MACHEY & THORNTON

[2018] FamCA 391

FAMILY COURT OF AUSTRALIA

MACHEY & THORNTON [2018] FamCA 391

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Orders that child live with the paternal grandmother and spend time with the mother and father – Orders that mother and father have equal shared parental responsibility subject to conditions – Order that child communicate with the mother – Specific issues orders.

Family Law Act 1975(Cth) 60CC

APPLICANT: Ms Machey

RESPONDENT: Mr Thornton and Ms Thornton

INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

FILE NUMBER: NCC 3235 of 2009

DATE DELIVERED: 7 March 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Benjamin J

HEARING DATE: 5, 6 & 7 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ticehurst

SOLICITOR FOR THE APPLICANT: Todd Street Lawyer

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT:           Burke & Mead Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAYWER: Legal Aid Commission NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

Orders

1. All previous parenting orders in relation to X born … 2009 (‘the child’) be discharged except the order in relation to the child’s surname.

2. Ms Machey (‘the mother’) and Mr Thornton (‘the father’) have equal shared parental responsibility for the child except:-

   (a)as is provided in these Orders or as otherwise agreed in writing between the three parties, and

   (b)Ms Thornton (‘the paternal grandmother’) shall have limited parental responsibility to the extent that she may engage with the school, engage with medical practitioners and give permission for general medical treatment and general tasks regarding school attendance at school camps, swimming carnivals and other events such as that, and any major matters will be a matter for the mother and the father.

3. The child shall live with the paternal grandmother.

4. The child shall spend time with the mother as follows:-

   (a)during NSW gazetted school term for the year 2018 each alternate weekend from the conclusion of school Friday or 9.00am should Friday be a public holiday or a pupil free day until 4.00pm Sunday or in the event that Monday is a public holiday or pupil free day until 4.00pm Monday;

   (b)during NSW gazetted school term from Term 1 2019 unless agreed to the contrary, the time shall be once every three weekends commencing either the first or the second weekend after the commencement of each school term subject to the father’s work roster, noting that if the father and mother agree in writing this time shall revert to the alternate weekend time.

   (c)during school holiday periods the first half in even numbered years and the second half in odd numbered years.

   (d)in relation to the Christmas/New Year holiday period for the final two (2) weeks of that school holiday period ending on 4.00pm of the Friday before the child resumes school and commencing at 10.00am on the day 14 days before;

   (e)the child shall live with the mother from 3.00pm Christmas Day until 5.00pm Boxing Day in 2018 and each alternate year thereafter and from 9.00am on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter, with the provision to provide that the child otherwise spends the time with the father and the paternal grandmother.

   (f)such other times as are agreed between the mother, the father and the paternal grandmother.

   (g)as to the child’s birthday:-

   i.if the child is not otherwise spending time with the mother on 3 February 2019 the child spend time with the mother from 9.00am that day until 9.00am the following day, the child to spend that time with the mother in each alternate year thereafter except if this is a school day in which case the child shall spend from after school until 7.00pm.

   ii.if the child is not otherwise spending time with the father or paternal grandmother on 3 February 2020 the child spend time with the father or paternal grandmother from 9.00am that day until 9.00am the following day, the child to spend that time with the father or paternal grandmother in each alternate year thereafter except if this is a school day in which case the child shall spend from after school until 7.00pm. For the purpose of defining school holiday periods, the New South Wales gazetted school holiday periods are deemed to commence at the conclusion of school on the last day of term and conclude at 3.00pm on the Sunday immediately prior to the commencement of the new school term

   (h)the paternal grandmother shall not be present or nearby at the time of any changeover at the school.

   (i)the time the child shall spend with the mother on alternate or weekends once each three weekends shall be adjusted so that it fits in with the father’s work roster if he has limited weekends, provided the father gives at least one month’s notice in writing and any adjustment of time does not reduce the overall time the child spends with the mother over each school term period.

   (j)for the purpose of changeovers, where the time is to commence at the conclusion of school, the mother and her nominee will collect the child from school and all other changeovers will occur at McDonalds Family restaurant Suburb D.

5. The child communicate with the mother by telephone each Wednesday with such telephone call to commence between 6.30pm and 7.00pm, the implementation of this order shall be that the mother shall call the paternal grandmother’s mobile telephone number and the paternal grandmother will do all things necessary to ensure the child is available to receive the call, including ensuring the mobile telephone has sufficient charge to allow the call and shall give the child space and privacy during the course of such telephone call.

6. When the child is not otherwise living with the paternal grandmother, the child communicate with the paternal grandmother by telephone each Wednesday with such telephone call to commence between 6.30pm and 7.00pm, the implementation of this order shall be that the paternal grandmother shall call the mother’s mobile telephone number and the mother will do all things necessary to ensure the child is available to receive the call, including ensuring the mobile telephone has sufficient charge to allow the call and shall give the child space and privacy during the course of such telephone call.

7. In the event of the child being hospitalised or receiving medical attention the party caring for the child will notify the other party as soon as practicable after the first contact with either a medical practitioner, medical centre or hospital and if the appointment is made in advance then they are to inform the other party of the appointment.

8. The parties shall ensure that the child continue to attend therapeutic counselling with Ms B until such time that she determines that she is of no further necessity for the child.

9. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. In relation to the legal costs for the Independent Children’s Lawyer the father pay the sum of two thousand four hundred and seven dollars and sixty seven cents ($2,407.67) within three (3) months from the date of this order.

11. All other applications be dismissed.

12. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same or are destroyed or returned after the expiry of the appeal period.

13. A copy of the reasons for these orders be taken out and placed on the court file.

14. Leave be given to the parties to make available copies of these Orders, the settled reasons, the single expert report and the Children’s Parents Issues Assessment to their respective medical practitioners and to the psychologist for the child.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Machey & Thornton 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 NEWCASTLE

FILE NUMBER: NCC 3235 of 2009

Ms Machey

Applicant

And

Mr Thornton AND Ms Thornton

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. B (‘the child’) is aged nine, and for the second time in her life she is the subject of a full hearing in the Family Court of Australia.  Every year of her life, since 2009, she has been engaged, in one form or another, in some litigation.

2. In December 2012 a judge of the Family Court made orders that Ms Machey (‘the mother’), Mr Thornton (‘the father’) and Ms Thornton (‘the paternal grandmother’) have equal shared parental responsibility for the child, and that the child live with the paternal grandmother.  In addition, orders were made for this then very young child to communicate with the mother.  Various other orders were made.

3. In February 2013, pursuant to those orders, the child received psychological assistance, and that changed 12 months later, when Ms B (‘the psychologist’) became her psychologist.  She has been seeing the psychologist since that time.  The first psychologist was appointed primarily pursuant to the orders of the Family Court.  The second, it is less clear, but arose at times when the child commenced overnight time with the mother, and at a time shortly following the death of the paternal grandmother’s husband.

4. A little less than four years later, when the child was aged seven, she refused to go with the mother’s now husband Mr C (‘the mother’s husband’).  There was a period of about two months when the child did not spend time with the mother.  However, orders were made in December 2016, making some relatively minor changes to the orders.  Since that time contact has continued unabated. 

5. In the context of that period of time the mother commenced these proceedings, and seeks orders that the child live with her.

6. The child has lived with the paternal grandmother since 2009. 

7. The mother now seeks orders as set out in her case outline which is Exhibit E2.  Those orders essentially provide that the mother have sole parental responsibility subject to her, where possible, consulting with the father.  The mother also seeks that the child live with her and spend time with the father on alternate weekends and over school holiday periods. 

8. The overall effect of these orders would be that the child would be removed from the primary care of the paternal grandmother, removed from her current school, and removed from the psychologist, with whom she has engaged over the last four years.

9. In evidence the mother acknowledged that this will have a significant impact on the child, and that the child will be distressed.  The mother has not put in place any meaningful arrangements regarding treatment in terms of the emotional impact which a change of residence would have on the child, and in evidence, dismissed any notion that the child may run away.  I am not that confident that that would be the case. 

10. The mother says the child will have strong family support, primarily from the family of the mother’s husband.

11. The maternal grandmother initially sought orders as set out in her amended response, but during the course of the proceedings became aware of some other allegations of violence in the file of the Department of Families and Community Service.  She provided an option to the Court, of less time with no overnight time, in the event that the Court was concerned about the level of violence in the mother’s household, which is as set out in Exhibit E20.

12. The paternal grandmother, in essence, seeks a continuation of the same arrangements, except that she and the father would have sole parental responsibility for the child.  That the child could spend, in the primary or the alternate basis, one weekend in three, and some time over school holiday periods with the mother.  Further, that there be telephone communication.

13. The father was acting for himself and sought orders, essentially, identical with that of the paternal grandmother.

14. The Independent Children’s Lawyer submitted a minute of final orders, which is Exhibit E19.  That essentially provides that all previous parenting orders are discharged, the mother and father have equal shared parental responsibility for the child, and the child live with the paternal grandmother, and spend time with the mother each alternate weekend, during school holiday periods, the first half in even numbered years and the second half in odd numbered years, and other times as agreed between the mother and father.

15. The Independent Children’s Lawyer also seeks that there be telephone communication, and that the time on the alternate weekends be harmonised in terms, if possible, with the father’s work commitments, if he is successful in his employment.  Changeovers, in respect to the time the child spends with the mother, commence at the conclusion of school or at McDonald’s Family Restaurant at Suburb D.  Further he seeks an order requiring the passing on of information, and for the parties to ensure that the child continues counselling with the psychologist, in circumstances where the mother opposes the continuation of that.

16. The essence of this is to change the parental responsibility to that of the mother and father, but leave the child in the care, or the primary care of the paternal grandmother.

17. The view of the Independent Children’s Lawyer significantly, but not wholly, reflects that of Dr E (‘the single expert’), in her report dated 4 October 2017, where she recommended that:-

    (a)the child live with the paternal grandmother on the condition that the paternal grandmother reviews her parenting with the child psychologist on a regular basis.  It appears, in any event, that is happening in an organic sense, from the evidence of the single expert, who had spoken to the psychologist;

    (b)the child spend significant time, or spend time with the mother, stepfather and siblings, fortnightly, Friday to Sunday, increasing to Monday on public holidays, for either the latter of the next 12 months, or until the father moves out of the paternal grandmother’s home.  What she did not know at that time was that the father’s changed employment circumstances mean that, in one form or another, he will be moving out of the home of the paternal grandmother in about July of this year; 

    (c)when the father establishes a stable household, or after 12 months, it resume back to the current three weekly arrangements; and

    (d)the father and mother have shared parental responsibility with the use of a mediator.

BACKGROUND

1. The paternal grandmother is aged 57.  She is in good health, and she describes her occupation as being “retired”. 

2. The father is aged 28.  He works as a public servant.  I think he is transitioning between roles or assignments.  He has lived in the home of the paternal grandmother for many years with the child, and as I said, he plans to move into his own home sometime after July of this year.  The whereabouts of that home will depend on the nature of his employment.

3. The mother is aged 27.  She has three children: the subject child, Y (aged 10) and Z (aged two and a half). 

4. The mother and father lived together for a relatively short period of time from about April 2009 till November 2009.  The mother and father were both very young at the time of their relationship.

5. The evidence of the single expert was that this child had a disrupted attachment, given the involvement of a court, and the actions of the responsible or so-called responsible adults during the first few years of her life.

6. The mother commenced a relationship with her present husband in January 2010 and they married in 2012.  There were apprehended violence proceedings in March 2011, and in December 2012 final orders were made.  In 2013 there were proceedings relating to the school, a passport and international travel. 

7. In December 2014 there was a violent episode between the mother and her husband, and I have carefully read and acknowledged the material contained in the police report, and the evidence of each of the mother and her husband.  It is significant that this occurred when the mother was two months pregnant with her youngest child.  The mother’s statement to the police was said to be vague, and she does not know whether she was punched or hit with some object.  There was an allegation that the mother’s husband had said to her, “I will make sure you will never see the baby.” 

8. The police attended at the home, and the report shows that they found it to be in a poor condition, and a notification was made to the appropriate child welfare authorities. 

9. The mother disputed many of the facts contained in the police report.  There was also some assertion that the mother’s husband choked her, although both deny this occurred.  The evidence of both the mother and her husband, in relation to the event, was troubling and I am satisfied that the evidence and the extent of the violence was understated. 

10. There was an issue as to whether the child was present on this occasion and for the purpose of this determination, I will accept that the child was not present, although it was likely that the other child, the mother’s eldest child, may have been present.

11. In November 2015 the mother made a complaint to the police who took apprehended violence proceedings against the paternal grandmother.  The parties attended mediation.  Later that month when the matter came before a local Court the parties were ordered to attend mediation. 

12. When the matter came on for hearing the mother did not attend, and as a result the proceedings were dismissed.  The mother gave explanations as to why she did not attend.  I am not satisfied with her explanations in that regard.

13. In July 2016 the paternal grandmother reports that the child told her that the mother had hit her husband whilst he was driving, causing some sort of collision.  The mother and her husband denied this incident.

14. In September 2016 the paternal grandmother reports that the child expressed reluctance to spend time with the mother on 1 October 2016, and on 1 October 2016 the child refused to go with the mother’s husband.  This was a difficult time for all concerned.  It was a time shortly following the death of the paternal grandmother’s mother.  It was a time when neither of the significant women in the life of this child acted appropriately. 

15. The paternal grandmother had declined her son’s very sensible suggestion, that she absent herself from changeovers, and that added fuel to the fire.  I am not sure that she has yet accepted that her hovering may not be in the best interests of this child, having regard to the impact of her working as a volunteer close to the child’s school on Friday afternoons at changeover which must cast a shadow over the changeover.  She did, however, endeavour to make some suggestions to resume contact.  But in any event, it took some time and a court order for the matter to be cured.

16. These proceedings were recommenced, and I note the orders that were made, and the effect of those orders.  A single expert report was prepared.  There was a report prepared also, a “Children’s and Parents’ Issues Assessment”, and that was dated 1 February 2017, closer to the event.  I have had regard to both of those reports, which are Exhibit E15 and Exhibit E16.

THE EVIDENCE

1. The mother relied upon her application filed 11 November 2017, a notice of abuse filed the same day, her affidavit filed 20 December 2017, together with the affidavit of her husband, filed about the same time.  Each of the parties’ case outlines were tendered in evidence, as to the parties’ positions, but not in respect of the facts asserted in them.  The only exception was, in regard to the consistent assertions of facts such as birthdays, separations, et cetera.

2. The father, who was unrepresented, acknowledged the accuracy of the facts in terms of those contained in the Independent Children’s Lawyer’s case outline.

The mother

1. When the mother gave evidence she was flat, in effect.  She conceded that her husband slapped her in December 2014, and she said that the child was not present.  She conceded that there was also an argument with her husband in the middle of 2017, which involved the husband being locked out of the house, and him banging on the windows and the doors, and eventually shutting off the power.

2. The husband confirmed this event, but I am satisfied he understated the impact of it.  The mother said the child was not present, but presumably and possibly the elder child, and perhaps her younger child may have been present.  The mother said she was not physically scared of her husband at that time, but was afraid of his anger.  I am satisfied the mother likely understated these events.

3. As to reports by the child that the mother and the mother’s husband fight a lot, and that the mother has, at least on some occasion, thrown plates, these are subject of denial by both the mother and her husband.  Similarly, the mother denied the hitting event alleged in July 2016.  The mother denied swearing in front of the children, but admitted having yelling arguments with her husband in the presence of the child. 

4. I note that it is also a circumstance that in the paternal grandmother’s house there is yelling.  I wonder how this child will reflect on her childhood when she gets older.  I wonder how she will parent her children, given the lead by these significant people.

5. The mother said she has never smacked the child.  However, there was some issue about the mother and the elder child being involved in a violent game called, “Jump, jump, hurt.”  The mother said she had not heard anything like this and denied that it occurred.

6. The child asserted to the single expert that, when she went to the mother’s home, she had to go to the bedroom when she arrived until dinner.  The child explained, “She just wants me there.  She always does.”  In some levels the mother prevaricated in terms of this evidence.  Clearly the mother did not concede there was any lock on the door, and I am reasonably confident there was no lock on the door, given the objective evidence of the inspection.  But whatever is happening, it is certainly unsettling this child.

7. The mother was cross-examined in relation to the alleged disclosures to the child’s psychologist, set out in pages 27 and 28 of the paternal grandmother’s affidavit.  She denied calling the child, “The little brat.” 

8. The mother denied the accuracy of the police report describing the state of the home, in which the mother and her husband lived in December 2014.

9. In relation to the elder child, Y, the mother acknowledged that he has behavioural problems, but is not violent.  Although, she conceded that there appeared to be some violent behaviour at school. 

10. The paternal grandmother arranged for the child to attend dance classes and sought to change the time of telephone calls between the mother and the child.  This was a simple request, which could have easily been managed.  The mother was inflexible in relation to this, explaining that flexibility led to conflict.  I find the mother was rigid in terms of this approach.

11. The child was offered the opportunity to participate in Girl Guide functions in one month, however, the mother said that this interfered with other arrangements she had made and would not accept makeup or alternate time with the child.  The mother made no concessions about anything positive regarding the paternal grandmother, and dare I say, I do not think the paternal grandmother made any good concessions in favour of the mother.

12. These two women dislike each other with an intensity that crosses the courtroom.  I can feel it.  I see the way they look at each other.  I can see it in the way they have parented this child.  In doing so I suspect they have caused irreparable harm to this child.  That is, it seems to be the evidence of the single expert, and what is really sad is, as I said to them, and as the single expert said, that is unlikely to change. 

13. In her affidavit the mother set out, in paragraph 78, details of an email from the paternal grandmother, and excluded significant words which ameliorate and perhaps change the effect of the conversation.  This could have been given by short circuit or seeking some forensic advantage.  I am satisfied that it is more likely to be the latter rather than the former.  I am satisfied it was created, as with both the mother and paternal grandmother, to make the other one look bad.

14. The mother’s evidence in relation to her impact on the conflict, and as to how she will manage this child if the child is moved, seems to be an indication of significant lack of insight.  The mother was cross-examined as to the impact of removing the child from the care of the paternal grandmother, removing the child from the assistance of her psychologist, and putting the child in another school.  As I said, she had little insight into the enormity of the effect of that on the child.

15. The mother is not in paid employment, and her husband is in full-time work.  The mother does not have a driver’s licence, although to her credit, she is learning to drive, and I am told she does not have to undertake the 100 or so hours that is necessary for people much younger to attain their licence.

16. If the mother is successful in her application, the school which the child would attend, would be about 600 metres from the mother’s home.  The accommodation in which the mother lives is secure, subject to her relationship with her husband, as the home is owned by them. 

17. The mother said that she and her husband were attending a family support counsellor, and there was evidence from that counsellor today.  The mother said that she and her husband’s mother have a good relationship, and they have not had any argument, and denied the children were ever exposed to family violence.

18. I am troubled by the mother’s evidence, and dare I say it, the evidence of her husband, particularly given the material contained in Exhibit E18.  Given the evidence of the police, the evidence of the mother, and the other objective evidence, it is likely that the relationship between the mother and her husband is, at times, violent, and that the children are, at times, exposed to that violence.

The mother’s husband 

1. The mother’s husband gave evidence in accordance with his affidavit filed 20 December 2017.  He was cross-examined. 

2. He gave evidence as to perceptions of the event in October 2016.  He also gave evidence into the slapping event in December 2014.  He was asked whether he endeavoured to choke the mother, and he said his memory was poor in relation to the event.  He said he was upset, but denied that he was angry. 

3. He denied other violence.  As to the events at the home at 2007, he said that he knocked on the doors and tapped on the windows and turned off part of the power to the air conditioning. 

4. He said he has a good relationship with his parents.  That is clear, because they have offered him two houses so far.  I have treated his evidence with some caution, given his denials of violence, and in light of the mother’s evidence, and in light of the other objective evidence to which I have referred elsewhere in these reasons, and which were raised by counsel for the paternal grandmother in his submissions.

5. The paternal grandmother gave evidence in accordance with her affidavit of 19 December 2017.  She confirmed that the child had a meaningful relationship with the mother. 

6. However, watching her in the witness box she can appear at times to be quite gentle, but other times is a very determined and forceful person.  She is, and can be, a force of nature.  Her interaction with the school in various ways has shown that she does not take a step back when perhaps it was appropriate to take a step back.  In terms of her interaction with the school counsellor, with the children in the playground, and in relation to her role in the florist shop near the child’s changeovers, show that she can be determined and can be difficult to deal with at times.

The paternal grandmother

1. The paternal grandmother clearly struggled in terms of her interaction with the school and dissembles in that regard.  It is likely that she is over-protective of the child.  It is also likely that she treats everything that the child says as being accurate, notwithstanding her evidence to the contrary.  I am satisfied that the child will know that if she says something bad about the mother, the mother’s family, that she will get an affirmative response from the grandmother. 

2. At times the paternal grandmother has little insight into her aggression.  I accept that the paternal grandmother is anxious, and is still endeavouring to deal with her losses, in terms of her husband and her mother over the last four years.  In many ways she has enmeshed the child in terms of her grief and her fears, and that is not, in my view, in the child’s best interests.

3. I do, however, accept that the paternal grandmother has taken some steps in relation to managing this grief through counselling.  As I said earlier, I suspect that the child’s psychologist is endeavouring to minimise any damage to the child in terms of the initial discussion she has with the paternal grandmother. 

4. I accept that the paternal grandmother informed a child protection officer in November 2016, that she would not force the child to spend time with the mother.  The paternal grandmother said she would abide by the court orders.  Whilst her behaviour, since the orders of December 2012, has not been without lapse in terms of the orders, she has generally endeavoured to comply with and accept them for that period in October, November and December of 2016.

5. The paternal grandmother, during evidence, was put in a difficult circumstance, in that she had to think on her feet, or on the witness stand, as to how she handles the allegations of violence which were contained in the child welfare files.

6. She talked about supervision, and it is clear that supervision could not effectively work, and the effect of supervision, in this case, would mean that the child did not have a relationship with her mother, or any relationship she had would deteriorate to almost no meaningful relationship, and would undermine the relationship the child has with her elder brother, in particular, and her younger brother, who, as he gets older and becomes more interesting, will no doubt become interesting to the subject child.

7. There was criticism of the paternal grandmother in the child continuing counselling with the psychologist.  I do not criticise the paternal grandmother in that respect.  In many ways it is a very child focused approach given the world in which this child has to live and my task, for the benefit of the parties, is not about doing justice to either one or other of you, but to try and put in place arrangements which meets the needs of this child and in which the courts have, frankly, spectacularly failed over the last nine years of this child’s life.

8. The two reports of the psychologist were annexed to the paternal grandmother’s affidavit.  No objection was taken to the material, nor was she called for cross-examination. 

9. The paternal grandmother cannot say what happened to cause the events of 2016.  I am satisfied it is likely to be two various sets of circumstances.  The first is that the child recognises and understands the paternal grandmother’s reluctance for her to spend time with her mother, which is a terrible position in which to leave that child.  The second is, I think, things were going on in the house of the mother.  The consistent complaints by the child, not only to the paternal grandmother and the father but also outside that, are deeply troubling, and that is, in some way, supported by the evidence of the single expert particularly in terms of the moment when the child was worried about what reaction would come from the mother which she gave evidence about.

10. Given the conflict between the paternal grandmother and the mother, and having read the communications, I am satisfied that the paternal grandmother is trying to engage the child in extracurricular activities not for the sake of upsetting the relationship between the parties, but to give the child some outlet other than school.  The paternal grandmother has put in place some further extracurricular activities this year, and I accept that this was done, from her perspective, in the best interests of the child.

11. The paternal grandmother says that she knows that there is a relationship between the child and her siblings at the mother’s house.  I accept that to be evidence of truth.  I am not sure that she genuinely accepts that there ought to be a relationship between the child and the mother and that, in my view, is deeply troubling.  I assess that from her own perspective the paternal grandmother is endeavouring to tell the truth although, as I have said, at times she is aggressive, overprotective, and carries significant concerns about the mother’s household.

The father

1. The father provided evidence in accordance with his affidavit of 19 December 2017.  He was, dare I say it, a breath of fresh air.  He gave his evidence, truthfully, frankly and carefully.  He certainly sided with his mother, and that is not unexpected, but he made concessions against interest from time to time and gave evidence of his change in his work arrangements or possible change in his work arrangements to which I have referred to earlier.  I have had regard to those. 

2. He will likely be out of the paternal grandmother’s home by July of this year.  He supports the child remaining in the paternal grandmother’s care, which is child focused.  To see the child he will take leave, and he apparently has excess of leave, to ensure the child maintains a relationship with him.  

3. He encourages the child to go with the mother.  He tells me that the child is reluctant to go, and I am satisfied this is indicative of the child’s unhappiness when she is at the mother’s home and her concerns about the perceptions of her by the paternal grandmother.

4. I accept the evidence of the father that after most visits the child complains about yelling which occurs in the mother’s home.  His evidence was thoughtful and careful. 

5. In terms of the relationship with the child and the mother the father said that notwithstanding the refusal of 2016 the overall time had increased and the relationship had continued.  I generally accept his evidence as being reliable.

The single expert

1. The single expert provided her report, which was tendered as Exhibit E16.  Her qualifications were not challenged and she was cross‑examined. 

2. She observed that the child was caught in a conflict between the paternal grandmother and the mother.  She says, and I accept, that the child was somewhat enmeshed in the relationship.  I accept that this is being addressed by the child’s psychologist. 

3. I also accept her evidence that the paternal grandmother requires therapeutic intervention but that, in the circumstance, it ought not to be ordered because if it is ordered it is likely to be pointless. 

4. I accept that the paternal grandmother needs to be able to demonstrate to the child that she can manage in the child’s absence.  That is, that she can manage in the child’s absence so that the child does not have the burden of having to carry the paternal grandmother’s fears and concerns into life.

5. The single expert said the adults need to change their chronic mistrust and poor communication and, more importantly, they have got to stop this conflict, if for nothing else then for this child. 

DISCUSSION

1. You (the parties) have stolen her years none to nine.  She only has a few years left when she can be encouraged to go happily from one house to another and where she is not going to feel burdened by saying to one family something that went on in another house and vice versa.  For a nine year old that is a terrible, terrible burden and, if nothing else, the evidence of the single expert today should have jolted all of the responsible adults in this Court having the care of this child to take some steps to stop that conflict.

2. I endeavoured without success to persuade the Child Protection Authorities to disclose a reporter.  I accept the submission on behalf of the Child Protection Authorities that the disclosure would not in any way assist in the determination of this case, and I heard the evidence of the family therapist for the mother and her husband in relation to her not being the discloser or the provider of the disclosure. 

3. The father was cross-examined by the Independent Children’s Lawyer about the changes to arrangements if the child was in the mother’s care and that the change if he moved out would be not of any significant difference.  However, the mother has shown herself to be rigid and it is likely that if the parenting arrangements were changed that the time the child spends with the father would be significantly reduced and there may be rigidity which would affect the ability for even the alternate weekend.

4. I accept the evidence of the single expert that the paternal grandmother needs to tease out her issues as being different from the child’s issues, and I accept the evidence that this child has her own anxieties given the life into which she has been brought and the circumstances that she has to face.  The background provided by the single expert in terms of the child’s attachment over those years is chilling in terms of how this child will manage into her teen years and into her years beyond.

5. One of the most poignant parts of her evidence was where she said that this child just wants these two women to be friends with each other.  It is a simple thing to ask, probably a simple thing to do if people put their minds to it, but to leave it to the child is unfair.

6. In terms of the change to the mother’s home, the outcome for that, as in accordance with the evidence of the single expert, was that it was not so good at the mother’s home and the parent would need to be a better than average parent.  She was trying to be polite, I think, but she made clear what her view was in that respect.  The single expert was strongly positive about the child’s psychologist and recommended that the engagement with her continue. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-

   (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).

1. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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 either 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 family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

2. The terminology of the section is such that the Court is to presume that it is in the best interests of the child for their parents to have equal shared parental responsibility unless the Court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise, then:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable; and if not

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (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).

   (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).

   (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. I considered the evidence of the psychologist both in her reports and through those of the single expert.  The grandmother at times over parents and overprotects.  Her interaction with the child’s school is aggressive and her voluntary employment next door to the school is indicative, as I have said, of that helicopter parenting. 

7. At times the paternal grandmother takes the word of the child as being absolutely accurate.  An example of that is being locked in her room.  I am satisfied the child is asked to go to her room, but there is no evidence that when she spends time at the mother’s home she is locked in that room. 

8. It is clearly an unhappy place for the child at her mother’s home.  Much of that, I think, has to do with the aggression, but I suspect in watching the mother in the witness box that a lot of it has to do with her deep ache to be the full-time mother of this child.  I suspect from her perception the care of the child in the paternal grandmother’s home is something to which she emotionally and viscerally suffers. 

9. What do I then do with the risk in the mother’s home?  There is a risk.  There is no doubt.  How can it be ameliorated?  This can be achieved in a number of ways.  The first is the continuation of family therapy, and I will not be making an order in that respect but it is happening and has happened.  The second is the age and maturity of this child, that she is no longer a small baby who is not believed.  She will eventually be believed if it continues.  Third, this case will be the last litigation.  Even if the parties decide to file an application tomorrow it is unlikely that this application would be heard in time, for the views of this child would be otherwise determinative.  So it may be an expression of hope over reality, but it is my hope that this is the end of litigation between these parties. 

10. The child has the protection of her therapist, her counsellor.  If things are happening she can tell the counsellor and the counsellor can make reports as are necessary.  She has a decent father who I suspect is at times caught between a rock and a hard place.  The orders I propose to make will empower him to and I expect him to act not in his mother’s interests, and not against his former partner, but solely in the interests of this child.  He seems a responsible young man who has taken on responsible jobs, and his view as the father of this child should prevail over any views of his mother.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

1. I am satisfied, having regard to section 60CC(2)(a) that the child’s primary attachment is with the paternal grandmother, but she has significant attachment to the father.  She is less attached to the mother and that is not the wish of the mother; that is the circumstances in which these matters were dealt with.

Section 60CC(2)(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. Unless the conflict between the paternal grandmother and the mother is resolved the circumstances are unlikely to change significantly, but if this child is left in that conflict, as I have said, the outcomes are not likely to be good.  I have only had regard in this factor in respect of the relationship between the child and each of her parents and not with the paternal grandmother bearing in mind the jurisprudence which I have to address in that respect.

2. There are two ways I need to protect the child.  First, I need to protect the child against the risk and the conflict in the mother’s home and, second, against the anger and perhaps even resentment in the paternal grandmother’s home.  I have discussed those and I have given reasons in that respect. 

3. I have taken the unusual step of delivering oral reasons for one main reason.  I want to talk to the parties and not through their lawyers.  I want the parties to understand how damaging this is to this very precious child.  That is one of the ways I endeavour to ameliorate the risk. 

4. The other will be in terms of parental responsibility, and it is important that the mother have parental responsibility for this child.  She is the child’s mother.  This child will be looking to this person for support in her teen years if she is like any other girl in her teen years, and if she has any commonsense at all she will give you both hell and she needs to be able to talk to the people whom she can trust and whom she knows the other trusts.  Hence, one of the decisions I will be making is that this child be the subject of equal shared parental responsibility of both her mother and her father.  The paternal grandmother can still provide a home for this child and hopefully love for this child, but the decision-making will rest with the parents.

Section 60CC(3) (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. I have had significant regard to the views of this child, particularly in light of the evidence of the single expert as to how the child would react and what the child would need if there was a change of residence.  The child is not in a particularly good place at the moment, but my concern is that if I changed residence that would put the child in an even worse circumstance and the child may end up much worse off than she already is.

Section 60CC(3)(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 have discussed the relationship between the child and each of the responsible people in her life and I have discussed how the risk can be ameliorated in terms of those.  As to the extent that the parents have taken the opportunity with regard to the child, each of the paternal grandmother and the mother can be criticised at some levels, particularly in terms of their communications. 

Section 60CC(3)(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. The father has involved himself significantly in the child’s life to the extent that his employment allows.  The mother has endeavoured to involve herself in the child’s life and to build up time.  Neither the paternal grandmother nor the mother, as I have said, can take pride in their approach in decision‑making. I am particularly concerned about the mother’s poor decision-making regarding the child’s involvement in extra circular activities.

2. Whilst I express hope that this will change, I am realistic enough to know that it probably will not.  However, the paternal grandmother has, from time to time, offered acknowledgement and an olive branch, but these were not accepted.  I suspect such is the communication that neither party know how to deal or trust with the other, hence the involvement of the father.  It is clear that the father provides financially for the support of the child, as does the mother to the extent that she is able to do so.

Section 60CC(3)(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. A change of circumstances for this child would be, in my view, traumatic, and I have discussed that elsewhere in these reasons.  She would be isolated from her friends, from her school, from the psychologist, and would have less time with her father.

Section 60CC(3)(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;

1. There is practical difficulty and expense in the changeovers, particularly given that the mother does not have a drivers licence and given that she has two children in addition to the child coming to the house and there being only one income.  I suspect finances in that family are not entirely easy as well, but if the mother obtains a drivers licence it will make things a little bit easier for all of those involved.  However, the parties have managed with changeover in the past and they will no doubt manage in the future.

Section 60CC(3)(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. As to the capacity to parent, I am satisfied that the parenting provided to this child is good enough, although not optimal.  I am concerned that at times the paternal grandmother puts her own emotional needs in front of those of the child, and I am concerned that the mother struggles, at times, the emotional needs of the child.

Section 60CC(3)(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;

1. The child is aged nine.  She has lived wholly with the paternal grandmother almost all of her life.

Section 60CC(3)(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. The child is of Aboriginal descent, and the evidence from all parties is that whilst they are sceptical about this assertion they have engaged the child in the Aboriginal culture and there is no reason and it ought not to stop into the future.  The mother can engage the child in that culture in the time that she spends with the mother. 

2. I have been asked to put in place an order that the child not be told about the investigations made about her background.  I do not intend to make that order, but I can make it clear in these reasons that if the child is told under her majority then that will be, in my view, a significant failure of parenting on behalf of those who made that disclosure to her.  I cannot make the order as sought because children are far smarter than anyone in this room in relation to technology.  They will be able to do things on computers that none of us can even dream about now, and this is just the start.  To make orders such as that will set up, in my view, another round of litigation in this Court or some other court.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. As to the attitude to the child and responsibility of parenthood, I simply repeat that which I have said earlier. 

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and

Section 60CC(3)(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;

1. As to family violence I repeat that which I have said earlier. 

Section 60CC(3)(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 can only plead with the parties not to come back to court, not to put this child through any more litigation.  Whatever the decision is, it ought to be respected.  The father and the mother should talk and learn to talk safely so they can put in place sensible arrangements.  This child is in year 4.  At best you have got two years before she is in high school and whatever arrangements you think you have in place now, they will inevitably change when she reaches high school. 

2. The parents need to be able to sit down and say, “How can we jointly parent?” because if there is this conflict, and you can almost see it happening now because if the father says she cannot go to that party with alcohol and boys at 13 years old and she asks her mother, her mother may see this as a way to gain the child’s approval, I am not saying you will, but unless you have a joint approach this child’s teenage years are going to be a failure.

PARENTAL RESPONSIBILITY

1. I intend, as I have said earlier, to make an order that there be equal shared parental responsibility as between the father and the mother.  I will, however, provide provision that the mother can sign minor notes at the school in relation to attending sports carnivals and those sorts of things, otherwise the pure day to day dynamics of looking after the child will grind to a stop and the child may miss out on opportunities of which she would otherwise be able to take advantage.

1. The mother will have power to make normal decisions about day to day medical treatment, such as whether the child needs to go and see a doctor or whether the child needs some sort of medication.  If it is any greater than that then that needs to be referred to the parents.  I do not want to stop the normal day to day activities of this child when she gets the flu or a cold or something happens at school and she needs to see a doctor for very minor treatment.  I will be making an order, of course, that the parents keep each other informed as to what is going on.

2. I have struggled in terms of the time the child should spend with the mother, that being alternate weekends or each third weekend.  I struggle in this way.  There is the legitimate need for this child to know who her mother is and have the opportunity of finding a decent relationship with her mother and engaging the relationship with her two brothers.  What I intend to do is make an order that for the remainder of 2018 the time be on an alternate weekend basis.  However, I will leave it open for the father and the mother to consider how that operated in 2018 and if they agree then to convert then back to one weekend in every three in the following years.  This follows the suggestion of the single expert, but also puts in place that power with the mother and the father.  There will be a fallback position to the one weekend in three if they do not reach an agreement. 

3. I will give leave for a copy of these reasons, the single expert’s report, and the child and parent assessment to be made available to the parties’ or the child’s medical practitioners.  I will make the normal orders regarding keeping each other informed as to their addresses. 

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 March 2018.

Associate:     

Date:  24 March 2018