Edgar and Ingles and Anor

FAMILY COURT OF AUSTRALIA

EDGAR & INGLES AND ANOR

[2015] FamCA 228

FAMILY LAW – CHILDREN – Final Orders – young child previously in care of mother, father and paternal grandmother – mother seeks sole parental responsibility while father seeks only limited time spent with order – paternal grandmother seeks shared parental responsibility with the child to live primarily with her – where mother and father previously subject of significant concern and intervention by welfare authorities –where paternal grandmother previously primary carer – best interests of the child – where mother has undertaken rehabilitation and reunification process and demonstrated her ability to parent the child - relationships between the parties characterised by mistrust – orders made for mother to have sole parental responsibility and child to spend time with the paternal grandmother.

Family Law Act 1975 (Cth) s 60B, 60CC, 65DAA

AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Donnell v Dovey (2010) 42 Fam LR 559
Runcorn & Raine [2008] FamCA 837

APPLICANT:

Ms Edgar

1^st RESPONDENT:

Mr Ingles

2^nd RESPONDENT:

Ms Richards

INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

FILE NUMBER:

ADC

3214

2013

DATE DELIVERED:

1 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

24 - 27 November 2014 and 16 - 20 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dibden

SOLICITOR FOR THE APPLICANT:

Franklin Legal

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Anderson

SOLICITOR FOR THE 1^ST RESPONDENT:

Ian Charman and Associates

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Bowler

SOLICITOR FOR THE 2^ND RESPONDENT:

Douglas Hoskins Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Richards

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

Orders

That the mother have sole parental responsibility for B born … 2009 (“the child”).
The child live with the mother.
That the child spend time with the paternal grandmother as follows:-
(a)Each alternate weekend from the conclusion of school on Friday (or 4.30pm if not a school day) to 5pm Sunday or 5pm Monday in the event that the Monday is a public holiday, commencing 10 April 2015.
(b)For a period of one week in the end of second and third term school holidays as agreed and in default of agreement for the first half thereof, commencing at 10am on the first Saturday of the holidays;
(c)For Christmas in 2015 and each alternate year thereafter:-
(i)From 3pm on 25 December 2.15pm to 5pm 26 December and with the mother from 12 noon on 24 December to 3pm on 25 December;
(d) For Christmas in 2016 and each alternate year thereafter:-
(i)from 12 noon on 24 December to 3pm on 25 December and with the mother from 3.30pm on 25 December to 8pm 26 December;
(e)For the child’s birthday for a minimum of two hours PROVIDED THAT the paternal grandmother’s time with the child be suspended for two hours to enable the mother to spend time with the child should he be in the paternal grandmother’s care on that day;
(f)Such further and other time as may be agreed between the mother and the paternal grandmother.
That the child spend time with the father for one week in January of each year at such times and upon such conditions as may be agreed between the parties.
That the child spend time with the father on Father’s Day from 10am to 5pm PROVIDED that the paternal grandmother’s time shall be suspended to enable the child to spend time with the mother on Mother’s Day from 10am to 5pm.
That the provisions of paragraph 3 (a) be suspended during the second and third term school holidays and for one half of the Christmas school holiday periods.
That all handovers that do not occur at school shall occur in the carpark of KFC Suburb C, D Street, Suburb C SAVE as may be agreed between the mother and the paternal grandmother and father.
That each of the parties do advise the other of them as soon as possible as to any significant illness or injury sustained by the child.
The paternal grandmother and father be at liberty to attend at school sports days, award nights, parent/teacher interviews, swimming carnivals, school performances and any other sporting activity or extra-curricular activities to which parents and significant interested parties are normally invited.
That the paternal grandmother and father are able to obtain school reports and school photographs at their separate expense by directly contacting the child’s school AND the mother will provide written authority to the school to enable the provision of such material.
That an injunction be granted restraining the parties from contacting each other for any circumstances save as is necessary to discuss issues relating to the child.
That the parties be restrained and an injunction granted restraining each of them from denigrating each other to the child or in his presence or from allowing anyone else to do so.
That the father and paternal grandmother be restrained and an injunction granted restraining each of them from encouraging, prompting or promoting the child to refer to Ms F as “Mum” or “Mummy” or “Mummy F” or permitting anyone else to do so AND shall use their best endeavours to cause the child to only refer to the mother as “Mum” or “Mummy”.
That within seven (7) days of this order the parties disclose to each other their separate address and contact details.
That the order appointing the Independent Children’s Lawyer be discharged.
That all matters be removed from the pending List of Cases.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3214 of 2013

Ms Edgar

Applicant

And

Mr Ingles

1^stRespondent

And

Ms Richards
2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 15 October 2014 Ms Edgar (“the mother”) sought parenting orders in respect of B born in 2009 (“the child”).
At the commencement of the proceedings the mother sought leave to further amend her application to the effect that she would have sole parental responsibility for the child who would spend time with the father on each alternate weekend and for one week in the January school holiday period.
Some better detail was provided in terms of a handwritten document setting out her proposal.
On 20 March 2015 a further and more detailed Minute of Order was tendered which provided a greater level of clarity in terms of the mother’s proposal.
There was no opposition to the applications for leave to amend the orders that the mother sought both at the commencement of the proceedings or as contained in the mother’s subsequent proposal.
By his Amended Response filed 19 November 2014 Mr Ingles (“the father”) opposes the orders sought by the mother and seeks the following:-
(i)that the mother, father and paternal grandmother have equal shared parental responsibility for the child;
(ii)that the child live with the mother and paternal grandmother on a week about basis;
(iii)that the child spend time with the father as follows:-
(i)for one week on January of each year;
(ii)that when the child is in the care of the paternal grandmother, he shall spend such time with the child as may be agreed with the paternal grandmother;
(iii)if the child shall live with the mother and spend no time with the paternal grandmother then the child would spend time with him on each alternate weekend from Friday through to Sunday, Father’s Day and the father’s birthday;
(iv)on such other occasions as the parties may agree.
The effect of the orders sought by the father is that whilst he would seek to retain parental responsibility (as opposed to the mother’s proposal namely, that she have sole parental responsibility), other than the time proposed in January of each year, if the Court ordered that the child spend no time with the paternal grandmother then in that case he would seek each alternate weekend but not otherwise.
It is not a proposal of the father that the child spend any other holiday time with him other than the period as sought in January of each year.
Ms Richards is the father’s mother (“the paternal grandmother”). She opposes the orders sought by the mother and the father save as to the issue of parental responsibility where she shares common ground with the father namely, that the three parties have equal shared care parental responsibility. By her Further Amended Response filed 5 November 2014, she sought orders that had the effect of the child spending equal time with the mother and the paternal grandmother. That proposal was the subject of an application on her behalf to revert to the orders sought in her earlier filed Amended Response of 20 January 2014.
The orders sought are as follows:-
(1)That the paternal grandmother, the mother and the father have equal shared parental responsibility for the child.
(2)That the child spend time with the mother as follows:-
(i)From the conclusion of school on Friday to the commencement of school on Monday of each alternate week;
(ii)In each intervening week from the conclusion of school Tuesday to the commencement of school Wednesday.
(3)That the child live with the paternal grandmother at all other times.
(4)That the child spend time with the father at such times as may be agreed between the father and the paternal grandmother.
(5)That the child spend time with the parties in respect of Christmas, Easter, the child’s birthday, Mother’s Day and Father’s Day as set out in the annexure to the Amended Response.
There was a dispute as to which school the child should be enrolled in given that he was to commence primary school education in 2015. By order of 27 November 2014, I ordered that the mother do all things necessary to cause the enrolment of the child at E School, with the further condition that the completion of the enrolment form should disclose the names of the father and the paternal grandmother both as persons interested in the child but also importantly, emergency contact persons.
It is common ground that the child has commenced at E School and it appears that there is now agreement the child’s enrolment should not be disrupted.
The orders sought by the paternal grandmother made no provision for the arrangements during school holidays.
It was her position that she would consent to the proposal of the father that the child spend one week with him in January of each year but generally her position was that the child should spend one half of each school holiday period with the mother.
It was a complicating feature of the proceedings that other than the seven day period in each January, the father did not press for any orders in respect of the child spending time with him other than in the circumstances where I made orders in terms of the mother’s application which would not see the child spending any time with the paternal grandmother. By necessary implication, the father’s position was entirely subservient to and supportive of the orders sought by his mother. Opportunity was given to the father to reconsider his position, particularly given that the mother was seeking a positive order in favour of the child spending time with the father. For reasons best known to him, he was content to fall in with the position adopted by the paternal grandmother and was confident that he and his mother would be able to work out an appropriate arrangement for the child to spend time with him and his partner Ms F.
For her part, the Independent Children’s Lawyer (ICL) sought the following orders:-
(1)That the child live with the mother.
(2)That the child spend time with the paternal grandmother as follows:-
(i)for one weekend per month from 9.30am Saturday to 5pm Sunday;
(ii)on Father’s Day.
(iii)for one week in the January school holidays
(iv)for time on Christmas Eve and Christmas Day in one year and Christmas Day and Boxing Day in the alternate year;
(v)on the child’s birthday;
(vi)at such other times as may be agreed.
Other than the father being at liberty to have some involvement in the child’s school, parent/teacher interviews and the ability to attend at school sporting activities to which parents are invited, there were no specific orders sought in favour of the father.
The position adopted by the ICL was based upon a view that the mother had demonstrated significant commitment and improvement in her parenting skills and whilst the paternal grandmother had clearly been important in the early years of the child’s life, it was appropriate that the mother be able to parent the child free of any negative influence and interference emanating from the paternal grandmother.
Accordingly, the parenting issues raised by each of the parties are complex and divergent. While seeking to retain sole parental responsibility and primary care of the child, the mother is prepared to recognise that there should be a relationship between the child and the father and seeks orders that in her view would give that effect. The father rejects those orders in favour of supporting the paternal grandmother in her quest to resume the primary care of the child and significantly reduce the time that the child spends with the mother. The father and the paternal grandmother both seek that the parental responsibility be shared equally by the three parties.
There is therefore little concession made by each of the parties in circumstances where the ICL considers the mother proposal that the child spend time with the father to the exclusion of the grandmother as a “romantic notion”.

PROCEEDINGS

The trial commenced on 24 November 2014 and after eight days of evidence final submissions were received on 20 March 2015.
Each of the parties including the ICL prepared comprehensive Case Outline documents. Whilst there were some changes to the orders sought by the paternal grandmother and to a lesser degree the ICL, the Outlines were of assistance and were prescient of the issues raised in the proceedings and the comprehensive final submissions of counsel.
The applicant mother relied upon the following documents:-
(1)Amended Initiation Application filed 15 October 2014
(2)Trial Affidavit of the mother filed 15 October 2014
(3)Trial Affidavit of the mother filed 18 November 2014
(4)Trial Affidavit of Mr G filed 15 October 2014
(5)Trial Affidavit of Ms H annexing reports of Dr I filed 24 November 2014
(6)Affidavit of Ms H annexing statements of Mr J and Ms K (the Families SA workers) filed 18 November 2014
(7)Further Affidavit of mother filed 16 March 2015.
The father relied upon the following documents:-
(1)Amended Response filed 10 November 2014
(2)Trial Affidavit of father filed 10 November 2014
(3)Trial Affidavit of Ms F filed 10 November 2014
The paternal grandmother relied upon the following documents:-
(1)Amended Response filed 20 January 2014
(2)Trial Affidavit of paternal grandmother filed 5 November 2014
(3)Further Trial Affidavit of paternal grandmother filed 15 March 2015.
The ICL relied upon the following documents:-
(1)Family Reports of Mr L 27 February 2014 and 19 November 2014
(2)Child Protection Services reports dated 29 July 2010, 22 February 2012 and 28 October 2014.
The complexity of the proceedings should not be underestimated. The mother commenced the proceedings in September 2013 by the filing of an Application seeking orders that the child live with her and spend time with the father. These proceedings need to be seen against the background of the child being born in 2009 and based upon the concerns that Families SA had in respect of the mother and father he was considered to be “an infant of high risk of abuse and neglect”.
It is the apparent metamorphoses of the parties and the tension between the child’s attachment to the paternal grandmother and the mother’s determination to resume primary care that delineates the focus of the proceedings.
Whilst there were potentially many people that became involved in the lives of the parties, I consider that with the help of their legal representatives substantial effort was made to call evidence that was targeted towards the principle issues requiring determination. It could not be said that any evidence called by the parties was frivolous, irrelevant or unnecessary.
I gave consideration at the commencement of the proceedings to the application of the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular I made reference to the three principles set out in s 69ZN.
Only the father’s counsel sought to be heard on objections to affidavits of the mother. Given the extensive nature of the affidavit material relied upon by each of the parties and notwithstanding a warning to the extent that the parties could expect reliance upon annexures that were not the subject of cross examination, submission or reference, I was not asked to consider objections to any other affidavit material. Counsel understood that I would exercise my discretion to the extent that I would either consider or disregard evidence as presented.
I do not consider that exceptional circumstances were either self-evident or were likely to arise during the course of the proceedings and as such it was not my intention to deviate from the provisions of s 69ZT. Notwithstanding that evidence may be received which in the ordinary course would be otherwise inadmissible, it is a matter of weight that I may give to such evidence. As in all cases, I have regard to Rule 15.13 of the Family Law Rules 2004 (Cth) in terms of my general ability to exclude evidence notwithstanding that the relevant provisions of the Evidence Act 1995 (Cth) have been dispensed with.

BACKGROUND

The paternal grandmother was born in 1967 and is currently 47 years. The father was born in 1990 and is 24 years. The mother was born in 1993 and is 21 years.
The mother is the eldest child of three children. Her family moved to Adelaide from Sydney when she was three years of age. She acknowledges that her father had a drug habit and her mother was an alcoholic. Whilst there had not been any involvement by Families SA in the family, she sets out a harrowing history of family violence, drug and alcohol abuse. The household was entirely dysfunctional and the mother’s parents were neglectful and abusive to the mother and her siblings. As indicated, violence was a constant feature of her upbringing.
The paternal grandmother has three children. The father is the middle child.
The mother and father commenced a relationship in about November 2008. The mother moved in with the father in the home of the paternal grandmother. It is a reasonable assessment of the evidence given but also the concessions made by the paternal grandmother that the circumstances in her home were nothing short of appalling. The mother’s evidence is that the house was “an absolute mess and it had a strong odour of animal urine. There were animal faeces all over the house and the odour of the faeces was very strong”.
It is the uncontested evidence from the Families SA documents that literally tons of rubbish were removed from her home at a cost of many thousands of dollars before the property was considered habitable following a decision that the child should be placed in the care of the paternal grandmother.
In November 2008 the mother was 15 years of age and as at the date of birth of the child was barely 16 years of age.

The mother’s evidence is that whilst in the home of the paternal grandmother she was raped by the father’s brother. She says that the rape was reported to the police but it appears that no action was taken. The father is not convinced by the mother’s allegation but he is not able to resile from the clear evidence that at the time of conception the mother was 15 years of age.
The relationship between the mother and the father was doomed to fail. Shortly after the birth of the child the mother left the father’s home and moved in with her mother.
The records of Families SA allude to the mother having been exposed to ongoing domestic violence in her household, alcohol abuse by her mother and the likelihood that the mother had suffered serious and ongoing sexual assault as an adolescent. There was also concern as to her mental health.
The father did not escape scrutiny. There were concerns not only as to the lack of cleanliness and unhygienic state of his mother’s home but also an allegation of her substance abuse and poor parenting history. The paternal grandmother in evidence admitted that until about 2009 – 2010 her house was in an appalling state and she had a significant and ongoing problem with amphetamine abuse.
The concerns of Families SA had its unfortunate genesis whilst the child was still in hospital following birth. The CPS Report of 29 July 2010 (the first report) reports that the mother was overheard threatening the child as follows:-
You drive me crazy
and
I’ll break your arm if you don’t put it down.
There is not disagreement that the mother was clearly unable to cope. There was genuine risk that she would present a physical risk to the child. There was no circumstance where she was able to care for the child.
In December 2009 a decision was made that the paternal grandmother would assume the primary care role of the child and that neither the father nor the mother would be left unsupervised with him.
Because of the appalling history of the parties, Families SA were hyper-vigilant to the child’s predicament. In February 2010 there were some concerns that arose out of a bruise that the child had sustained on the sole of his foot.
A reasonable summary of the position adopted by the parties in respect of the concerns of Families SA is found in the first report at page 13 [33]:-
Although it was identified that [Ms Ingles] and [Mr Richards] were able to acknowledge the concerns raised and the impact on [the child] it was noted that they continued to minimise the concerns and appeared to dismiss the severity, in particular in relation to the unhygienic state of the home. However, [Ms Ingles] and [Mr Richards] clearly identified their concerns in relation to [Ms Edgar] of the child and the impact her behaviour had on him. [Ms Edgar] response in relation to the concerns clearly highlighted her limited capacity to acknowledge the concerns, in particular the concerns relating to her parenting capacity and personal functioning. This created particular concerns for CPS as it highlighted [Ms Edgar] limited potential for change as she could not acknowledge that she needed to address any issue in order to ensure the child’s safety.
Not surprisingly the parties were under close scrutiny by the Department.
The father was observed to engage positively with the child and appear well connected. That does not mean that there were no concerns in respect of the father. It was freely acknowledged by him that it was unlikely he would be able to maintain an appropriate level of parenting over an extended period of time without the ongoing assistance of his mother.
The paternal grandmother was observed to have a positive connection and relationship with the child. As counsel for the paternal grandmother sought to impress upon me, from a date soon after the birth of the child he securely attached to the paternal grandmother.
Clearly, the attachment with the mother was less impressive. The observations of access suggested that the mother was overwhelmed by the child and lacked significant parenting skills. She was observed to preoccupied and not attuned to his emotional and physical cues.
At the early stages following the removal of the child from the mother’s care, consideration was given by Families SA as to the mother’s potential for change. At that stage it was determined that the mother was not able to provide appropriate care.
There is no doubt that a primary attachment developed between the child and the paternal grandmother. The relevant worker observed that she had developed a “positive connection” with the child, although her own unresolved issues in respect of family violence and an appalling personal history were factors that were clearly impacting upon her inability to deal with the unhygienic state of her home and her own struggles with illicit drug use.
It seems that but for the focus on the child there would have been little to stop the parties spiralling out of control rather than focussing on their own rehabilitation.
Following an appropriate investigation process, an order was made in the Youth Court on 8 March 2011 that the child should be placed under a Guardianship Order. The Minister’s decision was that the child should remain residing in the care of the paternal grandmother. The terms and conditions of that order provided for the mother to have supervised access for two hours on two occasions per week.
It appears that the Guardianship Order may have been a catalyst for the mother to reassess her position. During the course of the order she sought counselling and psychological treatment. In June 2011 she commenced a relationship with her current partner Mr G.
A number of courses were undertaken by her and whilst initially it may have been a faltering way forward, it appears that the Department were impressed with her progress and were given confidence to devote significant resources to what ultimately became a reunification process.
The first In Need of Care Order expired on 7 March 2012 and a further order for 12 months was made on 21 March 2012. That order contained an indication of the intention of the Department to actively explore reunification.
An Access Support Worker assisted the mother in her home to improve parenting skills. The mother’s gradual progress coincided with an agreement that she could spend unsupervised time with the child and I am satisfied that it was understood by all involved that the clear intention of the Department was to progress to reunification.
For her part, the paternal grandmother was neither supportive of the planned reunification nor complimentary of the mother. To the extent that there were concessions made during the course of the proceedings that the mother appears to have significantly improved her parenting skills, such concessions were begrudgingly given.
It is the observation of the paternal grandmother that up to about 2011 there was little or no emotional contact or attachment between the child and the mother. She submits that the mother was focussed on her own needs rather than those of the child and that even upon the making of the further Guardianship Order of 21 March 2013 the report in support of the Guardianship Order summarised the following concerns:-
(a) Physical threats made by the mother towards the child;
(b) The mother’s inability to manage her emotions;
(c) Mental health issues epitomised by self-harming type behaviours, suicidal ideation and outbursts of anger;
(d) That the parties (the mother and father) were not able to gain significant insight into their own inability to parent the child.
There were however the first signs of the mother coming to grips with the task that confronted her. In the CPS Report dated 22 February 2012 (second report) at page 6 [3] the following is observed:-
Through observing [Ms Edgar] interaction with the child it was clear to the CPS that the child and [Ms Edgar] had developed a relationship in which the child would refer to his mother for comfort and seek her out in times of distress. It was the view of the CPS that the child’s behaviour throughout the accesses (including seeking out his mother on initially meeting the CPS Clinicians; going to her when becoming tired, imitating her speech and becoming excited and happy in her presence) suggests that he had learnt to rely upon [Ms Edgar] as a care option.
The Department’s observations of the mother’s commitment to the child were encouraging. It gave impetus for the child to spend more time with the mother and in mid-2012 Families SA made a referral of the case to Centacare Reunification Service. The mother then became involved in a formal reunification program from about October 2012 with a recommendation by the Reunification Service of overnight access commencing on 23 January 2013 with the first of such occasion taking place on 13 February 2013.
The child was also spending time with the father on every Friday to Saturday and occasionally on a Sunday.
Upon the expiration of the second Guardianship Order on 20 March 2013, a further order was sought for a period of six months. It was intended that based upon the positive reunification reports reunification may well be effected within a period of six months.
An important signpost is the progress report from Centacare Reunification Service dated 4 July 2013 being Annexure “C” to the mother’s trial affidavit.
That document confirms that the family agree that the child will remain with the paternal grandmother until the reunification with the parents can take place.
The parents agreed to a shared-care arrangement with the mother caring for the child during the week days and the father on the weekends.
As part of the plan Support Service Workers were to be utilised to ensure the reunification of the child but in particular his safety and appropriate care.
Whilst the paternal grandmother was prepared to comply with directions of the Department, she was not in agreement with the planned reunification. She alone declined to sign the Care Plan and it is clear that by this stage she considered that the child’s interests would be significantly better served in her fulltime care than with the mother and/or the father.
At paragraph 74 of her trial affidavit she says:-
I informed Families SA on many occasions that I did not think it was in the child’s best interests that [Ms Edgar] be having such extended time with the child.
By 13 February 2013 the child was spending overnight time with the mother from Wednesday to Thursday of each week.
In July this was extended from Tuesday until Friday with the father having the child from Friday to Sunday whereupon he would be collected by the paternal grandmother.
In or about September of 2013 the mother’s time increased from two nights to four nights.
The paternal grandmother was not complimentary or supportive of the mother’s ability to care for the child leading up to the reunification. She sets out a litany of complaints in respect of the child’s upset, distress and poor physical presentation upon returning to her care. It was alleged by the paternal grandmother that the child made the following disclosures:-
(1)That the mother had caused the child’s nose to bleed.
(2)That the mother had locked the child in the bedroom with the night light off when he had been naughty.
(3)That the child had begged to be released but that the mother refused to do so.
(4)That the child would return to the care of the paternal grandmother with bruises but would not say how those bruises occurred.
(5)That on 30 July 2013 the mother appeared to be under the influence of drugs.
(6)That the child’s behaviour deteriorated to the point where he was refusing to attend childcare.
The mother denies the assertions of the grandmother.
At the expiration of the In Need of Care Order the mother brought proceedings in the Federal Circuit Court and on 8 October 2013 (being the first hearing) consent interim orders were made in the following terms:-
(1)That child would spend time with each of the parties as follows:-
(a) with the mother from 9am Tuesday until 6pm Friday;
(b) with the father from 6pm Friday until 4.30pm Sunday;
(c) with the paternal grandmother from 4.30pm Sunday until 9am Tuesday.
The paternal grandmother filed an urgent application on 18 October 2013 alleging that the child had returned to her care bearing a large bruise on his upper right arm.
On 18 October 2013 the paternal grandmother observed what she considered to be a significant bruise on the child’s right upper arm. Pursuant to the orders of 8 October 2013, the father collected the child from the mother at 6pm Friday and took him to the home of his mother at the conclusion of his time namely, 4.30pm on Sunday. It is when the child came into the grandmother’s care that she and her son discussed the bruise. It was reported by the father to his mother that he had noticed the bruise when the child came into his care and that it had developed and become darker and more pronounced over the weekend.
During close physical examination, the paternal grandmother reported that the child said that “Mummy [Ms Edgar] hit me” and that “she said bad words to me”. The apparent distress of the child and his refusal to sleep away from the paternal grandmother prompted her to further explore the injury with a general practitioner on 14 October 2013. The paternal grandmother alleges that in the presence of the general practitioner the child again alleged that the mother had hit him. Acting on the advice of the doctor, the paternal grandmother took the child to the Suburb P Medical Centre and thereafter his behaviour began to deteriorate. The paternal grandmother said that the child was hysterical and telling her that he did not want to see his mother and that he did not feel safe in her care.
Somewhat surprisingly the child’s condition had not improved by Tuesday morning and at this stage the paternal grandmother informed the mother of the alleged disclosure and then reported the matter to the police. She alleges that at every instance and during every opportunity the child said that the bruise had been caused by his mother hitting him. This evidence was not impressive and I find that if the child was distressed it was at the promotion of the paternal grandmother and father.
The paternal grandmother decided she would not attend the handover and it was her intention not to return the child to the mother’s care.
The paternal grandmother acknowledges that the alleged injury had been the subject of investigation and was found to be without substance, the orders of 8 October 2013 were reinstated on 26 November 2013. It is common ground that the paternal grandmother did not agree with the determination. She remained convinced that the mother had hit the child.
The paternal grandmother explored the alleged injury with considerable energy. She brought an Application in a Case to suspend time with the child and issued subpoenas to the Women’s and Children’s Hospital, SAPOL and Child Protection Services.
The effect of the actions of the paternal grandmother was that the mother did not see the child for a period of six weeks from 11 October 2013 until 26 November 2013 save for some short periods of supervised time.
As part of the orders enabling reinstatement to take place, it was also ordered that there be a Family Assessment undertaken and a report be published. Mr L (the report writer) was instructed to undertake the assessment and did so commencing with an interview of the father on 23 February 2014, with the paternal grandmother on 23 February 2014 and then with the mother at her home on 26 February 2014.
I will refer to the reports of the report writer in more detail, but the recommendations of the report writer did little to reconcile and refocus the parties on the principal issue namely, a proper focus on the needs of the child.
The report writer stated at page 23 [1]:-
The attitudes towards and opinions of [Ms Edgar], [Mr Ingles] and [Ms Richards] have expressed are highly destructive. Ultimately these opinions will impact on the child. He will be forced to choose between the competing sides.
His recommendation was that the child be placed in the immediate fulltime care of the mother and that all visits between the child, the father and the paternal grandmother be suspended for a period of six months with a review thereafter.
Not surprisingly, the mother seized upon the recommendations and filed an application seeking orders in those terms.
On 26 March 2014 Judge Simpson vacated the trial listed for 28 October 2014 and transferred the proceedings to this Court for consideration of inclusion in the Magellan List.
The proceedings were adjourned for interim argument before me and on 8 May 2014 I made the following orders:-
(1)All previous parenting orders be discharged.
(2)Until further order the child spend time with the paternal grandmother from 6pm Friday to 4.30pm Sunday of each week.
(3)That the child live with the mother at all other times.
As a result of that order the child remained in the mother’s care for five nights of each week and in the care of the paternal grandmother for the balance. It is accepted that during the time the child spend with the paternal grandmother, arrangements were made for the father to interact with the child, take the child to his home, but to date the child has not spent time overnight in the home of the father and his current partner.
The mother alleges that during this period she considered that the paternal grandmother was doing all she could to foster further disclosures by the child, to denigrate the mother in the presence of the child and to undermine the mother’s parenting. She further alleges that the paternal grandmother had attended the child’s kindergarten and had attempted to persuade the kindergarten staff that the mother’s parenting of the child had been substantially compromised.
It came to the mother’s attention that the orders of 26 November 2013 had lapsed on 3 March 2014. Thereafter, the mother decided to take advantage of the hiatus and did not facilitate the child spending time with the paternal grandmother and father allegedly because there was an investigation of suspected sexual abuse of the child in his grandmother’s and father’s care.
It appears as if there was some sexualised behaviour observed at the child’s kindergarten. Reports were made by the kindergarten staff and director, but whilst the paternal grandmother may have considered otherwise, there was no suggestion that if the behaviour of the child truly fell into the category of sexualised behaviour, that this was in some way caused by the mother.
The escalating tension between the parties led to a significant breakdown in the communication between them. The mother was worried that the grandmother would berate her for not facilitating time and for her part, the paternal grandmother was concerned that the mother was withholding time in order to punish and cause her distress.
On 24 August 2014 following the child spending time with the paternal grandmother and being returned to the mother, Crisis Care Workers attended at her home and removed the child from her care placing him back again with the paternal grandmother.
The allegation was that the child had engaged in sexualised behaviour with his cousin at the home of Ms Richards when he was found to be attempting to lick his cousin’s bottom. Whilst serious in terms of the child’s behaviour, the paternal grandmother’s anxiety was heightened when the child allegedly attributed the behaviour to his mother.
I am satisfied that there was a thorough investigation undertaken by Child Protection Services and ultimately to the extent that there can be any explanation as to the child’s sexualised behaviour, the finding of the social worker involved was that it was most likely that the child “ had engaged in sexualised behaviour at kindergarten with his friend [M]”.

Importantly and notwithstanding the very significant setbacks to the reunification of the child with his mother, it was the view of the Department that the mother had made very substantial progress and that her parenting role was noteworthy.
It could not be said that the paternal grandmother and to a lesser extent the father, wholeheartedly agreed with that assessment.
The child was reunited with the mother on 29 August 2014. The paternal grandmother is frank when she states she did not agree with the decision of the Department to return the child to the mother’s care, but she complied with all direction and any orders made.
The circumstances of the mother is that she continues to reside with her current partner in community organised rental accommodation. As discussed, agreement that the child will continue at E School and I am satisfied there are no matters in respect of the physical arrangements which are other than entirely appropriate for the child’s care.
For her part, the mother remains in her home and she sets out her circumstances namely, that she is in receipt of a Newstart Centrelink Benefit and has undertaken a number of courses which she hopes will lead to employment.
Despite the faltering start at the commencement of the child’s placement with his grandmother, I am satisfied that there are no issues in respect of her home which would impact adversely on the child.
The father has a long-term relationship with his current partner and subject to the complaint of the mother that the child is either actively encouraged to refer to the father’s partner as “Mum” or when the child does this there is no attempt to persuade him to do otherwise, there would appear to be no issues in the father’s household which would create a compromised environment.
The parties are therefore not in agreement in respect of the following:-
·Parental responsibility;
·The primary care of the child;
·The extent of the time that the child spends with the mother, the father and the paternal grandmother

EVIDENCE OF PARTIES

The Mother

The mother relied upon her trial affidavit of 14 October 2014 and in response to the affidavit of the paternal grandmother filed 15 October 2014 her affidavit of 16 March 2015.
In examination in chief the mother denied the allegations of the paternal grandmother that she had hit the child. She gave evidence that to her observation there was continuing animosity with the father and that he was abusive and threating. She said that his aggression upsets her and even relatively minor issues cause conflict. She said that the father got “cranky” when he learned that the mother intended to enrol the child in after-school care. She said that the father was also threatening to remove the child from her if she fed him tea.
She did not agree that there had developed a better relationship with the paternal grandmother. She conceded however that she did receive photographs from the child’s grandmother but would not accept that this was suggestive of a thaw in their otherwise icy relationship.
The mother was the subject of detailed cross examination. It was put to her that she had difficulty in caring for the child in 2013 and 2014. The mother denied that assertion.
The mother admitted in January 2014 that she saw Dr N for the preparation of a Mental Health Plan. The document is Exhibit 1. Under the heading “Presenting Complaint” the following is set out:-
Stress in relation to four year old son. Son has been in and out of foster care and mother is considering relinquishing care. Feels ambivalent about this. However has been in and out of Court due to allegations of abuse and neglect of son.
The doctor observed that the mother’s mental state upon examination was agitated, displayed rapid speech and was angry. It was put to her that she presented with stress. The mother’s response was frank. She agreed that the circumstances of the child being in and out of care brought her to the brink on occasion and she had considered giving the child up. That was a thought that had passed and was no longer part of her present thinking.
Her evidence was that since January she considered the child needed her and importantly, she wants to maintain her parenting role. She said that she was sick of being bullied but that even though it is a feature of her relationship with the paternal grandmother (and to a lesser extent the father) she considers that she is now a stronger person. Her presentation was simple, the child needed her but less so his father.
In the Mental Health Plan the mother was asked to list factors relevant to her relationship with the child. This was done by reference to a document that I repeat in full:-

Pros

Cons

·    Can be loving and caring

·    Sly

·    Uses manners

·    Liar

·    Picks up after himself

·    Starts fights with [Mr G] and myself or other people

·    Rude

·    Pulls rude face

·    Glares at you

·    Says to grandmother and father I hit him

·    Says that I don’t feed him

·    Doesn’t listen

·    Sits there and laughs at you when you tell him off

·    Troublemaker

·    Spits at you

·    Disrespectful

·    Gets me into trouble with the Law

·    Pulling up with the other side of the family

·    Doesn’t say I love you

It was put to the mother that her reference to letting the child go or giving him up was not an idle thought but rather was anchored in the difficulties that the child presented as made clear by the “pros and cons” document.
The mother however was forthright in her evidence and responded to the assertion that she could not cope with the child by acknowledging there had been challenging behaviours presented but that over the last twelve months they had ameliorated and she felt more capable to deal with the challenges thrown up by him.
She denied that either she or her partner had hit the child and when she spoke to him about this allegation the child allegedly told her that the grandmother had questioned him about saying these sorts of things.
The child’s behaviour has improved and she expressed confidence in her parenting skills.
She did agree that the child had been in the care of the paternal grandmother since he was three weeks old, but at the time she attended upon the general practitioner she had been “copping the abuse and complaints saying that she had been a bad mother for five years”. She did not feel supported by the paternal grandmother, nor indeed the father who was well and truly in his mother’s thrall. The mother was quick to respond to any criticism of her conduct by referring to the adverse history of conduct of the paternal grandmother.
Issues of protection were raised in terms of the amount of time that the maternal grandmother spends with the child. Notwithstanding the adverse conduct of the maternal grandmother in terms of her abuse of her excess use of alcohol, I am prepared to accept that she has little to do with the child and provides almost no assistance to the mother. The mother’s response provides some confidence that she is well aware of the difficulty that the maternal grandmother might present to the child and is entirely protective of him.
The mother concedes that the child clearly loves his grandmother but she is concerned that when he comes back from time spent with her he is withdrawn, distressed and will break down and cry. She gave evidence that sometimes the child will say that his grandmother is trying to take him away from the mother. He is hostile and aggressive following his return to the mother’s care but the mother hopes that this behaviour will settle once the proceedings have resolved.
The mother impressed as having some insight into her own presentation and I accept her evidence that if she considers she needs help either personally or in respect to parenting of the child then she has the knowledge and inclination to seek it.
In stark contrast to the mother’s view of the grandmother is her assertion that she trusts the father and that she considers him to be a good parent. She says that they communicate well and when he is away from the influence of his mother they have a good working relationship.
It is therefore an inherent inconsistency to present the father as a person with whom she can have a working and civil relationship but still considers that handover of the child should occur at a Police Station even if the father were to attend alone. It was put to the mother that the Court could gain little confidence in her assertion of the father and she having a good relationship when in October 2014 she filed an Amended Application seeking orders that the father and paternal grandmother not contact her in any way. It does not appear that there has been any dramatic change in the interaction between the parties since that date which would in and of itself justify the mother’s more benign consideration of him.
I was not able to place much confidence in the mother’s assertion that she could work the cooperatively with the father. That is not to suggest that ultimately I would find the father to be a person in whose care the child would be at risk, but there may be some force in the final submissions of counsel for the ICL namely, that the mother’s generous view of the father is perhaps ill-considered.
When questioned why she saw the need to seek the assistance of a psychologist, her response was that she was distressed at the allegations and the ongoing pressure presented by the litigation. It is without challenge that the mother has been engaged in child related proceedings from a time shortly after the birth of the child up to the present. When she says that her current circumstances place her under great stress and that she is anxious, it is not surprising. What might be unexpected is the determined manner in which she appears to have coped with the stressors experienced by her over the last five years.
The mother accepted that in March 2013 the child had a good attachment with the paternal grandmother and his father. Moreover, she conceded that she did need assistance in her parenting and that the various protection orders were necessary. I accept the mother in this respect. The mother was pressed as to why in March 2014 she did not raise with the report writer that as recently as 26 February 2014 (but also in the referral from her general practitioner of 31 January 2014) she was giving active consideration to relinquishing the child.
Her response was convincing. She started living with her current partner in 2013 and this relationship has provided significant stability and support for her. Moreover, the substantial involvement in terms of the support systems put in place by the Department both initially but also as part of the reunification plan gave her a safety net and confidence that if there were difficulties she could seek help. It is also a factor that as time has passed the mother has matured and far from being a poorly presented mother at 16 years of age she is now a responsible young adult.
The mother impressed on the topic of parental responsibility. She says that the communication between the parties is simply not good enough for there to be an effective exchange of information. She is mistrustful of the paternal grandmother and not confident that the father is able to act independently of his mother.
She is alive to the history of the significant notifications alleging that she was not looking after the child appropriately and indeed that the child has been the subject of physical abuse by her.
The mother was also questioned as to why when she needed to travel urgently to Sydney there was nobody else but the paternal grandmother to care for the child. The mother frankly conceded that at the time it was the best arrangement that could be made. In doing so it was not meant to reflect that her partner was unwilling or unable to care for the child but rather, that she thought given the circumstances of litigation that there could be criticism of her actions if other people were involved in the child’s extended care.
The mother is clearly timid and anxious. She is overwhelmed by the paternal grandmother and whilst she does not deny that the child has a good relationship with her and the father, nonetheless her level of mistrust is such that she considers the paternal grandmother to be ever-vigilant to what might be considered the slightest transgression in the mother’s parenting of the child.
It is difficult to see what is likely to occur that could reconcile the parties.
Under cross examination by counsel for the father the mother considers that whilst she does not trust the father and paternal grandmother taken as a unit, she and the father are at least able to tolerate each other for the sake of the child and being respectful of the grandmother’s involvement in the child’s life over an extended period, the relationship that has developed could be fostered by the child spending time with the paternal grandmother when in the father’s care pursuant to the orders that the mother seeks.
The mother was cross examined by counsel for the ICL. She confirmed that the child was finishing his kindergarten at O Kindergarten (in late 2014) and would be attending Primary School in the 2015 academic year. She says that she has developed good insight in respect of the demeanour and attitude of the child. She places great weight on consistency of rules within the home and does not now tolerate bad language or aggressive behaviour.
Other than the communication at handover there is little or no other effective communication between the mother and the paternal grandmother. Whatever involvement the father may have is at the low end of the scale. It is a feature of the father’s case that he deliberately seeks to remain in the background but is prepared to provide close support for his mother.
The affidavit of the paternal grandmother filed 16 March 2015 was intended to provide an insight into the events since the last day of hearing in November 2014. It asserts that the mother had invited the father to attend at the child’s first day of school together with the paternal grandmother. It is her observation that all three parties interacted well and that the mother agreed that they could all attend at the “acquaintance night” on 24 February 2015. The mother provided the necessary information and there were three text messages directed to the paternal grandmother.
The evidence of the paternal grandmother is that the parties appeared to have significantly reconciled their differences and that they are now able to communicate openly and with a focus on the needs of the child.
The affidavit raises issues of the child’s behaviour since December 2014. I am uncertain as to the wisdom of the affidavit being filed. It alleges that when the child returns to her care he misbehaves, swears and is angry. It is further alleged that he has called the paternal grandmother “you fucking dog”.
Unhelpfully, the paternal grandmother records that on 11 January 2015 the child said “I hate Mummy [Ms Edgar], I don’t want to go back to her please don’t take me”. The assertion is that the grandmother persuaded the child to attend his mother’s home by saying that he would have fun.
There is also reference to the child’s challenging behaviour at school.
Whilst it may be simply a matter of the paternal grandmother wishing to provide a better picture of the current arrangements and the child’s presentation, I very much consider that the real import of the affidavit is to highlight the child’s poor behaviour, and set the scene for a submission that the child’s conduct can be explained by a desire to spend more time in the care of the paternal grandmother.
It would not have been surprising to the paternal grandmother that the mother may well have a different version of events. Indeed in her response the mother repeats her position that she does not want to have contact with the grandmother and that her position has not changed. She notes that the grandmother has been unusually pleasant and communicative but considers that this is a ruse. The mother continues to distrust the grandmother.
The mother denies giving the paternal grandmother her telephone number for the clear reason that she did not want to engage in conversation with her. The mother assumes that her telephone number was provided by the father.
She denies that the child swears at home and has never heard him use the expression “fucking dog”. Contrary to the assertions of the paternal grandmother, it is the mother’s evidence that the child often says he doesn’t want to transition to the grandmother’s home.
She repeats her preference for arrangements being made directly with the father so that she can develop a better relationship with him for the child’s sake in circumstances where she does not think that is possible with the paternal grandmother.
Irrespective of whether it is justified, paragraph 21 would appear to sum up her feelings:-
The fact that the grandmother has manipulated my desire to be civil and reasonable and sought to turn it to her own advantage by filing this affidavit merely confirms my deep and abiding mistrust of her motives and intentions.
The allegations raised in the affidavit of the paternal grandmother and the response of the mother do not assist in the determination that I am required to make.

Mr J

This witness is a manager of Families SA.
In the period between 2010 and May 2012 he was a supervisor and had the overall supervision of the proceedings in respect of the child. His duties were supervisory and he was responsible for case work decisions generally, but on the subject child in particular. In summary, he would advise the Minister as to what application should be sought by way of any Protection or In Need of Care Order and then would monitor the progress by the reception of ongoing reports from the case worker and the senior social worker.
He gave extensive evidence as to the detailed input into the care arrangements for the care of the child and in particular the reunification between the child and the mother and the upskilling of her parenting ability. His evidence was that at the commencement of the Guardianship Order the mother had no idea how to look after the child or even to connect with him. Whilst change was not immediate, the progress was slow but steady. The involvement of the Department was extensive and before reunification was a consideration, the mother’s progress was monitored to see whether she was an appropriate candidate or indeed, whether some form of shared care could be an option.
He was involved in the supervision of the matter until May 2012. It was his authorisation that caused the home of the paternal grandmother to be cleaned up.
Whilst possibly of historical interest only, this witness was able to confirm that the relationship between the mother and the paternal grandmother was highly acrimonious. He did concede however that at all times the paternal grandmother complied with all directions notwithstanding that she made it clear that she was not supportive of the child spending increasingly more time in the care of the mother.
There was some uncertainty raised at this stage as to the trust of the paternal grandmother’s case. Counsel for the mother was uncertain whether it was being alleged that notwithstanding the reunification, the Department had made a mistake in doing so and that in some way the mother was not able to properly care for the child. It may be that the transition of the child to the mother’s care was premature, or that the mother posed a risk to the child and continues to do so.
In order to explore that position, I record the following exchange on 26 November 2014:-
His HonourMr Bowler, if you are saying the Department made a mistake re reunification and that the mother is not a fit and proper person to be the recipient of the decision that the Department made in 2013 you had better let me know.
Mr Bowler     That is not our case at all…
Ms DibdenIf Mr Bowler concedes that it is no part of his case that Families SA made a mistake
His HonourHe just did. I made a note of it. There is a concession that Families SA were not in error in September 2013 in respect of the reunification of the child with his mother. It is now on the record – at the time of the order the reunification was justified. Does that assist or not.
His Honour    Mr Bowler, I am not trying to force a confession
Mr BowlerI don’t know how this relates to what happened in 2012 – my client says in 2012 that the child needs care and protection…
His HonourYou are not challenging the Department was entitled to make the decision. If I find they had good reason for doing it that is it.
Mr Bowler     I cross examined the mother about those concerns.
His Honour    This witness was not there in 2013.
Mr BowlerWe have wasted and hour and a half where there is no shred of evidence that would assist the Court…

Ms K

This witness is also an employee of Families SA and has the duties of a supervisor. She was involved in the proceedings relating to the child and had the direct supervision of the Case Worker from late February 2013 until the expiration of the final Guardianship Order in September 2013.
The evidence of this witness is that she had the overall decision making responsibility and that all the information presented to her from the reports of the Case Worker and other information indicated that reunification was both appropriate and was progressing. She had interaction with the mother on two occasions, met with the father once and with the paternal grandmother also on two occasions. This witness gave evidence that she was satisfied from her dealings with the mother that she had demonstrated a commitment to the child and a willingness to work with Families SA, non-government services and the local children’s centre. Not dissimilar to the observations of Mr J, it was her observation that the relationship between the parties was highly acrimonious.
The witness gave evidence that the mother achieved all of the goals required in respect of the reunification program and that it was at first instance proposed that the child would be reunified with the mother in her capacity as primary carer but also with the father.
The witness was aware of the concerns of the paternal grandmother about the process being adopted and it is demonstrable from both her evidence and the reluctance of the paternal grandmother to sign the Family Care Meeting document that she was not in favour of the reunification process. That must be distinguished from a clear finding that whatever misgivings she had, she complied appropriately with the Department’s directions. Somewhat depressingly, the observation of this witness was that the paternal family were not likely to work the cooperatively with the mother for the benefit of the child.
I accept the evidence given by this witness and find her to be impressive. I have no doubt that this witness would not have allowed the final stages of reunification to progress if she considered that it was in any way inappropriate or unsafe for the mother to take on the role of primary carer for the child. That decision was for this witness to make but the evidence supported the position she adopted. I accept her evidence that at the time she considered her decision the correct one and that she has no misgivings in that regard.
I have had reference in a general sense to the Families SA documents forming Exhibit 3 and note that as at 28 August 2013 the following summary accurately sets out the position:-
Families SA believe that the child is safe whilst in his mother’s care. Families SA has progressed towards full reunification of the child with his parents (mother to care for the child during the weekdays and the father will care for the child on the weekends).
Approximately a few weeks after the Family Care Meeting on 13.2.13 the paternal grandmother contacted Families SA and reported that they are no longer happy with the agreement reached at the meeting. The father and the paternal grandmother then reported that they will be attending the Family Court once the Youth Court Order has expired for full custody of the child. Families SA believe that the mother, father and paternal grandmother have spoken and consulted with their lawyers in this regard.
Families SA do not have any concern in regards to the mother providing adequate emotional and physical care for the child. The Department believes that there are no child protection concerns in relation to the child’s ongoing care.
It was the intention of the Department that the file would be closed at the expiration of the Guardianship Order namely 14 September 2013.

Mr G

This witness is the partner of the mother and as at the date of his evidence they had been in a relationship for about two years.
He had not yet obtained employment and whilst it seems that he also has had a troubled history, I am satisfied that he is entirely supportive of the mother and in particular her care of the child. He gave evidence that he assists in the child’s bathing, feeding and other care related activities.
He has a good relationship with the child and he considers that he is a friend to the child as opposed to a step-parent. Whilst he is an affectionate person, it is clear that he does not seek to engage in significant acts of physical affection with the child. His observation is however that the mother does has a warm physical relationship with the child.
There is some contest between the parties as to the events on 19 April 2014 and whether the paternal grandmother behaved inappropriately. The mother suggests that she created a disturbance on that day when she attended at her home. It is interesting that this witness was prepared to speak against the observations of the mother and it is his position that the paternal grandmother behaved appropriately when she attended. It may have been the case that the mother would not have wished the father and the paternal grandmother to attend, but given they did they did not create a disturbance.
The preparedness of this witness to give evidence contrary of the mother instils the Court with confidence in his veracity.
I found the evidence of this witness to be impressive and I consider that his observations should be given weight. The mother did discuss with him earlier in the year whether she should relinquish care of the child and it was his evidence that she should not do so and that he would be supportive of her. I accept what he says on this point but more importantly, I accept that he is both supportive of the mother but respectful and not wishing to overly intrude upon the relationship that the child has with the mother, the father or the paternal grandmother.
The continued relationship with this witness and his involvement with the child is impressive.

Mother’s Psychologist – Dr I

The mother was referred by her general practitioner under a Mental Health Plan to a clinical psychologist for psychological therapy in respect of her “low self-esteem and anxiety, low mood, depression and dysfunctional family unit”.
The psychologist saw the mother on a total of 29 occasions between August 2011 and April 2013. His evidence was principally contained in various reports annexed to the affidavit of the mother’s solicitor filed 16 October 2014.
It appears that as an integral part of the considerations of Families SA in their dealings with the mother and the child, they requested and received ongoing reports from this witness. It is a reasonable assessment of the mother’s therapeutic progress (or lack thereof) that in his report of 29 August 2014 the witness formed the view that:-
I have not seen evidence yet that this work has had an impact on the mother’s behaviour, and her poor level of literacy makes this less likely than would apply to a more literate person. Nevertheless, I hope that a collaboration on this may prove worthwhile in that it has chartered a direction which she can move towards, in terms of learning a more patient, less reactive interpersonal style, even if she has at this stage made little change in that direction.
The witness was concerned that she may be suffering from post-traumatic stress disorder and displayed symptoms of disinhibition, irritability, rapid speech and flight of ideas.
Under cross examination the witness could not discern any significant changes in the mother’s clinical presentation but he was hopeful and saw signs that the mother was opening up to the process and embracing the therapy.
In his second report of 12 February 2013 he commented that the mother had:-
Shown a degree of composure and openness in those appointments, which far exceeds what I saw last year. Probably contributing factors to this composure include:-
·Stronger rapport with me given the passage of time and our negotiating through a rupture in our therapeutic relationship;
·More determination to appear mature given her knowledge that you are recommending that she not gain custody of her child; and
·Actual maturing with the passage of time.
The witness was then tasked by Families SA to observe interaction between the mother and the child. This took place on 21 March 2013.
Following the observation the witness observed that whilst the mother’s anxiety levels were quite noticeable at times when this witness moved away from her nonetheless, the mother was of calm demeanour and there had been a noticeable improvement since his observations of the mother’s presentation in September and October 2013. The mother appeared to be in a friendly state of mind and was much less aggressive. The witness formed the view that there was very good development and a growth in the mother’s confidence. Importantly, it was his observation that the child seemed to be relaxed and happy and the mother dealt with him in a calm and effective fashion.
At the conclusion of his observations and as set out in his report of 25 March 2013, his overall assessment was that the mother was capable of attending well to the child in stressful situations. He could say no further than that and pointed out that he did not profess to have significant experience with children and did not claim a high level of expertise in respect of parenting matters.
Whilst I do not consider that the evidence of this witness was of great assistance, it did at the very least lend support to the contention that the mother’s presentation in 2015 is that of a vastly more confident and competent parent than when she sought therapeutic assistance in 2011. There was certainly noting arising from the evidence of this witness to suggest that the mother is not able to provide adequately and appropriately for the child when in her care.

The Father

The father’s evidence relied upon in his affidavit filed 10 November 2014. Under cross examination he was also taken to his affidavit filed 22 November 2013, in particular in relation to the father’s general attitude towards the mother and his assertions as to whether the mother was the likely perpetrator of bruising to the child in October 2013.
The father acknowledged that he did not seek specific time with the child other than a set period of seven days in January of each year,
It appears that the father and his mother have come to an easy arrangement whereby he spends time with the child at his mother’s home on Friday night and then when he returns from work on Saturday lunch time until about 4.30pm when he is dropped back at his mother’s home. On Sunday the father and his partner spend about three hours with the child. The father says that he has a “wonderful relationship” with the child, but he acknowledges that the present arrangements are difficult given that the child is spending time with three parties.
The father was cross examined as to the state of his mother’s home at the time of involvement by Families SA to de-hoard her property. The father acknowledged that the home was messy from time to time and that she had animals in the home but considers that the mother had exaggerated the situation. The father was not prepared to concede the unhygienic state of the property as evidenced by the effort undertaken by Families SA.
I have found that the paternal grandmother’s home was in an appalling state. However since it was remedied there have been no further or ongoing complaint. The issue therefore is not about the state of the grandmother’s home but rather, whether the father is capable of separate presentation not influenced by his mother.
Under cross examination the father gave evidence that in March 2014 he was not able to look after the child because he had not had the advantage of input and assistance from Families SA. His evidence was difficult to understand and it seemed that his principal complaint was that there had been a preference in the efforts undertaken by the Department to reunify the child with the mother but a similar level of involvement was not offered to him. It was put to the father that the original plans were for shared care and the difference was that the mother had undertaken the process whereas the father appeared to default to his mother’s position. The father’s answer was equivocal.
The father was questioned as to the allegation that the mother had assaulted the child in October 2013 and caused bruising.
In his affidavit of 22 November 2013 he agreed that when he collected the child he noticed bruising on his right upper arm. The father said he asked the child how he sustained the bruise and the child did not answer but rather was “noticeably uncomfortable”. When he delivered the child to the home of his mother both she and he examined the bruise which had now deepened in colour. the child again became defensive and it is his evidence that he received a phone call from his mother later that evening advising him that the child how now disclosed that his mother had hit him. The following day he and his mother took the child to the hospital and in particular the Child Protection Unit. Consistent with the evidence given by the paternal grandmother, the father records that the child blamed the mother for the bruise.
The father does not accept that the mother is anything other than responsible for the bruising. At paragraph 12 of his affidavit he states:-
At no stage did the mother say to me that the child had fallen over earlier that day. On past occasions the mother had told me that the child had bumped himself or fallen over and pointed out various bruising. She did not point out there was any bruising on the child on this occasion. My experience of the mother is that she does not always tell the truth. I do not accept that she is telling the truth about the child’s bruising on this occasion.
At paragraph 19 the matter is further considered:-
I believe [the child] when has said the mother hit him to cause the bruise. I do not trust the mother and do not accept her denials. I firmly believe that the mother lost control and hit him. I am concerned for his safety if left alone in the mother’s care.
It is a fair summary of that affidavit that the father was deeply mistrustful of the mother and challenged the mother’s ability to care for the child. The father’s mistrust also extends to the mother’s partner. There was a suggestion at that stage that if supervision was required then the mother’s partner might undertake that role. The father’s position was that he suspected the partner was present on the occasion when the mother allegedly hit the child.
It is against the backdrop of that position that the cross examination of the father explored whether he still holds the same trenchant and negative view of the mother.
The father still believes that the mother is capable of hurting the child but was not able to give any objective evidence underpinning such a view. The father continues to mistrust the mother and even the most cursory challenge to the father reveals a deep dislike for her and an almost complete inability to adopt a position that is inconsistent with the approach adopted by his mother.
The father was not able to make any concession in respect of the mother. Paragraph 21 of his trial affidavit was put to him and he reconfirmed the position that at the time he did not consider the mother was keen to have the child returned to her care and that this was not uncommon. In summary, he suggested strongly that the mother was lukewarm in her efforts to spend time with the child. When cross examined as to the circumstances of the mother leaving early on one occasion and indeed observations of the child’s willingness and delight in spending time with his mother, he was not able to provide any effective response.
The father reaffirmed his position that he did not accept the orders that the mother was seeking was in the best interests of the child and at that stage against the background of the paternal grandmother’s proposal that there be a shared care arrangement, it was still the father’s position that the child’s best interests would be served by remaining in the primary care of the mother and not the orders that the paternal grandmother then sought.
Notwithstanding the provisions of paragraph 44 of his trial affidavit, under cross examination the father made it clear that he only sought orders that would have the child spending each alternate weekend in his care if the Court ordered that the child was to spend no time in the care of the paternal grandmother.
The father was disbelieving of the mother’s denials in respect of the allegation that she hit the child in October 2013 and I formed the view that even though it was not open for the father to have any misgivings that the child had been the subject of sexual abuse in the mother’s home in August 2014, the father had difficulty in agreeing that the mother’s home was a safe and proper environment. On 25 August 2014 being the day after the child had been placed in the care of the grandmother he contacted the Child Support Agency. I considered that the father’s evidence was unsatisfactory and that he was disingenuous in respect of any concession reluctantly extracted from him that the mother was able to adequately parent the child.
The father accepts that all of the allegations have been the subject of detailed investigation and have not been substantiated, nonetheless he does not accept the outcome and still believes that the mother is capable of appalling conduct towards the child such as placing pepper in his mouth and locking him in a room as a form of discipline.
Importantly, the father acknowledged that he would not ring the mother to discuss these issues because he considered that rather than admit their accuracy she would make denials.
The father therefore will not ring the mother because he says she will lie and he did not consider that sending her a text message was an effective method of communication because that would provide her with an opportunity to concoct a story.
Counsel for the paternal grandmother sought to restore some balance to the demonstrably poor presentation of the father and evidence was given that notwithstanding his misgivings, the father had entered into a text based communication with the mother.
The father was cross examined as to a practice that had developed whereby his partner was being referred to as Mum or Mummy by the child and the mother was being referred to as “Mummy [Ms Edgar]”. The father’s explanation is that this practice developed early on in the child’s life and whilst in the beginning they attempted to persuade the child not to refer to the father’s partner as “Mum” or “Mummy” it was to no avail.
I find that the father took no effective steps to reinforce with the child that he should not refer to the father’s partner as “Mummy”. It was a practice that was likely to have been promoted by the father, his partner and the paternal grandmother.
I consider the efforts of the father to have been paltry and it is a further indication of the father’s low regard for the mother.
The presentation of the father during his evidence was unfortunate in that his case was clearly directed towards the support of his mother rather than promoting his obvious care and affection for the child.
Other than his inability to support the mother’s relationship with the child, I find that he is able to provide a safe environment for the child and that his relationship with his partner presents no physical risk to the child.
The father is determined that he would default to the orders sought by his mother and does not seek orders independent of the case that she presents.

Ms F

Whilst this witness was clearly supportive of the position adopted by the father and therefore by his mother, I considered that she posed no risk to the child.
I was however not convinced at the efforts made by this witness to cease the practice of the child calling her “Mummy”. Eventually she conceded that more could have been done to stop the practice developing.

As indicated, I have been assisted by the careful observations of the report writer but am not assisted by his recommendations. I give them no weight.

THE COMPETING PROPOSALS

I am mindful of the requirement that each of the separate proposals of the parties should be identified and then be the subject of separate evaluation. See AMS v AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J and at 226 [196] per Kirby J.
I have set out the orders that each of the parties seek.
The mother seeks that she have the sole parental responsibility for the child and his primary care. The orders promoted by her do not see the child spending time with the paternal grandmother by way of direct order, but she concedes that in promoting an order that the child spend each alternate weekend with the father it is more likely than not that his mother will be involved.
The mother would also concede an order that the child spend time with his father for one half of school holidays.
For his part, the father does not seek an order in his favour other than for a period of seven days in each January and in the event that I am not disposed to make orders that the child spend any time with the paternal grandmother then he would seek the child spend time with him each alternate weekend but not otherwise.
The proposal of the paternal grandmother is that she have the primary care of the child, that he spends regular time in the care of the mother and would concede school holiday time be shared.
The paternal grandmother seeks that parental responsibility be shared between the three parties. That position is mirrored by the father. In submissions of counsel for the paternal grandmother there was a concession having heard his evidence that there was perhaps no solid basis for parental responsibility to be shared three ways but rather, as between the mother and the paternal grandmother.
The contest has therefore really been between the mother and the paternal grandmother. Despite opportunity to do so both before the trial and during the proceedings, the father confirmed in his position namely, that he did not seek an order in his own right but rather strongly supported his mother’s position in the belief that the child he would spend with the child as agreed with his mother was his preferred position.

ISSUES AND CONSIDERATIONS

The parties do not agree on the manner in which parental responsibility should apply.
Demonstrably, the paternal grandmother is not a “parent” for the purposes of the application the provisions in Part VII of the Act.
There is a distinction between a parent and a non-parent. It first appears in ss 60B (1) and (2) which set out the objects of the legislation.
More particularly there is specific reference to parents in s 60B (1) (a), (c) and (d).
Similarly there is specific reference to parents in s 60B (2) (a), (c) and (d).
Section 60CA makes no distinction in respect of the consideration of the best interests of the child being paramount irrespective of biology.
In particular s 65DAA has no application where an order is made for a parent to share parental responsibility with a non-parent. See Donnell v Dovey (2010) 42 Fam LR 559 [81] – [86]. The application of the provisions of s 60CC also must be considered in view of the distinctions that are made as between a parent and a non-parent. In Donnell v Dovey (supra) the following appears at [101]:-
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents” and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
The Full Court considered that the legislation included a “catch all” provision being s 60CC (3) (m).
The considerations given to s 60CC and the application of the relevant considerations dependent upon a parent or non-parent have resonance in this matter.
It is precisely the emphasis of counsel for the paternal grandmother that her attachment with the child arising from the history of primary care is the central plank of her case.
Section 60CC is therefore to be utilised with caution in order to determine what is in the best interests of the child and what orders should be made taking into account the primary and additional considerations.
The parties do not concede that there should be equal shared parental responsibility. The mother seeks sole parental responsibility. The father seeks that there be equal shared parental responsibility and the position of the paternal grandmother appears to have changed where she concedes that in the current circumstances it is unlikely that the parties could effectively work together. She does not support shared parental responsibility with the father.
The mother’s proposal for sole parental responsibility is based upon her concern that the paternal grandmother (and the father) are unlikely to support her relationship with the child whether that be as a result of primary care or even upon the orders that the paternal grandmother seeks. There is no history that they have supported the mother and the evidence given in Court by them was unimpressive on this important subject.
I am mindful not to fall into error by considering that the child should live with the mother as a foregone conclusion. The issue of parental responsibility stands separate to what orders may ultimately be made as to the arrangements for the child to live with and/or spend time with each of the parties. The father is unlikely to be involved in either major issues or issues affecting the day to day arrangements for the child. He remains mistrustful of the mother and whilst she views him through rose coloured glasses, following his evidence I am left in no doubt that he does not currently support the mother spending time with the child. It was the mother’s forlorn hope that the father would act differently away from the influence of his mother but that is clearly not the father’s position.
For her part, notwithstanding her late evidence suggestive of a thaw in the relationship between she and the mother, I do not consider that to be a true reflection of her position. She has little or no regard for the mother and is hyper-vigilant to any aspect of the child’s presentation which could be considered indicative that his care is lacking when with the mother.
Like her son, she remains mistrustful of the mother and is clearly of the view that notwithstanding the investigation of previous allegations to a satisfactory degree, her view is that the mother remains as a risk to the child.
Any concession that the paternal grandmother makes to the mother is a matter of strategy rather than genuine belief that the mother is capable of an appropriate level of care.
The paternal grandmother is not able to reconcile that the child has moved from her fulltime care to now that of the mother.
Communication between the parties is poor and I am not satisfied that it is likely to be re-established with any regularity or civility that would see the child’s interests being considered.
Shared parental responsibility is not supported by the ICL and there is now a fracture in the previous adopted joint position of the father and his mother.
The child clearly has certain developmental issues as observed by the report writer and stability is a very substantial consideration in this case. Even the father at his most sanguine best accepts that the child spending his time between the three parties raises serious adverse issues.
This child requires certainty and stability. That will be best served by an order placing the parental responsibility for the child with the mother.
The issue therefore is to consider which of the proposals as presented by the parties are in the child’s best interests.
As is always the case, the manner in which the Court determines what is in the child’s best interests is to focus on the applicant considerations both primary and additional pursuant to s 60CC of the Act.

Section 60CC (2) (a)

Whilst this section does not apply in that an order is being sought by a non-parent, nonetheless the importance of a meaningful relationship with those persons who have had long involvement with the child’s care is a necessary consideration under s 60CC (3) (d), (f) and (m).
It is the primary consideration that there is an overarching need to protect the child from physical or psychological harm, abuse, neglect or family violence.
Notwithstanding the allegations made in respect of the mother’s ability to care for the child from 2009 to 2013 when reunification was completed, I do not propose to bring to account the barren allegations of the paternal grandmother and father that the mother struck the child in October 2013 causing bruising or that the mother engaged in sexual abuse of the child in 2014 by licking his bottom.
There are no Child Protection Orders in place and I have found that the living arrangements that are likely to be provided to the child both in the mother’s care but also in the care of the paternal grandmother and father are satisfactory. There remains an issue of course as to whether the child may be at risk of psychological harm in the sense that I have found the paternal grandmother and father are unable to support the child’s relationship with the mother. Importantly, the position of the ICL has been consistent throughout namely, that he considers the ongoing mistrust of the mother’s ability to care for the child and the real potential for them to continue to undermine her relationship underpins the orders that he seeks namely, that the time the child spends with the paternal grandmother be limited to one weekend period per month.

Section 60CC (3) (a)

I do not consider that there are any views expressed by the child which should be given any weight. The report writer found that the child was difficult to understand and that his statements were inconsistent and at times incoherent. Notwithstanding that the paternal grandmother and father would wish to place substantial emphasis on the apparently random statements of the child, it is an indication that they are prepared to seize on any utterance which might support their negative view of the mother and her parenting capacity.
Whilst I was generally critical of the recommendations of the report writer I have confidence in his observations of the child’s maturity or lack thereof and that little weight should be placed on any view expressed by the child.

Section 60CC (3) (b)

The child clearly has a relationship with the mother, the father and the paternal grandmother. It is central to her case that the paternal grandmother would seek to emphasise that the primary emotional attachment must have been with her given that she had the primary care of the child for the first three and a half years of his life. That is a contention which must be accepted.
What has occurred however is that the rehabilitation of the mother has caused that primary attachment to transfer. That does not extinguish the relationship between the child and the paternal grandmother and the father but it is simply a recognition that as a consequence of the reunification plan of Families SA their focus on re-establishing a primary attachment between the mother and the child has been demonstrably successful. The evidence of the report writer did not focus on the question of attachment but I consider that there is sufficient evidence both in his observations of the relationship between the child and each of the parties but also in terms of the strong evidence of the departmental workers that I can find the child is certainly strongly attached to the mother, remains attached to the paternal grandmother and is likely to have a developing attachment with the father subject to the extent that he chooses to maintain the relationship.

Section 60CC (3) (d)

This subsection does however focus on the effect of a change in the child’s circumstances depending upon the order that is to be made.
To a very large degree the significant change has already occurred in the transition from the primary care of the paternal grandmother to the primary care of the mother. That is not to suggest that the paternal grandmother does not currently enjoy substantial time with the child each weekend but I am satisfied that a reduction in the time that the child spends with the paternal grandmother already has had the foundation property laid.
Notwithstanding the discussion in respect of the level of attachment as between the child and each of the parties, I find on the evidence that the child is well settled in the primary care of the mother. That is not to suggest that the child is unsettled when he spends time with his grandmother and father but it is a relevant factor that the child currently enjoys a significant level of stability arising from a well settled arrangement.
I do not overstate this aspect but the extent of the child’s stability is in this case one of the relevant considerations which underpins the proposals of each of the parties. The paternal grandmother may well rail against the placement of the child with the mother in 2013 but in the absence of any finding that the current care arrangements pose a risk to the child and are not in his best interests, it is a factor under this subsection.

Section 60CC (3) (f)

This subsection requires the Court to consider the capacity of the parties to provide for the needs of the child. I have formed a favourable view of each of the parties in relation to this consideration. Clearly the paternal grandmother has had the confidence of Families SA for the first three and a half years of the child’s life that she was able to properly provide for his emotional, intellectual and physical needs. That was not always the case with the mother. There was however a process undertaken which culminated with her reunification with the child. It is a proper concession on the part of the paternal grandmother that the Department was not in error in undertaking the process. I have formed a favourable view of the mother’s ability to provide appropriately for the child and under that umbrella I include the mother’s partner.
In terms of the grandmother and the father, the thread which weaves it way through this case is my finding that they remain unable to support the mother’s relationship with the child, continue to view the mother as a potential danger to the child and have the potential to undermine her parenting.
I cannot however ignore the relationship that the grandmother has with the child. But for how she views the mother, in all other respects that relationship is an important and necessary component of this child’s development. It is also as a result of time that the child spends with the grandmother that there exists any relationship that the child has with the father.
I do not consider that the orders the mother seeks in favour of the father are realistic. In the absence of any interest by the father, they are not able to be made. It is not proper to force upon a party orders that promote a level of relationship that is not sought. The father’s position clearly is one that recognises the close relationship between the child and the paternal grandmother and he considers it appropriate and in the interests of the child to support that outcome as the second most important relationship that the child has after the relationship with his mother.
The assertions of the mother that she does not wish to have anything to do with the paternal grandmother may or may not have an historical foundation but the position is now different and the mother will need to come to grips with the needs of the child rather than her own uncertainty and hesitation. If the paternal grandmother is to be believed that notwithstanding her view of the mother she is prepared to communicate and adopt a civil and appropriate attitude in respect of matters relating to the child, then it is difficult to understand why the mother should not also look past her concerns.

Section 60CC (3) (l)

This subsection requires me to consider whether a proposed order would be least likely to lead to further proceedings.
Obviously in this matter that is problematic given the history of notifications and Youth and Family Court activity. It may be that the parties have reached a stage where they are exhausted by the litigation and hopefully the orders that I propose to make will at least determine the relationship that each of the parties will have with the child and each other.

CONCLUSION

In Runcorn & Raine [2008] FamCA 837 Murphy J said:-
A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally – is contra-indicated in the best interests of the children.
To a very large degree the orders that I propose to make are predicated on a balance between a need to maintain the necessary relationships that the child has developed with the parties but to temper that consideration with the reality that the paternal grandmother and father did not impress as being able to put aside their differences and to support that the child should have a relationship with the mother.
I also do not consider that an order as restrictive as that sought on behalf of the ICL would also serve the child’s interests in circumstances where there has been a continuous relationship between the child and the paternal grandmother from shortly after his birth.

OTHER ORDERS

The parties are not agreed to matters of school holiday time, Christmas, Easter and the child’s birthday. In the circumstances of this case I consider it reasonable that there be provision for Mother’s Day and Father’s Day and to that extent the parties are generally in agreement.
The mother agrees that there should be one week in January that the child spends with the father and I will fall in with that request, but as to holidays generally I think it reasonable that the child spend time with the paternal grandmother and/or the father but I propose to leave those arrangements to the parties save for the time to be spent with the father in January and additional period of one week with the paternal grandmother during the second and third term school holidays.
The mother offers the father the ability to attend at school sports days, award nights and other events to which parents are normally invited and I can see no difficulty with that being extended to include the paternal grandmother. Both she and the father should be able to obtain and have access to school reports, school photographs and other information.
Importantly, I note that the mother seeks handover to occur at the Suburb R Police Station. I do not consider that is any longer to be the most appropriate handover venue. It seems there is merit in the parties meeting at an appropriate public venue so that the child can understand that police should not be considered a feature of interaction between those that hold considerable affection for him.
I will also put in place an injunction to encourage the father and paternal grandmother to promote the child referring to the mother as “Mum” or “Mummy” and to stop referring to the father’s partner as “Mum”.

I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and twenty seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 1 April 2015.

Associate:

Date: 31 March 2015

[2015] FamCA 228

1 April 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Pros	Cons
· Can be loving and caring	· Sly
· Uses manners	· Liar
· Picks up after himself	· Starts fights with [Mr G] and myself or other people
· Rude
· Pulls rude face
· Glares at you
· Says to grandmother and father I hit him
· Says that I don’t feed him
· Doesn’t listen
· Sits there and laughs at you when you tell him off
· Troublemaker
· Spits at you
· Disrespectful
· Gets me into trouble with the Law
· Pulling up with the other side of the family
· Doesn’t say I love you