Jenkins and Daniels and Ors

[2018] FCCA 976

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENKINS & DANIELS & ORS [2018] FCCA 976

Catchwords:
FAMILY LAW – Parenting – dispute between parents and maternal and paternal grandmothers about where child lives and what spends time with order is in his best interests – where significant risks of harm in the care of father, mother and paternal grandmother – long history of litigation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

MRR v GR [2010] HCA 4

Applicant: MS JENKINS

First Respondent: MR DANIELS

Second Respondent:	MS A JENKINS
Third Respondent:	MS DANIELS
File Number:	WOC 1179 of 2012

Judgment of: Judge Altobelli

Hearing dates: 7-10 August 2017, 13-14 November 2017 and 12-13 March 2018

Date of Last Submission: 11 May 2018

Delivered at: Town B

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: Acorn Lawyers

The First Respondent appeared in person

Counsel for the Second Respondent:	Ms Reynolds
Solicitors for the Second Respondent:	Lukes Law
The Third Respondent appeared in person
Counsel for the Independent Children’s Lawyer:	Mr Jackson
Solicitors for the Independent Children’s Lawyer:	Maguire & McInerney

ORDERS

(1)That all previous orders be discharged.

(2)That the Maternal Grandmother have sole parental responsibility for the Child [X], born on 2009

(3)That the Child live with the Maternal Grandmother.

(4)That the Child spend time with the Mother at the discretion of the Maternal Grandmother.

(5)That the Child not spend time with the Father.

(6)That the Child spend supervised time with the Paternal Grandmother on at least four occasions each year and not exceeding six occasions each year, supervised by CatholicCare Town B or such other privately funded supervised contact service as agreed between the Maternal Grandmother and Paternal Grandmother, and to facilitate such supervised time the Maternal Grandmother and Paternal Grandmother must:

(a)Within 7 days, contact CatholicCare Town B or such other privately funded supervised contact service as agreed (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the Child spends with the Paternal Grandmother;

(b)attend the assessment;

(c)comply with any appointments made by the Contact Centre for supervised time;

(d)comply with all reasonable rules of the Contact Centre; and

(e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.

(7)If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the Paternal Grandmother is to spend time with the Child on at least four occasions each year and not exceeding six occasions each year, at such times and for such duration as nominated by the Contact Centre, and failing such nomination, as agreed between the Maternal Grandmother and Paternal Grandmother.

(8)That the Paternal Grandmother must pay the reasonable fees for the supervision on each occasion of supervised time.

(9)That the Maternal Grandmother shall ensure that she keeps the Mother informed as soon as it is reasonable practical of:

(a)Any medical problems or illnesses suffered by the Child whilst in her care;

(b)Any medications that have been prescribed for the Child;

(c)Any specialist medical appointments;

(d)Any significant social, school or religious functions which the Child is to attend;

(e)The details of any sporting body(ies) that the Child are involved in;

(f)Any changes to the Maternal Grandmother’s residential address, being also the residence of the Child;

(g)Any other important matter relevant to the welfare of the Child.

(10)The Maternal Grandmother provide the Mother with full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child.

(11)That the Mother be permitted to enrol the Child in sport with the consent of the Maternal Grandmother.

(12)That the Mother is entitled to attend all events involving the Child including, but not limited to:

(a)Sporting fixtures;

(b)Extracurricular activities that allow for parent attendance or participation; 

(c)School functions and events that allow for parental attendance or participation.

(13)The Maternal Grandmother forthwith do all things necessary to arrange for her and the Mother to participate in therapeutic intervention to assist them with issues related to the Child no longer having contact with the Father, whereupon:

(a)The Maternal Grandmother shall forthwith contact Relationships Australia or such other qualified family therapist for the purpose of engaging in family therapy, thereafter;

(b)The Maternal Grandmother shall provide confirmation in writing to the Mother of the family therapist engaged pursuant to Order 13(a) above, and thereafter;

(c)The Maternal Grandmother and the Mother do all things and acts necessary to complete enrolment or intake of the therapist nominated.

(d)The Maternal Grandmother to do all things and acts reasonably required to ensure, if recommended by the family therapist, the Child attends the appointments scheduled with the nominated therapist; and

(e)The Maternal Grandmother and the Mother do all things and acts reasonably requested of them by the therapist.

(14)The therapeutic intervention shall extend to the Paternal Grandmother’s participation.

THE COURT NOTES THAT:

A.    The Orders for supervised time between the Child and the Paternal Grandmother do not bind the Contact Centre (as it is not a party to this case).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1179 of 2012

MS JENKINS

Applicant

And

MR DANIELS

First Respondent

MS A JENKINS

Second Respondent

MS DANIELS

Third Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about [X] who was born on 2009 and is 9 years old.  For most of [X]'s life there has been litigation about where he should live and how much time he should be spending with the important members of both his father's and mother's family.  At the moment, and pursuant to interim orders of this Court, [X] lives with the Maternal Grandmother, and spends time with both his mother and Paternal Grandmother under conditions.  He currently spends no time with his father.

2.The Applicant in this case is his mother, the First Respondent is [X]'s father, the Second Respondent is the Maternal Grandmother, and the Third Respondent, the Paternal Grandmother.  At all relevant times, [X] was well represented by an Independent Children’s Lawyer.  These Reasons for Judgment explain why the Court has decided that [X] should continue to live with the Maternal Grandmother, spend time with his mother under conditions, spend minimal amounts of time with the Paternal Grandmother on a supervised basis, and spend no time with his father.

3.At the Final Hearing the Applicant was represented by Mr Alexander of Counsel, the First Respondent appeared in person, the Second Respondent was represented by Ms Reynolds of Counsel, the Third Respondent appeared in person, and the Independent Children’s Lawyer was represented by Mr Jackson of Counsel.

Background

4.The Maternal Grandmother is 65 years old, the Paternal Grandmother is 60 years old, the Father is 31 years old and the Mother is 29 years old.

5.On 12 May 2016, the Court made interim orders in relation to where [X] should be living and what time he should be spending with the other significant persons in his life.  The orders made on 12 May 2016 are reproduced on the First Schedule to these reasons.  A number of important observations need to be about those orders:

a)Most of the orders were made by consent as between the Mother, the Independent Children’s Lawyer, and the Grandmothers.  The orders were made on an undefended basis so far as the Father is concerned.  He had not participated in the proceedings at that time, and, as will be seen below, his participation in the subsequent hearing was inconsistent, and sporadic, mainly because he was evading police at the relevant times.

b)The Maternal Grandmother had sole parental responsibility for [X] who was to live with her.

c)Not only was there an order that [X] spend no time with his Father but an order was made under s.68B of the Family Law Act 1975 (hereafter referred to as ‘the Act’) restraining him from approaching the Mother, or the Maternal Grandmother, or, indeed, the Paternal Grandmother during any times that [X] spent with her.

d)The Mother was allowed supervised time with [X], with the supervision to be provided by the Maternal Grandmother.

e)[X] was to spend time with his Paternal Grandmother.

f)The Mother, Maternal and Paternal Grandmothers were to share information in relation to [X].

6.In my Reasons for Judgment at that time, I described the matter as "a complex parenting case".  Indeed, it was.  Perhaps the true complexity of the case was not fully apparent at the time.  After eight days of hearing, the full complexity of the matter is now apparent to the Court.

7.In those Reasons for Judgment, the Court adopted the extensive chronology that had been prepared by the Independent Children’s Lawyer at the time.  The Court noted that the chronology drew on all of the materials then available to the Court.  The chronology, the Court noted, was relatively uncontentious.

The Chronology

8.The chronology referred to in the preceding paragraph is reproduced below.  The Court makes findings of fact in accordance with the matters set out in this chronology.  A number of preliminary observations should be made in this regard.  No party to the proceedings cavilled with the allegations of fact contained in the chronology.  In any event, each of the assertions can be traced back to the source that is referred to in the third column of the chronology.  Where there are contentious matters, these matters will be discussed below.  Where the source refers to subpoenaed documents, those documents are in evidence, and the Court has satisfied itself as to the accuracy of the representation made in the chronology.  The chronology is, of course, only current to March 2016.  There are many relevant subsequent facts, which the Court will discuss below.  The chronology is long, and detailed, but, this Court believes, it is both an effective and efficient way of dealing with the evidence, and the Court's findings that ground the orders to be made in this case.

DATE	EVENT	SOURCE
1950	Second Respondent Maternal Grandmother Ms A Jenkins born.	Resp. M.G Aff. 19/11/15 Para 1
1957	Third Respondent Paternal Grandmother Ms Daniels born.	Resp. P.G Aff.10/03/16 Para 1
1987	First Respondent Father born.	App. M. Aff 20/12/12 Para 4
1988	Applicant Mother born.	App. M. Aff 20/12/12 Para 3
May 1996	Applicant Mother’s parents separate.	Dr A Report, para 19.
25/03/1997	Justice Barker orders Mother Ms Jenkins and her brother Mr M should live with their Father noting that Ms Jenkins’ Mother being the Maternal Grandmother in these proceedings “has the clear capacity to be a good mother to her own children but is unable to separate her own needs from the needs which her children have as individuals”. His Honour concluded that “if the father obtained residence the children’s contact with the Mother would not be impeded but the reverse would be true if the mother obtained residence”.	Dr A Report, para 20.
30/06/2006	Ms B spoke with Mr D (Father’s Brother) – Mr D advised that his Mother (Paternal Grandmother in current proceedings) had a drinking problem and Mr D reared his younger brothers until he left home.	NSW Corrective Services, Case Note Report , pg 2
11/12/2007	Father advised that his mother (Paternal Grandmother) “is a (occupation omitted), remembers mother drinking allot and not being home much due to working long hours as she was raising two children on her own”. Sic.	NSW Corrective Services, Case Note Report , pg 11 of 84.
20/12/2007	Dr R stated that Father “has drug induced psychosis due to extensive drug use”.	NSW Corrective Services, Case Note Report, pg 18 of 84.
2008	Mother and Father commence their relationship after meeting at Rehabilitation Centre.	App. M Initiating Application 20/12/12 Dr A Report.
06/06/2008	Paternal Grandmother charged with unlicensed driving and middle range PCA. She received a section 10 conviction and disqualification for 6 months. No further criminal history after this date.	Police Subpoena Documents, Pkt 15.
2009	Child [X] born.	Resp.P.G Aff.10/03/16 Para 2
15/06/2009	FACS notes identify that the Mother has a history of depression and bipolar disorder diagnosed in 2007, during her lows she describes her lack of motivation and withdrawal. Mother disclosed she misused drugs at ages 14 – 18 mainly cannabis and ice.	FACS Subpoena
2009	Mother admitted to Private Clinic.	Resp. M.G Aff. 19/11/15 Para 37
2010-2011	Mother involved with Brighter Futures	App. M. Aff 20/12/12 Para 21
02/12/2010	Father charged with Common Assault – Sentenced “Bond s9: 12 Months Not to assault, molest, harass, threaten or otherwise interfere with Ms Jenkins”.	Criminal History – Bail Report – Corrective Services Subpoena, Vol 4.
18/02/2011	Mother granted an AVO protecting her from the Father.	App. M. Aff 20/12/12 Annexure D
March 2011	Mother & Father Separate	App. M. Aff 20/12/12 Para 30
December 2011	Mother & Father live together for a month whereby Mother alleges Paternal Grandmother “was required to come into room several times to stop Mr Daniels from exploding into rage…”	App. M. Aff 20/12/12 Para 36
25/07/2011	Father charged with common assault and contravention of AVO protecting Mother. Father sentenced to a total of 100 hours Community Service. The Police Facts Sheet notes the following:- “The child has awoken and starting crying. The accused yelled at the victim to attend the child. At the time the victim was feeling unwell. The accused has thrown two objects at the victim in an attempt to raise her….The accused has grabbed the victims right knee and punched the victim 2-3 times with his left fist. This has caused the victim to feel pain and resulted in the victim suffering bruising to her knee.”	Criminal History – Bail Report – Corrective Services Subpoena, Vol 4. Police FACTS SHEET dated 25/7/11, Corrective Services Subpoena, Vol 4.
2012	Father assaulted Mother and produced knife whilst holding child. Father was charged with common assault & contravention of the AVO protecting the Mother and sentenced to total of 300 hours of Community Services.	App. M. Aff 20/12/12 Para 38, Police Subpoena, Criminal History – Bail Report – Corrective Services Subpoena, Vol 4.
March 2012	Mother and Father separated.	App. M Initiating Application 20/12/12
08/12/2012	Father removes child from Mother’s Care.
20/12/2012	Mother files an Initiating Application.	Initiating Application
21/12/2012	Recovery Order Granted.	Order
17/02/2013	Mother’s AVO expired.	App. M. Aff 15/06/13 Para 65
22/02/2013	Father and Mother commence living together and attempt to re-establish their relationship. Father was allegedly smoking cannabis on a daily basis.	App. M. Aff 15/06/13 Para 6 & 8.
30/04/2013	Mother calls Police to assist with removing Father from her house.	App. M. Aff 15/06/13 Para 14
01/06/2013	Father posted videos of himself and Mother being involved in sexual activities on YouTube.	App. M. Aff 15/06/13 Para 28 Facts Sheet 19/09/14 – Corrective Services Subpoena, Vol 4.
11/06/2013	Father refuses to return child to Mother	App. M. Aff 15/06/13 Para 37
18/06/2013	Father was charged with “Stalk/intimidate intend fear physical etc harm (Domestic – T2)” but was not sentenced as no evidence offered.	Criminal History – Bail Report – Corrective Services Subpoena, Vol 4.
17/06/2013	Mother files Initiating Application & Recovery Order issued.	Initiating Application filed 17/6/13
29/07/2013	Final AVO made protecting Mother from Father for a period of 12 months. This Order was extended on 6 March 2014 for two years and expired on 5 March 2016.	Facts Sheet 19/09/14 – Corrective Services Subpoena, Vol 4.
22/08/2013	Mother & Father issued with random chain of custody request. No response from either parent.	ICL
07/01/2014	Mother files an Application in a case.	Application in a case
13/02/2014	Father files a Response.	Response to Initiating Application
13/02/2014	Mother & Father issued with random chain of custody request. No response from either parent.
18/02/2014	Mother & Father issued with random chain of custody request. Mother tested positive to cannabis and benzodiazepines. Father tested negative.
27/02/2014	Mother & Father issued with random chain of custody request. No response from either parent.
24/03/2014	Mother & Father issued with random chain of custody request. No response from either parent.
9/04/2014	Father served with Variation of AVO restraining Father contacting Mother and Mother contacting Father. Police Facts sheet note Father continued to contact Mother.	Facts Sheet 19/09/14 – Corrective Services Subpoena, Vol 4.
April 2014	Mother & child commence living at Maternal Grandmother’s home. Maternal Grandmother alleges child’s behaviour improves.	Resp. M.G Aff. 8/04/14
9/04/2014	Mother & Father issued with random chain of custody request. No response from either parent.
15/04/2014	Mother & Father issued with random chain of custody request. No response from either parent.
22/04/2014	Orders made at the Federal Circuit Court that the Maternal Grandmother care for the child.	Resp. M.G Aff. 19/11/15 Para 2, Orders dated 22/04/14
May 2014	Due to alleged disagreements between Mother & Maternal Grandmother about parenting the Mother moves out and the child remains with the Maternal Grandmother.	Dr A Report, para 7.
19/05/2014	Mother & Father issued with random chain of custody request. No response from either parent.
16/06/2014	Mother & Father issued with random chain of custody request. No response from either parent.
1/07/2014	Father attended Mother’s home and pushed through front door, Mother requested he leave, Father pushed Mother away from door several times. Mother went to bedroom, Father put his hands around her neck while yelling abuse at her.	Facts Sheet 10/09/14 – Corrective Services Subpoena, Vol 4.
7/07/2014	Mother & Father issued with random chain of custody request. Both responded negative.
July 2014	Father charged with common assault and contravention of AVO. Father sentenced to 4 months imprisonment.	Police Subpoena
22/08/2014	Mother & Father issued with random chain of custody request. No response from either parent.
17/09/2014	Mother & Father issued with random chain of custody request. No response from either parent.
13/10/2014	Offender Intake Data Form notes that Father has been using cocaine, speed and ice since the age of 16 years old.	Probation & Parole Service – pkt S24
6/11/2014	Father attended Town A Local Court and was given Bail conditions to report to Police each Sunday from 7.11.14 until 5.12.14. Father failed to report on 9.11.14, 16.11.14 and 23.11.14.	NSW Police Subpoena Records produced 18.3.16
7/11/2014	Father’s Pre-Sentence Report states the following regarding “attitude to offending” –“Mr Daniels displayed limited insight into his offending behaviour and appeared unable to see how his actions may have impacted the victim.”	Probation & Parole Service, Pre-Sentence Report – pkt S24
13/11/2014	Mother & Father issued with random chain of custody request. No response from Mother. Father produced negative result on 21/11/2014.
17/12/2015	Mother & Father issued with random chain of custody request. No response from either parent.
06/01/2015	Mother & Father issued with random chain of custody request. No response from either parent.
26/01/2015	Father attends Mother’s home. Mother asked Father to leave and he refused. Sat down and smoked ice pipe. He remained until following morning when he pushed the Mother in lounge room and fell onto a fan. Father then hit the Mother across cheek and pushed her onto bed. He left thereafter.	Facts Sheet 29/01/15 – Corrective Services Subpoena, Vol 4.
29/01/2015	Father charged with four counts of contravening an AVO and one count of common assault.  Father was sentenced to 5 months imprisonment for common assault and 3 months imprisonment for contravention of AVO.	App. M. Aff 23/02/15 Para 27, Police Subpoena
19/02/2015	Paternal Grandmother files an Application in a case.	Application in a case
23/3/2015	Father charged and sentenced for 12months and non-parole of 8 months for the following:- 1. Actual offence – Use carriage service to menace/harass/offend 2.    Common Assault DV- T2 3.  Common Assault – contravene prohibition/restriction in AVO 4.   Drive recklessly/furiously or speed/manner dangerous 5.   Contravene prohibition/restriction in AVO 6.   Common Assault DV – T2 7.    Contravene prohibition/restriction in AVO 8.   Actual offence – contravene prohibition/restriction in AVO.	Criminal History – Bail Report – Corrective Services Subpoena, Vol 4.
20/04/2015	Orders made in the F.C.C. providing for the Maternal Grandmother and Paternal Grandmother to intervene in proceedings.	Orders dated 20/04/2015
02/06/2015	Mother issued with a transport infringement notice for travelling on train without a ticket. Advised that she “had no money”.	NSW Police Subpoena Records produced 18.3.16
20/06/2015	Child presenting with behaviours appearing consistent with ADHD.	Ms S Subpoena
26/06/2015	Mother to commence Watershed day program however she failed to attend.	Watershed Day Program Subpoena
29/06/2015	Mother issued with random chain of custody request. No response.
06/07/2015	By Consent between the Mother, Maternal Grandmother & Paternal Grandmother Orders made for the Mother to spend unsupervised time with the child each weekend from Friday until Sunday. The paternal grandmother was to spend time with the child during times when the Mother was spending time with the child as agreed between the parties. The Mother was not to introduce the child to her partner Mr G until he provided a clear drug test. Mr G did not provide a test.	Orders 6.7.15
09/07/2015	Mother attended Watershed Day Program. Mother admitted that amphetamines and tobacco were causing her the most concern. Mother expressed a wish to stop but identified that she found it difficult.	Watershed Day Program Subpoena
17/07/2015	Watershed contacts Mother due to failure to attend again and Mother advised that she was sick.	Watershed Day Program Subpoena
26/08/2015	Initial Contact Form states that Mother’s principal drug of concern is ice.	Watershed Day Program Subpoena
02/09/2015	Mother issued with random chain of custody request. No response.
03/09/2015	[X]'s Psychologist noted: -     At school [X] has some trouble completing work -     Mother was supposed to attend session however she didn’t even though Grandmother sent a reminder to her the night before. Mum replied “having a jug of cocktails in Town B”	Ms S Subpoena
16/09/2015	Mother involuntarily discharged due to lack of motivation as she failed to attend total of 22 sessions at Watershed Day Program.	Watershed Day Program Subpoena
24/09/2015	Mother & Father issued with random chain of custody request. No response from either parent.
2015	Respondent Father released from prison.	App.M.Aff 03/12/15 Para 19 Probation & Parole Service Community Corrections
2015	Applicant Mother breaches Court Orders made on 06/07/15 by introducing the child to Mr G (Mother’s partner at time) prior to him providing a clean urinalysis.	Resp.P.G Aff.10/03/2016 Para 16
28/10/2015	Mother & Father issued with random chain of custody request. No response from either parent.
23/11/2015	Mother, Maternal Grandmother and child attend for interviews with Dr A.	Dr A Report dated 14/12/15
25/11/2015	Paternal Grandmother and Father attend for interviews with Dr A	Dr A Report dated 14/12/15
11/12/2015	Paternal Grandmother, Father, child, attend for interviews with Dr A	Dr A Report dated 14/12/15
Late 2015	Applicant Mother alleges separation from Mr G.	Resp.P.G Aff.10/03/2016 Para 15
03/12/2015	Mother admits to using methamphetamine on 8 October 2015.	App.M.Aff 3/12/15 Para 25
15/12/2015	Father failing to report in accordance with probation requirements.	Probation & Parole Service – pkt S24
16/12/2015	Orders made for release of Dr A Report dated 14 December 2015.	Order 16/12/15
15/01/2016	Police Incident Report notes that Mother reported a breach of AVO by the Father to Police. Police checked train station CCTV footage and stated “CCTV footage shows the incident in its entirety and the Breach of AVO”. Police incident report states Father was waiting for Mother & child at train station. When Mother & child approached Father “called out his name engaging in conversation and hugging him.” Mother alleged that she did not want to cause a scene or aggravate the accused so she stood nearby while this took place but continually stated that they had to leave.	NSW Police Subpoena Records produced 18.3.16
26/01/2016	Domestic Violence incident occurred between the Applicant Mother and the Respondent Father. The Maternal Grandmother alleged that the incident took place at the Paternal Grandmother’s residence however the incident took place at the Mother’s home when the Father broke in through the window. The Mother alleges a burn to her leg however the Police did not identify any injury.	Resp.P.G Aff.10/03/2016 Para 7, Resp.M.G Aff.09/02/2016 Para 4 NSW Police Subpoena Records produced 18.3.16
27/01/2016	Mother attended Town B Police Station regarding the incident on 26/01/2016 stating that when the Father entered her house he asked her to hold a backpack with stolen items and alleged that the Father took her mobile phone.	NSW Police Subpoena Records produced 18.3.16
1/02/2016	Dept. of Corrective Services Case Note states “Offenders (Father) parole order expired 29 January 2016 after a 4 month period. Review of case notes indicate that offender displayed borderline response to supervision, had several missed reporting dates and generally failed to contact service to rearrange. Offender also failed to contact service during last week of supervision despite several attempts by supervising officer. Was referred to psychologists in community though offender appeared reluctant to engage in any ongoing intervention. Any future periods of community based sentencing would need to be closely assessed given recent response.”	Probation & Parole Service – pkt S24
2/02/2016	Mother & Father issued with random chain of custody request. No response from either parent.
10/02/2016	Matter listed for mention in W.F.C.C. and short term interim agreement reached that child’s time with Mother will be supervised by Maternal Grandmother.
10/03/2016	Mother admits to drug use approximately 2 months prior.	App.M.Aff 10/3/16 Para 4
4 April 2016	Matter listed for Interim Hearing	Orders
17 August 2017	Matter listed for Final Hearing	Orders

9.In my interim Reasons for Judgment, I made the observation at paragraph 3 that:

Even a cursory examination of the chronology reveals the dysfunction that has been a part of [X]'s life, up until the time that he went into the Maternal Grandmother's care in April 2014.

10.The further observation is made that even though the dysfunction in [X]'s life ceased when he went into his Maternal Grandmother's care, the dysfunction in both the lives of his Mother and Father continued, and, indeed arguably continues presently.

11.I made the observation at paragraph 4 of the interim Reasons for Judgment that both [X]'s parents have struggled with drug and alcohol abuse.  There is little evidence before the Court to reassure it that the situation has changed so far as the Mother is concerned, and there is no evidence to suggest that anything has changed so far as [X]’s Father is concerned.  There is reason to be hopeful as regards the Mother.

12.I also observed that the "Father has engaged in violent behaviour".  The evidence before the Court indicates that this has continued, with the most recent incident of violence against the Mother being in January this year.  The significance of this event it is exacerbated by the fact that it took place during the hearing of this matter, between part-heard dates.

13.Moreover, at paragraph 4 of my reasons, I made the observation that as at the time of the interim hearing:

The Father was at large, with warrants out for his arrest.  The Father has been imprisoned, released from jail on parole, and will almost certainly return to jail if and when the police apprehend him.

14.Nothing appears to have changed.  It was the common position of all parties at the Bar table on the last day of evidence that the Father remained at large, and probably would face imprisonment if arrested.

15.A number of other relevant observations may be made about the chronology.  The entry dated 25 March 1997 refers to orders made by Barker J, but in fact the reference should be to Baker J of the Family Court of Australia.  The issue of the relevance of Baker J’s decision, and the subsequent appeals from his decision, may be dealt with briefly, and at this juncture so that it does not distract from more relevant issues.  The Court had available to it a number of important documents relating to the litigation between the Maternal Grandmother and the Maternal Grandfather in relation to the Mother and her brother.  The judgments of Baker J, the Full Court, and indeed subsequently the High Court of Australia, were all made available to the Court.  Some of the expert evidence relied on in that case was also made available.

16.The significance of a number of Baker J’s findings were emphasised in the Mother's case, and in the Father's case (during his limited participation).  As part of both the Mother and Father's case that [X] should live with the Paternal Grandmother, not the Maternal Grandmother, reliance was placed on findings by Baker J that the Maternal Grandmother (the mother in the proceedings at the time) would not, in effect, facilitate an ongoing relationship between the children and their father should the children be ordered to live with her.  The argument made was, in effect, that in the same way as Baker J had made adverse findings against the Maternal Grandmother, the Court would make similar adverse findings against the Maternal Grandmother.  And, specifically, that if [X] continued to live with her, she would not facilitate his ongoing relationship with both his father and Paternal Grandmother.  This issue can be dealt with succinctly.  No person should have held against them an adverse finding made over 20 years ago, even when that finding was made by a distinguished jurist such as Baker J.

17.The present case will be decided by reference to the evidence presented in this case, and not evidence presented in another case two decades ago.  As it turns out, based on the evidence before this Court, the Court will find that the Maternal Grandmother has well-founded reasons for not supporting [X]'s relationship with his father, and had appropriate reservations in relation to facilitating his relationship with the Paternal Grandmother.

18.To the extent that a submission that can be inferred from the matters set out above is that the Maternal Grandmother lacked the capacity to support [X]'s relationship with the Mother, in this case, the Court categorically rejects the same.  Such submission, if made either by inference or explicitly, is plainly inconsistent with the evidence before the Court.  Indeed, the Maternal Grandmother's persistence in facilitating [X]'s relationship with his mother, despite the latter's sometimes chaotic lifestyle, is to be lauded.

19.The chronology contains some references to the issue of alcohol abuse by the Paternal Grandmother.  The Court finds, not only based on the chronology, but on the evidence of the Mother and Paternal Grandmother, that the latter does drink to excess at inappropriate times.  There is no suggestion that the Paternal Grandmother is unable to control her alcohol consumption in the presence of [X], or whilst she has been responsible for his care.  The Court has no concerns that if the Paternal Grandmother were to have [X] in her care, on a supervised or unsupervised basis, she would be able to control her consumption of alcohol, and ensure that she was not under the influence at that time.

20.The Court records its serious concerns, however, about the inappropriateness of the Mother and Paternal Grandmother not only drinking together, but drinking to excess, and doing so during the currency of these proceedings, and in between part heard dates.  As the evidence will demonstrate, the most recent manifestation of this resulted in a physical scuffle between them.

21.The Court's greatest concern, however, is the Paternal Grandmother's seeming lack of insight.  She knew, or must reasonably have known, that the Mother's consumption of alcohol was a significant issue in this case given her history which included drug and alcohol abuse.  The Paternal Grandmother must have known, or should reasonably have known, that this was an issue that was relevant to the Mother's parenting capacity.  The evidence indicates that instead of abstaining in the Mother's presence, she did quite the opposite.  The Paternal Grandmother might reasonably have felt that her own drinking could be compartmentalised.  After all, she asserts, and the Court accepts, that whatever alcohol she consumes does not affect her highly responsible role as a (occupation omitted).

22.There is no suggestion, for example, that the Paternal Grandmother does not function in anything except an exemplary fashion in her professional role.  The real issue is the lack of wisdom and insight in failing to see the broader implications of her behaviour.  It is clear that the Mother occasionally struggles with consumption of alcohol.  That is, in substance, her own evidence.  By drinking with the Mother, the Paternal Grandmother normalised that behaviour, rather than seeking to change it and provide a role model for the Mother.

23.The chronology refers to findings made over 10 years ago in relation to the Father's drug induced psychosis and extensive drug use.  The Court finds that the Father's drug use continued in the decade after the finding was made, and, in all likelihood, continues on an ongoing basis.

24.The chronology refers to documents pointing to the Mother's mental health issues, inferentially linked to her own drug use commencing at age 14.  The Mother's erratic behaviour since that observation (made in 2009) suggests a continuing struggle with mental health issues.

25.The chronology refers to Father's long history of violent and antisocial behaviour, and, in particular, violence directed towards the Mother.  There is ample evidence for the Court to conclude that the Father's violence could be characterised as coercive and controlling.  He was able to subordinate the Mother's will to his own.  He controlled what she did, and, indeed, who she was.  The evidence indicates that he continued to do so up until January 2018 during the course of these proceedings.  The Court finds that he has so systematically managed to subordinate her will to his, that despite injunctions and apprehended violence orders and periods of imprisonment, he continues to be a risk to the Mother, and, therefore, to his own son.  The events in January 2018 clearly indicate that the Mother has not yet recovered from the insidious pattern of violence and abuse to which she has been subjected to for almost a decade.  Regrettably, the Court will reluctantly conclude that the Mother herself is presently unable to protect [X] from his father, and her parenting capacity has been so compromised by the dysfunctional and violent relationship she had with the Father, that the Mother herself is a potential risk to [X].

26.The Court finds that whenever the parents were issued with a request by the Independent Children’s Lawyer to provide a random chain of custody drug test but failed to do so, the failure was because they believed that to have provided a drug test would have the confirmed the presence of illicit substances.

27.In relation to the Mother's drug use, whilst the Court notes that the Mother admitted to drug use early in 2016, the Court notes the evidence before it of clean drug tests provided by her since then.  However, as will be seen below, there was admitted drug use in July 2017. 

Procedural History

28.This matter has a very long and complex procedural history.  A very useful aide-mémoire was prepared by the solicitor for the Maternal Grandmother, and is reproduced in the second schedule to these reasons.  What will become apparent from even a cursory study of the document is that the history of the proceedings go back to December 2012.  By 2014, [X] was living his mother at the home of the Maternal Grandmother, and [X] was spending time with his father supervised by the Paternal Grandmother.  In 2014, because of the dysfunction in the lives of both the Mother and the Father, [X] transitioned into the Maternal Grandmother's care, with [X]'s time with his mother to be supervised by the Maternal Grandmother.

29.By January 2015, the Court made an interim order that the Maternal Grandmother have sole parental responsibility for [X], for [X] to live with her, and for time with his parents to be suspended pending compliance with drug testing.

30.By April 2015, the Paternal Grandmother had also intervened in the proceedings.

The Proposals

31.The Mother’s proposal evolved during the course of the hearing.  By the final day of the hearing, the Mother proposed that she and the Maternal Grandmother share parental responsibility, that [X] live with the Maternal Grandmother until July 2018, and that she have unsupervised weekend time with [X].  From July 2018, however, [X] was to live with the Mother, she would have sole parental responsibility, and [X] would spend time with the Maternal Grandmother on weekends and during school holidays.  [X] would spend no time with his father.  [X] would spend time with the Paternal Grandmother as arranged by his mother.  In her written submissions, filed 16 April 2018, her proposal seems to be that [X] come into her care by April 2019.

32.The Mother's proposal at the end of the hearing warrants comment by this Court.  It was, with respect, an extraordinary proposal to make in view of the evidence before the Court.  To propose that [X] would be living with his Mother, who would have sole parental responsibility from July 2018, completely ignores the compelling evidence in this case about the Mother's own ongoing struggle to be a consistent, reliable, and "good enough" mother to [X].

33.Moreover, and curiously, the Mother's proposal in November 2017 was that parental responsibility be shared between the Mother and both Grandmothers, and that [X] live with the Paternal Grandmother, but spend time with the Mother, and Maternal Grandmother, but no time with the Father.

34.In August 2017, the Mother's proposal was that [X] live with the Maternal Grandmother, and spend each weekend with the Mother, with one weekend at the Maternal Grandmother's residence, and the other weekend at CatholicCare, Town B.  She proposed there would be no time between the Father and [X], and that [X] spend time with the Paternal Grandmother once each month.

35.The Father's proposal in his Response filed February 2014 was that [X] live with him and spend time with his mother at the home of the Paternal Grandmother, day times only, twice a week.  The Father was represented at the time the Response was filed.  He was representing himself during the course of those days of the hearing in which he participated.  The Court concludes, based on interactions between the Bench and the Father, that he would, in fact, have preferred for [X] to live with the Paternal Grandmother, and to spend regular but unsupervised time with him.  He provided no written submissions.

36.The Father's proposal likewise cannot go without comment.  It beggars belief that he proposed in 2014 that [X] live with him (given the chronology referred to above), or that he proposed that [X] spend unsupervised time with him in 2017.

37.The Maternal Grandmother's proposal at the hearing was that she have sole parental responsibility, and that [X] live with her.  [X] would spend time with his mother as agreed with the Maternal Grandmother, but supervised by her, or by another approved person.  [X] would spend no time with his father, and supervised time with the Paternal Grandmother at a supervised contact centre.  By the time of written submissions, however, it was proposed that there be no time with the Paternal Grandmother.

38.The Paternal Grandmother's proposal was, at the conclusion of the evidence, that [X] live with her, that parental responsibility be shared between the Grandmothers and the Mother, that [X] spend time with the Mother and Maternal Grandmother, but with the Mother's time to be supervised, and that [X] spend time with his father at a supervised contact centre.  In her written submissions, however, she proposed that [X] spend time with her unsupervised “every second or third weekend” as well as during school holidays. 

39.The Independent Children’s Lawyer’s proposal was that the Maternal Grandmother have sole parental responsibility for [X] and that [X] live with her.  [X] would spend time with his mother at the Maternal Grandmother’s discretion.  The Independent Children’s Lawyer proposed that neither the Father, nor the Paternal Grandmother spend any time with [X].  The order proposed by the Independent Children’s Lawyer is reproduced in the third schedule to these reasons. 

The Evidence before the Court

40.The Mother relied upon the following material:

a)      Initiating Application, filed 17 June 2013;

b)      Affidavit of Ms Jenkins, affirmed and filed 23 March 2015;

c)      Affidavit of Ms Jenkins, affirmed and filed 2 August 2017;

d)      Affidavit of Ms Jenkins, affirmed and filed 9 March 2018;

e)      Affidavit of Mr C, affirmed and filed 28 February 2018;

f)      Case Outline, filed 4 August 2017; and

g)      Written submissions filed 16 April 2018.

41.The Father relied upon the following material:

a)      Response, filed 13 February 2014;

b)      Affidavit of Mr Daniels, sworn and filed  13 February 2014; and

c)      Affidavit of Mr Daniels, sworn and filed 24 April 2014.

42.The Maternal Grandmother relied upon the following material:

a)      Response, filed 16 June 2017;

b)      Notice of Risk, filed 16 June 2017;

c)      Affidavit of Ms A Jenkins, affirmed and filed 17 July 2017;

d)      Affidavit of Ms A Jenkins, affirmed and filed 9 March 2018;

e)      Case Outline, filed 31 July 2017; and

f)      Written submissions filed 19 April 2018.

43.The Paternal Grandmother relied upon the following material:

a)      Response filed 18 July 2017;

b)      Notice of Risk, filed 18 July 2017;

c)      Affidavit of Ms Daniels, sworn 4 July 2017 and filed 18 July 2017; and

d)      Written submissions filed 11 May 2018.[1]

[1] The Paternal Grandmother’s written submissions contained many factual assertions which the Court had to ignore.  This is no criticism of the Paternal Grandmother, who was representing herself.

44.The following documents were tendered during the final hearing:

Date	Exhibit No.	Tendered by (eg. A/W, R/H)	Description of Exhibit/MFI
7.8.17	A1	A/M	Proof of Evidence by the Applicant affirmed 7.8.17
13.11.17	ICL1	ICL	Psychologists report by Dr B
14.11.17	PG1	PG	Photos of child
MG1	MG	MG’s account for mother and PG’s time with child
12.3.18	ICL2	ICL	Region 1 Area Health Service
ICL3	ICL	Sydney Local Health - Handwritten document dated 20.3.2001
ICL4	ICL	Typed document dated 25.5.2009
ICL5	ICL	Rehab Centre
ICL6	ICL	NSW Police
ICL7	ICL	Cops Record dated 26.1.2018
ICL8	ICL	FACTS Sheet – NSW Police
ICL9	ICL	Hospital document
ICL10	ICL	Letter from Dr H
ICL11	ICL	Town D Health Centre
ICL12	ICL	Cops Records
13.3.18	ICL13	ICL	Text messages between mother and PG
A2	A/M	NSW Police documents
MG2	MG	FACS vol2
MG3	MG	NSW Police
MG4	MG	NSW Police documents
MG5	MG	NSW Police
MG6	MG	NSW Police
MG7	MG	Town B Local Court documents
MG8	MG	Department of Justice documents
MG9	MG	Justice Department
MG10	MG	NSW Justice Department
MG11	MG	Justice Department
MG12	MG	Watershed Day Program
MG13	MG	Women’s Domestic Violence Services
MG14	MG	Town G Medical Centre
MG15	MG	(omitted)
MG16	MG	Ms S documents
MG17	MG	Ms S
MG18	MG	Dr B documents
MG19	MG	NSW Police

The Applicable Law

45.The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

46.The objects and principles of Part VII are set out at s.60B:

60B  Objects of Part and principles underlying it

(1)    The objects of this Part are to ensure that the best interests of children are met by:

(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)    parents should agree about the future parenting of their children; and

(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)    to maintain a connection with that culture; and

(b)    to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)    to develop a positive appreciation of that culture.

47.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

61DA  Presumption of equal shared parental responsibility when making parenting orders

(1)    When making a parenting order in relation to a child, 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 for the child.

(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)    family violence.

(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

48.If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)    If:

(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a)    the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b)    the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)    how far apart the parents live from each other; and

(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)    the impact that an arrangement of that kind would have on the child; and

(e)    such other matters as the court considers relevant.

49.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

50.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

51.A little later in the judgment the High Court said:

13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

52.At [15] the High Court emphasised the need for a practical approach:

15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

Credit Findings and General Observations about the Witnesses

53.This is a case where it is, regrettably, necessary to make findings in relation to credit.  The Court is most conscious of the emotional pain that it potentially inflicts when making judgments about parties and witnesses in cases before it.  The Court must nonetheless discharge an important public function of deciding cases according to law, and exercising the wide discretion given to it having regard to the evidence presented before it.  In order to discharge the important responsibility the Court has, it must sometimes make difficult decisions in relation to the evidence given by witnesses.

54.The Mother was the first to give evidence in this case.  One must remember that her proposal was that, within a very short timeframe, [X] would live with her and she would have sole parental responsibility.  Inherent in her proposal was an assertion as to the reliability of her evidence, and the integrity of her parenting capacity.

55.The Mother’s evidence was unreliable.  She was frequently unresponsive and evasive in cross-examination.  There were glaring inconsistencies in her evidence.  For example, in her affidavit affirmed 2 August 2017, under the heading Concerns for Paternal Grandmother’s Mental Health, she gave evidence at paragraph 74 – 77 of the Paternal Grandmother staying with her, at the Mother’s home, in 2009, and admitting to a mental health admission in the past for self-harm issues.  She said: 

I have personally witnessed a number of self-harm incidents by the Paternal Grandmother.  She slashed her wrists whilst sitting at the table at her home.

56.Moreover, the Mother referred to another occasion when:

I attended her home and she had cut her wrists and there were about 40 pills scattered over the table.

57.In her affidavit, the Mother expressed her support for [X] to spend supervised time with the Paternal Grandmother. 

58.On 7 August 2017, the first day of the hearing, and the first day of the Mother’s cross-examination, the Mother was given leave to rely on a proof of evidence which became exhibit A1.  What this document does is, in effect, to completely recant and recast the evidence referred to above.  The Mother says, for example, that there were two aspects of the evidence which are untrue.  She explained that she had not personally witnessed self-harm incidents by the Paternal Grandmother.  However:

I did attend her home in about 2014 and witnessed the aftermath of an incident where I saw a large number of pills scattered over the table and blood, but I did not then, and have not otherwise, witnessed self-harm incidents.  I did remove the pills and bandaged the arm of the Paternal Grandmother … 

59.Moreover, the Mother expressed the view in her proof of evidence that the Paternal Grandmother’s time with [X] did not need to be supervised.

60.The Mother explains, in her proof of evidence that the evidence in question was contained in an earlier affidavit but should not have been included in the affidavit of 2 August 2017.  The Mother then seeks to explain the very specific date for the last self-harm incident (16 May 2014) referred to in the earlier affidavit, not the 2 August 2017 affidavit.  She explains this by reference to information given to her by the Maternal Grandmother.

61.The issue of the Paternal Grandmother’s mental health is an important one and has already been discussed in the context of the chronology above.  In reality, there are two affidavits in which the Mother gives the same evidence about the facts which give rise to concerns about the Paternal Grandmother’s mental health.  The attempt to recant this evidence was unconvincing.  When challenged about this in cross-examination, the Mother was unresponsive and evasive.

62.Of particular concern to the Court is how this attempt to recant on evidence illustrates the issue of the Mother’s shifting alliances between her mother and the Paternal Grandmother.  The Court’s strong impression is that the Mother was prepared to say things to each of the Maternal and Paternal Grandmothers that she thought might strengthen her alliance with each but provide the other with material to use in this Court case.  Whether the Mother was naïve, mischievous, or manipulative in so doing is not clear to the Court. 

63.Both Grandmothers would have done well to reality test everything that the Mother was telling them.  Instead, they seemed to have accepted everything the Mother told them about the other Grandmother.  The clearest example of this is, from the Court’s perspective, the Mother’s evidence of the alleged deficiency in the Maternal Grandmother’s parenting of [X] from 2014 onwards.  The Mother expressed concern about [X]’s medication, his lack of treatment, his seeming enmeshed relationship with the Maternal Grandmother etc.  These concerns appeared to have been expressed to the Paternal Grandmother and amplified in the Paternal Grandmother’s own mind such that the latter became a committed party in this litigation.

64.As the Mother’s concerns about the Maternal Grandmother’s care of [X] was systematically tested in cross-examination, what became apparent is that the Mother was not just a very poor historian of events generally, but was an inconsistent and irregular presence in [X]’s life during the relevant periods.  The Mother’s lack of consistency in [X]’s life is explicable by reference to her ongoing struggle with drugs, alcohol, and a very violent relationship with [X]’s father. 

65.What is of concern though is what seems to be the Paternal Grandmother’s unquestioning acceptance of everything the Mother told her about the supposed inadequacies of the Maternal Grandmother’s care of [X], without any discernment or reality testing.  But the converse was true, as well.  In all likelihood, the Mother greatly exaggerated the nature and extent of the Paternal Grandmother’s alcohol use such that the Maternal Grandmother became convinced of the risk that this posed to [X]’s welfare.  Perhaps the Maternal Grandmother too could have been more discerning of what the Mother was telling her.

66.Another aspect of the Mother’s evidence that is plainly unreliable is her evidence about drug use. 

67.The Mother was aware, or should certainly have been aware, of the issues raised against her about her drug abuse.  Quite appropriately, she sought to reassure the Court in what was then her trial affidavit of 2 August 2017.  At paragraphs 101 and 111 of the said affidavit, she deals with her drug issues, under the heading Rehabilitation. 

68.She deposes to entering the Watershed Detoxification Program on 14 June 2016 and completing that five-day program.  She explains that she then commenced the extended program for a further eight days, observing that that program was helpful to her.  She said that she commenced a full-time drug and alcohol rehabilitation program at Suburb P, entitled “We Help Ourselves”, on 23 June 2016, but left the program on 7 July 2016 as the nature of the program was not a therapeutic community model which she had been previously been engaged with at Watershed.

69.The Court accepts that the Mother does not depose in her affidavit, or expressly represent to the Court, that she was no longer taking drugs.  However, the only reasonable interpretation that can be given to the evidence in question is that it was an implied representation that the detoxification program that the Mother had undertaken was, in fact, successful.  In any event, if the Mother had been using drugs, there was a clear onus on her to disclose that to the Court, so that it might make an order in the best interests of [X]. 

70.In cross-examination on the first day of the hearing, 7 August 2017, Counsel for the Maternal Grandmother asked the Mother whether she still used ice, and she responded, “Yes, a month or so ago.”

71.At paragraph 134 of the said affidavit, the Mother categorically states:

I confirm I am currently drug free.

72.The Mother’s evidence about her drug use was plainly unreliable.  When further cross-examined about why she did not go back into rehabilitation after 2016, she openly acknowledged that she should have.  She said, quite insightfully, that her “drug addiction was a symptom of an underlying mental health issue”.  It was put to her that, in light of her own evidence, this case had commenced in 2012, but she had not yet been able to overcome her issues. 

73.The Mother explained that she had been seeing a counsellor, Ms P, but, even so, that had not prevented her using both drugs and alcohol to excess at times.  Indeed, she agreed that on 27 July 2017, shortly before the commencement of the hearing, she had rung the Paternal Grandmother in a drunken state, accusing her of various things. 

74.The Mother’s evidence about the risk of harm posed to [X] from the Father’s family violence is likewise unreliable.  At paragraph 86 of her trial affidavit, the Mother deposes:

I say [X] is not at risk of exposure to family violence in my home.

At paragraph 87, she deposes:

I better understand the effects domestic violence has on children.  I will not put [X] in that position again.

75.Again, the only inference that can be drawn from the Mother’s evidence is that she was well aware that this was a major issue in this case.  Her evidence sought to address that issue and reassure the Court.  The Mother’s affidavit of 9 March 2018 is quite inconsistent with her evidence referred to above.  In this affidavit, the Mother explains that, on 25 January 2018, the Father turned up to her home uninvited, knocking on the walls, and yelling out, “Open the door, let me in”.  She asked him to leave.  He refused.  He asked her to come in just to have a shower, and then he would go.  At paragraph of this affidavit, she deposes:

After I knew he wasn’t going to leave, I opened the door and let him have a shower as I didn’t want to escalate the situation.

76.She then deposes that he did not leave after the shower.  He slept in the spare room.  She thought he would leave the next morning.  He did not.  She started to panic.  She tried to leave, but he physically restrained her.  He took her money, saying, “I’m going to buy drugs”.  He took her keys and locked her in the house.  After he left, she jumped out of her front bedroom window and caught a bus to the beach where she called the domestic violence hotline.  They facilitated the intervention of the police.  She gave a statement.  When the Mother, accompanied by the police, re-entered her property, they found an architectural drafting table that had been smashed to pieces as well as a hard drive from the security cameras at the home, and the modem, removed. 

77.The Mother was cross-examined about this evidence.  She explained her actions as trying to prevent escalation of the situation.  She thought it was too risky to have simply left the home and call the police.  She said:

I just went into survival mode. 

and then left at the earliest time she could.  It is quite possible, the Court accepts, that the Mother did just go into survival mode.

78.The Mother was then cross-examined about what she had told both the Paternal Grandmother and Maternal Grandmother about the incident on 25 – 26 January.  She denied that she had told her own mother that the Father had actually stayed there for four days.  She denied that that the Mother had told the Paternal Grandmother about this incident. 

79.The Mother agreed, however, that at an earlier time she went out Christmas shopping together with the Father to buy presents for [X].  She agreed there were telephone calls between them.  She accepted that, in hindsight, she could have called the police at an earlier time.  She denied telling the Maternal Grandmother that she had asked the Paternal Grandmother to intervene, in order to get Mr Daniels out of her home.  She did agree, however, that she was advised by her own mother to text the Paternal Grandmother in order to get the Father’s stuff out of the home.  She did so.

80.The Mother did agree with the Maternal Grandmother’s evidence that the Mother had told her that the Father rang the Mother whilst the police were there, and made admissions about his conduct.

81.What is becoming apparent, even from the cross-examination examined so far, is that the Mother’s involvement with the Father extended beyond 25 and 26 January 2018, and included Christmas shopping either before Christmas, or at that time. 

82.The cross-examination continued and the Mother was asked whether she thought that she was pregnant last month, i.e. in February 2018.  She agreed.  It was put to her that she was in fact concerned that the Father was the father of the baby.  The Mother agreed.  The Mother agreed that she had sexual intercourse with the Father and that this took place 25 November 2017.  She discussed this with the Paternal Grandmother.  The Mother recently experienced a miscarriage. 

83.Further in cross-examination, the Mother agreed that she was intimate with the Father during the period that he entered her house and remained there on 25 – 26 January 2018.

84.The discussion of the evidence in the preceding paragraphs obviously has more than one purpose.  In the present context, what it demonstrates to the Court is the unreliability of the Mother’s evidence.  At paragraph 87 of her affidavit of 2 August 2017, she categorically deposed:

I better understand the effects domestic violence has on children.  I will not put [X] in that position again. 

85.Her actions, admitted in cross-examination and indeed in her own affidavit, provides the Court no reassurance that the Mother’s deposed comments are correct. Despite orders protecting her under s.68B of the Act, as well as bail conditions, as well as apprehended violence orders, the evidence indicates that the Mother has spent time with the Father, including her having sexual intercourse with him on at least two occasions during the recent currency of this hearing.

86.The Court asks rhetorically:  what reassurance does it have from the Mother that if [X] were placed in her unsupervised care, that she would not likewise allow the Father back into her life even on an intimate basis?  The answer is:  the Court has no reassurance from the Mother’s evidence.  The Mother’s evidence is, regrettably, unreliable in this regard.

87.If the Mother’s evidence can be described as unreliable, the Father’s evidence could only be described as pervasively unreliable.  Indeed, the Court must reluctantly conclude that the Father is a pathological liar.  His perception of historical events is grossly distorted.  His accounts of his violence towards the Mother are minimalised.  His professions of understanding of how his behaviour might have had an impact on his son are grossly minimised.  The Father was pervasively unresponsive and evasive in cross-examination.  The more he was confronted with the more reliable and objective evidence contained in the business records of New South Wales Police, probation and parole etc, the more he sought to obfuscate and evade. 

88.To be fair to the Father, he was representing himself and has unquestionably had a very difficult life. He was diagnosed with oppositional defiant disorder as a young teenager and has been involved in extensive antisocial and criminal behaviour.  At one point in cross-examination, he said that his last ice use was in late 2016, but later he agreed that his last use was with the Mother two months ago, thus placing it in about June 2017.  Indeed, he explained that he only uses ice when he is with the Mother. 

89.The Court finds the Father’s evidence to be unreliable.  His denials about family violence and drug use cannot be accepted by the Court. 

90.The Maternal Grandmother gave evidence.  For the most part, she was cooperative, courteous, and consistent in her evidence.  She appeared to give her evidence frankly and credibly.  Her evidence betrayed a clear lack of trust of the Paternal Grandmother’s historical care and future capacity to care for [X].  As foreshadowed earlier in these reasons, the Maternal Grandmother can be criticised for questioningly accepting what the Mother said about the Paternal Grandmother.  It is also possible that the Maternal Grandmother has minimised her own consumption of alcohol in the home, and possibly not correctly represented to the Court the nature of her relationship with the person called Mr M with whom she shares accommodation but denies having a relationship with.  Nonetheless, the Court accepts the evidence of the Maternal Grandmother. 

91.The Paternal Grandmother also gave evidence.  She clearly struggled with dates and her recollection of past events seems to be in general terms only.  The Paternal Grandmother’s historical evidence was not entirely reliable.  She was a feisty witness, very self-confident, but often combative with those seeking to question her in cross-examination.  She was frequently unresponsive.  She ignored warnings from the Bench about the manner in which she was giving evidence and how the submission could be made that this detracted from the credibility of her evidence.  She was excitable at times, and also lapsed into histrionics at times.  She was very defensive about her historical role in the parenting and care of [X], before the Mother and the Father separated.

92.Despite these concerns, which do undermine the weight that can be given to the Paternal Grandmother’s evidence, her motives in pursuing the proceedings are sound.  She genuinely believes that [X] is not thriving in the care of the Maternal Grandmother.  To use her words: 

he has lost four years of his childhood, that he will never get back again

and:

he has lost his spark.

93.The critical issue about the Paternal Grandmother is whether her evidence about her own son is trustworthy.  The Court finds that it is not trustworthy.  The Paternal Grandmother loves [X], but she loves her son as well.  That is understandable.  She should not have to choose between her son and grandson.  But the Court has to be satisfied that the Paternal Grandmother, firstly, believes that there is a risk of harm to [X] that is presented by her son and, secondly, that she has the capacity to prioritise [X]’s needs to be protected from his Father, against the Paternal Grandmother’s love for her son and belief that he is a good father to [X], and who presents no risk of harm to him.  The Court cannot be so satisfied, for reasons that will be elucidated below.

94.Like the Maternal Grandmother, the Paternal Grandmother was far too willing to unquestioningly accept anything that the Mother reported to her about [X]’s care.  The Paternal Grandmother’s mistrust for the Maternal Grandmother is reciprocal. 

The Evidence of Dr A

95.Dr A’s single joint expert report is dated 14 December 2015 and was based on interviews conducted with the relevant parties in November and December 2015, as well as having access to all of the documents available to the Court as at that date.

96.Dr A’s executive summary appears at page 5 of her report, and warrants reproduction here:

EXECUTIVE SUMMARY:  EVALUATION OF ASSESSMENT ISSUES

Issue	Evaluation
1)   Any wishes expressed by the  child any factors that would affect the weight the Court should place on those wishes;	[X] asks for time with his father and wants his parents to be friends. His affectional ties should be honoured but his risk evaluations are not objective due to his age and cannot carry determining weight
2)   The nature of the relationships between the child and each of the children’s parents and with significant other persons;	[X] values all his attachments. He longs for closeness with males and paternal kin. The maternal grandmother wants to dismiss all paternal kin from [X]’s life. Paternal kin distrust m/g/p but acknowledge her place in the family constellation.
3)   The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from either of the children’s parents;	Repeated change of residence would be very disruptive. He would grieve (and probably resent) permanent separation from either parent, particularly if he could not understand the need.
4)   The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;	The intrinsic characteristics of each parent impedes his/her ability to prioritise and meet the child’s needs. The maternal grandmother meets community standards
5)   Any physical and or psychological abuse that the children have been or are likely to be subjected to;	No physical child abuse reported. The parenting style of m/g/m is construed as psychological abuse by paternal kin, whereas [X] is unlikely to view it that way before adolescence.
6)   Any ill-treatment, family violence or other abusive behaviour that is directed towards the children by a member of the child’s family  and the likely impact of this upon the child;	Family violence by the father plausibly alleged. Exposure to parental conflict undermines attachment security in general Exposure to FV can cause lasting neurological harm as well as deviant socialisation.
7)   Each parents attitude to the child and to the responsibilities of parenthood and their capacity to provide to for the needs of the child;	Inadequate. Both have behaved with social irresponsibility previously. Both would rely on the practical and material assistance of their families to meet [X]’s care needs.
8)   Any psychological and or psychiatric condition which either parent may possess and the potential impact the same has had or may have upon the children’s ongoing welfare and development;	Both parents show maladaptive personality traits and significant social maladjustment. There is potential for deleterious impact on [X] if entrusted to the care of either.
9)   Recommendations as to any benefit the parties or the said children may derive from attending a suitable program of such counselling;	Father may benefit from RA Taking Responsibility program or equivalent. Both parents may benefit from mentalization-based treatment or similar long term psychotherapy for Personality Disorder
10)   Any further matter the Court Expert deems necessary.	Child welfare concerns should be viewed in 2 x 2 matrix: urgent/non urgent x important/unimportant

97.Dr A’s opinion is found at paragraphs 144-151 of her report:

OPINION

144. Currently residence with the maternal grandmother is the best option for ensuring [X]’s safety and consistent day-to-day care. Living with the father or in any environment to which the father has unfettered access is deemed to pose a risk of harm (toxic stress, deviant socialization) to [X]. The mother has not yet demonstrated that she can respond consistently to [X]’s needs in a stable, orderly, home-environment completely free from substance abuse and conflictual, chaotic domestic relationships.

145. No need for an immediate change of residence emerged from this assessment.

146. It would be in [X]’s interests to return to live with his mother if she could satisfy the Court she has addressed all child welfare concerns adequately. In the interim there should be regular mother-child contact.

147. If the mother cannot satisfy the Court that it would be safe to restore [X] to her for the 2017 school year then [X]’s placement with the maternal grandmother will be adequate for meeting his safety and care needs through primary school, but inadequate for honouring all his affectional bonds. 

148. If the mother has not meet conditions for restoration by the end of the 2016 school year, and if the evidentiary material shows that psychological harm has resulted to [X] from the care of the maternal grandmother over the same period, then the paternal grandmother’s application could be reconsidered. Other suitable kinship carers (for example Ms K, Mr R, Mr D) might be invited to join these proceedings.

149. It will be beneficial to [X] if the paternal grandmother, uncles and cousins are permitted to spend time with him, starting as soon as possible. For example if [X]  were to visit his mother every second Friday pm-Sunday pm it may be feasible for him to spend one day every third or fourth weekend with his paternal grandmother, Uncle Mr R and cousins, with handovers at the home of Ms Jenkins. If [X] is likely to play soccer or football in 2016 consideration would need to be given as to whether it was better to make this a Saturday or a Sunday, in order to accommodate his matches. If [X] were to spend one week during one of the term breaks or one week in the Christmas vacation with his paternal grandmother there would be no reason to oppose him travelling with her to visit his Uncle Mr D or going on a short holiday trip with his Uncle Mr R and his cousins – subject to any checks or safety stipulations the Court deems necessary.

150. Before supervised father-son visits at a children’s contact centre could commence Mr Daniels should have demonstrated to the Court that he does not use psychoactive drugs, engage in aggressive or anti-social activities, can behave respectfully towards maternal kin and has engaged in the Taking Responsibility Course at Relationships Australia (1300364277) and with an appropriate counsellor (Men’s Referral Service 130076649).

151. Both parents should be required to complete a course of long-term psychotherapy to address the maladaptive personality features which impede their parenting capacity. Leave should be granted for this report to be released to their treating clinicians.

98.This report was released to the parties on 16 December 2015, and thus all parties have had in excess of two years to consider the report, and its potential implications on them.

99.Paragraph 20 of Dr A’s report is important in light of her cross-examination.  The paragraph deals with the 1997 decision of Baker J in the Family Court of Australia, adverted to earlier in these reasons.  In cross-examination Dr A conceded that this information did have an impact on her assessment of the matter.  Whilst Dr A’s evidence in cross-examination in this regard will be discussed below, paragraph 20 will be reproduced at this juncture:

In his published judgement 25 March 1997 The Honourable Justice ER Baker ordered a change of residence for Ms Jenkins and Mr M (then living with their mother) and reasonable access with their mother Ms A Jenkins – against the recommendation of the ICL and contrary to the expressed wishes of the younger children, who were deemed by expert witnesses to have close, loving relationships with their mother. His Honour’s reasoning was that Ms Jenkins “has the clear capacity to be a good mother to her children but is unable to separate her own needs from the needs which her children have as individuals” He concluded she was unable to cope with teenagers. Psychiatrists Dr R and Dr W did not identify any psychiatric condition in either parent which would contraindicate the allocation of parental responsibility. On the basis of aggregated evidence (including the mother’s demeanour giving evidence, described as  serious, lacking in warmth or humour yet volatile) His Honour concluded that if the father obtained residence the children’s contact with the mother would not be impeded but the reverse would be true if the mother obtained residence. The Honourable Justice Baker concluded that Mr M was managing his grief and remorse about the suicide of his eldest daughter whereas Ms Jenkins who was “struggling to survive” (in the opinion of psychiatrist Dr W) was revealed by her diary entries to be a “hateful and vindictive woman who has clearly not come to terms with Ms E’s death.”   

100.At the time of report interviews Dr A noted that [X] had been living with the Maternal Grandmother and spending time with his mother on weekends but no time with his father.

101.In Dr A’s interview with the Maternal Grandmother, she noted her representation that Mr L is not in a couple relationship with her, but is a long-term household co-resident who participates significantly in the day to day care of [X].  The Court notes at this point that it would have been assisted by evidence from Mr L.  No-one submitted that an adverse inference should be drawn from the Maternal Grandmother’s failure to call him as a witness in her case.  Indeed, there is nothing in evidence before the Court which would suggest that anything that Mr L is said to be involved with, so far as [X] is concerned, could be considered adverse.  The Court was not asked to draw the adverse inference, and therefore declined to do so.

The Nature of [X]'s Relationships with the Significant Adults in his Life

186.[X]’s relationships with his parents and grandmothers has already been explored in these reasons.  It is important to recognise that the Father has been in and out of his son’s life, through his own choice, and as a consequence of his own actions.  The Mother has been more involved in [X]’s life, but even she has struggled to remain consistently available to him. 

187.The Paternal Grandmother has likewise come in and out of his life and there was an inexplicable period during this litigation when she did not participate, despite being a party, as she was focused on other personal matters.  The Maternal Grandmother has been the consistent and constructive presence in [X]’s life, and appears to have the strongest relationship with him.  There is no evidence to support the contention that she has an enmeshed relationship with [X].

188.The impact of the various proposals on these relationships has already been discussed in these Reasons for Judgment.

The Impact of Change on [X]'s Circumstances

189.The proposal of the Independent Children’s Lawyer, and the Maternal Grandmother, are the proposals that would bring about the least change in [X]’s circumstances.  The Court accepts that he has a need for stability, and a predictable routine, which is best provided by the Maternal Grandmother. 

190.The overall impression formed from the evidence is that until 2014, when [X] went into his Maternal Grandmother’s care, he had led a chaotic life which reflected the chaotic and dysfunctional life led by his parents.  It is a major priority for this Court to ensure that the risk of relapse into chaos is minimised.  In circumstances where the evidence does not point to the need to change his current circumstances, and indeed where the risk of harm considerations strongly contraindicate change, the Court is satisfied that making the least change in his life is in his best interests.

Issues of Parental Capacity and Parental Attitudes

191.Much has been said about the actions, and inactions, of [X]’s parents that reflect very poorly on their capacity to provide for his needs, as well as to their attitudes to him, and to the responsibilities of parenthood.  There is no need to traverse these details again.  The Court indeed laments the reality that the prognosis for improvement in their lives is so limited at the moment.

192.The Mother, nonetheless, seems better placed to turn around her life.

193.A considerable focus has also been placed on the capacity, and attitudes of [X]’s grandmothers.  In short, this Court believes that the Maternal Grandmother is well motivated so far as [X] is concerned, and her actions historically, and in the present, are consistent with those good motives and intentions.  The sustained attack on the Maternal Grandmother’s parenting capacity in the Mother’s submissions filed 16 April 2018 is rejected by the Court.  Even if there is some substance to the concerns articulated, it would not change the Court’s view.  It was somewhat audacious of the Mother to make these submissions given her own problems.

194.For reasons that have been articulated above, the Court is concerned about the Paternal Grandmother’s capacity to implement the proposal she advances to the Court.  She has not explained satisfactorily how she will care for [X], and how this will impact on her work, which the Court believes she clearly loves.  She has dealt with few of the practical issues surrounding how she would implement the order to care for [X] that she proposes.  Several times during her evidence, she emphasised what an involved grandmother she is with all of her other grandchildren, and step-grandchildren.  It is left to inference only that she would, somehow, be able to continue what seems to be a very busy life, as well as care full time for [X], a child whose needs are greater than normal.  The Paternal Grandmother is well intentioned, but she has not demonstrated a capacity to translate those intentions into actions.

Order in the Best Interests of [X]?

195.When all of the evidence before the Court is considered in the context of the competing proposals and submissions, the Court concludes that the Independent Children’s Lawyer’s proposal is the one that most clearly accords with the best interests of [X], with the exception that the Court does not accept that the Paternal Grandmother should have no contact at all with [X].  This means, amongst other things, and order for sole parental responsibility.  There was no submission made that raised any issues the Court’s power to make this order.

196.[X]’s need for a relationship with her, and, thus, a connection with the paternal family, will be met by supervised time six times a year, at a supervised contact centre, or a professional paid service as agreed between the grandmothers, with the cost to be borne by the Paternal Grandmother.

Parentage Testing for [X]?

197.One of the orders sought by the Maternal Grandmother was that the Mother and Father submit to DNA parentage testing to determine if the Father is in fact [X]’s father.  The Independent Children’s Lawyer opposed this.

198.The issue of whether the Father in these proceedings is in fact the biological father of [X] is one that has existed for many years. 

199.The motivation for this appears to be the Maternal Grandmother’s concern, based on something her daughter (the Mother) told her in relation to who might be [X]’s real biological father, based on a physical similarity.  Thus, it would seem, both the Mother, and the Maternal Grandmother, are of the view that it would be important to establish biological parentage, if for no other reason “so that we can help [X] with his health issues” (Maternal Grandmother’s affidavit of 9 March 2018 paragraph 12).

200.In cross-examination the Maternal Grandmother explained that the health issues included, for example, the autism that [X] suffers.

201.The Father, Paternal Grandmother, and Independent Children’s Lawyer opposed this.  The case in opposition is best articulated by the Independent Children’s Lawyer who expressed concern that [X] may discover that this has been undertaken, and thereafter react with confusion and dismay.  Moreover, there was the risk of future chaos and confusion and, indeed, possible conflict between members of his family, caused by such an inquiry.

202.Dr A’s evidence in this regard was quite clear.  She thought it would be a “bad idea” for the Maternal Grandmother, and Mother, to pursue this further.  Her view was that “[X] must never find out about it.” 

203.When Dr A was further cross-examined by the Maternal Grandmother’s Counsel, however, she could understand that if the outcome of such testing was significant to [X]’s identity, he should be told about it at an appropriate time.  This was particularly the case if it turned out that his biological father was someone else.  However, she emphasised that her concern was about the practical implications of such a finding on [X].  Dr A seemed to come around to the view that the most important thing was to protect [X] from the consequences of the parentage testing. 

204.The Court acknowledges the complexity of this issue.  It confidently states, however, that whether the Father and the Paternal Grandmother have a biological relationship with [X], or a psychological one, does not change the decision in any way.  From the Court’s perspective, this issue simply does not matter to the present issue before the Court.

205.However, the Court believes, just like Dr A, that this line of inquiry is a “bad idea”.  One wonders, with respect to both the Mother and the Maternal Grandmother, whether they have thought through the logical consequences of what they propose. 

206.The Mother seems to believe that another named male might be [X]’s biological father.  The first issue from the Court’s perspective is the inherent unreliability of the Mother’s belief.  Again, and with great respect to the Maternal Grandmother, perhaps she needs to become more sceptical about what her daughter tells her in relation to [X]. 

207.Moreover, if the parentage testing is undertaken and the Father in these proceedings is found not to be the biological father, what difference will it make?  From this Court’s perspective, none.  If the biological parent is found to be the man who the Mother suspects, have they considered the possibility of future litigation, and how this might affect not just [X], but each of them as well?  And what if the parentage testing process does not establish that the man the Mother suspects to be the Father, is indeed [X]’s biological Father?  What then?

208.The Independent Children’s Lawyer did not ask the Court to make an order restraining the Maternal Grandmother, or indeed the Mother, from undertaking parentage testing.  The Court agrees that in the circumstances it should not make an order, either way.  The Mother, and Maternal Grandmother, are urged to seriously consider the Court’s comments in this regard.  The Court notes that the Maternal Grandmother abandoned her proposal for parentage testing in her written submissions filed 19 April 2018.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     10 August 2018

Schedule 1

THE COURT ORDERS, BY CONSENT AS BETWEEN THE APPLICANT MOTHER, SECOND RESPONDENT MATERNAL GRANDMOTHER, AND THIRD RESPONDENT PATERNAL GRANDMOTHER, AND PENDING FURTHER ORDER THAT:

1.   All previous parenting Orders be discharged.

2.   The Maternal Grandmother have Sole Parental Responsibility for the long term decisions concerning the care, welfare and development of the child, [X] born 2009 (‘the child’).

3.   The child live with the Maternal Grandmother.

4.   The child spend no time with the Father.

5. The Father be restrained from contacting or approaching the Mother, Maternal Grandmother and the child or entering upon any premises that which the Mother, Maternal Grandmother and the child may be from time to time pursuant to Section 68B of the Family Law Act 1975 (Cth) to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act 1975 (Cth).

6. The Father be restrained from contacting or approaching the child during times that the child is spending time with the Paternal Grandmother or entering upon any premises that which the child may be from time to time pursuant to Section 68B of the Family Law Act 1975 (Cth) to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act 1975 (Cth).

7.   Subject to Order 9, 10 and 11 below, the Mother spend supervised time with the child as follows:

a.   During school terms from 4.00pm Friday until 4.00pm Sunday each weekend.

b.   At other times as agreed between the Mother and Maternal Grandmother.

8.   For the purpose of Order 7 the child’s time with the Mother be supervised by the Maternal Grandmother.

9.   For the purposes of Order 30, 31 and 32 the Paternal Grandmother will collect the child at the commencement of time from the Town F Railway Station and the Paternal Grandmother shall return the child to the Maternal Grandmother at the conclusion of time at the Town D Railway Station.

10.  For the purposes of Order 30, 31 and 32 the Mother’s time with the child at Order 7 will be suspended.

11.  The Father be restrained from approaching the child during times when the child is spending time with the Paternal Grandmother.

12.  The Paternal Grandmother ensure that the child does not come into contact with the Father either in person or by electronic means, and does all things necessary to immediately remove the child from the presence of the Father should the child come into contact with the Father.

13.  The Paternal Grandmother be restrained from allowing the Father to live with her during time that she is spending with the child.

14.  The Paternal Grandmother will ensure that the child attends any extra-curricular activity that he is enrolled in when the child is spending time with the Paternal Grandmother and the Maternal Grandmother will communication the time and date of such activity by way of text message to the Paternal Grandmother.

15.  The Mother, Maternal Grandmother and Paternal Grandmother be permitted to attend the child’s school for any school function and any other scheduled school activities that parents normally attend.

16.  The Mother be permitted to attend all parent teacher interviews for the child.

17.  The Mother be permitted to attend with the Maternal Grandmother during appointments for the child including speech therapy, psychological counselling (as recommended by the child’s treating psychologist) and other medical appointments.  The Maternal Grandmother will communicate with the Mother as soon as practicable.

18.  The Maternal Grandmother, Mother and Paternal Grandmother shall ensure they keep each other informed as soon as it is reasonably practical of:

a.   Any medical problems or illnesses suffered by the child whilst in each parties care;

b.   Any medications that have been prescribed for the child;

c.   Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the child;

d.   Any significant social, school or religious functions which the child is to attend;

e.   The details of any schools attended by the child;

f.    The details of any sporting bodies that the child is involved in;

g.   The residential address of each parents and particulars of others who may reside with the child;

h.   Any other important matter relevant to the welfare of the child.

19.  The Maternal Grandmother is to provide the Mother, as soon as reasonably practical particulars of any medical practitioner, health service providers or institution attended by the child and provide any authority or direction necessary to enable the other party to obtain all necessary information concerning the child.

20.  The Maternal Grandmother and Mother is permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress and that the Maternal Grandmother is to authorise the school and sporting bodies to facilitate this.

21.  All parties are to provide authorities to the principal of the school attended by the child to ensure that the school forwards to all parties copies of the child’s school reports as they fall due along with the copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend and school photographs at each parties own cost.

22.  All parties are to refrain from making any critical or derogatory remarks about any other party or members of his or her family in the presence or within the hearing of the child and that all parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about any party or members of his or her family in the presence or within the hearing of the child and such restraint be applicable to all social media.

23.  All parties be restrained by injunction from being under the influence of illicit substances during any periods that they are spending time with or caring for the child, or for 48 hours prior to those periods.

24.  Without Admissions, the Mother, Maternal Grandmother and Paternal Grandmother be restrained from drinking alcohol during times that they spend with the child.

25.  The Paternal Grandmother is to contact Police immediately upon becoming aware of the Father’s whereabouts and advise of his location.

26.  Leave be granted to the Mother to provide a copy of the Report of Dr A dated 14 December 2015 to her psychologist or psychiatrist that she may attend.

27.  Within 7 days the Mother make arrangements to enter, engage in and complete rehabilitation at a female only residential rehabilitation centre in respect to deal with her drug and alcohol issues for a period of at least 6 months, or such further time as the facility deems necessary.

28.  The Mother undertakes to continue with her domestic violence counselling.

29.  The Independent Children’s Lawyer have liberty to relist the matter on seven days’ notice.

THE COURT FURTHER ORDERS THAT:

30.  The child spend time with the Paternal Grandmother every third Saturday from 9.00am until 5.00pm.

31.  The child spend time with the Paternal Grandmother from 3.00pm Friday (conclusion of school) at the end of the school term 2 until the following Friday at 3.00pm.

32.  During the Christmas School Holiday period the child spend time with the Paternal Grandmother from the first Friday in January at 3.00pm until the following Friday at 3.00pm during the Christmas school break.

33.Liberty is granted to the parties to re-list the matter on short notice by joint application to the Court in Chambers in appropriate circumstances.

34.  The matter be adjourned to 1 February 2017 at 11:30am for Mention.

THE COURT NOTES THAT:

A.    As at the date of making these Orders and publishing Reasons, the Father was still at large.

B.    Trial directions have not been made as yet and will addressed on the adjourned date.

Schedule 2 – Aide memorie

Court Events and Orders

21/12/2012

Proceedings commenced by the Mother, Ms Jenkins seeking:

Ø  a Recovery and Location Order for [X]

Ø  [X] to live with Mother. 

Ø  Mr Daniels to spend time with [X] for 2 hours a fortnight, supervised by Catholic Care, until such time as Mr Daniels engaged with a mental health practitioner. 

Ø  Mr Daniels to attend a parenting course. 

A Recovery Order was issued on 21 December 2012 by Federal Magistrate Brewster. Child recovered from Father 24 December 2012.  Matter adjourned to 29 January 2013.

29/1/2013

Respondent Father to File and serve Response & Affidavit by 8 March 2013.  Parties to attend CDC on 14 March 2013 at 11am.  
Matter adjourned to 21 March 2013.

21/3/2013

Neither party attended CDC on 14 March 2013.
No parent attended and on 21 March 2013  The Application was dismissed.  [Note: At this time Ms Jenkins and Mr Daniels had reconciled and were living in her 3 bedroom home at Town I.]

END FIRST PROCEEDINGS – DISMISSED

17/6/2013

Proceedings commenced by Mother, Ms Jenkins by Initiating Application, again seeking it to be listed urgently and seeking another Recovery Order. 
On 17 June 2013 a Recovery Order was granted by Judge Foster and an Order was made for no time to be spent with Mr Daniels.  A further restraint was made, restraining Mr Daniels from contacting or approaching Ms Jenkins or [X]’s premises.

9/7/2013

WFCC – Judge Foster - Independent Children’s Lawyer was appointed, Mr I.   Matter adjourned to 22 August 2013. Father to file response by 16/8/13.
Court noted: Father’s Legal Aid has been refused and he was appealing that decision.  Apprehended Domestic Violence proceedings were listed for hearing on 29/7/13 before the Town B Local Court.

12/8/2013

The parties attended a CDC on 12 August 2013.

22/8/2013

Interim Orders were made 22 August 2013 for [X] to live with Ms Jenkins. Mr Daniels to spend time with [X] on alternate weekends Friday 3:00pm to Sunday 4:00pm, as well as Tuesdays overnight.  Urinalysis testing Ordered. Response to be filed within 7 days. Matter to be relisted if positive test result or non compliance with urinalysis.  Adj to 13/9/2013 for mention.

3/9/2013

WFCC – Judge Kemp in chambers- Mention date of 13/9/2013 vacated – and adjourned to 10 September 2013.

10/9/2013

WFCC- Judge Terry – No attendance of the Father.  Note no response filed.  Adjourned to 29 October 2013.  Parents to attend personally and if Father fails to appear and Mother does then matter will proceed as Undefended Hearing.

29/10/2013

WFCC- Judge Altobelli – No attendance of the Father.   Mother to file and serve further evidence in support of her application by 22 November 2013.  Adjourned to 3 December 2013 for Undefended Hearing.

13/2/2014

Mr Daniels filed a Response on 13 February 2014, which sought Final Orders for [X] to live with him, time to be spent with Ms Jenkins as agreed between the parties and a restraint on the parties using non-prescription drugs.

18/2/2014

WFCC – Judge Altobelli matter adjourned to 12 March 2014 for Interim Hearing.  Parents both Ordered to undergo urinalysis testing by 19 February 2014.  FACS requested to intervene.

12/3/2014

WFCC – Judge Altobelli - matter adjourned to 29 April 2014, with an Order for the Natural Parents to appear in person on adjourned date.  The Court Orders noted that Ms Jenkins and Mr Daniels appeared to be co-habiting with [X] at the Paternal Grandmother, Ms Daniels’ home.  Adj for ICL to discuss matter with PGM.  Court to consider making Section 91B Notice requesting FACS intervene on the next occasion. ALS was representing father.

9/4/2014

Matter was re-listed with Interim Orders providing for [X] to live with Ms Jenkins and for Ms Jenkins to remain living with Maternal Grandmother.  [X] was to spend time with Mr Daniels supervised by Ms Daniels on alternate weekends 4.30pm Friday to 4pm Sunday. Changeover by PGM collect at Town E Train Station and MGM collect [X] at Town E Train Station.
All communication between Mother and PGM.  Restraint on parents physically disciplining [X].  Parents restrained from using drugs or drinking alcohol whilst child in their care or 24 hours prior to.  Order made for random urines and matter to be relisted if positive urine or failure to comply.   The matter was then adjourned to 29 April 2014, for Interim Hearing.

22/4/2014

Matter was again re-listed in Sydney Federal Circuit Court before Judge Altobelli.  MGM had been contacted by the ICL, Mr I to come into his office to appear via phone.  [X] was ordered by the Court to be returned to Maternal Grandmother’s home, with or without Ms Jenkins.  [X] was returned to Maternal Grandmother’s home that afternoon by Mr Daniels and Ms Daniels. 

29/4/2014

Interim hearing. - Interim Orders were made for Ms Jenkins’s time to be supervised by MGM (except when [X] at Hospital for Tonsillectomy).  Father to have phone contact every 2^nd day for 10 minutes.  Parents were referred to a further CDC on 7 July 2014 with the Paternal Grandmother and Maternal Grandmother to also participate.  Matter adjourned to 28 July 2014

7/7/2014

Parties attend CDC – no agreement

28/7/2014

Expert – Dr R appointed, matter adjourned to 3 November 2014.

3/11/2014

WFCC – Judge Altobelli – No attendance of the Father. Adjourned to 13/11/14 for mention with parties to attend in person. Court noted: If parents do not attend on next occasion matter may proceed in their absence.

13/11/2014

WFCC – Judge Altobelli – Parents attended Court.  Order made for parents to do urinalysis testing within 24 hours.  Matter adjourned to 24 February 2015 after Expert report.

26/1/2015

Mr Daniels seriously assaulted Ms Jenkins.

28/1/2015

WFCC – Judge Altobelli - Noted MGM present in Court.  Leave granted for ICL to make oral application to vary existing Orders.  A further request was made for the Department of Family and Community Services to intervene in the proceedings.  Previous Orders made for the Expert to be appointed were vacated and sole Parental Responsibility for [X] was granted to MGM.  [X] was to live with MGM (Court noted [X] was already living with MGM) Time for [X] with Ms Jenkins and Mr Daniels was suspended, until they complied with urinalysis testing.  Adjourned to 24 February 2015 for mention.  Both parents must attend in person on that occasion

24/2/2015

WFCC – Judge Altobelli - No appearance of Mr Daniels.  All Orders regarding the time with Mr Daniels were discharged.  [Mr Daniels at this time was in custody and was not released until 29 September 2015.] MGM & PGM present at Court Ms Jenkins’s time with [X] was to be spent each weekend from Friday 5:00pm to Sunday 4:00pm at the Maternal Aunt Ms K’s home.  That all time is to be supervised by Ms K or the Maternal Grandfather Mr C, except for periods of travelling from Town F  to Suburb Q on Friday afternoon.  Also provided that Ms Jenkins was to comply with urinalysis and [X] was not be in the presence of Mr G. 
Ms Daniels’s time with [X] was to be as agreed with Ms Jenkins during her time.  Adjourned to 6 July 2015.
All parties are restrained from consuming or being effected by alcohol when in the presence of [X].

20/4/2015

MGM and PGM were both granted leave to intervene in the proceedings and noted as respondents. 

6/7/2015

A Family Report was ordered - Dr A appointed.  There were also Consent Orders made, which included Ms Jenkins undertaking Domestic Violence counselling and rehabilitation through the Watershed Day Program within 14 days.   Father did not consent (no attendance as still in custody).  Father restrained from approaching child.  Each party was to file and serve update evidence & MOOS by 30 October 2015.  Mother to have unsupervised time during school term and in holidays.   Ms Jenkins’s partner, Mr G was to undertake a supervised urine test within 48 hours before spending time with [X].

16/12/2015

Family Report released - The Family report interviews took place in November and December 2015.  All parties were interviewed. 

26/1/2016

After those FR interviews Mr Daniels again assaulted Ms Jenkins on Australia Day 26 January 2016.  He was wanted by the Police, but he was unable to be found. 

10/2/2016

WFCC – Judge Altobelli - Matter was adjourned for interim hearing on 4 April 2016.  The matter was also then listed for a 4 day final hearing commencing on 7 August 2017.
Court Notes: the parents had both failed to comply with 4 requests for urinalysis.  There was a violent incident between Mother and Father on 26/1/16.  Pending the interim hearing the Mother undertakes to spend all her time with [X] at the home of MGM.

4/4/2016 &
12/5/2016

WFCC – Altobelli – interim hearing with Judgment delivered on 12 May 2016 then adjourned until 1 February 2017. 
At the interim hearing on 4 April 2016 Mr Daniels did not attend.  He was still on the run from police.
A long list of Orders were made, which amended previous Orders regarding [X]’s time arrangements. 

(2&3) [X] live with MGM and MGM have sole PR.

(4, 11) No time with the Father & S68B restraining Order made prohibiting contact.
(7-10) Mother’s time during school terms each Friday 4pm to Sunday 4pm (except during PGM time), plus other times agreed between Mother and MGM. Time to be supervised by MGM on weekends.
(30-32) PGM Time with [X] every third Saturday 9am to 5pm and one week each during the holidays at the end of term 2, and the Christmas school holidays. 
(12) PGM to ensure child not come in contact with Father. PGM restrained from allowing Father to live with her during time that she is spending with [X].
(27-28) Mother was ordered to attend upon a female only residential rehabilitation centre within 7 days and continue DV counselling.
(25) PGM was Ordered to contact Police immediately upon becoming aware of Father’s whereabouts and advise of his location.
(23) all parties restrained from being under influence of illicit substances during time with [X].
(24) Mother, MGM & PGM restrained from drinking alcohol during times they spend with child.

Note: [X] did spend time with PGM as ordered including for a week in the July 2016 school holidays.

3/8/2016

WFCC – Altobellli - Matter was relisted.  Solicitor for PGM withdrew as she was no longer in receipt of instructions from PGM.  No appearance of PGM.  Orders were made that until Mr Daniels is no longer released from gaol (is in custody) and pending further application made by PGM, that the Orders for PGM to spend time with [X] was suspended. 

NOTE: It was alleged that PGM was in contact with Father and he had been staying at her home – in contravention of Orders she had not notified Police.  PGM had not spent time with [X] since July 2016, although she had spoken to him on the phone when Mother had called.

25/11/2016

WLCt hearing for Mr Daniels.  Mother does not go to court to give evidence against the father, father found guilty of breach of AVO based on CCTV footage, given 12 month Good Behaviour Bond and AVO until November 2017 

1/2/2017

WFCC – Judge Altobelli – No appearance of Father and PGM.  Matter adjourned to 2 May 2017 for mention or undefended Hearing.  Parties to file proposed Minute of Final order they are seeking.  ICL to inform Father and PGM of orders made and likely consequences of their non-attendance and that the matter may proceed on undefended basis in their absence.

27/3/2017

AVO in force until 26/9/2018 protecting Mother from the Father.

1.         Not to go within 100m of her premises and Not to approach the Mother.

2/5/2017

WFCC – Judge Altobelli - Father and PGM attend Court.  Matter adjourned for 4 day hg on 7 August 2017 

Parties to file Amended Application & Response by 4pm – 16 June 2017 and Consolidated Affidavit by 14 July 2017.

Case Outline to be filed by 31 July 2017.

Dr A to give evidence last at the Final Hearing.

7/8/2017

WFCC – Judge Altobelli – Hearing Day 1

Leave granted for the Legal Representative for the 3^rd Respondent to withdraw.

10/8/2017

WFCC – Judge Altobelli – After 4 day hearing Adjourned Part Heard to for 2 further days 13 and 14 November 2017

Interim Consent Orders made

1.    The PGM to spend time with [X] supervised by MGM as agreed for a period of 2 hours on 3 occasions at locations nominated by the MGM.

2.    That PGM restrained from advising Father or any other third party of arrangements.

3.    Father is restrained from attending any location where contact is taking place.

13/11/2017 & 14/11/2017

WFCC – Judge Altobelli – Hearing days 5 & 6 – adjourned for DTBF for further 2 days

On 14/11/2017 – Interim Order for PGM to spend time with [X] supervised by MGM at time & date agreed between them for a period of 2 hours with such time to occur Nov, Dec 2017 and Jan, Feb 2018.   PGM restrained from advising Father or third party.

21/11/2017

WFCC – Judge Altobelli

Matter listed for further 2 days Final Hearing – 12 & 13 March 2018

Schedule 3 – Independent Children’s Lawyer proposed orders

SHORT MINUTE OF ORDERS SOUGHT BY THE

INDEPENDENT CHILD’S LAWYER

Previous Orders:

1.That all previous orders be discharged.

Parental Responsibility:

2.That the Maternal Grandmother have sole parental responsibility for the child [X] born on 2009

Live With Orders:

3. That the child live with the Maternal Grandmother.

Spend Time With Orders in relation to school term periods:

4.That the child spends time with the Mother at the discretion of the Maternal Grandmother.

No contact orders

5.That the child not spend time with the Father

6.That the child not spend time with the Paternal Grandmother

Health:

7.That the Maternal Grandmother shall ensure that she keeps the Mother informed as soon as it is reasonable practical of:

7.1Any medical problems or illnesses suffered by the child whilst in her care;

7.2Any medications that have been prescribed for the child;

7.3Any specialist medical appointments;

7.4Any significant social, school or religious functions which the child is to attend;

7.5The details of any sporting body(ies) that the child are involved in;

7.6Any changes to the Maternal Grandmother’s residential address, being also the residence of the child;

7.7Any other important matter relevant to the welfare of the child.

8.The Maternal Grandmother provide the Mother with full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the child.

Education & Extra Curricular Activities

9.That the Mother be permitted to enrol the child in sport with the consent of the Maternal Grandmother.

10. That the Mother is entitled to attend all events involving the child including, but not limited to:

10.1Sporting fixtures;

10.2Extracurricular activities that allow for parent attendance or participation; 

10.3School functions and events that allow for parental attendance or participation.

Therapeutic intervention

11.In the event that the Court makes the Order sought by the ICL at Order 5 above, the Maternal Grandmother forthwith is to do all things necessary to arrange for her and the Mother to participant in therapeutic intervention to assist them with issues related to the child no longer having contact with the Father, whereupon:

A.   The Maternal Grandmother shall forthwith contact Relationships Australia or such other qualified family therapist for the purpose of engaging in family therapy, thereafter;

B.   The Maternal Grandmother shall provide confirmation in writing to the Mother of the family therapist engaged pursuant to Order 11A, thereafter;

C.   The Maternal Grandmother and the Mother do all things and acts necessary to complete enrolment or intake of the therapist nominated.

D.   The Maternal Grandmother to do all things and acts reasonably required to ensure if recommended by the family therapist the child attends the appointments scheduled with the nominated therapist

E.   The Maternal Grandmother and the Mother do all things and act reasonably requested of them by the therapist.

12.The therapeutic intervention shall extend to the Paternal Grandmother’s participation in the event that the Court makes orders that the child have spends time or lives with her.