Mallott & Bates

FEDERAL CIRCUIT COURT OF AUSTRALIA
Mallott & Bates [2021] FCCA 1061

File number(s): WOC 165 of 2015

Judgment of: JUDGE B SMITH

Date of judgment: 18 May 2021

Catchwords: FAMILY LAW – PARENTING – final hearing – 3 children – raised by paternal grandparents due to mother and father’s history of anti-social behaviour – father remains incarcerated – mother released - paternal grandparents facilitate time with mother – mother has substantially turned life around - mother actively seeks to alienate children – children believe they were “stolen” by paternal grandparents – 2 older children 16 and 15 years old unilaterally relocated to live with mother – youngest child 10 years old still lives with paternal grandparents – youngest torn between families – feels like a “stretchy doll” – expert evidence – likely youngest will eventually unilaterally relocate to live with mother and siblings – risk of complete alienation from paternal grandparents if that occurs – importance of sibling relationships - assessment of risks in mother’s household – orders to ameliorate risks – mother’s parental capacity adequate – agreement older children live with mother – conflict and poor communication between parties – no real prospect of co-parenting: Order children live with mother –mother to have sole parental responsibility – youngest child to spend regular time with paternal grandparents – older children to spend time with paternal grandparents in accordance with their wishes - supervised time only with father – request extension of ICL appointment – consequential orders.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC,

60CC(2)(a), 60CC(3)(m), 65AA, 65C, 65D

Cases cited:
Adamson and Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Carlson & Fluvium[2012] FamCA 32

Donnell & Dovey [2010] FamCAFC 15

M v M (1988) 166 CLR 69

Re Evelyn (1998) FLC 92-807

Number of paragraphs: 193

Date of last submission/s: 6 December 2019

Date of hearing: 2-4 September 2019, 5-6 December 2019

Place: Sydney

Counsel for the First Applicant: Ms Petrie

Counsel for the Second Respondent: Ms Harris

Counsel for the Third Independent Children's Lawyer: Ms Reynolds
ORDERS

WOC 165 of 2015

BETWEEN:
MR MALLOTT AND MS MALLOTT

Applicant

AND:
MS BATES

First Respondent

MR C MALLOTT

Second Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:
1.That all previous parenting Orders be discharged.
2.That the Care Orders made on 21 August 2009 in City D Children’s Court pursuant to the Children and Young Persons (Care and Protection) Act, 1998 be discharged.
3.That Ms Bates (the Mother) have sole parental responsibility for the children X born 2004, Y born in 2005 and Z born in 2011 ("the children"), and shall advise the paternal grandparents of any long term decisions in regard to the children’s health and education within 14 days of making such decision.
4.That X and Y live with the Mother.
5.That Z live with the mother from the first Monday of the next school holidays period.

Father’s time
6.That subject to Orders 6 and 7 herein, upon Mr C Mallott (the Father)’s release from custody, and provided that he first makes request of the Mother to spend time with the children, then the children are to spend time with the Father for 2 hours each month, to be supervised by a professional contact supervision agency agreed between the Father and Mother (‘the agency’) at such times as nominated by the agency, and in regard to X and Y their attendance at such time is to be in accordance with their wishes.
7.That the father’s time with the children shall be supervised by the agency as agreed between the Mother and Father and the costs of such supervision be paid by the Father.
8.The parents are to promptly comply with all requirements and recommendations of the agency.

Paternal grandparents’ time
9.That the children X and Y spend time with and communicate with Mr Mallott and Ms Mallott (the paternal grandparents) in accordance with the wishes of X and Y, and, the mother shall do all acts and things necessary to encourage and facilitate X and Y spending time with and communicating with the paternal grandparents.
10.That after changing residence the child Z spend time with the paternal grandparents as agreed with the Mother and failing agreement as follows:-
10.1Each alternate weekend from 4.30pm on Friday to 4.30pm on Sunday;
10.2During the December school holiday period, the time in Order 10.1 be suspended and in lieu thereof on dates as agreed and if no agreement on dates nominated by the Mother:
10.2.1for one weekend from Friday at 4.30pm to Sunday at 4.30pm, and
10.2.2for a separate block of 4 nights;

10.3Such other times as agreed between the Mother and Paternal Grandparents.

Special Occasions
11.That on special occasions Z shall spend time with the parties as follows:
11.1That should Z not already be spending time with the Mother:
11.1.1With the Mother on Mother’s day from 9.00am to 5.00pm;
11.1.2With the Mother on the Mother’s birthday for 4 hours;
11.1.3On Z’s birthday for 4 hours

or such other time as agreed.
11.1.4For Christmas each year the children shall be with the Mother from Christmas Eve at 2.00pm until Boxing Day at 9.00am, unless otherwise agreed.

11.2That should Z not already be spending time with the paternal grandparents:
11.2.1On each of the paternal grandparents birthdays, then Z shall spend time with them for 2 hours on a school day from 4.00pm to 6.00pm or for 4 hours on a non-school day from 12 noon to 4.00pm, or such other time as agreed, with X and Y’s attendance to be subject to their wishes;

11.3Such other special occasions as agreed.

12.That should the children request to communicate with the paternal grandparents then the mother is to facilitate such communication.
13.That for the purposes of the changeover for the paternal grandparents’ time, the paternal grandfather is to collect and return the children from the home of the mother, unless otherwise agreed.
14.That the paternal grandparents be restrained from allowing the children to come into contact with the father during any time the children spend with them.

Communication
15.That the paternal grandparents shall ensure that the mother is kept informed as soon as is practical of:
15.1Any medical emergencies, serious medical problems or illnesses suffered by any of the children whilst in their care.
15.2Other matters relevant to the welfare of the children.
15.3The telephone number of the paternal grandfather with any changes to be advised within 24 hours.
15.4Any change in residential address of the paternal grandparents 7 days prior to any move.
15.5The email address of the paternal grandfather with any changes to be advised within 24 hours.

16.That the mother shall ensure that the paternal grandparents are kept informed as soon as is practical of:
16.1Any major medical issues suffered by Z, whilst in her care.
16.2Any change to her email address or contact telephone number within 24 hours of any change.
16.3Her residential address and any changes thereto, 7 days prior to any move.

17.That the mother and paternal grandparents communicate in relation to matters relating to the care, welfare and development of the children:-
17.1By telephone in case of emergency;
17.2By short factual text message or email in the case of a non-emergency.

Restraints
18.That the parents and paternal grandparents are each restrained from swearing at or within hearing of the children, putting the children down or name calling, or using any form of physical discipline with the children or allowing any other person to physically discipline the children.
19.That the parties are restrained from allowing the children to spend time with the following:
19.1Ms E
19.2Mr B, except in the context of Mr B spending time with his children to the Mother in these proceedings.

20.That each parent and the paternal grandparents are restrained from exposing the children to an environment of domestic violence and in the event that domestic violence does occur, is to immediately remove the children from the presence of any such violence.
21.That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence of, or within hearing of the children and that the Father will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence of, or within hearing of the children.
22.That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence of, or within hearing of the children and that the Mother will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence of, or within hearing of the children.
23.That the paternal grandparents shall refrain from making critical or derogatory remarks about the Father, the Mother or members of her family in the presence of, or within hearing of the children and that the paternal grandparents will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father, the Mother or members of her family in the presence of, or within hearing of the children.
24.That the mother, father and paternal grandparents be restrained from criticising or denigrating the other parties or their families on any forms of social media or encouraging others to do so.
25.That all parties (with the exception of the Independent Children’s Lawyer) be restrained from discussing the outcome of these proceedings or where the children are living, with the children or within the hearing of the children, except in the context of therapy with a qualified counsellor/therapist.
26.That within 28 days of the date of these Orders the Mother is to arrange for the children to be taken to the Independent Children’s Lawyer (ICL) at a time of the ICL’s request, for the purpose of the ICL informing the children about the drug and criminal history of both parents to assist the children in understanding their life story and the reasons for them being in the care of the paternal grandparents.
27.That the mother ensure that the children are appropriately supervised at all times whilst in her care.

Drug and Alcohol use
28.That the Mother be restrained from consuming alcohol in excess of the legal limit for driving, being 0.05 (grams of alcohol per 100ml of blood) whilst the children are in her care.
29.That the mother be restrained from consuming any prohibited drugs, or any prescribed medication unless is it prescribed for her by a doctor and only taken in the prescribed dosage.
30.That the father be restrained from being under the influence of illicit substances or alcohol during such times as he is spending time with the children.

Counselling
31.That the mother is to continue to engage with therapy and support services including VANS counselling, Acceptance and Commitment Therapy ACT, Dialectical Behaviour Therapy program and AMS Family Support, for such time as required by the service and for the purpose of this Order the ICL shall provide a copy of these Orders to those services.
32.That within 28 days the Mother is to facilitate each of the children’s attendance at a counsellor for the purpose of dealing with the changes in their placement, to deal with the information about their family history and their relationship with the paternal grandparents and the Mother is to continue to facilitate such attendance for such time as recommended by the counsellor.
33.That for the purposes of Order 31 the Independent Children’s Lawyer be permitted to provide to the counsellor a copy of the Expert Reports prepared by Dr F and a copy of these Orders, as well as a summary of the information provided to the children in accordance with Order 25 above.
34.That the Expert Reports prepared by Dr F dated 23 July 2018 and 13 December 2015 be released to any counsellor or family therapist working with the family, or children.
35.That the Mother encourage the children to have a relationship with the paternal grandparents.
36.That the Mother and paternal grandparents each undertake a parenting adolescents course within 6 months.
37.That all parties refrain from allowing the children to access age inappropriate media, video games and movies.

Independent Children’s Lawyer – Extension
38.The Court requests the Legal Aid Commission of New South Wales to extend the appointment of the Independent Children’s Lawyer for 12 months from the date of this order.
39.The Court grants leave to the Independent Childrens Lawyer to relist the matter on 7 days notice.
40.The Independent Childrens Lawyer is to take make reasonable efforts to provide the father with a copy of these Reasons for Judgment and Orders.

Costs
41.If any party or the Independent Childrens Lawyer seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, and to notify the chambers of Judge B Smith, otherwise there is no order as to costs.

AND THE COURT NOTES THAT:
A.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Mallott & Bates is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE B SMITH:
Introduction

This case is about X, 16 (born in 2004), Y, 15 (born in 2005), and Z, 10 (born in 2011), and what parenting orders are in their best interests.
Their paternal grandparents, Mr Mallott, 69 (born in 1951), and Ms Mallott, 69 (born in 1951), who repeatedly stepped into the breach and lovingly raised these children for extended periods of time when their parents were unable to do so, are the Applicants (the paternal grandparents, or the grandparents).
Their mother Ms Bates, 34 (born in 1987), is the First Respondent (the mother).
Their father Mr C Mallott, 44 (born in 1977), is the Second Respondent (the father). The father’s involvement in the children’s lives has been sporadic and he did not actively participate in these proceedings, in part because he was incarcerated. There was an agreement between the mother, paternal grandparents and the Independent Children’s Lawyer (ICL) who represented the children, that the father’s time with all three of the children should be supervised.
The children lived with the paternal grandparents for extended periods of time pursuant to Court orders. In June 2018 whilst these proceedings were on foot, and the children were living with the paternal grandparents pursuant to consent interim orders, X and Y (the boys), then 13 and 12, “voted with their feet” and changed residence to live with the mother and their half siblings, G, 5 (born in 2016), and H, 3 (born in 2017). The parties, the ICL and the Court accept this as a fait acompli.
The half siblings are the children of Mr B. There was a great deal of evidence about Mr B, none of it complimentary. The paternal grandparents raised a concern about him still being the mother’s partner, which the mother dismissed. The parties and ICL have agreed that the mother shall not allow the children to spend time with Mr B except in the context of him spending time with his children. Having said that, Mr B was not represented and the Court has proceeded on the basis of the parties’ agreement without him having a chance to defend his reputation. Non-contact orders were made by consent in relation to Ms E, who is, or was, in a relationship with the father, for similar reason. Again I have proceeded on the parties’ agreement and in the absence of any person representing Ms E interests. Accordingly, nothing in this Judgment should be taken as a finding against Mr B nor Ms E.
The principal issue in dispute, to which the majority of the evidence was directed, was in relation to Z’s live with arrangement.
In a counselling session on 16 January 2017 (Exhibit 3, at page 9) Z had “named Gran as the first person she thought of when we discussed people that are close or in her heart”.
Z still lives with the paternal grandparents but now suffers from divided loyalties. She knows that the mother and her brothers live together and that they want her to join them. She also knows that the paternal grandparents want her to stay. On 12 June 2019 (Exhibit 3, at page 134) she told a counsellor that:
I then asked her to identify a “not so good thing that happened”, A stated “that I had to go back to Gran and Pops”. A stated that she felt sad, mad and frustrated and she feels she is like a “stretchy doll” as everyone wants her to live with them. She stated that she doesn’t want to hurt her grandparents feelings and often doesn’t tell them that she wants to live with her mother. She stated that her gran “changes the subject” when she does bring it up.
It is clear that the mother and the paternal grandparents all love the children deeply.
Dr F, the single expert child, adult and family psychiatrist retained by the parties, stated that the paternal grandparents “have provided an extraordinarily outstanding service to the children”.
At a time when many people start to consider winding down, they stepped in and rescued the children from placement in care. They then devoted themselves wholeheartedly and tirelessly to raising and educating the children, and continue to seek to do so. Having carefully considered all of the material, I have formed the view it would be difficult to praise the paternal grandparents too extravagantly. In a jurisdiction in which one too often observes the worst in people it is a joy to be reminded of the best.
The mother too has worked to turn around her extremely troubled life to put herself in a position where she can try to be a good mother to the children, despite that there is much to criticise in her conduct, especially her successful campaign to alienate the children from the paternal grandparents. I note that the mother denied intentionally alienating the children from the paternal grandparents but the evidence that she has done so is overwhelming.
Despite their common interest in the children’s welfare, the relationship between the mother and the paternal grandparents is fraught. Unfortunately the mother and the grandmother, who once had a good relationship, no longer communicate.
I emphasise that in this complex case my obligation is to make parenting orders in the best interests of the children pursuant to the principles in Part VII of the Family Law Act 1975 (Cth) (“the Act”). My duty is not to decide what is “fair” between the parties.
Expert evidence
Dr F’s first report was dated 13 December 2015 (Exhibit ICL 1) (the 2015 report) and his second was dated 23 July 2018 (Exhibit ICL 2) (the 2018 report). There was no challenge to his expertise.
The Child Dispute Conference Memorandum of Ms J dated 7 September 2017 was tendered (Exhibit ICL 3) but, in the context of Dr F’s evidence, no party placed weight upon it.

Dr F concisely summarised his final opinion, which did not change under cross-examination, at page 2 of the 2018 report.
Executive Summary
In summary, it appears now that the tide has turned for the children who are moving away from the grandparents towards the mother. Ms Bates does appear to have made some significant progress has now made a substantial case to have the children restored as she is drug and alcohol free, has stable accommodation and is free of any new criminal charges.
Whilst I believe that the paternal grandparents are able to provide the most stable caring arrangement for the children this is unlikely to be successful because realistically now as the children are now in the process being alienated from the paternal grandparents. Therefore, I am suggesting that the children reside with the mother as the primary carer in the hope that a positive relationship with the grandparents could be maintained and that the alienation could stop.
Despite going against what they clearly believe, I recommend that the paternal grandparents in the best interest of the children need to support Ms Bates with as much emotional and logistical support as possible.
By the time of hearing that process of alienation had progressed. The boys were largely estranged from the paternal grandparents, and Z’s relationship with them had significantly degraded.
Dr F considered that the facts, inter alia, that: Z wants to live with the mother, and also with her brothers with whom she has strong and important relationships; her age, and in particular the fact that she will soon be entering adolescence; the ongoing pressure and emotional stress she is under due to her divided loyalties; and, the example of her brothers who have already unilaterally left the paternal grandparents, when taken together make it likely that, regardless of this Court’s orders, Z eventually follow the boys’ lead and unilaterally change residences to live with the mother. It is not known when, but as Z moves towards adolescence the likelihood increases.
On that basis Dr F considered that the best chance of Z retaining a connection with the paternal grandparents would to be for Z to be allowed to live with the mother now.
Dr F carefully considered the risk issues for Z, and the boys, in living with the mother. He also considered the many troubling issues in relation to the mother’s parenting capacity identified by the paternal grandparents and the ICL. However, given the likelihood that Z will eventually “vote with her feet” and move, and weighing that alongside the mother’s current much improved stability and parenting capacity, Dr F recommended that the children live with the mother.
The Court is neither bound by, nor should it merely defer to, an expert no matter how well qualified. To do so would be an abdication of the essential judicial function. However, when a highly qualified expert provides a well-reasoned opinion closely based on the facts as the Court finds them, then it is open to the Court to place considerable weight on that opinion, as I do here.
Final proposals
Across the course of the hearing the extent of dispute narrowed. The principal proposals are set out below. There were a range of other orders sought which are considered further below.
In relation to X and Y, noting in particular their ages, views and wishes and that they have previously unilaterally placed themselves contrary to Court orders, it was agreed that they should they should live with the mother. The paternal grandparents sought equal shared parental responsibility. The mother and the ICL proposed the mother have sole parental responsibility. The mother and the ICL proposed time with and communication in accordance with the boys’ views and wishes. The paternal grandparents proposed an order that the mother facilitate and encourage time and communication.
The majority of the hearing related to Z and in particular who she should live with. The paternal grandparents proposed Z to live with them and that they have sole parental responsibility. The paternal grandparents proposed Z spend time with the mother on alternate weekends. Both the mother and the ICL proposed that Z live with the mother, who would have sole parental responsibility. The mother proposed Z spend time with the paternal grandparents on the first weekend of each calendar month. The ICL proposed that Z spend time with the paternal grandparents each alternative weekend. All parties proposed orders in relation to school holidays and special occasions.
In relation to the time the children spend with their father, there was a consensus that all children should only spend time with him at a supervised contact centre. That may be difficult to enforce if the boys take a different view.
The central issues and decision
The central issues before me include: whether it is likely that Z will eventually unilaterally relocate regardless of Court orders; the assessment of the mother’s parenting capacity; the assessment of the risks associated with the children living with the mother and whether she presents an unacceptable risk; whether Z’s best interests are served by her living with the paternal grandparents or with the mother; and, whether shared parental responsibility is feasible.
For reasons set out below, and noting the relevant considerations pursuant to s 60CC of the Act and the opinion of Dr F, as well as my assessment of the evidence and the parties, I find that it is likely that Z will eventually unilaterally relocate regardless of Court orders. That is the essential foundational finding of fact on which the decision is made. In reaching that conclusion I place significant weight on Dr F’s expertise as a child psychiatrist with specialised knowledge in relation to child development.
I further find that the mother has, to her credit, substantially turned her life around, and that the risk of the mother being so overwhelmed that she returns to drug use and other anti-social behaviour is low. Therefore, there is no unacceptable risk to Z in living with the mother. While the mother may not be in a position to provide the same level of parenting and support to Z as the paternal grandparents, her parenting capacity is adequate.
Given those findings it follows that Z’s best interests require that she change residence and live with the mother, and maintain regular fortnightly contact with the paternal grandparents.
Given the current level of conflict between the mother and the paternal grandparents I find that shared parental responsibility is not feasible. Thus, the parental responsibility must follow the “live with” arrangements for all three children.
Procedural history, witnesses and evidence
The matter was listed for hearing for three days commencing 2 September 2019 and ran until 4 September 2019. The matter was not concluded and continued on 5 December and 6 December 2019.
The paternal grandparents moved on the Amended Initiating Application filed 20 August 2019, relied upon a detailed written case outline dated 29 August 2019 (aide-memoire 1) and read affidavits of the grandfather affirmed and filed on 21 August 2019 and of the grandmother also affirmed and filed on 21 August 2019. They also read, without objection, updating affidavits of each of them affirmed and filed 4 December 2019.
The mother moved on the Further Amended Response filed 16 August 2019, a preliminary case outline dated 30 August 2019 (aide-memoire 2) with proposed orders which were updated during the hearing, read the affidavit of the mother filed 16 December 2019, and also relied upon an amended case outline dated 4 December 2019.
The grandmother, grandfather, mother and Dr F were cross-examined. The parties tendered over 900 pages of documentary evidence, most of it relevant only as background. The parties then made oral submissions to supplement their written submissions.
At the commencement of the hearing the parties and the ICL were put on notice by the Court about their potential failure to adequately notify the father of the hearing date and to provide him with procedural fairness. They all asked to proceed. Accordingly, to the extent permissible, the matter has proceeded on an undefended basis as against the father.
Due to the delay in delivering this judgment, for which I apologise, I have obtained the transcript and reviewed that together with the affidavits, exhibits and written submissions.
Background
The mother’s childhood and early adult life were extremely unstable. The father’s early adult life became dysfunctional. The parents commenced a relationship in 2002. The boys were born in 2004 and 2005. On the mother’s account, largely corroborated by the paternal grandparents, the relationship was an unstable and highly volatile one.
In 2006, when X was 2 and Y 1, the father was sentenced to a term of imprisonment. The mother was not then in a position to care for the boys. They were placed with the paternal grandparents by the Department of Community Services. They lived with the paternal grandparents between 2006 and 2009. The mother engaged in residential drug rehabilitation. In 2009 the mother sought to have the boys returned to her care and the paternal grandparents did not oppose that. The parents reconciled before Z was born in 2011.
In 2012, the mother was convicted on criminal charges and incarcerated for 14 months until she was released in November 2013. The mother sought to downplay the seriousness of the conduct involved. Suffice to say in my view the mother engaged in serious criminality consistent with the penalty imposed. The father and the three children had returned to live with the paternal grandparents. The paternal grandparents also allowed the mother to live with them, which assisted in her application for parole, and so she came to live with the paternal grandparents. This arrangement only lasted a few months, and after conflicts between them, the mother left the paternal grandparent’s home in about April 2014.
The mother was homeless for a while and experienced instability in her relationships and accommodation.
In February 2015 the paternal grandparents commenced proceedings. At that time the mother was in a relationship with Mr B. The mother took Z in March 2015, while apparently still homeless, and a recovery order was granted and executed. In April 2015 interim parenting orders were made for the children to live with the paternal grandparents and for the mother to have supervised contact, with the grandfather supervising.
The parties obtained Dr F’s first report of 13 December 2015 and on 6 September 2016 final parenting orders were made by consent (the 2016 orders) by Judge Altobelli of this Court (as he then was). Those orders were broadly in line with the recommendations in Dr F’s 2015 report. The children were to live with the paternal grandparents. The mother was granted sole parental responsibility in relation to cultural issues for the children and arranged indigenous education for them, and the paternal grandparents were granted sole parental responsibility in relation to other matters, subject to consultation with the mother about major long-term decisions. The paternal grandparents and mother otherwise had equal shared parental responsibility. The father was to spend supervised time with the children. The mother was to spend time with the children on an increasing basis, leading up to each alternative weekend plus school holidays and special days. A number of other orders were made.
The events after the 2016 orders were the major focus of the present proceedings. The mother alleged, inter alia, that the paternal grandparents were neglecting and/or abusing the children. The paternal grandparents denied this and alleged that the mother was seeking to intentionally alienate the children. I note that I categorically reject any suggestion that the paternal grandparents either neglected or abused the children. The only evidence in support of that proposition appears to come from Z repeating to a counsellor things she was told to say by the mother.
Despite the obvious conflict between the paternal grandparents and the mother the children initially continued to thrive in the care of the paternal grandparents.
In March 2018, however, X and Y moved to live with the mother, having expressed a clear view that that was their preference. Initially this resulted in a recovery order application which was granted on 20 April 2018. By 29 April 2018 X and Y had returned to the care of the paternal grandparents. This did not last long. The boys’ intentions were set. By June 2018 the boys went to live with the mother, and commenced spending little if any time with the paternal grandparents.
After some dispute, on 1 November 2018, following the commencement of the present tranche of these proceedings, consent interim orders were made reflecting the reality that X and Y were living with the mother and could not be returned to the paternal grandparents. Z was ordered to continue living with the paternal grandparents. The paternal grandparents allege, and the mother denies, that the boys’ move was at least in part attributable to her seeking to alienate the children from them. I have no doubt that it was.
In this period of great instability for the boys, their previously excellent school attendance and performance and their social behaviours deteriorated. The paternal grandparents contend the mother’s relentless campaign against them continued. It clearly did. It is also clear that all of the children were aware of the conflict between their mother and paternal grandparents.
Throughout this period it seems that the father moved in, and out, of the children’s lives. In 2018 he was imprisoned on drug charges and was not expected to be released until after the conclusion of this hearing. It may well be that he has since been released. Given the way in which the proceedings progressed in his absence, as noted above, he should be given a copy of these Reasons for Judgment as well as the Orders so that he may take legal advice.
The grandfather gave evidence that on 10 November 2019 Mr B was present for a changeover with Z. The mother agreed that was correct. She denied that they had reconciled. She said that he:
…resides in Queensland and needs to see his medical professional that is located in Sydney, for his work compensation claim – he had a workplace injury – which is what happened, and when he comes down to attend his medical appointments, he drops in to see his children.
The paternal grandparents raise Mr B’s involvement in the mother’s life as a negative factor and a risk factor which, given his involvement with his children, is likely to be ongoing. That risk was ultimately reduced by the mother consenting to orders limiting his involvement with the children.
Issues not determined
There were a large number of events and issues relating to the mother’s credit raised by the paternal grandparents in this case. The resolution of those issues would be highly unlikely to be favourable to the mother.
I have considered whether it is necessary to detail and decide these many issues. However, I have in mind what the Full Court said in Carlson & Fluvium[2012] FamCA 32 at [165]-[169] and in particular at [168] about these parties remaining the parents of the children. I also consider the need to try and avoid further conflict in the best interests of the children. See also Adamson and Adamson (2014) FLC 93-622 particularly at [90].
Determination of these individual matters would not add to the assessment of risk or parenting capacity in the mother’s household. I have made my view about the mother’s candour clear in relation to the issue of intentional alienation. It is important that the parties are able to move forward and work together to achieve the best interests of the children. Therefore, while it is clear that Dr F considered all of the matters raised, as have I, I do not consider it appropriate for these reasons to deal with all of the issues in this Judgment.
There was also an issue as to whether or not the boys were actively assisting the mother to alienate Z from the paternal grandparents, and/or were encouraging her to live with the mother. Firstly, there was insufficient evidence to make any finding concerning the boys’ conduct. Secondly, to some extent, the issue also falls within the principles referred to above.
Dr F
Report dated 13 December 2015
The 2015 report was based on interviews conducted on 16 October 2015. Because of the age of the 2015 report, and the change in the circumstances and recommendations between the 2015 and 2018 report, it is only necessary to consider certain relevant aspects of this first report.
It was clear that at the time when the 2015 interviews were conducted, the three children had a very good relationship with the paternal grandparents. Dr F concluded that they were strongly bonded and attached to the paternal grandparents.
The father was interviewed and found to have a dependency on drugs that had resulted in multiple incarcerations and attempts at rehabilitation. He had a great deal of interest in the children, and could potentially make a substantial contribution to their lives. Nevertheless, he lacked the capacity to have any primary caregiving responsibility. The father’s relationship with the mother was described as “very volatile”. Dr F was of the view, at page 31, that the father had “significant dependent personality features and probably qualifies for a dependent personality disorder” with some antisocial features.
Dr F provided a comprehensive description of the mother’s life. She had a traumatic childhood, and her teenage years were possibly even more traumatic. Her relationship with the father was co-dependent and dysfunctional. She struggled to care for the children. Nevertheless, it is clear that she cared very deeply about the children and wanted to be involved in their lives and to be a good mother. At page 21 of the report, Dr F noted that at that time she also “claimed that she loved Ms Mallott and Mr Mallott and that they were like parents to her.”
In terms of the mother’s mental health, Dr F was concerned about her personality instability, the traumatic experiences she had suffered in her life, her emotional fragility, and her antisocial activities and drug use. He identified her as having chronic feelings of abandonment and being undermined, and formed the view that the mother had, at page 33, “a mixture of borderline personality features and dependent personality features and that she had a personality disorder” that would “preclude her from being able to provide adequately for her children as the primary carer.” He said that at “times of distress and using drugs I believe that she would be an unacceptable risk to the children.”
At page 22, Dr F expressed concerns about the mother’s questioning of the boys about their treatment by the paternal grandparents, noting that “she explained to the children that she intended to get them back”. He stated, at page 32, that “I do have some concerns about her questioning of the older two children. She seems to be placing a lot of pressure on them.” He also referred to the fact, at page 34, that the
two boys appear very loyal to the grandparents and also to the mother. I suspect that the mother has been questioning the children about whether they are being well treated by the paternal grandparents and this may be creating some confusion for them.
Dr F interviewed the children and observed them with the parents and paternal grandparents. X and Y wanted to spend time or live with the mother. However, Dr F was concerned about the pressure that the mother had exerted on them. He was of the view that the children were happy to stay with the paternal grandparents, and in any event he was concerned about “a reverse parenting dynamic where they are concerned about their mother's welfare and being with her to care for her.”

It was clear that by the time of the 2015 report the mother had actively started her campaign to align the children with her, and to encourage them to support her in her stated quest to have them returned to her primary care.
Ultimately, at page 37, Dr F recommended that the children remain in the care of the paternal grandparents, stating that they “provided well for the children and I believe will be able to continue into the future to care for them”. He recommended regular contact with the father, monitored and supervised by the paternal grandparents.
He said that “contact with the mother is important.” He stated, optimistically, that:
It would be best for Ms Bates to accept that the children’s best interests are served by remaining with the paternal grandparents with whom they have significant stability and where they are developing well.
He recommended that after a period of supervised contact time, the mother’s time with the children should move to unsupervised contact. Then, eventually there could be day contact and ultimately, fortnightly weekend contact and perhaps some time in the intervening week. In addition to the recommendations relating to drug and alcohol abstinence for the parents and other treatment programs, Dr F stated that “I believe that the paternal grandparents should probably have the parental responsibility although I don’t have a fixed view on this issue.”
Finally, he raised concerns about either parent relapsing:
Should either of the parents relapse into drug use this would be of concern and suggest that either of them are not able to provide any substantial care for the children. Should further relapse occur this would be a worry and contact should remain restricted to daytime contact.
Report dated 23 July 2018
There is no doubt that Dr F was fully appraised of all the relevant evidence covering the period between his 2015 and 2018 reports. The interviews occurred on 12 June 2018, during the process of the boys’ moving residence.
Y told Dr F that he did not get on particularly well with his grandmother and that he was “done living with them.” He spoke of his love for the paternal grandparents in the past tense. He said that he wanted to live with his mother and only see his grandparents every 2-3 weeks for the weekend. X referred to the disagreements he had with the paternal grandparents, and said his grandfather yelled at him. The boys refused to go back. He wanted to live with his mother full-time and see his grandparents every 2-3 weeks, but he added that he also wanted to have a choice to be able to choose not to.
At pages 23-24 of his report, Dr F observed:
The three children appear to have all been developing well in the care of Ms Mallott and Mr Mallott. In fact, X was school captain of K School in 2016 and Y was school captain of K School in 2017. Ms Bates resented the paternal grandparents taking care of the children and absconded with Z on 12/03/15.
Ms Mallott and Mr Mallott have worked hard to provide for the children and to facilitate contact with the mother. In my previous report, the three children responded very well to Mr Mallott and Ms Mallott. Their relationship was strong and there was a good rapport. All three children had a strong attachment to the paternal grandparents.
However, there has been a shift in the past 12 months. The older two children X and Y have become more aligned with the mother. It would appear that they have been influenced by the mother and feel a sense of loyalty towards her. As a result, the relationship between the paternal grandparents has begun to suffer. Z does not seem to have been impacted as significantly as the older two boys have. X and Y are now demonstrating some oppositionality towards the paternal grandparents.
Overall, I formed the view that the children still had a close relationship with the paternal grandparents. However, there has now started a process of negativity and oppositionality as the children have been persuaded to focus more on the mother and feel a need to support her. This negative tide that has started from the children towards the paternal grandparents will be difficult to change as the negativity appears to be growing.
The children, kept ignorant of the truth of their mother’s and father’s criminal histories by the paternal grandparents to protect them, had formed the view that they had been “stolen” by the paternal grandparents. A counsellor reported on 27 March 2017: “I asked [Z] why she lives with her gran and pop and she said ‘gran and pop stole me from mum when I was little’”.
There was a disagreement about how Z and the boys have come to form that view. It certainly did not come from the paternal grandparents, and there is no other identified or likely source, other than the mother.
The ongoing conflict and shift in the children’s attitudes is reflected throughout the evidence of both the mother and the paternal grandparents. The only real issue was in the mother’s denial that she was a cause of their changed attitudes and behaviours. In that regard, the evidence overwhelmingly establishes that the mother engaged in a consistent campaign to have the children align themselves with her and against the paternal grandparents. It was apparent even in her own evidence, though she sought to deny it.
The complexity of the situation is further referred to at page 25 of the 2018 report:
Ms Bates resents them. The dilemma with how to support a relationship between the children and the mother is an ongoing one. If the paternal grandparents support a relationship between the children and the mother, Ms Bates is likely to use that support to influence the children to return to her. If they do not support a relationship between the children and the mother actively, the children will feel resentful that there has been some restriction. Either way the paternal grandparents appear to be in a bind.
Without this dilemma with regards as to how and whether to support Ms Bates, I believe that the paternal grandparents could continue to parent the children effectively. However, with the bind with what to do about Ms Bates and supporting her relationship with the children there is a high risk that the children will reject the paternal grandparents and possibly become alienated from them.
When the mother was interviewed, she acknowledged the poor communication with the paternal grandparents and, Dr F noted, her view was that she was now “functioning well and that she should have the children restored to her”.
Despite what Y and X said to Dr F, he said he observed a “strong affinity” between the children and the paternal grandparents. Interestingly, Y and X comfortable enough with the paternal grandparents to repeat the views that they had expressed to Dr F.
When the mother was observed with the children, all three of them seemed pleased to see her. It became very clear to Dr F, however, that the mother was using the children’s mobile phones as an instrument to divide Y and X from the paternal grandparents, consistent with his concerns about the mother’s alienating behaviour, and the paternal grandparent’s evidence at hearing.
Dr F continued to have a very positive opinion about the ability of the paternal grandparents to provide the needs of the children. His one concern related to their divided loyalties in relation to their son. This is important, because a significant aspect of the mother’s case was that Z would not be safe in their care as they would grant the father unsupervised time with her. At page 24 of his 2018 report, Dr F noted some concerns about the father:
I believe that they are probably minimising the problems that Mr C Mallott is facing in jail. They as yet haven’t discussed with the children what has happened with Mr C Mallott. The children I would expect have some idea that Mr C Mallott’s disappearance may be related to an incarceration. Y clearly was worried about Mr C Mallott. The situation for the grandparents is difficult. Mr C Mallott is now a 40-year-old man but his behaviour indicates that he lacks significant maturity and is unable to be responsible for himself or the children. Therefore the paternal grandparents are torn. If they support Ms Bates then in a sense they feel that they are being disloyal towards Mr C Mallott as Ms Bates is very angry and negative towards Mr C Mallott whom she blames for her life being damaged.
I accept as a matter of fact that the paternal grandparents were minimising the father’s problems and that it is likely they were not properly supervising the father with the children. This is the one criticism I would make of them. However, by closing submissions the paternal grandparents agreed that the only time the father should have with the children would be at a supervised contact centre. Accordingly, I do not see this as an ongoing issue.
While critical of the mother’s conduct in alienating the children, Dr F noted the mother’s good work in seeking to overcome the substantial challenges facing her given her history. He described the mother as “resourceful”, noted she had established her own residence and had “continued to fight for the children”.
Dr F remained, however, concerned about the mother’s instability, and referred to his psychological assessment of borderline personality features and a dependent personality. Notwithstanding this he identified, at page 27, that:
In terms of personal growth, Ms Bates does appear to have matured. She has been having therapy and ongoing counselling for the past 2-3 years. Ms Bates has now stabilised her accommodation. However, she has an enormous load with the two new children that she has as well as potentially wanting to care for the three older children. There is an unclear relationship with Mr B who visits each fortnight. Ms Bates does not seem to have strong supports from her family. She does have supports from Aboriginal Medical Service.
It is possible and I am cautiously optimistic that there has been some significant personal growth. Ms Bates does present as being more stable. She denies any drug or alcohol use. She has not been involved in any criminal activities. Ms Bates is actively involved and supportive of the children. The one area she finds difficult is to be able to support the children in their relationship with Mr C Mallott and her ambivalence and resentment towards the paternal grandparents. […]
Ms Bates does appear to be intelligent and insightful to a degree. She does, I believe, have the ability to provide for the biological, psychological, and social needs. She does pay lip service to the children having a relationship with the paternal grandparents. However, Ms Bates does desperately need the children. She does need them to support her, particularly from the older boys. It is a very difficult task to be a single parent of young children. The support of the older boys would be very helpful to her both financially and emotionally however it could also be damaging towards the boys to be overloaded with responsibilities. At some level, I do believe that Ms Bates is appreciative of Ms Mallott and Mr Mallott even though she is angry and resentful towards them.
Dr F also expressed concern again, at page 26, about ‘[…] a potential reverse caring dynamic’, apparently based on a comment that X made during an interview with the paternal grandparents, indicating that both he and Y assisted with the care of the mother’s other young children.
An issue at hearing was the extent to which the boys were involved helping the mother to care for their half-siblings, and whether or not it extended beyond the normal familiar assistance provided by older to younger children, consequently interfering with their educational development. Given that the boys’ conduct occurred in the mother’s house, the evidence on the topic was limited and it is not possible to make any finding as to whether or not this situation was occurring. It was clearly a risk Dr F had in mind in giving his opinion.
There was evidence before the court about the possibility of more recent drug use by the mother, but it was far from clear. The evidence suggested possible relatively occasional use of cannabis. Of course, the concern is magnified because the mother’s evidence has been that she has been drug abstinent. When Dr F was presented with the findings of the mother’s hair follicle test, he explained that a positive test could show some use in the previous 12 months, and in other words the results may not be very precise.
Dr F’s “Summary and Formulation”, from page 29 of his 2018 report, stated inter alia:
I previously had assessed that the paternal grandparents were the healthier carers to take care of the children. Mr C Mallott has had ongoing problems and had an unstable relationship with Ms E which has now broken down and he is now again in jail for drug use.
Ms Bates in contrast has been free of drugs for a number of years now, appears to be much more stable, and has had no further illegal activities. Ms Bates has been mainly preoccupied with caring for the new two young children and wanting to regain the care of the three older children.
It is yet to be clear about whether she is capable of caring for five children and remain stable which would be a huge task for her as a single parent. The paternal grandparents now appear to be at a loss to know how to react to a difficult situation as if Ms Mallott and Mr Mallott encourage a relationship with the mother and support Ms Bates the children increasingly the children are drifting away from them. They have been influenced to return to the mother’s care through using the mobile phone to stay in touch with the mother through the mobile phone and to report negative things about the paternal grandparents. Should the paternal grandparents try and restrict the mother then they are likely to find the children will revolt against them and this would also drive them back towards the mother. There does appear to be a dilemma now.
In summary, it appears now that the tide has turned for the children who are moving away from the grandparents towards the mother. Ms Bates does appear to have made some significant progress and from the information provided and Ms Bates appears to be coping with her younger two children adequately. She has now made a substantial case to have the children restored as she is drug and alcohol free, has stable accommodation and is free of any new criminal charges.
Although Ms Bates has attempted to undermine the paternal grandparents, the older children are nevertheless strongly attracted to her and despite undermining the grandparents interestingly, I do believe, Ms Bates still holds the paternal grandparents in high regard. Concerning to keep the children with the paternal grandparents I believe would unfortunately antagonise the children and would further alienate the children from the paternal grandparents.
It was put to the grandmother in cross examination that she did not have a very positive view of the mother. In her answer, the grandmother very clearly distinguished between the mother as a person and the mother’s parenting capacity and values. The grandmother believed that the latter were reflected in the boys’ reduced school attendance and commitment to sports, their deteriorating social behaviour and their contact with the law. Despite the conflict, it seems to me that while they do not believe the mother is in a position to care for Z full-time, they also do not think badly of her as a person and recognise the difficult position the mother is in.
Dr F was well aware of all of the difficulties raised by the paternal grandparents in their case when formulating his opinion. He also did not gloss over the mother’s deficiencies, conduct or the numerous challenges facing her, should Z also join the mother’s household.
In his 2018 report, Dr F considered, at page 30, three possible outcomes. The first was that the children remain in the care of the paternal grandparents, but the disadvantage of this was that because “the tide has now turned […] maintaining the children with the paternal grandparents now I believe unfortunately is likely to fail as the children will inevitably vote with their feet and leave the paternal grandparents”. This is what occurred with the boys.
The second was that the children live with the mother, which was likely to be difficult with five children. This scenario would require the support of others, particularly that of the “paternal grandparents”. This arrangement involved the risks of a reverse parenting dynamic and of the mother becoming “overwhelmed,” thereby raising the risk of her reversion to drug use or criminal activity.
The third alternative was a shared arrangement, which Dr F did not believe would be possible, as there was no “adequate communication or cooperation between the mother and the paternal grandparents”.
In summary, Dr F identified no ideal solution. His recommendation was that:
Whilst I believe that the paternal grandparents are able to provide the most stable caring arrangement for the children this is unlikely to be successful because realistically now as the children have been undermined and are now in the process being alienated from the paternal grandparents. Therefore, I recommend that the children be placed with the mother. I am suggesting that the children reside with the mother as the primary carer in the hope that a positive relationship with the grandparents could be maintained and that the alienation could stop.
He also said that if the mother wants a successful outcome she should work to encourage a healthy relationship between the paternal grandparents and the children, and that, if the paternal grandparents could bring themselves to support the mother in raising all five children, it would be in the best interests of the children.
Dr F also recognised the ongoing risks to the children of the possibility of the mother relapsing while they are in her care, stating:
Should the mother either have a relapse into criminality, drug use or be unable to cope with mental health problems, this would be an enormous dilemma for the children. The mother does run the risk of being overwhelmed and being unable to cope and this may then require the removal of all five children. If the mother does have a serious relapse into drug or alcohol use or be further incarcerated then it would be important to place the children again with the paternal grandparents and then offer very restricted contact and perhaps recognition contact until the children were at least 16 years of age.
Dr F Oral evidence
Dr F was made aware of the events between his 2018 report and the final hearing. He was also made aware of the evidence of the parties and other evidence tendered at the hearing. He was made aware of all of the risks and parental capacity issues raised by the paternal grandparents, and the ICL. These mainly reflected ongoing and developing versions of the risk and parenting issues considered by him in his 2018 report. In particular he was made aware of the ongoing problem of the boys’ school attendance and their behaviour problems, which were in stark contrast to their position when they were with the paternal grandparents. He was also taken to the counselling notes, which included Z’s statements about feeling like a “stretchy doll”.
Having considered that material Dr F maintained his opinion that placing Z with the mother, while neither risk-free nor ideal, was the best of the available options.
A range of opinions emerged from cross-examination, confirming his 2018 report position. I emphasise that I do not consider that Dr F maintained his position due to his unwillingness to consider the new evidence; rather, it was because the updating evidence tended to confirm that events had unfolded and were unfolding as he had anticipated.
Dr F made it clear that he considered that the mother had probably overtly and covertly influenced the children to return to her. This Court wishes to make it very clear that it does not accept the evidence of the mother that she has done nothing to influence any of the children against the paternal grandparents. Dr F’s assessment of the mother in this regard is, I find, entirely correct. The evidence about the mother providing the boys with mobile phones and then engaging in text messaging with them made it clear that she used the phones to alienate them from the paternal grandparents. The Court accepts that it was an order of this Court that facilitated the provision of the mobile phones to the boys. It was the mother’s exploitation of the situation that reflects very poorly on her. In cross-examination she admitted that the children were in contact with her regularly. When confronted with the proposition that such regular contact could undermine the authority of the paternal grandparents the mother’s response that “I don’t believe so”, was disingenuous.

Given the events since the 2018 report, including the boys becoming further alienated from the paternal grandparents, and Z’s clearly expressed desire to move to live with the mother and her brothers and her feelings of conflict and being a “stretchy doll”, Dr F maintained his position that this process of the children aligning themselves with the mother, which the mother had set in motion, is unlikely to be successfully reversed. He maintained that the most likely result was that the children would march “with their own feet” to ensure that the outcome becomes consistent with their stated views.
The evidence is supportive of a finding that Z is also in the process of further aligning herself with the mother and being further alienated from the paternal grandparents. With the example of her brothers’ successful unilateral relocations, despite recovery orders, I find that it is only a matter of time until Z unilaterally moves. There was no evidence of her views or behaviours suggestive of any chance of reversing this process, and I give considerable weight to Dr F’s opinion on this topic.
Dr F also thought that if Z was living with the mother it would not be practical to share parental responsibility as this this would probably lead to further acrimony and conflict to the detriment of the children’s possible relationship with the paternal grandparents. Although he suggested that the Court could grant the paternal grandparents parental responsibility in relation to “specific areas” or give them “a particular role”, it is not clear how that could work in practice.
Given the likelihood of Z eventually moving, Dr F considered the best outcome for Z would likely be achieved by allowing her to move and having her spend regular time with the paternal grandparents to avoid an eventual move accompanied by complete alienation from the paternal grandparents. He also considered that the boys might be more willing to have contact with the paternal grandparents if Z was to move.
Dr F was clearly concerned about the distorted belief that Z, and it appears the boys, hold that that they had been “stolen” from the mother by the paternal grandparents. He said:
I think it’s important that the children know that the grandparents are the good guys here, that they, in fact, have stepped in, helped the children, saved the children from foster care or, you know, terrible situations. So, the grandparents have done a great job in supporting and managing the children. The circumstances now I believe since my second report are different. I think the circumstances have changed and that the mother has made significant gains. She may not have an ideal situation. You know, she has got five children now, so she’s going to be stretched, but in order to maintain a good relationship between the children and the grandparents, I think the grandparents need to support the mother and work co-operatively with her.
He also thought that a satisfactory transition into the care of the mother would be best facilitated by ongoing support from the paternal grandparents, which he thought they were prepared to provide, consistent with their long term selfless devotion to the children’s best interests. He further added:
It is the evidence of the grandparents that if Z was sent to – ordered to live with the mother, that they would support the mother, that they would want to be there to help her with the children?---But I think there’s a lot of care from the paternal grandparents towards the mother. I think in a lot of ways there is a sense of feeling some positive sense of respect and support for, her even though they are very concerned about her history and her difficulties coping, and there was quite a strong – particularly in relation to I think between Ms Mallott and Ms Bates at certain points, so there has been a good history. I’m not sure whether that’s – relationship has been sort of severely damaged or whether there can be some repair there.
Dr F considered the solution to Z experiencing a parallel life and being torn between the two households was for her to live with the mother. He thought that it would be difficult to maintain care arrangements that were inconsistent with that of her brothers.
In response to a question about her continuing to stay with the paternal grandparents Dr F said:
I would think that it will become difficult for her if – if she were to stay with the grandparents, and having a different arrangement with her brothers. I mean the – there are a number of high risks here. The high risk is that she could lose her relationship with her brothers, or that she could lose her relationship with her mother, or that, in fact at one point she might feel that she has to choose between her mother and the grandparents. And so, you know, she could lose her grandparents. I mean, I’m fearful that at some point she may feel such pressure that she needs to join her brothers that she will reject her grandparents.
In these circumstances, Dr F felt his proposal was the best opportunity to orchestrate a situation that would allow Z, and possibly the boys, to retain a connection with the paternal grandparents, in the context of the boys having moved already and Z being likely to follow their footsteps.
For Z to lose the support of the paternal grandparents would be, in Dr F’s and in also in Court’s view, a terrible loss. It is clearly a risk if Z does relocate, whether by Court order or unilaterally, if the mother does not support Z’s relationship with the paternal grandparents.
Dr F acknowledged (T2.88.40) with hindsight, that he should have interviewed Z alone, and not with her brothers. He insisted, however, that he did not place significant weight on Z’s stated views, principally because of her age. He clearly understood that to change Z’s residence from the paternal grandparents to the mother would be a significant change for her. Such a move would also involve, for example, a change of school. He understood that the mother had failed to act on the recommendations that he had made in his previous reports. Nonetheless, he explained that this could be at least in part understood in the context of her caring responsibilities and limited financial means.
Dr F had a following exchange with Counsel for the paternal grandparents:
Ms Petrie: Isn’t it more likely, Dr F, that if Z is living with her mother she will lose her relationship with her grandparents, whereas if she is living with her grandparents she will be able to continue to have a meaningful relationship with both her grandparents and her mother?
Dr F: Well, I think that’s the dilemma here, your Honour, that dividing the – weighing up dividing the children, and the potential for the children – for their relationships to be maintained, or whether they’re likely to be lost, or whether it’s realistic for Z to be raised in a separate family and still maintain good relationship with her other siblings, or whether she’s going to lose the relationship with her mother, in time, when it becomes too difficult, and when she has to try and reconcile how she can be with the grandparents and her siblings are with the mother. So I think there’s a lot at risk either way. If the mother is clearly unable to cope with the children, or she relapses into being – severe mental health problems or drug, you know, become sort of unacceptably influenced by drugs and unable to cope with the children, then clearly adding another child on to her would be unwise. But if the mother is functioning reasonably well, can restore a relationship with the paternal grandparents, and the children can be restored – and their sibling bond can be restored, then there is an argument for the daughter to be restored with the brothers and go to the mother. So I think there are all these dilemmas.
Dr F was of the view that the mother was functioning reasonably well. I accept that is a valid interpretation of all of the evidence and I also proceed on that basis. While her parenting capacity, as reflected in the boys’ poor school attendance, was not ideal, there was no evidence of recent mental health instability, nor drug use except as noted above. She had attained stable accommodation and the evidence suggested that she was trying her best in difficult financial and social circumstances.
Whilst much of the mother’s evidence was disingenuous, there was a ring of truth when she said (T1.51.35):
I’m just trying to deadest make sure my kids get to school on time, wash their school clothes and make sure they have a yummy dinner. I’m a mum of five kids, and yet the questions that you’re asking me, in hindsight, yes, totally I agree, but right now I’m actually more worried about what I’m going to feed the kids for dinner tonight. I’ve got five kids. My views about Ms Mallott and Mr Mallott, they are so far back. What’s more important is love, nurturing and making sure that my household runs smoothly because otherwise sometimes my kids are late to school. And I’m going to be real here. So I don’t think I’ve got anything more to say about Ms Mallott and Mr Mallott and the views. I’m not a child psychologist. I’m not a counsellor. I’m not a solicitor. I don’t know. I’m just doing the best I can by loving and supporting and being – doing the best I can as a mother.
In response to a further question from counsel for the paternal grandparents: “isn’t it in Z’s best interests for her to remain living with the paternal grandparents, and that there not be a change of residence in this case?”, Dr F answered: (T2.102.40)
Well, I think that – I mean, it would be easy just to say – keep things the same, because things seem to be working well enough for Z. However, I do think that there’s going to be a change as she matures, and there will be a lot of pressure on Z and it’s not just about Z, it’s also about what’s likely to happen in her relationship with her siblings. And so as I’ve – I think I expressed to his Honour earlier – if the circumstances were likely to be – remain static, and wouldn’t change because of her development, then it would be easy to say that would keep the status quo. But as she grows and matures, there are going to be more changes, and the damage that – further damage – that is likely to occur with her brothers, I think, is a major concern. And I think that that sibling relationship with – that she has with her brothers – is important to restore and maintain, and there would have to be extreme circumstances of danger with the mother that I think would lead me to recommend that she not be restored with her brothers.
Dr F Summary
Dr F was fully aware of the risks and parental capacity issues in this case but nonetheless maintained his view that the best available outcome is for Z to live with the mother. While Dr F described the standard he would apply as “extreme circumstances of danger”, he did not consider such a risk to exist in the current circumstances.
I note that I do not accept or proceed on the standard of “extreme circumstances of danger”. The Court must assess and weigh the risks of each proposal and the other considerations in the context of the Act and the authorities, which do not use that formulation.
The first question for me is whether I accept, as Dr F considered, that the most likely result is that sooner or later Z will vote with her feet as the boys did and end up living with the mother regardless of anything this Court may order. Having considered all of the evidence, including Dr F’s opinion, on balance I find that the likelihood is that Z will eventually unilaterally relocate to live with the mother and that, as with the boys, when that happens it will not be feasible to return her to the paternal grandparents against her will.
The same factual matrix and pressures which led the boys to unilaterally change their primary residence remain in play. They are in fact, in my view, significantly augmented by the fact that the boys now live with the mother. I think that the overwhelming likelihood is that eventually Z will be “stretched” too far and will eventually relocate. Z is ten; Y was only twelve when he relocated with X. This example set by the boys is likely to encourage her to follow their footsteps. It is difficult to predict when, but I anticipate that it will be sooner than later given her age and these factors. As the events surrounding the recovery order for X and Y in 2018 have demonstrated, this Court has no more power to hold back the “tide” than did King Canute.
I accept Dr F’s analysis of the three possible outcomes and various risks associated with them. The boys having moved and Z being likely to also relocate, the first option of keeping the children, or now Z, with the paternal grandparents is likely to fail. If this option is tried but fails, there is a high likelihood that the children will be completely alienated from the paternal grandparents. The third option of shared care is, I find, unworkable due to the inadequate communication, cooperation and trust between the parties.
That leaves the second option of Z now also living with the mother. Although it is, as I find it, ultimately inevitable, before the Court will order that move it requires an assessment of the risks identified by the parties and Dr F, including inter alia the risks posed by the mother’s mental health history, as well as the possible exacerbation of the mother’s poor financial and social circumstances (by having all five children in her care), which may cause her to relapse into drug use or other anti-social behaviours. This assessment also includes a consideration of the possible negative impact on Z’s educational and social development if the mother is unable to get her to school. There is also a risk that Z will become enmeshed in a reverse parenting dynamic.
While I do not accept the statement of the standard adopted by Dr F as appropriate, I understand his opinion to be that given the mother’s current functioning she is not an “unacceptable risk” to Z, or the boys, and that while her parenting capacity is not as good as the paternal grandparents it is adequate. I applying the accepted legal tests of unacceptable risk and in assessing parenting capacity I have come to the same conclusion.
X and Y
The outstanding issues relating to X and Y are required to be determined pursuant to the principles as set out in the Act. However, the factual matrix and outcomes are so clear that, in my view, it is unnecessary to set out here a detailed analysis of the application of the relevant s 60CC factors. Those will be considered along with the analysis concerning Z.
The issue of parental responsibility in relation to X and Y is relatively narrow. The paternal grandparents conceded that the boys should live with the mother. They sought equal shared parental responsibility with the mother. The mother and ICL opposed this. Dr F thought that equal parenting responsibility as proposed by the paternal grandparents was impractical given the communication and trust issues between the mother and the paternal grandparents. Indeed he was concerned that it would merely cause more opportunities for conflict between the parties. The lack of trust and communication issues, as well as the prospect of conflict in relation to decision-making matters were clearly reflected in the evidence.
Accordingly I find that it is not in the best interests of X and Y that there be an order for equal shared parental responsibility involving the paternal grandparents. An order for sole parental responsibility in favour of the mother will be made in relation to the boys.
The issue of the order for X and Y to spend time with the paternal grandparents is also relatively narrow. In essence, all parties, including the ICL, proposed that X and Y spend time with the paternal grandparents, consistent with their wishes. The order proposed by the ICL in this regard is adequate. However, order 3 proposed by the paternal grandparents in the orders annexed to their case outline document is an important one. Their proposed order requires the mother to do all things necessary to encourage and facilitate X and Y spending time with and communicating with the paternal grandparents. I agree and will make that order.
One can only hope that the mother understands the importance of the boys retaining their relationship with the paternal grandparents and the potential benefit they will gain from that relationship. She should also understand how much support they will lose if they cannot be reunited. Further, it is clear that a strong relationship between all of the children and the paternal grandparents will almost certainly support the mother’s parenting of the children.
The issue of parental responsibility in relation to Z is also a relatively discrete one. Given the current level of conflict and low quality of communication this is a case where parental responsibility must be granted solely to the person with whom Z lives, as I consider any order for shared care to be unworkable and therefore, not in the best interests of Z. Accordingly, parental responsibility for Z will follow the “live with” order and rest with the mother.
Z
Best interests and primary considerations
The Court is required to regard Z’s best interests as the paramount consideration when making parenting orders. (ss 60CA, 65AA and 65D of the Act). The Court must consider the primary and additional considerations set out in s 60CC of the Act. The primary considerations are “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” and “the benefit to the child of having a meaningful relationship with both of the child's parents”. The Court is to give greater weight to protection from harm. There are a range of additional considerations, not all of which will be relevant in all cases.
There was no challenge to the paternal grandparents’ standing to seek parenting orders (s 65C). There is no presumption in favour of the mother as a “parent” in the context of the consideration of the children’s best interests. See Re Evelyn (1998) FLC 92-807, and also Donnell & Dovey [2010] Fam CAFC 15. Section 60CC(2)(a) refers to the benefit of the child having a meaningful relationship with both of the child’s parents. I am satisfied s60CC(3)(m) enables the Court to explore the issue of Z’s meaningful relationship with the paternal grandparents as a relevant consideration and also a consideration of the paternal grandparents’ in relation to the various s 60CC factors which otherwise refer only to parents.
The totality of the evidence clearly indicates that Z has a “meaningful relationship” with the mother and the paternal grandparents, but not necessarily with her father who has been absent in her life for extensive periods.
That there would be benefit in these meaningful relationships continuing is self-evident from the evidence, particularly of Dr F, but also of the parties.
On the paternal grandparent’s proposal, the court is satisfied that Z would be able to continue her meaningful relationship with the mother. However, if Z decides to “walk” there is a significant risk that Z’s alienation from the paternal grandparents will become complete. Thus, their proposal involves, I find, a significant medium- to long-term risk that Z may completely terminate her relationship with the paternal grandparents, and that if she does that the relationship may never recover.
On the mother’s proposal, and accepting as I do Dr F’s concerns, there is also a real risk that Z’s meaningful relationship with the paternal grandparents will be threatened, if not lost, if the mother does not cease her alienating behaviours. Whether this occurs or not will at least partly depend on the mother’s compliance with orders that this Court makes, not just in relation to her facilitating Z’s time with the paternal grandparents, but also in relation to the extent in which the mother engages in the therapeutic work she has proposed, which will enable her to see the importance of Z’s relationship with the paternal grandparents.

Compliance with court orders is notoriously difficult in children’s cases in the absence of the Court’s continued supervision. Although I have considered whether it may be most appropriate to put in place interim orders to allow ongoing supervision by the Court, ultimately I am not satisfied that this is a case for interim orders. However, I think it is an appropriate case in which the Court should request the Legal Aid Commission of New South Wales to extend the appointment of the ICL for 12 months after the making of these orders. In that context I propose to grant the ICL leave to re-list the matter in relation to the interpretation, enforcement and implementation of these orders. Such efforts will provide a reasonable level of supervision. The mother will know that she is accountable to comply with the orders. If Z’s relationship with the paternal grandparents can be maintained by regular contact and communication with them, at least for the first 12 months after the making of these orders, then this may set the foundation for the continued maintenance of the meaningful relationship that already exists between the paternal grandparents and Z.
Dr F made it very clear that in his opinion it was important for the children to continue to have a meaningful relationship with the paternal grandparents. I also find that to be the case. X and Y clearly had maintained this meaningful relationship with the paternal grandparents in the past. Their observed interactions with the paternal grandparents in the 2018 report interviews suggest that their relationship still may be viable, despite the recent absence of physical contact and communication.
The relatively limited issues the Court had to decide in relation to X and Y were determined irrespective of the issue of meaningful relationship. One must not overlook, however, that Dr F believed that the issue of meaningful relationship between the paternal grandparents and X and Y, was potentially linked to the meaningful relationship between the paternal grandparents and Z. In short, the Court accepts that if Z’s meaningful relationship with the paternal grandparents is maintained, it is more likely that the boys’ relationship with them will also be maintained, or revived, which will be in both Z’s and the boy’s interests.
Viewed solely from the perspective of meaningful relationship, an order for Z to live with the mother presents with certain challenges that were clearly identified by Dr F and also confirmed in the mother’s evidence. If other considerations predicate that the best interests of Z are served by her living with the mother, then the potential risk of Z losing her meaningful relationship with the paternal grandparents may be at least mitigated via post-orders supervision by the ICL of the time with orders with the paternal grandparents. However, there is also the fact that if one accepts, as I do, that Z living with the mother is likely to be the eventual outcome regardless of the court’s orders, then the risk of alienation from the paternal grandparents when she leaves because she has not been allowed to move now must also be taken into account.
The court must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There is no such risk associated with the paternal grandparents. Once they conceded that any time between the children and the father had to occur in the context of a supervised contact centre, all that was left for the Court to explore were issues of insight and attitudes reflected in the unwise stance that the grandparents initially adopted, that they would supervise the father’s time with the children.
The risk of harm in the mother’s household is an issue that was extensively covered by Dr F in cross-examination and also in the evidence of the parties. Dr F considered that unless there was “extreme circumstances of danger” in the mother’s household the children should all live with her. He was satisfied that no such “extreme” danger existed. I do not accept that particular formulation. I consider that risks must be assessed in the usual way, taking into account on each scenario the nature of the risk, the likelihood of its occurrence and the consequences of it eventuating as well as the availability of safeguards to ameliorate the different aspects of risk. (See M v M (1988) 166 CLR 69 and B and B (1993) FLC 92-357 especially at 79,778).
Although Dr F has used a particular formulation which I do not accept, considering the totality of his evidence, it is clear that he considered that there was not an unacceptable risk and that the risk-benefit analysis of not moving Z resulted in a worse result than the risk-benefit analysis of moving her to live with the mother.
When his reports and his oral evidence are examined critically it is clear to the Court that he had not only accurately identified the risks associated with the children being in the mother’s care (which were also pointed out to him in cross-examination), but he also assessed and considered that these risks are already well managed, or manageable in the future, subject to the unavoidable risk that if the mother becomes overwhelmed with five children in her care that she may relapse.
When the mother’s and ICL’s cases are also critically examined, the same conclusion can be drawn. Even though the ICL supported the mother’s main proposal, she did not seek to minimise the risk or parental capacity issues.
The paternal grandparents’ case emphasised the risk of harm to Z if she was to live in the mother’s full-time care, but principally raised issues associated with what was described in submissions as concerns about the mother’s parenting capacity. In essence, much of the case was focussed on the concern that Z’s educational and social development would deteriorate in the same way that the boys’ did. It was also raised that Z helping the mother as an additional carer for the two youngest children might create a reverse parenting situation. These are valid concerns.
A risk of harm raised was in relation to the mother’s comparatively recent hair follicle test that tested positive for cannabis, as well as her involvement with Mr B.
The Court has already dealt with the former issue via discussing Dr F’s evidence and is satisfied on balance that the mother’s drug use is unlikely to put the children at risk of harm at this point in time.
The inevitable involvement with her life of subsequent partner Mr B because of his involvement in the lives of the halfsiblings is was another factor potentially exposing the children to an adverse influence. However, the consent orders restricting his involvement with the children adequately ameliorate that risk.
Dr F warned of the possibility of the mother relapsing, particularly if not adequately supported. In this regard, however, the mother’s own proposed orders provide some reassurance. She herself proposed orders in relation to drug and alcohol use. She proposed orders for her to continue to engage with therapy and support services, no doubt partly in response to Dr F’s recommendations. The ICL proposed similar orders. Thus, whilst the risk of relapse is real and cannot be avoided, the period of years during which the mother has been stable and avoided relapse provide some comfort that she now has an established recovery. This circumstance makes the likelihood of a relapse lower. Provided the mother complies with the orders that she herself proposes, the risk of relapse becomes, in my view, manageable and appropriately managed. A period of supervision by the ICL, after these orders are made, will function as a further safety net in regard to the risk of relapse in that period.
Z’s views
The Court must take into account any views expressed by the children and any other factors such as their maturity and level of understanding, that the Court thinks are relevant to the weight to give their views. The focus, of course, is on Z. She has expressed the view consistently, and in a range of settings (i.e. to her counsellor and Dr F) that she wants to live with that the mother. The real issue for the Court is how much weight should be placed on those views, in the current circumstances where the evidence suggests that her views were influenced by the mother, and possibly her brothers. Moreover, the evidence was clear that Z was feeling torn and was clearly aware of the conflict between the mother and paternal grandparents. Thus, her views may have been affected by this. This does not exclude the possibility that at least some part of Z’s views are based on her own experience of living apart from her brothers, the mother, and her new half siblings.
Z is now ten years old. She presents as a relatively mature child caught in a very difficult family situation. Her loyalties are divided. She loves both the mother and the paternal grandparents. She has been exposed to the pressure and influence of the mother and possibly her brothers. She has expressed the view that she would prefer to live with the mother, and spend regular time with the paternal grandparents. The court is prepared to accept that her view is genuinely felt, whatever the causes. Z’s views are a relevant consideration in this case, but not a determinative one. However, the fact that she holds these views now, and that the tide is likely to continue in that direction, is also relevant to the assessment of the likelihood that she will eventually act on her own views and move, if the court does not give effect to her views.
Z’s relationships
The Court must take into account the nature of Z’s relationships with each of her parents and any other persons including grandparents. Based on the totality of the evidence before the Court, including Dr F’s report, it is clear that Z has strong relationships with the paternal grandparents, the mother and the boys. It is unlikely that Z’s relationship with her father could be described as a strong one, due to his absence from her life.
The orders proposed by the paternal grandparents would probably result in Z’s relationships with the mother and brothers being sustained. For reasons that have already been identified, following the mother’s proposal would pose a risk to Z of losing her relationship with the paternal grandparents, especially if the mother does not comply with the orders in relation to the time with the paternal grandparents. However, the risk of a loss of the relationship with the paternal grandparents also exists on the paternal grandparent’s proposed orders if they result in Z “walking” and she decides it is easier to terminate that relationship completely when she does.
Opportunity to participate
The Court must time take into account the extent to which Z’s parents have taken, or failed to take, the opportunities to participate in decision-making about Z, to spend time with her, and to communicate with her. Once again, although this particular paragraph refers explicitly to parents the Court intends to rely on s 60CC(3)(m) to interpret this paragraph by reference also to the paternal grandparents.
The history of this case demonstrates that the paternal grandparents had sole parental responsibility in relation to Z for a considerable part of her life. The mother is critical of them for what she perceives to have been her exclusion from decision-making. Indeed, she felt marginalised, even in relation to issues where the orders required her to at least be consulted. The Court does not accept this criticism. Indeed, on a close analysis of the evidence, it was the mother who took matters into her own hands, not just in relation to Y and X, but also Z, and excluded the paternal grandparents, even at times contrary to orders. However, this consideration ultimately does not inform the Court’s decision.
Likely effect of change in circumstances
The Court must consider the likely effect of any changes in Z’s circumstances, including the likely effect on her of separation from a parent or grandparent, or other significant person in her life. At a physical level Z will experience physical changes, including not only where she lives, but also where she goes to school. There is nothing to suggest, however, that she could not cope with these physical changes. I think it would be adverse to Z’s best interests to change her school prior to the end of the school term. It would be easier for Z if the change occurs at the commencement of the next school term, preceded by a change of residence during the holidays.
Z already regularly spends time with the mother and her brothers, and there was very little evidence to suggest, or submissions made to the effect that she would struggle to adjust to living with the mother.
The real issue in this case is how she would adjust to moving from the primary care of the paternal grandparents, who have been her faithful and capable carers for most of her life. Any such change would occur in the context of a case where there is a clear doubt about the mother’s willingness and capacity to foster and encourage Z’s continued relationship with the paternal grandparents. The potential loss to Z of losing her relationship with the paternal grandparents is a significant one. Dr F spoke eloquently about the strength of this relationship and how its loss would be detrimental to Z. This issue has already been dealt with above.
Even as the court accepts that Z’s view is that she would like to live with the mother, it is equally clear that she would also like to have regular time with the paternal grandparents. If this arrangement can be made and followed, then the likely effect of her moving to the mother’s home would not undermine her relationship with the paternal grandparents. I already discussed the issue in relation to the mother’s compliance with any orders made to this effect. What is needed in this case is the mother’s commitment to facilitating this vitally important relationship for Z, and not just in a nominal sense.
Despite the doubts, there are some encouraging indicators in this regard. In cross-examination the mother indicated that she would support this relationship. She explained that she was hopeful of fixing her own relationship with the paternal grandparents because they were important people in her life. She indicated a willingness to attend family therapy. In her own orders she proposed to encourage the children to have a relationship with the paternal grandparents. If all of these things occur, and if orders are complied with, particularly under the ICL’s supervision for the first 12 months, there is a good chance that Z can continue her relationship with the paternal grandparents.
Capacity to provide for Z’s needs
The Court must consider the capacity of Z’s parents, and paternal grandparents, to be able to provide for her needs, including emotional and intellectual needs.
In the mother’s case, some concerns were raised about the paternal grandparents’ capacity to care for Z. The Court categorically rejects any suggestion that the paternal grandparents have abused or assaulted any of the children when they were in their care. It is possible that the paternal grandparents struggled at times while raising adolescent boys, and the significance of this issue is that Z is also entering adolescence. The issue is partly related to the Court’s earlier observations about Z’s growing autonomy.
The mother raises, inferentially if not expressly, whether the paternal grandparents have now and will continue to have in the future the capacity to meet the emotional needs of an adolescent girl who wants to live with the mother and brothers as they enter their 70s. The court has no doubt that they would do the very best they can, motivated by a lifelong love for all of the children, and a solid track record of exceptional care and that they would competently provide for Z’s needs.
Concerns about the mother’s parenting capacity abound in this case. They were identified and discussed by Dr F. Clearly it was legitimate and well-founded concerns about the mother’s parenting capacity that have motivated the paternal grandparents to have Z remain in their care.
They raised concerns about the mother’s current capacity to meet the needs of the four children in her care, particularly in circumstances where the evidence indicated that the boys were not consistently at school and had encounters with the law. However, the mother also presented evidence that these issues were now being addressed, and that she was being supported in addressing those issues, for example, X becoming involved with the PCYC and other youth programs.
The mother provided plausible explanation for some of the boys’ school absences, some of which appear to actually be lateness rather than absence. She explained that the boys were in learning support programs. Where the boys have experienced disciplinary problems at school, the mother said that she discussed those issues with them. She had met with their school principal. The mother pragmatically, and realistically, acknowledged that the conflict with the paternal grandparents was a contributing factor that hinders her ability to parent the boys.
There can be no doubt there are concerns about the mother’s parenting capacity. Dr F’s own confidence about this issue is a measured one. There is a question about how she will cope with five children in her care. Despite the fact that the mother is in a better place today than she was five years ago, and that she impressed Dr F with her persistence and seeming resilience, the quality of her parenting capacity is not as good as that of the paternal grandparents. This is possibly because of the stress of dealing with four children in her financial situation. The risk that she may be overwhelmed by her circumstances and that her stress will impair her parenting, even if she does not relapse, is real.
In cross-examination the mother did, however, present as having an understanding of the practical, financial, and emotional challenges associated with taking care of all of her children. If Z and her brothers in fact spend regular time with the paternal grandparents, then the mother can get some much needed respite from the constant demands of parenting five children and this support may enhance her parenting capacity. From this perspective, it is very much in the mother’s own interests to facilitate and encourage the children’s ongoing relationships with the paternal grandparents.
Whilst the paternal grandparents are able to provide more consistent and stable care, I am satisfied that the mother is, as Dr F said, able to adequately provide for Z’s needs.
Maturity, sex, lifestyle and background
The court must consider the question of parental attitudes to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, and in this case, of the paternal grandparents. The focus is on Z, but often parental attitudes are reflected in their actions toward other children, and thus the experience of the boys is highly relevant.
The sad history of this case is that the mother struggled to care for the children in the past. She faced substantial adversity. The mother made certain life choices, affected by her own traumatic childhood, which made it difficult for her to prioritise the children’s needs over her own. The mother’s attitude towards the children, and to her responsibilities as a parent, was significantly influenced by her past mental health issues, drug and alcohol abuse, criminal activity and inappropriate and sometimes violent relationships. There is no doubt that because of the mother’s experiences, the children received less than optimal care from her.
The mother contends, and Dr F tentatively supports, and the court broadly accepts, that the mother’s life has changed for the better. I accept that she has matured and I accept is now doing the best she can to be a responsible parent in difficult circumstances. She appears to realise, or is at least beginning to realise, that she cannot parent the children on her own, and needs to draw on the potentially substantial resources available to her, such as assistance from the paternal grandparents. I hope that she is able to accept help from the paternal grandparents, for the children’s sake, and also for the mother’s sake.

Notwithstanding the above, the Court is concerned about the mother’s conscious failure to support the important relationship between the paternal grandparents and the three children, X, Y and Z. The Court can only hope that this poor attitude will change with the end of these proceedings.
Least likely to lead to further proceedings
The Court must try to make an order that is least likely to lead to the institution of further proceedings. It will be very difficult to achieve this for Z. If the Court orders that Z continues to live with the paternal grandparents, then in all likelihood, Z will eventually decide for herself where she lives, and will move in with the mother. This likely development poses a risk of litigation. If the Court orders that she lives with the mother, and if this placement fails because, for example, the mother relapses into previous behaviours, then further litigation initiated by the ICL or the paternal grandparents is a likely result. I take these risks into account.
Other considerations
There are no relevant issues in this case about child support or maintenance obligations as between the mother and the paternal grandparents. Furthermore, there is no issue of practical difficulty or expenses in relation to Z spending time with and communicating with a parent and the paternal grandparents.
The Court must consider the maturity, sex, lifestyle and background of Z and her parents, as well as any other characteristics of Z that the Court thinks are relevant. These considerations have already been addressed, where relevant, in these reasons.
The Court must consider family violence and any relevant family violence order. There are no relevant issues between the parties to this case. Although the mother has been in violent relationships both with the father and then her subsequent partner, the orders that she proposes adequately protect the children in this regard.
The mother identifies as an Aboriginal. The children’s right to enjoy their aboriginal heritage was strongly supported by the paternal grandparents in practical ways during the children’s time with them. An example of this was when Y received a “Deadly Encouragement Award” in 2017, which is an award for outstanding attendance, application and achievement from the NSW Aboriginal Education Consultative Group. The children’s capacity to enjoy their heritage would not be impaired by either set of proposed orders as they would be having time with the mother on either proposal.
Decision
This is a difficult decision in a complex case. While I have concerns about the unavoidable risks to Z of living with the mother and with regards parenting capacity issues particularly related to schooling and social development, on balance, given my findings that Z is likely to place herself with the mother in due course despite any Court order, and that the mother possesses adequate parenting skills and capacity to provide for Z’s needs, and importantly does not pose an unacceptable risk to Z, I find that it is in Z’s best interests for her to live with the mother and her brothers.
I believe that the Court’s orders for Z’s regular time and communication with the paternal grandparents, which is to be supervised by the ICL for compliance, will adequately preserve Z’s connection and bond with the paternal grandparents and that making the order to move Z now is more likely to preserve her relationship with the paternal grandparents.
Orders
Unless the paternal grandparents, the mother and the ICL can reach a different agreement, the Court sees no reason for the proposed changes to be made before the end of Z’s present school term. This will reduce the interruption to Z’s education and hopefully make the transition easier.
As foreshadowed the Court will request the Legal Aid Commission of New South Wales to extend the appointment of the ICL for 12 months from the date of the orders. The court will also grant the ICL leave to relist with on short notice in relation to the interpretation, implementation and enforcement of these orders.
Z will live with the mother, who will have sole parental responsibility for Z. Nevertheless, consistent with the order proposed by the ICL, the mother must advise the paternal grandparents of any long-term decisions she makes in relation to the health and education of the children; in other words, not just of Z but of X and Y as well. The Court notes that this is an order that the mother herself proposed.
The orders proposed by the ICL, discussed below, represent a sensible proposal.
As previously discussed, and as agreed between the parties, any time between the father and the children is to be supervised. In this regard, orders 5 – 7 as proposed by the ICL are appropriate.
X and Ys’s time and communication with the paternal grandparents is to be in accordance with their wishes, as previously foreshadowed in these reasons. Order 8 proposed by the ICL is suitable with an obligation on the mother to promote this relationship.
Z’s time with the paternal grandparents is to be in accordance with order 9 of the ICL’s order. In effect, this would be each alternate weekend from 4:30pm on Friday to 4:30pm on Sunday, and otherwise as set out in the order. The Court acknowledges that the mother’s proposal was for Z to spend time with the paternal grandparents for the first whole weekend of each month. The court is not prepared to make such an order. Z’s relationship with the paternal grandparents is too important to reduce the frequency of spending time to once each calendar month. The Court is not satisfied that the reasons the mother gave to reduce the frequency are justified. Indeed, the Court is concerned that the mother’s proposal in itself reflects her underlying attitude about the importance of Z’s relationship with the paternal grandparents.
The ICL’s order 10 deals with special occasions. This order needs to be redrafted so that it refers only to Z, and not the boys. Order 10, as presently drafted, would otherwise be inconsistent with order 8.
The remaining orders will refer to Z only except where there is an obligation to communicate information. The restraints commencing from order 17 of the ICL’s minute are appropriate. They are clearly in Z’s best interests and are a proportionate response to the risks and issues identified. The orders for counselling and other related matters commencing from order 30 are clearly appropriate and are largely consistent with the mother’s own proposal.
As agreed between the parties, the ICL is requested to meet with Z, and also X and Y if they agree, to explain these orders, and to summarise why I have made these orders. The children are entitled to know not only the outcome of this case, but also the reasons behind such orders.
The boys, given their ages, are entitled to know their life stories. The same information should be shared with Z in a moderated manner. They need to know the truth about their paternal grandparents and the sacrifices they made for their grandchildren. The children ought to know the fate that would have awaited them if their paternal grandparents had not stood up for them when they were young.
Hopefully these orders and reasons will help them understand the importance of maintaining, or renewing, their relationships with the paternal grandparents.
The circumstances in which the matter proceeded effectively undefended against the father gives rise to some concerns about the Orders made concerning his time with the children. I will order to ICL to also take reasonable steps to provide the father with a copy of these reasons as well as with the orders so that he can obtain independent legal advice if he wishes.
If any party seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, otherwise each party shall bear their own costs.
I have no doubt the paternal grandparents will find this a difficult decision to accept. They are motivated by the children’s best interests and could not be too highly praised for the great love and devotion they have shown. They have provided the children with a better start in life than they could have ever hoped for, and it may be decades before the children are old enough to truly appreciate the gravity of the situation from which they were rescued, or the debt they owe. The Court can only hope that the grandparents will stand ready to support the mother and the children, despite all that has occurred, as and when they can.
I will make orders accordingly.

I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B smith.
Associate:
Dated: 18 May 2021

[2021] FCCA 1061

18 May 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Standing

Remedies

Procedural Fairness

File number(s):	WOC 165 of 2015
Judgment of:	JUDGE B SMITH
Date of judgment:	18 May 2021
Catchwords:	FAMILY LAW – PARENTING – final hearing – 3 children – raised by paternal grandparents due to mother and father’s history of anti-social behaviour – father remains incarcerated – mother released - paternal grandparents facilitate time with mother – mother has substantially turned life around - mother actively seeks to alienate children – children believe they were “stolen” by paternal grandparents – 2 older children 16 and 15 years old unilaterally relocated to live with mother – youngest child 10 years old still lives with paternal grandparents – youngest torn between families – feels like a “stretchy doll” – expert evidence – likely youngest will eventually unilaterally relocate to live with mother and siblings – risk of complete alienation from paternal grandparents if that occurs – importance of sibling relationships - assessment of risks in mother’s household – orders to ameliorate risks – mother’s parental capacity adequate – agreement older children live with mother – conflict and poor communication between parties – no real prospect of co-parenting: Order children live with mother –mother to have sole parental responsibility – youngest child to spend regular time with paternal grandparents – older children to spend time with paternal grandparents in accordance with their wishes - supervised time only with father – request extension of ICL appointment – consequential orders.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2)(a), 60CC(3)(m), 65AA, 65C, 65D
Cases cited:	Adamson and Adamson (2014) FLC 93-622 B and B (1993) FLC 92-357 Carlson & Fluvium[2012] FamCA 32 Donnell & Dovey [2010] FamCAFC 15 M v M (1988) 166 CLR 69 Re Evelyn (1998) FLC 92-807
Number of paragraphs:	193
Date of last submission/s:	6 December 2019
Date of hearing:	2-4 September 2019, 5-6 December 2019
Place:	Sydney
Counsel for the First Applicant:	Ms Petrie
Counsel for the Second Respondent:	Ms Harris
Counsel for the Third Independent Children's Lawyer:	Ms Reynolds

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	18 MAY 2021