Marcus and Jeffries and Ors - [2012] FMCAfam 273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARCUS & JEFFRIES & ORS

[2012] FMCAfam 273

FAMILY LAW – Parenting – whether a two year old child should continue to live with her maternal aunt in Bendigo or move to live with her father in [H] – child has lived with the maternal aunt since December 2010 – the Department of Human Services intervened in the proceedings at the final hearing – the mother was unable to participate in the final hearing due to ongoing health issues – the mother and father had a dysfunctional and volatile relationship characterised by violence, the father’s alcohol and drug abuse issues and the mother’s mental health issues – the father has lived a somewhat transient lifestyle – consideration of the impact of removal of the child from the primary care of the aunt – consideration of the risk of harm to child if placed into the primary care of her father – ordered that the child live with the maternal aunt and spend substantial and significant time with the father and regular time with the mother.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 64B, 65DAA, 91B

Potts & Bims [2007] FamCA 394
Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Simpson & Brockman [2010] FamCAFC 37

Applicant:

MR MARCUS

First Respondent:

MS B JEFFRIES

Second Respondent:

MS GARRETT

Third Respondent:

MS M JEFFRIES

Intervener:

THE DEPARTMENT OF HUMAN SERVICES

File Number:

MLC 1342 of 2011

Judgment of:

Bender FM

Hearing dates:

5, 6, 7, 8, 9 and 23 March 2012

Date of Last Submission:

23 March 2012

Delivered at:

Melbourne

Delivered on:

7 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms Boymal

Solicitors for the Applicant:

Peter Baker & Associates

Counsel for the First Respondent:

N/A

Solicitors for the First Respondent:

N/A

Counsel for the Second and Third Respondents:

Mr Puckey

Solicitors for the Second and Third Respondents:

HQ Law

Counsel for the Intervener:

Ms Wynne

Solicitors for the Intervener:

The Department of Human Services

Counsel for the Independent Children’s Lawyer:

Mr Lovering

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

ORDERS

The father and the maternal aunt have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).
[X] live with the maternal aunt.
[X] spend time and communicate with the father as follows:
(a)
commencing 9 June 2012, each alternate weekend from

10.00am Saturday to 4.00pm Monday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;
(b)commencing 3 November 2012, each alternate weekend from 10.00am Saturday to 4.00pm Tuesday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;
(c)commencing 23 February 2013, each alternate weekend from 10.00am Saturday to 4.00pm Wednesday in [H] and from 10.00am to 4.00pm each Monday in Bendigo in the alternate week;
(d)
from 5.00pm on 24 December 2012 to 10.00am

26 December 2012 and each alternate year thereafter;
(e)from 10.00am 26 December 2013 to 4.00pm 28 December 2013 and each alternate year thereafter;
(f)in the event that Father’s Day falls on a weekend [X] is not otherwise spending time with the father, from 10.00am on the Saturday before Father’s Day to 4.00pm on Father’s Day;
(g)upon [X] commencing primary school, for the first two weekends in each three week cycle from 5.00pm Friday to 4.00pm Sunday in [H] commencing the first weekend of each school term;
(h)in 2014, [X]’s time with the father pursuant to order 3(c) herein be extended to 4.00pm Thursday on the weekend she is with her father during each of the school term holidays and the 2014/2015 long summer vacation;
(i)commencing in 2015, for nine (9) nights in each of the school term school holidays as agreed between the father and the maternal aunt and failing agreement from 5.00pm on the last Friday of term to 4.00pm on the middle Sunday of the term holidays;
(j)
commencing the 2015/2016 long summer vacation, on a

week-about basis as agreed between the parties and failing agreement commencing at 5.00pm on the last day of the school term and until 5.00pm the following Friday and each alternate week thereafter;
(k)by telephone and Skype (if available) on such days and at such times as reasonably agreed between the father and the maternal aunt; and
(l)as otherwise agreed between the father and the maternal aunt.
[X]’s time with the father pursuant to order 3 herein shall be suspended as follows:
(a)from 10.00am 26 December 2012 to 4.00pm 28 December 2012 and each alternate year thereafter;
(b)from 5.00pm 24 December 2013 to 10.00am 26 December 2013 and each alternate year thereafter;
(c)until such time as [X] commences school, in the event Mother’s Day falls on a weekend that [X] would otherwise be with the father pursuant to these orders, her time with the father shall not commence until 4.00pm on Mother’s Day;
(d)upon [X] commencing school, in the event Mother’s Day falls on a weekend she would otherwise be with her father pursuant to these orders, her time with her father shall be suspended from 10.00am on Mother’s Day;
(e)upon [X] commencing school, her time with the father pursuant to order 3(g) herein shall be suspended during all school holidays and the three week cycle shall recommence as from the first weekend in each school term.
When [X] is spending time with the father in [H] pursuant to these orders, changeover shall take place in [S] unless otherwise agreed between the parties.
When [X] is spending time with the father in Bendigo pursuant to these orders, changeover shall take place at the home of the maternal aunt unless otherwise agreed between the parties.
Unless the maternal aunt and father otherwise agree, [X]’s time with her father pursuant to order 3(c) herein shall take precedence over any scheduled kindergarten attendance.
[X] shall spend time and communicate with the mother as follows:
(a)until [X] commences school, at such times as agreed between the parties and failing agreement each Thursday between 12.00 noon and 4.00pm;
(b)upon [X] commencing school, each Tuesday and Thursday from after school to 6.00pm;
(c)on Mother’s Day for no less than 2 hours at times agreed between the mother and the maternal aunt and failing agreement between 10.00am and 12.00 noon; and
(d)as otherwise agreed between the parties.
For the purposes of [X]’s time with the mother pursuant to order 8 herein, the maternal aunt shall organise to deliver [X] to and collect [X] from the mother’s residence.
The maternal aunt shall authorise any educational institution which [X] attends to provide copies of reports, newsletters and photograph order forms and any material ordinarily provided to parents to the father and the mother at their respective expense and the father and mother shall be at liberty to attend all [X]’s concerts, special days, sports events, parent/teacher interviews and extra-curricular activities usually attended by parents.
The maternal aunt, father and mother shall:
(a)keep each other notified of their residential address and contact telephone number and notify the other of any change to same within 24 hours of any such change;
(b)notify the other of any serious illness or injury suffered by [X] whilst in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other to obtain information directly from any treating medical practitioners; and
(c)be restrained by themselves, their servants and agents, from criticising or belittling the others in the presence or hearing of [X] or permitting any other persons from so doing.
The maternal aunt is hereby authorised to provide a copy of these orders to the director or principal of any educational institution at which [X] is enrolled and to [X]’s treating medical practitioners.
The father shall:
(a)continue to attend upon his drug and alcohol counsellor as directed by such counsellor;
(b)continue to attend upon his men’s behaviour change counsellor as directed by such counsellor; and
(c)be restrained from ingesting any illicit substances or consuming alcohol to excess 12 hours prior to or during any time [X] is in his care.
Within 48 hours of a written request from the maternal aunt or her solicitor, the father to undergo a supervised urine screen for the testing of illicit substances and provide a copy of the results to the maternal aunt or her solicitor as soon as practicable thereafter, such request to be made no more than once every 2 months and, in the event all results are negative for illicit substances, no such requests shall be made after 1 June 2013.
The maternal aunt and the father shall attend upon such counsellor or organisation as nominated by the Regional Co-ordinator of Child Dispute Service Melbourne Registry of the Federal Magistrates Court for the purposes of counselling to assist them to better communicate in relation to the arrangements for [X] to assist them in their joint decisions in relation to the long term care, welfare and development of [X].

IT IS NOTED that publication of this judgment under the pseudonym Marcus & Jeffries & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1342 of 2011

MR MARCUS

Applicant

And

MS B JEFFRIES

First Respondent

MS GARRETT

Second Respondent

MS M JEFFRIES

Third Respondent

THE DEPARTMENT OF HUMAN SERVICES

Intervener

REASONS FOR JUDGMENT

Introduction

At the centre of this matter is whether a young two year old girl, [X] born [in] 2010 (“[X]”), should continue to live with her maternal aunt in Bendigo or live with her father in [H].
In December 2010, [X] was placed into the care of her

maternal aunt, the third respondent, by way of a voluntary agreement between her mother and the Victorian Department of Human Services (“the Department of Human Services”). [X] has remained in her maternal aunt’s care since that time, either by way of an order under the Family Law Act 1975 (Cth) (“the Act”) or as a result of a protection order made in the Children’s Court of Victoria (“the Children’s Court”).
[X] has spent consistent and regular time with her father since February 2011.
The mother, the first respondent, has ongoing mental health issues. She was unable to participate in the final hearing of this matter as she was an inpatient at [omitted] (“P”) service, a residential facility for people with a mental illness, which assists such people in their transition from intensive clinical intervention to rejoin the community.
When the matter came before the Federal Magistrates’ Court on

23 May 2011, an order was made pursuant to section 91B of the Act inviting the Department of Human Services to intervene in the proceedings.
At the commencement of the final hearing on 5 March 2012 upon application by the Department of Human Services, the Department of Human Services were given leave to intervene in the proceedings.
The father is seeking orders that [X] live with him. In accordance with the evidence of the Family Report Writer, Mr O, it is the father’s proposal that there be a slow, graduated increase in the time [X] spends with him such that she is living in his primary care by May 2013 and spending alternate weekends with the maternal aunt.
The maternal aunt and the maternal grandmother, the second respondent, seek orders that [X] continue to live with the maternal aunt and spend increasing time with the father. They propose [X] spend alternate weekends with the father from 10.00am Saturday to 4.00pm Sunday in [H] and a full day in Bendigo in the alternate week. It is their proposal that six months after this time commences, [X]’s time with her father increases such that in a three week cycle she spends four nights with the father in [H] as well as a full day in Bendigo.
The father and maternal aunt and maternal grandmother all agree that any orders for [X]’s living arrangements include specific time with her mother, albeit such time should not include overnight time.
The Independent Children’s Lawyer and the Department of Human Services support orders for [X]’s care in the terms sought by the father.

Background

The father was born [in] 1966 and is 45 years of age. He currently lives in [H] with his sister Ms G (“Ms G”), her partner Mr C (“Mr C”) and their three children [name omitted] aged 12 years, [name omitted] aged 8 years and [name omitted] aged 20 months.
The father works very occasionally as a [omitted] with Mr C but is otherwise unemployed.
The mother was born [in] 1977 and is aged 35 years. At the time of the final hearing, she was a resident at [P]. She otherwise resides in Ministry of Housing accommodation in Bendigo and is engaged in home duties.
The mother has an older daughter [W] born [in] 1997 (“[W]”) from a previous relationship. [W] lived with the maternal aunt from December 2003 to 2007 and has lived with the maternal grandmother since 2007. [W] has spent inconsistent and limited time with the mother and her father.
The maternal aunt was born [in] 1978 and is 33 years old. She is engaged in home duties and is self-employed, running a [omitted] business from her home. She lives with her fiancé Mr H (“Mr H”) who is a [occupation omitted]. She and Mr H have a daughter [Z] born [in] 2007 (“[Z]”).
The maternal grandmother was born [in] 1953 and is aged 59 years. She is self-employed as a [omitted].
The father and the mother commenced their relationship in 2002.
At the beginning of their relationship, the mother was residing with [W] in Bendigo. The father moved between Bendigo and [E] where he owned a home and was a seasonal worker.
In the latter part of 2003, the mother and [W] moved to [E] to live with the father.
In December 2003, at the mother’s request, the maternal grandmother collected [W] from [omitted] and returned with her to Bendigo.
It is the maternal grandmother’s evidence that the mother struggled with [W]’s care and that, subsequent to [W] moving into her care, [W] was assessed as having Asperger Syndrome, an Autism Spectrum Disorder.
At or around the time [W] came into the care of the maternal family, it is alleged that there had been a violent altercation between the mother and the father as a result of which the father was charged with assault.
When [W] came into the maternal grandmother’s care, the maternal aunt returned to Bendigo from Sydney, where she was then living, to assist in [W]’s care.
In January 2004, interim orders were made by this Court for [W] to reside with the maternal grandmother and maternal aunt. Final orders were made by consent on 16 February 2005 which provide for [W]’s parents, the maternal grandmother and the maternal aunt to have shared parental responsibility, for [W] to live with the maternal grandmother and maternal aunt and for [W] to spend time and communicate with each of her parents.
Subsequent to these orders being made, [W] initially lived with the maternal aunt. When the maternal aunt became pregnant with [Z] in 2007, [W] moved to live with the maternal grandmother where she continues to reside.
The consent orders made in 2005 in relation to [W] also contain an order restraining the mother from bringing [W] into contact with the father in the present matter.

In part because of the mother’s mental health issues, the relationship between the mother and the maternal grandmother and maternal aunt has been and is volatile. As a result of this volatility and her mental health issues, the mother has not spent regular time with [W] and there have been lengthy periods when [W] has not seen her mother.
When the present matter came before the Court for final hearing on
5 March 2012, [W] had not seen her mother since Mother’s Day 2011 save for one visit to [P] on the Sunday immediately preceding the commencement of the final hearing.
The relationship between the father and the mother was and is also volatile. There were several periods of separation during the relationship arising from the father’s seasonal work away from Bendigo and from the difficulties in their relationship.
In 2009 the mother became pregnant with twins. [Y] born [in] 2010 (“[Y]”) and [X] were born prematurely at the [M] Hospital on [date omitted] 2010. Sadly [Y], who was born with a heart condition, died three days after her birth.
After [X]’s release from the [M] Hospital, she spent two weeks in the Special Care Unit at the [B] Hospital.
[Y]’s funeral took place on [date omitted] 2010. On the evening of the funeral, the parties argued over many hours.
The mother alleges that the father assaulted her on the evening of
9 March 2010. The father denies this allegation and says it was the mother who assaulted him. The Department of Human Services was contacted by the mother’s case manager. The Department of Human Services obtained an order whereby the mother and [X] moved in with the maternal aunt on 11 March 2010.
As a result of the incident between the parents on 9 March 2010, the police applied for an intervention order on behalf of the mother against the father. An interim intervention order was made in April 2010. [X] was named as an affected family member.
In April/May 2010, the Department of Human Services ceased their involvement with the family.
The mother and [X] remained with the maternal aunt until
June 2010 when the mother and the maternal aunt had a falling out. The mother and [X] then moved to live with the maternal grandmother.
In August 2010, a final intervention order in relation to the father was made in the mother’s favour. [X] was removed as an affected family member.
Between April and August 2010, whilst the intervention order that named [X] as an affected family member was in force, the father spent no time with [X].
In September 2010, the mother and [X] left the maternal grandmother’s home and moved back to the mother’s unit.
In October 2010, the father moved into the mother’s unit. The father and the mother were not in a romantic relationship during this period of time.
On 22 December 2010, the mother applied to the State Magistrates’ Court to have the intervention order against the father removed.
The police, the maternal grandmother and the maternal aunt opposed this application. The mother’s application was not granted.
On the evening of 22 December 2010, the mother alleges that the father came to her unit in a drunken state where he became very aggressive and attempted to take [X] from the unit. The father denies he was aggressive in any way but conceded that both he and the mother had been drinking. It was his evidence that he left the mother’s unit to avoid further conflict.
The police were called and the father was picked up and spent six hours in the “lock up” as he was alcohol affected. He was charged with breaching the intervention order.

After the argument with the father, the mother felt unable to care for [X]. She contacted the maternal grandmother and it was arranged that the maternal aunt care for [X]. The Department of Human Services was contacted and supported [X]’s placement with the maternal aunt.
After the altercation with the mother, the father moved into the unit of Ms S and her two children.
In December 2010/January 2011, the Department of Human Services continued to be involved with the arrangements for [X] on a voluntary basis. The Department of Human Services organised for [X] to spend unsupervised time with the father, which included overnight time.
On 2 February 2011 the father filed an urgent Application in the Bendigo Magistrates’ Court seeking orders that [X] live with him. On 7 February 2011, orders were made in the Bendigo Magistrates’ Court for [X] to live with the maternal aunt and spend time with the father each Tuesday and Friday from 2.30pm to 6.00pm and each alternate Sunday from 2.30pm to 6.00pm. The matter was transferred to the Federal Magistrates Court.

The matter came before me on 1 March 2011. Orders were made for the appointment of an Independent Children’s Lawyer and otherwise the orders made confirmed that the living arrangements for [X] as contained in the orders made at the Bendigo Magistrates’ Court continue.
In March 2011, the father was unable to remain living with

Ms S and moved into the [omitted] Hotel (described by the parties as “the place deros go to die”).
As set out earlier in this judgment, on 23 May 2011 an order was made pursuant to section 91B of the Act inviting the Department of Human Services to intervene in the proceedings. Orders were also made on this day for [X] to spend time with the father each Monday and Thursday from 2.30pm to 6.30pm and each alternate Saturday from 2.30pm to 6.30pm and with the mother each Monday and Tuesday from 12.00 noon to 2.30pm and each alternate Saturday from

12.00 noon to 2.30pm.
In May 2011, the father returned to live with the mother, as he had nowhere else to live. He was concerned that the [omitted] Hotel was not a suitable place for [X] to spend time with him.
In August 2011, the Department of Human Services obtained a protection order in relation to [X]. Pursuant to that order, [X] remained living with the maternal aunt and continued to spend time with the mother and the father on the same basis as she had been under the Federal Magistrates Court orders made in May 2011.
In September 2011, after an argument with the mother, the father left the mother’s unit. After discussion with the Department of Human Services, the father left Bendigo and moved to [H] to live with his sister Ms G and her family. The father is originally from [H] and he has family support in that area.
The father lost his license for drink driving in 2010. The father utilised public transport to ensure he spent time with [X] in accordance with the arrangements made by the Department of Human Services. This required him to travel for up to five hours five days each fortnight in order to spend time with [X].
The father concedes that he had been a daily user of up to two grams of marijuana since he was 17 years of age. He also confirms that he had experimented with speed and heroin but denied any regular use of those drugs.
Upon moving to [H] in September 2011, it is the father’s evidence that he ceased all use of illicit substances. He engaged in drug and alcohol counselling as well as undertaking a men’s behavioural change program (“the program”). He continues with his counselling and to attend the program to this day.
Additionally, the father contacted [W] Uniting Care with a view to being linked with parenting support services.
The Department of Human Services discontinued the protection order in relation to [X] in February 2012.
As noted previously in this judgment, the mother was unable to participate in these proceedings, save at their very outset, because of her health issues. A letter from the mother addressed to the Court dated 15 February 2012 was handed to the Court at the commencement of the final hearing. In that correspondence, the mother advised as follows:
I am currently an inpatient at [B] Hospital. Enclosed is a letter received from [B] Health confirming my admission.
I do not want to ask for an adjournment of the Final Hearing of this matter. I do not intend to attend the Final Hearing. I wish to spend time with [X] and ask for any orders to include provisions for [X] to spend time with me. I would like to spend time with [X] together with my other daughter [W].
During the final hearing of the matter, agreement was reached between the parties that the time [X] spend with the father be increased. On 9 March 2012, an interim order was made by consent which provided that [X] spend time with the father each alternate weekend from 10.00am Saturday to 4.00pm Sunday with changeover to take place in [S]. In addition, the orders provided that [X] see her father each Thursday in Bendigo between 10.00am and 6.00pm.
On 23 March 2012 at the conclusion of the final hearing, a further interim order was made by consent varying the 9 March 2012 order so that [X] spend time with the father each alternate weekend from 10.00am Saturday to 4.00pm Sunday in [H] and each alternate Monday from 10.00am to 6.00pm in Bendigo.

The Evidence

The Father’s evidence

The Father

The father’s proposal for the living arrangements for [X] evolved during the course of these proceedings.
Having had the benefit of hearing the evidence in this matter, and in particular the evidence of Mr O, the Family Report Writer, a detailed final proposal was handed to the Court by the father’s Counsel at the commencement of final submissions on 23 March 2012.
The father’s proposal for [X]’s living arrangements is in the following terms:
1. That until 31 January 2014 the father and maternal aunt have equal shared parental responsibility for the child [X] born [in] 2010.
2. That until 31 January 2014 the father and maternal aunt consult with and keep the mother informed in relation to the major long term issues in relation to the child prior to exercising equal shared parental responsibility.
3. That as from 31 January 2014 the father have sole responsibility for the child.
4. That as from 31 January 2014 the father consult with and keep the mother informed in relation to the major long term issues in relation to the child prior to exercising sole parental responsibility.
5. That until the commencement of paragraph 8 the child live with the father as follows:
a) commencing 24 March 2012, each alternate weekend from 10.00am Saturday until 4.00pm Sunday and from 10.00am to 6.00pm Monday in the alternate week,
b) commencing 2 June 2012, each alternate weekend from 10.00am Saturday until 4.00pm Monday and from 10.00am to 6.00pm Monday in the alternate week,
c)commencing 25 August 2102 (sic), each alternate weekend from 10.00am Saturday until 4.00pm Tuesday and from 10.00am to 6.00pm Monday in the alternate week,
d) commencing 17 November 2012 each alternate weekend from 10.00am Saturday until 5.00pm Wednesday and from 10.00am to 6.00pm Monday in the alternate week,
e) commencing 9 February 2013 each alternate weekend from 10.00am Saturday until 5.00pm Thursday and from 10.00am to 6.00pm in alternate week until 4 May 2013,
f)from 5.00pm 24 December 2012 until 10.00am 26 December 2012
g) from 4.00pm Sunday 10 February 2013 until 10.00am Tuesday 12 February 2013
h)At such other times as may be agreed between the father and maternal aunt.
6. That until 4 May 2013 hereof the child live with the maternal aunt at all other times.
7. That for the purposes of paragraph 5 changeover shall take place at [S] for alternate weekend time and for day only time, the father shall collect and return the child to the home of the maternal aunt.
8. That as from 4 May 2013 the child live with the father.
9. That as from 4 May 2013 the child spend time with the maternal aunt as follows:
a)Until the end of 2014 each alternate weekend from 5.00pm Thursday until 5.00pm Sunday, commencing 16 May 2013, thereafter,
b) each 1^st weekend in four week cycle from 5.00pm Friday until 5.00pm Sunday,
c)commencing in 2014 for 8 nights in the June/July school term vacation period in each year at times to be agreed, in default of agreement from 5.00pm the 1^st Saturday until 5.00pm the 2^nd Monday
d) commencing the long summer vacation period 2013/2014 for 8 nights at times to be agreed, in default of agreement from 5.00pm the first Sunday after 1 January until 5.00pm Monday the following week
e) that the weekend time pursuant to paragraph (b) hereof be suspended during the 1^st and 3^rd term school vacations and weekend time shall recommence the 1^st weekend after school resumes,
f) that the weekend time pursuant to paragraph (b) hereof be suspended during the long summer vacation and weekend time shall recommence the 2^nd weekend after school resumes,
g)at such times in [H] by agreement,
h) by telephone each Tuesday at 6.00pm with either of the maternal grandmother or maternal aunt to initiate the call and the father will facilitate the child telephoning the maternal grandmother and maternal aunt upon the request of the child,
i)at such further or other times as may be agreed between the father and maternal aunt and/or maternal grandmother.
10.That for the purpose of paragraph 9 hereof changeover shall take place at [S].
11. That as from 4 May 2013 the child spend time and communicate with the mother as follows:
a) Until the child starts school, each Tuesday from 12.00noon until 6.00pm
b)Upon the child commencing school each 3^rd weekend in a 4 week cycle during school term at times to be agreed between the mother and father.
c)at such further or other times as may be agreed between the father and mother.
12. That for the purpose of paragraph 11 hereof:
a) The father shall deliver and collect the child from the mother’s residence unless otherwise agreed
b)The child shall spend time with the mother on each occasion only upon the mother confirming by SMS to the father 24 hours prior to each spend time with occasion that she is available to spend time with the child
13. That the mother be at liberty to spend time with the child during all periods of time that the child spends with the maternal grandmother and the maternal aunt pursuant to these orders.
14. That the maternal grandmother and maternal aunt shall not unreasonably withhold permission to the mother to spend time with the child during their time with the child.
15. That the father authorise any educational institution at which the child attends to provide copies of reports, newsletters and photograph order forms and any other material ordinarily provided to parents to the mother and maternal aunt at their respective request and expense.
16. That the father provide copies of kindergarten and school reports and kindergarten and school photographs to the mother.
17.That the father, mother and maternal aunt:
a)keep each other notified as to their residential and contact details,
b) keep each other notified of any serious illness or injury affecting the child,
c) be restrained by themselves, their servants and agents, from criticizing or belittling the others in the presence or hearing of the child or permitting any other person from so doing.
18. That the father, maternal aunt and maternal grandmother attend upon such counsellor to address communication and relationship issues.
19. That within 48 hours of a written request from the Independent Children’s Lawyer, the father undergo a supervised urine screen for the testing of illicit substances and provide a copy of the test results to the Independent Children’s Lawyer as soon as practicable.
20. That the father:
a)Attend upon his Drug and Alcohol Counsellor as directed by him
b)Attend upon his Men’s Behaviour Change Counsellor as directed by him.
c)As soon as practicable make arrangements to access PASDA or similar intervention as is available through [W] Uniting Care.
21.That the Independent Children’s Lawyer be discharged as from 30 January 2014.
22. That all applications be otherwise dismissed.
23. Certify for advocacy.
24. s.65DA(2) and s.62B orders in the usual terms.
It is the father’s evidence that he believes it is in [X]’s best interest that she live with him and be afforded the opportunity to develop a close relationship with him and with her paternal family.
It was most apparent from the father’s evidence that he harbours enormous resentment against the mother and the maternal family arising from the mother’s decision to assign [X]’s care over to the maternal aunt rather than to him when she was unable to continue caring for [X] in December 2010.
It is the father’s evidence that, at that time, he was in a position to properly care for [X] and that as [X]’s parent, he should have had her care ahead of the extended maternal family.
The father expresses concern that the maternal aunt and maternal grandmother would not encourage a relationship between himself and [X] and that they would continue to make unfounded allegations against him and his care of [X].
It is the father’s evidence that he and the mother had something of an on-again off-again relationship. It is his evidence that this was in part caused by him having seasonal work away from Bendigo for up to nine months each year and in part as a result of the mother’s mental health issues which would cause her to become irrational and argumentative.
The father denies the allegations that he had been violent towards the mother, save for one occasion in 2003 when he had hit her after she had gouged his face causing him to bleed. He did agree however that they argued and that this had led to them separating on several occasions.

The father confirms that [X] and [Y] were born prematurely and that very sadly [Y] died some three days after her birth as a result of a heart defect. It is his evidence that five days after her birth in Melbourne, [X] was transferred to the [B] Hospital where she remained for two weeks before coming home with him and the mother.
It is the father’s evidence that on the night of [Y]’s funeral, a highly emotional day, he and the mother argued after he intervened to assist her with [X]’s feeding. It is the father’s evidence that the mother became very irrational and aggressive towards him and that it was she, rather than him, who was physically violent in that altercation.
When the police obtained an intervention order against him, which involved both the mother and [X] as the aggrieved family members, he returned to [E] to work. It is his evidence that he applied to have [X] removed from the intervention order to enable him to be able to see her and was successful in so doing in August 2010.
It is the father’s evidence that when the mother returned to live with [X] on her own in her unit in Bendigo in September 2010, he moved in with her shortly thereafter. It is his evidence that they did not resume a romantic relationship but rather were both involved in the parenting of [X].
The father concedes that during this period he was in breach of the intervention order. It was for this reason that the mother made application to the Bendigo Magistrates’ Court to have the intervention order lifted or varied to enable him to spend time with the mother and [X].
It is the father’s evidence that on the evening of 22 December 2010, after they had been unsuccessful in their application to have the intervention order removed or varied, both he and the mother had been drinking. It is his evidence that they argued, but the father was adamant that there had been no violence between them. It is his evidence that he left the home in order to avoid any further argument and that he was subsequently picked up by the police who placed him in the “lock up” for six hours because he was inebriated.
As noted earlier, the father was and continues to be very aggrieved that the decision was made at this time for [X] to be placed in the maternal aunt’s care rather than in his care.
It is the father’s evidence that, after the altercation with the mother, he moved into the home of a friend Ms S. In December 2010 and January 2011 the Department of Human Services facilitated him spending time with [X] at Ms S’s home including on an overnight and unsupervised basis.
It is the father’s evidence that when the Department of Human Services ceased their involvement with the family at the end of January 2011, he made application to the Bendigo Magistrates’ Court for [X] to live with him as the maternal family were not allowing him to spend any time with her.
In March 2011, Ms S asked the father to move out of her home as he had been living on her couch. At that time he moved to the [omitted] Hotel. Given its unsuitability as a venue for him to spend time with [X], the father then moved back in with the mother as, it was his evidence, he had nowhere else to go.
It is the father’s evidence that in August 2011 he and the mother again argued and that, after discussion with the Department of Human Services worker Mr P he decided that it was in his best interest to move back to [H] to live with his sister so that he had appropriate family support.
The father concedes that he had been a long time user of marijuana.

It is his evidence that he used up to two grams daily from the age of

17 years. It is his evidence that when he was very young he had tried harder drugs and that in 2010 he had once tried ice.
It was put to the father that at the time [X] was placed into the care of the maternal aunt, on his own evidence, he was smoking up to two grams of marijuana on a daily basis and that, in those circumstances, he was not in a position to properly care for [X]. It is the father’s response that he still believed he would have been capable of caring for [X] as he has a very high tolerance to marijuana as he had been smoking for 27 years.
It is the father’s evidence that he stopped smoking marijuana in September 2011 and has remained drug free since then.
The father also gave evidence that he had abused alcohol in his youth but that alcohol was no longer an issue. He concedes that ten years ago he had lost his licence for drink driving and that he had lost it on a second occasion in 2010 when he was picked up on the evening of his father’s funeral when he had drunk too much.
It is the father’s evidence that he was due to attend the [H] Magistrates’ Court in the week of 12 March 2012 in relation to his application for the return of his licence. It is his evidence that he had completed all requisite courses in relation to regaining his licence and that the police had indicated to him that they would be supporting his application for the return of his licence.
It is the father’s evidence that when he returned to live with his sister in [H] he made the decision that he needed to address his drug and alcohol issues as well as the behaviours that had caused some of the difficulties in his relationship with the mother.
It is the father’s evidence that he has attended a men’s behavioural change program. It is his evidence that he has attended the program on over 20 occasions since September 2011 and that whilst he has finished the course, he continues to attend for the support and guidance that the program offers.
The father was questioned in relation to what he had learnt as a result of his participation in the program. It is his evidence that he has now learnt to walk away from situations where he previously became angry or upset and not to get involved, that abuse is not the answer to anything and that violence is never acceptable. It is his evidence that he genuinely feels that he has become a better person as a result of this program and is not the person that he was prior to undertaking the program.
When asked to expand on what he understood abuse to mean, it is the father’s evidence that abuse can be physical, verbal, financial or controlling and that there is not one particular stereotype to what constitutes abuse.
It is the father’s evidence that he has been attending one-on-one drug and alcohol counselling with [omitted] Community Health since October 2011. It is his evidence that he has attended on his counsellor every two to three weeks and has attended six sessions to date. It is his evidence that he will continue to attend drug and alcohol counselling.
In response to questions as to what he had learned from the drug and alcohol counselling, it is the father’s evidence that he no longer associates with the people that he used drugs with in the past and that he avoids social interactions and places where he knows that there will be drug usage. By way of example, the father gave evidence that he recently did not attend his best mate’s bucks night, as he knew that there would be drugs being used.

It is the father’s evidence that he is currently living with his sister

Ms G and that he is able to continue to live with her for as long as he wishes to into the future. In the event he is successful in his application to have [X] live with him, it is his evidence that he and [X] can live with his sister.
It is the father’s evidence that he has made application to the Ministry of Housing for accommodation in [H]. It is his evidence that they have advised him that once the outcome of his court case is known, he should recontact them to pursue obtaining independent accommodation for himself and [X]. It is his evidence that he understood there to be a waiting list of about 12 months to obtain Ministry of Housing accommodation in [H].
When the father was being interviewed for the purposes of the Family Report by Mr O, Mr O offered the father the opportunity of meeting with the maternal aunt and maternal grandmother and Mr O to explore possible ways forward in relation to arrangements for [X]. The father refused this invitation and indicated to Mr O that he did not like the maternal aunt and maternal grandmother for what they had done in removing [X] from his care. The father also told Mr O that he did not trust them as he felt they had lied about him to the Department of Human Services about his relationship with the mother and his capacity to care for [X].
The father was cross-examined in relation to his attitude and feelings towards the maternal aunt and maternal grandmother. Whilst agreeing that the maternal aunt had properly cared for [X], he confirmed that he did not trust the maternal aunt and the maternal grandmother and that he believed they would negatively influence [X] and her relationship with him.
When giving his evidence, the father made many references to “the grief” that the maternal aunt and maternal grandmother had caused him. When asked what he meant by this, the father explained that he was referring to the complaints that the maternal aunt and maternal grandmother express about the risks he poses as a primary carer of [X] and their belief that they are better placed to be the primary carers of his daughter.
When further questioned in relation to his relationship with the maternal aunt and maternal grandmother, the father concedes that he does not actually know them as there had been no social interaction between him and the extended maternal family while he and the mother were in a relationship. The father also concedes that many of the things he understood about the maternal family were as a direct result of comments made to him by the mother. He concedes that there were times when the mother’s information about the maternal family may have been inaccurate and reflective of the difficult relationship that she has with her mother and sister.
The father is also able to concede that it is possible that the mother may well have had told her mother and sister things about him that were equally inaccurate and those comments may well have coloured their view of him as an individual.
The father agrees that it would be in [X]’s best interest if he and the maternal aunt and maternal grandmother were able to better communicate with each other about [X]. He was agreeable to suggestions that he and the maternal aunt and maternal grandmother obtaining some counselling or assistance to better their communication and decision-making about [X].

The father was cross-examined at length in relation to what he felt the impact would be on [X] if she were to live with him and move from the home of her maternal aunt, her partner and her cousin [Z]. He was also asked about the impact of [X] moving away from the maternal grandmother and her half-sister [W].
It was the father’s evidence that there would be a “bit of an impact” on [X] but that he was sure she would be able to adjust as she loves him. It was his evidence that it would take some adjustment for both himself and [X] but he was sure that they would be able to work through it.
In relation to the impact of [X] not living with her cousin [Z], it is the father’s evidence that whilst he understood that they were very close, she was “only [X]’s cousin” and he believes that [X] would have the opportunity to develop similar relationships with her paternal cousins who live in [H].

Ms G

Ms G is the father’s sister. Ms G swore an affidavit in these proceedings on 7 February 2012 and also gave viva voce evidence at the final hearing.
It is Ms G’s evidence that she lives with her partner Mr C. She has three children, [name omitted] 12 years and [name omitted] 8 years born to a previous partner and [name omitted] 20 months, who is

Mr C’s child.
It is Ms G’s evidence that she is happy for the father and [X] to live with her and Mr C for as long as is needed. It is her evidence that she is willing to support the father until such time as he gets a place of his own and is confident in his parenting skills.
Ms G described the father’s relationship with [X] as very loving and nurturing and that he adores his daughter.

It is Ms G’s evidence that she has met [X] on several occasions when she has driven her brother to Bendigo to spend time with [X] during school holidays. She agreed that at this time [X] had never visited her home.
It is Ms G’s evidence that in order to facilitate [X]’s time with her father, her brother would be able to use their family car to enable him to collect [X]. Further, she is available to assist him by undertaking some of the driving necessary to enable [X] to spend time with her father.

The Mother

As noted previously in this judgment, the mother was unable to participate in the final hearing of this matter due to ongoing mental health issues. At the time of the final hearing she was an inpatient at [P].
Correspondence was provided to the Court from the mother in which she indicated that she was not seeking an adjournment of the final hearing and was not intending to participate in the final hearing but wished that any orders made in relation to [X] make provision for her to spend regular time with her.

The Maternal Aunt and the Maternal Grandmother’s evidence

The Maternal Aunt and the Maternal Grandmother’s proposal

During the conduct of the proceedings, Counsel representing the maternal aunt and maternal grandmother provided to the Court a Minute reflecting the maternal aunt and maternal grandmother’s proposals in relation to the living arrangements for [X].

That proposal was in dot point form as follows:
Introduction of overnight time:
·    Alternate Saturdays, 10am? (sic) until 4pm Sunday, with changeovers at [S]
·    Midweek time to continue, full day, in Bendigo
·    Mother has time on Tuesdays and Saturday mornings and otherwise as agreed
Extension of overnight time
·    Commencing in 6 months
·    Three weekly cycle
·    Week one 5pm Friday to 5pm Sunday, changeovers in [S] or [omitted] Contact Centre
·    Week two 5pm Wednesday to 5pm Friday, changeovers in [S] or [omitted] Contact Centre
·    Week three full day in Bendigo if Father elects to do so
·    Mother’s time also to be accommodated on three weekly cycle as agreed
Upon child commencing school:
·    Holiday time to be introduced, being a week of each term holiday and two weeks over summer (broken up for first year)
·    Midweek time to be reassessed if Father remains living in [H] (distance may preclude)
·    Role of the Mother at that time again to be factored in
The maternal aunt and maternal grandmother’s proposal is predicated on [X] continuing to live with the maternal aunt.
In the maternal aunt and maternal grandmother’s outline of case document filed 1 March 2012 they propose that the father, the mother, maternal aunt and maternal grandmother have equal shared parental responsibility in relation to [X].
During the running of the matter, the maternal grandmother indicated to the Court that she was not seeking an order that she have parental responsibility in relation to [X]. In closing submissions, Counsel for the maternal aunt and maternal grandmother confirmed the maternal grandmother’s instructions in this regard and sought an order that the maternal aunt, father and mother have equal shared parental responsibility for [X].

The Maternal Aunt

It is the maternal aunt’s evidence that she believes that it is in [X]’s best interest that she continue to live with her, her fiancé and [Z]. They will be able to continue to provide her with a stable, loving and safe home.
Whilst commending the father on the positive steps he has taken in the last six months to address his drug and alcohol problems and his behavioural issues, it is the maternal aunt’s evidence that given the father’s long history of drug use, his previous transient lifestyle and the possibility that he and the mother could reconcile, the Court could not be satisfied that the father would not relapse into the behaviours that caused [X] to be placed into her care in December 2010.
The maternal aunt confirmed that she returned to Bendigo in

January 2004 from Sydney when [W] came into her mother’s care. It is her evidence that because of the maternal grandmother’s then work commitments, agreement was reached that [W] would live with her. It is the maternal aunt’s evidence that she and her mother worked closely together to look after [W].
The maternal aunt confirmed that when she became pregnant with [Z] in 2007, it was agreed that [W] would live primarily with the maternal grandmother. It is the maternal aunt’s evidence that [W] spends time in her home at least three or four times per week and that [W] has a very close and loving relationship with both [Z] and [X].
It is the maternal aunt’s evidence that she and her sister

([X]’s and [W]’s mother) have a volatile relationship which blows hot and cold. She believes their relationship is affected by the mother’s ongoing mental health issues.
It is the maternal aunt’s evidence that she has not seen her sister in 2012, but described the current status of their relationship as softening as they are having regular telephone communication.
It is the maternal aunt’s evidence that she does not drive because of difficulties with her eyesight. The maternal grandmother does all the driving involved with [X] and [W] spending time with the mother.
It is the maternal aunt’s evidence that [X] and her daughter [Z] are very close and that they consider each other and treat each other as sisters. It is the maternal aunt’s evidence that [X] sleeps in the same room as [Z] and, as is common with younger siblings, mimics and copies what [Z] does.
It is the maternal aunt’s evidence that, like [Z], [X] calls herself and her partner Mum and Dad. It is the maternal aunt’s evidence that whilst the protection order was in place, the Department of Human Services wrote to her and her partner raising concerns in respect to [X] calling her and her partner ‘Mum’ and ‘Dad’ and asking them to insist upon [X] calling them “Aunty [first name omitted]” and “Uncle [first name omitted]”. It is the maternal aunt’s evidence that this caused a lot of upset in her household as [Z] also started to refer to them as “Aunty [first name omitted]” and “Uncle [first name omitted]”. The maternal aunt was quite distressed when giving evidence in relation to the difficulties these instructions caused.
It is the maternal aunt’s evidence that [X] does understand who her parents are and speaks freely about “Mummy [name of First Respondent omitted]” and “Daddy [name of Applicant omitted]”. She ensures that [X] has photos of her parents in her bedroom.
The maternal aunt agreed with the father that she and her partner really do not know the father and that they have had no social interaction with him. She further agreed that any information or knowledge of the father has been primarily as a result of information provided by the mother and that it is possible that some of the things that the mother has told her about the father may not have been accurate.
The maternal aunt agreed that it would be in [X]’s best interest if she and the father were better able to communicate with each other. She was open to participating in counselling to assist communication.
The maternal aunt was cross-examined at some length by the father’s Counsel as to whether she saw a time where it would be in [X]’s best interest to return to the primary care of the father. Whilst the maternal aunt acknowledged that there may be such a time, it is her evidence that it was not possible for her to say if this could ever occur given the real possibility that the father would or could relapse into his previous long standing drug and alcohol issues.
The maternal aunt also expressed concern that the mother and the father may reconcile given the history of their relationship and the father’s comment to the Report Writer Mr O that the mother may move to [H] if [X] were to live with the father. Given the long-standing history of their dysfunctional relationship, the maternal aunt is concerned that [X] would again be exposed to the violence in that relationship and the disruption to her if that relationship broke down.
It is the maternal aunt’s evidence that she believed it is in [X]’s best interests that she remain living with her, her fiancé and [Z] and spend time with her father and mother as she is safe and secure in her home and they have a very close and loving relationship.

The Maternal Grandmother

It is the maternal grandmother’s evidence that it is in [X]’s best interests that she continue to live with the maternal aunt.
It is the maternal grandmother’s evidence that she is of the view that to uproot [X] from her settled, safe and loving home with her maternal aunt and cousin and to take her away from her half-sister and maternal grandmother would cause [X] real distress and psychological damage.
It is the maternal grandmother’s evidence that she believes that, until [X] is old enough to genuinely express her own views, her current living circumstances should not be altered.

The maternal grandmother indicated that she believes that it is in [X]’s best interests that she be able to spend time with and have a proper relationship with both her mother and father. It is her view that neither of her parents have the capacity to provide her with full time care.
It is the maternal grandmother’s evidence that she and [W], either together or separately, spend considerable time each week at the maternal aunt’s home and that the maternal aunt, [X] and [Z] similarly spend lots of time at the maternal grandmother’s home. She described the three children as having a very close and loving relationship and that each seek out the other whenever they are together.
The maternal grandmother was complimentary of the father and the efforts he has made in recent times to address his drug and alcohol issues and his behavioural issues, but expressed real concerns about the potential for the father to relapse given that he is now in his forties and has been a heavy user of marijuana for all of his adult life until September 2011.
The maternal grandmother confirmed that her relationship with the mother is volatile and that there are periods where there is little to no interaction between them.
When giving his evidence, the father advised the Court that the mother had telephoned him in a very upset state shortly prior to the trial commencing. It is his evidence that the mother told him that she had been admitted to [P] because the maternal grandmother had threatened her with never seeing [X] again and had caused Court documents to be served upon her.
The maternal grandmother was questioned in relation to the father’s evidence on this issue and it is her evidence that the mother had been most unwell and had been admitted for acute psychiatric care at the [omitted] Centre in Bendigo. After treatment at the [omitted] Centre, the mother moved to [P] in order to assist her transition back to living in the general community. Whilst at [P], the mother became physically unwell and required admission to hospital for surgery. From the hospital, she was released back to her own unit. When she returned home, it became apparent that she was not coping and after a visit by the Crisis Assessment and Treatment team, it was assessed that she needed to return to [P] to complete the transition program.
It is the maternal grandmother’s evidence that when the mother was released from hospital to her home, she visited her to see how she was feeling. It is her evidence that they were talking about the upcoming family law proceedings and that the mother told her that she did not intend to attend at the final hearing and would not be seeking to have the matter adjourned until such time as she was physically and mentally well enough to participate. It is the maternal grandmother’s evidence that she expressed concern to her daughter about this decision because it could mean that she would end up with orders for very limited time with [X] as her thoughts and proposals would not be before the Court.
It is the maternal grandmother’s evidence that when a further placement became available at [P] for the mother, the mother contacted her and asked her to take her to [P]. She collected the mother and drove her to [P] in order to take up her placement.
The maternal grandmother acknowledges that this incident highlights the lack of communication between the father and the maternal aunt and herself.
The maternal grandmother also acknowledges that this incident showed how she, the maternal aunt and the father can form an inaccurate view of the other and their behaviours based on what it is the mother tells them about the other.
The maternal grandmother acknowledges that she does not really know the father and that they have had almost no social interaction or communication between themselves.
The maternal grandmother described with real poignancy the occasion prior to [Y]’s funeral when the entire family, including all the parties to these proceedings, were able to sit down together, laugh and cry together and plan a memorial for their lost loved one.
The maternal grandmother is of the strong opinion that it would be in [X]’s best interest if there was some capacity found amongst the family to better communicate with each other and she too indicated a willingness to participate in counselling to assist better communication.
It is the maternal grandmother’s oral evidence that she would ideally prefer to step back into a purely “grandmotherly role” and not have parental responsibility in relation to [X]. It is her evidence that her preferred position was that parental responsibility be shared equally between the maternal aunt, the mother and the father.

Mr O

Mr O is a Regulation 7 Family Consultant with the Federal Magistrates Court and prepared a Family Report in this matter dated February 2012. Mr O also gave viva voce evidence at the final hearing of this matter.
In his lengthy report, Mr O summarised his observations and recommendations under the heading ‘Evaluation’:
This report is limited by the lack of involvement of Ms B Jeffries and the lack of provision of information by DHS who have clearly had the conduct of managing the matter for some time.
It is a complicated matter that involves a significant history of intervention prior to and post the birth of [X]. Since [X]’s birth on [date omitted] 2010 she has had different care arrangements. [X] has been in the care of:
1.    Her mother and father until 11/03/2012 with most of this time in a Special Care Unit of the [B] Hospital.
2.    From 11/03/2010 – With her mother and Maternal Aunt and then Maternal Grandmother until August 2010.
3.    There was a gap in time when Mr Marcus was able to see [X] due to an Intervention Order. This may have been until August 2010.
4.    August 2010 – With her mother in independent living with Mr Marcus being increasingly involved or living there depending upon the views/information as provided by the parents.
5.    Since 22/12/2010 - In the care of Ms M Jeffries. Notably, Ms B Jeffries did not return to live with [X] with Ms M Jeffries.
Since [X]’s birth, the parents or one of them have had the support/involvement/intervention of Hospital staff, Police, DHS, CAT team, Mental Health Services, Psychologists, Drug and alcohol counselling, Men’s behaviour change, Psychiatrists assessment, Intervention Orders and Court in supporting and securing adequate care for [X] and seeking change in the behaviour of or, providing support for either her father or mother.
Since 22/12/2010 when [X] went to the care of her Aunt, she has been more than adequately protected from potential harm.
The writer formed a view that Ms B Jeffries seems to have mental health and lifestyle issues that may well prevent her from seeking primary care of [X] in the short term and possibly in the long term. It appears that this has been the case for [W]. Having suggested this, the writer notes that Ms B Jeffries has not formed part of this assessment but did not do so due to problems with mental health issues and later again physical health issues.
As such, the writer considered Ms M Jeffries and
Ms Garrett’s hope of [X] returning to her mother to be that with little evidence of this being practical at this stage. The potential for such change in the future
The writer also formed the view that, [X]'s base needs for safety/security and basic care are more than adequately met in the care arrangement that she is currently in. The writer has not information that would suggest otherwise and did not observe anything that would suggest otherwise. It was clear that [X] has developed a bond and settled into this arrangement.
It was also clear to the writer that Mr Marcus is actively and persistently seeking that he be considered as the primary carer of [X] and that she be provide the opportunity of being care for by a parent as opposed to an extended family member.
It is the writer’s view that Ms Garrett and Ms M Jeffries view Mr Marcus as an unacceptable risk and do not hold any faith in any information gained that suggests otherwise. Clearly they have been watchful and have had to intervene over the years to ensure the safety of Ms B Jeffries, [W] and later again [X] and they cannot see that Mr Marcus has changed sufficiently to be able to relinquish [X]’s (sic) care to him willingly. It is the writer’s view that their concerns will need to be tested by the Court.
The writer has formed the view that Ms Garrett and Ms M Jeffries would continue to facilitate a relationship between [X] with both parents unless they considered that there was unacceptable risk in doing so. The writer felt less convinced that Mr Marcus would do the same. Ms B Jeffries’s position in this regard was not able to be assessed.
Should the Court determine that [X] remain with
Ms M Jeffries (or Ms Garrett) the writer would suggested that [X] will be safe and her needs will be met. Clear Orders for time spent with Mr Marcus should assist.   The writer cannot see why these Orders could not include a progression to overnight time. Travel for exchange should also be reconsidered with a mid-point location being considered. This may need to be [omitted] as it may need the assistance of a Contact Centre.
Should the Court determine that [X] relocate to live with Mr Marcus then very clear arrangements for time spent should be detailed for her time with Ms M Jeffries, Ms Garrett as well as with Ms B Jeffries. It would seem that this change might come as a further shock to [X] and as such may need to be graduated over time. Such change should only be done after Court has tested the evidence of the parties and is satisfied that this is in fact in the best interests of this child.

At the conclusion of his ‘Evaluation’, Mr O set out his recommendation as follows:
That the evidence in this matter be thoroughly tested. Otherwise the writer relies upon the comments as noted above.
It is Mr O’s oral evidence that if the Court were to decide that [X] stay living with her maternal aunt, he would have no issue with that decision.
It is Mr O’s evidence that if [X] was to stay living with the maternal aunt, she would be safe and well cared for and that her relationship with her father and her mother would be supported by the maternal aunt.
Mr O made the observation that the maternal aunt and maternal grandmother had taken their role of ensuring the safety of both [W] and then [X] very seriously. This had at times brought them into conflict with the Department of Human Services as Mr O observed that their standards in relation to what constituted appropriate care was much higher than that of the Department of Human Services.
Mr O made the observation that the maternal aunt and maternal grandmother harboured genuine concern about the capacity of the father and the mother to provide a safe environment for [X] and that they continued to believe that [X] would be at risk if she were to live in the primary care of either of her parents.
It is Mr O’s evidence that if the Court were to determine that it is in [X]’s best interest to live in her father’s primary care, then such change would need to be very well managed and would need to take place gradually over a lengthy period of time.
It is Mr O’s evidence that the transition from the maternal aunt to the father would need to take place at a pace that allowed [X] to understand that her home and primary care was now with her father and not with her maternal aunt, her uncle and her cousin [Z].
It is Mr O’s recommendation that if the Court determined there be a change of [X]’s residence, then the appropriate graduated change be that [X] have one night with her father within each fortnight for a period of three months. Thereafter that time should be increased to two nights each fortnight for a further period of three months and to keep gradually increasing by 24-hour periods every three months until such time as [X] was in her father’s primary care.
Counsel for all parties and the Independent Children’s Lawyer when cross-examining Mr O questioned him as to if he had an opinion on whether it was in [X]’s best interest to remain living with her aunt or to move to live with her father.
Mr O was not prepared to express such an opinion. It is his evidence that this is a matter for determination by the Court after it had the benefit of hearing the evidence of all the parties.
Whilst Mr O did not express an opinion as to who should be [X]’s primary carer, it is his evidence that if he had felt a change of primary carer for [X] was totally inappropriate, he would have made that clear to the Court.
It is Mr O’s evidence that if the Court was satisfied that [X] would not be exposed to violence, drug use or excessive alcohol use while in her father’s care then he would not be opposed to an order for [X] to live with her father. As noted, Mr O emphasised that this change would need to be very well managed.
It is Mr O’s evidence that a matter of concern to him was the indication given by the father during the report writing process that the father and the mother had had some discussion about the mother moving to [H] in the event that [X] was to live with the father.
It is Mr O’s evidence that if the father and mother were to reconcile, the risk of harm to [X] would significantly increase.
It is Mr O’s evidence that he was of the belief that there had been a high level of dysfunction in the parent’s relationship and that [X] had been exposed to that dysfunction in the past. It is his belief that this dysfunctional parental relationship had led to [X] first being placed into the care of the maternal aunt.
Mr O is of the view that the Court will need to be satisfied that the father genuinely accepts the dysfunctional nature of the relationship between himself and the mother and that the father’s evidence that there was not to be a reconciliation can be accepted.
It is Mr O’s evidence that he believes that the maternal aunt and maternal grandmother will support [X]’s relationship with her father.
It is Mr O’s evidence that he is not as confident that the father will support [X]’s relationship with the maternal family given the level of distrust and dislike displayed by the father towards the maternal aunt and maternal grandmother during the report preparation interviews.
Mr O was questioned in relation to the concerns of the Department of Human Services that [X] had been calling the maternal aunt and her fiancé ‘Mum’ and ‘Dad’. It was Mr O’s evidence that it was to be expected that a young child would call her primary carers ‘Mum’ and ‘Dad’ and that this was not indicative in any way of a reluctance on their part to encourage the relationship between [X] and her parents. To quote Mr O when he was told of the request of the Department of Human Services that the maternal aunt do everything to change this, “he wished her luck” given [X]’s young age. He was of the view that the Department of Human Services was not being realistic or child focussed when they had made this request of the maternal aunt.
Mr O was advised of the concessions made by father, maternal aunt and maternal grandmother when giving their evidence that their negative views of each other reflected, in part, the at times inaccurate information given to them by the mother. He was further advised that the father, maternal aunt and maternal grandmother all indicated a willingness to participate in counselling to assist them to better communicate about [X]’s care.
Mr O was pleasantly surprised in relation to the parties’ evidence in this regard. However Mr O stated that he still harboured some real concern about their ability to effectively communicate into the future in relation to [X], given the long-standing issues between them and their failure to communicate effectively in any way over many years.
It is Mr O’s recommendation that to assist the parties to care for [X] into the future, what was needed was not therapeutic counselling but support to assist them to problem solve over any small issues that will arise as [X] matures. Mr O described it as “something like a case management role” so that if there were difficulties in reaching agreement as to the arrangements for [X] there would be someone who could assist them to resolve those disagreements in a [X]-focussed way.

Mr O concedes that his inability to meet with the mother meant that his Family Report is not complete. It is his observation however that the mother’s long standing mental and physical health issues mean that she is not able to play a major role in [X]’s care at this time.
It is Mr O’s evidence that whilst it would be important for [X] to be able to develop a relationship with her mother, her relationships with the father, the maternal aunt, the maternal grandmother, sibling and cousin were of greater importance for her at this time.
In relation to the question of parental responsibility, it is
Mr O’s evidence that in the event that [X] were to remain living with the maternal aunt, an order for equal shared parental responsibility between the maternal aunt and the father would be the appropriate order.
When advised of the grandmother’s evidence that she did not seek an order for parental responsibility, but rather wished to step back to a “grandmotherly role”, it was Mr O’s evidence that he had no issue with the maternal grandmother having that role.
Mr O is of the view that given the mother’s health issues and the difficulties that the father, maternal aunt and maternal grandmother have in their relationships with the mother, it will not be in [X]’s interest for an order to be made that the mother share parental responsibility.
It is Mr O’s evidence that in the event that [X] were to move into the primary care of the father, then parental responsibility should be equally shared between the maternal aunt and the father initially and that that responsibility should slowly transition to the father at the same pace as the change of primary care.
It is Mr O’s evidence that this would be an important order as it would afford the maternal aunt and extended maternal family some reassurance that they would be able to monitor and influence [X]’s transition to the father’s care.

In relation to [X]’s relationships with the important adults in her life, Mr O confirmed that at this time [X] viewed the maternal aunt as her primary carer and that [X]’s primary attachment is to her maternal aunt.
It is Mr O’s evidence that he had conducted a home visit at the maternal aunt’s home where he observed [X] with the maternal aunt, Mr H, [Z], [W] and the maternal grandmother. It is his evidence that the family interaction was totally unremarkable in that the three girls interacted as a normal sibling group and that [X] was clearly comfortable with and attached to her aunt, uncle and grandmother.
Mr O was asked what the impact on [X] would be if she were to move to live with her father thereby severing her primary attachment with her maternal aunt. It was Mr O’s evidence that [X] will negatively react to such a change and not fully understand it.
It is Mr O’s evidence that if [X]’s primary carer was to change, in all probability [X] would feel abandoned by the maternal aunt. She would miss the maternal aunt’s household and would miss her sibling relationship with [Z] and [W]. She would also miss her close relationship with her maternal grandmother.
It is because of this impact on [X] that Mr O strongly recommends that if [X]’s primary care was to be moved to the father, that transition must be well managed and happen gradually and at a pace which could allow [X] to adjust to the change.
In relation to the father, it is Mr O’s evidence that [X] does have a meaningful relationship with her father and that he observed a very strong bond.
Mr O described an observation of [X] and her father when he was conducting his observations of them together. The father and [X] were waiting to be interviewed by Mr O and [X] had fallen asleep in her father’s arms. Mr O described [X] waking gently in her father’s arms and a moment of real gentleness and tenderness between [X] and the father as she awoke as being quite delightful. Mr O described being somewhat surprised but delighted in what he observed in this interaction between father and daughter and as confirmation of the close bond that he believes exists between them.
It is Mr O’s evidence that the close bond and meaningful relationship between [X] and her father can continue to be nurtured even if [X] were to continue living with the maternal aunt.

The Department of Human Services

Whilst this family was subject to a protection order and falling within the jurisdiction of the Children’s Court, a number of assessments were prepared in relation to the parties and [X].
The documents and reports included the following:
·Confidential psychological report in relation to Mr Marcus prepared by Mr J psychologist dated 23 July 2011;
·Confidential psychological report in relation to Ms B Jeffries prepared by Ms P psychologist dated 15 August 2011;
·Reports of Dr W consultant paediatrician dated 11 August 2011 and 6 September 2011; and
·Children’s Court Clinic Court Report dated 4 November 2011 from Dr G, senior clinical psychologist.
Whilst these reports were made available to the Court, none of the authors of those reports were available to give evidence or be cross-examined in relation to the contents of their reports.
In these circumstances, little weight can be given to their content or the recommendations contained in them.

The law

Best interests of the child

When exercising its jurisdiction in relation to children, the Federal Magistrates Court is bound by the provisions of the Family Law Act 1975 (“the Act”).
Part VII of the Act sets out the provisions of the Act relevant to orders made in relation to children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the child’s best interests, the Court must consider the matters set out under section 60CC(2) and section 60CC(3) of the Act.
Many of the matters set out in sections 60CC(2) and (3) of the Act are worded in such a way that they make reference to a child’s parents only.
The manner in which the Court is to consider the specific provisions of sections 60CC(2) and (3) of the Act that make reference to parents only in parenting cases that involve parties that are not the parent of the child/children in question has been considered in a number of cases by the Full Court of the Family Court.
In the matter of Donnell & Dovey [2010] FamCAFC 15, the Full Court at paragraph 121 cited with approval the decision of Moore J in the matter of Potts & Bims [2007] FamCA 394.
In Potts & Bims (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the Court should deal with those matters under sections 60CC(2) and (3), which make specific reference to parents only, Her Honour concluded that such subsections could not be specifically considered in the context of parties who are not the child’s parents. Her Honour concluded however that if the matters under sections 60CC(2) and (3), which were excluded from consideration because they made reference to parents, were relevant to the best interests of the children, then those factors could be considered by reference to the catch all provision of section 60CC(3)(m).

In paragraph 8, Her Honour held as follows:
The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
The Full Courts in Aldridge & Keaton [2009] FamCAFC 229 and in Simpson & Brockman [2010] FamCAFC 37 both cited with approval the passage of Moore J’s decision in Potts & Bims (supra) describing that it
accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s.
Given that this matter concerns a dispute between a parent and a

non-parent, the presumption of equal shared parental responsibility imposed by section 61DA of the Act and the ensuing considerations under section 65DAA of the Act do not apply to this matter. That does not mean however that the Court will not consider whether the child spending equal time or significant and substantial time with the parties to the proceedings before it is in the child’s best interests.
Section 60CC(2) of the Act sets out the primary considerations which the Court must take into account when determining the best interests of the child and they are as follows:

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

This subsection is not relevant to the matter before the Court as the matter concerns a dispute between a parent and non-parent.

Section 60CC2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The quality of [X]’s relationship with her mother is much more tenuous and uncertain given her mother’s health issues and the somewhat volatile relationship the mother has with the maternal aunt, maternal grandmother and the father.
Having said that, I am satisfied that there is a genuine willingness on behalf of the maternal extended family and the father to encourage [X]’s relationship with her mother within the constraints of the mother’s own issues and behaviours.

Willingness of the parties to facilitate a relationship with the other

It was the primary concern of the Department of Human Services that the maternal aunt and maternal grandmother showed no willingness to support the relationship between [X] and her parents and in particular her father.
In the Children’s Court Clinic Court Report prepared by Dr G dated

4 November 2011, Dr G is scathing of the maternal aunt and maternal grandmother. She depicts them as placing obstacles in the way of the parents resuming care of their child and of excluding and denigrating the mother and of being highly critical of the father. Dr G formed the view that the maternal aunt and maternal grandmother would not encourage [X]’s relationship with either of her parents.
In contrast, the Report Writer Mr O was of the view that the maternal aunt and maternal grandmother would support [X]’s relationship with her father and with her mother. However, he expressed concern about the father’s willingness to support [X] spending time with and continuing her relationship with the maternal aunt and the extended maternal family if she were to live with him.
It was apparent from the evidence of the father that he harbours a great deal of resentment and distrust of the maternal aunt and maternal grandmother. This primarily stems from the initial placement of [X] into their care in December 2010. The father holds a very strong view that as [X]’s father he should have been given her primary care as he was capable of providing that care to her at that time.
It was also apparent from the father’s evidence that during the course of his relationship with the mother, he had been consistently told by the mother that the maternal aunt and maternal grandmother behaved badly towards her. The father was told by the mother that they were actively undermining her relationship with [W] and her relationship with him. He was told by the mother that they were the cause of many of her longstanding mental health issues.
The tenor of the evidence from the maternal aunt and maternal grandmother was that they believed the father to have been violent, abusive and to have issues with excessive alcohol and drug use during his relationship with the mother.
The basis of their beliefs in relation to the father appeared to have come primarily from what they had been told about him by the mother.
As the parties’ evidence unfolded over the five days of the hearing of this matter, it started to become apparent to each of the father, maternal aunt and maternal grandmother that they do not know each other and that a great deal of their beliefs about each other were based on what they had been told by the mother. In these circumstances, they evidenced a willingness to contemplate that some of their perceptions of the other could be based on information from the mother that was not necessarily accurate or reflective of the realities of what may have been occurring in their respective households.
All three parties showed a genuine willingness to consider the possibilities that their negative views of each other were not necessarily completely accurate and that it would be in [X]’s best interests to participate in counselling to enable them to better communicate with each other about [X].
It must be noted that since orders were made for [X] to spend regular time with her parents, those orders have generally been complied with.
The father complained that the maternal aunt and maternal grandmother were not always prepared to be flexible or to offer

make-up time.
The maternal aunt and maternal grandmother complained the father missed some of the times he could have spent with [X]. They also complained that he did not always follow reasonable directions as to [X]’s care.
The father and maternal aunt and maternal grandmother complained of a lack of communication between each household.
I am satisfied that the complaints made by each of the parties against the other were not serious but rather indicative of their inability to communicate with each other.
I note that it was apparent from the evidence given that some of the minor problems that occurred in relation to [X]’s time with the father related to the period when the Department of Human Services were overseeing those arrangements. There were a number of occasions that the father did not spend time with [X] because of the Department of Human Services’ inability to facilitate that time rather than the father failing to attend or the maternal aunt failing to facilitate that time.
I am satisfied that the parties in this matter will facilitate [X] spending time with the other.
I am also satisfied that the parties will do their best to ensure that any orders for time between [X] and her mother are complied with.

Independent Children’ s Lawyer

As noted earlier in this judgment, the Independent Children’s Lawyer supports orders being made in accordance with the father’s proposal.
In his closing submissions on behalf of the Independent Children’s Lawyer, Counsel for the Independent Children’s Lawyer summarised the objects and principles underlying Part VII of the Act contained in section 60B. Counsel for the Independent Children’s Lawyer then referred the Court to the matters contained in section 60CC which assist the Court determining what are in the child’s best interest.
Counsel for the Independent Children’s Lawyer made specific reference to section 60CC(2)(a), which requires the Court to consider the importance of the child having a meaningful relationship with both parents.
It was submitted by Counsel for the Independent Children’s Lawyer that given the mother’s health issues, the father was the only parent with whom [X] could have a meaningful relationship at this time. It was submitted by Counsel for the Independent Children’s Lawyer that in these circumstances, if the Court was satisfied that [X] was not at risk of physical or psychological harm in her father’s care, then section 60CC(2)(a) of the Act required the Court to make an order that [X] live with her father.
It was the submission of Counsel for the Independent Children’s Lawyer that whilst the maternal family were not insignificant to [X], as the father is the parent, his was the meaningful relationship that should be most supported in any order that the Court made.
The submission by Counsel for the Independent Children’s Lawyer does not accurately reflect the law.
There is no presumption under the Act that a child’s relationship with his or her parent has precedence over or is any more important than the relationship that the child has with other person or persons in their life.
In determining what is in a child’s best interest, all the factors under section 60CC are to be considered and given the weight relevant to the determination of what living arrangements will be in [X]’s best interests.
In Donnell & Dovey (supra) the Full Court set out the law most succinctly at paragraph 102 as follows:
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.
In paragraph 103 and 104 their Honours further stated as follows:
103. On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
104. This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination.
As the recommendation of the Independent Children’s Lawyer is predicated on an incorrect understanding of the law, the Court can place little weight on the views expressed by the Independent Children’s Lawyer.

The Department of Human Services

The Department of Human Services also supports the proposals put on behalf of the father.
Counsel for the Department of Human Services confirmed that the basis upon which they had intervened in the proceedings was their concerns as to the willingness and capacity of the maternal aunt and the maternal grandmother to facilitate and encourage [X]’s relationship with her father and mother.
There is no doubt that the maternal aunt and maternal grandmother’s relationship with the Department of Human Services whilst they were involved with the family was at times somewhat vexed.
The maternal aunt and maternal grandmother felt that the

Department of Human Services did not take their concerns in relation to the behaviours of the mother and father and the impact of such behaviours on [X]’s care seriously. The maternal aunt and the maternal grandmother believe that the Department of Human Services were often unfairly critical of them when they raised their concerns about [X]’s care with them.
The maternal aunt and maternal grandmother also felt that the Department of Human Services were making decisions in relation to [X]’s care based on their mandate to effect reconciliation between children and their parents. They felt that the Department of Human Services were indifferent to their level of care and involvement in [X]’s life and to any impact on [X] if she were to be removed from the primary care of the maternal aunt.
As set out previously in this judgment, I am not of the view that the maternal aunt and the maternal grandmother lack willingness to support [X]’s relationship with the father.
The maternal aunt and maternal grandmother have complied with all orders in relation to [X] spending time with the father and in their evidence showed a willingness to continue with that level of cooperation.
I am also satisfied that the maternal aunt and the father will support [X] having a relationship with the mother within the constraints of the mother’s longstanding and ongoing health issues.

Conclusion

This is a very difficult and challenging matter.
Because of the dysfunctional nature of the relationship between her parents, her father’s daily use of marijuana until approximately six months ago and her mother’s ongoing mental and physical health issues, [X] was placed into the care of her maternal aunt in December 2010 when she was only ten months of age.
From shortly after her birth to September 2010, [X] lived with her mother and with her maternal aunt or her maternal grandmother.

I am satisfied that because of the mother’s mental and physical health issues, the maternal aunt and maternal grandmother assumed much of the responsibility for [X]’s care during this time.
The mother was unable to participate in the final hearing of this matter because of her health issues. Whilst all parties support [X] being afforded the opportunity to have a relationship with her mother, her mother is not able to provide [X] with ongoing long term care at this time.
The father, to his credit, has taken very positive steps to address his longstanding drug and behavioural issues. He has moved to live with his family in [H], ceased his use of marijuana and has undertaken counselling and programs with the principal view of doing everything within his power to assume full-time care of his daughter.
Whilst so doing, the father has ensured that he has spent all possible time with his daughter in accordance with the Court orders at enormous inconvenience to himself. He had no licence and in order to travel from [H] to Bendigo five times a fortnight, had to take public transport. This trip could occupy anywhere from four to five hours each time he took it.
It is the father’s proposal that, in the event that an order is made for a change of residence so that he becomes [X]’s primary carer, it will be in [X]’s best interest that change be managed gradually and slowly. This accords with the recommendations of the Family Report Writer Mr O.
It is the father’s strongly held belief that it will be in [X]’s best interests that she has the benefit of growing up with a parent. He also believes it is in her best interests to have the benefit of getting to know and enjoy a relationship with her extended paternal family; something she has not been able to do thus far in her young life.
The maternal aunt and maternal grandmother seek orders that [X] continue to live in the maternal aunt’s primary care which will enable her to grow up in the safe and happy embrace of the family that she is an integral member of.
It is the maternal aunt and maternal grandmother’s argument that this will be in [X]’s best interest. It will ensure that she is safe and secure and that she will be protected from the risk of exposure to the ongoing dysfunctional relationship of her parents and safe from any possible relapse by her father to his previous drug issues.
It was submitted on behalf of the maternal aunt and the maternal grandmother that [X]’s primary attachment is with her maternal aunt and that to sever that secure primary attachment would turn her life upside down and expose her to significant psychological risk.
Whilst the Family Report Writer Mr O did not make a recommendation in relation to where he thought it would be in [X]’s best interest that she reside, his evidence was quite clear that if the Court were to order [X] to continue to live with her maternal aunt, he would have no issue with orders in those terms.
It is Mr O’s evidence that whilst he was not opposed to an order being made that [X] live with her father if the Court could be satisfied that it would be in her best interest for her to do so, the impact on her of such change was such that it would have to be managed gradually and carefully to minimise the impact of that change on [X].
Mr O also had concerns, as do I, about the possibility of a reconciliation between the father and the mother and the real risk to [X] in the event that she was living with her father when that occurred.
Both the Independent Children’s Lawyer and the Department of Human Services supported the father’s proposal for a graduated return to him of [X]’s full-time care.
As set out earlier in this judgment, the basis of the

Independent Children’s Lawyer’s support of the father’s proposal is predicated on an incorrect understanding of the law.
The Department of Human Services’ support for the father’s proposal was predicated on their belief that the maternal aunt and maternal grandmother would not support [X]’s relationship with her father. This is not the finding made by this Court.
Having considered all the relevant factors set out under section 60CC of the Act, I have formed the view that the impact on [X] of a move from her maternal aunt, with whom she has her primary attachment cannot be seen to be in her best interests.
[X] is safe, loved, secure and settled within her maternal aunt’s home and it is with her aunt, her aunt’s fiancé and her cousin [Z] that she has formed her most important primary attachments.
There is no doubt that [X] has a close, loving and meaningful relationship with her father and that this relationship can continue and will be supported by way of orders that enable her to spend significant and substantial time with her father.
It is the evidence of Mr O that in the event the Court ordered [X] to remain living with the maternal aunt, the orders for the time [X] spends with her parents should reflect the close bond she has with her father. Whilst Mr O acknowledged that the Court’s orders should allow [X] to develop a relationship with her mother, such time should not take precedence over [X]’s time with her father or her primary attachments with her maternal aunt and family.
The proposal of the maternal aunt and maternal grandmother for the time that [X] spend with her father in the event that they were successful in their application is, in my view, inadequate in the context of the importance of [X]’s relationship with her father.
The proposal of the maternal aunt and maternal grandmother that the existing arrangements for [X] to spend one overnight and one day each fortnight with her father for the next six months is not adequate.
It is Mr O’s evidence that [X]’s time with her father should increase every three months. I am of the view that that this suggested timing for [X] to spend increasing time with her father is appropriate.
Whilst appreciating that once [X] starts school the amount of time she spends with her father will require some adjustment, I am of the view that a graduated regime of time whereby [X] is spending four nights each fortnight with her father in [H] and one full day in Bendigo prior to her commencing school will be appropriate.
I am also conscious of the necessity for [X] to be spending regular time with her mother. I am of the view that the time [X] spends with her mother can take place on a regular basis during the time that [X] is otherwise in Bendigo.
In relation to parental responsibility, there is no doubt that the Court can make an order conferring parental responsibility for a child on a person other than a parent.
Section 61D(1) of the Act provides as follows:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

Section 64B(2) of the Act sets out the matters which a parenting order may deal with in the following terms:
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child-- the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
…
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
As with all parenting orders, section 60CA of the Act requires that an order for parental responsibility be made with the child’s best interests as the paramount consideration.
It is the proposal of the maternal aunt and maternal grandmother that an order be made that the father, mother and maternal aunt have equal shared parental responsibility for [X].
The Report Writer Mr O is of the view that if an order was made that [X] live with the maternal aunt then the maternal aunt and father should share parental responsibility. He is of the view that given the mother’s health issues, the volatility of her relationship with both her mother and sister and with the father, it would not be in [X]’s best interest that she share parental responsibility for [X].
I am in agreement with Mr O in this regard.

Accordingly, I am satisfied that an order should be made for the father and the maternal aunt to have equal shared parental responsibility for [X].
Finally, the father, maternal aunt and maternal grandmother all expressed a willingness to engage in counselling to assist them in better communicating with each the other in relation to arrangements for [X]. Better communication is going to be particularly important for the maternal aunt and the father given the orders being made for them to share parental responsibility in relation to [X].
In these circumstances, orders will be made for the maternal aunt and father to attend upon an appropriate counselling program as recommended by the Regional Co-Ordinator of Child Dispute Services in the Melbourne Registry of the Federal Magistrates Court of Australia to better assist them better communicate with one another to ensure that they are able to make decisions together that are in [X]’s best interests.

I certify that the preceding three hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 7 June 2012