Cornish & Gilholm - [2021] FedCFamC1F 208

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornish & Gilholm [2021] FedCFamC1F 208

File number(s): MLC 12534 of 2019

Judgment of: MCEVOY J

Date of judgment: 19 November 2021

Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – With whom the child lives – Role of grandparents – Where the father alleges that the grandmother has subjected the child to emotional harm and seeks sole parental responsibility and for the child to live with him – Where the maternal grandmother seeks equal shared responsibility parental between herself and the father and for the child to live with her – Where the mother seeks equal shared responsibility between the three parties and for limited time with the child, initially supervised by the grandmother – Where the ICL supports the grandmother’s position – Where there has been significant involvement of child protective services – Where the child was removed from the care of the mother when he was about 7 months old and placed with the grandmother – Where the father had limited involvement with the child for the first three years of his life – Where the child was removed from the grandmother’s care and placed with the father when he about 3 years old – Where the mother and the grandmother allege the child has been neglected in the father’s care and this is denied by the father – Where the evidence from the child’s school and his treating medical practitioners raise no concerns and suggest the child is progressing well – Where it is found that the grandmother has subjected the child to emotional harm and that it is in the best interests of the child for the father to have sole parental responsibility, subject to an obligation to consult the mother and the grandmother, and for the child to live with him and spend four nights a fortnight with the grandmother and supervised time with the mother, moving to unsupervised time pending her engagement with mental health professionals and drug testing – Orders made substantially in the terms sought by the father.

Legislation:
Children Youth and Families Act 2005 (Vic), s.331

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), s 4AB, Part VII, s 60B, s 60CA, s 60CC, Division 6 of Part VII, s 65C, 65DAC,

s 61C, s 61DA, s 64B, s 65D, s 65DAA, s 65DAB,

s 65DAC

Cases cited:
A v A (1998) FLC 92-800

Aldridge & Keaton (2009) FLC 93-421

Banks & Banks (2015) FLC 93-637

Blakey & Blakey [2020] FamCA 647

Blann & Kenny [2021] FamCA 322

Blann & Kenny [2021] FamCAFC 161

Briginshaw v Briginshaw (1938) 60 CLR 336

Burton & Churchin (2013) FLC 93-561

CDJ v VAJ (1998) 197 CLR 172

Cimorelli & Wenlack [2020] FamCAFC 58

D & F [2001] FamCA 382

Donaghey & Donaghey (2011) 45 Fam LR 183

Donaldson & Ryder [2017] FamCA 920

Donnell & Dovey (2010) FLC 93-428

Guerra & Guerra [2021] FedCFamC1F 73

Hardie & Capris [2010] FamCA 1046

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

In the Marriage of Blanch (1999) FLC 92-837

Keane & Keane [2020] FamCA 99

M v M (1988) 166 CLR 69

Milton & Milton [2021] FamCAFC 64

Mulvany & Lane (2009) FLC 93-404

Napier v Hepburn (2006) FLC 93-303

Poisat & Poisat (2014) FLC 93-597

Potts & Bims and Ors [2007] FamCA 394

Rafferty & Spencer (2016) FLC 93-710

Re David (1997) 22 Fam LR 489

Rice & Miller (1993) 16 Fam LR 970

Ryder & Donaldson [2018] FamCAFC 260

U v U (2002) 211 CLR 238

Valentine & Lacerra and Anor (2013) FLC 93-539

Yamada & Cain [2013] FamCAFC 64

Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2^nd edition, 2015)

Number of paragraphs: 278

Date of hearing: 1-4 and 17 February 2021; 26 March 2021

Place: Melbourne

Counsel for the Applicant: Ms Mallett

Solicitor for the Applicant: Buscombe & Madden Lawyers

Solicitor for the First Respondent: In person

Solicitor for the Second Respondent: In person

Counsel for the Independent Children’s Lawyer Mr Tesoriero

Independent Children’s Lawyer Melanie Wyatt Family Law
ORDERS

MLC 12534 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN: Mr Cornish
Applicant

AND: Ms Gilholm
First Respondent

AND: Ms Roberts
Second Respondent

AND: Independent Children’s Lawyer

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for X born … 2014 (“the child”).
3.In making major long term decisions in relation to the child, the following provisions shall apply:
(a)upon an issue in relation to a major long term decision arising, MR CORNISH (“the father”) shall provide notice to MS GILHOLM (“the mother”) and MS ROBERTS (‘the grandmother’) of the issue and his preliminary view;
(b)each of the mother and the grandmother will then provide any observations, views or opinions they have in relation to the issue to the father in writing within 7 days;
(c)the father will then seek agreement on any areas possible taking into account the views of the mother and the grandmother;
(d)in the event that there is no agreement the parties will seek first to attend upon Family Dispute Resolution (at B Counselling or similar);
(e)in default of agreement the father shall make the final decision; and
(f)in cases of emergency the above procedure (a)-(c) will be followed to the extent possible with the timings being shortened as appropriate to the circumstances and the father shall make the final decision taking into account the views of the other parties.

4.The child live with the father.
5.The child spend time with and communicate with the grandmother as follows:
(a)In an alternating two week pattern such that:
(i)in week 1 from the conclusion of school on Thursday (or 4.00pm if a non-school day) until Sunday between 12.00pm - 4.00pm as agreed (depending on the grandmother’s work schedule) subject to the provisions of order 6(b)(i) below;
(ii)in week 2 from Thursday after school (or 4:00pm if a non-school day) until the commencement of school on Friday (or 9:00am if a non-school day);

(b)for at least one call by FaceTime or telephone each week as agreed between the father and grandmother;
(c)in the event that the child is not otherwise spending time with the mother or grandmother for Mother’s Day: from after school on Friday before Mother’s day until the commencement of school after Mother’s Day;
(d)for a period of not less than two hours (outside of school hours) on his birthday as agreed between the parties, with the grandmother doing any necessary travel for these changeovers or to communicate by telephone if the grandmother is unable to spend time with the child on that day;
(e)for Christmas in 2021 and each odd numbered year thereafter from 3:00pm Christmas Eve until 3:00pm Christmas Day and in 2022 and each even numbered year thereafter from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
(f)for a seven night period in the Christmas school holidays as agreed between the father and grandmother and in default of agreement to commence from 3.00pm on Boxing day;
(g)for a seven night period during each school term holiday as agreed and in default of agreement to commence from the last day of school term; and
(h)for such other and further times as agreed between the father and the grandmother in writing.

6.The child will spend time and communicate with the mother as follows:
(a)as agreed between the mother and the grandmother during the grandmother’s time as set out in order 5, with such time to be supervised by the grandmother or such other suitable adult known to the child and agreed by the father, pending compliance with order 8 below;
(b)following compliance with order 8 below:
(i)on one of the weekends per month when the child is otherwise spending time with the grandmother pursuant to these orders, from after school on Friday (or 4:00pm if a non-school day) until Sunday at such time as agreed between the mother and father and in default of agreement at 2:00pm; and
(ii)at other times during the grandmother’s time on special occasions as set out in orders 5(c)-(d) as agreed between the parties; and

(c)for such other and further times as may be agreed between the father and the mother in writing, including telephone and or FaceTime.

7.The mother’s and grandmother’s time in order 5 and 6 herein shall be suspended on the following occasions:
(a)such that the child spend a period of not less than three hours (outside of school hours) on his birthday with the father as agreed between the parties and in default of agreement to be from the end of school until 6:00pm on school days and from 12:00pm – 3:00pm on non-school days, with the father doing any necessary travel for these changeovers;
(b)from 6:00pm the evening prior to Father’s Day until the commencement of school on the Monday after Father’s day;
(c)upon giving not less than 14 days notice in writing to the grandmother and mother for up to two periods of seven days during the Christmas school holidays;
(d)for a seven day period during each school term holiday as agreed and in default of agreement to commence at 4:00pm on the middle Saturday of the holidays; and
(e)for such other and further times as may be agreed between the parties.

8.Before the mother’s time can progress to unsupervised the following must occur:
(a)the mother must attend upon a psychologist (or other relevantly qualified mental health professional) with a copy of Dr C’s Psychiatric Assessment of her dated 15 July 2020;
(b)the mother must comply with any treatment / therapeutic work recommended by her treating mental health professional, including but not limited to attending for counselling and taking any prescribed medication;
(c)the mother must provide the father with the name and contact details for her treating mental health professional;
(d)the mother must provide to the treating mental health professional an irrevocable authority to provide the father with any information about the mother’s mental health that might be relevant to the safety and wellbeing of the child in any periods of unsupervised time; and
(e)the mother must provide the father with evidence of supervised screening for illicit substance use in compliance with order 10 below, showing that she has not used illicit substances for six consecutive months.

9.In the event that the mother ceases compliance with order 8, relapses into illicit drug use and/or her treating mental health professional provides information that she poses a risk to the child’s health, safety or wellbeing, then her time will revert to supervised time in accordance with order 6(a) herein until the provisions of order 8 are again complied with.
10.For the purposes of compliance with order 8(e) herein:
(a)the mother will notify the father in writing, that she is in a position to produce a hair follicle test that will show she has ceased using illicit substances;
(b)following such notification the mother will, within 21 days, make appointment and attend for hair collection at an D Testing Services (DTS) Clinic or nominee for hair drug testing purposes;
(c)collection is to be conducted by a qualified and certified collector and chain-of-custody procedure is to be applied to the sample;
(d)testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(e)either head or body hair may be collected for testing;
(f)to give effect to this order:
(i)from the date of her notification to the father, the mother be required to maintain her head hair at a length of not less than four (4) centimetres;
(ii)each party or their legal representatives is at liberty to provide DTS with a copy of these orders;
(iii)the mother is to attend at an DTS Clinic or nominee and submit to the supervised collection of a hair sample;
(iv)the mother is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising DTS or nominee to provide the results of each test to the mother, the father and the grandmother upon receipt of such test results;
(v)the hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites and opioids and metabolites;
(vi)DTS 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 and DTS’ 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; and
(vii)the cost of the hair drug test is to be met by the mother;

(g)in the event of there being insufficient hair sample to cover the period of six months, such further tests will be completed until a cumulative period of six consecutive months is provided.

11.At or before the next scheduled appointment of the child with Dr E the father will seek advice and recommendations from F Health Service, his General Practitioner, and the child’s school as to an assessment of the child for additional play therapy to support his emotional development and provide the same for specific consideration of Dr E at the next appointment and the father must follow all recommendations of Dr E in this respect.
12.The grandmother be and is hereby required to notify the father within seven days in the event that she has a significant concern that the mother is using or has resumed use of illicit substances.
13.Unless otherwise agreed in writing, all changeovers for the grandmother’s and mother’s time that do not take place at school, shall occur at the father’s residence or such other venue as agreed between the parties in writing including text message.
14.Within 28 days of the date of these orders, the father must:
(a)take a copy of Dr C’s Psychiatric Assessment of him dated 10 June 2020 to his appointment with Ms G and follow all recommendations for treatment including attending an alternative treating mental health professional if so advised; and
(b)provide the name of any alternative treating mental health professional to the mother within seven days of making his first appointment.

15.The father must continue to attend upon the appointed mental health professional specified in order 14 until discharged by that practitioner.
16.For 24 hours immediately prior to the commencement of any time spent with the child and during all such time spent, the parties be restrained by injunction from ingesting, consuming or otherwise being under the influence of alcohol (with BAC >.05) or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for them by a registered medical practitioner and taken or used by them strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not include codeine) and taken or used by them strictly in accordance with the directions appearing on such medication.

17.Each party be and is hereby restrained from:
(a)discussing with the child or with any other person in the child’s presence, details of these proceedings;
(b)denigrating the other to the child or speaking with the child, or to any other person in the presence of the child, in derogatory terms about the other party or members of the other party’s household;
(c)assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or the child;
(d)using physical force to discipline the child; and
(e)exposing the child to family violence in any form but especially physical, verbal or emotional family violence.

18.The child’s school and other care providers be authorised to provide information and documentation about the child to both parents and the grandmother, including progress reports, newsletters and the like, and produce a copy of these orders as authority for the same.
19.The grandmother and the mother or their nominees be and are hereby restrained from taking the child to medical appointments unless such medical appointment is an emergency (and then the father shall be informed immediately) or they have the father’s consent, and he be at liberty to attend such appointment.
20.The father have leave forthwith to provide a copy of these orders to Dr E, F Health Service and any school attended by the child.
21.The parties attend family therapy at B Counselling, City H with Ms. J, if available, or other agreed therapist or organisation to address their co-carer relationship, to assist with promotion by each party of the child’s relationship with each other party, and for the purposes of such therapy;
(a)each party follow the directions of the therapist; and
(b)each party be at liberty to provide to the therapist with a copy of the Court’s reasons for judgment in this matter and a sealed copy of these orders.

22.As soon as practicable, the parties complete a Post Separation Parenting Course, and either the K Program or M Program Course and provide a Certificate of Completion to each other party.
23.The mother engage with a drug and alcohol counsellor and follow the directions of the counsellor as to her engagement with the counsellor and treatment, and the mother be at liberty to provide a copy of the report of Dr C in relation to her and a copy of these orders to the counsellor.
24.The parties have liberty to apply before the Honourable Justice McEvoy in the event that any party issues an application in a proceeding or an enforcement or contravention application in respect of the child within the next 12 months.
25.The appointment of the Independent Children’s Lawyer be discharged 12 months after the date of these orders.
AND IT IS NOTED THAT:
A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
B.It is the intention of the parties that pursuant to these orders the child will spend each Thursday after school with the grandmother and in the event that she seeks that he pursue some after school activity, she be permitted to enrol him and take him to the same at her own expense, if any, provided that the child agrees to the activity. In the event that the activity requires any further time commitment during times when the child is not in the care of the grandmother then she will seek the consent of the father before committing the child to same.
C.For the avoidance of doubt it is intended that in the event that the mother progresses to having unsupervised time with the child and having a weekend per month, this weekend will occur in place of one of the weekends that the child would otherwise be in the care of the grandmother but commence on the Friday after school to ensure that the child still spends time with the grandmother each Thursday (except during periods when Thursday time is suspended for the father’s holiday time).

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornish & Gilholm has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
.

REASONS FOR JUDGMENT
McEVOY J:
INTRODUCTION

The parties to these proceedings are the applicant father, Mr Cornish (“the father”), the respondent mother, Ms Gilholm (“the mother”), and the second respondent maternal grandmother, Ms Roberts (“the grandmother”). The proceedings concern parenting arrangements for the one child of the relationship between the parents, X born in 2014 (“the child”), who is currently 7 years old.
The matter has had an unfortunate history in both Federal and State jurisdiction, with State authorities initially removing the child from the mother and placing him in the care of the grandmother when he was not yet one year old. The child was then removed from the grandmother into the care of the father in May 2017, by which time he was almost three years old. Various applications in State courts have been made by the parties over the course of the last few years. The child has remained in the care of the father since he was removed from the grandmother in 2017. He has now been living with the father and having substantial time with the grandmother and some time with the mother for more than four years.
The key issues now in dispute are parental responsibility, with whom the child should live, and the spend-time arrangements which should be put in place. The father contends that the grandmother has engaged in a campaign of denigration of him to such an extent as to amount to emotional abuse of the child. He seeks sole parental responsibility for the child, subject to an obligation to consult with the mother and the grandmother on major long-term decisions. The father seeks orders that the child should continue to live with him and spend four nights per fortnight with the grandmother and have supervised time with the mother, moving to unsupervised time subject to the mother undergoing appropriate treatment including screening for the use of illicit substances. It is the father’s position that were the grandmother to have the primary care of the child there would be, in effect, an unacceptable risk of her continuing her emotional abuse of the child, the effect of which would be substantially to impair the development of an appropriate father/child relationship.
The grandmother and the mother, by contrast, contend that the father has neglected the child and that he is unsuitable to have the primary care of the child. The Independent Children’s Lawyer (“ICL”) and the grandmother seek that parental responsibility be shared equally between the father and the grandmother. They would have the child live with the grandmother and spend supervised time with the mother, with the child spending five nights each fortnight with the father. The orders proposed by the ICL and the grandmother contemplate that the mother’s time would only move to unsupervised once she undergoes appropriate treatment and drug screening. The mother supports the orders sought by the ICL and the grandmother, save that she seeks to share parental responsibility with the father and the grandmother. The mother does not seek, at the present time, to have the child live with her, although she contemplates and hopes that sometime in the future this may be possible.
The central issues for determination therefore are, first, whether it would be in the best interests of the child for parental responsibility to be shared between the father and the grandmother and perhaps even the mother, or solely exercised by the father; and secondly, with whom the child should live and otherwise spend time. These matters must be determined by reference to whether, as the father contends, the grandmother’s conduct has caused emotional harm to the child which would likely intensify if she were to have the primary care of the child. It is also necessary to consider whether, by reason of his alleged neglect of the child or otherwise, the father is unsuitable to have the primary care of the child.
It is, in one sense, unfortunate that the parties were not able to come to a negotiated outcome in relation to these matters, as it appeared at various times during the trial that they may be able to do. Whatever may be said about the deficiencies of the mother, the father, and the grandmother, and much has been said in this regard, it is clear that each of them care deeply about the child and want what they think is best for him. All of them have much to offer the child, and it is surely in his best interests that he continue to be engaged with and cared for by each of them in their own different ways.
Nonetheless, in the absence of agreement it is necessary for the Court to decide what arrangements are best for the ongoing care of the child, and to do so by reference to findings that are made on the evidence about the suitability of the parties to discharge particular roles. For the reasons that follow I have concluded that the grandmother’s conduct has caused emotional harm to the child. In all the circumstances I have formed the view that the father should have sole parental responsibility for the child, subject to an obligation to consult with the mother and the grandmother in relation to major long-term decisions. I have also concluded that the child should live with the father, but spend four nights per fortnight with the grandmother and supervised time with the mother. This is as the father proposes. The child’s time with the mother can move to unsupervised time, subject to her compliance with conditions. As will be seen, I have accepted that were the child to live with the grandmother she would be unlikely to promote him having a meaningful relationship with the father, and the father would likely become marginalised in the life of the child. I consider that for this reason, together with the fact that the child appears to be doing reasonably well in his father’s care and has been living with his father for several years, orders broadly in the terms sought by the father, together with some additional orders, should be made.
BACKGROUND
The child was conceived during a brief relationship between the mother and the father, but they separated prior to his birth. The State Department of Health and Human Services, now renamed the Department of Families, Fairness and Housing (“the Department”), became involved with the child in around February 2015 when the grandmother says that she contacted the Department because she was concerned for the mother and the child.[1] In or about March 2015,[2] an Interim Accommodation Order was made by the Children’s Court, placing the child in the grandmother’s care with neither parent assessed as suitable to care for the child. The father had limited involvement with the child in the first two years of his life, generally having contact with him only for a few hours each week, supervised by the grandmother.[3]
[1] Case outline of Ms Roberts filed 28 January 2021 (Grandmother’s case outline); Affidavit of Ms Roberts filed 29 December 2020, paragraph 12 (Grandmother’s trial affidavit).
[2] Note there is difference between the parties as to when this occurred: see Affidavit of Mr Cornish filed 18 December 2020, paragraph 12 (Father’s trial affidavit); cf Grandmother’s trial affidavit, paragraph 12-13; Affidavit of Ms Gilholm filed 5 January 2021, paragraph 10 (Mother’s trial affidavit); cf Grandmother’s case outline, p.2.
[3] Transcript 1 February 2021, p.22 lines 9-10; Father’s trial affidavit, paragraph 14; Grandmother’s trial affidavit, paragraphs 10 and 14; Mother’s trial affidavit, paragraphs 8-10.
On 27 July 2016 the Department endorsed a ‘non-reunification’ case plan to either parent.[4] This plan was supported by the mother and the grandmother, but the father disagreed with the plan and lodged an application for internal review on 8 August 2016.[5] The Department upheld the father’s appeal and the review provided for an assessment for the purpose of evaluating the viability of the child returning to his father’s care.[6] The mother and the grandmother note that the Department did not undertake any assessments in relation to the mother’s parenting capacity at this time.[7]
[4] Exhibit A5, ‘Summary of significant events from the Department of Health and Human Services addendum report dated 7 December 2016’ (Exhibit A5).
[5] Exhibit A5; see also Father’s trial affidavit, paragraph 15; Grandmother’s trial affidavit, paragraph 20; Mother’s trial affidavit, paragraph 10.
[6] Exhibit A5; Father’s trial affidavit, paragraph 15; Grandmother’s trial affidavit, paragraph 21.
[7] Mother’s trial affidavit, paragraphs 11 and 13; Grandmother’s trial affidavit, paragraph 20.
In late November 2016, the father engaged in a Parenting Assessment and Skills Development Service (PASDS) program which provided “an assessment of an infant’s overall safety, wellbeing and development together with an assessment of the parent’s capacity to protect and care for the infant”.[8] The PASDS report identified that the father had a close relationship with the child and demonstrated strengths in his parenting ability, including his supportive, educative and patient manner with the child.[9] The report also noted the father’s persistent anxiety during the assessment, and found that he required support, prompting and guidance in setting the child’s schedule and undertaking care and household tasks.
[8] Exhibit A1, ‘Bundle of letters and reports from Dr E commencing 29 March 2017’, p.6 (Exhibit A1).
[9] Exhibit A1, p.5-19.
Between 8 February 2017 and 8 March 2017 the Department facilitated contact between the father and the child each Wednesday, in addition to time the father was having with the child each Saturday.[10]
[10] Exhibit A7, ‘DHHS Supplementary Report dated 14 August 2017’ (Exhibit A7).
On 10 March 2017 a Care by Secretary Order was made by consent in the Children’s Court.[11] This order granted the Department sole parental responsibility for two years. It would appear that there was a notation included in the orders to the effect that the parties intended to make application to the Family Court of Australia for appropriate orders.[12] The child remained living with the grandmother at this time.
[11] Exhibit A7; Grandmother’s trial affidavit, paragraph 24 Mother’s trial affidavit, paragraph 10; Father’s trial affidavit, paragraph 18.
[12] Exhibit A7; Grandmother’s trial affidavit, paragraph 24; Mother’s trial affidavit, paragraph 10.
On or about 22 March 2017 the grandmother took the child to a paediatric appointment with a Dr E. The grandmother initiated the appointment following the identification in the PASDS report of potential developmental issues and an observed intermittent tremor in the child’s right hand/arm.[13] The child protection case worker arrived with the father, with the intention of joining the appointment, however it would seem that the grandmother was upset about this and it was resolved by Dr E that by reason of the grandmother’s agitated state it was preferable for the child that the worker and the father not participate in the appointment.[14] Dr E found no obvious developmental delays, but supported the grandmother’s plan for the child to engage in speech therapy.[15] She found no evidence of a tremor, but referred the child to a physiotherapist for further assessment.[16] The physiotherapist ultimately found that there was no particular problem with the child’s arm.[17]
[13] Transcript 4 February 2021, p.35 lines 5-6; Exhibit A1, p.1.
[14] Transcript 4 February 2021, p.34 lines 41-44; Exhibit A1, p.1; Exhibit A7.
[15] Exhibit A1, p.2-3.
[16] Exhibit A1, p.2-3.
[17] Exhibit A1, p.41.
On 25 March 2017 the grandmother refused to hand the child over to the father, indicating that she was concerned about the child’s health and would be taking him to the L Hospital (“L Hospital”) that day. Whether the grandmother’s concern was in relation to a suspected respiratory issue or “absent seizures” and whether this issue was manufactured by the grandmother is the subject of controversy between the parties.[18] In any event, a report from Dr E, the child’s paediatrician, dated 13 July 2017 notes that the neurology team at the L Hospital did not at this stage suspect that the child had a seizure disorder or another neurological problem, and in this context she would not pursue further investigation.[19]
[18] Transcript 4 February 2021, p.35-40.
[19] Exhibit A1, p.44.
On 13 April 2017 the grandmother applied for family law orders in the Magistrates Court. This application was opposed by the father and the Department. It seems that the Department sought further time for assessment of the viability of the child being placed in the care of the father.[20]
[20] Grandmother’s trial affidavit, paragraph 25; Father’s trial affidavit, paragraph 19; Exhibit A7.
On 3 May 2017 the child was removed from the grandmother’s care due to quality of care concerns held by the Department and placed in the care of the father. This change of residence occurred suddenly, following a dispute between the grandmother and child protection workers. At 6:30am that day two child protection workers attended the grandmother’s home to collect the child to take him to his father. The grandmother says that she was not aware that they would be attending as the child was sick (she says that the night before she had informed the Department of this and provided a medical certificate) and that “this was not the current arrangement for collection of [the child]”.[21] The grandmother says that she asked for the workers to return at a later stage to allow her time to get the child ready, but that this was refused and she was given only ten minutes to prepare the child.[22] The Department maintained that the grandmother used inappropriate language and was verbally aggressive to the workers during this exchange.[23]
[21] Grandmother’s trial affidavit, paragraph 27.
[22] Grandmother’s trial affidavit, paragraph 27.
[23] Grandmother’s trial affidavit, paragraph 28; Annexure to the grandmother’s trial affidavit, ‘Quality of Care Investigation Outcome letter dated 21 June 2017’.
The child was taken by the workers to the father and during the course of the day one of them raised a quality of care concern against the grandmother and it was decided by the Department that the child would not be returned to the grandmother’s care.[24] A letter dated 21 June 2017 from the Department to the grandmother outlines that the reported concerns related to allegations that the child was exposed to “verbal outbursts” and aggression by the grandmother to a child protection worker on 3 May 2017, obstruction by the grandmother of the Department’s case plan to assess the father, and exposure of the child to family violence between the mother and the grandmother.[25] This letter also stated that following an investigation, the Department had substantiated the allegation of emotional abuse of the child. The grandmother was extremely upset by the actions of the Department, and maintains that the removal of the child in this sudden manner had a significant traumatic effect on the child.[26]
[24] Grandmother’s trial affidavit, paragraph 27; Annexure to the grandmother’s trial affidavit, ‘Quality of Care Investigation Outcome letter dated 21 June 2017’.
[25] Annexure to the grandmother’s trial affidavit, ‘Quality of Care Investigation Outcome letter dated 21 June 2017’.
[26] Transcript 4 February 2021, p.102.
From this time the child resided with the father. He initially received intensive in-home support from N Family Services (NFS) for some eight weeks to assist him in learning to care for the child’s daily and longer term needs.[27] The mother and the grandmother commenced having time with the child supervised by Department.[28]
[27] Exhibit A6, ‘Families First report to Department of Health and Human Services Child Protection dated 11 August 2017’.
[28] Father’s trial affidavit, paragraph 21.
On 8 May 2017 the mother and the grandmother requested an internal review pursuant to s 331 of the Children Youth and Families Act2005 (Vic) of the decision to remove the child from the grandmother’s care, the placement of the child with the father, and the making of a non-reunification case plan for the child not to be returned to the grandmother’s care.[29] On 26 June 2017 the grandmother lodged a further review of the quality of care decision made following the 3 May 2017 incident.[30] These reviews concluded that the decision made to substantiate emotional harm should be overturned,[31] that the decision to remove the child from the grandmother’s care was disproportionate to the event that occurred on 3 May 2017, and that the mother should have an opportunity, like the father, to have her ability to care for the child assessed.[32] Nonetheless, the review found that the child’s needs were being met by the father, and that there were no concerns for the child in the father’s care.[33] Although the result of this review was to overturn the decisions of the Department on 3 May 2017, it did not result in the child being returned to the grandmother’s care. The child remained in the father’s primary care and it was noted that the State child protection legislative regime mandated a preference that children should be supported to return to the care of a parent where that was possible.[34]
[29] Grandmother’s trial affidavit, paragraph 29; Annexure to the grandmother’s trial affidavit, ‘Letter from Ms O dated 23 June 2021’.
[30] Grandmother’s trial affidavit, paragraph 29; Annexure to the grandmother’s trial affidavit, ‘Letter from Ms O dated 7 September 2017’.
[31] Annexure to the grandmother’s trial affidavit, ‘Letter from Ms O dated 7 September 2017’.
[32] Annexure to the grandmother’s trial affidavit, ‘Letter from Ms O dated 23 June 2021’.
[33] Annexure to the grandmother’s trial affidavit, ‘Letter from Ms O dated 23 June 2021’.
[34] Annexures to the grandmother’s trial affidavit, ‘Letter from Ms O dated 23 June 2021’ and ‘Letter from Ms O dated 7 September 2021’.
On 22 June 2017 the mother and the grandmother had their first unsupervised time with the child since he was removed from the grandmother’s care on 3 May 2017. There is significant divergence in the parties’ understanding of what occurred on this occasion and in the following days.[35] The mother and grandmother maintain that when changing the child’s nappy they discovered a wound on the child’s buttocks which caused them concern.[36] The father says that he informed the mother that the child had nappy rash at changeover that morning.[37] The mother contacted a worker from the Department who asked if they had considered taking the child to the doctor.[38] The mother and the grandmother took the child to a local general practitioner who was concerned the injury may have been non-accidental and referred the parties to the L Hospital for further investigation.[39] The child was subsequently diagnosed with dermatitis and nappy rash and discharged, with instructions to apply barrier cream to the sore.[40] Despite this diagnosis, and advice from the Department that the child should be returned to the father, the mother and the grandmother refused to return the child, maintaining that they still “had concerns”.[41] The child was placed in the interim care of the maternal aunt, and the child was eventually returned to the father on 28 June 2017.[42]
[35] See Father’s trial affidavit, paragraphs 25-31; Grandmother’s trial affidavit, paragraphs 34-53; Mother’s trial affidavit, paragraph 17; See also Transcript 4 February 2021, p.14- 21, p.27 – 31.
[36] Grandmother’s trial affidavit, paragraph 35.
[37] Transcript 4 February 2021, p.14 lines 43-45.
[38] Grandmother’s trial affidavit, paragraph 35; Annexure to the grandmother’s trial affidavit, ‘Copies of Text Messages between Ms O Principal Child Protection Practitioner and Ms Gilholm dated 22 June 2017’.
[39] Grandmother’s trial affidavit, paragraph 36; Mother’s trial affidavit, paragraph 17.
[40] Father’s trial affidavit, paragraph 26, Transcript 4 February 2021, p.15 line 42 – p.16 line 17.
[41] Transcript 4 February 2021, p.21 lines 4-21.
[42] Father’s trial affidavit, paragraphs 29-30; Grandmother’s trial affidavit, paragraphs 40 and 43; Mother’s trial affidavit, paragraph 17.

On 15 September 2017 the Secretary Care Order was converted to a Family Preservation Order, the effect of which was that the Department no longer had parental responsibility for the child but would continue to supervise the care of the child who was still residing with the father.
The mother and the grandmother continued to have supervised time with the child. During two supervised access visits on 23 November and 28 December 2017, the mother and the grandmother expressed concern over the state of the child’s feet, saying that they were dirty, inflamed and that the child complained that they were sore. They alleged that this was further evidence of neglect. The mother was prevented from having time for a period of four months following an incident during the 28 December access visit where she exhibited “heightened behaviour” in front of the child after becoming upset by what she regarded as the state of the child’s hygiene, particularly his feet, and her concern that the father was not looking after the child properly.[43] There is some suggestion that the Department may have regarded the state of the child’s feet as unacceptable at this time.[44]
[43] Grandmother’s trial affidavit, paragraph 48; Mother’s trial affidavit, paragraph 17; Annexure to the Grandmother’s trial affidavit, ‘DHHS and X (Unreported, Children’s Court of Victoria, Magistrate Q, […] 2019)’, paragraphs 29-31 (DHHS and X).
[44] Annexure to the Grandmother’s trial affidavit, DHHS and X, paragraph 86.
The Department arranged for Dr P, a clinical psychologist, to undertake a comprehensive psychological assessment of the parties. The report, dated 8 January 2018, supported the child remaining in the father’s care. It will be necessary to return to the subject of Dr P’s report.
The mother’s second son, who was the product of another relationship (‘the second son’), was born in 2018. The Department was involved with the second son and the mother for the first 12 months of his life, but have since withdrawn as there were apparently no further protective concerns.[45]
[45] Mother’s trial affidavit, paragraphs 6-7.
There was a final contested hearing in the Children’s Court on 2 September 2019, which ran over four days. The father sought a short extension of the Family Preservation Order to allow him to seek orders in the Federal Circuit Court of Australia or the Family Court of Australia, and the mother sought that the child be placed in her care. The Department sought to withdraw. On 5 September 2019 the magistrate made orders extending the Family Preservation Order for a period of two and a half months and providing for unsupervised and increased time between the child and the mother and the grandmother.
HISTORY OF PROCEEDINGS
Thereafter the father commenced proceedings in the Magistrates Court in City H and on 31 October 2019 it was ordered that the matter be transferred to the Federal Circuit Court of Australia. The father filed an initiating application in that Court on 6 November 2019. A Judge of the Federal Circuit Court made orders on 18 November 2019 listing the matter for mention on 21 November 2019, and that the orders of the Children’s Court remain in place until that date.
On 21 November 2019 further orders were made in the Federal Circuit Court joining the grandmother to the proceedings, for the appointment of an ICL, requesting that the Department intervene in the proceedings, and orders in the terms of a consent minute. The minute provided that the child live with the father, that the child spend time with the mother every Thursday for 4 hours and overnight every Saturday, that the parties attend upon a psychiatrist for assessment, restraints on the parties consuming drugs 24 hours prior to spending time with the child, mutual non-denigration orders, authorisation for the child’s school or other care providers to provide information to both parents, a restraint on the mother and grandmother from taking the child to medical appointments, and orders for Ms R to undertake a family report.
On 10 February 2020 orders were made transferring the proceedings to the Family Court of Australia. On 28 September 2020 the matter was listed for a 5 day final hearing commencing in early 2021, and for the filing of trial material. Interim orders were also made by consent providing for the child to continue to live with the father, for the child to spend time with the grandmother on three out of every four weekends and on special days, for two week-long blocks during the Christmas school holidays, and as otherwise agreed between the parties. The orders also provided, inter alia, that the child only spend time with the mother during the grandmother’s time and that that time be supervised, requiring that the mother undertake drug testing at the request of the ICL, authorising the child’s school and other care providers to provide both the parents and the grandmother with documentation including progress reports, and requiring that the parties attend a family dispute resolution conference.
The parties were not able to come to an agreed position, and the trial commenced on 1 February 2021. It ultimately ran for six days, not concluding until 26 March 2021 by reason of availability issues. Although the mother was present for most of the trial, she played a limited role. The father and the grandmother were the principal protagonists, with certain interventions by the ICL. Both the mother and the grandmother were self-represented.
THE PARTIES’ POSITIONS
It is the father’s case that immediately following the child’s birth the grandmother attempted to gate-keep the child’s time with him, and that from the outset she has been determined to have the primary care of the child. He says that the grandmother regards him as unsuitable and that she has always been, and remains, adamantly opposed to him having the primary care of the child. It is the father’s position that the grandmother has engaged in a campaign of obstruction and denigration of him which has been designed to impair the development of an appropriate father/child relationship, and which up until May 2017 prevented him having significant time with the child. This campaign, the father contends, has amounted to emotional abuse of the child. The father maintains that if the grandmother were to have the primary residence of the child, the child would continue to be subject to emotional abuse of this kind in as much as the grandmother would attempt to minimise the father’s role as a parent and the child would be denied the opportunity to have a meaningful relationship with his father.
The father says that there have never been any protective concerns raised by the Department about the child in his care. It is his position that since the child was removed from the grandmother and came into his care in May 2017, the child has been doing well and meeting his developmental milestones. Indeed, the father submits that on the available evidence the child is flourishing. The father therefore contends that there should be a continuation of what is effectively the status quo. He accepts that the child should spend significant time with the grandmother – both to promote his relationship with her, but also to ensure that the child can have supervised time with the mother.
The father also says that it would not be appropriate for the grandmother and the mother to share parental responsibility with him. He wishes the grandmother to play an important role in the child’s life, but as a grandparent, not as some form of surrogate parent. He is fully prepared to consult with her and the mother in relation to major long term decisions, and even to engage in formal dispute resolution procedures with the mother and the grandmother should that be necessary in the exercise of his sole parental responsibility. The father submits that the orders he seeks would provide stability for the child, recognise the significance of his position as the child’s father, and most importantly enable the child to have a functioning relationship with him, his paternal family, his grandmother, and his mother – something which the orders the ICL, the grandmother, and the mother propose would be unlikely to promote.
During the course of the trial the father revised the orders which he sought to have the Court make. On the final day he proposed a regime the child would continue to live with him but spend time with the grandmother four nights each fortnight, on special occasions, and for a seven day period in each school holidays. He proposes that the child have supervised time with the mother during the time that he will be with the grandmother, and that time with the mother would only progress to unsupervised time following the mother’s compliance with stipulated drug testing and the provision of proof to the father that she has engaged with a psychologist. The father’s orders contemplate that once these requirements have been satisfied unsupervised time with the mother could commence, but that it would be drawn from the time allocated to the grandmother.
The father’s proposed orders also include a requirement that the grandmother alert him to any concern she has that the mother is using illicit substances, that he continue to engage with a mental health professional, and that he consult with the child’s paediatrician about the need for the child to engage in additional play therapy. They impose restraints on the mother and the grandmother taking the child to medical appointments, a prohibition on the parties being under the influence of any legal or illegal drug or substance, as well as mutual non-denigration orders.
The grandmother’s case, by contrast, in which the mother broadly joins, remains that the father is unsuitable to be the child’s primary carer and that it would be preferable for her to have that role. She points to what she describes as the father’s mental health issues, especially anxiety and lack of confidence and perhaps also delusional thoughts, and she contends that there is a risk that a serious mental health issue might arise. She points to the fact that the father does not live independently, and contends that he has not really been tested as a parent. She questions his cognitive skills, whether he has sufficient life skills, his maintenance of proper hygiene, and whether he has sufficient financial literacy and discipline to provide for the child’s needs. It should be noted that it is no part of the grandmother’s case or the mother’s case that the child is being or might be subject to abuse in the care of his father.
By the final day of the hearing the grandmother indicated that she supported the orders which by that time the ICL had formulated. Although the mother did not attend the final day of the hearing, both the grandmother and the ICL informed the Court that the mother supported the orders proposed by the ICL, save that she contended that she should share in having equal parental responsibility for the child with the father and the grandmother. Their complaint is that the child is the subject of neglect in the care of his father.
The ICL’s proposed orders provided that parental responsibility be shared equally by the father and the grandmother. Insofar as residence is concerned, the ICL proposed that the child live with the grandmother and spend time with the father five nights a fortnight, half the school holidays, and on special occasions. As with the orders sought by the father, the ICL’s orders provide that the child’s time with the mother will be supervised until the mother returns negative drug tests for six months, and evidence that she has engaged with mental health professionals. Amongst other things they require that the child attend play therapy, that the parties attend family therapy and other parenting courses, that the mother attend and follow the directions of a drug and alcohol counsellor and psychologist, and that the father also attend psychological counselling.
For completeness the orders sought by the ICL and the grandmother, with which the mother substantially joins, as well as the form of the orders proposed by the father, are set out in the appendix to this judgment.
MATERIAL RELIED UPON
The father relied upon the following documents:
(a)Proposed orders provided to the Court on 26 March 2021;
(b)Case outline filed 28 January 2021;
(c)Affidavits of Dr C affirmed 4 August 2020 annexing Psychiatric Assessments of:
(i)the grandmother dated 9 June 2020;
(ii)the father dated 10 June 2020; and
(iii)the mother dated 15 July 2020;
(d)Affidavit of the father filed 18 December 2020 (trial affidavit) and annexure being an a National Disability Insurance Scheme (NDIS) Plan Review for the child;
(e)Affidavit of the father filed 13 January 2021 (reply affidavit);
(f)Affidavit of Dr P filed 13 January 2021 annexing psychological assessment prepared for the previous Children’s Court proceedings and, apparently, for the purposes of an appeal by the mother and the grandmother to the Victorian Civil and Administrative Tribunal (VCAT); and
(g)tender documents including medical documents in relation to the child, a report from the child’s school, and notes and reports from the Department.
The grandmother relied upon the following documents:
(a)The orders proposed by the ICL and provided to the Court on 26 March 2021;
(b)Case outline filed 28 January 2021;
(c)Affidavit of Ms R affirmed 2 February 2020 annexing the Family Report dated 30 January 2020;
(d)Dr C’s assessments of the parties; and
(e)Affidavit of the grandmother filed 29 December 2020 (trial affidavit) and annexures including medical documents, material from the Department, photographs of the child’s feet and the Children’s Court Judgment dated 5 September 2019 (that judgment was admitted into evidence by the consent of all parties).
The mother relied upon the same documents as the grandmother, as well as her case outline filed 28 January 2021 and her trial affidavit filed 5 January 2021.
The ICL relied upon the following documents:
(a)the proposed orders provided to the Court on 26 March 2021;
(b)Case outline filed 18 January 2021;
(c)the Family Report of Ms R dated 30 January 2020; and
(d)Dr C’s assessments of the parties.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
His Lordship’s observations apply with particular force in the present proceedings.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, repeated derogatory taunts, and preventing a family member from making or keeping connections with his or her family, friends, or culture. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order. Section 4AB(3) provides that for the purposes of the Act a child will be exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597, at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 (“Donnell & Dovey”) the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404 (“Mulvany & Lane”), May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)

As the High Court emphasised in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted: see the discussion in Hardie & Capris [2010] FamCA 1046 at [60]-[61] (Murphy J).
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue.
The Significance of Parenthood
Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. It is well settled that parenthood is centrally important to a decision about the best interests of the child: Yamada & Cain [2013] FamCAFC 64 at [19]. However the fact of parenthood does not establish a presumption or generate a preferred position in favour of the natural parent as between the natural parent and a non-parent: see Rice & Miller (1993) 16 FamLR 970 at 975 (Ellis, Lindenmayer and Bell J); Valentine & Lacerra and Anor (2013) FLC 93-539 at [43] (Faulks DCJ, Coleman and Strickland JJ) (“Valentine & Lacerra”). As the Full Court of the Family Court said in Valentine & Lacerra, at [43]:
The plain fact of the matter is that there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
It may thus be accepted that where a non-parent seeks parenting orders the Court will approach the matter by reference to the objects and principles enumerated in s 60B of the Act, with the best interests of the child as the paramount consideration pursuant to s 60CA of the Act. The primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) must be taken into account in determining what is in the best interests of the child.
Obviously enough however, s 60CC(2)(a) refers specifically to parents, and most of the additional considerations in s 60CC(3) mention parents also. There may thus be something in the suggestion that the true strength of the ‘parent factor’ in decision making under the Act can sometimes be obscured by the assertion that there is no presumption in favour of a natural parent: see Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2^nd edition, 2015), 340 and Mulvany & Lane, [14]-[15] (Finn J).
In Aldridge & Keaton (2009) FLC 93-421, at [79] (Bryant CJ, Boland and Crisford JJ) (“Aldridge & Keaton”) the Full Court emphasised the need to consider all of the relevant s.60CC best interest factors in dealing with any parenting application by a person interested in the care, welfare or development of a child. Insofar as an applicant for a parenting order is not the parent of the child, this can be done by reference to s 60CC(3)(m), which enables the Court to consider any other relevant fact or circumstance: Aldridge & Keaton, at [112], referring to Potts & Bims and Ors [2007] FamCA 394, at [8] (“Potts & Bims”); Valentine & Lacerra, at [54]. Nonetheless, given that s 60CC(2)(a) refers only to the benefit of a child having a relationship with both parents it can have no application to a person who is not a parent: Burton & Churchin (2013) FLC 93-561, at [51] (Finn, Strickland and Loughnan JJ); see also Donnell & Dovey. Also, Aldridge & Keaton accepted (at [112]) the observation in Potts & Bims that the s 61DA presumption of equal shared parental responsibility does not apply to non-parents, and subsequently the Court does not have to consider the s 65DAA time considerations.
On the subject of the parenthood factor more generally, and not irrelevantly to the present case, the Full Court of the Family Court observed in D & F [2001] FamCA 382 at [56] (Ellis, Kay and Warnick JJ):
The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
Ultimately the broad inquiry as to best interests contemplated by s 60CC of the Act, in the context of the other provisions of Part VII, “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders”: Yamada & Cain [2013] FamCAFC 64 at [1] and [27] (Thackray, Murphy and Macmillan JJ). It is through this prism that the respective applications for parenting orders in the present case must be determined.
Principles in Parenting Proceedings Involving Allegations of Abuse
It is well settled that the central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made: M v M (1988) 166 CLR 69 at 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) (“M v M”); Donaghey & Donaghey (2011) 45 Fam LR 183 at [22] (Murphy J).
As the High Court observed in M v M (1988) 166 CLR 69 at 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. In Keane & Keane [2020] FamCA 99 at [63]-[78] (“Keane & Keane”) I analysed the existing state of the authorities and how the Court must discharge its obligation to assess the relevant evidence in order to determine whether there is an unacceptable risk of harm to the child: see also Blakey & Blakey [2020] FamCA 647 at [96] (Benjamin J); Blann & Kenny [2021] FamCA 322 at [22] (Macmillan J); and Blann & Kenny [2021] FamCAFC 161 at [83]-[86], [85] (Watts, Austin & Tree JJ). The principles I set out in Keane & Keane are of application in this case also. It is important to note that the approach to be adopted applies to all allegations of risk of harm, including family violence of the kind which the father alleges that the grandmother has perpetrated against the child in this case and the neglect for which the grandmother and the mother say the father has been responsible. It is not confined to allegations of risk by reason of sexual abuse (see A v A (1998) FLC 92-800 at 84,994-84,995 (Fogarty, Kay and Brown JJ).
Axiomatically, the fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and referred to in M v M at 76-77 as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
The Family Court has frequently had occasion to consider cases where the alleged abuse is emotional and psychological in the nature of the alienation of one parent from the child. Although the nature of the emotional abuse was far more extreme than is alleged by the father against the grandmother in the present case, in Guerra & Guerra [2021] FedCFamC1F 73 at [88]-[91] I surveyed a series of authorities where the mother had made unfounded allegations of sexual abuse by the father thereby severely circumscribing the father’s time with the child and the Court altered the parenting arrangements and placed the child in the sole care of the father: see Re David (1997) 22 Fam LR 489, 506-507 (Nicholson CJ, Lindenmayer and Buckley JJ); Donaldson & Ryder [2017] FamCA 920 at [153]-[155] (Carew J); Ryder & Donaldson [2018] FamCAFC 260 at [17], [20] (Ryan, Aldridge and Baumann JJ) (“Ryder & Donaldson”).
In Ryder & Donaldson, the Full Court emphasised that the primary judge is, in effect, required to undertake a risk assessment, and to balance the risk to a child’s relationship with one parent if s/he remained in the care of the alienating parent, compared with the situation if there were to be a change of residence. If the facts are such that there would be an unacceptable risk of emotional harm to the child if s/he were to continue to live with the parent who was alienating him or her from the other parent, then this risk may require a change of residence to enable the development of a meaningful relationship with both parents, as opposed to the continuation of the status quo where the child could not have a meaningful relationship with the other parent. See also, in a similar vein, Milton & Milton [2021] FamCAFC 64 at [82]-[106] (Strickland, Aldridge and Kent JJ); Cimorelli & Wenlack [2020] FamCAFC 58 at [54] (Ainslie-Wallace, Kent and Austin JJ); Rafferty & Spencer (2016) FLC 93-710 at [11]-[12] (Thackray, Ainslie-Wallace and Kent JJ).
Although the nature of the underlying conduct in issue in the present case is different to those cases where the mother has alleged the sexual abuse of the child by the father, the risk assessment to be undertaken proceeds in the same way. On the one hand there is the question of the emotional and psychological risk to the child of the potential damage and perhaps loss of his relationship with his father if he were to live primarily with the grandmother and be subjected to the campaign of obstruction and denigration of the father and her narrative of him as someone who is incapable of caring for the child which is alleged. On the other hand there is the question of the risk of neglect, if any, that the child would be exposed to if he were to continue to live with the father, as he has since May 2017.
In order to undertake this risk assessment it is necessary to assess the relevant facts – here the allegations of emotional and psychological abuse of the child which the father makes against the grandmother, together with the grandmother’s denials and her version of events more generally, as well as the allegations of neglect pressed by the mother and the grandmother and the father’s denials – and to conduct the fact finding exercise by reference to the civil standards of proof. If the parties’ denials of the allegations made against them are to be rejected, there must be reasons given for doing so: Napier v Hepburn (2006) FLC 93-303 at [79] (Bryant CJ and Kay J, with Warnick J agreeing at [113]); In the Marriage of Blanch (1999) FLC 92-837 at 84,745 (Lindenmeyer J). The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Part VII of the Act.
THE EVIDENCE
Each of the parties gave evidence by way of affidavit and was cross examined. In addition to his trial affidavit filed on 18 December 2020 and his affidavit in reply filed 13 January 2021, the father gave evidence in chief and was cross examined on 1 and 2 February 2021 by the grandmother, the mother and counsel for the ICL. Although the father was somewhat nervous when giving his evidence, and at times seemed rather vague, he impressed as generally honest and mild mannered. He was also very conflict avoidant. It was clear that he had learnt to navigate around the mother’s outbursts and manage them, and he appeared to be respectful of her and of her importance in the child’s life as his mother. It was equally clear that the father had struggled to cope with the grandmother’s forceful personality, and that where possible he would avoid going head to head with her; no doubt in the knowledge that he would struggle to prevail in any contest. Nonetheless, the father was respectful of the child’s relationship with the grandmother, and clearly contemplated (and desired) that she remain an important part of the child’s life. Although understated in his presentation, the father demonstrated in giving his evidence and in his approach to the proceedings more generally that he was committed to the child and desirous of doing his best to parent the child as well as he could. Ultimately I regarded the father as a witness of truth, and I have generally been prepared to accept his evidence in relation to particular matters.
In addition to her trial affidavit filed on 29 December 2020, the grandmother gave evidence in chief and was cross examined on 4 February 2021 by counsel for the father and counsel for the ICL. It must be said that the grandmother was a formidable person. In conducting her own case she was required to make submissions, cross examine witnesses, including expert witnesses, make objections to evidence, and engage with counsel for the father and counsel for the ICL. It seldom seemed that the grandmother was intimidated by any of this. She was resolute in her position that neither her daughter nor the father had the wherewithal to have the primary care of their child, and that his best interests demanded that he live with her. In one sense it is no doubt to the grandmother’s credit that she has been as committed to the care of the child as she has been, both prior to May 2017 when she was his principal carer, and subsequently when she has continued to play a significant and doubtless important role in caring for him in the face of a difficult dynamic.
Having acknowledged all of this however, it must also be said that the grandmother was a problematic witness and that she disclosed a troubling attitude towards the father. On the whole it was apparent that she had lost her objectivity, and that she remained extremely affronted by the fact that the Department had removed the child from her in May 2017. My impression was that the grandmother viewed much of the case through the prism of what she regarded as this injustice, and that her desire to right this wrong and assuage this indignity was an important motivating force. Her answers to questions in cross examination tended to be fashioned in a way that she thought would best suit her case, and not infrequently she would parry questions put to her by counsel for the father with some alternate proposition based on her own conception of the situation. Further, an enduring feature of the grandmother’s presentation was that she lacked insight. She was unable to identify her own shortcomings, particularly concerning the impact that her own attitude to the father and actions may have had on the child, and she seemed substantially incapable of moving away from her initial impressions of the father as inadequate and recognising the efforts that he has made over the past four years as the child’s primary carer. While it may be accepted that the grandmother genuinely wants what she thinks is best for the child, I have formed the view that she is incapable of acknowledging those abilities that the father does have, and his importance in the life of the child. For these reasons I have, on the whole, taken the view that the grandmother’s evidence in relation to contentious matters needs to be approached with caution, and on the basis of her own inability to appreciate a perspective other than her own. Generally where her evidence in relation to particular matters contradicts the father’s and is not supported by contemporaneous documents, I have preferred the evidence of the father.
In addition to her trial affidavit filed on 4 January 2021, the mother gave evidence in chief and was cross examined on 17 February 2021 by counsel for the father and counsel for the ICL. The mother is clearly a troubled young woman. She demonstrated significant difficulties with emotional regulation during the trial, and her presentation was marked by outbursts at various times when she did not approve of something that was said. On more than one occasion she was not able to remain in the court room, causing the suspension of proceedings, and she seemed disinclined or unable to participate fully and to engage with the important matters which were the subject of dispute. One day she slept in and was unable to give evidence when scheduled, she sometimes did not have relevant documents to hand, and she did not attend at all on the final day of the trial. Although she would sometimes answer questions that were put to her in cross examination, she was often resistant to doing so. She was frequently aggressive when responding to questions, and she had a tendency to quarrel with the premise of particular questions. Sometimes she would refuse to answer questions at all, most noticeably in relation to her drug use. As with the grandmother, I have formed the view that the mother lacks insight in certain respects, and that her evidence needs to be approached with some caution absent corroborating documents. Where it is at odds with the father’s evidence and is not supported by contemporaneous documents I have preferred the evidence of the father. Against the background of these observations I turn to consider the evidence of each of the parties, and the experts.
The Father’s Evidence

Nor do I consider it desirable that the grandmother share parental responsibility with the father. Such is the force of her personality that I do not consider she could share parental responsibility with him in a responsible and cooperative manner, and it would be inevitable that further conflict would arise if he did not agree with her views. Accordingly the father should have sole parental responsibility. However, as he proposes, his sole parental responsibility should be subject to an obligation to consult the mother and the grandmother in relation to major long term decisions and participate in family dispute resolution as appropriate. Such an approach will ensure that he is able to have the benefit of the views of the mother and the grandmother without being bound to adopt them in the final analysis. On the basis of his conduct to date I am confident that the father will participate faithfully in an arrangement of this kind, and that he will give due deference to the views of the mother and the grandmother. It is to be hoped that the grandmother and the mother will participate responsibly in this regime.
It should be observed that my decision that the father should retain the primary care of the child and have sole parental responsibility subject to the obligation to consult is not made only by reason of the conduct of the grandmother. Independently of this I am satisfied that the father has not neglected the child as the grandmother and the mother have alleged and that it would be preferable for the child to live with the father and for him to have sole parental responsibility. In this regard I accept that despite some of the challenges the father has faced, he is prepared to seek and act on advice where necessary and that he has the support of his own family. As has been mentioned, I accept also that despite the way the maternal family have treated the father he has remained prepared to promote the child’s relationship with his mother and his grandmother, and that he has dealt sensitively with the mother’s problems of addiction and emotional dysregulation. The father has demonstrated that he can provide stability and support for the child, and this is reflected in his school reports, his paediatric reports, and the reports of F Health Service. The father is also prepared to have the child continue to engage in play therapy, as the grandmother and the mother seek, and he proposes orders to accommodate this. Finally, any residual concerns in relation to the father’s capacity must acknowledge that after extensive and detailed assessments of the parties, both Dr P and Dr C incline to the view that the child should remain in the primary care of his father.
Insofar as the grandmother and the ICL have contended that the father represents a risk to the child by reason of his mental health problems, I accept the father’s submission that this is substantially without foundation. Dr C did not express the view that the father’s mental health position prevented him from caring for the child and, properly considered, Ms R’s report did not say this either. I accept that to the extent that Ms R raised concerns about the father’s mental health in cross examination, she did so based on a misunderstanding of Dr C’s report. Dr P was not unduly concerned about the father’s mental health either. The reality, of course, is that the father has been caring for the child for more than four years. If there were particular problems in this regard they would surely have come to light by now.
Nor do I harbour particular concerns about the child’s living conditions. The Department has raised no concerns about these, and there is of course nothing in the Act that requires children to have their own bedroom or not to live in a multi-generational, blended family. I regard the concerns expressed by the grandmother, the mother, and the ICL about this as misplaced. Whilst it is true that the father does lack financial security, this is true of many parents and is hardly to be regarded as a disabling factor for parenting a child. There is, in any event, no evidence that the father has failed to provide appropriately for the child. The grandmother has generously maintained that she would continue to support the child in various ways even if he did not live primarily with her, and she is to be commended for this. The father’s evidence is that he will do his best to accommodate any extra-curricular activities that the grandmother would be prepared to encourage.
On the subject of the grandmother’s generosity, it remains to make one further observation. Despite the findings I have made about the grandmother’s conduct causing emotional harm to the child, I have accepted that she did not set out to achieve that result. Her conduct, although unsatisfactory at times and lacking in insight, has to some degree been unwitting. She has no doubt felt that her actions were in the child’s best interests and were justified on that basis. As matters have transpired she has not achieved her objective of securing for herself the primary care of the child. This is not to say, however, that her contribution to the child’s life cannot still be very significant indeed. Indeed, the child’s situation is such that he needs her ongoing love, care and support as much as he needs the care, love and support of his parents. In this respect the observations of Dr P are to be emphasised. What is critical now is that the parties cooperate in the care of the child. Complaints about one another and disputes must be set to one side. The grandmother and the mother must come to appreciate that supporting the child in his present circumstances will lead to a more relaxed relationship with the father and better outcomes for the child. Dr P, of course, was apprehensive about whether the grandmother and the mother could manage to do this. Now is the time for them to prove her wrong.
Other Orders
As has been mentioned, the father is prepared to accommodate the desire of the grandmother and the mother that the child have additional play therapy if that is thought appropriate by the relevant health professionals. There will be an order to reflect this obligation.
There will also be an order that changeovers which do not take place at school occur at the father’s residence or as otherwise agreed to reflect the reality that the father is unable to drive and lives some distance from the grandmother. The grandmother accepted that whatever happened she would be prepared to continue to do the necessary driving for changeovers. I note, however, that in all the circumstances the sooner the father learns to drive and can assist in transporting the child from one place to another the better. It is not reasonable that he continue to rely on the grandmother in this respect indefinitely.
There will also be orders requiring the father to take appropriate steps to attend to his own mental health by reference to Dr C’s observations in this regard, and keep the mother informed about this. I am satisfied that this is appropriate, and the father agrees to do this.
Having regard, in particular, to the evidence about the mother’s addictions, I am satisfied that it would be appropriate that all parties be restrained by injunction from ingesting, consuming or otherwise being under the influence of alcohol (with BAC >.05) or any legal or illegal substance unless as medically required for 24 hours immediately prior to the commencement of time with the child. In all the circumstances I accept that it is necessary that all parties be restrained from discussing the proceedings with the child, denigrating one another to the child, in any way interfering with each other or the child, using physical force to discipline the child, and exposing the child to family violence in any form. Having regard to the behaviour of the grandmother and the mother which has been the subject of evidence in the proceedings, they should be restrained from taking the child to medical appointments other than in an emergency or with the father’s consent.
There should also be orders authorising the child’s school and other care providers to provide all relevant information about the child to both parents and the grandmother, and the father should be authorised to provide a copy of the Court’s orders to the child’s paediatrician, F Health Service and any school the child attends.
I note, finally, orders 17, 18, and 20 as proposed by the ICL and which the grandmother and the mother support. They would provide for the parties to attend family therapy with B Counselling to address their co-carer relationship and the promotion of the child’s relationship with each other, that they each complete appropriate post separation parenting and bringing up children courses, and that the mother engage with a drug and alcohol counsellor and follow the directions of such a person. For reasons which will be apparent from the observations I have made in these reasons and the conclusions I have formed, I see considerable merit in these proposals. That the grandmother and the mother support them, and I do not understand the father to oppose them, provides a proper basis for orders to be made broadly in these terms. However insofar as the order concerning the parties’ engagement with B Counselling is concerned, I do not consider it to be appropriate for Ms R’s report to be provided to the relevant therapist. As well as the Court’s orders the parties should be at liberty to provide the therapist with these reasons for judgment.
As will be apparent, I accept the father’s submissions that it would not be appropriate for him to be required to complete the Caring Dads course (order 19 of the ICL’s proposed orders).
As the ICL also proposes, the appointment of the ICL should be discharged 12 months after the date of these orders. There will also be an order that if any further applications are made by the parties in the course of the next 12 months that they be listed before me, if practicable.
It remains only to thank counsel for the father and the ICL for their assistance in what was a complicated situation. The final orders will be as set out at the commencement of these reasons.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.
Associate:

Dated: 19 November 2021
ANNEXURE 1
Orders sought by the father (as sent to the Court on 26 March 2021):
IT IS ORDERED THAT:
1.In the exercise of parental responsibility decisions for the child X born … 2014 the following provisions shall apply:
a.       upon a parental responsibility decision arising, the father shall provide notice to the Mother and the Maternal Grandmother of the issue and his preliminary view;
b.      each of the mother and the maternal grandmother will then provide any observations, views or opinions they have in relation to the issue to the father in writing within 7 days;
c.       the father will then seek agreement on any areas possible taking into account the views of the mother and the Maternal grandmother;
d.      in the event that there is no agreement the parties will seek first to attend upon Family Dispute Resolution (at B Counselling or similar) and;
e.        in default of agreement the father shall make the final decision.
f.       in cases of emergency the the above procedure a-c will be followed to the extent possible with the timings being shortened as appropriate to the circumstances and the shall make the final decision taking into account the views of the other parties.
2.That X live with the father.
3.That X spend time with and communicate with the second respondent maternal grandmother as follows:
a.In an alternating two week pattern such that :
i.In week 1 from the conclusion of school on Thursday (or 4.00 pm if a non-school day) until Sunday between 12.00-4.00 pm as agreed (depending on the MGM’s work schedule; subject to the provisions of order 4b below;
ii.in week 2 from Thursday after school (or 4pm if a non-school day) until the commencement of school on Friday (or 9am if a non-school day);

b.for at least one call by FaceTime or telephone each week as agreed between the father and maternal grandmother;
c.in the event that X is not otherwise spending time with the Mother or Maternal Grandmother for Mother’s Day; from after school on Friday before Mother’s day until the commencement of school after Mother’s Day;
d.for Christmas in 2021 and each odd numbered year thereafter from 3pm Christmas Eve until 3pm Christmas Day and in 2022 and each even numbered year thereafter from from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;
e.for a 7 night period in the Christmas School Holidays as agreed between the father and maternal grandmother in default of agreement to commence from 2.00 pm on Boxing day;
f.for a 7 night period during each school term holiday as agreed and in default of agreement to commence from the last day of term;
g.such other and further times as agreed between the parties in writing.

4.X will spend time and communicate with the mother
a.        as agreed between the mother and maternal grandmother during the maternal grandmother’s time as set out in order 3. Such time will be supervised by the maternal grandmother or such other suitable adult known to X and agreed by the father, pending compliance with order 6 below.
b.      following compliance with order 6 below, on one of the weekends per month when the X is otherwise spending time with the maternal grandmother pursuant to these orders, from after school on Friday ( or 4pm if a non-school day) until Sunday at such time as agreed between the mother and father and in default of agreement 2pm;
c.       such other and further time as may be agreed between the father and mother in writing including telephone and or FaceTime.
5.The mother/maternal grandmother’s time in order 3 (and 8 herein) shall be suspended on the following occasions:
a.such that X spend a period of not less than 3hrs (outside of school hours) on his birthday with the father, in default of agreement to be from the end of school until 6pm on school days and from 12pm- 3pm on non school days ; with the father doing any necessary travel for these changeovers.
b.from 6pm the evening prior to Father’s Day until the commencement of school on the Monday after Father’s day;
c.upon giving not less that 14 days notice to the Maternal Grandmother and mother for up to two periods of 7 days during the Christmas School holidays;
d.for a 7 day period during each school term holiday as agreed and in default of agreement to commence at 4pm on the middle Saturday of the holidays.

6.Before the mother’s time can progress to unsupervised the following must occur:
a.the mother must attend upon a psychologist (or other relevantly qualified mental health professional) with a copy of Dr C Assessment of her dated 8th August 2020;
b.the mother must comply with any treatment/ therapeutic work recommended by the psychologist (treating mental health professional), including but not limited to attending for counselling and taking any prescribed medication;
c.the mother must provide the father with the name and contact details for her treating mental health professional;
d.the mother must provide to the treating mental health professional an irrevocable authority to provide the father with any information about the mother’s mental health that might be relevant to the safety and wellbeing of X in any periods of unsupervised time.
e.the mother must provide the father with supervised screening for illicit substance use in compliance with order 10 below, showing that she has not used illicit substances for six consecutive months.

7.Upon the mother complying with order 6 herein, her time with X shall occur during the maternal grandmother’s time as agreed between them, with the anticipation that this will increase to a minimum of one full weekend per month within 6 months of order 6 being complied with.
8.In the event that the mother ceases compliance with order 6, relapses into illicit drug use or her treating mental health professional provides information that she poses a risk to X’s health, safety or wellbeing, then her time will revert to supervised in accordance with order 4 herein until the provisions of order 6 are again complied with.
9.For the purposes of compliance with order 6(e) herein:
a.        the mother will notify the father in writing, that she is in a position to produce a hair follicle test that will show she is clean of illicit substance use;
b.      Following such notification the mother will, within 21 days, make appointment and attend for hair collection at an D Testing Services (DTS) Clinic or nominee for hair drug testing purposes. 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 drug testing to the recognised 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:
i.from the date of her notification to the father, the mother be required to maintain her  head hair at a length of not less than four (4) centimetres;
ii.Each party or their legal representatives is at liberty to provide DTS with a copy of these orders;
iii. The Mother is to attend at an DTS Clinic or nominee and submit to the supervised collection of a hair sample;
iv.the Mother is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising DTS or nominee to provide the results of each test to the mother, the father and the maternal grandmother upon receipt of such test results;
v.The hair drug may screen for 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;
vi.DTS 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; DTS’ 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;
vii.The cost of the hair drug test is to be met by the mother;

c. In the event of there being insufficient hair sample to cover the period of six months, such further tests will be completed until a cumulative period of six consecutive months is provided.
10.At or before the next scheduled appointment for X with Dr E the father will seek advice and recommendations from F HEALTH SERVICE, and his General Practitioner and X’s school as to an assessment of X for additional play therapy to support his emotional development and provide the same for specific consideration of Dr E at the next appointment. The Father will follow all recommendations of Dr E in this respect.
11.The maternal grandmother be and is hereby required to notify the father within 7 days, in the event that she has a significant concern that the mother is using or has resumed use of illicit substances.
12.That unless otherwise agreed in writing, all changeovers for the maternal grandmother/mother’s time that do not take place at school, shall occur at the father’s residence or such other venue as agreed between the parties in writing including text message.

13.The father must, within 28 days of the date of these orders, take a copy of Dr C report to his appointment with Ms G and follow all recommendations for treatment including attending an alternative treating mental health professional if so advised. The father is to provide the name of any alternative treating mental health professional to the mother.
14.The father must continue to attend upon the appointed mental health professional in order 13 until discharged from the service.
15.For 24 hours immediately prior to the commencement of any time spent with X and during all such time spent, the parties be restrained by injunction from ingesting, consuming or otherwise being under the influence of alcohol (with BAC >.05) or any legal or illegal drug or substance, save and except for:
a.any legal medication prescribed for them by a registered medical practitioner and taken or used by them strictly in accordance with such prescription; and,
b.any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not include codeine) and taken or used by them strictly in accordance with the directions appearing non such medication.

16.Each party be and is hereby restrained from:
a.discussing with X or with any other person in the X’s presence, details of these proceedings;
b.denigrating the other to X or speaking with X, or to any other person in the presence of X, in derogatory terms about the other party or members of the other party’s household;
c.assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or X
d.using physical force to discipline X.
e.exposing X to family violence in any form but especially, physical, verbal or emotional.

17.X’s school and other care providers be authorised to provide information documentation about him to both parents and the maternal grandmother, including progress reports newsletters and the like and produce a copy of these orders as authority for the same.
18.Without admission as to necessity, the maternal grandmother and the mother or their nominees be and are hereby restrained from taking X to medical appointments unless such medical appointment is an emergency (and then the father shall be informed immediately) or they have the father’s consent and he be at liberty to attend such appointment.
19.The father have leave forthwith to provide a copy of these orders to Dr E, F HEALTH SERVICE and any school attended by X.
20.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:
A. It is the intention of the parties that pursuant to these orders X will spend each Thursday after school with the Maternal Grandmother and in the event that she seeks that he pursue some after school activity she be permitted to enrol him and take him to the same at her own expense, if any, and provided that X agrees to the activity. In the event that the activity requires any further time commitment during times when X is not in the care of the Maternal Grandmother then she will seek the consent of the father before committing to X to the same.
B. For the avoidance of doubt it is intended that in the event that the mother progresses to having unsupervised time with X and having a weekend per month, this weekend will occur in place of one of the weekends that X would otherwise be in the care of the Maternal Grandmother but commence on the Friday after school to ensure that X still spends time with the Maternal Grandmother each Thursday ( except during periods when Thursday time is suspended for the Father’s holiday time).
ANNEXURE 2
Orders sought by the ICL and supported by the grandmother and the mother, save as to order 2 (as sent to the Court on 26 March 2021):
Amended proposal by the Independent Children’s Lawyer
1.All previous parenting orders be discharged.
2.The father and maternal grandmother have equal shared parental responsibility for the child, X born … 2014 (X).
3.X live with the maternal grandmother.
4.During school terms, X spend time with the father in a fortnightly cycle as follows:
a.    In week one, from the conclusion of school or 3:30pm on Thursday until the commencement of school or 9 am on Monday;
b.    In week two, from the conclusion of school or 3:30pm Thursday until the commencement of school or 9am on Friday;
c.    as otherwise agreed between the father and maternal grandmother in writing;
5.During school term holidays X spend time with the father for half of the school holiday period by agreement and in default of agreement the first half.
6.During the summer school holidays X spend time with the father for half of the school holiday period by agreement and in default of agreement the second half.
7.X spend a minimum of 2 hours with each of the parties on his birthday, and communicate by telephone with any party who is unable to spend time with him on that day.
8.X spend time with the father from 5.00 pm the day prior to Father’s Day until 5.00 pm on Father’s Day.
9.X spend time with the mother from 5.00 pm the day prior to Mother’s Day until 5.00 pm on Mother’s Day.
10.Notwithstanding any other order X spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years.
11.Notwithstanding any other order X spend time with the maternal grandmother from 3.00 pm on Christmas Day until 3.00 pm on Boxing day in even numbered years, and from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years.
12.All parties facilitate X communicating by telephone or other agreed electronic means with any party or sibling at any reasonable time that X expresses a wish to do so.
13.All time spent between X and the mother shall be supervised by the maternal grandmother or other supervisor agreed between the maternal grandmother, father and mother in writing until the mother provides to each party:
a.    Hair follicle test results negative as to the use of illicit substances for a continuous period of 6 months; and
b.    Evidence in writing of the mother’s engagement with a drug and alcohol counsellor as recommended by the said counsellor.
c.    Evidence in writing of the mother’s continual engagement with a psychologist as recommended by the said psychologist.
14.Changeovers that do not occur at X’S school occur at the home of the party who is commencing time with X and at the home of the party to whom X is being returned at the conclusion of time unless otherwise agreed in writing.
15.That X continue to attend BB School unless agreement between the parties.
16.The parties do all acts and things required for X to attend play therapy with a qualified practitioner (X’S therapist) and for the purposes of such therapy:
a.    the maternal grandmother shall advise the father and mother of the details of X’S therapist and of appointments made for X to attend;
b.    the parties shall do all things necessary to facilitate X’S therapy and the provision of a mental health plan for X in relation to his therapy;
c.    the parties shall follow the directions of X’S therapist as to their involvement with the therapy, if any, and X’S attendance upon the therapist;
d.    The parties shall be at liberty to provide to X’S therapist a copy of the Family Report of Ms. R dated 30 January 2020 and a sealed copy of these Orders;
e.    Each party shall be at liberty to liaise with X’S therapist as to X’S progress and any recommendations of X’S therapist.
17.The parties attend family therapy at B Counselling, City H with Ms. J, if available, or other agreed therapist or organisation to address their co carer relationship, to assist with promotion by each party of X’S relationship with each other party, and for the purposes of such therapy;
a.    each party follow the directions of the therapist; and
b.    each party be at liberty to provide to the therapist a copy of the Family Report of Ms. R dated 30 January 2020 and a sealed copy of these Orders.
18.As soon as practicable the parties complete a Post Separation Parenting Course, and either the K Program or M Program Course and provide a Certificate of Completion to each other party.
19.As soon as practicable the father complete the CC Course and provide a Certificate of Completion to the other parties.
20.The mother engage with a drug and alcohol counsellor and follow the directions of the counsellor as to her engagement with the counsellor and treatment, and the mother be at liberty to provide a copy of the report of Dr. C in relation to her and a copy of these orders to the counsellor.
21.The mother engage with a psychologist or psychiatrist and follow the directions of the psychologist or psychiatrist and as to her engagement with the psycholoigst and treatment, and the mother be at liberty to provide a copy of the report of Dr. C in relation to her and a copy of these orders to the psychologist or psychiatrist.
22.The mother comply with all lawful directions given to her by the medical practitioners she is engaged with.
23.The father engage in supportive psychological counselling and follow the directions of the counsellor as to engagement and treatment, and the father be at liberty to provide a copy of the report of Dr. C in relation to him and a copy of these orders to the counsellor.
24.Each party be restrained by themselves their servants and agents from:
a.    denigrating another party in the presence or hearing of X;
b.    discussing these proceedings in the presence or hearing of X save for explaining the court ordered time with arrangements;
c.    using illicit substances 24 hours prior to any period spent with X or being under the influence of alcohol (BAC exceeding .05) during any period spent with X.
25.Each party keep the other parties informed of any significant illness or injury suffered by X whilst in their care together with the details of any treating medical or allied health professional and each party be at liberty to liaise with such professionals.
26.Each party be at liberty to obtain from X’S school all reports, photos and information, including on line information, normally available to parents or carers, and to attend events to which parents or carers are normally invited.
27.Each party be at liberty to provide a copy of these Orders to any school or medical professional attended by X.
28.That the appointment of the Independent Children’s Lawyer be discharged twelve months after the date of the final Orders.

File number(s):	MLC 12534 of 2019
Judgment of:	MCEVOY J
Date of judgment:	19 November 2021
Catchwords:	FAMILY LAW – CHILDREN – Parental responsibility – With whom the child lives – Role of grandparents – Where the father alleges that the grandmother has subjected the child to emotional harm and seeks sole parental responsibility and for the child to live with him – Where the maternal grandmother seeks equal shared responsibility parental between herself and the father and for the child to live with her – Where the mother seeks equal shared responsibility between the three parties and for limited time with the child, initially supervised by the grandmother – Where the ICL supports the grandmother’s position – Where there has been significant involvement of child protective services – Where the child was removed from the care of the mother when he was about 7 months old and placed with the grandmother – Where the father had limited involvement with the child for the first three years of his life – Where the child was removed from the grandmother’s care and placed with the father when he about 3 years old – Where the mother and the grandmother allege the child has been neglected in the father’s care and this is denied by the father – Where the evidence from the child’s school and his treating medical practitioners raise no concerns and suggest the child is progressing well – Where it is found that the grandmother has subjected the child to emotional harm and that it is in the best interests of the child for the father to have sole parental responsibility, subject to an obligation to consult the mother and the grandmother, and for the child to live with him and spend four nights a fortnight with the grandmother and supervised time with the mother, moving to unsupervised time pending her engagement with mental health professionals and drug testing – Orders made substantially in the terms sought by the father.
Legislation:	Children Youth and Families Act 2005 (Vic), s.331 Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), s 4AB, Part VII, s 60B, s 60CA, s 60CC, Division 6 of Part VII, s 65C, 65DAC, s 61C, s 61DA, s 64B, s 65D, s 65DAA, s 65DAB, s 65DAC
Cases cited:	A v A (1998) FLC 92-800 Aldridge & Keaton (2009) FLC 93-421 Banks & Banks (2015) FLC 93-637 Blakey & Blakey [2020] FamCA 647 Blann & Kenny [2021] FamCA 322 Blann & Kenny [2021] FamCAFC 161 Briginshaw v Briginshaw (1938) 60 CLR 336 Burton & Churchin (2013) FLC 93-561 CDJ v VAJ (1998) 197 CLR 172 Cimorelli & Wenlack [2020] FamCAFC 58 D & F [2001] FamCA 382 Donaghey & Donaghey (2011) 45 Fam LR 183 Donaldson & Ryder [2017] FamCA 920 Donnell & Dovey (2010) FLC 93-428 Guerra & Guerra [2021] FedCFamC1F 73 Hardie & Capris [2010] FamCA 1046 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 In the Marriage of Blanch (1999) FLC 92-837 Keane & Keane [2020] FamCA 99 M v M (1988) 166 CLR 69 Milton & Milton [2021] FamCAFC 64 Mulvany & Lane (2009) FLC 93-404 Napier v Hepburn (2006) FLC 93-303 Poisat & Poisat (2014) FLC 93-597 Potts & Bims and Ors [2007] FamCA 394 Rafferty & Spencer (2016) FLC 93-710 Re David (1997) 22 Fam LR 489 Rice & Miller (1993) 16 Fam LR 970 Ryder & Donaldson [2018] FamCAFC 260 U v U (2002) 211 CLR 238 Valentine & Lacerra and Anor (2013) FLC 93-539 Yamada & Cain [2013] FamCAFC 64 Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2^nd edition, 2015)
Number of paragraphs:	278
Date of hearing:	1-4 and 17 February 2021; 26 March 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Mallett
Solicitor for the Applicant:	Buscombe & Madden Lawyers
Solicitor for the First Respondent:	In person
Solicitor for the Second Respondent:	In person
Counsel for the Independent Children’s Lawyer	Mr Tesoriero
Independent Children’s Lawyer	Melanie Wyatt Family Law

MLC 12534 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	Mr Cornish Applicant
AND:	Ms Gilholm First Respondent
AND:	Ms Roberts Second Respondent
AND:	Independent Children’s Lawyer

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	19 NOVEMBER 2021