P & Anor and K

[2007] FCWA 57

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	P & ANOR and K [2007] FCWA 57
CORAM:	MARTIN J
HEARD:	5, 6 & 7 FEBRUARY 2007
DELIVERED:	4 MAY 2007
FILE NO/S:	PT 2560 of 2002
BETWEEN:	P

First Applicant

P

Second Applicant

AND

K

First Respondent

R
Second Respondent

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Catchwords:

CHILD - parental responsibility - with whom a child lives - with whom a
child spends time - maternal grandparents v father - mother drug user
Legislation:

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Category: Not Reportable

Representation:

Counsel:

First Applicant:	Ms Giles
Second Applicant:	Ms Giles
First Respondent:	Self Represented Litigant
Second Respondent:	Ms Athanasiou

Independent Children's Lawyer: Mr Berry

Solicitors:

First Applicant:	DCH Legal Group
Second Applicant:	DCH Legal Group
First Respondent:	Self-Represented Litigant
Second Respondent:	Ferrier Athanasiou & Kakulas

Independent Children's Lawyer: Calverley Johnston

Case(s) referred to in judgment(s):

Nil
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1 The principal issue to be decided was where the child of the first and second respondents should live and how much time she should spend with each of the parties, particularly the applicants and the second respondent.

2 The child the subject of the proceedings is [Chelsea] [R], born in October 2000 (6½ years). The applicants are the maternal grandmother [Mary] and step-maternal grandfather [John]. The respondents, [Ann] and [[Simon], are the parents of the child.

3 The present proceedings were commenced by an application filed by the applicants on 24 February 2005, to which the second respondent filed a response, and then an amended response on 23 June 2005. The first respondent filed a response, and then an amended response on 3 July 2006.

4 By the conclusion of the trial, the applicants sought orders in the following terms:

1.	[Mary] and [John] have long term parental responsibility in relation to the child [Chelsea] [R] born 27 October 2000 ("[Chelsea]").
2.	[Chelsea] live with the Applicants.
3.	[Ann] spend time with [Chelsea] for such times as are agreed between the Applicants and the First Respondent and to include:

(a)	from 5:00 pm Saturday until 5:00 pm Sunday in the presence of the First and Second Applicants each alternate weekend commencing 3 February 2007;
(b)	on such other occasions when the First Respondent is present at the First and Second Applicants home and [Chelsea] is not having contact with the Second Respondent;
(c)	contact including but not limited to Mother's Day, [Chelsea]'s birthday, the First Respondent Mother's birthday, Christmas Day and Easter; and
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(d)	unlimited telephone contact.

4. The First Respondent have liberty to apply for variation of contact arrangements should she obtain permanent accommodation at an address other than that of the Applicants that she has held for a period of three months.

5. The Second Respondent [Simon] have contact to [Chelsea]:

(a)	every alternate weekend as follows: (i) each alternate occasion from 5:00 pm Friday until 10:00 am Sunday commencing 9 February 2007; and (ii) on the next alternate weekend from 5:00 pm Friday until 5:00 pm Sunday, commencing 23 February 2007, and if the Monday is a public holiday until 5:00 pm that Monday, provided that if the Second Respondent is not available to personally supervise [Chelsea] during contact, he shall arrange for her care by her paternal grandparents or other relatives known to [Chelsea];
(b)	reasonable telephone contact and for that purpose the Applicants do permit [Chelsea] to telephone the father and the father be permitted to telephone the Applicants to speak to [Chelsea] each Thursday at 6:00 pm;
(c)	during school holiday periods for one week at the commencement of and one week towards the conclusion of the summer school holiday period each year, the Second Respondent to advise the Applicants of the dates when he wishes to exercise contact on the commencement of the fourth school term each year;
(d)	for one week during either of the term school holiday periods, the First Respondent to nominate when he proposes to exercise such contact one month before such contact will be due;
(e)	the Second Respondent be responsible for collection of [Chelsea] from the home of the Applicants at the commencement of contact and her return to their home at the conclusion of contact

5 The first respondent, who was self represented at the trial, supported the orders sought by the applicants and further sought an

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order than the father be subject to random urinalysis testing for illicit
drugs.

6 The second respondent sought that the child reside with him and he be responsible for the “day to day care, welfare and development of the child” and that he have long term parental responsibility for her. He proposed that the applicant grandparents have contact “during the school term for two weekends out of three from Friday 5:00 pm to Sunday 5:00 pm extending to 5:00 pm Monday in the event of public holidays”. For the purposes of the contact, the parties share travelling so that each party does one leg of the transportation journey. He proposed that the applicants spend time with the child for the first week of the mid year school holidays and for half of the Christmas school holidays in alternate weeks.

7 Further detailed parenting orders were sought as to the arrangements for special occasions, and communication.

8 In the event the child is to live with the applicants, he sought that she stay with him from Friday after school to Sunday at 5:00 pm in one week, and from Friday to noon Sunday in the intervening week.

9 The independent children’s lawyer sought that the child reside with the applicants and spend time with her mother, such time to be supervised by the applicants. It was proposed that the second respondent spend time with [Chelsea] on the following basis:

(a)	on a 2 weekly basis on the first weekend from 5.00 pm Friday to 11.00 am Sunday;
(b)	on the second weekend from 5.00 pm Friday to 5.00 pm Saturday or
(c)	alternatively on a 2 weekly cycle from the conclusion of school on Thursday to commencement of school on Monday on an alternate weekend basis;
(d)	the child spend one half of each term school holidays with the father;
(e)	the child spend each alternate 7 days with the father during the Christmas school holidays;
(f)	the father spend time with the child on Father's Day in the event that it does not fall on his weekend from 5.00 pm Saturday night to 5.00 pm Sunday;
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(g)	the orders be suspended from 5.00 pm Saturday in the event it falls on a the weekend the child spends with the father;
(h)	the child spend 2 hours with the father on the father's birthday;

(i) the father have liberal telephone contact with the child.

10 The independent children’s lawyer also sought orders that the applicant and second respondent attend counselling in an endeavour to improve their relationship.

Background to the proceedings

11 The applicant maternal step-grandfather is 50 years old and [an industrial worker]. He is a longstanding employee of [a large company]. The applicant maternal grandmother is 45 years old and engaged in home duties. The mother of the child is 26 years old and unemployed. The second respondent, the natural father of the child, was born in England of [European] parentage, and is 42 years old. He has worked in a number of largely unskilled manual jobs. At the time of trial, he had, the previous week, commenced employment as a floor layer putting non stick coatings on floors.

12 [Ann]’s father was a [serviceman] who was imprisoned for corruption. He has had some, but minimal involvement in [Ann]’s life.

13 [Ann]’s full sister, [Natalie], is about 24 years old. She has two

small children.

14 The applicants commenced cohabitation in 1984. They had a child, [Tayla], who is now about 20 years old, and also has a young child.

15 [Mary] and [John] married in July 1989.

16 [Ann] met the second respondent shortly before her 16th birthday. She had been involved in the use of illicit drugs since at least the age of 14 years, and the applicants say that it was, in fact, her drug usage which led to them separating for about two years from the time [Ann] was 14 to 16 years old. [John] maintained that [Ann] was a drug user, but [Mary] was initially in denial, and this apparently led to the separation. At that time, [Simon] was using marijuana and amphetamines. The mother was using heroin and amphetamines.

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17	The applicants were concerned about [Ann] forming a relationship with [Simon] because he was literally twice her age and they soon became further concerned that [Simon] was encouraging her drug use. [Ann]’s evidence is that [Simon] encouraged her drug use and supplied drugs to her. At that time, he admits some illicit drug usage, but not to the extent maintained by [Ann]. He was admitted to hospital for a few days as result of amphetamine use.
18	In 1997, the applicants arranged placement for [Ann] in a youth drug rehabilitation programme. Later that year, [Ann] and [Simon] commenced living together, and they lived in a de facto relationship on and off until September 2001, when they finally separated.
19	In November 1998, [Ann] was placed in a residential drug rehabilitation programme at [special facility], which she completed in April 1999.
20	It is the mother’s evidence that there was a violent incident between her and [Simon] on the day before [Chelsea]’s birth, and [Chelsea] was born by emergency caesarean operation. [Ann] maintains that the [Simon] brought heroin to her in hospital, for her birthday, but he denies this.
21	[Ann] and the child stayed with friends, [Ann]’s sister and the applicants for a time. In November 2001, [Ann] commenced a relationship with [Donald] and they soon commenced cohabitation. From November 2001 to January 2002, [Simon] generally had overnight contact with [Chelsea] on Sundays.
22	[Simon] and [Donald] had a poor relationship, and by January 2002, [Ann] denied [Simon] contact with the child because of his threatening behaviour. [Simon] attended the applicants’ home and the police were called.

23 In late March 2002, [Ann] commenced living with [Donald].

24 Proceedings were commenced in this court by [Ann] in April 2002, she says as a result of the father’s continual abusive behaviour at handovers. On 10 May 2002, interim orders were made for the child to live with [Ann], with [Simon] to have contact for one day for the next two weekends.

25 On 29 May 2002, it was ordered that the father have contact with the child each week from 10:00 am Sunday until 2:00 pm on Monday

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afternoon. For the purposes of contact, handover was to take place at
the first applicants’ home.

26 On 18 July 2002, it was ordered, by consent, that the father have

contact:

• from 10:00 am Sunday until 5:00 pm Monday each week;

• by telephone each Thursday at 6:00 pm;

• as otherwise agreed between the parties;

• handover was to take place at [Ann]’s home at the commencement of contact and at [Mary]’s home at the conclusion of contact;

• both parties were restrained by injunction from denigrating the other party or members of the respective family to, or in the presence of the child or at all;

• until further order, the parties were to keep a communication book;

• both parties were to attend a “Mums & Dads Forever” programme.

27 Some fairly minor alterations to the contact arrangements were made by an order on 3 October 2002. The father’s contact was extended slightly to extend to Tuesdays at 5:00 pm during October, then the contact on the first Sunday of each month commencing December 2002, was to extend to conclude at 5:00 pm Tuesday. The father was to have contact with the child from 3:00 pm Christmas Day 2002 until 5:00 pm Boxing Day 2002.

28 In December 2003, [Ann] and the child went to stay with her sister [Natalie], and in March 2004, they moved to stay at the applicants’ home.

29 On the father’s application, the proceedings were relisted for a further conference on 23 November 2004, at which time the proceedings were included in the defended list and it was foreshadowed that the applicants would be applying to intervene.

30 In November 2004, [Ann] was charged with stealing and placed under Drug Court supervision. She was sentenced to a nine month intensive supervision order. [Ann] had a number of commitments as a

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result of this sentence and her mother then cared for the child. In
early 2005, she was charged with further stealing charges.

31 On 17 February 2005, the applicants applied for an interim violence restraining order against [Simon] and this was granted.

32 On 24 February 2005, the applicants filed an application seeking that [Chelsea] reside with them, with [Ann] to have reasonable contact and [Simon] to have defined contact.

33 On 1 April 2005, after a case assessment conference, it was ordered that the applicants have leave to intervene, and an independent children’s lawyer be appointed. By that time, the father was still seeing the child pursuant to the orders made in 2002. However, Legal Aid criteria for appointment of a lawyer had not then been met

34 In June 2005, [Ann] reported that [Chelsea] had made some sexualised comments to her. Her evidence was [Chelsea] had said “Mummy when I get older, Daddy wanted to be my boyfriend as he wants to lick my bum”. [Chelsea] had also asked what “naked” meant. She had also said “Mum can I tell you a secret. I play sex games”.

35 On 10 June 2005, [Chelsea] was to attend a birthday party and was in the father’s care and was to be returned on 13 June at 5:00 pm. [Simon] refused to return the child until 15 June 2005, as he maintained he was owed some time, and he did not have transport to return her anyway. The applicants were very concerned about the situation as they maintained that [Chelsea] was dirty and suffering from a major rash, [Mary] believes through a lack of hygiene.

36 The position then significantly deteriorated, as from 26 June 2005 until 9 October 2005, the father was not able to spend time with the child as [Chelsea] refused to go with him. There were some distressing incidents, as the father continued to attend the grandparents’ home trying to get to see [Chelsea].

37 [Ann] raised [Chelsea]’s disclosures with the Department for Community Development and attended the Child Abuse Unit at Princess Margaret Hospital and spoke to a social worker who had advised filing a notice of risk of child abuse.

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38	On 22 July 2005, it was ordered, by consent, that [Ms C], a clinical psychologist, be appointed single expert.
39	From about 5 August 2005, the mother was away from her parents’ home and was held against her will for about two weeks by an alleged drug dealer. She escaped and was initially placed in protective police custody and then in [a treatment centre] on 3 August 2005. She also had other criminal cases pending at the time. She remained in the programme until 10 December 2005.
40	The mother would spend time with [Chelsea] at times during the week and weekends when she was permitted to leave the [treatment centre].
41	On 29 August 2005, the applicants filed an application seeking that the father’s contact be suspended and supervised. A further request was made for the appointment of an independent children’s lawyer, which was granted.
42	On 1 September 2005, the applicants’ violence restraining order against [Simon] was confirmed. The second respondent failed to attend the hearing, he said through an error, so the application was not opposed.
43	[Chelsea] attended an interview with [Ms C] and her father on 3 October 2005, and Ms [Ms C] recommended, in her first report dated 10 October 2005, at p 16:

“The child has lived with her MGPs since early 2004, she has regular contact with her mother in this context and appears to be settled in the context of a fairly normalised, stable life situation with her grandparents. However, her relationship with father is a positive one and contact with him is essential for her future well-being; the availability of her mother has been inconsistent, her other parent is an available parent who must not be distantiated from her.

A more shared parenting arrangement (not necessarily half time) is recommended where the child can spent 2/3 days each week

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with father, who must be informed as to her school, health and any other issues. A communication book – only for important child information (no personal comments) can be used between MGPs and father until they are able to communicate about the needs of the child in a civil manner. The child's kindy participation (where she has social contacts, support and developmental stimulation) should not be disturbed neither should shared residence disturb father's work arrangements which maintains father's stability.

be intrusive. In order to facilitate shared parenting and handovers the MGPs and father should have a few mediated sessions to facilitate civil communication between them. To-date, father understandably felt that the child should be with him and has inappropriately expressed his frustration and anger; MGPs have been reactive to this. It is important for the child to see at least a civil front and to easily move from one environment to the other. It is important for father to ensure that he brings the child back at the appointed time in order for the child not to feel fearful that she may not have contact with her mother, an important person in her life. Contact with mother must be supervised at this stage by MGPs as has been the case to-date, given the early stages of mother's rehabilitation. At a later stage when mother is more available to the child it would be important also for mother and father to have a few mediated sessions in order to be able to communicate at least at a civil level for the needs of the child. Mother indicated that in communication with father he spoke about her rather than about the child. A review of mother's contact with the child will be necessary when her rehabilitation is hopefully successful and complete.	Telephone contact by MGPs/father should be defined so as not to (after a relatively long period of no contact; there were regular telephone calls – including the child telephoning father) must be gradual until the child feels secure again as she did in the past. Father will have to be patient and start with day contact before proceeding to night contact. However if the renewed contact that father informed me of subsequent to the consultations has
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necessary. All parties will have to be more cautious in what they express to the child e.g. the child being kidnapped/stolen by father; mother will go to jail. The child must be immune from any negative expressions by one party of the other; I observed father speaking positively of mother to the child. I hope that this will continue in all situations.
proceeded well then the gradual renewal of contact is not reasons: She may be concerned about not seeing mother who was erratically available to her and who is now living away; she does not have the stability of knowing when mother will return to her; she is aware of her grandparents negativity towards father and is loyal to them as she has been in the constant care of her MGPs (who have supported her from their own resources) from early 2004; father's behaviour, getting angry at her/her MGPs, not bringing her home timeously may be fearful and upsetting to her as have his verbalisations e.g. about which pre-school she will attend when she lives with him, her mother going to jail, she's a scaredy cat and the like. If her reluctance to have contact with father persists therapeutic intervention will be required.”

44 [Ms C] recommended that both parents undergo a parenting course, the mother once she has completed her rehabilitation programme.

45 In conclusion, [Ms C] said:
“All parties are concerned for the needs of the child and love her;
it is important that they put their own feelings about one another
aside to care for the child who is in an unstable, complication,
confusing situation.”

46 Since meeting with her father with [Ms C] on 9 October 2005, [Chelsea] was happy to attend contact and there have been no serious problems in getting her to go to see her father since that time.

47 On 17 October 2005, [Simon] attended the applicants’ home, yelling [Chelsea]’s name and ringing the bell for approximately one hour. The police attended and the father was charged with breach of the violence restraining order.

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48	Since 22 October 2005, the father has spent time with the child in accordance with the court orders.

On 6 December 2005, it was ordered, by consent, and until further order, that:

“1.	Save as provided for in paragraph 2, the parties shall only communicate with each other in relation to contact arrangements and any other matters relevant to the welfare of the child, born 27 October 2000 via a communications book to be handed over at the same time as contact handovers.
2.	The parties shall telephone the other party in the event of a medical emergency involving the child or a disruption or delay in contact handover.
3.	The parties be restrained by injunction to not discuss these proceedings with the child and her or their preference in relation to residence/contact arrangements.
4.	The parties ensure that the child is bathed each day while in their care.
5.	The parties agree to return any items such as the child's clothing and toys sent to the other home when the child is in the care of the other party.
6.	[Mary], [Ann] and [Simon] attend Mums and Dads Forever.

49 There was also, by consent, a declaration that the father may exercise contact and the family violence order not prevent the exercise of contact or the parties taking part in an alternative dispute resolution conference provided by Legal Aid and counselling.

50 [Ann] was asked to leave [a treatment centre] on 19 December 2005, as she had drunk alcohol, but was readmitted at about Christmas

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51	The parties attended an ADR conference at Legal Aid. On 23 December 2005, the following substantive orders were made, by consent:

“1.

All previous child welfare orders be discharged.

2.

Until further Order the applicants have the residence of the child and long term and day to day responsibility for her care, welfare and development.

3.

Until further Order the mother have reasonable contact to the said child.

4.

Until further Order the father have reasonable contact to the said child to include:

(a) from 3.00 pm Christmas Day, 25 December 2005 until 12.00 noon Thursday, 28 December 2005;

and thereafter:

(b)	each alternate weekend commencing 6 January 2006 from 5.00 pm Friday until 10.00 am Sunday; and
(c)	on each other alternate weekend commencing Friday, 13 January 2006 from 5.00 pm until 5.00 pm Saturday provided that the father’s contact on Friday, 20 January 2006 be suspended for the purpose of the applicants’ holiday;
(d)	reasonable telephone contact and for that purpose, the applicants do permit the child [Chelsea] to telephone the father and the father be permitted to telephone the applicants to speak to [Chelsea] each Thursday at 6.00 pm.”

52 On 6 January 2006, there was a further incident between [Mary] and [Simon] as there was a dispute about the contact times. The incident resulted in [Simon] being charged with a breach of the violence restraining order.

53 [Ann] was sentenced in relation to a number of stealing and fraud charges in around February 2006, receiving a 15 month suspended sentence and a community based order. She was also fined. [Ann] used amphetamines and had to leave [the treatment centre]. She then stayed with her sister for a time and continued to visit [Chelsea] as

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before, as the child understands the programme to be her mother attending “school” and this would not disrupt the routine. [Ann] was readmitted to [the treatment centre] on 23 March 2006.

54 The parties attended a pre-trial conference on 6 April 2006. Until that time, all parties were legally represented, but [Ann] did not have Legal Aid for a trial. The order made on 1 April 2005, for the appointment of an independent children’s lawyer was renewed.

55 On 6 April 2006, orders were made in relation to [Ann]’s contact with the child as by then [Ann] was undergoing a drug rehabilitation programme at [a treatment centre]. The contact was to be on Saturdays and Sunday in the presence of the first and second applicants, and there was to be unlimited telephone contact.

56 [Ms C] was asked to update her report and a supplementary report was prepared, dated 24 May 2006. Her conclusions and recommendation at that time were:

“Conclusions & Recommendations:

-	[Chelsea] experienced very unstable conditions when in the care of her parents. Her MGPs acted as her supports and took her into their care after the couple separated. She has had reasonable stability since then. It would be inappropriate to interfere with this stability yet again. She is settled at a school and in a routine.
-	However her father has made gains in his ability to care for [Chelsea] and she has a positive connection with him.
-	She also has a positive connection to her mother who is in rehab and not in a position to care for the child. The MGPs ensure [Chelsea]'s regular contact with her mother.
-	A more shared parenting arrangement between the MGPS and father is necessary taking into account distance and school restraints. [Chelsea] could spend every weekend with father from Friday pm to Sunday am. Father requests a time later than 10am return on Sunday - an hour later should be considered. If mother is to sleep over on the Saturday night, the child could be returned to her MGPs Saturday pm no more often than every second weekend as is now the case. Father must he informed of health issues and parental activities at school. He should be able to
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contact the school so that appropriate letters can be sent to him and so that he can attend functions/events as parents do when their work commitments allow this. Father could have extended contact on long weekends (ensuring that mother has contact on the last day of the long weekend to obviate travel in the middle of the long weekend) and part school holidays. Some arrangement should be made for the child to spend special occasions (such as Christmas, Easter, birthdays, mother's/father's day) with the parties if the event does not fall on contact times. Not only will this reduce the frustration but more importantly it will offer the child the opportunity to enjoy these events with both her mother and father and their extended families. Defined telephone contact should continue.
-	However father's behaviour will have to be restrained even if he is frustrated. The child must not witness any animosity or even disagreement between her caregivers, her MGPs and father, father and mother. Father's behaviour when frustrated has further alienated him from the MGPs. It is important for the well being of the child that a more civil relationship be established between the significant adults in her life; perhaps the Court Counselling Service can facilitate this between the parties. Hopefully the communication book can be restored and used appropriately – that is only concerning important issues about the child; not about any personal needs or feelings.
-	Father must not share his frustrations/needs with the child. He should attend a parenting course to assist with understanding the developmental needs of a child.
-	The MGPs will need to show some goodwill towards father in spite of the past as he is an important person to [Chelsea] who needs some support for her loyalty to her father.

I hope that the parties, all of whom love the child and want the best for her, will find a way to compromise their differences at least for the wellbeing of the child.”

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57 On 10 July 2006,

[Simon] pleaded guilty to three breaches of the violence restraining order. He was given a six month good behaviour bond and fined $500.

58 The proceedings were initially listed for trial on 25 September 2006, but this date was vacated by me after a hearing on 7 September 2006.

59 Fortunately, and since about July 2006, the situation has settled down to a considerable degree – while there has been little communication between the parties, conflict has been avoided by the applicants having no direct contact with [Simon] at handover. He stays at the end of the driveway, and the child leaves the house on her own.

60 Therefore, at trial, the child had lived with the applicants since early 2004, and have regular contact with her father for one day in one week, and 1½ days in the alternate week.

The parties and their proposals

61 The applicant grandmother was referred to by [Ms C] as

presenting:

“as of adequate intellect, verbalisation, reality contact, affect and grooming. While cooperative she attempted to present the facts positively rather than in a more balanced fashion …

In short MGF appears to have a fairly resilient personality coping with difficulties. She shows no significant functional difficulties. She is committed and supportive of her children and grandchildren but may feel a sense of proprietorship of the child in her need to protect the child to the exclusion of father (not mother, her daughter).”

62 The single expert referred to the applicant step-grandfather as presenting of adequate intelligence, verbalisation, reality contact, affect and grooming. He was cooperative and non defensive. In summary, she said:

“In spite of family of origin dysfunction, [John] SMGF has shown emotional resilience (but for recent anxiety which appears to be under control) has been gainfully employed, has limited substance abuse problems (although he uses marijuana regularly

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and in his youth had drink driving offences) and is healthy. He has been supportive of mother although he finds this difficult and stressful.”

63 The applicants’ proposals for the child are for her to continue to reside with them in their home in [the suburbs], which is a three bedroom property. [Chelsea] shares a room with her mother, [Ann], when she is present. The child is supervised by [Mary], apart from when she is at school. [John] works on a roster of five days on and four days off and while working, sees little of the family since he works for 12 hours a day.

64 [Chelsea] commenced pre-primary school in 2006, and appears to have progressed very well. She commenced school at [the local] Primary School in February 2007, and the undisputed evidence is that she loves going to school and is progressing very satisfactorily.

65 [Ann]’s proposals for the care of the child is that she continue to live with the applicants, and that [Ann] see her as much as practicable on weekends. [Ann], very shortly before the trial, had a relapse and left [the treatment centre] approximately two weeks before the trial. She has been staying with a girlfriend whom she met in the [the treatment centre]. On the weekend before the trial, she took drugs and ended up being charged with stealing a motor vehicle. She accepts that there is still a long way to go in her rehabilitation, although she has made considerable progress and she has proposed no particular time limit on the time that [Chelsea] would stay with her parents. Despite her problems, she presented appropriately at trial, to the extent that it was hard to believe that she had had such longstanding and serious problems manifesting again only two days prior to the trial.

66 The father presented as soft spoken and loquacious. The single expert referred to him as:

“child focused, has family support, is healthy, has stable accommodation and is now gainfully employed. However, in the past he has had some difficulty with drugs, has had relatively long periods of unemployment, has been involved in anti-social activities and was incarcerated, relationship difficulties reveal some immaturity and neediness in his difficulty to separate. His frustration reactions to feeling thwarted in his parenting of the child are recognised as being inappropriately witnessed by the child – there is effort to contain this.”

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67 The father lives in

a home [the suburb], which is owned by his parents and he says that his parents have informed him they have left it to him in their will. He does not pay rent, but is responsible for utilities. It comprises four bedrooms with all modern amenities, apart from when [Chelsea] is there, the father lives on his own. The father has recently commenced in a new job and in the event that he was working at a time that [Chelsea] was not at school and need care, he would propose that his mother, Mrs [R], aged 72 years, care for [Chelsea]. Mrs [R] has a driving licence and is in good health. She is an excellent cook, and everyone agreed that [Chelsea] enjoys helping her in the kitchen.

68 [Simon] proposed that [Chelsea] attend [a particular catholic school]. He has been paying into a small scholarship fund for her since she was born.

Relevant factors

69 The relevant statutory provisions are set out in full.

70 Section 66 of the Family Court Act 1997 provides:

(1)

The objects of this Part are to ensure that the best
interests of children are met by -

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

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(2)	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests) -
(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

71 Section 66A provides, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

72 Pursuant to Section 70A:

(1)	When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in –
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
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(b) family violence. …
(4)	The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

73 Clearly the presumption does not apply in the family’s present circumstances. The independent children’s lawyer initially proposed that all parties should have equal shared parental responsibility, but by the conclusion of the trial considered I may have concerns about this and proposed the applicants have sole responsibility for major issues.

74 Section 66C provides that in determining what it in the children’s best interests, the court must consider the matters set out in subsections (2) and (3).

75 The primary considerations are:

(a)	the benefits to the child of having a meaningful relationship with both of the child’s parents; and
(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Primary considerations

76 Although [Ann] has not cared for [Chelsea] on her own for some time, she has maintained regular contact with her, and it was not disputed that [Chelsea] has a meaningful relationship with her mother which should be maintained. However, it was accepted that it was in [Chelsea]’s benefit for her involvement with the child to be supervised by the applicants for the time being.

77 [Chelsea] clearly has a meaningful relationship with her father and it is to her benefit for this to be maintained.

78 [Chelsea] has obviously been at risk of neglect while living with her mother. Although there was evidence the child had made some disclosures of a sexual nature, this issue was not really pursued as it is now accepted that [Chelsea] is not at risk of abuse from any of the parties. As was pointed out by the independent children’s lawyer, at the time the allegations were made, [Ann] was using drugs and [Simon] had just filed an application that the child live with him.

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79	There is now no real concern of there being a risk to the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence. However, she has been exposed to conflict between the applicants and her father and probably, at times, her mother, which is clearly not in her interests.

Additional considerations

80 As to any views expressed by [Chelsea] and any factors such as the child’s level of maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views, none of the parties suggested that the child’s views should bear much weight. The father said that the child expresses a view to live with him. The applicants’ case is that for a significant period, [Chelsea] refused to see her father at all.

81 [Ms C] said that [Chelsea], when most recently interviewed on 20 and 22 May 2006, referred to being somewhat distressed with [Mary], who is “mean” to her father:

“She wishes she could live with her mother and her father, but since her mother is “at school” (she is not aware of her mother being in rehabilitation for substance abuse; the parties appropriately have not yet explained the situation to her; they are aware that they will have to do so when [Chelsea] is older) she wishes she could live with her father.”

82 [Ann]’s evidence was that the child later told her she had lied to [Ms C], saying that she wanted to live with her father and that she does not want to live with nanna and granddad.

83 As to the nature of the child’s relationship with each of her parents, grandparents or other relatives, I accept that [Chelsea] has a close and loving relationship with all the parties. Ms [Ms C] observed that the child was observed to be comfortable with her father who related to her positively, he was able to engage in age-appropriate activities, reinforce the successes and instruct her appropriately.

“Her interaction with father was observed to positive; the child was chatty, excited to see her father, was very affectionate towards him, initiating affection at times and there was a mutuality of positive interaction. The child was certainly happy and comfortable with father. At the end of the sessions she

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wanted to know when she would see him again but would not
commit to his request that she visit him.”

84 Similarly, her interaction with her maternal grandparents was noted to be positive – affectionate, responsive, comfortable, spontaneous. She “feels some affinity towards her maternal extended family, with some ambivalence towards her younger cousin. She notes that her Nanna shouts quite a lot while her grandfather and parents do not get quite as angry. She feels comfortable with her paternal grandparents because they are getting old”.

85 She has a close relationship with her mother and is bonded to her, although she has not lived with her for some time.

86 As to the willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent, all the parties have found it quite difficult to foster the child’s relationship with the other parties.

87 The applicants have felt threatened and harassed by [Simon], who, in particular, became very frustrated over a period of four months or so in 2005, when he was not seeing [Chelsea]. The mother’s position is that [Simon] was much more involved in use of illicit drugs than he maintains. She believes that [Simon] still wishes to promote his relationship with her and does this through [Chelsea].

88 [Simon] says he feels very aggrieved that he has had to fight to maintain and promote his relationship with [Chelsea] and can clearly see no reason why she should not have been living with him for quite some time, since he is the natural father, and the mother is, and has not been, a suitable caregiver.

89 Despite the history of conflict between the parties, I accept that they all now, if not very willing, and finding it difficult to do so, are prepared to encourage a close and continuing relationship between [Chelsea] and the other parties. [Ms C]’s assessment and comments have obviously assisted them in coming to terms with this, but I suspect that they all have now realised that they are going to have to maintain workable relationships with each other as they are all going to remain substantially involved in [Chelsea]’s life.

90 As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other person with whom

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he or she has been living, [Chelsea] has now been living with the applicants for nearly three years, and is used to having weekly contact with her father and his family. The evidence is that she is quite secure and happy in the present environment and progressing very satisfactorily.

91 The applicants’ position is that it would be seriously destabilising for [Chelsea] to move from their home and, in fact, it would threaten her psychological and physical health and expose her to the likelihood of harm. The father’s position was that [Chelsea] would be better off living with him “as she will not be under pressure to express views or take sides in any dispute and the child has felt isolated in her loyalty to her father”.

92 I accept that despite her mother’s recent problems, the child is living in a stable environment, and that any change in her living arrangements should not be made lightly, particularly having regard to the very unsettled and unsatisfactory circumstances of her early years living with serious drug users.

93 As to the practical difficulty and expense of the child spending time with and communicating with a parent, there are problems in the communication between the parties, although a communications book has been attempted. Both the applicants and the second respondent realise that communication between them is difficult because of problems in the past, and the independent children’s lawyer has proposed that they attend some counselling to help improve their relationship. Communication has been made more difficult by the fact that the father is subject to a violence restraining order, and the father has been convicted of three counts of breaching the restraining order. I agree that some counselling, at least, should be attempted in [Chelsea]’s interest once these proceedings are over.

94 Another practical difficulty in the past has been that the father has lost his driver’s licence for lengthy periods and has had to rely on the assistance of others to transport the child. This is to his discredit as a responsible parent would not let himself get into this situation. Until now, he has been responsible for all the transport of the child. The applicants live approximately 45 minutes’ drive from the second respondent. In closing, their counsel advised that they were prepared to assist with the transport. The difficulty is that [John] will not be available to help transport [Chelsea] because of his work

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commitments, and [Mary] finds it difficult to drive outside her local
area. [Ann] does not presently have a driver’s licence either.

95 As to the capacity of each of the child’s parents and any other person (including a grandparent or other relative of the child) to provide for [Chelsea]’s needs, including her emotional and intellectual needs, it was not in dispute that [Ann], until her rehabilitation is complete, does not have the capacity to provide for [Chelsea]’s day to day needs, although she has an affectionate relationship with her. It is not in dispute that the applicants can well provide for all the child’s needs, including her emotional and intellectual needs, and have done so in difficult circumstances for nearly three years.

96 I accept that the father has the capacity to provide for [Chelsea]’s needs to a considerable extent, but he has no track record of [Chelsea] staying with him for lengthy periods. Some criticisms have been made of his physical care of the child, for example, that she has been returned dirty and with a rash.

97 As to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions), of [Chelsea], the applicants and [Ann] are of British background and the father, although born in England, is of [European] parentage. The father’s position was that the applicants are not respectful of his heritage and have not taken sufficient steps to promote this. It seems he was not informed there was an [European] week at the child’s school last year in which he could have assisted. It is clear that the grandmothers have considerable respect for each other, and that even if the father has not been particularly proactive in promoting the child’s heritage, the paternal grandparents can be relied on in this regard.

98 [Chelsea] has no significant health problems, although she is a little overweight and apparently suffers from asthma. All the parties seem to be understanding of her need for exercise.

99 It was very clear during the course of the proceedings that all the parties loved [Chelsea] dearly and wished to do their best for her, despite all the difficulties so far and, in many respects, the horrendous circumstances and events which have occurred. In this regard, [Chelsea] is very fortunate, and I have some optimism for the future.

100 As to the attitude to the child, and to the responsibilities of parenthood demonstrated by each of her parents:

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“66C(4) - Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents -

(a)

has taken, or failed to take, the opportunity -

(i)	to participate in making decisions about major long-term issues in relation to the child; and
(ii)	to spend time with the child; and
(iii)	to communicate with the child; and

(b)

has facilitated, or failed to facilitate, the other parent -

(i)	participating in making decisions about major long-term issues in relation to the child; and
(ii)	spending time with the child; and
(iii)	communicating with the child; and

(3)

has fulfilled, or failed to fulfil, the parent’s
obligation to maintain the child.

101 The mother has clearly failed in her application to the responsibilities of parenthood in that as a result of her own actions, she has been unable to provide proper care for [Chelsea].

102 The father was criticised for some of his actions, in particular he has provided very limited financial support for the child. For the applicants it was submitted that he has not been entirely frank with the Australian Taxation Office and the Child Support Agency and that he has earned some undeclared income. The father has had a very varied and chequered employment history and he has paid very limited amounts of child support, only a total of $6,000 over the years. I doubt he fully appreciates the financial commitment that the applicants have made in fully supporting [Chelsea].

103 Both the applicants and the father made some criticisms of the other’s care of the child, mainly that there had been incidents where the child has suffered injury while with each of them. There was an incident where the child suffered a nasty cut on her forehead while

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with the father, and there was an occasion where she was sunburnt while with the applicants. I have no real concern about the levels of physical care provided by any of the parties for the child.

104 The issue of greatest concern by far has been by the fact that the parties have not yet been able to bury the hatchet and work together in [Chelsea]’s interests, and this has led to [Chelsea] being torn between the people she loves most. All the parties need to bear some responsibility for this.

105 As to family violence involving the child, or a member of the child’s family, there was some family violence between the mother and father in the relationship before separation. I do not consider there is now a risk of family violence. However, there are family violence orders in force against the father made on 18 February 2005. These were confirmed in September 2005, so the order will expire in September 2007. Although the father said that he wished to oppose the making of the order, he did not actually attend to contest it.

106 While it would obviously be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child, it may well be that further proceedings are required unless the parties can reach agreement over the future care of the child.

107 Any other relevant fact or circumstances will be referred to in my

conclusion.

Conclusion

108 The principal issue to be determined is, having regard to all the considerations to which I have referred, with [Chelsea]’s best interests being the paramount consideration, whether [Chelsea] should continue to live with her maternal grandparents, spending time with her father on weekends, holidays and special occasions, or whether she should live with her father, and spend time with the applicant grandparents at weekends.

109 While with the applicants, the child will have some contact with her mother, for the time being, only on weekends.

110 While at the commencement of the trial, the independent children’s lawyer had proposed that all parties have equal shared parental responsibility for the [Chelsea], by the conclusion of the

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hearing, he expressed some concerns about this being practicable,
having regard to the very poor relationship between the parties.

111 I am satisfied that it is in [Chelsea]’s best interests to continue to live with the applicant grandparents, who have provided her with stability and security, after her early life was one of turmoil, conflict, and exposure to illicit drug use. The evidence is clear that, despite the ongoing conflict between all the people most important to her (apart from her paternal grandparents), that [Chelsea] is happy, healthy and progressing very well at school, and in every aspect of her life. If the child was living with the father, she would have to change schools, which I do not accept is in her interests at this time.

112 I am satisfied that since the person with whom she has the closest emotional bond, her mother, by her own actions is not able to care for her, nor even properly look after her own needs, it is even more important that [Chelsea] have stability. It is also clear that, for the time being, [Ann] must have only supervised contact with the child.

113 I am satisfied that [Simon] is a caring and committed father who loves [Chelsea] very much, and is capable of looking after her during visits that she spends with him. While he may be able to care for her day to day needs, I have much more confidence in the quality of care being provided by the applicants. I also have some concerns about his ability to properly care for all the child’s physical needs, and school activities, and there are also the practical issues of his obligations to his employment. There is also the fact that [Simon] has behaved inappropriately at times, particularly when he has become frustrated by what he sees as the interference by the applicants with his right to see [Chelsea]. While his attitude is, to some extent, understandable, it has unfortunately contributed to the poor relationship between the parties, and has led to the making of a VRO and convictions for breaches of it. Hopefully, the situation will improve in the future, as it had by the time of the trial, and the situation will settle down.

114 Unfortunately, all the parties have an involvement with illicit drugs, and frankly, [Mary] and [Simon] are in a similar position in their use of marijuana. [John] admits to more frequent use, and [Ann] is an admitted drug addict. I do not have concerns that any party will expose [Chelsea] to illicit drug usage at this time, but I would hope it is entirely obvious that it is unacceptable to consume even marijuana when one has the care of a young child.

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115	Despite the events of 2005, while I accept that the applicants had difficulty in promoting [Simon]’s relationship with [Chelsea], I am satisfied that they will now do so, and that the child’s relationship with her mother is more likely to be promoted in their care. It is difficult to understand why the events of that time occurred, given that the position returned to normal quickly after Ms [Ms C]’s intervention.
116	I have considerable confidence that the applicants will now promote the child’s relationship with [Simon].
117	While I accept that the parties should move to having equal shared parental responsibility, frankly, I am satisfied that it is premature for [Ann] to have this right, because of her problems. I am also concerned that, having regard to the past history of lack of communication and dispute about some parenting issues, it is not presently workable for the applicants and [Simon] to have equal shared parental responsibility. I am particularly concerned about medical issues, and any possible argument about attendance at a Catholic school. I am optimistic that, over time, the position may improve, and with a track record of, at least, lack of conflict, if not reasonable cooperation, that the parties should move to equal shared parental responsibility in, say, two years.
118	As to the time to be spent by the [Simon] with [Chelsea], the problem in this regard is that it is important for both [Ann] and [Simon] to see [Chelsea], and practically speaking, this can take place only on weekends. The father would like to have more time with [Chelsea] on Sundays to involve her in family activities, and the applicants accept that the child should now be with him from Friday and through to Sunday. I am satisfied that the present arrangement should largely continue, with some extension of the father’s time with [Chelsea].
119	The independent children’s lawyer proposed, as an alternative, a two weekly cycle from the conclusion of school on Thursday to commencement of school on Monday on an alternate weekend basis, but I do not accept that this is presently a practical situation, having regard to the physical distance between the parties, and the father’s work commitments.
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120	As to the transport arrangements, the applicants have agreed that they will share in the transport obligations in the future. I am prepared to hear further submissions as to the present situation in this regard, but I propose that [Simon], or his mother, or someone responsible known to the child, collect the child from school on Fridays, and that the applicants be responsible for collection of the child from the father’s home at the conclusion of the time spent with him.
121	There was no real dispute between the parties as to time to be spent by all of them with the child on special occasions and holidays.
122	For [Simon], it was submitted that an order should be made under s 174 of the Family Court Act 1997, to facilitate the communication between the applicants and the respondent. I am prepared to make such an order.
123	It is important that the applicants and [Simon] improve their relationship with each other and learn to cooperate and communicate with each other in relation to the parenting of [Chelsea]. I propose to order that all the parties attend a family consultant at the Family Court, on a reportable basis, to discuss suitable counselling assistance which could be obtained, and appropriate ways by which the situation may be improved.

Proposed orders

1 Until further order, the Applicants, [John] John Paterson and [Mary] Marie Paterson (“the Applicants”) have parental responsibility of the child, [CHELSEA] [R], born [date] October 2000.

2. The child live with the Applicants.

3. The child spend time with the First Respondent, such time to be supervised by the Applicants.

4. The Second Respondent spend time with the child as follows: on a two weekly basis -

(a)	on the first weekend, from 5:00 pm Friday or from after school, if practicable, to 12:00 noon Sunday;
(b)	on the second weekend, from 5:00 pm Friday or from after school, if practicable, to 5.00 pm Saturday;

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(c)	one half of each term school holidays;
(d)	each alternate seven days with the father during the Christmas school holidays;
(e)	on Father's Day, even if not a day Sunday would be spent with the father, to 5.00 pm Sunday;

5. On Mother’s Day weekend, in the event it falls on a Sunday, the child return to the Applicants at 5:00 pm Saturday;

6. The father have liberal telephone contact with the child.

7. The Applicants, the Second Respondents and the First Respondent, if practicable, attend on a family consultant at the Family Court, to discuss ways in which their relationship may be improved, including by ongoing counselling.

8. The Second Respondent be responsible for collecting, or arranging the collection of [Chelsea] on Fridays, and at the commencement of other times to be spent with him, and the Applicants be responsible for collecting, or arranging the collection of the child from the Second Respondent’s home at the conclusion of the time to be spent with him.

9. Subject to further order, pursuant to Section 174 of the Family Court Act 1997, to the extent to which this order is inconsistent with a violence restraining order, this order is to permit the Applicants and the Second Respondent to communicate with each other through counselling, a communications book and by telephone in relation to discussing the parenting of [Chelsea].

10. The Applicants ensure:

(i)	the Second Respondent receives notification of any school activities in which parents are to be involved, and receive copies of any school newsletters, reports or certificates;
(ii)	the Second Respondent is notified of any medical treatment received by the child and is given authority to liaise with any health professionals involved in treating the child.

11. There be liberty to apply for further definition of the parenting orders.

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12.	The applications otherwise be dismissed.

I certify that the preceding [123] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court