Betty and Ogienko and Ors
[2012] FamCA 61
•23 February 2012
FAMILY COURT OF AUSTRALIA
| BETTY & OGIENKO AND ORS | [2012] FamCA 61 |
| FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall live and spend time – paternal great grandmother and father withdrew from proceedings – eldest child of the parties lived with and was predominantly cared for by the maternal grandmother - the youngest child lived with the mother – children enjoy a meaningful relationship with mother and maternal grandmother – children have a close relationship with one another - allegations of child abuse and exposure of children to family violence – history of periods of disharmony between mother and maternal grandmother where children were deprived of contact with each other and the party with whom they do not live - mother’s history of misuse of alcohol and use of illicit drugs – mother’s differential treatment of the children with the mother being closer to the youngest child than the eldest child – sole parental responsibility allocated to maternal grandmother – children to live with maternal grandmother and to spend time with mother |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 67ZC, 114 |
| Aldridge & Keaton (2009) FLC 93-421 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 L v T (1999) FLC 92-875 MRR v GR (2010) 240 CLR 461 Potts & Bims & Ors [2007] FamCA 394 T & N (2003) FLC 93-172 |
| APPLICANT: | Ms Betty |
| 1st RESPONDENT: | Ms M Ogienko |
| 2nd RESPONDENT: | Mr Gover |
| 3rd RESPONDENT: | Ms N Ogienko |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Moran, Coast Law |
| FILE NUMBER: | NCC | 1131 | of | 2009 |
| DATE DELIVERED: | 23 February 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 31 January & 1 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE 1ST RESPONDENT: | Craney Family Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE 2ND RESPONDENT: | Not Applicable |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Bateman |
| SOLICITOR FOR THE 3RD RESPONDENT: | Arnold Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Barry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Moran, Coast Law |
Orders
All former parenting orders relating to the children D, born … May 2005, and T, born … July 2008, (“the children”) are discharged.
The first respondent (“the maternal grandmother”) shall have sole parental responsibility for the children.
The children shall live with the maternal grandmother.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child D spends time with the third respondent (“the mother”):
(a)Each alternate Sunday between 10.00 am and 5.00 pm (with such time to coincide with the time spent by T with the mother pursuant to Orders 5(a) and 5(b) hereof);
(b)On the Mother’s Day weekend from 11.00 am Saturday until 11.00 pm Sunday;
(c)From 4.00 pm to 5.30 pm on 2 May and 1 July each year;
(d)From 11.00 am on Christmas Eve until 11.00 am on Christmas Day in 2013 and every odd year thereafter;
(e)From 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2012 and every even year thereafter.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child T spends time with the mother:
(a)Until the child commences full-time school, each alternate week from 5.00 pm Thursday until 5.00 pm Sunday, commencing on the second Thursday following the making of these orders;
(b)Once the child commences full-time school, each alternate week from 5.00 pm Friday until 5.00 pm Sunday.
(c)On the Mother’s Day weekend from 11.00 am Saturday until 11.00 pm Sunday;
(d)From 4.00 pm to 5.30 pm on 2 May and 1 July each year;
(e)From 11.00 am on Christmas Eve until 11.00 am on Christmas Day in 2013 and every odd year thereafter;
(f)From 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2012 and every even year thereafter.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children, or either of them, communicate privately by telephone with:
(a)The mother each Tuesday and Friday when the children are living with the maternal grandmother, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the maternal grandmother, and the maternal grandmother shall ensure that the children are able to receive the mother’s calls on that number at that time.
(b)The maternal grandmother each Saturday when the youngest child is spending time with the mother, between 6.00 pm and 6.30 pm, and for that purpose the maternal grandmother shall telephone the child on the telephone number provided to her by the mother, and the mother shall ensure that the child is are able to receive the maternal grandmother’s calls on that number at that time.
For the purposes of implementing the time spent by the children with the mother pursuant to Orders 4 and 5 hereof, the maternal grandmother shall cause the delivery and the mother shall cause the collection of the children at the commencement of the time to be spent by them with the mother at Shop A, Town N, NSW, and the mother shall cause the delivery and the maternal grandmother shall cause the collection of the children at the conclusion of the time spent by them with the mother at the same place.
The mother is restrained from consuming alcohol during any period in which the children spend time with her, and also during the period of 12 hours immediately preceding such time.
Each party is restrained from denigrating the other or any other member of the children’s family in the presence or hearing of the children, and from permitting the child to remain in the presence or hearing of another person denigrating the other or any other member of their family.
The maternal grandmother shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Betty & Ogienko and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1131 of 2009
| Ms Betty |
Applicant
And
| Ms M Ogienko |
First Respondent
And
| Mr Gover |
Second Respondent
And
| Ms N Ogienko |
Third Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The two young children involved in these proceedings were the subject of disagreement between their parents, the maternal grandmother, and the paternal great grandmother.
At different points the father and paternal great grandmother withdrew from the proceedings, leaving the mother and maternal grandmother to contest proper parenting orders for the children. An Independent Children’s Lawyer was appointed to represent the children’s interests.
Although at one point the maternal grandmother and the mother reached agreement about a permanent parenting regime, because of the pervasive evidence of past disharmony between the parties and chaos in the children’s lives, it was essential to evaluate at trial whether the proposed regime really did serve the best interests of the children.
Background
The two children who are the subject of these proceedings are D, born in May 2005, and T, born in July 2008. They are now aged six and three years respectively.
There was originally some doubt about the paternity of the children but that was eradicated by parentage testing, which satisfactorily established the father’s paternity of them.[1]
[1] Notations made on 15 February 2010; Notation D made on 28 June 2010
The mother and father first separated in November 2005,[2] when the eldest child was only months old and before the birth of the youngest child. The mother and father reconciled in July 2006 and the youngest child was born in July 2008.[3]
[2] Family Report 10 September 2010, par 4
[3] Maternal grandmother’s affidavit, par 10; Family Report 10 September 2010, par 5
In May 2007 the mother, father and the maternal grandmother agreed upon final parenting orders in respect of the eldest child being made by the Federal Magistrates Court, essentially providing that:
a)The child live with the maternal grandmother (Order 1.1);
b)The maternal grandmother have sole parental responsibility for the child (Order 1.3);
c)The child spend time with the mother each alternate weekend, subject to the mother producing clear urinalysis results for six consecutive months and having “appropriate housing” (Orders 1.4, 1.5); and
d)The child spend some short time with the mother on his birthday, on Christmas Day, and at any other times agreed between the parties (Orders 1.6, 1.7, 1.8).
The orders reflected the fact that the eldest child had been living with the maternal grandmother since Christmas 2005,[4] despite the reconciliation of the mother and father in July 2006.
[4] Maternal grandmother’s affidavit, par 21; Family Report 10 September 2010, par 4
While the orders regulated the eldest child’s interaction with both the maternal grandmother and mother, they made no provision for the child to spend time or communicate with the father. The maternal grandmother asserted that the mother and father did not attend Court when the orders were made,[5] but the sealed orders are endorsed with a solicitor’s certification that the orders are a copy of “the original Minute of Order signed by the parties and held on the court files”. Why the father agreed to orders in those terms is not explained.
[5] Maternal grandmother’s affidavit, par 5
The mother failed to provide urinalysis results as required by the orders and so the eldest child did not spend any time with the mother until September 2007.[6] Thereafter, for the next year, the eldest child only spent time with the mother irregularly, and only when the mother attended the maternal grandmother’s home so she could be supervised.[7]
[6] Maternal grandmother’s affidavit, par 8
[7] Maternal grandmother’s affidavit, par 9
By September 2008 the maternal grandmother acted to prevent the eldest child from spending time with the mother in the belief that the mother and father continued to use illicit drugs and consume alcohol excessively.[8]
[8] Maternal grandmother’s affidavit, pars 10-17, 22
The maternal grandmother alleged the mother told her that she did not wish to see the eldest child if the maternal grandmother would not also allow the father to see the eldest child.[9] As a consequence of that stand-off, the eldest child was deprived of interaction with the mother, the youngest child was deprived of interaction with the maternal grandmother, and just as importantly, the children were deprived of interaction with one another.[10] That situation continued unchecked for well over a year, from Father’s Day in September 2008 until October 2009.[11]
[9] Maternal grandmother’s affidavit, par 18
[10] Maternal grandmother’s affidavit, pars 19, 23, 24
[11] Maternal grandmother’s affidavit, pars 14-17, 25-27
The paternal great grandmother was apparently dissatisfied with the absence of interaction between the eldest child and members of the paternal family, and in particular herself. She commenced these proceedings in May 2009 seeking orders that the eldest child spend defined time with her. The youngest child was then living with the mother and she was ensuring the youngest child spent time with the father, who was apparently then imprisoned.[12]
[12] Family Report 10 September 2010, par 5
In October 2009, interim parenting orders were agreed between the paternal great grandmother, the maternal grandmother, the mother and the Independent Children’s Lawyer. The orders expressly note that the father was not present at Court. The orders provided for:
a)The eldest child to spend supervised time with the mother each alternate weekend (Orders 3.1, 3.2) and restraint of the mother from allowing the eldest child any contact with the father (Order 3.8); and
b)The youngest child to spend time with the maternal grandmother each alternate weekend (Orders 3.4, 3.5) and restraint of the maternal grandmother from allowing the youngest child any contact with the maternal grandfather (Order 3.7).
The mother and father finally separated a month later in November 2009.[13] The father then joined in the pending parenting proceedings by filing his Response in February 2010.
[13] Family Report 10 September 2010, par 5
All parties appeared or were represented at Court on 28 June 2010 when the proceedings were fixed for trial on 2 November 2010.
The trial did not proceed, but instead the parties reached agreement about further parenting orders on 3 November 2010, which provided for:
a)Discharge of previous parenting orders (Order 1.1);
b)The eldest child to live with the maternal grandmother and for her to have sole parental responsibility for him (Orders 1.3, 1.10);
c)The eldest child to spend time with the mother generally each alternate weekend and for parts of school holidays (Order 1.10A);
d)The maternal grandmother and mother to have equal shared parental responsibility for the youngest child (Order 1.11);
e)The youngest child to live with the mother (Order 1.12);
f)The youngest child to spend time with the maternal grandmother generally each alternate weekend, at times that correlate with the eldest child’s residence with her (Order 1.13);
g)The maternal grandmother and mother to contact Relationships Australia to implement family therapy so as to facilitate the re-introduction of both children to the father (Order 1.20); and
h)The maternal grandmother, mother and father to all comply with requests of the Independent Children’s Lawyer for their submission to urinalysis (Order 1.22).
The matter was adjourned for a period of months to monitor the success of those orders.
Regrettably, the orders did not quell the family upheaval. The paternal great grandmother discontinued her application, the maternal grandmother and the mother failed to implement the intended family therapy and so the children were not re-introduced to the father, the father withdrew from the proceedings, all parties failed to submit to urinalysis requested by the Independent Children’s Lawyer, and the relationship between the maternal grandmother and the mother spectacularly disintegrated in May 2011 necessitating police intervention.[14]
[14] Maternal grandmother’s affidavit, pars 30-39; Family Report 20 July 2011, par 9
Contemporaneously with the breakdown of the relationship between the mother and maternal grandmother, the mother began cohabitation with a former boyfriend, Mr H,[15] whom the maternal grandmother does not know well,[16] but of whom she was highly critical.[17] The mother and Mr H continue to cohabit and a child was born to that relationship in July 2011.[18]
[15] Mother’s affidavit, pars 2, 4
[16] Maternal grandmother’s affidavit, par 46
[17] Family Report 20 July 2011, par 4
[18] Mother’s affidavit, par 5; Maternal grandmother’s affidavit, par 44
The acrimony between the maternal grandmother and the mother again caused serious adverse consequences for the children. In breach of the consent orders made in November 2010, the eldest child was deprived of interaction with the mother, the youngest child was deprived of interaction with the maternal grandmother, and the children were deprived of interaction with one another. That situation prevailed for at least weeks, but perhaps months, and was only cured by more orders made several months later.[19]
[19] Maternal grandmother’s affidavit, pars 41-43; Family Report 20 July 2011, pars 3-4
Further interim parenting orders were agreed between the maternal grandmother, the mother and Independent Children’s Lawyer in August 2011. The orders provided for:
a)Discharge of the orders made in November 2010 which provided for the eldest child to spend time with the mother and the youngest child to spend time with the maternal grandmother (Order 1.1);
b)The eldest child to spend time with the mother each alternate Saturday and some days during school holidays (Orders 1.2, 1.3) and communicate with the mother by telephone once per week (Order 1.4);
c)The youngest child to spend time with the maternal grandmother each alternate weekend (Order 1.5)
The proceedings were fixed for trial again on 27 September 2011. The mother failed to comply with procedural orders designed to ensure the readiness of the matter for trial.[20] An adjournment application was made by the mother, with the consent of the maternal grandmother and Independent Children’s Lawyer. The trial was vacated and a raft of self-executing procedural orders were made.
[20] Orders 7, 9 made on 18 August 2011
The trial was re-listed to commence on 31 January 2012, shortly prior to the commencement of which the maternal grandmother and mother announced they had reached agreement upon parenting orders. The agreement did not enjoy the unconditional consent of the Independent Children’s Lawyer and was not entirely consistent with the views expressed by the Family Consultant. In light of the evidence, and particularly the contents of the three Family Reports, the proposed orders were not ones to which the Court was immediately inclined to accede. The proposed orders did not unambiguously reflect the children’s best interests and so it was necessary for the trial to proceed (see T & N (2003) FLC 93-172 at [12]-[14]).
Presently, the eldest child continues to live with the maternal grandmother and the youngest child lives with the mother.
Absence of the applicant
As already noted, the proceedings were commenced by the paternal great grandmother filing an Initiating Application on 7 May 2009.
The paternal great grandmother later filed a Notice of Discontinuance on 14 July 2010 and thereafter did not participate in the proceedings.
The trial therefore proceeded in her absence.
Absence of the father
The father was a respondent in the proceedings. He filed a Response on 22 February 2010. That Response was neither amended nor discontinued.
The father participated in the proceedings up until January 2011 but then terminated his involvement.
The father appeared at Court when the matter was first listed for trial in November 2010 and offered his consent to the interim parenting orders made on 3 November 2010. The father also participated in the first and second rounds of interviews with the Family Consultant in September 2010 and January 2011, but that was when his participation ended. There was no appearance by the father before the Court on 28 April 2011, or at any subsequent Court events.
The father was contacted by Court staff about his attendance at a further interview with the Family Consultant in July 2011 but he failed to appear or explain his absence.[21]
[21] Family Report 20 July 2011, par 6
The trial therefore proceeded in his absence. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Proposals and primary evidence of the maternal grandmother
Until the trial, the parenting proposals of the maternal grandmother were relatively consistent throughout the proceedings. She proposed that both children live with her, although she was open to the idea of sharing parental responsibility for the children with the mother. She remained steadfastly concerned about the mother’s sobriety.
In her Response filed on 20 July 2009 she proposed orders generally that:
a)Any application in respect of the eldest child be dismissed and the former final parenting orders made on 9 May 2007 in respect of that child be confirmed (Orders 1-2);
b)She have sole parental responsibility for the youngest child and that child live with her (Parenting Orders 1-2); and
c)The youngest child spend supervised time with the mother, father and paternal great grandmother at a nominated Contact Centre for two hours per fortnight (Parenting Orders 3-4), and that the youngest child spend no unsupervised time with either the mother, father, or paternal great grandmother until each of those parties provide clear urinalysis results over a consecutive period of 12 months (Parenting Orders 5-6).
Despite prior orders permitting her to do so,[22] the maternal grandmother did not amend her Response until 20 October 2011, at which time she proposed orders generally that:
a)All previous parenting orders relating to both children be discharged (Order 1);
b)Both children live with her (Order 2);
c)She and the mother have equal shared parental responsibility for both children (Order 3);
d)The children spend time with the mother each alternate weekend, for half of school holiday periods, and on special occasions (Orders 4-9); and
e)The mother not consume alcohol or illicit drugs during, or at times proximate to, the children spending time with her (Orders 15-16).
[22] Order 6 made on 18 August 2011
The maternal grandmother filed a Further Amended Response only days later on 25 October 2011, at which time she proposed orders generally that:
a)She and the mother have equal shared parental responsibility for both children (Orders 1, 3);
b)The youngest child live with her (Order 4);
c)The children spend time with the mother each alternate weekend, for parts of school holiday periods, and on special occasions (Orders 2, 5, 6); and
d)The mother not consume alcohol or illicit drugs during, or at times proximate to, the children spending time with her (Orders 12-13).
Curiously, on the cusp of the trial, the maternal grandmother altered her view. She joined with the mother in a proposal for the eldest child to live with her, but for the youngest child to live with the mother. The maternal grandmother and the mother jointly tendered a minute of the orders they mutually proposed.[23]
[23] Exhibit C
The maternal grandmother relied upon her affidavit filed on 23 August 2011, but that evidence did not explain her belated change of view about the children’s best interests. Accordingly, the maternal grandmother sought and was granted leave to adduce fresh oral evidence directed to that issue.
During the course of final submissions the maternal grandmother resiled from her reliance upon the minute of orders she had jointly proposed with the mother. Instead, she adopted the minute of orders proposed by the Independent Children’s Lawyer, which represented a return to her long-held position that both children should live with her and she should have sole parental responsibility for them.
Proposals and primary evidence of the mother
The mother’s proposals fluctuated widely throughout the proceedings.
When the mother filed her original Response on 24 July 2009 she held a harsh and oppositional attitude to any involvement of the maternal grandmother in the lives of the children. She sought no order in respect of the youngest child, who then lived with her and the father. She proposed that the eldest child live with her and that he only spend time with the maternal grandmother at times with which she agreed, or at times dictated by the Court.
The mother simultaneously filed a Notice of Child Abuse or Family Violence alleging the eldest child had been physically abused and exposed to family violence by the maternal grandmother, and further, that the eldest child continued to be exposed to the risk of such harm in the care of the maternal grandmother. That revelation explained the mother’s antipathy towards the maternal grandmother.
The mother filed an Amended Response only two months later on 24 September 2009. The only alteration was her confirmation that the maternal grandmother’s application in respect of the youngest child should be dismissed.
Of course, the mother’s interests in the proceedings ceased to be compatible with the father’s interests when they finally separated in November 2009, and her proposals were then liable to change.
But, as with the maternal grandmother, the mother failed to comply with orders permitting her to amend her Response.[24] She did not file an Amended Response until 7 November 2011. Her proposal at that time provided for:
a)Discharge of all previous parenting orders (Order 1);
b)Her and the maternal grandmother to have equal shared parental responsibility for the children (Order 2);
c)The eldest child to live with the maternal grandmother (Order 3) and to spend time with the mother each alternate weekend, for half of school holidays and on other special occasions (Order 5);
d)The youngest child to live with the mother (Order 4) and to spend time with the maternal grandmother each alternate weekend, for half of school holidays and on other special occasions (Order 6);
e)Her restraint from consuming alcohol or illicit drugs during, or at time proximate to, the children living or spending time with her (Orders 13-14).
[24] Order 6 made on 18 August 2011
The agreement reached by the mother with the maternal grandmother shortly prior to the trial was largely reflective of the mother’s parenting proposal set out within her Amended Response.
Having regard to the extent of unrestricted time the parties proposed be spent by the children in the care of the maternal grandmother, the mother inferentially abandoned her past allegations that the children were at risk of harm due to subjection or exposure to abuse or family violence when in the care of the maternal grandmother.
The mother relied upon the affidavits sworn by her and Mr H, both of which were filed on 23 November 2011, but that evidence did not explain the abandonment of her former serious allegations against the maternal grandmother. No explanation for that was ever proffered or sought.
Position of the independent children’s lawyer
The Independent Children’s Lawyer relied upon the evidence of the Family Consultant contained within his three Family Reports dated 10 September 2010, 5 April 2011, and 20 July 2011, all of which were adopted by annexure to the Family Consultant’s affidavits.
The Independent Children’s Lawyer did not announce any preliminary views at the outset of the trial, nor unconditionally join in the parties’ agreement about final parenting orders which provided for the eldest child to live with the maternal grandmother and the youngest child to live with the mother.
At the commencement of final submissions the Independent Children’s Lawyer tendered a minute of the orders she proposed,[25] which effectively provided for:
a)The maternal grandmother to have sole parental responsibility for both children (Order 2) and for both children to live with her (Order 3);
b)The eldest child to spend time with the mother for only one day each alternate weekend and on special occasions and to communicate with her by telephone once each week (Orders 4, 6);
c)The youngest child to spend time with the mother for multiple days each alternate weekend and on special occasions and to communicate with her by telephone once each week (Orders 5-6); and
d)Injunctive orders intended to regulate the mother’s driving and her use of alcohol and illicit drugs (Orders 10-13).
[25] Exhibit D
Relevant legislative provisions
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children
Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]).
Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern other interested parties may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]). Consequently, I will deal with the mother and the maternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.
Considerations relevant to the father and paternal great grandmother are largely ignored because of their apparent disinterest in the outcome of the proceedings.
Best interests – primary considerations
Section 60CC(2)(a)
There was no contest that the children each enjoy a meaningful relationship with the mother and that each of them would benefit from the maintenance and promotion of those relationships, provided the maintenance and promotion of other important relationships in their lives is also ensured.
Section 60CC(2)(b)
As already noted, the mother previously filed a Notice of Child Abuse and Family Violence in which she alleged the eldest child had been physically abused and exposed to family violence by the maternal grandmother, or at least whilst in her care.
I reject such allegations for several reasons. The mother reported no such concerns to the Family Consultant, no such allegations were put to the maternal grandmother in cross-examination for her response, as they ought to have been if they were pursued, and the ultimate parenting proposal urged upon the Court by the mother was antithetical to the genuineness of such allegations.
There was no evidence adduced, and no submission made, that there was any need to protect either child against prospective physical or psychological harm that might arise from subjection or exposure to abuse, neglect or family violence when in the care of the maternal grandmother.
While it was not submitted either child was at risk of harm through abuse by the mother or by some other person while in her care, the spectre of their physical or psychological harm through being neglected or exposed to family violence when in the care of the mother permeated the evidence. The risk of such harm was contended, either expressly or impliedly, to arise from the mother’s tendency to intoxication by illicit drugs and/or alcohol and the volatile relationship said to exist between the mother and Mr H.
I am not satisfied on the evidence that there is any appreciable risk of the children being exposed to family violence between the mother and Mr H. The evidence about that was almost entirely speculative, based on fears of the maternal grandmother.[26] But her fears seemed largely about the mother’s past partners rather than Mr H personally, about whom she conceded she knew very little.[27]
[26] Family Report 20 July 2011, par 4
[27] Maternal grandmother’s affidavit, par 46
The mother[28] and Mr H[29] both denied the occurrence of family violence between them, which evidence they confirmed when cross-examined, and no contradictory evidence was adduced of any involvement by police or other authorities in their lives. I accept their denials as truthful.
[28] Mother’s affidavit, pars 15, 21; Family Report 20 July 2011, par 12
[29] Affidavit of Mr H, par 9
However, the evidence does satisfy me that the children are at risk of physical harm through neglect within the mother’s household in the event the mother relapses into use of illicit drugs or misuse of alcohol. The risk is not currently unacceptably high, but it exists nonetheless. When the mother uses illicit drugs or consumes alcohol to excess her intoxication deprives her of coherence and parenting skills and the children are at risk of neglect. That remains an issue of concern. The children are also exposed to poor parental role-modelling in those circumstances, but that is an additional consideration under s 60CC(3) rather than a primary consideration under s 60CC(2) of the Act.
Best interests – additional considerations
Section 60CC(3)(a)
The Family Consultant did not report either child expressing a view about their parenting arrangements. Nor did the parties.
Even if they did, at six and three years of age respectively, the children are too young to repose any weight in their views.
Section 60CC(3)(b)
The children both have meaningful relationships with the maternal grandmother. The eldest child is particularly close to her, given he has lived continuously with her since late 2005 when he was barely months old.
Cross-examination of the maternal grandmother and mother revealed that the mother regards the children differently. She feels closer to the youngest child, who has spent more time living with her. The mother does not feel so closely attached to the eldest child because of his historical residence with the maternal grandmother. The mother regards the eldest child more as a sibling than a child and voluntarily wishes to spend less time with him than with the youngest child. That was why the eldest child spent very little time with the mother – certainly far less time than was provided under the interim parenting orders made in August 2011. Although the eldest child still has a meaningful relationship with the mother, that relationship is less meaningful in his life than is the comparable relationship in the life of the youngest child.
Those considerations are significant and were the reasons behind the Independent Children’s Lawyer’s proposal for the eldest child to spend less time with the mother than the youngest child. The Independent Children’s Lawyer regarded the mother’s differential treatment of the two children as manifesting an impaired parental attitude. I agree.
Importantly, the children have a very close relationship with one another, despite presently living in different households, and despite the mother’s relative disinterest in having the eldest child spend much time with her, which thereby diminishes the time the children spend together. When recently observed by the Family Consultant, the children spontaneously hugged one another in a warm and loving embrace.[30] The eldest child lavished attention on the youngest child, as did the maternal grandmother, which the youngest child clearly enjoyed.[31]
[30] Family Report 20 July 2011, par 18
[31] Family Report 20 July 2011, par 22
The bond between siblings is an important one because it likely endures well beyond the lives of parental figures, becoming the longest lasting relationship in their own lives. It is also a relationship in which siblings may seek refuge from the conflict to which they are exposed in other aspects of their lives.
The Family Consultant considered the closeness of the children’s relationship should be prioritised and that the ultimate parenting regime must ensure the children spend as much time together as possible. Any arrangement under which the children are separated from each other ought, in the view of the Family Consultant, be considered “very carefully”.[32] Self-evidently, such a priority is best served by the children living together. Even though the objective of the children regularly spending time together could still be achieved if they lived separately, a common residence is a superior arrangement. That was an important factor that underpinned the proposal of the Independent Children’s Lawyer, and finally the maternal grandmother, for the children to live together with her. I also place considerable weight on that factor.
[32] Family Report 10 September 2010, par 59; Family Report 20 July 2011, pars 31, 37
Similarly, the children’s relationships with their half-sibling, who was born to the mother and Mr H in July 2011 and lives with them, should also be encouraged. There was no evidence adduced about the quality of the children’s relationships with their half-sister, but those relationships may be fostered when the children spend time with the mother and members of her household.
Sections 60CC(3)(c), (4)
Both the maternal grandmother and mother are willing and able to facilitate and encourage the relationships the children each have with the other party, but only whilst their own relationship is intact.
Historically, their relationship has fluctuated dramatically and during periods of disharmony they have deliberately terminated all interaction between them, unfortunately resulting in the children being deprived of any contact with the party with whom they did not then live and their sibling. That occurred to the eldest child between May and September 2007, and to both children between September 2008 and October 2009 and again between May and August 2011.
Such behaviour is anathema to the best interests of the children. It reflects poorly upon the parties that they have subordinated the children’s best interests to their own desires. The parties’ commitment to facilitation of the children’s relationships with the important adults in their lives and their siblings must survive their own squabbles, however petty or serious they perceive them.
Section 60CC(3)(d)
The orders entail no material change to the parental regime for the eldest child. He will remain living with the maternal grandmother, as he has done for most of his life. Provision is also made for him to regularly spend a restricted amount of time with the mother. As a consequence only of the mother’s choice, he has not spent frequent or protracted time with her in the past.
It is unlikely the eldest child will be unduly fazed by the youngest child spending more time than him with the mother. He is more closely bonded with the maternal grandmother and such a regime is simply practical recognition of existing attitudes and arrangements.
The orders do entail change for the youngest child. Presently, she lives with the mother and spends several days each fortnight with the maternal grandmother. The orders reverse that arrangement. She will now live with the maternal grandmother and spend each alternate weekend with the mother.
I am quite satisfied the youngest child will cope with that change because she enjoys a loving relationship with the maternal grandmother and will live with her brother, to whom she is closely bonded, in that household. I accept the Family Consultant’s opinion that it will not be a significant upheaval for the youngest child to change her residence from the home of the mother to the home of the maternal grandmother.
In the past, the youngest child has often moved between the care of the mother and maternal grandmother. It seems that a past lack of stability has affected the children. The Family Consultant found the youngest child exhibited behaviour which was consistent with disrupted psychological attachment to a primary caregiver.[33]
[33] Family Report 10 September 2010, pars 38, 43
Significantly, when last seen by the Family Consultant in July 2011, the youngest child identified her home as that of the maternal grandmother, despite having only been with the maternal grandmother twice in the few months preceding that observation.[34] She experienced no difficulty separating from the mother.[35] That is likely because of the volume of time spent by the youngest child living with the maternal grandmother in the period between October 2009 and May 2011.[36] Since the last interim orders were made in August 2011 the youngest child has consensually spent even more time with the maternal grandmother than the orders provide. The maternal grandmother’s home and its occupants are therefore familiar to the youngest child and she is not anxious about separation from the mother.
[34] Family Report 20 July 2011, par 21
[35] Family Report 20 July 2011, par 22
[36] Maternal grandmother’s affidavit, pars 27-29
Section 60CC(3)(e)
There will be no practical difficulty or expense involved in implementation of the orders. The maternal grandmother and mother both live within reasonable proximity of one another in the lower Hunter Valley.
Even though the mother does not hold a drivers licence, Mr H does, and the mother envisages no difficulty in reliance upon him for transport of both her and the children. That arrangement has been in place for some time and it has proven workable.
The parties agreed that, whatever residential regime prevails, the children will be exchanged between them from time to time at a particular venue situated between their respective homes. The orders adopt their joint proposal for the changeover venue.
Section 60CC(3)(f)
There is a surfeit of evidence to demonstrate that the mother and maternal grandmother have each, at times, failed to adequately provide for the children’s emotional needs. That failure has, however, been more pronounced on the part of the mother.
Evidence exemplifying the failure to optimally provide for the children’s emotional needs is elaborated under ss 60CC(3)(b), (c), (g), and (i).
Regrettably, both parties are responsible for the children misunderstanding their places in the family constellation,[37] which will inevitably affect their sense of identity. The Family Consultant recommended rectification of that situation in September 2010,[38] but the parties failed to comply with interim orders made in November 2010 designed to achieve that objective.[39]
[37] Family Report 10 September 2010, pars 34, 36, 48
[38] Family Report 10 September 2010, par 58
[39] Order 1.20 made 3 November 2010; Family Report 5 April 2011, pars 13, 14, 16;
The Independent Children’s Lawyer proposed a final order to try and redeem that situation,[40] but acknowledged such an order was merely aspirational rather than prescriptive and was therefore superfluous.
[40] Exhibit D, Order 16
Section 60CC(3)(g)
The mother’s lifestyle has been inimical to responsible parenting. By her own admission, she has a long history of illicit drug use and excessive alcohol consumption, although there remains some debate about her current propensity for intoxication.
In September 2010, the mother told the Family Consultant she had smoked between 5-10 cones of marijuana every day for a period of years, ceasing about two years before. She also reported use of amphetamines which ceased over two years before.[41] At a second interview in January 2011 the mother confirmed to the Family Consultant her continuing abstinence from illicit drugs.[42] In her recent affidavit, the mother deposed to her continuing abstinence from illicit drugs and only moderate use of alcohol.[43] When cross-examined the mother conceded she began to use marijuana when aged only 15 years and that she had used amphetamines intravenously. Syringes used for that purpose had been found by the maternal grandmother in her bag as recently as September 2007, despite the orders of May 2007 prohibiting her use of drugs and her submission to urinalysis.[44]
[41] Family Report 10 September 2010, par 29
[42] Family Report 5 April 2011, par 12
[43] Mother’s affidavit, par 23
[44] Orders 1.4 and 1.12 made on 9 May 2007
The maternal grandmother, at least as recently at June 2011, remained apprehensive about the mother’s misuse of alcohol and the corroborative documents she produced evidencing the mother’s cash withdrawals at licensed premises rendered her concern objectively reasonable.[45] The mother’s intoxication was the reason behind their last cataclysmic argument in May 2011.[46] The mother’s admissions to the Family Consultant about the extent of her alcohol consumption, even in contravention of Court orders, tend to bear out the maternal grandmother’s fears and caused the Family Consultant to consider the mother regularly misused alcohol.[47]
[45] Maternal grandmother’s affidavit, par 53; Family Report 20 July 2011, par 4
[46] Family Report 10 September 2010, par 45; Family Report 20 July 2011, par 4;
[47] Family Report 20 July 2011, pars 13, 34
It is difficult to reconcile the evidence of Mr H with either that of the maternal grandmother or the mother. In cross-examination he said that no alcohol at all was consumed by him or the mother. I find his evidence about the mother on that point difficult to accept, given her own admission of moderate use of alcohol.
Despite the mother’s alleged abstinence from illicit drugs, until the trial, she failed to provide even a single urinalysis report in response to requests made by the Independent Children’s Lawyer.[48] Orders requiring her submission to urinalysis have been in place at various times since May 2007. Similarly, orders requiring her abstinence from alcohol consumption at times proximate to her care of the children have been in place since May 2007. The evidence unassailably proves the mother’s repeated contraventions of those orders.
[48] Family Report 10 September 2010, par 45; Family Report 5 April 2011, par 17;
During the course of the trial the mother tendered a urinalysis report recently undertaken on 3 January 2012, which proved her urine contained no traces of common illicit drugs. The most favourable inference, adopted by the parties as correct, was that the mother must necessarily have been abstinent from use of marijuana for several months. Obviously, that is a laudable achievement for the mother, but as was submitted by the Independent Children’s Lawyer, it represents a short history of improvement against a long history of drug and alcohol abuse. The maternal grandmother previously experienced dashed hopes about the mother’s improving sense of responsibility.[49] It could easily happen again.
[49] Maternal grandmother’s affidavit, par 11
The Family Consultant repeatedly commented upon the findings of accepted research that successful rehabilitation from long-term drug and alcohol abuse usually depends upon engagement in long-term professionally supported therapy. As yet, the mother has experienced no therapy, although she accepts her need for it. She instructed her counsel to petition the Court for an order mandating her participation in drug and alcohol counselling, even as a pre-condition to the youngest child’s residence with her. I am disinclined to take that course. Therapy is unlikely to be a satisfactory remedy unless it is genuinely desired. If it is, the mother will undertake therapy regardless of any order to do so. If it is not, then she is unlikely to comply with an order forcing her, as is evidenced by her past disobedience of orders regulating her drug and alcohol use.
I agree with the view of the Family Consultant that the parenting regime proposed by the mother was not the best solution for the children, even if a mandatory order for her submission to drug and alcohol counselling was grafted on to the orders.
While there is no evidence the mother currently becomes intoxicated by alcohol or illicit drugs to a degree, or with such frequency, that her parenting capacity is impaired, the prospect of her relapse after such a comparatively short period of remission remains pronounced. I accept that the mutual concerns of the maternal grandmother, Independent Children’s Lawyer, and Family Consultant about that issue are valid.
The topic of drug use should not be concluded without remarks about the maternal grandmother. Although the maternal grandmother denied use of illicit drugs,[50] she also belligerently refused or failed to comply with orders requiring her submission to urinalysis.[51] Whilst there was no evidence to suggest the maternal grandmother’s parenting capacity is impaired by use of illicit drugs or misuse of alcohol, her disobedience of Court orders is still an adverse reflection upon her sense of responsibility.
[50] Family Report 10 September 2010, par 21; Family Report 5 April 2011, par 5
[51] Family Report 20 July 2011, par 5
Sections 60CC(3)(h), (6)
Neither party identified themselves or the children as Indigenous Australian.
Sections 60CC(3)(i), (4)
When observed by the Family Consultant, it was the maternal grandmother rather than the mother who afforded most care for and supervision of the children,[52] demonstrating a superior attitude to the responsibilities of parenthood to the mother. The Family Consultant formed the view that the mother may not be “child-focussed” and recommended caution in making any order providing for either child to live with her.[53]
[52] Family Report 10 September 2010, pars 19, 44, 53
[53] Family Report 10 September 2010, pars 55, 62
In a moment of candour, the maternal grandmother revealed to the Family Consultant a belief that the mother “doesn’t have a maternal bone in her body”.[54] That may have been hyperbole at a time of tension, but the revelation logically indicates the maternal grandmother’s core belief about the mother’s inferior parenting skills.
[54] Family Report 10 September 2010, par 20
At times in the past the mother acted foolishly and compromised the physical safety of the children. For example, in July 2009, whilst only a learner driver, and unaccompanied by an instructor, the mother negligently drove a motor vehicle with the youngest child as a passenger, causing a collision and grievous bodily harm to another motorist. Although there is no evidence the mother was intoxicated at the time of driving, witnesses asserted to police she had a very strong smell of alcohol on her breath shortly afterwards.[55] The mother was charged and convicted of offences arising out of that accident.[56]
[55] Exhibit E
[56] Family Report 20 July 2011, par 11
The mother also admitted during cross-examination to her use of at least alcohol during her pregnancies with the youngest child and her baby, recently born in July 2011, despite knowledge that alcohol consumption was potentially dangerous to the foetus.
Section 60CC(3)(j)
Family violence was an unfortunately common feature of the relationship between the mother and father,[57] but there is no evidence of any interaction between them since their separation in November 2009.
[57] Family Report 10 September 2010, par 3
The state of the evidence concerning the alleged occurrence of family violence between the mother and Mr H has already been addressed and rejected as a primary consideration under s 60CC(2)(b). There is nothing to add.
Similarly, the historical allegations concerning family violence made by the mother against the maternal grandmother have been addressed and rejected as a primary consideration under s 60CC(2)(b).
Section 60CC(3)(k)
There are no current family violence orders applicable to the parties, the children, or any member of the children’s family.
Section 60CC(3)(l)
The current litigation in respect of the children has been pending for nearly three years, with three separate sets of interim orders made, many of which have been breached. Earlier litigation concerning the eldest child was on foot nearly five years ago. Those considerations alone militate in favour of final orders being made designed to minimise the prospect of further proceedings concerning the children.
The relationship between the maternal grandmother and the mother has been stable for the last few months, but the maternal grandmother confirmed during cross-examination that the relationship was still fragile because of their history of disharmony. Their relationship has waxed and waned over many years and each is aware how quickly the quality of the relationship can change.
The Family Consultant correctly commented that their relationship is “central to the matter” and that it fluctuates from “very supportive and positive” to “highly acrimonious and negative”. Insightfully, the Family Consultant opined that “mutual mistrust and suspiciousness (sic)” appear to characterise and underpin their relationship.[58]
[58] Family Report 10 September 2010, par 51
When first interviewed by the Family Consultant in September 2010 the mother said her relationship with the maternal grandmother was “good at the moment”,[59] implying her awareness of its susceptibility to change. There is no dispute about the extent of the upheaval experienced only several months later in May 2011 because the mother acknowledged she and the maternal grandmother were completely estranged for months thereafter.[60] Even Mr H is well aware of the relative fragility of the relationship. He described it as “hot and cold”, with them sometimes very close and other times barely on speaking terms.[61]
[59] Family Report 10 September 2010, par 28
[60] Mother’s affidavit, par 17
[61] Affidavit of Mr H, par 12
When the maternal grandmother and mother are getting along they are able to ensure flexible parenting arrangements for the children.[62] The reverse is true when their relationship falls into disrepair.
[62] Family Report 10 September 2010, par 7
Instances of the parties’ relationship falling into disrepair have unfortunately not been uncommon in recent years. Sometimes the periods of disharmony have been quite protracted. Although the parties are presently enjoying a period of conviviality, the risk of another disagreement and lengthy estrangement remains.
It is hardly alarmist to perceive the risk as serious. The uncontentious evidence is that they only reconciled their relationship a few months ago, and since then they have only socialised at one another’s homes on relatively few occasions. The maternal grandmother and the mother’s partner remain generally unfamiliar with one another, so it is likely her apprehension about his suitability as the mother’s long-term domestic partner has not been completely allayed. When asked, the maternal grandmother honestly conceded the improvement of her relationship with the mother was still on a fragile footing. Finally, the maternal grandmother ultimately resiled from her agreement with the mother and supported the Independent Children’s Lawyer’s proposal for both children to live with her. The maternal grandmother acknowledged the mother was desperate for the youngest child to remain living with her and admitted her concern about the mother’s adverse reaction if orders were made for the youngest child to live with the maternal grandmother. The orders, which largely reflect those proposed by the Independent Children’s Lawyer and the maternal grandmother, could trigger recriminations between them.
It is a compelling consideration for orders to be made which ensure the continuity of the relationship between the children in the event of another breakdown in the relationship between the maternal grandmother and mother. That can only be achieved if the children live together. It cannot be achieved if the eldest child lives with the maternal grandmother and the youngest child with the mother.
Section 60CC(3)(m)
During her cross-examination the maternal grandmother admitted her desire to retain the equilibrium that currently exists in the relationship with the mother. She conceded her belief that it would not necessarily be in the best interests of the youngest child for her to remain living with the mother. The maternal grandmother’s agreement with the mother about such an outcome was merely a convenient compromise and was motivated by her desire to avoid alienation of the mother.
The maternal grandmother’s turmoil over the issue of the youngest child’s residence was palpable and understandable, but the best interests of the youngest child cannot be sacrificed for the sake of appeasement of adult interests.
Other than the factors already addressed, no other features of the evidence were submitted to be influential in the determination of appropriate parenting orders.
Parenting orders
The presumption of equal shared parental responsibility does not apply, given the uncontradicted evidence of past family violence between the mother and father (s 61DA(2)).
Even if the presumption did apply it would be rebutted by reference to the children’s best interests (s 61DA(4)). Irrespective of the reasons why, neither child now has any relationship with the father. It would be anomalous to allocate any share of parental responsibility to the father when he has withdrawn from the proceedings and no order can conceivably be made providing for either child to live, spend time, or communicate with him.
Only the maternal grandmother and mother can properly be allocated parental responsibility for the children. The allocation of parental responsibility, either solely or on a shared basis, is necessarily determined by reference to the children’s best interests.
The final proposal of the Independent Children’s Lawyer and the maternal grandmother was that sole parental responsibility for both children should be allocated to the maternal grandmother,[63] whereas the mother proposed that she and the maternal grandmother have equal shared parental responsibility for both children.[64]
[63] Exhibit D, Order 2
[64] Exhibit C, Order 2
The Family Consultant made no express recommendation for the allocation of parental responsibility in his Family Reports and when pressed in cross-examination preferred not to express an opinion on the issue. The Family Consultant believed the parties had the capacity to parent the children collaboratively when their relationship was stable, but inferentially, not during their past episodes of volatility. The parties have not even spoken during periods of their past estrangement, so in similar future circumstances it would be virtually impossible for them to constructively share parental responsibility for the children.
The only real reason offered by the mother’s counsel for her to have a share of the children’s parental responsibility is that it would be crushing to her to be deprived of it. That may well be so, but the decision must be made by reference to the children’s best interests, not the mother’s. An order allocating equal shared parental responsibility would be unworkable if the maternal grandmother and mother again fall into dispute. The risk of that is still sufficiently pronounced that I am persuaded such a situation must be avoided. One party must be allocated sole parental responsibility.
The allocation of parental responsibility is inextricably linked to the decision about where the children will each live.
There is no contest that the eldest child should live with the maternal grandmother. Consequently, she should have sole parental responsibility for him. It would be absurd for the mother to have sole parental responsibility for him in circumstances where he lives with the maternal grandmother.
As for the youngest child, the preponderance of evidence dictates that she also should live with the maternal grandmother. Pre-eminent in that decision are my conclusions about the desirability of the children living together, the importance of ensuring continuity and enhancement of the children’s relationship with one another in circumstances where there remains a real risk of the parties’ future conflict, the superiority of the maternal grandmother’s parenting skills, and the risk of the mother’s relapse into use of illicit drugs or misuse of alcohol thereby compromising her parenting capacity. I am satisfied about the relative ease with which the youngest child will transition to the maternal grandmother’s household.
For the same reasons that apply in respect of the eldest child, the maternal grandmother should also have sole parental responsibility for the youngest child.
It would clearly be wise for the maternal grandmother to consult with the mother over important issues concerning the children, even though they live with her and she has sole parental responsibility for them, but at times when that is not possible the maternal grandmother will have unilateral control.
It was submitted for the mother that her parenting proposal ought prevail because it reflects the existing circumstances under the interim orders made in August 2011. That is not so, because the mother chooses not to allow the eldest child to spend time with her in accordance with those orders. Even if the interim orders were the subject of faithful compliance, continuation of those orders for continuity’s sake would be unwise. The mother was unable to explain in cross-examination why she would promulgate final parenting orders providing for the eldest child to spend each alternate weekend and part of each school holiday with her when she had no intention of fulfilling those orders. In any event, the reasons why alteration of the interim arrangement is warranted have been explained.
It is of course important to the children to preserve their relationships with the mother. To achieve that end the orders provide for them to spend time with the mother on a regular basis.
The reason why the orders provide for the eldest child to spend less time with the mother has also already been explained. Differentiating the children to some extent is not controversial for the parties. They chose to do so previously, when they agreed upon interim orders in August 2011, which orders provided for the eldest child to spend less time with the mother each alternate weekend than did the youngest child with the maternal grandmother.
The Independent Children’s Lawyer and maternal grandmother proposed an order to the effect that the time spent by the eldest child with the mother was conditional upon the mother notifying the maternal grandmother of her willingness to have the eldest child.[65] I decline to make such an order. The eldest child’s best interests are served by him retaining his relationship with the mother, the prospects of which are enhanced if their interaction is regular and reliable. It is incumbent upon the mother, if she is to be a responsible parent, to ensure that occurs. If the child becomes aware the mother is able, but chooses not to see him and only his sister, his self-esteem is likely to suffer.
[65] Exhibit D, Order 4(b)
Generally, the orders provide for both children to spend time with the mother each alternate weekend and on other special occasions. No provision is made for longer holiday stays, either during school holiday periods or at other times. That is consistent with the proposal of the Independent Children’s Lawyer and the maternal grandmother.[66] However, the orders provide for the parties to agree otherwise.
[66] Exhibit D, Orders 4-6
The orders provide for each child to communicate with the mother regularly by telephone.
It was conceded by the Independent Children’s Lawyer, and impliedly the maternal grandmother, that Orders 11-13 proposed by them were beyond the power of the Court since they were not orders made under ss 64B, 68B, 67ZC, or 114 of the Act (see L v T (1999) FLC 92-875 at [49]-[60]; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).
It is pointless restraining the mother from using illicit drugs at any time, or from driving illegally, because the law requires that of her anyway. Consequently, orders proposed to that effect are not made.[67]
[67] Exhibit C, Order 14; Exhibit D, Orders 10-11
Nor is there any utility in ordering the parties to advise one another as soon as possible about illnesses and accidents suffered by the children.[68] If the parties do not have the good sense to do that in the absence of an order, an order will not fill the void. The maternal grandmother has sole parental responsibility for the children so only she can authorise medical treatment for them.
[68] Exhibit C, Order 11; Exhibit D, Order 14
The remaining orders are broadly consistent with orders proposed by the parties and Independent Children’s Lawyer.[69]
[69] Exhibit C, Orders 7, 9, 10, 12, 13; Exhibit D, Orders 7, 8, 9, 10, 15
For those reasons I am satisfied the orders set out at the commencement of this judgment meet the best interests of the children.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 February 2012.
Associate:
Date: 23 February 2012
Exhibit F
Maternal grandmother’s affidavit, pars 47, 52, 53
Family Report 20 July 2011, pars 16, 29
Family Report 20 July 2011, par 5
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