DOZIC AND anor & Department of Child Safety, Youth and Women AND ors

[2019] FamCA 312

FAMILY COURT OF AUSTRALIA

DOZIC AND anor & Department of Child Safety, Youth and Women AND ors

[2019] FamCA 312

FAMILY LAW – CHILDREN – contested residence between divorced maternal grandparents and paternal grandmother – where neither mother nor father are candidates for residence – where the child is subject to a child welfare order ‑ where the Court makes no findings of unacceptable risk associated with any grandparent.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Hodak Newman & Hodak (1993) FLC 92-421

APPLICANTS:

Mr Dozic and
Ms Dozic

FIRST RESPONDENT:

Department of Child Safety, Youth and Women

SECOND RESPONDENT:

Ms A Dozic

THIRD RESPONDENT:

Mr Jennings

FOURTH RESPONDENT:

Ms Jennings

FILE NUMBER:

BRC

7148

of

2017

DATE DELIVERED:

16 May 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

4, 5 & 6 June 2018

FINAL WRITTEN SUBMISSIONS:

31 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr M Drysdale

SOLICITOR FOR THE APPLICANTS:

Ryan Kruger Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms K Carmody

NO APPEARANCE BY THE SECOND RESPONDENT

THE third RESPONDENT appeared in person

COUNSEL FOR THE fourth RESPONDENT:

Ms AM McDiarmid

SOLICiTOR FOR THE RESPONDENT:

Delaney & Delaney

Orders

(1) That in accordance with section 69ZK(1)(a) of the Family Law Act 1975, this Order comes into effect when the child, X born … 2014 (“the child”) ceases to be subject of the Child Protection Order made under the Child Protection Act 1999 in the Children’s Court (Magistrates Court) at Brisbane.

Parenting responsibility

(2)      That Ms Jennings (“the paternal grandmother”) shall have the sole parental responsibility for making decisions regarding the major long-term issues in relation to the child.

(3)      That except in the case of emergency, the paternal grandmother shall, prior to making any decisions regarding the major long-term decisions in relation to the child, consult with Ms Dozic and Mr Dozic (“the maternal grandparents”), Ms A Dozic (“the mother”) and Mr Jennings (“the father”), in relation to decisions to be made and make a genuine effort to come to a joint decision about that issue, however in the event that the parties do not achieve agreement, the paternal grandmother shall have the sole parental responsibility for making the decision.

(4)      That for the purposes of the paternal grandmother consulting with the maternal grandparents, the mother and the father about major long-term issues in relation to the child, the paternal grandmother shall:

(a)       seek the other parties view within fourteen (14) days (or earlier if necessary) of a situation arising where a decision must be made about a major long-term issue in relation to the child; and

(b)      when the time frame for making a decision about a long-term issue in relation to the child permits, provide the other parties with an opportunity if they wish to arrange an appointment for the parties to attend with a Family Dispute Resolution Practitioner nominated by the parties seeking the meeting with the Family Dispute Resolution Practitioner (“the mediation”) to discuss the decision to be made and the party seeking the mediation shall be responsible for the payment of the costs of the mediation.

(5)      That for the purposes of these Orders, a major long-term issue includes and is not limited to issues such as:

(a)       education;

(b)      religion;

(c)      health;

(d)      name; and

(e)      any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with the other parties.

(6)      That the maternal grandparents shall be responsible for decisions about issues that are not made a long-term issues when the child is in their care without the need to consult the paternal grandmother.

The care arrangements during term time

(7)      That the child live with the paternal grandmother when not living with the maternal grandparents.

(8)      That regardless of whether the child has commenced school or not, during the school terms the child shall live with the maternal grandparents:

(a)       each alternate Thursday, starting from the first Thursday after the issue of this Order, from 3.00pm (or after school if the child is attending school) until 9.00am (or before school if the child is attending school) on Friday; and

(b)      in the other week and each alternate week thereafter from 4.00pm (or after school if the child is attending school) on Friday until before school Monday, extended to before school Tuesday if Monday is a public holiday.

(9)      That the child spend time with the mother as agreed between the maternal grandparents and the mother, with such time to occur during the time that the child is in the care of the maternal grandparents, and supervised and in the presence at all times by one of the maternal grandparents.

(10)     That the child spend time with the father as agreed between the paternal grandmother and the father, with such time to occur during the time the child is in the care of the paternal grandmother, and supervised and in the presence at all times by the paternal grandparents.

(11)     That for the purposes of these Orders, school terms are defined as the dates for the school terms of the school where the child attends however until the child commences school, the school terms shall be defined as the school terms for Queensland state schools.

School holiday period apart from the Christmas school holiday periods

(12)     That during the Easter, June/July and September/October school holiday periods (“the school holiday periods”), that the child spend one half of the school holiday period with the maternal grandparents and one half with the paternal grandmother as follows:

(a)       In even numbered years commencing in 2018, with the maternal grandparents for the first half of these school holiday periods and the paternal grandmother for the second half of these school holiday periods; and

(b)      In odd numbered years commencing in 2019, with the paternal grandmother for the first half of these school holiday periods and with the maternal grandparents for the second half of these school holiday periods.

(13)     That the child spend time with the mother during the school holiday period as agreed between the maternal grandparents and the mother, with such time to occur during the time that the child is in the care of the maternal grandparents.

(14)     The child spend time with the father during the school holiday period as agreed between the paternal grandmother in the father, with such time to occur during the time that the child is in the care of the paternal grandmother.

(15)     That for the purposes of these orders:

(a)       these school holiday periods shall be defined as the dates for the school holidays of the school where the child attends however until the child commences school, the school holiday period shall be defined as the school holiday periods for Queensland state schools;

(b)      these school holiday periods commence on the last day of the school term and conclude on the day before the next school term commences;

(c)      the number of nights in each school holiday period is used to calculate one half of the school holiday period and if there is an even number of nights, the maternal grandparents shall have the care of the child for the one additional night on the first occasion this occurs and each alternate occasion thereafter and the paternal grandmother shall have the care of the child for the one additional night on the second occasion this occurs and each alternate occasion thereafter; and

(d)      changeovers during the school holiday periods shall occur at 4.00pm.

The Christmas school holiday periods

(16)     That during the Christmas school holidays that the child spend two weeks with the maternal grandparents as follows:

(a)       In the 2018/2019 Christmas school holidays and each alternate Christmas holiday period thereafter, for the first two weeks of the holiday period, commencing at 4.00pm on the last day of the school term and concluding at 4.00pm two weeks later; and

(b)      In the 2019/2020 Christmas school holidays and each alternate Christmas holiday period thereafter, for two weeks commencing at 4.00pm on the first Friday in January and concluding at 4.00pm two weeks later.

(17)     That for the purposes of these Orders, the Christmas school holidays shall be defined as the dates for the Christmas school holidays of the school where the child attends however until the child commences school, the Christmas school holidays shall be defined as Christmas school holidays for Queensland state schools.

(18)     That the child spend time with the mother during the Christmas school holiday periods as agreed between the maternal grandparents and the mother, with such time to occur during the time the child is in the care of the maternal grandparents and to be supervised.

(19)     That the child spend time with the father during the Christmas school holiday periods as agreed between the paternal grandmother and the father, with such time to occur during the time of the child is in the care of the paternal grandmother and to be supervised.

Arrangements for changeovers

(20)     That during school terms and school holiday periods, the grandparent that is to assume the care of the child shall collect the child from the other grandparent’s home at 4.00pm on the day of the changeover.

Special occasions

(21)     That notwithstanding any Order to the contrary, during the Christmas public holiday period the child shall spend time with the maternal grandparents and mother and the paternal grandmother and father as follows:

(a)       In even numbered years, with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) from 8.00am Christmas Eve until 8.00am Christmas Day and with the paternal grandmother (and father as arranged by agreement with the paternal grandmother) from 8.00am Christmas Day until 8.00am Boxing Day; and

(b)       In odd numbered years, with the paternal grandmother (and father as arranged by agreement with the paternal grandmother) from 8.00am Christmas Eve until 8.00am Christmas Day and with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) from 8.00am Christmas Day until 8.00am Boxing Day.

(22)     That in the event that Father’s Day occurs on a weekend when the child would otherwise be in the care of the maternal grandparents, the child shall return to the paternal grandmother’s care at 8.00am on Father’s Day so that the child may spend time with the father and the time shall conclude at 2.00pm that day.

(23)     That in the event that Mother’s Day occurs on the weekend when the child would otherwise be in the care of the paternal grandmother, the child shall return to the maternal grandparent’s care at 12 noon on Mother’s Day so that the child may spend time with the mother.

(24)     That notwithstanding any Order to the contrary, the child shall spend time with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) and paternal grandmother (and father as arranged by agreement with the paternal grandmother) on the child’s birthday each year as follows:

(a)       If it is a week day, the child shall spend time with the grandparent/s he is not in the care of on his birthday in accordance with the other terms of these Orders, from 4.00pm until 6.00pm; and

(b)      If it is a Saturday or Sunday, the child shall spend time with the grandparent/s he is not in the care of on his birthday in accordance with the other terms of these Orders, from 8.00am until 12 noon.

Overseas travel

(25)     That the maternal grandparents and paternal grandmother each be permitted to take the child from Australia for a holiday to a place outside of Australia that is a country in respect of which the Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia (hereafter referred to as “overseas”) as follows:

(a)       Subject to Orders 26 and 27, the grandparent/s may only take the child overseas in the time that the child is in the care of the grandparent/s in accordance with these Orders unless otherwise agreed;

(b)      The grandparent/s shall only take the child overseas during school holiday periods once the child commences school.

(26)     That the maternal grandparents may, during one (1) school holiday period each alternate year, elect to travel overseas to Country D for the purposes of visiting the extended family of the maternal grandparents and the child, for a period greater than the time that the child is in the care of the maternal grandparents pursuant to these Orders, but not longer than three (3) weeks.

(27)     That in the event that the maternal grandparents elect to travel to Country D during any school holiday period for a period greater than the time that the child is in the care of the maternal grandparents pursuant to these Orders, then the paternal grandmother shall spend additional week time with the child the next school holiday period.

(28)     That the maternal grandparents are to give the paternal grandmother not less than three (3) months written notice of an election to travel overseas under Order 26 hereof.

(29) That pursuant to section 65Y of the Family Law Act1975 (Cth), the maternal grandparents and paternal grandmother be permitted to take the child overseas for a holiday, on the proviso that the grandparent/s who wishes to travel with the child overseas shall provide to the other grandparent/s:

(a)       written notice as to their intention to take the child overseas at least three (3) months prior to the proposed departure date for travel;

(b)      an itinerary showing departure and return dates, details of the country or countries that the grandparent/s and the child will be travelling to and particulars of flight/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

(c)      a copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of the departure; and

(d)      within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication which the child for the period the child will be overseas.

(30)     That the paternal grandmother shall hold the Australian passport of the child and provide the passport to the maternal grandmother or grandfather upon the provision of notice by one or both of them in accordance with sub-paragraphs 29(a) and 29(b) of these Orders and the passport shall be returned to the paternal grandmother within seven (7) days of the maternal grandmother and or maternal grandfather returning from the overseas travel.

Specific issues

(31)     That this Order is authority for the daycare centre or school that the child attends, to give the maternal grandparents, paternal grandmother, mother and father information about the child’s progress and supply to them copies of reports, photographs, certificates and awards obtained by the child at the request in parties cost.

(32)     That this Order hereby authorises the general medical practitioner or any other healthcare professional providing services to the child to communicate with the maternal grandparents, paternal grandmother, mother and father and provide them with all such information and documents they may request from time to time regarding the child’s attendance with the professional, including any diagnosis, proposed treatment or prognosis for the child.

(33)     That the parties shall inform the other immediately of any serious illness, accident or emergency involving the child that occurs whilst the child is in the parties’ respective care and provide the details of the medical practitioner who has treated the child.

(34)     That the maternal grandparents and paternal grandmother inform the other of their residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within seven (7) days of any such change.

IT IS NOTED:

A.       That noting under these Orders the time the child spends with either the mother or the father is to be supervised, any future application by a parent to seek to vary these orders or remove the condition of supervision should be accompanied by independent evidence of a health professional which clearly demonstrates why, in the opinion of that/those health professional/s, the risks identified in the Reasons for Judgment delivered 16 May 2019 no longer exist.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dozic and Anor & Department of Child Safety, Youth and Women and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).Family Court of Australia at Brisbane

FILE NUMBER: BRC 7148 of 2017

Mr Dozic

And

Ms Dozic

Applicants

And

Department of Child Safety, Youth and Women

First Respondent

And

Ms A Dozic

Second Respondent

And

Mr Jennings

Third Respondent

And

Ms Jennings

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

1.        X, now aged five years, was removed from the care of his biological parents at birth.  Over the last five years, placement decisions by the Department of Child Safety, Youth & Woman (“the Department”) have enabled X to spend substantial time with both the Applicant maternal grandparents and the Respondent paternal grandmother.

2.        Sadly neither parent is able to demonstrate the capacity to care for X, and their time with him needs to be supervised.

3.        The Department is satisfied that child welfare orders can cease, however the hearing before me focused on the dispute as to whether the child should live primarily with the paternal grandmother or with the maternal grandparents.  Other unusual features arise in this case which are dealt with in the reasons that follow.

Contextual history

4.        Statements of fact that appear in this Judgment should be construed as findings of fact.  I chose, because the competing proposals reflect an ongoing relationship will be necessary between the grandparents, not to deal with every issue of dispute.  To do so would, on some relatively minor issues, for these parties, add to the sense they all carry of being judged “unfairly”.  I will make findings on disputed facts where I believe it assists the parties to understand the pathway to my ultimate decision in this finely balanced and difficult case.

5.        The Applicants were both born in what is now called Country D in 1953 and immigrated to Australia in 1988, when their daughter (the biological mother) Ms A Dozic was 10 years of age.  The mother is now 40 years of age.

6.        The Respondent paternal grandmother was born in 1950 and as such is now 69 years of age.  Her son Mr Jennings was born in 1977 and is currently 41 years old.  Sadly, the paternal grandmother’s other child died in 2003 and her husband died in 2009 – both tragic events occurring before the birth of X.

7.        As Counsel for the maternal grandparents accurately contends, “both of X’s parents have a significant history of illicit use and addiction (including Cannabis, alcohol and methamphetamine addiction), and in the mother’s case, paranoid schizophrenia, complicated by illicit drug use.”  I also note that conflict between the father and Ms Dozic resulted in a Domestic Violence Order made 28 August 2012.

8. The Department was alerted to the risks to the unborn child and on X’s day of birth (… 2014) the baby was removed from his parents under s 18 of the Child Protection Act 1999, and a Temporary Assessment Order was made.

9.        From … 2014, X was placed in the foster care of Ms B.

10.      It is difficult to fully appreciate the emotions likely to be running high between all these concerned and loving grandparents – who saw their days old grandson taken into care.

11.      The care of X has to date been managed through decisions of the Department, as a result of Child Protection Orders made on 3 March 2014 and 25 October 2016.  As the last Child Protection Order was due to expire on 24 October 2018, and with judgment reserved, the submissions of the Department indicated an intention to seek a further Child Protection Order would be considered to provide an “interim framework”.  Subsequently, the Court has been informed an application was made and on various occasions an order has been made which is timed to expire on or about 6 June 2019.  The parenting orders I make will take effect upon the expiry (or earlier discharge) of the current child protection orders.

12.      Over the course of time since birth, the “tug of war” surrounding X between the grandparents has been shaped by numerous emails, complaints, and friction between the Department and the grandparents.  I deal with some of this history, particularly dealing with issues of controversy such as X’s attendance at childcare; X’s need for speech therapy and his “intoeing” difficulties during the following parts of this judgment, however generally I have taken the view on the evidence as a whole that most of these issues became difficulties through a combination of different parenting approaches and poor communication rather than, as asserted by the maternal grandparents, evidence of child neglect by the paternal grandmother.

13.      Whilst I accept that earlier parenting decisions by the Department were shaped by the Department’s statutory obligations under s 5B of Child Protection Act 1999, namely they sought to work with both the parents “in the hope that X, might, eventually be returned to one or the other’s care”, at paragraphs 19 and 20 of the Department’s written submissions it is acknowledged that reunification with the parents, or either of them “over time has been revealed as an unrealistic objective”, but I agree that the care arrangements put in place reveal that the “Department was particularly attune to the paternal grandmother’s role as she expressly wishes to work with the Department with a view to returning X to her son’s care” and that “it was realised at an early stage that that outcome was not possible with the mother due to the seriousness of her mental health condition”.

14.      From X’s perspective however, he was only really aware of who was looking after him – not necessarily the complexities that had engulfed his parents, and the care arrangements put in place were broadly as follows:

a)        From birth to 30 June 2015, living with the foster mother Ms B whilst spending time, as appropriate, with the grandparents and supervised time with the parents.  Ms B gave evidence that she would have liked X to remain with her until he was 18 years of age;

b)        On 30 June 2015 (when X was only 18 months old), the Department made a placement decision that X be cared for on a weekly basis as follows:

i)        Sunday until Thursday with the paternal grandmother; and

ii)       Thursday to Sunday with the maternal grandparents.

c)        Despite attempts at mediation in November 2015, no agreement was reached in relation to future care arrangements for X, and between 20 November 2015 and an order of 18 May 2016 by the Children’s Court, the grandparents were the subject of placement decisions made by the Department and also review applications in the Queensland Civil and Administrative Tribunal (“QCAT”).  I am satisfied that inclusive care arrangements were put into operation and it would be unfair to describe the extent of the shared care as the maternal grandparents having merely “respite care”;

d)        Nonetheless, as a result of the orders made by the Children’s Court on 18 May 2016, X spent five days a week in the care of the paternal grandmother and two days per week with the maternal grandparents;

e)        The Department altered these care arrangements in December 2016 to operate as follows, which arrangements were in force at the time of the hearing in June 2018 and, in the absence of further evidence, the Court assumes are still in effect, namely:

i)        The maternal grandparents, in week one from Thursday 9.30am until Saturday 9.30am each alternate week, and in week two from Thursday 4.00pm until Sunday at 4.00pm (a total of five days a fortnight); and

ii)       The paternal grandmother, in week one from Saturday 9.30am until Thursday 9.30am and in week two from Saturday 9.30am to Thursday 4.00pm (a total of nine days a fortnight).

15.      The current proceedings were initiated in this Court on 14 July 2017, where the Applicant maternal grandparents sought orders for X to live with them; that they have sole parental responsibility and that X spend each alternate weekend with the paternal grandmother, and half the school holidays.

16.      Initial Responses of the father sought, on a final basis, that X live with him, however as noted below, he no longer seeks that order.  The Respondent paternal grandmother, by her Response filed 21 September 2017, sought orders on a final basis, conditional upon a successful rehabilitation by the father, failing which she sought orders that X live with her and spend alternate weekends with the maternal grandparents.

17.      Where orders could not be made during the currency of the child welfare orders, no interim orders were made, save that experienced Family Consultant/Social Worker Ms C was appointed to prepare a family report.  On 5 December 2017, Ms C conducted interviews with the parties (excluding the mother who did not participate) and published a report dated 1 January 2018.  Ms C was cross-examined at the hearing in June 2018.

Competing proposals

18.      Although no directions were formally made for submissions in reply to be filed, the paternal grandmother filed submissions in reply on 27 August 2018 and thereafter the maternal grandparents filed a response on 31 August 2018.  Fairly, at paragraph 2 of the response submissions, the maternal grandparents say if the reply submissions are considered then so should the response submissions.  I have, for completeness, considered all the following submissions, namely:

a)        28 June 2018 – submissions by paternal grandmother;

b)        27 July 2018 – submissions by maternal grandparents;

c)        6 August 2018 – submissions by the Department;

d)        27 August 2018 - submissions by paternal grandmother; and

e)        31 August 2018 – submissions by maternal grandparents.

19.      I note, with regret expressed, the delay in publishing these Reasons.  Although the Court considered whether either party might wish to make a further submission arising from the likelihood X has now commenced school in January 2019, with neither party seeking to re-open, the Court elected not to initiate further submissions or evidence.

20.      As a result, the Court assumes that wherever X has commenced school, the care arrangements as they existed at the time evidence finished on 6 June 2018, remain the same – save for any agreed variations.

21.      In the context of the contextual history previously recorded, the final competing proposals of the parties remained as set out in their submissions as follows.

Maternal grandparents

22.      The maternal grandparents’ primary proposal is contained in their case outline filed 28 May 2018 and reproduced as Appendix One whereby essentially:

a)        X live with the maternal grandparents and they have sole parental responsibility for major long term decisions;

b)        the child spend time with the paternal grandmother from after school Friday to 4.00pm Sunday each alternate week and each alternate Thursday overnight;

c)        as a result of the submissions (at paragraph 25), the maternal grandparents now seek orders that all school holidays be shared;

d)        the maternal grandparents supervise any time that X spends with his mother; and

e)        arrangements for Mother’s Day and Father’s Day and the child’s birthday are proposed and further the Applicants seek an order permitting overseas travel for X accompanied by either of the grandparents (maternal or paternal).

23.      The Applicants, as directed, did provide a proposal if the Court, contrary to their primary position, determined that X should live with the Respondent paternal grandmother, including that the paternal grandmother have sole parental responsibility and for the child to spend time with them alternate weekends and each alternate Thursday overnight.

Paternal grandmother

24.      During the hearing, the Respondent paternal grandmother’s primary position and alternate proposals (if the child was to live with the maternal grandparents) were set out in a document marked as Exhibit 17 (and are Appendix Two to these Reasons).  Essentially she proposes that:

a)        X live with her and that she have sole parental responsibility;

b)        when X began school in 2019, it was proposed his time reduce from the current five nights a fortnight to each alternate weekend (Friday to Monday) and each alternate Thursday overnight;

c)        school holidays are to be shared equally, with the Christmas school holidays spent in a block of one week in December and a block of two weeks in January with the maternal grandparents;

d)        the paternal grandmother (by proposed orders 18 to 20) seeks prescribed orders for the father to spend time with X but with some flexibility at her option.  The orders do not require the time to be supervised however no overnight time is proposed; and

e)        interstate travel and overseas travel is permitted on conditions including that neither grandparent travel with the child for a period greater than two weeks every two years.

25.      The Respondent paternal grandmother, as directed, also made a proposal if X, contrary to her primary position, was to live with the maternal grandparents.  In that event, the paternal grandmother sought a block of five nights (Thursday to Tuesday) each alternate week.

Father

26.      The father supported the orders sought by the paternal grandmother, and did not make any formal submissions – such position being clear from his evidence.  To his credit, the father participated in the proceedings; gave evidence and exposed himself to cross-examination.

Mother

27.      Although a party to the proceedings, the mother did not participate in the proceedings; give evidence or make herself available for cross-examination.  She had every opportunity to do so, and an earlier ruling by the QCAT found the mother had the capacity to litigate.

The Department

28.      In the history of this matter, the Department chose to participate as a party, and the assistance of the Department and its Counsel Ms Carmody was akin to playing a role as an Independent Children’s Lawyer.  The involvement by the Department was appropriate considering X had been in foster care from the time of his birth and then the subject of various placement decisions as set out earlier.

29.      The Department filed written submissions, prefaced by adopting a position set out at paragraph 6 that:

“…the Department does not view its role in these proceedings as one that should recommend or promote one carer/s over the other/s”

but rather made submissions focusing on four issues which the Department described as “key considerations”, namely:

a)        whether the paternal grandmother’s primary focus is on returning X to her son’s care to the detriment of X’s best interests;

b)        whether the unusual domestic arrangements of the maternal grandmother and maternal grandfather can sustain the exigencies of time and care of a young child;

c)        which of the parties is most likely to facilitate the relationship of the other party if X is in their primary care; and

d)        whether there could or should be shared care or something akin to that.

30.      In the reasons which follow, I deal with these and other considerations, but as already noted, as much of the past history is shaped by earlier decisions and reports (at that time) made or procured by the Department, I do not regard it as particularly helpful to look back to such events as a particularly helpful guide as to what lies ahead.

31.      What is abundantly clear from all the evidence is that neither the biological father nor biological mother, at this time, present as a real candidate for either primary care of their child or even unsupervised contact.  The evidence offered makes it impossible to predict if such a transition is likely into the future at all.

32.      To this extent, the paternal grandmother and the father now ask the Court to accept their earlier position that a transition to the father’s care was both foreseeable and probable, has changed and that it is no longer probable for the foreseeable future.  The maternal grandparents regard a transition to the father as a sort of “hidden agenda” between the paternal grandmother and her son, and this is major concern for them.

33.      What the competing proposals of the parties who seek residence reflect, is that they:

a)        each seek sole parental responsibility to assist in their primary care responsibilities; and

b)        both acknowledge the importance to X of maintaining a relationship with both the maternal and paternal grandparents with a substantial and significant time order proposed;

c)        neither group offers an equal time regime, but rather seeks for themselves a degree of primary care and control; and

d)        both groups accept that the maternal grandparents will need to facilitate X spending time with the mother, and the paternal grandmother will need to facilitate X spending time with the father.

34.      In these circumstances, it would have been ideal if the grandparents could have found a compromise as to the primary carer – and they were, on more than one occasion, implored by me to do so.  Sadly, after hearing from all parties and observing them in the witness box, it is apparent that they are very different people; with very different life histories and cultures who, not surprisingly, seek to parent “this time around” quite differently from the other.  I say this time around because it is my sense that, unfairly, each of them carry a level of sadness and disappointment that their own child is unable to take on the parenting responsibility they now are shouldering.  It was possible for the Court to make some limited assessment of the dynamics that exist between the father and the paternal grandmother because both gave evidence and also were interviewed by Ms C on 5 December 2017.

35.      The Court, by contrast, has little evidence about the dynamics of the relationship between the maternal grandparents and the mother – the mother having given no evidence, nor did she avail herself of the opportunity to be interviewed by Ms C.  In making this observation, it is not to be construed that I am critical of her parents for her failure to participate but rather it is one of the future uncertainties the Court has to consider.

Joint Applicants

36.      I raised during the hearing, without at that time having formed a concluded view, about whether the Court had power to make an order in favour of two persons “jointly” for residence and/or contact and then, of course, if the power exists, then it remains to be determined whether it is in the best interests of X to do so.  The only submission that sought to assist me as to power, is that contained at paragraphs 38 to 46 of the submissions by Mr Drysdale (Counsel for the maternal grandparents) where he relies upon a decision by Lindenmayer J in Hodak Newman & Hodak (1993) FLC 92-421 in submitting the power to make an order in favour of the Applicants jointly exists. No other submission cavils with the power to do so, of course with the paternal grandmother’s submissions prepared by Ms McDiarmid of Counsel, saying it is not in X’s best interests to do so.

37.      In evidence, the maternal grandfather said that if the Court formed the view that only one of the maternal grandparents could have residence, then he agrees it should be the maternal grandmother Ms Dozic.

Statutory pathway

38. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

39.      To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

40.      In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

41. Before dealing with the primary issue of where X should live, a few discrete issues will be dealt with, before I discuss the competing proposals within the matrix of the relevant s 60CC(2) and (3) considerations.

Competing households

The maternal grandparents

42.      It is a unique feature of the household offered by the Applicant maternal grandparents, that they are not an intact couple.  When X is in their care, they come together as a couple and stay at the home generally of the maternal grandfather.  The maternal grandparents have been divorced for over 25 years – but they presented to the Court as equally pragmatic and focused on providing a stable environment for X.  As mentioned earlier, X is not in any sense “under loved”- and there is no evidence to date that the maternal grandparents have allowed their slight differences in parenting approaches to manifest in any overt conflict in front of X.  Their cultural heritage shapes their desire for a more robust parenting style – it was acknowledged as a “strict” regime – where rules are consistently applied.  Slight differences as to, for example, X should sit up at the dinner table for his dinner have emerged.  With the maternal grandfather still employed full-time as a professional, it is likely that more of the before and after school care (and probably holidays) will be undertaken by the maternal grandmother.  The maternal grandfather accepts that the approach initiated by the maternal grandmother to issues such as the commencement of childcare; the need for speech therapy and treatment for X’s “intoeing” was appropriate.

43.      I accept, as do Ms C and the Department, that the maternal grandparents have the range of skills and resources and necessary desire, to meet the physical intellectual and emotional needs of X.

44.      As already noted, whilst the maternal grandparents  seem to genuinely accept the significant mental health challenges of Ms A Dozic, their daughter, they understandably wish to support safe contact between X and Ms A Dozic.

45.      Without any current data being available as to any improved diagnosis for the mother, it is very difficult to know how fair contact arrangements can progress.  I have no concerns that at any time, the maternal grandparents would put X at risk when spending, as will be ordered, supervised time with the mother.

46.      In my assessment, two issues do arise if the child X lives with the maternal grandparents  which I need to weigh into the decision:

a)        Firstly although the maternal grandparents say neither of them intends to re-partner and they get on quite well, managing the behaviour of young children can present challenges.  Where challenges arise, it is important that the primary carers “be on the same page”.  Frankly, the age of X and the amount of time (although extensive), he has spent with the maternal grandparents it is not a fulsome test of how their relationship might cope with the challenges as primary carers.  They say it will not be a problem, as one might expect, however there is an element of uncertainty about this - considering how long they have been separated as a couple.  I greatly admire how they have come together for X, but whether the compromises implicit in all co-parenting can be sustained for many years into the future is yet to be seen

b)        Secondly, despite the assurances given by the maternal grandmother (in particular) that she would facilitate time between X and the father, the father’s relationship with the maternal grandparents is not good.  They might all try to do the best for X, but it seems inevitable that the flexibility and range of activities which X enjoys currently with his father (when the child is living with the paternal grandmother) would be reduced.  Also, the maternal grandparents would be required to try and balance they desire for a strict routine and stability in their household, with accommodating the desire of Ms A Dozic to spend time with X, as well perhaps as requests for time by the father.  The poor communication that exists currently gives me little confidence that any flexibility for further or regular time with the father, could be managed and tensions would inevitably arise.

The paternal grandmother

47.      The paternal grandmother‘s lifestyle and approach to life’s challenges appears less structured but no less loving or caring.  She has been the primary carer for X at least since May 2016.  I well understand that the maternal grandparents were “upset” by the Children’s Court decision, but the reality for X is that since the age of two years and now for the last almost three years, the paternal grandmother has been the primary carer.

48.      She does parent differently, however I do not accept that the differences identified by the maternal grandparents around commencement of childcare; the speech therapy and the treatment of the “intoeing” problem, reflect a lack of attention by the paternal grandmother – rather a different approach.  In the end, X was attending an appropriate childcare; has been receiving treatment for his speech impediment and, so far as the “intoeing” issue is concerned, both groups seem to be more comfortable with their chosen health professional – the maternal Grandparents using a chiropractor; the paternal grandmother using a podiatrist.

49.      I do not accept the submission made on behalf of the maternal grandparents that the paternal grandmother is unable to accept professional advice and that by so doing, is putting the child at risk.  I accept, as the Department and Ms C opined, that the paternal grandmother has the capacity, skills and desire to meet the physical, emotional and intellectual needs of X.

50.      However, I accept that the child living with the paternal grandmother does present some issues to be considered, particularly:

a)        there is no doubt that the paternal grandmother has been, at least until the father relapsed, supporting an outcome which would see the father taking up the primary care role “when he has rehabilitated”.  I accept that as a loving parent, she may not always be able to fairly assess whether the father has moved forward and sustainably with his drug addiction problems.  As I deal with next, the father’s evidence (vague at times about his recent drug use) coupled with his acknowledged relapses in November 2017, January 2018 and May 2018 means, as far as the Court is concerned, all time that X spends with the father must be supervised.  The father acknowledges he has not always been honest with his mother about his drug use.  The paternal grandmother concerningly was not always frank with the Department about the father’s drug use and may have, on occasions, minimised the risk.  I accept that the maternal grandparents have a basis for concern – particularly as they do not fully trust the paternal grandmother.

b)        The paternal grandmother says now, under oath and in her proposals, that she is not focused on “reunification”.  If the child is to live with the paternal grandmother, clear orders that make it clear that the father will need to bring an application to extend time or move to “unsupervised” time will need to be made; and

c)        It is unlikely that Ms A Dozic would either approach the paternal grandmother (if X lives with her) or initiate contact in that household.  As a result, the only realistic opportunities for X to spend time with his mother exists in her parents’ control.

51.      It is appropriate to next consider the risks which each parent presents, on the evidence, at this time.

Risks associated with parents

52.      It is impossible to make any real assessment of the current and future risks arising from the mother spending time with X.  It is, at one level, unfair to merely label the mother with a concerning a diagnosis of “paranoid schizophrenia”, as a risk.  The Court is aware the mother, as recently as February 2016, was hospitalised involuntarily, in a mental health institution until around mid-2017.  No current evidence, capable of proper testing, has been offered, as to the mother’s current functioning or prognosis.  Certainly it seems in the past the mother’s condition has been exacerbated by her illicit drug use.  No details of her recent drug use is available to the Court.  The only time X should spend with the mother must be supervised.  On the evidence, I am comfortable with the maternal grandparents being supervisors.

53.      The father’s use of drugs, and his capacity to relapse, is of course concerning and presents a risk to X, if his time was not properly supervised.  However the father at least participated in the process, and acknowledged that he would need to continue with attempts at rehabilitation and be abstinent from drugs use (including marijuana) for at least two years.  The evidence reveals unsuccessful attempts of rehabilitation in June 2016 (Suburb E Rehabilitation); mid November 2016 (Suburb F Rehabilitation) and more recently from May 2017 at the Suburb J Rehabilitation.  Despite these attempts, relapses have occurred.

54.      Although it is not a major factor that favours the ultimate conclusion I have reached, it is open to find that if the father persists with drug rehabilitation services and manifests in longer term abstinence, then it could not be said that an unsupervised time regime is never to be possible.  Clearly the father, before he comes back to the Court seeking to progress to some form of unsupervised time initially, would be required to produce (in support of any fresh application) independent evidence from qualified health professionals as to his change of behaviour.  It is unlikely future relapses can be entirely excluded on the current evidence, however over time the prospect of relapse might reduce.

55.      I make a finding that the paternal grandmother is not likely to put X at risk in contact with the father, and that she can be trusted to be a supervisor.  I am confident that the paternal grandmother understands that if she is the primary carer, and she puts X at an unacceptable risk of harm, the maternal grandparents would be quick to see a change of residence considered.  I find that although the paternal grandmother had hoped her son was on the journey to sustained recovery, his conduct and relapsing into drug use in early 2018 makes it clear that:

a)        he has a long way to go; and

b)        he lies to her and she cannot trust him being frank and honest with her; and

c)        she is not able to assess accurately on every occasion he presents, whether he is affected by illicit substances

56.      For all these reasons, like the mother, the father’s time must remain supervised and not include overnight time.  If this is not sufficient incentive to deal with his addictive habits and develop at least a prospect of a more functional relationship with X, then nothing else can be offered.

57.      In assessing these risks, I also take into account that X, at age five years, has no real capacity for self-protection.  He must have the support and protection of a grandparent being present.  In time, X might benefit from some age appropriate education about the behaviour of people with mental illness, as unfortunately inflicts the mother, because eventually he will be an adult and his mother is still the only mother he will ever have.

58. I now propose to deal with the competing proposals within the matrix of the primary and additional considerations prescribed by the Act. In doing so I refer, as required, to the evidence from Ms C as may be relevant, in the following discrete section of this judgment.

Family Consultant evidence

59.      It is appropriate to remind the parties that the evidence of the Court Expert Ms C, does not bind the Court, and it is but part of the evidence which the Court must consider.  The process of family report interviewing involves limited observations and interviewing, however the Court should not quickly depart from properly founded opinions of the Expert – especially where those opinions are supported by other evidence.

60.      As in this case, the Court has much more evidence available to it and has the opportunity to see the evidence tested and explained.  Where the Court does not usually speak with or observe the child, those observations made by a highly trained Expert (as I accept Ms C to be), can be very powerful but inevitably context and the age of the child are also important factors to consider.

61.      Ms C was the subject of thorough cross-examination and her report dated 1 January 2018 (arising from interviews conducted on 5 December 2017) was shaped by some important context at the time, particularly:

a)        the view expressed by the paternal grandmother that X should live with her but would “eventually transition to be in the father’s care”; and

b)        the father’s position at the time that X eventually live with him when “he is ready to care for him”; and

c)        importantly, where Ms C was unaware (as she became aware before her cross-examination commenced), that the father had relapsed into drug use and was no longer proposing a transition of X’s care to him in the foreseeable future.

62.      Under cross-examination by Counsel for the maternal grandparents, Ms C, once aware of the relapse by the father, said her concerns about transitioning were further cemented by this new evidence.

63.      I accept that it was difficult for the Court Expert to reframe her opinions quickly where such a significant change in the father’s position (and that of his mother), had occurred since she interviewed everyone.

64.      Clearly, as paragraph 116 of the evaluation opined, Ms C was focused on how to create some certainty and stability for X – and transitioning to the father would mean “less certainty for X and at least some instability in his future arrangements”.  In circumstances where the Court finds, on the evidence, that the paternal grandmother now accepts (because of her son’s relapse) that transitioning is no longer an option, the parameters for the discussion undertaken by Ms C are quite different.

65.      Ms C expressed little confidence around the grandparents communicating well and accepted that at times the maternal grandmother would “think the worse” and criticise the paternal grandmother (e.g. that there was something wrong in X’s relationship with the paternal grandmother for him to “act out” at changeovers).  I do not regard some minor stress exhibited occasionally by X at changeovers, as reflective of a poor relationship with either set of grandparents but rather a growing awareness of the level of antipathy between them.  I agree with Ms C, that changeovers should be conducted quickly.  Now that X is at school, this should enable school handovers to occur easily.

66.      Ms C fairly observed that the paternal grandmother expressed and demonstrated she was focused on criticisms of her by Departmental officers and the maternal grandparents; and felt she was required to defend herself, and that she only presented as “stressed” when talking about those criticisms.

67.      The cross-examination by Counsel for the paternal grandmother was directed to exploring the somewhat negative opinions of the paternal grandmother formed by Ms C, and I felt considering the evidence as a whole, Ms C was able to accept that the context of the interviews might have created some impressions that are different from how X interacts particularly with the paternal grandmother in more normal surroundings.

68.      Ms C acknowledged the importance of stability and certainty and agreed it would not be ideal to change the primary carer but that X should live primarily in one household “with the carer most sensitive to his needs” (see paragraph 118).

69.      My finding is that both households are equally “sensitive” to the needs of X, but parent differently.

70.      I accept the opinion expressed at paragraph 133, that X “likely views all his grandparents as psychological parents” as “they have all played a significant role in his care” and as such X will benefit “from an arrangement where he can spend significant time with the grandparent/s he is not living with” (paragraph 135).

71.      A balanced report and evidence of Ms C concludes with paragraphs 151 and 152 which I repeat now:

“151.   It is my assessment, the maternal grandparents are better equipped to communicate with Ms Jennings to share the parenting of X, and protect him from conflict.  As such, X is likely to benefit from living predominantly in their household.  If this assessment is accepted, X should live with his maternal grandparents and spend regular time each week with his paternal grandmother.

152.    “If this assessment is not accepted, and it is thought Ms Jennings will communicate co-operatively with the maternal grandparents in the role of co-parents to X, and it is considered she will appropriately facilitate X’s relationship with his father, then it may be less disruptive for X if the current arrangement continues.”

72.      I have formed the view that once the issue of residence is settled by this decision, all the grandparents are mature enough and child focused, such that their communication is likely to improve.  I agree that it is less disruptive for X to maintain the primary care arrangements that have been in existence since May 2016.

73.      Whilst it was not possible for Ms C to make any assessment of the relationship between X and the mother, it was apparent from the words of X and the observations made when X was with the father, that X has a close and warm relationship with his father which he enjoys.  I am satisfied that, provided X is protected from and is not exposed to any behaviour of the father relating to his drug use, then the experiences with his father (including outdoor activities like fishing), will be very beneficial for X.  Maintaining those opportunities, but within a context that the child’s living arrangements are certain and not “transitional” are likely to be in his best interests.

Primary considerations

74.      In my examination of the competing applications for residence within the matrix of the relevant primary and additional considerations, I rely upon but do not repeat all earlier findings.

75. Section 60CC(2)(a) is directed to the benefit to the child of having a meaningful relationship with a “parent”.  Sadly, his relationship with the father has developed more than that with the mother.  However, as I have noted, X will benefit from his relationship with both parents developing safely.

76.      I have discussed the risks to X arising from unsupervised time with either parent and why orders need to be made that time, supervised by the grandparent he is living with at the time, is necessary.  If either parent believes in the future they can demonstrate they no longer present as an unacceptable risk to X, they would be required to bring an application to the Court to change orders I now make.  I intend to incorporate notations to this order to make it clear to both parents.

77.      I do not find that either the maternal grandparents or paternal grandmother is an unacceptable risk to X.  Frankly, despite such attention in the material and submissions around issues like childcare, “intoeing” and speech pathology – the proposals for the extensive time each group should exercise to X belies any real concerns.  I do not think it helpful to dissect every one of these issues, but note that poor (at times highly suspicious) communication was a major factor.  Since the child’s birth both grandparents, wanting the best for X, have peppered the Department with emails and concerns – many quite frankly of a trivial character – designed I assess to either seek to improve their prospects of ultimately becoming the “primary carer” or seeking to damage the other grandparent.

78.      Although the orders I make will mean that X will spend more time in one household than the other, I accept the opinion of Ms C, that further undermining of the role of either household is detrimental to X.  He should regard all his grandparents as “co-parents” even though, at an adult level, from time to time a decision will need to be made by one party.  For these reasons the orders I pronounce are expressed in “live with” terms rather than “live with/spend time” terms.  In the past, the major conflicts around medical needs have caused each grandparent to seek their own and separate guidance.  The maternal grandparents’ insistence on maintaining chiropractic support (in the face of other advice the paternal grandmother obtained) is merely the manifestation of such conflict.  It is appropriate X maintain, if possible, the same general practitioner so a full health history is maintained.  The child now having commenced school, that issue should not engender more conflict into the future.

Additional considerations

79.      With the history of care and considering the age of X, I could not apply significant weight to any expressed wishes nor be satisfied they are consistent or considered.  This little boy knows all his grandparents love him and no doubt when he is comfortable living with a grandparent at the time he is asked, he is likely to give a positive answer.  Thankfully it does not appear X has been put under any pressure to express any preference.

80.      Although X has spent more time in the care of the paternal grandmother than the maternal grandparents, I am not satisfied on the evidence he has a stronger relationship with either group.  The observations made by Ms C reflected, in her view, at that time a different – perhaps warmer – relationship with the maternal grandmother than the paternal grandmother, but I am not satisfied that observation is sufficient to assess the relationship overall.  The robust and resilient personality of this little boy seems to have enabled him to cope with the multitude of changes he has been forced to deal with – including a disconnection with his birth mother and then 18 months later, separation from the foster mother Ms B.  That he presents on all the evidence as having a secure relationship with all of his grandparents, I regard, as a tribute to all of them.

81.      Clearly X enjoys the time with his father and the activities they mutually engage in and the regular visits have enabled their bond to develop.  I again reluctantly find, I am not satisfied he has developed a bond with his mother of similar strength – although he knows who she is.

82. Although s 60CC(3)(c) requires the Court to consider the actions of “parents”, I make a finding that although both sets of grandparents do not communicate consistently well, they have all taken opportunities arising from placement decisions of the Department to spend time with X – as has the father, a little more consistently than the mother.

83.      In circumstances where the grandparents have used their resources to maintain the child when he is with them, the parents have offered little support to their respective parents.

84.      In my conclusion below, I deal with the critical issue of the effect of any changes in the child’s circumstances (s 60CC(3)(d)).

85.      No practical difficulties or expenses arise from the child navigating the two competing households.  The Court finds that all the grandparents have the capacity to provide for the needs of X, including emotional and intellectual needs.  The Department and Ms C had formed the same view.

86.      The child has a strong and important ancestry and it would be to his benefit that his cultural awareness and understanding of his maternal family history is known to him.  Thankfully his maternal grandparents are well-placed to educate him and the paternal grandmother supports, as does the Court, an opportunity for him to travel with the maternal grandparents (or one of them) to Country D on a regular basis – perhaps not annually, but regularly.  Of course it will be the case that as his educational needs develop, interruption to his schooling might not be optimal – but in his early years travelling to Country D in the northern summer might be preferable.  The maternal grandmother has some family connection with New Zealand, but the evidence was not clear how the paternal family’s New Zealand roots might similarly be understood by X.  It is of course less costly and closer to go to New Zealand than Country D.  The orders I make for overseas travel, by either grandparent, are designed to encourage and facilitate these trips.

87.      As noted already, on many occasions, the grandparents are very different and some of the attitudes and parental emphasis is different.  In the wide range of attitudes the Court often encounters, I saw nothing in the attitude to parenting from any of the grandparents which could be properly said to be outside the range of child focused parenting.

88.      No family violence issues arise in this case (save for the conflict that arose some years ago between the father and the maternal grandmother).

89.      I accept that the decision I make is likely to disappoint the maternal grandparents – as did the placement decision and following Children’s Court Order made in May 2016.  They have made a huge investment emotionally in X – but their continuing involvement with his care (as the orders will enable) will mean that they will continue to play a big role in his life, as they should.

90.      Whilst it ultimately is a matter for all parties, I would see no likelihood of further proceedings being commenced by the maternal grandparents unless some serious issues arise in the care of X – either through behaviour of the paternal grandmother or the father.  The father (and theoretically the mother as well), could in the future commence fresh proceedings, to expand their role in X’s life (e.g. to seek unsupervised time), but that is a prospect that arises wherever X lives.

91.      For completeness, I accept that my finding that the paternal grandmother has now accepted that transition to the father’s care is not foreseeable, is not likely to find favour with the maternal grandparents.  Certainly the late change of position does raise some concerns.  However, where any conflict arises between the love the paternal grandmother holds for her son Mr Jennings and the hope that he will turn his life around – and the needs of X will be safe, stable and secure – I come to the conclusion my conclusion is correct.  Of course, only time might eventually tell, but my decision is based (as the reasons hopefully demonstrate) on the advantages and disadvantages arising from each of the households.

Parental responsibility

92. It is not contentious in this case that it is contrary to the best interests of X for either the mother or father at this time to exercise any parental responsibility. The presumption under the Act therefore does not apply.

93.      Where the grandparents are the persons who will be in effect, at different times, exercising the day today parental responsibilities, it is agreed that the grandparents should in some form have the power to make major long-term decisions.

94.      At paragraph 53 of the Department’s written submissions it is contended as follows:

“53.     With respect to the issue of parental responsibility, it is submitted that preferably the order should be equal shared parental responsibility.  However it may be that the level of conflict and the difference in parenting styles mandates sole parental responsibility.  In those circumstances, there should be genuine consultation between the parties and a time frame within which information and other material can be provided to each other to assist in the decision making process. For example, with respect to the schools X attends, detailed information about each of the proposed schools should be put by both sides.”

95.      In my view the best long-term order is for the maternal grandmother and paternal grandmother to have equal shared parental responsibility.  The past evidence of poor “joint” decision-making and conflict as already referred to must be seen within the context that none of the grandparents have been legally able to decide a major long-term issue - as the Department (through the Director-General) has exercised that power under child welfare orders.  In essence therefore, the agitation by the grandparents for a particular decision is more advocacy to the person making the decision.

96.      Neither party submitted that an order for equal shared parental responsibility should be made - apparently adopting the position that whoever has the majority of care should have the benefit of an order for sole parental responsibility, but with an obligation to consult.  I again note that the maternal grandparents did email the father about their preferred school option.  The Court assumes that the dispute about schooling for X to take effect from the commencement of this year must have been resolved by negotiation – as no application to re-open has been made to determine the issue.

97. If my assumption is correct, then that would be a clear demonstration of the parties discussing a major long-term issues (as defined by s 4(1) of the Act) and could give me confidence (contrary to all the written submissions) that equal shared parental responsibility is not problematic. My assumption may not be correct, and it may have been the Director-General exercising the power to make the school decision.

98.      In completing these Reasons, I contemplated whether I should seek further evidence and/or submissions on the schooling issue, but decided not to do so, so as to bring the litigation to an end.  The maternal grandparents contended that if X was ordered to primarily live with the paternal grandmother, then an order for her to have sole parental responsibility (but with a requirement to consult) should be made.

99.      I propose to adopt that submission, however after publication of these Reasons, and with the parties being aware of how the school issue was resolved, if they agree now to an order for equal shared parental responsibility, the Court would make such an order, by consent.

Conclusion

100.    I have, for the reasons which I have set out above, and in a finely balanced case, decided it is in the best interests of X that he live predominantly with the paternal grandmother and spend time with the maternal grandparents which would include school week time, weekend time, special occasion time, holidays - essential substantial and significant time.

101.    This is what the child has experienced for over three years now.  Stability is best achieved by not disrupting this arrangement.  It also better allows the relationship between X and the father to continue to develop.  On balance, I accept that the paternal grandmother, perhaps late in the day and not articulated without ambivalence, accepts transition to the father’s primary care cannot be achieved for the foreseeable future.  I do not believe she will put X at risk and I believe, as hard as it has been for her, that she now accepts that her son’s bland statement of no drug use cannot be believed.  Only if he, the father, can demonstrate to not only the Court but to all the grandparents that he has really dealt with his drug issues in a sustainable way, could a Court or any of the grandparents consider moving the father’s time to unsupervised.

102.    It is highly speculative whether the father can, at that time, produce evidence demonstrating he functions well as an independent adult such that he would ever be a serious contender for primary care.

103.    In making this difficult decision, I wish to restate that X is indeed fortunate to have so much love and capable parenting from his grandparents to guide and support him.  If, as I hope, the end of this litigation will pave the way to a more cooperative, respectful and trusting relationships between all the grandparents, then a difficult start to X’s life journey should not prevent him in reaching his potential.

Form of order

104.    The orders which appear at the commencement of these Reasons (subject only to what I have noted about possibly equal shared parental responsibility) are in the Court’s determination, in the best interests of X.  To explain some of the aspects of the order, I make the following findings:

a)        I regarded it in the best interests of X that, at his age at least weekly physical contact shall occur with the maternal grandparents.  The evidence did not suggest that weekend time could not extend to before school Monday.  To enhance the opportunity for the maternal grandparents to be involved with X at school and to also provide a natural location for changeover, the alternate weekend time with the maternal grandparents shall conclude at the commencement of school on Monday (rather than 4.00pm Sunday) and conclude at commencement of school Tuesday, if Monday is a public holiday;

b)        The maternal grandparents shall supervise the time X spends with his mother and the paternal grandmother shall supervise the time X spends with his father.  I assess it is better to leave when such time occurs as flexible, rather than trying to prescribe defined times, as the paternal grandmother sought in her orders;

c)        I adopt as appropriate the alternate proposal of the maternal grandparents for holiday time and special occasion events.  Of course the grandparents are able to vary these holiday arrangements by consent (which should be reduced to writing – not necessarily with lawyer involvement), if during any particular period it suits the best interests of X to do so.  In the absence of any agreed variation, the terms of the order must be complied with.  As X gets older, the grandparents should consider Christmas school holidays being shared equally which would then easily accommodate an overseas trip.  However, I adopt the maternal grandparents’ proposal for Christmas holidays, which is only two weeks a year at this stage.  One concern with this proposal is that when the child spends the first two weeks of the Christmas school holidays with the paternal grandparents, he would then not spend time with them for around four weeks.  This is not ideal, and it would be better for at least up to a week in January to be arranged.  Hopefully the grandparents will consider this suggestion; and

d)        There is a real prospect that the maternal grandparents will wish to take X to Country D and the paternal grandmother raised no objection to that occurring.  Although somewhat arbitrary, in the absence of agreement, any overseas holiday should be no longer than three weeks, and no more regularly than every second year.  The orders I make permit this to occur, with “make up” holiday time.  The paternal grandmother should retain the passport for X.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 16 May 2019.

Associate: 

Date:  16 May 2019

APPENDIX ONE

ORDERS SOUGHT IN THE EVENT THAT THE COURT DETERMINES THAT X LIVE WITH MR DOZIC AND MS DOZIC THAT WE HAVE PARENTAL RESPONSIBILITY IN RELATION TO X

(1) That in accordance with section 69ZK(1)(a) of the Family Law Act 1975, this Order comes into effect when the child X born … 2014 (“the child”) ceases to be subject of the Child Protection Order made under the Child Protection Act 1999 in the Children’s Court (Magistrates Court) at Brisbane on 25 October 2016.

Parenting responsibility

(2)      That the applicant grandparents Ms Dozic and Mr Dozic (hereafter referred to as “the maternal grandparents”) shall have the sole parental responsibility for making decisions regarding the major long-term issues in relation to the child.

(3)      Except in the case of emergency, the maternal grandparents shall, prior to making any decisions regarding the major long-term decisions in relation to the child, consult with Ms A Dozic (hereafter referred to as “the mother”), Mr Jennings (hereafter referred to as “the father”) and Ms Jennings (hereafter referred to as the “paternal grandmother”) in relation to decisions to be made and make a genuine effort to come to a joint decision about that issue, however in the event that the parties do not achieve agreement, the maternal grandparents shall have the sole parental responsibility for making the decision.

(4)      That for the purposes of the maternal grandparents consulting with the mother, the father and the paternal grandmother about major long-term issues in relation to the child, the paternal grandmother shall:

(a)       seek the other parties’ view within fourteen (14) days (or earlier if necessary) of a situation arising where a decision must be made about a major long-term issue in relation to the child; and

(b)      when the time frame for making a decision about a long-term issue in relation to the child permits, provide the other parties with an opportunity if they wish to arrange an appointment for the parties to attend with a Family Dispute Resolution Practitioner nominated by the parties seeking the meeting with the Family Dispute Resolution Practitioner (hereafter referred to as “the mediation”) to discuss the decision to be made and the party seeking the mediation shall be responsible for the payment of the costs of the mediation.

(5)      For the purposes of these Orders, a major long-term issue includes and is not limited to issues such as:

(a)       education;

(b)      religion;

(c)      health;

(d)      name; and

(e)      any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with the other parties.

(6)      That the paternal grandmother shall be responsible for decisions about issues that are not made a long-term issues when the child is in her care without the need to consult the maternal grandparents.

The care arrangements during term time

(7)      That the child live with the maternal grandparents.

(8)      That regardless of whether the child has commenced school or not, during the school terms the child shall spend time with the paternal grandmother each alternate weekend as follows:

(a)       Each alternate Thursday, starting from the first Thursday after the issue of this Order, from 3.00pm (or after school if the child is attending school) until 9.00am (or before school if the child is attending school) on Friday; and

(b)      in the other week and each alternate week thereafter from 4.00pm (or after school if the child is attending school) on Friday until 4.00pm on Sunday.

(9)      That the child spend time with the mother as agreed between the maternal grandparents and the mother, with such time to occur during the time that the child is in the care of the maternal grandparents.

(10)     That the child spend time with the father as agreed between the paternal grandmother and the father, with such time to occur during the time the child is in the care of the paternal grandmother.

(11)     That for the purposes of these Orders, school terms are defined as the dates for the school terms of the school where the child attends however until the child commences school, the school terms shall be defined as the school terms for Queensland state schools.

School holiday period apart from the Christmas school holiday periods

(12)     That during the Easter, June/July and September/October school holiday periods (here after referred to as “the school holiday periods”), that the child spend one half of the school holiday period with the maternal grandparents and one half with the paternal grandmother as follows:

(a)       in even numbered years commencing in 2018, with the maternal grandparents for the first half of these school holiday periods and the paternal grandmother for the second half of these school holiday periods; and

(b)      in odd numbered years commencing in 2019, with the paternal grandmother for the first half of these school holiday periods and with the maternal grandparents for the second half of these school holiday periods.

(13)     That the child spend time with the mother during the school holiday period as agreed between the maternal grandparents and the mother, with such time to occur during the time that the child is in the care of the maternal grandparents.

(14)     The child spend time with the father during the school holiday period as agreed between the paternal grandmother in the father, with such time to occur during the time that the child is in the care of the paternal grandmother.

(15)     That for the purposes of these Orders:

(a)       these school holiday periods shall be defined as the dates for the school holidays of the school where the child attends however until the child commences school, these school holiday periods shall be defined as the school holiday periods for Queensland state schools;

(b)      these school holiday periods commence on the last day of the school term and conclude on the day before the next school term commences;

(c)      the number of nights in each school holiday period is used to calculate one half of the school holiday period and if there is an even number of nights, the maternal grandparents shall have the care of the child for the one additional night on the first occasion this occurs and each alternate occasion thereafter and the paternal grandmother shall have the care of the child for the one additional night on the second occasion this occurs and each alternate occasion thereafter; and

(d)      changeovers during the school holiday periods shall occur at 4.00pm.

The Christmas school holiday periods

(16)     That during the Christmas school holidays that the child spend two weeks with the paternal grandmother as follows:

(a)       In the 2018/2019 Christmas school holidays and each alternate Christmas holiday period thereafter, for the first two weeks of the holiday period, commencing at 4.00pm on the last day of the school term and concluding at 4.00pm two weeks later; and

(b)      In the 2019/2020 Christmas school holidays and each alternate Christmas holiday period thereafter, for two weeks commencing at 4.00pm on the first Friday in January and concluding at 4.00pm two weeks later.

(17)     That for the purposes of these Orders, the Christmas school holidays shall be defined as the dates for the Christmas school holidays of the school where the child attends however until the child commences school, the Christmas school holidays shall be defined as Christmas school holidays for Queensland state schools.

(18)     That the child spend time with the mother during the Christmas school holiday periods as agreed between the maternal grandparents and the mother, with such time to occur during the time the child is in the care of the maternal grandparents.

(19)     That the child spend time with the father during the Christmas school holiday periods as agreed between the paternal grandmother and the father, with such time to occur during the time of the child is in the care of the paternal grandmother.

Arrangements for changeovers

(20)     That during school terms and school holiday periods, the grandparent that is to assume the care of the child shall collect the child from the other grandparent’s home at 4.00pm on the day of the changeover.

Special occasions

(21)     Notwithstanding any Order to the contrary, during the Christmas public holiday period the child shall spend time with the maternal grandparents and mother and the paternal grandmother and father as follows:

(a)       In even numbered years, with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) from 8.00am Christmas Eve until 8.00am Christmas Day and with the paternal grandmother (and father as arranged by agreement with the paternal grandmother) from 8.00am Christmas Day until 8.00am Boxing Day;

(b)      In odd numbered years, with the paternal grandmother (and father as arranged by agreement with the paternal grandmother) from 8.00am Christmas Eve until 8.00am Christmas Day and with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) from 8.00am Christmas Day until 8.00am Boxing Day.

(22)     In the event that Father’s Day occurs on a weekend when the child would otherwise be in the care of the maternal grandparents, the child shall return to the paternal grandmother’s care at 8.00am on Father’s Day so that the child may spend time with the father and the time shall conclude at 2.00pm that day.

(23)     In the event that Mother’s Day occurs on the weekend when the child would otherwise be in the care of the paternal grandmother, the child shall return to the maternal grandparent’s care at 12 noon on Mother’s Day so that the child may spend time with the mother.

(24)     Notwithstanding any Order to the contrary, the child shall spend time with the maternal grandparents (and mother as arranged by agreement with the maternal grandparents) and paternal grandmother (and father as arranged by agreement with the paternal grandmother) on the child’s birthday each year as follows:

(a)       If it is a week-day, the child shall spend time with the grandparent/s he is not in the care of on his birthday in accordance with the other terms of these Orders, from 4.00pm until 6.00pm; and

(b)      If it is a Saturday or Sunday, the child shall spend time with the grandparent/s he is not in the care of on his birthday in accordance with the other terms of these Orders, from 8.00am until 12 noon.

Overseas travel

(25)     That the maternal grandparents and paternal grandmother each be permitted to take the child from Australia for a holiday to a place outside of Australia that is a country in respect of which the Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia (hereafter referred to as “overseas”) as follows:

(a)       Subject to Orders 26 and 27, the grandparent/s may only take the child overseas in the time that the child is in the care of the grandparent/s in accordance with these Orders unless otherwise agreed;

(b)      The grandparent/s shall only take the child overseas during school holiday periods once the child commences school.

(26)     The maternal grandparents may, during any school holiday period and each year, elect to travel overseas to Country D for the purposes of visiting the extended family of the maternal grandparents and the child, for a period greater than the time that the child is in the care of the maternal grandparents pursuant to these Orders.

(27)     In the event that the maternal grandparents elect to travel to Country D during any school holiday period for a period greater than the time that the child is in the care of the maternal grandparents pursuant to these Orders, then the paternal grandmother shall spend additional week time with the child the next school holiday period.

(28) That pursuant to section 65Y of the Family Law Act 1975 (Cth), the maternal grandparents and paternal grandmother be permitted to take the child overseas for a holiday, on the proviso that the grandparent/s who wishes to travel with the child overseas shall provide to the other grandparent/s:

(a)       written notice as to their intention to take the child overseas at least two (2) months prior to the proposed departure date for travel;

(b)      an itinerary showing departure and return dates, details of the country or countries that the grandparent/s and the child will be travelling to and particulars of flight/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

(c)      a copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of the departure; and

(d)      within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication which the child for the period the child will be overseas.

(29)     That the maternal grandparents shall hold the Australian passport of the child and provide the passport to the paternal grandmother upon the provision of notice by her in accordance with sub-paragraphs 28(a) and 28(b) of these Orders and the passport shall be returned to the maternal grandparents within seven (7) days of the paternal grandmother returning from the overseas travel.

Specific issues

(30)     That this Order is authority for the daycare centre or school that the child attends, to give the maternal grandparents, paternal grandmother, mother and father information about the child’s progress and supply to them copies of reports, photographs, certificates and awards obtained by the child at the request in parties cost.

(31)     That this Order hereby authorises the general medical practitioner or any other healthcare professional providing services to the child to communicate with the maternal grandparents, paternal grandmother, mother and father and provide them with all such information and documents they may request from time to time regarding the child’s attendance with the professional, including any diagnosis, proposed treatment or prognosis for the child.

(32)     That the parties shall inform the other immediately of any serious illness, accident or emergency involving the child that occurs whilst the child is in the parties’ respective care and provide the details of the medical practitioner who has treated the child.

(33)     That the maternal grandparents and paternal grandmother inform the other of their residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within seven (7) days of any such change.

APPENDIX TWO

1. That in accordance with Section 69ZK(1)(a) of the Family Law Act 1975 (Cth), this order comes into effect when the child X born … 2014 (“the child”) ceases to be subject of the Child Protection Order made under the Child Protection Act 1999 in the Children's Court (Magistrates Court) at Brisbane on 25 October 2016.

IN THE EVENT THAT THIS HONOURABLE COURT MAKES ORDERS THAT THE PATERNAL GRANDMOTHER HAVE PARENTAL RESPONSIBILITY FOR THE CHILD AND THAT THE CHILD LIVE WITH THE PATERNAL GRANDMOTHER:

Parenting responsibility

2.        That the Paternal Grandmother, MS JENNINGS, have parental responsibility regarding all major long term issues concerning the care, welfare and development of the child, X, born on … 2014 ("the child").

3.        For the purposes of these Orders, a major long term issue includes and is not limited to issues such as:

a.        Health;

b.        Education;

c.        Extracurricular actives;

d.        Religion; and

e.        Welfare.

4.        Except in the case of an emergency, the Paternal Grandmother shall, prior to making any decision regarding the major long-term issues in relation to the child:

a.        Advise the Mother, MS A DOZIC, the Father, MR JENNINGS and the Maternal Grandparent/s, MR DOZIC and MS DOZIC, by email of her proposal in relation to the child and her reasons for such proposal;

b.        If any party wishes to comment on the Paternal Grandmother's proposal, that party shall, within fourteen (14) days after the date of the Paternal Grandmother's email, advise the Paternal Grandmother by email of his or her views;

c.        Upon receipt of any comment or proposal by any of the parties, the Paternal Grandmother shall give consideration to the views of such party or parties;

d.        After the Paternal Grandmother has considered the comments of the parties, she shall make a decision and advise the other parties of the outcome immediately after making that decision, with her reasons for the decision; and

e.        The Paternal Grandmother shall provide all parties with all relevant information arising from the decision.

5.        For the purpose of Order 4, if a party does not electronically respond as provided by paragraph 4(b ), the Paternal Grandmother shall be entitled to presume that the party does not wish to be involved and she may decide the issue without input from that party.

6.        That the Paternal Grandmother have sole parental responsibility for day to day issues when the child is in her care.

7.        That the Maternal Grandparent/s have sole parental responsibility for day to day issues when the child is in their care.

Living arrangements

Prior to 27 January 2019

8.        That the child live with the Maternal Grandparent/s:

a.        In Week 1 from 9.30am on Thursday to 9.30am on Saturday; and

b.        In Week 2 from 4.00pm on Thursday until 4.00pm on Sunday.

9.        That the child live with the Paternal Grandmother at all other times, unless otherwise expressed in these Orders.

10.      That the child spend time with the Father on Monday and Wednesday each week from after kindergarten until 7.30pm and each Saturday from 9.30am until 7.30pm in Week 1 while the child is living with the Paternal Grandmother.

11.      That the Paternal Grandmother be at liberty to terminate time between the child and the Father.

12.      That the Paternal Grandmother be at liberty to make changes to the days of the week the child spends time with the Father, with reference to the child's extra-curricular schedule and the Father's work schedule, without increasing the number of hours the Father spends with the child each fortnight.

13.      That the child spend time with the Mother while the child is living with the Maternal Grandparent/s or Paternal Grandmother as agreed between them.

After 27 January 2019

14.      That the child live with the Maternal Grandparent/s during school terms:

a.        In Week 1 from 3.00pm on Thursday until before school on Friday; and

b.        In Week 2 from 3.00pm on Friday until before school on Monday.

15.      That the child live with the Paternal Grandmother at all other times, unless otherwise expressed in these Orders.

16.      That, subject to Order 28, the child live with the Maternal Grandparent/s from 9.00am until 3.00pm on public holidays or non-teaching days that fall on a Friday during the school term.

17.      That, subject to Order 28, the child live with the Maternal Grandparent/s from 9.00am until 3.00pm on public holidays or non-teaching days that fall on a Monday during the school term in Week 2.

18.      That the child spend time with the Father on Monday and Wednesday each week from afterschool until 7.30pm and each Saturday from 9.30am until 7.30pm in Week 1 while the child is living with the Paternal Grandmother.

19.      That the Paternal Grandmother be at liberty to terminate time between the child and the Father.

20.      That the Paternal Grandmother be at liberty to make changes to the days of the week the child spends time with the Father, with reference to the child's extra-curricular schedule and the Father's work schedule, without increasing the number of hours the Father spends with the child each fortnight.

21.      That the child spend time with the Mother while the child is living with the Maternal Grandparent/s or the Paternal Grandmother as agreed between them.

The school holidays after 27 January 2019

April, June and September school holidays

22.      That during the April, June and September school holidays the child live with the Paternal Grandmother:

a.        In even years in the first week of the school holidays from afterschool on the last day of school until 3.00pm the following Friday; and

b.        In odd years in the second week of the school holidays from 3.00pm on Friday until 3.00pm the following Friday.

23.      That during the April, June and September School holidays the child live with the Maternal Grandparent/s:

a.        In odd years in the first week of the school holidays from afterschool on the last day of school until 3.00pm the following Friday; and

b.        In even years in the second week of the school holidays from 3.00pm on Friday until 3.00pm the following Friday.

24.      That, subject to Order 28, the child live with the Paternal Grandmother from the last Friday of the school holidays at 3.00pm until before school on the first day of school.

Christmas school holidays

25.      That commencing December 2019 during the Christmas school holidays the child live with the Maternal Grandparent/s:

a.        From afterschool on the last day the child attends school until 3.00pm one (1) week later; and

b.        From the first (1st) day of January at 3.00pm until the … at 12.00pm.

26.      That commencing Christmas 2019 the child otherwise live with the Paternal Grandmother during the Christmas school holidays.

Special occasions

27.      That in the Christmas School Holidays the child spend time with the Maternal Grandparent/s, Mother, Paternal Grandmother and Father as follows:

a.        In 2018 with the Paternal Grandmother and the Father from 9.00am on 24 December until 9.00am on 26 December to celebrate the Christian Christmas, which falls on 25 December; and

b.        In 2019 with the Maternal Grandparent/s and the Mother from 9.00am on 6 January to 9.00am 8 January to celebrate the Nationality D Christmas, which falls on 7 January.

28.      That in the Easter public holidays the child spend time with the Maternal Grandparent/s, Mother, Paternal Grandmother and Father as follows:

a.        From 9 .00am on Easter Friday until 9 .00am on Easter Sunday with the Maternal Grandparent/s in odd years and from 9.00am on Easter Friday until 9.00am on Easter Sunday with the Paternal Grandmother in even years; and

b.        From 9.00am on Easter Sunday until 9.00am on Easter Tuesday with the Maternal Grandparent.ls in even years and from 9.00am on Easter Sunday until 9.00am on Easter Tuesday with the Paternal Grandmother in odd years.

29.      That if the Mother's birthday, on …, falls on a day that the child does not ordinarily spend time with the Mother, the child will spend time with the Mother:

a.        If the day is not a school day, the child will spend time with the Mother between 11.00am and 2.00pm; and

b.        If the day is a school day, the child will spend time with the Mother between 3.00pm and 5.00pm.

30.      That if the Father's birthday, on …, falls on a day that the child does not ordinarily spend time with the Father, the child will spend time with the Father:

a.        If the day is not a school day, the child will spend time with the Father between 11.00am and 2.00pm; and

b.        If the day is a school day, the child will spend time with the Father between 3.00pm and 5.00pm.

Specific issues

Handover

31.      That, if a party is not collecting the child from school for handover:

a.        That the Paternal Grandmother is to deliver the child to the Maternal Grandfather's residence when he is about to commence living with the Maternal Grandparents; and

b.        That the Maternal Grandparent/s are to deliver the child to the Paternal Grandmother's residence when he is about to commence living with her.

School

32.      That the child will be enrolled in and attend School H in his primary school years, unless otherwise agreed between the parties in writing.

33.      That the child's school is authorised by these Orders to provide photographs, reports and awards to the Maternal Grandparent/s, Mother, Paternal Grandmother and Father, if requested.

Health

34.      That, if the child is in need of non-urgent medical attention, he will attend the General Practitioner that he usually attends with the Paternal Grandmother when he is living with the Paternal Grandmother.

35.      Each party is at liberty to contact all of the medical practitioners treating the child from time to time and these Orders authorise the child's medical practitioners to provide medical information or reports concerning the child to each grandparent.

36.      That in the event of an emergent health situation the party with whom the child is living shall immediately contact the other parties, once any immediate health or safety concerns have been addressed.

37.      That the Paternal Grandmother will hold the child's Medicare Card, unless otherwise agreed between the parties in writing.

Name

38.      That no party shall change the child's name or cause his name to be changed.

Living arrangements

39.      That no party will make any change to the child's living arrangements that may make it significantly more difficult for the child to spend time with the other parties.

Injunction

40.      That the Mother, Father, Paternal Grandmother and Maternal Grandparent/s be restrained and an injunction issued preventing the parties from criticising, denigrating, demeaning, belittling or ridiculing each other or any member of each party's family or household in the presence or hearing of the child and all parties remove the child from the presence of persons who are doing so.

Passport

41.      That each parent do all acts and sign all documents necessary for the issue of the child's passport with the Department of Foreign Affairs and Trade.

42.      That in the event that one or both of the parents refuses or neglects to sign any document necessary to effect the renewal or reissue of the Child's passport, then the Maternal Grandparent/s and/or Father and/or Paternal Grandmother be permitted to apply for and obtain a passport in the name of the child, without the consent of the parents.

Interstate travel

43.      That the Maternal Grandparent/s be permitted to take the child interstate for a holiday, on the proviso:

a.        That the Maternal Grandparent/s electing to travel with the child provide written notice to the Paternal Grandmother at least two (2) weeks prior to the date of departure.

b.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

44.      That the Paternal Grandmother be permitted to take the child interstate for a holiday, on the proviso:

a.        That the Paternal Grandmother provide written notice to the Maternal Grandparent/s at least two (2) weeks prior to the date of departure.

b.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

Overseas travel

45.      In the event that one of the parties elect to travel with the child during any school holiday period for a period of up to two (2) weeks in the April, June and September school holidays or for four (4) weeks in the Christmas school holidays, which is greater that the time the child is in the care of the other party pursuant to these Orders, then the child shall spend additional, equivalent time with that party in the following school holiday period.

46.      That the child will not travel interstate or overseas for a period greater than two (2) weeks until after 1 January 2020.

47. That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Maternal Grandparent/s be permitted to take the child overseas for a holiday, on the proviso:

a.        That the Maternal Grandparent/s electing to travel overseas with the child advise the Paternal Grandmother in writing at least two (2) months prior to the date of departure.

b.        That the Maternal Grandparent/s who wishes to travel with the child overseas shall provide to the Paternal Grandmother an itinerary showing departure and return dates, details of the country or countries that the Maternal Grandparent/s and child will be traveling to and particulars of flights/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

c.        A copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of departure; and

d.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

48. That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Paternal Grandmother be permitted to take the child overseas for a holiday, on the proviso:

a.        That she advise the Maternal Grandparent/s in writing at least two (2) months prior to the date of departure.

b.        That she shall provide to the Maternal Grandparent/s an itinerary showing departure and return dates, details of the country or countries that the Paternal Grandmother and child will be traveling to and particulars of flights/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

c.        A copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of departure; and

d.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

49.      That the Paternal Grandmother shall hold the Australian passport of the child and provide the passport to the Maternal Grandparent/s upon the provision of notice by them in accordance with sub-paragraphs 47(a) and 47(b).

50.      That within seven (7) days of return to Australia the Maternal Grandparent/s shall return the child's passport to the Paternal Grandmother.

51.      That the Paternal Grandmother will not travel with the child for a period greater than two (2) weeks more than once every two (2) years and will do so in odd numbered years.

52.      That the Maternal Grandparent/s will not travel with the child for a period greater than two (2) weeks more than once every two (2) years and will do so in even numbered years.

IN THE EVENT THAT THIS HONOURABLE COURT MAKES ORDERS THAT THE MATERNAL GRANDPARENTS OR MATERNAL GRANDMOTHER OR MATERNAL GRANDFATHER HAVE PARENTAL RESPONSIBILITY FOR THE CHILD AND THAT THE CHILD LIVE WITH THE MATERNAL GRANDPARENT/S OR MATERNAL GRANDMOTHER:

Parenting responsibility

2.        That the Maternal Grandparent/s, MR DOZIC and/or MS DOZIC have parental responsibility regarding all major long term issues concerning the care, welfare and development of the child, X, born on … 2014 (“the child”).

3.        For the purposes of these Orders, a major long term issue includes and is not limited to issues such as:

a.        Health;

b.        Education;

c.        Extracurricular actives;

d.        Religion; and

e.        Welfare.

4.        Except in the case of an emergency, the Maternal Grandparent/s shall, prior to making any decision regarding the major long-term issues in relation to the child:

a.        Advise the Mother, MS A DOZIC, the Father, MR JENNINGS and the Paternal Grandmother, MS JENNINGS, by email of her proposal in relation to the child and her reasons for such proposal;

b.        If any party wishes to comment on the Maternal Grandparent/s' proposal, that party shall, within fourteen (14) days after the date of the Maternal Grandparent/s email, advise the Maternal Grandparent/s by email of his or her views;

c.        Upon receipt of any comment or proposal by any of the parties, the Maternal Grandparent/s shall give consideration to the views of such party or parties;

d.        After the Maternal Grandparent/s has/have considered the comments of the parties, she shall make a decision and advise the other parties of the outcome immediately after making that decision, with her reasons for the decision; and

e.        The Maternal Grandparent/s shall provide all parties with all relevant information arising from the decision.

5.        For the purpose of Order 4, if a party does not electronically respond as provided by paragraph 4(b ), the Maternal Grandparent/s shall be entitled to presume that the party does not wish to be involved and they/he/she may decide the issue without input from that party.

6.        That the Maternal Grandparent/s have sole parental responsibility for day to day issues when the child is in their/his/her care.

7.        That the Paternal Grandmother have sole parental responsibility for day to day issues when the child is in her care.

Living arrangements

Prior to 27 January 2019

8.        That the child live with the Maternal Grandparent/s:

a.        In Week 1 from 9.30am on Thursday to 9.30am on Saturday; and

b.        In Week 2 from 4.00pm on Thursday until 4.00pm on Sunday.

9.        That the child live with the Paternal Grandmother at all other times, unless otherwise expressed in these Orders.

10.      That the child spend time with the Father on Monday and Wednesday each week from after kindergarten until 7.30pm and in Week 1 on Saturday from 9.30am until 7.30pm while the child is living with the Paternal Grandmother as agreed between them, unless otherwise agreed by the parties.

11.      That the child spend time with the Mother while the child is living with the Maternal Grandparent/s or Paternal Grandmother as agreed between them.

After 27 January 2019

12.      That the child live with the Paternal Grandmother during school terms:

a.        In Week 1 from afterschool on Thursday until before school on Tuesday in Week 2.

13.      That the child live with the Maternal Grandparent/s at all other times, unless otherwise expressed in these Orders.

14.      That the child spend time with the Father in Week 1 on Thursday from afterschool until 7.30pm, in Week 1 on Saturday from 9.30am until 7.30pm and in Week 2 on Monday from afterschool until 7.30pm while the child is living with the Paternal Grandmother.

15.      That the Paternal Grandmother be at liberty to terminate time between the child and the Father.

16.      That the Paternal Grandmother be at liberty to make changes to the days of the week the child spends time with the Father, with reference to the child's extra-curricular schedule and the Father's work schedule, without increasing the number of hours the Father spends with the child each fortnight.

17.      That the child spend time with the Mother while the child is living with the Maternal Grandparent/s or the Paternal Grandmother as agreed between them.

The school holidays after 27 January 2019 April, June and September school holidays

18.      That during the April, June and September school holidays the child live with the Paternal Grandmother:

a.        In even years in the first week of the school holidays from afterschool on the last day of school until 3.00pm the following Friday; and

b.        In odd years in the second week of the school holidays from afterschool on the last day of school until 3.00pm the following Friday.

19.      That, subject to Order 24, during the April, June and September School holidays the child live with the Maternal Grandparent/s:

a.        In odd years in the first week of the school holidays from afterschool on the last day of school until 3.00pm the following Friday; and

b.        In even years in the second week of the school holidays from 3.00pm on Friday until 3.00pm the following Friday.

20.      That, subject to Order 24, the child live with the Maternal Grandparent/s from afterschool on the last Friday of the school holidays until the first day of school before school.

Christmas school holidays

21.      That commencing December 2019 during the Christmas school holidays the child live with the Maternal Grandparent/s:

a.        From afterschool on the last day the child attends school until 3.00pm one (1) week later; and

b.        From the first (Pt) day of January at 3.00pm until the … at 12.00pm.

22.      That commencing Christmas 2019 the child otherwise live with the Paternal Grandmother during the Christmas school holidays.

Special occasions

23.      That in the Christmas School Holidays the child spend time with the Maternal Grandparent/s, Mother, Paternal Grandmother and Father as follows:

a.        In 2018 with the Paternal Grandmother and the Father from 9.00am on 24 December until 9.00am on 26 December to celebrate the Christian Christmas, which falls on 25 December; and

b.        In 2019 with the Maternal Grandparent/s and the Mother from 9 .00am on 6 January to 9.00am 8 January to celebrate the Nationality D Christmas, which falls on 7 January.

24.      That in the Easter public holidays the child spend time with the Maternal Grandparent/s, Mother, Paternal Grandmother and Father as follows:

a.        From 9 .00am on Easter Friday until 9 .00am on Easter Sunday with the Maternal Grandparent/s in odd years and from 9.00am on Easter Friday until 9.00am on Easter Sunday with the Paternal Grandmother in even years; and

b.        From 9.00am on Easter Sunday until 9.00am on Easter Tuesday with the Maternal Grandparent/s in even years and from 9.00am on Easter Sunday until 9.00am on Easter Tuesday with the Paternal Grandmother in odd years.

25.      That if the Mother's birthday, on …, falls on a day that the child does not ordinarily spend time with the Mother, the child will spend time with the Mother:

a.        If the day is not a school day, the child will spend time with the Mother between 11.00am and 2.00pm; and

b.        If the day is a school day, the child will spend time with the Mother between 3.00pm and 5.00pm.

26.      That if the Father's birthday, on …, falls on a day that the child does not ordinarily spend time with the Father, the child will spend time with the Father:

a.        If the day is not a school day, the child will spend time with the Father between 11.00am and 2.00pm; and

b.        If the day is a school day, the child will spend time with the Father between 3.00pm and 5.00pm.

Specific issues

Handover

27.      That, if a party is not collecting the child from school for handover:

a.        That the Paternal Grandmother is to deliver the child to the Maternal Grandparent.ls residence when he is about to commence living with the Maternal Grandparent/s; and

b.        That the Maternal Grandparent/s are to deliver the child to the Paternal Grandmother's residence when he is about to commence living with her.

School

28.      That the child will be enrolled in and attend School G in his primary school years, unless otherwise agreed between the parties in writing.

29.      That the child's school is authorised by these Orders to provide photographs, reports and awards to the Maternal Grandparent/s, Mother, Paternal Grandmother and Father, if requested.

Health

30.      That, if the child is in need of non-urgent medical attention, he will attend the General Practitioner that he usually attends with the Maternal Grandparent/s when he is living with the Maternal Grandparent/s.

31.      Each party is at liberty to contact all of the medical practitioners treating the child from time to time and these Orders authorise the child's medical practitioners to provide medical information or reports concerning the child to each grandparent.

32.      That in the event of an emergent health situation the party with whom the child is living shall immediately contact the other parties, once any immediate health or safety concerns have been addressed.

33.      That the Maternal Grandparent/s will hold the child's Medicare Card, unless otherwise agreed between the parties in writing.

Name

34.      That no party shall change the child's name or cause his name to be changed.

Living arrangements

35.      That no party will make any change to the child's living arrangements that may make it significantly more difficult for the child to spend time with the other parties.

Injunction

36.      That the Mother, Father, Paternal Grandmother and Maternal Grandparent's be restrained and an injunction issued preventing the parties from criticising, denigrating, demeaning, belittling or ridiculing each other or any member of each party's family or household in the presence or hearing of the child and all parties remove the child from the presence of persons who are doing so.

Passport

37.      That each parent do all acts and sign all documents necessary for the issue of the child's passport with the Department of Foreign Affairs and Trade.

38.      That in the event that one or both of the parents refuses or neglects to sign any document necessary to effect the renewal or reissue of the Child's passport, then the Maternal Grandparent's and/or Paternal Grandmother be permitted to apply for and obtain a passport in the name of the child, without the consent of the parents.

Interstate travel

39.      That the Paternal Grandmother be permitted to take the child interstate for a holiday, on the proviso:

a.        That she provide written notice to the Maternal Grandparent's at least two (2) weeks prior to the date of departure.

b.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

40.      That the Maternal Grandparent/s be permitted to take the child interstate for a holiday, on the proviso:

a.        That the Maternal Grandparent/s provide written notice to the Paternal Grandmother at least two (2) weeks prior to the date of departure.

b.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

Overseas travel

41.      In the event that one of the parties elect to travel with the child during any school holiday period for a period of up to two (2) weeks in the April, June and September school holidays or four (4) weeks in the Christmas school holidays, which is greater that the time the child is in the care of the other party pursuant to these Orders, then the child shall spend additional, equivalent time with that party in the following school holiday period.

42.      That the child will not travel interstate or overseas for a period greater than two (2) weeks until after 1 January 2020.

43. That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Paternal Grandmother be permitted to take the child overseas for a holiday, on the proviso:

a.        That she provide written notice to the Maternal Grandparent/s in writing at least two (2) months prior to the date of departure;

b.        That she shall provide to the Maternal Grandparent/s an itinerary showing departure and return dates, details of the country or countries that the Paternal Grandmother and child will be traveling to and particulars of flights/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

c.        A copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of departure; and

d.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

44. That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Maternal Grandparent/s be permitted to take the child overseas for a holiday, on the proviso:

a.        That they provide written notice to the Paternal Grandmother in writing at least two (2) months prior to the date of departure;

b.        That she shall provide to the Paternal Grandmother an itinerary showing departure and return dates, details of the country or countries that the Paternal Grandmother and child will be traveling to and particulars of flights/other mode of transport, no less than twenty-one (21) days prior to the date of the departure;

c.        A copy of any visas obtained that the child requires for the travel, no less than seven (7) days prior to the date of departure; and

d.        Within seven (7) days prior to the date of departure, the telephone contact details or details of other forms of communication with the child for the period the child will be overseas or interstate.

45.      That the Maternal Grandparent/s shall hold the Australian passport of the child and provide the passport to the Maternal Grandparent/s upon the provision of notice by them in accordance with sub-paragraphs 44(a) and 44(b).

46.      That within seven (7) days of return to Australia the Paternal Grandmother shall return the child's passport to the Maternal Grandparent/s.

47.      That the Paternal Grandmother will not travel with the child for a period greater than two (2) weeks more than once every two (2) years and will do so in odd numbered years.

48.      That the Maternal Grandparent/s will not travel with the child for a period greater than two (2) weeks more than once every two (2) years and will do so in even numbered years.