Botterill & Aarden
[2024] FedCFamC1F 369
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Botterill & Aarden [2024] FedCFamC1F 369
File number: MLC 8882 of 2019 Judgment of: MCNAB J Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where the parents are not cooperative – Where the mother has mental health issues -Where the mother is adamant the child will not have overnight time with the father – Where the maternal grandparents submit an application to intervene and are granted permission to intervene – Where the maternal grandparents are granted sole parental responsibility – Where the matter is re-opened for new evidence which brings to light family violence – Where there is a high level of conflict between the father, mother and maternal grandparents – Where the child has lived with the grandparents and they have been her primary carer – Where it is in the best interests of the child for the grandparents to have sole parental responsibility – Where supervised time with the mother is in the best interests of the child – Overnight time with the father. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4(1), 4AB(2), 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Botterill & Aarden [2020] FCCA 3242
Chapman & Palmer (1978) FLC 90-510
Flanagan and Handcock [2000] FLC 93-074
Marriage of B & B (1993) FLC 92-357
Division: Division 1 First Instance Number of paragraphs: 129 Date of hearing: 13–16 June, 23 June 2023 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: RM Commercial & Family Lawyers Counsel for the First Respondent: Mr Bartfeld AM KC with Ms Byrnes Solicitor for the First Respondent: Hannigans Counsel for the Second and Third Respondents: Mr O’Grady Solicitor for the Second and Third Respondents: Landers & Rogers Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 8882 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOTTERILL
Applicant
AND: MS B AARDEN
First Respondent
MS C AARDEN
Second Respondent
MR HAMPSON
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
29 MAY 2024
THE COURT ORDERS THAT:
1.All previous orders made in the proceeding be discharged.
Live With
2.The maternal grandmother Ms C Aarden and the maternal step-grandfather Mr Hampson (“the grandparents”) have sole parental responsibility for the child X born 2019 (“the child”) save that prior to making any non-urgent major decisions concerning the child the grandparents will give the applicant father (“the father”) 14 days written notice of the proposed major decision and then allow the father 7 days to respond in writing, save that ultimately the major decision is for the maternal grandparents to make.
3.The child live with the grandparents.
4.The respondent mother (“the mother”) is not to live with the grandparents.
Spend Time
Mother
5.The child spend time and communicate with the mother as agreed between the grandparents and the mother during times where the child is living with grandparents subject to:
Professional Supervision
6.Such time being supervised by a professional agency such as the Family Contact Service with the grandparents to meet the costs of such professional supervision and supervision to continue until the mother provides to the grandparents and the father:
(a)a report from her treating psychiatrist that the mother has regularly attended and engaged in psychotherapy over a period of 12 months;
(b)a report from her drug counsellor that the mother has attended drug counselling regularly over a period of 12 months; and
(c)the mother produce in accordance with these orders three clear hair follicle drug tests over a period of 12 months.
Supervision By Grandparents
7.Upon the mother producing evidence to the grandparents and father pursuant to Order 6 herein, the mother’s time with the child be supervised by the grandparents with such time to only occur when the maternal step-grandfather is present and until the mother provides to the grandparents and father:
(a)three clear hair follicle drug tests conducted in a 12-month period from the time supervision by the grandparents begins in accordance with these orders.
Unsupervised Time
8.Upon the mother producing evidence to the grandparents and father pursuant to Order 7 herein, supervised time between the child and the mother will be suspended and the mother shall spend unsupervised time with the child as agreed with the grandparents SAVE THAT if the mother produces a hair follicle test that is positive for illicit substances or fails to undertake a hair follicle test in accordance with these orders, the requirement for professionally supervised time in the terms of Order 6 will be reinstated.
Father
9.The child spend time with the father as follows:
(a)From June 2024:
(i)each alternate weekend from 5.00pm Friday until 5.00pm on the Sunday commencing Friday 7 June 2024;
(ii)each Wednesday from 9.30am until 5.30pm.
(b)From September 2024:
(i)Each alternate weekend from 5.00 pm Friday to 4:00pm Monday commencing 13 September 2024;
(ii)Each Wednesday from 9.30am to 5.30pm.
(c)From the commencement of the school year in 2025, during school term each alternate Thursday from the conclusion of school (or if a non-school day 3pm) until the commencement of school Monday and if the Monday is a non-school day for students until the commencement of school on the Tuesday with alternate week time to commence in 2025 on the second Thursday after school commences for the year;
(d)From the commencement of the school year in 2025, during school term each alternate Thursday from the conclusion of school (or 3pm if a non-school day) until the commencement of school the next day and if not a school day 4pm, with such time to take place on the Thursday directly after the weekend the child has spent time with the father;
(e)Upon the child commencing school, during school term holidays and Christmas school holidays on a week about basis as agreed between the grandparents and father and failing agreement, the child spend time with the father from conclusion of the last day of term/year with changeover occurring seven nights later at 5.00pm and from the Christmas school holidays in 2027/2028 the child spend half the Christmas school holidays with the father as agreed in writing between the father and the grandparents and failing agreement the first half in the 2027/2028 and each alternate year thereafter and the second half in 2028/2029 and each alternate year thereafter and when the child is spending the second half with the father the father will return the child to the grandparents’ care two days before students are to attend school for the new school year;
(f)In 2024 and each alternate year thereafter from 2.00pm Christmas Eve until 2.00pm Christmas Day;
(g)In 2025 and each alternate year thereafter from 2.00pm Christmas Day until 5.00pm Boxing Day;
(h)If not already in the care of the father, on Father's Day from 5.00pm the night prior until 5.00pm Father's Day;
(i)On the child's birthday:
(i)for up to three hours if the child's birthday falls on a weekday when not in the father's care as agreed between the father and grandparents and otherwise failing agreement from 3.00 pm (or the conclusion of school) until 6.00 pm; and
(ii)for up to four hours if the child's birthday falls on a weekend when not in the father's care as agreed between the father and grandparents and failing agreement from 10.00am until 2.00pm.
(j)If the child is not already in the father’s care on the father’s birthday then for 3 hours as agreed between the father and the grandparents;
(k)Video calls once a week at times as agreed between by the father and the grandparents with the father to initiate the call on days and failing agreement each Tuesday between 6.00pm and 6.30pm with the child to be afforded privacy when communicating with her father;
(l)At other times as otherwise agreed between the father and grandparents in writing;
(m)On the child commencing school holiday time with the father in 2025 the father's fortnightly time during school term recommence after any holiday period in the same fortnightly sequence that had been taking place prior to the particular school holiday period as if the school holiday had not occurred;
(n)The father have parental responsibility for making day to day decisions that are not decisions concerning "major long-term issues" as defined by section 4 of the Family Law Act1975 (Cth), concerning the child's care welfare and development when the child is spending time with the father in accordance with these orders.
10.The father's time is suspended as follows:
(a)On Mother's Day for 3 hours subject to professional supervision being available;
(b)On the mother's birthday for 3 hours subject to professional supervision being available;
(c)From 2.00 pm Christmas Day 2024 to 5.00 pm Boxing Day and each alternate year thereafter;
(d)From 2.00 pm Christmas Eve 2025 until 2.00 pm Christmas Day and each alternate year thereafter;
(e)If the child's birthday falls on a weekend or school holidays when in the father's care the child spend up to 4 hours with the grandparents as agreed between the father and the grandparents.
Communication and Changeovers
11.Other than when changeover takes place at the child's school or as otherwise agreed in writing between the father and grandparents, changeover occur at the father's residence at the commencement of time with the maternal grandmother and/or the maternal step‑grandfather to deliver the child and the father or his nominee to return the child to the grandparents' home at the conclusion of time.
12.The mother is restrained by injunction from being present at spend time changeover including being at the child's kinder/school when the father is taking the child to kinder/school or collecting the child from kinder/school.
13.The father, grandparents and mother communicate via a parenting App such as 2Houses with such communication to be child focused.
14.The father and grandparents may enrol the child in extracurricular activities that take place when in their care, it being deemed that such extracurricular activities are not major decisions.
15.The father is not under an obligation to take the child to extracurricular activities arranged by the grandparents that fall within the child's time with the father.
16.The grandparents are not under an obligation to take the child to extracurricular activities arranged by the father that fall when the child is in their care.
17.The grandparents shall by no later than 1 June 2024 advise the father in writing of the school they are considering enrolling the child to in 2025.
18.The father be at liberty to attend the child’s first day of school and otherwise engage in school activities that other parents with a child at the school would normally be involved in.
Medical
19.The father and grandparents shall advise the other immediately in the event X suffers any serious illness or injury.
20.The grandparents shall advise the father of the name/s and professional contact details of any medical professional, allied health professional, mental health professional or counsellor ("medical professionals") the child consults or attends upon and the maternal grandmother shall authorize the said professionals to disclose to the father any information the father may seek concerning the child's treatment or condition.
21.The father and the grandparents make available to the other party any medication prescribed for the child.
Education
22.The grandparents shall authorise the principal of the child’s school(s) to provide to the father and mother, at their expense if any, copies of all school reports, school newsletters, photograph order forms and any other documents or notices normally provided to parents by the school/s including any password required to access the school portal.
23.The father, grandparents and mother are permitted to attend all parent/teacher interviews, sports carnivals and any other school activities which parents/caregivers normally attend.
24.Each party be at liberty to provide a copy of these orders and Reasons for Judgment to any school or medical professionals attended upon by the child.
The Mother’s Mental Health
25.The mother shall forthwith seek a referral to a psychiatrist to undertake psychotherapy in an effort to address the mental health issues raised by Dr H and Dr J in their reports.
26.The mother shall provide to the psychiatrist, prior to the first consultation with the psychiatrist, copies of the two Family Reports prepared by Dr H, the two psychiatric reports prepared by Dr J regarding the mother, the DFFH section 91B Response dated late 2021 and a copy of these orders and Reasons for Judgment.
27.The mother shall forthwith do all things necessary to undertake drug counselling and attend upon the drug counsellor until the drug counsellor advises the mother drug counselling is no longer required.
Restraints
28.The grandparents, mother and father are and hereby restrained by themselves, their servants or agents from denigrating the other party and/or allowing their partners or extended family members to denigrate the other party in the presence of or hearing of the child or allowing any third person to engage in such a conduct in the presence of or hearing of the child.
29.The mother is restrained from ingesting, consuming or using or being otherwise under the influence of alcohol or any illicit drug or substance when spending time with the child.
30.Within 14 days of a request from the father or the grandparents, the mother shall do all acts and things to make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair illicit drug testing purposes save that the grandparents or father may request no more than three hair follicle tests in a 12-month period. Collection is to be conducted by a qualified and certified collector. Chain-of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair illicit drug and alcohol testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The mother is required to maintain their head hair at a length of not less than four centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(b)The mother shall provide AWDTS with a copy of these Orders and the father be at liberty to do so.
(c)The mother is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the party at the earliest available appointment within seven (7) days of receiving written notice to undertake hair collection for hair illicit drug and alcohol testing purposes from the father.
(d)The mother to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of all testings to the father and the maternal grandparents;
(e)The hair drug test may screen for alcohol and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
(f)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS' selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
31.The mother is to provide the drug screen results to the father and grandparents within 48 hours of receipt of same.
32.The mother is to meet the cost of all hair follicle testing.
Travel
33.Subject to Orders 34 and 35 the father and maternal grandparents after the child’s 8th birthday may travel with the child internationally during their time with the child with such international travel to take place during the school holiday time with them.
34.If the father or maternal grandparents propose to travel internationally with the child in accordance with Order 33 they will give the other party 30 days written notice of their intention to do so with such notice to include the name of the country or countries the child shall be travelling to.
35.14 days prior to the child’s departure to travel internationally the party proposing the travel shall provide to the other party with the following information with supporting documentary proof:
(a)A travel itinerary;
(b)Proof or return travel tickets for the child; and
(c)Proof of travel insurance for the child.
36.That pursuant to section 11(1)(b)(i) and (ii) of the Australian Passports Act 2005 (Cth). the child be issued with an Australian Passport and the child be allowed to travel internationally in accordance with these orders.
37.On an Australian Passport being issued to the child in accordance with these orders, the grandparents shall keep the child’s Australian Passport in their possession for safe keeping and shall provide the child’s Australian Passport to the father when requested by him to allow the child to travel internationally with him in accordance with these orders including providing the Australian Passport to the father for the granting of a travel visa for the child and on the child returning to Australia the father will return within 7 days the child’s Australian Passport to the father for safe keeping.
38.If the child is to be treated by a mental health professional, the mental health professional before the child’s first appointment shall be provided with, by the father or grandparents, the Family Report, updated Family Report a copy of these orders and Reasons for Judgment.
39.The appointment of the Independent Children’s Lawyer be discharged.
40.All extent applications be dismissed.
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 the pseudonym Botterill & Aarden has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION
This matter concerns the parenting arrangements to the child X born 2019 (“the child”) between the applicant father, Mr Botterill, aged 34 years (“the father”), the first respondent mother, Ms B Aarden, aged 36 years (“the mother”), the second respondent maternal grandmother, Ms C Aarden, aged 63 years (“the grandmother”) and the third respondent step-grandfather, Mr Hampson, aged 57 years (“the grandfather”) (collectively “the grandparents”).
This proceeding can be categorised into two distinct segments, what occurred at/prior to the final hearing and the events thereafter, with the introduction of significant evidence and subsequent orders.
MATERIALS RELIED UPON
The father relied upon:
(1)Affidavit of Dr J filed 4 June 2021.
(2)Affidavit of Dr H dated 25 June 2021 with Family Report dated 21 June 2021.
(3)Affidavit of Dr H dated 3 May 2023 with Updated Family Report dated 29 April 2022.
(4)Amended Application for Final Orders filed 1 May 2023.
(5)Father’s trial affidavit filed 1 May 2023 and affidavit in response filed 9 June 2023.
(6)Outline of Case (Final Hearing) filed 29 May 2023.
(7)Response to Application in a Proceeding filed 6 February 2024.
(8)Father’s affidavit filed 6 February 2024.
(9)Outline of Case (Interim Hearing) filed 6 February 2024.
(10)Submissions and Proposed Final Orders emailed to Chambers 15 March 2024.
(11)Father’s affidavit filed 10 April 2024.
(12)Application in a Proceeding filed 10 April 2024.
(13)Outline of Case filed 16 April 2024.
The mother relied upon:
(1)Amended Response filed 12 July 2022.
(2)Affidavit of Ms D, Clinical Psychologist, filed 12 May 2023.
(3)Affidavit of Mr Hampson filed 22 May 2023.
(4)Affidavit of Ms C Aarden filed 22 May 2023.
(5)Affidavit of Dr J filed 30 May 2023.
(6)Trial affidavit filed 31 May 2023 and re-filed 6 June 2023.
(7)Outline of Case filed 6 June 2023.
(8)Mother’s Proposed Final Orders emailed to Chambers 15 March 2024.
The maternal grandparents relied upon:
(1)Application in a Proceeding filed on 16 June 2023 (leave to intervene).
(2)Affidavit of grandparents filed 16 June 2023.
(3)Affidavit of Ms C Aarden filed 22 June 2023.
(4)Affidavit of Mr Hampson filed 22 June 2023.
(5)Affidavit of Mr Hampson filed 22 June 2023.
(6)Affidavit Ms C Aarden filed 22 June 2023.
(7)Affidavit in reply Ms C Aarden filed 30 January 2024.
(8)Affidavit Mr Hampson filed 30 January 2024.
(9)Affidavit Ms C Aarden filed 7 February 2024.
(10)Outline of Case filed 28 February 2024 and Minute of Proposed Final Orders Annexure A.
(11)Final Submissions and Minute of Proposed Final Orders emailed to Chambers 15 March 2024.
(12)Response to Application in a Proceeding filed 17 April 2024.
The Independent Children’s Lawyer (“ICL”) relied upon:
(1)Section 67z Report dated 21 August 2019.
(2)Section 91B Response dated 9 February 2021.
(3)Affidavit of Dr J assessment of both parents filed 4 June 2021.
(4)Affidavit of Dr H filed 25 June 2021 with Family Report dated 21 June 2021.
(5)Affidavit of Dr H filed 3 May 2023 with Updated Family Report dated 29 April 2022.
(6)Affidavit of Dr J assessment of both parents filed 30 May 2023
(7)Victoria Police subpoenaed documents filed 16 February 2024.
(8)Submissions and Proposed Final Parent Orders emailed to Chambers 15 March 2024.
(9)Outline of Case filed 16 April 2024.
BACKGROUND AND HISTORY OF THE PROCEEDINGS
The mother deposes of growing up in loving relationships with her parents and subsequently with her stepfather, Mr Hampson, who assumed that role when she was 8 years old. The mother did well at school and graduated after achieving a high score in her final exams and was accepted into tertiary studies. She commenced study in 2007 and subsequently, after a semester, deferred her studies and entered the workforce for several years, working in a business from 2007 to late 2009. The father worked at the same business although they were not in a relationship at that time.
The mother enrolled in further tertiary study in 2010 and, according to her evidence, did well in those studies. She met up with the father again in 2013 at which point she says he introduced her to drugs. He denies that and there is no allegation made in the proceedings that the father has ever had a problem with drugs, in that his capacity to parent is not in any way affected by illicit drug use either in the past or present. The mother's use of drugs became problematic in about 2016 after the demise of a relationship (with a person other than the father) and upheavals in her family because of the closure of a family business where she had worked.
The parties resumed contact in late 2017 and began a romantic relationship in March 2018, which the mother says ceased in May 2018.[1] The father gives evidence that the relationship ceased in about November 2018 when the mother left his home. This is in the context of the mother having been arrested in late 2018 for a drug-related offence.
[1]Mother’s trial affidavit filed 6 June 2023 at [71] – [75].
The child of the relationship, X Aarden, now X Botterill-Aarden by Interim Orders of 17 April 2024, is currently aged 5 years.
The matter commenced by way of an Initiating Application on 8 August 2019 filed by the father seeking a declaration of parentage. A parentage test established the father’s paternity in late 2019 and the father states he wrote to the mother seeking time with the child “as soon as was practicable” but that it was not until 2020, when the child was 10 months old, that he had the opportunity to meet her.[2]
[2]Father’s trial affidavit filed 1 May 2023 at [42] - [44].
The father subsequently filed an Amended Initiating Application on 13 November 2019 seeking graduated time with the child to a 9/5 spend time arrangement by the time she commenced school. He made further applications for shared parental responsibility before eventually seeking orders for sole parental responsibility with the mother to spend supervised time with the child. As part of his application for sole parental responsibility he cited issues with the mother’s mental health, illicit drug use and non-compliance with Court-ordered spend time arrangements.
The mother filed a Response on 6 February 2020 seeking sole parental responsibility for the child and spend time arrangements with the father. The mother filed a Notice of Risk on the same date alleging family violence by the father of a psychological and emotional nature via text and email during their relationship.
Orders were made by consent on 10 February 2020 for the father to spend time with the child once per week for up to an hour commencing on 18 February 2020 at E Playgroup, with such further and other times as agreed between the parties in writing. The mother did not comply with those orders.
On 19 November 2020, after an Interim Defended Hearing, Judge Harland made orders that the mother comply with previous orders made 11 June 2020 in relation to hair follicle testing and for the mother to attend a supervised drug screen within 24 hours of the orders being made (Orders 12 and 13).
Judge Harland stated she doubted the mother would comply with “even more modest” orders in relation to spend time arrangements.[3]
[3]Botterill & Aarden [2020] FCCA 3242 at [10].
On 11 February 2021 a Registrar (as she was then) made orders by consent for the mother to undergo a Mental Health Assessment to determine if she required treatment and to engage in such treatment as recommended by a medical health professional. The mother and father were subsequently assessed by Dr J, psychiatrist, and he produced a report dated 21 June 2021.
On 17 March 2021 a Senior Judicial Registrar ordered spend time arrangements with the father to increase incrementally to twice weekly in two-hour blocks.
On 6 July 2021, following an Interim Defended Hearing, the Senior Judicial Registrar made orders for the father to have overnight time with the child by February 2022. The mother was again ordered to undergo hair follicle testing for drugs and alcohol and be subject to random supervised urinalysis by the Independent Children’s Lawyer (“ICL”) for 12 months with any positive test for illicit drugs to result in the mother’s time with the child becoming supervised.
Interim orders made on 19 July 2022 by McNab J provided for the father to spend time with the child on each Thursday, Saturday and Sunday for four hours, increasing incrementally to eight-hour blocks by the end of August 2022 and progressing to alternate weekends from September 2022, with overnight time to commence on those weekends from the end of October 2022. Spend time orders were amended on 29 November 2022 for time with the father to revert to day-time until February 2023 when overnight time would commence. Again, the mother substantially failed to comply with those orders and would not allow the father to spend overnight time with the child.
Orders were made by McNab J on 2 March 2023 for the parties to attend Dr J for the purpose of updated individual psychiatric assessments of the parties.
A final hearing in this proceeding ran from 13-16 June 2023 and then 23 June 2023. Following erratic behaviour by the mother in Court during the trial, as well as the mother’s admissions to drug use not referred to in her trial affidavit, on 14 June 2023 the Court ordered that the mother attend to undertake a supervised urinalysis test for illicit drugs. Drug test results produced to the Court were positive for traces of two illegal substances, with the test suggesting that the mother tried to distort results by drinking large quantities of water. This was in the face of strenuous denials by the mother that she had been taking illicit drugs recently and her significant history of drug use.
As a result of evidence heard regarding the mother’s health and her drug use which bore on her capacity to parent, on 16 June 2023 an application was made to join the maternal grandparents as parties to these proceedings and to make an application for parental responsibility. An affidavit in support was filed on the same day by the grandfather.
The Court made orders on 16 June 2023 granting leave for that joinder and the Court adjourned for seven days. Further evidence was received on 22 June 2023 from the grandparents, with each of the grandparents filing an affidavit in support of their application.
The Court made Interim Orders on 26 June 2023 which provided for the child to live with the grandparents and for the grandparents to assume parental responsibility, consulting with the father in advance before making any long-term decisions regarding the child. The father was to spend time with the child pursuant to the orders which provided for overnight time. Spend time arrangements with the mother were to be as agreed between the grandparents and the mother, with such time to be strictly supervised by either or both grandparents with the father.
At the conclusion of the trial, it was agreed between the parties that the Court could give reasons for the Interim Orders when Final Orders were made and when reasons for judgment were delivered.
However, subsequent to the trial and shortly prior to the delivery of the final judgment, the Court received an Application in a Proceeding filed on 30 January 2024 by the grandparents. That application was supported by an affidavit from each of the grandparents. The father filed a Response with an accompanying affidavit on 6 February 2024. The grandparents’ affidavits raised issues of risk in relation to the father arising from his alleged hostility towards them in the course of the operation of the Interim Orders made on 26 June 2023.
The grandparents sought to have the father’s time reduced and specifically to cease overnight time and they sought leave to re-open the hearing.
The application was heard on 8 February 2024 and the Court reserved its decision. On 15 February 2024, the Court made orders granting leave for the parties to re-open the proceeding and the matter was listed for hearing on 29 February 2024 (part-heard). Leave was granted for the purposes of receiving the evidence of what had transpired since the Interim Orders were made and to consider the question as to whether it was necessary for further evidence to be obtained from a Court Child Expert in relation to the best interests of the child. Leave was also granted to the parties to cross-examine on the evidence in support and opposition to reopening the hearing generally.
As a result of the matter being re-opened on the application of the grandparents, evidence was presented to the Court that disclosed:
(a)the mother had continued to use illicit drugs and the grandmother accepted in her evidence that the mother is addicted to an illicit substance and that she is most unlikely to be able to present a clear drug screen in the near future without there being a significant intervention; and
(b)the mother had assaulted the grandmother on two occasions in early 2024 with the assaults being disclosed in police records subpoenaed by the ICL.
Written submissions in support of final orders in light of the additional evidence were emailed to Chambers by the father on 8 March 2024 and updated on 15 March 2024, by the mother on 15 March 2024, by the grandparents on 15 March 2024 and by the ICL on 15 March 2024. Proposed Final Orders were emailed to Chambers by the father on 8 March 2024 and updated on 15 March 2024, by the mother on 15 March 2024, by the grandparents on 28 February 2024 and updated on 15 March 2024 and by the ICL on 13 March 2024.
The father sought that he and the grandparents have equal shared parental responsibility and that the child live with the grandparents. He sought that time with the mother be as agreed between the grandparents and be strictly supervised by one or both of them. He sought to spend time with the child graduating to every alternate week from the conclusion of school on Wednesday until the commencement of school the following Monday and for half of the school term holidays.
The mother sought orders that she have sole parental responsibility for the child and that the child live with her and spend time with the father as agreed between the mother and the father in writing. The mother’s position has now hardened with her seeking for the father to spend no time with the child.
The grandparents submitted orders that the child live with them and that they have sole parental responsibility. The orders proposed by them provided time for the mother and father with various conditions imposed on each, including supervision for the mother’s time unless she provides medical proof of her abstaining from illicit drugs.
The ICL sought orders that the grandmother have sole parental responsibility and the mother’s time with the child be supervised, with similar conditions to those proposed by the grandparents. The ICL stated it is in the child’s best interest for there to be substantial and significant time with the father[4] and submitted that the father should eventually have five nights a fortnight and half of school holidays.
[4]ICL Submissions dated 15 March 2024 at [1].
Following the hearing on 29 February 2024 and after written submissions had been filed, the father filed an urgent Application in a Proceeding on 10 April 2024. This was due to the mother’s solicitors informing the father that further incidents had occurred between the mother and the grandparents. He sought until further orders that he have sole parental responsibility and that the child live with him.
The father’s Application in a Proceeding filed 10 April 2024 was heard and determined on 17 April 2024. On that day the Court made Interim Orders for the child to spend professionally supervised time with the mother at times and places nominated by a professional supervision service and for an increase in the father’s time. Further orders were made for the child’s name to be changed to X Botterill-Aarden.
There has been a relevant change in circumstances as between when the matter was dealt with in June 2023 and April 2024 whereby the mother’s mental health and drug issues have worsened and it is now to the point that the grandparents have obtained an Intervention Order which prevents the mother from approaching within 5 m of each of them and the child and 200 m of the house where they reside. As such, the mother no longer resides at the same house as the grandparents.
The father withdrew his application for orders that there be a change of residence and that obviated the need to re-open the trial and obtain a further Family Report to determine that issue.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one parent and spending substantial and significant time with the other parent (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The Benefit of the Child having a Meaningful Relationship with Both Parents and the Grandparents
The evidence in this case supports a finding that the child would benefit from having a meaningful relationship with both parents and the maternal grandparents. The issue in the case now is how to best manage the child having a relationship with her mother. The mother’s now intractable position in opposition to the father spending any time with the child, coupled with her drug addiction and mental health issues, makes this very difficult to manage.
The child enjoys spending time with each parent and each parent wishes to be involved in the child’s life. At the time of the first Family Report of Dr H of 21 June 2021 it was observed by the Court Child Expert at [72] that, because the time that the father had spent with the child had only been consistent since February 2021, this had not been sufficient time to “establish a robust attachment relationship”. At the time of the observations, which were the subject of the second Family Report of Dr H dated 29 April 2022, it was observed that the child’s body language and verbal tone towards her father suggested she was comfortable in his company.[5]
[5]Dr H, second Family Report dated 29 April 2022 at [44].
Since the child was born the father has sought to have a meaningful relationship with the child and has had to contend with hostility from the mother and what has been significant opposition from the grandparents, with the father forming the view that they have supported their daughter and have downplayed her ongoing problems with drugs. In response, the father has presented to the grandparents and mother and consequently the Court as hostile, embitteredly angry and unable to acknowledge the difficulties faced by the grandparents in dealing with the mother.
It is, however, accepted by all the parties that the grandparents have had a major role in the day-to-day parenting of the child because of the mental health and drug issues faced by the mother. The mother has lived in their house with the child until recently, however, she no longer lives there because of the IVO that has been ordered protecting the grandparents and the child.
The orders made seek to find a way for the mother to get assistance so that she may be able to have a meaningful relationship with her daughter without exposing the child to risk.
Further, the orders enable the father to sustain a meaningful relationship with the child in circumstances where it has been compromised by the actions of the mother. It is to the credit of father that despite the mother largely withholding the child, the father has still managed to maintain a relationship with the child. This is outlined by Dr H who noted, that upon seeing the father, the child made physical contact with him and referred to him as ‘daddy’.
The grandparents have been the primary carers of the child and it is not contended by any party that the child would not and does not benefit from having a meaningful relationship with them.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence
Section 60CC(2)(b) – alleged physical abuse
The evidence before the Court indicates that the child appears to have been well looked after in terms of her physical health. She is meeting her milestones in terms of doing well at kindergarten and making friends.
However, the mother’s ongoing use of drugs and her erratic and violent behaviour towards the grandparents and the father are such that the child does need to be protected. This is particularly the case when the mother’s drug use is combined with underlying mental health issues.
The mother’s drug use and accompanying mental health issues are extensive. The mother reports she began taking illicit drugs in 2016 with her mental health problems beginning at this time. Her drug use became more frequent at that time.
The mother gives evidence that she had two involuntary admissions in 2016 for psychiatric issues and she notes her diagnoses were attributed to substance abuse and that she was subject to two Mental Health Tribunal orders:
50.In [F Hospital] was diagnosed as having major depression, anxiety and psychosis with cluster B traits due to substance abuse. I was an involuntary patient and was prescribed anti-psychotic and anti-anxiety medication. These diagnoses have been changed at different times of observation and by different practitioners over the course of the involuntary inpatient and outpatient treatment, and again since seeking private treatment in recent years.
51.Whilst in [F Hospital] and following as an outpatient I was placed on two different Mental Health Tribunal Orders between [late] 2016 to [mid] 2017. [In mid] 2017 the Mental Health Tribunal reviewed their previous determination and as a result removed the previous CTO imposed on me. [6]
(Emphasis added).
[6] Mother’s affidavit at [50] – [51].
Child Protection stated that in August 2019 concerns were raised when X was very young. They related to the mother being violent towards the father whilst they were in a relationship in 2018, which was said to be:
physical, emotional and psychological abuse. This was not reported to Victoria Police however it is believed that [Ms B Aarden] is known for violence offences. Other concerns relate to [Ms B Aarden’s] mental ill health, possible substance use and [a drug-related offence]. Also, that the family home caught fire whilst [Ms B Aarden] and [X] were present due to [Ms B Aarden] leaving the stove on. [7]
[7]DHHS s 67z Report dated mid-2019, at page 2.
Dr J diagnosed the mother with Drug-Induced Psychosis and Substance Abuse. [8] In his second Psychiatric Assessment dated 19 May 2023 he notes on the mother’s Mental State Examination:
… Her speech was once again pressured but not to the degree that it was at the previous assessment … Whilst there were no frank delusional features, [Ms B Aarden] impressed as holding the highly fixed immutable belief that [Mr Botterill] was a danger to [X] (and her relationship with [X]).[9]
This remained a feature of the interview, despite her stated improvement in her psychological function and other areas of her life …
… Insight was lacking.[10]
[8]Dr J, PA1, page 13.
[9]Dr J PA2, page 13.
[10]Dr J PA2, page 14.
Dr J further diagnosed the mother with Cluster B Personality Traits and Quasi-Delusional Beliefs.[11]
[11]Dr J PA2, page 14.
The mother admits to testing positive to a drug of dependence at G Centre in late 2018 when she was pregnant and in circumstances where she was caught trying to smuggle drugs into the centre with drug paraphernalia being found in the car she was driving[12] The mother reports that she then tested positive to two illicit substances following a drug screen in February 2021.[13]
[12]Mother’s trial affidavit filed 6 June 2023 (“Mother’s affidavit”) at [54].
[13]Mother’s affidavit at [57].
As noted above, the Court observed the mother in the witness box and the hearing in June 2023 and was subsequently concerned about her presentation, ordering that she undergo a supervised drug test. That test returned positive.
Orders were made for the children to live with the grandparents and for the mother to spend time with the child supervised by the grandparents.
Significant issues of risk to the child came to light when the matter came on for further hearing on 29 February 2024. Police reports subpoenaed by the ICL indicated that the police had attended the grandparent’s house in January 2024.
The events of January 2024 were particularly concerning. The grandmother described an incident unfolding after the mother had started asking questions of the child when they were both in the swimming pool. Those questions were regarding the swimming lessons the child was having whilst in the care of the father. The grandmother saw that the child was reluctant to respond to the questions being asked and put her head down in an effort to avoid answering the questions. The grandmother asked the mother to stop, which enraged the mother. This led to the mother confronting the grandmother (after she had got out of the swimming pool) and taking a sharp object off the grandmother and threatening her with it. This occurred with the child in the home and it is likely that the child would have been aware of the violent incident. The police were called to that incident and an IVO was applied for and obtained by the police, protecting the grandparents and the child from the behaviour of the mother.
The Police Report regarding the events of January 2024 notes that the grandmother disclosed to the police that days earlier the mother had been verbally aggressive towards the grandmother – she had grabbed the grandmother around the throat and punched the grandmother in the head. The grandmother also disclosed family violence incidents with the mother being verbally aggressive and combative towards the grandmother which had in the past escalated to violence.
The evidence that came to light at this hearing on 29 February 2024 was significant because the Court had been under the impression, as a result of evidence given in the trial and because of the absence of any information from the grandmother in relation to the high level of conflict created by the mother in the house, that things were reasonably settled in the house and that any point of significant tension arose out of interactions with the father. This appeared not to be the case. The mother was continuing to use an illicit substance and was affected by it and the mother’s drug use and her associations with those supplying her with drugs had been an ongoing source of conflict between the mother and the grandparents.
It was a matter of great concern to the Court that these incidents that had occurred in January 2024 prior to the application being issued on 30 January 2024 had not been brought to the attention of the Court or the ICL. The grandfather gave a full apology to the Court on 29 February 2024 for not raising these matters and I accept that he now understands that the information should have been brought to the attention of the Court. Of further concern to the Court was that the grandparents, by their solicitors, sought to unilaterally vary the orders by removing the overnight time between the father and the child. Again, I made it clear to the grandparents and their legal representatives that this conduct was entirely unacceptable. Given what the grandmother told the police in January 2024, I infer that the difficulties that the grandparents have had in dealing with the mother are longstanding and create a real difficulty for them and the child.
Further evidence of risk to the child was identified as a result of evidence submitted by the father in his application filed 10 April 2024. The father's solicitors wrote to the grandparent’s solicitors on 2 April 2024 seeking clarification as to whether there had been further family violence involving the mother and grandparents since 21 February 2024.[14] This was spurred by the father having had observed a security guard present outside the front of the grandparents' property.
[14] Father’s affidavit filed 10 April 2024, annexure MB-2.
The father set out at [15] of his affidavit that he received a response from the grandparents' solicitors dated 8 April 2024 which provided relevantly that:[15]
(1)The mother has been living independently from the grandparents since Interim Orders were made on 29 February 2024 and the grandmother has an Intervention Order against the mother that was issued in January 2024 and finalised a short time later;
(2)When the father's Application for an Intervention Order against the mother was listed in the Magistrates' Court in early 2024, the mother made a threat to kill the grandmother to a social worker because the grandmother was determined to facilitate the child's time with the father pursuant to Interim Orders made on 29 February 2024, and the social worker reported this threat to Victoria Police;
(3)In April 2024 during a supervised visit with the mother and the child at the grandparents' home, and just as the child was about to be placed in the care of the father, the mother took the child and left the premises in a car. Police were called and located the mother and placed her under arrest for contravention of the grandmother's Intervention Order against her. The child was returned to the grandmother's care by Victoria Police and the child was delivered to the father around 3.30 pm that day.
(4)The mother was released on bail to attend the Magistrates' Court the following day. Police have since made full-term, final Intervention Orders protecting the grandmother and the child against the mother;
(5)The grandparents will no longer be involved in supervision of the child “as the Mother is unable to conduct herself in a civil manner when with them.”
(6)The grandparents suggested that there be orders that time between the mother and the child continue with the mother's brother and sister acting as supervisors (with signed undertakings as to supervision) and should the mother "behave inappropriately" at such supervised time, that her time with the child should cease.
[15] Father’s affidavit filed 10 April 2024, annexure MB-3.
The evidence supports orders for professional supervision unless it can be established that the mother is abstaining from illicit drugs and is seeking directed psychological assistance in order to assist in her capacity to self-regulate. This is acknowledged by the father, grandparents and ICL. As was noted by Dr H at [76] of her first Family Report dated 21 June 2021:
Parenting capacity is multifaceted and includes the capacity to self-regulate, the capacity to regulate the emotional state of the child, stability of one’s own functioning, and the ability to support a child’s intellectual, physical and social development, including supporting relationships important to the child’s development of self and identity, such as a relationship with the other parent ….
Due to the mother’s violence, particularly towards the grandmother, the grandparents have now frankly acknowledged that they or other family members cannot act as supervisors of the child's time with the mother. Her conduct is such that the Court cannot be satisfied that supervision by a family member will be a sufficient safeguard against the risks of physical and psychological harm brought on by the mother's conduct. In the Full Court decision of Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781, Fogarty, Baker and Purvis JJ noted:
… it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists.
…
The prospect of family members acting as supervisors is, whilst well-meaning and born of a hope for arrangements that might calm the mother down, unlikely to be sufficient to adequately protect the child from harm and is likely to expose a wider circle of family members to the stresses of trying to contain the mother’s drug and or mental health influenced behaviour. Further, such measures will not allay the father's concerns in relation to the mother's conduct and such arrangements are likely to lead to ongoing applications to the Court or the involvement of police.
In most cases it is undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. Consequently, I find that the mother’s time with the child must be supervised by a professional contact centre until she is able to comply with the orders.
As to the matters raised by the mother and grandparents in relation to risk to the child due to the behaviour of the father at changeover on 10 and 11 February 2024 attended by the grandmother and the child, I do not accept that the father had conducted himself in a hostile way towards the grandmother as described in her affidavit of 30 January 2024. There is hostility between the father and the grandparents, however, a sound recording of the changeover which was said to involve hostility revealed a happy child chatting with both the grandmother and the father and the father chatting cordially with the grandmother and the child.[16] The father did not say anything aggressive or hostile and did not sound aggressive or hostile. I find these claims to be the result of the accretion of the longstanding hostility between them where both sides to the dispute are extremely sensitive and effectively on high alert when in each other’s company.
[16] Exhibit A4 and A5.
The mother has also made various assertions of the father being a risk to the child. On 19 February 2022 the mother brought the time to an end as she believed that the child was at risk and needed to be collected following the viewing of a video of the child taken by the father and sent to the mother.[17] The mother became so convinced that the child was at some kind of risk that she called the police via 000,[18] who then went to the father’s house and undertook a welfare check where the police found that the child was asleep in bed.[19] There was to be a further overnight time on 5 March 2022, but the mother withheld the child.[20]
[17] Exhibit A1.
[18]Transcript page 91, lines 4 - 45.
[19]Mother’s affidavit at [158] – [159].
[20]Transcript page 85, lines 9 - 25.
Having viewed that video, I find that it was not reasonable for the mother to bring the overnight time to an early end. The video showed a happy child waving at the camera saying “Hello Mummy.” There was nothing in the video which suggests that the child was distraught or was in need of being rescued.
In Dr H's first report dated 25 June 2021, it is stated that the mother, in an unguarded moment, stated that the child was happy to go back to see the father again; and when asked to focus on X’s experience of time with the father the mother noted “Oh she’s happy to go, and happy to come back.”[21] However, when giving evidence about the father spending time with the child she stated “over my dead body.”[22]
[21]Family Report, Dr H, dated 25 June 2021 at [51].
[22]Transcript page 150, lines 28 - 29.
Further allegations have been raised in relation to the father’s care of the child during his time with the child by the grandparents. These include allegations that the father has used soaps that irritate the child’s skin causing rashes and on one occasion allowing her to become sunburnt, the child had developed a tic since orders were made and the child had been constipated when returning from the care of the father (the severity of which was not known to the Court). It was also said that the child developed a rash which was not being properly addressed by the father whilst the child was in his care. The father addressed these matters in his evidence filed since February 2024. He is effectively a new parent and children can have rashes whilst subject to the highest standard of care. Similarly with sunburn – it can happen quickly and I accept that the father is alive to the issues raised. These types of issues are noted to be an ordinary incident of childhood. The issue in relation to the child's tic was being addressed by the grandparents with health professionals. Nonetheless, it does not establish that the father is a risk to the child.
The father raises issues about the grandparents smoking in the child’s presence and the child smelling of cigarette smoke. This is something that they are capable of addressing. The nature of cross-complaints is indicative of the high level of conflict between the parties rather than the father or grandparents being neglectful.
I find that the father does not present as a physical risk to the child.
Section 60CC(2)(b) – alleged “serious psychological harm”
The Act requires advertence to the need to protect the child from “psychological harm” which may be caused by subjection or exposure to “abuse”.
For that purpose, “abuse” is defined to include causing “serious psychological harm” to the child, howsoever that may occur and regardless of whether or not it is intentional (s 4(1)).
The concerns in this case regarding the risk of psychological harm to the child is due to the mother’s resistance to the father spending meaningful time with the child. This has been made plain by the mother’s incapacity to facilitate overnight time despite orders being made which provided a graduated build-up to limited overnight time with the father. Given the mother’s fervent and well entrenched views which have led her to refuse overnight time, I do not see her position changing and this is likely to cause ongoing problems because of the conflict between the parents and the likelihood that a meaningful relationship between the child and father will not be possible. I accept the observations of Dr H regarding the mother at [76] of the first Family Report as insightful and accurate when she stated:
… This assessment raised significant concerns about [Ms B Aarden’s] capacity to support [X] to have a relationship with [Mr Botterill]. [Ms B Aarden’s] language and actions were highly controlling of [X]. Knowing her presence would distress [X], she inserted herself into the second changeover (and [Mr Botterill’s] final opportunity for a father-child observation), effectively sabotaging the handover and observation. She shows no insight into the importance of helping [X] build a healthy relationship with her father for [X’s] identity and long-term mental health. She is highly likely to engage in restrictive gatekeeping, as [Mr Botterill] asserts she has done since the child was conceived, despite the attempts of the Court to support a relationship. If [Mr Botterill’s] account of the disruptions in time are accepted, one must conclude that [Ms B Aarden] is almost certainly incapable of supporting [X] to have a relationship with [Mr Botterill] and there is a high likelihood of ongoing sabotage if she is allowed to continue to control handovers and [Mr Botterill’s] access to [X]. [Ms B Aarden’s] presentation is a significant risk factor for alienation.[23]
[23]Dr H, Family Report dated 21 June 2021.
Dr H went on at [79] to even raise the possibility of a temporary change of residence for the child to facilitate time with the father:
In extreme cases such as this one, where a child is at high risk of being forcibly estranged from one parent by the other parent, the Court must be prepared to monitor tightly and intervene if necessary, including considering a change of primary care away from [Ms B Aarden]. This is an option of last resort, but one that may be necessary in this case to avoid the alternative, which is that [X] is subjected to ongoing parental conflict and Court proceedings throughout her childhood – or until her father expends all his resources to fund legal action – simply so that she may have a relationship with her father. Regrettably, the writer would consider a change of residence to be the necessary next step if [Ms B Aarden] continues to obstruct [X’s] relationship with her father.[24]
[24]Dr H, Family report dated 21 June 2021.
It is important that the father spend significant time with the child. Dr H raised that there is an ‘invisible injury’ being created for the child, which in part is due to the absence of the father from the child’s life:
on all observable markers, she is thriving, but the kind of issues that are happening and that – that are being seeded for [X] are kind of like – it’s like an invisible injury or invisible disability that is being created for [X] ---[25]
[25]Transcript page 268, lines 6 – 9.
The father submits that the mother has an ongoing belief that she is the “ultimate decision-maker in relation to [X]” (at [16] see also at [10] –[12] and [17]) and that any time he spends with the child is resisted by the mother, sometimes violently (at [16]).[26]
[26] Father’s affidavit filed 10 April 2024.
The father refers to communication between the mother and the sports centre, which the father had previously enrolled the child in, (Annexure MB-1) which begins with the mother stating to the sports centre that the father “doesn't have responsibility or the right to have made this enrolment” (Email 21 January 2024) and that this decision lies with the grandparents.
It is apparent from the terms of that letter that the mother is involving third parties in the conflict between the father and mother and that this will impact on the child.
I accept that the mother is unable to abide and cooperate with the father spending time with the child and that anything that he does which demonstrates any independent decision-making by him regarding the activities of the child creates a dramatic and concerning result. The father organising the sports class set off a very strong response from the mother which culminated in her assaulting the grandmother. Matters have escalated to the point where the mother is alleged to have threatened to kill the grandmother in the presence of a third party at a court event in the Magistrates’ Court because the grandmother was allowing the child’s time with the father.
Given the orders that will be made will be for the child to spend professionally supervised time with the mother and that she live in a residence away from the grandparents, this will enable the father to continue to develop his relationship with the child without hinderance by the mother.
The father also asserts psychological risk to the child in the care of the grandparents, particularly with recent police involvement recovering the child from the mother (at [17] and also from [13] –[16] of the father’s affidavit).[27]
[27] Father’s affidavit filed 10 April 2024.
Again, the implementation of professional supervision for the mother and her not to live with grandparents will alleviate risk to the child due to the volatility in the relationship between the grandparents and the mother.
The grandparents submitted that vitriolic and personally abusive communications of the father directed at the grandparents was a species of family violence which presented a psychological risk to the child. Whilst the child was not directly hearing or receiving the communication, the fact that there was so much tension arising from that communication must impact on the child with a risk of harm due to the level of hostility. It was accepted that the father had been subject to provocations over the years, particularly from the mother, however, it was submitted there was simply no reasonable excuse for the sustained invective that had been directed to the grandparents, particularly the grandfather. I do accept that the father has had to deal with a very difficult set of circumstances arising from the mother’s conduct in relation to his contact with X and events surrounding that, however, his responses go well beyond what I would regard as an explicable response, particularly his response towards the grandparents. I also accept that the grandparents have not adequately supported a relationship between the child and the father and have been concerned to placate the mother who becomes triggered at the thought of the child spending time with the father.
The father has undertaken to the Court from sending abusive communications to the grandparents. He must refrain from that conduct if he wishes to parent without being involved in ongoing court proceedings.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
Any Views Expressed by the Children and any Factors, such as the Children’s Maturity, that the Court Thinks Relevant to the Weight it Should Give to the Child’s View
The child is too young to express views.
Section 60CC(3)(b)
The Nature of the Relationship of the Children with Parents and other Relevant Parties
As canvassed above, the father has had a limited relationship with the child because of the conduct of the mother. The child has enjoyed a close relationship with the grandparents and mother.
Since the child was born, the mother has resisted the father spending time with the child. The mother went to the extent of not putting the father’s name on the child’s Birth Certificate and named another person as the father as a means of making it more difficult for the father to see the child and to “infiltrate my [the mother’s] life again”.[28]
[28]Transcript of Proceedings (“Transcript) pages 47 - 48.
Given the mother's long history of drug use and the fact that she has spent most of her time with the child living with the grandparents, I agree with the opinion of the Court Child Expert that much of the parenting of the child has been done by the grandparents and the mother has relied very significantly on them for support. I do acknowledge that the mother has a close relationship with the child but at this point, where she has not addressed her drug and mental health issues, the Court must act protectively and for that reason I find that orders in relation to professionally supervised time are required.
Section 60CC(3)(c)
The Extent to which each of the Children’s Parents has Taken, or Failed to Take, the Opportunity to Participate in Decisions, Spend Time and Communicate with the Children
The father has wanted to be involved in decision-making, spending time and communicating with the child but has been largely deprived of the opportunity due to the conduct of the mother. There have been circumstances where the father has acted pre-emptively in his care of the child, such as the sporting lessons, and this was encountered with vitriol. I accept that this has hindered the father’s ability to be closely involved in the child’s life.
I also share the view of Dr H in believing that the grandparents have had a substantial role in caring for the child and making decisions in that child’s best interests. The mother has had the child in her care and loves the child, but the full extent of her involvement is not clear.
Section 60CC(3)(ca)
The Extent to which each of the Children's Parents has Fulfilled, or Failed to Fulfil, the Parent's Obligations to Maintain the Children;
The father’s role in fulfilling his obligations to maintain the child have been the subject of evidence in this proceeding. The father has not paid child support, he did state that he did not want any money he gives to the mother to be spent on drugs and that he did offer the maternal grandmother money at one stage. Given the evidence that came out at trial regarding the mother’s drug use and her erratic behaviour, there is a good reason for him to hold those fears, however, if he was genuine in his desire to maintain the child, financial arrangements could have been made so that funding could be arranged without the mother directly accessing those funds.
The father was evasive about his earnings and was resistant to providing payslips until ordered to do so. He had previously relied on a technicality that the mother filed the request for details about his income slightly late. There was no child support application before the Court but the father’s attitude of financially supporting the child is a relevant consideration.
The grandparents have fulfilled their obligations to support and maintain the child. The mother’s capacity to do so has been and is compromised by her drug and mental health issues.
The same issue presented when the father was asked about his hours of work, which he claimed to be around three hours a night, however, he would not expand on this until pressed. He finally explained that he was called out to undertake work, and that he got paid for an eight-hour shift, regardless of how long the job took.
I expect the father’s behaviour regarding financially supporting his child will improve whether as a result of the operation of the child support payments scheme or because he is now in a position of dealing directly with the grandparents and spending more time with his daughter. He is now able to participate in the child support scheme and I expect that he will now pay any assessed amount and support the child appropriately when she is in his care.
Section 60CC(3)(d)
The Likely Effect of any Changes in the Children’s Circumstances, including the Likely Effect on the Children of any Separation from a Parent/Grandparent they have been Living with
These matters have been addressed above. The orders, both interim and final, recognise the close relationship that the child has had with the mother and with the grandparents and the concerns that the substantial change previously sought by the father may have a traumatic effect on the child. The orders that I make see the child remaining in the household she is familiar with but enable her to spend time meaningful time with the father. I am aware that the changes brought about by the interim orders of 17 April 2024 are reasonably significant in the sense that the child will be spending more time with the father and possibly very little time with the mother. The mother will not be living in the home with the child and will only see the child in a supervised setting. The effect of these changes must be balanced against the risks to the child identified from the mother’s drug use and mental health issues.
It is hoped that the conflict between the father and the grandparents will abate if the father is spending significant and meaningful time with his daughter and is given an opportunity to parent without being a party to ongoing proceedings.
Section 60CC(3)(e)
The Practical Difficulty and Expense of Children Spending Time with and Communicating with a Parent and whether this will Substantially Affect the Children’s Right to Maintain a Relationship with Both Parents on a Regular Basis
The father has maintained regular and well-paid employment that does require him to work night shifts albeit with the option to vary his hours and request day shift. In the course of him giving evidence, and in the evidence given by his mother, he was proposing that arrangements could be made for the child to be looked after by his mother whilst he was at work so he could maintain his employment and look after the child satisfactorily. His employer holds him in high regard as an employee and I am confident that he will act in the child’s best interests in making arrangements so that he is substantially present when the child is spending time with him. Evidence produced by him of a statement from his employer regarding flexibility in his work arrangements satisfies the Court that he will be in a position to spend time with his daughter without major difficulties.
Section 60CC(3)(f) and (i)
The Capacity of Parents/Grandparents to Provide for the Needs of the Children and their Attitudes to the Children
Both the father and grandparents have the capacity to look after the child, although the Court is concerned that the father’s rigid and unrelentingly negative view of the mother and grandparents is such that it may impact on his capacity to provide for the needs of the child. Whilst the Court will not make orders requiring him to get treatment or seek professional advice, at some point he should consider these options so as to better deal with the circumstances that he has found himself in and so that he does not present to the child as angry and embittered. It is also important that he is able to present himself to parents of children that the child attends school with as a positive and competent parent.
The mother’s capacity to provide for the needs of the child are significantly compromised by her drug use and mental health conditions. I will make orders that the mother continue to engage in psychotherapy in order to try and give her some assistance. My concern is that the mother is now 36 years of age and has reasonably long-term drug and mental health issues and had no insight into those matters when giving evidence. It is hoped that engagement with a caring and qualified psychiatrist outside the Court system will assist the mother so that she may in the future be able to spend unsupervised time with her child.
I understand that these matters, when viewed in isolation, are extremely negative and that no doubt there is far more to her than those matters. Similarly, the father has by his presentation required the Court to focus on negative aspects of his personality and I assume again that there is far more to him than that.
The grandparents are not young people, and at some point their age may become an issue in relation to their capacity to care for the child or their willingness to remain in the role of assuming parental responsibility, but that is not an issue before the Court now.
Section 60CC(3)(g)
Maturity, Sex, Lifestyle and Background of the Children/Parents
There is nothing particular about the maturity, sex, lifestyle and background of the father or the grandparents which impacts on the best interests of the child. I do not think that the grandparents’ relationship with the mother will undermine their capacity to assume parental responsibility.
Section 60CC(3)(h)
Whether the Children are Aboriginal or Torres Strait Islander Children
This is not a relevant consideration.
Section 60CC(3)(j)
Any family violence involving the child or a member of the child's family;
As noted above, the father’s vitriolic communications with the mother and the grandparents, in particular the grandmother, constitutes family violence for the purposes of the definition under the Act: (see s 4AB(2)). The mother has also engaged in conduct which constitutes family violence towards the father. It is likely that hostility between the mother and father will continue if they are required to have direct contact or communications. The family violence perpetrated by the mother on the grandparents has been canvassed above and constitutes family violence of a most serious kind. It is not healthy for a child to be exposed to the high level of conflict caused by the mother’s behaviour and I do not accept that the child would be unaffected because the grandparents and child live in a very large house or because the child has a fascination for police cars (which was evidence given by the grandfather) and that she would be unaware of the commotion surrounding the police being required to attend the grandparents’ home. It is the intention of these orders that the conflict that has arisen largely by the mother’s conduct will settle with the hope that she receives treatment and is able to abstain from illicit drugs.
Section 60CC(3)(l)
Whether it would be Preferable to make the Order that would be Least Likely to Lead to the Institution of Further Proceedings
These orders, which involve the grandparents assuming parental responsibility of the child, are made to attempt to avoid the circumstances that were outlined by Dr H in her first Family Report which is extracted above at [85] with the father being alienated from the child. If orders of this kind are not made, and the child’s care is left to the determination of the parents, it is most likely that there will be ongoing ructions with the mother likely to refuse to enable a relationship. This would lead to ongoing litigation being more likely through the course of the child’s childhood. An order for shared parental responsibility between the grandparents and the father is likely to lead to ongoing disputes and further litigation.
Section 60CC(3)(m)
Any other Factors or Circumstances that the Court Thinks is Relevant
Interim Orders were made in relation to the child’s name and it is appropriate that I address reasoning for the change. The child has been known as X Aarden; however, the child is young and the adoption of the hyphenated name Botterill-Aarden is something that gives recognition to the father's role. I think this is important for the reason identified by the ICL, that evidence was given by the grandparents that the father's name is not mentioned in their house and that it is important for the child to recognise that she has a father who has an important role in her life. I consider that it is in the best interests of the child that a hyphenated name be adopted. The change is not such as to be likely to cause long-term or short-term issues and the fact that Aarden remains the last name of the hyphenated name recognises that the child has lived with the mother and grandparents and their role.[29] Whilst the mother will not be happy about a change of name I think that the change of name to a hyphenated name will strengthen the child’s connection to her father and that consideration outweighs concerns that the mother may have.
[29]See Chapman & Palmer (1978) FLC 90-510 and Flanagan and Hancock [2000] FamCA 150; (2001) FLC 93 for consideration of issues in relation to change of name.
Parental Responsibility s 61DA
The father has sought orders for sole parental responsibility, but his position at final submissions were that he have shared parental responsibility for the child with the grandparents. By way of final submissions counsel for the grandparents made submissions that neither the father nor the mother should have parental responsibility. He stated in relation to the father that the presumption of equal shared parental responsibility is rebutted, the flavour of his evidence was:
argumentative, controlling, he can be a rigid thinker and have an uncompromising attitude. He is described by [Dr H] as being very bitter, of there being an element of wanting justice and punishment for the mother’s actions and anyone else he views as supporting her.[30] He has made outrageous, defamatory and abusive allegations. It was submitted that the father has learnt his lesson and he has not even apologised. [31]
[30]Closing Submissions Grandparents citing Transcript page 273.
[31]Closing Submissions Grandparents.
The grandparents submitted that they should have sole parental responsibility and the mother submitted that she should have sole parental responsibility.
The mother should not have parental responsibility due to the family violence that she engaged in with both the father and the grandparents. Her issues with drugs and unresolved mental health issues mean that such an order would not be in the child’s best interest.
The father has made accusations about the grandfather which serve no purpose other than to try to create embarrassment for him and where he has no evidence (other than the say-so of the mother who he regards as drug addled and unreliable) to form the basis of the accusations. Similarly, he has made various assertions that the mother and grandmother were ‘evil’. The father was invited to withdraw the accusations and offer an apology to the grandparents and the mother but he steadfastly refused to do so despite being given ample opportunity in the witness box.[32] This attitude forms the basis of a finding that I make that there can be no reasonable cooperation between the father and the mother and grandparents such as to facilitate shared parental responsibility between the father and the grandparents or one of them.
[32]See for example Transcript page 17 lines 24 – 40; page 28 lines 3 – 16, page 54, lines 41 – 46, page 55 lines 1 – 47, page 65 lines 25 – 45; page 66 lines 1 – 18, page 276, lines 43 – 47, page 277, lines 1 – 15.
I do not share the same opinion stated by Dr J in relation to the presentation of the father outlined in his psychiatric assessment of the parents dated 24 May 2021. There, he described the father’s presentation as:
… straightforward and transparent in his account, spoke without rank or bitterness, despite the fact that on his account at least, Ms B Aarden had deprived him of contact with [X] over an extended period.[33]
[33]Dr J, PA1, page 12.
I agree with that submission and accept that it is most unlikely that the father would be able to share parental responsibility with a person he considers to be ‘evil’. I also accept that the grandparents hold the father in low esteem and regard him as obnoxious and aggressive. As noted above, his written communications have been unnecessarily aggressive.
The father’s insistence on focusing on the wrongs that have been done to him and to paint the mother and the grandparents in a negative light does not bode well for any kind of ongoing constructive relationship between himself and the grandparents.
Similarly, the correspondence between the mother and father outside of Court proceedings and during the trial was acrimonious, inflammatory and not conducive in any way to creating any kind of environment where the best interests of the child would take priority.
The father is angry that he has been deprived of opportunities to parent and feels that the grandparents are complicit in this. I have considerable sympathy for the father in that he has persistently and stridently asserted that the mother is a drug addict and presents a risk to the child and that submission has, to a significant extent, been resisted by the mother and the grandparents. There has now been an acknowledgement by the grandparents, which is evidenced by the form of orders that they submit as appropriate, that the mother does have a serious addiction to illicit drugs which does impact on her capacity to look after the child safely. However, the father seems incapable of backing away from his very antagonistic attitude towards the grandparents which will make it quite unworkable if orders for shared parental responsibility were made. If the orders sought by the father were made, it is likely to involve ongoing interactions with the mother which would lead to further ongoing conflict.
The grandparents have been in a long-term relationship of around 27 years they are a cohesive and functioning unit and the child is meeting her milestones and this arrangement provides the best opportunity for X to have a relationship with both of her parents, whilst ensuring she remains safe and well cared for. For these reasons the presumption of shared parental responsibility between the father and grandparents is rebutted on the grounds that it would not be in the best interest of the child (s 61DA(4)). Sole parental responsibility is granted to the grandparents and is subject to them consulting with the father prior to making major long terms decisions about the child.
CONCLUSION
I have made orders for the father’s time, including overnight time, to be gradually increased as the child gets older.
I adopt the spend time arrangements submitted by the ICL as appropriate and in the best interests of the child. There is no evidence before the Court that the father is incapable of parenting and the restrictions on time that are sought by the grandparents are not justified or in the best interests of the child. Orders that were proposed by the grandparents had the effect that the mother would spend no time with the child unless she presented 4 clean hair follicle tests. This could have the effect of the mother not spending time with the child for an extended period and would operate regardless of if the mother was not acutely drug affected but had drugs in her system which would be reflected in hair follicle testing. The orders provide that the mother’s time is professionally supervised to allow her time with the child, and for her behaviour to be observed by a suitably trained person.
The grandparents sought orders that the father undertake a further Men’s Behaviour Change Course, I do not see the efficacy in that. The father has already attended a Men's Behaviour Change Course. Unfortunately, in his evidence, he struggled to identify what benefit if any he had obtained from that course. He seems rigid in the view that he does not need to change and that his responses to the grandparents and the mother are reasonable having regard to the way that he has been treated and because many of the issues that he raised regarding the mother’s drug use and behaviours have been found to be well founded. Ordering a further course is unlikely to assist the father or the child and the best way for there to be some de-escalation of tension is for this matter to be taken out of the Court system and to allow the child to spend time with the father until the mother receives proper assistance to deal with her mental health and drug dependency.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 29 May 2024
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