Mabens and Camber and Anor (No.2)

[2019] FCCA 3611

FEDERAL CIRCUIT COURT OF AUSTRALIA

MABENS & CAMBER & ANOR (No.2) [2019] FCCA 3611

Catchwords:
FAMILY LAW – Parenting – dispute between parents and with maternal grandmother – risk of harm from mother’s drug use and inappropriate relationship – order in best interests of child.

Legislation:

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

Cases cited:

MRR v GR [2010] HCA 4

Applicant: MR MABENS

First Respondent: MS CAMBER

Second Respondent: MS H CAMBER

File Number: WOC 11 of 2014

Judgment of: Judge Altobelli

Hearing dates: 25 and 27 March 2019, 23 May 2019 and 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Wollongong

Delivered on: 11 December 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr Wilkinson

Solicitors for the First Respondent: Winder Lawyers

Counsel for the Second Respondent: Ms Snelling

Solicitors for the Second Respondent: Access Law Group

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

ORDERS

1. The Maternal Grandmother have sole parental responsibility in relation to the making of any medical decisions for the Child X born … 2012 (“the Child”).

2. The Father be restrained from taking the Child to any doctor, hospital or medical centre except in the case of an emergency and for the purposes of Order 28, and in those circumstances the Father must advise the Maternal Grandmother immediately.

3. In the event that the Father does take the Child to a doctor, he must advise the said doctor that he does not have the authority to make medical decisions in relation to the Child.

4. The Father be restrained from administering medication to the Child unless as prescribed by Dr A of B General Practice, or as prescribed by another practitioner of B General Practice, or as prescribed by a hospital in the case of an emergency.

5. Subject to Order 1 above the Father and the Maternal Grandmother have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child.

6. The Child live with the Maternal Grandmother.

7. The Child spend time with the Father detailed as follows: -

   (a)Each alternate week from after school Wednesday (or otherwise 3:00pm) to before school Monday (or otherwise 9:00am).

   (b)At other times as agreed between the parties.

8. During the school holidays Order 7 above is suspended.

9. During the school holidays the child is to spend time with the Father as follows: -

   (a)During the December school holidays in one week blocks as follows:

   (i)In even numbered years commencing from the conclusion of the Child’s last day of school and thereafter each alternate week for the duration of the school holidays provided that in even numbered years the Father’s time is to include Christmas day and is to conclude at 5:00pm on Boxing Day;

   (ii)In odd numbered years commencing from 5:00pm Boxing Day and thereafter each alternate week for the duration of the school holidays.

   (iii)For one half of each of the shorter school holidays to occur in the first week of the holidays in odd numbered years and in the second week of the holidays in even numbered years and continuing in the shorter school holidays;

   (b)From the December 2021 school holidays;

   (i)In even numbered years in December for the first half of each school holiday period from the conclusion of school on the last day of term until 4:00pm on the middle day of the holiday period;

   (ii)In odd numbered years in December for the second half of each school holiday period commencing from 4:00pm on the middle day of the holiday period until 7:00pm on the Saturday before school resumes;

   (iii)During the remaining school holidays for half of each such holiday commencing immediately after the conclusion of school on the last day of term through to 4:00pm on the middle day of the said school holiday period.

10. That unless otherwise agreed by the parties in writing,  the Child communicate with the Father each Tuesday and Thursday and each Christmas Eve when the Child is not with him between 5:00pm and 6:00pm if not already spending time with the Father;

11. That unless otherwise agreed by the parties in writing, the Child communicate with the Maternal Grandmother each Tuesday and Friday and each Christmas Eve when the Child is not with her between 5:00pm and 6:00pm if not already spending time with the Maternal Grandmother.

12. On the Child's birthday the Father spend 2 hours with the Child if it falls on a school day and if it is a non-school day for a period of 6 hours as agreed between the parties if it is not a time the Father is already spending with the Child.

13. On Father's Day the grandmother's time is suspended from Saturday 4:00pm prior to Father's Day if it is not a weekend the child is already spending with the Father.

14. If the Easter period does not fall during a school holiday period, then the child spend time with the Father detailed as follows:

    (a)From 10:00am Good Friday to 4:00pm Easter Saturday in odd numbered years; and

    (b)From 4:00pm Easter Saturday to 4:00pm Easter Sunday in even numbered years.

15. The Father's time is suspended on ANZAC Day of each year to enable the child to spend time with the Maternal Grandmother as agreed between the parties or failing agreement from 9:00am to 3:00pm.

16. At all other times as agreed between the parties.

17. The Father's time with the Child is suspended on Mother's Day from Saturday 4:00pm if it falls during a time that the Child would be spending with the Father.

18. That the Child spend time with the Mother at times as agreed between the Mother and Maternal Grandmother, provided always that such times are to be supervised by the Maternal Grandmother.

19. That for the purpose of changeover between the Father and the Maternal Grandmother, when changeover is not at the Child's school, the parties are to meet at the southbound service station at City C Interchange at the commencement of such time and at the northbound service station at City C Interchange at the conclusion of time.

20. That the parties be restrained by injunction from: -

    (a)Denigrating the other party, or members of the other parties' families;

    (b)Allowing the Child to remain in the presence of any person denigrating the other party, or the members of the other parties' family;

    (c)Discussing these proceedings, parenting or living arrangements with the Child;

    (d)Consuming illicit drugs, in the presence of the Child, whilst spending time or within 48 hours prior to spending time with the Child;

    (e)Taking or failing to take prescription medication other than in accordance with a valid prescription;

    (f)Bringing the Child into contact with or allowing the Child to remain in the presence of the Mother's partner Mr D.

21. That each party shall ensure the other party is kept informed as soon as is reasonably practicable of: -

    (a)any medical problems or illness suffered by the Child, whilst in the care of the parent;

    (b)any medication that has been prescribed for the Child;

    (c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

    (d)any social, or religious functions which the Child is to attend;

    (e)the residential address of the parent;

    (f)the telephone contact number of the parent;

    (g)any other matter relevant to the welfare of the Child.

22. All parties be restrained from exposing or allowing the Child to be exposed to any age inappropriate material in any form of media.

23. All parties are to forthwith undertake an asthma awareness program as recommended by the Independent Children’s Lawyer.

24. Within 14 days of the date of these Orders and if they have not already done so the Mother, the Father and the Maternal Grandmother are to make contact with Relationships Australia City N or such other place as nominated by the Independent Children’s Lawyer and do the following:

    (a)Arrange an appointment as soon as reasonably practicable for an initial post separation parenting assessment and provide all information and complete all necessary paperwork as may be requested by Relationships Australia;

    (b)Thereafter attend any appointments on such days and times nominated by Relationships Australia and undertake all necessary assessments;

    (c)If assessed as suitable, enrol in and undertake any appropriate individual and/or group-based counselling, mediation, course and/or program as recommended or directed by Relationships Australia (including, but not limited to, attending a ‘Parenting After Separation Group’ and thereafter undertaking the ‘Parenting Orders Program’) until such time as otherwise recommended by Relationships Australia;

    (d)In the event that Relationships Australia recommends or directs the attendance and/or participation of the Child in the nominated counselling, mediation, course or program the parents must do all things necessary to facilitate the Child’s attendance and/or participation until such time as otherwise recommended by Relationships Australia; and

    (e)Comply with any other reasonable requests or directions of Relationships Australia for the purpose of implementing these Orders.

25. The Mother, the Father and the Maternal Grandmother are to share equally any costs associated with their engagement with Relationships Australia pursuant to Order 21 (at the relevant concession or non-concession rate) as advised by Relationships Australia.

26. In the event that Relationships Australia cannot provide any assistance or support to the parents as envisaged by Order 25, the Mother, the Father and the Maternal Grandmother are to do all things necessary to abide by and implement any recommendations made by Relationships Australia including, but not limited to, acting on any referrals made by Relationships Australia for either of the parents and/or the Maternal Grandmother and/or the Child to a more appropriate support service.

27. The Father and Maternal Grandmother shall do all such things to ensure the Child regularly attends school, unless in circumstances where the Child is sick, unwell or physically unable to attend.

28. In circumstances where the Child is unable to attend school, the party who has the care of the Child on that day shall immediately notify the other party by 12:00pm that same day of the Child's non-attendance at school.

29. In circumstances where the Child is unable to attend school due to illness, the party who has the care of the Child on that day shall do all such things to obtain a medical certificate explaining the Child's non-attendance and provide the said certificate to the school and the other party.

30. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

31. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Mabens & Camber & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 11 of 2014

MR MABENS

Applicant

And

MS CAMBER

First Respondent

MS H CAMBER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about a Child, X, who is 7 years old.  The Court must decide who he lives with, and what time he spends with each of the significant adults in his life.  X currently lives with the Maternal Grandmother.  X’s mother lives with the Maternal Grandmother, and thus sees him in that context.  X spends time with his father on a regular basis.  These Reasons for Judgment explain the Orders that the Court has made in relation to X.

Background

1. X’s father is the Applicant in this case.  He is a full-time carer (of his partner) and is in receipt of Centrelink benefits in that regard.  He lives in a suburb on the Region E of New South Wales, with his partner, and is 29 years old.  The First Respondent to the Father’s Application is the Mother.  She is 25 years old, is Centrelink-dependent, and lives with her mother, the Maternal Grandmother in these proceedings, in a suburb near City N, in New South Wales.  The Second Respondent is the Maternal Grandmother.  She is 53 years old, and described herself as retired.  Both X and the Mother currently live with her.  The other significant adult in this case is the Father’s partner.  She is 24 years old.  She and the Father have been cohabiting since … 2016.  The Father lives with her in her mother’s home on the Region E, and X frequently spends time with the Father and herself in that home.

2. The parents probably met in 2011, and commenced cohabitation in 2012.  After X was born on … 2012 the parents seemed to be living in the home of the paternal grandparents in City O.  The parents separated in April 2013, at which point the Mother and X commenced living with the Maternal Grandmother in the City N area.  Between the date of separation, and the making of various Court Orders for the Father to spend time with X, there have been periods when the Father was spending regular time with him, and periods when there was no such time.  In the early stages it seems that the Father’s time with X was supervised, but in the later stages it was unsupervised and included overnight time.  Whilst nothing turns on this, it is possible that as early as September 2013 the parents had entered into an informal arrangement, subsequently not documented, that provided for the Father to spend time with X.

3. The present proceedings commenced on 8 January 2014.  The matter was listed for Hearing on three previous occasions before ultimately commencing on 25 March 2019.  The Court is satisfied that on each of the previous occasions there was good reason why the Hearing could not commence.

4. The first orders made in relation to X were made on 1 April 2014.  These Orders provided for X to live with his mother, and spend time with his father each alternate Sunday, provided the Mother was present.  By October 2014 it seems that X was spending each alternate weekend with his father.

5. Pursuant to Orders made on 27 March 2015, the parents commenced drug testing.  The First Schedule to these Reasons for Judgment set out an aide-mémoire provided by the Independent Children’s Lawyer entitled “Schedule of Urinalysis Testing”.  All parties accepted that this document sets out uncontested facts.  What becomes apparent from even a cursory inspection of this document is that the Mother has frequently tested positive for cannabis.  Indeed it is the Mother’s own evidence that she is, and continues to be, an occasional user of marijuana.

6. By 2016 it appears that the Maternal Grandmother became the Mother’s carer and, for all practical purposes, X’s principal carer as well.  The Maternal Grandmother drove the Mother to changeovers, so that X could spend time with his father.

7. In December 2016 the Mother commenced a relationship with a man known as Mr D.  Both the Mother and Maternal Grandmother contend that this relationship ended one year later, in December 2017.  The Father contends that the relationship subsisted after that date.  A common theme in the evidence of the Mother, the Maternal Grandmother, and the Father, is that the Mother’s relationship with Mr D was not a healthy one either for the Mother or for X.  The evidence about events that took place during the period of this relationship will need to be discussed in further detail below.

8. On 25 January 2017 Dr F released the first Family Report in this case.  This will be discussed in further detail below.  It will become apparent that the nature of the dispute between the parents at this point, in January 2017, was significantly different to the dispute before the Court at the Hearing.

9. Significant events seem to have occurred in August 2017 onwards.  X appears to have gone into his father’s care for a period of time.  What is contested is whether this took place with the Maternal Grandmother’s consent or approval, or without her opposition, or whether it was an arbitrary act of the Father.  This was a tumultuous period in the lives of X, his parents, and the Maternal Grandmother.  It seems that in September 2017, or thereabouts, the Mother told the Maternal Grandmother that she was going to live with Mr D.  In October 2017 the Maternal Grandmother signed Centrelink documentation which effectively provided for the Father to receive X’s benefits.  There is a dispute about the signing of this documentation which will need to be discussed below.  Eventually X was returned to the Maternal Grandmother’s care, but then the Father again removed X from his school and retained him for a period.

10. The matter came before the Court on 20 December 2017.  The Maternal Grandmother was granted leave to intervene in the proceedings.  X was ordered to live with the Maternal Grandmother, with the Father to return the Child to her.  Orders were made for the Father to spend time with X on specified dates, and to spend time with his Mother provided such was supervised by the Maternal Grandmother.

11. From the Mother and Maternal Grandmother’s perspective, any crisis that existed appears to have resolved when the Mother separated from Mr D in December 2017.  There followed a period of instability for X in terms of regularly spending time with his Father.  The Maternal Grandmother alleges that the Father failed to attend contact as ordered.  The Father alleged that the Maternal Grandmother failed to facilitate this contact.

12. On 26 March 2017 the Court ordered that the Father spend each alternate weekend with X from Friday afternoon after school until Monday before school, as well as for school holidays and special occasions.

13. Dr F’s updated Family Report was released on 24 April 2018.  Dr F was privy to the issues that had occurred in late 2017.  As will be seen from the discussion of this evidence, the Father’s proposal had changed substantially by this time.

14. On 9 May 2018 the Father was, once again, ordered to return X to the Maternal Grandmother’s care following his retention of X.

15. In September 2018 the parties entered into mediation and agreed that the Father’s time with X be extended, and so was the Mother’s time provided such was supervised.

16. In January 2019, according to the Mother’s own evidence, she met Mr D again, chatted amicably, and then exchanged text messages and occasionally met for coffee.  According to the Mother, she enjoyed his company, and he enjoyed hers, and their exchanges were lighthearted.  She says, however, that on 29 January 2019 she pointedly rejected his overtures towards the recommencement of a romantic relationship.

17. On 7 February 2019 Mr D apparently attended the home that was occupied by the Mother and Maternal Grandmother and was abusive.  An ADVO was made for the protection of the Mother, Maternal Grandmother, and X, against Mr D, extending for a period of two years.

18. As at the date of the commencement of the Hearing, therefore, the Mother was living with the Maternal Grandmother and X, and X was spending time with his Father on a substantial and significant time basis.

The proposals

1. The Father represented himself at the Hearing.  His Amended Application filed 9 March 2018 proposed that he have sole parental responsibility for X, that X live with him and spend time with the Maternal Grandmother each alternate weekend from after school on Friday to 5:00pm Sunday.  He proposed that X spend time with his Mother under supervision of the Maternal Grandmother during the times that X would otherwise spend with the Maternal Grandmother.  The Father also proposed a number of ancillary orders.  During the Father’s evidence, however, there was a strong suggestion that his preference was that X spend no time with his Mother, or Maternal Grandmother. By the final day of Hearing, however, the Father did in fact propose that X spend time with the Maternal Grandmother each alternate weekend, but that the Mother only spend time with X after she had satisfactorily concluded rehabilitation from her drug use.

1. The Mother’s proposal is set out in her Amended Response, filed 30 November 2018.  It provides for X to live with the Maternal Grandmother who would have sole parental responsibility, subject to consultation with the parents.  X would spend time with his mother as agreed between the Maternal Grandmother and the Mother.  X would spend time with his father each alternate weekend from the conclusion of school on Friday until the conclusion of school on the following Monday.  She also proposed other orders for midweek time, school holidays, and special occasions.

2. The Maternal Grandmother’s proposal aligned with that of the Mother.

3. By the time of closing submissions the Independent Children’s Lawyer’s proposal was that there be equal shared parental responsibility as between the father and maternal grandmother, and that X should live with the maternal grandmother.  The Father would spend time with X each alternate weekend from after school on Friday to before school on Monday.  In his oral submissions, Counsel for the Independent children’s lawyer acknowledged that the proposal actually reduced X’s time with his father by dropping the alternate Thursday overnight.  The Independent children’s lawyer accepted that adding another night was possible, if the Court was concerned about reducing the father’s time.  The minute of order provided for X to spend time with his father during school holidays and special occasions, and also for there to be communication midweek.  There are a number of other important orders set out in the minute, which is reproduced in the second schedule to these reasons.

4. During closing submissions, both the mother and maternal grandmother changed their proposals to more closely align with that of the Independent Children’s Lawyer.  The Maternal Grandmother accepted orders 2, 3, 4, 5,6,7,9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the Independent Children’s Lawyer’s Minute. Parental responsibility was in dispute.  Relatively minor issues were raised about orders 8, 12 and 13, which will be discussed in due course.  One important issue was whether the mother’s time needed to be supervised by the maternal grandmother.  Order 12 proposed by the Independent Children’s Lawyer required that the Maternal Grandmother’s position was that she accepted this order.  As will be seen, however, she doubted its practicability in the long-term.  The mother, through her Counsel, indicated that she sought the same order as the maternal grandmother.

The evidence

1. In the Father’s case, he relied on the following documents;

   a)Amended Initiating Application filed 9 March 2018;

   b)Affidavit of Mr Mabens filed 3 July 2019;

   c)Affidavit of Mr Mabens filed 19 March 2019;

   d)Affidavit of Mr Mabens filed 9 May 2018;

   e)Affidavit of Mr Mabens filed 9 March 2018;

   f)Affidavit of Mr Mabens filed 6 December 2017; and

   g)Affidavit of Ms G filed 9 March 2018;

2. In the Mother’s case, she relied on the following documents;

   a)Response filed 18 July 2019; and

   b)Affidavit of Ms Camber filed 18 July 2019.

3. In the Maternal Grandmother’s case, she relied on the following documents;

   a)Application in a Case filed 27 June 2019;

   b)Affidavit of Ms H Camber filed 27 June 2019;

   c)Affidavit of Ms H Camber filed 8 March 2019; and

   d)Affidavit of Ms H Camber filed 4 December 2018

4. The following documents were tendered as evidence during the course of the proceedings;

   a)Report prepared by Dr F dated 25 January 2017;

   b)Report prepared by Dr F dated 20 April 2018;

   c)Documents produced pursuant to subpoena on B General Practice;

   d)Documents produced pursuant to subpoena on Dr J;

   e)Email from Mr K to the Court dated 11 December 2018;

   f)Transcripts of telephone conversations between the parties and X;

   g)Schedule of agreed summary of facts for Medical appointments and treatments for X;

   h)Mother’s drug test results dated 19 July 2019;

   i)X's Semester 1, 2018 school report;

   j)Schedule of urinalysis testing provided by the Independent Children’s Lawyer;

   k)Documents produced pursuant to subpoena on Region E Neuroscience; and

   l)Documents produced pursuant to subpoena on Dr A.

Appearances

1. The Father represented himself in the proceedings.  The Mother appeared with her Solicitor, and Mr Wilkinson of Counsel.  The Maternal Grandmother appeared with her Solicitor, and Ms Snelling of Counsel.  The Independent Children’s Lawyer appeared with her Counsel, Mr Ladopoulos.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)    such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

6. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

7. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

8. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

Outline of Reasons for Judgment

1. These Reasons will firstly set out the evidence of Dr F, the Regulation 7 Family Consultant appointed to prepare the two Reports that are in evidence.  It is convenient to set out Dr F’s evidence first, simply because she was the only independent and expert evidence in this case.  There is otherwise no primacy to her evidence.  Where appropriate, the Court will make a number of observations about Dr F’s evidence, superimposing its own knowledge and findings, based on the totality of the evidence.

2. The major issues in this case will then be discussed by reference to the evidence.  A number of issues emerged from the evidence.  Perhaps the most important one was whether there was a risk of harm to X in the care of his mother, and Maternal Grandmother, as the Father contends.  Even if such risk of harm were established, what is the significance of making the radical change proposed by the Father in terms of X’s relationship with his mother and maternal grandmother?  There are underlying issues about the capacities, and the attitudes towards the responsibilities of parenthood of the parties to this case, as well as issues about compliance with Court orders.

The evidence of Dr F

1. Dr F’s first Family Report is dated 25 January 2017, and was released to the parties on 27 January 2017.  She notes some important historical matters by way of background.  When the parents commenced their relationship, for example, the Mother was 17 years old, and the Father 21.  The parents had attended two separate Child Dispute Conferences on 7 May 2014 and 31 July 2015.  The issues reflected in the memoranda produced in respect of those conferences suggested agreement between the parents that X would live with his mother, and spend time with his father.  The issues in dispute seemed relatively discrete, but require judicial determination.  It was noted, however, that neither parent alleged domestic violence or abuse against the other, but the Father did raise concerns about the Mother’s drug use.

2. At the time of the first Report X, who was then 4 years old, was living with his mother in the Maternal Grandmother’s home.  The Father was seeing X on alternate weekends.  It was, for all practical purposes, a dispute about how much time the Father should spend with X.

3. A number of important observations were made about the parties.  The Mother admitted to Dr F that she used marijuana socially, the last occasion being about a month before the interviews.  She denied use of other drugs, but was clearly aware of the allegation by the Father that she used amphetamine, which she denied.  The Mother was noted as not raising any child safety concerns about the Father, or the Paternal Grandmother, both of whom she asserted were loving and caring towards X.  The Mother expressed what Dr F described as “various quibbles” about the quality of the care the Father provided (paragraph 11).  An issue raised by the Mother was communication in relation to co-parenting, and a concern that the Father was not sufficiently child-focused.

1. At paragraph 17 of her first Report, Dr F makes this observation:

   Overall, Ms Camber presented as well-intentioned towards her son’s relationship with his father but psychologically immature. She seems not to have resolved her own conflicts about the failure of the relationship with Mr Mabens. In response to questions about what her child needs she responded in terms of what she needs from the father (respect, gratitude) and prescribed improvements in Mr Mabens’ attitude. Such an external focus suggests inadequate self-efficacy and self-direction.

2. The Maternal Grandmother presented to Dr F as being insistent that both she, and the Mother, wanted the Father to be a part of X’s life, and the Maternal Grandmother was committed to facilitating this.  She expressed trust in the Father, denying that he would abuse or neglect X.  She considered that even paternal kin were loving and caring towards X.  The Maternal Grandmother expressed no hostility to the Father, and attributed no malign motives towards him.

3. The Maternal Grandmother denied that her daughter was using amphetamines, to her knowledge.  At paragraph 25 Dr F records:

   Ms H Camber confirmed that when Ms Camber obtained a Housing Commission home she would be going every day to monitor and offer support, noting that she had been allocated a room in that house as her daughter’s carer.  She insisted that she does not usurp the Mother’s role with X, but only encourages and supports her daughter to fulfil her maternal duties.

4. In relation to the Father, Dr F noted that he was not asking for a change of residence for X at this stage, but merely that the arrangements for transport and communication operate more smoothly.  He did claim, however, that when the Mother was drug-affected she would ring to abuse him and on a recent occasion had passed the phone over to some men who had threatened to come to his home to kill him.  His only other complaint seemed to be, however, that the Mother did not appropriately inform him of X’s events or medical issues, and a concern that she was abusing drugs.  He contended that the Mother smoked marijuana throughout the relationship, even during pregnancy.

5. At paragraph 30 Dr F noted as follows:

   Both the Father and Paternal Grandmother claim to have seen Ms Camber in the presence of unsavoury associates, including men who appeared to be intimidating her at the corner of her street on one occasion when they were dropping the Child off to the Maternal Grandmother’s home.

6. Thus, the Father raised concerns about the Child’s safety with the Mother if she lived alone.  Specifically his concern was that antisocial associates might come to the house or that the Mother might take X to places where such people congregate.  However, the Father denied any such concerns while the Maternal Grandmother was present, expressing concerns that she was lovingly protective towards X.  Indeed, he thought that the Maternal Grandmother did more parenting of X than the Mother did.

7. X was observed with the Mother, Maternal Grandmother, Father, and paternal kin.  The observations with the Mother and Maternal Grandmother were all satisfactory.  Dr F noted that the family atmosphere was warm and comfortable, and that X appeared to have close and trusting relationships with both his mother and grandmother, although he seemed to orient to his grandmother as the leader.  The observations in relation to the paternal kin are set out at paragraphs 46 and 47:

   [46] The paternal kin were then invited into the playroom. The maternal grandmother suggested to X that he just have a little play with his father and paternal grandmother “to say goodbye”. Apparently, she anticipated that the child might misunderstand the circumstances. When his mother and grandmother were leaving the room, X protested, saying that he did not want to stay. After a moment or two his father successfully distracted him with a play activity. After a short period of quiet, pleasant and constructive interaction with his father, X repeated his wish to be reunited with his mother and grandmother. He seemed anxious that reunion/ handover had not gone as he had expected.

   [47] The paternal grandmother and father agreed that the was the most sensible way to proceed was for X to join his mother and grandmother. X gave his father and grandmother fond farewells with cuddles and kisses, then he was escorted back to his mother. Their reunion was mutually warm but not feverish

8. Dr F’s relevant evaluation is found at paragraphs 48 to 51:

   [48] X is deemed to have trusting, loving relationships with both sides of the family which it would be to his benefit to maintain. The child does not seem to at immediate risk of harm in the care of either parent, although the father contends that the child might be at risk due to the mother’s drug use if the mother left the maternal grandmother’s home. The maternal grandmother seems to be X’s secure base.  The grandmothers on each side are deemed to be protective and likely to take practical measures to compensate for any shortfalls in the availability or consistent responding of the parents.

   [49] Ms Camber is an anxious young woman who presents as frail and dependent rather than stress-hardy and independent. Her child-focus is likely to collapse under stress, when her resentment towards the father may break through the polite veneer she can usually maintain in public. She would be prone to relapsing mood and anxiety disorders under stress. She is reported to be currently well, however use of illicit substances often reflects attempts to self-medicate for anxiety, stress and depression. Her almost anorexic thinness and the nervous tic in the jaw which I noticed at interview are not signs of robust health and peace of mind. Relapse prevention is a priority.

   [50] A change of residence is not sought by the father and would not be in X’s best interests given the father’s competing care responsibilities, but if the father’s concerns about the mother’s drug use or lifestyle increase in the future it is likely that this matter will return to Court. Any child welfare risks associated with the mother’s (alleged) recreational drug use seem to be contained by the presence of the maternal grandmother. If Ms Camber’s amphetamine use is confirmed (or cannot be excluded) the best safeguard for X may be for the maternal grandmother to join proceedings and share parental responsibility with the parents.  This may cause some tensions between the father and maternal grandmother, but X’s welfare would be ensured.

   [51] The main issue in dispute is co-parenting regarding visits to the father. The parents seem unable to adhere to a predictable arrangement for the child. The child appears to be stressed by separation from his mother at handovers in-person between his mother and father or between paternal kin and maternal kin. Under those conditions the best arrangement would be a predictable visitation routine which minimises the requirements for punctuality, collaboration or transport sharing to handover. It would probably work better for X if he was collected from preschool say on a Friday at midday and then taken back on Monday at midday.  The father says that this is a feasible plan.

9. She recommended that X live with the Mother in the home of the Maternal Grandmother, and that the Father collect X from pre-school Friday morning and return him to pre-school on Monday morning, subject to the Father’s working commitments.

10. It is clear from Dr F’s evaluation and recommendation that the dispute before the Court at the time was one of limited issues, and that X seemed to have trusting, loving relationships with both sides of the family.  There seemed an absence of any risk of harm issues, although she noted the Father did raise concerns about the Mother’s drug use, if she was not living with the Maternal Grandmother.  The Maternal Grandmother seemed to be X’s secure base.  At the time, Dr F opined that a change of residence was neither sought by the Father, nor would it be in X’s best interests.

11. Dr F’s second Report is dated 20 April 2018, was released on 24 April 2018, and was based on interviews held on 9 April 2018.  It is clear that Dr F had available to her evidence from the Father, his partner, and the Maternal Grandmother which included events that occurred late in 2017.  The focus was on concerns arising from the Mother’s relationship with Mr D in 2017.  At paragraph 4, Dr F notes:

    During 2017 disputes continued to arise about handover arrangements and the progressing the father’s time with the child. The father raised child safety concerns about the mother’s drug use 2017-18 and about her allegedly abusive partner Mr D. He claims that between September and November 2017 the maternal grandmother Ms H Camber repeatedly expressed fear about Mr D’s violence towards family members, and about threats made against her by her daughter Ms Camber. He claims that on several occasions the maternal grandmother asked him to take the child for periods of up to a month, either because she could not cope or to get the child out of harm’s way. Furthermore, that the maternal kin blocked contact between 3/11/17 and 22/11/17 when he collected the child from Suburb L Pre-school with the intent of keeping him from the mother and grandmother as police had informed him of concerns reported by the grandmother, and the pre-school had made a FACs notification.

12. Moreover, at paragraphs 6 and 7, Dr F observes:

    [6] In recent affidavit material Ms Camber disputes that her ex-boyfriend Mr D was a dangerous ice user, or that she ever exposed the child to domestic violence or drug use. She acknowledges conflict with her mother over that relationship, which she claims to have ended in December 2017. She asserts that the mother-daughter relationship is now harmonious, and that FACS involvement ( in response to ROSH report by the father) has not ended, and that her drug tests reveal steadily declining use of marijuana.

    [7] In her recent affidavits Ms H Camber disputes the father’s version of events in November 2017 and specifically denies having asked him to take the child. She admits informing Mr Mabens that Mr D admitted to using illicit drugs in the past but denies telling him that she was concerned Mr D posed a danger to the child due to his use of ice.  She claims that Mr Mabens has tried to sow discord by denigrating maternal kin and inappropriately informing X about this dispute. Furthermore, that after he was returned 21/12/17 X showed reluctance to attend subsequent visits and expressed fear his father would snatch him from school again. 

13. At the time of the second Family Report interviews, X’s parenting arrangements were in accordance with Orders made 26 March 2018.  These Orders provided for X to live with the Maternal Grandmother, to spend time with his mother as agreed between the Mother and Maternal Grandmother but supervised by the latter, and to spend time with his father each alternate weekend from after school on Friday to before school on Monday, and each alternate Tuesday night from after school to before school on Wednesday, as well as alternate weeks during the school holidays.

14. The Father’s proposal had changed, however.  He now sought sole parental responsibility and residence, with X spending time with the Maternal Grandmother on alternate weekends and half the school holidays, and the Mother’s time coinciding with this, but being strictly under supervision of the Maternal Grandmother.  At the time the Mother’s proposal was that X live with her, and spend time with the Father alternating weekends and half the school holidays.  Moreover the Mother proposed equal shared parental responsibility.

15. Dr F noted that at the time of the interviews the Mother stated that she lived with the Maternal Grandmother, who was her carer.  She reported that her mood is stabilised by antidepressants and that her use of marijuana had greatly reduced.  In this regard, the Court notes that the Mother had indeed presented a drug test in February 2018 which was positive for cannabis, but at a significantly reduced level to her drug test of January 2018.  However, the Mother had failed to produce drug tests on 5 February or 14 March.  The Court observes that, technically, the Mother was correct in the sense that the two drug tests she actually undertook did show a reduction in the level of cannabis indicator in her test.  Of course, the Court would need to take into account the failure to produce other drug tests, as well as the most recent drug test she undertook on 15 March 2019, suggesting quite a high level of cannabis use. 

16. The Mother denied use of other drugs.  In addition, she denied an ongoing association with Mr D as at 9 April 2018.

17. Dr F noted that the Mother continued to raise no child safety concerns about the Father and acknowledged that whilst parental communication was poor, the adults seemed to be able to insulate X from their conflict when they met in his presence.

18. At paragraph 19 Dr F records:

    Ms Camber said she hoped to eventually assume full-time care of X as a single mother, but realised she was not currently in a position to convince the Court of her parenting capacity so was content to remain living with her mother pro tem. Her aspirations seemed unrealistic and were not well supported by action plans which she could describe in specific detail. As on the previous occasion on which she was assessed, Ms Camber struck me as psychologically immature with an unresolved state of mind about attachments in general, and the responsibilities of parenthood in particular. My opinion remains unchanged that she is deficient in self-efficacy and self-direction.

19. In relation to the Maternal Grandmother, Dr F noted at paragraph 22 to 24 as follows:

    [22] Mrs Camber repeated her insistence that both she and the mother want the father to be part of X’s life and she pledged her ongoing support to facilitate contact.  However, she expressed great disappointment that during 2017 “Mr Mabens did not step up” – claiming that she had wanted to gradually increase the child’s time with the father (especially school holiday time) but that the father had been unreliable about contact – cancelling at the last minute on at least five occasions and returning the child early for his own convenience.  She indicated that although devoted to X she would appreciate predictable breaks as she provides most of the child care and deals with major issues or problems which arise.  She says that Ms Camber can follow rules and instructions but cannot be relied upon to initiate problem-solving actions off her own bat.

    [23] Ms Camber contends that Mr Mabens behaved deceptively in having her sign a Centrelink form which she believed was for him to obtain benefits for the time X spends with him, but which he (and Ms Camber) later construed as her “signing over X.” She denies that she instigated the father’s actions in withholding the child in November 2017. She claims the father was motivated by on-going conflict with Ms Camber, particularly on the issue of re-partnering. She did not deny the validity of concerns about Mr D but insisted that she did not allow Mr D unfettered access to the child.

    [24] Ms H Camber contends that Ms Camber does not socialise outside the home except when the child visits his father.  She repeated her opinion that some of her daughter’s problems with emotional self-control may reflect undiagnosed autism. Overall, she presented as child-focused, although her comments suggest she may have difficulty prioritising X’s needs over Ms Camber’s at times. For example, saying how much Ms Camber “needed” X to be near her even though she was not currently capable of establishing an independent household and caring for him as a single mother.

20. The Court observes that one of the issues that arises from the cross-examination of the Mother and Maternal Grandmother is that identified by Dr F at paragraph 24, i.e., whether the Maternal Grandmother could prioritise X’s needs over that of the Mother. 

21. In relation to the Father, Dr F observed as follows:

    [26] Mr Mabens confirmed that he was now asking for a change of residence for the child. His proposal requires that X change schools since Suburb P is more than 1 hour from Suburb L PS. He contends this change is necessary for two main reasons. Firstly, that Ms Camber is incapable of caring for the child herself due to her mental health problems, drug abuse and association with violent drug-abusing men like Mr D. Secondly, that Ms H Camber is finding the full-time care of the child too burdensome to sustain long-term, and therefore sometimes fails to supervise the mother’s time with the child (for example, when she goes shopping). He claims that Ms H Camber vacillates between feeling so overwhelmed by her responsibilities she suggests he should assume care for X and undermining his time with X.

    [27] Mr Mabens still insists that Ms Camber was  using ice in 2017 – noting that she was very thin and that although her skin was now clear she had previously had meth mites. Mr Mabens doubts that Ms Camber can stop smoking marijuana given her long-term dependence. He also repeated his claim that Ms H Camber had feared death threats made by Ms Camber.

    [28] For reasons stated at the previous interview and in documents before the Court, Mr Mabens adheres to his claim that the child is unsafe in the unsupervised care of the mother. He denied any child safety concerns while the maternal grandmother was present, but raised some issues of marginal neglect, including medical neglect due to the grandmothers alleged dislike of medication.

    [29] Mr Mabens justified withholding of the child in November 2017 in terms of child protection, as set out in his recent affidavits. He seemed blithely unaware that for a four -year old child a sudden, enforced separation/disruption might have undermined his attachment security with his caregivers – reducing his faith in their predictability, power to protect him and kindly intentions. He claims X was not disturbed by the lack of contact with his mother and maternal grandmother and in fact was distressed to be returned to them. Mr Mabens did not seem to able to imagine other explanations for the child’s distress about the transition on return, except that he feared his maternal kin. This struck me as imperceptive. He was not looking at the situation from a child’s eye view.

22. The issue of the Father’s lack of child focus was, according to Dr F, further exemplified in his insistence on care arrangements that was based on a sense of what was fair and convenient to him, rather than what was best for X.

23. The observations of X interacting with his father, mother and maternal grandmother indicated that X was at ease with each adult, and managed the transitions calmly and cooperatively.

24. At paragraph 39, Dr F records that she was aware of certain information contained in documents produced on subpoena:

    GP records show that 2014-15 the mother reported reliance on her own mother to parent X and admitted dependence on pot smoking. On 4/9/17 the mother reported her decision to let the child live with his father as she was not coping and refused a referral to counselling for her depression. On 10/1/18 the GP referred Ms Camber for treatment with a MHCP noting a history of haemochromatosis, intellectual disability, PND in 2013, Anxiety and Depression. Dr J, clinical psychiatrist wrote to the GP 18//1/18 reported Ms Camber's Extremely High DASS21 scores for depression& anxiety and High scores for stress, that Ms Camber smoked 10 cones per day, refused to consider insight and lacked insight into her problem. Dr J queried the effectiveness of the prescribed antidepressant.

25. Dr F’s evaluation commences from paragraph 40.  She noted that X had trusting, loving relationships with both sides of his family, and that this was something important, and beneficial to him, and which should be maintained.  She could not discern immediate risk of harm in the care of the Maternal Grandmother.  She was of the view that the Maternal Grandmother was X’s primary attachment.  She was concerned that the Maternal Grandmother could become;

    … worn out juggling her competing role obligations as a mother and as a grandmother, and that her ability to prioritise her grandson’s welfare over her daughter’s needs might falter under stress (Paragraph 41).

1. Dr F remained concerned about the Mother, noting that she was “.. not stress hardy and lacks good social judgment, as evinced by her association with troubled, drug abusing men.” (Paragraph 42).

2. At paragraph 43, Dr F opined that even if the Mother became drug abstinent, this would not address any deficits in her parenting capacity which arose primarily from intrinsic characteristics (e.g., maladaptive personality traits, undiagnosed disorders) or unresolved trauma. 

3. At paragraph 44 she noted that there was nothing to suggest that X would be at immediate risk of harm in the care of his father, who seems very fond of his son.  However, she was concerned that the father’s parenting proposal was not rationally child focused. 

4. At paragraph 45 and 46 she states:

   However, Mr Mabens did not seem to have thoughtfully considered the impact on the child of a such a sudden separation from his primary caregiver, familiar surroundings and predictable routines. Equally. he minimised the impact of changing schools on X. Additionally, as on the former occasion, it seemed to me that Mr Mabens may underestimate the difficulty of wisely balancing the competing care needs of an epileptic partner, a young child and his own social needs.  This could be very challenging for him, given that he has never assumed the responsibilities of parenting long-term (including the parental obligation to maintain the child financially, according to the maternal grandmother). Ms G states her willingness to assist him, but her social history suggests she would be emotionally needy and thus friable under stress.

   A change of residence would not be in X’s best interests given the father’s competing care responsibilities. Child welfare risks associated with the mother’s (alleged) recreational drug use, emotional dysregulation and poor social judgement seem manageable if mother and son live with the maternal grandmother who makes all the parenting decisions. It was previously recommended that the best safeguard for X may be for the maternal grandmother to join proceedings and share parental responsibility with the parents. This may not be feasible given that the distrust and miscommunication between the father and grandmother appears to have worsened 2017-18. Each of them asserts firmly that the other has behaved deceptively and manipulatively.

5. Ultimately, Dr F recommended that no immediate need for change of residence had emerged from the material before her.  X could continue to live with his maternal grandmother who should assume responsibility for making all day-to-day parenting decisions.  The Father should spend time with X from after school on Friday to before school on Monday.  The Mother should continue to be supported, but her time should otherwise be at the Maternal Grandmother’s discretion.  Specifically, the recommendation in this regard is found at paragraph 56:

   The mother’s time with X should occur at the discretion of the grandmother but Ms Camber should be restrained by injunction from taking the child for sleepovers away from home unless accompanied by the grandmother, and from bringing the child into contact with Mr D, or any romantic partner of less than two year’s standing, or with any of her associates of whom the maternal grandmother disapproves.

6. Paragraph 57 of Dr F Report records that if X’s long-term placement with the Maternal Grandmother should ever become unsatisfactory, then the Father is to be preferred as the residential parent. 

7. Dr F was cross-examined on the final day of the hearing.  By then she had been provided with the affidavit evidence that she had not seen, documents that have been produced on subpoena and information about the medical appointments that X had been involved in.

8. Counsel for the Independent Children’s Lawyer sought to confirm the assumptions on which Dr F had made her recommendations.  She confirmed that each of the following assumptions informed her recommendations: that there was no significant risk of harm to X in the maternal grandmother’s care; that there was a risk of harm to X from his mother; there was a risk of harm to X if he were to receive inadequate medical care; she was of the view that the father may struggle to meet the needs of both his son, and his partner; the father demonstrated lack of child focus when he retained X in November 2017; the maternal grandmother was X’s primary caregiver and primary attachment figure.

9. Dr F confirmed that if the evidence before the court was inconsistent with the assumptions that she had made, then the court would be in a better position to make the necessary risk assessment and decision in the best interests of X.  She emphasised that safety should be prioritised, followed by attachment issues, and then any other relevant factors pertaining to X.  She explained that whilst she had ruled out the mother as an option for being able to adequately provide care for X, the same did not apply to the father.  She cautioned about placing any significant weight on any expression the views attributed to X.

10. The mothers drug use was a potentially significant issue for X, according to Dr F.  Her drug use was a symptom of her maladjustment as a parent, and thus X was already adversely affected by it.  If X lives in the same household as his mother, who Dr F described as a psychologically narcissistic person, the extent of any impact on X would depend on his maternal grandmother’s protective capacity.

11. The change to the Father’s care would be, according to Dr F, distressing because of the change to home, school, friends and community.  This would be a significant, distressing adjustment for X but not necessarily unbearable, if the court determined that it was necessary.

12. Wherever X lives he would need to have frequent contact and communication with the other significant adults in his life.  Because of the level of conflict in this case, transitions between households should be, so far as possible, made to coincide with school.  If the court decided to place X in his father’s care, there would be no point in a transition period-it should just happen.

13. Counsel for the maternal grandmother provided Dr F with X’s school reports for 2018, all of which indicated that he was progressing normally and was well adjusted.  Indeed, Dr F observed that the school reports were not of a child who is neglected or maladjusted.

14. Counsel directed Dr F’s attention to documents that had been produced on subpoena in relation to the father’s partners health.  In particular, there was an email dated 9 October 2018 from the father’s partners mother, to her treating specialist, in which she wrote:

    “Ms G’s seizures are out of control, averaging five per day and dislocating her shoulder 2 x day.  She is in so much pain she can hardly move but reluctant to go to the hospital because of triggers and staff etc. there is often absolutely no warning, no trigger and the seizures are at least 30 seconds with another one while she’s coming out of the first one.  She was just sitting watching TV eating cheese and crackers on Sunday and was lucky I was there because she had a mouth full of food….” 

15. Dr F agreed that this was an alarming description of the father’s partners experience with her illness. It would be most disconcerting for X to witness this. X needs parents who are available to look after him, can prioritise his care, and are able to look after themselves.  Dr F was concerned that the father’s partner had a greatly diminished ability to be a resource to look after, or assist in the care of, X.  Even if it was the case that X has been instructed on what to do if his father’s partner had a seizure, Dr F thought this was too much pressure to place on a young boy.

16. The father cross-examined Dr F.  He suggested to her that his partners health was, in fact, much better.  Dr F explained that she would be less concerned, if this were correct.

17. There is nothing in the cross-examination of Dr F that either caused her, or the court, to reconsider the recommendations she made.  There were obvious factual issues that Dr F quite properly left to the court to consider, in terms of her report recommendations.  As it turns out, the Court accepts Dr F’s evidence, her report, and the recommendations made.

Is there a risk of harm to X in the care of either his parents or maternal grandmother?

1. The first part of the Father’s case about risk of harm to X relates to the Mother and in particular her drug use and propensity to be involved in relationships with men who are inappropriate and present a danger to both X and herself.  This risk must be tempered by the reality of the proposals before the Court.  On none of the proposals of the Mother or Maternal Grandmother was the Mother’s time to be unsupervised.

2. One of the risks identified by the Father relates to the Mother’s drug abuse.  He is convinced that she is using more than the marijuana that she concedes she is currently using.  Specifically, his concerns were that the Mother was using ice at a period in the past, and his belief was based on her physical appearance.  It is not possible, however, for the Court to find that the Mother has used ice in the past, or continues to use it.  Moreover, the Court is not prepared to use any adverse inference drawn against the Mother, relating to her non-compliance with drug testing orders, to find, or infer, that there is a risk of the Mother using ice.  That would be an unreasonable inference to maintain, in all the circumstances of the evidence of this case.  However, by the Mother’s own admission she continues to use marijuana, and the adverse inference that the Court is prepared to draw against the Mother for not strictly complying with drug tests is that she uses more marijuana, and more frequently, than she is prepared to concede.  In the circumstances, therefore, it cannot possibly be in X’s bests interests that he either live with his mother, or that, somehow, she be permitted to have unsupervised time with him. 

3. Dr F certainly recognised the Father’s concerns about the Mother’s drug use and, for all practical purposes, confirmed them insofar as it related to marijuana.  Dr F was also concerned about the risk of relapse into drug use for the Mother, a concern that can only suggest that she was concerned about the Mother using increasing amounts of marijuana, or perhaps relapsing into stronger drugs.  Both scenarios are possible, the marijuana scenario is more likely than for other drugs.  The Maternal Grandmother expressed concerns about the Mother’s use of marijuana.  In the circumstances, the Father’s concerns about the Mother’s use of marijuana is established by the totality of the evidence.  That does not, of itself, lead to a conclusion that X should be living with his father. 

4. The Father raised generalised concerns about the Mother’s mental health, but again none of this leads to any finding of independent risk relating to X in circumstances where X is principally cared for by the Maternal Grandmother, and a scenario of living with his mother, independently of the Maternal Grandmother, is rendered impossible due to the Mother’s continued use of marijuana. 

5. The Father raises concerns about the Mother’s inappropriate relationships, that expose X, and indeed herself, to the risk of harm.  The evidence about Mr D is a good example of this.  Even the Mother acknowledged in examination that at the time of the relationship with Mr D she did not see the negative impact of this on X, even in the face of her own mother’s clear opposition to it.  The Mother acknowledged in cross-examination that there were times when X came over to the house where she lived with Mr D, in December 2017.  She accepted that there was an incident involving an argument between the two of them, and dogs, which resulted in the Maternal Grandmother coming around to collect X at the Mother’s request.  The Mother accepted that, at the very least, Mr D had intimidated her.  It is common ground that there was an AVO against Mr D, made on a final basis for two years, that protected the Mother, Maternal Grandmother, and X.

6. This apparently did not prevent the Mother reigniting what she herself described in cross-examination as a friendship with him, during the period of the AVO.

7. It should be noted that in cross-examination the Mother insisted that she never left X alone with Mr D.  The Court is prepared to give the Mother the benefit of the doubt in this regard.  Oddly, however, when she was asked whether she and Mr D went camping with X in 2018, indeed whether she had ever been camping with X and Mr D, her response was that she did not recall.  The response was unconvincing.  The Court does not accept the Mother’s evidence in this regard.  It is more likely than not that in 2017 during the relationship between the Mother and Mr D, and possibly even in 2018 after the relationship had formally ended, that the Mother, X, and Mr D had in fact spent time together.  It is quite frankly inconceivable that the Mother, knowing of the significance of her relationship with Mr D in this case, would respond in answer to a question about when was the last time she saw Mr D, that she did not know.

8. In short, the Father’s concern about the Mother entering into relationships that are not only inappropriate, but present a risk to X, is well-founded and established by the evidence.  But that does not, of itself, mean that X should live with the Father.  The risk in question could be managed, for example, by X continuing to live with the Maternal Grandmother, and only spending time with his mother in the Maternal Grandmother’s presence.

9. The focus really turns, therefore, to the most difficult issue in this case, i.e., assessing whether a potential risk of harm to X comes from the Maternal Grandmother.  This was certainly part of the Father’s case.  Dr F expressed concerns about the Maternal Grandmother’s ability to consistently prioritise X’s interests over that of either herself, or the Mother.  The focus, therefore, turns to the Maternal Grandmother’s actions, or failure to act.

10. Considerable attention at the Hearing was focused on events in August 2017 when X went into the Father’s care.  The Father’s case is that on or about 16 August 2017, the Maternal Grandmother placed X into his care.  He contends that she then did not see X for over a month, because it was unsafe.  Then in October 2017, when arrangements had been made for the Maternal Grandmother to spend time with X, she failed to return him.  However, on 25 October 2017 X was again returned into his father’s care because, for all practical purposes, it was unsafe for X to remain with the Maternal Grandmother, and the Mother.  Then, on the weekend of 3 November 2017, during an arranged weekend visit with the Maternal Grandmother, she once again retained X.  The Father did not see X until 22 November 2017, when he attended his day care, collected and retained him.  On 20 December 2017 Judge Sexton joined the Maternal Grandmother to the proceedings, ordered that X live with her, and for X to be therefore returned.  The above is a brief outline of the relevant events.  All of these events occurred in the context of the then prevailing order that X live with his mother, and spend time with his father.

11. The Father’s detailed evidence about these events is set out at paragraphs 44 to 60 of his Trial Affidavit.  The Maternal Grandmother’s evidence about these events are contained in her Affidavit affirmed 29 November 2018 and filed 4 December 2018 at paragraphs 31 to 55.  The versions of the event could not be more different.  The Father’s case is, in short, that the Maternal Grandmother placed X in his care for safety reasons.  The Maternal Grandmother’s evidence refers to no safety reasons, and creates the impression that all that occurred was that the Father unilaterally retained X after a scheduled contact visit, placing little context around this.  Both the Father and Maternal Grandmother were extensively cross-examined about these alleged events.  The Maternal Grandmother’s Counsel focused his cross-examination on the Centrelink application submitted by the Father during this period.  A number of rather sweeping propositions were put to the Father about his evidence, including, for example, that his entire Affidavit was a series of lies, but there was very little cross-examination about the Father’s specific assertions about what was said, and done, as between the Maternal Grandmother and himself.  Whilst the Court will find that the Father’s evidence about the Centrelink application was unflattering, to say the least, in cross-examination the Father could not be shaken on his fundamental premise:  that his actions in retaining X were based on his safety.  Indeed, that he believed the X’s life was in danger at the time and that he merely acted in accordance with what the Maternal Grandmother told him to do.  The Father’s evidence about these events survived cross-examination unscathed.

12. By contrast, the cross-examination of the Maternal Grandmother presented a very different picture to her sworn evidence.  She denied the central element in the Father’s evidence that she, in effect, asked him to care for X.  At paragraph 44 of the Father’s Trial Affidavit, he deposes that when X came into his care, the Maternal Grandmother handed X over to him and they had a conversation, in which she said certain things.

13. At paragraph 44(a) he contends that the Maternal Grandmother said: “Ms Camber hasn’t been home in a fortnight.”  The Maternal Grandmother’s evidence in cross-examination was that she did not recall saying that, and that whilst she may not have seen the Mother for a fortnight, the Mother continued to live with her.  The Court finds that the Maternal Grandmother’s evidence is, in effect, consistent with what the Father asserts. 

14. At paragraph 44(b) the Father asserts that the Maternal Grandmother said: “Ms Camber has only been seeing me about once a fortnight anyway.”  The Maternal Grandmother denied this.  The Maternal Grandmother also denied that, in reality, the Mother was not at home on a regular basis.  The Mother’s extraordinarily minimalist evidence about these events, indeed about her relationship with Mr D, does not provide any clarity on the events.  What is known from the Maternal Grandmother’s evidence is that on 17 September 2017 the Mother had told her that she was going to live with Mr D, thus strongly suggesting that the relationship had already commenced before then, indeed possibly well before then, and that she was spending time with him.  In cross-examination of the Maternal Grandmother, when it was suggested to her that the Mother had moved out of the home by September 2017, the Maternal Grandmother’s response was to the effect that the Mother had removed her personal items out of the home in September 2017.  Even this evidence allows the Court to infer that the Mother was not spending much time at home.  Indeed, the Maternal Grandmother’s refusal to accept that she had, in fact, in September 2017, told the Father that the Mother had moved out merely creates the impression that she was seeking to avoid characterising the event for what it really was. 

15. When the totality of the evidence is considered, including evidence to be discussed below, the Court concludes that it is more likely than not that the Maternal Grandmother did in fact tell the Father that Ms Camber had only been seeing her about once a fortnight anyway.

16. At paragraph 44(c) the Father deposes that the Maternal Grandmother told him, at the time X came into his care, that: 

    Tell X that he is now living with you and the situation has changed.  You can send X for fortnightly visits with me and Mr Q.  Ms Camber is not going to see X because it is unsafe.

17. The Maternal Grandmother denied this.  For reasons that will become apparent below, she was unconvincing in her denial.  What in fact occurred was that fortnightly visits did commence, after a period of time, a matter consistent with the Father’s version of what the Maternal Grandmother said.  In fact, moreover, the Maternal Grandmother’s own evidence confirmed that she believed it was unsafe for X if he were to be in the Mother’s care, whilst she was in a relationship with Mr D. 

1. At paragraph 44(d) the Father contends that the Maternal Grandmother said to him: “Ms Camber said she was going to murder me.”  The Maternal Grandmother denied this.  For reasons that will become apparent, the Court treats the Maternal Grandmother’s denial as unconvincing. 

2. The Maternal Grandmother was cross-examined about any concerns that she had about the Mother, at about that time, with the time focusing on the time the Mother moved in with Mr D.  She agreed that she believed that the Mother was using drugs at the time.  She accepted the proposition that Mr D was not a good person for the Mother to move in with, citing that they had not been together for long, and her belief that the Mother was depressed.  When asked about whether she had any concerns about Mr D she explained, to the effect, that she did not have concerns about the Mother socialising with him.  He had confessed to previous things he had done, and he was working on his life.  Nonetheless, whilst believing it was better for the Mother to continue to live at home, she did not think there was a reason to be concerned about X in the Mother’s care. 

3. Indeed, in the Maternal Grandmother’s cross-examination she seemed more focused on the loss of the Mother’s housing commission accommodation, if the Mother moved in with Mr D, rather than any concerns about X.  She confirmed in cross-examination that she did not believe the Mother would put X in danger, even though the Mother was depressed, and even though she believed it was not a sensible decision for the Mother to move in with Mr D.

4. The Maternal Grandmother’s ambivalence about the Mother’s relationship with Mr D, and the potential impact on X, stands in stark contrast to the Father’s evidence about the circumstances about which X came into his care on 16 August 2017. 

5. At paragraph 45 in the Father’s Affidavit, he refers to the Maternal Grandmother signing a Centrelink document confirming that X was live with him.  The Father was extensively cross-examined about this document.  There was an element of opportunism in relation to the Father’s attempt to obtain Centrelink benefits relating to X.  From his perspective, no doubt, there were very practical issues about having money to meet X’s care.  The significance of the Centrelink application from the Father’s perspective was that it corroborated his assertion that the Maternal Grandmother agreed that X should go into his care.  The document, which was in evidence, clearly has what appears to be the signature of both the Paternal Grandmother, and the Mother on it.

6. The Court has a number of doubts about this document.  It does appear to have been signed, as the Father asserts, on or about 16 August 2017.  The document certainly did not achieve the Father’s stated purpose, because the Maternal Grandmother subsequently cancelled it.  It is significant to note that the Maternal Grandmother did not deny signing the document.  Whether it was signed on 16 August 2017, or at a later date, she signed the document which is corroborative of the Father’s assertion that the Maternal Grandmother consented to X going into his care.

7. At paragraph 56 of the Father’s Trial Affidavit, he asserts that the Maternal Grandmother did not see X for over one month.  This is consistent with the Maternal Grandmother’s own evidence.  He further asserts that the reason why this did not occur was because the Maternal Grandmother kept saying to him words to the effect:  “It’s unsafe for X to come back here.  Ms Camber is unstable.”  The Maternal Grandmother denied this. 

8. At paragraph 47, the Father deposes that after X came into his care he arranged for X to have a school orientation at City C Public School, which he did.  He says that he kept the Maternal Grandmother aware of those developments.  The Maternal Grandmother initially did not deny any discussions with the Father about enrolling X in school.  The denial was, of course, a necessary consequence of her version of the events, i.e., that she had never consented, or facilitated, X going into the Father’s care.  The difficulty with the Maternal Grandmother’s evidence in this regard is that it is inconsistent with a text message she sent to the Father on Monday 11 September, in which she enquired about whether he had made progress on “your school application and living arrangements for you and X.”  The Maternal Grandmother’s text message to the Father is plainly inconsistent with her assertions of the evidence.

9. The Maternal Grandmother was cross-examined about discussions she had with the Father about X moving into his care.  She insisted that she was not open to this, but was merely wanting the Father to step up more.  When she was taken to her text message to the Father in September which said:  “Just follow your feelings from your heart and do what you feel best serves love and protection for X…?” she denied that this was consistent with discussions with the Father for X to live with him.  The Maternal Grandmother’s denial was unconvincing in the circumstances.

10. In cross-examination, the Maternal Grandmother ultimately conceded that she did have some concerns about X’s safety in the Mother’s care.  She accepted that the use of the word “protection” in her text message reflected this.  Indeed, she accepted that she was talking about protection from X’s mother.  She accepted that she was concerned about the Mother’s living arrangements.

11. The Father deposes at paragraphs 48 and 49 of his Trial Affidavit that in about mid-October 2017 he arranged with the Maternal Grandmother for X to spend time with her for two nights.  He contends that she then failed to return X to him at the nominated time.  The Maternal Grandmother disputed the Father’s contentions.  She insisted X at all times continued to live with her.  Having regard to the evidence set out above, the Maternal Grandmother’s contention was inherently implausible.  However, the Maternal Grandmother’s text message to X on Thursday 19 October at 8.47 am is inherently inconsistent with her proposition that X had always been living with her.  The Maternal Grandmother’s message refers to:  “.. pick up for the weekend.”.  It is more likely than not that, at this time, X was in fact living with his father, and that the weekend in question was in fact, as the Father suggests, a visit with his maternal grandmother.  When the proposition was put to the Maternal Grandmother that what she had done was, in effect, to fail to return X to his father she insisted, notwithstanding the evidence above, that X was living with her. 

12. At paragraph 50 of the Father’s Trial Affidavit he states:

    “On 25 October 2017 I received a phone call from Ms H Camber, who said, “Ms Camber and Mr D (Ms Camber’s boyfriend) are fighting with us.  We are scared of him.  Can you meet me at Suburb M McDonalds’s at 6 pm?”  I said, “Yes”.  At Suburb M McDonalds’s that evening Ms H Camber passed X to me, along with his clothes, his Wii console, and a set of sheets.  She also offered a television which I declined.  Ms H Camber said to the words to the effect of “I don’t know when he will be able to come back to us.”  When I got home that evening X said to me, “Mummy was going to follow us.”.  He looked very scared when he made that statement.”

13. The Maternal Grandmother was cross-examined about this.  She agreed that she had in fact met the Father as alleged at McDonald’s.  All she could say, however, was that she did not recall if she said those words.  When asked whether she was scared of Mr D in October 2017, she replied words to the effect of “no”, and that she was never intimidated by him.  She accepted, however, that she recently sought, indeed obtained, an AVO against him.  The Maternal Grandmother agreed that she handed over some of X’s clothes, namely pyjamas, as well as his Wii console.  The Maternal Grandmother insisted that all of this was about facilitating more time with the Father over the school holidays, and that this was not about him going into the Father’s care again.  The Court finds the Maternal Grandmother’s evidence about this incident unconvincing.

14. The Father deposes at paragraph 54 about a telephone conversation he had with the Maternal Grandmother.  She was extensively cross-examined about this.  She agreed that in the conversation she said that Mr D had told her that he was an ice user and is under drug and alcohol rehabilitation.  She agreed that she told the Father that the Mother was a marijuana user.  The Maternal Grandmother maintained, however, that the Father already knew this.  The Maternal Grandmother agreed that she had concerns about the amount of time that X was spending with his mother, as opposed to being in her care.  She went on to say words to the effect that the Mother had always struggled so she had always had concerns, but the Mother was always there.  The Maternal Grandmother agreed that she may have said that she really did not want X staying with the Mother and Mr D.  She agreed that she told the Father that she said she would contact the Police to check on him because she had concerns.  But she also agreed she told the Father that, as a parent, she needed to tell him because she did not think the Mother would. 

15. Finally, it was put to her that all of her concessions about this conversation were consistent with what the Father was saying about X being in his care because the concerns the Maternal Grandmother had in relation to the Mother’s parenting capacity.  The Maternal Grandmother’s reply was to the effect that that was not to that degree.

16. The Court finds that the Maternal Grandmother’s recollection of the events in question was, more likely than not, less reliable than that of the Father.  When the totality of the evidence is taken into account, there was every reason at that time for the Maternal Grandmother to be concerned about X’s safety in the Mother’s care, at a time when the only Orders provided for X to live with the Mother, and the Maternal Grandmother had no standing at law.  It is more likely than not that the Father’s version of these events is correct.  He retained X because of concerns for his safety in the Mother’s care and, inferentially, his concerns that the Maternal Grandmother was not in a position to protect X.

17. From the Court’s perspective, what is troubling is that the Maternal Grandmother’s alternative version of these critical events strongly suggest that she was minimising the risk to X and seeking, in effect, to cover up an event that objectively reflects a risky period in X’s life when, despite all the upheaval, he was probably safer in his father’s care, than in his mother’s.  The Maternal Grandmother was not just minimising the risk to X from Mr D, but also minimalising the risk to X from his own mother who she acknowledged had mental health problems, as well as was using marijuana.  The Maternal Grandmother acknowledged that she had concerns about Mr D’s ice use.  In short, the Maternal Grandmother was aware of the risk of harm to X, but subsequently minimised that risk, possibly because she understood the potential damage to her case if the Father’s version of these events were to be accepted.

18. In assessing the risk of harm for X from either his mother, or maternal grandmother, a number of matters need to be recognised.  On any scenario, it is highly likely that this Court would share some aspect of parental responsibility with the Maternal Grandmother.  The orders that both the Mother and Maternal Grandmother support, provide for the Mother’s time to be supervised, and for the Mother’s former partner, Mr D to be excluded.  The concerning events discussed above took place at a time when the Maternal Grandmother was completely vulnerable in a legal sense as she had no orders in relation to X.  Two years have passed since the events in question.  There is far less evidence now to link the Mother to Mr D.  There have been no recent issues to suggest actual harm to X such as exposure to dangerous situations other than, of course, high parental conflict. 

19. It is of concern to the Court that the Maternal Grandmother, through her Counsel, seemed to have some reservations about accepting the requirement for the Mother’s time to be at all times supervised by the Maternal Grandmother.  Her Counsel submitted, however, that there was no evidence to suggest that the Maternal Grandmother had failed to protect X so far.  Counsel observed that that there were issues of practicality of an order for supervised time, in the long-term, particularly if the Maternal Grandmother was not empowered to determine when the Mother’s time could become unsupervised.  This Court responds to this submission by stating that if the Court does order X to live with his grandmother, and for his grandmother to supervise his time with his mother, it is not for the Grandmother to decide when and if supervision should be changed in any manner.  If the Grandmother or Mother’s circumstances change, the matter should be brought back before the Court for a fresh assessment to be made as to the arrangements in the best interests of X having regard to the evidence before the Court.  If the Grandmother was so concerned about the practicality of long term supervision, she should not be making precisely that proposal.

    What are the risks of harm to X, in his father’s care?

20. The Court acknowledges that whilst a number of risk issues were raised in this case, none of them are of the magnitude that has been discussed above.

21. Dr F was, appropriately, concerned about the Father’s partners illness and the extent to which it could undermine the Father’s capacity to meet X’s day to day needs.  Whilst the medical evidence relating to the Father’s partner was of concern, it was not necessarily current.  When Ms G, the Father’s partner gave evidence, she impressed the Court by the frankness with which she discussed her epilepsy, and its impact on her, as well as the insight she demonstrated about how this might affect X.  Her epilepsy causes seizures, which results in loss of control of her body, sometimes falling to the ground, which results in a dislocated shoulder.  The episodes could last up to 30 seconds.  She acknowledged that if it happens to her, she needs to be rolled on her side.  She sometimes has seizures whilst alone at home.  They do not come on without warning.  There are triggers well-known to her.  She recovers from the seizures very quickly.  She has explained to X what a seizure is and that if he sees her have one, he needs to get his father to come and help her.  The Court found Ms G’s account of her explanation to X of what is at a seizure, and what to do, to be very child focused and sensitive.  She was insistent that he has never been alone, and will never be alone, in her presence when she has a seizure.

22. Ms G also appears to experience some mental health issues.  There appears to have been a self-harm attempt.  She explained that, at that time, she was upset, irrational, and the medication dosage she was on had made her depressed and anxious.  She denied that she continues to suffer from anxiety, depression, or post-traumatic stress disorder.

23. The Court’s impression of the relationship between the Father and Ms G is that it is a strong, loving one.  Her relationship with X is also strong.  Any condition experienced by Ms G presents no direct risk of harm to X, but indirectly it will stretch the Father’s resources in being able to care for X on a full-time basis.

24. In closing submissions Counsel for the Independent Children’s Lawyer expressed concern about the Father’s lack of child focus particularly in terms of the Father retaining X contrary to Court orders.  For present purposes, the Court is prepared to treat this as a risk of emotional harm.  Both the Mother, and Maternal Grandmother, were very critical of the Father for unilaterally retaining X on three occasions.

25. The first two occasions have, in fact, already been discussed above. The Father acted protectively, and appropriately, in withholding X at a time two years ago, when his mother’s life was particularly chaotic and she presented such a risk of harm to X that even the Maternal Grandmother thought it was better that he be in his father’s care. The third, and most recent occasion, is much more problematic. In short, what happened is that during an adjournment of the actual hearing of this matter, the Father once again unilaterally retained X thus disrupting his schooling and his time and his relationship with his mother and grandmother. The matter returned before me on an urgent interim basis and I delivered ex tempore reasons for judgment which were then published as [2019] FCCA 1962. I had been asked to vary the interim orders in place as a result of the Father’s actions. I declined to do so but made a number of other orders. The Father had already returned X by the time the matter came back before the Court. With respect to him, even he seemed to have some understanding that the reasons for retaining X were not strong ones.

26. As I explained in my reasons for judgement, the Father’s act in retaining X needed to be understood in the context of the many perplexing issues in this case including: the inability of the parents and the Grandmother to constructively communicate in relation to issues about X, even urgent issues; the palpable mistrust that each of the parties have for each other; the lack of discernment by any of the parents or the Grandmother about what X may be telling them, and how he might experience the palpable conflict and mistrust between the three most important people in his life; the Father’s seeming unwillingness or inability to abide with orders of this Court and his total obliviousness to the stress that this places on X; the uncoordinated and seemingly chaotic medical treatment that X experiences as between the Maternal Grandmother and the Father, and their seeming obliviousness of the stress and risk that this creates for X; the lack of consistency in X attending school, and finally the parents and grandmothers lack of understanding about diagnosis, treatment and management of X’s asthma.

27. All of these issues in fact present a risk of harm to X.  Very few of these risks are attributable solely to the father.  The evidence before the court indicates that between 13 December 2012 and 22 July 2019 X was taken to a doctor, or a hospital, for some form of medical intervention at least 36 times by either his mother, maternal grandmother or father.  From 2018, the Father and his partner became more prominent as regards these visits.  The asthma that X allegedly suffers features prominently in the records.  A close reading of the notes creates a strong impression about the distrust between the Father and Maternal Grandmother in relation to medical issues.  The Independent Children’s Lawyer was perfectly entitled to ask the Court makes a number of specific orders in relation to medical treatment, and arguably this evidence goes to the question of parental responsibility.

Meaningful relationship

1. There is no doubt that X enjoys a meaningful relationship with both his parents and his maternal grandmother.  The proposals of the Independent Children’s Lawyer, Mother and Maternal Grandmother promote this meaningful relationship.  The Father’s proposal is somewhat more problematic in this regard but, arguably, satisfies the requirement in a minimalistic sense.

Views expressed by X

1. Insofar as X has expressed any view about any matter that this Court is called upon to decide, the Court places no weight on his views.  This is consistent with Dr F’s expert evidence.  The Court believes that, in all likelihood, he is very much attuned to the high level of conflict, poor communication and high levels of mistrust between the three most important people in his life.  It is inevitable that if he has expressed a view to any of these people, that it is distorted by his awareness of these factors.

Participating in decision-making

1. The Court must consider the extent to which the parties to this case have taken or failed to take the opportunity to participate in making decisions relating to X, spending time with him or communicating with him.  It is clear that there was a period in the Mother’s life about two years ago which was so dysfunctional that she, in effect, excluded herself from being a part of decision-making in X’s life.  That was a necessary consequence of her drug use and poor relationship choice.  There have been times in X’s life when there has, in effect, been a power struggle between his grandmother and father about making decisions about him. They have argued about schools, doctors, and communication.  This has been undignified, unedifying, and not in his best interests.  The final orders made in this case will need to be prescriptive in order to avoid these issues in future.

Maintaining the child financially

1. The adults with whom X has lived have taken on the responsibility for caring his financial needs.

The likely effect of any change in X’s circumstances

1. Dr F’s evidence in this regard is compelling.  In substance, the Court believes that what she was saying was that unless it was absolutely necessary to change where X lives, goes to school, his friends and community, the Court should not change these things.  Indeed, unless the Court finds that there is a risk of harm to X in his grandmother’s care there is probably insufficient cause to place him in his father’s care, particularly given the concerns about his father’s capacity to care for him given his own partners personal circumstances.  The Court agrees with Dr F as regards the concerns expressed about the Father’s lack of insight about the impact of change for X.  This does not augur well in terms of confidence in his ability to manage change which is not otherwise absolutely necessary.

Issues of practical difficulty and expense

1. The Father and Maternal Grandmother live about 70km apart, although both in the Region E region of New South Wales.  Despite the distance, as well as the mistrust and lack of communication issues between them, they seem to have been able to navigate this issue appropriately.  It does not loom as a major issue in this case. Nonetheless, the Independent Children’s Lawyer did raise a possibility dropping the existing mid-week overnight contact on Thursday night of the alternate week, at least partly attributable to the distance issues.  Perhaps a sounder basis for doing so, however, is not so much the distance, but the proclivity of these parties for conflict.

Parental capacity

1. The Mother’s lack of capacity has been discussed at length in these reasons. The concerns raised about the Father, and Maternal Grandmother’s capacity, have also been canvassed. Despite the concerns raised about the Maternal Grandmother, she does have a long track record of successfully meeting X’s physical and emotional needs. Like the Father, she is available to care for X on a full-time basis. The physical facilities are adequate to his needs. Arguably the distractions confronting them are broadly similar: for the Maternal Grandmother she needs to be vigilant about the Mother; for the Father, he needs to be vigilant about his partner Ms G.

The maturity/sex/lifestyle and culture of X and his parents

1. Dr F correctly identified that the Mother was probably well intentioned about X, and his need to have a relationship with his father, but was psychologically immature, and not attuned to his needs.  Her lifestyle involves continued use of marijuana, despite the forensic scrutiny of this Court case, and rigorous drug testing.  It is hardly a lifestyle consistent with prioritising the needs of the child.  By contrast, Dr F found the Maternal Grandmother to be child focussed, and certainly more so than the Father.  In particular Dr F was critical of the Father making a proposal in relation to X that was not rationally child focused.  There is very little in the lifestyles of the Father and Maternal Grandmother which would contraindicate X living with, or spending substantial time with them.

Parental attitudes

1. Much of what has already been said above reflects on the attitudes of the parents, and the maternal grandmother.  The mother has been very much self-focused and absorbed in her own life.  There have been times during the period when the maternal grandmother was principally responsible for X’s care when she was concerned about her daughter’s capacity to care for him, stepped in, but perhaps but should have done so earlier.  At times the Father presented as being focused on his rights as X’s father, implicitly acting as if that he had an entitlement to care for X if the mother could not do so, and irrespective of the impact on X of asserting this right.  He also had a very dogmatic view about the nature, cause, and response to X’s medical issues, but could not see how this might adversely affect his own son.

The order least likely to lead to further litigation

1. Whatever orders the Court makes, the low trust, low communication, high conflict nature of this dispute suggests that the risk of re-litigation is actually quite high.  Whatever orders made will need to be prescriptive, leaving as little room for misinterpretation by the parties as possible.  X is only six years old.  Whilst his maternal grandmother is in good health, her capacity to provide for his needs could deteriorate as she becomes older.  There is no reason at the moment to be optimistic about the mother’s willingness or capacity to rehabilitate herself.  The father’s persistence and dogmatic approach to this litigation is another factor suggesting that re-litigation is possible.  All these matters are noted, but ultimately do not inform the outcome of this Court case.

Orders in the best interests of X

1. Having regard to the matters set out above, the Court does not believe that the risk of harm to X in his grandmothers care is an unacceptable, unmanageable one, given the consensus between the Independent Children’s Lawyer, the Mother and the Maternal Grandmother about the Mother’s time being supervised, and the exclusion of Mr D. Moreover the Father’s proposal involves both unnecessary and unacceptable change for X. In addition, the Court does have concerns about the Father’s capacity to care for X when his caring obligations for his partner can be so great at times.

2. In general terms the orders sought by the Independent Children’s Lawyer are in X’s best interest subject to the following matters;

   a)Order 8 currently proposes for X’s birthday to be shared between the Father and the Maternal Grandmother. The maternal Grandmother proposed that the birthday alternate between the Father and herself. The Court believes this to be impractical as on 5 out of every 7 years X will be at school. The order remains as proposed by the Independent Children’s Lawyer.

   b)Order 13 currently proposes for changeover to occur at the Service Station at the City C interchange. The Grandmother would prefer that it be at McDonalds at Suburb M, close to her home. There was very little evidence about this. The current arrangement is as per the Independent Children’s Lawyer’s proposal. The Court will maintain this.

   c)The Mother’s counsel raised the long term appropriateness of a week-about school holiday order as is proposed in Order 5. The consensus of the parties during closing submissions was that from the December 2021 school holidays it should become one half of all school holidays unless otherwise agreed.

   d)As mentioned in the reasons above, the Independent Children’s Lawyer’s proposal included dropping X’s mid-week time with his Father each alternate Thursday night to Friday morning. However the Independent Children’s Lawyer submitted that an extra night could be considered by the Court. Given the strength of X’s relationship with his Father there are benefits in doing so. A further benefit is that it reduces the number of changeovers between the parties and the travel for X. The Father’s time with X should commence from after school on Wednesday each alternate week, unless the parties otherwise agree.

   e)It is of interest to the Court that the Independent Children’s Lawyer proposed an order for Equal Shared Parental Responsibility where the interim order made 26 July 2019 give to the Maternal Grandmother sole parental responsibility in relation to the making of all medical decisions in relation to X. X’s medical treatment is a major point of conflict for the parties. The Court’s preference is that Orders 1 – 5 made by the Court on 29 July 2019 be made final so that this tug-of-war between the Father and the Maternal Grandmother about X’s medical treatment come to an end. Equal Shared Parental Responsibility should otherwise apply.

   f)The Court has simplified the orders for school holiday time to make it simpler for the parties and more predictable for X. The parties of course are free to agree to different arrangements.

3. The Court is otherwise satisfied that the remaining orders proposed are in the best interests of X.

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  11 December 2019

Schedule One

Aide-mémoire provided by the Independent Children’s Lawyer

SCHEDULE OF URINALYSIS TESTING

Date Requested	Party	Date Complied With	Result
Father	9/04/2015	Negative
Mother	5/06/2015	Positive for cannabis  950 ug/L
Father	25/06/2015	Negative
Orders dated 6/12/2017	Father	7/12/2017	Negative
Orders dated 6/12/2017	Mother	-	-
Request by FACS for Mother date not known	Mother	28 December 2017	Positive for Cannabis 260 ug/L
Request by FACS for Mother date not known	Mother	31/01/2018	Positive for cannabis 595 ug/L
5/02/2018	Father	09/02/2018	Negative
5/02/2018	Mother
12/02/2018 (by phone) Request by FACS for Mother	Mother	15/02/2018	Positive for cannabis 90ug/L
14/03/2018	Father	15/03/2018	Negative
14/03/2018	Mother	-	-
30/08/2018	Father	31/08/2018	Negative
30/08/2018	Mother	-	-
8/10/2018	Father	11/10/2018	Negative
8/10/2018	Mother	-	-
9/11/2018	Mother	-	-
9/11/2018	Father	-	-
14/03/2019	Mother	15/03/2019	Positive for Cannabis 494ug/L
1/05/2019	Mother	-	-

Schedule Two

Minute of Order proposed by the Independent Children’s Lawyer

1. That the Maternal Grandmother and the Father have equal shared parental responsibility for the child X born … 2012 ('the child').

2. That the child live with the Maternal Grandmother.

3. That the child spend time with the Father as follows: -

   3.1Each alternate weekend from after school Friday (or otherwise 3pm) to before school Monday (or otherwise 9am), with such time to commence on Friday 20 September 2019;

   3.2At other times as agreed between the parties;

4. During the school holidays Order 3 above is suspended.

5. During the school holidays the child is to spend time with the Father detailed as follows: -

   5.1During the December school holidays to occur in one (1) week blocks commencing detailed as follows:

   5.1.1In even numbered years in the December school holidays with the Father from the conclusion of school for a period of seven (7) days to also coincide with Christmas Day and Boxing Day, commencing in 2018 from Wednesday 19 December 2018 for a period of seven (7) days and thereafter each alternate week for seven days for the duration of the summer school holidays and continuing each even numbered year thereafter;

   5.1.2In odd numbered years in the December school holidays to commence seven days after the date from the conclusion of school and such period to coincide with Christmas Day and Boxing Day when the child will spend with the maternal grandmother for a period of seven (7) days and to then spend seven days with the Father commencing 26 December 2019 and thereafter each alternate week for a period of 7 days for the duration of the summer school holidays and continuing each odd numbered year thereafter;

   5.1.3From September 2019 for one half of each of the shorter school holidays to occur in the first week of the holidays in odd numbered years and in the second week of the holidays in even numbered years and continuing in the shorter school holidays;

6. That unless otherwise agreed by the parties in writing,  the child communicate with the Father each Tuesday and Thursday between 5pm and 6pm if not already spending time with the Father;

7. That unless otherwise agreed by the parties in writing , the child communicate with the Maternal Grandmother each Tuesday and Thursday between 5pm and 6pm if not already spending time with the Maternal Grandmother.

8. On the child's birthday the Father spend two (2) hours with the child if it falls on a school day and if it is a non-school day for a period of six (6) hours as agreed between the parties if it is not a time the Father is already spending with the child.

9. On Father's Day the grandmother's time is suspended from Saturday 4pm prior to Father's Day if it is not a weekend the child is spending with the Father.

10. If the Easter period does not fall during a school holiday period, then the child spend time with the Father detailed as follows:

    10.1From 10am Good Friday to 4pm Easter Saturday in odd numbered years; and

    10.2From 4pm Easter Saturday to 4pm Easter Sunday in even numbered years.

11. The Father's time is suspended on ANZAC Day of each year to enable the child to spend time with the maternal grandmother as agreed between the parties.

12. At all other times as agreed between the parties.

13. The Father's time with the child is suspended on Mother's Day from Saturday 4pm if it falls during a time that the child would be spending with the Father.

14. That the child spend time with the Mother at times as agreed between the Mother and Maternal Grandmother, provided always that such times are to be supervised by the Maternal Grandmother.

15. That for the purpose of changeover between the Father and the Maternal grandmother, when changeover is not at the child's school, the parties are to meet at the southbound service station at City C Interchange at the commencement of such time and at the northbound service station at City C Interchange at the conclusion of time.

16. Each party is to facilitate the child communicating with each other party by telephone on each day that the child does not spend time with that other party.

17. That the parties be restrained by injunction from: -

    17.1Denigrating the other party, or members of the other parties' families;

    17.2Allowing the child to remain in the presence of any person denigrating the other party, or the members of the other parties' family;

    17.3Discussing these proceedings, parenting or living arrangements with the child;

    17.4Consuming illicit drugs, in the presence of the child, whilst spending time or within 48 hours prior to spending time with the child;

    17.5Taking or failing to take prescription medication other than in accordance with a valid prescription;

    17.6Bringing the child into contact with or allowing the child to remain in the presence of the mother's partner Mr D.

18. That each party shall ensure the other party is kept informed as soon as is reasonably practicable of: -

    18.1any medical problems or illness suffered by the child, whilst in the care of the parent;

    18.2any medication that has been prescribed for the child;

    18.3any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

    18.4any social, or religious functions which the child is to attend;

    18.5the residential address of the parent;

    18.6the telephone contact number of the parent;

    18.7any other matter relevant to the welfare of the child.

19. All parties be restrained from exposing or allowing the Child to be exposed to any age inappropriate material in any form of media.

20. All parties are to forthwith undertake an asthma awareness program as recommended by the Independent Children’s Lawyer.

21. Within 14 days of the date of these Orders the Mother, the Father and the Maternal Grandmother are to make contact with Relationships Australia City N and do the following:

    21.1Arrange an appointment as soon as reasonably practicable for an initial postseparation parenting assessment and provide all information and complete all necessary paperwork as may be requested by Relationships Australia;

    21.2Thereafter attend any appointments on such days and times nominated by Relationships Australia and undertake all necessary assessments;

    21.3If assessed as suitable, enrol in and undertake any appropriate individual and/or group-based counselling, mediation, course and/or program as recommended or directed by Relationships Australia (including, but not limited to, attending a ‘Parenting After Separation Group’ and thereafter undertaking the ‘Parenting Orders Program’) until such time as otherwise recommended by Relationships Australia;

    21.4In the event that Relationships Australia recommends or directs the attendance and/or participation of the Child in the nominated counselling, mediation, course or program the parents must do all things necessary to facilitate the Child’s attendance and/or participation until such time as otherwise recommended by Relationships Australia; and

    21.5Comply with any other reasonable requests or directions of Relationships Australia for the purpose of implementing these Orders.

22. The Mother, the Father and the Maternal Grandmother are to share equally any costs associated with their engagement with Relationships Australia pursuant to Order 18 (at the relevant concession or non-concession rate) as advised by Relationships Australia.

23. In the event that Relationships Australia cannot provide any assistance or support to the parents as envisaged by Order 18, the Mother, the Father and the Maternal Grandmother are to do all things necessary to abide by and implement any recommendations made by Relationships Australia including, but not limited to, acting on any referrals made by Relationships Australia for either of the parents and/or the Maternal Grandmother and/or the children to a more appropriate support service.

24. The Applicant Father and Respondent Grandmother shall do all such things to ensure the Child regularly attends school, unless in circumstances where the Child is sick, unwell or physically unable to attend.

25. In circumstances where the Child is unable to attend school, the party who has the care of the Child on that day shall immediately notify the other party by 12noon that same day of the Child's non-attendance at school.

26. In circumstances where the Child is unable to attend school due to illness, the party who has the care of the Child on that day shall do all such things to obtain a medical certificate explaining the Child's non-attendance and provide the said certificate to the school and the other party.

27. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

28. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.