Henry and Oden and Ors

[2019] FamCA 744

FAMILY COURT OF AUSTRALIA

HENRY & ODEN AND ORS [2019] FamCA 744

FAMILY LAW – CHILDREN – interim relocation to Western Australia – mother with history of mental health challenges – child welfare orders in existence but Department consents to child living with maternal grandmother in Western Australia on an interim basis.

Family Law Act 1975 (Cth) ss 60CC, 69ZK

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT: Ms Henry

FIRST RESPONDENT: Ms Oden

SECOND RESPONDENT: Mr Krome

INTERVENER: Department of Child Safety, Youth and Women

FILE NUMBER: BRC 2450 of 2018

DATE DELIVERED: 24 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 20 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M Donnelly
My Legal Crunch

COUNSEL FOR THE FIRST RESPONDENT: Mr R Haddrick

SOLICITOR FOR THE FIRST RESPONDENT: Sambanis Family Law

NO APPEARANCE BY THE SECOND RESPONDENT

COUNSEL FOR THE INTERVENER: Mr G Shoebridge

INDEPENDENT CHILDREN’S LAWYER: Ms R Mannering
Northside Family Law Centre

Orders

UPON FILING BY THE INTERVENER OF ITS CONSENT PURSUANT TO SECTION 69ZK(1)(b) OF THE FAMILY LAW ACT 1975:

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That all previous parenting orders are discharged.

2. That the child, X born … 2011 (“the child”) live with the Applicant maternal grandmother MS HENRY in Western Australia.

3. That the maternal grandmother have sole parental responsibility for the child.

4. That the First Respondent mother MS ODEN complete a comprehensive psychiatric assessment with a psychiatrist, with the psychiatrist to have access to:

   (a)this Order;

   (b)the mother’s historical medical records;

   (c)the psychiatric assessment prepared by Psychiatrist Dr B filed on 25 June 2019;

   (d)the family report prepared by Dr  C filed on 13 June 2019; and

   (e)the Reasons for Judgment delivered by Justice Bauman on 24 September 2019,

   and that the mother follow all recommendations of the psychiatrist.

5. That once the mother has completed the comprehensive psychiatric assessment with a psychiatrist as outlined in Order 4 hereof, and committed to following the recommendations of the psychiatrist, the mother shall spend time with the child during the Western Australian school holidays periods, with such time to be supervised by a suitably qualified professional in a professional setting, and such time not to occur in reasonable proximity of the maternal grandmother’s home environment.

6. That the mother shall be permitted to communicate with the child by telephone each Sunday between 6.30pm and 7.00pm (Western Australia time) and the parties note that given the age of the child the call duration may be less than thirty (30) minutes, with all telephone calls to be recorded.

7. That the maternal grandmother shall initiate the telephone call at the nominated time to the mobile phone of the mother and shall ensure that:

   (a)the mobile phone being used has sufficient power, data and credit;

   (b)the child is placed in a quiet room free from distractions; and

   (c)the child is encouraged to speak with the mother.

8. That the maternal grandmother shall arrange for the child to be engaged with a suitably qualified psychologist to provide support to the child and to monitor her behaviour, particularly after time with the mother.

9. That the maternal grandmother shall have leave to provide to the said psychologist a copy of the report of Dr C filed 13 June 2019 and a copy of the Reasons for Judgment delivered by Justice Baumann on 24 September 2019.

10. That the maternal grandmother arrange for a comprehensive assessment conducted by a suitably qualified professional of the child’s academic ability, intellectual functioning and social and emotional development and act as soon as practicable on all referrals provided for allied health services.

11. That the maternal grandmother arrange for the child to be enrolled at St Joseph’s School, Town E Western Australia.

12. That the maternal grandmother arrange for the child to have a full medical and dental assessment as soon as possible.

13. That the mother be restrained and an injunction issue prohibiting the mother from:

    (a)attending the school the child is enrolled in;

    (b)contacting the maternal grandmother except as provided for in these Orders;

    (c)approaching the home or workplace of the maternal grandmother; and

    (d)contacting any third party health or education provider including any doctors that the child might be referred to or be required to attend upon.

14. That no party discuss these proceedings with the child.

15. That the maternal grandmother shall advise the mother as soon as practicable by email in the event that the child is involved in a medical emergency or suffers a serious medical condition or accident.

16. That the maternal grandmother and the mother only communicate in relation to the child by way of SMS text message or email in matters of an emergent nature.

17. That the maternal grandmother shall provide to the mother on a monthly basis by way of email an update regarding the health, wellbeing and educational progress and development of the child, including providing copies of any medical reports, assessments and referrals.

18. That the mother and maternal grandmother shall keep each other informed of their current email address, mobile phone number (for SMS text message purposes) and advise of any change immediately upon such change.

19. That the Independent Children’s Lawyer have leave to provide a copy of the Reasons for Judgment delivered by Justice Baumann on 24 September 2019 to any health professional otherwise treating the mother, and upon a written request by that health professional to the Independent Children’s Lawyer, the Independent Children’s Lawyer shall have leave to provide a copy of the reports of Dr B and Dr  C

20. That the Application be otherwise adjourned for further directions (including submissions as to any prescribed arrangements for the child to spend supervised time with the mother during the Western Australia end of term four (4) school holidays) to 9.30am on 1 November 2019 in the Family Court of Australia at Brisbane.

21. That the maternal grandmother have leave to appear by telephone 1 November 2019.

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 Henry & Oden and Anor 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 SYDNEY

FILE NUMBER: BRC 2450 of 2018

Ms Henry

Applicant

And

Ms Oden

First Respondent

And

Mr Krome

Second Respondent

And

Department of Child Safety, Youth and Women

Intervener

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. All parties represented before me for an Interim Hearing on 20 September 2019 observed what a complex and sad case that this is and that it requires my interim determination as a matter of urgency.  At the core is a need to decide what interim arrangements are in the best interests of an eight and a half year old girl named X.  At the commencement and considering the limitations which flow from the truncated nature of interim parenting proceedings, where making findings on contested and controversial issues is difficult, I observe what this case is not about at this time, namely:

   a)It is not about trying to fathom the sad deterioration in the family relationships surrounding the mother and, in particular, the estrangement that currently exists between the Applicant maternal grandmother Ms Henry (aged 58 years who lives some two to three hours’ drive from Perth) and her daughter, the Respondent mother, Ms Oden (aged 36 years and living in South-East Queensland);

   b)It is not about the reasons why the biological father of the subject child, Mr Krome, has chosen not to seek a relationship with his daughter or engage in these proceedings;

   c)It is not about the validity of the action of the Department of Child Safety, Youth and Women (“the Department”) in some of their placement decisions and how they had decided the level of their future involvement;

   d)It is not about trying to assess much of the earlier history of the mother that has, on the yet untested records of the police and other authorities, involved allegations at least of:

   i)mental health challenges of the mother (since 2007 after the tragic death of the mother’s first child, Ashleigh) and when the mother was aged 24 years;

   ii)an alleged overdose in 2005 and other examples of suicidal ideation of the mother reported to health authorities;

   iii)a significant car accident involving the mother and the child on the Ipswich motorway in July 2014;

   iv)events involving the mother, alleged past criminal conduct (usually of an aggressive, physical character) that involves police and others at times, resulting in convictions (some not recorded) in December 2016, May 2018 and June 2019 and incarceration of the mother from October 2017 until her release on 7 February 2018;

   v)the rape of the mother in August 2017 and the ongoing medium and long-term effects upon the mother of this serious criminal assault upon her; and

   vi)all the events around 18 September 2018 - an alleged assault by the mother upon a neighbour which resulted in intervention by police and caused the mother to be involuntarily admitted to hospital under an Emergency Examination Authority (“EEA”) and the intervention, finally, by the Department removing the child from the mother on or about 19 September 2018.

2. What this decision is about is interim arrangements that serve the best interests of the child, X, which is the paramount consideration with such interim arrangements to remain in place until the full testing of issues (including, I expect, most of those earlier referred to above) can be undertaken.  Consistent with Full Court authorities like Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637, these Reasons seek to set out a relevant history and, after identifying the competing proposals, those options will be set within the matrix of the primary considerations (section 60CC(2)) and additional consideration (60CC(3)) of the Family Law Act 1975 (“the Act”) as are relevant at this time.  Some of these factors are dealt with in the brief chronology that follows.

Brief chronological history

1. I rely upon statements above that refer to past events, but note the following more recent and relevant context:

   a)Between the birth of X in 2011 to approximately October 2017 X remained in the primary and usually exclusive care of the mother.  Whilst it is true in hindsight that there are some troubling events affecting the mother raised in the material, the Department did not previously intervene.  They were aware of the mother’s challenges from the time of X’s birth;

   b)At times the mother sought and received support from her extended family, particularly the maternal grandmother and other family members who, it seems, were aware of the mother’s vulnerabilities;

   c)After an incident on 18 January 2016 that involved the mother and her stepfather (which the mother says was an act of self-defence) the mother’s relationship with her mother, Ms Henry, broke down and has not been repaired fully.  From January 2016 the mother ceased all contact with her mother and in March 2017 the maternal grandmother moved to live in Town E, Western Australia;

   d)Whilst I am prepared to accept for these reasons that the rape of the mother in August 2017 most likely had a very adverse effect on the mother and has probably contributed to the incident with the police in September 2017 when she acted erratically, shortly after, the mother was charged with a range of offences and, it seems, was refused bail and kept in remand from October 2017;

   e)The mother was in custody from October 2017 to February 2018.  At this time it appears the family in and around South-East Queensland discussed who should care for X whilst the mother was incarcerated and it was agreed, with the mother’s consent, that X should live temporarily with the Applicant maternal grandmother in Western Australia.  Exhibit 8 is a detailed report of discussions on 18/19 December 2017 coordinated by Mr G, the senior team leader with the Department located at the H Child Safety Service Centre.  The report speaks for itself, but, relevantly, it confirms a telephone conversation with the mother at 11.40am on 18 December 2017 as follows:

   “Ms Oden confirmed that she wants X to travel to Western Australia to be cared for by the maternal grandmother (Ms Henry) – this is a family arrangement that she has agreed to with members of her family.  X is booked on a flight to Western Australia tomorrow, and will be accompanied on this flight by her [sic] Ms Oden’s sister Ms K.

   Given the above arrangements, Ms Oden wishes to end the current Care Agreement with Child Safety for X.  Ms Oden said her plan is for X to remain in Ms Henry’s care until Ms Oden is released from prison AND has secured suitable stable housing of her own, AND receiving support with her mental/emotional well-being.  Ms Oden requested that her mother be supported to apply for Centrelink benefits for X – Child Safety agreed to provide Ms Henry with a letter for Centrelink.

   Ms Oden said her criminal matters are scheduled for mention on 11/01/2018 and 16/01/2018.  She believes the charges may be dropped on the grounds that she was of “unsound mind” and suffering from PTSD at the time of the offences.  If not dismissed, it is possible that Ms Oden will remain incarcerated until April/May 2018.  Upon her release, it is Ms Oden’s plan to reside with a friend until she secures her own public housing.  If released on bail, it is likely that her bail conditions will prohibit her from leaving Queensland.  If her charges are dropped, and she is not subject to a bail order, Ms Oden would like X to return to her care in Queensland - but not until after she has secured suitable housing and receiving support with her mental/emotional health.

   Before X is returning to Ms Oden’s care in the future, Ms Oden intends to contact Child Safety to seek advice regarding support to re-integrate X into her household.  Ms Oden was advised that she would need to contact a Regional Intake Service (RIS) to make this request rather than H CSSC as RIS is able to assist with a referral to a non-government agency who can provide this support.”

   The child travelled immediately to Western Australia and began to live with the maternal grandmother.  It shows some insight from the mother that despite her estrangement from her own mother, in the uncertain circumstances existing at the time, she agreed to X living with her mother in Western Australia.

   f)It is clear that after the mother’s release in February 2018 the mother’s support for the child to remain in Western Australia changed.  She filed an Application in the Federal Circuit Court of Australia on 7 March 2018 seeking residence and a recovery Order.  On 2 May 2018 Judge Jarrett ordered the child to live with the mother in Queensland, which the maternal grandmother facilitated by 8 May 2018.  The proceedings then were effectively finalised on 2 May 2018 as the Orders made by Judge Jarrett were final orders;

   g)It is not clear whether Judge Jarrett was aware of proceedings also on foot in the Family Court of Western Australia at this time.  The Applicant maternal grandmother on 12 March 2018 had filed an Application which was subsequently transferred by that Court to the Federal Circuit Court of Australia in Brisbane on 12 June 2018.  It is that Application that initiated the current proceedings before this Court;

   h)On 25 May 2018 the Queensland Magistrates Court dealt with charges against the mother arising from incidents on 1 September 2017, 30 September 2017 and 1 October 2017.  However, more relevantly, after the incident with a neighbour on 18 September 2018 the mother was charged with committing public nuisance and wilful damage.  The mother was admitted under an EEA and the Department then formally intervened by using its authority to place X immediately into the care of the maternal grandfather, Mr L, and his wife, Ms L.  Since 18 September 2018 X has been the subject of state child welfare orders and the mother has spent supervised time only with X, commencing in December 2018 after a gap of some three months.  This, no doubt, has caused grief and distress to the mother and was likely to be confusing for the child;

   i)The Department intervened in these current proceedings and, after the appointment of the Independent Children’s Lawyer (“ICL”) on 16 October 2018; an assessment by Consultant Psychiatrist, Dr B; and a family report by Dr C both funded by Legal Aid Queensland, were prepared and filed.  I will deal with these reports in these reasons shortly;

   j)Sadly, in December 2018 the maternal grandfather, Mr L, suffered a stroke and, being unable to further care for X, she has been the subject of further placement decisions by the Department.  On Friday, 20 September 2019 the Court was informed that the current (non-family) carer was unable to care for the child any longer.

2. This history, summarised as it is, reveals a number of changes in care arrangement that X has had to adjust to and I regard the need to provide some even temporary certainty and stability as critical for this little girl’s development and welfare.  In this context the competing proposals for residence need to be assessed – as difficult as that is on an interim basis.

Competing proposals

1. The Applicant maternal grandmother, by her Application in a Case filed 6 September 2019 seeks orders for the child to live with her in Western Australia, with the child to spend supervised time with the mother in Perth and if the mother has not elected to take up this option the maternal grandmother seeks permission to facilitate supervised time in Queensland during school holidays. The maternal grandmother seeks orders permitting her to enrol the child at D School, Town E, and injunctions pursuant to section 68B of the Act restraining the mother from approaching the maternal grandmother, the child’s school or otherwise contacting the maternal grandmother. The Applicant proposes the child communicate with the mother by telephone each Sunday on various conditions.

2. The mother’s positions as articulated in her Response filed 12 September 2019 seeks a dismissal of the maternal grandmother’s Application and seeks the following order:

   “That this Honourable Court makes no further Interim Parenting Order in respect of the child, X born … 2011, so as not to disturb the continued operation of section 99 of the Child Protection Act 1999 (Qld) which currently grants temporary custody of the child to the Chief Executive of the Department of Child Safety, Youth & Women, as made in Interim Order 5 at the Adjournment of Proceedings for a Child Protection Order by Her Honour Acting Magistrate … in the Brisbane Childrens Court in July 2019.”

3. Counsel for the mother, Mr Haddrick, contended that, of course, his client seeks residence ultimately, but that (perhaps as a result of the final orders made by Judge Jarrett on 2 May 2018) the mother’s position was to contest a Children’s Court proceeding set down for a final hearing on 22 October 2019 and when the Department’s care and protection order is not upheld (as the mother expects will be the result), the child can return to the mother’s care.  I examine the consequence of essentially making no orders “to disturb” the state child welfare orders in these reasons to follow.  The ICL, Ms Mannering, relying upon the expert evidence of Dr B and Dr C, supports the child moving on an interim basis to live with the maternal grandmother in Western Australia.

1. The position of the Department, articulated by Counsel Mr Shoebridge, was unequivocal and clear.  The Department contends it is in the best interests of X to live with the maternal grandmother in Western Australia and further submits, on an interim basis, that the maternal grandmother have an order for sole parental responsibility to enable the maternal grandmother to make decisions relating to education, counselling and medical treatment.

Assessment of mother’s current mental health

1. The history set out in these Reasons reveals the mother has experienced challenges to her functioning since at least X was born, if not earlier.  At times, and on many occasions, the mother’s behaviour has come to the attention of police and public health authorities.  During this period, as well, the mother has had to endure significant stresses and significant grief, loss and violence.  The evidence currently before the Court, apart from the problematic history, includes:

   a)the report and assessment of Dr B arising from a mental health examination conducted on 5 February 2019 with a full briefing of collateral material being presented.  Dr B indicated that the mother presented “with very serious issues of a psychiatric nature” and until the appropriate treatment over at least a five year period has been undertaken Dr B cautiously opined that the mother presents as a risk to the child as her psychiatric issues “create a recurrent concern for impulsive aggressive behaviour leading to potential forensic involvement, suicide attempts and difficulties from coping with should interpersonal relationship conflict reoccur.”  This opinion is contained with the report dated 26 March 2019 before the Court.

   However, an addendum dated 30 May 2019, also before the Court, further opined that if the maternal grandmother did not consume alcohol during the pregnancy with the mother then the mother “cannot have foetal alcohol spectrum disorder” as it seems the mother might have been asserting.  In that case an alternate psychiatric diagnosis could be “a personality disorder with mixed features”;

   b)Psychologist, Dr C, briefed to prepare a family report, conducted interviews and observations of the mother and the maternal grandmother with the child on 11 and 12 March 2019 and, subsequently, spoke to other family members and reviewed collateral information informing her opinions.  Like the opinion of Dr B, the Court is not ultimately bound to accept those opinions or recommendations.  They are likely to be tested at a trial.  Nonetheless, on an interim basis, where the Court should adopt a cautious approach around risk, Dr C’ opinion is that “there are many risks to X’s emotional and physical well-being if she were to remain in the care of the mother” (see paragraph 37.13).  The report writer, having also considered no risks if the child was to live with the maternal grandmother, recommended the child live with the maternal grandmother in Western Australia and that if the mother obtains treatment then supervised time between the child and the mother should occur (see paragraph 38.07);

   c)The Department, of course, had access to significant amounts of material and since the Chief Executive has had (in effect) the child in his care under Children’s Court orders a number of qualified officers of the Department have had regular contact with the mother and the child.  Senior team leader Ms P deposes in her Affidavits before the Court from such information that:

   “16.    The department considers that it is in X’s best interests to reside with her grandmother, Ms Henry and that this will achieve for her long term stability, security and consistency of care.  The department has considered that this will mean a relocation to another state for X.  X is aware that the possibility of residing with Ms Henry in Western Australia is being considered and departmental records consistently reflect X expressing a desire to reside with Ms Henry.  The department considers the delay in achieving this outcome for X is having an ongoing negative impact upon her and that it is detrimental to her emotional wellbeing.  Most recently, the department has received feedback that X has become teary as a result of feeling disappointed and confused as to why she has not yet moved to Western Australia to live with Ms Henry.  It is particularly important for X to have security and stability and certainty of what her future will look like when her already present vulnerabilities are considered.  I am advised the email outlining this feedback will be provided to the parties in this proceeding and a copy tendered to the court in a tender bundle under my name marked Ms P-03.”

   17.      The department continues to be of the view that X’s need for physical and psychological safety is paramount.  To the extent that a move to Western Australia by X will affect contact between X and her mother, it is considered that the reduction in opportunity for a meaningful relationship between X and her mother is of secondary importance.

   18.      The department continues to be of the view that any contact between X and her mother should be fully supervised by suitably qualified professionals in a contact centre environment.”

2. The mother disputes these assessments and relies upon the following reports about which the Court makes some initial observations.  In so doing, the Court acknowledges the submission of Mr Haddrick for the mother that the mother appears to be committing to improving her mental health and receiving treatment and she is confident that in time she will be able to demonstrate the change in her behaviour that is required.  The mother’s “expert” evidence at this time, however, includes:

   a)a report by Psychiatry Registrar, Dr M.  Unlike Dr B, who has been a psychiatrist since 1993, Dr M is currently a trainee registered under RANZCP.  Dr M, at the time of her report on 17 September 2019, has seen the mother on seven occasions; prescribed medication and formed the view that the mother’s diagnosis is “borderline personality traits and major depressive disorder (partly remitted).”  There is no suggestion she has had the benefit of reading the reports of Dr B or Dr C.  It is unclear what history the doctor had taken from the mother.  The report, which is brief, does not give any opinion as to risk.  As a result, it is of little assistance in this form at this stage.  An earlier letter dated 20 June 2019 opined that “on the basis of my interaction with Ms Oden, I see no reason why contact with her child should be limited and feel that her mental state would clearly improve if she was to be allowed increased contact with her daughter.”  For the same reasons as I set out earlier, being unable to apply much weight to the report dated 17 September, I apply those reasons to the opinion expressed by the doctor on 20 June 2019;

   b)the letter from General Practitioner, Dr N, dated 20 November 2018, although offered by a health professional who had seen the mother from 2010 to 2015, is nonetheless of little assistance in its current form.  Again, Dr N did not apparently see the mother between 6 March 2015 and 30 February 2018, but has seen her since then.  It is unclear whether she had any understanding of all the events set out above, some of them which took place during the period of no consultation with this General Practitioner.  Whilst the mother, I am sure, was comforted by the opinion expressed by Dr N that she “has no concerns for X’s health and well-being under the care of her mother”, for the reasons given, coupled with a lack of relevant recent information, I cannot apply significant weight to that opinion; and

   c)similarly, the brief report of Psychologist Ms J dated over 12 months ago (on 15 July 2018), whilst confirming the mother attended all appointments under her mental health plan, is of limited assistance.  Although Ms J says she taught the mother “about regulating her emotions”, events after July 2018 suggest the mother is still having these difficulties.

3. I spent some time analysing these opinions relied upon by all parties – because of the serious affect an order that X living (even temporarily if that be the case) in Western Australia with the maternal grandmother will have on the ongoing contact between the child and the mother.  Having noted that the weight to be applied to the consideration under section 60CC(2)(b) is to be greater than that to be applied under section 60CC(2)(a), namely the benefit to a child of having a meaningful relationship with, in this case, the mother, I assess at this time that the evidence requires a cautious approach needs to be adopted.  I cannot accept the mother is stable and not a risk to X.  I do not find that it is in the best interests of X to live with the mother or to have other than supervised time with the mother because of the risks I have identified and as have been confirmed by the independent experts.

Other issues

1. The mother raises serious concerns about her mother, the Applicant paternal grandmother.  However, these concerns are not supported by the Department’s investigations or the assessment of Dr C.  They can be tested at a further trial in the future.  Furthermore, such complaints are totally inconsistent with the mother’s position in December 2017 to support the child moving to Western Australia to live with her mother, even though the mother and maternal grandmother were in some level of estrangement at that time as well.

2. In response to Mr Haddrick’s passionate and well-structured argument that the Court should not make orders (knowing that the Department has indicated its approval for the Court to do so under section 69ZK of the Act), I am not persuaded this is in X’s best interests. It will create more uncertainty for the child, even though, of course, she will have the benefit of an hour of supervised time with her mother each week. I am sure that a benefit to the mother seeing her daughter will be to give her greater support as she moves through her mental health issues. Nonetheless, although I would not term this as a “secondary consideration” the primacy of the child’s best interests require the child to live in Western Australia.

3. I accept the child living in Western Australia will essentially sever physical contact between the child and the mother initially.  Although the Department says there are some concerns about even the current one hour weekly supervised visit, I accept no time occurring is not ideal, but in my view, as already indicated, that detriment must yield to the greater certainty, stability and security offered by the orders sought by the Department that X live with the maternal grandmother in Western Australia.

4. As Mr Haddrick fairly acknowledged, the trial listed before the Children’s Court of Queensland on 22 October 2019 for one day is unlikely to finalise the matter in that Court and it is more likely than not for a number of reasons, including statutory considerations, to “drag on”.  That finalisation is best achieved in due course by orders and processes offered under the Family Law Act1975 by a Court with jurisdiction under that Act is, in my view, apparent.  I acknowledge the submission made by Mr Haddrick that ultimately the mother is possibly going to be disadvantaged by the fact that if the child has had months living in Western Australia with the maternal grandmother a Court, properly briefed, might find it difficult to change the “status quo”.

5. Considering the age of the child and the extensive period of time the child has lived with the mother (even under some real difficulties) I am not satisfied that such an argument will necessarily yield to the child’s best interest if it is, at that stage, on all the evidence, in the best interests of the child to live with the mother.

Conclusion

1. It is in the best interests of X that she live on an interim basis with the maternal grandmother in Western Australia and I shall so order.  I agree with the submissions of Mr Shoebridge that the maternal grandmother should have sole parental responsibility on an interim basis, noting the maternal grandmother’s intention to enrol the child in E School, Town E.  I generally make orders consistent with those sought by the Department (set out in “Ms PO4” of the exhibits tendered by the Department).  I accept financial impediments coupled with the terms of the mother’s probation order (see Exhibit 9) will restrict the mother being able to travel to Western Australia for a period.  In my view, telephone time should occur as proposed by the maternal grandmother.

2. However, I am not prepared to prescribe any particular supervised time other than in a general way proposed by the current proposal of the Department.  That is because there is uncertainty as to whether, in fact, there will be the capacity of the maternal grandmother to come to Queensland.  It seems to me that the child’s first option is to settle in Western Australia and then to consider, perhaps in a few weeks’ time, whether it is possible over the Western Australian school holidays to make arrangements for the child to come to Queensland.  There are obviously significant costs in doing so.  I accept the mother is likely to be extremely distressed by these orders.  How that affects her ongoing treatment and functioning is uncertain.

3. A period of time to allow the child to settle into her change of residence with her grandmother should take place before, as I say, the prescribed orders for supervised time are made.  I raised during submissions that, with the child to now live with the maternal grandmother is Western Australia, it might be appropriate for the proceedings to be transferred to the Family Court of Western Australia.  Mr Donnelly for the maternal grandmother indicated his client did not see a need to transfer the matter.  I am not sure that was a considered submission.  I propose to list this matter before me for further directions on 1 November 2019 at 9.30am, at which time I will take further submissions as to:

   a)the transfer of the proceedings to the Family Court of Western Australia;

   b)any possible opportunity for X to spend supervised time with the mother in Queensland during the Western Australia school holidays at the end of term four, and

   c)further directions for case management of these matters, including a listing for trial.

4. The orders appearing at the commencement of these Reasons are in X’s best interests on an interim basis at this time.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 September 2019.

Associate: 

Date:  22 October 2019