Jordan and Lloyd and Ors

[2010] FamCA 288

FAMILY COURT OF AUSTRALIA

JORDAN & LLOYD AND ORS [2010] FamCA 288

FAMILY LAW – CHILDREN – With whom a child lives – Orders were made in 2005 for the child to live with the maternal grandmother and spend time with the mother – Mother and first respondent seek orders for the child to live in their household while the maternal grandmother proposes that the child continue living with her – Rule in Rice v Asplund discussed – The evidence of the single expert and treating therapists is that the child has settled and progressed noticeably over the period he has lived with the maternal grandmother – The child live with the maternal grandmother and spend time with the mother and the child’s half siblings for three hours three times a year, supervised by a contact centre
FAMILY LAW – CHILDREN – Parental responsibility – Relationship between the mother and maternal grandmother has broken down completely – Maternal grandmother to have sole parental responsibility for the child
FAMILY LAW – CHILDREN – Child’s surname – Child to retain his existing surname

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Marsden v Winch [2009] FamCAFC 152
M v B [2001] FamCA 894
Rice v Asplund (1979) FLC 90-725
Sampson v Hartnett (No.10) (2007) FLC 93-350
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Ms Jordan

1st RESPONDENT: Mr Lloyd

2nd RESPONDENT: Ms Ether

3rd RESPONDENT: Mr Ether

4th RESPONDENT: Mr Cooper

INDEPENDENT CHILDREN’S LAWYER: Ms Crawford, Legal Aid

FILE NUMBER: PAF 2106 of 2004

DATE DELIVERED: 20 April 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Austin

HEARING DATE: 22, 23, 24 and 25 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Mr Harman

COUNSEL FOR THE 3RD RESPONDENT: Not Applicable

SOLICITOR FOR THE 3RD RESPONDENT: Not Applicable

COUNSEL FOR THE 4TH RESPONDENT: Not Applicable

SOLICITOR FOR THE 4TH RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Macpherson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Crawford, Legal Aid NSW

Orders

1. All former parenting orders are discharged in respect of the following children:

   (a)       K, born … July 2002;  and

   (b)       W, born … June 2003.

2. The Independent Children’s Lawyer shall dispense with further attempts at service of pending Applications and Amended Response, pursuant to orders made on 22 March 2010, upon Mr Cooper, the biological father of the child, C, born … November 1999 (“the child”).

3. The parties shall dispense with service of these orders upon Mr Cooper.

4. All former parenting orders in respect of the child are discharged.

5. The maternal grandmother shall have sole parental responsibility for the child.

6. The child shall live with the maternal grandmother.

7. Each of the parties shall take all reasonable steps to ensure that the child spends time with the mother and his half-brothers for three hours on three occasions annually, being the Saturdays falling closest to 30 April, 30 August, and 30 December each year, at times nominated by the H Children’s Contact Centre (“the Centre”), with such time to be spent at and supervised by staff of the Centre.

8. For the purpose of implementing Order 7:

   (a)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Centre.

   (b)Each party shall comply with all reasonable requests and directions of the Centre.

   (c)The maternal grandmother shall pay any costs due to the Centre for use of the Centre’s venue and supervisory services.

   (d)The maternal grandmother shall cause the delivery of the child to, and the collection of the child from, the Centre at the commencement and conclusion of the time spent by the child with the mother and his half-brothers.

   (e)The first respondent is restrained from causing or permitting the child to come into contact with him at the Centre.

   (f)The mother is restrained from causing or permitting the child to come into contact with the first respondent at the Centre.

   (g)The mother is restrained from discussing the maternal grandmother and first respondent with the child.

   (h)If the mother fails to attend at a session for the child to spend time with her and his half-brothers, then the mother shall not be permitted to participate in any further sessions for a period of 12 months and the operation of Order 7 is suspended for that period as between the mother and child (but not as between the child and his half-brothers).

   (i)If on an occasion that the child is due to spend time with the mother and his half-brothers that time together cannot be accommodated by reason of closure of the Centre the time that the child would otherwise have spent with the mother and his half-brothers shall be made-up at another time as close to the original time as can reasonably be arranged.

9. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the mother and his half-brothers as follows:

   (a)By mail, and for that purpose the maternal grandmother shall forthwith provide to the child the mother’s residential address, and shall ensure that the child is given any mail received at her address from the mother or the child’s half-brothers which is directed to the child.

   (b)By telephone, and for that purpose the maternal grandmother shall forthwith provide the child with the mobile telephone number of the mother, and shall ensure that the child is free at any time that he requests to use the maternal grandmother’s telephone to call that mobile telephone number.

10. The parties are restrained from causing or permitting the child to be known by any surname other than “Jordan”.

11. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

12. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

13. The maternal grandmother shall notify the mother of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.

14. The maternal grandmother shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms for the child.

15. The mother and maternal grandmother shall each forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, and mobile telephone number.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

18. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

19. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAF 2106  of 2004

MS JORDAN

Applicant

And

MR LLOYD

1^st Respondent

And

MS ETHER

2^nd Respondent

And

MR ETHER

3^rd Respondent

And

MR COOPEr

4^th Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve three children, but ultimately the determination of parenting orders in respect of only one of those children was in issue.

2. The three children are:

   a)C, born in November 1999;

   b)K, born in July 2002;  and

   c)O, born in June 2003.

3. The applicant mother, Ms Jordan (“the mother”), is the biological mother of all three children.

4. The first respondent, Mr Lloyd (“the first respondent”), is the biological father of the two youngest children, K and O.

5. The maternal grandmother of the three children, Ms Ether (“the maternal grandmother”), was granted leave to intervene in the proceedings as a party on 17 August 2006.  That leave was granted pursuant to an Application filed by her on 11 August 2006. The maternal grandmother then became the second respondent.

6. The husband of the maternal grandmother, Mr Ether (“the third respondent”), was most recently named by the maternal grandmother in her Amended Response as a respondent to the proceedings. He was not served by the maternal grandmother with her Amended Response, but was aware of the proceedings because of their cohabitation. He did not actively participate in the proceedings as a party, but was belatedly called as a witness by the maternal grandmother in her case.

7. The biological father of the eldest child, C (“the child”), is Mr Cooper (“Mr Cooper”). He was not named as a party to the proceedings until the maternal grandmother filed her Amended Response. He did not participate in the proceedings in any way because he was not served.

8. An Independent Children’s Lawyer was appointed pursuant to an order made on 17 July 2006, and the appointment was extended on 19 April 2007.

9. Final parenting orders were made by the Court in respect of the two youngest children, K and O, on 18 January 2005.  Those orders were made as between the mother and first respondent, who were the only parties to those proceedings.  The orders provided for K to reside with the first respondent and for O to reside with the mother.  Although they later reconciled and had a third child together, those orders were made at a time when the mother and first respondent were separated. 

10. Final parenting orders were made in respect of the child on 21 December 2005.  Those orders were made as between the mother, Mr Cooper, and the maternal grandmother, who were all parties to the proceedings.  Those orders provided for the child to live with the maternal grandparents and for the child to have “contact” (as the concept of “spending time” was then known) with the mother at certain times. Presumably, the maternal grandmother nominated the third respondent as a respondent to these proceedings in her Amended Response because the orders made in December 2005 designated that the child live with both of them.

11. The mother was dissatisfied with the orders made on 18 January 2005.  She commenced proceedings against the first respondent on 9 February 2006, seeking a variation of those orders.  The first respondent filed a Response on 3 March 2006. He also proposed a variation of those orders.  When that litigation was commenced in early 2006 it only involved the mother and first respondent, and it was only the parenting orders concerning K and O that were contentious.

12. On 12 April 2007, within those proceedings, the mother filed an Application in a Case seeking a variation of the orders made on 21 December 2005 concerning the child.  The mother wished to reverse the effect of the orders made on 21 December 2005, by having the child live with her instead of with the maternal grandparents. As a consequence, the litigation then involved all three children, and the maternal grandmother intervened soon after. The squabble over the parenting orders for the children then involved the mother, first respondent, and maternal grandmother.

13. The mother and first respondent reconciled their relationship over a period of time in 2007 and 2008.  They have continued to cohabit at the same address in D since July 2008. A third child was born to their relationship in July 2008.

14. As a result of the reconciliation between the mother and first respondent, they no longer wanted to contest the litigation insofar as their children K and O were concerned.  That has been the case since the time of the involvement of the single expert in the proceedings in 2007. It was noted in the expert’s first report dated 23 July 2007. They now both wished to confine the litigation to a contest over the parenting orders in respect of only the child, about whom the maternal grandmother and Independent Children’s Lawyer remain interested parties.

15. At the outset of the hearing the mother and first respondent mutually indicated that they sought the discharge of all former parenting orders concerning the children K and O.  They did not merely seek the dismissal of all outstanding applications concerning the children K and O, which would have had the effect of leaving the parenting orders made on 18 January 2005 intact in respect of those children.  The maternal grandmother and Independent Children’s Lawyer consented to the discharge of all former parenting orders concerning K and O.

16. Consequently, the parties and Independent Children’s Lawyer only contested orders pertaining to the child.

Non-appearance by the biological father of the child

1. The hearing concerning the parenting orders relating to the child was due to commence on Monday, 22 March 2010.

2. Mr Cooper had not been joined to the proceedings prior to him being named as a respondent in the maternal grandmother’s Amended Response, which was filed only days before on 18 March 2010.  There was no evidence that any document pertaining to the child, including the maternal grandmother’s Amended Response, had been served upon him. That was puzzling, because as the biological father of the child, Mr Cooper would at least potentially be interested in parenting orders affecting his son. Mr Cooper would certainly fall within the definition of a “necessary party” as provided by Rule 6.02(1) of the Family Law Rules. He was a party to the proceedings in which parenting orders were made in respect of the child on 21 December 2005.

3. The hearing was therefore adjourned until 23 March 2010 and procedural orders were made requiring the Independent Children’s Lawyer to serve upon Mr Cooper copies of the pending Applications filed by the mother and the Amended Response of the maternal grandmother, each of which sought orders affecting the child. The procedural orders required service of the documents upon Mr Cooper at his last known residential address, which was the address last used by him in respect of the proceedings concerning the child in 2005, or alternatively notification of him by telephone of the intended commencement of the hearing on 23 March 2010.

4. Upon commencement of the hearing on 23 March 2010 the Independent Children’s Lawyer tendered an affidavit describing attempts to serve documents upon Mr Cooper in accordance with the orders made the day before.[1] Service of the documents at the last known address of Mr Cooper was unsuccessful. The occupant of the home at that address did not know Mr Cooper or where he could be found.

   [1] Exhibit ICL1

5. The parties then each made submissions from the bar table about their knowledge of Mr Cooper, which submissions were accepted by all other parties as correct without the need for sworn evidence to that effect.

6. The mother had last had contact with Mr Cooper in 2005. Mr Cooper had also last had contact with the child during 2005. She did not know where he could now be found. The two telephone numbers that she had for his brother were useless. She used those numbers but could not establish contact with Mr Cooper’s brother. She provided those telephone numbers to the Independent Children’s Lawyer. She had no other leads to Mr Cooper. So far as she was aware, at least one of his parents was deceased. She knew of no other mutual acquaintances from whom she could procure his contact details.

7. The Independent Children’s Lawyer tried calling the two telephone numbers for Mr Cooper’s brother, provided to her by the mother, without success. She also tried the last telephone number for Mr Cooper held on the Court file without success. Nor did the Independent Children’s Lawyer’s inquiries of the real estate agent who rented the last known residential address to Mr Cooper reveal any leads on Mr Cooper’s current contact details.

8. The maternal grandmother said that she had not seen or heard from Mr Cooper since 2005. Although he was a party to the litigation concerning the child in 2005, he had stopped participating in those proceedings in about August 2005 when his then solicitor filed a Notice of Ceasing to Act. Thereafter, he had not appeared at any of the Court events and did not see the child. The hearing conducted before Justice Collier, leading to the orders on 21 December 2005, was conducted in Mr Cooper’s absence. She had made an inquiry of Mr Cooper’s sister, about the contact details of Mr Cooper but even his sister did not know where or how he could be contacted.

9. I am satisfied that the current whereabouts and contact details of Mr Cooper are unknown to any of the parties, and cannot reasonably be discovered by them. Adjourning the hearing and ordering the parties to effect service of documents upon Mr Cooper, to afford him procedural fairness, would therefore be an exercise in futility. They are unable to find him, so the procedural defect of his ignorance of these proceedings could not be cured.

10. All parties and the Independent Children’s Lawyer were desirous of the hearing proceeding in the absence of Mr Cooper. The litigation had been pending for nearly four years and required determination. The absence of contact of any sort between Mr Cooper and any other person involved in these proceedings, including the child, over nearly five years made it unlikely that a mischief would be occasioned by continuing with the hearing in his absence. Proceeding with the hearing was a reasonable course to take in the circumstances, and so that occurred.

11. In final submissions, all parties and the Independent Children’s Lawyer petitioned the Court to make final parenting orders for the child and to dispense with any requirement for any party to find and serve those orders upon Mr Cooper.

12. In the event that Mr Cooper learns of the orders and disagrees with them, he is not without remedy (see Allesch v Maunz (2000) 203 CLR 172; Taylor v Taylor (1979) 143 CLR 1).

Positions and evidence of the applicant mother and first respondent

1. The mother had filed numerous documents in which she sought orders relating specifically to the child, including her:

   a)Application in a Case, filed on 12 April 2007,

   b)Amended Application for Final Orders, filed on 21 June 2007, and

   c)Amended Application in a Case, signed by the mother on 22 February 2010, but which was not actually filed until leave was granted to file the document in Court on 23 March 2010.

2. The first respondent had not filed any Response relating to the child.

3. The mother and first respondent were both self-represented and so there was a lack of precision in the orders proposed by them in respect of the child. They were each asked the nature of the orders that they proposed.

4. The mother and first respondent sought identical orders in respect of the child, which may be conveniently summarised as follows:

   a)That the child live with the mother, which would entail him living with the mother and first respondent in their joint household.

   b)That the child spend time with the maternal grandmother once per month, although neither of them had conceived the timing or duration of that monthly episode of interaction between the child and the maternal grandmother.

   c)That the time spent by the child with the maternal grandmother should be the subject of supervision at a contact centre situated at H.

1. In the event that the mother and first respondent were unsuccessful with their primary applications, their fallback position was that the child should spend time with the mother in accordance with the orders previously made by Justice Collier on 21 December 2005.

2. In support of her case, the mother relied only upon the affidavit filed by her on 22 February 2010.

3. In support of his case, the first respondent relied only upon the affidavit filed by him on 22 February 2010.

Position and evidence of the second respondent

1. The maternal grandmother initially pressed for the orders set out within her Amended Response filed on 18 March 2010. At first, the maternal grandmother sought to preserve the residential orders made by Justice Collier on 21 December 2005 in respect of the child and to preclude any review of those orders pursuant to the principles established by Rice v Asplund (1979) FLC 90-725. In addition, the maternal grandmother sought supplementary orders granting to her sole parental responsibility for the child, permission to change the child’s surname, permission to remove the child from the State of New South Wales, and the discharge of ancillary orders made on 21 December 2005.

2. However, by the completion of the evidence the maternal grandmother adopted the orders proposed by the Independent Children’s Lawyer, and additionally only sought Order 3(a) set out within her Amended Response, which pertained to a change of surname for the child. 

3. In support of her case, the maternal grandmother relied upon the affidavit filed by her on 18 March 2010, and also evidence given by the third respondent. It was not initially her intention to adduce evidence from the third respondent, but due to comments made by the mother and first respondent expressing their displeasure about his absence from the proceedings, she changed her mind and called him as a witness in her case to avoid any suggestion of chicanery. His proof of evidence was tendered in evidence[2] and he was cross examined very briefly.

   [2] Exhibit MGM2

4. For reasons which were unexplained, no party complied with the procedural orders made by the Registrar on 23 November 2009 for the timely filing and service of documents upon which they relied at trial. Although the maternal grandmother received belated notice of the evidence adduced by the mother and first respondent, the mother and first respondent had no notice at all of the orders sought and the evidence relied upon by the maternal grandmother.

5. It was conceded that the maternal grandmother had not served the other parties with her Amended Response and affidavit, which had only been filed some days before the hearing. Copies of the Amended Response and affidavit were provided to the mother and first respondent at the bar table by the solicitor appearing for the maternal grandmother.

6. The mother and first respondent assured the Court that they would be prepared to deal with the maternal grandmother’s evidence if they were permitted an overnight adjournment to consider it.  As a matter of procedural fairness, that time was granted to them and that was a further reason why the commencement of the hearing was delayed from 22 March 2010 until 23 March 2010.

Position of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer did not support any change in the living arrangements for the child.  She proposed that the child continue to live with the maternal grandmother, consistently with the orders made by Justice Collier on 21 December 2005.

2. The Independent Children’s Lawyer did however contend that orders needed to be made expressly providing for the child to spend time with his mother and half-brothers, K and O.

3. In the event that the Independent Children’s Lawyer’s primary submission was rejected, and an order made that the child live with the mother, the Independent Children’s Lawyer did not support the asserted need for the time spent by the child with the maternal grandmother to be the subject of supervision.

4. The Independent Children’s Lawyer was therefore supportive of the maternal grandmother’s case on the question of the child’s residence, but remained in dispute with the maternal grandmother about the need for interaction between the child, his mother, and half-brothers. The Independent Children’s Lawyer regarded that interaction as essential, whereas the maternal grandmother saw no need for it and at the outset of the hearing actively sought discharge of the orders made on 21 December 2005 which provided for the child to spend time with the mother.

5. By the completion of the evidence the views of the Independent Children’s Lawyer had evolved to some extent, as did those of the maternal grandmother. The Independent Children’s Lawyer tendered a Minute of Orders proposed by her,[3] all of which orders met with the consent of the maternal grandmother. The proposal for the time spent by the child with the mother and his half-brothers was curtailed quite significantly in reliance upon the evidence of the single expert.

   [3] Exhibit ICL2

6. Dr R, psychiatrist, was appointed as the single expert witness in the proceedings.  Dr R authored three reports dated 23 July 2007, 3 July 2008 and 10 August 2009, and she elaborated her opinions when cross examined. 

7. A Family Report dated 28 August 2006 had been authored by the Family Consultant, Ms S.  However, that Family Report had been prepared at a time when the existing proceedings concerned only the children K and O.  The complexion of the litigation has since changed because no party now seeks any substantive order in respect of either K or O – only the child.  For that reason, the Independent Children’s Lawyer did not regard the Family Report as relevant to the proceedings, and all parties agreed.  Consequently, the Family Report was not relied upon in evidence.

Application of the rule in Rice v Asplund

1. It was the primary position of the maternal grandmother that the outstanding Applications brought by the mother in respect of the child, supported by the first respondent, should be dismissed pursuant to the principle established by Rice v Asplund (1979) FLC 90-725. It was the contention of the maternal grandmother that there had been no substantial or significant change of circumstances with respect to the child since Justice Collier made final parenting orders on 21 December 2005, in which event there was no warrant to review those orders and their operation.

2. The maternal grandmother asserted that the orders made by Justice Collier on 21 December 2005 were made following a contested hearing conducted over several days. An appeal was subsequently lodged against His Honour’s determination, but that appeal was withdrawn and dismissed by order of the Full Court on 8 May 2006.

3. Despite some initial prevarication by the maternal grandmother, the argument was not conducted as a threshold inquiry (see Marsden v Winch [2009] FamCAFC 152 at [40-56]). The hearing proceeded normally and she foreshadowed that the argument would be mounted once all of the evidence was in. That did not eventuate.

4. Despite the Rice v Asplund submission not ultimately being made by the maternal grandmother, it should be addressed for the sake of completeness because it was not expressly abandoned. The argument was unsustainable for several reasons.

5. Firstly, the parties consented to the making of an order on 13 September 2007 by Justice Waddy which amended one of the orders made on 21 December 2005 by Justice Collier, albeit in a relatively minor way.  For a consent order to have been made in 2007, amending an order previously made in 2005, the parties must have implicitly acknowledged that there was a change in circumstances pertaining to the child which warranted the amendment. It was a paradox for the maternal grandmother to now submit that there were no changes in circumstances since 2005 justifying any amendment to the original orders.

6. Secondly, the orders made on 21 December 2005 expressly contemplated that the child would have regular “contact” with the mother on alternate weekends, during school holidays, and on special occasions.  The uncontested evidence is that the child has not spent any time with the applicant mother or his half-brothers since 2007, which is a period now exceeding two years.  Although the reasons for that were contentious, it is uncontentious that the intention of the former parenting orders for the child to spend time with the mother is not being fulfilled. That is a significant change in circumstances from the time when those orders were made. It behoved the Court to inquire why that occurred. The maternal grandmother admits that she joined in these proceedings and initially sought orders that would permit the child to maintain a relationship with his half-brothers K and O.[4] The maternal grandmother therefore obviously thought, at least at one time since 2005, that the changed family dynamics required revision by the Court of the appropriate parenting orders for the child.

   [4] Affidavit of the maternal grandmother, par 10

7. Thirdly, the maternal grandmother herself pressed for fresh, substantive parenting orders affecting the child.  She wished to change the child’s surname, potentially change his place of residence out of the State of New South Wales, have sole parental responsibility for the child allocated to her, and to discharge some of the parenting orders made in respect of the child on 21 December 2005.[5] If the maternal grandmother contemplated the need for such radically changed parenting orders in respect of the child, she must of necessity acknowledge that the circumstances prevailing in the life of the child demanded the Court’s revision of the parenting orders affecting him. In particular, the maternal grandmother initially sought an order discharging the former order providing for the child to spend time with the mother. For it to be contended that it was appropriate for such an order to be made, it must equally have been considered that there was a profound change in circumstances for the child.

   [5] Amended Response filed 18 March 2010, Orders 3, 4 and 5

Background History

1. There is a paucity of affidavit material relied upon by the parties and so the historical background is largely unrevealed.

2. Some years ago the mother resided in the Blue Mountain region with the three children.  During 2004, she was separated from the first respondent.  At that time the mother and first respondent were litigating parenting orders in relation to their two children K and O.  That litigation was compromised by the making of final consent orders on 18 January 2005.

3. During 2005, the mother was also involved in other litigation concerning the child.  The maternal grandmother and Mr Cooper were both parties to that litigation.  Those proceedings were determined when Justice Collier made final parenting orders on 21 December 2005.  Those orders included the following:

   1.That all existing orders be and they are hereby discharged.

   2.That the applicant maternal grandparents have residence of the child [C], born […] November 1999, as and from 6:00pm on 25^th December 2005.

   4.        That the mother have contact to the child as follows:

   a. From 9:00 am on 7^th January 2006 to 6:00 pm on 21^st January 2006.

   b. Thereafter for alternate weekends during each school term from after school Friday until before school Monday, extending to Tuesday in the case of a long weekend.

   c. For one half of all school holiday periods, commencing with the holiday falling between 1^st and 2^nd Terms 2006, being the first half in years ending in an odd number and the second half in years ending in an even number.  The parties may by agreement vary which half.

   5.That commencing with Christmas Day 2006 the parent or grandparent with whom the child is not then staying shall have contact to the child from 6:00 pm 25^th December to 6:00 pm 26^th December.

   6.That for the purpose of contact other than contact on alternate weekends, the grandparents shall deliver the child to the mother at her place of residence at the commencement of contact and shall collect the child from the mother at her place of residence at the conclusion of contact.

   8.That the mother have contact to the child on two occasions each week by telephone, and failing agreement as to other times, between 7:00 pm and 7:30 pm on Tuesday and Thursday.

   9.That the mother shall call on any landline or mobile number provided by the grandparents between those times, and the grandparents shall ensure that the child is able to speak to the mother uninterrupted during such calls.

4. Clearly, the effect of those orders was to require the child to live with the maternal grandparents and to have frequent contact with the mother.  The orders also envisaged the child having frequent telephone contact with the mother.

5. Since the making of those orders the child has lived continuously with the maternal grandmother and the third respondent.

6. The child had contact with the mother pursuant to the orders up until late 2007, although there were some irregularities in the implementation of the orders along the way.

7. In April 2007, the mother was in the course of reconciling her relationship with the first respondent.  That was a process that gradually evolved over a period of time between 2007 and 2008.  On one occasion in April 2007 the mother and first respondent were staying together whilst the child had contact with the mother.  The mother and first respondent detained the child following a visit by him to the mother in accordance with the orders made in December 2005. The decision by the mother and first respondent to detain the child was quite deliberate.  They had decided that the fastest way to bring their grievance back before the Court and agitate their dissatisfaction with the orders made in December 2005 was to withhold the child from the maternal grandmother.

8. Contemporaneously with that detention, the mother filed an Application in a Case on 12 April 2007 seeking orders overturning those made in December 2005 so that the child could live with her.  There was no litigation then pending concerning the child.  The Application in a Case was filed by the mother in the litigation that was then pending, commenced in early 2006, between the mother and first respondent regarding their children K and O.

9. The maternal grandmother also filed an Application in a Case on 18 April 2007, effectively seeking orders permitting her recovery of the child from the mother.

10. A recovery order was made in respect of the child by Justice Waddy on 19 April 2007, as a consequence of which the child was returned to the care of the maternal grandmother in fulfilment of the orders made in December 2005.

11. At the same time that the recovery order was made, the Court made an order extending the representation of the Independent Children’s Lawyer to the child.  The Independent Children’s Lawyer had previously been appointed in the litigation between the mother and first respondent, but when her appointment was initially made her representation was confined to the children K and O.

12. Similarly, Dr R was appointed as a singe expert, pursuant to Chapter 15 of the Family Law Rules, on 9 February 2007.  At the time of that appointment the dispute in respect of the child had still not arisen, and so the single expert’s initial involvement was confined to issues relating to the children K and O.  However, the expert’s role later evolved to include consideration of the child’s circumstances.  The three reports of the single expert, prepared in 2007, 2008 and 2009, all directly concern the child.

13. The child’s contact with the mother, his half-brothers, and the first respondent ceased in late 2007.  The parties are agreed that the cessation occurred in around September or October 2007.  It is uncontentious that from around that time the child has not had any physical or verbal contact with the mother and his half-brothers, except for the two occasions in 2008 and 2009 upon which he was assessed in their presence by the single expert.

14. Needless to say, the absence of contact between the child and the mother and his half-brothers for well over two years flouts the intention of the parenting orders made in December 2005.

15. The reasons for the cessation of that contact are somewhat contentious.

16. The mother and first respondent concede that they decided in late 2007 not to allow any further contact to occur with the child because at that time the child was demonstrating violent tendencies towards his younger half-brothers. He was causing them physical harm. The child was also deliberately causing physical damage to their home. The mother and first respondent assert that they consciously decided to sever the child’s contact in order to teach the child a lesson that he should not hurt his half-brothers or cause damage to the house.

17. The mother and first respondent contend that they subsequently made a decision to reintroduce the contact with the child, but by the time they had so decided, their attempts to reintroduce the contact were rebuffed by the maternal grandmother. The mother was unable to remember when she began making those attempts. The maternal grandmother denies that she received any approaches from the mother about the re-introduction of contact for the child with herself and the child’s half-brothers.

18. In any event, the mother concedes that the last occasion upon which she endeavoured to establish contact with the maternal grandmother for the purposes of reintroducing the child’s contact with her was at Christmas time 2008.  More recently, the mother informed the single expert that she had decided that it was best if she did not see the child “until the Judge sorts it out”.

19. Essentially, there has been a standoff between the mother and maternal grandmother about the parenting arrangements for the child since about October 2007.  The state of communication between them has been so poor that they have not been able to put aside their differences of opinion to facilitate the child spending any time with the mother or his half-brothers, even in the face of the advice of the single expert that that should occur, and even though the orders made in December 2005 providing for contact to occur remain in force.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

1. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

2. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

3. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Child’s Best Interests – Primary Considerations

Section 60CC(2)(a)

1. The child has no relationship at all with his biological father, Mr Cooper, let alone a relationship which is a meaningful one.  The uncontested evidence is that the child has not seen or heard from Mr Cooper since sometime during 2005. 

2. The child is aware of Mr Cooper’s existence and the paternal connection between them.[6] However, the child did not identify Mr Cooper as a constituent member of his family group when asked to compile “family drawings” in 2007[7] and 2008.[8] The child did express to the single expert a wish to see Mr Cooper, but I impute that that wish is simply the product of an idealised but non-existent relationship. They have had no interaction with one another now for about half of the child’s life.

   [6] Single Expert report, 23 July 2007, page 5

   [7] Single Expert report, 23 July 2007, page 5

   [8] Single Expert report, 3 July 2008, page 5

3. Although the child realises that the first respondent is not actually his biological father, he has in the past referred to the first respondent by the name “Dad”.[9]  His past reference to the first respondent by that name is indicative of the absence of Mr Cooper from his life.

   [9]  Single Expert report, 23 July 2007, page 4

4. The child’s relationship with the mother has been troubled, but the relationship is still a meaningful one for him. The reasons why that relationship has been troubled is the subject of factual dispute, but rather than determine the reasons for the fracture in the relationship, it is more important to evaluate what remains of it and to recognise the benefit derived by the child from it.

5. The single expert initially described the child as having an ambivalent relationship with the mother.[10]  However, the single expert saw the child interact with the mother in a way that was consistent with the existence of a bond between them.[11]  The child was pleased to cuddle his mother and be physically close with her.  The single expert considered that the interaction between the child and the mother indicated that the child has remembered experiences of the mother as an affectionate parent.[12]

   [10] Single Expert report, 23 July 2007, page 17; Single Expert report, 3 July 2008, page 7

   [11] Single Expert report, 3 July 2008, page 5; Single Expert report, 10 August 2009, pages 4-5

   [12] Single Expert report, 10 August 2009, page 6

6. When cross examined, the single expert said that the relationship between the child and the mother was such that steps should be taken to preserve it. It follows that the single expert considered that the relationship is of benefit to the child.  There would be no other reason for its preservation.

7. Although the bond between the child and the mother is not as strong as that between the child and the maternal grandmother, the child’s relationship with the mother is sufficiently meaningful for him that efforts should be made to preserve the relationship that does exist. The child will be able to later cultivate and enrich the relationship with his mother when he develops the emotional maturity to decide for himself whether that is what he wants.

Section 60CC(2)(b)

1. The child has been living in the household of the maternal grandmother and third respondent since December 2005. There is no evidence of the child being at risk of physical or psychological harm from being subjected or exposed to abuse, neglect or family violence in that household. It is a safe environment for him.

2. It is not as straightforward to make the same observations about the safety of the child in the mother’s household.

3. The maternal grandmother has adduced evidence of injuries in the form of bruising sustained by the child, which she observed on his body on the weekend of 6 October 2007.[13]  She took photographs of the bruising and the photographs are also in evidence.[14] The maternal grandmother asserts that she discussed with the child the manner in which he sustained the bruising and that the child accused the first respondent of inflicting the bruising.[15]  The maternal grandmother earlier reported to the single expert that the child had told her that the mother had also caused that bruising by hitting and kicking him.[16] That was a significantly different version of the child’s explanation from the one she reported in her affidavit. The inconsistency is perplexing.

   [13] Affidavit of the maternal grandmother, par 44

   [14] Affidavit of the maternal grandmother, Annexure F

   [15] Affidavit of the maternal grandmother, par 45

   [16] Single Expert report, 3 July 2008, page 2

4. Despite the obvious relevance of that evidence, the maternal grandmother did not at any stage after that evidence came to her attention on 6 October 2007 file in the proceedings a Form 4 Notice of Child Abuse or Family Violence. She did not comply with the requirements of the Act (see s 67Z) or the Family Law Rules (see Rules 2.04A, 2.04B, 2.04D), and by reason of that failure, the mechanism of the Act crafted for expeditious hearing in such circumstances (s 60K) was not invoked. That may partly explain why the matter did not attract more urgent attention and why the litigation has been languishing for so long.

5. It may be that the maternal grandmother was ignorant of the provisions of the Act and Rules, or it could be that the maternal grandmother was really not satisfied in her own mind that the evidence was sufficient to prove that the child was actually at risk of abuse in the mother’s household. In any event, the evidence was led and it should be scrutinised carefully.

6. There are numerous references in the reports of the single expert to the child alleging that he had been physically disciplined in the household of the mother,[17] but he did not mention the incident of 6 October 2007 to the single expert.

   [17] Single Expert report, 23 July 2007, pages 4-5; Single Expert report, 3 July 2008, page 5

7. There was no evidence adduced of any injury suffered by the child, other than the bruising he sustained in October 2007.

8. The first respondent denied that he had even come into contact with the child on the weekend of 6 October 2007.  He asserted that he had last seen the child some weeks before in September 2007 and that he had not been present when the mother and child spent some time together in October 2007.  The evidence of the first respondent in that regard was corroborated by the evidence of the third respondent.[18] There is consequently considerable doubt about whether the first respondent could have been responsible for inflicting the bruising upon the child on or just prior to 6 October 2007, in which case the attribution of blame by the child to the first respondent would be unreliable.

   [18] Exhibit MGM2, par 14

9. The potential unreliability of the child’s statements also arises from other circumstances.  It is common ground that many years ago the first respondent deliberately bit the child on the hand as an ill-advised act of discipline, following the child having bitten one of his half-brothers.  The child is acutely aware of the entrenched acrimony that exists between members of the mother’s household and members of the maternal grandmother’s household.  The mother and maternal grandmother both accept that the child probably says to them what he perceives that they each want to hear. The child’s school teacher told the single expert in 2007 that the child was prone to tell lies.[19] The first respondent would be an obvious person for the child to blame for any injuries upon his body, particularly when he was aware that the maternal grandmother was sufficiently suspicious to interrogate him about, and to photograph, the bruising.

   [19] Single Expert report, 23 July 2007, page 6

10. Despite the evidence adduced by the maternal grandmother on the issue of the child’s bruising on that occasion, her solicitor ultimately conceded that the evidence was insufficient to sustain a positive finding that the child had been physically abused by some person in the household of the mother.  The solicitor for the maternal grandmother also submitted that the Court need not consider whether an unacceptable risk existed of the child suffering physical harm from being subjected to abuse or family violence within the household of the mother.  It was contended by the maternal grandmother that that evidence was a subsidiary part of her case and that other evidence in the case dictated the parenting outcome without the need for any such findings to be made. It therefore transpired that the maternal grandmother resiled from any suggestion that the need to protect the child from harm in the mother’s household was a primary consideration in the case.

Child’s Best Interests – Additional Considerations

Section 60CC(3)(a)

1. The child is only 10 years of age.  He has not yet acquired the emotional maturity for the Court to repose significant weight in the views expressed by him.  However, the single expert said in cross examination that his views should be given some weight despite his young age.

2. The child has consistently expressed a view to the single expert over a protracted period of time that he does not wish to live with the mother.  He said so to the single expert at the time of her first,[20] second,[21] and third reports.[22]

   [20] Single Expert report, 23 July 2007, pages 3 and 5.

   [21] Single Expert report, 3 July 2008, page 5

   [22] Single Expert report, 10 August 2009, page 4

3. The single expert regarded the statements made to her by the child on three occasions across a period of two years to have been clear, consistent and strident.  The single expert also regarded the child’s expressed wish to live with the maternal grandmother as being authentic.

4. The mother and first respondent do not accept the authenticity of the child’s stated wishes.  They believe that he has been coached to say such things by the maternal grandmother.  I do not share their belief.

5. For reasons already addressed, I do not repose any real weight in statements made by the child individually to the mother and maternal grandmother, because he is alive to the conflict between them.  However, the expression of his views to the single expert is altogether different.  As an independent observer with no bias towards either party, the child obviously feels safe expressing his real views to her.  That situation can be simply exemplified.  When interviewed for the second report, the child told the single expert whilst they were alone that he wanted to live with the maternal grandmother and third respondent.[23]  However, when he was shortly thereafter seen together with the mother, the first respondent, and his half-brothers, the mother directly asked the child twice if he would like to return to live with her, to which the child responded affirmatively whilst pointedly looking at the single expert.[24]  The child had told the mother what he perceived that the mother wanted to hear from him, even though it was directly contradictory to what he had just before told the single expert in response to the same question.  The single expert interpreted that the child had given his affirmative answer to the mother whilst looking at the expert “pointedly” because he was making the point to the expert that his answer to the mother was not a genuine representation of his sentiment.

   [23] Single Expert report, 3 July 2008, page 5

   [24] Single Expert Report, 3 July 2008, page 5

6. Apart from the evidence about the child stating that he did not wish to live with the mother, there is evidence that the child has stated that he did not wish to even see the mother.  While he has been consistent about the former, he has not been consistent about the latter. Initially he told the single expert that he did wish to continue seeing his mother,[25] but more recently he has said something different.  Some months ago he told the single expert that he wants to stop thinking about the mother,[26] but it seems that the single expert was prepared to attribute that sentiment to the child being frightened about the uncertainty of his situation. The child also recently wrote a note, which he gave to the maternal grandmother with a request that she deliver it to the Court. The note was tendered in evidence,[27] and in the note the child clearly expresses a wish to only see his half-brothers and not the mother or the first respondent.

   [25] Single Expert Report, 23 July 2007, page 5

   [26] Single Expert Report, 10 August 2009, page 4

   [27] Exhibit MGM1

7. When the single expert was cross examined she was asked to consider whether there was a distinction to be drawn between, on the one hand, the child’s expressed wish not to live with the mother, and on the other, his expressed wish to not even see the mother.

8. The single expert had made earlier observations of the child and mother being affectionate with one another.  She concluded that the child would like to continue seeing the mother, which is why the single expert had supported the idea of continuing interaction between them.  The single expert thought that the child’s expressed view that he not even see the mother, as demonstrated by the contents of his recent note, was not a genuine representation of his feelings.  She regarded the statement of such views as merely a manifestation of the child’s emotional disturbance at the continuing state of uncertainty about his future. She expressed the opinion that the child had simply become overwhelmed with the anxiety of the situation.

9. I accept the evidence of the single expert, because there is no reason not to do so. Her evidence seemed reasoned, thoughtful, and logical. She was not challenged about the validity of her core opinions.

10. I accept that the child genuinely wishes to continue living with the maternal grandmother and third respondent, which view should carry some weight. I am not however satisfied that the child genuinely does not wish to see the mother.  I conclude on the evidence that the child does wish to continue seeing his mother and half-brothers, provided that he is assured that his residence with the maternal grandmother is permanent and that he is not at risk of removal to, and retention in, the home of the mother.

Section 60CC(3)(b)

1. The child has no relationship with Mr Cooper.

2. The nature of the child’s relationship with the mother has already been discussed as a primary consideration.

3. The most important relationship in the life of the child is that which he enjoys with the maternal grandmother.  The child has lived permanently in her care since December 2005.  The third respondent has also formed part of that family unit.  I am satisfied that the child has a meaningful relationship with the third respondent also, but it is subsidiary to the importance in his life of the relationship that he enjoys with the maternal grandmother.

4. The maternal grandmother represents the child’s emotional anchor and the warmth of that relationship was observed by the single expert.  The child and maternal grandmother were seen to interact lovingly and calmly.[28] The child identified himself, the maternal grandmother and the third respondent as constituting his family unit.[29]

   [28] Single Expert report, 3 July 2008, page 2 & Single Expert report, 10 August 2009, page 4

   [29] Single Expert report, 3 July 2008, page 5

5. The overarching importance of the relationship between the child and the maternal grandmother, and the physical and emotional stability he has derived from that relationship, is a consideration of overwhelming significance in this case.

Section 60CC(3)(c)

1. Regrettably, the evidence leads inexorably to a finding that the mother, first respondent, maternal grandmother, and third respondent, are all unwilling and unable to facilitate and encourage a close and continuing relationship between the child and the adult members of the opposed household.

2. For the mother’s part, she has railed against the parenting orders made in December 2005 since she took the decision in April 2007 to detain the child in contravention of those orders.  Since then she has continued to contest the appropriateness of those orders for the child and has actively agitated for the child to be removed from the care of the maternal grandmother.  Her case has consistently contained a proposal that the child spend very limited time with the maternal grandmother in supervised conditions at a contact centre.  The mother repeatedly asserted in evidence that she saw no real benefit to the child maintaining a relationship with the maternal grandmother and third respondent.  Indeed, she steadfastly opposed her other children having anything to do with the maternal grandmother and third respondent.  She had the unwavering support of the first respondent in that regard.

3. The maternal grandmother complied with the orders made in December 2005 by facilitating the child’s contact with the mother until October 2007.  She conceded in cross examination that since then she has done nothing to facilitate the contact.  True it is that it was the voluntary decision of the mother and first respondent to sever the contact with the child at that point in time, but apart from a few perfunctory telephone calls made to the mother about the cessation of contact, the maternal grandmother did nothing to promote the continuation of a relationship between the child and the mother.

4. I am satisfied that the mother reconsidered her position and made attempts to re-establish contact with the child.  The evidence is quite indistinct about when she began making those efforts. The mother could not remember, but it was by the latter months of 2008 at the latest.  I accept that the mother made such attempts by unsuccessfully making telephone calls to the home of the maternal grandmother, and by sending letters and cards to the child at the maternal grandmother’s address.  Copies of the letters and cards sent by the mother to the child during the latter months of 2008 are in evidence.[30]  The maternal grandmother therefore had to admit that evidence in her affidavit about the absence of contact from the mother[31] was false.

   [30] Affidavit of the maternal grandmother, Annexure E

   [31] Affidavit of maternal grandmother, par 40

5. The maternal grandmother was impelled to concede in cross examination that the letters and cards sent by the mother to the child represented heartfelt and genuine attempts by her to renew her relationship with the child.

6. One might have expected a maternal grandmother to recognise the importance of encouraging the child to warmly receive and reciprocate the mother’s attempts to renew their relationship.  A grandparent demonstrating maturity and insight would have done so.  But the maternal grandmother did not.  It is a matter of great regret that the maternal grandmother actually helped the child to rebuff the mother.

7. The child prepared a typewritten letter, to which handwritten amendments were made, which he sent to the mother on or about 22 December 2008.  The letter and a copy of the envelope in which it was posted are in evidence.[32]  The letter reads as follows:

   [32] Exhibit R1

   “Dear B.J

   I prefer you not to write to me just the photos (sic).  I am happy living here with my nanny and poppy.

   Not there B.J I don’t want to live with you and [the second respondent].

   23.11.2008 I would like to see my brothers but NOT you and [the second respondent].

   25.11.2008 It is nice to look at their photos but I don’t want to send any photos of me to you.

   22.12.2008 I am sending these back because I don’t want to hear from you.

   from [the child]

   this is my choice (handwritten)

   from [the child] (handwritten)”

1. The maternal grandmother says that the child typed the letter himself, but only after they had discussed his intention to prepare it. The maternal grandmother did not deter him. The maternal grandmother admits that she discussed the contents of the letter with the child after it had been typed and that she suggested the handwritten amendments made to it by the child. She also accompanied the child to the Post Office in order that he was able to post the letter to the mother. She paid for it to be posted.

2. I also accept that the mother unsuccessfully attempted to telephone the home of the maternal grandmother to speak with the child on Christmas Day 2008.  An excerpt from a telephone invoice is in evidence, which is said to prove the unsuccessful telephone calls to the maternal grandmother at that time.[33]  The maternal grandmother concedes that the telephone number to which those calls were made on that day was in fact her telephone number at that time.

   [33] Exhibit R2

3. The maternal grandmother rejects any suggestion that she actively set out to thwart renewal of the relationship between the mother and child in late 2008. Even if she genuinely believes that to be so, no rational argument can be made that she demonstrated any willingness or capacity to facilitate and encourage a relationship between the child and the mother at that time.

4. The mother was sufficiently discouraged by her unsuccessful attempts to renew the relationship with the child in late 2008 that she ceased making efforts after Christmas Day 2008 to establish contact with the maternal grandmother and the child.  That seems to have suited the maternal grandmother perfectly well.  She has done nothing since then to reconnect the mother and the child.

5. The respective failures of the mother and maternal grandmother directly breach the orders made in December 2005, which provide for the child to have regular contact with the mother.  Those orders remain in force.

6. Even if it could be cogently argued that the pre-existing orders providing for the child to spend time with the mother had been overtaken by subsequent events, the failures of the mother and maternal grandmother over the last two years are directly repugnant to the recommendations of the single expert.

7. In her second report dated 3 July 2008, the single expert recommended that the child spend day-only time with the mother and his half-brothers when the mother makes arrangements to be in the Blue Mountain region to see the child.  The mother failed to make such arrangements, and the maternal grandmother failed to facilitate the making of such arrangements.

8. In her report dated 10 August 2009, the single expert recommended that the mother and child spend time together for up to four hours in H in Sydney on Saturdays at a frequency of once per month initially, moving to a fortnightly cycle when the child was sufficiently comfortable with that arrangement.  Neither the mother nor maternal grandmother made arrangements for that to occur, even though they both purported to be concerned that it was not occurring.

9. Nor did the mother and first respondent take up the advice of the single expert, contained within her first report dated 23 July 2007, that they participate in family therapy. They did not think that they needed it. Nor did the maternal grandmother facilitate the child’s involvement in family therapy with the mother, as recommended by the single expert.

10. The failings of the mother and maternal grandmother, supported as they were by the first and third respondents, reflect very poorly upon their attitudes towards the child and their respective parenting capacities.

Section 60CC(3)(d)

1. Leaving the current residential regime for the child in place is least likely to adversely affect the child.  That is the outcome for which the maternal grandmother and Independent Children’s Lawyer advocate, with evidential support from the single expert.

2. Removing the child from the home of the maternal grandmother and third respondent, where he has been living for more than four years, and ordering that he live with the mother and first respondent would be a profound upheaval for the child.  He would certainly be deleteriously affected by such a result.  That would be a certain outcome, not merely a probable one.

3. The single expert has commented that the child needs to have the security and certainty that he will continue to live with the maternal grandmother and third respondent.[34] That is a consideration which carries significant weight.

   [34] Single Expert report, 10 August 2009, page 6

Section 60CC(3)(e)

1. The mother and first respondent live at D. The maternal grandmother and third respondent live at V.  Those households are quite some distance apart.  The mother does not drive and the first respondent is a disqualified driver.  They do not have access to a motor vehicle and are reliant upon public transport.

2. The parties would experience practical difficulty if the child was to live in one household and spend frequent time in the other household, particularly if the mother and first respondent were responsible for any of the travelling necessary to implement changeover.

3. The single expert recommended that the mother should communicate with the child in writing.[35]  The single expert said nothing in her later report in 2009, or during her cross examination, which would suggest that she did not adhere to that opinion.

   [35] Single Expert report, 3 July 2008, page 7

4. When the maternal grandmother was cross examined about the mother writing to the child she said that she would encourage that form of communication. That was a surprising answer, given the way she had handled the child’s return letter to the mother in late 2008, but perhaps it demonstrated the maternal grandmother’s acquisition of some insight. Hopefully that is the case.

5. In the circumstances, there is no practical difficulty or expense that would be incurred in the mother and child corresponding with one another in writing.  Such communication should be positively encouraged.

6. The single expert also offered the opinion that the child should be free to telephone the mother whenever he wanted to do so.[36]  Inferentially, the single expert did not recommend that the mother should be free to telephone the child whenever she wished to do so.

   [36] Single Expert report, 3 July 2008, page 7

7. The maternal grandmother admitted in cross examination that the mother had forwarded to her by text message, on 19 March 2009, the mobile telephone number upon which the mother could be reached.  There is no evidence that either the child or the maternal grandmother have ever contacted the mother on that number since then. The maternal grandmother told the child that he could use the number to contact the mother, but she did not encourage him to do so.

8. The child should be encouraged and permitted to telephone the mother on that number whenever he wishes, in accordance with the single expert’s recommendation.  There would be no practical difficulty and very little expense incurred in permitting the child to communicate in that way with the mother.

Section 60CC(3)(f)

1. There is no evidence adduced to suggest that any party has any shortcoming in their capacity to provide for the physical and intellectual needs of the child.

2. For reasons already addressed, all of the parties have impaired capacity to provide for the emotional needs of the child.  That impairment is demonstrated by their uniform reluctance to speak positively of one another in the child’s presence and their inability to encourage the child to develop his relationships with the other parties.

Section 60CC(3)(g)

1. The respective bitterness demonstrated by the mother and first respondent towards the maternal grandmother and third respondent, and vice versa, is indicative of a lack of maturity in all of the parties.  The evidence invites, and perhaps even demands, an inference that their bitterness towards one another has permeated their thinking to such an extent that their judgment has been clouded about how best to promote the child’s psychological health.  That is a criticism that can be levelled equally at each party.

Section 60CC(3)(h)

1. Neither the parties nor the child identifies as indigenous Australian.

Section 60CC(3)(i)

1. For reasons already addressed, the parties do not demonstrate a proper attitude to the child and to the responsibilities shouldered by them as parents or putative parents.

Section 60CC(3)(j)

1. These proceedings do not involve any allegation of family violence perpetrated between the parties.

2. The abandoned issue of possible infliction of family violence upon the child has already been addressed as a primary consideration under s 60CC(2)(b) of the Act.

Section 60CC(3)(k)

1. There is no family violence order in existence involving the child or any party.

Section 60CC(3)(l)

1. The orders proposed by the Independent Children’s Lawyer, with the concurrence of the maternal grandmother, are consistent with the evidence and recommendations of the single expert. 

2. The orders are also consistent with the opinions expressed by the child’s treating paediatrician and counsellor, which suggest that his current residential arrangements are conducive to the child’s intellectual and psychological progress.

3. The single expert has given evidence that the child has become settled with the combination of medication and no time with the mother and first respondent.  She considers that the child appears to have been making gains in all areas of his development.[37]

   [37] Single Expert report, 3 July 2008, page 7

4. The child’s psychologist, Mr E, reported to the single expert that the child seemed happy in his residential arrangement with the maternal grandmother and third respondent.[38]  Mr E terminated his therapy with the child in January 2008 because he thought that the child had no further use for the therapy.  He then seemed happy and stable.[39]

   [38] Single Expert report, 23 July 2007, page 6

   [39] Single Expert report, 3 July 2008, page 6

5. The child’s treating paediatrician, Dr M, reported to the single expert in mid 2008 that the child was doing extraordinarily well with the maternal grandmother and third respondent.[40] The mother and first respondent validly pointed out, however, that that opinion may have been based substantially upon history provided by the maternal grandmother rather than independent assessment by the doctor.

   [40] Single Expert report, 3 July 2008, page 6

6. Nevertheless, Dr M more recently reported to the child’s general practitioner on 20 November 2009[41] that he had last reviewed the child on 11 November 2009.  He concluded that the child seemed to be progressing quite well and that he was growing and developing normally.  The child is due to be reviewed by Dr M again in about May 2010. Dr M had previously prescribed anti-depressant medication for the child, but that medication was abandoned and the child has since been medicated for Attention Deficit Disorder.  He was due to be weaned off that medication around Christmas 2008.[42] The child was still on that medication when reviewed by Dr M in November 2009, but the maternal grandmother gave evidence that the medication was ceased around Christmas 2009. 

   [41] Affidavit of the maternal grandmother, Annexure C

   [42] Single Expert report, 3 July 2008, page 6

7. The assistant principal of the school attended by the child, Ms G, reported to the single expert in 2007 that the child had then begun to improve academically from how he initially presented at the school.[43]

   [43] Single Expert report, 23 July 2007, page 6

8. The preponderance of evidence leads to the conclusion that parenting orders which are generally reflective of those proposed by the Independent Children’s Lawyer and maternal grandmother are least likely to lead to the institution of further proceedings in relation to the child.

9. Making orders consistently with those proposed by the mother would likely lead to upheaval for the child and would inevitably increase the prospect of further proceedings being brought before the Court to regulate the child’s parenting arrangements.

Section 60CC(3)(m)

1. The maternal grandmother wished to change the child’s surname from “Jordan” to “Jordan-Ether”. The Independent Children’s Lawyer did not wish to be heard either in favour of or opposition to the proposal. The mother and first respondent were against it.

2. That issue was discussed by the child at his interview with the single expert in June 2008. The child told the expert of his wish for the name change without that issue being the topic of discussion. The child raised it as an issue carrying the same importance as his residence with the maternal grandmother and not seeing the mother.[44]

   [44] Single Expert report, 3 July 2008, page 5

3. For reasons already addressed, the single expert did not believe that the child’s statements about not wanting to even see the mother were authentic or reliable.

4. The manner in which the expert reports that the child made his comments about the prospective change of his surname leave me with a sense of disquiet about the genuineness of the child’s feelings. He is reported as saying that he wanted:

   “to change my name to [C Jordan Ether]” because “it’s part of the family”

5. The child is reported to have emphasised, with a combative attitude, that the change of surname was his own choice and that the maternal grandmother and third respondent had not told him to do anything.

6. I impute from the expert’s description of the discussion that she had not given the child any reason to think that she suspected that he was being coached to say such a thing. For the child to therefore defensively assert that the wish for a name change was his own choice, one may suspect that he was in fact being prevailed upon to say such things. I am not satisfied on the evidence that the child probably was coached to express a wish for a name change, but equally, I am not satisfied that the idea was the child’s own. Nor am I satisfied that it is his genuine desire. I think it more likely that, in one way or another, the child has become aware that the maternal grandmother would prefer his surname to reflect her own and expressed his wish for the name change as an act of loyalty to her.

7. The single expert was asked about her opinion in respect of a change of surname for the child. She said that she had no objection to the child’s “informal” use of the hyphenated surname, but that she thought that a “formal” change of name would be better left to the child to make that decision for himself when he attained his majority.

8. Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan v Handcock (2001) FLC 93-074 at [19-38]; M v B [2001] FamCA 894 at [35-37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).

9. The single expert has said that the child has a relationship with the mother that should be preserved, but that the preservation should be achieved by infrequent supervised visits. The maternal grandmother has not been able to achieve continuing interaction of any sort between the child and the mother. The retention by the child of the surname “Jordan” is one concrete way in which he can preserve a link with the mother. The use of the name “Ether” in his surname, either individually or part of a hyphenated name, is not important for the child to identify with half-siblings who use that name, because there are none. Nor is it important for the child to use that name to identify with the maternal grandmother and the third respondent. It is no secret that they are his grandparents, and grandparents often have different surnames from their grandchildren. Having a different surname from them has not impeded his development of an important bond with them already.

10. I do not really understand the single expert’s differentiation between informal and formal use of surname. However, in light of the circumstances and the single expert’s evidence, it would be in the child’s best interests to retain his existing surname. There is no overt reason given for the need for change, other than an expressed wish of the child, which I am not satisfied is a genuine desire. Whether the child later changes his surname will be a matter for him to decide when he is an adult.

11. The maternal grandmother also wished to be at liberty to move inter-state with the child should work opportunities for the third respondent emerge in other states. The maternal grandmother said that there were presently no definite plans for them to move, but the third respondent said that he had already made applications to work inter-state on finite contracts of up to 3 years in duration.[45]

    [45] Exhibit MGM2, pars 4-6

12. The Independent Children’s Lawyer was supportive of the maternal grandmother’s proposal that she be free to relocate with the child.[46] The mother and first respondent were against it.

    [46] Exhibit ICL2, Order 6

13. The maternal grandmother and Independent Children’s Lawyer had the support of the single expert. In her evidence the single expert said that she could see no reason to prevent any inter-state relocation.

14. An inter-state move by the child would entail a change of schools for him. The mother and first respondent pointed out that the child’s psychologist, Mr E, had previously reported to the single expert that it would be detrimental for the child to be moved from his school.[47] They relied upon that evidence as a reason to preclude any inter-state move by the child. The mother and first respondent could not take much comfort from that evidence though because their proposal was that the child should live with them, which would require his removal from the school.

    [47] Single Expert report, 23 July 2007, page 6

15. The evidence about detriment to the child by removal from his school was an opinion expressed in July 2007, which was nearly 3 years ago. The evidence of the single expert and treating therapists is that the child has settled and progressed noticeably over that period. I am satisfied that he could now cope with a change of school, provided his sense of security is enhanced by knowing that he will remain resident with the maternal grandmother.

Parental Responsibility

1. As already noted, the Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). In this case, the presumption is rebutted by the evidence demonstrating that allocation of equal shared parental responsibility for the child to the mother and Mr Cooper would not be in the child’s interests. The mother does not even know how Mr Cooper can be found or contacted, which obviously precludes their ability to discuss major long-term issues affecting the life of the child.

2. When the presumption is rebutted, the Act does not require default allocation of parental responsibility to one parent solely. Rather, the allocation of parental responsibility is then wholly dependent upon the Court’s determination of the adult, or adults, whom the evidence suggests is or are the most appropriate repository of parental responsibility for the child. That discretionary determination must still be informed by the child’s best interests.

3. The child has now been living with the maternal grandmother for over four years. That is a very substantial part of his life. For more than the last two of those years, the mother has had no face to face interaction with him. Nor has she participated in any of the decisions affecting his life. That responsibility has fallen to be exercised solely by the maternal grandmother.

1. The lines of communication between those in the mother’s household and those in the maternal grandmother’s household have completely shut down. The mother was simply unable to offer any idea at all about how she might improve her relationship or means of communication with the maternal grandmother. Nor could the first respondent foresee a time when he could co-operate with the maternal grandmother. Back in 2007 the mother and first respondent were saying to their children “We don’t talk about Nanny and Poppy”,[48] which was a reference to the maternal grandmother and third respondent. Nothing has seemingly changed with the passage of the last couple of years.

   [48] Single Expert report, 23 July 2007, page 4

2. Conversely, nothing said by the maternal grandmother could give the Court any sense of confidence that she would work to positively improve her relationship with the mother. She said that her relationship with the mother had broken down in 2004 and gave the distinct impression that she regarded their differences as irreconcilable.

3. The single expert recognised that there was no working relationship between the mother and maternal grandmother and that her attempts to re-ignite their communication were a resounding failure. Even at the time of interviews for her final report in 2009 the single expert brought the mother and maternal grandmother together in an effort to abate the acrimony, but neither seized the opportunity.

4. Parental responsibility for the child cannot be shared between the mother and maternal grandmother. It would be an unworkable situation. One person should have parental responsibility for the child, and I accept the submission of the Independent Children’s Lawyer and maternal grandmother that that person should be the maternal grandmother. In practical terms, she has been fulfilling that role individually since December 2005 and the child has not suffered for it.

Living, Spending Time and Communication Arrangements

1. As for the child’s living arrangements, no occasion arises for the mandatory consideration of the child spending equal time in both households, or substantial and significant time in the non-residential household, because equal shared parental responsibility has not been allocated to the child’s parents. That does not mean that the Court cannot make an order for the child to spend equal time in both households, or to spend substantial and significant time in the non-residential household. The residential outcome is informed by the child’s best interests.

2. Albeit for different reasons, no party advocates for an outcome which would meet the definitions of either equal time or substantial and significant time in each household. I agree that such an outcome would not be in the child’s best interests.

3. The evidence strongly points to the child continuing to live with the maternal grandmother. Although the orders made in December 2005 provided that the child live with the “maternal grandparents”, the Independent Children’s Lawyer proposed, and the maternal grandmother agreed with, an order that the child live with the “maternal grandmother”. The third respondent did not oppose that order. In the circumstances, I will accede to an order that the child live with the maternal grandmother rather than the maternal grandparents.

4. The material question for determination is what arrangements should be made for the child to spend time and communicate with the mother and his half-brothers.

5. At the time of preparation of her last report in August 2009, the single expert was adamant that, although the child needed the security and certainty of continued residence with the maternal grandmother and third respondent, he did need to spend time with the mother.  The single expert regarded the pivotal issue as being the fixation of a parenting regime that would accommodate those needs and not be disruptive to the child’s development.[49] The single expert considered that the child needed the non-abusive aspects of his mother reinforced to remediate his past negative experiences with her, otherwise he was at risk of growing up with no sense of positive parents with which to identify and at risk of developing a conduct disorder, or even delinquent behaviour.[50]  Ultimately, the single expert was moved to conclude that the child must recommence spending time with the mother, and that it would be to his advantage to develop his relationship with his half-brothers.[51]

   [49] Single Expert report, 10 August 2009, page 6

   [50] Single Expert report, 10 August 2009, page 6

   [51] Single Expert report, 10 August 2009, page 6

6. When the single expert was cross examined she firmly recommended finalisation of the proceedings.  She was very concerned about continued exposure of the child to litigation, which had now occupied more than half of his life.

7. The single expert adhered to her opinion that it would be an excellent outcome for the child to be able to recommence and continue interaction with his half-brothers. However, the single expert adjusted her opinion about future interaction between the child and the mother.

8. The single expert considered that the period of time during which there has been an absence of interaction between the mother and the child was of such duration, and that the child’s views had now become so hardened, that the situation was becoming too complicated for the child to cope emotionally.  The single expert regarded the contents of the note written by the child for the maternal grandmother to give to the Court[52] to be a clear manifestation of the child’s need for his emotional disturbance to cease.

   [52] Exhibit MGM1

9. The single expert therefore concluded that frequent interaction between the mother and child would now be too disruptive to the child, whom she regarded as not sufficiently resilient to cope with such disruption.  The single expert recommended that the child interact with the mother and his half-brothers on a basis which would merely serve to facilitate their identification of one another as family members.  The single expert said that such a regime should entail interaction on only three to four occasions per year, for a few hours at a time, in a contained setting such as that within a supervised session conducted at a contact centre. As she gave her evidence, her opinion was refined to there being only three sessions annually.

10. However, the single expert recommended that involvement of the mother in that process be conditional upon her consistent attendance at the sessions, and her not discussing the first respondent and maternal grandmother during the sessions.

11. The single expert was not convinced that the mother would be able to abide by those conditions, but she regarded it as worthwhile to try. Any disappointment suffered by the child as a result of the mother’s non-compliance with the conditions was, she considered, outweighed as a detriment by the sense of loss that the child would feel through continued severance of his relationship with the mother without having attempted recovery of it.

12. The orders made adopt those provisos suggested by the single expert. If the mother fails to attend a session then her further interaction with the child is precluded for a period of 12 months rather than permanently. A period of a year should be sufficient for the child to acquire more maturity and be more readily able to cope with the disappointment that could arise from any perceived abandonment of him by the mother.

13. The maternal grandmother said that she thought it would be a good idea for the child to spend time with the mother and his half-brothers in the circumstances recommended by the single expert. She said that she would facilitate that interaction and that she would tell the child that such interaction would be worthwhile. She was prepared to pay the costs associated with use of the contact centre. The maternal grandmother said that, in the event of a future relocation inter-state, she would make arrangements to bring the child back to NSW for the purposes of continuing to see the mother and his half-brothers. Hopefully the maternal grandmother was speaking truthfully and will abide by her evidence.

14. The single expert was firm in her opinion that the first respondent should not participate in the sessions with the child. She did not consider that the relationship between the child and first respondent was worth sustaining, and that the child’s comfort at the sessions would be compromised by the first respondent’s presence.

15. The mother said in her evidence that she would be content for the child to see his half-brothers in a contact centre. She acknowledged that the most important thing she derived from the reports of the single expert was that the children have a meaningful relationship with one another. She agreed that the child probably missed his half-brothers, and that they certainly missed him.

16. The mother also desired to renew and maintain her relationship with the child. She said that she ideally wanted the first respondent to also be involved with the child, but she was prepared to comply with an order precluding the first respondent’s contact with the child if the Court so ordered.

17. The first respondent also expressed a wish to be involved with the child, but acknowledged that he would abide by any order precluding his involvement. The first respondent said that he voluntarily ceased his involvement with the child in late 2007 because he had concluded that he was “better off being off the scene”. The first respondent is therefore aware that the relationship he would like to enjoy with the child must yield to the importance of the relationships that the child should have with the mother and his half-brothers.

18. Although the mother and first respondent harboured a perception that they, the child, and their other three children constituted a family unit, the single expert did not share that perception and explained why. The mother and first respondent were separated for lengthy periods between 2004 and 2007. The child lived with the mother until only December 2005. The mother and first respondent each had one of the other children living with them from January 2005, or perhaps even earlier. The mother and first respondent did not finally reconcile until July 2008, when their third child was born. By then the child had been living with the maternal grandmother for nearly three years. They have had no interaction at all with the child for the last two years. The fervent wish of the mother and first respondent to have the child now live with them as part of their family unit is a cherished fantasy, not a reflection of reality.

19. These reasons have already addressed the desirability of the mother and child re-establishing lines of communication with one another. That could feasibly be achieved by both mail and telephonic conversation. The child may not presently be receptive to such communication, but he should at least be afforded with the means of such communication should he wish it. The mother should be free to write to the child, but it would presently be counter-productive to permit her to telephone the home of the maternal grandmother in the face of such rank animosity between them.

20. In order to facilitate those forms of communication it will be necessary for the mother and maternal grandmother to advise each other, and keep each other advised, of their respective contact details.

Ancillary Orders

1. An order was sought by the Independent Children’s Lawyer, with the maternal grandmother’s support, to the effect that the maternal grandmother is able to change the residence of the child to any place within Australia. There is no need for such an order. The maternal grandmother has sole parental responsibility for the child and the child lives with her. The residential address of the child is a matter for the maternal grandmother to determine, on condition that she ensures continued compliance with the orders providing for the child to spend time and communicate with the mother and his half-brothers. Orders made by the Court about a child’s place of residence should avoid being unduly coercive or restrictive (see Sampson v Hartnett (No.10) (2007) FLC 93-350).

2. For reasons explained, the child’s surname should remain as it is.

3. The remaining orders were not the subject of contest.

4. No party is permitted to inflict corporal punishment on the child. No party admits having done so, despite suspicions arising about his bruising in October 2007, in which event no party will have any grievance with the order being made. 

5. No party is permitted to denigrate any other party in the presence of the child. There is no room for any sensible controversy about such an order.

6. Since the child will have limited interaction with the mother, her desire to know more about him and his progress should be accommodated. The maternal grandmother is required to furnish the mother with details about the child’s medical treatment, and to authorise the mother’s provision with the child’s school reports and photographs. The mother will therefore be able to remain appraised of the child’s medical and academic progress should she wish to make inquiries of his treating medical practitioners and schools.

7. The need for service of Mr Cooper with the pending Applications and Amended Response, now merged in this judgment, and the final orders made in these proceedings, is dispensed with. All parties consented to such an order.

8. The pre-existing parenting orders in respect of the other children of the mother and first respondent are discharged. All parties consented to such an order.

9. For those reasons I am satisfied that the orders set out at the beginning of this judgment are in the child’s best interests.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  20 April 2010