Guinn and O’Hare and Anor

[2018] FCCA 3219

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUINN & O’HARE & ANOR [2018] FCCA 3219

Catchwords:
FAMILY LAW – Parenting – risk of harm – children living with maternal grandmother – significant involvement with the Department of Family and Community Services – young mother – children with significant and complex needs and behavioural issues – children to live with mother.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 60CC, 60CG, 65DAA

Cases cited:

Donnell & Dovey [2010] FamCAFC 15

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant: MS GUINN

First Respondent: MS O’HARE

Second Respondent: MR DUFFY

Third Respondent MR BRYAN

File Number: DUC 318 of 2016

Judgment of: Judge Obradovic

Hearing dates: 13, 14, 15 and 16 August 2018

Date of Last Submission: 16 August 2018

Delivered at: Parramatta

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Hill

Solicitors for the Applicant: Longman Hill Solicitors

Counsel for the First Respondent: Ms Arulrajah

Solicitors for the First Respondent: Thompson Madden Solicitors

Appearing for the Second Respondent: No appearance

Appearing for the Third Respondent

Counsel for the Independent Children's Lawyer:

No appearance

Ms Lioumis

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. That the children X (born … 2014) and Y (born … 2015) shall live with the mother subject to order 2 , 3 and 4.

2. That the mother shall have sole parental responsibility for the children.

3. That for a period of two years order 1 is subject to the Mother and children residing at the property of the maternal grandfather.

4. That order 1 will commence on the maternal grandfather and Ms A providing written undertaking as follows:

   (a)That the mother and the children are permitted to reside with Ms A and Mr E;

   (b)That in the event that the children cease to reside in the home that notification will be  made within 24 hours of such event by Ms A and Mr E to the Department of Family and Community Services;

5. That the maternal grandmother spend time with the children as follows:

   (a)Each alternate Saturday from 10.00am until 4.00pm;

   (b)And any other time as agreed between the mother and maternal grandmother.

6. That for any period of time spent between the maternal grandmother and the children she shall ensure that Mr B and Mr C are not to be present.

7. That within fourteen (14) days of the date of these orders that the mother is to obtain a referral to the Paediatric Clinic at J Hospital or other service provider for X and Y to undergo a global paediatric assessment.

8. That the mother shall attend at, and ensure that the children attend, and the mother shall follow all recommendations made as a result of the paediatric assessment; including allied medical health services, such as and including physiotherapy, speech therapy, occupational therapy, speech pathology and any other recommenced therapy as a result of the paediatric assessment in Order (7).

9. That the mother shall provide to the maternal grandmother within 7 days of receiving same:

   (a)Details of any medical appointments, specialists appointments and therapy appointments;

   (b)Copies of reports received from any schools, pre-schools, medical and medical specialists and therapists.

10. That the mother shall ensure that the maternal grandmother, maternal grandfather and Ms A are aware of any medical and allied therapy appointments and shall be able to attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 318 of 2016

MS GUINN

Applicant

And

MS O’HARE

First Respondent

MR DUFFY

Second Respondent

MR BRYAN

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final parenting proceedings relating to two children X born … 2014 and Y born … 2015.

2. X and Y are unlikely to have many options in life, as the adults who look after them are dysfunctional in many ways. Not only are they dysfunctional but they are unaware of this.

3. The parties to the proceedings are the Applicant maternal grandmother, Ms Guinn and the First Respondent mother, Ms O'Hare. The Second Respondent, Mr Duffy is the father of X and did not participate in the proceedings. The Third Respondent, Mr Bryan is the father of Y and also did not participate in the proceedings.

4. The mother was born on … 1998 and is currently 20 years of age. She had her first child at 16 years of age and her second child at 17 years of age. She has had a third child, H born on … 2017 to Mr L. H is not the subject of these proceedings.

5. The children currently reside with the Applicant maternal grandmother and she is seeking orders for the children to remain living with her and to spend limited time with the mother.

6. The mother is seeking orders for the children to live with her subject to an initial period of two years whilst residing at the home of the maternal grandfather, Mr E and his wife Ms A and subject to the mother undertaking drug testing and counselling as well as an undertaking by each of Mr E and Ms A that if the mother and children cease to reside in their home they will notify the Department of Family and Community Services within 24 hours. The mother also seeks that the children spend time with the maternal grandmother each alternate Saturday from 10am to 4pm and at other times as agreed.

Documents relied on

1. The maternal grandmother relied on the following documents at final hearing.

   a)Initiating Application filed 11 April 2016;

   b)Affidavit of Ms Guinn sworn and filed 6 July 2018;

   c)Affidavit of Mr D sworn and filed 6 July 2018;

   d)Affidavit of Ms M sworn and filed 6 July 2018;

   e)Affidavit of Ms N sworn and filed 6 July 2018; and

   f)Affidavit of Ms O sworn and filed 6 July 2018.

2. The mother relied on the following documents at final hearing:

   a)Response filed 15 February 2017;

   b)Affidavit of Mr O'Hare sworn and filed in Court on 13 August 2018;

   c)Affidavit of Mr O'Hare sworn and filed in Court on 15 August 2018;

   d)Affidavit of Mr O'Hare sworn and filed 10 July 2018;

   e)Affidavit of Mr E sworn 10 July 2018 and filed 11 July 2018;

   f)Affidavit of Ms F sworn and filed 10 July 2018;

   g)Affidavit of Ms A sworn and filed 10 July 2018; and

   h)Affidavit of Ms P sworn and filed 13 August 2018.

3. A Family Report dated 24 November 2017 was prepared by Ms Q in these proceedings and was also relied on by the parties and the Independent Children’s Lawyer.

The Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

10. The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8]  affirmed the legislative pathway.

    [7] (2007) 36 Fam LR 422, (2006) FLC 93-286

    [8] [2010] HCA 4

Parents vs Non-Parents

1. Parents are not the subject of any preferential treatment nor are they in any special position of advantage pursuant to the Act with respect to parenting orders.

2. The Act does however distinguish between parents and non-parents in various, sometimes very important, ways. In Donnell & Dovey[9] the Full Court held:

   [9] [2010] FamCAFC 15

   [76] The distinction between parent and non-parent first appears in the opening provisions of Part VII, namely ss 60B(1) and (2), which set out the objects of the legislation and the principles underlying those objects…

   …

   [79] The next important, indeed overarching, provision, is s 60CA which provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   [80] It will be noted that there is no reference in this provision to any distinction between parents and non-parents. The child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings.

   …

   [82] It will be seen that s 64B(2) makes clear that parenting orders, including orders for “parental responsibility”, may be made in favour of non-parents as well as parents. The point is reinforced by s 64C, which provides that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person”. Section 65C goes on to provide that a parenting order may be applied for by a parent, a grandparent, the child him/herself, and “any other person concerned with the care, welfare or development of the child”.

   [83] The expression “parental responsibility” is defined by s 61B to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Hence an order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent. However, s 61C makes clear that in the absence of an order of the court or parenting plan, only the “parents” of a child have “parental responsibility”.

   …

   [87] … the legislation makes important distinctions between parents and non-parents. Ultimately, however, orders can be made in favour of either parents or non-parents and, in determining what those orders should be, the best interests of the child remain the paramount consideration.

   …

   [94] … s 60CC, which on its face maintains clear distinctions between a “parent” and a non-parent.

   [95] … the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents[10].

   [97] … in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s).

   …

   [99] …. To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.

   …

   [101] … there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”…. However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.

   [102] … We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.

   [103] On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.

   [104] This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination. It is important to keep in mind, however, that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations”. Therefore, any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.

   [10] Emphasis in original

Issues for Determination

1. The primary issue for determination in this matter is the risk of harm to the children in each of the proposals. The issue of parental responsibility and with whom the children reside and spend time with are also relevant matters for determination.

2. The risks to the children in each of the competing households are significant albeit they are different. In one sense, the Court has to determine the least worst option for the subject children and it is likely that whichever order is made the children’s needs are not likely to be fully met in any event.

Chronology

1. The maternal grandmother was born on … 1975 and is currently 43 years of age.

2. The mother was born on … 1998 and is currently 20 years of age.

3. The mother stopped attending school in 2014. The mother gives evidence that she is “unable to read a children’s book”.

4. The mother gave birth to her first child X on … 2014.

5. X commenced living in the primary care of the maternal grandmother in August 2014.

6. The mother commenced a relationship with Mr Bryan in … 2014 and moved to Town S to pursue that relationship, leaving the child X in the maternal grandmother’s care.

7. The mother returned to the home of the maternal grandmother in … 2015 and then moved with the child X to the home of her Aunt until approximately … 2015.

8. From … 2015 to … 2015 the mother and child X began living with the maternal grandfather, Mr E.

9. In approximately … 2015 the child X was returned to the maternal grandmother’s care by the mother.

10. The mother gave birth to her second child, Y on … 2015.

11. Both children began living with the maternal grandmother on a full time basis in … 2016.

12. On … 2016 the mother was transported to K Hospital where she was held in an emergency ward under section 22 of the Mental Health Act in what the mother described in her cross examination as a “drug induced psychosis”.

13. The mother was released from K Hospital the following day to the care of her father.

14. The mother gave birth to her third child, H on … 2017.

The Subject Children

X

1. X is four years old. He has behavioural issues which no-one is addressing. He swears like the worst of them. He bites, he kicks and he picks on his little sister.

2. X’s behaviour became so disruptive in October 2017 that Interrelate Town R ceased supervised visits between the mother and the children.

3. Interrelate records reported X using words such as “cunt, dickhead, fucker, mother fucker, gronk and dick sucker”.

4. Ms Q in the Family Report noted that X had “a colourful vocabulary” and that he was observed to be aggressive towards his younger sister, his mother and Mr L (the mother’s partner at the time of interviews and the father to H). This aggression was not observed with the maternal grandmother.

5. Ms Q noted that X has not had any paediatric, psychological or play assessments at the time of the Family Report interviews however the maternal grandmother stated she would seek the assistance of her general practitioner before X commenced preschool. The evidence at hearing is that although X commenced preschool in March 2018 the maternal grandmother has not sought any behavioural assessment for X.

Y

1. Y is three years old. She has some developmental delays, an unusual gait and has had at least two grand mal seizures which have been partly investigated at G Children's Hospital.

2. Ms Q notes in the Family Report dated 24 November 2017 that there is some conjecture that Y suffers from foetal alcohol syndrome and that she requires further investigation into this as recommended by her paediatrician in Town R.

3. Evidence has been given by numerous witnesses in these proceedings that Y’s speech is difficult to understand and only those that know her well are able to understand what she is saying. There has been a recommendation by her paediatrician in Town R that she undergo speech therapy. This has not occurred as at the date of final hearing.

Family Report of Ms Q

1. Ms Q reports significant concern in relation to the mother’s history of family violence and abuse perpetrated towards her from all three of her past relationships, that is, the three fathers of her children.

2. The mother told Ms Q that Y was conceived as a result of a sexual assault by Mr Bryan.

3. The mother was candid with Ms Q about her use of illicit substances including cannabis and ‘ice’ however denies any current use of illicit substances. Likewise, the mother explained that in the past she was a heavy consumer of alcohol but does not consume alcohol anymore. The maternal grandmother reported that the mother consumed alcohol to excess during her pregnancy with Y.

1. In her report Ms Q refers to “intergenerational parenting practices” between the maternal grandmother and the mother which has resulted in the need for departmental intervention. She reports that “poor parenting practices have resulted in poor educational outcomes, transience, neglect, identity concerns and trauma”[11] For example, the maternal grandmother gave birth herself to the mother when she was 15 years old.

   [11] Paragraph 30 of the Family Report dated 24 November 2017

2. Ms Q expressed concerns for the mother’s transience since adolescence as well as concerns that she has not sought the assistance of any professionals to help with the trauma she has suffered through her childhood and as a result of the abuse and violence she has endured in her relationships.

3. Ms Q’s evidence in relation to the child X was of concern to the Court. She gave evidence that although X was three and a half years old at the time of family report interviews, he was unable to play with toys in a meaningful way, she said that he would instead throw the toys. She shared similar concerns for the child Y however explained that the concern was that at two years old Y did not know how to interact with the toys at all. Further, Ms Q reported that X’s behaviour during the interviews was disruptive to the point that the waiting area required locking so that he could not escape the premises[12].  

   [12] Paragraph 32 of the Family Report dated 24 November 2017

4. In relation to the maternal grandmother, Ms Q reports that she was child focused during the interview process. She reports that the maternal grandmother was seeking stability for the children and that it was the mother’s mental health incident in … 2016 which prompted her to commence proceedings for the safety and welfare of the children. The maternal grandmother stated that she did not believe that the children would receive this if they were to live with the mother.

5. The maternal grandmother told Ms Q she is worried that the mother is “always just under the radar” with Family and Community Services and that she hopes that “H is safe”. Despite her concerns about the mother’s parenting capacity and ability to keep the children safe the maternal grandmother has not sought any orders in relation to H.

6. Ms Q reports that the maternal grandmother requires significant direction in terms of her caretaking role of the children particularly in relation to X’s behaviour and with Y’s needs.

The Need to Protect

1. The maternal grandmother’s family has a long and significant child protection history. The mother was the subject of Family and Community Services as a child whilst in the care of the maternal grandmother and the two subject children have been the subjects of child protection interventions since birth. The Family Report outlines that there have been 13 reports made to the Department in relation to the subject children and that seven of these reports are substantiated.

2. By way of example, an assessment carried out on the family in February 2014 notes as follows:

   The family are transient and the children have not been attending school and have hardly attended since July 2013. Ms O'Hare is not currently enrolled at school and therefore the family has limited visibility in the Community.

   …

   The family are staying with 15 year old Ms O'Hare’s boyfriend… identified as a PCH in regard to sexual harm of a child in 2011…

   The mother is allowing her 15 year old daughter to have a relationship with a 22 year old man and sharing a house with him. The mother is often away from home…

   All children have hardly attended school in the past 12 months and there (sic) attendance records are predominantly ABSENT since July 2013… The children are protective of the mother and will outwardly lie and say they have been attending school when they haven’t. The children say the mother provides food and supervision however, every occasion when CS has visited the family, the boys have been left on their own including during the current assessment without supervision or food…

   The children are often seen as dirty with poor hygiene. They are left alone for periods of time exceeding 8-10 hours with little or no food…

3. There are no current child protection orders in place.

4. The Court invited the Department of Family and Community Services to intervene in these proceedings on 8 December 2017 however the Department declined to do so.

5. The mother is almost illiterate. She has had trouble at school and learning difficulties which were recognised since she was at least nine years old. Her mother did not get her the assistance she might have needed. The mother has four brothers in the maternal grandmother’s household, two of them are half-siblings. None of her brothers have the equivalent of a school certificate. All five of the grandmother’s children have had many absences from school in the last few years of their schooling, one of them had over 500 days in a period of two and half years. This means he was hardly ever at school.

6. The maternal grandmother has a significant child protection history relating to the care of her five children including poor nutrition, state of the house, inadequate medical treatment and inadequate clothing.

The maternal grandmother

1. The maternal grandmother lives with her three teenage sons, Mr C[13], T and Mr B in a four bedroom home together with the two children X and Y. The maternal grandmother does not have a partner and is dependent on Centrelink payments as a source of income.

   [13] It seems at the time of hearing Mr C was incarcerated

2. The maternal grandmother has an older son, Mr D who currently lives in Town R with his partner Ms N.

3. She does not drive and relies on family and friends to transport her and the children to appointments.

4. The maternal grandmother’s trial affidavit was sadly lacking in a great deal of relevant evidence. She did not disclose in her evidence in chief important matters relating to her children, their criminal records, police involvement, truancy over the years and her own arrest near her home in … 2017 in an incident involving the police and her youngest son, who was being “tasered” by the police for resisting arrest. Her attitude as to why such matters were not the subject of evidence in chief was to the effect of “it has nothing to do with this case. There is no impact on my grandchildren.” For example when the maternal grandmother was cross-examined about one of her children being charged with malicious damage in … 2018 she replied it was “not important”. She also did not consider it important to tell the Court about an arrest of her youngest son in public in the presence of the subject children. The maternal grandmother believes that the police target her children.

5. The grandmother’s home has been described as ‘putrid’ in documents produced under subpoena. The grandmother denies that this is how her home has ever presented. She says it is just messy at times.

6. The evidence by the grandmother that she couldn’t control or influence her teenage children to ensure that any of them finished school speaks of a very poor outcome for her grandchildren, who she is fighting tooth and nail to keep.

7. The maternal grandmother’s lack of ability to provide her daughter with appropriate care and support as a pregnant teenager, who dropped out of school and through her drug and alcohol use ended up living a very transient and dangerous lifestyle including whilst pregnant with her second child, also speaks poorly of future outcome for her grandchildren if they were to remain living with her.   

8. The maternal grandmother has not indicated anything about baby H coming into her care, that is there is no application for him to live with his siblings. There is no evidence as to why no such application has been made by the maternal grandmother in respect of the youngest and most vulnerable of the mother’s children.

The mother

1. The mother was until July 2018, living with the father of her youngest child. She is no longer in a relationship with him. It would seem that her assertion to Ms Q that this relationship was secure and stable was not true. Indeed, it is a relationship that seems to have been marred by violence, just like the mother’s previous relationships.

2. The mother’s evidence in respect of her drug and alcohol use is far from satisfactory. While she asserted in cross-examination that she has not been using any illicit drugs for many months, in the absence of negative drug tests and given her troubled history with drug use, it is difficult to accept that she has indeed given up that lifestyle for good or that she might not be tempted back into it. She has not had an easy life, and from where she is sitting at the moment, it would be easy for her to slip back into old habits of using drugs and drinking excessively. She did so while she was pregnant with Y. She did so after Y was born. She has not been open and honest about her drug use with her mother or her father.

3. The mother’s last partner (the father of her youngest child) had on the eve of this hearing taken baby H. He came into the mother’s home after midnight, called the mother a ‘putrid cunt’ and took the baby. She called the police and now has an Apprehended Violence Order protecting her and the child. The child is still with the father. The mother is waiting for a legal aid grant to apply for a recovery order. If she is able to obtain the grant, she will be embroiled in a further set of proceedings.

The lack of real choice for X and Y

1. The two households which the Court has to decide between do not provide any real choice for X and Y.

2. It is highly unlikely that either the mother or the maternal grandmother will ever read these reasons for judgement. It is also highly unlikely that the maternal grandmother in particular will ever take in the matters which were spoken about at hearing, or that she heard her daughter’s cry for help. Even if she did, the Court’s assessment is that she is not capable of providing that help.

3. The de-facto partner of the mother’s father was a breath of fresh air in the proceedings, as was the paternal grandfather. They appear to be sensible hard working honest people, who are willing to assist the mother be the best parent she can be. The Court accepts their evidence.

4. It is of course untested whether if the mother and her three children live with the paternal grandfather and his family, that family unit will be able to cope with the difficulties which will come from X and Y living in that household. However, it may well be that this is the best option for X and Y, even with all of the permutations as to what could go wrong. 

Views of the children

1. The children’s views which in any event are not known, would not be given any weight as a result of their tender ages and levels of maturity.

Relationship of child with parents and other persons

1. The maternal grandmother has been the primary carer of the two children for some time. It is submitted by the Independent Children’s Lawyer that the children have lived with the mother for a total period of five and a half months and with the maternal grandmother for a total period of two years and nine months.

2. Ms Q observed each of the children with the mother and Mr L. She reported that both the mother and Mr L “lacked the skills to play with X although they tried to interact with Y whose play was limited”[14]

   [14] Paragraph 83 of the Family Report dated 24 November 2017

3. Ms Q noted that the maternal grandmother made “a consistent effort to talk” with X and place boundaries around him, however he would do what he wanted to do.

4. It was noted in the reports from Interrelate Town R that X would not separate easily from the maternal grandmother.  However, it is also noted that when X was a baby the mother (during visits from case workers) appeared to be able to appropriately care for him. This was of course before Y and H came onto the scene.

Parents’ participation in long term decisions, spending time and communicating with child

1. Neither of the children’s fathers participated in these proceedings or have seen the children since their birth.

2. The mother has, due to her drug and alcohol use, up until at least May 2016 failed to participate in making decisions in relation to the children or been able to spend time or communicate with them.

3. Since May 2016 the mother’s capacity to participate in the children’s lives has been limited and the mother’s time with the children has also been limited.

Parents’ obligations towards maintaining the child

1. This is not relevant to these proceedings

Likely effect of any changes in the child’s circumstances

1. There are identified risks in this matter in relation to the maternal grandmother and the mother.

2. The children have spent limited time with the mother even on a supervised basis.

3. Orders for the children to live with the mother will be a significant change to the children’s current circumstances and such arrangements are untested.

4. In the event that the children continue to live with the maternal grandmother there are allegations that the children have been exposed to violence in her home and that she does not attend to the children’s psychological and educational needs and has had similar difficulties with the raising of her own five children. 

Practical difficulty and expense of a child spending time with a parent

1. This is not relevant to these proceedings.

2. Wherever the children live, there is no real practical impediment to the children spending time with either the mother or the maternal grandmother.

Parties’ capacity to provide for the needs of the child, including emotional needs; Attitudes to child and responsibilities to parenthood of parents

1. The Family Report identifies that each of the children face significant ongoing psychological and physical needs. They are both vulnerable children. They are both reported to have complex and behavioural needs.

2. Very little, if anything, has been done by the maternal grandmother to address the children’s very real needs. This is so despite the recommendations in the Family Report but more importantly, despite the assessments which had been received to date with respect to the children. The children have after all, been in the grandmother’s primary care for most of their young life, yet they both present with certain issues which have not been adequately addressed. There is a demonstrated lack of capacity by the maternal grandmother to meet the children’s needs.

3. The Family Report indicated that the mother and her then partner, Mr L, did not have any strategies to deal with X’s problematic behaviours.

4. The children’s ongoing needs will be challenging for any person to care for and it is unknown whether the mother will have the capacity to meet the children’s needs given that to date she has been largely absent from their lives and the lack of demonstrated capacity to date.

Culture, Background and Lifestyle

1. Both the maternal grandmother and mother have significant deficits in their demonstrated capacity to provide stable long term care for the children.

2. The mother has had a significantly transient lifestyle since X’s birth. She has recently been in ‘stable’ accommodation, although there does not seem to have been any real stability in terms of the members of the mother’s household.

3. The maternal grandmother’s home is a place of known uncertainty and bad behaviour by members of that household.

Family Violence

1. The maternal grandmother alleges that the mother has exposed the children to family violence in the past.

2. The mother alleges that the maternal grandmother was violent to her when she lived with her and that there is family violence in the maternal grandmother’s household as between the three teenage sons of the maternal grandmother, the mother’s siblings.

3. The mother has had a series of violent relationships. She has placed herself and her children at risk and had not acted protectively at times towards her children.

Conclusion as to best interests

1. There are significant parenting issues and parenting deficits for both the mother and the maternal grandmother. Neither of the fathers has participated in the proceedings. Neither of the fathers have had any involvement with the children.

2. The mother was a vulnerable teenager at the time she fell pregnant and gave birth to both X and Y. She has had significant drug and alcohol problems which have not been treated. She has simply gone cold turkey and on her evidence, has remained abstinent for some time.

3. The mother’s priorities after X was born were not on her child, but rather seem to have been on her own needs. This could be explained by the mother’s upbringing, lack of good role models in her household, immaturity, level of schooling and capacity to understand the world. It could be explained by her vulnerability, her drug use and her alcohol use. It could be explained in a number of ways. But it cannot be overlooked.

4. At the time of X’s birth and also at the time of Y’s birth it was the maternal grandmother who stepped up and took care of the children. She can be criticised for the level of care she provided, but it may in fact be the best that she was capable of doing. She clearly loves her grandchildren and she took on their care when her teenage daughter was not able to do so.

5. However, it cannot be overlooked either that the maternal grandmother has not acted protectively towards her own daughter at times. For example, allowing her as a 15 year old to be in a relationship with a 22 year old, and even worse, after she gave birth to X, not doing anything to stop the then 16 year old mother from living with a man in his 30s who was known to her as a sex offender. The maternal grandmother did not do anything of substance to help her daughter get out of that violent relationship, which involved drugs and a further pregnancy.

6. After giving birth to Y in … 2015, the mother, baby and placenta all tested positive for ice and cannabis. The mother admitted she used these drugs until a week prior to birth, and she then recommenced using drugs about a month after Y’s birth and continued for some time. At time H was born, the mother’s drug test was clear.

7. Both of the subject children have complex and significant needs.  X is likely to have problems and unless he gets appropriate assistance, he will likely have poor outcomes in life. Y has complex needs. She is presently not in attendance at any day care and she is presently entirely dependent on the maternal grandmother and the other members of her household.

8. The maternal grandmother says to this Court through her case “I might have made mistakes with my children but have grown and learnt”. The Court does not accept this to be established on the facts.

9. The mother’s evidence is that she grew up in an unstable home and that she was not cared for properly. Such evidence is supported by the material which has been tendered. The Court accepts that such was the household the mother grew up in. It accepts that the mother’s home life as a child was marred by transiency and that at times there was not enough adequate food and no proper care. 

10. Unfortunately, the mother seems to have followed in the maternal grandmother’s steps. Since becoming a young parent (very much like her own mother) she has had a transient lifestyle and has demonstrated a lack of capacity to parent her two older children after they were born.

11. Both X and Y have problems. Y needs a global paediatric assessment. The maternal grandmother has not done anything to have the child assessed in any meaningful way nor does she recognise that X has the problems which are objectively apparent. The maternal grandmother is not doing enough.

12. There are no assessments in respect of X. The evidence is woefully inadequate as to what the children’s developmental needs are, what the causes might be and what assistance is available to the parties.

13. The lack of proactive behaviour by the maternal grandmother is concerning.  This is particularly so when looked at in a more global contents of what she did for her own children; the lack of follow up with respect to the mother’s education needs (as a young child) is a prime example of this.

1. The maternal grandmother’s explanation as to why X did not start pre-school as soon as recommended by Family Report is inadequate. It is not a matter which was addressed in her evidence in chief but rather the evidence which is available only arose as a result of cross-examination by the independent children lawyer’s counsel. The Court takes the view that the maternal grandmother obfuscates and does not take responsibility for her lack of proactive action in respect of not only her children but also in respect of her grandchildren.

2. X and Y have been exposed to violence and neglect in the maternal grandmother’s home. The violence relates to their uncles (the maternal grandmother’s sons) and the neglect arises as a result of the maternal grandmother not following through with recommendations to meet basic needs of the children.

3. The mother on the other hand has placed herself and all of her children at risk. She has not acted protectively towards them. She too has been neglectful of their needs.

4. The ability by either the mother or the maternal grandmother to make up for their deficits is a significant unknown.

5. The maternal grandmother has had the opportunity of demonstrating her capacity to meet the children’s needs, she has not done so.

6. While there is some evidence that the mother does have the capacity to positively interact with her children, her capacity to interact with all three of her children at once is highly untested. She is however, willing to place herself in a position where she will be supported by responsible adults who are willing to help her. It is probably the only chance which X and Y have. If the mother fails to take this opportunity, it is likely that her children may all end up in care.

7. The maternal grandfather and his partner are willing to offer the mother a home where she can live with her children, and to support her in every imaginable way. It may be that the reality of having the mother and her children live with them is simply too much. It may be that the reality of having X, Y and H in her care is too much for the mother and that she may not be able to cope. But these are unknowns. And it may be that the mother shows a level of maturity and courage to do what no-one expects of her, and that is to raise her children in a loving and stable home free from violence and drugs.

8. What is known is what is waiting for the children in the maternal grandmother’s home. They deserve more.

9. In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out at the forefront of these reasons.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  16 November 2018