Jenkins and Daniels and Ors
[2016] FCCA 943
•12 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JENKINS & DANIELS & ORS | [2016] FCCA 943 |
| Catchwords: FAMILY LAW – Interim parenting – dispute between Mother, Father, Maternal Grandmother and Paternal Grandmother – where Mother has ongoing drug abuse issues – where Father has a history of violence and is on the run from Police – whether the Paternal Grandmother is risk of harm to child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MS JENKINS |
| First Respondent: | MR DANIELS |
| Second Respondent: | MS V JENKINS |
| Third Respondent: | MS D DANIELS |
| File Number: | WOC 1179 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 April 2016 |
| Date of Last Submission: | 7 April 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 12 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Verekers Lawyers |
| There was no appearance by or on behalf of the First Respondent |
| Solicitors for the Second Respondent: | Lukes Law |
| Solicitors for the Third Respondent: | Johnson Horsley Lawyers |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
THE COURT ORDERS, BY CONSENT AS BETWEEN THE APPLICANT MOTHER, SECOND RESPONDENT MATERNAL GRANDMOTHER AND THIRD RESPONDENT PATERNAL GRANDMOTHER AND PENDING FURTHER ORDER THAT:
All previous parenting Orders be discharged.
The Maternal Grandmother have Sole Parental Responsibility for the long term decisions concerning the care, welfare and development of the child, X born (omitted) 2009 (‘the child’).
The child live with the Maternal Grandmother.
The child spend no time with the Father.
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).
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).
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.
For the purpose of Order 7 the child’s time with the Mother be supervised by the Maternal Grandmother.
For the purposes of Order 30, 31 and 32 the Paternal Grandmother will collect the child at the commencement of time from the (omitted) Railway Station and the Paternal Grandmother shall return the child to the Maternal Grandmother at the conclusion of time at the (omitted) Railway Station.
For the purposes of Order 30, 31 and 32 the Mother’s time with the child at Order 7 will be suspended.
The Father be restrained from approaching the child during times when the child is spending time with the Paternal Grandmother.
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.
The Paternal Grandmother be restrained from allowing the Father to live with her during time that she is spending with the child.
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.
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.
The Mother be permitted to attend all parent teacher interviews for the child.
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.
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.
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.
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.
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.
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.
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.
Without Admissions, the Mother, Maternal Grandmother and Paternal Grandmother be restrained from drinking alcohol during times that they spend with the child.
The Paternal Grandmother is to contact Police immediately upon becoming aware of the Father’s whereabouts and advise of his location.
Leave be granted to the Mother to provide a copy of the Report of Dr H dated 14 December 2015 to her psychologist or psychiatrist that she may attend.
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.
The Mother undertakes to continue with her domestic violence counselling.
The Independent Children’s Lawyer have liberty to relist the matter on seven days’ notice.
THE COURT FURTHER ORDERS THAT:
The child spend time with the Paternal Grandmother every third Saturday from 9.00am until 5.00pm.
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.
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.
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 V JENKINS |
Second Respondent
| MS D DANIELS |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the Interim Orders made in relation to the child, X, born (omitted) 2009 (‘the child’), now 7 years old. The substantive issue for the Court to decide was what time X should spend as between his mother, the Maternal Grandmother and the Paternal Grandmother.
Background
This is a complex parenting case. The issue before the Court is a discrete, but important one. The Applicant is X’s mother, who is 27 years old. The First Respondent is his father, who is 29 years old. The Second Respondent is the Maternal Grandmother, who is 65 years old. The Third Respondent is the Paternal Grandmother, who is 58 years old. X is being cared for by the Maternal Grandmother.
In the first schedule to these Reasons for Judgment, the Court reproduces the extensive chronology that was prepared by the Independent Children’s Lawyer, drawing on all of the materials presently available to the Court. The chronology is relatively uncontentious. 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.
Both X’s parents have struggled with drug and alcohol abuse. The father has engaged in violent behaviour. 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. X’s mother’s drug use continued unabated and it is clear that as recently as 10 March 2016, there is an admission of recent drug use.
In the second schedule to these reasons, the Court reproduces the proposed orders submitted by the independent children’s lawyer. This is a very useful document, because it sets out the many issues in respect of which the mother and the grandmothers agree. The father was not a party to the proceedings and to that extent the present matter proceeds on an undefended basis as regards him.
The Issues
As will be seen from an examination of the Independent Children’s Lawyer’s proposed Orders in the second schedule, the main issue centres around the conditions under which the Paternal Grandmother should spend time with X, both during school terms and during school holidays. The issue of the conditions under which the Mother spends time with X, is uncontentious.
The Independent Children’s Lawyer’s proposal is set out in the proposed Orders. The Mother and the Maternal Grandmother are aligned. They proposed that if the Father is in jail (bearing in mind that he was at large when the Interim Application was heard on 7 April 2016), they would have no concerns in relation to the Maternal Grandmother spending time with X during the day and indeed, every third Sunday from 9 am to 2 pm. However, until the Father is apprehended, the Paternal Grandmother’s time with X would be supervised by an agency such as CatholicCare, or an equivalent. The Mother and Maternal Grandmother’s case emphasised the risk of harm to X, particularly from his father, if contact with the Paternal Grandmother took place in any other condition or circumstance.
The Paternal Grandmother’s proposal was that X spend time with her each alternate weekend from after school Friday until before school Monday, for 5 consecutive nights during mid-year school holidays and 2 blocks of 5 consecutive nights during the end of year school holidays.
The Evidence
In her case, the Mother relied on her 2 affidavits sworn 10 March 2016, and 3 December 2015. The Paternal Grandmother relied on her affidavits filed 20 February 2015, 29 October 2015 and 10 March 2016. In the Maternal Grandmother’s case, reliance was placed on her affidavits of 8 April 2014, 19 November 2015, 9 February 2016, and 30 March 2016.
The Court also had available to it a Family Report prepared by Dr H dated 14 December 2015 and Child Dispute Conference Memoranda dated 14 March 2013, 12 August 2013 and 7 July 2014.
The Court had available to it the subpoenaed documents produced by (omitted), New South Wales Police, and Corrective Services - the essential contents of which are referred to in the Independent Children’s Lawyer’s chronology.
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act 1975 (‘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.
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.
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.
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.
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.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
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".
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.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Cases Outlined
The Independent Children’s Lawyer’s case focused on Dr H’s report which, whilst emphasising child protection issues so far as both parents are concerned, also identified X’s close relationships with both his grandmothers. As to whether the Paternal Grandmother presented a risk of harm to X, the Independent Children’s Lawyer made the following points at paragraphs 18-26 of her outline of case document:
The Maternal Grandmother alleges that the Paternal Grandmother drinks alcohol excessively and therefore should the child spend time with the Paternal Grandmother the child may be at risk of harm.
The chronology above that is supported by the independent material identifies that the Father and his brother considered that their Mother (the Paternal Grandmother) drank significant amounts of alcohol when they were younger.
The NSW Police records identify that in 2008 the Paternal Grandmother was charged with middle range PCA and received a section 10 conviction and a six month disqualification. It was noted that she did not have any prior convictions.
There is no current evidence to support the Maternal Grandmother’s allegation that the child would be at risk of harm while spending time with the Paternal Grandmother due to a problem with alcohol.
The Maternal Grandmother has expressed concern that the Paternal Grandmother is unable to protect the child X from the Father while he is spending unsupervised time with the Paternal Grandmother and is therefore proposing that a supervised agency supervises time between the child and Paternal Grandmother.
Dr H's Report dated 16 December 2015 recommends that the child spend time with the Paternal Grandmother and paternal uncles and cousins however does not adequately address the issue of the Paternal Grandmother’s capacity to protect the child from the Father as it was not an issue at the time.
The Report does identify that the Paternal Grandmother was present during periods of violence by the Father. The Paternal Grandmother may continue to argue that she did not directly witness any incidents of violence by the Father however the independent material suggest she was aware that violence was taking place and the Mother’s Affidavit material suggests that she would intervene to some extent to attempt to calm the Father down.
Since such events took place the Father has spent time in prison and a further incident has occurred that is likely to lead to further imprisonment. The Paternal Grandmother is aware of this. The Paternal Grandmother alleges that she will place X’s needs above the Father and that she is disappointed in his actions. The Paternal Grandmother alleges that the Father has contacted her but will not tell her where he is as he understands that she will advise the Police.
In the event that the Court accepts that the Paternal Grandmother will act protectively towards the child by not bringing the child into contact with the Father and contacting the Police should the Father attend upon the Paternal Grandmother while spending time with the child then the ICL submits that the child should spend time with the Paternal Grandmother.
The Maternal Grandmother and the Mother’s case insofar as it relates to the Paternal Grandmother is that there is a risk of harm to X because the Paternal Grandmother would be unable to protect X from the Father whilst the Father is out of prison. Hence, the need for supervision. Moreover, the Maternal Grandmother raises issues in her affidavit of 30 March 2016 about the Paternal Grandmother’s consumption of alcohol, her mental health including the risk of self-harm and whether the Paternal Grandmother is, in fact, protecting her son from the police.
The Paternal Grandmother emphasised in her submissions and in her evidence, that she would act protectively and that her focus was first and foremost on protecting X from any risk of harm, let alone any risk that might be presented by the child’s father. Her evidence was that she was actively encouraging her son to give himself up to police.
Discussion
From the Court’s perspective, there are 2 main issues. The first one is whether there is any risk of harm to X if he spends unsupervised time with the Paternal Grandmother. This issue will largely be determined by the evidence of any such risk, as well as an assessment of whether the Paternal Grandmother can, in fact, prioritise her grandson, over her son’s interests? If the risk of harm issue is determined in favour of the Paternal Grandmother, the next issue for the Court is what Order for time is in X’s best interest, in the circumstances of this case?
When the evidence is viewed objectively, there is no evidence of any risk of harm to X arising out of the Paternal Grandmother’s supposed alcohol, or mental health issues. The evidence on which the Maternal Grandmother relied is plainly inadequate. Clearly, the relationship between the grandmothers is not a very good one, but the Court is prepared to accept the one thing they have in common is the best interests of their grandson, X.
The Paternal Grandmother’s affidavits provide more than adequate reassurance to the Court that during any time that she spends with X, she will prioritise his needs and interests over that of anyone else, including that of her son’s.
The next issue is what sort of spends time with arrangement should be implemented? In this regard, Dr H at paragraph 149 of her report states as follows:
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.
In essence, Dr H’s professional opinion is that there is benefit in X spending time with the Paternal Grandmother, and indeed the extended paternal family, with the frequency of one day every third or fourth weekend, one week during the mid-year term breaks and one week during the Christmas break.
It is also important to set out Dr H’s observations and impressions of the Paternal Grandmother. These are found at paragraphs 47-51 inclusive of her report:
Ms D Daniels (59) presented as an appropriately dressed and groomed woman of pleasant unremarkable appearance commensurate with her chronological age. She was normally oriented to reality, fully alert and showed no signs of being substance affected. She was polite, friendly and fully cooperative with the assessment process. She was emotionally self-composed throughout our conversations. She has a noticeable goitre which she expects to have removed in January 2016. She does not expect this operation to affect her health permanently or impair her capacity to care for X – noting that her own mother had the same operation three years ago and recovered well. She reported her own mother has terminal cancer and that she would be going to visit her at the (omitted) in the near future.
Ms D Daniels expressed disapproval of her son’s behaviour towards Ms Jenkins and declared that even though she had allowed him to live with her after his release from prison she expected him to find accommodation of his own - in particular if his residence in her home was seen as an obstacle to her having regular contact with her grandson X. She confirms that she supports the child’s restoration to his mother and only asked to be considered as a residential care giver for the child in the event that the mother’s application fails. With regard to the maternal grandmother’s desire for DNA testing Ms D Daniels said she considered this irrelevant. X is her grandson by virtue of the lifelong relationship that she has had with him. A paternity test would make no difference to how she feels about X, she said.
Although Ms D Daniels said that Mr Daniels “has behaved stupidly and made selfish decisions” she denied ever having seen him physically assault Ms Jenkins. She denied that her son Mr Daniels had ever been diagnosed or treated for schizophrenia (NB Notes from (omitted) suggest otherwise) or that there was any family history of schizophrenia (I note that FACS files indicate that Ms Jenkins made this assertion on several occasions, asserting that in 2009 that Mr Daniels became dangerous when he ceased taking his psychotropic medication). Ms D Daniels reported that when he was released from (omitted) Mr Daniels was given a six-month supply of Seroquel - which she considered inappropriate since she had never known him to have a diagnosis consistent with that medication. She said he was diagnosed with oppositional defiant disorder as a boy but had never been violent or rude as a child and only started behaving badly when he was a teenager.
Ms Daniels contends that she has always strictly conformed to Court orders, although the maternal grandmother has not always done the same. Ms Daniels says that she would continue to obey Court Orders and predicts that she and the maternal grandmother could behave civilly in front of the child to manage handovers if need be. She reported that a good relationship with Ms Jenkins and said that she would help Ms Jenkins in a crisis. Ms D Daniels reported that when Ms Jenkins and her son Mr Daniels were living in (omitted) she would visit them regularly, often carrying food. Ms D Daniels noted that despite their strong opinions about how Ms Jenkins should run her life, her parents were not very supportive in practical ways - for example by providing groceries or food.
Ms Jenkins disputes that her son Mr Daniels could manage as a single parent because he has never lived alone, paid bills, organised a household. She confirmed that X is fond of both his uncles, Mr D and Mr R, who are fond of him although they are very critical attitude of their brother’s failings towards X. She contends that if the Court permitted X to visit her or either paternal uncle under conditions which required Mr Daniels to be excluded that she and both her other sons would call the police if Mr Daniels flouted Orders. She denies the maternal grandmother’s allegations that she has a problem with gambling or alcohol or mental health. Ms D Daniels believes the maternal grandmother may be jealous of her closeness with Ms Jenkins, claiming Ms V Jenkins had expressed resentment that Ms Jenkins had sat with Ms D Daniels (rather than her mother) at the last Court date.
This is further basis of the Court’s assessment of the absence of risk of harm if X spends time with the Paternal Grandmother.
Having regard to what expert evidence is before the Court, it becomes apparent that the Paternal Grandmother’s own proposal to spend time with X is inconsistent in many important respects, with the recommendation. Whilst her school holiday proposal is consistent with Dr H’s, the proposal for mid-term time is not. No basis was advanced for ignoring, in the circumstances of the present interim application, Dr H’s independent and expert recommendation. The same could be said for both the Mother and Maternal Grandmother’s proposals in relation to this time.
Orders in the Best Interests of X?
Returning to the second schedule, the Independent Children’s Lawyer’s Minutes of Proposed Orders, Orders 9, 10 and 11 are consistent with Dr H’s recommendation. The Court will make these orders.
The Court considers the remaining Orders to be adequately protective, proportionate and otherwise in X’s best interests. Thus, the Court makes Orders in terms of the document reproduced in the second schedule, noting that all Orders except orders 9, 10 and 11 are by consent as between the Applicant Mother, Second Respondent Maternal Grandmother and Third Respondent Paternal Grandmother. However, these Orders are made on an undefended basis so far as the Father is concerned. In relation to Orders 9, 10 and 11, these are Orders made by the Court having regard to the evidence.
Consideration will need to be given to allocating hearing dates.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 12 May 2016
Schedule 1
Chronology Prepared by the Independent Children’s Lawyer
| DATE | EVENT | SOURCE |
| (omitted) 1950 | Second Respondent Maternal Grandmother Ms V Jenkins born. | Resp. M.G Aff. 19/11/15 Para 1 |
| (omitted) 1957 | Third Respondent Paternal Grandmother Ms D Daniels born. | Resp. P.G Aff.10/03/16 Para 1 |
| (omitted) 1987 | First Respondent Father born. | App. M. Aff 20/12/12 Para 4 |
| (omitted) 1988 | Applicant Mother born. | App. M. Aff 20/12/12 Para 3 |
| (omitted) 1996 | Applicant Mother’s parents separate. | Dr H's Report, para 19. |
| (omitted) 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 H's Report, para 20. |
| (omitted) 2006 | Brenda Barker 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 |
| (omitted) 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. |
| (omitted) 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 (omitted) Rehabilitation Centre. | App. M Initiating Application 20/12/12 Dr H's 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. |
| (omitted) 2009 | Child X born. | Resp.P.G Aff.10/03/16 Para 2 |
| (omitted) 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 |
| September 2009 | Mother admitted to (omitted) 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 H's 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 Port Kembla 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” –“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:- 2. Common Assault DV- T2 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 (omitted) day program however she failed to attend. | (omitted) 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 (omitted) 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. | (omitted) Day Program Subpoena |
| 17/07/2015 | (omitted) contacts Mother due to failure to attend again and Mother advised that she was sick. | (omitted) Day Program Subpoena |
| 26/08/2015 | Initial Contact Form states that Mother’s principal drug of concern is ice. | (omitted) 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 (omitted)” | Ms S Subpoena |
| 16/09/2015 | Mother involuntarily discharged due to lack of motivation as she failed to attend total of 22 sessions at (omitted) Day Program. | (omitted) Day Program Subpoena |
| 24/09/2015 | Mother & Father issued with random chain of custody request. No response from either parent. | |
| 29/09/2015 | 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 H. | Dr H's Report dated 14/12/15 |
| 25/11/2015 | Paternal Grandmother and Father attend for interviews with Dr H | Dr H's Report dated 14/12/15 |
| 11/12/2015 | Paternal Grandmother, Father, child, attend for interviews with Dr H | Dr H's 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 H's 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 (omitted) 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 |
Schedule 2
Orders Proposed by the Independent Children’s Lawyer
1. That all previous parenting Orders be discharged.
2. That the Maternal Grandmother have Sole Parental Responsibility for the long term decisions concerning the care, welfare and development of the child X born (omitted) 2009.
3. That the child live with the Maternal Grandmother.
4. That the child spend no time with the Father.
5. That 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 to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act.
6. That 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 to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act.
7. Subject to Order 9, 10 and 11 below, that 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.
That for the purpose of Order 7 the child’s time with the Mother be supervised by the Maternal Grandmother.
9. That the child spend time with the Paternal Grandmother every third Saturday from 9.00am until 5.00pm.
10. That 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.
11. That 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.
12. That for the purposes of Order 9, 10 and 11 the Paternal Grandmother will collect the child at the commencement of time from the (omitted) Railway Station and the Paternal Grandmother shall return the child to the Maternal Grandmother at the conclusion of time at the (omitted) Railway Station.
13. That for the purposes of Order 9, 10 and 11 the Mother’s time with the child at Order 7 will be suspended.
14. That the Father be restrained from approaching the child during times when the child is spending time with the Paternal Grandmother.
15. That 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.
16. That the Paternal Grandmother be restrained from allowing the Father to live with her during time that she is spending with the child.
17. That 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.
18. That 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.
19. That the Mother be permitted to attend all parent teacher interviews for the child.
20. That 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.
21. That the Maternal Grandmother, Mother and Paternal Grandmother shall ensure they keep each other informed as soon as it is reasonably practical of:-
21.1Any medical problems or illnesses suffered by the child whilst in each parties care;
21.2 Any medications that have been prescribed for the child;
21.3Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the child;
21.4Any significant social, school or religious functions which the child is to attend;
21.5The details of any schools attended by the child;
21.6The details of any sporting bodies that the child is involved in;
21.7The residential address of each parents and particulars of others who may reside with the child;
21.8Any other important matter relevant to the welfare of the child.
22. That 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.
23. That 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.
24. That 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.
25. That 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.
26. That 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.
27. Without Admissions, that the Mother, Maternal Grandmother and Paternal Grandmother be restrained from drinking alcohol during times that they spend with the child.
28. That the Paternal Grandmother is to contact Police immediately upon becoming aware of the Father’s whereabouts and advise of his location.
29. That leave be granted to the Mother to provide a copy of the Report of Dr H dated 14 December 2015 to her psychologist or psychiatrist that she may attend.
30. That 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.
31. That the Mother undertakes to continue with her domestic violence counselling.
32. That the Independent Children’s Lawyer have liberty to relist the matter on seven days’ notice.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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Standing
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