Dean & Cotter
[2022] FedCFamC1F 636
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dean & Cotter [2022] FedCFamC1F 636
File number(s): NCC 2782 of 2016 Judgment of: SMITH J Date of judgment: 11 August 2022 Catchwords: FAMILY LAW – Parenting – high needs child - living with paternal grandmother regional NSW – mother seeks change of residence to Qld – father convicted sex offender on parole – father accepts he presents an unacceptable risk absent supervision – risk assessments and considerations of paternal grandmother’s and mother’s homes – consideration of paternal grandmother’s capacity to properly supervise father – paternal grandmother and father consent to injunctions reflecting understanding of importance of supervision. Held: Child’s best interests served by remaining with paternal grandmother – paternal grandmother to have sole parental responsibility - time with mother as practical given distance involved – permit long term communication and time with father supervised by paternal grandmother at paternal grandmother’s sole discretion – consequential orders. Legislation: Family Law Act 1975 (Cth) Part VII, Div 5, ss 60CA, 60CC, 61DA, 64B, 65AA, 65D, 68B, 68C. Cases cited: B & B (1993) FLC 92-357
Banks & Banks [2015] FLC 93-637
CDJ & JAV (1998) 197 CLR 172
Mazorski & Albright (2007) 37 Fam LR 518
Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 10 August 2022 Place: Newcastle by Microsoft Teams Solicitor for the Applicant: The Applicant was Self-Represented Solicitor for the First Respondent: The First Respondent was Self-Represented Counsel for the Second Respondent: Ms Hennessey Solicitor for the Second Respondent: West Tamworth Legal Counsel for the Independent Children's Lawyer: Mr Guyder Solicitor for the Independent Children's Lawyer: Kaberry Family Law ORDERS
NCC 2782 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DEAN
Applicant
AND: MR COTTER
First Respondent
MS WILLIS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.That all previous Final Orders and Interim Orders be discharged.
2.Ms Willis born in 1966 (“the Paternal Grandmother”), have sole parental responsibility for making decisions about the long term care, welfare and development of the child X born in 2014 (“the child”), to the exclusion of the Ms Dean born in 1995 (“the Mother”) and the Mr Cotter born in 1989 (“the Father”).
3.The child live with the Paternal Grandmother.
Mother
4.That the child spend time with the Mother as follows:
5.For one weekend per month commencing from the conclusion of school Friday, or 3:30 pm if Friday is a non-school day, to 5.00 pm Sunday as agreed between the Paternal Grandmother and the Mother, with the time to occur at the home of the Maternal Grandmother; and
6.Such further and other times as may be agreed between the Mother and the Paternal Grandmother, but failing agreement at the sole discretion of the Paternal Grandmother.
7.That the child communicate with the mother on a regular basis as follows:
8.As agreed between the Paternal Grandmother and the Mother.
9.The mother shall be authorised to attend any school event which parents normally attend and to receive, at her cost, any reports or materials which parents normally receive.
10.The mother shall be authorised to attend upon any medical appointment which the child attends, and to discuss any issue concerning the Child with any treating practitioner, and to receive, at her cost, copies of any reports or other information which parents normally receive.
11.A copy of these orders may be given to any school or treating practitioner to facilitate these orders.
12.The mother is to keep the Paternal Grandmother informed of her current residential address, mobile telephone number, any landline telephone numbers and any available email addresses, and is to advise the Paternal Grandmother of any change thereto within 7 days of such change.
Father
13.That the child only communicate with the Father as follows:
14.As agreed between the Paternal Grandmother and the Father, but solely as determined by the Paternal Grandmother;
15.That the child shall spend no time with the father otherwise than as follows:
16.As agreed between the Paternal Grandmother and the Father, but otherwise solely as determined by the Paternal Grandmother;
17.With all such time to be directly supervised by the Paternal Grandmother, or by another adult specifically authorised by the Paternal Grandmother to act as a supervisor;
18.Where the supervisor is not the Paternal Grandmother than that person is to be advised of the father’s conviction history and the reasons for supervision.
19.The Father is to keep the Paternal Grandmother informed of his current residential address, mobile telephone number, any landline telephone numbers and any available email addresses, and is to advise the Paternal Grandmother of any change thereto within 7 days of such change.
Injunctions
Father
20.Pursuant to s.68B of the Family Law Act 1975 (Cth), Mr Cotter born in 1989 be restrained from:
21.Contacting or attempting to contact X born in 2014 (“the Child”) by any means other than in accordance with these Orders; or,
22.approaching or coming within 100 metres of any place where the Child might attend school; or,
23.Residing in any residence in which the Child is residing; or,
24.Spending time with the Child otherwise than time which is directly supervised in accordance with these Orders.
25.Pursuant to s68C of the Family Law Act 1975 (Cth) the injunction directed to Mr Cotter pursuant to s68B of the Family Law Act 1975 (Cth) is for the personal protection of the Child, X born in 2014.
26.If a Police Officer believes on reasonable grounds that the father, Mr Cotter, at which the injunction is directed, has breached the injunction they may arrest them without warrant.
Paternal Grandmother
27.Pursuant to s.68B of the Family Law Act 1975 (Cth), Ms Willis born in 1966 be restrained from:
28.Knowingly allowing Mr Cotter born in 1989 (“the Father”) to spend time with the X born in 2014 (“the child”) other than time which is supervised in accordance with these Orders; or,
29.Allowing the Father to reside in her residence while the Child is residing there.
30.Pursuant to s68C the injunction in Order 15 above pursuant to s68B of the Family Law Act 1975 (Cth), is for the personal protection of X born in 2014.
31.If a Police Officer believes on reasonable grounds that the Ms Willis born in 1966, at which the injunction is directed, has breached the injunction they may arrest them without warrant.
NOTATIONS:
A.The Court has ordered one weekend per month with the Mother only because she currently resides in Queensland and this is all that is reasonably practicable. If the Mother had resided within an hour or so of C Town NSW the Court would have ordered alternate weekends.
B.The Court has ordered that time occur at the house of the Maternal Grandmother in C Town for practical reasons only, as the Mother does not otherwise have a place in the C Town region where time may conveniently occur and the Maternal Grandmother has previously agreed to facilitate time.
C.The Court has not ordered specific communication times between the Child and the Mother as the Mother and the Paternal Grandmother have demonstrated a good child focused relationship, and it is anticipated that they will co-ordinate to ensure that the Child has regular telephone / Facetime contact with the Mother at mutually convenient times.
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 Dean & Cotter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J
These are oral reasons for decision in a final hearing about what parenting orders are in the best interests of X, born in 2014 and now aged eight. The principles to be applied in deciding that issue are as set out in the Family Law Act 1975 (the Act).
In essence the issue before me is whether X should continue to live primarily with the second respondent, who is his paternal grandmother Ms Willis now aged 56, and spend time with his mother, the applicant, Ms Dean, who was born in 1995, and is now 26, or whether his primary residence should change so that X lives primarily with the mother and spends time with the paternal grandmother.
The family consultant in the matter, Ms E, who provided a report and gave oral evidence, said at paragraph [104] of her report that:
Overall, [X] presented as having warm, loving and close-connected relationships with both his mother and paternal grandmother
I accept that opinion. I am satisfied that both the paternal grandmother and the mother are fundamentally decent people who deeply love X and who want what is in his best interests. This is one of those cases where people of good faith have generally different views about what is in X’s interests.
In Ms E’s evaluation, which I think accurately reflected the evidence as it came out before me at trial, she said at paragraphs [106] – [107] of her report:
106: [X]’ early developmental history is one which has been characterised by separation and loss from his primary caregivers and parents. Throughout this period, however, [X] has had the benefit of the paternal grandmother being a consistent and stable figure in his life. Currently, [X] has the benefit of close and connected relationships with his mother and the paternal grandmother.
107: It is the writer’s view that the close and connected relationship [X] has with both the mother and paternal grandmother means that his need for a stable emotional connection will be able to be met by either the mother or the paternal grandmother. Given this, the Court will need to consider which household is most likely provide for [X] to have safety, stability and security in the short, medium and longer term.
Unlike some of the children who come before this Court, X has two good options available to him, noting that some unfortunate children have no good option. Nevertheless, the Court must consider the competing options and determine which of them is in his best interests.
I emphasise that this process and Judgment are not intended to denigrate either the mother or the paternal grandmother both of who, as the expert has said and I accept, are capable of providing X with a good and emotionally stable life; it is about picking between the two proposals to see which is in his best interests. That is the situation the Court has to deal with.
A significant complicating factor is that the mother only recently moved from the C Town, F Town and City G region of New South Wales where she was living. She was within about a 60-minute drive of C Town, where the paternal grandmother lives. The mother has now moved to Suburb H in Queensland which is about 500 kilometres away. It was agreed to be about six to seven-hours drive from C Town. The mother is in temporary accommodation while she looks for work and for permanent accommodation. Unfortunately, the mother being self-represented, no one was aware of this move until the mother gave oral evidence.
Obviously, the case would be simpler if the paternal grandmother and mother both lived within a short driving distance as before, but the realities of the situation are that she now lives in Queensland. The mother indicated in her evidence that, even if I decide that X should continue to live with the paternal grandmother, she proposes to continue living in Queensland.
I also note, as it is relevant to the proposals, that the maternal grandmother, who has helped to facilitate the mother’s relationship with the paternal grandmother and the child, also lives in C Town. The two grandmothers, as I understand it, live about a five-minute drive away from each other.
I now refer to the child’s father who is Mr Cotter born in 1989 and now aged 33. Mr Cotter is the first respondent.
In summary, when Mr Cotter was about 22, he was convicted of sexually assaulting a 15 or 16 year old young person. In about early 2019, he was taken into custody and convicted of aggravated sexual assault on a child under the age of 16, being a girl of 15, who was living with the father’s family. He was sentenced to imprisonment. He remained incarcerated until his release on parole in 2022.
Mr Cotter appeared at the Trial but filed no material and sought no orders himself. He ultimately supported the orders as proposed by the ICL for indefinite supervised time at the paternal grandmother’s discretion. He also accepted that he would be willing to be bound by injunctions pursuant to section 68B to ensure that those were the only circumstances in which he ever has time with X.
I note that in closing oral arguments the mother asked why there was so much focus on her history in this Trial and so little on the father’s. As I said to her, it was because the father has accepted that as a consequence of his behaviours he will never hold parental responsibility for X. He has accepted that X will never live in the same household as him. He has accepted that the only time he will ever spend with X, until X is an adult, will be supervised time which will only occur at the paternal grandmother’s discretion. There was no need to have a further inquiry into Mr Cotter’s history as the history speaks for itself, and the orders required to protect X, noting the implicit acceptance by Mr Cotter that he presents an unacceptable risk of harm to X of unsupervised time, needed no further inquiry.
As the parties are listening, and to avoid adding more stress to their experience of this long-running and inherently stressful litigation, I will now indicate that for the reasons I am about to outline, having carefully considered the matter, I accept, in effect, the ICL’s submissions and proposals that based upon the evidence before me, at the moment, it is in X’s best interests that he should live with the paternal grandmother. On the same basis, I will make orders that the paternal grandmother have sole parental responsibility for X, and also that the mother spend such time with X as is reasonably practicable.
That result is not a criticism of the mother. None of what follows is intended to deny the deep love she feels for X, or he for her. It is just that, at the moment, and noting X’s high needs which I will discuss, I have come to the view that the paternal grandmother can provide him with more stability and security which, at his age, is essential.
I will come to the proposals in more detail later, but in effect, as I have said, the ICL’s proposal at the commencement of the trial before the mother moved to Queensland was, in terms of time with the mother for X to spend alternate weekend time with her. However, that was when it was understood the mother was based in F Town or thereabouts, and within about an hour’s drive of C Town. The ICL ultimately reduced their proposed time for X to spend with the mother due to the practical difficulties of travel between Suburb H and C Town. As noted, those travel difficulties are a significant factor in the case.
The mother’s proposal in her initiating application filed on 30 July 2019, at a time when she was residing reasonably near C Town, was that she have sole parental responsibility, that X live with her, spend no time with the father and spend every second weekend with the paternal grandmother.
At trial, faced with the difficult task of representing herself, the mother’s oral articulation of her proposal was largely the same, seeking sole parental responsibility and for X to live with her in Queensland. She maintained the position that X should spend alternate weekends with the paternal grandmother. She was cross-examined about the practicalities of that proposal at some length, and I will discuss that further below.
Trial
By order of 20 December 2021, these proceedings were listed for final hearing by audio/visual means before a judge of Division 2 of the Court on Wednesday, 10 August 2022.
Geographical issues made an audio/visual hearing more appropriate. As the docket judge was part-heard and unable to hear the matter, and as I had become available due to a settlement, the proceedings were transferred to Division 1 on 9 August 2022 and came on for hearing before me on 10 August 2022.
The parties had been ordered to file trial affidavits, case outlines and proposed minutes of orders for trial; neither the mother nor the father, who were each unrepresented and appeared for themselves at the hearing, had complied with those orders.
The mother had previously filed an affidavit on 16 July 2019 which, though old, she was permitted to read. Because of this, much of the relevant material before the Court, in effect, comes from the statements by the mother and the paternal grandmother to the expert.
The father had last filed an affidavit on 22 February 2017. He had not filed a response. He did not seek to lead any evidence.
The paternal grandmother, who was legally represented and appeared by counsel, filed a trial affidavit on 21 July 2022 and a case outline on 8 August 2022. I note that the 21 July 2022 affidavit was very concise and, again, much of the relevant material has come from the family report.
The ICL, represented by counsel, tendered the family report of Ms E, an expert, dated 3 June 2021 which became exhibit ICL1. The ICL also provided a joint tender bundle of subpoena material, MFI2, which was a 70-page bundle from which certain documents were tendered during the hearing and marked as a group as exhibit ICL2. The ICL also filed a case outline on 9 August 2022. The ICL provided a proposed minute of order at the opening and then an amended proposed minute of order at the end of the trial, before closing oral submissions, which took into account the mother’s change of address.
The three parties and the expert Ms E all gave evidence.
Background
The mother’s personal background was set out by the expert at paragraphs [47] – [49] :
47. The mother reported a difficult childhood characterised by abuse and neglect. This included a period of time in the care of DCJ at about three years of age, after which she was placed with her father. Regarding her childhood, the mother commented, “I really did have a bad childhood and I don’t want my son to grow up that way.”
48. The mother said she has not had a relationship with her father for many years. She described a relationship with her mother which was difficult at times but was generally very supportive.
49. The mother said at 13 years old she moved from her father’s home to live with her mother, she rebelled and did not get on with her stepfather and she was kicked out of the home at 15 years old. She said by that time she had already commenced a sexual relationship with the father and so she moved in with him. The mother reported the relationship with the father was free of family violence with the exception of one occasion in 2015 at the time of separation where the father allegedly pushed her twice and held her down on the bed and subsequently removed [X] from her care.
It is clear that, through no fault of her own, the mother has had a difficult childhood and this appears to have affected her life.
Little is known of the paternal grandmother’s background.
The mother told the expert that she entered into a relationship with the father in 2009 when she was 14, and moved in to live with the paternal grandmother and the father when she was 15. The paternal grandmother said that was in 2012 when the mother was 17. I can make no finding of fact about that.
The parties separated in 2015 when X was one. X remained in the father’s care, although that was, the mother said, because her father refused to let her take him.
The mother told the expert at paragraph [13] that following the father retaining X in 2015 she did not see X for an extended period of time. She said:
…This was a difficult time in her life due to a deterioration in her mental health associated with stress at the loss of [X]. The mother said she used methamphetamine during this period of time.
I note that at paragraph [50] of the expert report the mother said that at that time she:
…spiralled into depression, commenced a relationship with a significantly older man (40 years old) and started marijuana and methamphetamine use...
A court proceeding commenced during which the mother spent supervised time with the child, it appears as a result of her drug use, and final consent orders were entered on 19 June 2017.
The 19 June 2017 final orders were for equal-shared parental responsibility between the mother and the father, with the child to live with the father and spend time with the mother as agreed. There were also ancillary orders with the mother being kept informed.
The mother told the expert that she felt she had no option at that time but to consent if she wanted a relationship with X, but that they were not the orders she thought were appropriate.
It appears the parties then reconciled for a period of time, and the mother told the expert, at [51], that:
...shortly prior to reconciling with the father in 2017, she ceased drug use. The mother reported that at about the same time her mental health improved significantly as she was able to have a relationship with [X].
However, the parties separated then on a final basis in November 2018, and the mother told the expert that her mental health deteriorated as the father again ceased her time with X, and at this time she commenced using about four “cones” of marijuana a day.
In about 2019, the mother commenced a relationship with Mr J. That was at about the same time the father was taken into custody.
I note that when the father was taken into custody, as set out at annexure B of the paternal grandmother’s affidavit, he provided her with a note saying he was:
…giving temporary care of my son to my mother … as I am currently in [O Centre]...
After the father was taken into custody the paternal aunt, a Ms K, acting on behalf of the paternal grandmother, met with the mother. Through these negotiations the mother and the paternal grandmother entered into an informal arrangement, set out at annexure C to each of their affidavits.
The fundamental terms of the agreement were that the mother could or would call X every Monday, Wednesday and Friday at 4 pm, and would or could visit him every Saturday from 8 am to 5 pm. It was also agreed that once the mother had obtained permanent accommodation she would have X every alternate weekend from 8 am Saturday to 5 pm Sunday on a fortnightly basis. The agreement also recorded discussions about extending time once X started school, noting he was then not at school, and also having half school holidays. It was indicated that they would be working towards a week-on/week-off arrangement.
In her affidavit of 30 July 2019, the mother said that in the three months since the agreement she had only seen X twice, and that due to her financial circumstances she had asked if the paternal grandmother and paternal aunt could meet her halfway or help with fuel, but they had not been willing to do so. At paragraph 17 of her affidavit the mother said:
I knew that until I had obtained my own accommodation it would be difficult for me to have [X] returned to my care, but I have now established myself in [F Town] and am in a position where I can care for him full time.
The mother’s recognition at that time of the importance of permanent accommodation was appropriate. The ICL submitted, and I accept, that it is still a significant issue and better for X that he have somewhere permanent he can live.
The mother commenced these proceedings on the same day she filed her affidavit, 30 July 2019, and sought the orders I have indicated.
On 15 October 2019, interim orders were made for X to live with the paternal grandmother and spend alternate weekends with the mother. That arrangement, apparently, commenced in October 2019 and continued through the time of the family report and indeed, as I understand it, until relatively recently. During that period the mother was living near the paternal grandmother. The mother was also ordered to submit to hair follicle drug testing in view of her history of illicit substance use. There were issues with compliance with those orders.
It appears that on 24 February 2020 there were orders that X live with the paternal grandmother. The paternal grandmother was given sole parental responsibility, as the person X was living with, and it was also noted that if the mother had completed a hair follicle test prior to May of 2020 the Court would order a family report, but if not, that the Court would:
…likely finalise the matter on the basis that the child live with the paternal grandmother, the paternal grandmother have sole responsibility of the child, and the child spend time with the mother as agreed between the mother and the paternal grandmother.
The mother told the expert that she could not afford the drug tests. She admitted to the Court, in her evidence that she is still using marijuana up to this hearing.
An ICL was appointed in May of 2020, and the family report which was ultimately tendered was ordered.
In terms of her drug use, the mother told the expert that she was on buprenorphine for approximately two years, with an injection once a month. I note that that is a pharmaco-therapeutic replacement drug commonly used in the treatment of heroin and similar drug dependencies.
The mother also told the expert, at [53], that in late 2020 she tried to stop using marijuana “cold turkey”, but had a seizure, and therefore decided to restart and to gradually reduce her usage instead.
The mother told the expert she had last used marijuana about three weeks prior to the family report, and in her oral evidence she said she had used marijuana in the period of time before this trial. She gave evidence that she had been using three to four cones a day, but that had come down to one cone a night before bed, and it was perhaps now less.
Somewhat concerningly, the mother also said that she did not really think of marijuana as, in effect, a real drug. It is not an uncommon view in the community, but the impact of marijuana, and particularly substantial marijuana use, on cognition and parenting capacity can be significant.
The mother says she ended her relationship with Mr J, who I will disucss with further later, in about March 2021. The paternal grandmother accepts that and, indeed, given that it appears she started a relationship with a Mr M shortly thereafter that seems to be accurate. I note that the mother denies she was in a relationship with Mr M. I will deal with that issue in due course too. I note that similar allegations about the mother exposing X to a household with a perpetrator of family violence arise with Mr M and with Mr J.
Before I go further I should, of course, indicate that neither Mr J nor Mr M were parties to, or present at, or represented in, these proceedings. As people who are being referred to, but not represented, and who had no one to speak on their behalf, I should indicate that whilst I will make certain findings about them for the purposes of this hearing, any such findings cannot be held or used against either of those men in any other proceedings or circumstances where they have been denied procedural fairness.
Nevertheless, it is important that when I assess the risks to X I make such findings about the people whom the mother chose to live with and expose X to, as it goes to the risks that X has been exposed to, and the potential future risks of similar exposure.
As I have said, there was a Child Court Expert or a Family Consultant, as she was then called. At the time the expert wrote her report the mother was living in City G, about an hour from C Town. At the time of the report X was living with the paternal grandmother and spending time with the mother each alternate weekend, and no time with the father, which was consistent with the orders. I will deal with what the expert says about different topics as I go through the questions.
X
Before we come to the parents, I think it is important to identify that X has some special needs.
At [96] the expert noted that:
The mother said she was not really aware of [X]’ developmental status but would like to have more information about it, and the paternal grandmother said that [X] was behind his same-age peers at school but appeared to be catching up.
Fortunately, we have two paediatric reports from Dr L; these were annexed to the paternal grandmother’s affidavits. The first was dated 14 April 2020 and the second 7 February 2022. X was referred for behavioural issues. I think it is worthwhile reading onto the record this material as X’s particular needs are, I think, important to an assessment of his best interests.
The report of 14 April 2020 read, from the heading “Summary” to the end of “Impressions” as follows:
SUMMARY:
[X] is a 5 year and […] month-old boy with reported behavioural difficulties soon after separation from his biologic parents late last year. His behavioural difficulties have met diagnostic criteria for Attention Deficit Hyperactivity Disorder combined type, Oppositional Defiant Disorder, Conduct Disorder, and Generalised and Separation Anxiety Disorder. [X] has also displayed behaviours descriptive of Developmental Post-Traumatic Stress Disorder with Disruptive Mood Dysregulation Disorder following his repeated separation from his biologic parents’ care. These neurodevelopmental conditions that have significantly impacted on his daily functioning both at his carer's home and pre-school can also result from in-utero foetal developmental stresses from maternal substance use as well as possibly unknown familial or genetic background not available at this time of review.
[X] also has specific learning difficulties which will need to be formally investigated for appropriate school support.
[X] has pervasive traits and requires further investigation for the presence of Autism to appropriately address his specific difficulties resulting from this disorder. [X’s] significant behavioural outburst may benefit from trialling him with a medication such as clonidine for now until he is old enough to trial on psychostimulant. [X’s] strength include his reasonable health and age-appropriate gross motor, speech, fine motor and self-help skills. He also has good constructive abilities and able to maintain social friendship. He can follow new and interesting instructions and adapt to change as well as possess the ability to selfcalm. He has a very supportive carer and nan who has expressed plan to maintain care as long as needed and provide [X] with constant, secure and loving care. He has displayed ability to engage well with the health services as well.
IMPRESSIONS:
1. Attention-Deficit Hyperactivity Disorder combined type
2. Oppositional Defiant Disorder
3. Conduct Disorder
4. Generalised and Separation Anxiety Disorder
5. Developmental Post-Traumatic Stress Disorder with Disruptive Mood Dysregulation Disorder
6. Specific Learning Difficulties
7. Autistic traits, for investigation
8. Social Issues, under the care of paternal grandmother
The report of 7 February 2022 said, in part:
Issues
1. Attention deficit hyperactivity disorder - combined type.
2. Autistic traits for investigation, awaiting ADOS.
3. Oppositional defiant disorder.
4. Conduct disorder.
5. Generalised and separation anxiety disorder.
6. Developmental post-traumatic stress disorder with disruptive mood dysregulation disorder.
7. Specific learning difficulties.
8. Constipation, well managed.
9. Sleep disorder.
10. Social issues - under the care of paternal grandmother.
Medications
1. Ritalin increased to 15 mg short acting mane, 15 mg short acting midi and add 10 mg short acting at 3.30 pm prior to [sports]
2. Clonidine 200 mcg at bedtime
3. Prn Movicol as needed
Obviously, the identification of ADHD, autistic traits, oppositional defiant disorder, conduct disorder, anxiety disorders, and the other identified issues are matters of concern.
It is very pleasing and appropriate that the paternal grandmother has taken the care to make sure X has got a regular GP and that he is seeing an expert from the City G.
By all accounts, including those reports, this medical treatment, including the prescription of certain drugs, has led to significant improvement in X’s behaviour.
As a very young child he was so disruptive and violent, even though physically small, that he had to be suspended from school for the safety of others. Consistent with the medical evidence, the school records indicate that he is definitely improving.
In addition to regular treating medical practitioners X also has the benefit of being well-settled at a school where his needs are known, and he is also being supported with additional assistance.
Whilst X’s behavioural issues still exist, the level of disruption which led to his suspensions has effectively ceased. The paternal grandmother said there are still behavioural issues, and he has had some outbursts recently, but these are now at a level where they have been able to be dealt with in the school setting and did not require suspension.
There was an issue at Trial about whether or not the paternal grandmother had adequately facilitated the mother’s involvement in X’s medical treatment and with the school. However, there is no legal impediment to the mother becoming involved in either of these areas of X’s life. I am told that the paternal grandmother has been keeping the mother informed to some extent, including by providing school reports. So it is not entirely necessary to make orders.
Nevertheless, as I indicated during oral submissions, I think it may be appropriate to make orders on this topic, just to indicate that there is no legal impediment to the mother having access to X’s school records from the school if she wants, or to his medical records from doctors if she wants, noting that she will not have parental responsibility for reasons I will come to in due course.
I should indicate that I think that X’s special needs are a significant factor, and I have given great weight to them in the finding I have come to. A child with X’s special needs, particularly with ADHD and autistic traits, is likely to find a change of environment more difficult, and more difficult to adjust to, than most children.
The mother
Coming to risks and issues in the mother’s household the first question is of stability. There is no doubt that stability is a significant factor, as the expert said and I accept, for any child, but a child with X’s history and identified medical and educational needs is more prone to be adversely affected by lack of stability in his life.
The mother in her 2019 affidavit very fairly and sensibly acknowledged that without permanent accommodation it was not appropriate for X to be returned to her care. Unfortunately, as she comes before the Court during this hearing she is in the same situation. She has only recently moved to Queensland in the last month or so before trial. She is in temporary accommodation. She has made an application for housing, but has not heard back yet. She receives just over $600 per fortnight in benefits, or $300 per week. She says she went to Queensland for a job opportunity, but she did not identify what the particular job opportunity was. She says she is looking for work. I am not clear on what her prospects for employment are.
She has not had an opportunity to determine where X would go to school if he was to move to live primarily with her. She does not, therefore, know what facilities would be available to meet his higher-than-usual needs. She does not know what GP or paediatric specialist assistance would be available in the local area.
This is in circumstances where X is already behind in his education and his development, although fortunately, with the assistance he is being given, he is catching up.
I consider the risk of further behaviour issues, and lack of educational attainment and emotional development by reason of a change to unknown circumstances, present a real risk that needs to be assessed
The ICL placed significant weight on those stability factors, particularly given X’s high needs, and so too do I.
The expert said that, of course, X might adjust to one change, but on the question of stability, at the moment, the mother and therefore the Court do not know anything about what X’s living circumstances would be or how many changes in living circumstances might be involved before the mother and X would settle into one location and routine, depending on jobs and housing.
When I talk about risk, I emphasise that it is not that the mother would intentionally do anything to harm X. But where I know that at the moment that he is in a stable educational situation with additional support, he has stable accommodation he is familiar with, he has established treating medical practitioners who have known him and assessed him for a number of years, the loss of those factors in circumstances where the alternative is entirely unknown, I think, does present a real risk that X will go backwards emotionally and educationally and that risk is greater for him because of his special needs.
The issue of risk to X in the mother’s household through the mother’s poor partner choice was raised.
With Mr J, the paternal grandmother raised family violence as an issue in the relationship between the mother and Mr J at paragraph [37], and I will just indicate Mr J has an extensive criminal history including a history of violence and of contravening AVO.
That is, as summarised at paragraph [59] of the expert report, which seems an accurate summary of the documents:
59. [Mr J] has [an extensive] criminal history [including driving offences, assault, property damage, resist police and stalk/intimidate]. Current charges for [Mr J] include: [break and enter and assault]. COPS events provide further insight into violent behaviour of [Mr J] but they will not be repeated here.
In particular, the expert noted concern about the fact that Mr J had had two children removed from his care, one being removed due to family violence perpetrated by Mr J.
The paternal grandmother reported that X had told her certain experiences in the household with Mr J that made the paternal grandmother believe that X was exposed to family violence. Even though the family violence may not have been directed against X, a child being in a household who witnesses family violence is exposed to it and experiences the emotional and psychological impacts of the family violence.
The expert said, in this regard, at [58] that the mother:
…presented as lacking insight into the risk he had previously posed to [X] in her household…
In speaking with the family consultant the mother told her that the relationship with Mr J broke down due to an incident between Mr J and the maternal grandmother which led to the maternal grandmother taking out an AVO against Mr J. During that incident the maternal grandmother told police that the mother had slapped her. The mother denied that she had slapped her own mother. I cannot know what happened there, but it certainly seems that there was a significant degree of dysregulation and conflict in that relationship with Mr J.
Given Mr J’s criminal history, and the history of having had children taken away from him due to family violence, there must be a concern that the mother has made a choice which exposed X to family violence.
In terms of Mr M, at the time of the family report the mother was living in City G with Mr M. She told the family report writer she was not in a relationship with him. That is possible. She had only recently broken up with Mr J, and even though she had moved in with Mr M and both of their names were on a lease it is possible that at the time of the family report that she was not then in a relationship with him.
She maintained in her oral evidence that she was not in a relationship with Mr M. However, the police materials and the COPS records tendered as part of ICL2 mean that I cannot accept her evidence that they were never in a relationship.
Generally I think the mother was trying to do her best to be honest, however I do not accept her statements that she was not in a relationship with Mr M, although she said she did have sex occasionally with him. The information she gave police, as set out in that material, makes it clear, particularly noting at page 65 of 70 of the tender bundle MFI2, which formed part of exhibit ICL2, makes it clear that she told police that she and Mr M had been in an intimate domestic relationship for approximately four months and were living together when they were called. I do not accept her evidence that when responding to an incident the police fabricated, for some unknown reason, a history attributed to her that she was Mr M’s domestic partner when that was not the case.
Now, while the incidents with Mr M were at a reasonably low level of conflict, they did involve significant drinking and appear to have involved yelling and screaming. Even if the yelling and screaming was not at X, for a child to be exposed to that is frightening. For a child of X’s age and with his other difficulties to be exposed to that is exposure to family violence. So I think there is a concern about the mother’s partner choice, and I think that is a risk I must take into account.
Now, the expert said, and I accept, that the mother should not be blamed for the violence she has suffered, but that where it appears on the evidence that both her partners Mr J and Mr M were acting‑out family violence against her to which X was exposed to when with her on the weekends, I accept the expert’s opinion and find the mother has displayed poor insight into the risks that her partner choice may expose X to.
The mother had a male support person with her during her evidence who she said she is not in a relationship with, and I have no reason not to believe her. But it is not unreasonable to think that she may form another relationship, and her lack of insight into the potential for such a relationship to expose X to a risk of harm, given her choices with Mr M and Mr J, and her denial of a relationship with Mr M despite the overwhelming evidence to the contrary, is a risk I must consider.
One of the other risks identified was the potential of exposure to risk through the mother’s history of drug use, in particular the risk of relapse. Even at trial the mother conceded she had recently used marijuana, which she said she did not consider a real drug. Now, I know that marijuana is commonly used in the community, even in the United States where they have their war on drugs it is now becoming normalised. However, there is a difference, it seems to me, between someone who does not have a history of significant drug use who smokes one unit or cone of marijuana occasionally on a weekend, and someone who is having four cones a day. It is similar to the person who has a glass of wine on the weekend and someone who has a history of alcoholism downing a couple of bottles a day.
If the mother were to return to her four-cone-a-day habit, that must, in my view, necessarily have an impact on her parenting capacity, and that would present a risk to X. One of the difficulties here is that even though for the present purposes I accept the mother when she says that she has reduced her marijuana use significantly, as she said to the expert, at paragraph 56, she has never accessed sustained counselling for her trauma history or drug use because she was fearful it would be used against her in these court proceedings, and whilst I understand that, it is very unfortunate.
The reality is that her drug-use history, and her trauma history and her relationship history are known to the parties and, therefore, was always going to become known to the Court. Her fear of obtaining treatment means that I do not have the benefit of a counsellor who might have seen her for a period of time, who is able to say that she has developed insight and that the risk of relapse is low.
It is a very difficult issue. This Court deals on a regular basis with people who have had long histories of drug and alcohol abuse, and, whether it is through AA or NA or long-term counselling, many of them are able to come along and say, and are accepted when they say, that they have been entirely abstinent for a substantial and sustained period of time, and while in those circumstances the Court may consider that there is always a risk of relapse, the risk of relapse may be assessed as low.
Unfortunately, given the mother’s history of drug use, particularly when she is in situations of stress, I must take into account that there is a risk, which I cannot quantify well, that she may relapse into drug use, and if she was to do that whilst X was primarily living with her, that would create real issues of risk to X psychological and physical safety and of possible neglect.
The mother was cross-examined and there was evidence about the fact she does not believe X necessarily requires all the medications he is taking. That is because she says when he is with her she does not see many of these behaviours. The expert agreed that it may be possible that some of X’s behavioural issues relate to separation from the mother, so that the mother’s experience of X may be different to other people’s experience of X. The mother said, and I accept, that she would abide by the medical prescription to provide medication. So I do not consider there to be a risk of not providing medicines.
The mother’s mental health was identified as a potential risk. The paternal grandmother said that the mother experienced depression, but the paternal grandmother, who knows her well, did not believe it created a risk for X, and I accept that. I think that the extent to which there is a risk, it is tied up with drug use as self-medication when depressed, and I will treat that as being dealt with by the analysis of the risk of drug use.
We then come to the next issue which, as I noted above, is the question of practicality. It is just not known where X would live if primary residence was changed. If there is to be a share-house with other people, even if the mother is not in a relationship with any of them that is not known who they would be. I do not know where he would go to school, who his doctors would be, what would happen in his life.
In circumstances where I have an obligation to do what is in X’s best interests, it is difficult to accede to a proposal made by the mother where I just do not know what the details are, as opposed to the paternal grandmother’s proposal where I know where the house is, and how big the house is, I know the school and that they know X, I know who the doctors are and I know what X’s routine is, and I know the current arrangement is working for him. The ICL emphasised the risks of the Court placing X with the mother given all of the unknowns. I accept that submission and find that the uncertainty in the mother’s proposal presents significant risks.
In terms of the mother’s proposal about time with the paternal grandmother, she said she would bring X down to see the paternal grandmother every second weekend. At the moment she has a learner’s licence, although her seizure history, if disclosed, may make obtaining a full licence more difficult. I do not know. Assuming that she can get a licence, she will need a car.
The mother receives $600 per fortnight at the moment. Petrol each way would be about $100. So she would need to spend about a third of her current income on petrol. It is also a six to seven-hour journey. She said she would take X out of school on the Friday and Monday for travel before and after the weekend. That would be 2 days in every 10, or 1 in 5, or 20 per cent of each school week lost. Despite X already being academically behind, she said she did not see it as a problem. She said she would teach him in the car and catch-up during the school week. Apart from anything else, I would not, even for a child who was at the top of their class, accept a proposal that involved them having 20 per cent of time out of school, because I do not think any child can keep up with that much school loss. For a child like X who is already behind it would be devastating for his academic development.
The ICL submitted that apart from any other factor the mother’s proposal was uncertain and impracticable and should not be accepted. I think that is right.
As I have said, the mother in closing oral submissions asked why the Court had focused so much on her history, and why she is not being given a chance to be X’s full-time mother. I think it is important that she understands that her history is relevant because past behaviours are one indicator of possible future behaviours, and where the likelihood of similar behaviour is subject to whether there has been a degree of insight and willingness to change.
I would strongly encourage the mother, although I will not order her, but I would strongly encourage her to seek help through a therapist to or community centre. There may be other measures, for example NA, which may be appropriate to help her. Trauma counselling would probably assist her. The more she is able to address and deal with her issues, the better she will be able to cope with life, and the better she will be able to parent, and the greater involvement she will be able to have in X’s life, which will be good for her and also very good for X.
The Paternal Grandmother
Now, there were also a number of risks identified in the paternal grandmother’s house and these also did concern me.
The expert was particularly concerned that the paternal grandmother did not fully appreciate the risks the father posed to X.
At the interviews the paternal grandmother was proposing equal-shared parental responsibilities - responsibility of both parents. And as the expert noted at paragraph [36], that the paternal grandmother:
…denied the father posed a risk to [X], but acknowledged the Court was likely to order supervised time at a minimum. The paternal grandmother said she would comply with any orders ….. The paternal grandmother proposed either herself or [X]’ partner as appropriate supervisors for the father’s time with [X].
The expert set out the paternal grandmother’s views on the issues at paragraphs [77]-[79]:
77. When asked to describe what had happened in relation to the father and the recent conviction for sexual assault, the paternal grandmother said, “Basically we had someone (‘[N]’) I thought was sixteen, but she was fifteen, she got dropped off all the time because her mother could not handle her. [Mr Cotter] went to bed, ready for work the next day. She crawled into bed with him. Apparently they had sex. In her words it was ‘foreplay to start with’ he got up and went to have a smoke and when he came back in they had sex. She said she didn't want to and was yelling at him to stop. But my room was close by, literally in the next room and I didn’t hear a thing. I did tell her before she walked in there that he was asleep.” The paternal grandmother said the young person had later apologised for making the allegation.
78. When asked if she felt there was likely to have been any power imbalance given the age difference between [N] and the father (father 29, [N] 15), the paternal grandmother described [N] as being promiscuous and repeatedly seeking to engage in sexual activity with the father. When asked whether she thought the father took advantage of the age difference and seeing the father as a male role model, the paternal grandmother said, “No, I don’t think so, I think it was just the fact, she had been trying to do it for months. Whenever [Mr Cotter] had gone to bed, she would try and go in there. He would put her off.”
79. When asked whether she believed the father posed a risk of sexual harm in the future to [X] or other children, the paternal grandmother said, “I don’t think so because his girlfriend stuck by him.”
And the expert identified her concerns at paragraphs [111]-[113]:
111. The paternal grandmother’s approach to the father’s pattern of offending is also of extreme concern. Specifically, the paternal grandmother excuses the father’s behaviour, blames the child victims for the father’s behaviour (characterising them both as promiscuous), she demonstrated a complete lack of empathy for the child victims and appears completely oblivious to the fact that the father has deliberately utilised a power imbalance for his own sexual gratification.
112. The paternal grandmother’s approach to the father’s sexual assaults on children has significant ramifications for the paternal grandmother’s general parenting of [X]. Specifically, the paternal grandmother’s attitude in relation to the father calls into question: her capacity to prioritise the needs of children over another adult’s interests; her ability to be attuned and responsive to children’s needs (including acknowledging their vulnerability, being empathetic and prioritising their protection); and her ability to implement boundaries which are consistent with a child’s developmental stage and associated needs. This is of serious concern to the writer.
113. A separate, but related issue is whether the paternal grandmother is an appropriate supervisor for [X]’s time with the father. The writer does not support the paternal grandmother being the supervisor of [X] time with the father noting that she does not believe the father poses a risk of harm, and further is indeed actively protective of the father which may reduce her vigilance. Further to this, if [X] were to disclose to the paternal grandmother he had been sexually harmed by the father there is a risk that, similarly to her prior approach, the paternal grandmother will prioritise the father’s version of events over that of a vulnerable child.
I have grave concerns about the grandmother as a supervisor, and I do not treat this issue lightly. I note what was said by the Full Court in B & B (1993) FLC 92-357 about supervision by relatives, and it is very relevant in this case in particular. I have in mind, when making this decision, what the Court said about supervision at [79,780]-[79,781]:
Who should supervise the access?
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, ``Supervising Visits between Parent and Child'', Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).)
Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
The paternal grandmother impressed me as a straightforward witness who said that she understands, having read the family report now, the issues as identified by the expert, that there is a concern and a risk that the father puts his own needs carelessly above those of children he comes into contact with and that presents a real risk to X.
As I understand the position that has been put to me, there is no realistic option of time with the father if long-term, paid, professional supervision is required. No-one has the money for that.
The ICL has formed the view that the balancing risk of the harm for X of a complete loss of the relationship with his father against the risk that the paternal grandmother will not adequately supervise the father, that the risk of inadequate supervision is reasonably small, so long as appropriate orders are made, and noting that the paternal grandmother appears to now have a better understanding of the risks.
It is in those circumstances that the orders proposed by the ICL, and as augmented by me during the course of the hearing, would involve an order for long-term supervision by the paternal grandmother, with the father never to be unsupervised with X, and never to live with the paternal grandmother and X or to live with X. That would be supported by enforceable injunctions under 68B with arrest powers under 68C. If the father breaches them while he is on parole, he goes straight back to jail. If he breaches them after he has finished his parole, given his history, while it is always an individual question of sentencing, one would have to anticipate a period jail.
Similarly, in accepting the proposal the paternal grandmother accepted that she might also find herself subject to a term of imprisonment if she exposes X to the father without supervision.
Both the father and the paternal grandmother have had that explained to them in the Trial. They have both said that they are willing to accept that risk of arrest and imprisonment with the injunctions because they have no intention of breaching those orders.
So I also have that in mind, but it is a matter that troubles me considerably.
I note there were also issues raised about the paternal grandmother’s health. The mother raised those at paragraph 63 of the expert report. She said the paternal grandmother spends most of the day in bed which means X has to look after himself. I note the paternal grandmother is only 56. She says she has a variety of health concerns. At the moment I do not see that her physical capacity is a risk. The paternal grandmother also has suffered from depression, as with the mother, but, as with the mother, it seems to be well managed and does not seem to be a risk.
The paternal grandmother’s household provides the benefit of proven stability.
The risk is that she will not properly control or supervise the time the father may spend with X because, frankly, the father is her son, and she is always going to be his mother, and that means that perhaps she has difficulty accepting the gravity of what he did. But, in any event, she says she will agree to the 68B injunctions directed against her.
I think her oral evidence did suggest she had come to a better understanding of why everyone but her is concerned about the father having unsupervised time with X.
On balance, I accept that she has come to a recognition, and she understands the importance of the issue. She understands the grave consequences of breaching an injunctive order.
Legal principles and decision
I come now to the legal principles that I must apply. The paternal grandmother, the mother and the ICL are seeking parenting orders as defined in Part VII, division 5, and I note section 64B and the Court’s powers to make orders in 65D.
The paramount consideration for me is what is in X’s best interests, and I note section 60CA and 65AA. I understand that the mother feels that she is being judged harshly, but, as I have said, this is a circumstance where, unlike some children, there is not only one competent adult, but two competent adults who can provide for X’s needs.
I have to work out which of the options is best for X, and sometimes it is a question of good and better, but I have to do what is best for X.
The primary consideration for me when determining what is in X’s best interests are, first and foremost, the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and, secondly, the benefit of a meaningful relationship with both parents.
Now, in this context I am satisfied that X has a meaningful relationship with the mother and the paternal grandmother, and for present purposes, taking into account other factors, I will treat that as a factor in X’s benefit.
X has a relationship with the father, it seems, but, as I have said, the father has accepted that he presents an unacceptable risk to X absent supervision. So the issue of meaningful relationship with the father must take second place to the need to protect X from harm from being unsupervised with the father. Those are, of course, the twin pillars referred to in Mazorski & Albright (2007) 37 Fam LR 518.
There are a plethora of other additional considerations which I have considered largely above. I note, as the Full Court said in Banks & Banks [2015] FLC 93-637 at paragraph 48, “it will be the issues that are joined that will dictate which section 60CC factors are relevant”.
I will start with parental responsibility. I note that the power to make orders in section 65D is subject to a rebuttable presumption of equal-shared parental responsibility in 61DA and having regard to any parenting plans, although I was not told there are any. The presumption is not to apply in certain circumstances.
The father does not apply for parental responsibility.
The issue in terms of the maternal grandmother and the mother is really whether or not they can have a sharing of parental responsibility. The relationship has fluctuated. The mother feels that the paternal grandmother has sided with the father and helped to take X from her repeatedly. The mother admits she has sent abusive text messages to the paternal grandmother. The mother has been in a difficult position. It appears that the relationship at the moment is more reasonable, but ultimately I have to decide whether or not the paternal grandmother and the mother are able to co-parent, and whether that would be in X’s best interests to order that they seek to co-parent at the moment, and ultimately that is a question which requires a consideration of the overall evidence before the Court. On balance, I think the presumption that the mother should have or share parental responsibility, at the moment, should not apply as it is not in X’s best interests.
X’s needs are high. There is uncertainty at the moment in the mother’s life. I think decisions may need to be able to be made quickly. The evidence, and the mother does not oppose this, is that the paternal grandmother has been making good decisions for X. I understand it will be difficult for the mother, but at the moment I think it is best for X that decisions about long-term issues are made solely by the paternal grandmother, so that she should have sole parental responsibility, as proposed by the ICL.
As I have said, I am satisfied that the orders proposed by the ICL will allow X to have a meaningful relationship with the mother even though he will only see her one weekend per month, which at the moment seems all that is realistic for her to get down to New South Wales, but if she can come down more often, then, hopefully she and the paternal grandmother can agree to more time, and the ICL has proposed that time be at the home of the maternal grandmother, with whom the paternal grandmother gets on well and who has helped facilitate before, so it provides a safe environment in C Town and reduces the mother’s costs.
I note that X expressed a wish to live with the mother, but there is an issue about the mother’s influence in that. Given his age, and the risk issues and his medical diagnosis, I can only give very limited weight to what an eight year old child has to say. It is for the Court to assess what is in his best interests.
X has established relationships with each of his parents and the paternal grandmother. To the extent to which the orders relate to the paternal grandmother and the mother, I am satisfied they will be maintained. To the extent they relate to the father, if it can be maintained, that is good for X, but if it cannot because of the need for supervision, the need to protect X comes first.
In terms of the other factors, I am satisfied that the mother has spent time and communicated with X consistent with the orders. There is no change to X’s effective circumstances by the orders that are being proposed by the ICL and which I will make. On the other hand there would be very significant disruption to X’s life if the mother’s proposed orders were accepted and the proposal is uncertain.
I note what I have previously said about the issues concerning the mother’s capacity. I need not deal with the father’s capacity.
I am satisfied that the paternal grandmother has good parenting capacity. I am satisfied that the mother has parenting capacity to spend time with the child as proposed by the ICL. I note that the child’s medical diagnoses and personal factors.
I am satisfied that the ICLs proposed orders, subject to the adjustments I indicated I am going to make, provide for the ongoing stability that X needs, as well as the capacity to maintain a relationship with the mother and also, to the extent possible, with the father.
Weighing all of those matters, I am comfortably satisfied that at the moment, that X’s best interests require the making of orders largely in line with those proposed by the ICL. I will add some notes to make clear that the limited time with orders for the mother are due to distance and practicality.
Those are my reasons. Orders will be entered according to those reasons.
Costs
Pursuant to the obligation incumbent upon the independent children’s lawyer, counsel for the independent children’s lawyer has made an application for costs.
Section 117 sets out the relevant factors, especially at subsections (2A), (4) and (5). I note the observations of Kirby J in CDJ & JAV (1998) 197 CLR 172 and, particularly, the observations to the effect that generally one would expect that parents would be equally responsible for the costs of a child’s representation rather than that cost being left to the community.
In this case the paternal grandmother has picked up the obligation and cost of caring for her grandchild, for which she should be congratulated, and she is also on Legal Aid. I do not think it would be appropriate to impose any further burden upon her.
The mother is living on $600 per fortnight, and she needs that money to be able to see the child. She is effectively impecunious. In those circumstances I do not think it would be appropriate to place any financial burden upon her.
The father has recently been released from prison. I do not know his financial situation, but, nevertheless, the position he adopted throughout the trial was to accept culpability for his prior actions and to seek no orders other than those proposed by the ICL. In those circumstances as no part of the costs arise from his limited participation I am also satisfied that it is not appropriate to impose any costs order on him.
There will be no orders as costs.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 29 August 2022
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