Dodds and Storace and Anor

Case •

[2014] FamCA 209

FAMILY COURT OF AUSTRALIA

DODDS & STORACE AND ANOR [2014] FamCA 209
FAMILY LAW – CHILDREN – With whom the child spends time – where the mother did not attend the hearing – where it is agreed that the child will live with the father – where the maternal grandmother seeks unsupervised time with the child – where the maternal grandmother has made repeated allegations of risk to the child in the father’s care – where the mother previously absconded with the child – where the maternal grandmother was supportive of the mother’s actions – where the father and Independent Children’s Lawyer oppose the maternal grandmother spending any time with the child – best interests – where a party to the proceedings is not a parent – where the child settled and happy – finding that the child is at risk if he spends time with the maternal grandmother – parental responsibility considered – order that the father have sole parental responsibility – no orders made for the mother to spend further time with the child. 
Family Law Act 1975 (Cth)

Aldridge & Keaton (2009 FLC 93-241
Mulvany & Lane (2009) FLC 93-404

APPLICANT: Mr Dodds
FIRST RESPONDENT: Ms Storace
SECOND RESPONDENT: Ms Lorne
INDEPENDENT CHILDREN’S LAWYER: Kristy Hams
FILE NUMBER: MLC 1144 of 2009
DATE DELIVERED: 3 April 2014
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Macmillan J
HEARING DATE: 20 - 22 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person
SOLICITOR FOR THE APPLICANT: N/A
COUNSEL FOR THE FIRST RESPONDENT: No appearance
SOLICITOR FOR THE FIRST RESPONDENT: N/A
COUNSEL FOR THE SECOND RESPONDENT: In person
SOLICITOR FOR THE SECOND RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carter
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kristy Hams, Glezer Lanteri & Associates

ORDERS

IT IS ORDERED THAT

  1. All previous parenting orders be discharged.

  2. The father have sole parental responsibility  for the child J born … April 2008, save that the father shall prior to the making of any major long-term decision in relation to the welfare of the child:

    a)   use his best endeavours to advise the mother in writing of any decision intended to be made; and

    b)     seek the mother’s written response in relation thereto; and

    c)     consider, by reference to the best interests of the child, any such response to making any decision; and

    d)     advise the mother in writing as soon as is reasonably practicable of his ultimate decision.

  3. The child live with the father.

  4. The mother spend time and communicate with the child as follows:

    a)   at B Contact Centre, subject to B Contact Centre being  willing and able to facilitate supervised time, on such days and at times as may be agreed between the father, the mother and Ms C (or her nominee) at B Contact Centre; and

    b)     such further and other times as may be agreed between the mother and the father.

  5. The mother and father be responsible for one half of all costs associated with the provision of supervised changeover at B Contact Centre.

  6. The maternal grandmother spend no time nor communicate with the child.

  7. The mother be and is hereby restrained from bringing the child into contact with the maternal grandmother at any time.

  8. The mother and father utilise a Communication Book to be supplied by the father to the mother , such Communication Book is to be used if practical to advise the mother of any matter referred to in paragraph 2 hereof and to include but not be limited to the following matters:

    a)   the name and address of any specialist health professionals of the child;

    b)     any initial specialist medical appointments, the purpose of such appointments and any progress reports;

    c)     any significant injury or illness affecting the child; and

    d)     any overnight hospital attendance by the child.

  9. The father do all things necessary to authorise the mother and to keep the mother authorised to receive information, at the expense of the mother, copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent, with the mother to be prohibited from attending the school for any purpose.

10. The father and the mother, together with their servants and agents, be and are hereby restrained from:

a)    denigrating each other to and in the hearing of the child, or allowing another to engage in such conduct;

b)     discussing family law matters with the child, including but not limited to their relationship particulars and the alleged disputes and acts of violence between them; and

c)     using the Communication Book as an inappropriate mode of communication, or method of abuse, denigration or harassment.

11. The order for the appointment of the Independent Children’s Lawyer be discharged.

12. All extant applications be otherwise dismissed and the matter be removed from the list of cases pending hearing.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dodds & Storace and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1144 of 2009

Mr Dodds

Applicant

And

Ms Storace

First Respondent

And

Ms Lorne

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

  1. In her report dated 2 December 2013 the family consultant Ms D described the child J, (“the child”), who is now almost six years of age, as follows:

    [The child] presents as a friendly, open and engaging child. He was appropriately inquisitive of his surroundings and remarked that “this playroom is different to the contact centre.” [The child] appears to be well and healthy. His gross motor skills appear to be within expected parameters; he is reportedly able to balance on a scooter, ride a bike and kick a football. His fine motor coordination was observed to be well developed given his age and stage of development. [The child] is able to correctly identify and form letters and numbers and can write his own name legibly. He is an articulate child, using a wide vocabulary and appears able to identify basic feelings. He is able to engage in imaginative play but clearly has the capacity to distinguish fantasy from reality. [The child] spoke positively about school and appears to have a number of friends, including identifying his Grade 6 buddy and her friends as his friends.

  2. This description of the child is extremely positive given the long and turbulent history of this matter and the dysfunctional nature of his parents’ relationship and those of his extended family.

Background

  1. This matter has a long and complicated history and rather than referring to each and every incident and event I will attempt to summarise that history and highlight those matters that I consider to be of particular relevance to the limited issues I must determine.

  2. The father and mother in this matter began living together in 2007 and separated in or about May 2008. The child J, who is the only child of the relationship, was born in April 2008 and is now almost six years of age. The child was only one or two months old when his parents separated.

  3. The child is currently attending school and completed his Prep year in 2013. The father’s evidence is that the child is popular at school and that he attends every day. The child is taken to school each day by a paternal aunt and, on the father’s evidence, he has a close relationship with his paternal grandmother.

  4. The child has been at the centre of his parents’ highly conflictual relationship for the entirety of his young life. There is a long history of allegations of mutual family violence, conflict and litigation between not only the child’s mother and father but additionally between each of his parents and the maternal grandmother, who was joined as a party to the proceedings on 4 June 2012 by order of Federal Magistrate Bender, as she then was.

  5. There have been numerous allegations made by the mother and the maternal grandmother that the child has been abused by and sustained injuries whilst in his father’s care. As a result of these allegations, both Victoria Police and the Department of Human Services have had extensive involvement with the child, none of which has led to a finding by the Department of a substantiation of the allegations made against the father.

  6. During the course of the various proceedings, including whilst listed in the then Federal Magistrates Court, recovery orders have twice been issued for the child. The first of these orders was made in September 2010 following the father’s refusal to return the child to the mother’s care. The second recovery order was made in May 2012 following the removal of the child from the court precincts by the mother. This second event resulted in the issuing of a warrant for the mother’s arrest.

  7. The second incident is of particular significance given that the mother was living with the maternal grandmother at that time and it was alleged that the maternal grandmother was complicit in the mother’s decision to remove and retain the child in contravention of the orders that the child live with the father. The maternal grandmother gave evidence at that time that she had no information in relation to the whereabouts of the mother or the child other than having received a message that they were safe and staying with an elderly Christian couple.  I will refer to this in more detail later in these reasons.

  8. The child’s father is Mr Dodds. He is 25 years old. The father and the child live with the paternal grandmother in her home in Suburb A. The father describes his occupation as home duties and currently has the full-time care of the child. The father deposes that he has not re-partnered since his relationship with the mother ended.

  9. The mother is Ms Storace. She is 27 years old. The child is the mother’s second oldest child. The mother has three other children who are not the subject to these proceedings. The mother’s eldest child is nine years old and lives with his father. The mother’s second youngest child is four years old and lives with her father. Both these children spend no time with the mother. The mother’s youngest child was born in June 2013 and is currently in the care of the mother and her new partner.

  10. The maternal grandmother is Ms Lorne. She identifies as an Aboriginal woman and is 50 years old. The maternal grandmother lives in Suburb I with her 16 year old nephew who has been in her care since infancy. The maternal grandmother has six biological children. It was her evidence that she has not seen the mother’s eldest child and second youngest child for a number of years, and has not seen the mother’s youngest child since September 2013 when the maternal grandmother asked the mother to leave her home due to what she said was the mother’s drug taking. The maternal grandmother does however with varying degrees of frequency spend time with her other children and their children save and except for her son Mr E and his wife and children.

  11. The maternal grandmother and the mother have a fractured relationship, characterised by periods of conflict. At the time of the hearing, the maternal grandmother and the mother were not, according to the maternal grandmother, on speaking terms.

History of the Proceedings

  1. On 23 July 2013 I made orders in chambers listing the matter for a first day of hearing before me on 12 September 2013. It was further ordered, inter alia, that:

    a)the parties and, if represented, their legal practitioners, attend the hearing;

    b)by 4.00 pm on 15 August 2013 the father file and serve upon all other parties an amended application setting out with precision the orders he sought;

    c)by 4.00 pm on 29 August 2013 the mother and the maternal grandmother file and serve upon all other parties an amended response setting out with precision the orders they sought; and

    d)by 4.00 pm on 5 September 2013 the parties, including the Independent Children’s Lawyer, file and serve a brief summary of the legal and factual issues in dispute.

  2. On 12 September 2013 the matter was listed for hearing before me. On that date, both the father and the mother appeared in person and the maternal grandmother was represented by a solicitor who had prepared a case summary and filed an Amended Response to Initiating Application on 2 September 2013. The Independent Children’s Lawyer was represented by counsel on that date and had also prepared and filed a case summary on 11 September 2013.

  3. On that date, I made orders fixing the matter for final hearing as a three day matter commencing 20 January 2014. I made further orders as follows:

    a)that the father file and serve an amended application setting out with precision the orders he sought and his affidavits of evidence in chief by 4.00 pm on 10 October 2013;

    b)that the mother and the maternal grandmother file and serve an amended response setting out with precision the orders they sought and their affidavits of evidence in chief by 4.00 pm on 31 October 2013; and

    c)that the father file and serve any affidavits in reply to the affidavits of the mother and the maternal grandmother by 4.00 pm on 21 November 2013.

  4. I ordered that the Independent Children’s Lawyer file and serve any affidavits to be relied upon by 4.00 pm on 21 November 2013 and the matter was otherwise listed for mention before me at 9.00 am on 10 December 2013.

  5. None of the parties complied with the orders for the filing of documents and so at the mention before me on 10 December 2013, there being no appearance by or on behalf of the father or the mother, I made orders that the parties file and serve any affidavits upon which they sought to rely by 4.00 pm on 13 January 2014. At that mention, Ms Hams the Independent Children’s Lawyer appeared and the maternal grandmother was represented by a solicitor who advised that it would be her last day representing her client due to a lack of legal aid funding.

  6. At the final hearing before me commencing 20 January 2014 both the father and the maternal grandmother appeared in person and the mother, who was the applicant in the case, did not personally appear and was not represented. None of the parties other than the Independent Children’s Lawyer had filed or served any affidavits of evidence in chief pursuant to my previous orders, however at the commencement of the hearing the maternal grandmother sought and was granted leave to rely upon her affidavit filed in the then Federal Magistrates Court on 27 July 2012. The maternal grandmother did not seek to rely upon her affidavit filed in the then Federal Magistrates Court on 4 March 2011 but counsel for the Independent Children’s Lawyer indicated that she would seek to cross-examine the maternal grandmother on its contents.

  7. The Independent Children’s Lawyer relied upon the following documents:

    a)family report of Ms D dated 2 December 2013;

    b)family reports of Ms F dated 27 June 2010 and 20 March 2011;

    c)psychiatric assessment of the mother prepared by Dr G dated 15 July 2010;

    d)psychiatric assessment of the father prepared by Dr G dated 10 August 2010;

    e)reports from B Contact Centre;

    f)report from the Department of Human Services dated 24 July 2012;

    g)material produced by way of subpoena;

    h)a chronology prepared by the Independent Children’s Lawyer and marked “Aide Memoire 1”; and

    i)the Independent Children's Lawyer’s outline of case filed 16 January 2014.

  8. In the absence of the mother, the issues were limited to the question of whether the father should or should not have sole parental responsibility and what, if any, time the maternal grandmother should spend with the child. The maternal grandmother did not seek orders for parental responsibility but submitted that in the absence of the mother no order should be made in relation to parental responsibility.

  9. As the primary issue to be determined was what, if any, time the child should spend with the maternal grandmother, in accordance with the provisions of Division 12A of the Family Law Act 1975 (Cth) (‘the Act’) I determined that it would be appropriate for the maternal grandmother to be treated as the applicant for the purposes of the proceedings before me. This was not opposed by the father, the maternal grandmother or the Independent Children’s Lawyer and the matter proceeded on that basis.

  10. As a result of the mother’s non-appearance and the failure of both the father and the maternal grandmother to file affidavits in accordance with my orders the hearing proceeded on a somewhat truncated basis. Both the maternal grandmother and the father were given the opportunity to give oral evidence in support of the orders they sought, in the case of the maternal grandmother in addition to the evidence contained in her affidavit filed 27 July 2012, and to cross-examine each other and the family consultant Ms D.

Legal Principles

  1. The objects underlying the provisions of Part VII of the Act relating to children are set out in s 60B(1) of the Act as follows:

    The objects of this Part 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.

  2. The principles underlying those objects are outlined in s 60B(2). 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).

  3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).

  1. The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

Standard of Proof

  1. The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that in applying the relevant standard of proof the court must take into account:

    a)the nature of the cause of action or defence; and

    b)the nature of the subject-matter of the proceeding; and

    c)the gravity of the matters alleged.

  2. In this case, I have had the benefit of listening to the evidence and observing the appearance and the demeanour of the father and the maternal grandmother.  I have also had the benefit of hearing the evidence of the family consultant. I have carefully considered their evidence and make my findings to the requisite standard having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations, the matters which I must consider and the consequences that flow from my findings.

Assessment of the Evidence

The maternal grandmother

  1. The maternal grandmother was cross-examined at some length by counsel for the Independent Children’s Lawyer. The family consultant described the maternal grandmother at paragraph 46 of her report as follows:

    She appears to abrogate any responsibility for her own behaviour and the role this might play in the conflict she has with her daughter and also her son, apportioning blame solely with her children … She clearly has significant difficulty accepting decisions that do not accord with her own view.

  2. Although these observations were made of the maternal grandmother’s behaviour and attitude generally, I am satisfied having heard her give evidence that it is also an apt description of her evidence and the way in which she gave that evidence. As is often the case, this may be as a result of a lack of insight on her part or inability to reflect upon her own behaviour rather than a deliberate attempt to mislead, although the end result is the same.

  3. In this case, however, I am satisfied that the unreliability of her evidence is not simply a matter of her lack of insight. Apart from the fact that the maternal grandmother was often unclear about particular incidents and when or how often they had occurred, she also resiled from evidence contained in earlier affidavits filed on her behalf and the way in which she had previously put her case.

  4. For example, the maternal grandmother could not recall and gave a number of different versions of how often either she or the mother had recorded what she says were the child’s descriptions of abuse or taken photographs of alleged injuries and how often she had reported her concerns to Victoria Police and which police stations she had attended in order to do so.  

  5. Another particularly striking example was her evidence about the occasion on 28 February 2011 when she collected the child from the paternal grandmother and, when she was later changing his nappy, discovered that his bottom was red and infected. The maternal grandmother says that she could not immediately make an appointment to see a doctor but ultimately took the child to an appointment with the mother on 1 March 2011. She deposed in her affidavit filed 4 March 2011 as follows:

    On Monday 28 February 2011 after I collected [the child] from [the paternal grandmother] I noticed when I was changing him that his bottom was red raw and infected. [The child] is often returned with nappy rash when he has been in the [father’s] care but on this occasion his bottom appeared to be particularly red and he kept running away from me whenever I went to change him. [The child] usually comes and tells me when he has soiled his nappy but more recently he has stopped telling me and he runs away and struggles with me when I try to change him.

    I attempted to arrange an appointment with a doctor that afternoon but was unable to secure an appointment until Wednesday afternoon so in the meantime I applied nappy rash cream. I ultimately took [the child] to an appointment with a doctor at the [Suburb H] Medical Clinic at approximately 3pm on Wednesday 1 March 2011 and [the mother] attended with me.

    [The child] also resisted being examined by the doctor and he asked me if I had concerns that he may have been sexually abused. I told him that I didn’t know and that I thought it was a case of bad nappy rash from [the child] being left in soiled nappies for too long but that I was concerned that he might have been sexually abused.

    During the course of the examination [the child] said to me, “Nanny my old fella sore. Nanny kiss it better?” The examining doctor said that he did not know what the cause of the infection was and ultimately suggested that I immediately take [the child] to be assessed at [K] Hospital and provided me with a letter of referral.

    I was unable to take [the child] to the hospital as I was due to return him to [Ms S] pursuant to the current orders. In the circumstances I notified her at changeover of what had happened and asked her to arrange for [the child] to be assessed at [K] Hospital which she agreed to do.

    I also notified DHS and SOCAU in relation to the situation and I have not heard anything further from either agency.

  6. Notwithstanding her sworn evidence, when cross-examined about this incident the maternal grandmother said that it had been the doctor who had raised the possibility of sexual abuse and not her, which is contrary to that sworn evidence. The maternal grandmother further said she had never heard the child use the expression “old fella” in reference to his penis or him ask her to “kiss it better” and that she has no explanation why these details were included in her affidavit.

  7. There were other occasions when the maternal grandmother suggested that what was contained in her sworn evidence was not correct and that she could not explain her earlier evidence. The maternal grandmother accepted little responsibility for any inaccuracies in her evidence before me or between that evidence and her previous evidence.  

  8. I have little confidence in the maternal grandmother’s evidence not only because of the flaws and inconsistencies in her evidence during the course of these proceedings but also because of what I observed to be her total preoccupation with her own needs.

The father

  1. The father had not filed an affidavit of evidence in chief and so he gave brief viva voce evidence in chief and was cross-examined by both counsel for the Independent Children’s Lawyer and the maternal grandmother. My observations of the father were of a somewhat immature and unsophisticated man somewhat overwhelmed by the court environment but doing his best to tell the truth, including making concessions arguably against his interest, such as his evidence in relation to his ongoing marijuana use and his failure to comply with previous orders with respect to attending a parenting course, post-separation course or anger management course.

  2. Insofar as there is any conflict between the evidence of the father and the maternal grandmother, I prefer the evidence of the father.

The family consultant

  1. The family consultant Ms D was cross-examined by both the Independent Children’s Lawyer and the maternal grandmother. The father did not seek to cross-examine the family consultant. The family consultant’s evidence was thoughtful and considered. Not only was her evidence not shaken in any way as a consequence of the matters put to her, in particular by the maternal grandmother, but she was also able to reflect upon matters that were put to her which had arisen during the course of the case and confidently incorporate that information into her evidence. I accept the family consultant’s evidence without reservation. 

Proposals

  1. Given neither the mother, the father nor the maternal grandmother had filed any trial material, the Independent Children’s Lawyer set out in her outline of case in detail what she described as preliminary proposals. They are as follows:

    1.That all previous parenting orders be discharged

    2.That the Father exercise the sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the child, namely [J] born … April 2008 save that the Father shall, prior to the making of the sole ultimate decision about any long term issue:-

    (a)Use his best endeavours to advise the Mother in writing of any decision intended to be made via the Communications book; and

    (b)Seek the Mother’s written response in relation thereto via the Communications Book; and

    (c)Consider, by reference to the best interests of the child, any such response to making any decision; and

    (d)Advise the Mother in writing as soon as reasonably practicable of his ultimate decision via the Communications Book.

    3.That the child live with the Father

    4.The Mother spend time with and communicate with the child as follows:-

    (a)Whilst [B Contact Centre] are still willing and able to facilitate supervised time, in accordance with the days and times as agreed to as between the Father, the Mother and [Ms C] (or her nominee) at [B Contact Centre].

    (b)Subject to a favourable report from [B Contact Centre] as to the Mother’s supervised time with the child, the Mother spend unsupervised time with the child on a monthly basis on either a Saturday or Sunday, for a period not exceeding four hours at times, as can be accommodated by [B Contact Centre] who are to provide supervised changeover.

    (c)In addition to the time referred to above, should the Mother wish to do so, she spend such further time with the child in order to celebrate Christmas, the child’s birthday and the Mother’s birthday and Mother’s Day, on days and at times as can be accommodated by [B Contact Centre] in their provision of supervised changeover, with such time to be for a four hour period and is to take place on a day as close to the subject occasion as possible.

    (d)Once per week via telephone on a day and time as agreed between the Father and the Mother with the Father to be at liberty to monitor such calls in the event he deems it necessary

    (e)Such further and other times as may be agreed between the Mother and the Father

    5.That the Maternal Grandmother spend no time nor communicate with the child

    6.That the Mother is prohibited from bringing the child into contact with the Maternal Grandmother at any time.

    7.The Mother and Father be responsible for one half of all costs associated with the provision of supervised changeover at [B Contact Centre].

    8.That the Mother and Father utilise a Communications Book to [be] supplied by the Father to the Mother through the supervisor or Contact Centre. Such Communications Book is to advise of any matter referred to in paragraph 2 and is to advise the Mother of-

    (a)The name and address of any specialist health professionals of the child; and

    (b)Any initial specialist medical appointments, the purpose of such appointments and any progress reports.

    (c)any significant injury or illness affecting the child; and

    (d)any overnight hospital attendance by the child.

    9.That the Father do all things necessary to authorise the Mother and to keep the Mother authorised to receive information at the expense of the Mother, copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent, with the Mother to be prohibited from attending the school for any purpose.

    10.That the Mother, Father and Maternal Grandmother, together with their servants and agents be and are hereby restrained from:-

    (a)denigrating each other to and in the hearing of the child, or allowing another to engage in such conduct; and

    (b)discussing family law matters with the child, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them.

    (c)Using the Communications Book as an inappropriate mode of communication, or method of abuse, denigration or harassment.

    11.The child be permitted to attend upon a counsellor if deemed necessary by the Father.

    12.That the Mother is to attend upon a psychologist/counsellor for such period as may be deemed necessary.

    13.Usual section [65DA(2)] and section [62B]) Orders

    14.The Independent Children’s Lawyer be discharged.

  2. At the commencement of the hearing before me the Independent Children’s Lawyer submitted that as a result of the mother’s decision not to participate in the proceedings the proposed orders should not provide for the child’s time with the mother to progress to unsupervised time. The father adopted the Independent Children’s Lawyer’s proposals.

  3. The maternal grandmother sought orders that she spend time with the child as follows:

    a)from after school on Friday until 5.00 pm on Sunday every third weekend; and

    b)for one week in each of the school term and long summer school holidays.

The child’s best interests when a party to the proceedings is not a parent

  1. Finn J in Mulvany & Lane (2009) FLC 93-404 (‘Mulvany & Lane’) discussed in some detail the application of s 60CC(2) and (3) in circumstances where one of the parties, following parentage testing, was found not to be a “parent”, as that term is used in the Act, and said at [16] as follows:

    As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b)      (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.

  2. May and Thackray JJ in their judgment at [76] – [77] and [81] – [82] said 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 of s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.

    …

    Whilst we accept, as a matter of statutory interpretation, that s 60CC(2)(a) had no application to the father, we are not convinced Parliament ever turned its mind to where the husbands in his position should have any different “status” for the purposes of Part VII of the Act. It should be remembered that the law has always been quite content to presume, absent proof to the contrary, that every child born to a married woman is the child of the man to whom she is married – even if the couple are not living together. (See now ss 69P(1) and 69U(1).)

    Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.

  3. The Full Court in Aldridge & Keaton (2009 FLC 93-241, referring to Finn J’s reasons in Mulvany & Lane, concluded at [74] as follows:

    Subject to the inclusion of a reference to “other intended parents” in s 60H, we agree with Finn J’s comments in Mulvany & Lane, and note that although the amending Act introduced detailed and complex provisions which a court must consider when determining whether to make a parenting order, or in refusing to make a parenting order, the amendments themselves do not:

    ·    suggest any order in which the provisions must be considered; and

    ·    direct any particular weighting or priority to any provision in the Part (although we note the division of s 60 CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations)[.]

  4. And at [79] the Full Court said as follows:

    In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

  5. The two issues I must determine in this case are whether, notwithstanding that the mother has not participated in these proceedings, it is in the child’s best interests that his father have sole parental responsibility for him and whether he should spend any time or communicate with the maternal grandmother. In order to make my decision and irrespective of the fact that the proceedings involve a party who is not a parent I must consider the matters in ss 60CC(2) and (3) informed by the underlying principles and objective of the Act in so far as they are relevant.

Nature of the child’s relationship with the parties and the other adults in his life, the benefits of a meaningful relationship with them and the parties’ willingness to facilitate the child’s relationship with the other parent

  1. When invited by the family consultant to describe the members of his family she said that the child “included his father, his paternal grandmother (Nanna)[,] his mother and a dog named [L] and a cat named [M].” When asked whether he visited other people in his father or mother’s family, the family consultant said the child identified his paternal aunt and cousins.

  2. The family consultant described the child’s relationship with his father as follows:

    Their interaction was spontaneous, comfortable, mutually responsive and light hearted. [The father] was observed gently and calmly setting appropriate limits on [the child’s] behaviour.

    …

    Despite inconsistent contact with his father following the parents separation, there now appears to be a positive and healthy relationship between [the child] and his father.

  3. The family consultant also observed the child with the mother and described him as moving freely between his parents and that he was “very affectionate with his mother, both initiating and responding to hugs and kisses. … Their interaction was warm and mutually responsive, indicating a close and connected relationship.”

  4. The child has been spending supervised time with the mother at B Contact Centre since May 2013. Although the time the mother spends with the child has not been as regular as it perhaps should have been, the reports of the mother’s time with the child are positive and I am satisfied that he benefits from spending time with the mother, subject to the safeguards that are in place.

  1. I am satisfied that notwithstanding the history of the matter and the limitations associated with the child spending at present only supervised time with the mother that he has a meaningful relationship with both his parents and will benefit from an ongoing relationship with both of them. 

  2. I am satisfied that the father continues to be supportive of and will facilitate the child’s relationship with the mother subject to supervision, albeit there have been occasions when he has not made the child available to spend time with the mother. The difficulty in this case is that it will not be possible for the mother to continue spending time with the child at B Contact Centre on an indefinite basis, however, in the absence of an application by the mother with respect to her time with the child, this is a matter that the father and mother will have to resolve by agreement or, in the absence of some agreement, may unfortunately lead to there being further proceedings instituted.

  3. The child lives with the father in the paternal grandmother’s home, which probably explains why the child identified her as part of his immediate family. Although the paternal grandmother did not participate in the family report interviews nor was she a witness in the case, she accompanied the father to the interviews with the family consultant and was present in Court throughout the proceedings before me.  I accept the father’s evidence that the child has a good relationship with the paternal grandmother and paternal aunt and her children in particular and his extended family generally.

The child’s relationship with the maternal grandmother

  1. I am satisfied that until mid-2012 the maternal grandmother had, at the very least, a significant involvement in the child’s life. The maternal grandmother would say that the child’s primary attachment was to her and not the father or the mother. It is not necessary for me to determine whether or not that is the case for the purposes of the decision I must make, suffice to say that I am satisfied that until mid-2012 the child had a meaningful relationship with the maternal grandmother.  

  2. It is not in dispute that the child has not spent any time with the maternal grandmother since mid-2012 and, it follows, the members of his extended maternal family with whom the maternal grandmother has contact. Although the orders made by Federal Magistrate Connolly, as he then was, provided for the child to spend supervised time with the maternal grandmother at B Contact Centre, the contact centre has not been able to accommodate the child’s time with the maternal grandmother whilst he is spending time with the mother at the centre. I am not satisfied, as submitted by the maternal grandmother, that either the father or the mother either delayed the commencement of the mother’s supervised time at B Contact Centre or have reduced the frequency of the supervised visits in order to prevent the child spending time with the maternal grandmother.

  3. The family consultant chose not to observe the child with the maternal grandmother on the basis that he was likely to be confused by a brief contact with her in circumstances where he had not seen her since mid-2012 and where there was no certainty as to when or for that matter whether he would see her again.

Capacity to meet the child’s needs

  1. I am satisfied having heard the father’s evidence and on the basis of the report prepared by the family consultant that the father has the capacity to provide for the child’s physical, intellectual and emotional needs and that he has demonstrated a responsible attitude to his role as a parent.

  2. Although the mother has not participated in these proceedings and I am therefore not in a position to make definitive findings, I have reservations about the mother’s capacity to meet the child’s needs and her attitude to the responsibilities of parenthood. However I am satisfied, as I have already discussed, that the child has benefited from and will continue to benefit from his relationship with his mother, subject to the safeguards that are presently in place, and that she has the capacity to care for him in that somewhat limited context.   

  3. My reservations about the mother’s capacity to provide for the child’s needs, however, are also relevant for the purposes of the father’s application that he have sole parental responsibility for the child. The mother was described by Dr G as follows:

    I concur with Dr [N’s] conclusion that she has features of a Borderline Personality Disorder. This diagnosis is tentative but based upon a history of rapid and intense mood swings, episodes of poorly regulated anger and hostility, self-harm attempts, relationship dysfunction with probable idealisation and devaluation, immature coping mechanisms and a limited capacity for alternative perspective taking. (Emphasis in original)

  4. This diagnosis in relation to the mother, tentative as it is, would not bode well for the purposes of the father and mother consulting each other and making decisions with respect to the child’s welfare.

  5. The family consultant observed that the mother “appears to be preoccupied by the current conflict with [the maternal grandmother] and from comments made by both [the mother] and [the father] … it would appear that at present there is some capacity between them to become united against [the maternal grandmother] being ‘the common enemy.’ However, this is not an indication that there has been any progress in their capacity to communicate effectively and respectfully about their son and his needs, or their capacity for collaborative parenting.” 

  6. I have also had regard to the matters in s 60CC(4) and (4A). Apart from not participating in these proceedings, the mother has also not always taken the opportunity to spend time with the child or, insofar as she has done so, she has not acted as promptly as she might be expected to in order to facilitate her time with him, which includes making the necessary arrangements to spend time with the child at B Contact Centre.  Once enrolled at B Contact Centre she has not spent as much time with the child as the orders envisaged, however that may in part be explained by the fact that she has a new baby with her current partner.

  7. The father, by default, appears to have been responsible for making the long term decisions with respect to the child. This may be partly because he has not sought to involve the mother in that decision making process, as well as the mother’s failure to participate in that decision making process. In any event, given the history of conflict in this matter it is hard to have any confidence that the father and the mother will be able to consult each other and join together in making the necessary decisions with respect to the child’s welfare. Any attempt to involve the father and the mother, notwithstanding that at least for the time being they appear to be united against the maternal grandmother, has the potential, in my view, to lead to further conflict.

The risk of abuse

  1. It is incumbent on the Court pursuant to the Act to make orders that will protect the child “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. Abuse, in relation to a child, is defined in s 4 of the Act and includes the following:

    … causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, or family violence …

  2. As referred to by the family consultant, the father and mother’s relationship was “characterised by mutual family violence, including threats to harm, which at time included extended family members” and “[b]oth parents have a history of using illicit substances and regularly consuming alcohol.”  

    Although during the course of her interview with the family consultant the mother expressed her concerns in relation to the father’s “continued use of illicit substances and his potential for violent behaviour. [The mother] acknowledged she has seen little evidence of this in recent times and her concerns are based upon experience of his behaviour in the past.” Although the mother said she was seeking orders that the child live with her, she also told the family consultant that that was based “primarily on her desire to have her son live with her, rather than on significant concerns about [the child’s] safety in the care of his father.”

  3. I am satisfied that the child has been exposed to family violence. However, although both the father and the mother previously sought and obtained family violence orders against each other, doing the best I can on the evidence before me I am satisfied that there are currently no orders in force and no recent allegations of family violence.

  4. The maternal grandmother has throughout the history of these proceedings consistently alleged that the child is at risk of sexual abuse, physical violence and neglect and emotional abuse in the father’s care.  These allegations have not been substantiated by either Victoria Police or the Department of Human Services.

  5. The Department of Human Services has had extensive involvement in this case between 2008 and 2012. The child has been interviewed by both the Victoria Police and Department workers as a result of allegations made by the maternal grandmother during that period, the Department’s most recent involvement being as a result of a notification made on 11 May 2012. The case was closed on 28 August 2012 with the Department recommending that the child continue to live with his father. 

  6. Although the father does admit that he still uses marijuana, the evidence does not lead me to conclude that, at least currently, this is having any significant impact upon his capacity to care for the child. That being said, I draw some reassurance from the fact that on the last day of the hearing he consented to an order that he seek counselling to help him address his drug and alcohol use.

  7. As described by the family consultant, the child “presents as settled, stable and happy and his overall development has continued to progress with [the child] reportedly doing well at school both with regard to his social skills and his ability to learn.”  This is consistent with the father’s evidence and the child’s most recent school report, which was tendered by the Independent Children’s Lawyer. There is no evidence before me to the contrary which suggests that the child is not being appropriately cared for by the father or is at risk in his care.

  8. I am satisfied that, notwithstanding the somewhat turbulent history of this matter, that the child is not at risk in his father’s care. Although there may be some risk to the child in his mother’s care that is difficult to assess with any certainty given her failure to participate in the proceedings, however, in any event the mother is not seeking that the child live with her and the father is proposing that the time she spends with the child continue to be supervised. In those circumstances, I am satisfied, subject to that ongoing supervision, that the child is not at risk in the mother’s care.

Maternal grandmother’s capacity to meet the child’s needs and any risk she poses to his welfare

  1. The family consultant in her report opined that the child had had the opportunity to form a positive relationship with the maternal grandmother and, that as long as his physical and emotional safety was not compromised, he should have an opportunity to continue to enjoy a relationship with the maternal grandmother.

  2. Although the maternal grandmother opened her case by saying that she was happy for the child to remain in the father’s care it was clear from her evidence, which is confirmed by the family consultant’s evidence, that she “remains concerned about [the child’s] safety in the care of either of his parents alleging both continue to use illicit substances, engage in violent and abusive behaviour and are not able to provide a stable home for him.” The family consultant further reported that the maternal grandmother:

    … perceives that [the child] has been let down by [the Department], Victoria Police and the Family Court; the system has not listened to her concerns, denied the child a voice and made decisions not in the best interests of the child but in the best interests of the father … Her concerns in relation to [the father] relate to her firm belief he has physically abused [the child] on more than one occasion as well as the fact that he continues to misuse illicit substances which affects his capacity to provide appropriate care for the child. She continues to believe it would be in [the child’s] best interests to be in her care until the parents have accessed professional support to assist them to address their issues and be in a position to provide a safe environment for [the child].

  3. The family consultant reiterated her view that the maternal grandmother “appears to have considerable difficulty accepting decisions that do not accord with her own views.”

  4. In her report the family consultant concluded that she was:

    … concerned … about  the possibility of [the maternal grandmother] again denigrating the father to or in the presence of [the child], including telling him his father has hurt him. If this were to occur, it would be highly confusing for [the child], destabilising his relationship with his father who is now his primary carer and would in fact be emotionally abusive. It is for these reasons, together with [the maternal grandmother’s] support for [the mother] absconding with [the child] and going into hiding for a number of weeks that it is considered necessary for any time [the maternal grandmother] spends with [the child] to be formally supervised in the longer term.

  5. In this case, I must weigh up the benefits to the child of the resumption of his relationship with the maternal grandmother against the background of the physical risk of the maternal grandmother over-holding the child in the event that she is to spend unsupervised time with him and the emotional risk to the child of any exposure to the maternal grandmother’s negative views of both the father and the mother.

  6. It was my impression of the maternal grandmother’s evidence that she was preoccupied with the conflict with both the mother and the mother’s brother Mr E. The maternal grandmother has also been involved in litigation in the Federal Circuit Court in relation to Mr E’s children, her grandchildren, as a result of him allegedly refusing to allow her to spend time with those children. The maternal grandmother said to the family consultant that “[Mr E] and [the mother] have the same father … they treat me like this because they have their father’s gene … he was a paranoid schizophrenic and was a suicidal, homicidal maniac … I need to protect my grandchildren from their parents …”

  7. During the course of the hearing before me the maternal grandmother appeared to me to be totally preoccupied with the dispute and its impact upon her with little capacity to reflect upon the impact of the dispute upon the child. One clear example of this was the maternal grandmother’s evidence in relation to the family consultant’s decision not to observe the child’s interaction with her for the purposes of preparing the family report, given the fact that their previously close relationship was not in dispute and that the child had not seen her since June 2012 and there was no certainty when they would next see each other again. In response to the family consultant’s explanation during cross-examination that she felt that the disadvantages of bringing the child into contact with the maternal grandmother for the purposes of that interview outweighed any advantages to the child,  the maternal grandmother replied, “but I didn’t feel like that”. The maternal grandmother then further said:

    I’ve always felt like … it’s people around us that always sabotage, or trying to sabotage, our relationship. They don’t want us to have that relationship. And when I came that day, I was to believe that I would have seen [the child] that day. So think of how I felt when I walked in that room and you told me that I won’t be seeing [the child].

    His mother never complies with anything and she just turns up whenever she feels like it, but she gets to see [the child]. Don’t you think just there in itself is a little bit disturbing for [the child], because he doesn’t know when his mother is going to come and go, but I’m consistent but I was the one who missed out in that interview … 

  8. The father’s concern which he expressed during the case and as he said to the family consultant is the maternal grandmother “brainwashing his son and continuing to make false allegations against him.” The maternal grandmother is reported by the family consultant to have said, in relation to the father, “how does a junkie beat me? How does he get his child in his care when I can provide a stable and non-violent environment … and I don’t take drugs or drink alcohol? That’s what I mean by right is wrong and wrong is right.” The maternal grandmother did not dispute that this is what she had said to the family consultant.

  9. There were a number of occasions during cross-examination that the maternal grandmother made it clear that her views about the father had not really changed, notwithstanding her statements to the contrary, and even more significantly that she supported the mother’s earlier decision to remove the child from the precincts of the court and not return him to the father’s care, contrary to the orders of the then Federal Magistrates Court. Whether the maternal grandmother was involved in the child’s removal from the court precinct that day, I am satisfied that at the very least she was supportive of the mother’s decision to do so.

  10. It is hard to imagine, given the strength of the maternal grandmother’s views about the mother and the father and what I am satisfied is her lack of insight into the child’s needs, that she is capable of keeping her feelings from the child nor am I satisfied that she would not, having herself determined that the child was at risk, either initiate an investigation of her concerns and/or fail to return him to the father’s care. Both of these possibilities, in my view, place the child at significant risk.

Practical difficulty and expense of the child spending time with the maternal grandmother

  1. Although the father’s case was that if the maternal grandmother was to spend any time with the child it would need to be supervised on an ongoing basis that, in my view, is not practical. The maternal grandmother’s case was that the child’s time with her would not need to be supervised. I do not agree with that submission. Other than the maternal grandmother’s proposal that she commence spending time with the child at B Contact Centre the maternal grandmother’s evidence was that she had made no enquiries and there was no evidence before me as to how this might be implemented and, in particular, how she would meet any cost.

  2. The family consultant said in her report that:

    [The child] has already had to adjust to not seeing [the maternal grandmother] for eighteen months; whether it will be in his best interests to spend time with her for a relatively brief period and then again experience the loss, if [the maternal grandmother] is not able/willing to continue supervised visits, will need to be considered.

  3. In the course of her evidence before me, when asked about the benefits and risks of the child commencing time with the maternal grandmother in circumstances where it may not be possible to move to unsupervised time or for him to continue spending time with her, it was the family consultant’s opinion that any benefit to the child would be outweighed by the loss he would experience, compounding the loss he has already experienced having previously lost contact with the maternal grandmother.

The child’s wishes

  1. When the child was asked by the family consultant whether he visits the maternal grandmother, he shook his head and said “Nan is gonna come and see me at the contact centre.” There is, otherwise, no evidence before as to any wishes the child may have expressed about seeing the maternal grandmother.

  1. It is, in my view, not unlikely that as the maternal grandmother had been a significant person in the child’s life that he would have missed her, however, even if he had expressed a wish to see her, in considering that wish the Court would need to take into account the child’s young age and also weigh up his wishes against any risk that might be associated with him spending time with the maternal grandmother.

The child’s Aboriginal heritage

  1. The maternal grandmother’s father was Aboriginal and she identifies herself as an Aboriginal woman. She told the family consultant that her father is a member of the Stolen Generation, having been removed from his family as a result of which she has limited information about her family background on her father’s side. The maternal grandmother wants the child to know about his cultural heritage and is concerned that this will not occur if he does not spend time with her.

  2. The child’s right to enjoy his Aboriginal heritage is a matter the Court must consider but it is just one of the matters that it must consider. I am satisfied that in the circumstances of this case it must be weighed up against the risk to the child of spending time with the maternal grandmother.

Parental responsibility

  1. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

  2. As these proceedings commenced prior to the introduction of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), “family violence” is defined as:

    … conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

    Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

  3. Abuse in relation to a child is defined under the then s 4(1) of the Act as:

    (a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs;  or

    (b)a person involving a child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person. 

  4. When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical 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 practical to spend “substantial and significant time” with each of the parents (s 65DAA(2)).

  5. In this case, there are reasonable grounds to believe that one or both of the father and the mother has engaged in family violence albeit that there does not appear to be an immediate threat of violence. On that basis, I am satisfied that the presumption of equal shared parental responsibility does not apply.

  6. In any event I am satisfied that in this case the presumption would be rebutted on the basis that it would not be in the child’s best interests for his parents to share parental responsibility for him. The mother and the father have not demonstrated a capacity to communicate with and consult each other in order to reach any decisions relating to the child’s welfare. It would appear that the father has made all of the necessary decisions with little or no consultation with the mother or with any attempts on her part to participate in that decision-making.

  7. In these circumstances it would not have been necessary for me to consider whether it was in the child’s best interests and reasonably practical for him to spend equal or substantial time with the mother, even if she had participated in the proceedings.

Further proceedings

  1. The orders with respect to the child spending time with the mother at B Contact Centre will continue, although the mother’s capacity to spend time with the child will ultimately be dependent upon B Contact Centre continuing to make its services available to the mother to supervise her time with the child. Although I am satisfied that it would be preferable to make orders that do not lead to the institution of further proceedings, as a result of the mother’s decision not to participate in the proceedings, it is not possible to rule out that possibility with any certainty.  Whether I make no orders for the child to spend time with the mother or the existing orders remain in force, further proceedings are likely.

  2. Although similarly I cannot rule out the possibility of the maternal grandmother issuing further proceedings seeking orders that the child spend time with her she will in any event be required to establish that there has been some change in circumstances.

Conclusion

  1. I am satisfied upon careful reflection of all of the matters I must consider that the orders I propose to make are in the child’s best interests. The Independent Children’s Lawyer’s proposal was drafted in anticipation of both the father and the mother taking part in the proceedings. It is not appropriate in circumstances where the mother has not participated to make some of the orders proposed by the Independent Children’s Lawyer and I have adapted her proposal accordingly.  In particular, I do not propose to make orders in relation to the mother’s time being increased to unsupervised time, orders for telephone time, or an order requiring the mother’s attendance upon a psychologist or counsellor. Even if I were to order that the mother attend upon a counsellor or psychologist given the history of this matter I have little confidence that she would do so and, in any event, if the mother wishes to increase the time she spends with the child to unsupervised time the onus will be on her to demonstrate that it is in the child’s interests to do so. That is likely to include evidence as to her mental health in so far as that impacts upon her capacity to care for the child. 

  2. Although I have little confidence given the history of this matter that the father and the mother will make use of a communication book, or that such an arrangement will be practical in the event that the mother is unable to spend time with the child at B Contact Centre, I am satisfied that it would, if they did make use of it, potentially avoid some of the conflict that has existed between them in the past.

  3. I am satisfied that the order sought by the father, and supported by the Independent Children’s Lawyer, that he have sole parental responsibility for the child is in his best interests. Whilst similarly unopposed I am also satisfied, having regard to all the matters that I have discussed, that it is in the best interests of the child to continue living with the father.  In light of the orders I propose to make I do not consider it either necessary or appropriate to make an order that the child be permitted to attend counselling if the father deems it appropriate for him to do so. That is in my view a matter for the father, who will have sole parental responsibility for the child, to determine.

  4. I am also satisfied that in all of the circumstances, having regard to and weighing up all the relevant considerations in s 60CC, that it is not in the child’s best interests to spend time with the maternal grandmother. Although I am conscious that this will prevent him from rebuilding a meaningful relationship with his maternal grandmother who had previously played a significant part in his life, in my view, the risk to the child’s welfare and particularly his emotional welfare is unacceptable.

  5. Subject to the matters I have already referred to, I will make orders in accordance with the orders proposed by the Independent Children’s Lawyer.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 3 April 2014.

Associate: 

Date:  25 March 2014

Key Legal Topics

Areas of Law

  • Family Law

  • Evidence

Legal Concepts

  • Standing

  • Procedural Fairness

  • Appeal

  • Costs

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