Linnane & Linnane (No 2)
[2022] FedCFamC1F 858
Federal Circuit and Family Court of Australia
(DIVISION 1)
Linnane & Linnane (No 2) [2022] FedCFamC1F 858
File number(s): PAC 5021 of 2020 Judgment of: HANNAM J Date of judgment: 8 November 2022 Catchwords: FAMILY LAW – Final parenting – Where there is one child of the proceedings – Where the contest for parenting orders is between the maternal aunt and the interveners – Where the interveners are the adoptive parents of four of the child’s brothers – Where the mother and father are not participating – Where child lived with the maternal aunt since birth but moved from that household to the interveners’ care several months prior to the final hearing due to risk issues in the maternal aunt’s care – Where substantial agreement was reached at the commencement of final hearing about the child’s parenting arrangements and the remaining dispute relates to the child’s time with the maternal aunt – Where the evidence suggests that there continues to be risks of harm to the child posed by the maternal aunt in relation to neglect and exposure to family violence – Where court child expert opines that there should be cohesion and consistency with any approach taken to a regime of orders for the child – Where the court child expert is also of the view that the child should have a relationship with the maternal aunt for “identity purposes” only – Where Court concludes that the child will be placed at an unacceptable risk of harm if he were to spend any unsupervised time with the maternal aunt – Orders made as sought by the ICL and adopted by the interveners that the child spend supervised and limited time with the maternal aunt as determined by the interveners. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 65D Cases cited: Donnell & Dovey (2010) FLC 93-428
Isles & Nelissen [2022] FedCFamC1A 97
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 138 Date of last submission/s: 17 October 2022 Date of hearing: 21 and 23 September 2022 Place: Parramatta Counsel for the Applicant Mr Scarlett Solicitor for the Applicant Aboriginal Legal Service Solicitor for the 1st Respondent Litigant in person (did not participate) Solicitor for the 2nd Respondent Litigant in person (did not participate) Solicitor for the Interveners Ms Smith, Care Legal Solicitor for the Independent Children’s Lawyer Mr Macdiarmid, Mark Macdiarmid Family Law Specialist ORDERS
PAC 5021 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B LINNANE
Applicant
AND: MS C LINNANE
First Respondent
MR WITOSKI
Second Respondent
MR WHYMAN AND MS WHYMAN
Interveners
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
8 november 2022
THE COURT ORDERS THAT:
Prior inconsistent Orders
1.To the extent that any prior Order of the Court in this matter is inconsistent with the Orders below, these Orders prevail.
Discharge of prior Final Orders
2.Orders 7.3 and 7.4 of the Orders made by consent on 21 September 2022 are discharged.
Spend time with (Applicant)
3.The child X born 2020 (“the child”) is to spend such time with the Applicant and under such supervision as is agreed in writing between the Applicant and the Interveners and failing agreement as is determined by the Interveners.
4.The child is to communicate with the Applicant via video/Facebook Messenger call once each month at 6pm on the 3rd Wednesday of each month facilitated by the Interveners, or as agreed in writing between the Interveners and the Applicant. L is permitted to participate in such video/Facebook Messenger calls, provided that should L present as violent, aggressive or substance affected, then the call is to be terminated by the Interveners immediately.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Linanne & Linanne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
introduction
These proceedings concern the future parenting arrangements for a little boy aged two (“the child”).
The dispute concerning the child’s parenting arrangements was commenced in September 2020 by way of an Application for Consent Orders filed by the sister of the child’s mother (“the maternal aunt” or “the applicant”) naming the mother and the father of the child (“the parents”) as first and second respondents respectively. In early 2021 a registrar declined to make the consent orders sought on the limited information available and I subsequently also declined to make the orders sought in that application. The parties to the proceedings at that stage wished to press for parenting orders for the child. As a result, the Application for Consent Orders was treated as an Initiating Application, a course not opposed by any of the parties. The dispute has proceeded on this basis since that time and necessary orders have been made pursuant to the relevant applicable rules.
In January 2021 the adoptive parents of four of the child’s biological siblings (“the child’s brothers”) were added as interveners to the proceedings (“the interveners”) as they also seek parenting orders for the child.
The child’s parents who participated in a number of the early court events have not engaged in the proceedings for some time. The final hearing in September 2022 proceeded undefended as against each of the parents and at that hearing the maternal aunt and interveners only (“the participating parties”) sought parenting orders for the child’s future care.
From the time of his birth until mid-2022 the child had lived with the maternal aunt and spent time with each of his parents on an ad hoc basis as determined by the maternal aunt. For a short time after the child’s birth the maternal aunt also facilitated the child spending time with his brothers and the interveners at her home. In August 2021 orders were made for the child to communicate with his brothers and the interveners initially via video-call and subsequently to spend time with them initially in the presence of the maternal aunt and then in the interveners’ home. Subsequently, the parties reached agreement for an increase in the child’s time with the interveners and his brothers so that it included overnight time.
On 10 June 2022 I made orders for a change in the interim parenting arrangements for the child (“the interim orders”) and reasons for these orders were published on 1 July 2022 (“the interim judgment”)[1]. The interim judgment is a matter to which I will return. It suffices to record at this stage that I was concerned that the need to protect the child from harm arising from neglect, exposure to family violence and shortcomings in the capacity of the maternal aunt to meet the child’s needs were so great that it was in the child’s best interests to move from living with the maternal aunt to the home of the interveners. At that stage I assessed that the interveners had greater capacity to provide for the needs of the child and that the interim orders were proper and in the child’s best interests.
[1] Linnane & Linnane [2022] FedCFamC1F 461.
At final hearing the participating parties reached agreement about many matters relating to the parenting of the child which the Independent Children’s Lawyer (“ICL”) also considered to be in the child’s best interests. Pursuant to orders made with the consent of the participating parties on the first day of the final hearing on 21 September 2022, the interveners have equal shared parental responsibility for the child and the child is to live with them. Other orders were made in relation to the child’s time with his parents including a restraint that they or either of them be present during any time that the child is to spend with the maternal aunt. Other matters in relation to the maternal aunt’s time with the child were also agreed which will be explained in due course, as well as the parties reaching an agreed position concerning passport and overseas travel, registration of the child’s name, communication and restraints. Accordingly, the only matter to be determined at final hearing relates to the child’s time with the maternal aunt.
The maternal aunt proposes that the child spend time with her each alternate Sunday for a period of four hours, that such time be unsupervised and for a regime providing confirmation that this time will occur. The maternal aunt also proposes orders in the event that she does not provide confirmation as required for three consecutive occasions, in which case the child’s time with her is to be suspended, and an alternative regime be introduced. The maternal aunt also proposes weekly video communication which another member of her household be permitted to engage in.
The interveners do not agree with the maternal aunt’s proposal for the child to spend time with her and at the conclusion of the hearing adopted the ICL’s proposal which if made will see the child spend such time with the maternal aunt and under such supervision as is agreed in writing between the maternal aunt and the interveners, and failing agreement is to be determined by the interveners. The ICL also proposes that the maternal aunt have video contact with the child once per month and that the member of her household (“the foster grandchild”) is permitted to participate in such call provided he does not present as violent, aggressive or substance-affected in which case the call is to be terminated.
The question for me to determine is which of the alternate proposals is proper having regard to the best interests of the child as the paramount consideration.
background
I set out the following background to the dispute from my interim judgment:
10The parents in these proceedings who are both 45, live in a regional town and have a number of children between them including four children together. Limited information is provided by the participating parties (“the maternal aunt” and “the interveners”) in respect of the parents and their relationship, however it is not disputed that there are significant risk issues relating to the parents due to family violence and drug use and consequently they do not have care of any of their children.
11The maternal aunt, who is 60, lives in the same regional town as the parents with a child who was placed in her care by the Department of Communities and Justice (“DCJ”) in 2008 and who is now aged 14 (“the maternal aunt’s foster grandchild”). He is the grandchild of the maternal aunt’s former de facto partner from whom the maternal aunt separated due to family violence. The maternal aunt, who is not currently partnered, has three adult children from a previous relationship.
12The interveners who are 56 and 58 respectively, married in 2010 and have four adult children from prior relationships between them. In early 2017, four of the child’s siblings were removed from the parents by DCJ and placed into the care of the interveners. The child’s siblings were aged between one and eight at that time. In early 2020 adoption orders were made by the Supreme Court of NSW granting sole parental responsibility for each of the child’s siblings to the interveners.
13The child was born in 2020 and was discharged from hospital into the maternal aunt’s care and has remained in her care since this time.
14In mid-2020 the maternal aunt facilitated the child’s siblings and the interveners spending time with the child at her home on one occasion.
15An Application for Consent Orders was filed by the maternal aunt on 22 September 2022 seeking that she hold sole parental responsibility for the child and that the child live with her. Orders were also sought that the child spend time with each parent as agreed between the maternal aunt and that parent and that such time be supervised by the maternal aunt or take place at a contact centre, as well as an order that the maternal aunt keep the parents informed of the child’s health and any health issues.
16On 14 October 2020 a registrar declined to make the orders sought and listed the proceedings before me for judicial case management.
17At the first court event before me on 16 November 2020, an order was made pending further order that the child live with the maternal aunt. Orders were also made for DCJ to provide to the Court a Personal History Summary relating to the child and that the parties attend upon a Family Consultant for the purposes of the Child Responsive Program.
18Following the first court event, an Application in a Case was filed by the interveners on 23 December 2021[2] seeking to be joined to the proceedings and seeking interim orders that they hold parental responsibility for the child and that the child live with them. In the alternative, an order was sought on an interim basis that the child spend defined time with his siblings.
[2] The date that appears here is a typographical error in the original Judgment and should read 23 December 2020.
19On 18 January 2021 I indicated to the parties that I was not prepared to make the orders sought in the Application for Consent Orders and the mother subsequently made application that the Application of Consent Orders be treated as an Initiating Application filed by her. That application was not opposed by any party and consequently an order was made that the mother be treated as the applicant for Final Orders, that the maternal aunt be treated as the first respondent and the father as the second respondent. The interveners were joined as interveners in the proceedings and an order was made that they also attend upon a Family Consultant for the purposes of the Child Responsive Program.
20On 5 February 2021 orders were made for the appointment of an ICL and a Family Report was ordered. The maternal aunt was also ordered to complete a parenting program for infants and with the consent of the parties, the maternal aunt was to obtain a referral to a paediatrician for the child. A range of procedural orders were also made including that within 28 days the mother file an Initiating Application and within a further 14 days the maternal aunt, father and interveners file a Response.
21On 11 June 2021 the Family Report dated 9 June 2021 was released to the parties.
22On 2 August 2021 the intervener’s Application in a Proceeding (for interim parenting orders) was heard by a Senior Registrar. Following that hearing an order was made that during the period in which restrictions were in place associated with the Covid-19 pandemic (“the lockdown”) the child communicate with his siblings and the interveners via video call twice per week. The child was to continue to live with the maternal aunt and spend time with the parents twice per week for a period of three hours at the maternal aunt’s home and to be supervised by her. Pursuant to those orders in the event of any conflict between the parents or in the event the maternal aunt considered the parents to be drug or alcohol affected, the maternal aunt was to end the time immediately and notify the ICL and the interveners. The maternal aunt was also restrained from bringing the child into contact with the parents other than as provided in the orders without agreement between the ICL and the interveners.
23Orders made at that time provided that upon the Covid-19 restrictions being lifted the child was to spend time with the interveners and his siblings for a period of four weeks each alternate Sunday for a period of three hours with the maternal present, then for a period of eight weeks each Sunday for three hour hours without the maternal aunt present and thereafter for a period of seven hours on one defined day each weekend. Subsequently the parties reached agreement for an increase in the child’s time with the interveners and his siblings to include overnight time.
24The orders made in August 2021 also restrained the parents from attending the child’s time with his siblings as well as in relation to other matters such as the consumption of drugs, alcohol, smoking, physically disciplining the child and denigrating any other party. An order was also made with the consent of the parties’ pursuant s 91B of the Family Law Act 1975 (Cth) (“the Act”) requesting that DCJ intervene in the proceedings. DCJ subsequently declined the invitation to intervene.
25On 26 August 2021 trial directions were made to prepare the proceedings for final hearing.
26On 3 October 2021 the child spent time with the interveners and his siblings pursuant to orders made in August 2021 for the first time.
27The child began spending face to face time with the interveners and his siblings without the maternal aunt being present on 17 October 2021
28At a compliance check in December 2021 it was noted that the trial directions had only been complied with by those actively participating in the proceedings, being the maternal aunt and interveners. On that same day the maternal aunt’s solicitor advised the intervener’s solicitor that an Apprehended Domestic Violence Order (“ADVO”) had been issued against the father for the protection of the mother though no other details concerning the ADVO were given. According to documents produced on subpoena, in mid-2021 the father was served with an ADVO for the protection of the mother which includes a non-contact condition. That ADVO is due to expire in 2023.
29At a case management event in February 2022 it was ordered that an Update Family Report be prepared in relation to observations of the child with the interveners and concerning the child’s relationship with the interveners having regard to the age of the child, the time the child has spent with the interveners since the family were first interviewed and the increase in time since the Family Report was prepared. At that court event leave was granted to the parties to approach the list clerk for the allocation of a three day final hearing.
30The mother, maternal aunt and interveners attended a Court based Family Dispute Resolution Conference in March at which it was noted that all parties in attendance acknowledged that substantial issues remained in dispute and that the matter requires a final hearing.
31On 28 April 2020 the interveners filed an urgent Application in a Proceeding seeking that they have parental responsibility for the child and that the child live with them and spend defined time with the parents and the maternal aunt. An order was also sought that the child who lives with the maternal aunt is not to be present during the child’s time with the maternal aunt.
32The intervener’s Application in a Proceeding was heard on 10 June 2022 and at a court event earlier on that same day, the Update Family Report was made available to the parties.
On 10 June 2022 I made the interim orders as sought by the interveners (and supported by the ICL) and the interim Reasons for Judgment were subsequently published.
As a result of the interim orders the child immediately moved to live with the interveners. Following the transition of the child into their care, the interveners took steps to obtain appropriate medical treatment and services for the child including making an NDIS application for him as he had been diagnosed with global developmental delay. The interveners also enrolled the child in day-care one day per week and began including the child in all of the activities in which his brothers are involved. In short, the interveners have treated the child as a family member since he has lived in their home.
The interim orders provide that the child spend time with the maternal aunt (unsupervised) each alternate Sunday for a period of three hours with the changeover occurring at a nominated train station and that the maternal aunt be required to confirm her intention to have the child spend time with her. Pursuant to the interim orders if such confirmation is not received by the interveners 48 hours in advance of the scheduled time occurring, this time is not to proceed.
The child spent time with the maternal aunt on 19 June 2022 but the following contact event on 3 July 2022 was cancelled by the maternal aunt who informed the interveners that her foster grandchild was unwell. The interveners facilitated a video-call in place of this contact event. The child spent time with the maternal aunt on 17 July 2022 but has not spent time with her on the four following occasions when that was scheduled to occur prior to the final hearing as the maternal aunt had not confirmed her intention to attend as required. As a result, the child had not seen the maternal aunt in person for just over two months prior to the final hearing.
The child had contact with the maternal aunt by video for around 10 minutes each week between 10 June 2022 and the final hearing. On the first occasion this call was terminated by the interveners due to “inappropriate actions and language” in the maternal aunt’s house but that had not since been an issue.
In August 2022, about six weeks prior to the final hearing the maternal aunt and her foster grandchild moved from their regional location to a suburb in Sydney, closer the interveners’ home.
tHE Hearing
As touched upon earlier in these Reasons, neither of the parents participated in the final hearing. Neither parent had attended at court events prior to the hearing nor had either of them complied with trial directions for the filing of affidavits. Accordingly, the final hearing was conducted undefended as against the parents.
As also discussed earlier, the participating parties and the ICL reached agreement in relation to numerous matters and orders were made with their consent to reflect that agreement (“the consent orders”). The consent orders provided that the interveners have equal shared parental responsibility between them for the child and that the child live with the interveners. The orders also provide that the child shall spend such time with each of the parents and under such supervision as is agreed in writing between the parents and the interveners and failing agreement, as determined by the interveners. Pursuant to s 68B of the Family Law Act 1975 (Cth), the parents are each restrained by injunction from being present during any time that the child is to spend with the maternal aunt.
As at the commencement of the final hearing it appeared to be agreed between the participating parties and the ICL that the child would spend some time with the maternal aunt, orders were made for changeover and for the maternal aunt to confirm her intention to have the child spend time with her 48 hours in advance of such time occurring and other orders in relation to the conduct of the participating parties at changeover. As it had also been agreed that regardless of the orders made for regular time between the child and the maternal aunt there would be additional (unsupervised) time each year on Boxing Day and in the month of the child’s birthday, the consent orders also provided for this additional time to occur. A further order restrained the maternal aunt from bringing the child into contact with her foster grandchild during the time the child spends with her without the interveners’ prior written consent, but this did not prevent the foster grandchild being present during any video-call between the child and the maternal aunt so long as he did not present as violent, aggressive or substance-affected.
As previously noted, there were other orders made with the consent of the participating parties including in relation to passport and overseas travel, communication and restraints in relation to the consumption of substances, physical discipline and denigration of any other party or other party’s extended family. Agreement had also been reached and orders made authorising the interveners to apply to the relevant authority for the child’s name to include the interveners’ surname (as well as the child’s surname registered at birth being the same surname as the mother and maternal aunt).
The entire ambit of the dispute relates to an appropriate order for the child’s time with the maternal aunt including matters such as confirmation by the maternal aunt that such time will proceed and consequences if it does not, and for communication between the child and the maternal aunt.
At the hearing, the maternal aunt relied upon her trial affidavit of December 2021 and a further affidavit dated 12 May 2022 which she had filed for the purposes of the interim hearing in June 2022. The maternal aunt did not seek to rely upon any affidavit in relation to events between May 2022 and the final hearing in September 2022.
Cross-examination of the maternal aunt
Under cross-examination, the maternal aunt agreed with the evidence of the interveners that the child had only spent time with her in accordance with the interim orders on two occasions and that the child had not seen her in person for just over two months prior to the final hearing. The maternal aunt agreed that the first occasion on which she cancelled the child’s time with her, 3 July 2022, she had advised the interveners that her foster grandchild was unwell. Under cross-examination she agreed that in fact her foster grandchild was in hospital at the time because he had been hurt by a friend in the course of an incident at a friend’s house to which police had been called. The maternal aunt said that she did not tell the interveners about the incident as she “didn’t think about it”.
When asked under cross-examination why she had not provided confirmation to the interveners that the child’s time with her was to go ahead on the other occasions, the maternal aunt initially said that she was in the process of moving at the time. The maternal aunt appeared to have a poor recollection about messages between herself and the interveners and her reasons for not sending such messages but did ultimately agree that she had not provided confirmation as required under the orders. The maternal aunt conceded that she understood that there was extensive planning necessary for the interveners as they had the care of five young children and that that is one of the reasons that confirmation by text message was required. The maternal aunt did not agree, however, that her failure to give confirmation to the interveners had any impact on the child.
When asked about other people who had accompanied her when the child spent time her, the maternal aunt nominated a friend on two occasions. The maternal aunt also agreed that she asked the interveners if her foster grandchild could attend when the child spent time with her (noting that there was a positive injunction requiring the parties to do all things to ensure that the maternal aunt’s foster grandchild does not spend time with the child and is not present or within the vicinity during that time). The maternal aunt said that she had asked for her foster grandchild to attend when the child was spending time with her as the foster grandchild had asked to see the child as he loves the child.
There were then questions about the maternal aunt’s insight into any risk that her foster grandchild may pose to the child. Such risks had been identified in the interim judgment and related in particular to the foster grandchild’s use of substances, violent conduct and interactions with police. This conduct as well as shortcomings in the maternal aunt’s parenting capacity were the main reasons for the interim orders that saw the child move to the interveners’ care. The maternal aunt said under cross-examination that she had agreed to the restraint in respect of her foster grandchild but reiterated that she did not want such an order and that in the “whole court case [the foster grandchild] has been used as a scapegoat”.
The maternal aunt was then asked numerous questions under cross-examination about her foster grandchild. She agreed that this child still lived with her but said that he was not attending school as the Department were yet to arrange this child’s attendance at a “special school in the area”. The maternal aunt denied that her foster grandchild had been involved with police in any incident other than the abovementioned and maintained that this child was no longer using any illicit drugs. The maternal aunt added that he had ceased his cannabis use but had not undertaken any relapse prevention measures.
Despite saying that she had no concern about any of the foster grandchild’s friends and that there had been no additional police involvement, the maternal aunt subsequently agreed that three weeks after she and her foster grandchild moved to their new home they “got ran through” which the maternal aunt explained meant that they experienced a home invasion. She then explained that a youth they had experienced difficulties with at their previous home attended at the new home and “ran through” the house pushing her into a couch and punching the foster grandchild so hard that he fell to the ground. The maternal aunt said that she chased this youth out of the house and called police and subsequently gave a statement to the police and understood that the youth had been charged.
When cross-examined further about the last-mentioned event, the maternal aunt said that it originated from a disagreement that she had had at her former home with the offending youth’s mother in which she had been abusive to this woman which caused her foster grandchild to “have a go at her”. The maternal aunt said that this woman then told her son to bash the maternal aunt’s foster grandchild. The maternal aunt also confirmed that the woman in question was a person with whom she had arranged a house swap and that there had been an argument over the way in which the house swap took place.
The maternal aunt was also cross-examined about the condition of her previous home when she moved from it. Photographs of the home shown to the maternal aunt depict highly disorganised and cluttered conditions.
The cross-examination then returned to the question of any risk of harm posed by the maternal aunt’s foster grandchild. She emphatically maintained that she did not consider that her foster grandchild posed a risk to the child or anyone else. The tenor of the witness’s response to questions asked about the conduct of her foster grandchild (previously noted by various agencies working with the family) was that he had changed since they had moved to a new home. The maternal aunt insisted that this change arose from the foster grandchild no longer associating with people he associated with at their previous home.
Under cross-examination the maternal aunt was extremely reluctant to admit that her foster grandchild had a long history of perpetrating threats and violence towards her and agreed only that he used abusive language with her. She agreed that she and the foster grandchild were no longer involved in any therapy or services other than a mentoring service. She agreed that it was a long time since her foster grandchild had seen a paediatrician and said that he was no longer on any medication.
The maternal aunt was also cross-examined about any contact that she had recently had with the child’s parents. She said that the last time she facilitated contact between the child and his father was six months ago and that her understanding was that the child’s father was a drug addict who had become “a bit nasty”. The maternal aunt said she was currently not speaking to the child’s mother and had no intention of doing so. When asked about any risk of harm that the mother posed to the child, the maternal aunt responded that it was possible that the mother did pose a risk if the mother was under the influence of drugs adding “which she nearly always is”. She said that the mother was currently both using and dealing drugs and expressed the view that the mother was not going to change.
The maternal aunt maintained that if the mother ever turned up when the child was spending time with her that she would call the police. She then agreed that although there was a current restraint on the mother being present pursuant to interim orders she had not called the police on each occasion the mother had attended at her home (to enforce that restraint).
When asked about video communication with the child, the maternal aunt agreed that this was occurring each week but only lasted for about 10 minutes as the child “gets upset”. When asked, the maternal aunt said she did not prepare in any way for the video-call to make it interesting and did not show the child any toys or books or the like in the course of the call.
When asked about her proposal for the child to spend time with her for four hours a fortnight and that this time be unsupervised, the maternal aunt said that she would like very much to take the child to her home and for her foster grandchild to be allowed to be present. The maternal aunt claimed to be aware of the child’s vulnerabilities and the additional supervision required for him. The maternal aunt adamantly maintained that it was safe for the child to spend time with her at her home and that her foster grandchild would never hurt the child and that nothing untoward would happen if the child came to her home.
The maternal aunt was cross-examined by the ICL about her proposal for a suspension and then variation of the child’s time (to four hours each month for a period of three months) in the event that she does not provide confirmation for the time to occur on three consecutive contact events. It was the maternal aunt’s opinion that this arrangement would result in her being more reliable about the required confirmation in the future. She was unable to give the Court any “comfort” that she would confirm and attend upon contact events in the future other than saying she would make it a priority as she now understood that the child was not coming back to live with her. When it was suggested to the maternal aunt that she had not prioritised the child’s time with her above other things in her life as she had missed five contact events, the maternal aunt said that there would be changes in the future because all of the “drama” in her life had ceased.
When questions by the ICL returned to the maternal aunt’s previous statement that her foster grandchild had been used as a “scapegoat” and to the maternal aunt’s opinion that her foster grandchild poses no risk to the child, the maternal aunt became highly agitated. Although cross-examination of the maternal aunt was not complete at this stage, the maternal aunt did not return after the lunch adjournment and did not participate in the balance of the hearing.
The court child expert’s evidence
The following paragraphs concerning the court child expert’s evidence are extracted from the interim judgment:
33The court child expert has carried out some form of assessment in relation to the family on three occasions.
Children’s and Parents Issues Assessment
34First, the family consultant (as she was then known and hereinafter referred to as the court child expert), prepared a Children’s and Parents Issues Assessment (“CPIA”) contained within a Memorandum to Court dated 4 February 2021 in relation to meetings she had with the parties in the course of the Child Responsive Program on 2 February 2021.
35At that stage the child was living with the maternal aunt and spending frequent time with the mother and the father under the maternal aunt’s supervision as agreed between those parties. Each of the parents was at that time actively engaged in the proceedings. The child had spent time with the interveners on five occasions for several hours in the presence of the maternal aunt and often with the mother and father also present.
36At that stage, the maternal aunt, the mother and the father were all seeking that the maternal aunt hold parental responsibility for the child and that the child live with her and spend time with each of his parents under the maternal aunt’s supervision at times mutually agreed between the three of them. The maternal aunt also sought orders that the interveners and the child’s siblings spend time with the child as agreed between the maternal aunt and the interveners, supervised by the maternal aunt. The interveners were then seeking orders that they share parental responsibility for the child between them, for the child to live with them and spend unsupervised time with the maternal aunt so long as the mother and father were not present. If the Court were not minded to place the child in their primary care, the interveners were seeking that the child spend alternate weekends with them.
37The key issues identified by the court child expert at the time included the most appropriate arrangements for parental responsibility for the child and the most appropriate arrangements for where he was to live and spend time with other significant people including his siblings and parents. It was also identified that the interveners had raised concerns about the maternal aunt’s capacity to supervise and regulate the parent’s contact with the child in an appropriate manner and allegations about the maternal aunt’s care which related to a risk of harm posed by her to him.
38Under the heading of evaluation, the court child expert provided initial expert advice to the family and to the Court about the issues and the child’s needs. The court child expert assessed on the history of DCJ involvement with the parents and their admissions about their drug use and reported allegations about their family violence, it appeared entirely appropriate that they relinquish the child’s care permanently to an appropriate carer.
39The court child expert opined that if the intervener’s claims about the maternal aunt’s day to day care of the child and home environment had veracity and could not be remedied in a timely manner this would raise concern and may be justification for placing the child in the intervener’s care. She also noted however that the child was very young and had entered a critical attachment phase and thus was likely to suffer significant trauma being removed from the care of the maternal aunt. The court child expert opined that the interveners either minimised or did not appear to grasp the degree of trauma that the child may experience if this were to occur.
40The court child expert opined that it therefore appeared that the central issue that requires determination by the Court is whether the care the maternal aunt provides the child is likely to be so poor that the benefit he would obtain from being removed from this (and being provided with the alleged better care from the interveners) would outweigh the trauma the child would no doubt experience. The court child expert also opined that the Court may need to determine whether the opportunity for the child to grow up with his siblings which would undoubtedly provide a better bond than merely spending time with them, should be given priority even though the child will likely experience trauma from being removed from the maternal aunt’s care.
41The court child expert also strongly recommended that as this is a complex matter and particularly as the child is so young that the proceedings be expedited and that if the Court holds concerns about the maternal aunt’s care of the child in the interim she be ordered to complete a parenting program appropriate for infants and engage with a family support service. The court child expert also recommended that an expedited Family Report be ordered and that orders be made for the child to spend time with the interveners and his siblings for three hours on a weekly or fortnightly basis to allow him to become familiar with them.
Family Report – 9 June 2021
42Following the recommendation of the court child expert, an urgent Family Report was ordered in February 2021. This report (“The Family Report”) dated 9 June 2021 was released to the parties a short time later on 11 June 2021.
43When the families were interviewed in […] 2021 the child was observed alone, with the maternal aunt and her foster grandchild (who formed part of her household) and with the interveners and the child’s siblings. The child was aged 11 months at this time. At that stage the mother, father and maternal aunt all reported that they had agreed prior to the child’s birth that the maternal aunt would formally seek to take on the child’s care after the child was born and would supervise any time between the child and his parents. The maternal aunt said she was assessed by DCJ who deemed the placement suitable under these conditions and the child was released from hospital into her primary care where he remained.
44The interveners have legally adopted four of the mother’s other children now aged 12, seven, six and five (including three of her relationship with the father) after having been their carers when they were taken into care by DCJ. The interveners had learnt that the mother was pregnant with the child when they were contacted by the maternal grandmother and claimed that the maternal grandmother was of the view that they should apply for the child to live with them. The interveners reported that they had been assessed by the agency that had been responsible for placing the child’s siblings in their care as a suitable placement for the child should he come into the care of DCJ.
45When she was assessed by the court child expert for the Family Report, the maternal aunt provided more information about her foster grandchild aged 12 years […] at that time, who lives with her. The maternal aunt has been her foster grandchild’s primary carer since the age of three months for his entire life except for a six week period when that child was approximately five to six years of age and placed into foster care due to a serious domestic violence incident towards the maternal aunt from the foster grandchild’s grandfather. The maternal aunt reported that she immediately separated from the foster grandchild’s grandfather and had the foster grandchild restored to her care while the Minister for Families and Communities holds parental responsibility for him.
46For the purpose of her assessment, the court child expert met with the interveners and maternal aunt and observed them interacting with relevant members of each household as outlined above. Both parents initially agreed to participate in the Family Report assessment but did not attend on the scheduled assessment date. The maternal aunt advised the court child expert that despite her best efforts to convince them to participate they declined to do so.
47At the time of the assessment for the Family Report, the child continued to live with the maternal aunt and her foster grandchild. The child was having almost daily contact with his parents under the maternal aunt’s supervision at that time. The child was spending time with the interveners and his siblings for a couple of hours every few weeks by agreement with the maternal aunt and the interveners. This time occurred in a public place near the maternal aunt’s home and was supervised by the maternal aunt. The maternal aunt did not have a driver’s license and the interveners travelled the two hours distance between their home and the maternal aunt’s home for time with the child to occur.
48At the time of the Family Report assessment interviews the maternal aunt’s Response had changed a little. She was still seeking to hold sole parental responsibility for the child and for the child to live with her and at interview indicated that she was seeking orders that she facilitate the child’s contact with his siblings by his siblings coming to her home for a few hours each month. She also proposed that the child spend time with his parents supervised by her as agreed between herself and the parents.
49The interveners’ position had also slightly changed in that they were seeking on a final basis to share parental responsibility between them for the child and that he live with them. They were also seeking orders in these terms on an interim basis as well as orders for the child to spend time with the maternal aunt as determined by the Court one day per month. Their proposal for the child’s time with the maternal aunt on a final basis would be dependent on the maternal aunt’s willingness to be responsible for half of the travel involved. They indicated that if the arrangements for the child’s time with the maternal aunt go well, they are agreeable to the child spending two to three days at a time with her during each school holiday period.
50As there is no dispute in these proceedings that the parents pose an unacceptable risk of harm to the child on various basis, do not have capacity for the child to live with them and are no longer effectively participating in these proceedings, the focus of the court child expert’s evidence summarised in these Reasons are matters that relate to the maternal aunt and interveners only.
51The interveners raised concerns with the court child expert about the maternal aunt’s ability to appropriately care for the child, including her ability to manage his routine and provide appropriate socialisation, to ensure that medical and other needs are met in a timely manner, to protect the child from witnessing violence and to maintain appropriate boundaries with each of the parents about their contact with the child. They further alleged that the maternal aunt’s home is dilapidated and unfit for the child to live in. The court child expert also identified that the maternal aunt is involved with DCJ in relation to her foster grandchild who is experiencing serious behavioural issues and may be using substances. The interveners also raised concerns that the maternal aunt may be misusing prescription medication, a claim which she denied.
52The maternal aunt maintained that her proposal (which is apparently agreed to by each of the parents) is in the child’s best interests because she has been his primary carer since birth and this arrangement allows him to remain living with a family member and maintain contact with his parents. The maternal aunt declared that the interveners are “nothing” to the child and that the child does not actually need to spend any time with them as he does not have a relationship with them. She said that the purpose of the child spending time with the interveners would be to facilitate him spending time with his siblings, which she is able to do herself. She said that while she had welcomed the interveners into her home to facilitate relationships between the children in each home, she has come to believe that the interveners had been “plotting” to remove the child from her care. At the time of the assessment interview, the maternal aunt’s feelings in relation to the interveners had deteriorated to such an extent that she said she was “finding it hard to even associate with them”.
53The maternal aunt indicated that she felt insulted by the allegations made by the interveners that she provided substandard care to the child. She denied the intervener’s claims that she avoids leaving the house and in relation to allegations about the state of the house she said that she is a long term public housing tenant and acknowledged that although her home was ready for redecoration she maintained that it is generally kept clean.
54At the time of the assessment interviews, the maternal aunt said that she had allowed liberal supervised time between the child and his parents.
55The maternal aunt said her father is [First Nations] and although he is listed on the mother’s birth certificate as her father, the family is unsure of whether he actually is the mother’s biological father. The maternal aunt stated that for this reason, the child was “put down as [First Nations] on the forms” at the hospital.
56The maternal aunt admitted that her foster grandchild has very poor school attendance which she considered was the school’s fault because they had not made a placement in the “special class” available to this child despite promising to do so. She also admitted that the foster grandchild is regularly socialising with an 18 year old man as well as younger children “who do stupid things”.
57The maternal aunt volunteered that there had been a recent violent incident at her home in relation to her temporarily taking in the 15 year old foster child of her neighbour. The maternal aunt claimed that when she became aware that this child was a foster child and was asked to return her to her foster carer and refused, this girl became involved in a neighbourhood dispute which culminated in a group of approximately 30 people surrounding the maternal aunt’s home demanding she send the girl out to them. The maternal aunt said when she refused to do so a rock was thrown through her dining room window but claimed that the child was not at any risk of harm during this incident and that she and the mother were able to successfully talk the crowd down. The maternal aunt said that approximately three days later the same group of people gathered back around her home and wanted to “run through my house” (which the court child expert understood was an expression referring to the act of breaking and entering or home invasion). The maternal aunt also reported having had an altercation with the girl’s foster mother who entered her home uninvited “barging through the house yelling and screaming…” She reported that this person refused to leave and she was required to contact police who put in place an ADVO to protect the girl from her foster mother. The maternal aunt claimed that all of this occurred when the child was asleep in his room and denied that she was often involved in neighbourhood disputes.
58The maternal aunt maintained that she did not allow conflict or violence to occur around the child though she admitted that there had been an incident when she and her foster grandchild’s grandfather were fighting but then denied that he was present or that they were fighting. She agreed that at times the mother had attended upon her home to see the child at “odd” times of the day when the father had “bashed” the mother including one occasion when the mother was brought to her home by police to protect her from the father.
59The interveners maintained that their proposal is in the child’s best interests as it will allow the child to be raised with his siblings and because they can provide him with a better upbringing and environment than the maternal aunt.
60In particular, the interveners expressed concern about the child growing up around “toxic relationships” including the relationships between the maternal aunt and mother and the mother and the father. They raised concerns about the maternal aunt’s capacity to maintain appropriate boundaries between herself and the parents on a permanent basis and alleged that she did not possess the skills to deescalate the mother’s and father’s aggression. The interveners claimed that the parents attend upon the maternal aunt’s home at all hours of the day and night and on occasions the child is woken because they demand to see him and that the mother has been permitted to take the child out unsupervised for short periods. They raised concerns about the maternal aunt’s unwillingness to report the parents to police if they were physically violent and concerns in relation to the child being exposed to family violence between his parents while in the maternal aunt’s care.
61The interveners also raised concerns about the lack of cleanliness and poor state of repair of the maternal aunt’s home and of the maternal aunt’s parenting of her foster grandchild, in particular her capacity to assist this child with his behaviour difficulties and whether these issues will become indicative of how she parents the child. They expressed concerns about the poor role modelling the child is being exposed to by the maternal aunt’s foster grandchild’s behaviour and about various young people who have lived with the maternal aunt during the period they have had contact with her. The interveners said they had strong concerns about the maternal aunt associating with people who are involved in neighbourhood conflicts and/or who are aggressive and fear for the child’s welfare by being exposed to this.
62The interveners maintained that they could provide the child with greater opportunities to build social capital because they are a family that is actively engaged in a range of pro-social interactions with the community whereas the maternal aunt is a somewhat isolated person who does not like to leave her home and often cannot get to appointments and activities without the assistance of neighbours who she then criticises behind their back.
63The interveners reported that they had never had the child on their own without the maternal aunt present and acknowledged that the child did not recognise them when spending time with them as the visits were “too far apart”.
64The interveners responded to the concern that had been raised by the court child expert in the CPIA about their apparent lack of understanding about attachment. They were able to explain that they had a good understanding of attachment as one of their children had been diagnosed with “reactive attachment disorder”. They were able to describe the services they had accessed and strategies they had implemented to address this including attending upon a psychologist and implementing all of the strategies advised by the psychologist with good results for that child. They said that they would be able to assist the child to transition into their care by implementing similar strategies.
65Given that the interveners had not been involved in the child’s care in any way the court child expert asked them questions about their care of their other children so as to gauge information about their general parenting practices.
66In the section of the Family Report headed “Evaluation” the court child expert reiterated that it did not appear to be in dispute that DCJ would have removed the child from his parents’ care and placed him into non-kinship foster care if the maternal aunt had not sought to take him into her care.
67The court child expert opined that as it is not in dispute that the maternal aunt has always been the child’s primary carer and based on this history of care she is likely the child’s primary attachment figure. The court child expert also opined that the child appeared to have an established relationship with the maternal aunt’s foster grandchild and that interactions between this child and the child were generally warm. At that stage it was assessed by the court child expert that the child did not appear to have established relationships with his siblings or with the interveners. She went on to opine that “sibling relationships are some of the most important relationships and children usually benefit from having the opportunity to grow up in the same household with their siblings”. The court child expert said this is particularly the case when children have an already established relationship with their siblings or are in a non-kinship placement where they do not have the opportunity to be reared by a biological member of their family as this assists in their identity development.
68The court child expert opined that the maternal aunt presented as generally desirous to continue to provide primary care to the child and that nothing arose during the course of the assessment that indicated that the maternal aunt had anything other than the child’s best interests at heart, as she understands them.
69The interveners presented to the court child expert as genuinely desiring to take on the child’s full time care and that nothing in the course of the assessment raised concerns that they had anything other than the child’s best interests at heart, as they understood them.
70The court child expert provided the following opinion which summarises the central issue at the heart of this dispute between the parties:
If the Court was to remove [the child] from [the maternal aunt]’s care and place him in the [interveners]’s care this would likely cause attachment disruption and trauma for the child and may negatively impact on his psychological development. [The child] would likely experience insecurity and distress in the new placement for some time. Attuned, emotionally responsive care giving by the alternative primary carers can assist in healing but may not fully ameliorate the trauma experienced. For this reason it is not recommended that the Court remove the child from the [maternal aunt]’s primary care unless the Court finds that [the maternal aunt] is failing to provide what is known as “good enough” parenting to [the child] and if this is the case that [the interveners] are able to provide good enough care to the child. It is acknowledged that this recommendation would mean that [the child] would not have the opportunity to grow up with his brothers but is considered that preserving the already established attachment relationship with [the maternal aunt] be given priority over the sibling relationship as long as [the maternal aunt’s] parenting is not undermining the child’s development.
71The court child expert considered that it was not possible at that stage to determine whether the maternal aunt’s parenting is below what would be considered “good enough” parenting because of the disputed claims and counterclaims of each party about her parenting which will require determination by the Court.
72The court child expert then went on to provide information about the notion of “good enough” parenting to assist the Court in determining the most appropriate parenting arrangements for the child.
73In summary the court child expert opined that if the Court found there is veracity to the description given by the interveners about the state of the maternal aunt’s home this would be concerning as it is health hazard for children to reside in such a home. If the Court were to find that the maternal aunt had failed to advocate on behalf of the children in her care for repair of the more serious issues in the home because she either did not identify the matters as issues of concern or did not have the wherewithal to approach Housing NSW to have these issues remedied then this may support the interveners’ claims that the maternal aunt is not proactive in meeting the child’s needs.
74There were other claims made by the interveners about which the court child expert was unable to make assessment including exposing the child to passive smoking, the maternal aunt abusing prescription medicine and the maternal aunt’s alleged failure to afford the child opportunities to socialise in the community in age-appropriate ways and provide adequate stimulation for the child. There were also concerns about the maternal aunt’s ability to implement firm boundaries and provide adequate supervision to her foster grandchild which were heightened upon the court child expert viewing records obtained under subpoena from NSW police about the maternal aunt’s foster grandchild coming to the attention of police and on one occasion attending a location to find this child so intoxicated that when he tried to walk he fell over requiring that an ambulance be called. There was also a report from the foster grandchild’s school that he had sustained a number of cigarette burns on his stomach from another young person. The court child expert assessed on the basis of information available to her that there were serious concerns about the foster grandchild’s future developmental trajectory. He presented to the court child expert as particularly vulnerable to developing a substance abuse problem, engaging in criminal activity and/or being a victim of and/or being a perpetrator of violence. She opined if the Court finds that poor parenting of this child on the maternal aunt’s part had contributed to this child’s difficulties this may indicate that she will go on to have difficulties parenting the child.
75The court child expert also documented that concerns had been raised during the course of the assessment that the child is regularly being exposed to the conflict between his parents in the maternal aunt’s care. The court child expert explained in her report the impact upon children of being exposed to aggression and danger in the environment and the impact that the trauma of being around such behaviour can have on the developing brain of a child.
76The court child expert then summarised other potential risks to the child in the maternal aunt’s care about which she was unable to make findings including whether the maternal aunt had the capacity to implement any orders restricting the child’s exposure to his parents, the maternal aunt’s capacity to manage the conflict between herself and the mother and the harms to the child’s wellbeing if he was regularly exposed to that conflict, whether the maternal aunt’s contact with her former partner places the child at risk of harm, and whether the child may have been at risk of harm by being exposed to neighbourhood conflicts in the maternal aunt’s care.
77The court child expert opined that none of the maternal aunt’s stated views regarding the interveners’ parenting capacity indicate poor parenting on their part and some of the examples raised by the maternal aunt appeared to indicate to the court child expert good practices in relation to parenting.
78The court child expert’s final recommendations in the Family Report are clearly based upon findings that the Court may make at a final hearing. In summary, she recommended that unless the Court finds that the maternal aunt’s care of the child does not meet the requirements for “good enough” parenting that the child live with her and that she hold sole parental responsibility for him. She makes further recommendations for the child’s time with the interveners and the child’s parents and makes other recommendations if it is determined it is in the child’s best interests to live with the interveners.
Update Family Report
79On 23 February 2022 I ordered that the court child expert prepare an update Family Report in relation to the child who was, when assessed by the court child expert, almost two. The court child expert again attempted to contact the mother and the father about their current proposals and views but they did not respond and therefore did not participate in the assessment. It is also noted that the parents had not been participating in the proceedings for a lengthy period of time by this stage.
80When assessed by the court child expert on 7 April 2022 the child continued to live with the maternal aunt and her foster grandchild and had progressed in spending time with his siblings who are in the care of their adoptive parents (the interveners) to each alternate weekend from Saturday morning to Sunday afternoon with changeovers occurring near the maternal aunt’s home. The child was also having contact with the interveners’ family by telephone (video-call) one day per week.
81When assessed for the update Family Report the maternal aunt was seeking similar orders as previously, being that she have sole parental responsibility for the child and that the child live with her and spend time with his siblings in the interveners’ care one weekend per month from Saturday morning until Sunday afternoon. The interveners continued to seek orders which would see them share parental responsibility between them and that the child live with them and spend time with the maternal aunt once per month for a block period of six hours without the mother or father present. They proposed seeking orders that the child spend time with the mother and the father in the same regime as for their adopted children.
82In addition to the risk factors identified in the Family Report there were now additional allegations made in relation to the conduct of the maternal aunt’s foster grandchild which raise further risk factors for the child in the maternal aunt’s care. These are that the maternal aunt’s foster grandchild is perpetrating family violence towards to maternal aunt including in the child’s presence and that this conduct and other behaviour that the maternal aunt’s foster grandchild is alleged to have engaged in raise risks of physical and psychological harm to the child. There were also allegations raised that the child may be at risk of physical and psychological harm from the mother and/or father’s behaviour. It is also alleged that the child’s diet and hygiene continued to be neglected and he also continued to be exposed to passive smoking in the maternal aunt’s care and that the maternal aunt’s foster grandchild has been using alcohol and cannabis in the home and that the maternal aunt has organised and paid for that cannabis.
83The court child expert herself identified in the course of the assessment that the child had also been diagnosed as at high risk of global developmental delay and needs early intervention and that the deterioration in the maternal aunt’s foster grandchild’s behaviour raises concerns about the impact of these matters on the child’s safety, mental health and wellbeing. The court child expert also identified the question of whether or not it is now in the child’s best interest to move to live with the interveners until a final decision can be made in the proceedings.
84The interveners maintained that the child would be able to tolerate being moved into their primary care because his time with them and his siblings including time on three recent weekends including overnights had all gone well. In particular, they said he shows no distress at separating from the maternal aunt and settles well with them. They also reported that a bond between the child and his brothers is developing. The interveners reported that they were very concerned about the child’s physical state when he comes to them claiming that he regularly attends in a smelly, unkempt state with dirty feet and toenails, dried faeces on his bottom and that he smells strongly of cigarette smoke. The interveners also claimed that on some occasions the child arrives in clothes that are too small for him.
85The interveners also expressed some concern about the child’s behaviour, head-butting or pinching other children in the playground if they are on play equipment he wants and having “tantrums” if they say no to him. They also expressed concern that the child presents as developmentally delayed, reporting that while he makes sounds he does not make clear words and that a recent paediatric report suggested that he suffers from developmental delay in speech and fine motor skills and requires occupational and speech therapy which has not been addressed in a meaningful way in the maternal aunt’s care. The interveners also reported that the child appears to have had undescended testes and was underweight and neither of these was identified by the maternal aunt. They reported that the paediatrician suggested that the child also attend upon a dietician but questioned whether the maternal aunt had done this as regularly as recommended. They also maintained that the maternal aunt lives a chaotic life and cannot manage the child’s routine, including getting him to his medical and allied health appointments which they claim she frequently cancels.
86The interveners raised concerns that the child may not always be properly supervised for his age and stage of development and may not be properly attended to after he has had an accident.
87The interveners raised particular concerns about the maternal aunt’s foster grandchild’s serious behavioural difficulties which they believe significantly negatively impacts the child. Concern was raised that this foster grandchild “controls the money in the house” because he has developed a serious cannabis habit, for which the maternal aunt has admitted providing him with money.
88The interveners reported various occasions when they see the circumstances in the maternal aunt’s home through remote court appearances and video assisted telephone calls. They advised the court child expert of a court event when the maternal aunt’s foster grandchild was present, stood over her and threatened her. On another occasion the foster grandchild was present during the child’s time with the interveners and was reported by the maternal aunt as being “all in a state” and when he became angry, punched a hole in the maternal aunt’s home. They expressed concern that the child is witnessing physical and verbal abuse towards the maternal aunt from her foster grandchild. They also described an occasion when the foster grandchild came to collect the child from the interveners and the child threw himself back and resisted going and that the foster grandchild said in an annoyed tone to the child “don’t be a little prick”.
89The interveners reiterated their concerns about the maternal aunt continuing to be socially isolated and not leaving the house much, which will impact on her willingness to ensure the child attends for early intervention services and to provide him with opportunities for socialisation.
90The interveners also reported to the court child expert some recent conflict in the extended maternal family and the significant volatility from which the child requires protection as well as concerns that the maternal aunt continues to struggle to contain the amount of contact that the mother and possibly the father have with the child.
91The court child expert described the maternal aunt’s presentation at the interview as “of concern”. Her personal clothing is recorded as emitting a strong unpleasant odour which lingered for several hours after she left the registry and she also smelt strongly of cigarette smoke.
92The maternal aunt reported on having taken the child to various appointments including for a paediatric assessment approximately three months prior to interview and reported that the paediatrician had diagnosed the child with global developmental delay and identified that he had speech delay and recommended that he undergo speech therapy. The maternal aunt said that the child had attended one speech therapy appointment and she also said that she intended to take the child to an appointment for his hearing to be tested.
93When asked about her foster grandchild’s behaviour, the maternal aunt admitted that he was standing over her last year and raised his hand to her but denied he had hit her. She explained that this child was spending time with a counsellor/mentor for young people who are experiencing emotional or behaviour difficulties and that she and this child are participating in a program known as Functional Family Therapy (“FFT”) once per week and, as a result of the interventions the foster grandchild “has stopped standing over me”.
94The maternal aunt admitted that she had bought cannabis for her foster grandchild as she thought that was preferable to him stealing to obtain money for the cannabis. She told the court child expert that she gave the money to someone else who bought the cannabis for her which she passed on to her foster grandchild and admitted that both the mother and the father had purchased cannabis for him also. She reported that this child had been smoking cannabis “constantly” but claimed that he had been cutting back.
95The maternal aunt reported that the mother and the father had separated and each re-partnered. She said that the mother is in a relationship with a man who is a “junkie” and that the mother herself continues to use [an illicit substance]. She maintained that the mother comes to visit the child twice per week and that she does not allow the mother to visit the child outside of the hours outlined in the interim orders and does not allow her to come inside and see the child if she presents as under the influence of substances. The maternal aunt reported that the father is now regularly using [an illicit substance] and no longer comes around to see the child or contacts her about him.
96The maternal aunt also reported that there had been conflict between herself, the mother and the maternal grandmother but denies that this conflict negatively impacts the child, maintaining that she shields him from it.
97The court child expert devoted significant attention in the update Family Report to records obtained under subpoena from various agencies including medical practices, a family support service, the foster grandchild’s school, DCJ and police.
98Medical records from one medical practice contained a letter to the GP from a paediatrician which indicates that the paediatrician assessed the child as being at high risk of global development delay and that the child requires early intervention and an application for NDIS funding. It is recorded that the paediatrician raised concerns about the child’s low weight and recommended that as the mother had [a disease] that the child be tested for this disease at the age of 18 months.
99Documents produced in answer to subpoena from a community services agency reported on the engagement of the maternal aunt and her foster grandchild in FFT. The records appear to indicate that the foster grandchild had not participated in a full session of counselling but rather would speak with a worker for a few minutes on some occasions but not on other occasions. The records indicate serious concerns about this child displaying aggression and violence in the home which in the view of the counsellor is consistent with coercive controlling violence notwithstanding this child’s age. This includes smashing or breaking objects in anger which has resulted in the maternal aunt incurring debts in relation to his destruction of property, standing over the maternal aunt, threatening to stab her with a knife and repeatedly engaging in severe verbal abuse. The records also indicate that the maternal aunt has disclosed on several occasions that she is fearful of this child, but has said that she will not contact police because she does not want this child to get in trouble with the law.
100The child court expert reports that the FFT records indicate that it was assessed that the maternal aunt’s foster grandchild lacks the capacity to regulate his affect and displays an inability to wait for a reasonable period for assistance from others, particularly the maternal aunt, such as when he wants food or cigarettes. The notes describe this child as being very controlling in the household and in relation to the power dynamics that the maternal aunt often feels like she is the child and the child the adult. The counsellor raised concerns that this child is perpetrating economic abuse as the maternal aunt had given him up to $700 per fortnight to fund his purchases of clothing, food for him and his friends, cigarettes and cannabis. A notation in the records on 22 November 2021 stated this leaves the maternal aunt and child with nothing to eat as well as indicating the counsellor’s general concerns for the maternal aunt and child’s physical and psychological safety. The notes indicate the counsellor’s views were that at the time the maternal aunt’s living arrangements were “a completely volatile and abusive situation”.
101Further records produced on subpoena from the same service indicate that the maternal aunt remains fearful of her foster grandchild’s grandfather with whom she previously had a relationship and to whom she still lends money and provides groceries to placate him which may further stretch resources for her and the child. Other family members have also been seen to attend upon the home which appeared intimidating for the maternal aunt who disclosed that a particular family member also requests food and money at times.
102The records from the same agency identify that the maternal aunt has a tendency to allow her foster grandchild to “do what he wants to keep the peace” and when this child escalates she displays a reactive parenting style which escalates rather than de-escalates this child’s aggression. Records also identify that the maternal aunt provides her foster grandchild with too much information which overwhelms him and that a family member had suggested to this child that this child would be responsible if the child is placed into the interveners’ care which has increased the foster grandchild’s dysregulation and aggression.
103The court child expert also records that the notes of the agency providing FFT appear to indicate that notwithstanding the serious and entrenched difficulties in the family dynamics the maternal aunt is making progress in implementing strategies suggested by the counsellor and the counsellor observed some positive interactions between the maternal aunt and her foster grandchild.
104Records produced on subpoena from the DCJ note that over the years the maternal aunt’s foster grandchild has been diagnosed with two mental health conditions and that he has a past history of significant emotional trauma, separation anxiety and attachment disruption.
105The court child expert records that it is acknowledged in the records of DCJ that the maternal aunt’s foster grandchild refuses to take his prescribed medication and that his paediatrician has now declined to see him as a patient as he has missed so many appointments. The records also appeared to the court child expert to indicate that at a collaborative planning meeting on 14 December 2021 there was acknowledgment that this child is displaying a “classic presentation” of a domestic violence perpetrator in his behaviour towards the maternal aunt. The records make reference to this child in anger damaging property at the maternal aunt’s home and that the maternal aunt supplies cannabis to her foster grandchild who has a dependency on the substance and that she does so in an effort to manage risk by avoiding this child purchasing cannabis from potentially dangerous sources.
106The DCJ records appeared to the court child expert to indicate that the maternal aunt’s foster grandchild’s school attendance in 2022 had improved after this child barely attending at all over the previous 12 to 18 months but that he does not necessarily attend classes and also leaves school by lunchtime. DCJ considered that the goals of the FFT could only be “modest” due to the “complexity” of this child’s psychological and behavioural difficulties.
107Overall, the records produced on subpoena from the maternal aunt’s foster grandchild’s high school indicate he has had longstanding problems with school attendance and poor behaviour. Records obtained from police indicate that this child has been a person of interest in relation to various incidents.
108The court child expert noted that other records from DCJ indicate that the maternal aunt has expressed difficulty coping with her foster grandchild’s behaviour but does ask for and is open to receiving help including self-referring to parenting programs. However, the records indicate that the maternal aunt had only completed one session of one program. Other records indicate that DCJ had provided funding for the maternal aunt to remove clutter from her home and that carpets were to be replaced by Housing NSW.
109Other records produced on subpoena examined by the court child expert included police records which indicate that in [mid] 2021 when the child was spending time with his parents at the maternal aunt’s home, an unidentified person attended upon the property and got into a fight with the father which resulted in the father being injured. It appears the child was present when the fight broke out although it was reported that he was promptly taken inside by the maternal aunt.
110The court child expert records her own observations of the child’s presentation when he was made available by the maternal aunt to be seen with the interveners and their family. She records that when the child was handed over by the maternal aunt the child’s head gave off a strong unpleasant odour and he smelt of cigarette smoke. When the child’s socks and shoes were removed, his feet were seen to be caked with dirt and there was dirt under most of his toenails.
111Under the section headed “Evaluation” in the update Family Report, the court child expert first recorded that the evaluation and recommendations in the Family Report remained current. Of significance, the court child expert then wrote the following:
Whilst acknowledging that the information obtained under subpoena is yet to be tested by the Court serious concerns arose regarding the content contained in the records which would suggest that [the child]’s physical safety, mental health, development and general well-being are at risk in [the maternal aunt]’s care. It is noted that these serious concerns are identified by multiple agencies involved with the family which appears to support the claims of [the interveners] that [the maternal aunt]’s care of [the child] is significantly compromised.
112Although the child was not formally observed with the maternal aunt, it was noted by the court child expert that he was clearly pleased to see her upon his return to her care and showed the most affection to her of any of the adults during the assessment. Given this, and as the maternal aunt has always been the child’s primary carer, it was assessed that she remains his primary attachment figure. On observation, the child appeared comfortable with the interveners and his siblings which the court child expert observed would be consistent with the increase of the frequency and length of time he spends with them. The interveners impressed the court child expert when assessed for the purposes of the Family Report and the update Family Report as being attentive carers and she opined that the quality of their parenting would likely support an increase in the child’s comfortability in their care over time.
113The court child expert made further extensive referral to the notion of “good enough” parenting that she had referred to in the Family Report, reiterating that this concept refers to “the minimum levels of care required to be provided to a child in a routine and consistent manner over time to allow the child to develop into a functioning adult”. The court child expert explained that this includes a child’s physical care needs, developmental and educational needs, emotional and psychological needs and social needs. After providing significant detail concerning each of these domains, the court child expert concluded in summary the following:
Based on the presentation of the parties, [the child]’s presentation, the admissions made by [the maternal aunt] and the information obtained under subpoena serious concerns are held that the quality of the care provided by [the maternal aunt] to [the child] at this time is not consistent with good enough parenting. [The child]’s physical presentation at the observation gives cause for concern that [the maternal aunt] may not be bathing [the child] as regularly as she claims. If this is the case this may be contributing to [the child]’s ongoing problems with nappy rash. This may also negatively impact on opportunities for socialisation and may lead to him being ostracised by his peers. An unkempt appearance can also be an indicator of ongoing general neglect.
114In the context of raising concerns about the maternal aunt not meeting the standard of “good enough” parenting, the court child expert devoted significant attention to the presence of the maternal aunt’s foster grandchild, that child’s behaviour and the likely impact upon the child. The court child expert opined that it is “of extreme concern that it appears his FFT counsellor and DCJ case worker have formed the view that [the maternal aunt’s foster grandchild]’s behaviour in the household now constitutes coercive controlling family violence and it appears likely that this poses an unacceptable risk of harm to the child”.
115The court child expert sets out the details of the reported behaviour that the maternal aunt’s foster grandchild has engaged in and to which it is likely the child has been exposed and opines that “children who are exposed to coercive controlling family violence (even if it comes from a sibling-like figure rather than an adult) can experience ongoing anxiety and depression that negatively impacts their cognitive development, ability to regulate their own emotions, disturb their eating and sleeping patterns and negatively impact their feelings of safety and self-esteem”. The court child expert opined that the foster grandchild’s behaviour may be a significant contributing factor to some of the child’s reported difficulties. She also opines that the child’s mental health and wellbeing would be impacted by any deterioration in the maternal aunt’s care of him due to her own feelings of anxiety and helplessness in the face of her foster grandchild’s behaviour towards her.
116The court child expert also opines that the foster grandchild’s family violence has extended to economic abuse, left the maternal aunt with mounting debt and lack of resources to provide for the child’s basic needs. She opined that it would be “extremely concerning” if this was a contributing factor to the child being underweight and would indicate an inability on the maternal aunt’s part to balance the needs of both children and prioritise the child as the most vulnerable member of the household.
117A further area described as “of serious concern” particularly given the child’s young age is the foster grandchild’s cannabis use and the fact that the maternal aunt pays for and organises the purchase of it which the court child expert assesses as a poor parenting choice on the maternal aunt’s part as it provides very poor role modelling for this child.
118In general, the court child expert identified concerns that the maternal aunt does not have the capacity to implement appropriate boundaries with her foster grandchild and it appears that this has come to the point where she has lost all parental control over him which the court child expert considers is detrimental for the foster grandchild, the child and the maternal aunt.
119While the court child expert opines that it is positive that the maternal aunt seems to be engaging with the strategies advised in FFT, she notes that DCJ and the service provider expect only modest outcomes given the severity of the foster grandchild’s behaviour and opines “it may be the case that even with these changes this may be insufficient to be protective of [the child]”.
120Returning to the issue of the confirmation by the paediatrician that the child is at risk of global developmental delay, the court child expert opines that this places the child at an even greater risk of poor development outcomes from the risks posed by the behaviour of the maternal aunt’s foster grandchild and any neglect on the part of the maternal aunt. The court child expert identifies that it appears the child will likely require ongoing early intervention which raises the possibility of whether the maternal aunt is capable of accurately identifying the child’s needs, seeking appropriate assessment in a timely manner and providing follow up.
121In terms of a recommendation for final parenting orders, the court child expert opines that while records obtained under subpoena are yet to be tested, the information contained in those documents suggest such serious risks for the child that this coupled with admissions made by the maternal aunt, the apparent minimisation by the maternal aunt of her foster grandchild’s behaviour and the child’s physical appearance at observation strongly suggest to the court child expert that the maternal aunt is “unwilling or unable to provide adequate care to [the child] at this time”. The court child expert strongly recommends that the child be placed into the interveners’ primary care and that they share parental responsibility between them. While acknowledging that a removal of the child from the maternal aunt’s primary care will likely cause attachment disruption that may be experienced by the child as traumatic, the court child expert reports that interveners impressed as likely to be able to provide the child with a calm, safe, nurturing care arrangement that meets his needs. The court child expert also assesses that the benefits to the child of safe, responsive and predictable caregiving outweigh the risks associate with the attachment disruption he would likely experience.
122The court child expert opined that as the child has an attachment to the maternal aunt he would likely benefit from regular contact with her as long as this contact is safe. She recommends that so long as the foster grandchild and the mother and/or the father are not present that the child’s time with the maternal aunt may not require supervision but that it should occur away from the maternal aunt’s home and should not include overnights.
123Of great significance to this application, the court child expert recommends that given the seriousness of concerns raised from the documents produced on subpoena and the child’s vulnerability due to his young age and special needs, the matter should be expedited. For the same reasons, the court child expert strongly recommends that the Court change the child’s residence to the interveners’ home until final determination of the dispute.
As explained, just prior to the release of the update family report, the interveners’ concerns about the maternal aunt’s care of the child and risks present in her home were so great that they sought a variation in the interim arrangements previously in place for the child and following interim hearing their application was granted. As a result, as at final hearing the child was living with the interveners and was to be spending time with the maternal aunt, though this had not been occurring in accordance with the orders.
Prior to cross-examination, the court child expert had read the additional affidavit of one of the interveners in relation to events following 10 June 2022 when the child had moved to live with the interveners. Accordingly, the court child expert was aware of the nature of the child’s time with the maternal aunt after the child moved to live with the interveners. The court child expert also gave her oral evidence after the maternal aunt’s cross-examination had begun but not completed as the maternal aunt had not returned to the courtroom following the lunch adjournment.
By the time the court child expert was cross-examined in the proceedings the only matter of dispute between the participating parties to be determined related to the child’s time with the maternal aunt. The focus of cross-examination was thus upon the advantages and disadvantages of the respective proposals of the maternal aunt and interveners.
When asked about her views concerning events after the interim orders were made, the court child expert said that it gave her cause for concern that the maternal aunt may not be regularly taking up time with the child and that the child’s attachment to her will be lost. The court child expert also opined:
… if her time with him is intermittent and spaced out quite a bit because of his age, at only two years […], that time with him particularly if it’s unsupervised, would start to become as if it’s time with a stranger because he’ll lose his memory of her.
When asked how long it might take for the child to lose his attachment to the maternal aunt the court child expert opined:
… It’s difficult to say, but a lot of that is based on the child’s memory capacity, and I’m aware that he has been diagnosed with global developmental delay, so it might be quicker than for a neurotypical child… I think, you know, within six months that might occur.
The court child expert was then asked about the impact upon the child if he were to lose his attachment to or memory of the maternal aunt and that the child’s time with the maternal aunt were then to recommence and continue on a fortnightly basis. In the course of her answer to this question the court child expert questioned the basis upon which the child’s time with the maternal aunt would be re-introduced after the child had lost his attachment to or memory of the maternal aunt. She raised the importance of the Court putting in place a regime that is of benefit to the child. So far as an arrangement of regular time with the maternal aunt is concerned, the court child expert said “if [the maternal aunt]’s not going to take up the time regularly [the court child expert] would question the benefit to the child”.
In the opinion of the expert, the cessation of the child’s time with the maternal aunt may be distressing for the maternal aunt but the distress for the child would be happening through the child not seeing the maternal aunt, who was the child’s primary attachment figure. The court child expert explained that after 12 months that would no longer be the case and the distress to the child would arise from separating from the interveners to spend time with the maternal aunt who, from the child’s perspective, will be “a stranger”.
The court child expert confirmed that in her opinion a regime for the child to spend time with maternal aunt every two weeks will only benefit the child if that time in fact occurs every two weeks and the child will not receive a benefit if there are long breaks between spending regular time with the maternal aunt as it will cause too much distress. The witness agreed to the proposition “so the consistency, if it’s going to be that regular, is very important?”
The court child expert was asked by the ICL for her opinion about the alternate regimes for the child’s time with the maternal aunt being four hours each alternate Sunday (as proposed by the maternal aunt) or, each alternate month for three hours (as proposed by the interveners). When it was clarified by the court child expert that her opinion should take into account the pattern of the child’s time with the maternal aunt over the last few months, the court child expert opined that if there was a need for the child to spend time with the maternal aunt “for some form of identity purpose” then the interveners’ proposal “might be useful to provide that” adding that the child needed the support through supervision of this time.
The court child expert further explained that the child will have formed an attachment with the interveners and it would be ideal for them to supervise the time. The court child expert felt that it would not be suitable for the supervised time to occur at a contact service as the child “is still with strangers” and that if a contact service was to be used it may be more useful to the child to delay that until he is able to separate better from attachment figures and make some sense of why he is spending time with the maternal aunt. The court child expert opined that the delay she had in mind would be from the age of four or five.
The court child expert when asked considered that the orders the participating parties had agreed to in relation to the child’s time with his parents (that it be as agreed and under supervision as agreed between the parents and the interveners and failing agreement as determined by the interveners) is appropriate. She also considered that the interveners, given their commitment to the child’s brothers who they had adopted and her understanding of their engagement, would use that level of power and authority effectively and in a child-focused way.
The court child expert agreed when asked that a similar approach to that taken in orders for the child’s time with his parents could be taken with respect to the child’s time with the maternal aunt given the pattern of the maternal aunt taking up that time over the past three months. The court child expert considered that this arrangement would be more appropriate than specifying the child’s time with the maternal aunt in the orders. In the witness’s opinion such an arrangement is less likely to introduce conflict between the interveners and the maternal aunt which may arise if there were further frequent cancellations. The court child expert said the other reason that such an arrangement is more suitable is because as the child gets older he may start to feel he is not important to the maternal aunt if there was an expectation that time would occur and it were to be frequently cancelled.
In light of the events over the few months prior to the final hearing the court child expert said she did have concerns about the order made at the commencement of the final hearing with the consent of the parties for the child to have unsupervised time with the maternal aunt on Boxing Day and in the month of the child’s birthday. The court child expert agreed that as she recommended a different regime of orders to those proposed by either of the participating parties that it would be anomalous to have orders for the child’s time with the maternal aunt occurring as specified. She agreed that there should be a cohesion and consistency with any approach taken to a regime of orders that benefit the child.
The court child expert was appraised of some of the evidence given by the maternal aunt under cross-examination such as that she believed her foster grandchild had been used as a scapegoat in the proceedings and did not pose a risk to the child as he had not harmed the child himself. The court child expert agreed that the maternal aunt’s responses showed a lack of insight into the real effect of the foster grandchild’s behaviour and potential effect on the child within the household. The court child expert said that she was concerned that at this point in the proceedings the maternal aunt still maintains that perspective. The maternal aunt’s position indicated to the court child expert that the maternal aunt “doesn’t understand the nature of violence and its impact on child development and neurological development” noting that the maternal aunt appears to be saying that as the foster grandchild would not intentionally harm the child there is no harm to the child. The court child expert explained that there are instances where children have sustained serious physical harm through unintentional acts and in addition, hearing and witnessing violent incidents in the home does cause harm to children and the younger the child, the greater the harm.
When asked her opinion about suitable orders if the Court accepts the interveners’ evidence that the maternal aunt has not followed court orders in respect of restraining contact between members of the maternal family and the child, the court child expert said that “nothing other than supervised time could be ordered”.
56When cross-examined by the interveners’ lawyer, the court child expert reiterated that if there was a way for the child to spend time with the maternal aunt “in a safe and nurturing way” she would still support that time occurring fortnightly. However, the court child expert maintained that it was appropriate to take into account the events of the preceding months. She then confirmed that it would only be in the child’s best interests for orders to be made as sought by the maternal aunt if that were to occur every fortnight and that it could be safe, nurturing and predictable.
The court child expert also confirmed that her clear recommendation of the various alternate regimes under consideration is that the child’s time with the maternal aunt not be specified but negotiated between the interveners and the maternal aunt, that during the period where the child is quite young it should continue to be supervised and that as the child becomes older the need for ongoing supervision be a matter that the interveners have the capacity to determine for themselves.
The court child expert is tertiary-qualified and has over 13 years’ experience as a family consultant in both the Family Court and Federal Circuit Court of Australia. Prior to her work as a family consultant, the court child expert worked as a coordinator of counselling, child consultant, clinical supervisor and couple and family therapist with N Services. She also held a teaching role at the P University in the faculty of social work. Throughout her career, the court child expert has undertaken professional training including in relation to family violence and has also chaired and co-written a post-separation parenting group work program. At the hearing, the court child expert was not challenged about any of the facts upon which she based her opinions, remained largely unshaken in relation to them and was able to expand upon and give examples from the evidence to justify those opinions. For the foregoing reasons, I accept her opinions and recommendations and attach significant weight to them.
After the court child expert was cross-examined, the proceedings were adjourned to the second day that had been allocated for hearing to allow the maternal aunt an opportunity to re-engage in the hearing. The ICL did not require either of the interveners for cross-examination.
When the hearing resumed two days later, the maternal aunt was not present and had not made any contact with her legal representatives. Each of the legal representatives of the participating parties and ICL were then directed to provide written submissions on behalf of the participating parties and judgment reserved.
THE LAW & DISCUSSION
The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is to make such parenting orders that are considered proper (s 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.
Best Interests Considerations
Section 60CC sets out the primary considerations and additional considerations to be considered by a court in determining what is in a child's best interests.
In this matter, when applying the primary and additional considerations to the proposals of the participating parties the Court must not treat those considerations which specifically relate to parents as if they equally apply to a non-parent party, in this case the maternal aunt and interveners. In Donnell & Dovey,[3] the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under s 60CC is also relevant to a non-parent, this should be addressed under s 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the participating parties in these proceedings I will do so by application of s 60CC(3)(m).
[3] (2010) FLC 93-428.
The primary considerations (under s 60CC(2)) are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The phrase “meaningful relationship” is not defined in the Act but has been interpreted as meaning a relationship which is “significant”, “important” or “of consequence”[4].
[4] McCall & Clark (2009) FLC 93-405 approving Brown J in Mazorski & Albright (2007) 37 Fam LR 518.
Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).
The orders made at the commencement of the final hearing relate to the parents’ involvement in the child’s life. Those orders provide for the child to have some contact with each of his parents as agreed between the parents and the interveners who hold sole parental responsibility for the child and failing agreement as determined by the interveners.
Each of the parents can be taken by their non-engagement in these proceedings to accept that these orders (which foster some limited relationship between the child and each of them) will provide for the child having the benefit of their meaningful involvement in his life to the maximum extent consistent with his best interests. The parents effectively relinquished the child into the care of the maternal aunt at birth, ceased participating in these proceedings a long time ago and do not seek any orders themselves to foster the child’s meaningful relationship with them.
The second of the primary considerations, being the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence looms large in these proceedings.
In the interim judgment I said the following with respect to this consideration:
151Although there are limits on making findings at this interim stage in the proceedings there is a long line of authority to the effect that I am required to assess the competing contentions of the parties especially in relation to matters of risk. In assessing the risks of harm arising from neglect and exposure to family violence posed by the maternal aunt and the nature of the harm, I attach significant weight to the assessment of the court child expert.
152Although the court child expert’s evidence is yet to be tested, it is based not only on information given by the interveners (consistent with their affidavit) but to a significant extent on the court child expert’s own observations of the child’s physical state which is highly unlikely to change under cross-examination. These observations which are consistent with the evidence of the interveners, are consistent with the child having experienced neglect and are unlikely to be explained by any evidence to the contrary.
153Further, the court child expert and interveners’ legal representative in submissions relied to a great extent on the records produced by a wide range of agencies and services engaged with the maternal aunt and her foster grandchild which provide significant corroboration for the contentions of the risk of harm in the maternal aunt’s care. I consider that these records are reliable having regard to the purpose for which they were created and that their content will not change at final hearing given that the makers of those records will not be cross-examined. I also note that even those service providers engaged with the maternal aunt, who it may be assumed have established some sort of therapeutic alliance with her and her foster grandchild raise significant concerns about potential risks associated with the maternal aunt’s care and risks in her household.
154The nature of both the risk and the harm itself arising from these two matters (neglect and exposure to family violence) are set out in great detail in the Family Report and update Family Report. In particular, the court child expert provides an explanation of the expression “good enough” parenting which in effect provides a benchmark for parenting that does not result in harm to a child as well as an expert opinion about potential harms a child may experience across multiple domains if parenting of this standard is not provided by a primary caregiver. I attach particular weight to the court child expert’s opinion in this regard and especially in the somewhat unusual recommendation that the Court immediately make orders for the child to live with the interveners pending final hearing.
The evidence in relation to the risk of harm present for the child in the care of the maternal aunt arising from abuse, neglect and family violence is set out in [79] to [123] of the interim judgment and extracted under the heading of update family report at [40] of these Reasons. Although the maternal aunt was not present at the final hearing when the court child expert was cross-examined, she was represented by a solicitor and experienced counsel who indicated that he held instructions to appear for the maternal aunt. None of the underlying facts upon which the court child expert based her opinion or any aspect of the maternal aunt’s presentation were challenged under cross-examination.
Given that the maternal aunt also consented to orders that the child live with the interveners and that they hold parental responsibility for him which is a departure from the orders she originally sought, it can be taken that the maternal aunt accepted the evaluation, conclusion and opinion expressed by the court child expert that such an arrangement was in the child’s best interests.
Despite the recommendations of the court child expert in her update family report about the magnitude of the risks in the maternal aunt’s household which were so great as to justify the court child expert recommending an immediate change to the child’s parenting arrangements (which following assessment by the court through the interim application did occur), the court child expert at that stage continued to recommend that the child’s time with the maternal aunt need not be supervised.
As previously indicated, it was also the proposal of the interveners and the ICL at the commencement of the final hearing that the child’s time with the maternal aunt need not be supervised but the maternal aunt’s evidence about events following the interim change in the child’s arrangements and the court child expert’s opinion as to those matters in terms of risk to the child caused the ICL and interveners to change their position.
So far as the need to protect the child from the harm as contemplated by this sub-section is concerned, the court child expert expressed particular concern about the maternal aunt’s poor understanding of the harms occasioned to children through exposure to family violence and poor understanding of the behaviour that constitutes family violence.
Having regard to the risks of harm to the child posed by the maternal aunt in relation to neglect and exposure to family violence and the court child expert’s evidence in particular, I accept the interveners’ submission that the child can be protected from such harm only by supervised and limited time with the maternal aunt as determined by the interveners.
I also accept the submission of the interveners that having regard to the wide range of documents produced on subpoena from the various service providers involved with the child (and set out in detail when having regard to the court child expert’s evidence in her update report in particular), the child did experience harm through neglect and exposure to family violence while he lived with the maternal aunt and her foster grandchild and it is possible that if the child spends regular fortnightly unsupervised time with the maternal aunt for up to four hours he may be exposed to further harm of this nature.
I agree with the intervener’s contention that despite protective orders in place, the support of various agencies and her own expressed intentions, the maternal aunt has not been able to protect the child from harm and has shown minimal insight into the impact that this has had on the child. She has not fully complied with previous interim orders made on 5 February 2021 to complete parenting programs and is no longer engaged with a family support service and has not, on her own evidence, always complied with restraints in place to protect the child from those who pose a risk to the child, such as the parents.
The maternal aunt’s current position, that many of the “dramas” in her life have since abated and thus, as I understand it, any risk that she may be considered to pose to the child has also now abated, is at odds with her evidence about events in her home since the most recent interim orders were made. In my view, little has changed and as she is no longer engaged with a family support service there are arguably even less supports in place in her home.
Having regard to all of the foregoing and the appropriate test as confirmed by the Full Court in Isles & Nelissen,[5] I am of the view that the child will be placed at an unacceptable risk of harm arising from neglect or family violence if he were to spend any unsupervised time with the maternal aunt.
[5] [2022] FedCFamC1A 97.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
The child is too young to express any views about his time with the maternal aunt.
Although it had been identified by the court child expert across each of her assessments that the child’s primary attachment relationship was with his maternal aunt, in accordance with the court child expert’s oral evidence, by the time this judgment is delivered it is likely that the child’s relationship with the maternal aunt has been significantly attenuated. The court child expert opines that within a short period of time (about one to six months from the present) the child will have little memory of the maternal aunt and his primary attachment will be to the interveners. The court child expert’s unchallenged evidence is that for a neurotypical child an attachment relationship may take up to 12 months to be lost if the child has little or no contact with the relevant adult. She considered a relevant factor in this regard is that the child has global developmental delay with the result that his attachment relationship with the maternal aunt may be lost within a shorter period of time.
The court child expert opined that it may be useful (which I take to mean psychologically and emotionally helpful) for the child to have a relationship with the maternal aunt for “identity purposes” as such a relationship may help him understand the maternal aunt as the person who raised him for the first two years of his life. The court child expert considered that the orders now promoted by the ICL and interveners would achieve this purpose.
The court child expert also identified that an advantage of the child living with the interveners is that it provides the child with an opportunity to grow up with his brothers given that she opined that sibling relationships are particularly important and that children usually benefit from having the opportunity to grow up in the same household as their siblings especially where the siblings are in a non-kinship foster care placement where they do not have the opportunity to be reared by a member of their biological family, as this assists in their identity development.
The orders already made at the commencement of the hearing for the child to live with the interveners are consistent with the child’s best interests having regard to the nature of his relationships.
In this dispute, which is of limited ambit, the extent to which each of the parents have failed to take the opportunity to participate in long-term decision-making regarding the child and to spend time and/or communicate with the child is particularly salient.
As noted, throughout the entirety of the proceedings, the child’s parents have abandoned any opportunity to participate in long-term decision-making regarding the child and appeared to attempt through the Application for Consent Orders to be able to spend time and/or communicate with the child on terms that suited them.
The biggest change in the child’s circumstances was brought about in June 2022 with the making of interim orders that saw the child move from the care of his maternal aunt to the interveners. As reiterated numerous times in these Reasons, at that stage the child’s primary attachment was to the maternal aunt who had been his primary caregiver throughout his life, though the attachments to the interveners and the child’s brothers were developing. Although it was recognised at that time that the child would experience some trauma from the separation from the maternal aunt, the maternal aunt’s failure to provide “good enough” parenting and the benefits to be gained by the likely better quality parenting provided by the interveners outweighed the risks of harm associated with this experience of trauma.
When the child moved to live with the interveners it was the firm view of the court child expert (which she adhered to under cross-examination at final hearing) that the child would likely benefit from regular contact with the maternal aunt so long as the contact was safe. As it turned out, the maternal aunt had not prioritised the child’s time with her in the three months prior to final hearing over other events in her life which appeared to have continued to be somewhat overwhelming for her.
As outlined in detail earlier in these Reasons, the maternal aunt’s failure to have taken up the time with the child under the interim orders has been significant for the child for a number of reasons.
The most significant effect from the child’s perspective, and which is relevant to the matter under consideration, is that the nature of the child’s attachment relationships is likely to have changed. As at the date of delivery of these Reasons it is likely that the child has little memory of the maternal aunt and is likely soon to experience her as a stranger. If orders are made as sought by the maternal aunt I consider that it is likely the regime of time will change as in my view there is a high likelihood she will continue to cancel or fail to confirm the child’s time with her. According to her proposal, each time this occurs on three consecutive occasions the child’s time with her with will decrease to once a month for a period of three months. According to the expert’s evidence such changes will be experienced by child as confusing and distressing.
The orders agreed to by the participating parties at the commencement of the final hearing which will see the child continue to live with the interveners and the interveners have parental responsibility for him on a final basis, will not bring about any future change. The child has been living in a sibling group of five boys, sharing a close relationship with each of his brothers for almost five months and I accept the interveners’ evidence that he has integrated into their family.
If orders are made in relation to the child’s time with the maternal aunt as proposed by the interveners, there will also be little change in his circumstances. It has been some months since the child has experienced any contact with the maternal aunt. I consider it highly likely that the interveners will arrange for the child to spend some time with the maternal aunt under their supervision in the future as they have done this in the past with the mother of the child’s brothers who they have adopted. Although such contact can involve considerable practical effort on the part of the interveners, they have previously committed to this with the parents and in my view it is likely they understand the significance of some contact between the child and the maternal aunt “for identity purposes” as explained by the court child expert.
The court child expert did not agree that the child alone spending time once a fortnight with a family member (as proposed by the maternal aunt) would have a detrimental effect upon the child such as disrupting his relationship with his brothers. She opined that although the child and his brothers are “full blood siblings”, it has been the child’s experience to be more like a step-sibling in another house. The court child expert opined that if the child could spend time with the maternal aunt in a safe, nurturing and consistent way she would support such a regime being in the child’s best interests. However, as explained at length in these Reasons, the likely unreliability of the maternal aunt with respect to the child’s time with the result that such time occurred less regularly as intended, would be disruptive and upsetting for the child.
The capacity of the maternal aunt and interveners to provide for the child’s needs is a very weighty matter in these proceedings. I accept the contention of the interveners that the maternal aunt has limited capacity to provide for the child’s emotional and intellectual needs which is evident from her parenting of her foster grandchild. The maternal aunt’s struggles in managing her foster grandchild’s difficult behaviour, violet conduct, illicit drug use, interaction with the police and school attendance, are all set out in the interim judgment and in the extracts from the court child expert’s evidence set out in these Reasons.
At one point in her oral evidence the maternal aunt suggested that all of the “dramas” which were present in her life when she was living at her previous address (many of which appeared to relate to her foster grandchild) had been resolved. She also gave oral evidence that her foster grandchild was no longer using illicit drugs. However, on her own account her foster grandchild is no longer attending school, no longer engaging with any therapists including his paediatrician despite his significant needs, and continues to have interactions with police and adverse interactions with his peers. It is difficult to accept that all of the challenges associated with the foster grandchild and the well-documented shortcomings in the maternal aunt’s parenting capacity have been resolved, especially in the absence of any support services.
In addition, the child has particular needs arising from his diagnosis of global developmental delay and requires early intervention therapies and regular paediatric review. Although the maternal aunt took some steps in this regard, those interventions were not provided consistently and in a timely manner when the child was living with her but now appear to have been appropriately addressed by the interveners.
The foregoing shortcomings in the maternal aunt’s capacity to meet the child’s needs are not as significant in relation to this dispute as would have been the case if she had persisted with her original application for the child to live with her. Her capacity need only be assessed in terms of orders she seeks for the child to spend time with her. However, the maternal aunt’s failure to recognise the risks present in her household especially posed by her foster grandchild, together with the risk that she may not adhere to restraints on the child’s contact with the foster grandchild and the child’s parents raise real concerns about the order that she proposes for regular unsupervised time with the child. An application of this important consideration clearly favours the proposal of the interveners.
In my interim judgment at [168] I said the following in respect of another of the additional circumstances:
One other potentially relevant consideration is that, as noted in the Family Report, it is possible that the child is of [First Nations] descent. The court child expert opines that if the Court was to find that the child is of [First Nations] descent, then remaining living with the maternal aunt would allow him to learn about, be involved with and celebrate his culture more than could be provided by the interveners if the child were to live with them. However, there appears to be limited evidence upon which a finding concerning the child’s [First Nations] descent could be made and information obtained under subpoena from the DCJ appeared to indicate to the court child expert that the child’s siblings are not considered by DCJ to be of [First Nations] descent. The maternal aunt herself also cast doubt on the suggestion that the child is of [First Nations] descent. For this reason, this is not a weighty matter in this application.
Although the observation about the child’s alleged First Nations descent was raised in my interim judgment, the maternal aunt did not adduce any further evidence at final hearing in relation to this matter. Accordingly, it was not pressed by her counsel as an issue in the proceedings.
The following observations made in my interim judgment with respect to the attitude to the child and responsibilities of parenthood demonstrated by each parent (which can be applied to the participating parties by reference to s 60CC(3)(m) as a relevant circumstance), remain apposite to the final orders under consideration:
166Another matter in this application which was acknowledged in the course of the interim hearing relates to the attitude to the child and the responsibilities of parenthood of the maternal aunt and interveners respectively. Although this child has had a difficult life to date including complex circumstances which present multiple domains of risk, the child is fortunate in the sense that he has a number of adults in his life who undoubtedly have his best interests at heart and are available to do their best to care for him.
167Regrettably, little weight can be attached to the maternal aunt’s best intentions in this regard as it would appear on evidence that I consider reliable and unlikely to change, that she has been unable to provide the child with “good enough” parenting to ensure that he is kept safe from the harms present in her household. It is also in my view on the available evidence unlikely that she has the capacity to develop the necessary skills to assist the child to be kept safe and to ensure that all of his needs are met.
Further, the following extracts from the interim judgment with respect to family violence remain relevant and unchanged in this application for final orders:
170As is apparent when setting out the evidence in relation to the risks present in the maternal aunt’s household and the opinion of the court child expert in the update Family Report, the issue of family violence looms large in these proceedings. It is also interconnected with the issue of the maternal aunt’s capacity to meet the child’s needs.
171As noted, the court child expert’s opinion that the maternal aunt’s foster grandchild is a perpetrator of coercive and controlling violence rests upon matters reported by the maternal aunt and the observations of service providers including those delivering FFT and caseworkers from DCJ. I consider the opinions of those service providers and the court child expert as particularly weighty in this application. I consider it highly likely that a Court at final hearing will be satisfied that the maternal aunt’s foster grandchild is the perpetrator of coercive and controlling violence to which the child has been exposed in the maternal aunt’s household and that there is a real risk that the child will continue to be so exposed so long as he lives with the maternal aunt.
The oral evidence of the maternal aunt is that she not only denies that her foster grandchild is a perpetrator of family violence but that he has been used as a ‘scapegoat’ in the proceedings. In light of this evidence, together with the opinion of the court child expert about the maternal aunt’s lack of insight into impacts of family violence, I remain of the view that the maternal aunt is unlikely to protect the child adequately from the harms arising from exposure to family violence in her household. In short, I do not have confidence that she will ensure that the child is not exposed to her foster grandchild despite any order that may be made in this regard.
Any other relevant fact or circumstance
As explained earlier, the previous considerations that apply only to parents when determining a child’s best interests may be considered as if they apply to a non-parent party as a relevant fact or circumstance. In this way, I will consider the first of the primary considerations, being the benefit to the child in having a meaningful relationship with both of his parents as if the reference to ‘parents’ includes a reference to the participating parties in this dispute.
The maternal aunt can be taken from her agreement to orders that the interveners have sole parental responsibility for the child and that he live with them, to accept that the child receives a benefit from having a meaningful relationship with the interveners.
This sub-section (s 60CC(2)(a)) has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with a parent (or as applied to this dispute, with the maternal aunt). Rather, the relevant line of authority[6] is clear that the focus of the inquiry is upon whether the child does receive a benefit from having a meaningful relationship with a parent, or in this case the maternal aunt.
[6] See in particular, McCall & Clark (supra) [122].
The orders proposed by the maternal aunt, if made, would foster the child having a meaningful relationship with her. It had been the consistent opinion of the court child expert that the maternal aunt was the child’s primary attachment figure and the expert remained of the view at the final hearing that if it were possible for the child to spend time with the maternal aunt “in a safe and nurturing way” she would still support that time occurring fortnightly. However, the court child expert considered that the events of the preceding months after the child had moved to live with the interveners and was to be spending regular time with the maternal aunt were very significant.
In summary, the court child expert was very concerned about the maternal aunt’s lack of commitment to spending time with the child especially as the child’s primary attachment to her would have remained for at least some months after he moved to live with the interveners and it would have been distressing from the child’s perspective to have suddenly completely lost the maternal aunt from his life after she ceased taking up the opportunity for the child to spend regular time with her as provided under the interim orders. A re-commencement of the child’s time with the maternal aunt now, after he has not spent time with her for almost five months, would have the effect of requiring the child to spend regular time with a person more like a stranger and to be regularly separated from the interveners who have now effectively replaced the maternal aunt as the child’s primary attachment figures.
The court child expert is equally concerned about the maternal aunt’s proposal for orders to reduce the child’s time with her, each time she fails on three consecutive occasions to confirm that the child’s time with her is to occur, to four hours once a month for a period of three months and then revert to the previous pattern. It is apparent from the maternal aunt’s answers to questions under cross-examination that she considers that this arrangement will provide an incentive for her to be more committed to the regime for the child’s time with her but she appears to have little understanding of the impact upon the child of this likely regular change in his arrangements. Once again, the court child expert expressed concern about the impact of such potential changes upon the child having regard to the nature of his attachment to the interveners and maternal aunt respectively.
The maternal aunt’s proposal is also for the child’s time with her to be unsupervised. At the commencement of the final hearing the proposal of the interveners, with which the ICL agreed, did not include a requirement that the child’s time with the maternal aunt be supervised and in accordance with this position the interveners had even consented to orders that were made for the child to have unsupervised time with the maternal aunt on Boxing Day and in the month of his birthday.
The position of the interveners and ICL in relation to any need for supervision was also informed by the answers given by the maternal aunt under cross-examination and the opinion of the court child expert. Under cross-examination, the maternal aunt made it clear that she did not accept the opinion expressed by various qualified people, including therapists who had provided services to her and her foster grandchild, and the opinion of the court child expert about the risks posed by the foster grandchild.
The maternal aunt conceded under cross-examination that she was aware of the restraint upon her from bringing the child into contact with the parents (and had consented to such a restraint) but had not contacted police to enforce the restraint on every occasion that the mother had contact with the child.
The maternal aunt also did not agree with the restraint upon the child having contact with her foster grandchild (even though once again she had agreed to an order in these terms), had asked the interveners to consent to her foster grandchild being present when the child spent time with her after interim orders were made, and expressed a desire for the child’s time to occur in her home and if possible with her foster grandchild present. Having regard to the evidence of therapists working in the home about the coercive capacity and actions of the maternal aunt’s foster grandchild (which are recorded in the update family report and extracted in the interim judgment and set out in these Reasons) and the evidence of the maternal aunt being coerced by the foster grandchild’s actions (such as by purchasing cannabis for him) I consider that there is a real risk the maternal aunt will not comply with the restraints if the child is to have unsupervised time with her.
The court child expert opined that if I am satisfied that the maternal aunt has not followed court orders in this regard (which is the case) then “nothing other than supervised time could be ordered”.
In light of all of the foregoing matters, I am of the view that the child will not receive a benefit from having a meaningful relationship with the maternal aunt through orders she proposes for him to have regular, unsupervised time and regular communication with her. I do not consider it likely that the maternal aunt will actually take up the time with the child under her proposed orders and the risks associated with her regime of orders have been explained at some length.
In the course of the hearing, the court child expert raised another form of relationship between the child and the maternal aunt which in my view may be considered as providing her with a meaningful involvement in the child’s life to the maximum extent consistent with the child’s best interests in accordance with the Objects of Part VII outlined previously. The court child expert described this as contact “for some form of identity purpose” and considered that the interveners’ proposal at the commencement of the final hearing might be useful in this regard. The expert explained that the purpose for the child of spending such time with the maternal is to provide him with an opportunity to make sense of the person he spent the first two years of his life with.
The court child expert was subsequently asked about her opinion of the appropriateness of the order for the child’s time with his parents, being one which provides for that time to occur as agreed between the interveners and the parents and if such agreement could not be reached as determined by the interveners. Under these orders the interveners are also to determine the need for supervision of such time.
The court child expert then came to the firm view that of the various arrangements under consideration a similar approach to that taken in orders for the child’s time with his parents should also be taken with respect to the child’s time with the maternal aunt. She considered that given the interveners’ commitment to the child’s brothers who they had adopted and her understanding of their engagement, the interveners would use that level of power and authority effectively and in a child-focused way. The court child expert also considered that such an arrangement is most suitable as it is less likely to introduce conflict between the maternal aunt which may occur if the orders set out defined time and the requirement for the maternal aunt to confirm that time.
Given the experience of the few months prior to the final hearing, it seemed likely to the court child expert that in the future the maternal aunt will not confirm consistently that the child’s time with her is to proceed or will cancel that time. Such circumstances, in the view of the court child expert will likely give rise to conflict with the interveners and could also cause the child as he becomes older to feel that he is not important to the maternal aunt.
This final opinion of the court child expert as to orders that best meet the child’s best interests has been incorporated into the final proposal of the ICL which is now adopted by the interveners. I am satisfied that the orders proposed by the ICL and adopted by the interveners will achieve the purpose of giving the child the benefit of having a meaningful relationship with the interveners and the maternal aunt to the extent consistent with his best interests.
As earlier touched upon earlier with respect to the child’s parents, I consider that s 60CC(3)(c) is very significant in this parenting dispute. This matter (the extent to which the participating parties have taken or failed to take the opportunity to participate in long-term decision-making regarding the child and to spend time and/or communicate with the child) is equally significant when applied to the participating parties.
As noted, the child’s parents abandoned the opportunity to participate in long-term decision-making regarding the child and until the interim orders were made in June 2022, the maternal aunt was solely responsible for such decision-making in relation to the child.
The interveners have been diligent in seeking to take the opportunity to participate in long-term decision-making regarding the child and to spend time with and communicate with him for virtually the whole of the child’s life. They sought orders to intervene in the proceedings, to ensure that the child developed a relationship with his brothers and undoubtedly acted in the child’s best interests in seeking orders that they have parental responsibility for him and that he live with them. They also recognised at all times that it is important for the child to maintain his relationship with the maternal aunt and their interim application provided for this to occur.
The evidence indicates that from the time the interveners have been involved in the child’s life they have been conscientious in their responsibilities towards him and child-focused. This has involved extensive travel to ensure that the child and his brothers spent time together and ensuring that the video contact was interesting and child-focused.
As indicated, the maternal aunt’s failure to take the opportunity to spend time with the child is significant as it not only demonstrates a lack of commitment to the child but also a failure to appreciate the impact upon the child of her effectively disappearing from his life when he was primarily attached to her.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
Neither of the child’s parents in these proceedings has exercised parental responsibility for the child throughout his life and neither seeks an order for parental responsibility.
At the commencement of the proceedings the participating parties agreed to an order that the interveners have equal shared parental responsibility for the child. Having regard to all of the best interests considerations I am easily satisfied that such an order is in the best interests of the child.
Other parenting orders
Having regard to all of the evidence and attaching weight to the relevant best interests’ considerations I am equally easily satisfied that the orders made at the commencement of the final hearing with the consent of the participating parties (Exhibit 1) with the one exception to which I will come, are in the best interests of the child.
Having heard the oral evidence of the maternal aunt and court child expert in particular, I am no longer satisfied that the orders which provided for defined unsupervised time with the maternal aunt on Boxing Day and in the month of the child’s birthday are proper or in the child’s best interests and such orders will be discharged as sought by the ICL and the interveners.
So far as orders in relation to the child’s time with the maternal aunt are concerned, I am satisfied, having regard to all of the evidence and in particular that of the court child expert and the maternal aunt’s oral evidence, that it is in the child’s best interests for orders to be made as sought by the ICL and interveners.
For the foregoing reasons, orders are made as set out at the forefront of this judgment.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 8 November 2022
0
2
0