Bostock & Bostock
[2024] FedCFamC2F 1503
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bostock & Bostock [2024] FedCFamC2F 1503
File number(s): PAC 5911 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 28 October 2024 Catchwords: FAMILY LAW – PARENTING – Where maternal grandparents have cared for the children for over 2 years – Where mother has history of alcohol abuse – Where mother recently lived transient lifestyle – Where mother has no clear plans for the care of the children – Where children at risk whilst in mother’s care Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D, 64C Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 21 October 2024 Place: Parramatta Solicitor for the Applicants: Ms Godden of Godden Lawyers Appearing for the First Respondent: In person Appearing for the Second Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
PAC 5911 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BOSTOCK
First Applicant
MR BOSTOCK
Second Applicant
AND: MS C BOSTOCK
First Respondent
MR PRATT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.The grandparents, Ms Bostock and Mr Bostock (collectively ‘grandparents’), have sole decision-making for all long-term issues in relation to the children X born in 2018 and Y born in 2019 (collectively ‘children’).
2.The children live with the grandparents.
3.The children spend time with the mother, Ms C Bostock (‘mother’), as agreed between the parties in writing and subject to a breathalyser test result being received showing a result of 0.00.
4.The mother is restrained by injunction from consuming alcohol, drugs, or any illicit substance in the presence of the children or be in any way affected by them whilst the children are in her care or for at least 24 hours prior to the time the children come into her care.
5.As soon as reasonably practicable, but no later than within 14 days of the date of these Orders, the mother shall, at her own cost, obtain a mobile personal breathalyser unit (‘Unit’) which:
(a)Complies with Australian Standard AS3547;
(b)Has the capacity to photograph the person using the device; and
(c)Has the capacity to provide a digital printout of results.
6.Upon the mother having obtained and configured the Unit, the mother shall thereafter use the Unit three times in the 24 hours prior to the children coming into her care (one of which shall not be less than 30 minutes immediately prior to the children coming into her care) and not more than 30 minutes after the children return to the grandparent’s care.
7.The mother shall cause to be forwarded via email to the grandparents the result of each test conducted with the Unit within 30 minutes of such test having taken place.
8.All parties shall keep the other advised at all times of their residential address, email address, and contact telephone number, and shall advise the other parties within 48 hours of any change to either their residential address, email address, or telephone number.
9.The parties shall not criticise or denigrate the other parties, or the other parties’ family in the presence or within hearing of the children and shall use their best endeavours not to permit any third party to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of competing parenting applications of the first and second applicants, being the maternal grandparents, Ms Bostock (‘maternal grandmother’) and Mr Bostock (‘maternal grandfather’) respectively (collectively ‘grandparents’), and the first respondent mother Ms C Bostock (‘mother’).
These proceedings concern X, who is 6 years of age, and Y, who is 5 years of age (collectively ‘the children’).
The second respondent in these proceedings is the children’s father, Mr Pratt (‘father’). The father has not participated in these proceedings and currently resides in Queensland.
The children have been living with the grandparents since May 2022.
LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes, including orders for parental responsibility.
The objects of Part VII of the Family Law Act 1975 (Cth) (‘Act’) inform how the Court must exercise its discretion. Those objects are to ensure that the best interests of children are met, including by ensuring their safety and to give effect to the Convention on the Rights of the Child.[1]
[1] Family Law Act 1975 (Cth) s 60B (‘Act’).
Division 2 of Part VII of the Act deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[2] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[3]
[2] Act s 64C.
[3] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act.
If the child is an Aboriginal or Torres Strait Islander child, the Court must consider matters set out in s 60CC(3) of the Act, that is the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.
Section 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[4]
[4] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
EVIDENCE IN THE PROCEEDINGS
Documents relied upon
The grandparents sought sole parental responsibility for the children, for the children to live with them, and spend time with the mother as agreed between the parties in writing. At hearing, the grandparents relied on:
(a)Initiating Application filed 27 October 2022;
(b)Affidavit of the maternal grandmother filed 11 September 2024;
(c)Affidavit of the maternal grandfather filed 11 September 2024; and
(d)Outline of Case document filed 14 October 2024.
The mother opposed the orders sought by the grandparents, and instead moved the Court for orders for sole parental responsibility for the children, and ‘for the children to eventually live with her once a suitable dwelling has been secured by her’. At hearing, the mother relied on:
(a)Amended Response to Initiating Application filed 25 September 2024;
(b)Affidavit of the mother filed 25 June 2024;
(c)Affidavit of the mother filed 11 September 2024; and
(d)Outline of Case document filed 14 October 2024.
The Independent Children’s Lawyer’s (‘ICL’) case was that the grandparents have sole long-term decision-making authority for the children, that the children live with them, and spend time with the mother as agreed between the grandparents and mother in writing. The ICL relied on:
(a)Outline of Case document filed 16 October 2024; and
(b)Family Report dated 3 April 2024.
Exhibits
The exhibits were as follows:
(a)Exhibit 1 being various text messages between the grandparents and the mother, the messages as identified at pages 206 to 224 and 233 to 236 of the Joint Tender Bundle.
(b)Exhibit 2 being a letter from Godden Lawyers to the mother dated 24 June 2024, being at pages 259 to 260 of the Joint Tender Bundle.
(c)Exhibit 3 being NSW Police incident reports in respect of Mr D being at pages 145 to 159 of the Joint Tender Bundle.
(d)Exhibit 4 being E Centre records being at pages 37 to 38 of the Joint Tender Bundle.
(e)Exhibit 5 being the Family Report dated 3 April 2024 prepared by Ms F, released 9 April 2024.
Witnesses
The grandparents both gave evidence and were cross-examined by the mother and ICL.
The mother was self-represented and was cross-examined by the grandparents and ICL.
None of the parties nor the ICL sought to cross-examine the Family Report writer, Ms F.
RELEVANT FINDINGS
Procedural History
The proceedings commenced by the filing of an Initiating Application on 27 October 2022, in which the grandparents sought both interim and final parenting orders. The grandparents sought urgent interim orders for sole parental responsibility for the children, that the children live with the grandparents, and spend time with the mother as agreed between the parties in writing.
On 27 October 2022, orders were made in chambers listing the matter for interim hearing on 10 November 2022, for personal service to be effected on the mother and father, and for certain documents to be filed by the parties. On that day, the Court also requested information from the Department of Communities and Justice (‘DCJ’) and NSW Police.
On 2 November 2022, orders were made in chambers releasing the material produced by DCJ to the parties and legal representatives.
On 10 November 2022, orders were made listing the matter for interim hearing on 8 December 2022. Orders were also made by the Court in relation to the filing of certain documents, and hair follicle drug and carbohydrate deficient transferrin (‘CDT’) testing by the mother. The Court noted that the mother appeared in person, advised that she had an appointment with Legal Aid NSW on 11 November 2022, and had sought an adjournment to obtain legal advice. On that day, orders were also made by consent and pending interim hearing that the grandparents have sole parental responsibility for the children, that the children live with the grandparents, and spend time with the mother as agreed between the grandparents and the mother in writing.
On 6 December 2022, orders were made in chambers releasing the material produced by NSW Police to the parties and legal representatives.
On 8 December 2022, interim orders were made by consent for the grandparents to have sole parental responsibility for the children, for the children to live with the grandparents, and for the mother to undertake hair follicle drug testing and CDT testing in accordance with the previous orders of 10 November 2022. On that day, interim orders were also made by consent for the children to spend time with the mother supervised and during day-time only, as agreed between the grandparents and the mother in writing, and pending the mother’s provision of a negative hair follicle drug test to the grandparents and three breathalyser test results within 24 hours showing a 0.00 result on each occasion the mother spends with the children. The Court also ordered that a Child Impact Report be prepared, that the matter be listed for a mention in chambers on 10 February 2023, and for the matter to be listed for a second return on 17 May 2023. On that day, the Court noted that the mother informed the Court she was not eligible for Legal Aid and had not sought any further legal assistance.
On 10 February 2023, orders were made in chambers confirming that Child Impact Report interviews were set to take place on 28 April 2023 and 3 May 2023. The Court also noted that the mother had not yet complied with the directions in Orders dated 8 December 2022, and had not filed any Court documents apart from a Notice of Address for Service on 19 January 2023.
On 16 May 2023, orders were made in chambers releasing the Child Impact Report to the maternal grandmother and the mother.
On 17 May 2023, orders were made adjourning the matter to 14 June 2023 for mention. The Court noted that the mother had not complied with Order 6 of the Orders of 27 October 2022 pertaining to the filing of certain documents, nor Orders 6 to 15 of the Orders of 10 November 2022 pertaining to hair follicle drug testing and CDT testing. The Court also noted that the mother had raised that geographical and financial restraints may prevent her from undertaking hair follicle drug testing and CDT testing, and that the grandparents indicated they were prepared to fund a hair follicle test for the mother.
On 14 June 2023, orders were made adjourning the matter to 30 August 2023 for a procedural hearing, for the filing of certain documents, and for the ICL to be appointed.
On 10 August 2023, a Notice of Address for Service was filed by the ICL.
On 16 August 2023, the mother filed a Response to Initiating Application and Affidavit. In her Response, the mother sought interim and final parenting orders, including final orders for sole parental responsibility for the children, that the children live with her, and spend time with the grandparents as agreed between the parties.
On 30 August 2023, orders were made listing the matter in chambers on 27 October 2023, for the preparation of a Family Report, and for the parties to attend a mediation organised by Legal Aid.
On 24 November 2023, orders were made in chambers listing the matter for a compliance and readiness hearing on 24 April 2023.
On 9 April 2024, orders were made in chambers releasing the Family Report to the grandparents and their legal representatives, the mother, and the ICL.
On 24 April 2024, orders were made for the filing of trial material and the matter was listed for final hearing on 21, 22 and 23 October 2024.
On 16 September 2024, leave was granted to the mother to file an Amended Response, and to the parties to rely on documents filed up to that date, and orders were made for further filing of material.
On 25 September 2024, the mother filed an Amended Response to Initiating Application in which she sought final parenting orders for sole parental responsibility, and that the children live with her once a ‘suitable dwelling’ has been secured.
The final hearing occurred on 21 October 2024 and was contained within one day.
Chronology
The maternal grandmother was born in 1950 and is 74 years of age. She works as an educator.
The maternal grandfather was born in 1951 and is 73 years of age. He is retired.
The mother was born in 1979 and is 45 years of age.
The maternal grandmother says that in or around 2016, the mother was prescribed antidepressants and that, from around 2017, the mother struggled with alcohol consumption.
In or around July 2017, the father said to the maternal grandmother, in relation to the mother, ‘the next time she drinks like that her liver will give up’.
The maternal grandmother understands that the mother and father commenced cohabitation in or around 2018.
In 2018, X was born.
From 2019, the grandparents took the children to sports lessons every Saturday.
In the period of around 2019 to 2022, the maternal grandmother regularly observed the mother ‘significantly intoxicated’ when in the presence of the children.
In or around early 2019, the mother commenced residing in City H, Queensland, which is where the father resided.
The mother relocated to Sydney in early 2019 and resided with her aunt for a few weeks before moving to a unit in Town G with a six-month lease, and then shortly thereafter moved to a property in Suburb J then Suburb K.
In 2019, Y was born. She was born underweight and later diagnosed with several medical conditions.
In or around 2020, X told the maternal grandmother that the mother had slammed the bedroom door on his fingers.
From sometime in either early 2020 or 2021, the children stayed with the grandparents every weekend from Friday afternoon to Sunday afternoon, and during this time the mother did not generally stay with the applicants.
In early 2021, the mother was caught driving with X in ‘incorrect restraints’.
In or around July 2021, the maternal grandmother observed the mother carrying Y whilst intoxicated, during which the mother tripped over X and dropped Y on her head.
It has been difficult for the grandparents trying to involve the mother in decision-making pertaining to the children. For example, in or around 2022, the maternal grandmother attempted to communicate with the mother about changing the children’s doctor, and was called a ‘hypochondriac’ by the mother.
In mid-2022, the maternal grandmother was told by a close friend of the mother’s that the mother’s partner Mr D was a drug user.
In or around early 2022, the maternal grandmother observed that the mother had tied X’s bedroom doors together, which kept them locked.
The maternal grandmother says that in early 2022, the mother’s neighbours called police and that they had seen the mother hit X with a stick.
In or about mid-2022, the mother admitted herself into a rehabilitation program at E Centre due to alcohol-related problems. Thereafter, the children have been living with the grandparents.
The clinical notes from E Centre indicate that the mother had been drinking 1-2 litres every day, that her last drink was two days after admission, and that she had been drinking every day for the past three and a half years. In her oral evidence, the mother initially agreed that this was correct, but later when it was put to her that this meant she must have been drinking when she was pregnant with Y, she denied the correctness of the notes. She denied drinking while pregnant with Y. The maternal grandmother gave evidence that she observed the mother drinking while pregnant with Y.
After the children commenced living with the grandparents, the maternal grandmother contacted Y’s paediatrician, Dr L, who advised her that she had requested of the mother a blood test for Y in early 2022, but that one had not been done.
A month after admission, the mother withdrew from the rehabilitation program at E Centre. In her oral evidence she explained that this was because the program and environment was not assisting her, and that their approach was not therapeutic. After she left E Centre, the mother stayed with the grandparents for a little over a week, but did not care for the children during that period, that was left to the grandparents who continued to bath, feed, and care for the children during that period.
In mid-2022, the mother returned to the grandparents’ home in an intoxicated state, rambling, slurring her words, and unable to stand straight. The mother said to the maternal grandmother ‘You can have the kids, but you’re old and won’t be living for long’.
In mid-2022, the mother left the grandparents’ home with no explanation and stayed with her partner, Mr D. The mother returned to the grandparents’ home some two weeks later but did not contact them or the children during that period.
In or around August 2022, the maternal grandmother took Y to a specialist, and was informed that she would need to attend again for review in three months’ time. The maternal grandmother told the mother about a second opinion appointment she had arranged for Y, but that the mother did not attend that appointment.
In September 2022, the maternal grandmother sent a text message to the mother informing her that the children were calling out for her at bedtime. The mother did not respond until four days later.
In late 2022, the mother brought the children costumes for a special occasion. The maternal grandmother sent the children to daycare in their costumes and that, whilst the children were at daycare, the maternal grandfather received a text message from the mother that stated ‘What time do you usually pick up the kids on a Monday afternoon? I am taking them to a special event.’ The grandparents were fearful for the children and collected them early from daycare on that day. The maternal grandfather later received a text message from the mother stating ‘You can try all you want to keep my kids away from me, but you have kids’ [sic] idea what is going to happen this week. You ARE NOT a father, you are a disgrace’. Out of their fear of the mother taking the children and refusing to return them, the grandparents then commenced proceedings.
In or around November 2022, the maternal grandfather informed the mother of Y’s future medical tests.
In or around the end of 2022, the grandparents were contacted by M Centre and allocated a family support worker, who stills works with them and the children.
In or around December 2022, the grandparents commenced facilitating telephone calls between the mother and the children every second night.
In late 2022, Y had surgery. The operation was organised by the grandparents.
In or around 2023, X commenced the N Program provided by M Centre.
In or around early 2023, the mother moved to Town O.
In or around August 2023, X commenced weekly speech therapy.
In early 2024, police were called to the mother’s residence following an argument between her and Mr D. The mother described this event as a ‘tiff’ and denied that she was intoxicated on this occasion, despite the Police notes indicating that she was observed to be so.
In February 2024, during a telephone call between the mother and the children, the maternal grandfather heard the mother tell X that ‘I care about Nonna but Nonna doesn’t care about me.’ On that day, the maternal grandmother said that X asked her ‘Can I call you mummy?’ to which she responded, ‘I am your grandmother, you only have one mummy’.
In March 2024, the maternal grandfather sent a text message to the mother reminding her of Y’s medical tests to take place the following day. The mother responded via text message saying ‘tests for what? This is the first time I’ve heard about this’.
The grandparents received a negative hair follicle test from the mother in or around April or May 2024. The mother was ordered to undertake the test in late 2022.
In early 2024, the Police were again called to the mother’s residence following another ‘tiff’ between her and Mr D. Initially the mother conceded in cross-examination that she told police Mr D was an alcoholic, that he had been drinking heavily, and that she was fearful of him, but she then said that she must have lied to the Police about these things because they are not true.
In mid-2024, X commenced weekly art therapy sessions.
On 25 June 2024, the grandparents’ solicitor sent an email the mother with questions relating to her current circumstances, and her proposed future care arrangements for the children. The mother has never responded to this request for information, and in her oral evidence confirmed that she chose not to do so.
On 16 July 2024, the mother spent time with the children for three hours, with such time supervised by the maternal grandfather. At 9am on that day, the maternal grandfather received a call from the mother who said to him ‘I just used the breathalyser, and it came back at 0.01. It must be my mouth wash or something’. The mother brought her partner Mr D, while she was spending time with the children, and four times during the visit the mother walked away with Mr D for around 15 minutes.
On 17 July 2024, the mother spent time with X at the local shops, with such time supervised by the maternal grandfather. The mother was emotional when saying goodbye to X.
In or around August 2024, the mother sent the grandparents a text message that she was moving to Suburb P with Mr D.
In mid-2024, the grandparents received $25,764 in NDIS funding for Y.
On 4 September 2024, the solicitors for the grandparents followed up with the mother about their letter sent on 25 June 2024. No response was received.
The grandparents received a negative blood alcohol reading from the mother in or about September 2024.
In late 2024, the mother spent time with the children at Q Park in Suburb P, with such time supervised by the maternal grandfather. Mr D was also present. The children played with the mother and Mr D on the park equipment, and they brought and made the mother birthday cards.
Y currently attends upon weekly physiotherapy and speech therapy, and fortnightly occupational therapy.
X currently attends weekly sessions with a support worker at M Centre.
Tendered in the proceedings are police events relating to Mr D dating back to 2015. The Police events showed Mr D involved in anti-social and violent behaviour and being significantly intoxicated. The mother denied that Mr D is an alcoholic and says that he has changed since earlier this year. The mother continues to reside with Mr D.
While the children have been living with the grandparents, the mother has sent to one or the other of the grandparents many text messages which are unnecessarily sarcastic, rude, and inflammatory. For example:
•[Y]’s eyesight is fine. She is four years old. I don’t wear glasses [Ms Bostock]; again, your disease. Next will be the hearing aids.
•You are old and deplicit [sic] [Ms Bostock].
•… You’re a deadbeat, burnt out [educator] [laughing emoji]
•The more you infect my children, the further you are from honesty. You are a disease. A weed. […].
•I hoped [sic] you had a SHIT day
•When you are DEAD, your money and extravagant ways you try to show MY children fake love, will be gone. Can’t wait You are a toxic weed […]
•They are my children and I will speak to them as I wish; every day. Did you have 9+ months pregnancy and then delivered them alone except for the hospital staff. THEY ARE NOT YOUR CHILDREN. Do you want to spend your last years looking after my children? Tell [Ms Bostock] to shut her gob
•… You have no leg to stand on, not that you can stand on your own legs. I am their MOTHER. Hurry up and die; and [Ms Bostock] too. You better hope [Mr R] organises your funeral, because if I do, you’re going in a dumpster where you belong.
The mother explained in her oral evidence that such messages were sent by her when she was intoxicated and/or angry.
The mother denies that she has ongoing issues with alcohol. She says that while she continues to drink, her drinking is now significantly less than what it has been in the past. The mother does not consider that she needs any drug and alcohol counselling. She believes that she has the necessary tools to deal with her drinking.
The mother has been treated for anxiety and depression with medication between early 2016 and August 2023. She no longer takes any medication.
The mother was homeless for a period of time and/or living a transient lifestyle between mid‑2022 and mid-2023, which the mother described as ‘tertiary homelessness’. The mother did not spend any time with the children for a period of around eighteen months after her release from E Centre.
Despite these proceedings being on foot for over two years, and despite her application for the children to live with her, the mother has no plan in place as to how she would look after the children, particularly noting their special needs and vulnerabilities. The mother concedes that her present accommodation is not suitable for the children but has little idea as to when she would be able to move into suitable accommodation. While she is currently looking for employment, she is not presently employed.
Family Report
The Family Report dated 3 April 2024 was prepared by Ms F.
Ms F characterised the assessment of the children’s relationship with the mother as limited because they were not observed together and thus the assessment was reliant upon information provided by the grandparents and mother. Another limitation to the assessment identified by Ms F included the children had not been interviewed due to their ages and development at the time of the assessment. Moreover, Ms F noted that the father did not participate in the assessment and hence his views concerning the children were unknown at the time of assessment.
Ms F set out the care arrangements for the children at the time of assessment and she provided a very brief background of the grandparents and mother. No background was provided in respect of the father.
At the time of the assessment, X was in kindergarten and attended S School whilst Y attended T Day Care four days per week.
X refused to be interviewed when asked several times by Ms F and the grandparents. An interview with Y did not proceed after Ms F attempted to interview her as she was met with body language from Y that indicated she was not comfortable leaving her grandparents.
Ms F noted that at the time of assessment, X had been attending weekly speech therapy since August 2023. The maternal grandmother reported that Y was diagnosed with medical conditions but was unsure as to who diagnosed her or when. The mother told Ms F that Y did not have a formal diagnosis and that genetic abnormalities were ruled out in 2019 by Dr L. Ms F also noted that Y attends physiotherapy and speech therapy weekly, and occupational therapy fortnightly.
Issues in Dispute and Issues Identified During Assessment
Ms F identified the issues in dispute as the following:
(a)Whether the grandparents or the mother should have sole parental responsibility for the children;
(b)Competing proposals about the children’s future living arrangements; and
(c)The children’s views and the weight to be placed on those views.
Ms F also identified the following as issues during her assessment:
(a)Whether the children are at risk of neglect, physical or emotional abuse, substance misuse, or poor parental health when in the mother’s care;
(b)Whether the children are at risk of verbal and psychological abuse, and poor parental mental health when in the grandparents’ care; and
(c)The grandparent’s and the mother’s willingness to co-parent and communicate effectively about the children.
Adults and their Relationships
Ms F reported that the grandparents presented calmly and maintained a consistent narrative throughout the interview. The grandparents stated that they did not trust the mother as she had previously not been a responsible mother, and that she needed to go to rehab for them to trust her. The grandparents told Ms F of their fear that the mother would drink to excess and compromise the children’s needs without professional support.
Ms F described the mother as emotional but generally calm and able to maintain eye contact throughout the interview. The mother told Ms F that she trusted the maternal grandfather but not the maternal grandmother, who she alleged ‘lies, manipulates, makes up stories… she doesn’t know me’. Ms F noted that the mother also claimed she has had a fractured relationship with the maternal grandmother since her childhood as she was allegedly treated differently from her brother.
Identification and Evaluation of Risk
Ms F was of the view that, should the children return to the mother’s care, they may experience poor health outcomes if exposed to neglect.
Ms F noted that if the children were physically and emotionally abused, and then returned to the mother’s care where they are potentially further exposed to this abuse, they may develop sustained fear and anxiety. Ms F suggested that to support the mother’s care of the children, it may be beneficial for her to attend parenting programs including the Circle of Security Program.
The DCJ information referred to by Ms F indicated that in mid-2022, the children were screened in for neglect, physical abuse, excessive discipline, and parental risk factors of substance abuse.
Ms F noted in her report that the grandparents and mother agreed that the mother drank to excess when the children were in her primary care.
The mother told Ms F that she remained a social drinker but no longer drank to excess, had addressed her alcohol dependence, and at the time of the assessment, consumed alcohol a couple of times a week, adding that ‘I need to wake up for work, no way!’
Ms F stated that the mother’s substance abuse likely makes the mother less tolerant and more reactive towards the children, less emotionally, and physically available, and unable to meet their basic needs. Ms F suggests that should the Court find the mother’s rehabilitation is insufficient, the mother may benefit from attending further drug and alcohol counselling.
The maternal grandmother informed Ms F that the mother suffered from poor mental health and had done so since she was a teenager. She gave examples to Ms F, including when the mother burned her hands at the age of 14, prompting the maternal grandmother to take the mother to a psychologist. The maternal grandmother also stated to Ms F that the mother was diagnosed with an eating disorder at age 14, and in 2015 and 2016 took antidepressants as she suffered from depression. Ms F noted that the maternal grandmother also stated that the mother had told her brother in 2024 that she was planning to self-harm.
In her report, Ms F noted that the mother denied having any mental health diagnosis but had self-diagnosed herself with post-traumatic stress disorder. The mother did acknowledge to Ms F that she took prescription medications from 2016 to 2023 for an eating disorder, which the mother stated was ‘well and truly gone, saw a dietician, that’s history’.
Ms F noted that it was untested as to how the mother’s alleged mental health and previous substance use may be triggered.
The mother told Ms F that she manages stress by playing an instrument, walking, reading, watching films, or connecting with friends. She also told Ms F that should the children return to her care, and she experiences stress, she can ask her partner and friends for help.
Parental Understandings of the Children’s Needs
In her report, Ms F described X as curious and boisterous with the grandparents and his sister. She also described him as playful and energetic. Ms F described Y as presenting as playful with her grandparents and brother, and was confident and energetic. Ms F noted that upon greeting the children, Y came running to her, introduced herself and appeared excited whilst X was more reserved and stayed near the maternal grandfather.
After observing the children interacting with the grandparents, Ms F concluded that a trust relationship appeared to be present between the children and the grandparents.
Ms F noted that should the children spend time with the mother, this would need to be incremental so they can adapt. She stated any disruptions to their primary care relationships with their grandparents could be traumatic and lead to them feeling dislocated and distressed.
In her report, Ms F stated there were no risks for the children to remain in the grandparent’s care, but that there are some risks in the mother’s care that could be historic or still remain. She noted many grey areas in the matter impacting her ability to make long-term recommendations, including that the mother had not completed hair-follicle testing at the time of the assessment, that the children had not spent time with her for a period of two years, and the fact her mental health, substance use, and parenting behaviours were untested.
For the children to live with the mother, Ms F stated that the mother would need to demonstrate sustained quality mental health, as her substance abusing, fragile mental health, and reported problematic parenting practices remained risk factors.
In her report, Ms F also considered the age of the grandparents, who are both in their 70’s, whilst the children are still quite young. To that end, Ms F stated that increasing time with the mother and returning the children to her care in the long term may be in the children’s best interests to ensure their needs continue to be met as they grow older.
DETERMINATION
The best interests’ considerations below are to be read and understood together with the Court’s findings made earlier.
Best Interest Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The mother does not have suitable accommodation for the children. She is not in paid employment. The mother has had a transient lifestyle for years. She has had significant problems with alcohol use. She lives with a man who has a history of issues related to alcohol abuse.
The children are young and vulnerable.
The mother poses a significant risk to the children’s safety.
Section 60CC(2)(b): Any views expressed by the child
The children have close and loving relationships with the grandparents.
The children know their mother and they are happy when spending time with her.
Section 60CC(2)(c): Developmental, psychological, emotional, and cultural needs of the child
The children have special needs and are both young and vulnerable.
The mother has not demonstrated an adequate capacity to meet their needs, nor any insight into what those needs are. The best that she was able to offer was in her oral evidence that, if the children lived with her, they would remain in their current schools and attending upon their current medical providers.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Since the children have come to live with the grandparents, but particularly after orders were made in December 2022 for them to have sole parental responsibility, the grandparents have been responsible for making all of the decisions relating to the children. They have ensured that the children receive appropriate therapies and support, and that they receive appropriate medical attention.
The mother has not engaged with the children’s long-term care at all during this period of time.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
The children enjoy spending time with the mother and if safe, they would benefit from continuing a relationship with her. The mother was absent from the children’s lives for a prolonged period of time, without any satisfactory explanation.
The grandparents have been very careful in ensuring that the children do have a relationship with the mother, and they have facilitated time between them upon the mother’s return to Sydney earlier this year.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
There is no evidence about the children’s relationship with the father.
CONCLUSION
Living and Spend Time with Arrangements for the Children
It is in the children’s best interest that they live with the grandparents.
The risks to the children which have been identified while in the mother’s care, can and are ameliorated by the presence of the maternal grandfather during the children’s time with the mother, as has been occurring since the mother returned to Sydney earlier this year.
The grandparents will, going forward, facilitate a relationship between the children and the mother, as they have to date, despite the difficulties in their relationship with the mother. They will ensure that the children are safe in the mother’s care.
As such, it is in the children’s best interest that they spend time with the mother as agreed between the grandparents and the mother in writing, subject to alcohol breathalyser testing, with the hope that the mother will improve her circumstances, build trust with the grandparents, prove herself to be free of any addictions, and obtain necessary therapeutic interventions such that the children will eventually be safe in her care without the presence of the grandparents.
Parental Responsibility
The conflict between the grandparents and the mother is ongoing and there are significant trust issues. The grandparents have done their best to care for the mother’s two vulnerable young children, yet the mother fails to appreciate this or to acknowledge the lengths they have gone to, when ensuring that the children are safe and cared for.
In all of the circumstances, it is in the children’s best interest that the grandparents have joint decision-making in respect of long-term issues for the children. This will ensure consistency and ensure that the children’s needs are met.
The balance of the Orders the Court makes are self-explanatory noting the issues raised in these proceedings.
The Court so orders.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 28 October 2024
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