Neate and Malin & Ors

FAMILY COURT OF AUSTRALIA

NEATE & MALIN AND ORS

[2020] FamCA 827

FAMILY LAW – PARENTING – Where the child has lived with the paternal grandmother since the age of six weeks – Where the child has social and behavioural difficulties - Where the mother has an extensive history of illicit substance abuse and criminal behaviour – Where the mother asserts she is now drug free – Where the child’s sibling is also subject of court proceedings – How the child’s time with the mother should be facilitated – Orders for ongoing drug testing – Orders for graduating time.

McCall & Clarke (2009) FLC 93-405

APPLICANT:

Ms Neate

1st RESPONDENT:

Ms Malin

2nd RESPONDENT:

Ms B Malin

3rd RESPONDENT:

Mr B Neate

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

5038

2015

DATE DELIVERED:

29 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATES:

14, 15 & 16 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Turnbull Law Pty Ltd

COUNSEL FOR THE 1ST RESPONDENT:

Mr Tannreenaway

SOLICITOR FOR THE 1ST RESPONDENT:

Sydney West Family Lawyers

SOLICITOR FOR THE 2ND RESPONDENT:

In Person

SOLICITOR FOR THE 3RD RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lessner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

IT IS ORDERED

That all previous Orders in relation to the child Y born in 2015 be discharged.
That Y live with the paternal grandmother.
That the paternal grandmother have sole parental responsibility for Y.
That the father spend time with Y as agreed with the paternal grandmother and supervised by her or her nominee.
That Y spend time with the mother:
(a)For a period of one year from the date of these orders at a supervised contact centre for two hours on each alternate Saturday, then:
(b)For four hours each alternate Sunday as agreed, in order to accommodate Y’s medication routine, and in the absence of agreement between 10am and 2pm.
That for the purpose of Order 5(b), for the first four periods of time, the paternal grandmother shall be present and in such proximity as she deems necessary and the visit will occur at a place agreed between the mother and the paternal grandmother. Thereafter, the mother will collect the child at the beginning of the period from the place nominated by the paternal grandmother and return him at the end of the period to the place nominated for return by the paternal grandmother.
That each of the paternal grandmother and the mother shall complete any intake procedure, interviews and documentation required by the contact centre from time to time.
That as soon as possible, and in any event within two months of the date of these orders the mother shall complete Chain of Custody hair follicle testing and provide a clear result to the paternal grandmother and the father as follows:
(a)The testing is to be conducted by D Pathology and undertaken to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(b)The hair drug and alcohol test must screen for drugs of abuse including amphetamine-type substances and metabolites (including but not limited to methamphetamines), cannabis and metabolites, cocaine and metabolites and opioids and metabolites;
(c) The cost of the hair drug test is to be met by the mother.
That thereafter the mother undertake hair follicle testing every three months in accordance with Order 8 continuing after she starts having time with Y in accordance with Order (5)(b) for two testing periods.
That in the event that the mother fails to provide a hair follicle test as provided in these orders, or provides a result that is positive for prohibited substances, or fails to attend a contact visit without giving proper notice, the operation of these Orders is suspended.
That the mother communicate with Y by electronic means such as telephone, Skype or FaceTime once each week as agreed with the paternal grandmother.
That the paternal grandmother is restrained from allowing Y to spend unsupervised time with Ms G.
That the mother is restrained from allowing Y to spend unsupervised time with her siblings and Mr J.
That the mother's time with Y pursuant to these orders and the father's time with Y pursuant to these orders shall not result in the parents both spending time with Y at the same time.
That the mother's time with Y pursuant to these orders be co-ordinated with the mother’s time with X so that all reasonable steps are taken to allow the mother to spend time with X and Y together on each alternate occasion, or as otherwise agreed.
That no party shall denigrate the other parent or the other’s parent’s family in the presence or hearing of Y and will use their best endeavours to ensure that no third party denigrates the other parent or other parent’s family in the presence of Y.
That the mother shall continue to attend upon her psychologist until such time as the psychologist recommends and follow all steps as recommended by the psychologist.
That the parties have leave to provide a copy of the Family Reports of Ms E, and a copy of these reasons for judgment to the mother’s psychologist and to Y’s psychologist.
That each party shall keep the other informed as to any emergency medical treatment Y requires, any serious medical problems or illnesses suffered by Y whilst in their care and any medication that has been prescribed for Y.
That the paternal grandmother shall authorise the school for the mother to receive copies of Y’s school reports, school photos and other documents and information otherwise available to parents, and for the purposes of such authorisation this Order shall be sufficient.
That the maternal grandmother may be present during the times Y spends with the mother.
That the mother shall ensure that, in the event that Y is at her home, there are no dogs on the premises or in the yard.
That all outstanding applications are dismissed.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

IT IS REQUESTED
A.That the Independent Children’s Lawyer provide a copy of these Orders to Mr Tann.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5038 of 2015

Ms Neate

Applicant

And

Ms Malin

1^st Respondent

And

Ms B Malin

2^nd Respondent

And

Mr B Neate

3^rd Respondent

REASONS FOR JUDGMENT

Ms Neate (“the applicant”) is the paternal grandmother of Y who was born in 2015 and is five years old. Y’s parents are Ms Malin (“the mother”) and Mr B Neate (“the father”).
Ms B Malin is Y’s maternal grandmother.
The mother has another child, X aged 10 who lives with her father. As a consequence of defended proceedings, orders have been made for X to spend time with the mother at a contact centre for the next twelve months, progressing to unsupervised daytime contact.
Contact between Y and X is an issue in these proceedings.
Y has lived with the applicant since he was six weeks old when the father was incarcerated and there were concerns about Y’s safety in his mother’s care. Shortly after, the mother was also incarcerated.
The relationship between the father and the mother ended in February 2018 when the father was imprisoned.
The mother has re-partnered with Mr J. They started to live together in April 2018. The mother and Mr J have no children.
Mr J has a history of drug use and possession and also has a criminal record relating to property crime and possession. He was released from prison in early 2019 and has completed a year of rehabilitation under the supervision of the drug court.
Both the mother and the father have significant criminal histories involving the use and supply of drugs and other criminal behaviour. Both have been incarcerated. Further, the mother alleges significant violence towards her from the father. The father alleges that they were both violent to the other.
Substance abuse by the mother and the father is a significant issue.
Most recently, the mother has completed a court mandated rehabilitation program at the R Rehabilitation facility in early 2020 and remains on parole until early 2021.
The father is on bail in relation to further offences. If he is convicted, he may face a further term in prison.

THE COMPETING APPLICATIONS

The applicant initially proposed that Y live with her and that he spend time with the mother and the father as agreed and under supervision. She seeks sole parental responsibility for Y.
In submissions, the applicant’s position was modified. She proposed that there be a year of supervised time in the contact centre after which, provided that there had been no positive drug tests, the contact would be privately supervised for four hours each fortnight. Ultimately, the applicant conceded that private supervision was impractical, because neither the mother, the father nor the maternal grandmother could afford to pay for it, and she proposed that she would supervise Y’s time with the mother.
It was at all times the position of the applicant that, if the mother returned a positive drug test, all contact should cease.
The mother propose that Y spend time with her, initially for three months, in a supervised centre for two hours each fortnight, then, subject to negative results of hair follicle testing, each Sunday for four hours, the time gradually increasing to each alternate weekend from Friday afternoon until 6 pm Sunday and for half of the school holidays.
The father is able to spend time with Y as arranged with the applicant and he does not seek any formal orders, other than that Y should live with the applicant.
The maternal grandmother sought orders that Y spend time with her once each fortnight after school for an hour or two.

HISTORY

Records produced by the police contain the mother’s lengthy criminal history of offences relating to the use and supply of drugs and offences relating to stealing and obtaining benefit by deception and reference to numerous breaches by the mother of bail conditions. I do not propose, in the narrative which follows, to detail each and every offence but rather to concentrate on those aspects of her history which demonstrate the concerns about her capability as a parent.
The father also has an extensive criminal history involving similar offences. Since Y was born, his father has served four terms of imprisonment.
Because the father is not applying for orders in relation to Y, there will be a greater concentration on the mother’s history in these reasons.
The mother was convicted of drink/driving offences in 2010 and 2012.
The mother and the father commenced a relationship in 2014.
The father was convicted of supplying a prohibited drug in September 2014 and jailed.
Y was born in 2015. The applicant asserts, and the mother denies, that the day after he was born, he tested positive for methamphetamines. The applicant is a health care worker. She told the Family Consultant that she was shown the relevant hospital record. The applicant deposed that she was shown the record on 2 August 2015. The mother conceded that she used methamphetamines during the pregnancy and that she is remorseful because her drug use during pregnancy may have contributed to the difficulties that Y suffers now. I accept that it is likely that there were methamphetamines present in Y’s system when he was born.
When the mother and Y were discharged from hospital, the family moved into the applicant’s home. The applicant deposed that she was told that they had to move from their previous accommodation because, “we had a bit of trouble tonight and we are being threatened”. They remained living with the applicant until 16 June 2015 then moved to other accommodation.
The applicant, deposed that she was concerned about Y’s care as she observed signs that both parents were continuing to use drugs. She deposed that on 25 June 2015 the father told her that Y was sick and she said “take him to the hospital immediately”. The applicant went to the hospital to wait for the parents and Y. They arrived after two hours and left Y with the applicant while they argued in the carpark.
In July 2015, the father was arrested for breaching bail conditions and remanded in custody then jailed until August 2016.
In mid 2015, while the applicant was caring for Y she received a message from the mother saying she needed to get away for a few days. On the same day one of the mother’s housemates told the applicant that men had come to the house looking for the mother and had taken her computer and phones because the mother owed them money. The applicant did not return Y to the mother’s care.
The mother made a complaint to the police who told the applicant to return Y to the mother.
The applicant commenced proceedings in the Federal Circuit Court and an interim order was made that Y live with the applicant. A recovery order was executed by police and Y has since lived with the applicant.
In September 2015 the police records note that the mother and the father were apprehended on the highway near S Town. They were both subjected to a roadside drug test and both registered a positive reading for methamphetamine. The vehicle was searched and found it contained a quantity of drugs including 2500 pills of methamphetamine, and various other quantities of different drugs. The record notes:
[The father] and [the mother] both had ready access to the substances, situated directly between them in the vehicle and freely admit ownership to all other paraphernalia secreted in the same position, however not the alleged prohibited drugs. … Police located glass smoking pipes, butane lighters and multiple empty and new plastic resealable bags secreted in the same location in the centre console as the prohibited drugs. [The father] readily admitted ownership of all these items. [The father] and [the mother] both possessed diaries, notebooks and pieces of paper containing drug ledges outlining a large number of persons owing them money for their supply of prohibited drugs. [The father] and [the mother] both possessed between them, 6 mobile phone immediately in their presence within the vehicle. Four of these phones were activated and receiving calls and SMS while under police observation. [The mother] has multiple SMS and facebook messages on her phone organising and carrying the supply of prohibited drugs in Sydney. At least one of these SMS Communications relate to [the father] and [the mother] meeting persons to retrieve quantities of money owed to them for supply of prohibited drugs in the preceding days. These transactions are outlined in the SMS to take place using the same vehicle.
The mother was arrested and remanded in custody until December 2015. She was indicted on two counts of possessing ammunition and two counts of supplying drugs, one of an indictable quantity and one of a large commercial quantity.
In December 2016 the police records noted that the mother was being monitored for intelligence surrounding drug supply and was currently on bail for possession. The records note:
Recent searches on [the mother] and her vehicles indicates that she is still involved in the supply of drugs. On this occasion the mother was searched and no drugs were located although the Police located a number of small unused resealable bags and a set of scales.
In March 2017 the mother was arrested and imprisoned for breach of bail. She was released in May 2017.
In July 2017 the police were called to the mother’s home because two men were attempting to kick down the door.
In August 2017 the mother was convicted of stolen goods in custody and fined.
In October 2017 the mother was stopped by a police random breath test unit. The subsequent testing proved positive for methamphetamines and she was convicted of driving having used illicit drugs and disqualified from driving.
In December 2017 she was convicted of obtaining a financial advantage by deception and fined.
In February 2018 the mother and the father separated when the father was jailed for seven months.
In February 2018 the mother was charged, and later convicted, with resist arrest and drive whilst disqualified and fined.
Records produced by the police note that in February 2018 the mother was in a vehicle stopped by police. The vehicle was searched. The record notes:
Located in the glove box was a small fabric bag. A further inspection of this bag revealed 7 clear resealable bags containing prohibited drugs. Consisting of 2 containing white powder, 2 with pills totalling three pills, 1 with brown block and 1 with a blue powder.
(As per the original)
The police were unable to ascertain the owner of the substances.
Records produced by the police note that in March 2018 the mother was a passenger in the applicant’s vehicle parked at M Correctional Facility. The applicant had driven the mother and Y to the facility to visit the father. The record notes:
At 3.00 pm corrective services commenced a search of [the mother] whom was attempting to visit her ex-partner … During this search corrective services located two sealed bags. One bag contained two balloons of clear crystal substance weighing 0.3 g and the other contained balloons of tobacco, easily recognisable due to the smell. Police were contacted and attended. As a result of this search, corrective officers attended the car park and searched … vehicle. Upon Police attendance the vehicle contained a large amount of illegal items amounting to serious offences.
The mother was released and issued a future court attendance notice. The father was charged with conspiring to bring contraband into the correctional facility.
In April 2018, the mother and Mr J started living together.
In June 2018 she was convicted of suspected stolen goods in custody and fined.
In July 2018, the mother and Mr J moved into the granny flat of a house owned and occupied by the mother’ sister Ms L, her partner and three children in her care including the child of the mother’s sister Ms N.
In July 2018, police executed a search warrant at those premises. In the granny flat, occupied by the mother and Mr J, the police found drug paraphernalia, methamphetamines and other substances and a knuckle duster and a quantity of stolen goods. The record notes that the property recovered belonged to “no less than twenty other victims” across the Suburb C and Sydney areas.
Mr J was charged with possessing drugs and a prohibited article and granted bail.
The mother was charged with 39 offences.
She was granted bail.
In September 2018, the mother was cautioned in relation to shoplifting offences and charged with possessing a prohibited drug.
Records produced by the NSW Police indicate that a search warrant was executed on the granny flat then occupied by the mother and Mr J in October 2018. The mother’s sister, her partner and three children in her care occupied the main house. At the time the search warrant was executed there was a child in the care of the mother. That child was not identified. The record states:
Whilst at the location, Police have observed the state of the residence to be deplorable for the [child at risk] to be living in. The following observations were made;-[the mother] and [her partner] are both confirmed users of methamphetamine. “Ice” has been located on this occasion and in late 2018 in the bedroom of the parents.-There are no suitable children’s bedrooms – there is one such bedroom with a child’s bed which contained rotting food and evidence of drug use however is overly cluttered with junk and no adequate hygiene exists. Therefore Police believe the child may either be sleeping in the bedroom with the parents and/or possibly in the loungeroom. The bedroom of the parents was in a disgusting state - the floor couldn’t be seen due to piles of rubbish/clothes and tools. The ensuite is unusable due to “construction” occurring – there was a wooden replica handgun located on the bedside table of the parents which looked extremely convincing – The kitchen of the residents is uninhabitable – nil food or drink items in the fridge besides rotting food, the benches covered in centimetres of grime and rotted food, the dishwasher appeared to be broken and had cutlery and plates/bowls with rotting food covered in mould still in it. Sink appeared to be unused. The kitchen also had stolen building materials loaded into it and it was difficult to traverse. The floor was filthy and there are great concerns for a child possibly even entering that area without footwear – the [child’s at risk] aunty, who was arrested on scene, has been known to supply drugs from the location, as well as to commit break and enters and be assisted by the parents of the [child at risk] to load the stolen property into the location and keep it there until sold – There are undesirable persons coming and going from the location at all times of the day and night, possibly seen by the child - The child at the time was dressed in a school uniform however the time Police attended was after 9:30am and the child appeared to not be going to school either way, as ……… advised she had only just woken up – The child appeared sad and partly distressed, would not look at Police and Police did not interact with [the child].-The backyard of the location appears to be the area for all of the stolen property including dangerous building materials, excessive amounts of power tools (in child’s reach) to be dumped.-In the backyard there is copious amounts of farm animals, dogs and birds which were deemed on the day by the RSPCA to be bordering on animal cruelty and extreme neglect which would not only be distressing for the [child at risk] but unhealthy and an environment unsuitable for children. Two of the birds were locked in a cage and had a piece of cardboard on top of them – one of the birds was dead and the second was dying. Two of the dogs were by the occupiers admission permanently caged as they did not like one of the other dogs. The dogs were in an extremely small cage, undernourished and sleeping/eating and going to the toilet in this cage with no freedom. This would be extremely distressing for the child. As noted, Police have significant concerns for any child being at, or residing at this residence. Police are aware that [the Department of Communities & Justice] have taken [the mother’s] children from her in the past where she now only has 1 hour visitation a week. Police are not entirely sure of the residential arrangements of the child at risk and believe that the mother of … and [the mother] may sometimes look after the [child at risk]. [The maternal grandmother] attended at the scene to pick the [child at risk] up during the warrant and was aggressive and very off-side with Police, advising Police they were corrupt and targeting her daughters. Therefore, Police were unable to address their concerns with her directly as a possible carer. Police have great concerns for the [child at risk].
(As per the original)

The mother in cross-examination denied the accuracy of the police record of that event, however, the mother was arrested and charged with further offences (approximately 41 in total). Her bail was revoked and she was held in custody until March 2019 when she was bailed to live at R Rehabilitation facility where she remained.
In early 2019, the father was issued with a Non Association Direction in relation to the mother after it came to the attention of the Suburb T Community Corrections Office that he had made death threats against the mother. Those threats had been made by phone and had been recorded. He was banned from visiting or contacting the mother.
In June 2019, the father was released from jail and went to live with the applicant and Y.
In September 2019, the father was arrested in relation to drug offences at the home in which the applicant and Y live. Y was apparently unaware this was happening and was in another room with his grandmother.
The father was charged with offences relating to possession and supply of prohibited drugs, and knowingly dealing with proceeds of crime. He was refused bail. He was subsequently granted bail and is now awaiting trial.
In October 2019 the mother was placed on bail conditions to reside at R rehabilitation facility until early 2020; to abstain from alcohol or drugs; not to enter premises where alcohol is sold and to undertake a course of rehabilitation.
Later in October 2019 she was made the subject of an Intensive Corrections order and was placed on parole for a year. Her parole expires in early 2021.
In June 2020, by agreement, the mother commenced supervised time with Y at a contact centre once each fortnight. The maternal grandmother has also attended each of those supervised visits.

THE HEARING

The applicant relied on three affidavits sworn by her.
The father relied on an affidavit sworn by him on 29 October 2019.
The mother relied on two affidavits sworn by her, the last on 25 August 2020 and an affidavit of Mr J sworn on 25 August 2020.
It is notable that the mother’s evidence in relation to her difficulties with drugs and her criminal conviction and incarcerations is contained in the following three paragraphs of her first affidavit:
In about July 2018, I was arrested and later charged in relation to several offences, which largely related to larceny and possession of illicit substances. I was granted Police [sic] the same day.
In about October 2018, I was again arrested and charged with further offences, approximately 41 in total. The charges related to larceny, dishonestly obtain goods by deception, stolen goods in possession and fraud related charges. My Police bail was revoked, and I was held in custody until March 2019.
In March 2019 I continued bail through the Supreme Court of NSW. As part of the bail conditions, I was to reside at R rehabilitation Residential program…
She also deposed:
I acknowledge and accept that I have had an issue with illicit drugs, mainly methamphetamines. My use of illicit drugs caused a lot of damage in my life.
It was only after the issue of subpoenas by the Independent Children’s Lawyer (“ICL”) and cross-examination that an accurate picture of the mother’s history emerged.
An ICL had been appointed to represent both Y and X.

THE FAMILY REPORT

A Family Consultant interviewed the family and prepared a report dated 3 February 2020. The report was directed to the parenting disputes in this matter and also to the dispute between the mother and Mr Tann in relation to X’s parenting.
At the time of the preparation of the report, the mother was seeking orders that would have seen Y living with her, and X living with her in alternate weeks.
The applicant was seeking orders that Y live with her and spend time with the mother as agreed.
Of her interview with the applicant, the Family Consultant reported:
[The applicant] said that Y struggles to regulate his behaviours and emotions, and that he requires a considerable amount of additional assistance at pre-school. She said that Y often has “full on meltdowns” on most days because he is unable to organise his thoughts or adequately express himself. She said that Y is “very busy” and active, and that he grinds his teeth at night. [The applicant] said that Y will soon undergo a paediatric assessment to screen him for Attention Deficit Hyperactivity Disorder (ADHD). She said that Y has been attending upon a behavioural specialist and a counsellor, who she said has taught her strategies to de-escalate Y when his behaviours are particularly challenging. [The applicant] said that Y is confused by the absence of his parents in his life, and said that he feels some anger about this. She said, “He never knows when they are coming back. I think he feels let down”.
About her decision to care for Y soon after he was born, [the applicant] said that Y was at risk of harm in the care of [the mother] due to [the mother’s] addiction to methamphetamine at that time. She said that at that time, Y was only a few weeks old, that [the father] had just been incarcerated and that she knew [the mother’s] incarceration was imminent. She said that she had no choice but to assume responsibility for Y. [The applicant] appeared very sad when discussing the alleged parenting issues of [the mother] and [the father]. She said that she is unable to trust them due to their respective addictions to illegal drugs. [The applicant] said that, as parents, [the father] and [the mother] lacked basic living skills, did not cook, could not manage their finances and were evicted from every dwelling they ever rented together. She claimed that Y would not be safe in the care of [the mother], “even for a few hours”. She said that, while [the father] loves Y, he understands that it is in Y’s best interests to remain in her care.
About [the father’s] frequent periods of incarceration, [the applicant] said that she believes he has become somewhat institutionalised by this. At the time of the Family Report interviews, [the father] had been out of custody for three weeks. [The applicant] said that [the father] is currently staying with her and that he has been busy attending post-custody appointments. [The applicant] expressed hope that [the father] may have reached a stage where he will be able to abstain from illegal drug use and criminal justice involvement. She said that she conducts random drug tests on [the father], which she said have thus far been negative. She said that she would know immediately if [the father] were to begin using drugs again, and that if this happens she will not allow him to continue living with her and Y. [The applicant] said that she does not leave Y alone with [the father], as she said he “would not cope” with caring for him.
The applicant told the Family Consultant that, when Y’s parents were in jail she spent considerable time at weekends taking Y to visit them and that, after the mother went to R Rehabilitation Centre, she took Y to see his mother on alternate weekends.
In relation to the maternal grandmother’s application to spend time with Y, the applicant said that the maternal grandmother:
… is “good with Y” but that she lacks insight into Y’s developmental and care needs. She said that [the maternal grandmother] has in her care the two youngest children of her eldest daughter, Ms U. [The applicant] said that Ms U’s five children have all been removed from her care by statutory child protection authorities, due to Ms U’s chronic substance misuse. [The applicant] expressed some mild concern that [the maternal grandmother] allows Ms U unsupervised time with the children, which she said is against the Orders by the Children’s Court of New South Wales.
The applicant spoke positively about X’s father and stepmother, saying they are “great”. She acknowledged that Y and X had not spent much time together because her focus had been on facilitating Y’s spending time with his parents but it did not appear that she envisioned any difficulties in liaising with X’s father about the children spending time together in the future.
In relation to her interview with the mother, the Family Consultant reported:
[The mother] said that, at the time of Y’s birth, she and [the father] lived with [the paternal grandfather]. She said that, around that time, [the applicant] and [the paternal grandfather] had recently separated. She said that when Y was about six weeks old, [the father] was incarcerated, leaving her and Y living with [the paternal grandfather]. [The mother] said that living with [the paternal grandfather] was “horrible” and “not nice” and that eventually she moved to the home of her mother… She said that soon after that, unbeknownst to her, [the applicant] applied for a Recovery Order, and, with the assistance of police, enforced the Order and took Y into her care. [The mother] was critical of [the applicant] for what she sees as [the applicant’s] decision to “steal” Y. [The mother] denied that Y was at any risk in her care, as [the applicant] alleges, and denied that she was using illegal drugs at that time. She said that she ceased illegal drug use during the latter part of her pregnancy with Y. She claimed that, as [the applicant] works as a health care worker at the hospital where Y was born, [the applicant] may have falsified documents to say that Y tested positive for illegal drugs at the time of his birth, which [the mother] denies. [The mother] expressed disdain for [the applicant], and said that [the applicant] is well aware that she provided a good level of care to Y. [The mother] added that, as well as Y’s father, she too, was incarcerated only a few weeks after Y went to live with [the applicant].
[The mother] said that, despite the animosity between her and [the applicant], she still saw Y once per fortnight while she was incarcerated, as [the applicant] regularly took Y to visit her in the correctional centre. [The mother] said that, upon her release from custody some three months later, [the applicant] was ordered by the Court to supervise time between her and Y twice per week, but that [the applicant] was unreliable in facilitating the time and was then further ordered by the Court to ensure that time happened in accordance with the Orders. [The mother] said that, all things considered, she has a good relationship with Y. It is noted that, at the time of writing, [the applicant] was taking Y to spend time with his mother at R Rehabilitation Centre once per fortnight. [The mother] said that Y becomes distressed at the conclusion of their visits, as he does not like leaving her.
As to her proposal that Y live with her, the mother told the Family Consultant that:
…she recognises that such a significant change in Y’s parenting arrangements will need to proceed on a graduated basis. She said that the time could increase slowly until Y is in her full time care. She said, however, that she would still want Y to remain connected to [the father], [the applicant] and the paternal family.
The father was highly supportive of his mother’s application and critical of the mother. Of his own drug use, the father said:
…he began using cocaine and methamphetamine in his early 20s after a serious motorcycle accident that effectively ended his professional career. He said that he was depressed about not being able to compete professionally anymore, and was also in chronic pain, which he said he self-medicated for. He said he later progressed to selling drugs. [The father] said that he completed a number of programs about maintaining a healthy lifestyle and abstaining from illegal drugs while in prison, and that he avoided all drugs during his most recent sentence. He said that he uses art to help him remain focused on abstaining from drug use, and to alleviate his anxiety. He said that [the applicant] has been conducting drug testing on him each week since his release, and that if he tested positive to any illegal substances, [the applicant] would ask him to leave her home. He said, “She wouldn’t do anything to jeopardise Y living with her”. [The father] said that he also undertakes random drug testing by his parole officer.
The father said that he would not cope with caring for Y alone.
The paternal grandfather told the Family Consultant that he enjoys spending time with Y and he was also strongly supportive of the applicant.
The Family Consultant noted:
There appears to be a toxic dynamic and high level of acrimony between many of the adults within these familial and social networks, particularly between the [maternal family] and the [paternal family]. It appears that the adults involved in these proceedings have been arguing over the future care arrangements for X and Y for several years. [The mother] said that the [paternal family] “hate” her parents because her parents are “trying to get custody of my kids”. She expressed a poor view of the [paternal family]… She described [the paternal grandfather] as “not a good person”. She was particularly critical of [the applicant] for what she sees as [the applicant] “taking Y”. It is noted that, prior to the Family Report interviews, [the applicant] was adamant that she did not want to have any contact with the [maternal family] during the assessment process. She claimed that [the maternal grandparents] (neither of whom participated in this assessment), are argumentative and in constant conflict with those around them. [The father] expressed a negative opinion of the [maternal] family in general.
Y was not formally interviewed due to his age. The Family Consultant described him as, “a bright, happy child with excellent receptive and expressive language skills for his age.”
The children were observed to show warmth and affection towards each other.
The Family Consultant observed:
Y was observed to be very affectionate toward [the applicant] throughout the day of the Family Report interviews. Y also appeared to be fond of his paternal great aunt, “Ms V” who attended the interviews in case [the applicant] needed assistance with Y. When Y saw his mother in the Court waiting area, he called “Mum!” in an enthusiastic tone.
The Family Consultant observed Y with the mother and reported:
Y was observed with his mother and X immediately following the observation of X with [the mother]. Y ran to [the mother] and hugged her enthusiastically, smiling broadly. [The mother] brought a dinosaur costume for Y, which made him laugh. Initially, [the mother] appeared to struggle a little to divide her attention between the two children, however, the three appeared happy and comfortable with each other. Y’s receptive and expressive language skills seem advanced for his age. Y became quite excited and ran around laughing and being silly. He sat with [the mother] on a beanbag and watched X perform a puppet show for him, and Y appeared to have great affection for his mother and sister. [The mother] brought an age appropriate craft activity for Y, and X and [the mother] helped him with it. Y listened intently to [the mother’s] instructions. X appeared to become impatient with [the mother] focusing some attention on Y, but [the mother] encouraged the children to interact with each other and praised Y for sharing with X. Y turned his attention to the doll’s house and emptied the furniture and figurines out onto the floor. X responded to this sarcastically by saying, “Yeah just get them all out at once, that’s the spirit”. Y created a narrative about the doll’s house figurines, and said to [the mother], “This one’s Mum is mad at him because he punched her in the belly” to which [the mother] replied, “That isn’t very nice”.
In her evaluation, the Family Consultant stated:
[The mother’s] future parenting capacity will very much depend upon her ability to abstain from illegal drug use and the attendant criminal justice involvement, a factor of which [the mother] appears to be well aware. It is positive that, currently, [the mother] appears to be drug-free, and would appear to be making good progress at R Rehabilitation Facility. Having said that, however, [the mother] is still in the early stages of recovery from illegal drug use, and her parenting capacity remains untested given that she currently resides in an addiction treatment unit, and has not had either child in her care for several years. It is clear to the Family Consultant that [the mother] has very positive intentions regarding her future parenting. It is quite possible for [the mother] to make a full recovery from addiction, and to develop good parenting skills and to improve her general overall functioning. She has not, however, yet had the opportunity to demonstrate this. It is encouraging to note that [she] seems to be somewhat cognitive of the possible challenges ahead should Y and X be asked to navigate new care arrangements. It is less clear, however, whether [she] has a full understanding of the effects this may have on the children’s emotional wellbeing, or of the details of their respective individual emotional and developmental needs. A further impediment to [the mother’s] future parenting capacity may be any trauma she has sustained through her alleged experience of [the father] as a violent and controlling partner, and whether or not she is able to make a full recovery from this. [The mother’s] alleged experience of family violence may have been compounded by frequent periods of incarceration. The experience of incarceration in itself is usually an adverse experience for people, and often compromises an individual’s mental and physical health, and executive functioning. It is suggested that trauma counselling may be beneficial for [the mother].
A further concern of the Family Consultant in relation to [the mother] is the obvious ill feeling she still holds toward… [the applicant].
In relation to the mother’s proposal that Y live with her, the Family Consultant stated:
Regarding [the mother’s] proposal that Y live with her full time, again, it is difficult to evaluate this for the same reasons outlined above. [The mother] has only ever had Y in her sole care for a few weeks when Y was a newborn baby. [The mother] maintains that she abstained from using methamphetamine during the last trimester of her pregnancy with Y, perhaps conceding that she did use methamphetamine during the earlier part of the pregnancy. Given [the mother’s] history of substance misuse leading up to Y’s birth, it could be fair to assume that [the applicant’s] decision to remove Y from the care of [the mother] was one made with Y’s safety and wellbeing as a primary consideration. It is acknowledged that [the mother] strongly denies that Y was at risk of harm at that time, and maintains that [the applicant] knew her to be a good parent to Y. It remains undisputed, however, that, at that time, [the mother] would have only had Y in her care for a matter of weeks, which is not much time to demonstrate good parenting skills. Given Y’s very young age and vulnerability, it is understandable that [the applicant] held concerns for his safety if she was convinced that [the mother] was using drugs at that time. [The mother’s] theory is that [the applicant] behaved disingenuously by removing Y from her care. The Family Consultant does not consider this theory to carry much weight, given that [the applicant] expended significant effort to facilitate Y spending time with both his parents during their respective periods of incarceration. The Family Consultant considers it unlikely that [the applicant] had any ill intention when removing Y from [the mother’s] care, and it is clear that she supports Y’s relationships with both parents, despite her valid safety concerns about both [parents]. Y is clearly very familiar with his mother and appears to view her in a positive light, evidenced by the observations of him with [the mother] on the second day of the Family Report interviews. This could only be attributed to [the applicant’s] efforts to support Y to retain his relationships with the parents by facilitating time with them and probably by helping Y to retain memories of them despite their physical separation.

The Family Consultant stated that the applicant’s “level of care of Y, and her knowledge and insight into his additional developmental and behavioural needs, is assessed as excellent, and is mostly undisputed.”
The Family Consultant considered the mother’s allegations that the paternal grandfather and one of the applicant’s adult daughters use drugs. I note that there is no evidence to substantiate those allegations and that they are denied by the paternal grandfather. The Family Consultant said:
If extended members of the [paternal] family are involved in the use of illegal substances, the primary concern here would be that [the father] may be at greater risk of relapsing and resuming his own use of illegal substances. There would also be a potential risk of Y being exposed to drug use by [the paternal grandfather] and [the father’s sister]. It may also be that [the applicant] is minimising any risks to Y in relation to [the father].
The Family Consultant stated:
If [the mother] completes the rehabilitation program at the R facility, abstains from illegal substance misuse and is able to avoid further periods of incarceration, it may be appropriate for Y to begin spending short periods of time with her. If Y were to commence spending supervised time with [the mother], as [the applicant] proposes, this would probably afford Y opportunities to explore his relationship with his mother outside of the confines of institutional settings. This assessment suggests that there is a clear foundation present, on which Y could further develop his relationship with [the mother]. A concern that would probably arise in relation to Y spending time with [the mother], is that of [the mother’s] conflicted relationships with members of the [paternal] family. On the one hand, it is highly unlikely that [the applicant] would agree to Y spending unsupervised time with [the mother] until [the mother] has had an opportunity to demonstrate her parenting skills. On the other hand, [the mother’s] animosity toward [the paternal grandparents] and her fears in relations to [the father’s] alleged past violence toward her, probably mean that [the mother] would not feel comfortable spending time in the home of [the applicant]. [The mother] may need to consider initially spending time with Y in a formally supervised setting. This would allow her a neutral space to build her parenting capacity, away from the complicated dynamics between her and the [paternal] family. To avoid any disruptions in the parent/child dynamic, any increase in the time Y spends with [the mother] will need to be gradual. [The mother] will also need to take direction from [the applicant] regarding Y’s additional emotional, developmental and care needs. This may prove difficult for [the mother], given the history here. [The mother] would also need to prioritise Y’s needs over her social life and interpersonal relationships if this has been a legitimate problem in the past, as [the applicant] asserts.
The Family Consultant recommended that, provided the mother remains drug free, Y spend time with the mother in a contact centre, initially alone and, after a time, jointly with X.
She recommended that Y continue to live with the applicant and that the applicant have sole parental responsibility for him.
In relation to the application of the maternal grandmother to spend time with the children, the Family Consultant stated:
There would not appear to be any obvious reason why X and Y could not spend time with their maternal grandparents, other than the conflicted relationships of the children’s parents and grandparents. [The maternal grandmother] is probably correct in presuming that, should the children begin spending time with their mother, time with the rest of the maternal family may occur spontaneously. If the Court determines that the children should spend no time with [the mother], it is suggested that they should till spend some time with [the maternal grandparents]. If the children are to spend no time with their mother, it is probably even more important that they spend time with the maternal grandparents and extended maternal family.
Given the length of time since X and Y have seen their maternal grandparents, if they are to spend any time with [them], there would need to be a period of re-introduction, particularly for Y. Having said that, the dynamics between these families are highly conflicted and characterised by deeply entrenched acrimony. When considering this, the benefit to Y and X of spending time with their maternal grandparents would need to far outweigh any potential risks to them of being further exposed to adult conflict.

Y’S HEALTH AND EMOTIONAL STATE

Y is currently under the care of a paediatrician, an allergy specialist, a general practitioner and a psychologist.
In a report dated 12 July 2018 the Region W Early Childhood Intervention Service Inc. reported:
Y has difficulty with peer interactions and is not reading social cues. His poor spatial awareness can be confronting and invasive for his peers which often leads to social isolation. During group or story time on the mat Y likes to distract others looking for attention unless the topic of discussion is of direct interest to him. Y will resort to rough play to get instant reactions from his peers and teachers and it appears that it is a case of ‘any attention is good attention’. If Y see’s [sic] a peer with a toy that he has just had or that he really wants he will emotionally meltdown, seeking the attention of his teachers. Y has poor self-regulation skills and will lash out at peers physically by hitting, pushing and biting. Y is interested in playing with his peers however lacks the appropriate skills to enter and maintain play situations. Y still requires prompting from staff to engage in peer interactions and without this assistance it often leads to conflict and negative interactions.
In a report dated 12 July 2019 Dr AA, Y’s paediatrician stated:
[Y] was presented today to me because of extreme hyperactive behaviour where cannot stay still even for a few seconds. Even when he is on the screen watching his favourite program he flickers to a different website and cannot watch a single video more than a few seconds at a time. It is very hard to control him overall. He goes to daycare five days a week and he needs constant supervision one on one. He has been aggressive where he is biting, kicking, hitting and punching other people as well as grandma. He becomes unhappy very easily and becomes angry all the time. He tosses and turns all night despite sleeping.
…
On examination, Y was extremely hyperactive throughout the consultation. Despite his appropriate facial expressions, he was constantly on the go. He cannot sit still for a few seconds even when watching his favourite cartoons on the mobile phone. He was jumping off the couch and running. I could not perform a physical examination on him.
In a referral letter to a psychologist dated 14 August 2019, Y’s general practitioner stated, “…his behaviour is interfering with his functioning across all settings of his daily functioning…”.
The most recent report of Y’s paediatrician to his general practitioner, dated 22 May 2020, states:
…Y has ADHD and he was started on dexamphetamine. Y’s behaviour is well managed on the medication; however, his behaviour becomes very challenging once the medication effects wear off. In the evening he would have very fragile emotions. Y can get very angry with small things and will have meltdowns with trivial matters. Once upset, he will get physically abusive towards grandmother. [The applicant] is finding it harder to de-escalate him lately, and she also believes his behaviour is very distressing for Y as well.
…
Y was seen by Dr AA, who spoke to [the applicant] in detail. Y is in interim custody with grandmother. Y has supervised visits with his parents; however, Dr AA has ongoing concerns regarding Y having unsupervised visits with parents.
We have made the following recommendations.
Plan:
1.Y’s biological parents have a history of drug abuse as per information provided to us. Y has severe ADHD and is currently settled on dexamphetamine. The worry is the dexamphetamine used for Y can be misused. Dr AA will not be able to prescribe dexamphetamine if Y is in parents’ care until full reassurance from the relevant authorities is obtained that the medication will not be misused and we strongly believe that not treating Y for his ADHD would prove detrimental.
2.Continue the same dose of medication.
3.Clonidine 25 to 50 mcg at 5 pm for his challenging behaviour.
4.Follow up with Dr AA in one month.
(As per the original)
In an undated report from Y’s pre-school which appears to have been prepared in about July 2020, the pre-school referred to Y’s “defiant behaviour” on a daily basis. His behaviour is described as “antagonistic during play provoking emotional and physical outbursts from his peers”.
The report stated:
…educators have trialled a variety of behaviour management techniques and strategies. We have sought additional support, advice and strategies from Region W ECIS which include using a timer, visual schedule, sticker chart, reward box and speaking in a calm monotone voice when addressing a concerning behaviour, or requesting Y to follow directions or routines. On certain days, some of these strategies prove to be effective however Y’s overall attitude and mood impact his intrinsic motivation to respond and engage appropriately.
The escalation in behaviour appears to have intensified over the past three months since Y’s Birthday. When these changes were discussed with [the applicant], we were informed that Y had re-started supervised fortnightly visits with his biological parents.
In addition to the diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”), he has been diagnosed with Oppositional Defiant Disorder (“ODD”) and is currently prescribed medication that is administered at 7 am, 10 am, 2 pm and 4 pm. That regime changes frequently as Y’s reaction to medication changes. One of the medications is dexamphetamine based.
Y’s paediatrician will not prescribe dexamphetamine if it is likely that the drug will have to be administered by the mother, having regard to her history of abusing amphetamines.
The records kept by Y’s pre-school, which were tendered, showed a child with multiple challenging behaviours.
The applicant described him as a child who needs strict routine. She said that keeping Y in a routine has been challenging and that she needs to ensure that Y is not overstimulated or overwhelmed when he reacts by having a “meltdown”. The applicant said that Y needs to understand in advance what is going to happen each day and when it is going to happen. She said “If we take him out of [a] firm routine, if we introduce new things, it has to be very well put forward for him and structured clearly and over time otherwise it will escalate him into meltdowns. He still has meltdowns frequently…”
The applicant said that Y gets “very let down when he has to wait or something doesn’t eventuate… We have to prepare him ahead of time for most events that are going to be outside a routine. When that doesn’t occur, that’s when he’ll become really anxious about why it didn’t happen, then he gets very angry and then agitated and has meltdowns, becomes very aggressive”. She was concerned that if Y were prepared for a visit from either of his parents, and the visit was cancelled “if that was a pattern, continually subjected to a let-down or not coming, it is very detrimental to him – setting him up to fail. We would be worried if it happened…”
He is confused by the absence of his parents and, after spending time with each of them, becomes upset and angry although, the applicant said, he does not understand why. He displays both anger and anxiety after the visits, often for some days.
The applicant said that, in the event that the father is jailed again, she would prefer not to take Y to visit him in jail as he is reaching an age where he will have some understanding of what jail is.
The applicant has been working with Y’s psychologist on strategies to deal with Y’s reaction if his father is again jailed.
Y will need to take medication for the foreseeable future. The applicant spoke of her difficulties in guiding Y as he gets older and more aware “trying to keep him steady, going forward with everything that he must do, and not be pulled in a hundred different directions…”.
Y goes to preschool five days each week and in 2021 will start school. He has sports activities on Saturdays. When he has a supervised visit with one of his parents on Saturday, he does not go to sports because he becomes too exhausted.
The applicant said that she has difficulty juggling Y’s free time to accommodate spending time with his mother, his father and his sister X, leaving him with little time to rest, or do things he enjoys.

FAMILY VIOLENCE

The mother has made allegations of serious family violence against the father. Those allegations are denied by him and, because there is no suggestion that Y will live with either the mother or the father, they were not explored in cross-examination.
There is no suggestion by any party that the orders that will be made in relation to Y will cause the parents to come into contact and at the present time the father cannot contact the mother without breaching his bail.
There is no allegation of violence between the mother and Mr J and there is no allegation that the applicant or Y has been subjected to family violence.

CONSIDERATION

The task for the Court in relation to Y is to balance the benefits to him of having a relationship with each of his parents against the risk that is posed by their respective drug use and criminal behaviours.
Ultimately, in relation to Y’s time with the mother, the matters to be determined were, firstly, for what period of time should the professional supervision continue and, secondly, once unsupervised time commences, how long should the time be. There was no issue that the mother would be required to have hair follicle testing during the supervision and for some period after unsupervised time commenced.
In relation to the father, although both the applicant and the ICL proposed that he should also submit to hair follicle testing and the ICL proposed that Y’s time with him be professionally supervised, it was ultimately conceded that hair follicle testing was simply impracticable because the father had no means to pay for it.
The applicant has managed Y’s time with his father since Y was six weeks old and there is no evidence that she has not done so appropriately. The father is currently on bail. He has already served four terms of imprisonment and may face another term if he is convicted on the current charges. He gave evidence that, if he is in prison, he would not want Y brought to see him. He does not seek unsupervised time with Y and is happy for the applicant to determine when and how he sees Y.
There is every reason to be confident that the applicant will ensure that Y spends supervised time with his father, commensurate with his welfare as she has done in the past and I do not propose to make any orders in relation to the time that Y spends with his father.
The discussion which follows is, therefore, directed to the issues relating to Y’s time with his mother and with the maternal grandmother.
Y’s views have not been canvassed having regard to his age.
The applicant has been Y’s primary and, at times, only carer since he was six weeks old. I accept that his most significant attachment is to her. The Family Consultant observed Y acting affectionately towards the applicant throughout the day of the family report interviews.
Y was also observed interacting enthusiastically with his mother and the Family Consultant observed “Y appeared to have great affection for his mother and sister.”
The applicant gave evidence that Y and X get on well together and the Family Consultant observed Y and X being warm and affectionate towards one another on the day of the interviews.
Y was not observed by the Family Consultant with the maternal grandmother but I accept her evidence that he interacts warmly with her when she sees him at the contact centre.
Both of the parents have failed to participate in Y’s life. They have each chosen a lifestyle that has led to their being unavailable to parent Y, either because of the effects of drugs or because they were each, from time to time, in prison. He has experienced them as physically remote and inconsistent and neither of them has been a constant presence in his life.
It is the applicant who has been consistently present for Y and who has unfailingly undertaken responsibility for him.
The applicant has ensured that Y has the opportunity to maintain a relationship with both of his parents, taking Y to visit each of them when they were in prison or, in the case of the mother, in rehabilitation. At times, the applicant was taking Y to see each parent in a different facility once each fortnight. I accept, as she told the Family Consultant, that ensuring that Y also spent time with X during these periods was simply too much.
I accept the evidence of the Family Consultant that “[the applicant’s] level of care of Y, and her knowledge and insight into his additional developmental and behavioural needs, is assessed as excellent…”
Since June 2020, by agreement with the applicant, the mother has been seeing Y at a contact centre once each fortnight. The maternal grandmother has also attended those visits. Although the mother is now working, she is not paying the costs of the supervised visits and the applicant has paid $30 for each visit.
The orders which the mother seeks would entail a significant change in Y’s present circumstances, albeit over a nine month period. The regime that the mother proposes would have Y, after three more months of supervised time in the contact centre, spending four hours each Sunday, unsupervised, with her.
That proposal has a number of difficulties. Firstly, it presupposes that the regime of medication which has been prescribed for Y by Dr AA will not change. More importantly, it would mean that Y’s only free day is largely spent with his mother and it does not accommodate his need to spend time with his father and his sister. Thirdly, the mother has not parented Y since he was six weeks old. She has not, since that time, had unsupervised time with him. Her evidence that she has observed Y have “minor meltdowns” at the contact centre and is confident that she would be able to deal with his behaviour is concerning, particularly as she had not, at the time she was cross-examined, read the material which had been produced by Y’s pre-school or his treating doctors. I do not accept that she has any real understanding of the challenges that Y’s behaviour might bring to his carer. Trained educators with professional assistance have found him difficult to manage.
The same difficulties attend the mother’s proposal to progress the time, after three months, to eight hours in his mother’s care, with the additional difficulty that his present, and, foreseeably, any future, medication regime could not be maintained.
At the expiration of nine months, the mother proposes that time with Y be extended to overnight on the weekend, and then after a further three months, the whole weekend, from after school on Friday until 6 pm on Sunday. Again, this does not accommodate the medication routine which is necessary for Y’s stability and day to day functioning.
There is a great deal of uncertainty that Y will be able to tolerate any extension of the time he spends with his mother.
The applicant, whom I accept to be the person who knows Y best, suggests that the final orders provide for time between Y and his mother for four hours each fortnight. I accept that she makes this proposal on the basis that it is her assessment that this is probably as much as he can accommodate. She proposes that she should be present to assist the mother to calm and soothe Y and to demonstrate to the mother the techniques that might assist her to manage his behaviour. The mother, through her counsel, told the Court that she was grateful for, and accepted, that offer of assistance.

I consider that the offer demonstrates, on the part of the applicant, an impressive commitment both to Y’s relationship with his mother and to the applicant’s willingness to do what is required for his well-being.
Whilst I accept that it is important for Y to have a meaningful relationship with his mother, it is more important that his day to day functioning and emotional regulation is fostered so that he can progress through his childhood and his schooling and learn to be an independent and functioning adult.
As has been made clear by the Full Court, the expression “meaningful relationship” does not mean “optimal” but rather, as their Honours stated in McCall & Clarke (2009) FLC 93-405, one which is significant, important and of consequence.
There is no dispute that the relationship that Y already has with his mother is significant, important and of consequence to him although, I accept, that the mother wants more. However, it is Y’s needs that take precedence.
The Family Consultant, in cross-examination, expressed her view that a year at the contact centre might be too long and that eight months would be more appropriate. Her concern was that supervised contact necessarily imposes limitations and Y might find it frustrating. However, the Family Consultant stressed in her oral evidence that her recommendations in relation to the time the mother and Y spend together was conditional upon there being no conflict between the maternal family and the applicant and she said she had no confidence that this would be achieved. In the Family Report, the Family Consultant commented on the mother’s hostility towards the applicant.
Y has since six weeks old, only ever spent supervised time with his mother and he is quite accustomed to having a supervisor present.
In this instance, and having regard to the caveat of the Family Consultant in relation to conflict, I prefer the position of the applicant, as to the appropriate time for supervision to cease, to that of the Family Consultant. The applicant understands Y and knows what might trigger his anxieties.
The orders will provide for supervision in the contact centre for a period of a year.
After a year, provided that the mother has provided the appropriate test results, the contact will be extended to four hours on each alternate Sunday. For the first four periods of unsupervised time, the applicant will be present and the contact will occur at a venue agreed upon between the applicant and the mother.
It is the applicant’s position that, in the event that the mother is tested positive for banned substances, or does not provide test results, or fails to attend without giving reasonable notice, then the operation of these orders should be suspended.
Having regard to Y’s need for routine, security and stability, I consider the applicant’s position to be appropriate.
In the event that the operation of the orders is suspended, the re-instatement of contact with the mother, and the conditions of that re-instatement, will have to be a matter for agreement between the applicant and the mother.

PARENTAL RESPONSIBILITY

The applicant seeks an order for sole parental responsibility. The mother seeks an order that she and the applicant share parental responsibility.
For most of Y’s life, the applicant has managed his complex needs with the assistance of his many therapists. I have every confidence that she will continue to do so.
The mother has not demonstrated any real understanding of the difficulties that Y experiences. The applicant provided a recent instance of the mother seeking to be involved in Y’s medical care. Y suffers from urticaria and is under the care of a general practitioner and an allergy specialist in relation to that condition. The applicant uses prescribed medications to treat his condition. At a contact visit on 5 September 2020, the applicant was handed a tube of cream by the supervisor, at the request of the mother. The mother works as a receptionist at a medical practice. The mother sent a text to the applicant stating:
…I’ve just spoken with the doctor here about [Y’s] allergies he has suggested to use this cream and has given me some for you so I will give it to [the supervisor]… to give to you as I don’t really want to put it in his bag.
He said it’s fine with the medication he is currently taking
As long as u don’t put it on his face.
(As per the original)
The applicant gave evidence that the cream that the mother sent was a Schedule 4 drug only available on prescription. There was no prescription and presumably the drug had come from a sample provided to the doctor. The applicant was, in my view reasonably, concerned that a doctor would provide a drug to the mother for use on a patient whom the doctor had not seen and without knowledge of the drugs that had already been prescribed and were being used for the child, and that the mother thought it appropriate to administer such a drug to the child.
This incident adds to the concerns of the applicant that the mother has no real understanding of the complexities of Y’s care.
It is not practical that the applicant should be required to consult the mother before she makes decisions about Y’s management.
However, the mother should be kept informed of Y’s progress and should be permitted to receive information from his school that is usually provided to parents and to attend school events to which parents are invited.

THE APPLICATION OF THE MATERNAL GRANDMOTHER

The maternal grandmother seeks an order that Y spend time with her once each fortnight after school for an hour or two.
She is currently seeing Y with the mother at the supervised visits and can continue to spend time with him at any time that he spends time with his mother.
Y’s free time is already encumbered by the need for him to spend time with his mother, with his father and with his sister. Additional complications to Y’s routine will not assist him.
There will be no orders for the maternal grandmother to spend time with Y.

ANCILLARY ORDERS

There were a number of ancillary orders proposed by the ICL to which the applicant agreed and which were not opposed by the mother. Those orders will be made.
The mother offered to submit to an order that there would be no dogs at her home if Y spent time there. I consider that order to be appropriate in circumstances where the mother keeps a dog which is required to be permanently caged and walked with a muzzle.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 September 2020.

Associate: NS

Date: 29/09/2020

[2020] FamCA 827

29 September 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction