Livvy & Kash (No 2)
[2024] FedCFamC1F 697
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash (No 2) [2024] FedCFamC1F 697
File number(s): BRC 16626 of 2021 Judgment of: BAUMANN J Date of judgment: 22 October 2024 Catchwords: FAMILY LAW – CHILDREN – Where the child has lived for significant periods of time within the homes of the paternal grandmother and the mother – Where the child has an underlying medical condition which requires therapeutic management – Where the paternal grandmother and the mother have a high level of conflict and mistrust – Where the father seeks to spend time with the child but acknowledges he is not an appropriate candidate for primary care of the child – Final Orders made for the child to live with the mother and spend time with the father and paternal grandmother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Cases cited: Livvy & Kash [2023] FedCFamC1F 1014 Division: Division 1 First Instance Number of paragraphs: 105 Date of hearing: 11-13 June and 1 July 2024 Place: Brisbane Counsel for the Applicant: Ms P Eviston Solicitor for the Applicant: Clarity Legal Group Counsel for the First Respondent: Mr S Jones 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 Counsel for the Independent Children’s Lawyer: Dr M Sayers Solicitor for the 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:
22 OCTOBER 2024
THE COURT ORDERS:
1.That the mother shall have parental responsibility and sole decision making for the child, X born in 2015 (“the child”), including but not limited to:
(a)education;
(b)religious and cultural upbringing;
(c)health;
(d)residence; and
(e)name.
2.That the mother shall inform the father and paternal grandmother of any major long-term decisions as defined in Order 1 hereof, within fourteen (14) days of that decision having been made by the mother.
3.That the child shall reside with the mother from the first Sunday after the end of the term four (4) gazetted school year in 2024.
4.That pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”), Ms D be requested to explain these Orders to the child with such request to be communicated by the Independent Children’s Lawyer and accompanied by a copy of the Reasons for Judgment delivered 22 October 2024.
5.That the child spend time with the father and the paternal grandmother, unless otherwise agreed:
(a)for one (1) seven-day period in January 2025 as agreed and failing agreement from 12.00pm on Saturday, 4 January 2025 until 12.00pm on Saturday, 11 January 2025;
(b)commencing from the gazetted school term one (1) in 2025 for the fifth weekend of each school term from 3.00pm on Friday until 4.00pm on Sunday;
(c)for the first week of the school holidays at the conclusion of the gazetted school terms one (1), two (2) and three (3), from 9.00am on the Saturday immediately after the school term until 9.00am on the following Saturday; and
(d)commencing the end of term four (4) 2025, for a block of two (2) weeks during the end of term four (4) school holidays (the Christmas school holidays) as follows:
(i)In even numbered years from 9.00am on the fourth Saturday until 9.00am on the sixth Saturday; and
(ii)In odd numbered years from 9.00am on the first Saturday until 9.00am on the third Saturday.
6.That all changeovers for the school holidays shall occur at B Supermarket and changeovers for weekend time shall time occur at B Supermarket at the commencement of time and at McDonalds Restaurant Suburb V at the conclusion of time, unless otherwise agreed.
7.That the child shall, commencing the 2025 school year and thereafter, communicate with the paternal grandmother and father between 6.00pm and 6.30pm alternate Sunday on the following basis:
(a)The call shall be initiated to a mobile number identified in writing as suitable within fourteen (14) days of this Order;
(b)The mother shall ensure the mobile device used by the child is charged and in a mobile reception area at the time scheduled for such calls; and
(c)All telephone calls shall be in private and unrecorded.
8.That the mother shall administer to the child any medication prescribed for the child by Dr N or such other child and adolescent Psychiatrist, Paediatrician, or health professional from time to time.
9.That each parent shall ensure that both prescription medication and instructions for use travels with the child at changeovers.
Exchange of information and authorities
10.That for the purposes of these Orders, save in the event of an emergency, the parents are to communicate by email.
11.That the mother and father shall exchange within seven (7) days an email address and telephone number at which they can be contacted in the event of an emergency or the necessity to exchange information about the child.
12.That each parent shall advise the other within forty-eight (48) hours of any change to their residential address or contact details.
13.That within seven (7) days of the mother attending an appointment for the child with any medical specialist, the mother shall notify the father by email of the name and contact details of the medical specialist.
14.That the mother authorises, by this Order, the schools attended by the child, to give the father information about the child’s educational progress and other school related activities and supply him with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at the father’s cost).
Therapeutic support
15.That in the event it is impractical for the mother to continue the child’s treatment with Dr N, then the mother shall request from Dr N a referral for the child to the following treating professionals who are located in a geographical area closer to where the mother and child live:
(a)a Paediatrician or a child and adolescent Psychiatrist; and
(b)a child Psychologist,
and the mother shall then attend upon her general practitioner for the purpose of obtaining the required referral from the general practitioner to those professionals.
16.That the mother shall take all steps to continue her treatment with a Psychologist for counselling after the conclusion of her probation period by requesting her general practitioner provide an additional or advanced mental health care plan after her current mental health care plan expires.
17.That in addition to Order 15 hereof, the mother shall request the first available appointment with the Psychiatrist and shall attend all such appointments as recommended by such Psychiatrist.
18.That for the purposes of these Orders, the mother is permitted to and is to provide to:
(a)the child’s treating Paediatrician, or Psychiatrist and Psychologist a copy of all reports in these proceedings prepared by Dr W and Ms D;
(b)provide authority to the child’s treating Paediatrician, Psychiatrist and Psychologist to request a copy from Dr N of her clinical notes, reports and correspondence as the child’s current treating psychiatrist; and
(c)to her own Psychiatrist and Psychologist a copy of the reports prepared by Dr W and Ms D.
19.That by this Order, the mother authorises the father to obtain information from any medical specialist attended upon by the child, at his cost and subject to any privacy laws or procedures implemented by such medical practice.
20.That any psychological or other counselling attended by the child, the mother and/or the child and the mother jointly is to be non-reportable.
Restraints
21.That during the time the child is with either parent or the paternal grandmother, each parent and the paternal grandmother shall:
(a)respect the privacy of the other parent/paternal grandmother and not question the child about the personal life of the other parent/paternal grandmother and use their best endeavours to ensure that other persons not question the child about the personal life of the other parent/paternal grandmother;
(b)speak of the other parent/paternal grandmother respectfully and use their best endeavours to ensure that other persons speak of the other parent/paternal grandparent respectfully; and
(c)not denigrate or insult the other parent/paternal grandmother, or any members of their respective families, or any associate or partner of the other parent/paternal grandmother, in the presence or hearing of the child and use their best endeavours to ensure that other persons do not denigrate or insult the other parent/paternal grandmother or any members of their respective families, or any associate or partner of the other parent/paternal grandmother in the hearing or presence of the child.
22.That in the event the paternal grandmother files any further Application initiating proceedings within twelve (12) months from the date these Orders, the Application be listed before the Honourable Justice Baumann for the purposes of determining issues in relation to s 65DAAA of the Act.
23.That the current interim Orders shall continue in full force and effect until the first Saturday of the term four (4) school holidays 2024, after which these final Orders shall apply.
24.That the Independent Children’s Lawyer is discharged at the expiry of three (3) months from the date of these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
These parenting proceedings relate to what orders are in the best interests of the child, X, born 2015, who is now nine years of age. X has, for most of her life, lived with either the Applicant paternal grandmother, Ms Livvy (hereafter called “the grandmother”), or the mother, Ms Kash (hereafter called “the mother”), with such movements either being as a result of agreements between the parties or orders of the Court.
The father, Mr Menzies, who is also a party to these proceedings and for the reasons which are known to the parties, and dealt with briefly hereafter, spends time with X when that child has been with his mother.
The trial of these proceedings, which commenced on 11 June 2024, revealed the difficult developmental history that X has had to endure, and by the time of final submissions, the Independent Children’s Lawyer contended, and I agree, that this still remains “a finely balanced” decision.
The important decision, firstly, is whether X should live with the grandmother in Region S or should live with the mother in Region T. Arising from that principal decision, other issues including decision-making, time with the other parties, and various specific issues arise for determination.
For the Reasons which follow, I have decided that X should live with the mother.
STATUTORY PATHWAY
Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in s 60B of the Family Law Act 1975 (Cth) (“the Act”):
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
During my term as a judicial officer, I have navigated the changing landscape for parenting orders from s 68F through s 60CC of the Act, the additional and primary considerations, and now a new regime contained within four sections of a new s 60CC of the Act. The destination, however, has never altered. It is what is in the best interests of the children.
The very expansive s 60CC(2) and (3) which had primary and additional considerations has been very much shortened. I note that the presumption of equal shared parental responsibility no longer applies in parenting cases.
Section 60CC provides that when determining a child’s best interest certain things must be considered:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection (3) does not apply in this care.
HISTORY
It is not necessary or particularly helpful to recount the entirety of the history of this matter, which began with the grandmother filing an Application as early as March 2017 and involved a trial before a Federal Circuit Court judge in November 2020, which caused final Orders to be made that the child would live with the mother.
Those Orders were reviewed after the grandmother filed a new Application in December 2021, based on her concerns and the mother’s alleged actions seeking a change of residence.
On 12 July 2022, a significant event in life of X occurred, when a Senior Judicial Registrar at an interim hearing decided that there should be an immediate change of residence of X back to the care of the grandmother. As my earlier Reasons identify (see Livvy & Kash [2023] FedCFamC1F 1014), sadly, the mother did not cope well with the change of residence perfected so robustly, and there was a period where the child spent no time with the mother because of the mother’s choice to spend no time with her.
Despite a family report dated 16 February 2023 (marked Exhibit 9) by Ms D, and after further interim Orders were made by a Senior Judicial Registrar on 9 March 2023, the matter was case managed by me until, ultimately, the proceedings were listed for trial to commence before me on 23 November 2023.
Trial listed to commence on 23 November 2023
As the earlier Reasons identify, the trial commenced but was unable to proceed when the grandmother’s retention of Counsel for the hearing ceased, causing an interim hearing to be heard on 24 November 2023, the following day.
The Reasons dated 5 December 2023 identify why, with the history to that time, and the strongly argued case by the mother and the Independent Children’s Lawyer for an interim change of residence (opposed by the grandmother and the Second Respondent father) on that occasion, the Court decided on an interim basis not to change residence again until there had been further family report interviews and a trial which had been set, then, to commence on 11 June 2024.
It was necessary for the Court to review those Orders made 5 December 2023 to ensure the child could spend time with the mother for a block period, and on 15 December 2023 I ordered the child spend time with the mother between 16 December 2023 and 19 January 2024, which occurred.
After that block time, further family report interviews took place with Ms D on 21 February 2024, and her report dated 22 March 2024 was marked Exhibit 10. That report recommended the child live with the mother, and that there be a moratorium of three months before time recommenced between the child and the paternal family.
After the further family report was released, the mother and the paternal grandmother were the subject of an independent psychiatric assessment by Dr W on 23 April 2024 and 30 April 2024 respectively. Dr W was briefly cross-examined during the trial on his report dated 6 June 2024.
The trial proceeded for three days, commencing 11 June 2024.
It will become apparent to all parties that – in a case with such a large number of changes; events; allegations; complaints to the Department and the like; and the multiple criticisms of each other – if the Court tried to address every such allegation, the task would be a monumental and unnecessary exercise. The Court is not required to do so.
What the Court is required to do is to identify for the parties the pathway to its decision, one which clearly the paternal grandmother and the father will find difficult to accept.
COMPETING PROPOSALS
At the conclusion of the trial and marked Exhibit 12 (which appears at Appendix One to these Reasons), the Independent Children’s Lawyer, who retained Dr Sayers of Counsel in the trial, produced and made submissions as to the appropriateness of a final order, which provided, in effect, that the mother would have sole parental responsibility and decision-making for X and that the child would live with the mother. Time was to occur between the child and the paternal grandmother as set out in the proposed orders. A number of other specific issues were prescribed in the proposed orders.
The mother, through her Counsel, Mr Jones, effectively adopted the position of the Independent Children’s Lawyer and made submissions about the practical difficulties that arise from the travel involved with frequent visits between the child and the grandmother in Region S. I deal with those submissions at the end of these Reasons.
The paternal grandmother, by her final position, sought orders which were slightly different from those set out in the case outline she relied upon, filed 4 June 2024, and her Counsel, Ms Eviston, who it must be said could have done or said nothing more to advance the position articulated by and identified by her client, submitted that the child should live with the grandmother and spend time each third weekend with the mother. By the final submissions, the grandmother was able to see some benefit in respect of X spending some holiday time with the mother.
The father’s position was shaped by the conceded difficulty he faced that in late 2015, prior to parental separation, and when he was in his mid-twenties and under the adverse effects of drugs, harmed the child for which he was ultimately charged, convicted and imprisoned.
Although that is nearly nine years ago, the mother still argues that any time the child spends with the father should be supervised as she is unable to accept that he has changed in any way.
The Orders that have been made since separation in respect of the child’s time with the father reflect a growing interaction between the child and the father almost entirely in the presence of his mother, the paternal grandmother in this case. He was not a candidate for residence of the child, but he supports the position of his mother. Although the father and his mother did not live together at the time of the trial, there was at least a prospect, because they live presently close to each other, that in the future they may live in the same home.
RISKS IDENTIFIED BY THE PATERNAL GRANDMOTHER
Although there are some specific issues which the paternal grandmother’s evidence canvassed, at the very least the paternal grandmother does not accept that the mother is able to provide for the physical and emotional needs of X in the same way she can, and as she would say, in the same way she has demonstrated she has done.
When required to more discretely identify the risks other than those general perceptions and parenting styles, the paternal grandmother identified the following factor. At least in respect of statements of fact which now follow in this Judgment, they ought to be regarded as findings of fact.
In no particular order of priority, the concerns raised by the paternal grandmother include the following:
The mother’s drug use
(a)There is no doubt that at the time of conception of this child and shortly thereafter, both the mother and father were users of illicit substances which affected their capacity to care for the child. This meant that the maternal grandmother stepped in to care for her baby granddaughter. No real criticisms, in fact, admiration only can be extended to the grandmother’s conduct in that regard. The fact that the grandmother ultimately did not oppose the orders made by the Federal Circuit Court judge for the child to live with the mother in November 2020 reflected, I find, the grandmother’s desire to believe, hopefully, that the mother’s conduct shaped by:
(i)added maturity;
(ii)the birth of a child, F, to the mother in 2018; and
(iii)a hope that the mother’s drug use and relationship selection had improved,
caused the grandmother to support not only the orders but, in a very real way, the mother’s care of X. However, as already indicated, the grandmother’s position changed and is demonstrated when she decided to file her Application on 14 December 2021.
(b)Whilst there has been some inconsistent compliance by the mother with drug testing orders, on balance, I am not satisfied on the current evidence that the mother’s drug use is a significant risk to this child.
(c)In making that finding, I do not ignore:
(i)the admission to hospital in late 2022 where the mother was diagnosed with suffering withdrawal from the use of cannabis;
(ii)that the mother has a prescription for medicinal cannabis. I cannot entirely ignore the possibility that there have been times where the mother’s inability to use medicinal cannabis may have caused her to obtain recreational cannabis which she used;
(iii)comments made by the child to the grandmother that she has seen the mother smoking something out of a “glass thing”; and
(iv)that the child has indicated to the grandmother that she has seen “vapes” around the mother’s home.
However, for the reasons the Independent Children’s Lawyer articulated, with which I agree, I am not satisfied the mother’s use primarily of medicinal cannabis at this stage, but perhaps at times recreational cannabis, is a significant risk to this child. Certainly, the mother is aware of the need to limit her use of cannabis and is aware from her hospitalisation in late 2022 that the connection between some of her mental health challenges and use of cannabis can cause significant impairment.
The mother’s criminal record
(d)It is apparent from Exhibit 5 that the mother has offended criminally and has a criminal record. Some of the more recent offences in late 2020 reflect an excessive use of alcohol and use of drugs. The offence for which she was convicted in early 2022 was for breach of a domestic violence order, and she faced the Magistrates Court in late 2022 and early 2023 for similar offences. Both offences caused a conviction to be recorded, and with the last offence, being required to undertake probation for a period of 18 months. It follows that at the time of the trial in this matter, the mother was the subject of probation. There is no evidence to suggest she has not been complying with the requirements of her probation officer or terms of her probation.
The mother’s mental health
(e)The mother admits herself to fluctuations in mood and to dips in her behaviour. She acknowledges that she is triggered by the conflict with the paternal grandmother and the distress that she felt when the child was so abruptly removed (in her view) from her care in July 2022. As I have already indicated, the material before the Court revealed that when she was admitted to hospital in late 2022, there was a diagnosis of “acute cannabis withdrawal”.
(f)The mother has undertaken therapeutic support as set out in her affidavit and confirmed in part by a counsellor, Mr Y (see Exhibit 8).
(g)Further, the mother is vulnerable to mental health challenges, as was acknowledged by Dr W. I deal specifically with the evidence of Dr W later in these Reasons.
School performance
(h)It is a significant platform of the grandmother’s case that when the child returned to her care, as a result of the Orders of the Senior Judicial Registrar of 12 July 2022, the child had been performing poorly at P School. The school records, which were tendered and marked Exhibit 11, do not, in my view, support the fact that the child was doing poorly. However, I am prepared to accept, and do find, that upon the child returning to the grandmother’s care, and because of her commitment to the child’s education, (without like the mother the distraction of younger children and other events in her life), the child has settled well into her current school, performs well at different levels of activity, and is happy to be at that school.
(i)I can only take the matter of schooling so far in the absence of any direct evidence tested during the trial from educators of the child at either P School, (where the mother says the child will return if the child lives with her) or at the child’s current school. As I will indicate shortly, Dr N, (the child’s consulting Psychiatrist), speaks positively of the support the child receives from the paternal grandmother, but also of the child’s resilience and capacity to adjust.
SUPPORT OF THE OTHER PERSON’S RELATIONSHIP WITH X
I find that the history of this matter reveals that the mother has struggled, when the child lived with her, to consistently support a relationship between X and the paternal grandmother and the father. The concerns in this regard are a significant concern to the Independent Children’s Lawyer, and also to the Court.
There is no doubt from the evidence the mother gave, both under cross-examination and to the report writer, that she sees little value in the relationship that does exist between the child, the paternal grandmother, and also the father. She sees that relationship through her prism of grief and loss at times of her relationship with X (for which she blames both the grandmother and the Court), and characterises, therefore, the child living with the grandmother as exposing the child to emotional risk.
I do not accept this submission of the mother.
At the same time, although the grandmother demonstrated support of a child in, for example, celebrating the mother’s birthday and the like, the grandmother shows in her testimony that she has found it difficult to continue to support the mother’s relationship when the mother has, in her view, been so erratic.
The father supports the grandmother’s views of the mother, and her lack of capacity to support the relationship. Whilst there has been a Contravention Application filed in June 2022 (which was not ultimately pressed), during the course of these long proceedings, I am not satisfied that there has been significant failure to comply with orders, save that the mother chose not to take up the opportunities to spend supervised time with her daughter for some months.
On balance, I do find that the mother will struggle over the long-term to always support and demonstrate, both support in a practical and real way, the importance of X’s relationship with the grandmother and father more than the grandmother and father will fail to support the relationship with the mother. However, as the Independent Children’s Lawyer submits, at the conclusion of the trial that is but one factor for the Court to consider.
DR W
As indicated, Dr W, an experienced consultant Psychiatrist, was retained by the Independent Children’s Lawyer to conduct a psychiatric cross-sectional assessment of both the mother and the grandmother.
In his report, Dr W, in summary, made the following diagnoses which, in his style, were the subject of a provisional assessment that was, ultimately, shaped by further materials identified his report, noting that Dr W does not read any material until he has seen the party at least once and formed some opinions as to the probable clinical issues.
In respect of the mother, he opined:
(a)At pages 5 (of the electronically filed report) to 12, a detailed and somewhat frank history was given by the mother and recorded by Dr W – in fact she was “keen to give her account”;
(b)The mother had a “highly adverse developmental history with behavioural disturbance in her school years involving petty thieving and truancy” and illicit drug use when she was 25 years and after the birth of her child. Her “cognitive functions were intact” and there “was no evidence of psychosis”;
(c)The doctor’s provisions formulation of diagnostic issues revealed “significant complex and possibly interacting psychiatric issues”. The mother described behaviour which is “consistent with Persistent Depressive Disorder (PDD) meaning that there has been a chronic Dysthymia over the years which has been of fluctuating intensity. Dysthymia refers to a chronic low mood which is not of itself disabling but which tends to be long term”. Any major depression is in remission. The mother appears to have significant vulnerabilities in personality, but these vulnerabilities should not distract from the fact there are personality strengths (for example being in a stable relationship; caring for two younger children without Department intervention);
(d)After reading significant material, Dr W did not change his opinions expressed provisionally.
In respect of the grandmother, he opined:
(a)her mental state examination revealed no evidence “at all of any depression nor indeed of anxiety” and no disorder of the form of thought. She was “very critical” of the mother’s behaviour;
(b)the doctor’s provisional formulation of diagnostic issues revealed “no basis on which to make any diagnosis of a psychiatric illness… psychosis, mood disorder or anxiety disorder”. No personality vulnerability was raised from the data;
(c)again after reading significant material, Dr W felt it necessary to make some revision of opinions expressed provisionally. He opined that the documentation demonstrated “unrelenting criticism of the mother and also an unrelenting attempt to discredit her”. The personality configuration is of a “mixed type with the dominant feature best described as within the narcissistic spectrum but there are also paranoid aspects and obsessionality”. Dr W opined the grandmother “sees things entirely from her own perspective and seems unable to see the perspective of another”. Furthermore, like the mother, although she has significant personality strengths, she has also engaged in self-defeating behaviours.
Dr W was briefly cross-examined. He indicated that his view of the parties in this matter was influenced by the family report of Ms D that had issued prior to his interviews and was given to him by the Independent Children’s Lawyer (quite appropriately, in my view) before the assessments he undertook of the two parties.
Dr W did not regard the personality issues of the grandmother as significant as those of the mother. He had seen the document produced by the mother’s counsellor and supported ongoing counselling for the mother. Whilst he acknowledged that the mother’s mood problems are more problematic, and after he had acknowledged the very adverse developmental history for both the grandmother (although many years ago) and the mother, he concluded in his opinion that both the grandmother and the mother had shown the capacity to rise above their developmental adversity.
Dr W did not assess the father.
I take on board the opinions of Dr W, which were generally not challenged during the trial.
DR N
Dr N became involved in providing therapeutic and diagnostic support to the child when the child returned to the grandmother’s care in mid-2022. She has been treating X since August 2022. She was the subject of cross-examination on her report that was provided to the Court, which in summary said:
(a)Exhibit 6 contains at least 19 session reports (between 5 August 2022 and 6 November 2023) initially almost weekly then less often; Dr Q’s report of 11 November 2022; at least five reports to the child’s general Paediatrician, culminating in Dr N’s report on 21 February 2024 (the last report);
(b)The saliant opinions expressed in the last report include the following:
(i)X had a history of developmental delays, speech difficulties, sleep disorder, spatial awareness issues, impulsivity and poor attention;
(ii)X’s difficulties are likely due to a combination of biological vulnerability, family history of ADHD and early life adversity including childhood abuse and neglect, physical assault by the father, exposure to maternal mental illness and substance use;
(iii)A diagnosis of ADHD was confirmed and medication commenced with good response;
(iv)There was steady improvement in X’s psychological, emotional and social functioning when provided with a consistent, predictable and stable schooling;
(v)After the “block” time in January 2024, the grandmother reported X had “generally settled back well and was managing time with her mother and transitions but with episodes of anger and rage directed at times; and
(vi)Recorded the mother had, in an exchange with Dr N, “reacted angrily to the suggestion [X] may be stressed”, which lead Dr N to wonder if “her anxiety and investment in being seen as a good and competent mother, will make her intolerant of any negative emotion exhibited by [X] and therefore impaired in her capacity to meet [X’s] emotional and psychological needs”.
In a sensible acknowledgment that she had not had an opportunity to either assess the mother or observe the child with the mother (and the child’s siblings), being mostly reliant on reports from the grandmother, Dr N observed that she understood “a family report is occurring and hope these issues will be considered”.
Under cross-examination, the Dr N indicated that she had had two occasions to speak with the mother, but it is clear from both her evidence in the report and cross-examination that she is a strong supporter of the efforts that the grandmother has made to provide a stable lifestyle for X in Region S.
Dr N was referred to a comment made by Paediatrician, Dr Q, in a report dated 11 November 2022, which criticised the grandmother and expressed the opinion that “a pattern I have observed over time, is that I believe [the paternal grandmother] tends to overstate the severity and frequency of [X’s] developmental issues” whilst also saying “it may be that [the mother] had tended to understate the issues”.
Dr N said she took on board the comments of an experienced health professional but did not entirely agree with the assessment of Dr Q. My impression was that Dr N was very much focused on her patient, who was X, and not the grandmother. Dr N, in cross-examination, indicated that X has been diagnosed with ADHD; needs medication and management to assist her to reach her potential, and that that potential is supported by a supportive school and home life. It was the evidence of Dr N that X would be able to adjust to a change of residence if that was the order of the Court.
Dr N did not support any moratorium as being in the interests of the child, and I think, with respect to her, quite properly recognised that maintaining a therapeutic relationship with the child, if the child lived with the mother, would be difficult, as it is likely that the mother would not have the same relationship with Dr N as has been formed with the grandmother. Dr N certainly supported the child having ongoing therapeutic support. The mother, in her testimony, indicated that would be her intention, but that she did not feel, at least in the practical sense, that continuing to engage Dr N could be achieved.
Some attention was given in the cross-examination to whether Dr N could find a link between the child’s, at times, difficulties with incontinence/defecating, and the events that have shaped her life recently. Dr N’s view was, of course, events which are emotionally distressing to a child can cause some of these effects, but she did not feel she was adequately qualified to provide a conclusion. She certainly felt that X would be embarrassed if such results were exhibited at school, which is quite understandable.
There seemed to be an agreement between all the parties that however caused (and blaming the other party was not particularly helpful), this is an issue for the child that should obtain some attention from an appropriately qualified health professional with an understanding of the history. I again repeat, however, that Dr N exhibited some awareness of the child’s resilience and celebrated it.
THE FAMILY REPORT
Ms D, an experienced family report writer and Court Child expert, has, during the currency of these proceedings, provided two reports (the first report dated 16 February 2023 marked Exhibit 9 and the second report dated 20 March 2023 marked Exhibit 10). That longitudinal assessment is an important factor. I say at the onset, of course, that the Court is not bound by the views of a report writer. Not surprisingly, the mother, and to a large degree the Independent Children’s Lawyer, say, however, that in this case, the opinions of Ms D should be given significant weight. The grandmother submits otherwise. In respect of the second report, I extract from that report the following major opinions:
(a)The material relief upon by Ms D is set out in her report and included records from Dr N, J Hospital, the contact centre and the Department of Child Safety, Seniors and Disability Services. The expert was well aware that the grandmother and the mother were both seeking that X live with them and they have sole decision making responsibility;
(b)X’s interview is recorded at paragraphs 94 to 109, and consistent with the practice of Ms D, X was not asked to express a view of where she wished to live. X presented as “an engaging and friendly child” who recalled she had attended two different schools and that “both schools are nice” (paragraph 95);
(c)At paragraph 98, X said she had “two families”, which she described and at paragraphs 100 to 102 described her mother and her mother’s household positively, including her siblings;
(d)At paragraphs 103 to 105, X described the grandmother, her father and her household positively and seemed to be well aware that her mother and grandmother say negative things about the other (paragraph 106);
(e)She fantasised that she would want to live “with all her family” in a mansion and have lots of money. When gently asking X if there was anything she would like to tell the judge, she expressed views consistent with wanting to spend more time with the mother and even said (at paragraph 109) she would be “fine” if the judge decided she should live with mother;
(f)After recording the fairly unremarkable observations undertaken, from paragraphs 115 to 137, Ms D set out her opinions under the heading “evaluation” from which I draw the following opinions, by way of example:
(i)The expert opined no positive changes since the first report in the conflict and tensions between the parties and “the adult conflict continues to be prioritised over [X’s] needs” (paragraph 116);
(ii)Whilst noting the father has never been X’s primary carer and has not lived in the same household as X since she was a baby, Ms D made some positive comments about the insight the father demonstrated;
(iii)I agree with Ms D that the father does not pose a future or current risk of physical harm to X, and in his cross-examination, I got no sense he sought to deflect his actions on to the mother for his abuse of the baby X;
(iv)Ms D properly recorded her concerns about the mother’s capacity to “regulate her emotions” and was aware of the concerns of Dr N in this regard (paragraph 120). In the following paragraphs 121 and 122, Ms D discussed a number of past historical events and concerns, but referred to some protective factors, including the mother’s engagement with health professionals to support her; the support of her partner and also refers to the fact the mother “is looking after two other children, who by age alone are more vulnerable than [X]” (paragraph 121);
(v)At paragraphs 123 to 125, Ms D reaches some quite negative opinions about the grandmother, including that she:
(A)has exaggerated X’s additional needs and the risk the mother poses;
(B)was dismissive of assessments by child protection services and the educators at P School without foundation;
(C)has rigid views, takes little to no responsibility for her own behaviours and places blame on others without showing any capacity to reflect; and
(D)has engaged in coercive and controlling behaviours towards the mother “by consistently undermining her parenting capacity” for the reasons expressed at paragraph 124.
(vi)identified the “biggest issue in this matter is the conflict between the parties” at paragraph 126; did not regard X’s additional needs as a “complicating factor” provided X receives “a stable, safe home environment and access to health and education services to meet her developmental needs” (paragraph 127);
(vii)after setting out, at paragraph 128, the benefits of X continuing to live with the grandmother, including continuing to have a relationship with her father and then setting out, paragraph 129, the benefits of X living with the mother, particularly that “she will be raised in the same household as her half-siblings” and where Ms D properly opines that X “deserves to have a life that is free from adult conflict so that she can grow into an independent and emotionally secure teenager and young adult” (paragraph 130), the expert maintains the recommendation made in the first report that X transition to live with her mother (at paragraph 132);
(viii)Because of concerns that adult conflict was not reduced, at paragraph 137 Ms D expressed the view that if there was no change in the parties’ attitude, then X should live with the mother and spend time with the paternal family four times a year.
In view of the report and the criticisms of the grandmother, it was likely that Ms D would be the subject of focussed cross-examination, which Ms Eviston performed creditably. In that regard, however, for example, the grandmother’s assertion that Ms D had described her as a “horrible person” and was to some degree “biased” against the grandmother is not supported on all the evidence. Arising from the report, Ms D in cross-examination did not deviate with the ultimate conclusion that she reached, being that X living with the mother would be the best option for the child.
It was clear that a significant platform for that ultimate conclusion was so as to allow the child to form and develop a close and enduring relationship with her siblings, F, now aged six, and G, now aged three. That was also a significant foundation for the support the Independent Children’s Lawyer provided for a change of residence to the mother.
As I will further expand upon, X demonstrates an awareness of the conflict between her grandmother and her mother, but both Dr N and Ms D remarked that she does not make negative comments about the other person.
In particular, it was interesting, as a result, that in a consultation between Dr N and the child on 10 June 2024 (the day before the trial was commenced), for the first time in the history of consultation between the child and Dr N, the child volunteered a view that she wished to live with the paternal grandmother. Dr N did not explore the view expressed.
Ms D, whose practice with children of this age at least, is not to have them express a view, did express a concern about the timing of such a comment made by the child to Dr N, seeing as it was made shortly after the family report she had prepared and was released, which recommended a change of residence. I mention this because I am not entirely satisfied on the evidence that the grandmother did “coach” the child, but rather I think it is more likely than not that the child was aware of the grandmother’s strong views that the child should live with her, and that there was the pending trial. This child does not, however, have the maturity to understand the effect of any continuing or change of residence, and I would not give significant weight to such an expression in the circumstances of this case.
FINDINGS RELATING TO THE RELEVANT STATUTORY PATHWAY
When discussing the relevant s 60CC(2) factors, I rely upon but do not repeat all earlier findings in these Reasons.
I agree with the conclusion of Ms D that the conflict and lack of trust and respect between the grandmother and the mother (who, despite the father’s increased interaction with X) remains unrelenting and toxic, presents as the most significant emotional risk to X. I think it is not likely that either woman is truly committed to change. The quest for control, arising from the Court’s decision where X shall live, is likely to create a significant burden for the unsuccessful party to carry.
I do not find that X is at risk of physical harm in the care of any of the parties, including the father. The mother’s insistence that she does hold concerns, has no longer any evidentiary foundation, but when she has not witnessed any change, I understand the difficulty she has in accepting this finding.
It is hard to assess which of the candidates for primary care has the most capacity to change, but on all the evidence, I assess it to be the mother. She will not be able to easily ignore how X experienced many happy times being with the grandmother; how she enjoyed her school and has met her medical challenges. If the grandmother is able to adopt in the future a role as a “supportive grandmother” as she had previously demonstrated, then there is a prospect of the mother feeling less threatened in her primary role as a parent.
I accept the mother’s past failure to accept Court Orders and to react somewhat impulsively and immaturely to changes of residence, are a concern. Her decision not to take up opportunities to spend time with X after the interim change of residence remains a concerning reaction – and hardly child focussed. However, the orders I made for regular time, in the best interests of X, with the grandmother and the father are important for X and the mother (with therapeutic assistance), is, I assess, capable of supporting those orders, even though she continues to hold unresolved feelings of hurt and pain. Simply stated, she needs to get over the past and look to the future.
I am unable to attach any significant weight to the views of X, save to accept she gets on with all the important people in her life, individually.
Although, I have some concerns, on the evidence, whether the grandmother evinced some traits of exaggerating some of X’s needs, in the end my conclusion is that the grandmother was to a degree supported in her beliefs by the initial NDIS funding and, no doubt, the therapists who were engaged to provide those supports to X. When the funding ceased in March 2023, the grandmother was confronted with both an unsuccessful review and then the lack of support (save for less frequent visits to Dr N). However, with appropriate medication, the recent assessments of Dr N, Ms D and L School suggest many of the education challenges have reduced. The mother says she will secure a new psychiatrist/psychologist for X, and it is important she do so.
The grandmother and the mother are from very different generations and parent differently. The household the grandmother has offered and hopes to offer X is less chaotic than the busy household of the mother, where a working partner and two younger siblings will all need time and space. However, I ultimately have formed the view that both the grandmother and the mother have the capacity to meet the child’s needs.
I accept that if the child was to live with the grandmother, she would have more opportunities to spend time and develop her relationship with her father. That is an important factor – although considering the years that have passed since the time of separation, the father (now aged 35) failed to provide compelling evidence that he has the capacity for even unsupervised time. To a large extent, his relationship with X has been controlled by the grandmother, rather than Court orders. The grandmother provided him with a safety net.
In comparison, from similar levels of childish and drug induced behaviour, as was apparent at separation, the mother has exhibited, as Dr W opined, a capacity to rise above that adversity. She maintains a solid and happy relationship with her partner of some years and, importantly, has taken on the primary care role for F and G without any evidentiary difficulties. She deserves credit for so doing – a credit clearly the grandmother in this case is unable to acknowledge.
Within the context of s 60CC(2)(f), at least two other factors arose, being:
(g)I have considered that X will cope with a change of residence and importantly, a change of schooling. I do not accept the grandmother’s criticisms of P School are supported on the evidence. It is clear from the grandmother’s email to Dr N on 22 July 2022 that she held a very low opinion of P School. I believe that X’s return to P School is likely to offer her the safe support as she has received at L School; and
(h)in view of the history of this matter, it is a matter to be considered as to whether the orders I make are least likely to lead to further proceedings. Further Court proceedings and the adversarial focus that creates, is the last thing this child requires. Hopefully, with such detailed and comprehensive Reasons being delivered, the threshold now created by statute (s 65DAAA) will be a barrier to more proceedings. Of course, if the mother does not, without reasonable excuse, comply with the orders for time, then then that could well be a catalyst for new enforcement proceedings. I am aware that at the time of the hearing, the mother did not have a driver licence and this meant her partner had to meet the travel responsibilities. No real travel option other than car exists. I accept travel in this matter has the capacity to create tensions – especially in the mother’s household, where the increasing extra-curricular activities of not only X but her siblings, in the local community are likely to impact. However, doing the best I can, on the evidence, the orders I now pronounce, I believe are least likely to lead to further proceedings.
SUBMISSIONS OF THE PARTIES
At the conclusion of the evidence, oral submissions were delivered by Dr Sayers of Counsel on behalf of the Independent Children’s Lawyer, Ms Eviston of Counsel on behalf of the paternal grandmother, Mr Duplock of Counsel on behalf of the father and Mr Jones of Counsel on behalf of the mother. I summarise the salient submissions made as follows.
Independent Children’s Lawyer
Dr Sayers reminded the Court that in his view this is a finely balanced case where not one single matter was dispositive.
He argued that he did not regard the case as being one of “coercive control” within the meaning of s 4AB of the Act. He contended that this was not a case of risk of a physical/sexual nature, although the mother’s final position of such issue was a little uncertain. He said that entrenched negative views of the parties existed and had not diminished over the length of the litigation despite family reports, Court events and guidance.
As a result, he says the Court would have to accept that there is little future prospect of these parties changing that much. He, quite properly, congratulated the grandmother in respect of the way in which she stood up to the responsibilities of a parental figure when the child was approximately 18 months old. There is much in the grandmother’s home which is supportive of the child and is a reflection of her history with the grandmother.
However, Dr Sayers made the point that there are factors in the mother’s home which are very significant, and in so saying, he was not suggesting that there is some added weight to be given to the position of the mother, compared to that of the grandmother. His view in that regard, of course, is entirely consistent with principle.
It was a platform of the Independent Children’s Lawyer’s final position that the significant factor which weighed in the Independent Children’s Lawyer’s consideration in favour of a change of residence to the mother was the opportunity for X to develop a relationship with her siblings.
Dr Sayers submitted that the mother’s relationship with her partner should be found to be stable and supportive. I agree. Whilst there are concerns about a change of schooling again for this child, he felt that the child would adjust. To the extent there is a concern that the grandmother has made numerous complaints to the Department about the mother and would continue to do so, the Independent Children’s Lawyer said the Court should not be concerned that the grandmother would do that.
Dr Sayers said the evidence did not support a finding that the mother is currently engaged in significant illegal drug use.
Dr Sayers generally made submissions in support of the form of order which was marked Exhibit 12.
The mother
Mr Jones of Counsel identified that the mother aligns herself with the position of the Independent Children’s Lawyer. He acknowledged that the households offered by the grandmother and the mother were entirely different. X would be an only child in the grandmother’s home, whereas X would be one of three children in her mother’s home.
He said that the travel distances created a journey of one and a half to two and a half hours, depending on travel disruption, and although the mother lost her licence in 2020, and does not have a licence at the moment, the mother did not see that as a priority, and she should not be criticised for that, as she has the support of her partner.
Mr Jones indicated that the family report identified, and he says the Court would find, that the paternal grandmother struggles to find any positives about the mother. He also said that the biggest issue that favoured the proposition the mother asserts, namely for change of residence, is the benefit to X of the ongoing relationship with her siblings.
In that regard, he said that the Court should take some comfort from the fact where the mother, with her history and being well known to the Department, that there is no evidence at all that the Department has intervened in her parenting of F and G. He dealt with the concerns raised by the grandmother in relation to drug use, mental health and the like by the mother. He raised concerns, but in respect of such issues, the Court does not find that the child has suffered neglect or been the subject of any abuse in the home of the grandmother.
He said that the grandmother was not a credible witness. In my view, this case did not raise issues significant of credit. Of course, there were differences in perceptions of various events during the long history of this matter, but I regarded both the grandmother, the mother and the father (as well as the mother’s partner) as people focused on the best interests of the child but coming to that point from a different pathway. I did not regard any witness as inherently unreliable.
Mr Jones says that I should be satisfied that the mother will comply with orders, even if they are not entirely as she hopes them to be, and that the Court would be satisfied that the mother, from some difficult times in her early adolescence and adulthood, is attempting to improve her position; has a supportive relationship; and has every likelihood of achieving a better life for herself and her family.
The maternal grandmother
Ms Eviston of Counsel pointed to the fact that the mother is unwilling to accept the father has made any changes or improved himself while she asked the Court to accept that she has. She stated, and I agree, that all the parties hold negative views about the other. Ms Eviston contends that the paternal grandmother should be assessed as being an experienced and protective parent who has been a safety net for X; intervened when it was necessary for her to do so, and only after the mother failed to comply with earlier orders, did she again activate Court proceedings in the best interests of the child. She says that the mother’s unilateral decision not to take up time with the child should be a concern to the Court, and it indicates that the mother did not prioritise the child’s relationship with her over whatever practical issues she had or grief she was experiencing.
The paternal grandmother still holds concerns about the use of drugs by the mother and points to the lack of any recent testing that would support a conclusion that she is not illegally using drugs. As would be expected, the grandmother regards the opportunity for her son, the father, to develop and maintain a relationship with the child as an important factor. This is supported by the grandmother, and in view of the mother’s position that the father’s time can only ever be supervised, it is contended, not supported by the mother. She says that the mother will have difficulty in generally supporting the relationship between X and the grandmother and the father, if the child lives with the mother. Ms Eviston says that Exhibit 11 (the P School reports) would allow the Court to be satisfied that this child is “doing better” at L School than she was previously. This has been improved as a result not only of the stability in the grandmother’s household, it is asserted, but also the compliance with medication and therapeutic support provided by Dr N, who was engaged almost immediately upon the child coming in the grandmother’s care.
If the child was to be living with the mother, Ms Eviston, on behalf of the grandmother, said that the mother should not have sole decision-making, as that would remove the grandmother from being able to add value to long term decisions, from a perspective of being the primary carer of this child for much of her life.
If the child lived with the mother, the grandmother would seek that time occur at least every three weeks, and during part of the school holidays. The grandmother also indicated that her view that if there was to be a change of residence, it should not occur until the end of the 2024 school year.
The father
Mr Duplock of Counsel, on behalf of the father, essentially adopted the submissions of Ms Eviston. He said the Court should have no concerns that the father presents any risk to the child at all. He says the mother was being quite ungenerous by not being prepared to acknowledge that the father may well have improved his behaviour with maturity and age (in the same way that the mother asserts she has), particularly in circumstances where the mother has had no contact with the father and has not seen him for many years.
Mr Duplock, on behalf of the father, expressed concerns that the mother will not, because of her negative view about the father, facilitate any relationship with the father and that this is a significant concern, and one which would support the child living with the paternal grandmother, where an ongoing relationship with the father will be supported and nurtured.
DISCUSSION ON FINAL FORM OF ORDERS
At the age of 9 years X is at a critical developmental stage of her life. The community and school where she interacts is likely to create important long-term relationships.
X’s past history of care – moving between the mother and the grandmother – and so often in recent years shaped by high levels of conflict and mistrust, must move to one of stability. In this regard, I find both the mother and the grandmother can now offer that stability – although in very different settings.
The grandmother has enabled X to meet many of her challenges and nurture her relationship with her father – a father who, in my assessment, could not have done more to show he has stabilised his own life. He is able to rely on his mother and she very happy to do so – but the arrangement always came with the grandmother being in control. This need by the grandmother to be in control presents as a major hurdle to her creating any stable co-parenting relationship with the mother.
Whilst in the past there may have been justification for limiting the mother’s time with X, that is not the position now on all the evidence. I do not wish to be unduly harsh about the grandmother’s behaviour – and do not entirely accept the very negative assessment by Ms D – but I do accept that for this mother to be able, in her household, to provide stability, the unrelenting criticisms of the mother by the grandmother has to subside. I do not believe, with the grandmother’s rigid views of the mother, that will occur easily.
This dynamic persuades me that the mother must have sole decision-making responsibility as any other option is impracticable. I do not have concerns about the mother making sound decisions but will require the mother to keep the grandmother and father informed of any major long-term decisions.
These Reasons explore the advantages and disadvantages of the primary competing proposals for residence. In the end, the opportunity for X to nurture, enjoy and develop the lifelong relationship with her siblings F and G, which is unlikely to occur effectively unless they create the memories that being in the one household afford, is the factor in this finely balanced matter that weighs in favour of a change of residence.
I have decided the change should occur at the end of this school year – so as to allow X to participate in the usual end of year events that children of this age are generally engaged in at their school. I will then allow a period during the end of year holidays for the mother to settle X into her household – including the Christmas period – but will order that X spend one week with the grandmother and father in January 2025 as agreed, or during the week I have identified.
Thereafter, I propose to adjust the regime of time proposed by the Independent Children’s Lawyer – being one weekend every school term and one week in each school holidays save for the Christmas school holidays, when the child shall spend two weeks (not half) of the holidays. I accept this will likely mean X will spend every Christmas with her mother and siblings. It may have been possible to consider more frequent term time with the grandmother and father, but the travel times between the two homes and the impact that is likely to have on the child’s extra-curricular activities and those supported by the mother’s household for all children, means that the frequency is less than may have been possible if the parties lived in the same community.
Furthermore, the frequency provides a balance in permitting the child to maintain her important relationships with the grandmother and father whilst at the same time enabling the stability the mother can offer in her household, to be maintaining without the child being challenged by the negative views the grandmother deeply holds towards the mother.
The Independent Children’s Lawyer’s proposed minute, adopted broadly by the mother, does not prescribe any telephone time between the child and the grandmother or father. I accept that it may assist in the child settling into the mother’s home, to not have a regular telephone call which would have the potential to expose the child to the grandmother’s disappointment and negative views. Against this proposition is the fact that the change of residence will be a significant change for the child and speaking to her grandmother and father might comfort her. Noting the evidence by Dr N against a moratorium (which I accept) I have decided to include in the orders, weekly telephone calls between the child and the grandmother/father where the grandmother and father are together. I will order it occur every alternate Sunday (except when the child is in the care of the paternal grandmother) between the hours of 6.00pm and 6.30pm, with the usual restrictions. This regime will commence from the first Saturday of the 2025 school year. Of course, although the orders do prescribe a time the grandmother can initiate the call, the mother is encouraged (but no order is made) to facilitate the child speaking to the grandmother and/or father at any reasonable time if the child expresses a wish to do so.
I find it difficult to “carve out” any particular arrangements for the father to engage separately with X, on the evidence he presented. It may be, in time, and depending on how he develops independence from the persuasion of his mother, possible for X and the father to engage without the grandmother’s presence. The orders I make do not require the child’s time with the father to be supervised, in circumstances where I am satisfied, as the child grows older, the nature of the father’s time with X will be able to change with the grandmother’s support and guidance. If the father, in the future, is concerned his time is being restricted by his mother, that may be a time for him to negotiate some different arrangements with the mother. Until then, I adopt the position of the Independent Children’s Lawyer, that the order for X to spend time with the grandmother and father does not divide the time between them.
Otherwise, I adopt the order of the Independent Children’s Lawyer with some small amendments.
I regard the order which appears at the commencement of these Reasons as being in the best interests of X.
I certify that the preceding one-hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 October 2024
APPENDIX ONE
That the Mother have parental responsibility and sole decision making for X born in 2015, including but not limited to:
a.Education
b.Religious/cultural upbringing
c.Health
d.Residence
e.Name
That the child reside with the Mother, from 7 days after the delivery of Judgement.
That pursuant to section 65L, Ms D be requested to explain these orders to the child.
That the child spend time with the Father and Paternal Grandmother:
a.for the 5th weekend of each school term from 3pm Friday until 5pm Sunday; and for the 1st week of the school holidays at the conclusion of Terms 1, 2 and 3 commencing at 9 am on the Saturday immediately after the school term concludes and concluding at 9am on the following Saturday;
b.for half of the Christmas school vacation pe1iod as follows:
i.in even numbered years from 9 am on the 4th Saturday until 9 am on the 7th Saturday; and
ii.In odd numbered years from 9am on the 1st Saturday until 9am on the 4th Saturday.
That all changeovers for the school holidays take place at B Supermarket and changeovers for the weekend time take place at B Supermarket at the commencement and at - [insert an address near PGM’s residence or near F's residence] at the conclusion of the time.
That, the Mother authorises, by this Order, the schools attended by the child, to give the Father information about the child's educational progress and other school related activities and supply him with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at the father’s cost).
That the Mother administer to the child any medication prescribed for the child by Dr N or such other child and adolescent Psychiatrist or Paediatrician from time to time.
That in the event that it is impractical for the Mother to continue X’s treatment with Dr N, then the Mother is to request, from Dr N, a referral for the child to the following treating professionals who are located in a geographical area closer to where the Mother and child live
a.a paediatrician or a child and adolescent psychiatrist; and
b.a child psychologist
and the Mother is to then attend on her GP for the purpose of obtaining the required referral from the GP to those professionals.
That the Mother take all steps to continue her treatment with a psychologist for counselling after the conclusion of her period of probation by requesting her GP provide an additional or advanced mental health care plan after her current mental health care plan expires.
10. In addition to the preceding Order that the Mother take all steps
a.to request that her GP provide a referral for her to attend on a psychiatrist from time to time; and
b.once provided, the Mother shall request the 1st available appointment with the Psychiatrist;
11. That the Mother shall attend all such appointments as recommended by such Psychiatrist.
12. For the purposes of order, the Mother is permitted to and is to provide to
a.The child’s treating paediatrician, or psychiatrist and psychologist a copy of all reports in these proceedings by Dr W and Ms D;
b.Provide authority to the child’s treating paediatrician, psychiatrist and psychologist to request a copy from Dr N of her clinical notes, reports and correspondence as the child’s current treating psychiatrist;
c.The Mother’s psychiatrist and psychologist a copy of the reports of Dr W and Ms D.
13. That by these Orders the Mother authorises the Father to obtain information from any medical specialist attended by the child, at his cost and subject to any privacy laws or procedures employed by the specialist’s practice.
14. That any psychological or other counselling attended by X, the Mother and/or X and the Mother jointly is to be non-reportable.
15. For the purposes of these orders, save in the event of an emergency the parents are to communicate by email.
16. That the Mother and Father exchange within 7 days, an email address and telephone number at which they can be contacted in the event of an emergency or the necessity to exchange information about the child.
17. That within 7 days of the Mother attending an appointment for X with a medical specialist the Mother shall notify the Father, by email, of the name and contact details for the medical specialist.
18. Each parent is to ensure that both prescription medication and details for its administration travels with the child at changeovers.
19. Each parent is to advise the other within 48 hours of any change to their residential address or contact details.
20. At all reasonable times each parent is to facilitate any request made by the child for telephone contact with the other parent or paternal Grandmother
21. That during the time the child is with either parent or the paternal Grandmother, each parent and the paternal grandmother shall:
a.respect the privacy of the other parent/paternal Grandmother and not question the child about the personal life of the other parent/paternal Grandmother and use their best endeavours to ensure that other persons not question the child about the personal life of the other parent/paternal Grandmother;
b.speak of the other parent/paternal Grandmother respectfully and use their best endeavours to ensure that other persons speak of the other parent/paternal Grandparent respectfully; and
c.not denigrate or insult the other parent/paternal Grandmother, or any members of their respective families, or any associate or partner of the other parent/paternal Grandmother, in the presence or hearing of the child and use their best endeavours to ensure that other persons do not denigrate or insult the other parent/paternal Grandmother or any members of their respective families, or any associate or partner of the other parent/paternal Grandmother in the hearing or presence of the child.
22. That the Paternal Grandmother shall destroy all subpoenaed documents in her possession power or control, which she obtained throughout these proceedings and throughout the trial concluding in 2020 including but not limited to subpoenaed documents held on her computer and electronic devices, in online storage and on USB stick or discs.
23. That the Paternal Grandmother shall take all steps necessary to ensure that if she has distributed any documents to the Father, to “[Ms Z]”; to any previous lawyers acting on her behalf and to any other person not named in these orders, that she instructs those persons to destroy any copies they have of the documents produced under subpoenae.
24. That in the event that the Paternal Grandmother files any further Application Initiating Proceedings, the application be listed before Justice Baumann for the purposes of determining issues in relation to s65DAAA.