Morgan & Anor and Weston

[2014] FamCA 100

FAMILY COURT OF AUSTRALIA

MORGAN AND ANOR & WESTON [2014] FamCA 100

FAMILY LAW – CHILDREN – Best interests – With whom the children live – Where the subject children have been living with the paternal grandmother since they were each quite young – Family violence – Where there is evidence of family violence in the parents’ household – Where the father has been charged with breaching a domestic violence order on a number of occasions – Departmental involvement – Where the department has been involved in relation to other children living with the parties – Protection from harm – Where it is in the children’s best interests to remain living with the paternal grandmother – Parental responsibility – Where an order is made granting the paternal grandmother sole parental responsibility in conjunction with a consultation process with the parents – With whom the children spend time – Where the parents have been spending time with the children at a supervised contact centre – Where the paternal grandmother has insight to assess whether the children will be protected from harm if they were to spend time with the parents unsupervised – Aboriginality – Where the children, parents, paternal grandmother and extended family identify as aboriginal.

Family Law Act 1975 (Cth) s 60CC

1st APPLICANT: Ms Morgan

2nd APPLICANT: Mr Weston

RESPONDENT: Ms Weston

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: ROC 297 of 2011

DATE DELIVERED: 3 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Rockhampton

JUDGMENT OF: Forrest J

HEARING DATE: 28, 29 and 30 November 2012

REPRESENTATION

FOR THE 1ST APPLICANT: Ms Morgan in Person

COUNSEL FOR THE 2ND APPLICANT: Ms Clegg

SOLICTOR FOR THE 2ND APPLICANT: Madden Solicitors

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders

1. That all previous Court orders and parenting plans in respect of the children, V born … March 2010, D born … April 2011 and Y born … June 2012, (“the children”) be discharged.

1. That the children live with the paternal grandmother, Ms Weston.

1. That the paternal grandmother have sole parental responsibility for making decisions about the “major long term issues” (as that term is defined in s 4 of the Family Law Act 1975) in relation to each of the children, subject to the paternal grandmother:

(i)Writing to the parents informing them of such a decision having to be made, proposing options to them as to how that decision might be made, and asking them if they have any views or proposals as to how the decision should be made to send her any such views or proposals in writing, or, if she requests, to tell her of any such views or proposals;

(ii)Considering and taking into account any views or proposals about the decision to be made that have been expressed to her by either of the parents; and

(iii)Advising the parents in writing of the decision that she actually makes, including as to the reasons why she made that decision.

1. That save as otherwise provided in these orders, the children shall spend time with their father at such times and under such circumstances as might be agreed between the paternal grandmother and the father.

1. That save as otherwise provided in these orders the children shall spend time with their mother at such times and under such circumstances as might be agreed between the paternal grandmother and the mother.

1. That in default of agreement between the mother and the father and the paternal grandmother as to any other time, including unsupervised time, that the children spend with the parents, the children shall spend time with the mother and/or the father at the B Contact Centre in accordance with the following and subject to the said Centre’s administration being able to accommodate it:

(i)On no more than three days per week, including weekends;

(ii)For up to three hours on each occasion;

(iii)The mother and/or the father to make the necessary arrangements with the said Centre with respect to the days on which the visits are to take place and the hours during which they are to occur;

(iv)The mother and/or the father to notify the paternal grandmother of the arrangements that have been put in place with the Centre as to the days on which the visits are to take place and the times during which they are to occur;

(v)The mother and/or the father to notify the paternal grandmother by telephone call or text message by 8:30 am on the morning of each day on which a visit is scheduled to take place that at least one of the mother and the father will be attending that day at the Centre to spend the time with the children;

(vi)The paternal grandmother to deliver the children to the said
Centre at the commencement of the visit and to collect the children from the said Centre at the conclusion of the visit;

(vii)If the paternal grandmother has not received a telephone call or text message from the mother or the father before 8:30 am on the morning of each day on which a visit is scheduled to take place at the said Centre telling her that the mother and/or the father will be at the said Centre that day for the scheduled visit, she shall not be obliged to deliver the children to the Centre for the commencement of such a visit that day;

(viii)The costs, if any, of use of the said Centre for these visits shall be borne as to 50 per cent by the mother and/or the father (whichever utilizes the visit) and as to 50 per cent by the paternal grandmother, save for any costs incurred in circumstances where the paternal grandmother has delivered the children to the said Centre for the visit after having been informed that morning that the mother and/or the father were going to attend at the said Centre that day to spend time with the children and neither parent has turned up at the Centre as expected, whereupon that parent or both the parents (if the paternal grandmother was advised both were going to attend) shall be responsible for all of any such costs incurred.

1. That in making a decision to allow the children, or any of them, to spend unsupervised time with either or both of the mother and the father, the paternal grandmother shall give reasonable consideration to any advice that she receives from any of the administration or staff of the said B Contact Centre from time to time, any advice she gets from officers of the Department of Communities, Child Safety and Disability Services and any written evidence produced to her by the mother or the father as to their undertaking of, and/or completion of any further parenting courses or programs, drug or alcohol rehabilitation or diversion programs, anger management courses, literacy courses, domestic violence awareness programs or any other self-awareness or personal improvement programs that might improve or enhance their capacities to provide safe and emotionally supportive parenting to the three children.

1. That neither the mother nor the father shall be under the influence of alcohol or any other intoxicating substance at any time that the children are spending time with her and/or him, whether it be supervised time at the said Contact Centre or any other time that the paternal grandmother and the parent or parents have agreed upon.

1. That none of the children shall be permitted into the supervised or unsupervised care of the mother or the father should the mother or the father be under the influence of alcohol or any other intoxicating substance when such time is otherwise meant to commence and they shall be removed from the supervised or unsupervised care of the mother or the father and returned to the care of the paternal grandmother at any time they are in the care of the mother and/or the father and either the mother or the father comes under the influence of alcohol or any other intoxicating substance.

2. That the Independent Children's Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 297 of 2011

Ms Morgan

First Applicant

And

Mr Weston

Second Applicant

And

Ms Weston

Respondent

REASONS FOR JUDGMENT

1. V, D and Y are children of Mr Weston and Ms Morgan. They are still only little. V will be 4 years old in a few weeks’ time. D will be 3 years old in April and Y, still an infant, will only be 2 years old in June.

2. At the time of the trial in this matter, in late November 2012, those three children were living with their paternal grandparents and being cared for principally by their paternal grandmother, Ms Weston.

3. V had been living with her grandparents since she was only about 5 weeks old, having been placed there by her parents because they thought she would be better cared for by her grandmother than by them at that point in time. I am quite satisfied they were right about that.

4. D had been living with his grandparents since September 2011 when, again, his parents consented to him living there. They did that in the Federal Magistrates Court (as it then was), consenting to orders for him to live with his sister at his grandparents’ home and to be cared for by his grandmother. They did this, I am satisfied, believing that D, too, would be well cared for by his grandparents, particularly to avoid him being taken from their care by the State child welfare authority.

5. The baby, Y, had been living with her grandparents since she was just under 2 months of age, again with the consent of her parents given to the Federal Magistrates Court on 31 July 2012. Orders were made that same day with the consent of all the parties, that the three children spend time with their parents three times each week, supervised at the B Contact Centre and at other times as agreed between all of the parties.

6. When the matter came before me for trial in Rockhampton in late November 2012, the children’s mother was not legally represented, but the children’s father was.  They were at that time living together as a couple and both applying for orders that the three children go back to live with them. The paternal grandmother was legally represented as the respondent to the parents’ applications and she opposed any orders being made for the children to be returned to their parents’ principal care. She sought parenting orders that the three children continue to live with her, that she be given sole parental responsibility for them and that they spend time with each of their parents under such circumstances as agreed between them and her.

7. There was also an Independent Children’s Lawyer in the matter and she was represented by counsel at the trial. She certainly supported the outcome of the children continuing to live with their paternal grandparents and opposed the parents’ applications for the children to live with them, but she advocated for the children to spend a mix of supervised and unsupervised time with their parents in short but frequent periods with review by the Court after a period of time.

8. At the time of the trial, I was readily persuaded by all of the evidence that the three children should continue to live with their grandparents and continue for a time to see their parents supervised at the Contact Centre. I was also satisfied that the paternal grandmother should have sole parental responsibility conferred on her, conditioned upon consultation with the parents when decisions about major long-term issues in relation to the children have to be made. I considered the real issue to be determined in the case was whether or not the children’s time with their parents was to transition to unsupervised time by Court order and, if it was, then in what circumstances.

9. Regrettably, due to the responsibility of having to hear and determine so many other parenting orders and property adjustment cases in the period since the trial, my judgment in this case has been reserved until now. I appreciate that this long delay in finalising the case by judgment would have caused the parties, particularly the parents of the three children, even greater anxiety and concern than they would already have been experiencing in their lives through being involved in this type of dispute with the paternal grandmother. I apologise for any contribution the delay has made to this. It is to be hoped that the parties may very well have improved their own relationships in the meantime and that the children have been spending regular time with their parents so that they can move forward now in the development of more meaningful relationships, at the same time being assured of their physical safety and emotional wellbeing.

Relevant Background Matters

1. The mother is 39 years of age. She has ten children. Four of those children live in another town in north Queensland with extended family members and the mother does not see them. At the time of the trial, she had not seen those four children for many years. Another three children, S, now 15 years old, R, now 9 years old and N, now almost 6 years old, were living with the mother and the father (although he is not their biological father) in Rockhampton at the time of the trial, whilst the youngest three children (who are the father’s children), the subject of these proceedings, were living with their paternal grandparents in their home not too far away from the parents in another part of Rockhampton.

2. Around the time that the mother and the father placed their daughter, V, with the grandmother (in May 2010), the Queensland Department of Communities (Child Safety Services) (as it was then called) removed S, R and N from the care of the parents and placed them in foster care. The Department acted on concerns of quite serious violence in the parents’ household, directed by the father at the mother and at the children, and on concerns of serious drug and alcohol abuse and parental neglect of the children. On the evidence I have read and heard in this case, I am satisfied those concerns were completely legitimate. The father was later that year convicted of assaults occasioning bodily harm and breach of Domestic Violence Family Protection orders in respect of violence that occurred in May 2010. At that time, it was his sixth conviction for breach of Domestic Violence Family Protection orders in four years.

3. Whilst V, then a newborn infant, was initially the subject of Departmental interest as well at that time, once the Department became aware that she was living with her grandparents and being cared for by her grandmother, she was permitted by the Department to stay in her grandmother’s care in the grandparents’ Rockhampton home.

4. The other three children remained in temporary Departmental protection from May 2010 through to December 2010, when a protection order in favour of the Director-General of the Department was made in the Children’s Court, formalising the foster care of those three children for a further six months.

5. During that year, whilst the other three children were in the care of the Department, the parents’ time with them was required to be supervised. By arrangement with the Department, the grandmother supervised that time and at the same time, she made the baby, V, available to spend time with her parents and her siblings. This time was generally facilitated at the grandparents’ home. The grandmother also cared for the two boys, R and N, from time to time during that period, giving respite to their foster mother, again with Departmental approval.

6. In or around June/July 2011, the other three children were, over a period of a few months, reunified with their parents and allowed back into their care.

7. The parents sought for the baby, V, to be returned to their care at around the same time. The grandmother, still very concerned that the parents were not well placed to care for all four children, in addition to newborn D, who was born in May 2011, told the parents and Child Safety that those concerns prevented her from returning V to the parents’ full-time care.

8. The parents then made application to the Federal Magistrates Court for the child, V, to be returned to their care by the grandmother, but when that came before the Court on 6 July 2011 consent orders were made that V continue to live with the grandmother and spend time with her parents for a few hours on three days per week.

9. The three other children went back to live in their parents’ full time care on or around 18 July 2011. However, only a couple of days after those three children were actually returned to the care of the parents in their home, the father was again violent towards the mother and the children and he was taken by police into custody as a consequence. Yet again, he was convicted of breaching a Domestic Violence Family Protection Order.

10. In September 2011, the mother took her three other children and baby D on a bus and travelled to Town C in north Queensland. There is evidence that she did this as Departmental officers had told her that if she did not the Department would again intervene to take the children into foster care. Soon thereafter, the father travelled up there to Town C and brought the mother and the four children back to Rockhampton. It was the day after their return that D was placed in the grandmother’s care with the consent of the parents and the approval of the Department. The Department allowed the other three children to stay in the mother and father’s care but under the supervision of a voluntary parental agreement (an IPA).

11. That Departmental supervision was closed in February 2012. The Department was apparently satisfied that the two parents were addressing Departmental concerns by doing Parenting Under Pressure, Triple P Parenting and Family Support Programs through indigenous people’s support and assistance organisations. That was despite the father being convicted again in mid-January 2012 and yet again in late January 2012 of breaches of a Domestic Violence Family Protection order, as well as possession of dangerous drugs in October 2011. In late January 2012, the father was sentenced to two months imprisonment suspended for six months and it was noted that he had just completed the Queensland Indigenous Alcohol Diversion Program.

12. The grandmother’s evidence, which I accept, is that in late 2011/ early 2012 the father was again drinking alcohol very heavily and the parents were arguing and fighting frequently about housework, parenting and money. On 30 December 2011, the mother and the other three children all turned up unannounced at the grandparents’ home and the mother told the grandmother that the father was “drinking again” and that she and the children had to get out of the house. It was around this time that the father began to harass and abuse the grandmother, threatening to take V and D from her if she did not return them to his care. However, at the same time he was still calling the grandmother looking for her help when the mother was yelling and screaming at him and threatening to harm herself or damage the home in which they were living. The grandmother gave evidence, which I accept, that these sorts of calls where the father was calling for her assistance occurred on a weekly basis, approximately, during the first half of 2012. Indeed, she put into evidence as an exhibit, a recording of one such phone call and a transcript of it which graphically demonstrated how distressing the circumstances must have been, particularly for the three children still in the parents’ care during that time. That evidence also showed the father refuting the suggestion that police intervention to assist him was necessary. He did so, saying he had marijuana in the house. That evidence contained admissions by him that he was still using marijuana to deal with “the pain”.

1. The grandmother also gave evidence, which I accept, that the mother telephoned her fairly frequently during June, 2012 after the baby, Y, was born, seeking her assistance in caring for the newborn and reporting to her that the father was spending their limited money on purchasing marijuana rather than baby essentials. It was around this time that the mother actually placed the baby, Y, in the grandmother’s care for a few days. Soon after she was returned to the parents’ care, the father called the grandmother pleading with her to take the baby back into her care as he said the mother was not looking after her appropriately. There was a big argument between the mother and the grandmother when the grandmother went to collect the baby, but nevertheless the grandmother took the baby back to her home and has cared for her ever since. Police officers later sought to intervene at the request of the parents, but the grandmother told the police that she would not be returning the baby to the parents because of all of her concerns about the parents’ capacity to care for her and the police took no further action, leaving it for the Court to determine.

2. The grandparents stopped allowing the parents to come to their home to visit from around this time, apparently no longer able to tolerate the abuse and physical violence that they said so often accompanied such visits. The grandmother’s evidence is that she then continued to receive many phone calls and text messages from the father and the mother over the months leading up to the trial where she was abused and berated for not giving the three young children back into the parents’ care.

Other Relevant Findings

1. At the trial, the father and the mother gave oral evidence under cross-examination. So too did the paternal grandmother and paternal grandfather. I am satisfied that all of them tried their best in giving evidence in difficult circumstances. Neither the mother nor the father is very well educated, and neither is very literate. Although the father had been employed in the past, he was unemployed at the time of the trial and had been for some time. He and the mother were completely dependent upon social security benefits at that time and had been for a while. The father had a long history of adult criminal convictions, commencing when he was only 19 years old. The offences he had been convicted of were generally drug and alcohol related, and included offences of public disorder and violence.

2. The father and the mother were, unsurprisingly, not comfortable in the Court setting. Nevertheless, they were respectful of the process and the other participants in it. Although they made denials of some matters that were put to them, they did make admissions against interest at times. I have no doubt that they love the three little children and miss having them with them. That they were participating in the Court process with a view to achieving family reunification was, I consider, a positive sign in itself. However, after seeing them and hearing all of the evidence I was not persuaded that putting the three little children back with them in their full-time care was in the children’s best interests. 

3. As could be expected, much documentary evidence (four big lever arch folders) from the Departmental files, Queensland Police files, the Contact Centre files, Health and Education Department files was put into evidence. The documentary evidence overall did not present a very good picture in respect of the parenting capacities of the mother and the father.

4. I do not consider it necessary to discuss all of the evidence in more particular detail. Suffice to say that I am quite satisfied on the evidence I read and heard in this case of the following significant and ultimately determinative matters:

   (i)That there is a serious history of domestic violence in the parent’s household, mostly perpetrated by the father towards the mother and by the father towards the children, but also perpetrated by the mother towards the father;

   (ii)That the father has a serious history of alcohol and marijuana abuse and an inability to manage his anger and his behavioural responses when angry and/or under the influence of alcohol or drugs;

   (iii)That although the parents have engaged in certain intervention programs they did not fully participate in, or complete them all, and although they demonstrate some development of awareness of the issues that confront them, they do not demonstrate having obtained maximum benefit and insight from such programs and they would certainly benefit from further involvement in such programs;

   (iv)That notwithstanding the intervention programs that the father and the mother have both been involved in, the violence and the alcohol and marijuana abuse continued in their home up to the time of the trial;

   (v)That the parents also each have gambling problems, particularly in respect of the use of poker machines in licensed premises;

   (vi)That the alcohol and marijuana abuse and uncontrolled poker machine gambling frequently result in the parents having insufficient funds to purchase necessities for the household such as food and household supplies, medication and other sanitary supplies;

   (vii)That the most basic needs of the children of the parents’ household are often not adequately met by the parents;

   (viii)That the parents have from time to time not availed themselves of the opportunities to spend time with the three youngest children at the B Contact Centre as provided for, seemingly without very good reason;

   (ix)That the three young children’s needs are being adequately met in the care of the paternal grandparents, with the grandparents, particularly the grandmother having the financial, physical and emotional capacity to provide adequately for them;

   (x)That the paternal grandmother has adequately demonstrated that she is willing to, and has the capacity to facilitate the three youngest children’s relationships with their parents, as well as the capacity to prioritise the safety and wellbeing of those three children;

   (xi)That the paternal grandmother understands the need for the three youngest children to have meaningful relationships with their parents whilst at the same time being kept safe;

   (xii)That the paternal grandmother has a capacity herself to assess and determine when the parents’ capacities to provide adequate and secure care for the three youngest children have improved to a level where she would willingly facilitate the three children spending appropriate unsupervised time in their parents’ care or even return them to the parents’ full-time care. 

Parental Responsibility

1. Without a doubt, the statutory presumption that it is in a child’s best interests for the parents of that child to have equal shared parental responsibility for the child is rebutted in this case by the evidence, which I have accepted, of serious family violence in the parents’ household. I am equally satisfied that whilst the three little children are to be living with their paternal grandparents, it is in their best interests for the grandmother to have sole parental responsibility for the “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth) (“FLA”)) in relation to the children, so as to ensure those decisions are being made by the adult who is directly caring for them on a day to day basis.

2. However, I do consider it is also in the best interests of these children, as I said during the course of oral submissions at the trial, for the parents not to give up on having relationships with these children or being involved in their lives, including in respect of decision making for them. Accordingly, my orders will provide for the paternal grandmother to consult with both parents whenever decisions on major long-term issues are being made and to obtain their views and proposals in respect of the pending decision, to give consideration to them before making the decision and then, after making the decision herself, notify the parents of the decision she has made and the reasons for making that decision.

The Time the Children are to spend with the Parents

1. The single expert psychologist who wrote the two family reports that were in evidence, expressed the opinion that the three children who are the subject of these proceedings should continue to live in the principal care of the paternal grandmother but that they should be spending time with their parents on a regular and frequent basis. I accept that opinion as correct. However, when he was giving oral evidence during the trial, after having been told about developments and events that he had not been aware of when writing the reports, the expert agreed with the proposition put to him that the parents need to demonstrate significant changes in their capacities to properly and safely care for the three young children before they are given unsupervised time with the children.

2. I acknowledge that Departmental officers placed the mother’s other three older children back into the household and care of the mother and the father and, at least at the time of the trial, they were still there and that the parents’ care of them was not being supervised by anyone. However, those three children are older than the three children who are the subject of these proceedings. Those three children are, by dint of their age and attendance at school, better placed to act protectively of themselves, including being observed by teachers and reporting to teachers and/or their grandmother, who they do get to see from time to time, matters of concern to them. The three children who are the subject of these proceedings are still very young and far more vulnerable to neglect or abuse. Whilst Departmental officers have considered it appropriate to return the three older children to the care of the parents, they certainly have not acted to remove the three youngest children from the paternal grandparents and, knowing that these proceedings are on foot, the Director-General has not considered it necessary to intervene in them, as is her absolute, unquestionable right. Having regard to all the matters that I must consider in determining what is in the best interests of the three youngest children, pursuant to s 60CC of the FLA, I have no doubt that their best interests are met by continuing the arrangement where they live with their paternal grandparents.

3. One of the matters that I am required to consider that I specifically mention is the right of these children to enjoy their Aboriginal culture and the likely impact any proposed parenting order will have on that right. These three children are Aboriginal. Their mother and their father are Aboriginal. Their paternal grandparents are Aboriginal. Their aunts and uncles and cousins who they come into close contact with in their grandparents’ home are Aboriginal. There was no evidence before the Court that caused me to conclude that the paternal grandparents identify any less with Aboriginal culture than the mother and the father do. In fact, I got the impression that the paternal grandparents were both proudly Aboriginal. There was no evidence before the Court that caused me to be concerned that the children’s right to enjoy their Aboriginal culture will be adversely affected by orders that provide for them to live with the paternal grandmother, whilst just spending limited time with their mother and father.

4. Without a doubt though, it is correct that if these three young children are to develop meaningful relationships with each of their parents, they need to be spending regular time with each of them and it must be time during which they experience good parenting. Of course, that need, though, cannot be put ahead of the more fundamental need to protect them and keep them safe and well cared for. As matters stood at the time of the trial, I was not satisfied that the children would not be exposed to unacceptable risks to their physical and emotional wellbeing by allowing them to spend long periods of unsupervised time with their parents. I will not be making orders that provide unconditionally for that.

5. Before the parents can expect the children to be spending unsupervised time with them, they need to be able to demonstrate commitment to the routine of regularly spending time with the children, and capacity to be able to focus on the children’s needs during the time they spend with them. If they can do that, they are far more likely to progress to a point where the paternal grandmother, or the Court at some time in the future, will be satisfied that the children’s best interests will be met by allowing them to spend periods of unsupervised time with their parents or even by putting them back in their parents’ full-time care.

6. I appreciate that the parents may already have been regularly and consistently spending time with the children in the supervision of the B Contact Centre since November 2012, when the trial finished, although they had been missing some visits up to the time of the trial. If they have become reliably more consistent in the meantime, they will probably already have progressed to the point whereby the paternal grandmother may have become satisfied that the children will be safe enough in their unsupervised care for periods of time. If they have not, and the paternal grandmother is not yet in a position where she is satisfied to let the children spend unsupervised time with either of the parents, then the orders I am satisfied should be made will still allow the parents to continue to have the children spend regular and frequent time with them in the supervision of the Contact Centre even without the agreement of the paternal grandmother.

7. I also appreciate that circumstances might be such that the grandmother may consider that the children could spend some unsupervised time with one of the parents but not the other or both at the same time. An example might be if the father does go off to the country to work, as he said he was considering doing, and was away from the home for some time and the grandmother thought the children could safely spend some time with their mother at her home. The orders that I am satisfied should be made in this case will allow the grandmother and each of the parents to come to their own agreements about such matters, as well as allowing the grandmother and both parents to agree on arrangements that suit all three of them. Such orders also provide continuity even if the mother and the father’s relationship breaks down and they were to separate.

8. Mindful of my finding that there have been occasions when the parents have not availed themselves of the opportunity to spend time with the children at the B Contact Centre even when it was available for them, I consider it necessary to build some framework for the continuation of these visits at the Centre into the orders that I will make.

9. Even if the grandmother and the parents are unable to agree on other arrangements, each of the parents (or both of them at the same time, of course) will be entitled to have the three children spend supervised time with them up to three days per week, including on days that fall on weekends, at the Contact Centre. Each such visit can be for up to three hours. The right to these visits will, of course, be subject to the Centre’s capacity to accommodate them. The parent or parents who want to have the visits will be responsible for making the arrangements with the Contact Centre as to the days and times the visits will take place and to notify the grandmother of those arrangements when they are put in place.

10. Additionally, so that the grandmother does not have to suffer the inconvenience of taking the children to the Contact Centre as arranged only to experience the parents not turning up, the orders will oblige the parent or parents to notify the grandmother by telephone call or text by 8:30 am on the day a visit is scheduled to take place at the Centre that at least one of the parents will be attending to spend time with the children at the Centre that day. On days when the grandmother is given such notice, she shall be required to deliver the children to the Centre for the visit and collect them from the Centre at the end of the visit. If she is not given such notice, she will not be obliged to deliver the children that day.

11. The costs, if any, incurred in the use of the Centre are to be shared as to 50 per cent to the parents and as to the other 50 per cent as to the grandmother. However, if the parents inform the grandmother that one or both of them will be going to the Centre that day for a visit and the grandmother takes the children only to experience the parent or parents not turning up, then the parent or parents shall be responsible for all of the costs incurred that day, if any.

12. I also consider it in the children’s best interests to restrain the parents from being under the influence of alcohol or drugs at any time the children are spending any time with them. The orders will include provision for visits not to be allowed to go ahead or to be stopped during the visit if either parent who the children are spending time with is determined to be under the influence of alcohol or drugs or to come under such influence during the course of the visit.

13. Finally, whilst I am satisfied that the grandmother is motivated by nothing other than the best interests of these three children and will be looking to reunite them with their parents when she considers that the parents will be able to appropriately care for them, I will order that she give reasonable consideration to any advice she receives from the staff of the B Contact Centre, any advice she gets from Departmental officers and any evidence the parents show her about further courses and programs they might undertake that will assist them to develop better parenting capacities.

14. I do not consider that this is a matter that requires only interim orders to be made and certain further review by the Court. I expect that the matter will make its own progress as the parents demonstrate to the paternal grandmother that their parenting capacities are developing and improving. Clearly, if those capacities do develop and improve but the parents have no success in convincing the paternal grandmother that they have so improved, they have the right to make further applications to the Court for different orders to be made. If they are able to demonstrate with evidence that their capacities have improved to the point where the children can be safely put back into their care, they could expect that to happen.

15. I make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 March 2014.

Associate: 

Date:  3 March 2014