GREAVES & WASHINGTON

[2020] FCCA 3679

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREAVES & WASHINGTON [2020] FCCA 3679

Catchwords:
FAMILY LAW – Parenting arrangements for children aged 8 and 6 – where children are Indigenous – where children live with their maternal great aunt – where the parties’ positions are polarised – where children have allegedly experienced trauma and abuse – cautious and conservative approach – best interests of the child – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 62G, 68LA

Cases cited:

Goode & Goode (2006) 36 Fam LR 422
SS v AH [2010] FamCAFC 13
Marvel & Marvel (No 2) [2010] FamCAFC 101

Applicant: MS GREAVES

First Respondent: MR WASHINGTON

Second Respondent: MS DIXON

File Number: ADC 4486 of 2020

Judgment of: Judge Brown

Hearing date: 15 December 2020

Date of Last Submission: 15 December 2020

Delivered at: Adelaide

Delivered on: 15 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Lewis of counsel

Solicitors for the Applicant: Andersons Solicitors

Counsel for the First Respondent: Mr Griffiths

Solicitors for the First Respondent: Griffiths Family Law

Counsel for the Second Respondent: Ms Valentine

Solicitors for the Second Respondent: Aboriginal Legal Rights Movement

Counsel for the Independent Children’s Lawyer: Mr Croft

The Independent Children’s Lawyer: J Richard Croft

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS

1. The children X born in 2014 (“X”) and Y born in 2012 (“Y”) live with Applicant maternal great aunt (“the Applicant”)

2. That the children spend time with the Respondent Mother in South Australia supervised by the Applicant as follows:

   a.On one (1) weekend per calendar month from 9:00am until 5:00pm on Saturday and Sunday, upon the Respondent Mother providing the Applicant with at least seven (7) days’ notice of which weekend she will be travelling to South Australia for the time spending;

   b.Any other or further time as agreed between the Applicant and the Respondent Mother in writing.

3. That unless otherwise agreed between the parties in writing, any handovers between the Respondent Mother and the Applicant occur at the Applicant’s house.

4. That pending the father’s time spending commencing at the B Children’s Contact Centre pursuant to these orders, the father do spend time with the children:

   a.Each Friday from 4:15pm to 6:15pm with such time spending to be supervised by the Applicant at the McDonald’s at Suburb C; and

   b.Any other or further time as agreed between the Applicant and the Respondent Father in writing.

5. That the children spend six (6) visits with the Respondent Father at the B Children’s Contact Centre on such days and at such times as directed by the Children’s Contact Centre at the father’s sole cost.

6. That the parties sign all such documents and do all such things necessary to enrol in the B Children’s Contact Centre within seven (7) days.

7. That the father do obtain an Observational Report from the Children’s Contact Centre upon the conclusion of his time spending at his sole expense and file same under an Affidavit within seven (7) days of receipt of same.

8. That upon the parties being accepted into the B Children’s Contact Centre the respondent father spend time with the children on the Friday of the fortnight which does not include the supervised time at the B Children’s Contact Centre.

9. The Respondent Mother be at liberty to have communication with the children (either by telephone, Facetime, Skype or other communication means) at 5:30pm each Monday and Wednesday with the Respondent Mother to initiate the phone calls.

10. The Respondent Father be at liberty to have communication with the children (either by telephone, Facetime, Skype or other communication means) between 5:30pm and 6:00pm each Thursday and Sunday with the Respondent Father to initiate the phone calls.

11. That the parties be restrained and injunctions be granted restraining them from:

    a.Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

    b.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.

12. The Respondent Father and Respondent Mother be restrained and injunction be granted restraining each of them from:

    a.from bringing the children into contact with Mr D or permitting anyone else to do so;

    b.from changing the principal place of residence of the said children from the State of South Australia;

    c.from attending at Suburb C Primary School (being the school attended by the children) NOTING that the father can attend at the Suburb C Primary School with the written consent of the maternal aunt which shall include SMS message;

    d.exposing the children to any form of family violence or allowing anyone else to do so; and

    e.consuming alcohol or illicit substances in the presence of the children or for 12 hours before and during time the children spend time with them.

13. Without admission, the Respondent Mother be restrained and an injunction be granted restraining the mother from allowing her partner Mr E to be present during her time spending with the children or bringing him to the Applicant’s home during her time spending with the children.

14. Each party keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.

15. That pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child/children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such report to be released as soon as possible.

16. The Family Report to deal with the following matters:

    a.any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    b.the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

    c.any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

17. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

18. Further consideration of the matter is adjourned to 1 April 2021 at 9:30am for directions.

19. The parties have liberty to apply on five days written notice.

IT IS NOTED that publication of this judgment under the pseudonym Greaves & Washington & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4486 of 2020

MS GREAVES

Applicant

And

MR WASHINGTON

First Respondent

MS DIXON

Second Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given the length of the reasons, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. This afternoon I have to deal with an extremely difficult matter involving two young children.  The children concerned are Y, who was born in 2012, and X, who was born in 2014.  X and Y are Indigenous children who come from New South Wales. 

2. There is no dispute that the children are currently living in South Australia with their maternal great aunt whose name is Ms Greaves.  The other parties to these proceedings, besides Ms Greaves, are X and Y’s parents; their mother, Ms Dixon, who is 34 years of age and who is currently living in Town F in New South Wales and their father, Mr Washington, who is 59 years of age. 

3. At the moment, Mr Washington is living in a boarding house in Suburb G  in suburban Adelaide.  It is his case that due to his love and devotion for Y and X, he has moved from Town F to Adelaide so that he can be close to the children and maintain his relationship with them.  It is his case, as I understand it, that he did not play a part in the mother’s decision to place the children in the care of Ms Greaves.

4. That is just one of very many factual issues which are in dispute in this case.  In the short to medium term, it is Mr Washington’s position that the children should continue to live in the care of Ms Greaves whilst the case progresses and further investigations are undertaken. 

5. It is Ms Dixon’s perspective that the ultimate outcome of the case is that the two children should be restored to her care and live with her in Town F in New South Wales.  It is Ms Greaves’ position, as I understand it, that issues to do with the protection and the care and welfare of the children dictate that they should live predominantly with her.

6. This brief synopsis, I hope, indicates the extreme complexity of the matter.  The complexity relates to the children’s Indigenous background, and the fact that they are currently in the care of a person who is not their parent in very controversial and contentious circumstances.  In addition, throughout the case, which has been on foot now since September of this year, the mother and father and, indeed, Ms Greaves, have made very significant criticisms of the other’s care of the children in the past. 

Background

1. Given that level of complexity, at an earlier stage of the proceedings I decided that the children should be independently represented in these proceedings.  Their representative is Mr Richard Croft, who is an experienced family lawyer who practices in Adelaide. 

2. This afternoon in the hearing and presence of the parties, he reminded me that he has many years’ experience of being an Independent Children’s Lawyer. Mr Croft has a statutory duty in these proceedings. Pursuant to section 68LA of the Family Law Act 1975 (Cth) (“the Act”), it is his statutory duty to examine all the evidence available to him and then advocate the position which he believes the court should take to advance the best interests of the children concerned. 

3. In undertaking that obligation, as is the usual agreed practice so far as Independent Children’s Lawyers are concerned, he arranged to meet with Y and X.  I am grateful that he did do so because he will have an advantage over me in these proceedings in that he has actually met the two children concerned and therefore has a visceral appreciation of what they are like, how they are going, and what they are feeling. 

4. I appreciate, of course, that Mr Croft is not a psychologist or a social worker.  He is a lawyer, albeit a very experienced one.  However, his submissions are likely to be influential given his role of independence in these proceedings.  At this juncture, whilst further inquiries are made, it is Mr Croft’s position that I should essentially make the orders as proposed by Ms Greaves. 

5. What she proposes, in broad terms, is that the two children should continue to live with her, and that if, and when Ms Dixon is able to come to South Australia, and she provides seven days’ notice, that the children should spend daylight time with her on weekends, subject to Ms Greaves being present. 

6. So far as Mr Washington is concerned, Ms Greaves proposes that whilst the parties await acceptance – and by the parties, I mean the father and Ms Greaves – into the B Children’s Contact Centre, that the father spend time with the children each Friday afternoon for two hours at a McDonald’s in Suburb C, a southern suburb of Adelaide, which would be subject to the supervision of Ms Greaves, and that thereafter, there be a process of supervised time at the children’s contact centre.

7. Ms Valentine, who is Mr Washington’s solicitor, tells me at the moment that the wait is about six weeks to get into the B Children’s Contact Centre, which is, compared to other children’s contact centres in suburban Adelaide, a comparatively short time, and Mr Griffiths will probably agree that it is a much shorter timeframe than occurs in the larger states. 

8. Mr Washington agrees with that position, however he would want there to be a provision for him to have lay supervision by a relative of his – in fact, his sister, Ms H, who lives in Town J in New South Wales – for a longer period during the days during the forthcoming school holidays. 

9. Ms H has prepared an affidavit which was filed late in November.  She has deposed that she does not drive or fly, so she is proposing catching a bus with her husband, Mr K, who is working throughout the holiday period.  So there is some uncertainty about her availability. 

10. It is the mother’s position, as I understand it, that as a consequence of what has happened over the last few months, she now has absolutely no trust in Ms Greaves and it is a recipe for disaster if any time between the two children concerned occurs subject to her supervision. 

11. It is her position that she should be able to give seven days’ notice of her intention to come to Adelaide on weekends, and then spend daylight hours from 9.00am on Saturday until 6.00pm on Saturday and then the following Sunday for the same hours, with the children.  She would also like longer periods of time in the school holidays. 

12. In terms of how the matter comes to court, it is Ms Greaves’ position that the children have been in her care since 1 February of this year, so that is a little over 11 months.  It is her position – that is, Ms Greaves’ position – that the mother placed the children in her care voluntarily and when the children came to her, each of them was exhibiting an extreme level of emotional trauma and, particularly so far as X was concerned, that it was attributable to sexual abuse.

13. The tenor of Ms Greaves’ evidence is that it was her understanding that Ms Dixon was placing the children in her care permanently because of issues in her household.  The mother does not agree.  She says that she has always handled her parenting responsibilities well and she bluntly says that Ms Greaves has lied in her affidavit.  She concedes that she has, through financial necessity, had to leave the children behind, but that is because she is a transport worker. 

14. One of the aspects of the case is that it seems to be common ground between the mother and the father that although their relationship came to an end a significant period of time ago in 2014, Mr Washington from time to time was living in Ms Dixon’s backyard in Town F and the mother concedes that she left the children in Mr Washington’s care from time to time.

15. However, it is now her position that she only did that because Mr Washington was in a position of temporary remission from what she says is his ruinous heavy drinking.  It is also the case – and Mr Washington acknowledges it, I think – that he suffers quite severe ill health, which I will come to in due course. 

16. So the mother and father now mistrust each other to a significant degree and it is the father’s position, as I understand it, that Ms Dixon has neglected the children from time to time, whereas Ms Dixon says Mr Washington is disqualified from playing a significant role in the children’s lives because of his alcohol misuse and also, I think, from time to time, that he has abused illicit substances.

17. However, as I say, it is the position of his counsel, Ms Valentine, that there is one very concrete piece of evidence which is irrefutable, that indicates his devotion to the children, and that is that he moved from New South Wales to South Australia in extremely difficult circumstances because Mr Washington very sadly and unfortunately has been diagnosed as suffering from multiple myeloma, which is better described as bone cancer. 

18. Mr Washington is, according to his haematologist, Dr L, managing his illness well.  He has had significant pain in the past but Dr L reports he is not taking opioid pain killers but is managing his pain with over the counter paracetamol.  He is compromised in his mobility and uses a walker but is able to drive.

19. When he moved to South Australia under those very difficult circumstances, he had no obvious accommodation or support and he has lived in a variety of places, including in a tent at a caravan park.  In the past, it seems that Ms Greaves has had some confidence in Mr Washington and has allowed the children to spend time with him during the school holidays.  However, it is her position that that time did not go well and the children were not properly tended to, particularly Y, who apparently suffers from asthma and needed Ventolin.  Ms Greaves is critical that Mr Washington did not provide the child with Ventolin.

20. Accordingly, this is a case that is replete with factual disputes.  It is highly complex.  The children, given their ages, must be regarded as vulnerable children and, as I say, there is a general agreement that X was subject to some serious form of assault whilst she was in the care of her mother. 

21. The parties of course will be aware that I am hearing this case in a very artificial and difficult manner.  The parties have appeared in court on the telephone.  That is due to the pandemic crisis.  Ms Dixon and her lawyer are in New South Wales and Ms Greaves and her lawyer are in an office somewhere in Adelaide.  Mr Washington and his solicitor are in another office and Mr Croft is in yet another office.  

22. I have to, as best I can, focus on what I think is the best outcome for the children concerned.  I cannot see any of the parties.  I am not in a position to take extensive evidence from any of them or all of them to resolve the factual disputes about what happened in the past. 

23. The Full Court in a case called Goode & Goode,[1] described the nature of the hearing at the interim stage as being significantly curtailed.  In these circumstances, the Full Court cautioned a judge in a position, such as the one I am in, at first instance about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are simply not possible.

    [1]  Goode & Goode (2006) 36 Fam LR 422, 442 [68] (Bryant CJ, Finn and Boland JJ).

24. So I cannot make findings of fact about whether Ms Dixon intended to leave the children with Ms Greaves permanently.  I am not in a position to make findings of fact about what was going on in her life in the period shortly prior to the children coming to Adelaide. 

25. In addition, I am not in a position to make findings of fact about whether Mr Washington was a violent spouse and father, although I have some police records that indicate that there was a quite significant incident in 2011 involving Mr Washington and a child from an earlier relationship but, as Ms Valentine points out, of course that was prior to the birth of Y and X.

The Child Dispute Conference Memorandum

1. Against that extremely difficult background, at an early stage of the proceedings, to make up for the deficiencies of the proceedings before me, I arranged for the parties to meet with a Family Consultant in a Child Dispute Conference.  That took place on 10 November of this year.  The Family Consultant was Ms M. 

2. Again, I appreciate the shortcomings of that process.  Ms M was only able to interview the parties by telephone.  She did not get to meet Y and X.  However, unlike me, she did have an opportunity to speak with each of the parties and form a view about their disposition and insights.  I appreciate, of course, that her evidence is not tested and is provisional in nature.

3. As I say, Ms Greaves’ position is that when X and Y arrived, they were traumatised children.  To Ms M, she said that when the children came into her care each was malnourished.  She said X was underweight and Y was overweight and she has now brought them each to normal weight. 

1. Ms Greaves reported that Y would steal food but that tendency has lessened over time.  She also reported that the children had nightmares and presented with having behaviour that was consistent with having experienced trauma.

2. Against that background she has arranged for Y, in particular, to see a counsellor or psychologist.  So far as X was concerned, Ms Greaves reported that she would soil and wet herself and hide her underwear.  She said she did that so she would not get smacked. 

3. So, as I say, the picture Ms Greaves paints is of vulnerable children who she was concerned about.  She, as I say, is critical of Mr Washington when he had the children in August of 2020 that when the children were returned, X had been bitten by a dog and had some bruising on her hip and stomach, bruising to her legs and some gastro.  As I have already said, there were also issues about Y’s Ventolin.

4. Ms Dixon, to Ms M, denied having been violent to Mr Washington but acknowledged that she had made disclosures to Ms Greaves about Mr Washington being violent towards her.  The 2011 incident was relied upon by Ms Dixon and, as I say, from Mr Washington’s point of view, although the allegation is that he threatened his son with a machete which led to police involvement, it is his position that that did not reflect well on him but was a long time ago. 

5. In terms of the overall dynamic of the case – and I think it is implicit from how I have summed up the evidence today – it is as Ms M has said; the parties are unable to reach agreement.  They have polarised views.  She considered that each party was fixed in their views and were not open to negotiation.

6. Significantly, Ms M thought that Ms Greaves was cooperative, child-focused and demonstrated a high level of awareness at the impact of trauma on the children’s developmental needs.  So far as Mr Washington was concerned, she described him as cooperative but of the view that what had happened was essentially not fair to him, and Ms M opined that this might indicate that he was lacking in insight about how best to cater for the children’s needs. 

7. At this stage, it would seem to me that he has significantly modified his initial position and it is, through his counsel, his position that he concedes that the court has to take a cautious approach.

8. Ms M highlighted issues to do with the cultural background of the children and their need to have a sense of connection to their traditional culture, which is centred in the area of New South Wales near the mouth of the N River and, of course, in South Australia they are a long way away from their traditional country.  Ms M was very sensitive to the fact that Y and X have had an extremely turbulent period in their lives and, so far as X is concerned, had made a clear disclosure of having been sexually abused. 

9. As a consequence, the focus must be on giving her an opportunity to heal.  In order to heal, Ms M thought X needed a stable, protective and consistent care giving arrangement from somebody she trusted, and that, I would respectfully say, is largely axiomatic.

10. Although the parents, I think, have their criticisms of Ms Greaves, there must be an aspect of acquiescence from the mother in terms of how the children came into Ms Greaves’ care and Mr Washington apparently is now of the view that the stability that Ms Greaves can offer is in the children’s interests.  Ms M considered that any changes to the children’s current care arrangements could have a detrimental effect on their health and wellbeing and, of course, further trauma which she thought would be unnecessary. 

11. These are, in Ms M’s view, traumatised children and against that background, she recommended a cautious approach and opined that supervised access – that is, at the contact centre – may be an appropriate measure at this point.

12. To quote Ms M, she said as follows:

    “Should this matter continue, Ms Dixon and her children need to rebuild their relationship slowly and whilst being mindful of travelling at the children’s pace.  This may be best achieved by a reunification specialist to assist them.  Ms O, is well versed in both child protection and family court matters and would be an ideal referral source.”[2]

    [2]  See Child Dispute Conference Memorandum prepared by Ms M dated 10 November 2020.

13. Ms M recommended that a psychiatric assessment of Ms Dixon might be useful.  How that would occur in practical terms, I do not know.  Certainly if the matter proceeds further, a Family Assessment Report is likely to be essential, and I simply do not have that at this stage and that is one of the other factors which makes this a very difficult and problematic case. 

The Legal Principles Applicable

1. Although the nature of an interim hearing is very different to a final hearing, the legal principles I have to apply are the same.  In general terms, whatever order I make I have to be satisfied that it is in the best interests of the children concerned, because Y and X’s interests are the paramount concern.  That is, they are the most important factor, not the feelings of the parties themselves; it is the children on whom I must concentrate.

2. In determining the children’s best interests, I have to look to a long list of matters in the Act. If the parties are interested, they can look at them, because they are contained in section 60CC. There is a long list of matters I have to take into account so they are divided into two types of matters: the primary considerations and additional considerations. There are two primary considerations. Firstly, the benefit a child is likely to derive from having a meaningful level of relationship with each of his or her parents, and secondly, the need to protect a child from physical and psychological harm, as a consequence of being exposed to abuse, neglect or family violence.

3. The law directs that I am to prioritise protective concerns.  One of the sad aspects of this case is that the children have not seen their mother since 1 February 2020.  Very sadly, X said to Mr Croft when he interviewed her recently, that she could not remember what mum looked like.  That is very sad indeed. 

4. At the moment, the children are not deriving any benefits at all from interacting with their mother, and it is clear they have had an extremely limited relationship with their father over the past 12 months or so.

5. The additional considerations contained in section 60CC of the Act are more lengthy; there are about 14 of them, including the wishes of the children concerning any factor which is shaping their views. It is Ms Greaves’ position that given the trauma to which the children have been exposed, it was necessary for her to seek out some psychological support for Y. She sought out her General Practitioner, a gentleman by the name of Dr P, who signed Y up for a mental health plan and ultimately, Y was referred to Ms Q, who is a clinical psychologist.

6. Mr Griffiths, who is Ms Dixon’s lawyer, is concerned about that report because his client did not play a part in obtaining it and did not talk to the psychologist concerned.  In fact, it was Mr Griffiths’ submission that his client feels that Y is being manipulated or forced to parrot what Ms Greaves is saying.  That is, theoretically, possible. 

7. I am not in a position to say that is not possible but as the Full Court said in SS & AH,[3] sometimes at the interim stage the court has to look at and weigh up the probabilities of competing claims and look at what impact they are going to have on the children because, although I cannot make findings of fact, I still have to think about what are the implications for the safety and welfare of these children from a particular scenario.  I cannot put off assessing risk just because the evidence is controversial.

   [3]  SS v AH [2010] FamCAFC 13 at [100] (Boland and Thackray JJ).

8. So, interestingly, in this context, Y said to Ms Q, when he was asked to talk about his family:

   “I don’t really want to do her”.[4]

   [4]  See Affidavit of Ms Greaves filed 1 December 2020 at Annexure -1.

9. This is in the context of drawing his family:

   “She’s not nice a lot”.[5]

   [5]  Ibid.

10. He said he did not want to see her, and his memories of her were that she was bossy, yelled at him and smacked him.  He also reported his maternal grandmother was worse, and had choked him.[6] 

    [6]  Ibid.

11. He said he had intrusive memories and nightmares about living with his mother on a regular basis.  He declined to talk further about that.  Of note, Y reported that one of his happy thoughts was that he had:

    “Someone to live with, not my mother, who loves me”.[7]

    [7]  Ibid.

12. In this context, he was referring to his aunt.  Y also spoke positively about his dad; about feeling excited to see him, enjoying his time with him, and having positive memories of him.  Now, I think that is a significant piece of evidence.  I am not in a position, I think, to reject it merely because it is controversial.  It goes to the views of a child. 

13. I also have to look at a number of other aspects; the level of insight of the parties, and their parental capacity.  When it is all boiled down in the short to medium term, whilst a Family Report and other information is gathered, the parties agree that Ms Greaves should continue to care for Y and X.

14. Mr Washington acknowledges that the court should proceed cautiously and incrementally.  It is Ms Dixon’s perspective that the court should give particular emphasis to the benefits X and Y will derive from spending meaningful time with her in these extremely difficult circumstances, which involve all the pragmatic difficulties of geography. 

15. The children’s great aunt and Mr Croft emphasised protective concerns, and those themes are echoed by Ms M, who urges a cautious and conservative approach.  I appreciate that both Ms Dixon and Mr Washington perhaps feel that they have been excluded from performing their proper roles as parents. 

16. In a case known as Marvel & Marvel (No 2),[8] the Full Court indicated that very often in interim proceedings where issues of risk are raised, it is often incumbent on first instance courts, such as this one, to adopt a cautious approach. 

    [8]  Marvel & Marvel (No 2) [2010] FamCAFC 101.

17. This is a case where significant aspects of risk are raised.  The risk relates to the mother and the allegations that she has been remiss in her parenting of the children, leading to them coming into Ms Greaves’ care.  So far as Mr Washington is concerned, there are issues to do with alcohol consumption, his previous violent behaviour and, of course, I cannot overlook the fact that he is a person who is extremely unwell, although I acknowledge that the medical material indicates that he is doing the best that can be expected.

18. In Marvel & Marvel (No 2), the Full court says as follows:

    “Decisions judicial officers have to make in interim proceedings are difficult and often for very good reason a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing and any allocation of parental responsibility made in an interim hearing is disregarded at the final hearing”.[9]

    [9] Ibid [120] (Faulks DCJ, Boland and Stevenson JJ).

19. In a case like this, I think I have to be cautious and conservative at this stage.  I think it would represent an unacceptable risk for the safety of the children, particularly given what Y has said, not only to Ms Q, but also to Mr Croft about his relationship with his mother, for there to be unsupervised time.  I agree that there is the possibility that there will be conflict between Ms Dixon and Ms Greaves but at this stage, from my perspective, the alternative to that is potentially more difficult given what I view as the vulnerability of the children.

20. Mr Washington, I think, has a more realistic position at this stage in respect of the difficulty of the case.  He has, perhaps, thought a little more about the next stage after B, which involves his sister.  But I agree with Mr Lewis and Mr Croft that there is some level of uncertainty about it. 

21. During the course of this interim hearing – and I appreciate I have now been delivering these reasons for, I think, about half an hour and I apologise for the burden that that represents – but the reality is that this is the period leading up until Christmas.  In an ideal world I would have liked to have reserved and written the decision but I simply do not have the time and a decision has to be made.  The parties need to know where they are.

22. There is nothing easy about this case.  Regrettably, it will take some time for the Family Report to be prepared, and the other pieces of evidence.  But as the Full Court pointed out in Marvel & Marvel, if you take a cautious approach and more evidence comes to light later, that can be revisited. 

23. In all those circumstances, although I have some sympathy for Mr Washington and his proposal for the involvement of his sister, if and when she can come, and also the involvement of an Aboriginal Family Consultant or assistant – however he or she is entitled – I think I will do as Mr Croft and Mr Lewis have proposed. 

24. I do not think at this stage I should make an injunction restraining Ms Greaves from continuing on with psychological treatment for Y and X.  I do not know if that would be helpful to them.  But in those terms, I will make the orders as proposed by Ms Greaves. 

25. I will order that a Family Report be prepared pursuant to section 62G of the Act as quickly as can be allocated by the director of Family Dispute Resolution Services at Adelaide and bearing in mind the recommendations of Ms M.

1. I will adjourn the matter notionally to 1 April 2021 but I will grant the parties liberty to apply on five days’ written notice in case something turns up.  I will make the time with Ms Greaves in the other week, other than the contact centre time. 

2. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 21 March 2022.