Macey and Liddell

[2020] FamCA 498

FAMILY COURT OF AUSTRALIA

MACEY & LIDDELL [2020] FamCA 498

FAMILY LAW – CHILDREN – Applicant paternal grandmother – respondent mother – application for sole parental responsibility and live with orders for grandson aged eight years – application filed 2 February 2017 – amended August 2019 – at trial only seeking continuation and extension of existing spend time with orders – child in mother’s primary care since parties separated when he was about five months old – child is significantly intellectually impaired and behaviourally challenged – mother aware of and competent to address child’s issues – father incarcerated for most of child’s life for violent offences – mother and applicant victims of family violence perpetrated by father – applicant afraid of father – unable to protect child – child at risk of exposure to family violence – existing orders for time spending with applicant discharged.

Family Law Act 1975 (Cth) ss. 60B(1)(b), 60B(2)(b), 60B(2)(c), 60B(3), 60CA, 60CC(1), 60CC(2), 60CC(3)

APPLICANT: Ms Macey

RESPONDENT: Ms Liddell

INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

FILE NUMBER: ADC 1539 of 2014

DATE DELIVERED: 19 June 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 25, 26, 27, 28 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross of Counsel

SOLICITOR FOR THE APPLICANT: Andrew Hill and Co

COUNSEL FOR THE RESPONDENT: Mr Tredrea of Counsel

SOLICITOR FOR THE RESPONDENT: Carmen Wood & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lewis of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

Orders

1. That all existing orders made herein be discharged.

2. That the mother have sole parental responsibility for X born … 2012.

3. That X live with the mother.

4. That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Macey & Liddell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1539 of 2014

Ms Macey

Applicant

And

Ms Liddell

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Macey, is the paternal grandmother of the child X born in 2012.

2. The respondent, Ms Liddell, is the child’s mother.

3. The child’s father is Mr Macey.

4. Litigation with respect to the child’s parenting arrangements commenced as between his father and his mother on 27 June 2012.  The father sought orders, inter alia, for equal shared parental responsibility for the child, for the child to spend time with him each alternate weekend and for three hours on Tuesday and Thursday afternoons as well as time for special occasions.

5. Those proceedings were resolved by consent on a final basis on 25 October 2012, when the child was nine months old.  The final order provided for the child to spend time with the father:

   ·from 10:00am to 5:00pm on each of Saturday and Sunday on three weekends out of every four weekends;

   ·on Wednesday of each week from 10:00am to 4:00pm;

   ·on Thursday prior to the weekend the child was to remain in the mother’s care from 10:00am to 4:00pm; and

   ·on Tuesday following that weekend from 10:00am to 4:00pm.

6. Orders were also made for special occasion time and there were specific issues orders with respect to handover, communication, injunctions and the like.

7. Litigation recommenced on 30 April 2014.  The applicant in the current proceedings, namely the paternal grandmother Ms Macey, sought orders that the child live with the mother and spend time with the applicant on alternate weekends from Friday evening to Sunday evening and in intervening weeks from Thursday evening to Friday evening.  She also sought orders for time spending on special occasions and various injunctive orders primarily relating to the mother being tested for drug use and restrained from using drugs.

8. The father was not included as a party in that application.  He was in prison at that time.

9. Those proceedings were finalised by consent on 8 December 2014.  The final order provided for the child to live with the mother and spend time with his paternal grandmother from 10:00am Saturday to an undefined time on Sunday on each alternate weekend and from 2:00pm to 6:00pm on Friday in the intervening week.  Provision was also made for the child to spend time with his grandmother on his birthday and on Easter Saturdays.

10. Paragraph 4 of the order of 8 December 2014 provided that the paternal grandmother be restrained from taking the child to visit his father whilst his father was in prison or until there was an order of the court permitting the child contact with his father.  The order further provided that if the child’s father made an application to the court for the child to spend time with him, the orders would be reassessed.

11. The current round of proceedings commenced by way of application filed by the paternal grandmother on 2 February 2017.

12. She filed amended initiating applications on each of 3 March 2017 and 14 March 2017.  On 9 August 2019 the applicant paternal grandmother filed her final amended initiating application.

13. In the initial application she sought orders for sole parental responsibility for the child, for the child to live with her and for him to spend time with the respondent mother as ordered by the court.

14. She sought therein an urgent interim order that the child attend N School and that the mother be restrained from attending at that school or removing the child from that school.

15. In her first amended initiating application she added the child’s father Mr Macey as a second respondent.  Otherwise, her application sought the same orders.

16. In her second amended initiating application she sought final orders for sole parental responsibility for the child and for the child to live with her and spend time with his mother as ordered by the court.  On an interim basis she sought sole parental responsibility for the child and that the child live with her and spend time with his mother from 10:00am to 2:00pm on Sunday of each week.  In the alternative she sought that the child live with his mother and spend time with her each weekend from the conclusion of school Friday to the commencement of school Monday.

17. She further sought an interim order for provision to her by the respondent mother of three drug screen tests during the period of the adjournment, the appointment of an Independent Children's Lawyer and orders pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”) from Families SA and South Australia Police.

18. In the applicant’s third and final amended initiating application filed 9 August 2019 she sought that she and the mother have equal shared parental responsibility for the child and that the child live with the mother.  Further, she sought that the child spend time with her from after school Friday to the commencement of school Monday in each alternate week, as well as for half of the short school holiday periods and half of the Christmas school holiday periods on a week-about basis.

19. She further sought that she be at liberty to receive correspondence from the child’s school including newsletters and school reports and to register on the school website as a carer of the child.  In addition she sought an order that her daughter Ms B Macey, her daughter’s partner and their child be allowed to attend at school events for the child that parents would normally attend.

20. The mother filed a response on 8 March 2017 seeking that the orders of 8 December 2014 be discharged and that the child’s paternal grandmother and his father be restrained from having contact or communication of any kind with the child.  On an interim basis she sought orders that the paternal grandmother deliver up the child to her, as well as the same orders she sought on a final basis.

21. In her amended response filed on 14 March 2017 she sought to discharge the order made on 25 October 2012 as well as those orders made on 8 December 2014, together with orders for sole parental responsibility and for the child to live with her.  Otherwise the orders she sought were unchanged from her initial response.

22. The father did not file any documents in response to his mother’s application or the child’s mother’s response.  He did however, on 16 November 2017, file an application in a case seeking to be joined as a party to the proceedings as well as orders for specific time spending with the child.  That application in a case was filed subsequent to the release of the first family report dated 21 July 2017.  He also sought therein an order for an updated family assessment report to include observations between he and the child.

23. On 19 December 2017 an updated family report was ordered.  There was a notation to that order as to it being agreed that the father was now joined to the proceedings.

24. The father filed an affidavit in support of his application in a case contemporaneously therewith, as well as an affidavit on 14 June 2018.

25. The updated family report was released on 25 June 2018.

26. On 20 September 2018 the father filed an amended application in a case seeking that the child spend time with him at the S Service.  That amended application was dismissed by order of 7 December 2018 in circumstances where neither the father nor any legal representative attended on his behalf.

27. On 4 April 2019 Berman J listed the matter for trial before him to commence on 25 November 2019.  The suite of orders with respect to preparation for trial included an order for a further family report which was released on 24 October 2019.

28. On 6 November 2019 I ordered inter alia that the father be removed as a party to the proceedings noting his non-compliance with trial directions made by Berman J on 4 April 2019.  I granted liberty for him to apply to be reinstated as a party to the proceedings upon the filing of an application in a case and affidavit in support addressing the issue of non-compliance.

29. No such application was filed by the father, and the competing applications of the paternal grandmother and the mother proceeded to trial commencing on 25 November 2019 with judgment being reserved on 28 November 2019.

30. When the trial commenced the child was living with his mother and spending time with his paternal grandmother from 10:00am Saturday to 4:00pm Sunday each alternate week pursuant to the order of Berman J of 26 September 2018.

Issues at trial

1. By the time of trial the paternal grandmother had conceded the issue of where the child should live in favour of the mother.  She was seeking the orders as specified in [18] hereof.

2. The mother proposed as she had done since filing her response on 8 March 2017 as amended on 14 March 2017, that existing orders for time be discharged, that she have sole parental responsibility for the child and that the child have no contact with or communication with his paternal grandmother or his father.

3. It was not in dispute that the child’s father Mr Macey, who by the time of trial was not a party to the proceedings, has an extensive history of criminal activity and incarceration.

4. As previously noted, the first set of proceedings with respect to the child’s parenting issues were commenced by the father by way of application filed 27 June 2012.  In late 2013 the father was arrested and charged with aggravated robbery and breach of bond with respect to an earlier violent assault.  He remained in prison with respect to those offences until November 2017.

5. Mr Macey had demanded cash from a taxi driver at knife-point at a time when he was on a suspended sentence that had been imposed following a conviction for assault arising from being involved in a fight.

6. Annexure “L3” to the mother’s trial affidavit filed 23 October 2019 contained a report from Mr G, Psychologist dated 8 April 2015 which was prepared for the purposes of the father’s plea in relation to the aggravated robbery offence.  Under the heading “Prior Offending” on page 2 of that report Mr G refers to the extensive offending history of the father.

7. The mother also deposed to an extensive history of family violence inflicted on her by the father throughout the parties’ relationship.  This relationship was in existence between approximately 2010 and mid-2012.  It ceased when the child was approximately five months old.

8. Having been released from prison on parole in November 2017, Mr Macey was returned to prison on or about 30 October 2018 pursuant to a Parole Board warrant and released again on or about 19 November 2018.  He reported to Family Consultant Ms B during his interview for the family report dated 23 October 2019 that he had again breached his parole and had been returned to jail in March 2019.  As at the date of trial he remained in jail.

9. In his telephone interview with the Family Consultant on 1 October 2019 he told her that he considered his offending history relating to violence “…had been prompted by substance and alcohol abuse”.[1]

   [1] Family Report dated 23 October 2019 at [52]

10. The nub of the mother’s case was that the applicant paternal grandmother minimised the violent offending of all three of her sons including the father in these proceedings.

11. She alleged that the applicant minimised violent behaviour inflicted on the mother by the father including violent or aggressive behaviour that she witnessed and that she was committed to ensuring that the child had a relationship with his father despite her assertions to the contrary.

12. It was the mother’s case that she did not trust the applicant paternal grandmother to ensure that the child was not brought into any contact whatsoever with his father and that if orders for time spending continued such contact would inevitably occur.

13. It was also her case that subsequent to the consent orders made on 8 December 2014 restraining the grandmother from taking the child to visit his father whilst the father was incarcerated or until there was an order of the court permitting the child to have contact with the father, the applicant had facilitated the child seeing his father at Prison 1, Prison 2 and Prison 3 during his period of incarceration between 2013 and 2017.  Further, it was her case that she had facilitated the child coming into personal contact with his father on 20 January 2018, 8 March 2018 and on the weekend of 22 and 23 December 2018.

14. In addition she alleged that the applicant had engaged in telephone communication with the father on 21 September 2019 in the presence of the child contrary to paragraph 7 of the order of Berman J of 9 August 2019.  She further alleged that the applicant was intimidated by the child’s father and would accede to any demands that he made to see or speak with the child, particularly upon his release from prison.

15. It was the case of the applicant paternal grandmother that she and the child had a close and loving relationship that had been in existence almost from the time of his birth and that he was a valuable member of the Macey Family.  Her evidence was that any violence that occurred in the relationship between the mother and the father was to her observation mutual, that the mother had failed to comply with orders for the child to spend time with her on numerous occasions, that the mother was not supportive of the child having a relationship with her or any members of the Macey Family, and that his relationship with the paternal family was beneficial to him and one which he enjoyed.

16. It was her case at trial that although she had maintained her application for the child to live with her and for her to have sole parental responsibility for the child until the filing of her third amended initiating application some two and a half months prior to trial being two and a half years after the filing of her initiating application, she now only sought equal shared parental responsibility for the child with the mother and orders for time spending.

17. In [55] of her trial affidavit filed with the third amended initiating application, she deposed to being sad that the child had not been able to spend time with his father but that nevertheless she would consent to being restrained from allowing her son to come into contact with or communicate with the child unless the court ordered same.  She deposed to a hope for the sake of both the father and the child that at some stage contact between them would be permitted.

18. It was her case that the mother lacked parenting capacity particularly with respect to the child’s speech delay, that the child was frequently unwell when in the care of the mother and further that on occasion she observed bruises on the child’s body when he came into her care from the mother.

Relevant legal principles

1. Part VII of the Act contains the provisions of the Act relating to children.

2. This parenting dispute arises between the child’s paternal grandmother and his mother rather than his parents and accordingly, not all of the provisions of section 60B, section 60CC(2) or section 60CC(3) of the Act are applicable in the circumstances of this dispute.

3. For the purposes of these proceedings the relevant object of Part VII of the Act is that set out in section 60B(1)(b), namely “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence…”.

4. The relevant principles for the purposes of these proceedings are contained in section 60B(2)(b) namely:

   “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 section 60B(2)(e) namely:

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

5. The right of a child to enjoy his or her culture with other people who share that culture is further developed in section 60B(3) in the following terms:

   “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.”

6. Paragraph 60CA directs the court that in deciding whether to make a particular parenting order it must regard the best interests of the child as the “paramount consideration”.

7. Section 60CC(1) further directs the court to consider matters set out in subsections (2) and (3) of section 60CC in determining what is in a child’s best interests.

8. The primary considerations are contained in section 60CC(2) in the following terms:

   “(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.”

9. The court is further directed to give greater weight to the need to protect a child from physical or psychological harm than to the consideration of the benefit to the child of a meaningful relationship with both parents.

10. Although the child’s father is not a party to these proceedings it was clear from the evidence of the applicant that she was hopeful that at some time the child would have a meaningful relationship with his father.

1. Accordingly, I find it is necessary to consider the question of the benefit to the child of having a meaningful relationship with his father as well as his mother.

2. That aspect can be considered in conjunction with the issue of the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence.

3. Section 60CC(3) refers to various “additional considerations” when determining the best interests of a child.

4. For the purposes of these proceedings I consider the relevant section 60CC(3) factors to take into account are those referred to in section 60CC(3)(a), (b), (d), (f), (g), (h), (j) and (l).

Evidence and findings

1. It is convenient to deal with the areas of dispute in this matter by way of considering the parties evidence as it applies to the relevant provisions of the legislation

Section 60CC(2) – Primary Considerations.

(a)      The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. The parties to these proceedings are the mother and the paternal grandmother.

2. The applicant paternal grandmother no longer seeks an order that the child live with her, but rather that he spend time with her on alternate weekends and for half of the school holiday periods.

3. In those circumstances I am satisfied that she acknowledges that it is to the child’s benefit to have a meaningful relationship with his mother.

4. Although the father is not a party to these proceedings, the mother seeks an order restraining the applicant paternal grandmother, in the event that continuing orders are made for the child to spend time with her, from permitting the child to be brought into any form of contact whatsoever with his father.

5. It is the mother’s case that there is no benefit to the child in having a meaningful relationship with his father.

6. The applicant paternal grandmother concedes that although she is sad about the circumstances, she would abide by any order of the court restraining her from bringing the child into any contact with his father.

7. For reasons to which I will refer in my consideration of issues of family violence I am satisfied that the need to protect the child from exposure or subjection to family violence and abuse significantly outweighs any benefit to the child of having a meaningful relationship with his father for the foreseeable future.

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

1. It is the mother’s case that if the child continues to spend time with his grandmother he is at risk of suffering physical or psychological harm from being subjected, or exposed to, abuse neglect or family violence.

2. In [13] to [42] inclusive of her trial affidavit filed 23 October 2019 the mother deposed to being subjected to abuse from the father, inclusive of physical violence, during the entirety of their relationship between 2010 and the time of their separation in mid-2012.

3. She deposed inter alia to:

   ·verbal abuse towards her and property damage to her rented property;[2]

   ·physical abuse towards her and the applicant grandmother, including pushing and shoving the mother during her pregnancy and trashing the applicant’s house and breaking household items;[3]

   ·demanding money from her, taking her car keys or mobile telephone if she did not accede to his demands, verbally abuse her and his mother and punching holes in the wall of his mother’s home;[4]

   ·throwing her handbag at her head causing a heavily bleeding laceration and pushing her and grabbing her by the arms resulting in extensive bruising;[5]

   ·contacting her relentlessly during a six week period that she went to stay with her family in another state;[6]

   ·throwing a knife towards her in a rage whilst she was eight months pregnant;[7]

   ·arranging for her to be discharged from hospital within 24 hours of the child’s birth without consulting her and against medical advice;[8]

   ·being forced to stay in a hotel with her mother when the child was a newborn because of the father’s “appalling” behaviour towards her;[9]

   ·the father using methamphetamine habitually after the child’s birth, intensifying his anger and propensity for violence resulting in the mother returning to live with her parents in another State when the child was about three months of age;[10]

   ·separating from the father in or about June 2012 following an abusive incident resulting in the mother telephoning the paternal grandmother and sister and locking herself in the bathroom and telephoning the police;[11]

   [2] Mother’s trial affidavit filed 23 October 2019 at [18]

   [3] Mother’s trial affidavit (supra) at [24]

   [4] Mother’s trial affidavit (supra) at [27]

   [5] Mother’s trial affidavit (supra) at [28]

   [6] Mother’s trial affidavit (supra) at [30]

   [7] Mother’s trial affidavit (supra) at [31]

   [8] Mother’s trial affidavit (supra) at [32]

   [9] Mother’s trial affidavit (supra) at [33]

   [10] Mother’s trial affidavit (supra) at [34]

   [11] Mother’s trial affidavit (supra) at [40] and [41]

4. In [9] of the applicant’s trial affidavit in reply filed 15 November 2019 she acknowledged noting that the father’s behaviour was inappropriate towards the mother, but in [10] denied that the father trashed her house or broke household items or was physically abusive to her.

5. She further deposed in that same paragraph to never observing the father physically abusing the mother but observing that the parties argued a lot and were verbally abusive towards each other.

6. She deposed to the mother lashing out at the father during arguments and the father restraining the mother by her arms on more than one occasion.  She deposed to having to speak to both parents about their behaviour in her house.

7. In [13] of the same affidavit she denied that the father punched holes in walls in her house or was abusive to her and in [14] she referred to observing the father throw a handbag towards the mother.

8. She deposed to the mother having asked for her handbag, the father picking it up and throwing it towards her high in the air and the mother catching it.  She deposed to observing the metal clasp strike the mother on the head as she caught the handbag causing a graze which did not bleed.

9. She said she did not observe the father push the mother but restrain her by the arms during a verbal argument between the parties prior to the throwing of the handbag.  She deposed to the mother flying at the father, hitting and punching him, and the father trying to hold her back by her arms.

10. It was her evidence that if the father had hit the mother she would have intervened and would not have allowed violent behaviour by the father in her home.

11. In [18] of the same affidavit she denied that the father discharged the mother from hospital after the child’s birth without consulting the mother, and said that the mother had a pre-arranged birthing plan which she had discussed with both the father’s sister and herself.

12. In [19] she deposed to the mother and maternal grandmother having an argument shortly after the child’s birth and the grandmother leaving, but denied that the grandmother and the mother stayed in a hotel together.

13. In [20] the applicant denied seeing the father behaving in a violent manner towards the mother, using illicit substances or being under the influence of illicit substances.

14. In [23] of the same affidavit she denied the incident alleged by the mother leading to the final separation, and said had the mother telephoned her in panic as alleged, she would have gone to the parties home which was only five minutes from her home.

15. In cross-examination the applicant said that she disputed the mother’s allegations that the father was violent towards her in the period from the end of 2011 to approximately mid-2012 when the parties were living in rented premises at EE Street, Suburb FF.  She agreed that she was not living there at the time and said that she didn’t know anything about it at the time.

16. She conceded in [32] that she had told the family report writer Ms P, as reported on page nine of the family report, that the violence between the father and the mother did not involve physical violence and that the mother had predominately been the instigator of physical conflict between them.  In cross‑examination she said that she had seen that behaviour but was unable to say how often the mother had instigated physical violence towards the father.

17. In cross-examination the mother agreed that she had alleged that the father was violent towards her.  When challenged, in those circumstances, about agreeing to the child having unsupervised time with his father in the consent orders of 25 October 2012, she said that she felt she had been forced into that agreement.

18. In [49] of the mother’s trial affidavit filed 23 October 2019 she deposed to the affidavit filed by the father on 27 June 2012 with respect to the first tranche of the proceedings.  She deposed in particular to the contents of [27] to [29] and [31] of that affidavit.

19. The father had deposed to being charged and convicted of assault causing harm in or about 2009 and being sentenced to two and a half years in prison with a non-parole period of 18 months.  He further deposed to serving approximately five to six months in Prison 1 before being released in or about March 2010 following an appeal, and to being convicted in or about October 2010 of driving under the influence of alcohol resulting in a suspension of his driver’s license for a period of four years.

20. In [52] to [57] inclusive of Family Consultant Ms B’s family report dated 23 October 2019 she reported on her discussions with Mr Macey as to his offending history, the basis for that offending history, his drug use, his view of the findings of the psychological and psychiatric opinions obtained with respect to his criminal proceedings and the fact that he had nothing to say to Mr C with respect to anger management issues.

21. During cross-examination with respect to the father’s alleged violence towards the mother during the period of their relationship, particularly in the period of six months or so leading up to the parties’ separation and including the birth of the child, I found the applicant to be evasive and to be deliberately “down-playing” the extent of that violence.

22. I find that she was deliberately attempting to minimise her knowledge of her son’s violence generally, including as towards the mother.  I make this finding particularly taking into account the content and tone of the father’s telephone conversation with his mother when he was in Prison 4 on 21 September 2019.

23. Exhibit M2 was MP3 file number … being a recording of that telephone conversation.  In addition to the recording being tendered, a transcript of same was provided to the court.

24. During that call the father was verbally abusive and demanding of his mother with respect to his requirement that she take his partner and their child to visit him in Prison 4.  He finished the call by referring to his mother as “You fuckin piece of shit;…” and “You fuck off”.  The phone call lasted for some four to five minutes during which the father used the word “fuck” when yelling at his mother on numerous occasions.  The father’s demeanour during that call could only be described as very aggressive.

25. The mother’s evidence was clear and concise as to the issue of family violence.  I find it was not exaggerated.

26. I find that at the time the parties’ separated the mother had been subjected to some two and a half years of violence and abuse towards her by the father.  In addition, the mother deposed to what she referred to as a “distressing incident” in [43] of her trial affidavit that occurred shortly after the parties’ separation.

27. She deposed to various family members including the paternal grandfather and the paternal aunt attending at her home pressuring her to let them take the child with them for a while, which she was not prepared to do.  She concedes that she told them she was happy for them to spend time with the child in her home.

28. She deposed to the father removing the child from his cot, and to the paternal grandfather telling the father that as there were no court orders in place he should just take the child, whereupon the father left the home with the child.  She deposed to the father retaining the child for some four days.  These matters were contained in [43] to [45] of the mother’s trial affidavit filed 23 October 2019.

29. The applicant was cross-examined as to her knowledge of that incident.

30. She conceded that upon the parties’ relationship breakdown the father moved back to live with her, and that shortly after that he attended at the mother’s residence, removed the child from her and brought him back to the applicant’s house.

31. She said that she was at work when it happened and that she wasn’t aware that it was going to happen.  She said she was surprised when she got home, that she asked the father what had happened.  He told her he had gone to the mother’s house with his father, aunt and sister so that his father and aunt could meet the child, that the mother had agreed that they do so and had asked for the father’s sister Ms B Macey to be there, but that when they had arrived the mother would not let them in.

32. She said that the child had remained at her home for about four days, that during that time the mother had come to the home on a couple of occasions, that everything was “ok” and that the father had gone back to the mother’s home with the baby.  She denied that was with the assistance of an Aboriginal Community Officer.

33. When asked if she suggested at any time during the four day period that the father take the child back to the mother’s care, she said she had not.  It was put to her that she did not do so because she knew she had no control over the father.  The applicant denied that position and said the parties were speaking on the phone and she didn’t know what they were planning.

34. She agreed that she thought the child’s best interests would be met by being returned to the mother.  It was put to her that because of the father’s aggressive nature she did not feel she could say anything to the father about her view.  She replied that she did, but was reminded that she had earlier said she did not.  She then said she did say something to that effect to the father but left it at that.  The mother then came to see the child and she and the father were talking.

35. She agreed that she had talked with the mother during that four day period when the mother had come to her home, but denied that the mother had asked for the child to be returned to her care.  When asked what the mother had said, she replied that the mother had come into her home, seen the child and the father for about an hour and then left.

36. When asked if the father had told her anything about why he had taken the child back to the mother’s care, she replied that he had not.

37. The mother deposed in [115] and [116] of her trial affidavit to the applicant having been present for much of the family violence perpetrated against her by the father, to experiencing abuse by the father personally and nevertheless to having allowed the father to retain the child in her home for the four days to which I have just referred.

38. The applicant’s evidence with respect to that incident was contained in [24], [25] and [55] of her trial affidavit filed 15 November 2019.  In [24] she denied she was present when the father took the child from the mother’s home, and deposed to not knowing and to not being able to admit or deny that the father retained the child in his care and away from the mother for four days until being persuaded by an Aboriginal Support Worker to return the child to the mother.

39. The applicant deposed to recalling that the mother visited on a number of occasions and asked the father to return the child to her, and then to coming home from work one day and finding the child and the father gone.  She deposed to the father returning to live with the mother and to the relationship not lasting for very long after that.

40. The mother was cross-examined as to the father returning to live with her when he returned the child to her care.  She denied that had occurred.

41. Again, I find that the applicant is down-playing her knowledge of and role in the incident where her son removed the child, then aged five months, from the care of the mother shortly after separation and retained him in his care in the applicant’s home for four days against the wishes of the mother, prior to returning him to the mother’s care.

42. I accept that the applicant was not aware that the father intended to remove the child from the mother’s care at that time, but find that she was intimidated by the father and that this accounted for her failure to speak to her son about his actions.  I find that outcome was achieved with the assistance of an Aboriginal Community Officer.

43. I am satisfied that it is another example of the applicant doing her best to “look the other way” when her son behaves aggressively, not only towards the mother but also towards herself.

44. I find that the applicant, in the face of aggressive behaviour or violence on the part of her son, is afraid to confront him about issues of concern to her.

45. I accept the mother’s evidence that she acquiesced to the orders for the child to spend regular, frequent and unsupervised time with his father, because she felt pressured to do so.

46. I find on the evidence that the father has an extensive criminal history involving offences of violence.

47. I find that the father has subjected the mother to family violence including physical violence and abusive and controlling behaviour and that he has subjected his mother to abusive behaviour.

48. I find that the applicant is intimidated by the father and notwithstanding her evidence that she would undertake to ensure there was no contact between the child and his father whilst the child was in her care pursuant to any orders of this court, that she would not resist demands of her son to spend time with or communicate with the child.

49. I find that subsequent to the order of 8 December 2014 restraining the applicant from taking the child to visit his father whilst he was incarcerated or until there was an order of the court permitting the child to have contact with his father, she took the child on numerous occasions to visit his father at Prison 1, Prison 2 and Prison 3 in the full knowledge that the mother objected to that contact occurring.  I reject the evidence of the applicant that such visits were made in the full knowledge of and with the consent of the respondent mother.

50. It was the mother’s evidence that the applicant had facilitated the child coming into personal contact with his father on each of 20 January 2018, 8 March 2018 and on the weekend of 22 and 23 December 2018.  The mother’s evidence in this regard was based on comments made to her by the child as set out in various paragraphs between [200] and [239] of her trial affidavit filed 23 October 2019.

51. In [75] to [80] of her affidavit in reply filed 15 November 2019 the applicant denied the allegations of the respondent that she had facilitated the child seeing his father and in [83] of that same affidavit she denied the allegation of the mother contained in [317] of her trial affidavit that the child communicates with his father by telephone.

52. The applicant was cross-examined with respect to the mother’s allegations.

53. With respect to the occasions that the applicant took the child to visit his father in prison prior to the making of the order on 8 December 2014 restraining her from so doing, it was put to her that she did so against the mother’s will.  It was her evidence that it was before she knew the mother did not want her to do that and before the order restraining her from so doing was made in December 2014.

54. She said that she thought that the mother would be agreeable as they had talked about it but that she was unable to remember whether she had actually asked the mother’s permission.  In answer to a question from the court as to whether she had asked the mother on each occasion if she could take the child to visit his father she replied she had not.

1. During the telephone conversation on 21 September 2019 between the applicant and the child’s father to which I have earlier referred, during which the father was incessantly demanding that the applicant take his current partner and child to visit him in prison the following exchange took place:

   “M:     You’d fuckin drive up there for the child why not, fuckin, drop Ms Liddell off so I can see my son?

   L:Yeah.

   M:What?

   L:I took the child in to see you too, against somebody else’s will.

   M:Oh, did they?

   L:Yeah.

   M:Oh, so. Oh, so your telling me, you’re against it now are ya?

   L:What? To start off with, yes.

   M:Whatever

   L:Yeah.”

2. “M” for the purposes of this transcript of the conversation is the father Mr Macey and “L” is the applicant Ms Macey.

3. The applicant was asked why she had said to her son that she had already taken the child in to see him against somebody else’s will.  She replied that she meant that that was when she didn’t know that the mother was opposed to that course of action in 2013.  Such evidence was plainly inconsistent with the conversation.

4. I reject the evidence of the applicant and find that it was a clear reference to her knowledge that when she took the child to visit the father in the various prisons prior to the conversation with her son on 21 September 2019 she was well aware that she was doing so against the will of the mother.

5. In answer to a question from the court as to whether the applicant thought that it was good to take the child to visit his father in jail she replied that it was, and when asked by counsel for the mother why she thought that, she replied that it was to enable him to be able to keep a relationship with and contact with his father.

6. Counsel for the mother asked the applicant whether she accepted, taking into account the telephone conversation between she and the father on 21 September 2019 that she had been verbally abused by her son.  She agreed that she had been, but disagreed when it was put to her that he normally spoke to her like that.  She agreed that he was abusive towards her because she would not do what he wanted.  She agreed that he has anger management problems, and that the father had assistance during his time in custody for anger management and drug use.

7. She said he’d also had such help when he was out of prison.  She agreed that at the time of trial he was still easily angered and that he was angry being in prison at that time.  She agreed that during the telephone conversation the father had been very disrespectful towards her.

8. The applicant conceded in cross-examination that her son has a long history of violence and that he was convicted of assaults other than the assault on the taxi driver.

9. She agreed with a proposition put to her by the mother’s counsel that the evidence would suggest that the father is a violent person and further said that it looked that way when he had been involved in so many assaults.

10. It was then put to her that if she accepted that he was violent and had a long drug history and that there was currently no evidence of the father’s behaviour improving how she could say that it would be safe for the child to spend time with him.  She replied that he had never been violent at her home or to the child.  She agreed that the father has a tendency to behave violently but said he did not do so at home.

11. I do not consider that it is necessary for me to make findings as to whether or not the child did see his father on each of the occasions alleged by the mother.  I make that comment in circumstances where I am satisfied that the applicant has no capacity whatsoever to ensure that the child does not come into contact with or communicate with his father notwithstanding any undertaking to that effect she may be prepared to give the court.

12. I find that the applicant is afraid of her son.  I find that circumstance to be tragic.

13. I find that the applicant has been subjected to, at the very least, aggressive and frightening behaviour on the part of her son in her presence and that she has acquiesced to his demands to spend time with the child on numerous occasions in the full knowledge of the mother’s objection to that course of action and contrary to orders of the court.

14. I find that the father has an extensive history of violence towards other people.

15. I find he has an extensive history of drug abuse.

16. I find, taking into account the content of his discussions with the family report writer that he has no insight into his behaviour or, on the evidence, any ability to control that behaviour certainly as at the 21 September 2019 as evidenced by the tenor of his conversation with the applicant.

17. I am satisfied that the telephone conversation on 21 September 2019 took place between the applicant and her son at a time that the child was in her care and in close proximity to her.

18. I find that the applicant made no effort to immediately terminate the conversation such that the child was not exposed to the possibility of hearing his father’s abuse of his grandmother.

19. The applicant relied on evidence from her daughter Ms B Macey, the father’s sister, as contained in her affidavit filed 9 August 2019.

20. Ms Macey deposed to having had a significant involvement in the child’s life since he was born, deposed to numerous activities undertaken while the child is in her mother’s care and to the child having close relationships and interacting very well with herself, her partner, her daughter and the applicant.  She deposed to being concerned about the mother’s ability to appropriately physically care for the child in [16] to [19] of her affidavit.

21. In cross-examination she denied telling the report writer as set out in [74] of the family report that she was currently in telephone contact with her brother, or that she had told the report writer that Mr Macey had a tendency to “minimise his issues”.

22. She also denied telling Ms P that her brother had told her that “he didn’t need help” when he was released from prison.  It was her evidence that with respect to telephone contact with her brother she was talking about the first time that he was incarcerated in 2013 and that there were “lots of things in here I didn’t say” in relation to the matters set out in Ms P’s report regarding the conversation she had with Ms Macey.

23. Ms Macey was also cross-examined as to the incident when the father removed the child from the mother’s care shortly after separation.  She agreed that she was present.  She denied that the paternal grandfather was present to intimidate the mother and said that she was not aware of the mother being upset about him being present.

24. It was her evidence in cross-examination that she would not support her father seeing the child and rather that she was simply there because she had been told she had to come with the others being the paternal grandfather, paternal aunt and the father.  I find that she was aware of the mother’s distress on that occasion and at the very least did nothing to assist the mother or attempt to dissuade her brother from his actions.

25. It was not in dispute and indeed reported to Ms P by the applicant that the paternal grandfather had perpetrated violence against her which had seemed to effect the child’s father more than his siblings.

26. Ms Macey was also cross-examined by the Independent Children's Lawyer as to her alleged concerns regarding the mother’s parenting capacity and quality of physical care and potential abuse of the child.  When it was put to her that she had not observed any bruises on the child for the last two and a half years she said she had some two and a half months previously but that “we” had been told by “our” lawyer that they couldn’t put that information before the court.

27. When asked when she had observed the bruise she said it was perhaps in August after the filing of her trial affidavit, that she had observed bruising on the child’s right arm and that the child had told her his mum squeezed him and smacked him hard.

28. She said the bruising was observed when she and her mother were bathing the child, that they had asked the child about the bruise and then, when he was out of the bath and in the lounge room, they had asked him how it had happened.  It was her evidence that the applicant, herself, her partner and her daughter were present.  She was asked if she had communicated with the mother about the issue at all and said she had not done so because the mother doesn’t like her.

29. She was then cross-examined as to a bundle of seven photographs that were produced in relation to the bruising issue.  I find they did not establish that the mother had inflicted bruising on the child.  Ms Macey denied she had taken the photographs for the purposes of the court hearing.  I do not accept her evidence in that regard.

30. Ms Macey was also cross-examined with respect to the evidence contained in [20] of her trial affidavit as to the child’s Aboriginal descent and his need to have connection with his indigenous heritage.  It was put to her that the applicant’s evidence with respect to the child’s involvement in indigenous cultural activities was confined to attending at an Aboriginal sports event in V City, an art exhibition at W Institute and attending at the Art Centre in T Town.

31. It cross-examination she conceded that the sports event occurred a few years ago, that the visit to W Institute had occurred in 2020 but she was not sure whether the visit to the Art Centre in T Town had occurred last year.  She denied that they were the only activities that had involved the child and said he had also attended at AA Park where a conversation had occurred with Elders and the child had undertaken some painting.

32. I was not assisted by the evidence of Ms Macey.  I am satisfied that she is understandably supportive of her mother’s application.  I find however that her complaints as to the mother’s failure to properly care for the child’s health and development are without merit and that her photographs of the child taken after a bath were taken purely for the purposes of supporting her allegation that the child has suffered inadequate care and on occasions abuse from his mother.

33. I am satisfied that Ms Macey was maintaining at least telephone communication with the father at the time of trial, that she is aware of his violence and drug abuse but that she would not be protective to the extent of ensuring that the child did not come into any contact with his father if he was in the care of his grandmother.  I find she has a reasonably close relationship with her brother.

34. Taking those matters into account I am satisfied that the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is of far greater importance at this time of his life than any benefit he may gain from having a meaningful relationship with his father.  I make that finding in circumstances where I find that the applicant would not be capable of resisting demands by the father to spend time with or communicate with the child if he was in the care of either his mother or his sister Ms B Macey.  I find that spending time in the care of the applicant would place the child at real risk of exposure to family violence.

35. In making that finding I take into account the principle contained in section 60B(2)(b) of the Act whereby Parliament has determined that 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)…”

36. That principle must not take precedence over the need to keep the child safe and free from exposure to family violence.

37. Likewise I am mindful in making the findings I have of the principle set out in section 60B(2)(e) that:

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

38. I will refer to this issue in more detail in my consideration of the evidence as it applies to section 60CC(3)(g) and (h) of the Act.

Section 60CC(3) – Additional Considerations.

(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.

1. Annexures “L4” and “L5” to the mother’s trial affidavit and contained in the Book of Tender Documents were firstly, a psychological report from the psychology service at the Department for Education and Child Development relating to an assessment conducted at the Z Kindergarten on 27 July 2016 and, a speech pathology summary of support for 2016 dated 24 February 2017 from the Department for Education and Child Development.

2. The speech pathology summary referred to the child having a history of speech pathology support and to him being supported by a speech pathologist from January 2014 and continuing on his commencement of pre-school in Term 1 2016.

3. Overall, the reports referred to the child’s speech and language skills being delayed, to the extent that some of his speech was unintelligible at that time.

4. At the age of four years and six months when he was assessed on 27 July 2016 for the psychological report carried out at the Z Kindergarten, he was described as not understanding when he was asked how old he was at that time.

5. On page 5 of the psychological report he was described as having made pleasing progress at kindergarten since the beginning of 2016, but the cognitive assessment results indicated that he was experiencing significant difficulties with his learning.

6. It was clear from both reports that the child faced significant learning and communication challenges that were being addressed by the mother through the educational institutions he attended.

7. Annexure “M1” to the mother’s said affidavit was a copy of the National Disability Insurance Scheme (“NDIS”) Service Agreement covering the period 6 September 2017 to 4 June 2018.  the child’s goals were described in that document as:

   (1)To improve my expressive and receptive language skills;

   (2)To improve my fine motor skills, using a pen and other self-care tasks.

8. His longer term goals and aspirations were described as being able to express his feelings and improve emotional regulation.

9. In [183] of the mother’s trial affidavit she referred to the service agreement with the NDIS remaining in place after an annual review.

10. Annexure “L2” to the mother’s affidavit is a copy of correspondence dated 2 November 2017 from a General Practitioner to Dr Q at R Hospital “for opinion and management of global developmental delay.” The correspondence refers to the child having ongoing occupational therapy and speech therapy and an anticipated audiology test.

11. In the report of Family Consultant Ms P dated 23 October 2019 she refers in [59] to the child’s responses to her questions tending to be “rather brief, and not spontaneous;”.  She reported that he “…required more verbal scaffolding than would generally be expected of other children of his age,…”.

12. She also referred in the same paragraph to the child struggling to identify his feeling states and being unable to talk about them in detail.  She referred to his developmental issues being evident in his comprehension of many questions and to his expressive language at perceptions appearing rather concrete and to the child seeming to struggle to consider negatives to any relationships he had.

13. I am satisfied that taking into account the child’s age and the various developmental delays to which I have referred, that this is not a factor that will assist the court in determining the child’s best interests.

(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).

1. I consider this subsection to be a relevant consideration in these proceedings.

2. I am satisfied on the evidence before the court that the child has an excellent relationship with his mother.

3. Although brief, the observations of Ms P as set out in [63] of her family report indicated that the child was playful with both his mother and her partner Mr C, who on occasions he referred to as “dad”.  She described him as engaging in eye contact and in an animated manner with them, and when he became excited she described him as being able to self-regulate.

4. She described the mother as being “…particularly sensitive and responsive to the child,…” and that the mother also provided assistance to the child with respect to literacy and numeracy encountered during games.

5. In [130] to [143] of the mother’s trial affidavit she set out in detail the efforts that she made, after identifying the child’s developmental issues when he was young, to address those issues and obtain the best assistance she was able to in order to help the child progress developmentally.  She deposed to further efforts in that regard in [165], [166], [167], [182], [183], [185] and [260] to [297] inclusive of that affidavit.

6. The mother was not challenged with respect to any of her evidence regarding the child’s developmental difficulties nor the assistance she has sought and obtained to help him progress as well as possible.

7. The level of therapeutic intensity described in the mother’s affidavit and in the accompanying annexures to which I have referred would inevitably result in a very close and dependent relationship between the child and his mother.  I find this was illustrated briefly but clearly in Ms P’s report in [63] to which I have referred.  I am likewise satisfied that the child has a close and loving relationship with the mother’s partner Mr C.

8. At the time of trial the child had not spent any significant time with his father since 2014.  the child referred to liking “Mr Macey” to Ms P as reported in [62] of her family report.  She reported that the child knew that Mr Macey was “my daddy”.  I have already referred to the mother’s evidence as to the child mentioning his father to her on 20 January 2018, 8 March 2018 and the weekend of 22 & 23 December 2018, being three occasions on which it is the mother’s firmly held belief that the child had seen his father whilst in the care of the paternal grandmother.  I refer to my earlier findings in that regard.

9. On any assessment of the undisputed facts, I am satisfied that at this time of the child’s life any relationship he may have with his father is extremely limited in nature.

10. In the trial affidavit of the applicant filed 9 August 2019 she deposed to a close and loving relationship between she and the child, involving her caring for the child on many occasions.  She deposed to observing his significant speech delay, being concerned about the state of his health on occasions whilst he was in the care of his mother and to being concerned about him being physically abused by his mother.  She described in particular the activities that she and the child enjoyed together and the closeness of their relationship in [48] to [51] of that affidavit.

11. In cross-examination the mother conceded on numerous occasions that she had asked the applicant to care for the child, that she had confidence on occasions in the applicant taking the child to the doctor and that on at least two occasions she invited the applicant to collect the child from kindergarten.  She also agreed that the child has a longstanding relationship with his grandmother, that he knows her well and that he enjoys spending time with her.

12. She also conceded that she has observed at handovers that the child is loving and affectionate with his grandmother.  She further agreed that in the child’s brief discussions with Family Consultant Ms B he responded in a manner that suggested a loving relationship with the applicant.

13. I find that overwhelmingly the child’s primary relationship is with his mother, on whom he depends not only for his ordinary day-to-day needs but also his significant extra needs arising from the developmental challenges he faces.  In addition, I find both from the unchallenged observations of interaction described by Family Consultant Ms B in her family report dated 23 October 2019 as well as the unchallenged evidence of the mother in her trial affidavit as to the day‑to‑day life the child shares with her, his brother Y and the mother’s partner, that the relationship between her and the child is mutually satisfying.

1. I also find that the child has a loving relationship with his paternal grandmother and that he generally enjoys the time he spends in her care.  In [64] to [66] inclusive of Family Consultant Ms B’s report she refers to the child exhibiting dysregulated behaviour when he saw the applicant in the waiting room.  She described him as needing about 10 minutes of encouragement and increasing exposure to the room to enter it which he did by way of sliding across the floor but then engaging in an animated way with his grandmother.

2. She described him as initially attempting to walk away from his grandmother without farewelling her at the end of the session but then engaging in an affectionate farewell.  In [64] she described the mother actively encouraging the child to enter the room in which his grandmother was sitting waiting for him.

3. In cross-examination the mother conceded that she had not seen that behaviour before as between the child and his grandmother, and she agreed that it may have been because of the strange environment.  I do not consider that observation was reflective of the generally close and loving relationship that the child has with the applicant.

4. I have no doubt whatsoever that the applicant loves the child.  I remain however deeply concerned about her capacity to protect the child from being subject to or exposed to family violence for the reasons to which I have already referred at length.

(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.

1. The orders sought by the applicant at trial only differ from the orders that have now been in place for some time because of the inclusion of an application to spend half of school holiday time with the child.

2. This would be a change in the child’s circumstances such that he would spend more time out of the care of his mother and in the care of his paternal grandmother.  It would involve, if deemed to be in the child’s best interests, a consideration of how best to manage the child’s extended time away from his mother but I am satisfied it could be managed in a way as to minimise any significantly adverse effects on the child’s circumstances.  He has spent regular time with her at least since his parents separated and certainly since his father went to jail in the latter part of 2013.

3. There have been various times since the child’s parents separated where his day‑to‑day living arrangements have been disrupted in circumstances where initially the father, and then at a later date the applicant, retained the child in their care such that he was deprived of the care of his mother and, times when the mother retained the child in her care contrary to existing time spending orders resulting in him being deprived of spending time with his paternal grandmother.

4. I am not satisfied that those periods of time, regrettable as they were, had any significant effect on the child’s circumstances.

5. The order proposed by the mother in these proceedings would result in the child being deprived of the opportunity to spend time with the paternal grandmother as well as the paternal family including his aunt Ms B Macey and his cousin.

6. I do not doubt that the time currently spent with the paternal grandmother and extended paternal family is enjoyable for the child.

7. I find however that the change in the child’s circumstances that would occur if the court acceded to the mother’s proposal would not have a damaging effect on his day-to-day life and development.

8. I am mindful that one of the principles underlying Part VII of the Act as contained in section 60B(2)(b) of the said Act is that:

   “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)…”

9. I am also mindful of the provision contained in section 60B(1)(b) of the said Act whereby one of the objects of Part VII of the Act is:

   “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence…”

10. This provision is encompassed in section 60CC(2) of the Act, being the primary consideration to which the court must give greater weight when assessing the benefit to a child of having a meaningful relationship with both parents or, in the case of this application, the paternal grandmother.

11. I have already referred in my consideration of the factors referred to in section 60CC(2) to my concerns as to the capacity of the paternal grandmother to put the child’s needs above the needs of the father as well as her own needs and those of the child’s aunt Ms B Macey such that the child is protected, at the very least, from psychological harm from being exposed to family violence.

(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.

1. I have already referred at length in my consideration of the nature of the child’s relationship with his mother to being completely satisfied as to her capacity to provide for all of the child’s needs including his emotional and intellectual needs.

2. The applicant deposed to being concerned about the child’s physical health when he was only a few months old and before the father went to jail and further, to the numerous times that she cared for the child upon the request of the mother.

3. The mother did not dispute that on numerous occasions she had requested the assistance of the applicant in caring for the child but disputed that it was at the level suggested by the applicant.

4. I find that until such time as the relationship between the applicant and the mother substantially broke down in early 2017 the mother did rely on the applicant’s assistance on many occasions in caring for the child.

5. There is no evidence before the court to suggest that the applicant is not capable of providing for the child’s day-to-day needs or that she lacks interest in assisting with the child’s intellectual needs.  I make that finding in circumstances where [5] and [6] of her third amended initiating application set out orders sought by her with respect to receiving correspondence from the child’s school including newsletters and school reports, being at liberty to register on the child’s school website as a carer and providing for herself, her daughter, her daughter’s partner and their child being allowed to attend at school events for the child.

6. The mother agreed in cross-examination that if the court ordered that the child spend time with his grandmother, the child’s occupational and speech therapists would need to spend time with the paternal grandmother and she was not opposed to that occurring.  Likewise, she was not opposed to providing the applicant with updates from the child’s paediatrician, occupational therapist and speech therapist in circumstances where she expressed a view that she was prepared to do anything that would help the child with his challenges.

7. I am satisfied that the child’s grandmother is interested in doing what she can to assist the child.  I find however that the relationship between she and the mother is at a level that could only be described as non-existent and that it would be difficult for her to assist with or provide for the child’s special needs against a backdrop of the mother having been solely responsible in that regard since at least 2014.

8. I am however more concerned as to the capacity of the applicant to provide for the child’s emotional needs.

9. Between 2 February 2017 and 9 August 2019 it was the position of the applicant that the child should be removed from his mother’s primary care, moved to her primary care, spend limited time with his mother as ordered by the court and further, that she have sole parental responsibility for the child.

10. It was not until her final amended initiating application filed 9 August 2019 that she conceded that the child should live with his mother and spend alternate weekend and half school holiday time with her.  She still seeks an order for equal shared parental responsibility with the mother.

11. On 2 February 2017 the applicant commenced these proceedings by way of the initiating application to which I have referred in [212]. In that same application she sought interim orders providing for a discharge of the orders of 8 December 2014, and orders that the child live with her and that she have sole parental responsibility for the child. She also sought that he attend N School and that the mother be restrained from attending at that school or removing the child from that school. The applicant referred to this matter in [33] to [41] inclusive of her affidavit filed 9 August 2019.

12. She deposed to retaining the child in her care on 25 January 2017 as a result of noticing bruises on his right knee and upper right thigh when he was having a bath.  She deposed to the child telling her that “mummy macked (sic) me”.

13. She deposed to noticing an infected blister on the heel of his right foot that had not properly heeled and to noticing the next morning bruising across his lower back and a bruise on his left foot.  The applicant took the child to the CC Police Station where photographs were taken after which they were referred to the Child Protection Service at the DD Hospital.

14. the child was medically examined and spoken with by a psychologist.  The applicant deposed to being told by a doctor that there was every indication that the child had been hit by an object.

15. She further deposed to being advised not return the child to the mother’s care and to make an urgent application to the court for a suspension of the existing order of 8 December 2014 which provided for the child to live with his mother.

16. She deposed to taking the child to her local doctor, to 38 insect bites being counted on the child’s body and to being told by the child on that same day when inquiring as to the whereabouts of his thongs that “mummy macked (sic) me with em (sic), it hurt”.

17. She deposed to making a statement to police regarding those matters on 29 January 2017 and to being asked to attend the Child Protection Unit at DD Hospital on 1 February 2017 for the purpose of a forensic examination of the child.  She deposed to refusing to hand the child back to the mother on the advice of police.

18. On 16 March 2017 an order was made that provided, inter alia, that the child be delivered up to the mother that day and that the child’s time with the applicant pursuant to the order of 8 December 2014 be suspended for a period of 14 days.

19. The mother deposed to these issues in [122] to [128] of her affidavit filed 23 October 2019.

20. It was common ground that the parties had agreed that the child would spend a couple of extra days with the applicant than was provided for in the order of 8 December 2014.

21. In fact the child spent no time with the mother for approximately seven weeks.

22. It was the mother’s position at trial that the applicant’s intention in commencing the proceedings on 2 February 2017 to retain the child in her care in circumstances where she was of the belief that her son was likely to be released from prison in the near future and with the intention of then handing the child into the care of his father.

23. It was put to the applicant in cross-examination that she understood her son had applied for home detention.  She said that had happened the year before and denied that it was shortly prior to her retaining the child in her care.  She said that in January 2017 she did not know when the father was likely to be released and denied that she thought that it would be within a couple of months of January 2017.

24. She agreed that she had sworn an affidavit on 2 February 2017 and that she had deposed in [30] of that document as follows:

    “Until such time as my son, Mr Macey is released from jail, I ask the Court to Order that the child live with me and attend N School without any interference from Ms Liddell.”

25. She agreed that in her affidavit filed 2 February 2017 she had set out the reasons why she retained the child but said she was unable to remember what she had written in that document.  After having the opportunity to read [4] of that document the applicant conceded that the mother had told her that the child was not going to attend N School that year and that she was concerned about that.

26. She conceded that in [5] of that document she had deposed to the child being “…in potential danger as a result of Ms Liddell’s inability to properly care for the child”.

27. It was put to the applicant that in retaining the child in her care at the end of January 2017 she intended to keep him in her care until the child’s father was released from prison and then transition the child into his father’s care.  She denied that proposition.

28. Annexure “M1” to the applicant’s affidavit filed 2 February 2017 was a copy of an affidavit sworn by her at the CC Police Station on 30 January 2017.  Paragraph 26 of that document was in the following terms:

    “My son Mr Macey loves the child and would like to have care of the child. Mr Macey has rehabilitated whilst he was in gaol and has used this time in custody to gain new skills and participated in self-development and vocational courses. He has also done a parenting course whilst in custody and really wants to be a good father to the child. If Mr Macey was able to have custody of the child we would fully support this and help Mr Macey to care for the child and provide a loving family for the child where he can have contact with his family and extended family.”

29. In [26] of the report of Ms P dated 23 October 2019 she reported that the applicant maintained “…that she withheld the child in 2017 due to concerns that his mother had physically abused him; she denied the timing was linked to her son being out of prison and wanting to ensure he spent time with the child”.

30. I find that the actions of the applicant in retaining the child in her care on 25 January 2017 and in filing the application that the child live with her and that she have sole parental responsibility for the child was taken in the knowledge that the father had applied for conditional release and with the intention of handing the child into the care of the father upon his release from prison.  Such action on her part was completely absent any consideration of the child’s emotional needs.

31. In the applicant’s trial affidavit filed 9 August 2019 she deposed in [7], [8], [21], [23], [24], [27], [28], [33], [34], [36], [37], [39] and [54] to her concerns as to the capacity of the mother to:

    ·provide appropriate health care for the child;

    ·provide appropriate housing for him;

    ·provide adequately for his day-to-day needs without the necessity of borrowing money to do so;

    ·being responsible for physical abuse of the child;

    ·failing to follow up medical appointments with respect to injuries the child allegedly sustained in the care of the mother;

    ·the mother physically abusing and/or neglecting the child such that the applicant needed to ensure he had appropriate medical assistance, input from Child Protection Services and the Police; and

    ·neglecting to follow up on assessments relating to his developmental needs.

32. I find there was no objective evidence before the court that would support any allegations of abuse or neglect on the part of the mother with respect to the child.

33. The fact that the applicant persisted with these unfounded complaints against the mother up to and inclusive of their inclusion in her trial affidavit and only changing her position with respect to who the child should live with at the “last minute” satisfies me that the applicant has little comprehension of the child’s emotional needs, particularly with respect to the close, loving and dependant relationship with his mother.

34. At the time of trial she continued to be critical of the mother’s parenting capacity, as did her daughter Ms B Macey.  I find that neither of them acknowledged that the respondent has both the capacity and is a good, competent and loving mother to the child.

35. I find that the applicant’s actions over the years since the child’s parents separated have frequently ignored the mother’s concerns about the child’s exposure to family violence and have ignored what she knows to be the reality of her son’s violence and aggression towards the mother including in the child’s presence.  Further I find that her actions on occasions have been designed to undermine the mother’s role as a parent.

36. I likewise find that Ms B Macey’s actions on occasions, particularly in relation to the bruising she allegedly observed on the child and the actions she took in approximately August 2019, including the photographing of same, illustrated a lack of comprehension or concern as to the emotional impact on the child of her behaviour.

37. I find her actions were not based on a genuine belief that the mother had abused the child but rather were designed to attempt to influence the court to find that the mother lacked parenting capacity and that the child is at risk in her care.

38. I find that such behaviour raises concern as to the capacity of Ms B Macey to provide for the child’s emotional needs in circumstances where the child spends time with her when in the care of the applicant.

(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; and

(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.

1. I have referred to the evidence of both the applicant and Ms B Macey with respect to the child’s exposure to his indigenous culture when in their care.

2. I share the concern of Ms B Macey with respect to the need for the child to have a connection with his indigenous history and the cultural aspects of his life.  There is no dispute between the parties that the child is of Aboriginal descent through his father.

3. I accept that he has had some opportunities to enjoy issues of cultural connection when in the care of the applicant and in particular when in the care of his paternal aunt.

4. Ms Macey works as a healthcare worker with R Hospital and is involved in NAIDOC each year through her employment.  She also deposed to playing in Aboriginal sports event with her cousins in BB Town.  I accept that the child attended such an event on one occasion.

5. It is unfortunate that for most of the child’s life his father has been in prison.  the child has had little if any opportunity to enjoy aspects of his Aboriginal heritage with his father.

6. In her discussions with the Family Consultant as reported in [44] of Ms P’s family report the mother maintains that “…the child’s connection to his culture can be maintained via school activities; she pointed out the child had little awareness of the meaning of his Aboriginality due to his developmental issues.”

7. In [83] of the family report Ms P said as follows:

   “The consultant addressed the purpose of the child’s time with his grandmother. Principally, it served to maintain a longstanding relationship (which the child reported and was observed to enjoy), and to maintaining his connection to the paternal family; this is especially significant, given the child’s paternal Aboriginal heritage.”

8. Counsel for the mother asked Ms P in cross-examination whether the child’s cultural ties favoured time spending with the applicant.  She replied that that was not the primary reason.  When asked how the paternal aunt could support the child’s cultural connections she responded that time with the aunt and the grandmother would enable the child to keep up with other members of the extended paternal family.  The applicant is not of indigenous heritage.

1. The child is 8 years old.  He faces significant challenges with respect to the rate of his intellectual development and comprehension of all aspects of his life.  The child lives with his mother, his step-father and his sibling Y who is 2 years old.

2. His day-to-day life experiences within that family group do not extend to exposure to his Aboriginal culture.  There is no doubt that he has a right to enjoy that Aboriginal culture including with other people who share that culture.

3. Acceding to orders as sought by the mother will certainly at this time in the child’s life mean that he will not have that opportunity.

4. I am satisfied however that taking into account:

   ·his age;

   ·his almost complete lack of relationship with his father since birth due to his father’s various incarcerations arising from offences of violence; and

   ·my view that neither the applicant nor the paternal aunt have the capacity to withstand demands made of them by the father to spend time with and communicate with the child whilst in their care upon his release from prison,

   that this factor must of necessity be overtaken by the very real need to ensure that the child is kept safe and not exposed to family violence.

(j)     Any family violence involving the child or a member of the child’s family.

1. I have referred to this factor at length in my consideration of the evidence as it applies to section 60CC(2)(b) in [71] to [162] of these reasons.

2. The mother was subjected to family violence by the father.

3. The applicant has been subjected to family violence by the father.

4. On occasions that violence has occurred in the presence of the child.

5. The child’s father has been incarcerated for the majority of the child’s life because of committing offences involving violence.

6. The mother does not want the child exposed to family violence or to be in an environment where he is at risk of such exposure.  The mother has no confidence in the ability of the applicant to protect the child from violence or exposure to family violence.

7. I am satisfied for the reasons to which I have referred extensively that her position is reasonable and supported by the evidence.

(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.

1. I am mindful in making orders that effectively terminate the relationship between the child and his paternal family particularly in proceedings that did not involve the child’s father, that further proceedings may be instituted in the future.

2. The child is still only 8 years old.

3. Although the father was not a party to the proceedings my reasons referred in detail to the impact of the father’s violent behaviour on his mother which I have found results in an inability on her part to adequately protect the child from exposure to his father and the potential of exposure to family violence.

4. For all these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and sixty-four (264) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 19 June 2020.

Associate:

Date: 19 June 2020