Flood and Piper and Ors

[2009] FamCA 203

FAMILY COURT OF AUSTRALIA

FLOOD & PIPER AND ORS

[2009] FamCA 203

FAMILY LAW – CHILDREN – Interim orders – With whom the child lives – Intervention by the NSW Department of Community Services –Mother suffers significant personality disorder – Mother admitted to hospital during proceedings – Child to live with the Father on condition he lives with the child’s Paternal Grandmother

FAMILY LAW – CHILDREN – Interim orders – Parental responsibility – Presumption of joint parental responsibility – Discharge the Department of Community Services from parental responsibility – Father and Paternal Grandmother to have joint parental responsibility

APPLICANT: Mr Flood

FIRST RESPONDENT: Ms Piper

SECOND RESPONDENT PATERNAL

GRANDMOTHER:

Mrs Flood

INTERVENER: Director-General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: NCC 1462 of 2007

DATE DELIVERED: 13 March 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Barry J

HEARING DATE: 13 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE FIRST RESPONDENT: Mr Hartley of Counsel appeared for the First Respondent Mother

SOLICITORS FOR THE FIRST

RESPONDENT:

Meredith & Co Solicitors

SOLICITOR FOR THE SECOND

RESPONDENT PATERNAL

GRANDMOTHER:

Mr Craney, Solicitor of Craney Family Solicitors appeared for the Second Respondent Paternal Grandmother

SOLICITOR FOR THE INTERVENER: Ms Kohler, Solicitor of Crown Law Office New South Wales appeared for the Intervener

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

IT IS ORDERED:

1. Order (1) of the Order of this Honourable Court of 16 May 2007 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father and the Paternal Grandmother have joint parental responsibility for the children, S born … January 2002 and D born … April 2003.

2. The children live with the Father on condition he reside with his mother, Mrs Flood.

3. The Paternal Grandmother is to notify the Registry Manager of the Family Court of Newcastle in writing forthwith in the event the children are no longer residing in her home.

4. The Father to be at liberty to collect the children from the G Primary School on 13 March 2009.

5. The Father and Mother are to notify all other parties of any change of address in writing within twenty-four (24) hours of such change of address occurring.

IT IS FURTHER ORDERED THAT:

1. The matter is adjourned part heard and listed for further hearing for two (2) days commencing at 10.30 am (Australian Daylight Saving Time) on
   16 March 2009.

2. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:
It is recommended that the Legal Aid Office Commission of New South Wales favourably consider a grant of legal aid for the legal representatives for the Father, the Paternal Grandmother and the Mother.

IT IS NOTED that publication of this judgment under the pseudonym Flood and Piper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1462 of 2007

MR FLOOD

Applicant

And

MS PIPER

First Respondent

MRS FLOOD
Second Respondent

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Intervener

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I am asked to make a determination about the future arrangements for two children S, born in January 2002 and D, born in April 2003 pending the finalisation of the hearing which commenced on Wednesday this week.

2. The parties to the litigation are the children's father who is the applicant, the children's mother who is the first respondent, the children's paternal grandmother who is the second respondent.  An Independent Children's Lawyer has been appointed and is represented by counsel and the Director-General of the Department of Community Services of New South Wales has elected to intervene.  The Director-General currently has parental responsibility for the children pursuant to an interim consent order made in May of 2007.

Chronology

1. The mother was born in 1971 and the father in 1975.  Their relationship was for a period of two years commencing in October 2000.  Shortly after separation an order was made in the Local Court at Maitland providing for S to live with the father from 4 pm Thursday until 9 am on Sunday.  I point out the obvious that D had not been born at that stage.

2. The parties had thus agreed between themselves on an arrangement where the child, S, would have four nights with the mother and three nights with the father in each week. 

3. Approximately a fortnight after those orders were made, as I understand the evidence, the mother was admitted to hospital following a drug overdose.  The father sought to reopen the proceedings.  The matter was then transferred to this Court in January 2003.  By February 2003, consent orders were made for the child to live with the mother from midday Tuesday until midday Sunday and with the father for the balance of the week, thus the four night/three night arrangement was substituted by an arrangement of five nights/two nights in favour of the mother.

4. I expect there is an explanation why the father's time with his children was curtailed rather than expanded after it was the mother who had been admitted to hospital following an overdose, but at this point in time it is not readily apparent and I do not find the need to explore that aspect.  There are many aspects of the history of this matter that I do not fully appreciate, but I have to focus on the circumstances as they are not as they have been.

5. In February 2003, the mother complained to doctors at the G Medical Centre that S may have been sexually abused.  This first disclosure was made a little over a month prior to the birth of D.  It was also made shortly after the earlier order had been made.  As I understand the evidence in September 2003, the mother once again made allegations to the Department of Community Services that S had been sexually abused.

6. In early 2004, this Court made orders that S live primarily with her father and the mother spend supervised time with the children on two occasions each week for one hour on each occasion.  On 16 April, Mullane J ordered both children to live with the father, the mother spend supervised time as previously.  His Honour published Reasons for his interim determination and those Reasons have been read as part of the material in the proceedings before me.

7. The Independent Children's Lawyer at that stage commissioned a report from Dr W, a leading child psychiatrist in private practice in Sydney.  Dr W’s first report was dated 31 March 2005.  In this report (page 12) it is recorded that the mother informed Dr W she did not believe the father had molested S.  Dr W described the mother, at page 19, “as an emotionally needy person” who “perhaps can be somewhat manipulative”.

8. He added:

   "From a diagnostic point of view it is my view that a diagnosis of borderline personality disorder probably can be supported on the materials available and there seems little question about the diagnosis of poly substance abuse, although perhaps that is in remission at the moment.  Whether or not she has bipolar disorder which will be stabilised by Epilim is yet to be seen as her psychiatric history has been significantly complicated by concurrent drug use.  Moreover it does not appear that a diagnosis of hypomania or mania has been made on the basis of direct examination at the time of hospitalisation or at another time, which in my view places a significant cloud over whether or not she has a bipolar disorder at all."

9. At page 20 of the same report at paragraph F under the heading “Desirability and Effect of Parents Proposal For Residence and Contact” the doctor observed:

   "If it is the case that the Court is satisfied that the mother has been quite a troubled person for a number of years and that she is in a state of only partial remission at the moment, there is a risk of further relapse in the future as is my concern then the question would be whether contact could be unsupervised and for how long.  If the Court is satisfied that the mother is in a fair psychological state at the moment, then it is not my view that supervision of the contact continues to be necessary.  I have indicated elsewhere I was somewhat dissatisfied of the mother's general relating to [S] in particular, but even that would not ordinarily dictate supervision."

10. At page 21 in the penultimate paragraph the doctor observes:

    "A question remains over the father's stability as well, although I have formed the view that he has basically a more stable mental state and personality structure than the mother and that his drug use has not been as prolonged or involved in as many different classes of drugs.  A return to drug use or evidence of notable volatility in his personality would be a relevant matter.  If the children are residing with him, this may well be a matter that could lead to opening of the hearing."

11. With considerable prescience Dr W concluded this first report by noting:

    "The materials I have seen, as well as the parents' accounts provide very clear evidence of ongoing tension and distrust between not just the parents, but also with the significant support of their respective families.  There have been numerous allegations and counter allegations regarding each of the parents' capacity to look after the children, primarily but not entirely instigated by the father.  The circumstances of the past 12 months give no confidence that this pattern is likely to change."

12. I note that that report was written four years ago almost to the day.

13. In the month following Dr W’s first report in April 2005, the mother was again admitted to G Hospital following an overdose.  On this occasion it was sodium valproate, 90 tablets and an unspecified number of Xanax

    
    

    anti-anxiety tablets.

14. Sometime during the first half of 2005, the matter was set down for a five day hearing to proceed in July of that year.  Significantly, on 25 July 2005, consent orders were made that the children live with the father with a graduated increase in the mother's time with the children culminating in overnight alternate weekends by February 2007, which time of course was to be unsupervised.  I am informed that by and large both parties complied with the terms of the orders up until May 2007.  It is common ground that throughout that period, that is to say from July 2005 until May 2007 the children lived with the father and for most of that time he resided at the home of his mother.  The mother had time with the children as designated by the orders.

15. It is common ground that both parties had been taking illicit drugs during the period 2002/2003 extending into 2004.  For his part the father says he hasn't taken illicit drugs for four years.  He accepts that he did not contest a charge of possession of a prohibited plant, cannabis, in mid-2006, but says that on that occasion the drug was not his.  I am unable to make a finding on this aspect at this present time, nor is it appropriate for me to do so.

16. I note the father says at paragraph 101 of his affidavit filed on 20 February 2009:

    "I haven't used illegal drugs since about 2006."

17. It would appear the mother is no longer involved with illicit drugs, but over the intervening years has developed a significant problem with addiction to prescription drugs.  The father says that in late 2006 the mother made a request of him for a shared care arrangement concerning the children.  The father says in para 14 of his trial affidavit that the mother threatened him:

    "I'll take you to Court again and I'll win this time."

18. The mother had by that stage applied for Legal Aid and an early intervention conference was held on 13 April 2007.  No agreement was reached at that time.  The father says that at the conclusion of the mediation the mother said words to the effect:

    "I'll get my revenge, I'll take you back to Court and I'll win this time."

19. In her evidence on Wednesday this week the mother denied making any such statement.  Again because the proceedings have not been finalised I am unable to make a finding of which version I prefer.

20. The mother was admitted to the G Hospital on the evening of 11 March.  As a result no evidence was taken on yesterday's date.  It was not known what the mother's prognosis would be, but during the course of submissions on yesterday's date I was referred to various records from the Hunter and New England Health Service, which I marked as exhibit 8, dated 19 November 2006 and 29 January 2007 and I note that these entries corroborate to some extent the father's account of events at this time.

21. On or about 29 or 30 April 2007 the mother took S to the G Hospital where the child was seen by Nurse B.  There were disclosures of some description made by the child to the nurse at that time.  Pursuant to New South Wales mandatory reporting provisions, the nurse notified the Department of Community Services.  Thereafter the matter was investigated by Detective J and Ms N, an officer with the Department.

22. It would appear from the records before the Court that these officers interviewed the child at her school on 3 May.  After hearing of that interview the father attended at the school and took S home.  On 4 May, the child was reinterviewed by the same officers and subsequently as a result of certain disclosures said to have been made by the child, the Department placed the child in the mother's care.

23. The mechanism for doing this was by way of consent orders made by this Court on 16 May 2007 granting the Director-General of the Department responsibility for the children and noting the children were to reside with the mother.

24. I am only too conscious of the fact that I have not heard from anyone involved in the investigation, either from the Police Department or the Department of Community Services, but it would seem at first blush that the most perfunctory of inquiries would have revealed a history of unfounded allegations by each of the parties in the years prior to the events in question.

25. The plain fact of the matter is that the children had been in the care of the father from 2004 until mid-2007.  At that time they were taken from the father's care and placed with the mother.  The allegations which formed the basis for doing so have now been found to be spurious.   They are totally unsubstantiated and that fact is not disputed.

History of current proceedings

1. A 60-page Judgment of Mullane J was handed down on 30 September last year after a five day hearing spread over a considerable period of time.  There is no challenge to the findings made by his Honour in that Judgment.

2. The matter was set down as I have noted for a three day hearing before me some time ago to commence Wednesday this week.  Each of the parties is legally represented, the father and paternal grandmother are not legally aided.

3. The father gave evidence and was cross-examined on Wednesday 11 March. The mother commenced her evidence that afternoon, some cross-examination took place, thereafter the matter was adjourned to commence at 9.30 am on the Thursday.  As I have noted on the Wednesday night the mother was admitted to the G Hospital.  A Certificate of Discharge has been produced into evidence on today's date.  The consequence of this is no evidence was able to be taken on yesterday's date, but I heard submissions in relation to what orders should be put in place on the basis that the matter would not finish within the time allocated.

4. As noted at the outset what I have to determine is what orders if any are to be made on an interim basis pending the finalisation of this matter.  I have tentatively allocated Monday/Tuesday of next week and I will deal with that by way of video link from Brisbane.  The difficulty is that Dr W who is an important witness is not available on those days.  I am uncertain when I can take his evidence, but I am hoping it will be later in the week, subject to the availability of counsel.  The difficulty is then of course with a matter as complicated as this is that I may reserve my decision.  I am rather hoping that I will not have to, but in that event it may be some time before the matter can be resolved by way of final orders issuing.

5. Counsel for the father seeks an order that for whatever period of time it is until the matter can be concluded the children live with his client.  He says the father undertakes to continue to reside at his mother's residence for such period of time and be subject to any other appropriate conditions as may be sought by the Independent Children's Lawyer.  On behalf of the applicant father it was submitted that the proceedings have been on foot for about six years, save for a period of 22 months following the making of the consent orders in July 2005.

6. On today's date, the mother appeared and cross-examination continued.  The mother abruptly left the witness box following some remarks made by myself in response to a certain statement she was making. Counsel for the Independent Children's Lawyer drew attention to the fact that the mother appeared to be slurring her speech and to be under the influence of, presumably, prescription medication.  Counsel for the mother has sought that the matter be adjourned and I am prepared to accede to that application.

7. I have to point out that the matter is going ahead on Monday.  If the mother is taking prescription medication the Court just has to take her as the Court finds her.

8. Counsel for the father drew the Court's attention to a notation to an order of 2 May 2005 before the consent orders later in July.  The notation was in the following terms:

   "The Court notes that the mother is not proceeding with any allegation that the father sexually abused [S].

   (2) the Court notes the father is not proceeding with any allegation the mother abused [S] by taking her to any unnecessary medical examination."

9. Counsel for the father referred to entries for 2 February, 3 February 2005 and 14 February 2005 and the records of the G Medical Centre.  The entry for 14 February is difficult to read being in the doctor's handwriting, but I accept counsel's interpretation that the purport of the entry is the doctor had made inquiries and confirmed that vaginal cream had been prescribed for S and the father had been told how it was to be applied.

10. A reference was then made to various entries in annexures to the affidavit of Ms M, an officer with the Department of Community Services.  At page 121 there's an entry for 29 October 2008.  The terms of that entry were made when the respondent’s mother spoke to Ms M on that date last year.  This is just under a month since Mullane J's Reasons for Judgment were delivered on 30 September.  Ms M’s record is as follows:

    "[The mother] said that because the Department cannot rely on the risk of harm issue of sexual abuse that we need to find other reasons that [the father] cannot have fulltime care for their children.  She said either that the length of time the kids have been with her for [the father’s] ongoing criminal activity.  I advised her that I am aware of [the father’s] criminal history.  I said there is not enough to support the Department to remove the children from his care.  She said that even though he was bashed twice while the children were in his care, I said that I have not read that, that the Department did not become involved for those reasons so it's not something the Department would be looking at now.  In regards to his current criminal activity, I've not seen evidence to suggest again that the Department would have enough to warrant the continued removal of the children from [the father].  [The mother] asked about the position for the Department with parental responsibility, she said that she would like to see the Department retain the parental responsibility of the children because of her and [the father’s] volatile relationship.  I explained to her that this reason alone is not enough for us to retain PR of the children."

1. I was referred to an inquiry continuing in the submissions made by counsel for the father, an inquiry by Ms M of a complaint that the mother is addicted to prescription drugs.  The mother was requested to attend on that date, 25 August 2008 for drug screening but she informed Ms M she was suffering vomiting and diarrhoea and would be unable to attend for a drug screen (refer pages 168 and 169 of the annexures to Ms M’s affidavit).

2. Counsel's principle submissions were based on the third report of Dr W.  At page 27, the first two paragraphs, the paragraph reads:

   "In my previous reports, particularly that of September 12 2007, I've described the types of parenting problems that can arise from borderline personality disorder and I'd have to say that the same types of problems also arise from borderline personality traits which I believe she still exhibits now, although the impact on parenting is not quite so severe.  Nevertheless I observed evidence in my observations of her and the children that suggest that these adverse parenting impacts are present. In contrast with the way the children were with their father and with their paternal grandparents, they were loud, a bit out of control and [S] was a bit oppositional whereas they were settled, patient and cooperative with their father and their grandparents.  It also seems as if the children were not used to their mother placing consistent limits on them.  In addition [the mother] also reported that she found [S] to have been rather emotional and oppositional in the past six months or so.  While a factor in this may have been that [S] feels that [D] has been treated more favourably in the sense that he was having continuing contact with all the paternal family and she was not.  I am also of the view that a significant factor is that arising out of [the mother’s] personality difficulties.  In my view she still has trouble maintaining an even temperament with her children and consistency in how she manages them.  In my view this is a matter for which she also needs to commit herself to parenting counselling of a consistent nature and not simply obtaining occasional advice, particularly when there is a need for her to be seen to be doing something.  As I have outlined in my earlier reports, such parents can be at times loving to the point of effusiveness, at other times quite rejecting, but other times quite ignoring and neglectful and at yet other times inappropriately angry.  It is my view that the materials converge on a conclusion that these problems do affect [the mother’s] parenting of the children and that it is reflected in both children's behaviour in their mother's present, although not at school or in the presence of the father and his family."

3. Page 27 counsel quoted from the opening of the second paragraph:

   "As I've indicated in my previous reports I have very serious concerns about [Ms Flood’s] mental state."

4. I accept that that should read Ms Piper’s mental state:

   "Whilst I felt that it is unlikely that she suffers from bipolar disorder I felt that a primary diagnosis of borderline personality disorder was supportable and I have also indicated her significant problems with probably substance abuse which is commonly associated with this personality disorder."

5. In paragraph 29 he quoted the passage:

   "My view is that she has a quite unstable personality makeup to which I've referred above and that this leads to her being highly vulnerable to substance abuse and that she needs to undergo counselling to reduce this vulnerability otherwise it's highly likely that she'll go through further phases of addiction."

6. At page 30:

   "As I've indicated above and in my previous reports despite the father's failings in terms of misbehaviour in the community about which he wasn't particularly candid, he nevertheless seemed to be a warm, responsive and patient father to the children.  At this point I'd say that provided there is not evidence of ongoing drug use or antisocial behaviour or fighting in the community there's really no significant risk were the children to reside with their father."

7. He then goes on to repeat his concerns about the children spending time with their mother. At page 31 counsel referred to the recommendation by Dr W:

   "It is my view that it would be best for the children to reside with him because I think he is better able than the mother to provide them with the proper balance of consistent caring but measured parenting."

8. For the mother, Mr Hartley drew the Court's attention to page 189 of the annexures to Ms M’s affidavit, in particular the passage "they", that is the children:

   "They attend school regularly and appear to be meeting all of the school's requirements both socially and physically.  The children always present as clean and tidy with their lunchbox full of food to eat, their house is always spotless and clean, both children have made friends at school, both children can describe daily routines that involve their mother's guidance and assistance."

9. Counsel for the mother referred to the fact that existing orders have been in place for almost two years and that there was no evidence of any harm for the children at the present time.  He referred the Court to the principles enunciated in the well known decision of Goode v Goode (2007) 36 Fam LR 422 at 424, I will not read the whole of the head note, but relevantly that decision by the Full Court consisting of the Chief Justice and Finn and Boland JJ noted:

   "The reasoning in Cowling in making interim decisions particularly as to the relevance to the best interests of the child of stability when the child is considered to be living in well settled circumstances must now be reconsidered in light of the changes to the Act, what is known as the 2006 amendment."

10. The next paragraph reads:

    "It can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as parental responsibility and as to time spent with children subject to the need to protect children from harm, from abuse and family violence and provide it is in their best interests and reasonably practicable.  This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interest concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangement for the child."

11. Counsel for the Independent Children's Lawyer supported the orders as sought by the father.  He submitted the orders be made on an interim basis in terms of the amended orders produced by the Independent Children's Lawyer at the commencement of the hearing.  He submitted there was a need for the Court to balance the evidence of the school results as adverted to by Mr Hartley for the mother with the opinions expressed in Dr W’s report to which I have referred in some detail, particularly the opinions in the third report.

12. The Independent Children's Lawyer was equivocal on the issue of whether the mother's time needs to be supervised in the meantime.  Counsel for the Independent Children's Lawyer did not base his submissions on the mother's current use of prescription drugs.  He argued those drugs were being prescribed by the mother's medical practitioner and she is entitled to rely on his professionalism and expertise.  This aspect was challenged by counsel for the father on the basis that the medical practitioner was issuing certain prescriptions under the Pharmaceutical Benefits Scheme but other prescriptions were private prescriptions for which the mother had to pay the full cost.

13. I can indicate in the absence of any better evidence on this aspect I am not prepared to draw any adverse conclusion other than to note Dr W’s concerns about the high level of consumption of the prescription drugs taken by the mother in recent time.

14. Whilst not uncritical of the father's behaviour on occasion, counsel for the Independent Children's Lawyer submitted that on an interim basis the children should be placed in the care of the father. 

15. Mr Craney, the legal representative for the paternal grandmother urged the Court to find that there would be greater stability for the children if placed in their father's care, particularly if the orders provided that he remained in the paternal grandmother's residence.

16. The legal representative for the Department of Community Services indicated the Director-General would abide by any order of the Court, whether of an interim nature or otherwise.  On an interim basis I propose placing the children in the care of their father.

17. I accept there is evidence the children are doing well at their current school.  I accept that a further hearing could take place as early as next week, all other things being equal.  I accept that to place the children in the care of their father may prove unnecessarily disruptive in the event it is ultimately ordered that the children are to remain residing primarily with their mother.  But balanced against this I place considerable weight on the report of Dr W, particularly the third report.

18. I fully appreciate Dr W has not been cross-examined, but there is a consistent theme throughout his three reports that the mother's personality is inimical to good parenting.  The evidence I have had over many years relating to personality disorders is that it is a condition that really is not amenable to treatment, if it be amenable to treatment it is a very difficult and slow process.

19. Whatever period elapses between these orders and the conclusion of the hearing, I note the children will remain at the same school, have the same friends and live in the same district.  I accept that at a circumscribed hearing such as this where I have not had the benefit of full cross-examination, have not heard from the expert witness, that my findings of necessity have to be limited.

20. But the aspect which was really not averted to in submissions which moves me to make the orders that I do on today's date is this:  the father in the course of his cross-examination adverted to the inherent unfairness of the children being removed from his care for a period of almost two years on the basis of allegations now clearly found to be false.  It matters not whether the allegations were malicious, well founded, or the results of an honest but unreasonable belief, whatever description is placed on the circumstances of the making of the claims.

21. Since Mullane J's findings were published on 30 September last year, the father has only had limited opportunity to engage with his children, particularly with S.  His time continues to be supervised, although I totally fail to understand why.  There is evidence upon which a Court could find the mother has not been willing to promote a relationship between the father and his children or indeed between the paternal grandmother and the children. 

22. I have to make an order which I find is in the best interests of the children.  I am satisfied that the order I am about to make on an interim basis fulfils that standard.  It is a relevant factor that as a result of false allegations the father has been deprived of an opportunity to have a proper relationship with his children over a period of almost two years.  It is high time that position was rectified and whether it is for a weekend, a week or for a greater period of time remains to be seen.

23. I note in passing that, although I have not heard from her the paternal grandmother appears to be a beacon of stability and respectability in an otherwise chaotic environment.  In her affidavit filed on 24 February this year at paragraph 35 she notes she is the secretary and treasurer of the local Church.  She works from 9 am to 1 pm three days a week.  She is active in community affairs; she is a president of an anti-drug action group; she has undertaken numerous courses, she annexes certificates to her affidavit, I do not have to detail those, they speak for themselves.  I am satisfied that on an interim basis I can make a finding that the paternal grandmother would act in the best interests of the children at all times.

24. I turn to consider whether the mother's time with the children should be supervised.  There is evidence which if accepted would indicate the mother has engaged in denigration of the father and his parents to the children.  Such evidence arises from the annexures to Ms M’s affidavit incorporating the reports of various supervisors who have supervised time between the father and his children and between the paternal grandparents and the children.  It also arises in passing in the various reports of Dr W.

25. There is also a concern that if the mother was to have unsupervised time with the children she would place undue pressure on the children to express a wish to return to her household.  Evidence of this can be inferred from various entries to which I have already made reference and the exchange of communication between offices of the Department and the respondent mother.

26. I have read the material from the maternal grandmother, I have read many of the entries in the material that has been placed before the Court concerning the maternal grandmother.  I am not satisfied in the circumstances of this case the maternal grandmother is an appropriate or adequate supervisor.  She is not sufficiently objective or independent.  There appears to be suggestions of an element of co-dependency between the respondent and her mother.

27. I will hear submissions from the parties as to the terms of any orders for the mother to spend time with the children.  I note that the paternal grandmother suggests the Rainbow Centre at Broadmeadow on the first Saturday of each month, I would certainly be proposing more time than that, but I do not know the hours of operation of the Rainbow Centre or indeed any other contact centre, but I assume counsel at the Bar table can provide me with the necessary details.

28. I turn to the issue of interim parental responsibility.  I am aware of the presumptions in the legislation for joint parental responsibility.  I am aware of the terms of the Full Court's pronouncements in the case of Goode to which I have made reference.  Here, where I am to discharge the order granting the Department parental responsibility, I am concerned at the level of poor communication between the parties.  The father will be having the lion's share of the time.  I do not deem it appropriate that there be an order for joint parental responsibility, however because of the, at this stage, unresolved allegations against the father, I propose to put in place an order that the father and the paternal grandmother have joint responsibility for the children.

29. I note that the paternal grandmother in her material seeks orders in the triple alternative in effect and she says if the Court has concerns about the parents themselves she is willing to be given parental responsibility.

30. For the above reasons, on an interim basis, the Court will make the following orders.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  13 March 2009