Livvy & Kash
[2023] FedCFamC1F 1014
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash [2023] FedCFamC1F 1014
File number(s): BRC 16626 of 2021 Judgment of: BAUMANN J Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Contested residence – Where in mid-2022 the child’s residence on an interim basis was changed from the mother to the paternal grandmother – Where the mother has failed to spend time with the mother for almost 12 months after the change of residence – Where at trial in November 2023 legal representatives were granted leave to withdraw – Assessment of risk – Interim orders made for the child to remain living with the paternal grandmother and commence spending substantial unsupervised time with the mother pending the final hearing Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 23 November 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Counsel for the First Respondent: Ms A Black Solicitor for the First Respondent: O’Hare Law Counsel for the Second Respondent: Mr C Duplock Solicitor for the Second Respondent: A P Hodgson & Associates Independent Children’s Lawyer: Julie Harrington Solicitor ORDERS
BRC 16626 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LIVVY
Applicant
AND: MS KASH
First Respondent
MR MENZIES
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS:
1.That all current parenting Orders are discharged.
THE COURT ORDERS UNTIL FURTHER ORDER:
2.That the Applicant paternal grandmother and the First Respondent mother have equal shared parental responsibility for major long term decisions for the child, X born 2015.
3.That X shall live with the paternal grandmother.
4.That X shall spend time and communicate with the mother at all times as may be agreed in writing but at least as follows:
(a)From 12noon Saturday, 9 December 2023 to 4.00pm Sunday, 7 January 2024, with the paternal grandmother to transport X to the B Supermarket for changeover with the mother at the commencement of time, and for changeover at conclusion of this time to be at the McDonalds Restaurant, Suburb C;
(b)From 9.00am Friday, 26 January 2024 to 5.00pm Sunday, 28 January 2024;
(c)Commencing Friday, 16 February 2024 at 5.30pm to Sunday, 18 February 2024 at 5.00pm (extending to 5.00pm Monday if the Sunday is a public holiday) and every third weekend thereafter; and
(d)For the first half of the end of term one (1) Queensland school term (Easter holidays) commencing Friday, 29 March 2024;
(e)Commencing term two (2) 2024, from Friday, 19 April 2024 at 5.30pm to Sunday, 21 April 2024 at 5.00pm (extended to 5.00pm Monday if Monday is a public holiday) and every third weekend thereafter;
(f)By telephone or video/facetime each Wednesday and each non-contact Sunday between 6.00pm and 6.30pm when the child is in the care of the paternal grandmother, with the call to be initiated by the mother to the mobile telephone number of the paternal grandmother, with:
(i)the calls to be in private, unrecorded and uninterrupted; and
(ii)the paternal grandmother to ensure her mobile phone is able to receive calls and is charged.
5.That unless otherwise agreed in writing, for the time prescribed in Orders 4(b), 4(c), 4(d) and 4(e), changeovers shall occur at the McDonald’s Restaurant, Suburb C.
6.That X shall spend time and communicate with the father as may be agreed between the father and the paternal grandmother, when not otherwise spending time with the mother.
7.That when X is in the mother’s care, the mother shall facilitate and ensure X communicates with the paternal grandmother by telephone or video/facetime:
(a)on Christmas Day at a time agreed and failing agreement at 11.00am; and
(b)during school holidays, each Wednesday and each Sunday between 6.00pm and 6.30pm, with the mother to initiate the call to the mobile phone of the paternal grandmother and with the calls to be in private, unrecorded and uninterrupted.
8.That save for the prescribed use of medicinal cannabis, the mother shall not use illicit substances when the child is in her care.
9.That the paternal grandmother will give the mother reasonable notice by text message or email of any appointments for X with a health professional, and this Order authorises the mother to attend if she seeks to do so.
10.That this Order is sufficient authority for the mother to attend X’s school and particularly her graduation for the year 2023.
11.That the mother ensure:
(a)she follows the medical advice of X’s treating doctors;
(b)X is provided with her medication; and
(c)she have a supply of any long term medication prescribed to X.
12.That the mother shall attend upon a Psychologist for the purpose of counselling for trauma and anxiety of not less than one (1) occasion per month.
13.That during the time X is with any party, that party shall:
(a)respect the privacy of the other party and not question X about the personal life of the other party;
(b)speak of the other party respectfully;
(c)not discuss matters of an adult nature with X or in X’s presence or hearing and the parties shall use their best endeavours to ensure that no other person discusses matters of an adult nature with X or in X’s presence or hearing; and
(d)not denigrate the other party nor allow any other party to do so in X’s presence or hearing.
Family report
14.That pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), Child Court Expert Ms D be appointed by the Senior Child Court Expert of the Federal Circuit and Family Court of Australia Brisbane Registry, in these proceedings to prepare an updated family report (“report”).
15.That in addition to reporting any matters that the Child Court Expert considers important to the welfare of the X and the factors contained in s 60CC of the Act, the following opinions should be included:
(a)What, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and
(b)What, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the X in the future.
16.That it should be noted X should not be required to express her views in relation to any matter but in the event that she does express views, the Child Court Expert should also canvass and report the views and likely consequences of and for X if the Court did not reach a conclusion which accorded with X’s views.
17.That the parties shall attend appointments with the Child Court Expert on a date and time to be advised by the Child Court Expert, and they shall facilitate the attendance of X for those appointments (unless otherwise advised).
18.That the Federal Circuit and Family Court of Australia be responsible for payment of the cost of preparation of the report.
19.That the Child Court Expert shall have leave to inspect subpoenaed documents produced to the Court.
20.That the Child Court Expert has liberty to list the matter for further directions and for the purpose of that mention, the Child Court Expert and the parties have leave to appear on the telephone. For the purpose of listing the matter, the Child Court Expert has leave to contact the Associate to the presiding Judge.
Release of report
21.That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.
22.That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of X:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
23.That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.
Other
24.That these proceedings be adjourned for Case Management Hearing and further trial directions at 9.30am on 26 March 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
25.That the Independent Children’s Lawyer be at liberty to apply.
26.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 11 June 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 Livvy & Kash has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The need to consider an interim decision in this case has arisen in unusual circumstances. The following background in respect of the proceedings and the circumstances is a useful context. The child the subject of these proceedings is X, born 2015. She is now eight years of age. Her biological parents are the mother, Ms Kash now aged 34 years and the father, Mr Menzies now aged 33 years. Those parties separated in late 2015 in circumstances where I am satisfied, and it is not controversial, that the parents were both using illicit substances and that the father had harmed the child as a baby when affected by using illicit substances. He was ultimately charged and convicted of an offence.
What seems to have occurred from separation until the initial final consent Orders were made on 24 November 2020 for X was that she moved between the paternal grandmother, Ms Livvy (now aged 54 years and the parent of four adult children herself) and the mother. The father’s time with the child has been basically supervised or in the presence of his mother since separation.
I do not need to go through the history of the earlier proceedings commenced by the paternal grandmother in March 2017 resulting in the final Orders made 24 November 2020 save to say that those proceedings involved a number of family reports, psychiatric assessments of the parties by Dr E, but ultimately on the second day of trial and after a period of cross-examination of the mother the parties with the benefit of legal advice and an Independent Children’s Lawyer agreed on Orders that were made by Judge Purdon-Sully. The final Orders provided for the child to live with the mother; for the mother to have sole parental responsibility and for the child to spend time with the paternal grandmother every third weekend from Friday to Sunday and for a period of the Christmas school holidays. The father’s time was to be supervised and there were Orders for drug testing.
Notwithstanding those Orders, the evidence seems to suggest that the paternal grandmother was still holding some residual concerns about the capacity of the mother to care and meet the needs of the child. Even though the evidence was in the early days she was very supportive and the relationship between her and the mother was amicable, that relationship soured partly because, it is said, that the mother failed to comply with Orders of the Court and support the relationship with the paternal grandmother.
The mother’s own household was changing during this period. Her daughter, F, born in 2018 (now five years of age) and her son G, born 2021 (now two years of age), both children being fathered by her current and subsisting partner, Mr H were born.
In December 2021 the paternal grandmother brought an application to the Court. I note that it did not initially seek a change of residence, but clearly time had ceased and a senior judicial register in February 2022 ordered that the paternal grandmother's time recommence. Sadly, the relationship between the mother and the paternal grandmother was, it seems to me at that stage, significantly strained and has not improved. It was not improved by actions such as a contravention application and a recovery order brought by the paternal grandmother; requests by the mother to reduce the time the child spent with the paternal grandmother and other risks which were being examined by the Department of Child Safety, Seniors and Disability Services (“the Department) and police. The matter came before a Senior Judicial Registrar on 21 June 2022. For that interim hearing, with the Senior Judicial Registrar hearing submissions which resulted in Orders made on 12 July 2022 which were significant.
The Order caused a change of residence to the paternal grandmother and for her to have sole parental responsibility; for there to be drug testing and for the mother’s time with X, which meant of course the time that F and G also spent with her sister, was to be supervised. The evidence is clear that the mother did not cope well with that decision. In fact, there were events in late 2022 where she was admitted to J Hospital. They reveal that the mother was suffering a psychosis through excessive use of a drug at the time.
On an interim basis it is impossible to make a clear finding as to her recovery from those sad days post the Order in July 2022, although the mother's evidence now is that she has recovered and is able now to be a primary carer of the child. A sad by-product of the Orders of the Senior Judicial Registrar totally falling at the feet of the mother was that for reasons she seeks to explain in her affidavit (which has not yet been fully tested) between July 2022 when X began living again with the paternal grandmother until approximately August 2023 the mother began spending supervised time the mother spent no time with the child X. That remains a matter of concern to the Court that has not been properly tested. It could but may not evidence the difficulty of the mother coping with things that did not go her way or the inability to separate the needs of the child from her own pain and disappointment.
Nonetheless, the Independent Children’s Lawyer and the Court kept progressing the matter through the system and although the mother brought an application for a change of residence in December 2022 which was dismissed in March 2023, the family report interviews were set before family consultant Ms D which took place on 9 January 2023, resulting report of 16 February 2023. That report has not been the subject of testing. However, as is apparent from the report, the recommendation of Ms D was that the mother's time should not be supervised and that, in fact, the child X should transition into the care of the mother.
On 10 July 2023 the matter was transferred to Division 1. At the time it first came to my attention on 27 July 2023 I was concerned that the mother was spending no time with the child. That remedied shortly after, as I say, in August 2023, but only when the Court made it clear to the mother that she should do everything she could to continue to see the child. To her credit, she facilitated that occurring in difficult practical circumstances considering her other child responsibilities and the work commitments of her partner and major financial supporter for the householder, Mr H.
The matter was listed for trial commencing on 23 November 2023. On the morning of trial, the matter was not ready to proceed because Counsel then retained by the maternal grandmother had to deal with some ethical issues which ultimately caused him to have to withdraw from acting on behalf of the maternal grandmother. The paternal grandmother had between July 2023 when the section 102NA impediment was identified by the Court and the beginning of the trial, had three instructing firms of solicitors. I was concerned that the current arrangements in place arising from the Orders of the Senior Judicial Registrar of July 2022 needed to be reviewed.
The trial positions of the mother and the Independent Children’s Lawyer were for a change of residence. The trial positions of the father and the paternal grandmother were for X to remain living with the paternal grandmother. The paternal grandmother sought an adjournment of the trial which was not opposed and, therefore, granted.
I decided to proceed on an interim basis the following day. I understand this was difficult for the paternal grandmother. There was a lot of material that had to be read, and she had to confront the real prospect that the Court was considering a change of residence, something which distressed her and to which she was strenuously opposed to.
When the matter came back before the Court at approximately 11.00am on 24 November the Court was confronted with a further development. Counsel retained by the Independent Children’s Lawyer, Ms K, had to withdraw because it became clear that even though she could not remember it, there had been a consultation at some earlier stage in the earlier proceedings when she had been retained by the paternal grandmother. Ethically and properly, she withdrew. Luckily, Ms Harrington, a very experienced and competent Independent Children’s Lawyer, took on the role of solicitor advocate and made submissions, as did Ms Black of Counsel for the mother, Mr Duplock of Counsel for the father and the paternal grandmother was the last person to make submissions representing herself.
The competing proposals in respect of the interim determination were identified in documents produced and marked in this case as Exhibit 3. In short, those proposals were as follows.
Independent Children’s Lawyer
The Independent Children’s Lawyer sought a change of residence and for the mother to have sole parental responsibility. It was proposed that the paternal grandmother would spend time with X after school resumes in 2024 every third weekend from Friday to Sunday with changeovers at a contact centre at Suburb M. Time for the child to spend with the paternal grandmother in the end of term four 20203 school holidays was from 6 to 12 January as well as half of the Easter school holidays. In short, the Independent Children’s Lawyer said that the Court should order that the time the child spends with the father should be as agreed between the paternal grandmother and the father.
In the alternative, if the Court sided that the child should live until a trial with the paternal grandmother, then it is proposed that the child spend time with the mother each alternate weekend from Friday to Sunday, changeovers at the Suburb M contact centre or McDonald’s Suburb C and a period of school holiday time up to half of the time commencing with the Christmas school holidays 2023.
The mother
The mother's proposal primarily was for the child moving to her residence from 8 December (the end of the term four Queensland school term); that the father’s time be supervised at the contact centre and that the time the child spend with the paternal grandmother be every three weekends from a Friday to Sunday together with the week from 2 to 9 January 2024. The mother proposed changeover occur at the B Supermarket which is close to where the mother lives. Her proposal also included fairly standard provisions for sharing information and the like at proposed orders 7 to 12. In the alternative, if the child continued to live with the paternal grandmother the mother sought that time occur from Friday to Sunday with her every three weeks and from 2 to 9 January 2024. Her view was that the time that the child spends with the father should remain supervised.
The father
The father supported his mother's proposal primarily that the child live with her. In respect of his own time with the child he was proposing that it move to unsupervised time for three hours with further time as agreed with his mother. If the child was to live with the mother his proposal was that the paternal grandmother would have time every alternate weekend from Friday to Monday, two weeks during the 2023/2024 school holidays and that the mother would facilitate, effectively, the time he spends with X.
Paternal grandmother
The paternal grandmother’s written proposal was that the child live with her and that the father's time with the child be as agreed between her and her son. Interestingly and for the first time the paternal grandmother proposed that the time the child X spends with the mother would be unsupervised each alternate weekend from 9.00am Saturday to 4.00pm Sunday with changeovers at McDonald’s, Suburb M and telephone time each Wednesday. She made a generous offer that she would be prepared to attend to the travel arrangements for the child. She also made proposals for orders about the mother being informed of medical appointments for the child.
When the interim hearing began the Court invited the paternal grandmother to indicate her position if the child lived with the mother. In effect, the paternal grandmother seeks to have as much time with the child as possible and at least each alternate weekend from Friday to Sunday and half of all school holidays. However, she very strongly identified that it was not in the best interests of the child to change residence at this time.
The principles that apply to an interim hearing are well established. Even though the Court has significant evidence as one might anticipate with a trial to commence, that evidence has not been tested in any way. The reluctance to make findings on an interim hearing because of the inability to test that evidence is well known. The pathway to the determination of an interim hearing as identified in cases like Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637 encourages the Court to consider only those factors and which are likely to shape the determination of the interim arrangements which are in the best interests of the child, which is the paramount considerations.
In that regard many of the additional considerations prescribed by section 60CC(3) of the Family Law Act can be quickly dealt with.
DISCUSSION AS TO RISK
Neither the mother and father were able to come to the Court without an acceptance, as they do, of previous illicit drug use. I am not satisfied on the current evidence that I could make a finding that either parent is using drugs at the moment. However, their vulnerability to the future use of drugs, particularly illicit substances, has to be acknowledged. There is evidence from the mother's most recent hair follicle test that she uses cannabis.
The reports from the J Hospital for the event in late 2022 confirmed that she was admitted voluntarily because of what was described as a "[drug-related] psychosis." She has subsequently in her evidence been prescribed medicinal cannabis to assist with her anxiety and her pain. As to whether the hair follicle test that detected amounts of cannabis reflect, excessive recreational use of cannabis beyond what might have been expected for the medicinal use of cannabis, I am unable to say at this stage. There is no evidence, however, that would support any concerns that the mother is currently using or has used for some time other illicit substances. Her evidence is she has not, that being both her own evidence and the evidence of her partner Mr H, the father of F and G and a permanent member of the household for some years now.
The father’s last drug testing was clear and although he also, like the mother, must be seen as having some vulnerability, I am satisfied that drug use by him at this stage is a low risk.
The paternal grandmother is still, and continues in the submissions made to me, to be highly critical of the mother. It is one of the concerns that the mother raised in her material, and which is to be explored at a trial that the grandmother continues to undermine her parenting seeking to substitute herself as the primary carer of a child against the best interests of the child and unable to recognise how the mother has, on her case, improved her functioning over the last few years.
There is no doubt that the decision made by the senior judicial registrar in June/July 2022 was a significant decision. I am not required, nor can I review that decision. I now have more evidence than was available to the senior judicial registrar, in particular some further material from the Department, doctors, NDIS and the like, but in particular a family report prepared by Ms D recommending a transition of residence to the mother.
I still retain some concerns, in terms of the tenor and focus of the paternal grandmother’s submissions that she will ever be able to fully accept the mother is capable of providing good care to X. I accept that much of her attitude is shaped by her understanding of the history of care of X, some of which I accept show compromises in respect of the mother’s care. However, her position at the interim hearing that I conducted that the mother’s time could now be unsupervised was, it seems to me, almost the first concession for many years and since the Orders of 2020 made by Judge Purdon-Sully, that the child is not at significant risk in the mother’s care
For these reasons, I am not satisfied that, at the moment, on the evidence, the risks in the mother’s home are such that it should prevent an order, in the best interests of the child for unsupervised time.
What appears to be the case from the submissions is the focus on the following matters which I will deal with sequentially adverting to, where necessary, the primary additional considerations, namely:
(a)the mother says that a change of residence now will enhance, improve and support the important relationships that X needs to be able to develop with her siblings and to return to the primary care of her mother. I regard it as a significant issue for consideration that whilst X continues to live in the primary care of the paternal grandmother, the opportunities for time with F and G will be reduced. In respect of G, considering that the child X has lived with the grandmother since July 2022, his capacity to get to know and bond with his sister have been very limited. It needs to be accepted that, to a large degree, that limitation arising from the Court Orders also arose because of the mother’s failure to comply with or seek the time with X that was prescribed in the Orders made by the Senior Judicial Registrar for supervised time provided. There is a lot of catching up for G and X in their relationship. Of course, when the child moved to the care of the grandmother in July 2022, F was then four years of age. She had by that stage spent most of her life with her sister X. The evidence suggests that the absence of X in the household of the mother since July 2022 has been a distressing event for F. I will accept that to be the case. The submissions of the Independent Children’s Lawyer and the mother focus heavily on the benefit of a change of residence being the enhancement of the relationship, opportunities between the three siblings. I regard that as a significant factor to consider;
(b)The paternal grandmother argued strongly that a change of residence now would involve some significant adjustments for the child, being in particular:
(i)removal from her as the primary attachment figure;
(ii)the disruption to her schooling at L School where she has been in attendance now for approximately three semesters and where she has formed friendships, peers and has got educational support; and
(iii)an adjustment to and perhaps cessation of her medical treatment and support, particularly her psychiatrist, Dr N, and other persons, psychologist and therapists.
(c)accepting as I do the importance of this child having a safe relationship with the mother and the father and to build on the continued relationship that she has with the paternal grandmother, the effect of change on an interim basis (where a trial will occur in mid next year) is a very heavy consideration in this case. The factors which I have considered from the evidence and from the submissions include the following:
(i)Although the evidence suggests that the child has proceeded well and enjoys L School moving to P School, which on the mother's proposal is a school where the child has previously attended, is still a change for the child. The school reports which I was referred to in the tender bundles do not suggest a significant difference in performance bearing in mind the age of the child when she was at P School but is now at L School. It would be an adjustment for the child to a new cohort to move back to P School; and
(ii)The fact that the child has had global development delays and been diagnosed with ADHD is not really an issue. Although there is evidence from Dr Q, a physician primarily caring for X, identified in a report in the material that the paternal grandmother may not be accurately identifying the effects on X, or almost exaggerating them, I make no such finding at this stage. A counter‑proposition was also identified by Dr Q. However, I am satisfied that the grandmother has been very much focused on providing X with whatever support she can obtain to help her.
(d)the grandmother’s focus is that the mother (particularly but also it must be said the father) with their early care of the child, exposed X to a trauma-like environment to which she is still recovering. I have been provided with copies of a NDIS plan and assessments made for the child. However, it seems apparent that although those plans, whether reduced in funding or otherwise as the paternal grandmother asserts, provided a range of supports such as occupational therapy, speech therapy and psychology services funded by the plan, such funding has ceased from August 2023. The fact seems to be whether as a result of government cutbacks or other reasons there is no longer funding available to X. Ms Black on behalf of the mother says that that is because X no longer needs that support and is coping well. The paternal grandmother's concern about the lack of support has sought alternatives which are not funded and sought to review the decision it seems unsuccessfully of the withdrawal of NDIS funding;
(e)Dr N, a psychiatrist who practices at Suburb R in Region S near where the child currently lives, has been the child's psychiatrist for some 12 months. Although I am told that she has met the mother, she has primarily been focused on the care of X. It is her diagnosis of the child’s ADHD that has led to the prescriptions and medication which the child currently takes. Dr N has, it seems from the reports, had to rely almost exclusively upon statements of fact including of the history from the paternal grandmother. It bears saying that psychiatrists do not determine facts. In assessing how a narrative may, for a child, shape and design treatment and medication they are almost inevitably required to accept the facts given to them. Dr N was to be a witness subpoenaed by the Independent Children’s Lawyer in this case. Nonetheless, I am satisfied that Dr N has provided a level of support to X and that the grandmother funds privately monthly consultations at a fee of around $300 so that the support can continue;
(f)in final submissions Ms Black for the mother identified that if there is a change of residence the mother would undertake one consultation at her cost with Dr N, but would then move any necessary support or treatment services to Region T where she lives. There is some evidence of support from a psychologist it seems through a mental health care plan who is providing support to X but without really any input from the mother. It is not clear whether or not the family report of Ms D was ever provided to Dr N or the other therapists, including the psychologist retained by the grandmother for X. It is to be noted, of course, that the Orders of the Senior Judicial Registrar provided the grandmother with sole parental responsibility to make decisions about retaining health professionals. My impression is that there has not been significant sharing of this information with the mother other than through the Court process;
(g)there are some practical difficulties associated with the navigation of the distance between Suburb R to Suburb U. Some of these are of the mother's making, that is that she no longer has a driver’s licence, although she hopes to be able to obtain a licence in 2024. The circumstances for her loss of licence are not controversial. In those circumstances she is reliant upon Mr H to assist her because public transport is really not available from where she lives to a changeover place and/or contact centre. Mr H's support and driving which obviously requires at times some adjustments within the home of the mother because of the needs of the other two young children, has meant that the mother has been able to maintain successfully the child contact centre visits recently. In that regard the child contact centre notes are before me. I have read them and agree with the description given to them by Ms Harrington, the Independent Children’s Lawyer, that they reveal no matters of concern and in fact demonstrate a very warm relationship;
(h)whilst I accept the opinions of Ms D have not yet been tested, her evaluation in the family report identify reasons why the Court should consider transitioning the child back to the mother's care. As I have already indicated, the issues of risk are no longer paramount in this case, although there are significant challenges that the grandmother raises about the mother's parenting capacity compared to her own. In that regard, as I acknowledged in submissions with the paternal grandmother, her home which comprises herself and two adult children (neither of which have provided any evidence to the Court) is a much quieter household for X than the likely busy household that the mother, Mr H and the two siblings, F and G, occupy. That has both positives and negatives, but for a child like X who now presents as a much more resilient child than she may have been earlier, a busy household is not a concern to the Court; and
(i)there were limitations to the report of Ms D, in that the mother elected at those report interviews not to be observed with the child. Again, as I have already expressed, that was an attitude that I need to have further examined and concerns me, although the mother says it was designed as being in the best interests of the child and not to distress her because of the absence of living with her. I will order an updated family report – which will hopefully provide further data as to how the increased and unsupervised time X will have spent in the mother’s home has progressed and what X’s more recent feelings are wishes reveal.
DISCUSSION
This matter will be able to return to a trial before me in mid-2024. All parties agree whatever orders are made on an interim basis, that the Court would be benefited by a further updated family report. At the very least, the report from Ms D or another family consultant (if Ms D is not available) will be able to reflect on the relationship between the mother and the child shaped by some real contact of the child with the mother, rather than at the time of the interviews in January 2023, where the mother had spent no time with the child for a number of months. That could have, of course, distorted the child's wishes and/or feelings which were recorded by Ms D in her report and which was supportive of spending more time with the mother and seeing her siblings - not unreasonable, one would think, for a child of that age. The child may be in a much better position to express a view as to her wishes when her interview is taking place when she is closer to nine years of age than the age of seven.
I have found this a difficult decision on an interim basis. The concerns I have about the mother’s failure to spend time with the child post-July 2022 remain, this is likely to have been confusing for X. However, the pressure and need for X to have an opportunity to develop a relationship with her sibling is a significant factor in favour of the mother’s proposal. I have taken into account the evidence put before the Court both for the trial and for the interim hearing as I have identified earlier in these Reasons. I have been careful not to put myself in a position where I am unable to complete the trial by making findings which I cannot make at this stage.
The grandmother’s changed proposal for the mother to have supervised time is appropriate. It would have been a proposal that should have been put, in my view, months ago. As to why she has been reluctant to support unsupervised time with the mother is a matter for trial. A change of schooling for this child is not desirable, although most likely she will cope with it. A cessation of some of the health professional support as she adjusts to spending more time with her mother is a concern to me.
I have come to the conclusion that on an interim basis, and considering that a trial will be able to take place mid-2024, that the child X should continue to reside with the paternal grandmother. Although there are difficulties in communication, I propose to vary the interim Order for the paternal grandmother to have sole parental responsibility, to order that the paternal grandmother and the mother have equal shared parental responsibility such that they must consult about major long-term issues for this child. I am not satisfied it is in the best interests of X, that her mother be excluded from participating in major long term discussions for the child.
I would have preferred for X to spend each alternate weekend with the mother. However, properly and understandably, Ms Black on behalf of the mother concedes that there are practical difficulties for the child spending each alternate weekend with the mother arising from the availability of Mr H. Furthermore, I was told as almost a final submission that Mr H who is really the person who drives the mother to contact, is not available between late November and late December this year because of work commitments.
Accordingly, I will make an order for the child to spend time with the mother each third weekend during the school term commencing January 2024 when school returns generally from 5.30pm Friday to 5.00pm Sunday extended to 5.00pm Monday if Monday is a public holiday, with changeovers to occur at Suburb C McDonald’s.
To in some way assist the relationship between the children and I think appropriately in this case I propose to order that X spend school holiday time with the mother from Monday, 11 December until Sunday 7 January 2024 – a period of four weeks, that will include Christmas 2023. I note for Christmas 2022 X spent time with the grandmother.
I felt that the paternal grandmother was very generous in suggesting that time occur between the mother and the child for the period from Christmas Eve until Boxing Day.
Rather than interrupt that long period of time that the child X will spend with the mother, I will order that the mother this year cause the child to communicate with the father and the paternal grandmother on Christmas Day.
The child will return to the care of the paternal grandmother in sufficient time to enable her to be prepared for the next school year at L School.
I will make further orders in relation to the facilitation of information and the like that accord with the proposals.
In these Reasons I have had to make a difficult interim decision. What persuades me to leave the child in the primary care of the grandmother is not because, as the mother urges, I have made a finding yet about the capacity for the paternal grandmother to properly support not only the relationship that the child has with the mother, but the siblings. The mother ought not see this decision as a decision that in any way reflects what the final decision of the Court will be any more than the grandmother should.
However, where there has been a significant change to the living arrangements for the child that the child has had to adjust to in July 2022, to make a further change now with the trial just over six months away is, in my view, not optimal. Furthermore, noting the limited time X has spent with the mother since July 2022, the orders now made would permit a “transition” into primary care of the mother (if that is what ultimately occurs) easier on the child. The orders which I pronounce are those contained at the commencement of these Reasons for Judgment and on an interim basis, are in X’s best interests.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 December 2023
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