GERTHER & FICHTE

FAMILY COURT OF AUSTRALIA

GERTHER & FICHTE

[2018] FamCA 165

FAMILY LAW – CHILDREN – Best interests-where the mother and the father have a history of substance abuse – where the father made a concerted effort to address his drug use and improve his parenting skills – where the child has lived with the father since 2013 – where the mother spends very limited supervised time with the child – where the mother has limited capacity to focus on the child’s needs – where the mother has little insight into the impact of her behaviour on the child – in the child’s best interests that she live with the father and spend time with the mother.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Godfrey & Sanders (2007) 208 FLR 287

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Mazorski & Albright (2007) 37 Fam LR 518

Mulvany & Lane (2009) FLC 93-404

U v U (2002) 211 CLR 238

APPLICANT:

Ms Gerther

RESPONDENT:

Mr Fichte

INDEPENDENT CHILDREN’S LAWYER:

Hartleys Lawyers

FILE NUMBER:

MLC

3023

2015

DATE DELIVERED:

20 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

8-11 May 2017, 21-23 August 2017, 16-17 October 2017, 19 October 2017

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Phelan

SOLICITOR FOR THE RESPONDENT:

Samantha Ward Pty

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dosanjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hartleys Lawyers

Orders

All previous parenting orders be discharged.
The father have sole parental responsibility for the child B born … 2010 (“the child”).
The child live with the father.
The child spend time and communicate with the mother as follows:
(a)From 10.00 am to 5.00 pm on Saturday 31 March 2018 and each alternate Saturday thereafter:
i)Such time to be spent at the home of either the maternal grandmother or the maternal great grandmother with either the maternal grandmother or the maternal great grandmother to supervise the child’s time with the mother; and
ii)Either the maternal grandmother or maternal great grandmother, or such other person as may be agreed upon by the parties in writing, collect the child from the father’s home at the commencement of time and return the child to his home at the conclusion of that time;
(b)From after school (or 3.30 pm if not a school day) on Friday 3 August 2018 to midday on Saturday 4 August 2018 and each alternate week thereafter:
(i)Such time to be spent at the home of either the maternal grandmother or the maternal great grandmother with either the maternal grandmother or the maternal great grandmother to supervise the child’s time with the mother; and
(ii)Either the maternal grandmother or great grandmother, or such other person as may be agreed upon by the parties in writing, collect the child from school or the father’s home if not a school day at the commencement of time and return the child to the father’s home at the conclusion of that time.
(c)From after school (or 3.00 pm if not a school day) on Friday 5 October 2018 to midday on Saturday 6 October 2018 and each alternate week thereafter:
(i)The maternal grandmother or the maternal great grandmother to be in substantial attendance during the time the child spends with the mother and the overnight stay to be at the home of either the maternal grandmother or the maternal great grandmother; and
(ii)Either the maternal grandmother or maternal great grandmother, or such other person as may be agreed upon by the parties in writing, collect the child from school or the father’s home if not a school day at the commencement of time and return the child to the father’s home at the conclusion of that time.
(d)From after school (or 3.30 pm if not a school day) on Friday 4 January 2019 until midday on Saturday 5 January 2019 and each alternate week thereafter with the maternal grandmother, the maternal great grandmother, the mother or such other person as may be agreed upon by the parties in writing to collect the child from school or the father’s home if not a school day at the commencement of time and return the child to the father’s home at the conclusion of that time.
(e)From after school (or 3.00 pm if not a school day) on Friday 5 April 2019 until 5.00pm on Saturday 6 April 2019 and each alternate week thereafter with the maternal grandmother, the maternal great grandmother, the mother or such other person as may be agreed upon by the parties in writing to collect the child from school or the father’s home if not a school day at the commencement of time and return the child to the father’s home at the conclusion of that time.
(f) Such further or other times as may be agreed by the parties in writing.
For the purposes of the time the child spends with the mother pursuant to paragraphs 4(a), (b), (c) and (d) herein the maternal grandmother and the maternal great grandmother complete and execute an undertaking in the appropriate form confirming their understanding and consent to comply with such orders prior to the commencement of the first period of time.
Until 31 May 2018 the mother, her servants and/or agents be and are hereby restrained from bringing the child into the presence or having contact with Mr C.
The father and the mother be and are hereby restrained from:
(a) discussing the family law proceedings with the child or allowing anyone else to do so;
(b) exposing the child to the parental conflict; and
(c) denigrating the other in the hearing or presence of the child or allowing anyone else to do so.
The father do all acts and things and sign all necessary documents to authorise the child’s school to provide to the mother at her expense any information usually disseminated to parents online or otherwise including (but not limited to) newsletters, school photograph order forms, reports and the like.
The parents both be at liberty to attend school events that parents are usually invited to attend including (but not limited to) concerts, parent-teacher interviews, sport days and the like.
As soon as practicable the father and the mother each notify the other of any serious medical illness/injury to the child whilst the child is in their respective care and shall authorise the other to make enquiries with any medical practitioners involved in the care of the child.
The father shall notify the mother when practicable of any medical appointments for the child and the outcome of same, and authorise the mother to make enquiries with any medical practitioner/s involved in the care of the child.
The father permit the child to telephone the mother upon the child requesting to do so while the child is in his care.
The order appointing the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3023 of 2015

Ms Gerther

Applicant

And

Mr Fichte

Respondent

REASONS FOR JUDGMENT

This case concerns the parenting arrangements for the child B born in 2010 currently aged seven years (“the child”). The proceedings were commenced in this Court by way of an appeal filed by the mother from orders made in the Magistrates’ Court of Victoria at D Town in 2015. That appeal is a hearing de novo.
The orders made in the mother’s absence by the Magistrates’ Court at D Town in 2015 provided for the father to have sole parental responsibility for the child and for her to live with the father and spend supervised time with the mother at E Contact Centre in D Town. Orders were thereafter made by this Court on 5 May 2015 that provided for the child to spend every fourth weekend from Friday to Sunday with the maternal grandmother and every fourth weekend from Friday to Sunday with the maternal great-grandmother. Pursuant to those orders, the child was also to spend time with the maternal great-grandmother each alternate Tuesday evening for one to two hours. Those orders also provided that the child not be left unsupervised in the care of the mother and not be brought into contact with the mother’s partner, Mr C.
The family consultant Ms F in her report, which was released on 21 April 2017, described the mother as having had “difficulty maintaining her focus and at times drifted off on tangential threads mainly historical information related to when [the child] was removed from her parent’s care” and said that her “emotional presentation was heightened when she spoke about the involvement of the Department of Health and Human Services (“the Department”) indicating they had lied and misrepresented her and which resulted in [the child] not living primarily with her.” She further observed that the mother
maintained her strong and unshakeable belief that DHHS have lied and not conducted their investigations professionally… [the mother] spoke about this for a significant part of her interview which became the focus and not [the child] and her needs.

She also said that the mother “...appears to struggle with accepting any responsibility for her role which resulted in [the child’s] removal from her parent’s care to later living with her father.” This is consistent with my observations of the mother’s evidence and the way in which she presented her case.

The history of the Department’s decision to remove the child from the care of the father and the mother in 2012 and to ultimately place the child in the father’s care in 2013 was front and centre of the mother’s case and she seemed unable to comprehend that even if the child should not have been removed from her care or placed in the father’s care, this hearing was not about the conduct of the Department, but rather what orders would now, almost five years later, be likely to promote the child’s best interests.
The father’s case was similarly, albeit to a lesser extent, focused on the history of the matter. However I am satisfied that was primarily for the purposes of highlighting the mother’s lack of insight and her inability to focus on the child’s needs, rather than his grievances about the Department’s actions.

Background

The mother Ms Gerther born in 1986 (age 31) (“the mother”) and the father Mr Fichte born in 1975 (age 42) (“the father”) commenced a relationship in 2006 and separated on 10 October 2012.
The Department has had extensive involvement with the family since the child’s birth. The child was removed from the care of the father and mother shortly after she turned two and was placed in the temporary care of Ms G and Mr G on 24 July 2012, the mother’s aunt and her husband. On 8 November 2012, the Department sought and was granted a 12 month Custody to the Secretary Order. The child remained in the care of Mr and Mrs G. The child was returned to the care of the father by the Department on 9 September 2013 and since then she and her father have lived with her paternal grandparents. The Department ceased its involvement with the family after the orders were made in the Magistrates’ Court of Victoria at D Town in 2015.
The Department notes in evidence before me record that after the father and mother separated, the father made a concerted effort to address the protective concerns raised by the Department, including anger management counselling, providing clear urine drug screens and completing a Parenting and Skills Development Service assessment.
Notwithstanding the Department’s decision to cease its involvement in the case, the mother continues to allege that the father physically, mentally and emotionally abuses the child, neglects and manipulates her, exposes her to his drug use and generally has only limited parenting capacity.

10. There are also issues and concerns raised by the father and the Independent Children’s Lawyer related to the state of the mother’s mental health and the impact that has on her insight and ability to care for the child.

Material Relied Upon

11. The father relied upon the following documents:

·     his Response to Initiating Application filed 22 November 2016;
·     his Affidavit filed 6 April 2017 (“Trial Affidavit”);
·     Affidavit of Mr H Fichte filed 6 April 2017;
·     his Outline of Case dated 3 May 2017.

12. The mother relied upon the following documents:

·    her Amended Initiating Application filed 20 April 2017;
·    her Affidavit filed 20 April 2017 (“Trial Affidavit”);
·    Affidavit of Ms J Gerther filed 15 June 2017;
·    Statement of Evidence of Ms K Gerther dated 21 August 2017;
·    Statement of Evidence of Mr C (undated).

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

·    Psychiatric assessment of the mother dated 16 February 2016;
·    Psychiatric assessment of the father dated 4 September 2015;
·    Family Report dated 21 April 2017;
·    Family Consultant Memorandum dated 18 June 2015;
·    Outline of Case filed 4 May 2017.

Evidence

14. The standard of proof is the balance of probabilities. In applying that standard the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)).

The Mother’s Evidence

15. As this is a parenting case, the Court must give effect to the principles in Division 12A of the Family Law Act 1975 (Cth) (“the Act”). Of particular relevance in this case is the first of those principles in ss 69ZN(3), that the Court must consider the needs of the child and how the proceedings might impact upon the child. Also of relevance in this case is the second principle in ss 69ZN(4) that requires the Court to actively direct, control and manage the conduct of the proceedings and the fifth of those principles in ss 69ZN(7) that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form, as possible. Applying those principles in this case, where the father is legally represented and the mother represents herself, being fair to both parties was not always easy. However to enable the matter to be heard and determined, it was necessary to allow the mother some latitude in the presentation of her case.

16. The way in which the mother presented her case was somewhat chaotic. My sense is that this was not simply because of her nerves, which were understandable, but also a reflection of the way in which she manages her life generally. She was at times anxious and tearful when giving her evidence. While the mother has undoubtedly experienced a great deal of hardship in her life, which may explain in part the way in which she presented and the way in which she presented her case, I was still left with significant reservations about the reliability of her evidence.

17. During her evidence, there were a number of occasions when the mother asked to correct evidence she had previously given and many occasions when her evidence was not consistent with the evidence of other witnesses, including expert witnesses, or documents that also formed part of the evidence in the case, such as the Department’s reports. During cross examination of her witnesses, the mother also made numerous objections, most of which were disputing the witnesses’ evidence itself, rather than objections to the questions they were being asked and having made those objections, she would then either argue with the witness or try to point out what she obviously considered to be the mistake they had made.

18. The mother also had not filed affidavits of evidence in chief on behalf of either her mother or grandmother and even when the matter was adjourned and after orders were made for her to do so, she still wanted to adduce further oral evidence in chief from them. Nor at the commencement of the hearing was there any evidence from the mother’s partner Mr C.

19. In her cross examination of the father, the mother’s questions were often hard to follow. She referred him to evidence which she could then not produce and made assumptions which were not supported by the evidence, or to the contrary were contradicted by the evidence. Notwithstanding these limitations, to the extent that I could, I attempted to help the mother frame her questions and direct her questions to the topics that would assist me in making my determination, whilst still allowing the mother significant leeway to present her case.

20. I am also satisfied that much of the difficulty the mother had in presenting her case was attributable to the focus of her case, her interpretation of the evidence and how it supported her case. That focus was on the history of the case, particularly with respect to the involvement of the Department, rather than the matters the Court is required to consider in determining what orders will promote the best interests of the child. Not only was the mother’s focus on the history of the case rather than the present circumstances of the child, her focus was on her version of that history, notwithstanding that other evidence often did not support her version of that history.

21. On the whole I found the mother’s evidence confusing and inconsistent, often based upon unsubstantiated assertions, assertions which were on many occasions directly contradicted by other evidence. The mother’s evidence was also at times quite illogical, for example when she stated that she did not have an issue with the father, but had an issue with what he was doing to the child.

22. I have little confidence in the mother’s evidence.

Evidence of the Father

23. The father was also at times not an ideal witness. While I am satisfied that it would have been difficult for the father to be cross examined by the mother, given the long history of conflict between them, he was, on occasion, argumentative, engaging in debate with the mother, rather than answering her questions directly. For example, at one point during the father’s cross examination, the parties engaged in debate as to whether or not the mother had cheated on the father while they were together and at another point in his evidence they debated whether the windows at D Town Hospital were frosted or clear. This was not helpful and certainly not child focussed.

23. The father also admitted to having lied during cross examination about seeing the mother at D Town Hospital, his explanation for doing so being that he was ashamed to see and speak to the mother. This aspect of his evidence was not particularly helpful to his case.

24. However, in contrast to the mother, the father did make concessions when appropriate to do so, including acknowledging his criminal history and past drug use and the negative effect of the drug use upon his ability to care appropriately for the child. He also acknowledged that there had been issues with his parenting, which he had taken steps to address. The father’s version of events and his evidence generally was often supported by other evidence.

25.I am satisfied that the father was generally doing his best to be truthful and focus on the issues in the case and the child’s welfare and in so far as there is a dispute between the father’s evidence and the mother’s evidence, I prefer his evidence.

Evidence of paternal grandfather

25. The paternal grandfather impressed as an honest and considered witness. The relationship he described between himself and the child was a loving and warm one. It was not in contention that the child clearly loved him and the paternal grandfather indicated he was happy for the child to continue living with him and his wife. In fact, it was the mother’s case that the child preferred the paternal grandfather to the father and that the child was upset about the prospect of her and the father having their own home independently of the paternal grandparents.

26. The paternal grandfather gave evidence about his son’s history and the efforts he has made to change his life after protracted drug abuse. The paternal grandfather was also questioned about the father’s relationship with the child and was asked in cross examination to describe the father’s relationship with the child. He summed up that relationship in two words as “determination and love”. He also described the father as being the centre of the child’s life and said that the child does everything he does, helping him with the cooking, the washing and walking the dog.

27. The paternal grandfather was not critical of the mother in cross examination, stating that his feelings toward her were “extremely sad” and he believed that while she wanted to be a good mother, due to her own experiences, she was unable to do that. He also stated that while the child did not talk about access and he would ask infrequently, when he did ask the child about access with the maternal family, he said that the child was always positive.

28. The paternal grandfather was a compelling witness and I accept his evidence.

The Maternal Great Grandmother’s Evidence

29. The maternal great grandmother, albeit well intentioned, was in my view not always a good witness. Although I am satisfied she would no doubt say that she was doing her best to tell the truth, I am also satisfied that her evidence was at times tainted by her desire to protect and support the mother. Although when pressed, there were a few occasions when she made concessions about the mother’s behaviour and the issues she faces, there were also occasions when she tended to downplay and minimise the seriousness of the mother’s behaviour, including her drug use. Her evidence was at times quite implausible. One example was her evidence about knowing that the mother was using heroin, she said for pain relief, including when the mother injected herself in the back seat of the car while she was driving, but insisting on another occasion that she had never seen her drug affected. She later attempted to explain her evidence that she had not seen the mother drug affected on the basis that she was talking about heroin and not ICE. However this was only after counsel for the father put to her a note of what she was reported to have told hospital staff about the mother’s behaviour when on drugs.

30. At times the maternal great grandmother also appeared to be avoiding answering questions she was asked, either because she perceived that her answers might be detrimental to her granddaughter’s case or perhaps because she did not want to say negative things about her granddaughter in her presence.

31. Although the maternal great grandmother denied being critical of the father and said in cross examination that she was actually quite fond of him, it was my observation that she was quick to interpret the evidence in a way that was critical of the father and his parenting. An example of this was her description of the child as very wilful. When counsel for the father asked if she could think of a reason why she thought the child might be behaving in that way, she responded that “I think she’s allowed to get away with a lot” and that the child has told her “at home I’m allowed to cheat” in relation to board games and cards. Although the maternal great grandmother said it was not a criticism of the father, it is difficult to see what point she was trying to make if it was not to criticise the father or his parenting.

32. Ultimately in this case as in many cases, it is the parties and their witnesses’ insight or lack of insight which is of most significance from the Court’s point of view. I am satisfied that the maternal great grandmother, whilst she no doubt cares for the child in this case, was on occasions unable to prioritise the child’s needs over the mother’s needs and at times lacked the necessary insight to do so. At the conclusion of the mother’s re-examination of the maternal great grandmother the mother asked her how she thought the mother’s behaviour had improved. The maternal great grandmother’s response was that the mother was now better able to manage her behaviour and remain calm in stressful circumstances and was better able to use her intelligence and think logically. However, she also said that the mother had been able to “stand up and fight” for the child. This in my view highlights the maternal great grandmother’s focus on the needs of the mother rather than the child and demonstrated a very real lack of insight into the likely impact of the proceedings on the parties and more importantly upon the child. The maternal great grandmother’s evidence with respect to the conduct of the Department also left me with a strong impression that she is unlikely to have encouraged the mother to focus on the child’s needs rather than what she perceived to be the injustice done to her by the Department.

33. Despite my reservations about some aspects of the maternal great grandmother’s evidence, she did demonstrate a capacity to consider the child’s welfare ahead of the mother’s needs. Although she denied the words attributed to her by Ms F (where Ms F reported that the maternal great grandmother indicated the mother should not have the child in her care full time), she did acknowledge that the mother having full time care of the child was a “long way down the track”. She also acknowledged during her evidence that a change of residence would be likely to be unsettling for the child.

Evidence of Maternal Grandmother

34. The maternal grandmother, like the maternal great grandmother, was a reluctant witness, who was in my view, at times quite cautious about giving answers which she perceived, might portray the mother in a negative light. The maternal grandmother also tended to be somewhat critical of the father and his parenting, interpreting the child’s behaviour in a way that suggested shortcomings in the father’s parenting, irrespective of other possible explanations for that behaviour. For example, in her witness statement dated 21 August 2017 she said

I also note that [the child] often clams up and goes quiet if asked what she has been up to at home, doesn’t like having personal conversations about her family life.
In particular and very disturbing, one night I was putting [the child] to bed when out of no where she broke down crying uncontrollably saying that Daddy wants to move out of Granny and Pa’s and get their own house, which clearly the thought of that scared her so much, it took a few hours and a phone call to her favourite Aunty (my daughter) [Ms L] to calm her down, I question myself Why would that upset her so much

35. When I put to her that the child has experienced a lot of upheaval in her life and that this might explain her anxiety about leaving her paternal grandparents, rather than any shortcoming on the father’s part, she said that she “couldn’t answer”. When probed as to why the maternal grandmother put that example in her witness statement and whether it was to imply that the child does not want to be with her father, the maternal grandmother was evasive and did not answer the question directly, stating “well I sort of wonder why she was so distraughtly upset that it took me two hours to stop her crying and a phone call to my daughter [Ms L] to settle her down on that issue.” Again, when asked why the maternal grandmother thought the child was so upset, she said “is she scared to move out with her father on her own, I don’t know…”

36. Even accepting that the maternal grandmother’s description of the child’s behaviour is accurate, not wanting to live alone with her father is not the only explanation for that behaviour. Another possibility and, in my view, one that is much more likely is that the child has been living with her paternal grandparents since September 2013 and has become attached to them. The maternal grandmother’s reluctance to acknowledge this possibility in my view demonstrates a lack of insight into the child’s circumstances and reflects, notwithstanding her protestations to the contrary, a somewhat negative attitude toward the father.

Evidence of Mr C

37. It was the mother’s case and the maternal great grandmother’s evidence that the mother’s partner Mr C does not pose any risk to the child. However, there were aspects of his evidence that caused me to question both his credibility and whether his lifestyle might pose a risk to the child. In particular when Mr C was questioned about having been charged with possession of a handgun in 2014, his evidence was that it was “only a 22 rifle and a shotgun”. However he also said a gun is classified as a handgun when they “cut the stock”. When Mr C was questioned by counsel for the father as to how the police became involved and came to know about his possession of the guns, Mr C said that someone had run through his house and tried to steal his medication and had found the guns. When probed further, Mr C indicated “there was someone at the house, they rang me and said there is someone kicking the door in and we tripled zeroed, the next door neighbour rang triple zero and they were called, doing whatever they were doing.” He then went on to say that the police had attended and arrested two people.

38. When it was put to Mr C that he had also been charged with negligently dealing with the proceeds of crime, he said this was because the serial number on one of the guns had been ground off and it was reported as stolen. Mr C also said that he had had the guns for 12-14 months and that he had wanted to take up shooting again as a hobby. This is despite the fact that he previously described himself in his affidavit as having been in a wheelchair for six years, that he requires the use of crutches occasionally and has been taking 90mgs of MS Contin daily.

39. Although in cross examination Mr C said that he had bought the guns off a “so called friend” in re-examination he said that

the people who ran through the place got charged for possession of them, the person who said they were theirs, the lady at the house, she got charged with them and they charged me because they were in the house

40. On the whole, I found Mr C’s evidence in relation to the possession of the guns and the circumstances in which the police became involved unclear and inconsistent and I was generally left with little confidence in his evidence. This includes his evidence that he had met the mother in 2012 and did not know the father but that in 2011, the father approached him at the shops and asked him for “Oxys” (OxyContin). This was denied by the father and given my reservations about Mr C’s evidence, I prefer the father’s evidence.

Evidence of Ms F (family report writer)

41. Ms F, the family report writer, was cross examined briefly by counsel for the father and the Independent Children’s Lawyer and at somewhat greater length by the mother.

42. As with the other witnesses and consistent with the way in which she presented her case generally, the mother’s focus was primarily on the history of the matter including, but not limited to, the allegations of family violence during the relationship and the father’s drug use and mental health issues.

43. I found Ms F to be a careful and considered witness able to highlight both the positive and negative aspects of the mother’s presentation in interview with her and her case generally. For example, in her family report it was her observation that the mother

…continues to struggle with emotional regulation, mental health issues and unresolved anger in relation to the current circumstances. [The mother’s] capacity to predictably and consistently attend to [the child] in an ongoing manner is compromised by her mental health status.

44. However, during cross examination when asked by the Independent Children’s Lawyer, whether the mother was able to prioritise the child’s needs ahead of her own Ms F acknowledged that

It’s more possible now than when [the child] was a youngster, an infant, I know she is still young and when the first psychiatric report was written by [Dr M] in 2012 and the Children’s Court report which was written in 2011, published in 2012 I think, had real concerns about [the mother’s] capacity and ability to parent [the child] in any safe way. But [the child] is a little older now and she was observed at least in these interviews to enjoy spending time with her mother and I think from these interviews there was some suggestion the mother is able to manage more than she could four years ago, five years ago in fact.

45. I found her evidence balanced and very helpful.

Proposals

46. The father’s case was that he should continue to have sole parental responsibility for the child and that she should remain in his care. He also sought an order that the mother undertake supervised drug screens on a monthly basis within 24 hours of being requested to do so by the Independent Children’s Lawyer and the results of such drug screens to be provided to the solicitors for the father and the Independent Children’s Lawyer. The father proposed that the child spend time with the mother as follows:

a.At the E Contact Centre at such times and on such days as could be facilitated by the centre and that the parties do all things that might be required by the centre to enable such time to take place;
b.That upon the mother having provided six consecutive clear drug screens the child spend time with her for one day each alternate weekend with either the maternal grandmother or the maternal great grandmother in substantial attendance;
c.From 3.00 pm to 7.00 pm on Christmas Day supervised by either the maternal grandmother or maternal great grandmother; and
d.The mother attend upon a psychologist appointed by the Independent Children’s Lawyer for counselling in relation to her personality disorder or problematic personality traits and upon obtaining a positive report she have leave to bring a further application seeking unsupervised time.

47. The father further proposed orders requiring him to keep the mother advised as soon as practicable of any significant changes in the health or education of the child, that the mother be permitted to attend school functions which parents would normally attend and at her expense to receive copies of school reports, school newsletters, photographs and the like. The father also proposed orders that both parents notify the other in the event of the child suffering any serious injury or illness whilst in their care and notify the other parent of any medical practitioner or hospital treating the child and that the parents not denigrate the other in the presence or hearing of the child.

48. The mother’s proposals changed a number of times during the course of the hearing and were somewhat confusing. At the commencement of the hearing, the mother proposed that the child should live with her, that she have sole parental responsibility and that for at least a few months, the child spend only supervised time with the father. During the hearing, it was her case that the child’s time with her should gradually increase over a period of two years to her eventually spending equal time with each of the father and the mother. When the mother was asked if she would undergo drug testing, she indicated that she was happy to do so, but that she did not require the father to undergo drug testing as there was no point, she said, as he “doesn’t use drugs every day, so there’s no point, he could just easily not use that drug for a couple of days and have a clean test.”

49. At the conclusion of the hearing, the mother was seeking orders for the child to live with the maternal grandmother or maternal great grandmother, her preference being the maternal great grandmother. She agreed that her time with the child be supervised by either the maternal grandmother or the maternal great grandmother. The mother also sought an order that parental responsibility be shared between the maternal great grandmother and the paternal grandfather.

50. In terms of the time the child should spend with each parent if living with either the maternal grandmother or maternal great grandmother the mother proposed the following orders:

a)   The father to spend time with the child every second weekend from 3:30 pm Friday to 9:00 am Monday and in the alternate week, the father to spend time with the child for two and a half hours after school on a day the child does not have her extracurricular activities;
b)     The mother to spend time with the child every second weekend from 3:30 pm Friday to 9:00 am Monday and in the alternate week, the mother to spend time with the child for two and a half hours after school on a day the child does not have her extracurricular activities;
c)     The child to spend time with the mother and her family for half the school holidays and the child to spend the other half of the school holidays with the father and his family;
d)     All family members be permitted to attend school functions and after school activities;
e)     The child to continue to see her counsellor at school and if the counsellor is of the opinion that the child needs to see a child psychologist, the child is to attend upon a child psychologist;
f)   Regular phone contact with the child while the child is in the other parent’s care;
g)     Father to attend counselling, complete a parenting education course and that the mother and father engage in mediation.

51. The mother’s proposal in the event that the child lives with the father was not well articulated. However doing the best I can, she seemed to be saying that the child spend time with the maternal great grandmother from 3.30 pm Friday to 9.00 am Monday one weekend out of three, with the maternal grandmother from 3.30 pm on Friday until 9.00 am on Monday on one weekend out of three and that she spend the remaining weekend in each three week cycle with the father. The child would spend time with the mother on the weekends when she is in the care of the maternal great grandmother and maternal grandmother.

52. The mother further proposed that the child’s time with her be eventually extended after six months to allow her to take the child out unsupervised for two hours and for that time to be increased after 12 months. The mother also proposed that at some point down the line, the child spend one of the nights she spends in the maternal great grandmother’s care at her own home.

53. In her final address, the Independent Children’s Lawyer submitted that the time spent between the mother and the child needed to be increased in order to promote a meaningful relationship. It was her proposal that there be a period of six months where either the maternal grandmother or the maternal great grandmother be in substantial attendance and the child’s time with the mother be increased to the mother spending time with the child from 10.00 am to 3.00 pm each alternate Saturday or Sunday and that in October 2018 overnight time commence and the child spend from after school Friday to 5.00 pm Saturday with the mother.

Issues

54. In circumstances where both the father and the mother are seeking orders with respect to where the child should live and what time she should spend with each of them, including whether or not that time should be supervised and the extent of any supervision, the matters the Court must consider in this case include:

·Whether the child is at risk of harm in their respective care;
·The parties’ mental health and any ongoing drug use and the impact this may have on the child;
·The capacity of each of them to provide for the needs of the child including her emotional and intellectual needs;
·The capacity of each of the parents to facilitate the child’s relationship with each of them and their extended families.

The Department

55. In the mother’s Trial Affidavit, she makes a number of allegations with respect to the conduct of the Department. In fact much of the mother’s Trial Affidavit was focussed on her grievances regarding the Department’s conduct towards her, rather than the best interests of the child, which is the Court’s paramount consideration. Without wanting to repeat the allegations made by the mother against the Department in full, the mother asserts that:

DHS blindly believed [Mr Fichtes] [sic] lies and used this as a reason to discriminate against me and take corrupt actions to ensure I could not get [the child] no matter what. Some workers even resorted to making up lies and made false reports about me to ensure my access with [the child] would cease or never increase more than 1 hour a fortnight. Instead of following the law and doing their job to protect [the child] they allowed themselves to be manipulated by a diagnosed manipulator and liar which clouded their judgment. They then based their opinions and decisions on their misplaced personal feelings towards me instead of assessing the facts and doing what was in [the child’s] best interests and to ensure her safety…

56. Although this is ultimately not a case about the appropriateness or otherwise of the Department’s involvement, it is part of the history of this family and the proceedings generally and given the way in which the mother conducted her case it is necessary, at least to some extent, to consider that history given the possible impact of that upon the Court’s assessment of her relationship with the child and her parenting capacity moving forward.

57. The mother’s case is that there was no basis for the child having been removed from her care by the Department. In her affidavit filed 5 August 2015 the mother responded to what she described as the lies and mistakes in Court reports relied upon by the Department for the various hearings in the Children’s Court at D Town. The mother annexed these reports to that affidavit. The concerns for the child’s welfare referred to in those reports include in summary:

a.the parents’ history of substance abuse and uncertainty surrounding ongoing drug use and their ability to recognise and respond appropriately to the child’s needs and/or to ensure her safety;
b.the parent’s unstable mental health;
c.the parents’ history of trauma;
d.family violence; and
e.the parents’ inability to acknowledge the Department’s protective concerns or engage with support services.

58. The mother’s response to the concerns identified by the Department included that:

a.   she had stopped using heroin over three years before becoming pregnant with the child and thereafter had only used it occasionally for pain relief;
b.   she had never been substance affected with the child and that her family could verify that to be the case;
c.   her ability to recognise and respond to [the child’s] needs was never restricted in any way;
d.   other than social anxiety her mental health had not been unstable whilst the child was in her care; and
e.   the standard of care she provided for the child was very high and child focused and that she always put the child’s needs ahead of her own.

59. The mother’s assertions are, however, not consistent with the evidence in this case. This includes the Department reports themselves to which the mother is responding, which set out in detail the history of the Department’s involvement with the family in the period following the child’s birth and her being placed in the care of the mother’s maternal aunt and uncle on 24 July 2012 and thereafter.

60. Although, as the mother asserts, there is reference to her complaints about the father’s family violence, it is clear from those reports that that was just one aspect of the Department’s concerns. It is also clear from the reports themselves that on some occasions, some of the information upon which the Department based its concerns about the child’s welfare came from members of the father and mother’s extended families. It is also clear from the evidence of both the maternal grandmother and the maternal great grandmother in these proceedings, that there had been occasions when they had had concerns about the child’s welfare prior to her removal from her parents’ care.

61. In the report dated 22 March 2012 there is reference to five reports having been made to Child Protection in relation to the child between June 2010 and May 2011, all of which were closed at the Intake Phase. The concerns were related to the child “...being exposed to her parents substance abuse (heroin), parents unstable mental health, domestic violence and trauma relating to their own family of origin.” It was also reported that in August 2008 (although I can only assume this is meant to read August 2011 because the child was only born in 2010), that Child First started working with the family to address the protective concerns and that the father and the mother engaged well with Child First.

62. It is also reported that on 28 November 2011 a report was raised by Child Protection After Hours Service because the mother and father were involved in a verbal altercation, the father was demanding of the mother to perform sexual acts in front of the child and would physically assault her.

63. Although the D Town Police were reported to have said that both the father and mother were calm when they arrived and that they had agreed to let [the child] stay overnight with [the maternal great grandmother] it was also reported that the police had ascertained that the father and mother had been arguing after they had tipped each other’s methadone down the sink. When the police asked the mother how she was going to manage without her methadone she was reported to have replied “I will need to go and get some heroin”.

64. It was further reported that on 29 November 2011 Child Protection received further reports that the father and mother had travelled to Melbourne with the child and “had a hit of heroin” in the child’s presence. The Department’s decision was to leave the child in the care of the mother’s family until a further assessment could be completed.

65. On 30 November 2011 Child Protection met with the mother. Although the mother told the workers that the child was not in danger in her care, she also was reported to have said that the father had been physically violent to her on three occasions, but that the child had “only” been exposed to the father yelling. She was also reported to have told the workers that if methadone was not available, she had no other choice than to use heroin for pain relief. Child Protection also reported that when they arrived the mother had taken both Xanax and Valium which she told them she took for social anxiety, panic attacks and social phobia. The mother signed a voluntary agreement for the child to remain in the care of the maternal great grandmother.

66. When Child Protection met with the father on 1 December 2011 he disputed having used heroin, denied that he had been violent and said that he feared for the child’s safety in the mother’s care.

67. Given what the Department reported as the significance of their concerns and the discrepancies between the accounts provided by the father and the mother a Protection Application was issued and on 2 December 2011 and an interim accommodation order was made in favour of the maternal great grandmother. When the matter returned to Court on 6 December 2011, the child was returned on an interim accommodation order to the care of the father and the mother.

68. On 23 December 2011 Child Protection received further notifications in relation to the child. The father and mother were described as becoming increasingly violent towards each other and likely to be using heroin with the child in their care. As a result, Child Protection and the D Town police attended at the family home and it was reported that when Child Protection arrived, the mother proceeded to spit at and hit the workers and threatened to tell the police when they arrived that the workers had physically and sexually abused her. When the maternal great grandparents arrived, they provided a written undertaking not to leave the child alone in the parents’ care.

69. On 28 December 2011 the child was returned to her parents’ care on the basis that they would be monitored by Child Protection and the extended family of the father and the mother. When Child Protection conducted a scheduled home visit on 1 March 2012 they were reported to have concerns about the mother being substance affected as her speech was slow, she would not make eye contact with the workers, was defensive and had what appeared to them to be a fresh track mark on her arm. The mother is also reported to have told the workers that if they continued their involvement the family would leave and the mother and father continued to deny any family violence, heroin use or the need for any support services.

70. A Children’s Court clinic report was prepared by Dr N and released to Child Protection on 23 February 2012. That report highlighted the parties’ long standing heroin dependence, the conflict in their relationship including family violence, the mental health of both the father and the mother and the impact of those mental health issues upon their parenting and the possible dependence of the mother on Xanax, which she reported taking for panic attacks. On 22 March 2012 the protective concerns were found proven by the Children’s Court at D Town and the child was placed on a 12 month supervision order.

71. On 7 July 2012 the Child Protection After Hours Service reported as follows:

Extended family report that parents presentation in recent weeks has deteriorated and they believe that both parents are using heroin again and that this is also reflected in the deterioration of the mother’s mental health.
Parents demanded money from grandparents and great grandparents this morning and stole grandmother’s Valium and food from grandmother’s home this morning.
Similar situation happened last weekend when parents demanded money and then later in the evening mother presented significantly drug affected. Mother has admitted to family that she has been crushing up her Endone and injecting this. Parents have been heard to be verbally abusive to the child and swearing at her.
In addition on 3/7/12 Mother disclosed at NEWPIN program to [Ms O], [Ms P] and [Ms Q] that Father’s stress and frustration tolerance levels had increased as reflected in his abuse of [the child] – yelling at her to ‘shut the fuck up you little bitch’. Mother disclosed that father will not let her into the room when he is changing the child’s nappy and is aggressive with her. Mother has noticed bruising to the top of the child’s thighs on a number of occasions after father has changed her nappy.
Mother was noted to be substance affected by NEWPIN staff and to be nodding off and fidgeting throughout the interview.

72. The Rural Outreach Workers then described what occurred when they attended at the family home as follows:

…Mother was extremely aggressive and Uncooperative and spat at workers and bit police. Mother’s presentation and aggression was suggestive of substance use. Father was more cooperative
… Both parents denied concerns put to them in relation to drug use. Father stated that he is on Suboxone and denied that he has used heroin today (even before this was alluded to by workers). Parents stated that they had spent money obtained from family today on food, however there was insufficient food found in the family home. Parents stated they asked for money from family because they didn’t have their Centrelink money. Parents denied that they had been to Melbourne today to buy drugs.
The home was extremely cluttered. Whilst workers did not see drug paraphernalia, they stated these could easily have been hidden by the parents in the cluttered home prior to the door being opened. For example there was a playpen which was piled high with toys. [The child] was asleep in a cot in unsafe sleeping condition. The heater was on very high and there was insufficient airflow in the room. There were 3 pillows pilled [sic] high in her cot. [The child] was sniffly and had a runny nose. Her clothes were grubby and she looked unkempt. The rooms were heavy with cigarette smoke and [the child] smelt heavily of cigarette smoke when she was taken out of the environment and put into the car.
…
Decision made that Order needed to be breached and [the child] placed out of parents care. Mother continued to be very aggressive and uninhibited in her behaviours and had to be physically restrained by police. She picked up a rock and was going to smash the car even though [the child] was inside the car.
Mother pulled down her pants and cocked her leg like a dog to pee on a police officer.

73. On 9 July 2012 an interim accommodation order was made placing the child in the care of the maternal great grandmother with regular respite provided by the paternal grandparents. On 24 July 2012 the Interim Accommodation Order was varied and the child was placed in the care of her maternal aunt and her husband.

Evidence of the Department Workers

74. Notwithstanding my reservations about the focus of the mother’s case, in order to assist her, arrangements were made for the Independent Children’s Lawyer to issue subpoenas to two Department workers named by the mother and I permitted the mother to cross examine those witnesses. The first of these witnesses was Ms O. Ms O was employed as an advanced child protection worker with the Department and was involved with the family between 9 September 2012 and 27 February 2013.

75. The mother’s cross examination of Ms O was focussed on attempting to clear her name and to prove that the Department had essentially, got it wrong. As I indicated to the mother during the hearing, even if I accepted that the Department had been completely mistaken and had treated the mother unfairly, that would be of little assistance now to the determination that I must make. The reality in this case is that the child has been living with the father since 2013. On the whole, the mother’s cross examination of Ms O which was focussed on traversing historical issues was of little assistance to me in the decisions I am required to make in this case.

76. Although Ms O could not give evidence about the circumstances leading up to the child’s removal from the parents’ care, I found her to be a careful and cogent witness in relation to matters about which she was able to give evidence. I will refer to other aspects of her evidence in more detail later in these reasons.

77. The other Department worker who gave evidence was Ms R. The mother asked that a subpoena be issued for Ms R to give evidence as she said Ms O was the Department worker she had the most issues with and on that basis she wanted another worker to give evidence. Although Ms R first become involved with the family in 2010, it became clear during her evidence that her role was not as a hands on case worker, but rather a managerial role which included the management of complaints and occupational health and safety issues with respect to the Department’s staff. Although some of that evidence was relevant in relation to the mother’s complaints about the Department, generally her evidence was not relevant to the mother’s case about the circumstances of the child’s removal. That being said I similarly found her to be a good witness.

78. The mother continues to deny much of what is reported by the Department leading up to the child’s removal, including her behaviour at the time the child was removed, insisting that there were no complaints about her parenting prior to the child’s removal by the Department and that the only issue was the father’s family violence. However I am satisfied on the balance of probabilities that the father and mother’s relationship was characterised by illicit drug use, mental health difficulties and that in those circumstances, there were justifiably significant concerns about the capacity of both the father and the mother to provide appropriate care for the child warranting the child’s removal from their care.

Substance Abuse

79. The mother also complained that the Department had placed the child in the father’s care rather than return her to her care, her complaint being primarily that the father was not at that time and continues to be an unsuitable parent.

80. In particular, the mother alleges that after the child was removed from their care, the father continued and still continues to use drugs and in particular, opiates. I am satisfied on the balance of probabilities that drugs have at various times been a problem for both the father and the mother. The father for his part, and unlike the mother, readily admits having used heroin in the past and having been incarcerated for drug related crimes.

81. Although the mother asserts that the father is still using drugs, including opiates, I am satisfied based upon his evidence, the evidence of the paternal grandfather, the reports of the Department in evidence before me and the oral evidence of Ms O, that the father did undertake at least some of the drug testing requested by the Department and did take steps to address his drug issues and improve his parenting skills leading up to the child’s return to his care. Although the Department was satisfied that the father was not using drugs leading up to the child’s return to his care, the mother questioned his test results insisting that he continued to use drugs. Even though the mother conceded that the drug test undertaken by the father on 24 September 2013 (the results of which are in evidence before me) was negative, she qualified that concession on the basis that the father “...does not use heroin daily”.

82. On 7 July 2015 orders were made by consent requiring the parties to undertake random drug testing at the request of the Independent Children’s Lawyer. Neither party complied with the many requests made by the Independent Children’s Lawyer that they undertake random urine drug analysis at her request. The father’s evidence was that he could not afford to undertake the tests. This was disputed by the mother who tendered two letters which she said proved that the father had no excuse for not undertaking the test as requested by the Independent Children’s Lawyer. The first of those letters was sent to the mother by Dr S and dated 25 August 2017. It read as follows:

Dear [the mother]
I am unable to pass comment regarding any other client of [T] Health Drug and Alcohol Service, nor indeed whether any individual is in fact a client there.
In regard to your general enquiry however, I can confirm:
1.that there is no particular limit upon the number of urine drug screens which may be required, and
2. that there is an agreement between DAS and our Pathology provider that such drug screens be provided at no cost to the client.
If however screening result is Positive, and its required to be confirmed and/or more specific identification of the particular substance this usually requires testing at a secondary laboratory in Melbourne.
Under such circumstances the second pathology provider is likely to levee a charge.

83. The second piece of evidence relied upon by the mother are the emails which appear to have been sent to the Independent Children’s Lawyer by Ms U, the Practice Manager at T Health on 21 September 2017 and an email from a Mr V from W Pathology to Hartley’s Lawyers on 22 September 2017. The first email from Ms U reads as follows:

…The procedure for performing a Urine Drug Screen is this is referred by a GP to Pathology. The GP completes a request and the patient takes that with them to a Pathology Department of their choice. Our doctors here at Drug & Alcohol Services will perform UDS for patients that are linked with our service. Any other patients are referred on to their own GP. If the patient holds a current Health Care Card I believe there is no charge (you can verify this by ringing any Pathology practice).This information is entered in conjunction with their Medicare Card on the Pathology Request by the GP.

84. The email from Mr V reads as follows:

Thank you for your queries. In response to your questions,
1. Each drug screen costs $90
If a urine drug screen is billed directly to a patient, the cost of testing is $90.

2. If a person is on a Health Care Card and the referral states that the drug screen is not for legal purposes, then no payment is required and is bulk billed.
Medicare will only cover the cost of urine drug testing if the test is for medical purposes.
3. If a person is on a Health Care Card and the referral states that the drug screen is for legal purposes then payment is required. Correct. Medicare will only cover the cost of urine drug screen testing if the test is for medical purposes.
4. If a person is on the methadone/suboxone program, and the referral states that it is not for legal purposes, then no payment is required and it is bulk billed.
If a patient is on a treatment program and the request for urine drug screen is generated by a medical practitioner, then the test is able to be bulk billed.
5.The maximum number of supervised drug screens that can occur over a 12 month period is 36

85. In support of his case that he could not afford to undertake the urine drug screening as requested by the Independent Children’s Lawyer, the father produced an invoice for $300.47 for a test undertaken on 17 July 2015. I am not satisfied on the balance of probabilities based upon the evidence which the mother relied, that the father could have undertaken the requested testing free of charge and accept that given his financial circumstances and financial responsibility for the child, cost was likely a relevant consideration.

86. As previously referred to, the mother steadfastly maintains that the father continues to use drugs. When asked in cross examination what evidence she had to indicate that the father was still using drugs, the mother said she knew the names of his drug dealers, that she had seen the father collecting a packet of syringes from nurses at the D Town Hospital in approximately August 2016 and that she had observed the father in the waiting room when she and the father attended their interviews with Ms F in April 2017 and that the father appeared to be coming down off drugs. I note, in relation to this last allegation, that Ms F did not express any concern as to the father’s presentation in her report nor was it put to her in cross examination by the mother that he was drug affected that day.

87. Although the father’s evidence about whether or not he had been at the D Town Hospital with his friend as alleged by the mother was not particularly satisfactory, even if he was at the D Town Hospital, which he ultimately conceded was the case, I am not satisfied on the balance of probabilities that he was collecting syringes from the nurses as the mother alleges, or that based upon him being at the hospital, it is possible to conclude that he is continuing to use drugs.

88. I am similarly not satisfied on the balance of probabilities based upon what the mother says she was told by the child about having been taken by the father to visit persons known to the mother as drug dealers, that the father is using drugs. When first cross examined about this matter the mother said “...she has told me multiple times since over two years ago that [Mr Fichte] takes her with him when he buys drugs”. Counsel for the father put to the mother that it had been noted in the Department file that the father had taken the child with him when he collected his methadone and that may have been what the child was referring to. However the mother then gave evidence about a conversation she said she had with the child, she thought some time in 2015, when the child told her about going to see Ms X and Ms Y and that the father bought cigarettes and needles. The mother’s evidence was that the father had bought drugs from Ms X and Ms Y during their relationship. Even accepting that is what the child said, there is no other evidence to support the conclusion that the father was either buying or taking drugs either at this time or currently.

89. To the contrary, I note in relation to the mother’s allegations of ongoing drug use that the father has recently commenced full time employment and was required as a condition of that employment to be medically assessed, including being required to undertake a drug test. Although I do not have a copy of the drug test result, I do have in evidence a letter from his employer which states as follows:

[Mr Fichte] of [Z Street, AA Town], has been offered employment at [Company BB, CC Town] commencing Wednesday 30^th August 2017. To be offered employment [Mr Fichte] passed the medical assessment and the Drug Testing which was performed on 2 August 2017.

90. I must weigh up all of the evidence and in doing so, I am not satisfied on the balance of probabilities that the father was, as alleged by the mother, still using drugs at the time the child was placed in his care by the Department or that the father is currently using drugs.

91. The Independent Children’s Lawyer also requested the mother to undertake urine drug screens on 15 occasions since 4 December 2015. The mother’s evidence was that she had completed six tests at the request of the Independent Children’s Lawyer. However her evidence with respect to the test results was confusing and ultimately most unsatisfactory. At first, the mother said that she could not find the test results as they were in a large stack of papers at home and she had not had the time to go through them. Later she said that two of the samples were unable to be tested and that the centre where she had taken the tests claimed that three of the tests did not exist. The mother also said that she had sent the Independent Children’s Lawyer a photo of the result of one test. However the test results she referred to were for a test dated 13 May 2015, a test the mother had taken prior to the Independent Children’s Lawyer requesting her to undertake testing. The mother’s evidence did not explain why, even if I accepted her evidence about the six tests she said she had done, she had not responded to the other nine requests and why if she had done six tests as she said, she had not provided the Independent Children’s Lawyer with the results of those tests.

92. Not only do the Department report that the mother did not complete many of the drug screens they requested, there is also evidence of the mother’s possible misuse of prescription medication. In her Court report prepared for the purposes of the proceedings in the Children’s Court at D Town in early 2012, Dr N with respect to the mother having told her she had been prescribed Kalma (also known as Xanax) said as follows:

It is unclear how dependent she was on the medication, the impression gained was that she took it most days although how many tablets she took on any occasion was not clear.

93. Dr M, who assessed both the father and the mother in August 2012 described the mother during that assessment as follows:

[The mother] is a 25 year-old woman who presented as highly anxious. Prior to the evaluation she indicated she had taken new sleeping medication which was making it difficult for her to wake up, nevertheless she presented as very anxious and highly alert. Subsequently she took four doses of a variety of different medications which she indicated in her interview were Valium, Xanax and Panadeine Forte. As indicated, she took at least four doses (and possibly more in a break), one in the waiting area and three in the interview itself. On the three occasions in the interview itself, the examiner indicated to her that it may be inappropriate for her to continue to take further medication, as she was already appearing substance affected.

94. In describing the mother’s mental health issues Dr M said as follows:

…She began using drugs in her mid teens and has continued to use benzodiazepines as well as other sedating medications. She had a psychosis in her mid teens. It is possible that this psychosis continues to be present. Her substance abuse appears uncontained. She has not seen a psychiatrist. She sees a general practitioner for methadone and this person also deals with benzodiazepines.

93. Dr M concluded, inter alia, as follows:

…
She developed substance abuse difficulties in her mid teens and also developed amphetamine induced psychosis. Her substance abuse difficulties have related to cannabis, amphetamines, heroin and then more recently prescription medications, particularly benzodiazepines.
Currently [the mother] takes Xanax, Valium, Panadeine Forte, methadone and recently began an antipsychotic medication, Zyprexa to assist with sleep. Additionally it would appear that she self-prescribes a variety of other medications including cold and flu medications and it is evident that she uses benzodiazepines in a self prescribed manner inappropriately, as was evidenced within the evaluation. She subsequently presents with polysubstance abuse and dependency.

94. The mother attended upon Dr DD for psychiatric assessment on 12 February 2016. Following that assessment, the mother sent an email to Dr DD in which she said, inter alia, as follows:

…I let you know that as an adult I only used heroin occasionally because I was in extreme pain and had no other choice. I suggest you look up “Pain caused by Endometriosis and Polycystic ovarian syndrome” and keep in mind that the operating doctor told me that I had one of the top 3 worst cases in Australia…

94. The mother also reported to Dr DD that from the age of 17 she drank alcohol each morning over a period of six months and that after the child was taken that she “...drank every day, one or three glasses …sometimes heavily, four or six glasses, for about 10 months”.

95. In summary Dr DD said that the mother “...acknowledges that she uses Oxycodone for pain resulting from chronic medical conditions but denies any significant history of illicit substance use”.

96. Although it is the mother’s case that she now takes Oxycodone for pain relief, the mother’s failure to undertake the drug testing requested by the Independent Children’s Lawyer is concerning given the evidence with respect to her history of taking heroin for pain relief. I am also left with some reservations about the mother’s reliance upon prescription medication.

Mental Health Issues

97. Each of the parties in this case assert that the other party has ongoing mental health issues which are likely to impact upon their capacity to care for the child.

98. The mother focused upon the reports prepared by Dr N for the Children’s Court proceedings in which she described the father as having longstanding mental health issues and Dr M’s assessment dated 19 August 2012 that stated that although the father had reasonable insight into his substance abuse problems, there was evidence of a broader based personality disorder with antisocial features which was at the core of his substance abuse difficulties. It was a feature of the mother’s case that she tended to ignore or disregard the evidence that did not fit with her case. This included the more recent evidence of Dr DD that indicated the father did not appear to have any current psychiatric disorder or require any psychiatric or psychological treatment which the mother sought to explain on the basis of the lies she said the father had told Dr DD.

99. Dr DD also assessed the mother and having completed his assessment of the mother concluded as follows:

At examination [the mother] presented as a reasonably pleasant and plausible woman, but at times, apart from intermittent angry diatribing, there was little conveyed emotion. She was preoccupied with a litany of perceived slights and lies made up about her.
Whilst there was no evidence of delusions or other psychotic features, certainly the themes running through her dialogues were somewhat paranoid, blaming and devoid of any signs of recognition of the complexity of [the child’s] situation, and in fact her own situation. Several of her interactions with this examiner, before and after the assessment were consistent with the presence of a personality disorder or problematic personality traits.

Dr DD’s diagnosis of the mother was as follows:
In the absence of independent information, it is not possible to allocate a formal psychiatric diagnosis. In fact at this time there is no evidence of a formal psychiatric disorder, leaving aside issues surrounding [the mother’s] personality.
With regard to the latter, there is a significant possibility that [the mother] does suffer from some kind of personality disorder or problematic personality traits, but the exact nature of these, or for that matter whether she does suffer from some kind of personality disorder, depends very much on where the truth lies between her version of events and those provided by others.
If it is deemed that other’s versions of the events are somewhat more accurate, then it must follow that [the mother] has suffered at least significant problematic personality traits, no doubt related to the abovementioned significant childhood losses and other losses.
As previously stated, several of her interactions with this examiner before and after the assessment were consistent with the presence of a personality disorder or problematic personality traits.
As to the mother’s prognosis Dr DD said as follows:
The prognosis depends on the veracity of the information.
If it were deemed that [the mother] suffered from significant problematic personality traits, it would necessarily follow that after this period of time, and given apparent lack of insight or response to considered psychological counselling, it is likely that [the mother] would suffer from these problematic personality traits indefinitely.
Regardless even if [the mother’s] main psychological issue were related to frustration by a combination of persuasive untruths by [the father], and an unwitting collusion with [the father] on the part of DHS, [the mother] would appear to be still at risk of significant ongoing unresolved grief and anger about her circumstances. Therefore she would be at risk of becoming embroiled in alienating behaviours, disrupting the relationship between [the child] and [the father]. Several of her interactions with this examiner before and after the assessment were consistent with the presence of inappropriate ways of interacting and solving problems.

102. Although Dr DD acknowledged in his report that he had not seen the child and was unable to comment on the relationship between the child and the mother, he did say that if [the father’s] version of events, consistent with the observations of the Department is deemed accurate, “...there would be concerns regarding her ability to provide consistent parenting without episodic anger and alienating behaviours.”

Although the mother was critical of both Dr M and Dr DD, she did not require them to be available for cross examination, choosing instead to rely upon a letter written by Dr EE dated 9 August 2017 and a letter addressed to whom it may concern written by Mr FF, a registered nurse who described himself as “… a Clinical Nurse Consultant, mental health, employed by [T] Health to work with the General Practitioners who prescribe opioid replacement therapy”.
In his letter addressed to whom it may concern, which I assume means that it was prepared at the mother’s request for the hearing, Mr FF said as follows:
I have been managing [the mother] since 31/03/2017.
In that time I have seen her weekly, apart from a period of long service leave in June and July.
I see her at her home.
In that time her accommodation has always been clean and tidy.
I have never seen her substance affected, and she has consistently denied illicit substance use.
I have witnessed no anger outbursts, deliberate self-harm or suicidal ideation.
Her relationship with her partner, known to me as [Mr C], has appeared stable.
Her mood has been good, apart from her anxiety and despair at the limited access to her daughter, which has seemed to me to be her main stressor.
I have seen no psychomotor retardation or hyperactivity.
She has at all times been pleasant and cooperative with treatment, counselling, anxiety management, monitoring medication and mental state.
Dr EE in his letter said as follows:
I can confirm that [the mother] is under regular psychiatric review with me here at the Pain Clinic. The frequency of review is every six to eight weeks. I have been seeing her for roughly the past six months.
I can confirm that there have been no psychiatric admissions since July 2014. I have had sufficient time to obtain longitudinal assessment of her mental state and I can confirm that there has been no evidence of paranoid psychosis or major mood disorder during my engagement with [the mother]. [The mother] certainly has some difficulties in the realm of emotional expression and there has indeed been a past history of substance use disorder. Although I am not able to substantiate formally whether or not she is abusing substances she has not presented to me with features suggestive of ongoing use of illicit substances.
On balance I confirm that her mental health has been relatively stable over the past three years and she is certainly motivated to engage with me for the foreseeable future.
If anything I have noticed a marked improvement over the last six months. [The mother] remains understandably litigious which is largely attributable to the abrupt separation between her and [the child].
In my view neither of these letters upon which the mother now relies casts any doubt or in any way contradicts the tenor of the evidence contained in the reports prepared by Dr M and Dr DD.

Mother’s interaction with the Department after the child’s removal

The mother’s other complaint about the Department related to the way in which she said they had handled her case in particular she said, restricting her time with the child and not responding to her concerns about the father and his treatment of the child. In my view, this unfortunately ignores the mother’s behaviour both at the time of and following the child’s removal. The mother concedes that she drank to excess following the child’s removal from her care. The mother also conceded that she had been in a relationship during which time she was exposed to significant physical abuse, including being hospitalised on a number of occasions. I am satisfied that there was, at least for some years after the child’s removal, a degree of instability in the mother’s life that would have precluded the return of the child to her care. Whilst the mother in her case attempted to attribute this instability to what she would say was the unjustified removal of the child from her care that is, in my view, overly simplistic.
Ms O gave evidence that throughout the period that the Department supervised the mother spending time with the child, the mother had difficulty regulating her emotions, would become “heightened” and would yell at the Department workers. However, she also readily conceded that some contacts went well, she said usually when a family member of the mother was present.
Although the mother denied many of the allegations made about her behaviour during the time she spent with the child supervised by the Department, the evidence of Ms O in relation to the mother’s behaviour as reported by the Department was compelling. She referred in some detail to the incident on 1 August 2012 describing what she said was the child’s resistance to the mother changing her nappy and what she said was the mother’s invasive cleaning of the child during that nappy change. Although the mother denied that the way in which she cleaned the child during that nappy change was invasive, Dr M also referred to similar behaviour on the mother’s part. In so far as there is a dispute between the mother’s evidence and Ms O’s evidence, I prefer Ms O’s evidence. Her evidence in contrast to that of the mother was balanced. Although the mother may not be deliberately misleading the Court, her lack of insight as to her own behaviour and inability to accept any responsibility for that behaviour, the result in so far as the weight I can afford her evidence, is the same.

Ms F said in her report that she did not support the mother’s proposal, which was at that time that the child live with her, rather than either the maternal great grandmother or maternal grandmother. In her report, she also said that the maternal great grandmother had told her that the child should not be with the mother full time as “it is too far down the track for [the child’s] stability to be ensured.” Although the maternal great grandmother disputed what she was reported to have said to Ms F, for the reasons I have already referred to, I have reservations about the maternal great grandmother’s evidence and in those circumstances, prefer the evidence of Ms F. In any event, the tenor of the maternal great grandmother’s evidence and what she was reported to have said by Ms F was the same. I am also satisfied that although the maternal great grandmother did not want to appear unsupportive of the mother’s last minute proposal that the child should live with either her or her daughter, she was cognisant of the reasons why that would not necessarily be in the child’s best interests. The maternal grandmother also gave evidence that removing the child from her current place of residence would be likely to be unsettling for her.
I am satisfied that orders removing the child from the father’s care and placing her in the care of the maternal grandmother or maternal great grandmother as the mother now proposes, even if those proposals were clearly articulated, which they were not, would be very unsettling for the child and not in her best interests.

The capacity of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs (s 60CC)(3)(f))

Parental attitude toward child and parental responsibilities (s 60CC(3)(i))

In the section 69ZW report, the Department described the father as having “made a concerted effort to address the protective concerns in an effort to have [the child] returned into his care”. Some of the steps taken by the father have been referred to earlier in these reasons. I am satisfied that since the child was removed from the parties’ care in 2012, the father has changed his attitude toward the child and is now child focussed and understands his responsibilities as a parent.
The mother in support of her case that the father was not a good parent, relied, inter alia, upon an incident where the father was overheard by a Department worker yelling at the child. The father readily acknowledged the inappropriateness of his actions and gave evidence about having spoken to his psychologist about techniques to manage his anger and frustration. I am satisfied having regard to all of the evidence and in particular having heard the father’s evidence and that of the paternal grandfather, that he has developed some insight into his behaviour and how it might impact upon the child, is prepared to accept advice about his parenting, is child focussed and is a responsible parent.
It was also the mother’s case that the father has not fostered the child’s intellectual development. She put to the father that the child was able to count to four when she was in her care but now that she is in school, she can only count to 10. She also put to the father that the child could not make out the sounds of the alphabet and that the father allowed the child to watch inappropriate television shows, such as Family Guy. The father’s evidence was that the child was able to make out the sounds of the alphabet when she was with him and although he conceded that he had found the child watching Family Guy, that was on one occasion when he had been downstairs preparing her dinner, after which he blocked the channel, agreeing that it was not appropriate for a child to be watching it. I accept the father’s evidence.
The father also said in evidence that although he was supporting the child’s intellectual development “all the moving around and everywhere she lived and everything that’s going on, messed with her a bit.” This is consistent with Ms F’s evidence about the confusion the child may experience as a result of the significant number of adults in her life involved in her care. I also have the school reports for the 2015 and 2016 school year in evidence before me which indicate that the child’s progress at school is satisfactory and it appears based upon those reports that she is developing normally. In all of the circumstances having regard to the evidence, I am not satisfied on the balance of probabilities that the father has neglected the child’s intellectual development.
Although I have no doubt the mother loves the child, I am satisfied that her capacity to provide for the child’s needs, and of particular relevance in this case, her emotional needs, is limited. The mother’s case is primarily that the child should live with anyone but the father. This is based upon her unwavering, albeit unsubstantiated, belief that the child is at risk of abuse in the father’s care. The mother’s proposals, whether that is her proposal at the commencement of the case that the child live with her or her final proposal that the child live with the maternal great grandmother or maternal grandmother and spend time with the father is, in my view, unrealistic but more importantly demonstrates a lack of insight into how such a drastic change of circumstances would affect the welfare of the child.
Ms F in her report observed with respect to the mother’s parenting capacity as follows
A concern is [the mother’s] mental health and unpredictability in her actions. [The mother] continues to struggle with emotional regulation, mental health issues and unresolved anger in relation to the current circumstances. [The mother’s] capacity to predictably and consistently attend to [the child] in an ongoing manner is compromised by her mental health status. [The child] needs parenting that is attuned and responsive and a parent who is able to separate out their own psychological and emotional needs and prioritise [the child’s] needs at all times.
Ms F’s observations of the mother are consistent with my observations of her both giving evidence and conducting her case. The mother’s case was focused on the actions of others, particularly the Department and the father, rather than the needs of the child. I am not satisfied having heard the mother give evidence and conduct her case and highlighted by her final address, that she is able to effectively separate the child’s needs from her own psychological and emotional needs and in those circumstances, that she will be able to prioritise the child’s welfare or provide for the child’s psychological or emotional needs.

Parental Responsibility

Although in this case neither party has obtained a family violence order against the other, there are allegations of family violence during the relationship and the child was found by the Department to be at risk of abuse and removed from the father and mother’s care, one of the reasons being the risk of her being exposed to family violence. I am satisfied on the balance of probabilities, based upon the Department notes in evidence before me, albeit the father denied the allegations of family violence, that there are reasonable grounds to believe that the child has been exposed to family violence and abuse as defined by the Act. In those circumstances, the presumption of equal shared parental responsibility does not apply.
Subsection 65DAC(2) of the Act provides that an order which requires two or more persons to share parental responsibility is taken to require them to make decisions about major long term issues jointly and that this requires the persons sharing that responsibility to consult the other person and to make a genuine effort to come to a joint decision (s 65DAC(3) of the Act). Even if the presumption did apply, I am satisfied that it would not be in the child’s best interests for the father and mother to share parental responsibility or as the mother now proposes, for the father to share that responsibility with either the paternal grandfather or the maternal great grandmother.
Although the mother’s proposal at the commencement of the case was that she and the father should have equal shared parental responsibility, her proposal at the conclusion of the case was that parental responsibility should be shared by the maternal great grandmother and the paternal grandfather. It was not clear the basis upon which she based her case in this regard and in so far as it is because it is her case that the father is not a fit parent, I have found to the contrary.
The father has had sole parental responsibility for the child since the orders were made in the Magistrates’ Court in D Town in 2015 and there is no evidence to suggest that he has not exercised that parental responsibility for the child appropriately or in a way that did not promote her best interests. In all of the circumstances, I propose to accede to the father’s application that he have sole parental responsibility for the child. I am satisfied that he is a responsible parent who will act in the child’s best interests. I am also satisfied that it would not be practical for him to consult with the mother and I am not satisfied that there is any reason why he should be required to consult with either the maternal great grandmother or his father for the purposes of making long term decisions with respect to the child’s welfare.
In these circumstances it is not necessary to consider the child spending either equal or substantial and significant time with each parent.

Conclusion

Much of the focus of the mother’s case was on the history of this matter and establishing she had been a good parent, that the Department was not justified in removing the child from her care and had treated her unfairly, that the child should not have been placed in the father’s care and that what can only be described as the disarray in her life was a direct result of that unjustified or unfair removal of the child from her care.
The focus of the maternal great grandmother and to a lesser extent the maternal grandmother was, whilst more understandable, similarly misdirected at times, focusing on the needs of the mother rather than the child. In so far as they were focused on the improvements the mother had made, there was a tendency in my view for them to lose sight of the child’s needs.
Although I am satisfied that the child’s removal from her parents’ care by the Department in 2012 and her placement in the father’s care in 2013 were warranted, even if that were not the case, this case is about the welfare of the child and what orders will best promote her welfare some five years later. I am satisfied that the mother has made some progress, however I must focus on the child’s best interests, which do not always coincide with the mother’s interests or the desires of her family. I am also satisfied that although the mother has made progress, as Ms F said, there are still significant issues with respect to her mental health and her unresolved anger about the child’s removal from her care and placement with the father and her ability to regulate her emotions and in those circumstances, her ability to focus on the wellbeing of the child.
In all of the circumstances, I am not satisfied that it would be in the child’s best interests to either live with the mother, her grandmother or her great grandmother. I am satisfied having heard her evidence and that of the maternal great grandmother that any discussion about the possibility of the child living with either the grandmother or the great grandmother were recent and the mother had not given any real consideration to the practicalities of this proposal. It was, in my view, totally impractical and totally disregarded the best interests of the child. The last minute nature of this proposal is in my view further evidence of the mother’s lack of insight and her inability to focus on the needs of the child as a consequence of her unwavering belief that the child is being abused by the father and her inability to consider any other possibility. Her proposal only highlights the fact that her main focus continues to be upon having the child removed from the father at all costs with little or no regard to the impact of that upon the child.
I have had the benefit of observing the mother give her evidence and conduct her case over the 11 days of the final hearing before me and have found that I am not satisfied that the mother can always control her emotions or is either motivated to or able to protect the child from her views of the father and what she perceives to be the wrong done to her both by the father and the Department. If the mother cannot control those emotions in the Court, in circumstances where she has so much invested in achieving the outcome she seeks, it is likely in my view, that she would at times struggle to do so when the child is in her care.
I have also taken into account the fact the mother has spent only limited time with the child since 2012 when she was removed by the Department and is not used to caring for the child for lengthy periods or without the support of either the maternal grandmother or the maternal great grandmother. Her ability to care for the child without assistance for lengthy periods is, to that extent, untested.
Ms F recommended that both the father and the mother undertake at least two supervised drug screens. However I am not satisfied in the circumstances of this case that there would be any purpose in them doing so. As previously referred to, the father was tested prior to commencing employment and nothing was detected. I am also not satisfied that there is any purpose in the mother being tested in circumstances where the concern is not so much her use of illicit substances but prescription drugs and her own evidence is that she is taking OxyContin for pain relief.
Although the father proposed that the mother spend supervised time with the child at E Contact Centre until she has completed six clean drug tests, I accept Ms F’s evidence that the father’s proposal would not be in the child’s best interests. Although I understand that the father has concerns that the maternal grandmother and maternal great grandmother might not provide adequate supervision and the period of supervised time at E Contact Centre would give him the comfort of knowing that the mother is drug free before the child starts spending more time with her, I am not satisfied that the issue in this case is necessarily one limited to the mother’s drug use and in my view, the need for supervision is rather one related to the mother’s view of the father and her ability to regulate her emotions and manage her behaviour.
The father also proposed that after the mother provides six consecutive clean drug screens, either the maternal grandmother or maternal great grandmother should be in substantial attendance during the child’s time with the mother. I found his proposal somewhat confusing in circumstances where he also proposed that the mother should attend upon a psychologist appointed by the Independent Children’s Lawyer for counselling and upon obtaining a positive report she have leave to bring a further application seeking unsupervised time.
In all of the circumstances, although I am satisfied that the child should be spending more time with the mother, I am not satisfied that that time should be as proposed by the Independent Children’s Lawyer, a period of six months with either the maternal grandmother or maternal great grandmother being in substantial attendance thereafter to progress to overnight time in October 2018. I am similarly not satisfied that time should be as recommended by Ms F in her report, that is approximately three months of supervised time followed by overnight time without either supervision or any requirement that the maternal grandmother or maternal great grandmother be in attendance. In cross examination Ms F qualified her recommendations and said that the child’s time with the mother should remain supervised for a substantial period of time. She also said as follows:
There may be no magic at all in any of these times it’s just a period of stepping out toward the possibility of unsupervised time if [the child] is able to spend a day with her mother supervised for a period of time because she hasn’t spent, she spends two hours with her and in that time I imagine she is quite contained and able to engage in a fun and happy way with [the child] and I know that when [Dr M] and the Department of Health and Human Services wrote their reports in 2012 there were real concerns with the mother’s ability to actually attend to [the child’s] toddler, infant needs for longer than 45 to 50 minutes in 2012 and so I’m saying that there should be opportunity for the mother to demonstrate with somebody in substantial attendance that she is actually able to follow through on all the things one might be able to do with a seven year old in the day …
I also note that although the mother’s proposals were at times somewhat confusing, she was agreeable to her time with the child being supervised for a period of six months.
Although I have expressed some reservations about the insight of both the maternal grandmother and maternal great grandmother, I am also satisfied that they love the child, have a good relationship with her and will do their best to protect her. Although I similarly have some reservations about the mother’s partner, in circumstances where I propose to order that the child’s time with the mother be supervised by either the maternal grandmother or maternal great grandmother for a substantial period, I see no reason why after the mother has had time to build on her relationship with the child, he cannot be present when the child is spending time with the mother.
I note that it was Ms F’s view that the mother would likely benefit from continued attendance upon a psychologist and that she should source a new psychologist under a mental health plan. It was the father’s case that the mother should be required to attend upon a psychologist recommended by the Independent Children’s Lawyer and obtain a report prior to there being any move to unsupervised time. I am not satisfied that requiring the mother to attend upon a psychologist as proposed by the father before moving to unsupervised time is the answer in this case. Having observed the mother give her evidence and conduct her case, I certainly agree with Ms F’s view that she might benefit from continued attendance upon a psychologist. However, unless the mother is committed to addressing her issues and changing her behaviour, court ordered attendance upon a psychologist is likely to be of little benefit. I accept Ms F’s recommendation that irrespective of the mother receiving ongoing psychological treatment, the child’s time with her progress to unsupervised time during the day and thereafter overnight unsupervised time. However it is my view that the timetable for this to occur should be more gradual.
The Court does not often make orders providing for indefinite supervision, such orders often inviting further litigation, which in my view would be almost inevitable in this case if I acceded to the father’s application. Although I have found that there is some risk of emotional abuse to the child in circumstances where this child has been the subject of proceedings in the Children’s Court, the Magistrates’ Court of Victoria and this Court since 2012, I am also mindful of the possible impact of further proceedings on the child and the need to make final orders which will avoid further proceedings.
I cannot rule out the possibility that the father will consider it necessary to initiate further proceedings to protect the welfare of the child and impose further restrictions upon the child’s time with the mother. However, Dr DD described the mother as appearing to have a capacity for “psychological reflectiveness” and although I am not satisfied there is any benefit in requiring the mother to attend upon a psychologist as a precondition for the time the child is to spend with her, I am hopeful that she will reflect upon her behaviour and will herself see the benefit of doing so and that this will lead to her gaining greater insight, particularly in terms of the possible impact of her behaviour upon the child. I am satisfied that further proceedings are less likely to be necessary in the event that she is able to so reflect.

I similarly cannot rule out the possibility that the mother will make an application in the future to extend the time the child spends with her. However the outcome of any such application will likely depend upon the mother being able to demonstrate that she has developed some insight into her behaviour and how that impacts upon the child and one would hope that if she were to develop such insight there might be some prospect of the parties reaching an agreement with respect to the arrangements for the child.
Although I do not propose to require the mother to spend supervised time with the child at E Contact Centre, I am proposing to require the time the child spends with her to be supervised by either the maternal grandmother or maternal great grandmother for a period of six months and that for a further three months they be in substantial attendance.
I am also satisfied that it will be important in circumstances where the child has spent only limited time with the mother, that for both their sakes the time the child spends with the mother start with time during the day, from 10.00 am to 5.00 pm, as recommended by Ms F, and for that time to be supported by having either the maternal grandmother or maternal great grandmother acting as supervisor. I am also satisfied that although the mother has certainly not resolved all her difficulties, there is evidence which supports Ms F’s conclusion that the mother has made some progress and that in those circumstances there should be a transition to overnight time. However contrary to Ms F’s recommendation, it is my view that overnight time should commence whilst the child’s time with the mother is still being supervised. On this basis, I propose to commence overnight time after four months rather than six months as recommended by Ms F, albeit that time will be supervised time and take place at the home of either the maternal grandmother or maternal great grandmother. That time is to occur, as recommended by Ms F, with the child being collected from school on Friday by either the maternal grandmother or maternal great grandmother and returned by them to the father at midday on Saturday.
I propose that after six months the maternal grandmother or maternal great grandmother be required to be in substantial attendance rather than be required to supervise the child’s time with the mother for a further three months, giving the mother the opportunity to be responsible for the child during the day, ultimately increasing to overnight time at the mother’s home at the end of that further three month period. For the first three months after the child commences overnight time with the mother at her home, that time be from after school on Friday until midday on Saturday. At the conclusion of that further three month period, the child spend time with the mother from after school on Friday until 5.00pm on Saturday. This will hopefully allow the child to become familiar with the mother’s home, whilst providing at least some of the safeguards the father seeks.
I also propose that for the first two months the mother’s partner Mr C not be in attendance during the child’s time with the mother, but that thereafter he be introduced to the child and spend time with the mother and the child during the day. This will allow the child to become familiar with Mr C before she starts spending time with the mother at the home where she lives with Mr C.
In so far as it was the mother’s case that the child continue to spend time with the maternal grandmother and maternal great grandmother in accordance with the previous orders, I note that they are not parties to the proceedings and did not seek orders to that effect and in circumstances where they will (upon signing an undertaking to supervise the child’s time with the mother) be spending time with the child, I propose to discharge the previous orders. The child is now seven years of age. I am satisfied that it will be in her best interests to spend every second weekend with the father as he proposes, the other weekend she will be spending time with the mother and her family.
Although the father in his Case Outline proposed an order that the child spend supervised time with the mother from 3.00 pm to 7.00 pm on

Christmas Day each year this was not addressed by either the mother or the Independent Children’s Lawyer. In these circumstances I do not propose to make the order as proposed by the father leaving it to the father and the mother to make the necessary arrangements for the child to spend time with each of them on Christmas Day and other special days. I am satisfied the father has demonstrated a capacity to support the child’s relationship with the mother and that he will act in the child’s best interests with respect to the time she spends with the mother on these occasions.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 March 2018.

Associate:

Date: 20 March 2018

[2018] FamCA 165

20 March 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness