parties. The mother and the sister made a complaint that the son, Mr K, had assaulted them and Mr K made a complaint that the mother and the sister had assaulted him. I do not need to go into the merits of either of those complaints, however it is clear to me that Mr K acted in defence of his mother and X.
I accept unequivocally what the PGM has said about this incident. The mother claimed that she did not strike the PGM in any way and denied that the sister had continually slammed the head of the PGM into the ground. I do not accept those denials at all and I find that the denials of the mother are dishonest.
This litigation - initiating application and supporting affidavit
The mother filed her initiating application on 26 October 2017. In that application she asked for sole parental responsibility in relation to X and an order that the child be immediately returned to her, or that a recovery order should issue. She asked for an order that the child live with her and spend time with the father, but did not ask for any order for the child to spend time with the PGM.
The mother gave evidence that she was attempting to mediate the matter. She said that she had gone through L Counsellors and that L Counsellors had contacted the PGM but that the PGM had refused to attend mediation. The mother then gave evidence that L Counsellors could not find the PGM.
I find it hard to accept this evidence. If L Counsellors were attempting to contact the PGM and the mother knew that the PGM was back in Adelaide, it is very peculiar that the mother would not inform L Counsellors of this fact. Furthermore, if L Counsellors were in fact involved as the mother claims, they would have been able to issue a section 60I certificate so that the mother could initiate proceedings. The proceedings that the mother initiated asked for an FDR exemption because of urgent violent circumstances.
The affidavit of the mother filed 18 October 2019 is instructive in this point. She claimed that the PGM had “abducted” X. The mother claimed that the child was with the father after she was released from custody. She claimed that the father would make her do whatever he asked so that she could see X. She said that the father locked her up and choked her. She claimed that the PGM would let the father see X whenever he wanted despite his criminal behaviours, anger management issues and drug use.

She claimed that the PGM and father broke into her house while she was in custody and stole items that were X’s.
She said that, on one occasion when the father would not let her leave, he locked her in the workshop when he was not in the house. He refused to let her leave and she was stuck for several days without being able to escape. She said that he locked her in the workshop if he needed to go out somewhere as he knew that she was unable to escape. She said that he smashed her car and locked the gates so that she could not escape in her car. She said he broke the keys and threw them on train tracks near the house. She said that she managed to call police and escape eventually.
I note that this incident is the same incident where the police describe having to use the dog squad to find the mother who was hiding underneath a car in an attempt to evade police.
In that same affidavit, the mother claimed that the PGM tried to have the mother write a will that would ensure that if anything happened to her, X would go into the care of the PGM. I note that no such allegation was made during the course of this trial.
In the same affidavit, the mother said that the PGM told her in April 2016, that she was going camping for the Easter weekend with X but failed to return. She said that the PGM kept making excuses as to why she was not coming back. She said that eventually these excuses stopped and the PGM went to live in Victoria with X. I note that the PGM said that she had no conversation with the mother at this time, and that those details were not put to the PGM at all.
The mother said, in that same affidavit, that she was frantic and that she ended up contacting the police about the situation. There is no such record of any communication with the police in the large volumes of documentation that have been provided by subpoena.
The mother said that she was concerned by the behaviour of the PGM and the PGM’s inability to protect X. The mother claimed that the PGM had previously been growing cannabis at her property, and that her family had a substantial crop of cannabis on a larger property. She said they sell it and make a lot of money. None of those allegations were put to the PGM during the course of the trial.
The mother stated in the same affidavit that:
I tried to go and visit X on 9^th September 2017 in Adelaide with my Sister. As soon as Ms Dembek saw me approach, she grabbed onto X, wrapped her legs and arms around him and fell back. She then called out to Mr K, who is about 31 years old, who came over and choked me until I fainted and I wet myself. He also punched my sister in her face. Ms Dembek let go of X and Mr K ran to X and started choking him to the point where he could not breathe. Mr K said that if I did not leave then he would “choke him out”. I stopped immediately…
… The Police and Ambulance attended the scene shortly afterwards and suggested that if I wanted to make a complaint that I should go to a police station. We then left and went to a police station where a formal statement was given. The police officer told that if I wanted to make a complaint I would need to remain in Adelaide. As I wanted to return back to Queensland I decided not to proceed further with the matter.
It was upon this information that the Registrar allowed the matter to be filed without the certificate. The information in the affidavit bears little resemblance to the evidence that was adduced in this trial. The information regarding the incident on 9 September 2017, is at best, misleading and at worst, an outright lie. There was never any allegation made to police that Mr K was going to choke X.
However, in the Departmental records there were a number of notifications about the incident of 9 September 2017. One of the reports, dated 29 November 2017, regarding a specific notification speaks of “the concerning incident reported in this intake has already been reported and recorded on … (09/09/17), therefore there are No Grounds for intervention. The information reported in this intake about the same incident states that the child was strangled and threatened by the uncle however information recorded on … (by credible sources) does not indicate such events occurred during that incident..”. I take it from this report that the mother made her own report of the incident to the Department and that she added this detail about Mr K to “demonize” him and the PGM. Obviously, the Department investigated and concluded (as I have also done) that this allegation was not credible. It was instructive that neither the counsel for the mother, nor counsel for the Independent Children’s Lawyer (“ICL”) put this allegation to Mr K.
I do not accept that the mother did anything to put this matter before the Courts, prior to 26 October 2017, notwithstanding her acknowledgement to police, in March 2017, that she would do so. Instead, she sought to take the law into her own hands on 9 September 2017, thereby exposing X to a horrible, and quite deplorable, act on her part where the one figure, who had constantly and consistently cared for X, was brutally and callously attacked.
The PGM would have been quite within her rights to instigate assault charges against the mother and Ms H. The fact that she did not do so, speaks to the innate decency of the PGM. It was the police who decided to institute proceedings for a “family violence order” against the mother which would protect the PGM. The claim of the mother, that she did not want to pursue any action because she wished to return to Queensland, is both contrived and dishonest.
There is no doubt in my mind that the mother knew that the police were taking this action against her. It then begs the question as to why the mother did not alert L Counsellors to this (so L Counsellors could contact the mother and begin mediation). Instead, the mother launched into proceedings in this Court and fraudulently convinced the registrar to allow the filing without the appropriate s 60I certificate.
History of court events
The mother filed the application on 26 October 2017. The first Court date was 7 November 2017 before Her Honour, Judge Spelleken. Her Honour made a location order on that day. Centrelink did not provide any information. On 8 February 2018, Her Honour requested that Centrelink check their records again pursuant to the location order and adjourn the matter to 19 March 2018.
On 19 March 2018, there was no appearance by the Applicant and Her Honour adjourned the matter to 24 May 2018. On that day, Her Honour ordered that substituted service be effected upon another son of the PGM (Mr M) or the sister of the PGM (Ms N). The matter was adjourned until 11 July 2018. Her Honour noted that if the PGM did not appear in Court that she would consider issuing a warrant for the arrest of Mr M so that he could provide the Court details of the location of the child.
The matter was again mentioned on 9 July 2018 where Her Honour adjourned the matter until 8 August 2018 and Her Honour repeated the order regarding consideration of a warrant for the arrest of Mr M. On 8 August 2018, Her Honour made a publication order in relation to X. Her Honour also issued a recovery order. On 23 August 2018, Her Honour ordered that an ICL the appointed.
On 28 August 2018, Her Honour ordered that the recovery order be stayed but issued a warrant for the arrest of both the father and the PGM.
On 18 September 2018, the matter came before me because Her Honour was unavailable. The PGM had become aware of the fact that there was a warrant for her arrest and she contacted the Australian Federal police immediately. The legal representative for both the mother and the PGM appeared by telephone link. I explained to the PGM the seriousness of what had occurred and that the matter was now before the Court and it would proceed accordingly. I explained that the power to arrest was a power that the Court did not like to use but it was a “weapon of last resort” to ensure that parties complied with orders. The PGM said that she had no idea that these proceedings had been started by the mother but she would comply with all orders. I discharged the warrant.
The matter came back before Her Honour Judge Spelleken on 5 November 2018. Her Honour heard an interim application for the child to change residence. Her Honour reserved her decision and on 6 December 2018, delivered her decision. Her Honour ordered that the mother was to have time with X in Adelaide but did not change the residence. Her Honour made other ancillary orders regarding contact as well.
On 21 December 2018, Her Honour discharged the warrant for the arrest of the father and it was determined that the proceedings would continue without any involvement from the father.
A child inclusive conference (“CIC”) was held in March 2019 and a memorandum compiled by Family Consultant, Ms V, was provided to the Court. A family report by Ms O had been commissioned by the Independent Children’s Lawyer. That report was filed on 4 June 2019. On that date, Her Honour made orders as to the copying of subpoena material, but had been notified that an application in a case would be filed. She adjourned the matter for an interim hearing to 10 July 2019.
The matter did not go ahead on that day and was administratively listed to be heard in October 2019. Because of some unavailability of Her Honour, I was asked to hear that application on 23 October 2019. The mother was again seeking a change of residence or unsupervised time in Queensland on the basis of what had been recommended by Ms O in the family report.
I declined to change the child’s residence and made orders that there be supervised time in a contact centre with the contact centre to give a report to the ICL after three visits. If there were no problems, unsupervised time would then commence on a graduated basis with the visits to be in Adelaide, but to eventually allow the child to spend time in Brisbane with the mother. I gave the ICL liberty to apply.
Because the matter was tracking towards a trial and the trial might very well have to be heard in Adelaide (which would necessitate a change of Judge), I transferred the matter into my docket so that I could case manage the matter and still be the trial judge whether the trial occurred in Brisbane or Adelaide.
The visits at the contact centre went ahead (and I will speak more about these visits later). On 4 February 2020, I ordered that there be unsupervised time with the mother on 15 and 16 February 2020 and 14 and 15 March 2020, for four hours per day from 10.00 AM to 2.00 PM. I ordered that the changeover point be the P Shop at Q Street in Adelaide.
The matter came back before me on 18 March 2020. It seemed to me that the matter simply needed to be set down for trial and that the trial should occur in Adelaide. I ordered that the trial occur in October 2020 but adjourned the matter for further directions on 21 April 2020.
By this time, the effects of the COVID-19 pandemic began to be felt and personal visits were not able to happen, though the FaceTime contact continued. The parties were complaining about what was occurring during the FaceTime communications. I ordered the mother keep a diary of each communication and that she file that diary by 15 June 2020. I ordered that the PGM respond to the entries in that diary, and that if there was no filing that the Court would deem that the PGM concedes any allegations made by the mother. I then adjourned the matter to 7 July 2020.
The situation that confronted me was that the mother and PGM were in disagreement as to what was occurring during the FaceTime calls. The “in person” visits were problematic when they would occur. I was of the view that the family report was now somewhat dated and that a new family report should be commissioned. I decided that the family report should be compiled by a family consultant employed by child dispute services, and be someone who was based in Adelaide.
I was acutely aware that actual time between X and his mother was not occurring and that this could skew any observations made during the compiling of the family report. Because of this, I ordered that the family consultant supervise three visits between the mother and X and that each of those visits be no more than two hours. I ordered that the family consultant prepare a written report after those three visits. I ordered that that same family consultant then compile a family report. The problem with the visits was always going to be ensuring that a visit could occur given the COVID-19 restrictions that applied in both Queensland and South Australia.
The visits were able to go ahead in person and a report pursuant to s 65L of the Family Law Act 1975 was given to the Court. A family report was also compiled and this was filed with Court in mid-January 2021. Part of that report hinted that the maternal grandparents needed to play a role in X’s future. Up to this time, X had not seen his maternal grandparents since late 2013. I thought that it was important for X to know them, especially the grandfather, sooner rather than later, if they were to play a part in his life.
On 28 January 2021, I was of the view that the matter was ready for trial and so I set the trial down for three days from 23 to 25 February 2021. I ordered that the trial occur via Microsoft Teams (“MS Teams”) because it was impractical for the mother to travel to Adelaide, or the PGM to travel to Brisbane. Having conducted trials by MS Teams for the majority of 2020, I was satisfied that it was proper for this trial occur in that way. It also ensured that no party felt that they had an advantage by being able to physically appear before me whilst other parties could not do so.
On 24 February 2021, the parties all asked me to adjourn the trial as they felt that they were not ready for the matter to proceed and that the matter would take more than the allotted three days. I agreed to the adjournment and put in place orders that reintroduced the maternal grandfather to X, and also allowed for a visit by X to Brisbane.
The trial commenced before me on 14 June 2021. After five days of sitting, the trial was still not concluded and so I adjourned the remainder of the trial to 1 July 2021. The trial concluded on 2 July 2021 after seven days of hearing. I have done what I can to deliver a decision as quickly as possible given the history of the matter.
General Impressions
In many ways, the unplanned adjournments have been in the best interests of X. The mother has been able to mature during this period. She gave evidence before me in a frank and forthright manner, which was refreshingly honest. The only areas in which I did not accept her evidence were the historical aspects.
It did seem to me though that the mother did not want to make concessions as to her abhorrent behaviour in the past because she thought that this would not go well for her. As I was at pains to convey during the trial, I am not so much concerned with what has happened in the past but with what will happen in the future for the best interests of X.
The adjournment from February 2021 allowed X to reconnect with his maternal grandfather. This was overwhelmingly successful and, given the history of the matter, has shone a very bright light in a place where the outlook had previously been gloomy. The maternal grandfather will play a very important part in the ability of X to truly reconnect with his mother.
The PGM has been unfairly criticised during these proceedings. She was painted out to be a person who was trying to be a surrogate mother for X and was sneakily attempting to orchestrate a situation where X would be living with her until he reached the age of 18 years. I do not accept that this is the case at all.
The PGM also gave evidence in a very frank but extremely honest manner.
I accept that X was extremely resistant to the thought of having any contact with his mother. The manner in which the mother coped and reacted to this was very instructive.
I was very impressed with the evidence that was given by the maternal grandmother, Ms R, and extremely impressed with the evidence that was given by the maternal grandfather, Mr S. Both maternal grandparents understand what X has been going through and have shown both a willingness and an ability to ensure that X is comfortable and feels safe. It is especially heart-warming to see the manner in which the maternal grandfather gave evidence of his interaction with X.
What is obvious to me is that the maternal grandparents have set up a home and life where persons, such as the mother, will be nurtured and supported. Having seen where the mother was at the end of 2016 to where she is now, could not have been possible without the support and love of the maternal grandparents. It is gratifying for the Court to know that X will also be the recipient of such remarkable love and support. I was very grateful for the assurances of both grandparents that they would do anything that the Court asked of them to ensure that X was cared and looked after.
I was also impressed with the paternal uncle, Mr K, who also gave evidence before me. During his evidence, he was asked what conversation he had ever had with X regarding his mother. The uncle replied that he had told X that, in effect, he belonged with his mother but that it was not yet safe for him to go back there but they were working on making things better so that he could eventually go back to her. This evidence was totally spontaneous and unprompted and very credible.
Family report of Ms O
I was assisted by this report. Ms O noted that X seemed happy to meet her in the waiting room but that he did not want to accompany her for an individual interview unless the PGM accompanied him. Ms O allowed the PGM to speak to X alone and, upon her return, X accompanied Ms O after being assured that his mother was not in the room.
Ms O said that X launched straight into telling her about his mother saying “Ms H and my mother were punching and scratching and suffocating me, and also my mother and Ms H were hurting me and scratching and hurting me”. Ms O said that it was apparent to her that X was experiencing some form of internal pressure to tell her this.
X told Ms O that when he lived with his mother that his mother “left the place a mess. And also she left me alone”. X said that he remembered this and that it was not something anyone had told him. He was asked about what he did while he was alone and he said that he did “nothing. I was so scared. I had been locked alone for two hours”.
Ms O asked X why he did not want to see his mother and specifically why was he refused to get out of the car during a visit. X replied “because she was only feeding me lollies… I’m talking about before when I was with Grammy and Mr K… When I was three, my mother kept feeding me lollies and junk food and she left me alone four times. That’s why I don’t want to see her”. He also said “my mother is horrible. And also, Grammy looks after me very good. And also Mr M looks after me very good to because he’s my buddy”.
When Ms O tried to talk to him about home schooling, she said that X change the subject and said “my mother is very naughty to me. She smacks me and she blames everything on me”. When asked what it was that her mother blamed on him, X replied “I don’t know. I forgot it all”.
Ms O said that as the session progressed, X was anxious to not provide any identifying information. She noted that X had “a flair for the dramatic, and that some of his outpourings were not accompanied by the emotions that his words suggested”.
Ms O then brought the mother into the room to watch the interactions between X and his mother. The child began talking about the incident of 9 September 2017. Ms O asked the mother to give her version of the incident and X became agitated speaking over the top of her and calling her a liar. X said “everything she is telling you-it is a lie. You’ve gotta believe me. Please”.

Ms O noted that the mother was able to divert X and that the child attempted to give Ms O and the mother an ultimatum that he was going to leave the room in 10 minutes. Ms O used a game of noughts and crosses on the whiteboard but X was not prepared to play his mother, but he did agree to play with Ms O. Ms O won the encounter and the mother then challenged X but he refused.
It was then that X offered a “deal”. He wanted Ms O to play the mother and if mother won or it was a draw, X would leave the room. But if Ms O won, then he would stay another 20 minutes. Ms O said that she and the mother deliberately ensured that Ms O won. She said that X watched closely and corrected his mother when she made losing moves but when Ms O won, X announced “I get to stay here for 20 minutes”.
Ms O noted that the interaction became more relaxed though every now and again X would make an angry statement. At the end of the session X refused any physical contact with his mother. X returned to the PGM and the PGM asked how it had been. X said that it was “ok, but I’m so angry”. Ms O later asked the PGM how X had been upon returning to her and she said that he was angry and told her (the PGM) that his mother had lied about what happened when she came to Adelaide.
Ms O did not have access to all of the material. She noted that it was not within the scope of her assessment to determine whether the PGM had a case for taking over X’s care in “early 2016”. However, to my mind, there has been an underestimating of the situation regarding the mother in the years 2015 and 2016, and a complete minimisation of the events of 9 September 2017. This is not the fault of Ms O; she simply did not have all of the material at the time of her assessment as it was not available. So the facts, upon which the recommendations were predicated, were somewhat different than Ms O was led to believe.
Ms O came to the view that the PGM had actively fostered X’s fearful view of his mother. She said that X had been led to believe that his grandmother and his uncle are virtually the only people that he can trust. Ms O said that children should almost always be raised by a parent wherever one is fit and able. She recommended that X have an immediate change of residence so that he would now be in his mother’s full-time care.
Notwithstanding this very strong recommendation, when the matter came before me, in October 2019, I declined to order a change of residence. When Ms O gave evidence before me, she did not resile from her view, however conceded that there may be more facts that the Court has, which may put things in a different light. As I said during the course of the trial, I was able to “read between the lines” of the report.
The demeanour and responses of X can be reconciled with the experiences that the child has lived through. I was not convinced that those responses were not the idiosyncratic reactions of a child who has been through the trauma that X has been through, rather than the result of coaching.
I did have the benefit of the report from Dr T, a clinical psychologist who was treating X. Dr T diagnosed X with a severe panic disorder that is precipitated by the thought of being exposed to the specific social situation of meeting his mother. X told Dr T many similar things that he had said to Ms O but, notably, also told Dr T that he believe that his mother just wants to take him away from his Grammy, and he wants to stay with Grammy.
Dr T considered the possibility that the PGM was coaching X about what to say. But he examined the interplay between the PGM and X and concluded that X is able to correct an adult if he considers this necessary. X assured Dr T that what he says about his mother is what he thinks.
I acknowledge that there is a shortcoming in relying upon the opinion of a treating psychologist rather than an expert who is reporting to the Court in a forensic capacity.
The Contact Centre visits
Even though I did not order a change of residence, I did order that there be three “two day” visits at a contact centre which would then transition into unsupervised time. The notes of the contact centre visits are very thorough and do paint a picture of a very troubled boy.
The first visit was on a Saturday and X was very resistant. There was some careful negotiation done by the supervisors and eventually the mother was able to be in the same room as X. X continually asked the mother why she tried to kill Grammy. The mother diverted those questions very well but this was a constant theme throughout the visit. X was never truly in fear of his mother and the words he uttered (that he did not wish to see his mother) were not matched by his actions.
The next visit was the following day and X was aggressive upon his arrival saying that he had wanted to make his mother “slip up and go to jail” so that he did not have to see her again. The supervisor was able to build a rapport with X, however X refused to have any contact with his mother. Because of the adamant nature of his refusal, the supervisor did not push the matter and allowed X to leave the centre.
The next visit occurred two weeks later. After spending some time with the supervisor, X was asked whether he was ready for his mother to come into the room and he agreed. The supervisor noted that X’s demeanour changed and he became less talkative. X got up and said that he wanted to play basketball and the worker asked whether the mother could come and play as well. X said “no” but agreed for the mother to at least come and watch. Outside, X whispered to the worker not tell Grammy about playing basketball. The mother watched X play basketball with the worker who was making attempts to engage X with the mother whilst not wanting to anger X. After about 10 minutes, X turned to the mother and said “you had jars full of money that you used to buy drugs” and “you made me eat bread that fell on the floor”. The mother was able to divert those questions. Soon after that X said that he was ready to go and left the visit. He did not say goodbye to his mother.
In a counselling room, the worker asked X what he meant about not telling his Grammy they were playing basketball. X answered “I don’t want to see Mum and I don’t want to come here”. The worker pried a little further about this and X said “I did something I shouldn’t have done and I wasn’t meant to play in the room I was just meant to give Mum the package and then leave”. X told the worker that he wanted him (the worker) to say to the PGM that “I just came in the room and that you needed my help and that I didn’t play with anything but I just helped you pack up because you needed help after you spilt that stuff on the floor”. When the worker went to the PGM, X stood behind her and made hand gestures to the worker and mouthed “don’t say anything”.
The next visit was the following day. The worker asked X about any questions that Grammy had asked him about the visit. X said that Grammy had asked him, but that he told her (Grammy) the same version he had asked the worker to say the day before. The worker asked X what would happen if Grammy knew he had stayed and played and X explained that she would not have minded. The worker told X that his mother had left some photos for him to look at but X refused to look at them. The worker asked X if he wanted to make some marble towers whilst they waited and X said “fine, but don’t tell Grammy”. X was refusing to see the mother. X and the worker walked outside and began to play basketball. X was asked about the mother coming into the playroom and X said that he did not want her to do that. The mother did come inside to get the photographs and X looked at her, pointed to her and called out to her telling her to get out. X then walked back into the playroom and saw the mother and said that he thought he had told her to get out. The mother explained that she thought that he meant to come inside. X picked up his bag and left the room.
The next visit was two weeks later. When X arrived he said that he did not want to see the mother, he said that he felt unsafe in the last visit. X was reassured that he would not be forced to go into the playroom to have a visit if he did not want to. X looked at the PGM and said “let’s go” and pointed at the door. X then left and did not spend any time with his mother that day.
The next visit was the following day. X again announced that he would not be seeing the mother that day. The worker acknowledged this and reminded him that he would not be forced to do anything he did not want to do. X told the worker that the mother and her friend had attempted to kill the PGM; that he had been left alone; that he didn’t feel safe; and, that the mother tells lies. The worker said to X that he had seen the mother during previous visits and so wondered what had changed. X said that he had asked the mother many questions in the hope that “she would drop the peanuts”. He said that he asked questions and the mother had said “I can’t talk about that because I may get into trouble”. X said that he hoped that the mother would admit to things and that would get her into trouble because it was video and audio recorded. X was asked a final time whether he would like to see the mother and he said no and stood up, approaching the door in readiness to leave. X left without seeing his mother.
Upon a perusal of these notes, it would be reasonable to apprehend that the child had an agenda that was contrary to wanting to spend time with the mother. Out of the six visits, X refused to see his mother on four occasions, though he did see her in one of the occasions in which he had refused. On the first occasion that he did see his mother, X wanted to ask his mother questions which his mother wisely diverted. Nevertheless, his actions belied any sense of fear or dislike that he had for the mother.
It was very noticeable that X had built a rapport with the worker for the second, third and fourth visits. He seemed to enjoy his time with the worker and was trying to do as many activities as he could with the worker rather than interact with his mother.
The section 65L visits – Dr B
These visits were an attempt by the Court to restart some post-COVID-19 time between the child and the mother which could be observed by a family consultant who would eventually compile a family report.
With respect to the first visit, it was noted that the mother had made various attempts to engage with X. He tended to respond with accusations about a past behaviour, especially of hurting Grammy. He kept refusing to engage with the mother and at one point said to the family consultant “if I have fun people think I want to see my mother and I don’t. I can be stubborn all day”.
While X was avoiding his mother, the family consultant noted that there was no sense of fear. She said that he had an exaggerated way of avoiding his mother which seemed to be an attempt at making this point. She noted that he would do things in front of the family consultant, but he would tend to look at his mother from the corner of his eye as if to see if she was watching him.
The next visit was the following day. At first X refused to look at his mother and refused to play on the PlayStation with his mother. He also refused to watch a movie with her. When the child was eating some snacks, the family consultant encouraged him to show his mother the snack packet, but X responded “people will think we are a family and we’re not”. The family consultant noted that there were less verbal accusations during this visit. She noted that X often responded to his mother through the family consultant. She also noted that he spoke with an American accent at times.
The next visit was two weeks later. When he arrived, X advised the family consultant he had watched a video about Court and his ability to express his wishes. X had retreated to a plastic cubby house and would not come out. After some time, the family consultant reminded X that this was his playtime with his mother. X said that he did not want his mother to think that he wanted to talk to her “so I choose not to because I would get sent back to Mum”. He repeated that his mother and others had tried to choke his Grammy. The mother said to X that no one had choked his grandmother, but she admitted she had tried to grab him back as she was desperate. The family consultant intervened and told both mother and child that the session should be viewed as an opportunity to build a future. X said “I don’t want to live with her because my grandma looks after me better than she ever did…”. X again performed in front of the family consultant but surreptitiously was glancing at his mother.
The family consultant said that X’s views about his mother were openly voiced during the three supervised visits but that, in her opinion, X is not fearful of his mother per se, but fearful that interacting with her will lead to an outcome in which he resides with his mother.
She said that the mother was appropriately sensitive and supportive of X despite his negative attitude towards her. She said that the question of how to rebuild the relationship is vexed because it appears that X is unwilling to do anything that he believes would be positive and, therefore, lead to him living with her.
The Family Report -Dr B
I have been assisted greatly by this report. Because of the Covid restrictions, there were no observations made of the interactions between X and the mother, however what Dr B had observed during the s. 65L visits was sufficient to inform her opinion.
Dr B had the advantage of already witnessing the interaction between X and the mother before she conducted the interviews. When she spoke to X, he produced three sheets of paper upon which he had made handwritten notes. He did not know the order in which the papers should be read and asked whether he could consult the PGM. Both the family consultant and X went to see the PGM who placed the papers in order.
X said that he did not want any visits with his mother because the visits scared him. He told Dr B that the mother put other people on the calls that he did not know. X said that he had given his mother so many chances and she hurt him. When asked about this, X replied “when I was nine she tried to pull me away in the city”. (This seems to be a reference to the visit that I had ordered take place with the changeover spot being P Shop).
When X was asked if he wanted to add anything to his three page list, he said “I’m having bad headaches when we have to talk about my mum”. He was asked about the contact centre visits and he described them as “terrifying”. He was asked about the interaction between himself and the worker in which he asked the worker to tell the PGM certain things. X’s response was “I was playing with the guy, so she, so she, was fine with that, if I was shooting hoops with the guy”. When brought specifically to the point, X said that he was fearful that the PGM would be “cross” because “I stayed to play with the other guy”.
X said that he was worried that he had done something wrong and that he would not like people to think that he liked staying with his mum. He said that he was not playing with his mum, he was only playing with “the nice guy”. Dr B recounts that X became tearful and said that he was worried that he would have to live with his mother. He said that “she’s like, she, she, doesn’t love me enough - she always wants to do her own thing - she tried to get me by getting stuff… she said she was going to get me an iPhone”.
X said that he wanted to live with his Grammy. He was anxious and tearful and told Dr B that “court stuff makes me confused” and “when I’m stressed I sometimes say the wrong thing”. X said that his Grammy takes good care of him and “takes way more better care than my mum or my father”.
When it came to the observations, Dr B noted that there was no “ebb and flow” of general conversation. Dr B noted that “the absence of the capacity to follow and encourage X’s conversation and verbal expression, when the essence of the skill has been demonstrated in other ways, raises questions about the underlying dynamics of this relationship”.
Dr B noted that X seemed to reference the PGM in a way that seemed to be focused on his need for her approval. She noted that X seemed eager to please the PGM and that his interactions tended to have an anxious quality to them in that regard. Dr B said in evidence before me that she questioned whether there was truly a sense of pride in becoming an autonomous individual rather than someone who was existing solely to ensure that he pleased the PGM.
Dr B said that she found it difficult to give the relationship between the PGM and X a “clean bill of health”. She noted that there was an attachment between the two but questioned whether this was a “healthy” attachment. Dr B said the lack of observable instances where X asserted his autonomy was noteworthy. She said that this suggested that X had not emotionally separated from the grandmother and that the grandmother did not seem to encourage X’s autonomy.
Dr B said that the PGM “stepped up” and took on the responsibility of caring for X when it was that he needed it most. She noted that there was an allegation that X had been alienated by the PGM and, very properly, did not venture into that area other than to say that the collateral material suggests that X had been unduly influenced.
Dr B said that she had a clear sense that X seemed emotionally confused and concerned about saying “the wrong thing”. She said that X appears to be emotionally dependent on the PGM to an unhealthy degree for a child of his age. She said that he appears to be highly attuned to the needs of the PGM and he demonstrated a high degree of loyalty throughout his narrative. Dr B noted “as a sense of belongingness is critical for the developing child, the child learns how to appease and turn approval. In this dynamic separation anxiety is also often observed but it may be based on fear of abandonment”.
Dr B said that it was unlikely that X would be able to view the mother in any way other than the way the PGM views the mother. Dr B said that the PGM did not convey a positive attitude towards the mother and appeared to be largely negative and viewed her as a threat to X. Dr B said that her information suggested that the PGM would not be supportive of X’s relationship with the mother. She said “this issue is of significant concern with regard to the degree to which X is at liberty to enjoy a relationship with his mother”.
Dr B said that the manner in which the PGM had encouraged X to spend time with his mother was by reminding X that they were required to abide by Court orders, rather than encouraging the relationship between the mother and X as a natural state to achieve what is in the best interests of the child.
Dr B said that it appeared clear that X would not be at liberty to enjoy a relationship with his mother, and it was unlikely that X would be able to build his relationship with his mother whilst he remains in the care of the PGM. She was of the view that the PGM was unable to support X to re-establish and repair his relationship with his mother, and in fact, suggested that the PGM may be actively discouraging this.
Dr B said that X’s emotional and psychological well-being has been, and is likely to continue to be, compromised while in the care of the PGM. She said that he is an emotionally confused, vulnerable child who is in need of a carer who can provide him with a sense of security and unconditional love. She said the X’s rejection of the mother was best viewed as a survival response driven by an unconscious fear of abandonment by the caregiver with whom he is most familiar. She said that little weight could be placed on X’s wishes and views in this matter.
Dr B had the affidavits of the maternal grandparents and suggested that, even if the Court had some doubts as to the capacity of the mother, the Court could consider the care of X being transferred to the maternal grandparents.

Dr B gave a somewhat pessimistic view of the future for X. She said that there was a very small window of opportunity for the relationship to be repaired. She said that the only way that this could be achieved is by an immediate change of residence and a moratorium of between 6 to 9 months on the PGM having any contact with X.
In her evidence before me, Dr B conceded that, if the recommendations were followed, X would experience a loss in no longer living with the PGM. She said he would feel insecure and would have a fear of moving away from what he knows to somewhere that he does not know at all.
Dr B described X as being enmeshed with the grandmother and as such does not see himself as an autonomous being. She said that there is a risk to his psychological autonomy unless the “enmeshing” is ceased. She reiterated that she did not feel that X has the psychological autonomy to form his own opinion.
Dr B conceded that there was no expert evidence about X’s capacity to cope with a drastic change. When she was asked about a gradual change of residence that might occur over the course of, perhaps, 18 months, Dr B replied that she did not know whether there was 18 months left for a proper relationship to be formed between X and his mother.
Impressions of the mother
Generally, the mother was impressive in her understanding of what X is going through. The manner in which she deflected the accusatory questions from X displayed an appreciation that these visits were neither the time, nor the place, for such issues to be discussed. Notwithstanding the hurtful way in which X treated her, the mother kept the same sunny disposition to X, as if to say, “my desire to be your mother, and to care for you, is far stronger than your belief about my ability to parent you”.
I did have some misgivings about the results of the drug tests. I am grateful to the ICL for procuring the report from Dr U. Whilst it would have been desirable for there to have been some medical evidence as to the mother’s current care regime (and the doctor’s future plan regarding the mother’s use of oxycodone), I am somewhat comforted that she has been under the constant supervision of the same GP for a number of years.
The drug tests all show that the mother revealed to the “tester” that she was taking drugs under prescription and that proper analysis showed that the findings were consistent with the mother consuming therapeutic doses. Most importantly, these drug tests showed that the mother has not reverted to her illicit drug taking ways of 2015 and 2016.
I am of the view that there is no magic in taking courses or undergoing rehabilitation in regards to illicit drug taking. What is absolutely required is the force of will to stay away from drugs and an insight into what were the triggers, or reasons, for past illicit drug taking and an understanding of what the consequences would be if there were future illicit drug taking. The life that the mother now leads, together with the results of the drug tests, are sufficient for me to have no concerns regarding future illicit drug taking on the part of the mother.
In the course of these reasons, I have been extremely critical of the mother, and justifiably so. However, it is clear to me that the woman who gave evidence before me is not the same woman who was living a destructive existence in 2015 and 2016, nor the woman who tried to concoct an outcome to her benefit through fraud and deceit in 2017 and 2018. It seems to me that upon finally seeing X in 2019, that the mother shunned all of the “shortcuts” and has dedicated herself to winning back the trust of X (and attempting to win the trust of the Court as well).
As I had previously mentioned, the dishonesty displayed by the mother, in these proceedings, related to past events where she thought that if she made a proper and truthful concession, she may lose the trust of the Court. In fact, the opposite was true. But I was able to understand the reasons why the mother was untruthful and I am not of the view that such dishonesty has affected her ability to be the mother that X deserves to have.
Impressions of the PGM
The PGM has been somewhat demonised in these proceedings. The prevalent thinking, displayed in this trial by many witnesses and participants, has been that the PGM is a very cunning and conniving individual who has slowly entangled X in her web for the sole purposes of being able to control him. To my mind, this is being very unfair.
Given all of the collateral material, to describe the lives of both the mother and father, in 2015, as a “train wreck” would be a huge understatement. X needed someone to act in his best interests and, not just X, but the Australian community as a whole, owes the PGM a debt of gratitude for stepping up and caring for this child, thereby preventing him from becoming just another grim statistic.
I have no doubt that X lived through horrific experiences that were perpetrated by both his mother and his father. It was for his benefit that the PGM ensured that the child had no contact with either of his parents until they “sorted themselves out” and demonstrated that they could be the parents that the child actually deserved.
I have already spoken of the innate decency of the PGM in how she handled the deplorable attack upon her on 9 September 2017. That demonstrates what her true intentions have always been; she was not out to punish or deprive the mother of having X in her care, she was instead acting protectively to keep X safe.
The PGM said, in answer to a question by me, that she saw her role as carer for X, as a temporary role. She knew that she would always have to relinquish care of X back to the mother when the mother had truly “sorted herself out”. I accept the PGM as being truthful in this respect and it has confounded me why most participants in this matter have simply ignored this statement.
It may be said that the PGM had not told this to any of the report writers, but she was never asked this question. It should not be taken, in any way, as criticising the family report writers, but it seems to me that the manner of the idiosyncratic presentation that X had given, set-off alarm bells and caused many of the participants to interpret the behaviour through that lens, rather than objectively examine what was in front of them and ask pertinent questions.
The issues
It seems to me that the stance of the PGM is one that has caught both the ICL and the mother by surprise. Her position evolved as the evidence was led. Before the mother gave evidence, the material suggested she had a long history of trouble with both the law and with dishonesty to the Court. As well as this, the results of the drug tests did not make sense. In those circumstances, it was reasonable for the PGM to doubt that the mother had, in fact, “sorted herself out”.
Having regard to the report of Dr B, on the eve of the trial, the PGM conceded that the mother would be in a position to resume her parenting duties after a graduated reintroduction. As the evidence unfolded in this Court, it became obvious that the mother was in a position where she had truly “sorted herself out”.
After questions were posed, and observations were made by me during the course of submissions by counsel for the PGM, the position of the PGM evolved even further when the true effect of the evidence was illuminated. This was a very proper approach and yet the PGM was then criticised and accused of grabbing a “life line” that I had thrown her.
I can certainly understand why it may be thought that X has been “alienated” from his mother by the PGM. But, I do not think it is as simple as that. It seems to me that X is a very complex little boy who has lived through quite traumatic events.
What has been staggering to me is the minimisation, and even sanitisation, of the assault on the grandmother on 9 September 2017. I have very little doubt that X does have memories of his mother, before the PGM, in effect, rescued him. Those memories would be of constant abandonment, indifference to his needs, violence to him, violence perpetrated around him and semi-constant (and unwanted) interaction with persons in the drug trade/culture. When one adds the traumatic events of 9 September 2017, where he was treated as a piece of meat and subjected to an obscene tug-of-war, as well as witnessing his carer being violently assaulted and strangled, it is easy to understand the attitude of this child.
It is very easy to understand why he would become enmeshed in the life of the PGM. For this child, taking those steps as an autonomous being would be extremely frightening. It is very little wonder that he has felt reticent to allow anyone else to be part of his life and why he would fear being abandoned by the PGM.
I agree with Dr B that this is not healthy for X. I agree that something does need to be done to allow X to be able to take those steps as his own person. What I do not understand is how ripping him away from the PGM, and imposing a moratorium on having contact with her, is going to achieve that end.
To my mind, Dr B has concluded that the PGM is the cause of the situation where X is not able to express his autonomy. Dr B has concluded that the PGM would not be willing to facilitate X returning to his mother. However, this is totally contrary to the evidence that has been given at this trial. I am of the view that the cause of X not being able to express his autonomy has been a product of his traumatic experiences rather than the subtle manipulation of the PGM. I am of the view, consistent with the evidence of the PGM, that she would facilitate X returning to his mother. After all, this was her goal in looking after X in the first place. This is also consistent with the evidence of the paternal uncle, Mr K.
The real question is how should this be done.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s 61DA (“the presumption of equal shared parental responsibility”) and s 65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s 64B of the Act. Section 65C allows a court to make a parenting order involving a grandparent of the child. As the father has not participated in this proceeding, I will focus on matters involving the mother and the PGM.
In deciding whether to make a particular parenting order s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s 60CC(2) the “primary considerations” and s 60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents (or in this case the mother and the PGM) and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s 60B that the best interests of children are met by ensuring they have the benefit of both their parents (or in this case, the mother and the PGM) having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s 60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which the mother and the PGM have fulfilled their parental responsibilities and has facilitated the other in fulfilling their parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG).
I will also be guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made as detailed in these Reasons and how they apply in determining what parenting orders are most likely to promote the best interests of X.
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
(a)the benefit to X of having a meaningful relationship with his mother and the PGM
(b)the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
(a)It is important to X that he has a meaningful relationship with both his mother and the PGM, and
(b)There is no need to protect X any longer from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
(a)Eventually, both the mother and the PGM, to their credit, acknowledged that it is important for the child to have a meaningful relationship with the other. They both have a committed involvement as caregivers in the child’s life.
(b)Since the father is “no longer in the picture”, the systemic family violence has ceased. While the incident of 9 September 2017 has been a focal point for me, I am not convinced that this “one off” event is such that would cause me to think that X needs continual protection.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X. Having made the finding that I have, s 60CC(2A) no longer has relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:-
(a)Unlike Dr B, I am of the view that I should take X’s views into consideration. Having said that, I temper those because of the inability of X to truly, objectively, assess his situation.
(b)I have spoken at length about this particular circumstance. I am of the view that the mother and X will have an excellent mother/son relationship once X is able to accept her.
(c)I have already spoken of the history of this matter and I have taken this circumstance into the appropriate consideration.
ca)This has not been an issue that has occupied my thinking. X has been well cared for and will continue to be well cared for, whatever orders I make
(d)I have thought about this circumstance quite extensively. I am of the view that there would be great trauma caused to X if he were to be torn away from the PGM and have no communication with her for the next nine months. The question for me is whether such a drastic step is necessary in the best interests of X.
(e)Because the mother lives in Queensland and the PGM lives in South Australia, there is going to be “not insignificant” costs associated with X maintaining a relationship with both the mother and the PGM. I have considered this circumstance very carefully.
(f)This aspect has been the focus of my findings. The evidence of Dr B was that the PGM could not provide for those needs. Whilst I understand exactly why Dr B has said this, whatever my decision, X is going to need extensive counselling and therapy.
(g)I have considered this circumstance very carefully, especially because I am of the view that the responses, and behaviour, of X are very idiosyncratic rather than being the result of a systematic manipulation by the PGM.
(h)While X is not of Aboriginal or Torres Strait Island heritage, I am of the view that it is still important for X to be able to enjoy the Country C culture of which his maternal family is justifiably proud.
(i)I have spoken of this circumstance at length especially how the mother has, to my mind, turned her life around in the past couple of years to a point where I am of the view that she has “sorted herself out” so that she now has the proper attitude toward X.
(j)I have taken into account the family violence that occurred leading up to the child coming into the care of the PGM and the family violence inflicted on 9 September 2017.
(k)I have taken into account the circumstances surrounding the orders of protection made in favour of the mother against the father and in favour of the PGM against the mother.
(l)I am of the view that the orders that I make are least likely to lead to further litigation and I have considered the role of the ICL in ensuring that this may occur.
(m)I have detailed, in these reasons, all matters that I consider relevant.
Parental responsibility
Under s 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, the presumption does not apply because of the previous family violence committed by the mother on the PGM. At this point in time, however, I have ordered that the mother and the PGM have equal shared parental responsibility. If I were to accede to the recommendations of Dr B, it would seem to me that it would be proper to order that the mother have sole parental responsibility. This is because there would need to be no contact with the PGM for nine months. But if it were that I did not believe that such a drastic step was necessary, it would seem to me that X’s best interests would be served by the PGM and the mother discussing matters for X’s future benefit.
If I make the decision that there be equal shared parental responsibility, I am then required by s 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial or significant time with each parent. The section provides:
Equal time
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the court must:
a.   consider whether the children spending equal time with each of the parents would be in the best interests of the child/children;
b.   Consider whether spending equal time with each of the parents is reasonably practical; and
c.   if it is, consider making an order to provide (or including a provision in the order) for the child/children to spend equal time with each of the parents.
Substantial and significant time
2.If:
a.   a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
b.   the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
a.   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
b.   consider whether the child spending substantial and significant time with each of the parents is reasonable practicable; and
c.   if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Equal time
In this matter, X spending equal time with the mother and the PGM is not practical, for the obvious reasons that they live in different States.
Substantial and Significant time

As to whether I should order the child spend substantial and significant time with each parent, there is clear agreement that this arrangement is not reasonably practicable. A decision needs to be made as to where X will live.
Even if the Court agrees that there should be a moratorium, after that period, there should still be time with the PGM.
I am of the view that if X remains in South Australia, then he should see his mother for one weekend (which includes an overnight visit) every school term in Adelaide. He should spend half of every school holiday with his mother; two of those school holidays should be spent in Queensland with his mother and one should be spent in South Australia with his mother. For the six week Christmas holidays, X should spend half the holidays in South Australia with the PGM and the other half with his mother in Queensland.
Similarly, if X were to live in Queensland with his mother, then he should see the PGM for one weekend (which includes an overnight visit) every school term in Brisbane. He should spend half of every school holiday with his PGM; two of those school holidays should be spent in South Australia with the PGM and one should be spent in Queensland with the PGM. For the six week Christmas holidays, X should spend half the holidays in South Australia with the PGM and the other half with his mother in Queensland.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s 60B, quoted earlier.
CONCLUSIONS
This has been a very difficult decision. Whilst I am of the view that X has become “enmeshed” with the life of the PGM, I am also of the view that this has come about as a coping, or defence mechanism X has utilised given the traumatic experiences he has undergone.
I am of the view that it is time for X to resume living with his mother and the issue is how that transition is to occur. The reason that the PGM became the primary carer for X was to protect X and to keep him safe until the mother had “sorted herself out” and was able to resume her parental duties. During the submissions of Counsel for the PGM, there was a concession that this time has now come.
I do not accept that the PGM is deliberately, or even subconsciously, undermining the relationship that X has with his mother. The encouragement that the PGM has given, especially since the maternal grandfather came to the fore, belies any suggestion that the PGM is trying to surreptitiously keep X “in her clutches”.
For this reason, I cannot accept the recommendations of Dr B that I need to act swiftly, decisively and rip X out of the home he has known all his life and deny him any contact with the person who has been caring for him for the bulk of his life. I am of the view that that would be terribly cruel to this child and would destroy his faith in any system of justice and compound his sense of abandonment.
After much consideration, I have come to the view that the current regime, where the mother and PGM share parental responsibility, should remain. I also considered whether the maternal grandparents could share parental responsibility (given the evidence of Dr B and the maternal grandparents during the trial). But as the maternal grandparents are not parties to this litigation, I am of the view that I do not have the power to order that they have any parental responsibility. However, I will fashion the orders so that the mother and the PGM must discuss matters of parental responsibility with the maternal grandparents and take any views given by the maternal grandparents into account before making any final decision.
I am of the view that there needs to be a transition from the PGM to the mother that will be at a pace which X will be able to accept and cope. He is currently in grade 5 but has only been at school for the past 18 months or so. I am of the view that it would be in X’s best interests to finish the school year in Adelaide. I am also of the view that it would be in X’s best interests to maintain his contact with Dr T so that this professional can assist X in dealing with the change that will occur.
Without wanting to stray from my judicial task and venture into the realm of social work, I am of the view that the smoothest way for the transition to occur is for the mother to make an apology to X (and also to the PGM). I would imagine an apology that acknowledged that the mother was in “bad space” back in 2015 and that she did things that were not best for X (including exposing him to persons in the drug trade/culture and leaving him alone in a house) would act as both validation of X’s complaints/fears and an acknowledgement that the mother is happy that the PGM stepped up and looked after X when she could not.
I think that such an apology also needs to acknowledge the appalling lack of judgement with regard to the events of 9 September 2017. Such an apology, again, would validate X’s views and further show X that his mother is wanting to put his interests ahead of her own. I am of the view that such an apology would need to be in a controlled environment, preferably with Dr T present, and the sooner this happens, the better.
But I do not think that I should make the provision of an apology as part of any Court order. I do think that this is a matter that should be discussed by the mother, the maternal grandparents and the PGM with appropriate input from Dr T or any other such professional who is caring for the needs of X.
I will order that the current phone call/FaceTime/Skype regime continue until the end of the 2021 school year. I will order that on one weekend during term three and term four of 2021, the mother, maternal grandfather and maternal grandmother come to Adelaide and spend time with X from 10.00 AM on a Saturday until 5.00 PM on a Sunday. I will order that, during the September school holidays, the mother, maternal grandfather and maternal grandmother come to Adelaide and spend a week with X from a Monday at 10.00 AM until the following Monday at 10.00 AM.
After the school year has concluded, X is to travel to Queensland and from then on, he will live with the mother, maternal grandfather and maternal grandmother. X will continue to have a phone call/FaceTime/Skype contact with the PGM at least once a week. X is to be enrolled and attend school in Queensland for the 2022 school year.
From then on, the time that the PGM spends with X will be as I had earlier indicated. Obviously, this regime will not work unless the parties are committed to making it work. X needs to know that all of the people who are dedicated to his love and care are “on the same page” with what I have now ordered. The PGM has said under oath that she is comfortable with X returning to his mother’s care once it is that she had “sorted herself out”. Objectively, that has happened and the Court expects the PGM to live up to what she has sworn before the Court.
I will give the ICL liberty to apply to ensure that these arrangements are complied with. After the first week of the school year, I would ask the ICL to submit a written report as to how these arrangements have proceeded. Upon receipt of such a report, the Court will then discharge the ICL.

I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 14 July 2021

[2021] FCCA 1547

14 July 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Procedural Fairness

Jurisdiction

Statutory Construction

File number(s):	BRC 11323 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	14 July 2021
Catchwords:	FAMILY LAW – parenting – where father not engaged with proceedings – proceedings between paternal grandmother and mother – where the paternal grandmother has been caring for the child because of the mother’s incapacities – where the mother has relocated interstate – best interests of the child.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 60CG, 61DA, 64B, 65C, 65D, 65DAA 65DAB, 65L, 121
Cases cited:	N/A
Number of paragraphs:	244
Date of last submission/s:	2 July 2021
Date of hearing:	14, 15, 16, 17 ,18 June and 1 and 2 July 2021
Place:	Brisbane
Counsel for the Applicant:	Mr O’Meara
Counsel for the Second Respondent:	Ms Read
Counsel for the Independent Children's Lawyer:	Mr George
Solicitor for the Applicant:	Hodgson Lawyers
Solicitor for the Second Respondent:	Oliver Oks Lawyers
Solicitor for the Independent Children's Lawyer:	Carter Farquar Mediation & Family Law

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	14 JULY 2021