Koster and Dowd and Ors

[2014] FCCA 2956

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOSTER & DOWD & ORS [2014] FCCA 2956

Catchwords:
FAMILY LAW – Parenting – application by Father for parenting orders with respect to three and a half year old child – Maternal Grandparents joined as Second Respondents to proceedings – Mother failed to participate in
Final Hearing – Mother has a history of mental illness – no evidence before the Court of Mother’s current mental state or prognosis – consideration of role of Maternal Grandparents in child’s life – consideration and application of relevant legal principles and authorities – Father to have sole parental responsibility for the child – Maternal Grandparents to spend substantial time with the child – Mother’s time with the child to be supervised at a contact centre.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64C, 65C

Family Law Rules 2004 (Cth), r.16.07(2)
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Donnell & Dovey [2010] FamCAFC 15
Valentine & Lacerra and Anor (2013) FLC 93-539

Applicant: MR KOSTER

First Respondent: MS DOWD

Second Respondents:

MR JEFFREY

MS JEFFREY

File Number: MLC 4571 of 2013

Judgment of: Judge Whelan

Hearing dates: 14 – 16 July 2014

Date of Last Submission: 16 July 2014

Delivered at: Melbourne

Delivered on: 18 December 2014

REPRESENTATION

Counsel for the Applicant: Mr A Crozier-Durham

Solicitors for the Applicant: G & G Legal

Counsel for the First Respondent: No appearance by the First Respondent

Counsel for the Second Respondents: Ms D Harris

Solicitors for the Second Respondents: Pearsons Lawyers Pty Ltd

ORDERS

1. All previous parenting orders in relation to the child of the relationship

   
   

   X born (omitted) 2011 (“the child”) be and are hereby discharged.

2. The Father have sole parental responsibility for the child and the child live with the Father.

3. The child spend time and communicate with the Mother subject to, and conditional upon, the following:

   (a)The Mother attending upon a treating psychiatrist and following all reasonable recommendations of that psychiatrist including, but not limited to, attending any counselling or therapy recommended by the psychiatrist, being compliant with any pharmacological treatment prescribed by the psychiatrist and attending any courses recommended by the psychiatrist;

   (b)The Mother providing to the Father a letter from the psychiatrist, or if the psychiatrist is not able to prepare such a letter, the Mother’s general practitioner or a member of the Mental Health Team supervising and coordinating her care, verifying that the Mother is complying with her treatment, both pharmacological and therapeutic, with such letter to be provided to the Father once every two months for a period of 18 months and the first letter to be provided within two months of the making of these orders;

   (c)The Mother undertaking regular random alcohol and drug screening and providing the results to the Father and participating in any treatment for alcohol and drug dependence directed by her psychiatrist or other member of her Mental Health Team;

   (d)All time spent occur at the (omitted) Children's Contact Centre or other such contact centre that is agreed by the Mother and Father;

   (e)The time spent not to commence until the Mother has provided at least one letter to the Father pursuant to Order 3(b); and

   (f)The Mother informing the Father and keeping him informed of her current residential address.

4. Notwithstanding the requirements of Order 3, within 30 days of the making of this order the Father and Mother are to do all acts and things and sign all documents necessary and attend any intake interviews necessary to be placed on a waiting list for a contact centre as specified in Order 3(d).

5. Upon a place becoming available for supervised time to take place at the contact centre as between the child and the Mother, provided the requirements of Order 3 have been met, each of the Mother and Father do all acts and things, sign all documents and pay any fees required in order for supervised time between the child and the Mother to take place at the contact centre for at least two hours on at least two weekends per month during the time which the child would otherwise spend with the Maternal Grandparents, with the Mother to nominate, before time first commences, whether the Father or the Maternal Grandparents should deliver the child to and collect the child from the contact centre.

6. In the event that the Mother does not undertake the requirements set out in Orders 3, 4 and 5 within 60 days of the date of these Orders then those Orders will be discharged.

7. The Father shall provide all necessary authorities to permit the Mother to:

   (a)Receive all notices, newsletters and reports from any crèche/kindergarten/school which the child may from time to time attend; and

   (b)Receive any information concerning any medical treatment or hospitalisation involving the child.

8. The child spend time and communicate with the Maternal Grandparents as follows:

   (a)Until the child commences four-year old kindergarten:

   (i)Each Monday and Thursday from 9.00 a.m. to 5.00 p.m.; and

   (ii)The first weekend of each month from after crèche on Friday until 5.00 p.m. on the following Monday.

   (b)Upon the child commencing four-year old kindergarten:

   (i)The first weekend of the month from after kindergarten/school on Friday until 5.00 p.m. on Monday unless the Monday is a public holiday, in which case until 5.00 p.m. on Sunday;

   (ii)The third weekend of the month from after kindergarten Friday until 5.00 p.m. on Saturday; and

   (iii)By telephone on one evening per week at a time to be arranged between the Father and the Maternal Grandparents by email, with such time to be facilitated by ringing the Maternal Grandmother on her mobile phone.

   (c)At all times:

   (i)Commencing in 2015, for one week in the school term holidays at the conclusion of Term 2 as agreed between the Father and the Maternal Grandparents and if no agreement can be reached by 30 April each year, then the first week;

   (ii)Commencing not before 12 January 2015, for one week in the long summer holidays as agreed between the Father and the Maternal Grandparents and if no agreement can be reached by 31 October each year, then the second full week in January;

   (iii)

   From the conclusion of crèche/kindergarten/school or

   
   

   5.00 p.m. on the Friday of the weekend immediately prior to Christmas (and in 2014, 19 December) until 5.00 p.m. on the following Monday provided that the Monday is not

   
   

   24, 25 or 26 December, in which case until 5.00 p.m. on Sunday; and

   (iv)

   From the conclusion of crèche/kindergarten/school or

   
   

   5.00 p.m. on the Wednesday before Easter Friday until the commencement of crèche/kindergarten/school or 9.00 a.m. on the Thursday.

   (d)At such other times as may be agreed between the Father and the Maternal Grandparents.

9. The Maternal Grandparents’ time with the child pursuant to Orders 8(a)(ii) and 8(b)(i) be suspended as follows:

   (a)

   From 5.00 p.m. on the Saturday preceding Father’s Day until

   
   

   5.00 p.m. on Father’s Day;

   (b)In each year, from 5.00 p.m. on 24 December until 5.00 p.m. on 26 December;

   (c)In each year, from 5.00 p.m. on Easter Friday until 5.00 p.m. on Easter Monday; and

   (d)At such other times as may be agreed between the Father and the Maternal Grandparents.

10. For the purpose of changeovers between the Father and the Maternal Grandparents:

    (a)

    Provided that the child’s crèche/kindergarten/school is within

    
    

    25 kilometres of her current crèche, changeover will take place at the crèche/kindergarten/school where the Maternal Grandparents’ time is expressed to commence or conclude at crèche/kindergarten/school;

    (b)In the event that the child’s crèche/kindergarten/school is not within 25 kilometres of her current crèche and the Maternal Grandparents’ time is expressed to commence or conclude at crèche/kindergarten/school, the Father and the Maternal Grandparents will agree on a mid-way point between the new crèche/kindergarten/school and the residence of the Maternal Grandparents and if no agreement can be reached, the Father and Maternal Grandparents will attend mediation in accordance with the provisions of Order 17.

    (c)Where time with the Maternal Grandparents is not expressed to commence or conclude at crèche/kindergarten/school, then the Maternal Grandparents or either of them shall collect the child from the Father’s residence and send an SMS text message on their approach and the Father will collect the child from the residence of the Maternal Grandparents at the conclusion of their time with the child and send them an SMS text message on his approach provided that the location of the changeover can be changed as agreed by SMS text message.

11. The Father provide the Maternal Grandparents with notices, newsletters and reports from any crèche/kindergarten/school which the child may from time to time attend and they may participate in any school or non-school events that the child may participate in and which members of a child’s family are invited or permitted to attend.

12. The Father and Maternal Grandparents keep a communication book which will travel with the child for the purpose of recording any matters concerning the child’s health or welfare about which the other party should be made aware.

13. The Father keep the Mother and the Maternal Grandparents notified of:

    (a)Any kindergarten or school enrolment for the child including the name and address of the kindergarten or school; and

    (b)

    Any change to his residential address or phone number within

    
    

    24 hours of any change.

14. Each of the Father, Mother and Maternal Grandparents’ keep the other parties advised by SMS text message of any accident, injury or non-routine attendance upon a medical practitioner or hospitalisation involving the child with such notification to be made as soon as possible by SMS text message as soon as practical after becoming aware of the accident, injury or non-routine attendance upon a medical practitioner or any hospital admission.

15. The Maternal Grandparents are hereby restrained from permitting the child to spend time with the Mother, unless specifically agreed between the Mother and Father, save that, provided supervised time has commenced in accordance with Order 5 and the Mother continues to be compliant with Orders 3(a) and (b), the Maternal Grandparents shall be permitted to take the child to attend family functions or celebrations during the time she is spending time with them, where the Mother is also in attendance provided that the Maternal Grandparents or either of them remain in attendance with the child at all times and in the event that the Mother’s behaviour is inappropriate or there are any indications that she is psychiatrically unwell or under the influence of alcohol or drugs then the Maternal Grandparents or either of them will remove the child from the situation immediately.

16. All parties, their servants and/or agents be restrained from criticising or denigrating any other party or that other party’s family in the presence of the child or within hearing of the child.

17. In the event that the parties cannot reach a joint decision about:

    (a)The interpretation of these Orders; or

    (b)The implementation of these Orders; or

    (c)The enforcement of these Orders which involve the child,

    each of the parties will do all things necessary to enrol and participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act1975 (Cth) and that before an application is made to a court for a variation of these Orders, each of the parties shall each do:

    (d)All things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act1975 (Cth); and

    (e)Participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act1975 (Cth).

NOTATION

A.The Maternal Grandparents acknowledge that, in the event that the Mother is able to participate in spending unsupervised time with the child in the future, the time they spend with the child will need to be reduced.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4571 of 2013

MR KOSTER

Applicant

And

MS DOWD

First Respondent

MR JEFFREY

MS JEFFREY

Second Respondents

REASONS FOR JUDGMENT

Introduction

1. This is an application by MR KOSTER (“the Father”) for parenting orders with respect to the child of the relationship, X born (omitted) 2011 (“the child”). The Father seeks orders that he have sole parental responsibility for the child and that the child live with him. The Father seeks that the child spend time and communicate with the Mother, MS DOWD (“the Mother”), by agreement, subject to and conditional upon the Mother:

   ·Undertaking a parenting assessment and, if recommended, a parenting course;

   ·Undertaking random drug and alcohol screens and participating in treatment for alcohol and drug dependence;

   ·Attending for the preparation of a psychiatric report which also addresses the question of whether, and if so under what circumstances, it would be in the best interests of the child to spend time and communicate with the Mother;

   ·Participating in any recommended psychiatric treatment;

   ·Spending all time with the child supervised at a contact centre; and

   ·Keeping the Father informed of her current residential address.

2. The Maternal Grandmother, MS JEFFREY (“the Maternal Grandmother”) and her husband, MR JEFFREY (“the Maternal Step-Grandfather”) (collectively “the Maternal Grandparents”) are named as Second Respondents. The Father seeks orders that the Maternal Grandparents spend time and communicate with the child:

   ·Until the child commences kindergarten:

   oEach Monday and Thursday from 9.00 a.m. until 5.00 p.m.; and

   o

   One weekend per month from 3.00 p.m. on Friday until

   
   

   5.00 p.m. on Monday.

   ·Upon the child commencing kindergarten:

   oOne Sunday per month from 9.00 a.m. until 5.00 p.m.; and

   oOne weekend per month from 3.00 p.m. on Friday until the commencement of kindergarten on Monday.

   ·For one week in each of the July school term holiday and summer school holiday periods by agreement.

3. The Father also seeks that the Maternal Grandparents be restrained from bringing the child into contact with the Mother during all time spent unless such time is supervised by a professional third party.

4. The orders sought by the Father with respect to the time spent by the child with the parties were largely in line with the recommendations of Dr M (“Dr M”) in the updated family report dated 7 July 2014.[1]

   [1] Affidavit of Dr M filed 11 July 2014, at Annexure “MW2”.

5. At the Final Hearing, the Maternal Grandparents agreed that the Father have sole parental responsibility for the child and that the child live with him. The Maternal Grandparents sought that the child spend time and communicate with them as follows:

   ·Until the child commences four-year old kindergarten:

   oEach alternate weekend from after crèche or 5.00 p.m. on Friday until the conclusion of crèche or 5.00 p.m. on Monday; and

   oEvery other Monday from 9.00 a.m. until 5.00 p.m.

   ·

   Upon the child commencing four-year old kindergarten,

   
   

   each alternate weekend from after kindergarten or 5.00 p.m. on Friday until the conclusion of kindergarten or 5.00 p.m. on Monday; and

   ·By telephone every Wednesday at 6.30 p.m.

6. The Maternal Grandparents also sought orders with respect to the Easter and Christmas periods, which were essentially not opposed by the Father. The Maternal Grandparents did not oppose the Father’s proposal for the school term and summer holiday periods.

7. The Maternal Grandparents supported the Father’s proposal that all time spent between the child and the Mother be supervised at a contact centre. The Maternal Grandparents and the Father agreed that, in the event that the Mother failed to comply with orders to enrol at the contact centre within 30 days, the orders for her time with the child at same would be discharged. The Maternal Grandparents further proposed that the Mother:

   ·Attend upon a treating psychiatrist and follow all recommendations of same; and

   ·Provide to the Father one letter from the Mother’s treating professional every two months for the next 18 months confirming that the Mother is compliant with the recommended treatment, with the first such letter to be provided within two months of the making of such an order.

   The Maternal Grandparents proposed that the Mother provide at least one such letter before recommencing supervised time with the child.

8. The Maternal Grandparents sought that they be permitted to attend social engagements where the Mother was in attendance providing the child was supervised by one or other of them at all times and that they remove the child if it became necessary to do so.

9. The Maternal Grandparents sought orders that the Father provide authority to permit them and the Mother to receive all notices, newsletters and reports from the child’s kindergarten/school and attend any school or non-school events to which parents and family are usually invited or permitted to attend. The Maternal Grandparents further sought reciprocal orders that all parties keep the others informed of any illnesses, accidents and/or hospitalisation of the child.

10. The Mother did not participate in the Final Hearing. The Mother’s solicitors withdrew from the proceedings on 3 June 2014 and no material has been filed by, or on behalf of, the Mother since

    
    

    14 February 2014. The Mother did not appear at the last hearing date on 2 June 2014. The Mother’s Response[2] sought final orders that the Mother and Father have equal shared parental responsibility for the child and that the child spend equal time with each parent.

    [2] Response filed by Ms Dowd on 23 July 2013.

Background

1. The Father was born on (omitted) 1984 and is now 30 years of age. The Mother was born on (omitted) 1985 and is now 29 years of age.

   
   

   The parties commenced a de facto relationship in or around mid-2006 and lived together for approximately two to three months in 2007. Over the period of 2007-2011, the parties separated and reconciled on a number of occasions. The child was born on (omitted) 2011. The parties resumed cohabitation in a rental property from 4 April 2011 until the date of final separation on 9 October 2011, whereupon the Father moved out and returned to live with the paternal grandparents MS K (“the Paternal Grandmother”) and MR H (“the Paternal Grandfather”) (collectively “the Paternal Grandparents”). In December 2011, the Mother and the child left the rental property and returned to live with the Maternal Grandparents.

2. On the account of all of the parties, the relationship between the Mother and Father was “volatile”[3] and marred by drug use and the Mother’s mental illness. Both the Mother and Father allege that the other was mentally, emotionally and physically abusive.

   [3] Transcript of Proceedings, 14 July 2014, p.16 at line 45.

3. In February 2012, the Mother was admitted to the (omitted) Hospital in (omitted) (“(omitted) Hospital”) for treatment in relation to drug induced psychosis. The child was formally placed into the full-time care of the Maternal Grandparents by the Department of Human Services (“DHS”).

4. On 18 June 2012, a Custody to Secretary Order was made in the Kyneton Children’s Court with respect to the child (“the Children’s Court Order”).[4] The Children’s Court Order remained in force until

   
   

   17 June 2013 and placed 13 conditions on the Mother, including that all time with the child be supervised and that she:

   ·Attend upon a psychologist and/or psychiatrist for assessment and treatment;

   ·Submit to random supervised drug and alcohol testing and undergo treatment for misuse of same; and

   ·Undergo a parenting assessment.[5]

   [4] Affidavit of Mr Koster filed 7 June 2013, at Annexure “CK1”.

   [5] Ibid.

1. It is disputed whether, from the date of separation in October 2011 until October 2012, the Father spent any or irregular time with the child.

   
   

   The Father alleges that the Mother would not let him spend time unless he agreed to certain “conditions”;[6] the Mother deposes that neither the Father, nor his family, “made any attempt whatsoever…to contact [the child]”[7] and the Maternal Grandparents depose there was “no contact by [the Father] whatsoever” over this period.[8]

   [6] Ibid, p.2 at para.5.

   [7] Affidavit of Ms Dowd filed 18 July 2013, p.2 at para.6.

   [8] Affidavit of Ms Jeffrey and Mr Jeffrey filed 2 July 2014, p.2 at para.7.

2. The Father deposes that he had no prior knowledge of DHS’s involvement with the child, nor did DHS or the Maternal Grandparents contact him at any time prior to the Children’s Court Order being made. Upon being made aware of the Children’s Court Order, the Father contacted DHS and, after undergoing various assessments and drug screens, commenced spending supervised time with the child, firstly supervised by DHS and then by the Paternal Grandmother, in October 2012 for two hours per week. The Father spent his first overnight time with the child on 21 December 2012.

3. On 24 December 2012, the Maternal Step-Grandfather attended upon the Mother’s unit to collect her for a visit with the child. The

   
   

   Maternal Grandparents deposed that this contact was approved by DHS and that a safety plan had been implemented for the visit.[9] The

   
   

   Maternal Grandparents deposed that the Mother suffered what appeared to be a psychotic episode which the Maternal Step-Grandfather subsequently reported at the (omitted) Police Station. Shortly thereafter, the Mother arrived at the Maternal Grandparents’ home and was removed by the police and charged with breaching an Intervention Order which had been made on 6 September 2012 in favour of the Maternal Grandmother, naming the child as an Affected Family Member.[10]

   [9] Ibid, at Annexure “A”.

   [10] Ibid, at Annexure “B”.

4. On 27 December 2012, the Mother was admitted once again to the (omitted) Hospital for management of psychosis. She was discharged on a Community Based Order sometime thereafter.

5. On 27 December 2012, DHS removed the child from the Maternal Grandparents’ care while they were on holidays with the child and initially placed her into the care of the Paternal Grandparents.

6. Following a psychological evaluation of the Father, DHS placed the child into his care on 8 April 2013. The child has remained living with the Father and Paternal Grandparents since this time.

7. From 27 December 2012 to 23 July 2013, the Maternal Grandparents spent time with the child in a two-week cycle:

   ·From 10.00 a.m. until 3.00 p.m. on Monday in the first week; and

   ·From 10.00 a.m. on Monday until 10.00 a.m. on Tuesday in the second week.

8. From 27 March 2013 to 17 June 2013, the Mother spent one hour of time with the child supervised by DHS each Thursday.

9. The Father filed this application on 7 June 2013, shortly before the expiry of the Children’s Court Order on 17 June 2013. The Maternal Grandparents filed an application in a case on 17 July 2013 seeking leave to intervene in these proceedings as Second Respondents.

10. Pursuant to Orders made on 23 September 2013, the Mother spent supervised time with the child at (omitted) Children's Contact Centre (“(omitted)”) over the period of 3 November 2013 to March 2014. From January 2014, the Mother only attended three sessions due to her cancelling as a result of illness, moving house, and public transport difficulties. As the Mother missed three sessions in a row, (omitted) cancelled her supervised visits.[11] By the time of the Final Hearing,

    
    

    the Mother had not spent any time with the child since March 2014.

    [11] Affidavit of Mr Koster filed 7 July 2014, at Annexure “K1”.

11. Pursuant to Orders made by consent on 17 February 2014 and until the current date, the Maternal Grandparents have spent time with the child:

    ·For one weekend per month from 3.00 p.m. on Friday to 5.00 p.m. on Sunday on the last Friday of each calendar month; and

    ·Every Monday and Thursday from 9.00 a.m. until 5.00 p.m.

    The Maternal Grandparents are permitted to attend family functions with the child where the Mother is present provided that the child is not left under the Mother’s supervision and the Father is advised prior to the event.

Issues in dispute and evidence before the Court

1. The Maternal Grandparents initially sought an order for equal shared parental responsibility for the child, which was opposed by the Father. On the second day of the Final Hearing, after the evidence of the Father, this issue was conceded by the Maternal Grandparents. The major remaining issues in dispute between the Father and the Maternal Grandparents are as follows:

   ·How much time the child spends with the Maternal Grandparents;

   ·Whether the Maternal Grandparents should be given direct authority to receive all notices, newsletters and reports from any crèche/kindergarten/school which the child attends; and

   ·Whether the Maternal Grandparents should be restrained from bringing the child into contact with the Mother during the time the child is in their care.

2. Much of the oral evidence given in the proceedings by the Father concerned the issue of equal shared parental responsibility, however some of this evidence has wider application to the issues in dispute.

3. None of the material produced under subpoena from Victoria Police,[12] DHS[13] or (omitted) Health of (omitted)[14] was tendered into evidence and therefore cannot be considered by the Court in the determination of this matter.

   [12] Subpoena to Victoria Police filed by Mr Koster on 27 June 2013.

   [13] Subpoena to the Department of Human Services filed by Mr Koster on 27 June 2013.

   [14] Subpoena to (omitted) Health of (omitted) filed by Mr Koster on 8 August 2013.

The evidence of the Father

1. The Father filed five affidavits in these proceedings.[15] While the Father stated that he was happy for the Mother to spend “appropriate parental time, with [the child], once [the Mother] is well enough to do so”[16], he did not believe it was appropriate for the Maternal Grandparents to “spend time with my daughter, every second weekend, as if they were the parents”.[17] The Father deposed that he had tried to “reassure”[18] the Maternal Grandparents that he fully approved of them having an active involvement in the child’s life, but “that involvement should be as grandparents and not as parents”.[19]

   [15] Affidavits of Mr Koster filed 7 June 2013; 21 August 2013; 27 August 2013; 7 July 2014; and 11 July 2014.

   [16] Affidavit of Mr Koster filed 27 August 2013, p.11 at para.31.

   [17] Ibid.

   [18] Affidavit of Mr Koster filed 7 July 2014, p.9 at para.14.

   [19] Affidavit of Mr Koster filed 27 August 2013, p.9 at para.14.

2. The Father felt very strongly that “the parental role is a parental role. Grandparent’s role is a grandparent’s role”.[20] The Father deposed that he had no intention to deny the Maternal Grandparents time with the child but that he believed they were “seeking time with [the child] which [the Mother] would, otherwise, be seeking, if she was in an appropriate state, to have unsupervised care of [the child]”.[21]

   
   

   The Father felt that “what’s best for [the child] is to … not have
   [the Maternal Grandmother] take [the Mother’s] position as a mother because [the Mother] is not able to”.[22]

   [20] Transcript of Proceedings, 14 July 2014, p.11 at lines 30-31.

   [21] Affidavit of Mr Koster filed 27 August 2013, p.7 at para.32.

   [22] Transcript of Proceedings, 14 July 2014, p.56 at lines 9-10.

3. The Father described the litigation as a “burden … that doesn’t allow me to do anything – it’s financially ruined me; it’s time ruining … it’s consuming. It’s consuming”.[23] He stated that he intends to move

   
   

   out of the Paternal Grandparents’ residence and work less

   
   “

   [o]nce the proceedings are completed and I can finally get some money back behind me”.[24]

   [23] Ibid, p.32 at lines 17-19.

   [24] Ibid, at lines 22-23.

4. The Father stated that he thought the Maternal Grandparents did a “great job”[25] with the child as grandparents. He further gave evidence that “[the child] is more than happy to spend time with them … they seem to be good with [her]. As grandparents they’re fine – as grandparents”.[26] The Father stated that he valued their input as grandparents.[27]

   [25] Ibid, p.15 at line 36.

   [26] Transcript of Proceedings, 14 July 2014, p.15 at lines 35-38.

   [27] Ibid, p.48 at lines 15-16.

5. The Father believed that he could distinguish how he felt about the Maternal Grandparents as grandparents with how he felt about their interactions with him. The Father stated:

   I can put my daughter’s wellbeing before anything … How they treat me is how they treat me. If they treated my daughter in a way that I didn’t like I would say that but as grandparents … they’re fine with my daughter.[28]

   [28] Ibid, p.16 at lines 12 and 14-16.

6. The Father deposed that “I have made it quite clear that [the child] should maintain a relationship with her maternal grandparents”.[29]

   
   

   The Father gave evidence that he has “always realised the importance of attachments to [the child]”.[30] When it was put to the Father that

   
   

   Dr M did not believe the Father had “made enough change in his attitude and demeanour” or his “level of insight as to why it is so important for [the child] to maintain [her relationship with the Maternal Grandparents]”,[31] the Father stated that he thought any perceived hostility was “very understandable hostility”.[32] The Father submitted, however, that this:

   [D]oes not deprive [the child] from seeing them; nor does it affect her in any way. I don’t negatively talk about the family in front of her … I do everything I can so she still has that relationship with that family. I haven’t – at no stage tried to stop her from being a part of that side of her family. Ever.[33]

   [29] Affidavit of Mr Koster filed 21 August 2013, p.7 at para.32.

   [30] Transcript of Proceedings, 14 July 2014, p.51 at lines 46-47.

   [31] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.18 at para.61.

   [32] Transcript of Proceedings, 14 July 2014, p.52 at line 28.

   [33] Ibid, at lines 29-33.

7. The Father stated that “[a]t no stage have I ever gone to say
   

   [34] Ibid, p.53 at lines 16-18.

   “no, they’re not having any time”. Every court proceeding I have done - everything has included them every step of the way”.[34]

8. The Father denied that he had a resentment “of the maternal grandparents … strong and secure relationship with [the child]” as concluded by Dr M,[35] but rather that he had a resentment towards the Maternal Grandparents for the “lack of respect I receive, as [the child’s] father”.[36]

   [35] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.5 at para.9.

   [36] Affidavit of Mr Koster filed 11 July 2014, p.4 at para.13.

9. The Father stated that he sought an order that the Maternal Grandparents’ time with the child be suspended on public holidays because he was more likely to:

   [H]ave the day off from work myself and would like to enjoy the day off with [the child] and make it up to them on an alternative day as they’re self-employed … and are more flexible on their days that they can spend with [the child].[37]

   [37] Transcript of Proceedings, 14 July 2014, p.10 at lines 35-37 and line 39.

10. With respect to the issue of makeup time, the Father stated that he did see “value”[38] in makeup time “when [the child] does take sick or whatever … yes, make-up time should be given”[39] but that he could not “say when or how. It just has to be taken on when the occasion arises”.[40]

    [38] Ibid, p.42 at line 8.

    [39] Ibid, p.10 at lines 4-5.

    [40] Ibid, at lines 1-2.

11. The Father gave evidence that he did not have any intention with respect to placing the child into before and after-school care

    
    “other than to cutting back the hours that I’m working so I can spend more time with her. At the moment it’s just not possible, with the fees and everything that I’ve got to pay for”

    .[41] He further stated that “hopefully I can choose when to start and finish, once this is over.
    But at the moment I’ve got to take whatever work I can get”.[42]

    [41] Ibid, p.33 at lines 19-21.

    [42] Ibid, at lines 24-25.

12. With respect to taking time off during the school holidays to spend time with the child, the Father stated “hopefully by that stage, when she’s at school and school holidays are available, I will be in a position where I can determine the hours that I work”.[43] When asked whether he would be able to take 12 weeks off a year, the Father responded “[h]opefully I will be able to, yes. Hopefully I won’t be working at all”.[44] The Father stated that he would not call on the Maternal Grandparents to “give him a hand”[45] as “they have commitments of their own”.[46]

    [43] Ibid, p.36 at lines 25-27.

    [44] Transcript of Proceedings, 14 July 2014, p.36 at lines 32-33.

    [45] Ibid, p.38 at line 7.

    [46] Ibid, at line 10.

13. The Father stated that he had never said that the Maternal Grandparents “should not be consulted or included”[47] with respect to the child and that he was “more than happy to keep them informed of what school she’s going to, what she’s doing …. They’re always informed of what [the child is] doing”.[48]

    [47] Ibid, p.12 at line 1.

    [48] Ibid, at lines 2-3 and 5.

14. The Father said that he could not see why the Maternal Grandparents would not be able to attend school functions that parents are normally invited to and that he would say “this is going on the [sic] school. Would you like to attend?””[49] The Father stated that he did not see a problem forwarding school newsletters and reports to them but that

    [49] Ibid, p.57 at lines 2-3.

    
    “as far as the school sending them to

    [the Maternal Grandmother] …
    I really can’t see why that would be necessary”.[50] The Father did not agree to providing the school with an authority for the

    
    

    Maternal Grandparents to directly ask for and receive information;

    
    

    he did not understand why the Maternal Grandparents would not trust him to pass information along:

    I don’t understand why she feels to go over my head, and straight to the school … direct. If there’s something of relevance from the school, that I think [the Maternal Grandmother] should be involved with, I can’t understand why I’m not given that chance to pass it on to her, like a father.[51]

    [50] Ibid, at lines 8-9.

    [51] Ibid, at lines 24-27.

15. The Father gave evidence that he would not agree to an order that he provide information to the Maternal Grandparents about the child within a proscribed timeframe: “I’m more than happy to provide information, but I can’t have a court order, or deadlines of when that information’s got to be provided”.[52] The Father submitted that the Maternal Grandparents would just have to trust him, and that they had “had no reason not to … I’ve kept them informed with everything else”.[53]

    [52] Ibid, p.62 at lines 11-13.

    [53] Transcript of Proceedings, 14 July 2014, p.62 at lines 17-18.

16. The Father gave evidence that discussions about the child’s schooling with the Mother would “have to depend on [the Mother’s] state of mental health at the time when school’s ready to commence”[54] but that he intends to inform the Maternal Grandparents of the school he thinks the child would be best suited to attend by saying “I’ve looked at this school, which I think is really good … [the school has] the activities that [the child] would enjoy, and this is the place where I’m going to be sending her”.[55] He reiterated that “I’ve never once said that I’m not going to include them in anything”.[56]

    [54] Ibid, p.39 at lines 23-24.

    [55] Ibid, at lines 41-43.

    [56] Ibid, at lines 38-39.

17. The Father refers to the “inability of the [Maternal Grandparents] to control [the Mother’s] behaviour”.[57] The Father submitted that the Maternal Grandparents “have no capacity to control the [Mother’s] emotional outbursts … they would not be appropriate supervisors”[58] and that they had “breached previous Department of Human Services requirements, by taking [the child] to see [the Mother]”.[59] The Father cites the facts that DHS removed the child from the care of the Maternal Grandparents in December 2012 and the Maternal Grandparents’ need to obtain two Intervention Orders against the Mother as evidence that they would not be able to act protectively if they were not restrained from bringing the child into contact with the Mother during their time and an incident occurred.

    [57] Affidavit of Mr Koster filed 21 August 2013, p.6 at para.28.

    [58] Affidavit of Mr Koster filed 7 June 2013, p.4 at para.12(d).

    [59] Ibid, at para.12(e).

18. The Father expressed frustration at the lack of information the Maternal Grandparents included in the communication book about their time with the child. He stated that:

    They don’t tell me whether she has eaten; whether she has slept; whether she has had extra medication; whether her nose is extra runny; whether she has been to the goddamn toilet or not.[60]

    The Father further stated, “as a father I need to know how my little is on a day-to-day basis”.[61]

    [60] Transcript of Proceedings, 14 July 2014, p.49 at lines 15-17.

    [61] Transcript of Proceedings, 14 July 2014, p.49 at lines 22-23.

19. The Father acknowledged that if the Mother was to ever “regain a state of health, which would enable her having any unsupervised relationship with the child”, there would be a necessity for the orders to be reviewed.[62] He stated that, if the Mother was well enough to participate in the decision-making process, he would have no problem with that “because she’s the mother”.[63]

    [62] Affidavit of Mr Koster filed 7 July 2014, p.10 at para.18.

    [63] Transcript of Proceedings, 14 July 2014, p.12 at line 21.

20. The Father gave evidence of his efforts to facilitate the Mother’s relationship with the child. In his affidavit filed 7 July 2014, the Father detailed the Mother’s various attendances at (omitted) to spend time with the child. When this arrangement broke down, the Father was approached by (omitted) to move the contact to the (omitted) Children's Contact Centre (“(omitted)”) which the Father was agreeable to “if it would ensure that [the Mother] would attend without causing any further stress to [the child]”.[64] In cross-examination, the Father stated that, although the child does not spend much time with the Mother:

    I do try and get her to see her mother, by giving up my every second Sunday to take her to (omitted) [sic], which her own mother (the Maternal Grandmother) couldn’t get her to. So you tell me how much more fair I can be in this situation.[65]

    [64] Affidavit of Mr Koster filed 7 July 2014, p.4 at para.6.

    [65] Transcript of Proceedings, 14 July 2014, p.35 at lines 29-32.

21. When asked by Counsel for the Maternal Grandparents what his plans were for the child, the Father responded:

    My plans are to raise her as a father without interference from everybody else, and all the deadlines, and other people’s rights, and everything to accommodate them rather than my little girl. Okay? Because at the moment I’m working around a schedule to suit the grandparents, which I don’t think is very fair to either my little girl, nor myself, nor my parents ...[66]

    [66] Transcript of Proceedings, 14 July 2014, p.34 at lines 20-24.

The evidence of the Paternal Grandfather

1. The Paternal Grandfather filed one affidavit in these proceedings[67] and gave oral evidence on behalf of the Father.

   [67] Affidavit of Mr H filed 21 August 2013.

2. The Paternal Grandfather gave evidence that the Paternal Grandparents assist the Father with the child “in any way we can, as far as the drop-off, the pick-up, the being there, or those types of scenarios”[68] but that they “certainly don’t make any decisions on behalf of [the child] or the father”.[69]

   [68] Transcript of Proceedings, 14 July 2014, p.65 at lines 5-6.

   [69] Ibid, at lines 8-9.

3. The Paternal Grandfather agreed that he would express a view to the Father about the child and that he understood that the Maternal Grandparents would also wish to express their views. He stated, “it’s not a bad thing at all”.[70]

   [70] Ibid, at line 46.

The material of the Mother

1. The Mother provided minimal affidavit material[71] and did not participate in the Final Hearing. The last Court event the Mother attended was on 17 February 2014. The Mother last participated in these proceedings on 13 May 2014, when she attended upon Dr M for the preparation of the updated family report. As previously noted, no material has been filed by the Mother since 20 September 2013, or on her behalf since 14 February 2014,[72] and she did not appear at the last hearing date on 2 June 2014.

   [71] Affidavits of Ms Dowd filed 18 July 2013 and 20 September 2013.

   [72] Affidavit of Mr T filed 14 February 2014.

2. The Mother’s affidavit filed 18 July 2013 was in response to the Father’s initiating affidavit filed 7 June 2013 and its contents are largely historical in nature (“the response affidavit”). The Mother’s second affidavit filed 20 September 2013 annexes a Report dated 14 August 2013 from Dr C (“Dr C”), Consultant Psychiatrist at (omitted) Health who was supervising the Mother’s Community Treatment Order[73] and a Mental Health Assessment and Plan dated 5 September 2013 by the Mother’s GP Dr U (“Dr U”).[74] Neither Dr C nor Dr U were put on affidavit or called to give evidence at the Final Hearing. A final affidavit was filed on the Mother’s behalf by Mr T (“Mr T”), Coordinator at (omitted) Community Service, annexing a Report prepared with respect to the Mother’s attendances at (omitted).

   [73] Affidavit of Ms Dowd filed 20 September 2013, at Annexure “J01”.

   [74] Affidavit of Ms Dowd filed 20 September 2013, at Annexure “J02”.

3. The Mother deposed that she was under a Community Treatment Order with (omitted) Mental Health and that she has regular drug screens as requested by DHS. She stated that she was sure that the Maternal Grandparents would be more than willing to supervise access and “it would be the natural thing for [the child] to be with her family and not strangers supervising access again”.[75]

   [75] Affidavit of Ms Dowd filed 18 July 2013, p.4 at para.13(d).

4. The Mother deposed that “with ongoing support with my mental health, I can be a part of [the child’s] life”[76] and that prior to the child being removed from her care due to her ill health, she provided for the child “to the best of my ability, I loved and adored her”.[77] The Mother deposed further that:

   In order to ensure that I am best able to care for [the child] when she is with me, I have been and continue to be under a Community Treatment Order… I see [my case manager] once a month wherein we discuss any issues that I may be having and she administers my medication as per the Order. [She] also provides me with informal counselling.[78]

   [76] Ibid, p.5 at para.19.

   [77] Ibid, at para.19.

   [78] Ibid, p.6 at para.20.

5. The Mother stated that she was linked to (omitted) Community Health and was waiting to become part of (omitted) Personal Helpers and Mentors program. She deposed that she intended to undertake various parenting programs.

6. The Mother understood that “until I have shown that I have made significant progress that my time with [the child] should be supervised”.[79] She deposed that it was her goal that the child “return to live with me and I acknowledge that this may be a long process”.[80]

   [79] Affidavit of Ms Dowd filed 18 July 2013, p.6 at para.24.

   [80] Ibid, at para.26.

7. The Report from Dr C dated 14 August 2013 notes that the Mother had a documented history of “persecutory ideation, auditory hallucinations and affective instability. She has previously been prescribed … antipsychotic agents”[81] and has a “reported history of polysubstance abuse including cocaine, crystal methamphetamine and cannabis”.[82]

   [81] Affidavit of Ms Dowd filed 20 September 2013, Annexure “J01” at p.4.

   [82] Ibid.

8. Dr C stated that the Mother continues to “refute her past history of documented psychotic symptoms and has been unable to account for her multiple past psychiatric inpatient hospitalisations”.[83]

   [83] Ibid.

9. Dr C further stated that:

   [The Mother] typically presents as, guarded with underlying irritability. Although she denies psychotic symptoms, she is likely to be under reporting her symptoms …

   ... [The Mother] was preoccupied with gaining access to her daughter, who is currently in care. [The Mother] indicated that if she was not managed on a Community Treatment Order that she would discontinue treatment with her antipsychotic medication. During this appointment, [the Mother] requested allocation of a new case manager.[84]

   [The Mother’s] insight is poor and she continues to demonstrate a hostile engagement with mental health services.[85]

   [84] Ibid, at p.5.

   [85] Ibid.

The evidence of Mr T

1. Mr T prepared a Report on behalf of the Mother based on seven sessions she had attended at (omitted) over the period of 3 November 2013 to 12 January 2014. These sessions were scheduled for two hours once per fortnight pursuant to Orders made by the Court on 23 September 2013.

2. Mr T deposed that the Mother and child were affectionate with one another during the sessions and that they communicated positively with one another. Mr T stated that:

   [The Mother] has displayed numerous positive parenting skills during these sessions and has a strong bond with her daughter … [The Mother] has shown a hands on approach to parenting and is mindful of [the child’s] safety throughout the sessions. There have been no observations of [the Mother’s] mental health issues in any of the seven sessions.[86]

   [86] Affidavit of Mr T filed 14 February 2014, Annexure “TQ1”, p.5 at para.6.

3. Mr T deposed that (omitted) had no reservations in relation to a move to unsupervised visits between the Mother and child. He recommended two off-site supervised visits, followed by one hour supervised and one hour unsupervised for three visits with this to increase incrementally to six hours of unsupervised time with (omitted) to facilitate changeover.[87]

   [87] Ibid, p.6 at para.7.

4. The evidence of Mr T was admitted without cross-examination.

The evidence of the Maternal Grandparents

1. The Maternal Grandparents filed two joint affidavits in these proceedings.[88] The Maternal Grandmother gave oral evidence at the Final Hearing. The Maternal Step-Grandfather’s evidence was admitted without cross-examination.  

   [88] Affidavits of Ms Jeffrey and Mr Jeffrey filed 17 July 2013 and 2 July 2014.

2. The Maternal Grandparents deposed that, in the absence of the Mother spending time with the child, “we believe that [the child] should spend more time with us to ensure she maintains a connection with her maternal family”.[89] In cross-examination, the Maternal Grandmother denied that she was trying to take the role of the Mother in the child’s life, stating:

   I’ve never at any time said that I’ve wanted to be the mother … I’m not suggesting for one moment that I’m trying to be the mother. It does come from [the Father] … that he thinks I’m the mother. I’m clearly the grandmother who had to take on a role of looking after [the child]when her mother was unwell.[90]

   [89] Affidavit of Ms Jeffrey and Mr Jeffrey filed 2 July 2014, p.12 at para.57.

   [90] Transcript of Proceedings, 15 July 2014, p.104 at lines 14-15 and 18-21.

3. The Maternal Grandmother stated that she would “still be seeking what I’m asking today”, even if the Mother was actively involved in the proceedings.[91] She gave evidence that she was trying her best to have a “consistent role in [the child’s] life, so that she can see her whole extended maternal family … to date, I feel I’m doing a very good job as her grandmother”.[92]

   [91] Ibid, at line 41-42.

   [92] Ibid, p.105 at lines 2-4.

4. The Maternal Grandmother stated that she was not pursuing her application to “punish”[93] the Father, but acknowledged the result would be that his weekend time with the child would be impacted. She stated: “I’m happy with the orders that I’ve proposed”.[94]

   [93] Ibid, at line 27.

   [94] Ibid, at line 34.

5. When asked about Dr M’s recommendations, the Maternal Grandmother gave evidence that she found Dr M to be “very insightful”[95] but that, despite placing great store on her recommendations, she still intended to pursue her application:

   What I’m asking for … I don’t think is unreasonable. I think one of the things that [Dr] Dr M speaks about is … the changeover times. This brings that back considerably. Also in previous reports she has also mentioned about consecutive days is good for the child also … both [the Maternal Step-Grandfather] and myself, like [the Father], are working and I think soon

   
   [the child]

   will be attending school … this is long term orders that we’re looking at. And also that if [the Mother] does become well enough we’ve made provision in these new orders to allow for time for [her] … we’ve tried to be fair and reasonable in giving more time to … the father to have Christmas and [the child’s] birthday and Easter without the interruption of worrying about do we have to share those times etcetera. I think we’re being fairly reasonable.[96]

   [95] Ibid, p.102 at line 1.

   [96] Ibid, p.103 at lines 40-46 and p.104 at lines 1-6.

6. The Maternal Grandmother stated that she was not saying that Dr M’s recommendations were “wrong”[97] and that Dr M:

   [I]s recommending for a lot more time actually if you start to look at all the special times … But listening to [the Father’s evidence] yesterday … he is the father and I’m not wanting to take that away from him.[98]

   [97] Transcript of Proceedings, 15 July 2014, p.104 at line 9.

   [98] Ibid, at lines 9-12.

7. The Maternal Grandparents deposed that the Mother and Father separated “as a result of the physical and verbal abuse afflicted upon [the Mother] by the Father” and that the Father has a “long history of drug addiction and alcohol abuse”.[99] They further deposed that, after the child’s birth “it became clear … that both [the child and the Mother] were not being cared for by the Father”[100] and that the Father made no attempts to contact them or see the child whilst she was in their care. The Maternal Grandparents believe that the Paternal Grandparents are the primary carers of the child, not the Father.[101]

   [99] Affidavit of Ms Jeffrey and Mr Jeffrey filed 17 July 2013, p.5 at para.21(c).

   [100] Ibid, p.8 at para.21(i)(xii).

   [101] Affidavit of Ms Jeffrey and Mr Jeffrey filed 2 July 2014, p.11 at para.51.

8. In cross-examination, the Maternal Grandmother stated, “I’m not critical of [the Father] at all actually”.[102] She further stated that the child “is a very happy well adjusted little girl”[103] and that the Father:

   [H]as a big part to play in her life … regardless of what I may have thought of [the Father] in the past and [the Mother] at the time when they were in a relationship together, what I’m seeing of him as a father is to be commended … because it’s reflecting in [the child].[104]

   The Maternal Grandmother believed that “everyone has … the opportunity … to change their act. And [the Father] obviously has”.[105]

   [102] Transcript of Proceedings, 15 July 2014, p.87 at line 14.

   [103] Ibid, p.87 at line 19.

   [104] Ibid, at lines 20-23.

   [105] Ibid, p.91 at lines 18 and 20-21.

9. The Maternal Grandparents deposed that “it appears [the Mother] has disengaged from these proceedings”.[106] At the Final Hearing, the Maternal Grandmother was asked what she knew about the current circumstances of the Mother. She stated that the Mother was not attending upon a psychologist or a psychiatrist on regular basis.

   
   

   The Maternal Grandmother expressed that it was unfortunate that the Mother’s solicitors had ceased to act prior to the last hearing date and that this “was very upsetting for [the Mother] and for ourselves to see someone with a mental illness left hanging in the wind when I had rung around to try and help [the Mother] with Legal Aid”.[107]

   [106] Affidavit of Ms Jeffrey and Mr Jeffrey filed 2 July 2014, p.12 at para.56.

   [107] Transcript of Proceedings, 15 July 2014, p.80 at lines 47 and p.81 at lines 1-2.

10. The Maternal Grandmother gave evidence that she had spoken to the Mother prior to the proceedings and the night before giving her oral evidence:

    [A]s I’ve said to her on a number of occasions I said, “Ms Dowd, we were at court again yesterday” … [she] still goes on about wanting her time with [the child] and I said, “Look, as per Dr M’s report she’s still recommending, Ms Dowd, that for you to have time with [the child] on a regular basis you will need to be seeing a psychologist on a weekly basis possibly for a year.”  And I said, “But what the court I believe is trying to put into these new final orders is to re-instigate your time with [the child] at a contact centre close to you.” I said, “But, you know, that’s upon you seeing a psychologist also.” Well, she went off tap about seeing a psychologist and that was the end of our telephone conversation. I received a couple of quite [sic] text message [sic] and that was it which I didn’t respond to.[108]

    [108] Ibid, p.81 at lines 18-29.

11. The Maternal Grandmother stated that she was aware the Father had received a text message the night after he gave his evidence in which the Mother expressed concern that “her rights were being sorted out by [the Maternal Grandmother] and [the Father] and not her”.[109] The Maternal Grandmother stated:

    [The Mother] is unwell and when she is placed under stress, which this is a very stressful time for her, with no representation my recommendation was for her not to sit in a courtroom where she has no representation. No file. I said to her the other day, “It’s up to you whether you want to attend but if you were to have someone with you for support”.[110]

    [109] Ibid, p.98 at lines 4-5.

    [110] Ibid, at lines 11-15.

12. The Maternal Grandmother believed that all of the parties would like to see the Mother become well enough to spend time with the child again, but that she did not know how this could occur. The Maternal Grandmother felt that the Mother needs to be:

    [A]ttending upon the psychologist and … psychiatrist on a regular basis, so that she gets insight into her mental health and to help her in the long term, hopefully, to be able to have more time with her daughter.[111]

    [111] Transcript of Proceedings, 15 July 2014, p.100 at lines 4 and 6-8.

13. With respect to repairing her relationship with the Mother, the Maternal Grandmother stated that “[w]hen you’re dealing with someone with a mental health issue as you’ve read it is very difficult to have an even relationship at all times”.[112]

    [112] Ibid, p.98 at lines 36-38.

14. In cross-examination, the Maternal Grandmother said that she had taken out two previous Intervention Orders against the Mother. The second Intervention Order was made on 6 September 2012 and expired on 5 September 2013. It named herself and the child as Affected Family Members. The Maternal Grandmother stated that she could not remember what the application had contained but that “it was a number of things … I didn’t want to ever put [the child] at risk with [the Mother] and that was why the AVO was put out”.[113]

    [113] Ibid, p.92 at lines 31-32.

15. The Maternal Grandmother stated that DHS had recommended and encouraged her to apply for an Intervention Order “so not to put
    

    [114] Ibid, p.93 at lines 11-12.

    [115] Ibid, at lines 21-22.

    [the child] at risk by the mother because of her erratic behaviour because of her drug taking”.[114] The Maternal Grandmother conceded that the child was removed by DHS from the Maternal Grandparents’ care after she had invited the Mother to their home to see the child, despite the conditions of the Intervention Order prohibiting this.[115]

16. With respect to the incident between the Mother, the Maternal Grandparents and the child on Christmas Eve 2012, the Maternal Grandmother maintained that there had been a safety plan put in place that was approved by both (omitted) Community Health and DHS. She agreed that there was nothing on the safety plan that indicated DHS had agreed to it.[116] The Maternal Grandmother stated that, when things did not go to plan, the Maternal Step-Grandfather did what he was “asked to do. He went straight to the (omitted) police station and rung [sic] me”.[117] The Maternal Grandparents deposed that they took “all measures to ensure that [the child] was safe at all times”.[118]

    [116] Transcript of Proceedings, 15 July 2014, p.94 at line 3.

    [117] Transcript of Proceedings, 15 July 2014, p.95 at lines 2-3.

    [118] Affidavit of Ms Jeffrey and Mr Jeffrey filed 2 July 2014, p.4 at para.17.

17. In cross-examination, the Maternal Grandmother conceded that, although she believed that the removal of the child from their care by DHS on 27 December 2012 was a mistake, the child “wasn’t restored to my care”[119] thereafter.

    [119] Transcript of Proceedings, 15 July 2014, p.95 at line 43.

18. The Maternal Grandmother was asked whether she was concerned that the Mother might act in an inappropriate way in front of the child in the future. She stated that, at the time of the Christmas Eve 2012 incident, the Mother “was not medicated or hospitalised, and she did not have the treatment that she currently has now”[120] but that she could not comment on whether the Mother would have another psychotic episode.

    [120] Transcript of Proceedings, 15 July 2014, p.96 at line 19-21.

19. The Maternal Grandmother stated that she wanted the Mother to be able to come to family functions as she believed that the Mother’s psychosis had improved. She agreed that the Mother became emotional when she was stressed and that this meant she was likely to act inappropriately but did not think the Mother would be stressed at a family function. The Maternal Grandmother did not disagree that the Mother should commit to treatment before her time with the child commenced again. She conceded that if the Mother became upset and acted inappropriately in front of the child, it would not be good for the child but that “I would make sure that [the Mother] was either removed or we would certainly remove [the child] from … being at risk”.[121]

    [121] Transcript of Proceedings, 15 July 2014, p.96 at lines 44-45 and 47.

20. The Maternal Grandmother stated that she ceased filling out the communication book in June as a result of an incident between the paternal family and her, but that “I do believe a communication book is in the best interests of [the child] so I’m happy to do that if orders are made ruling that”.[122]

    [122] Transcript of Proceedings, 15 July 2014, p.83 at lines 9-11.

The evidence of the Dr M

1. Dr M prepared two family reports[123] in this matter pursuant to Orders made by consent on 23 July 2013 and 17 February 2014. In preparation for the first family report,[124] Dr M interviewed the Mother, Father and the Maternal Grandmother. To prepare the updated family report, Dr M interviewed all of the parties to the proceedings and conducted a telephone interview with the Co-Ordinator and Worker at (omitted) Children's Contact Service. Dr M observed the child with her parents and the Maternal Grandmother at both appointments.

   [123] Affidavit of Dr M filed 11 July 2014 at Annexures “MW1” and “MW2”.

   [124] Family Report dated 19 September 2013, affidavit of Dr M filed 11 July 2014 at Annexure “MW1”.

2. Dr M was at liberty to, but did not, consider the material produced under subpoena from Victoria Police, DHS or (omitted) Health of (omitted). The Mother’s psychiatric report prepared by Dr R (“Dr R”) pursuant to Orders made 17 February 2014 was not available for Dr M to consider as Victoria Legal Aid had not approved funding to pay for it.

3. Upon the completion of the updated family report, Dr M made the following recommendations[125] with respect to the child:

   [125] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, pp.21-24 at paras.73-83.

   ·The child remain residing primarily with the Father;

   ·The child spend time with the Maternal Grandparents as follows:

   o

   Until the child commences four-year old kindergarten,

   
   

   every Monday and Thursday from 9.00 a.m. until 5.00 p.m. and one weekend per month from 3.00 p.m. on Friday until 5.00 p.m. on Monday;

   o

   Upon the child commencing four-year old kindergarten, consideration be given to every second Sunday from

   
   

   9.00 a.m. until 5.00 p.m. in the alternate weekend to the full weekend already taking place;

   oOn special occasions, with the Mother permitted to be in attendance at the Maternal Grandmother’s home; and

   oOne week per year during the term school holiday period and one week over the long summer holiday period, with the Mother permitted to attend the Maternal Grandmother’s home during this time.

   ·The child spend supervised time with the Mother at (omitted) each alternate Saturday for two hours for a total of four visits and thereafter:

   oEach alternate week for two hours partially supervised, with the contact centre acting as a transition point; or

   o

   On the basis of the Mother attending a further four fully supervised visits (if feasible) and providing a positive psychiatric report, each alternate week for two hours for a period of six months partially supervised, with the

   
   

   child-care centre acting as a transition point, and, if this is successful, consideration be given to extending this time from two hours to half a day.

1. Dr M also recommended that:

   ·The Mother attend regular psychiatric or psychological counselling/therapy (preferably both) for a minimum of 12 months;

   ·The Father and Paternal Grandparents attend reportable parent-focussed counselling; and

   ·Both the Mother and Father provide random monthly drug screen for a period of four months.

2. Prior to giving evidence in the witness box, Counsel provided Dr M with a copy of each parties’ proposed orders.

3. In the updated family report, Dr M commented that:

   [T]he actual amount of time [the child] spends with the maternal grandparents is not as important as the quality of this time, and she already spends a substantial amount of time with them.[126]

   Dr M further added that:

   [T]his is not a reflection on their relationship and bond [with the child] … this is about giving [the child] some stability … in a way that does not involve too many changes and moves for her.[127]

   [126] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.19 at para.65.

   [127] Ibid, at para.66.

4. In oral evidence, Dr M reiterated that in making her recommendations, she was concerned about disruption and interruption to the child’s routine:

   What I was concerned about was having time with the father, time with the grandparents, and, then, the mother's time also on the same weekend as the father, which is so many moves, and, then, having another weekend with the grandparents …[128]

   [128] Transcript of Proceedings, 15 July 2014, p.109 at lines 33-36.

5. When asked to consider the impact that the Maternal Grandparents’ proposal would have on the Father’s weekend time with the child given his current work arrangements, Dr M agreed that, while it would be better if the Father did not work on Saturdays so that he could spend more time with the child, she was:

   [M]ore concerned that [the child] in the one place … the one home for that weekend … I still see that the minimal interruptions would be better for her in the long term.[129]

   [129] Ibid, p.110 at lines 11-12 and 16-17.

6. Dr M was informed in a subsequent follow-up telephone call with the Maternal Grandmother after her appointment for the updated family report that the Mother had been refused legal aid and was no longer represented. Dr M was told by the Maternal Grandparents that they:

   [D]idn’t think the mother was going to be involved in proceedings any further now as a result, and as such ... until the mother was to have more time with [the child], that they had more time with [the child] in lieu of this.[130]

   [130] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.9 at para.29.

7. Having considered the Maternal Grandparents’ proposal in the context that it included the Mother’s time as well, Dr M stated that she was “less concerned … because it sort of minimises … the interruptions … in the movements”[131] and that:

   [I]f it can be easier for [the Maternal Grandparents] to somehow get the mother involved in the process on their weekend I wouldn't have a problem with that extra day a month.[132]

   Dr M also stated, however, that she was:

   [S]till concerned about not wanting the maternal grandparents to step in and take on that mother role … I think there needs to be room for the mother to do that.[133]

   [131] Transcript of Proceedings, 15 July 2014, p.109 at lines 40-42.

   [132] Ibid, p.111 at lines 35-37.

   [133] Ibid, p.109 at lines 45-47.

8. Dr M maintained that she preferred her recommendation that the Maternal Grandparents spending Monday and Thursday with the child as “[the Father] was at work anyway. It was quality time. It was regular for [the child]. So they remained really involved”.[134] Dr M acknowledged the significance of the Maternal Grandparents’ role in the child’s life but stated that, although she did not see “anything wrong with every second weekend”, she felt that it was a “better scenario … for the child” to have regular time during the week.[135] Dr M gave evidence that the Maternal Grandparents’ proposal of “having the every second weekend, plus the Monday, it does get into the realm of … being more sort of a parent, something that might be … recommended for a parent”.[136]

   [134] Ibid, p.114 at lines 14-15.

   [135] Ibid, at lines 30-32.

   [136] Ibid, at lines 36-38.

9. Dr M agreed with Counsel for the Maternal Grandparents that “ultimately we need to work towards … consolidating”[137] the child’s time in both the Father and Maternal Grandparents’ households, however while the child was three years old, the basis for her recommendation that the child spend each Monday and Thursday with the Maternal Grandparents “was to see … the maternal grandparents regularly and keep that bond”.[138] When it was put to Dr M by Counsel for the Maternal Grandparents that the child could cope with three nights away from the Father in the home of the Maternal Grandparents given her attachments to both the Father and the Maternal Grandparents, Dr M agreed that “[i]t certainly doesn’t seem to have been an issue at all”.[139]

   [137] Transcript of Proceedings, 15 July 2014, p.125 at lines 40-41.

   [138] Ibid, at lines 38-39.

   [139] Transcript of Proceedings, 15 July 2014, p.126 at lines 15-16.

10. When it was put to Dr M by Counsel for the Maternal Grandparents that:

    [I]f [the child] was to have every alternate weekend with the maternal grandparents and they were to facilitate time with the mother, that those alternate weekends would be the time that she would come to expect that she would not be in the home of her father and her paternal grandparents[140]

    Dr M stated that she was in “no doubt that [the child] would manage such a … contact arrangement”.[141]

    [140] Ibid, at lines 20-23.

    [141] Ibid, at lines 25-26.

11. Dr M did not think it was appropriate or necessary for the Maternal Grandparents to attend parent/teacher interviews on behalf of the Mother as “[i]t's very more [sic] of a parental … role”.[142] She felt that “a school report is going to give [the Maternal Grandparents] just as much information as the parent/teacher kind of thing”.[143] Dr M did not see that there was any reason why the Maternal Grandparents should not receive school reports but expressed concern about the capacity for conflict “if one person is wanting [the information] and the other person is withholding it”.[144] Dr M stated that “if there's a way that they can get these reports without actually having … carte blanche kind of permission to … be involved in everything I think that would be a better way”.[145]

    [142] Transcript of Proceedings, 15 July 2014, p.116 at line 12-13.

    [143] Ibid, p.129 at lines 18-19.

    [144] Ibid, p.128 at lines 45-46.

    [145] Ibid, p.116 at lines 5-8.

12. With respect to the issue of telephone contact, Dr M said that she did not believe it was necessary if the child was seeing the Maternal Grandparents each Monday and Thursday but if the Court ordered each alternate weekend with no time in-between, despite the child not being able to have a “meaningful conversation … hearing [the Maternal Grandparents’] voice might be helpful”.[146]

    [146] Transcript of Proceedings, 15 July 2014, p.115 at lines 18 and 22.

13. With respect to whether orders should be made detailing what communications the parties exchange in the communication book, Dr M felt the issue would be more to make sure that the parties were not using the communication book as another avenue for conflict rather than “actually telling them what they should … put in”.[147] Dr M noted that the parties “should understand the things that the other person actually wants to know or needs to know based on their own experiences with her”.[148]

    [147] Ibid, p.131 at lines 10-11.

    [148] Ibid, at lines 24-26.

14. Dr M was critical of the Father’s attitude towards the Maternal Grandparents and their role in the child’s life. In the first family report, she described the Father as having a:

    [R]eal sense of entitlement and ownership over [the child], and it really upset him to see [the child’s] attachment to the maternal grandmother … there seemed to be this really strong and profound resentment.[149]

    Dr M commented that the Father “needs to understand that this is not a competition”[150] and that “it is important for the father to also understand that the more loving and caring people in [the child’s] life the better”.[151]

    [149] Affidavit of Dr M filed 11 July 2014, Annexure “MW1”, p.13 at para.47.

    [150] Ibid, p.21 at para.75.

    [151] Ibid, p.22 at para.77.

15. In the updated family report, Dr M noted that the Father’s presentation was less emotional and more respectful and that it was “positive that the father appears to be a little more accepting that the maternal grandparents have a role to play in [the child’s] life”[152] although she believed a lot of resentment remained.

    [152] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.5 at para.10.

16. In cross-examination, Counsel for the Maternal Grandparents asked Dr M to comment on the fact that the Father’s proposal did not include time spent on special days. Dr M reiterated her view that “the father doesn’t seem to value very much the maternal grandparents’ role”[153] and that he saw the child’s bond to the Maternal Grandmother as somehow impacting on his own bond with the child.

    [153] Transcript of Proceedings, 15 July 2014, p.126 at lines 47 and p.127 at line 1.

17. It was put to Dr M that the Father’s evidence was that he acknowledged the child’s relationship with the Maternal Grandparents and thought that they were good grandparents but that his concern was that they were trying to act as a parent rather than grandparents. In response, Dr M stated that:

    [T]

    he last time round he really didn’t want any contact at all … He was really "My child."  Sort of "Go away".  You know "You're not the mother so, like, you know, you've got no role in this".

    
    

    My impression back then was he just didn't get that this child had had a significant relationship … with them and that that needed to continue one way another for the child's sake … I hope that he has changed in the way that you're suggesting he has presented in court.[154]

    [154] Transcript of Proceedings, 15 July 2014, p.127 at lines 28-35.

18. In the updated family report, Dr M stated that, despite the psychiatric report of Dr R being unavailable, based on her own interviews and observations she did not believe that the Mother would be ready for “fully unsupervised time, or more than 4 hours of partially supervised time … for some time”[155] noting that the Mother had already been given the opportunity to make change but her progress has been “very limited” and her level of insight remains “significantly impaired”.[156] Dr M further stated that, unless the Mother “engages in long term psychiatric treatment as a minimum, and preferably psychological treatment at the same time … for at least 6 months”,[157] she did not believe that the Mother has made enough progress to move to unsupervised time and that the child “remains at risk of emotional harm if she were to have fully unsupervised and/or overnight time with the mother”.[158]

    [155] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, pp.23-24 at para.83.

    [156] Ibid.

    [157] Ibid.

    [158] Ibid.

19. At both family report interviews, Dr M noted that the Mother presented as emotionally immature and needy and that she observed the child to be “less talkative, comfortable, and animated with the mother as compared to both the father and maternal grandparents”.[159] On both occasions, Dr M commented that the Mother said inappropriate things to the child such as “have you been missing me … you might be able to live with mummy soon”.[160] Dr M expressed concern over these kinds of comments because:

    [T]he mother is putting emotional pressure on [the child], and looking to her to get her own emotional needs met … overall there continues to be this real sense of limited insight.[161]

    [159] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.12 at para.39.

    [160] Ibid.

    [161] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.12 at para.40.

20. Dr M commented that she was concerned about the Mother’s “seeming ongoing significant lack of insight into her own illness and need for medication … she has made her reluctance to attend psychiatrists and psychologists on a regular basis very clear”.[162] Dr M was of the opinion that the Mother is “at risk of relapse if she is not medicated properly”[163] and made the following comments: 

    [The Mother’s] recent comments … about not agreeing with the diagnoses made, and not believing she should be on current medication, and instead believing that she should make her own choices as to if she takes medication … and her apparent reluctance to agree to have her mental health monitored and supported by treating professionals, gives the writer no confidence at all that she has made any progress in her level of insight … or that she is able to understand her illness and vulnerabilities … this same lack of insight gives the writer no confidence that she will not put [the child] at risk of exposure to inappropriate and possibly even abusive or dangerous behaviour, both generally, and also in the event that she did relapse if she were to have fully unsupervised time with her.[164]

    [162] Ibid, p.14 at para.49.

    [163] Ibid, at para.50

    [164] Ibid, pp.14-15 at para.50.

21. In cross-examination, Dr M reiterated her concern that the Mother is:

    [I]n denial about her … issues and problems at the moment … she's totally in denial about … her history, her mental health in particular. She's on a community treatment order at the moment.  She has no … insight as to why she even needs that, why she should even be on it. If she wasn’t on that she would be stopping her medication.[165]

    [165] Transcript of Proceedings, 15 July 2014, p.112 at lines 17-18 and 20-24.

22. Dr M repeatedly identified the Mother’s resentment toward the Maternal Grandparents taking over her role as mother to the child, stating that “she doesn't want them to take over that mothering role”[166] and “she particularly is concerned about her mother taking over that mothering role”.[167] Dr M stated that she believed that the Mother was “going to continue to be resentful of [the Maternal Grandmother] because … she sees her as being the one that's taking her role”[168] and that “I think there’s going to be resentments no matter what…it will be more about her mental health and her medications than anything else”.[169] Dr M expressed that she did not think the Maternal Grandparents should “take over the mothering role”.[170] In the updated family report, Dr M commented that:

    [I]t is probably better for all involved if [the Maternal Grandmother] maintains the role of grandmother, as this cements this role for [the child] in the long term, and it also allows the mother more opportunity and flexibility to move into more of a parenting role if and when she is able to, and certainly gives her hope and motivation to do just this ... as [the child] gets older, she will be less vulnerable, and it is possible that she might be capable of spending more time with the mother, and there needs to be some room for this to happen.[171]

    [166] Ibid, at line 14.

    [167] Ibid, at lines 26-27.

    [168] Ibid, at lines 36 and 38-39.

    [169] Ibid, p.114 at lines 1-3.

    [170] Ibid, p.112 at line 15.

    [171] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.19 at para.67.

23. Dr M acknowledged that the Mother held resentment towards the Father but that:

    [I]t’s a different kind of resentment. It's like … he gets everything, I get nothing … She stills sees that … they're the parents and we should do it together, but … there's definitely conflict there too.[172]

    [172] Transcript of Proceedings, 15 July 2014, p.123 at lines 36-39.

24. Dr M felt that the position should be left open to the Mother for her, at some point, “to at least have some mothering role, whether it's supervised, partially supervised”.[173] Dr M stated that, if the Mother can “get her mental health under control I think … her actual interactions with the child are … normally quite positive”.[174] Dr M further believed that the Mother was “very focused on getting contact with the child again”.[175]

    [173] Ibid, p.112 at lines 29-30.

    [174] Transcript of Proceedings, 15 July 2014, p.112 at lines 30-32.

    [175] Ibid, p.118 at lines 17-18.

25. In the updated family report, Dr M stated that the Father was “wanting to work out a way for the mother to have some regular contact with [the child] now that (omitted) is no longer available”[176] and that the Father is not sure how contact can occur but:

    [H]e believes it should occur, and it should be consistent, and he reported that [the child] gets so disappointed when contact is scheduled and the mother doesn’t come for whatever reason.[177]

    [176] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.5 at para.11.

    [177] Ibid, at para.13.

26. With respect to the issue of who should transport the child to the contact centre to spend time with the Mother, Dr M stated that she did not see from the child’s perspective that it would “really make a lot of difference”.[178] Dr M stated, however, that if the Mother’s future involvement with the child is related to the Maternal Grandparents, “it probably makes sense for them to sort of be taking her to the contact centre as well” but that “I really don’t have … an issue either way”.[179]

    [178] Transcript of Proceedings, 15 July 2014, p.113 at line 26.

    [179] Ibid, at lines 28-29.

27. On the issue of whether the Maternal Grandparents should be restrained from bringing the child into contact with the Mother while in their care, Dr M stated that, while she did not think that the Maternal Grandparents “should have regular supervision of … the child with the mother … on a regular basis”,[180] with respect to special days/events, Dr M was “confident”[181] that, should any issue arise, the Maternal Grandparents would do what was required to protect the child and remove her from the situation:

    [The Mother is] unpredictable, but I think they can recognise the signs. They're not psychologists or psychiatrists … but … if they can recognise some of the signs and start taking evasive action I think that's a positive thing.[182]

    [180] Ibid, p.119 at lines 5-7.

    [181] Ibid, p.117 at line 9.

    [182] Transcript of Proceedings, 15 July 2014, p.124 at lines 25-27.

28. While Dr M acknowledged that there had been incidents involving the Mother in the past, she was satisfied that the Maternal Grandparents had “acted protectively and took the child out of the situation”.[183] Dr M stated that:

    I believe that the Maternal Grandparents would be able to [put the child’s interests first] … I've asked them questions about how they would manage it and I think they would manage it well.[184]

    Dr M further stated that she wanted to give the Mother “some hope” and that if the time were limited and there were “very, very clear boundaries”, she was “confident [the Maternal Grandparents] can do what’s needed”.[185]

    [183] Ibid, p.116 at line 45.

    [184] Ibid, p.117 at lines 3-6.

    [185] Ibid, at lines 6 and 9-10.

29. The Court questioned Dr M about the Mother’s resentment towards the Maternal Grandmother and whether, if they were at the same function with the child and the Mother saw the Maternal Grandmother “running the show”,[186] this resentment would be more likely to result in an incident. Dr M agreed that the Mother had resentments and that nobody could control when these might manifest, but as she was now receiving regular medication, “the risk of a psychotic episode is … minimal”[187] and the Maternal Grandmother is:

    [V]ery aware that the mother feels that way, and that when they are together she’s very careful to let the mother do … the mothering and she’s sort of stepping back whilst also supervising.[188]

    Dr M agreed that the Mother was still an “uncontrollable element”[189] but that, despite the risk that the child might be impacted if there was another incident, the child “really enjoys her time with her mum. You can see that she enjoys it”.[190]

    [186] Ibid, at line 29.

    [187] Ibid, at line 38.

    [188] Ibid, at lines 46-47 and p.118 at lines 1-2.

    [189] Ibid, p.118 at line 23.

    [190] Transcript of Proceedings, 15 July 2014, p.119 at lines 9-10.

1. Dr M agreed that such social events should only occur once the Mother had re-commenced spending supervised time with the child and further, on the basis that the Mother committed to regular psychiatric and psychological sessions: “I would be more comfortable … because at least she is being monitored by professionals as well”.[191] Dr M noted that the delay between re-enrolment at the contact centre and time re-commencing between the Mother and child would give the Mother time to undertake some of the conditions proposed by the Father and prove that she is able to commit to treatment which would provide a level of comfort to the parties. Dr M stated that “[the Mother] needs to … show that she’s willing to make that commitment … if she’s willing to make that, whether it starts or not … I think concurrently is fine”.[192]

   [191] Ibid, p.118 at lines 37-38.

   [192] Ibid, p.120 at lines 20, 22-23, and 25-26.

2. Dr M further stated that she would like to see an application put in for time to re-commence at the contact centre as soon as possible but that she would like to see that:

   [The Mother] has attended at least two or three [psychiatric] sessions already and the … psychiatrist in question is … happy that she's going to continue.  So there's some kind of commitment from her before … the supervision starts … But I don't want to see the application held up because I know that it takes some time.[193]

   [193] Ibid, p.132 at lines 3-6 and 28-29.

3. Counsel for the Maternal Grandparents asked Dr M whether she would agree that it was important, from the Mother’s perspective, to “have some form of inducement there to encourage her treatment along”[194] in the context of contact and treatment occurring concurrently. Dr M agreed that:

   [G]iving [the Mother] some hope - I think that anyone who has got some hope taken away … I think it's difficult for them to then take those steps. Giving her hope I think is in … [the child’s] best interests in the long run definitely.[195]

   [194] Ibid, at line 39.

   [195] Transcript of Proceedings, 15 July 2014, p.132 at lines 43-46.

The applicable legal considerations

1. In default of appearance of a party to the proceedings, the Court may proceed with the hearing generally or in relation to any claim for relief in the proceeding.[196] Rule 16.07(2) of the Family Law Rules 2004 (Cth) provides that:

   [I]f a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

   [196] Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e).

2. On 23 September 2013, directions were made listing the matter for Final Hearing and for the filing and serving of material with respect to same. The Mother was legally represented at that hearing and as such, was aware of the Final Hearing date. The Maternal Grandmother gave evidence that she had been in contact with the Mother prior to, and during, the Final Hearing. Further, the Mother was in contact with the Father via text message after the first day of the Final Hearing. It is therefore appropriate to make orders with respect for the Mother’s time spent with the child on the applications of the parties present at the hearing, taking into account the recommendations of Dr M.

3. The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. There is no distinction between parents and non-parents in s.60CA of the Act; the child’s best interests remain the paramount consideration regardless of the biological connection of the child to the parties.

4. The Court is guided in determining those interests by the objects and principles set out in s.60B of the Act and by the requirement that it consider the matters set out in s.60CC of the Act.

5. Section 64C of the Act states that a parenting order may be made in favour of a parent of the child or some other person. Section 65C of the Act provides that parenting orders may be applied for by persons other than a child’s parents. Section 65C(ba) of the Act provides that such person may be a grandparent of the child. In Valentine & Lacerra and Anor (2013) FLC 93-539, the Full Court found that an application for parenting orders by a non-parent is to be determined in the same way as an application by a parent; namely, according to its own facts and having regard to the best interests of the child as a paramount consideration.

Parental responsibility

1. Section 61DA of the Act sets out that, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[197]

   [197] Family Law Act 1975 (Cth), s.61DA(4).

2. The Mother sought an order for equal shared parental responsibility in her Response. It was the application of both the Father and Maternal Grandparents at the Final Hearing that the Father have sole parental responsibility for the child.

3. The child has been in the care of the Father since 8 April 2013. Since at least June 2012, the Mother has only spent supervised time with the child, and has spent no time with the child since March 2014. As a result, the Mother’s involvement in the child’s welfare, care and development and her participation in decision-making with respect to the child has been negligible.

4. Dr M observed that the Mother repeatedly made inappropriate comments to the child and noted that “[o]verall, there continues to be this real sense of limited insight, and a limited understanding of what is appropriate for [the child] at her age and stage, and what her needs are”.[198]

   [198] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.12 at para.40.

5. The Father gave evidence that, if the Mother became well enough to participate in the decision-making process, he would have no problem involving her “because she’s the mother”.[199] The Father appeared open to keeping the Mother informed about what was happening in the child’s life but acknowledged that discussions about long-term decisions, such as the child’s schooling, would have to depend on the state of the Mother’s mental health at the time.

   [199] Transcript of Proceedings, 14 July 2014, p.12 at lines 20-21.

6. The Mother has chosen not to participate in these proceedings and there is very little evidence before the Court of the Mother’s current mental state or prognosis. On the evidence which is before me, I am satisfied that the Mother has no capacity, at this stage, to participate in the decision-making process with respect to the child and little insight into the needs of a child of that age. The Court has no capacity to predict whether the Mother will be well enough in the future to participate. Nonetheless, the Father’s willingness to facilitate the Mother’s involvement in the child’s life in a way that does not impact negatively on the child satisfies me that he will continue to keep the Mother informed and involved where appropriate.

7. I am therefore satisfied that it is appropriate that the Father have sole parental responsibility for the child. As such, the provisions of s.65DAA of the Act do not apply.

Primary considerations

Section 60CC factors

1. Section 60CC(2) of the Act sets out the primary considerations which the Court must consider in determining the best interests of the child. Section 60CC(2) of the Act is based on the objectives of ss.60B(1)(a) and (b) of the Act which is to ensure that the best interests of the child are met by determining that the child have the benefit of both of the parents having a meaningful involvement in the child’s life while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence.

2. It is well established that the specific use of the word ‘parent’ in some of the provisions of s.60CC of the Act confine the application of same to biological or adoptive parents alone. As such, the primary consideration under s.60CC(2)(a) of the Act is strictly within the purview of the Mother and Father. However, the Full Court in Donnell & Dovey [2010] FamCAFC 15 stated that:

   [T]he fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.[200]

   [200] Donnell & Dovey [2010] FamCAFC 15 at para.102.

3. In this case, the role of the Maternal Grandparents can be considered in the context of ss.60CC(2)(b) and 60CC(3) factors insofar as they expressly or impliedly refer to a person other than a parent. Any additional considerations with respect to the role of the Maternal Grandparents can be facilitated by way of application of the ‘catch-all’ provision of s.60CC(3)(m) of the Act.[201]

   [201] See Donnell & Dovey [2010] FamCAFC 15.

4. It is evident that the child has a close and loving relationship with the Father. Dr M observed that the child was:

   [V]ery responsive to her father … she involved him in what she was doing … was very comfortable and secure with him, and it was easy to see that she has a very strong close bond and relationship with him.[202]

   The Father gave evidence that the child is a “happy, bubbly, beautiful little girl”[203]. The Maternal Grandmother also stated that she “is a very happy well adjusted little girl”[204] and that the Father was to be commended “because it’s reflecting in [the child]”.[205]

   [202] Affidavit of Dr M filed 11 July 2014, Annexure “MW1”, p.18 at para.66.

   [203] Transcript of Proceedings, 14 July 2014, p.54 at lines 17-18

   [204] Transcript of Proceedings, 15 July 2014, p.87 at line 19.

   [205] Ibid, at line 23.

5. The Maternal Grandparents made allegations with respect to the Father’s behaviour during his relationship with the Mother and post-separation, however no protective concerns were raised by them at the Final Hearing. Although it is clear that the Father holds some hostility towards the Maternal Grandparents and that the relationship between the Father and the Maternal Grandparents is strained, there was no evidence adduced which gave me concern that these attitudes are impacting negatively on the child or causing her to suffer harm.

6. There was evidence before the Court that the Mother loves and misses the child and that the child enjoys the time that she spends the Mother and was disappointed when this time did not occur. This indicates the existence of a meaningful relationship with, and attachment to, the Mother, although Dr M observed that the child was less comfortable and talkative with the Mother than with the Father and Maternal Grandparents.

7. It is evident that both the Father and the Maternal Grandparents wish the Mother to have a meaningful relationship with the child and it is clear that they are hopeful the Mother’s situation will improve so as to further this. Until the Mother’s time at (omitted) was cancelled due to her non-attendance, the Father drove the child to spend time with the Mother on his only day off from work and has expressed clearly that he believes the Mother’s time with the child should be regular and recommence as soon as possible. Dr M also expressed that the door should be left open to the Mother to take on more of a mothering role in the future if she became well enough to do so and that she would like to see an application made to recommence the Mother’s time with the child as soon as possible.

8. However, on the evidence before the Court, I have serious concerns about the Mother’s mental health issues and how these may expose the child to harm. Despite what the Mother deposed to in her affidavit material, she appears to be in complete denial as to the extent and severity of her mental illness and how this impacts on not only herself, but her ability to be meaningfully involved in the child’s life. Of particular concern is her continuing denial of, and lack of insight into, same and what this means with respect to the future potential of exposing the child to inappropriate behaviour and resultant psychological and emotional harm. Similar concerns were expressed by Dr M, the Father and the Maternal Grandparents and are clearly reflected in the agreed proposal that the Mother’s substantial time with the child remain strictly supervised at a contact centre and that, before such time recommences, the Mother demonstrate a commitment to a course of psychological and/or psychiatric treatment. 

9. It is acknowledged by the Father, the Maternal Grandparents and Dr M that the Mother has behaved inappropriately in front of the child in the past and that there is the potential for this to occur again. It is evident that the Mother harbours resentments towards the Maternal Grandmother usurping her role as parent and this causes the potential for conflict. Dr M described the Mother as an “uncontrollable element”[206] and although she is currently receiving regular medication under the conditions of her Community Treatment Order and therefore “the risk of a psychotic episode is … minimal”,[207] it is clear that the Mother continues to be in denial about her mental illness and is resistant to, and resentful of, involuntary medical intervention.

   [206] Transcript of Proceedings, 15 July 2014, p.118 at line 23.

   [207] Ibid, p.117 at line 38.

10. The Mother’s repeated comments to Dr C in August 2013 and Dr M as recently as May 2014 that she would discontinue her medication if it were left up to her demonstrate that she has maintained this denial and resistance over a long period of time. Dr M believes that the Mother is at risk of relapse if she is not medicated properly and this, coupled with the Mother’s comments that she would discontinue her medication, make it clear that the potential for relapse remains if her treatment becomes voluntary. This could severely impact on the child’s welfare and expose her to psychological and emotional harm in the future if detailed orders are not put in place to protect the child from this. No matter how much the Mother may love the child, I am not satisfied that she is capable of fully controlling her emotions and behaviour without gaining some insight into her own condition and how this impacts upon her relationship with the child.

11. Without any independent evidence with respect to the Mother’s current mental health or prognosis, the Court must ensure that first and foremost, the child is protected from harm while spending time with the Mother. On the evidence before me, I am satisfied that the Maternal Grandparents are capable of acting protectively if an incident occurs whilst the Mother is in attendance, but accept the submissions of the parties that all substantial time spent between the child and the Mother must remain supervised.

Additional considerations

1. Section 60CC(3) of the Act deals with additional considerations to which the Court must turn its mind in dealing with parenting matters.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is only three and a half years old. She is unable to express any views of probative value and there was no Independent Children’s Lawyer appointed to represent the child in these proceedings. Nonetheless, it is clear that the child enjoys the time she spends with each of the parties.

Section 60CC(3)(b): the nature of the relationship of the child with:

(i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The evidence before the Court was that the child had a loving and secure relationship with both her Father, the paternal and Maternal Grandparents. Dr M observed that the child:

   [A]ppears to have formed a strong positive bond and relationships with both her father and maternal grandmother; interacting with them in a way that suggests that she sees them as safe, loving, and caring figures in her life.[208]

   [208] Affidavit of Dr M filed 11 July 2014, Annexure “MW1”, p.17 at para.63.

2. Dr M noted that:

   [T]he grandparents play a significant role in this child's life regardless of whether the mother or the father like that or not. They have played a significant role. The child is very, very attached to them, and to the maternal grandmother. Nearly equally so it seems just on observation ... as with the father …[209]

   This is to be expected, given that the child lived with the Maternal Grandparents for a period of some 12 months.

   [209] Transcript of Proceedings, 15 July 2014, p.114 at lines 23-27.

3. As previously detailed, the nature of the child’s relationship with the Mother is less secure and certain than the one she has with the Father and Maternal Grandparents. Given that, since June 2012, all of the substantial time the Mother has spent with the child has been limited and supervised, and the Mother has not recently spent any time with the child at all, this is to be expected.

Section 60CC(3)(c):the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. It is evident that, since the child commenced spending time with the Father in October 2012 and was thereafter returned to his care, the Father has taken the opportunity to participate in making decisions about her life and to spend time and communicate with her. It is disputed what time, if any, the Father spent with the child from the date of separation until October 2012 however it appears that any attempts by him to spend time with the child and become involved in her life were frustrated by the Mother and Maternal Grandparents, and further by the involvement of DHS with the family. In any event, it does not appear that this period of separation has impacted negatively upon the child’s welfare or development. The Father is solely responsible for the financial maintenance of the child.

2. Despite the Father’s efforts to encourage and facilitate same, the Mother’s capacity to participate in the decision-making process with respect to the child and to spend time and communicate with her has been largely frustrated by her mental illness. The Mother’s:

   ·Refusal to accept her diagnoses;

   ·Continuing lack of insight into, and acknowledgment of, her mental illness;

   ·Resistance to ongoing intervention and monitoring of her mental health;

   ·Reluctance to engage with, and commit to, any ongoing voluntary treatment, including any prescribed medication;

   ·Resentments towards both the Father and Maternal Grandmother for the roles they play in the child’s life;

   ·Inability to refrain from making inappropriate comments to the child; and

   ·Inability to protect the child from the manifestations of her mental illness,

   have meant that the Mother’s time and communication with the child has been supervised since at least June 2012 and will remain so for the foreseeable future.

3. The Mother attended 10 sessions of supervised time with the child at (omitted) before these sessions were cancelled in May 2014 due to her non-attendance.[210] It does not appear that the Mother has made any attempts since this time to arrange to spend time with the child at another contact centre, despite the Father’s desire for time to recommence.

   [210] Affidavit of Mr Koster filed 7 July 2014, at Annexure “K1”.

1. The Mother was aware of these proceedings and had every opportunity to participate meaningfully in them, thus actively involving herself in the decision-making process and outcome with respect to the child’s future. There was evidence that the Mother was concerned that the Father and Maternal Grandmother were making decisions about the child in her absence, but despite this, the Mother chose not to involve herself.

2. The Mother participated in both of the family report appointments and maintained that she wanted the child to return to live with her. This indicates that the Mother wished to remain involved in the child’s life. It may be that the withdrawal of legal aid funding and the discouragement of the Maternal Grandmother influenced her decision not to participate in the Final Hearing. It is of concern that the Maternal Grandmother actively discouraged the Mother from attending Court.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Apart from the Mother’s application that the child live with her and the Father on a shared care basis, there was no application before the Court to change the child’s residence.

2. In making her recommendations for the child, Dr M was concerned about the number of changeovers and disruption and interruption to the child’s routine. She was not opposed to the proposal of the Maternal Grandparents that the child spend each alternate weekend in their care if this was to include the Mother’s time although she preferred her recommendation of each Monday and Thursday until the child attended four-year old kindergarten. Dr M commented that the Maternal Grandparents’ proposal started to move into the realm of something that might be recommended for a non-resident parent and that she was concerned about the Maternal Grandparents stepping in and taking over the Mother’s role. She believed however, that the child could cope with spending three nights away from the Father and that she was in no doubt that the child could manage each alternate weekend with the Maternal Grandparents if that was what the Court ordered.

3. I do not believe that a change in the child’s circumstances to the extent proposed by the Maternal Grandparents would have any great effect on the child or her relationship with the parties.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The Mother’s time spent with the child has been suspended since March 2014. Prior to this, the Father was facilitating the Mother’s time with the child at (omitted) by transporting the child to and from each session on his day off from work. The Father’s evidence was that he wanted to be the one to transport the child to her time with the Mother as it demonstrated a level of cooperation between the parties to the child and was really something that should be done by the parents.

2. The Maternal Grandparents’ proposal included the Mother’s time and as such, they proposed that they be responsible for the child’s transportation to and from the contact centre. Dr M stated that this made sense to her, but that it would make little difference to the child. I find that it is appropriate for the Maternal Grandparents to be the ones to facilitate this relationship with the Mother going forward.

Section 60CC(3)(f): the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Although the relationship between the Father and Maternal Grandparents is strained, this does not appear to have impacted negatively upon the child and the evidence was that she is a happy and settled child who shares a strong and secure loving bond with both the Father and Maternal Grandparents. This suggests that her needs are being met by both the Father and Maternal Grandparents.

2. The Maternal Grandparents did not raise any concerns with respect to the Father’s capacity to provide for the child’s emotional and intellectual needs. I am satisfied that the Father is capable of providing for same.

3. With respect to the Maternal Grandparents, the Father did not raise any concerns about their ability to provide for the child’s emotional and intellectual needs except in circumstances where they were allowed to bring the child into contact with the Mother and she suffered a psychotic episode. The Father did not believe that the Maternal Grandparents are capable of providing for the child’s emotional needs in this event. On the evidence before me, particularly that of Dr M, I am satisfied that the Maternal Grandparents are capable of recognising when such a situation may arise and would act protectively in removing the child from the Mother’s presence. I am therefore satisfied that the Maternal Grandparents are capable of providing for the child’s emotional needs.

4. At this stage, despite receiving regular medication and monitoring, the Mother has little to no capacity to provide for the child’s intellectual and emotional needs. Dr M observed that, during her time with the child, the Mother put emotional pressure of her and was:

   [L]ooking to [the child] to get her own emotional needs met … saying things that [the child] wouldn’t understand, and embroiling her in adult things by asking her to talk to her father.[211]

   As previously noted, Dr M believed that the Mother had a “limited understanding of what is appropriate for [the child] at her age and stage, and what her needs are”.[212]

   [211] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.12 at para.40.

   [212] Ibid.

5. Further, despite only spending limited supervised time with the child, the Mother’s beliefs that the child is “ready and capable of going straight to a week about arrangement with her; and she thinks this is fair enough since she is the mother”[213] and that she “knows [the child] is ready to be with her too, as “I can see it on her dear little face””[214] demonstrate a clear lack of insight and understanding on the part of the Mother into the child’s needs and what is in her best interests. I am satisfied that, at this stage, the Mother is not able to provide for either the child’s intellectual or emotional needs.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

[213] Ibid, pp.6-7 at para.17.

[214] Ibid, p.8 at para.23.

1. There are no characteristics of the child or of either of the child’s parents that are particularly relevant to my determination in this matter.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

1. Section 60CC(3)(h) is not relevant to these proceedings.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I am satisfied that, despite there being little to no involvement with the child from the date of separation until October 2012, the Father has demonstrated a very positive attitude towards both the child and his responsibilities as her parent. Further, despite the difficulties surrounding the Mother’s involvement in the child’s life, the Father has continued to support, facilitate and encourage the child’s relationship with the Mother and clearly recognises the importance of same. Despite the observations of Dr M that the Father resented the strong and secure bond that the child has with the Maternal Grandparents, I found his oral evidence that he recognised, understood and respected their role as grandparents to be truthful and genuine. It appears to me that the Father has made every effort to parent the child responsibly and encourage her relationships with the other significant people in her life. It is clear that the child’s best interests are his paramount consideration, regardless of his own personal views about the Maternal Grandparents.

2. Due in large part to her mental illness, the Mother has been unable to parent the child responsibly. Her continuing denial of her mental illness and lack of insight into how this affects her relationship with the child and her ability to parent and be meaningfully involved in the child’s life with continue to hinder this.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family

1. Although the relationship between the parents was described as “volatile”,[215] the parties separated when the child was five months old. Apart from the incident that occurred on Christmas Eve 2012, it is unclear how many times the Mother’s behaviour has exposed the child to risk. 

   [215] Transcript of Proceedings, 14 July 2014, p.16 at line 45.

2. There was no allegation made that the child has been exposed to family violence while living with the Father and Paternal Grandparents.

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

1. The Maternal Grandmother gave evidence that she had previously taken out two Intervention Orders against the Mother which named the child as an affected family member, however she stated that she could not recall the incidents that lead to her applying for same, only that it was on the recommendation and encouragement of DHS.

2. There is no current Intervention Order in place, the most recent one having expired in September 2013.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is generally preferable, in my view, to make orders that are least likely to result in further proceedings in relation to a child. I intend to make final orders in this matter. The difficulty in this matter is that there is little evidence as to the Mother’s prognosis and her capacity for recovery is unknown, as is her potential for a more meaningful involvement in the child’s life in the future. I cannot extrapolate potential outcomes and must base my decision on the evidence that is before me as at the date of the Final Hearing. As such, the orders that I intend to make with respect to the Mother’s time do not provide for any unsupervised time with the child.

2. The Father has acknowledged that if the Mother was to ever “regain a state of health, which would enable her having any unsupervised relationship with the child”, there would be a necessity to review the orders at that point in time.[216] This may well occur at some point, however, given the disruption to the child’s life to date, it is important that these orders provide stability and security for the child based on the evidence that is before the Court today.

   [216] Affidavit of Mr Koster filed 7 July 2014, p.10 at para.18.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

1. It is clear that the Maternal Grandparents have played an important part in the child’s short life. She lived with them for over a year and during most of that time, the Mother was unable to participate meaningfully in the child’s life due to her mental health and the Father had little or no involvement.

2. The child is a happy and healthy child who has a close and secure bond with the Maternal Grandparents, one that Dr M notes is almost as strong as the one with her Father. The Father has consistently, in both his affidavit material and oral evidence, supported their role in the child’s life and acknowledged the importance of that attachment, however felt strongly that they were attempting to substitute themselves as a parent in the absence of the Mother’s participation in the child’s life. The Maternal Grandparents refute this, with the Maternal Grandmother stating that, given the limited amount of time the child spends with the Mother, the Maternal Grandparents should have additional time so that the child maintains her connection with the maternal family.

3. The proposal of the Maternal Grandparents to spend each alternate weekend with the child includes the Mother’s time. Before it was cancelled, the child’s time with the Mother fell on the Father’s time and he was responsible for facilitating same. Dr M stated that she was not concerned about the additional time sought if it was to include the Mother’s time. However, while I am satisfied that it is appropriate for the Mother’s time to fall during the time of the Maternal Grandparents, I am not satisfied that it is appropriate for the child to spend each full alternate weekend with the Maternal Grandparents, as though they were the non-resident parent. Dr M stated that:

   [I]t is probably better for all involved if [the Maternal Grandmother] maintains the role of grandmother, as this cements this role for [the child] in the long term, and it also allows the mother more opportunity and flexibility to move into more of a parenting role if and when she is able to, and certainly gives her hope and motivation to do just this ... as [the child] gets older, she will be less vulnerable, and it is possible that she might be capable of spending more time with the mother, and there needs to be some room for this to happen.[217]

   [217] Affidavit of Dr M filed 11 July 2014, Annexure “MW2”, p.19 at para.67.

4. I agree with Dr M that the door needs to be left open for the Mother to take on more of a mothering role if she becomes well enough to do so in the future. The Orders that I make allow for this opportunity should it eventuate. I do not think that it is in the child’s best interests that the Maternal Grandparents fill this role in the meantime.

5. The difficulty in this matter is that the Court does not know what the Mother’s situation is going to be like in the future and it is difficult for the Court to take into account all of the potential variables and contingencies in this respect. What the Court has to consider is what the current situation is in relation to both the Father and the Maternal Grandparents with respect to the child, and what is going to be in the best interests of the child going forward as at this date. In the event that the Mother is able to play a more active role in the child’s life in the future, these orders will need to be revisited. Any time the child spends with the Mother in the foreseeable future should not, however, result in a diminution of the child’s time with the Father.

I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 18 December 2014