Linnane & Linnane (No 2)

Case [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…

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AGLC
Linnane & Linnane (No 2) [2022] FedCFamC1F 858
Case
[2022] FedCFamC1F 858
Decision Date

CaseChat Overview and Summary

In Linnane & Linnane (No 2), the Family Court of Australia was tasked with determining the best interests of a child who had been in the primary care of his maternal aunt since birth. The child's parents, who were deemed unsuitable due to family violence and drug use, did not participate in the proceedings. The interveners, who had adopted four of the child's siblings, sought sole parental responsibility for the child and for him to live with them. The maternal aunt sought sole parental responsibility for the child and for him to remain in her care. The court child expert recommended that the child be placed with the interveners due to concerns about the maternal aunt's care, including allegations of neglect and exposure to family violence and substance use by the maternal aunt's foster grandchild. The court ultimately decided in favour of the interveners, finding that the maternal aunt was unable to provide "good enough" parenting and that the child's safety and wellbeing were at risk in her care. The court ordered that the child live with the interveners and that they share parental responsibility for him. The court also recommended that the child have supervised contact with the maternal aunt, but not in her home and without the presence of the maternal aunt's foster grandchild or the child's parents.

The case highlights the importance of considering the best interests of the child as the paramount consideration in parenting disputes, and the need to protect children from harm and provide them with a safe and nurturing environment. The court's decision was based on a thorough assessment of the evidence, including the expert opinion of the court child expert and the observations of the child's presentation and interactions with the parties. The court emphasised the need to give greater weight to the need to protect the child from harm than to the benefit of having a meaningful relationship with both parents, and noted that the parents had effectively relinquished the child into the care of the maternal aunt at birth and did not seek any orders to foster a relationship with him. The case also underscores the importance of early intervention and support for children with special needs, and the need for parents and caregivers to provide appropriate boundaries and supervision to prevent exposure to harmful behaviours and substances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 202128At 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.

Evidence

Evidence Before The Court

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 Assessment34First, 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 202142Following 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 Report79On 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.

Decision

Reasons for decision

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. CONCLUSIONParental 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.

Ratio Decidendi

Legal Principle Established

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.