Paton and WILLIAMS and Ors

[2010] FamCA 855

FAMILY COURT OF AUSTRALIA

PATON & WILLIAMS AND ORS [2010] FamCA 855

FAMILY LAW – CHILDREN – Parental responsibility – With whom child shall live and spend time – Parties in dispute include the father, mother, maternal grandmother and paternal grandparents – Failure of father to participate at trial – Allegations that child is at risk of psychological harm and exposure to family violence in the care of father – Finding that child not at risk of psychological harm or exposure to family violence in the care of the paternal grandparents – Equal shared parental responsibility allocated to the paternal grandparents – Child to live with the paternal grandparents and to spend time with the mother and/or maternal grandmother one weekend per month and during school holiday periods – Father to spend time with the child on a supervised basis by agreement with the paternal grandparents

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 229
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 42 Fam LR 531
Potts & Bims & Ors [2007] FamCA 394

APPLICANT: Mr Paton

1st RESPONDENT: Ms Williams

2nd RESPONDENT: Ms Bennie

3rd RESPONDENT: Mr Paton Snr

4th RESPONDENT: Mrs Paton Snr

INDEPENDENT CHILDREN’S LAWYER: Ms McKinnon,
Slater & Gordon Solicitors

FILE NUMBER: NCC 2640 of 2008

DATE DELIVERED: 27 September 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 7, 8, and 10 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Mr Davies

SOLICITOR FOR THE 2ND RESPONDENT: The Charlestown Law Firm

COUNSEL FOR THE 3RD RESPONDENT: Mr Graham

SOLICITOR FOR THE 3RD RESPONDENT: Mullane & Lindsay

COUNSEL FOR THE 4TH RESPONDENT: Mr Graham

SOLICITOR FOR THE 4TH RESPONDENT: Mullane & Lindsay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McKinnon,
Slater & Gordon Solicitors

Orders

1. All former parenting orders relating to the child J, born on … February 2004, (“the child”) are discharged.

2. The third and fourth respondents shall have equal shared parental responsibility for the child.

3. The child shall live with the third and fourth respondents.

4. Each of the parties shall take all reasonable steps to ensure that the child spends time with the first and/or second respondents as follows, or as otherwise agreed:

   4.1From 5.30 pm Friday until 5.30 pm Sunday on the third and seventh weekends of each New South Wales public school term.

   4.2From 5.30 pm Friday until 5.30 pm Sunday on the weekend that Mother’s Day falls.

   4.3During New South Wales public school holidays at the end of the first and third school terms, for the second half of such holidays in every even numbered year, and for the first half of such holidays in every odd numbered year.

   4.4For the whole of the New South Wales public school holidays at the end of the second school term.

   4.5During the New South Wales Christmas public school holidays, for the second half of such holidays when they commence in an even numbered year, and for the first half of such holidays when they commence in an odd numbered year.

5. For the purposes of implementation of Order 4, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day between those first and last days.

6. For the purposes of implementing the time spent by the child with the first and/or second respondents:

   6.1The third and/or fourth respondents shall cause the delivery and the first and/or second respondents shall cause the collection of the child at the commencement of the time to be spent with the first and/or second respondents at the Caltex Service Station at B, NSW, and

   6.2The first and/or second respondents shall cause the delivery and the third and/or fourth respondents shall cause the collection of the child at the conclusion of the time spent with the first and/or second respondents at the same place.

7. The time spent by the child with the applicant shall:

   7.1Be determined by agreement between the applicant and third and fourth respondents,

   7.2Not conflict with the time spent by the child with the first and/or second respondents pursuant to Order 4 hereof, and

   7.3Be supervised by the third and/or fourth respondents.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   8.1The first and/or second respondents each Thursday when the child is living with the third and fourth respondents, at 7.45 pm, and for that purpose the first and/or second respondent shall telephone the child on the telephone number provided to them by the third and fourth respondents, and the third and fourth respondents shall ensure that the child is able to receive the first and/or second respondent’s call on that number at that time.

   8.2The third and/or fourth respondents each Thursday when the child is spending time with the first and/or second respondents, at 7.45 pm, and for that purpose the third and/or fourth respondent shall telephone the child on the telephone number provided to them by the first and second respondents, and the first and second respondents shall ensure that the child is able to receive the third and/or fourth respondent’s call on that number at that time.

   8.3The applicant when the child is living with the third and fourth respondents, at times agreed between the applicant and third and fourth respondents.

   8.4The parties with whom the child is not then living or spending time, on the child’s birthdays, between 7.45 pm and 8.15 pm, and for that purpose the parties with whom the child is not living or spending time shall telephone the child on the telephone number provided by the other parties for that purpose, and the parties with whom the child is living or spending time shall ensure that the child is able to receive the other parties’ calls on that number during that time.

9. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parties about the condition and treatment of the child.

11. Each party, in so far as it is respectively known to them, shall keep the other parties informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

12. The third and fourth respondents shall authorise and request the principal of any school attended by the child to provide to the other parties, at their expense, copies of the child’s school reports and school photograph order forms.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

14. Each party is restrained from permitting the child to be or remain in the presence of:

    14.1Mr O

    14.2Ms R

15. All former orders directing or requesting the placement of the child’s name on the Airport Watch List are discharged, and for that purpose leave is granted to the parties to furnish a sealed copy of these orders to the Australian Federal Police.

16. The Independent Children’s Lawyer shall give the child’s passport, being Australian Passport M…, to the third or fourth respondent within 7 days of the date of these orders.

17. The first and second respondents are each restrained from removing the child from Australia unless the following conditions are met:

    17.1The child is taken only to New Zealand, and not more frequently than twice per calendar year.

    17.2The departures and returns occur within the periods during which the child spends time with the first and/or second respondents pursuant to Orders 4.3, 4.4, and 4.5 hereof,

    17.3The first and/or second respondents give 28 days written notice to the third and fourth respondents of the itinerary and flight details, and

    17.4The first and/or second respondents return the child’s passport to the third and fourth respondents upon the child’s return to the third and fourth respondents at the conclusion of the time spent by the child with the first and/or second respondents.

18. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 these particulars are included in these orders.

19. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

20. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2640  of 2008

MR PATON

Applicant

And

MS WILLIAMS

First Respondent

And

MS BENNIE

Second Respondent

And

MR PATON SNR

Third Respondent

And

MRS PATON SNR

Fourth Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. J, the child who is the subject of these parenting proceedings, is undoubtedly dearly loved. His family have such a concern for his best interests that the father, mother, maternal grandmother, and both paternal grandparents have all participated in the proceedings as parties at various times.

2. The applicant is the child’s father.

3. The first respondent is the child’s mother.

4. The second respondent is the maternal grandmother.

5. The third and fourth respondents are the paternal grandparents.

6. Although the parties’ interest in the child is laudable, it is lamentable that the dispute between them has run so deep for so long.

7. The parents discounted themselves as residential options for the child and also, at least to some extent, as recipients of parental responsibility for the child. They each respectively supported the parenting proposals made for the child by their own parents. The issues as to whom would provide the primary residence for the child, and to whom parental responsibility for the child would be allocated, were therefore really contested between the maternal grandmother and the paternal grandparents.

Absence of the father

1. The proceedings were commenced by the father filing his Initiating Application on 16 October 2008. The father was legally represented until his lawyers filed a Notice of Ceasing to Act on 11 May 2010.

2. The father thereafter represented himself and personally appeared before the Court on 13 May 2010, at which time the matter was fixed for trial on 7 September 2010. The father was certainly aware of the trial date, and also of the procedural orders made on that day in order to ensure the readiness of the case for trial.

3. The father failed to file his affidavit in accordance with the procedural orders, failed to appear before the Court in respect of an interlocutory issue on 9 July 2010, and again failed to appear before the Court for trial on 7 September 2010. The proposed orders set out within his Application filed nearly two years ago, which has never been amended, bore no relationship to the current circumstances of the child.

4. The other parties and the Independent Children’s Lawyer mutually requested that the trial proceed in the father’s absence. It was uniformly accepted that the father was aware of the trial and had voluntarily elected not to participate. In the circumstances, I was satisfied that the father was aware of the trial and had willingly chosen to eschew the opportunity to be heard about the proper parenting outcome for the child. The trial therefore proceeded in his absence.

Proposal and evidence of the mother

1. The mother sought the orders set out within her Further Amended Response filed on 3 March 2010. In essence, she sought orders to the effect that:

   a)She and the maternal grandmother have equal shared parental responsibility for the child (Order 1).

   b)The child live with the maternal grandmother (Order 2).

   c)The child spend time with her each alternate weekend, on one evening each week for a period of a few hours, on the child’s birthday, and for one week in each school holiday period (Order 3).

   d)The child spend time with the paternal grandparents on one weekend each month, for half of school holiday periods, and on special occasions (Orders 4, 6, and 7), with express provision made for change-overs (Order 10).

   e)The child spend time with the father whilst he is already spending time with the paternal grandparents, with such time to be supervised (Order 5). The supervisor was not specified.

   f)The child communicate with the paternal grandparents and father by telephone (Order 9).

   g)Various injunctions be made (Orders 8, and 11-20)

2. In support of her proposal the mother relied upon her affidavit filed on 23 July 2010 and the Form 4 Notice of Child Abuse or Family Violence filed on 13 March 2009.

Proposal and evidence of the maternal grandmother

1. The maternal grandmother filed an Application on 28 October 2008, which Application was deemed to be a Response because of the father’s commencement of the proceedings little more than a week before. Thereafter, the maternal grandmother became the second respondent.

2. The maternal grandmother ultimately sought the orders set out within her Amended Response filed on 1 March 2010. She proposed orders to the following effect:

   a)   The child live with her (Order 1) and she have sole parental responsibility for him (Order 2).

   b)     The child spend time with the mother on one weekend each month, on one evening each week for a few hours, on the child’s birthday, and for specified periods during some but not all school holiday periods (Order 3).

   c)     The child spend time with the paternal grandmother on one weekend each month, on the child’s birthday, and for specified periods during some but not all school holiday periods (Order 4), with express provision made for change-overs (Orders 5, 6, and 8).

   d)     The child spend time with the father whilst he is already spending time with the paternal grandmother, with such time to be supervised by the paternal grandmother (Order 7).

   e)     The child be free to communicate by telephone with any party at any time (Order 15).

   f)   Various injunctions be made (Orders 9-14, and 16)

3. In support of her proposal the maternal grandmother relied upon the evidence contained within the affidavits of:

   a)   The maternal grandmother, filed on 2 July 2010.

   b)     Mr Bennie, the husband of the maternal grandmother, filed on 2 July 2010.

   c)     Ms H, a friend of the maternal grandmother, filed on 2 July 2010 (paragraph 31 of which was amended slightly by agreement between the parties).

Proposal and evidence of the paternal grandparents

1. On 12 October 2009 the paternal grandparents filed an Application in a Case seeking their joinder to the proceedings as respondents. The matter was returnable before the Court that day for consideration of interim parenting orders. The parties, including the paternal grandparents, agreed upon consent orders that day and the paternal grandparents have since been treated as the third and fourth respondents to the proceedings.

2. The paternal grandparents pressed for the orders set out within their Amended Response filed on 24 May 2010, which effectively propose that:

   a)   The child live with them (Order 1).

   b)     The paternal grandmother have sole parental responsibility for the child (Order 2).

   c)     The child spend time with the mother every fourth weekend, for one week during each school holiday period, and on other days by arrangement with the paternal grandparents (Order 3).

   d)     The child spend time with the father at the discretion of the paternal grandparents, with such time to be supervised by them (Order 5).

   e)     The child spend time with the maternal grandmother for two separate fortnightly periods per annum, during school holiday periods, at which time he may be taken to New Zealand (Order 6), during which time the child shall have telephone communication with the paternal grandparents (Order 7).

   f)   The parties be bound by various injunctions (Orders 4, and 8-15).

3. In support of their proposal the paternal grandparents relied upon the evidence contained within their respective affidavits filed on 5 July 2010.

Proposal of the independent children’s lawyer

1. At the commencement of the trial the Independent Children’s Lawyer tendered a Minute of the Orders proposed by her.[1] That was replaced by an amended Minute of Orders tendered during final submissions.[2]

   [1] Exhibit ICL1

   [2] Exhibit ICL2

2. The final proposal of the Independent Children’s Lawyer was closely aligned with the proposal of the paternal grandparents. She proposed orders to the following effect:

   a)   The paternal grandparents have equal shared parental responsibility for the child, and the child live with them (Orders 2 and 3).

   b)     The child spend time with the mother, maternal grandmother, or both of them, on two weekends in each school term, for half of all school holiday periods, and on other special occasions (Orders 4, 9, and 10).

   c)     The child spend time with the father at the discretion of the paternal grandparents, subject to supervision by one of them (Orders 5 and 19).

   d)     The child have telephone communication with all adults (Orders 7 and 8).

   e)     The parties be bound by various injunctions (Orders 11-20).

3. During final submissions, counsel for the paternal grandparents informed the Court that the paternal grandparents supported all of the orders sought by the Independent Children’s Lawyer, with the exception of proposed Order 20, which injunction they wished tightened.

Evidence of the single expert

1. Dr S, psychiatrist, was consensually appointed as the single expert witness in the proceedings by order made on 22 May 2009.

2. The single expert conferred with the parties and the child on a number of occasions in August and November 2009, which led to the compilation of her expert report on 1 December 2009.

3. The evidence contained within the expert report was supplemented by the oral evidence given by the single expert in cross examination, which only served to emphasise the opinions expressed in the expert report.

Background facts

1. The mother and father began their relationship in February 2003.[3]

   [3] Mother’s affidavit, par 3

2. The child was born in February 2004.[4]

   [4] Mother’s affidavit, par 1

3. During the relationship between the mother and father, they and the child received considerable assistance from the maternal grandmother and paternal grandparents. The parents and child were provided with accommodation by the paternal grandparents for about 18 months[5] and the maternal grandmother visited them frequently.

   [5] Expert report, page 4

4. The relationship between the mother and father ended in 2006. It is immaterial whether it ended in January[6] or October.[7] The father vacated the home they were then sharing, leaving that accommodation to the mother and child. The father moved in with the paternal grandparents.[8]

   [6] Mother’s affidavit, par 25

   [7] Expert report, pages 4, 12

   [8] Expert report, page 12

1. From that time the maternal grandmother had substantial input into the care of the child. The mother and father had an arrangement that the father could spend time with the child at his discretion.[9] The parties did not require parenting orders to regulate their arrangement, and the child spent time with the father at the home of the paternal grandparents every weekend.[10]

   [9] Mother’s affidavit, par 26

   [10] Expert report, page 13

2. The maternal grandmother is a New Zealander with Maori heritage. She took the child with her on a visit to New Zealand for a month between August and September 2007.[11]

   [11] Exhibit MGM1; Mother’s affidavit, pars 36-37

3. The maternal grandmother was only back in Australia for a period of weeks before she returned to New Zealand on 18 October 2007 for an indefinite period,[12] leaving the child with the mother in Australia. The maternal grandmother was uneasy about the mother’s ability to cope as a parent in her absence. Even the mother had reservations about her ability to cope.

   [12] Exhibit MGM1; Mother’s affidavit, par 52

4. In January 2008 the mother took the child to New Zealand to visit the maternal grandmother.[13] They returned to Australia after a few weeks, but the mother was then convinced that she could not cope alone. She decided to return to New Zealand with the child, contemplating their permanent residence there.[14]

   [13] Mother’s affidavit, par 55

   [14] Mother’s affidavit, pars 57-60

5. The mother alleges that she advised the paternal grandparents of her intentions,[15] but that is denied by them. The paternal grandparents assert that they knew nothing more than that the mother was struggling and went to New Zealand for temporary visits to the maternal grandmother.[16]

   [15] Mother’s affidavit, pars 62-63

   [16] Paternal grandfather’s affidavit, pars 26-27

6. The mother returned to New Zealand with the child in March 2008.[17]

   [17] Mother’s affidavit, par 64

7. For reasons which are unexplained, the mother decided within a matter of weeks that she could not live in New Zealand, but that the child could. She therefore returned to Australia in April 2008, leaving the child in the care of the maternal grandmother.[18]

   [18] Mother’s affidavit, pars 65-69

8. On 29 April 2008, the mother and maternal grandmother entered into a Guardianship Agreement in respect of the child.[19]

   [19] Maternal grandmother’s affidavit, Annexure B

9. The agreement purported to invest the maternal grandmother with all the duties, powers, rights, and responsibilities of a guardian of the child. The agreement also recorded that the maternal grandmother was to have the role of providing day-to-day care for the child until 31 December 2008, at which time the maternal grandmother was to take the child back to Australia and return him to the care of the mother.

10. Although the agreement recited that the mother had consulted the father about the proposed agreement and that he consented to it, there is no corroborative evidence of that. The maternal grandmother simply accepted what she was told by the mother about her having consulted with the father.[20] The father was not a party to the agreement and he did not give evidence in these proceedings. The circumstances of the child’s subsequent recovery from New Zealand lead me to infer that the father was ignorant of the agreement.

    [20] Maternal grandmother’s affidavit, par 44

11. Barely weeks after executing the Guardianship Agreement, the maternal grandmother instituted proceedings in New Zealand under the Care of Children Act 2004 (NZ) seeking orders in respect of the child.

12. The proceedings were initiated on 30 May 2008, supported by affidavits sworn by the maternal grandmother and her husband. The maternal grandmother sought an ex parte order preventing the removal of the child from New Zealand, substituted service of the documents upon the father at the address of the paternal grandparents, abridgment of time for service, and appointment of the maternal grandmother’s new husband as an additional guardian for the child.[21] There can be no doubt that the maternal grandmother was trying to wrest control of the child from the parents from a position of strength in New Zealand. She did not consider the parents as capable.[22]

    [21] Maternal grandmother’s affidavit, Annexure C

    [22] Maternal grandmother’s affidavit, par 54

13. The reason given by the maternal grandmother for the haste of the applications was that she believed, from reports made to her by a friend in Australia, that the mother was planning to recover the child from her in New Zealand, possibly with the assistance of the paternal grandfather.[23]

    [23] Maternal grandmother’s affidavit, Annexure C

14. On 30 May 2008 the New Zealand Court ordered that the child should not be removed from New Zealand pending further order.[24]

    [24] Maternal grandmother’s affidavit, Annexure C

15. Those proceedings, which came to the attention of the mother, father, and paternal grandparents in Australia when they were served with the documents,[25] caused some consternation. The paternal family had certainly not abandoned the child. They were in regular contact with the maternal grandmother by telephone in order to speak with the child.[26]

    [25] Maternal grandmother’s affidavit, par 45

    [26] Maternal grandmother’s affidavit, par 52

16. The mother admits that she felt betrayed by the maternal grandmother and was angered by those developments. She opposed the orders sought by the maternal grandmother and wanted the child returned to her. She admits that she solicited assistance from the paternal grandparents, who gladly provided it to her.

17. The father, presumably with the assistance of the paternal grandparents, caused the institution of proceedings in New Zealand under the Hague Convention for recovery of the child and his return to Australia.[27] Those proceedings were successful, with an order being made on 1 August 2008 for the return of the child to Australia.[28] The proceedings would not have been successful unless the New Zealand Court was satisfied that the child had been wrongfully detained in New Zealand, which conclusion was apparently reached on evidence from the father that he only consented to the child being taken to New Zealand for a short holiday.[29] He is corroborated by the paternal grandfather.[30]

    [27] Maternal grandmother’s affidavit, par 54; Expert report, page 12

    [28] Maternal grandmother’s affidavit, par 55, Annexure G

    [29] Maternal grandmother’s affidavit, par 56

    [30] Paternal grandfather’s affidavit, par 27

18. The child was returned to Australia in the company of the maternal grandmother in early August 2008.[31] The child remained living with the maternal grandmother in Australia in the Newcastle area, and was temporarily precluded from spending time with any member of the paternal family. The maternal grandmother remained the primary carer for the child, despite the presence of the mother.[32]

    [31] Mother’s affidavit, par 85

    [32] Mother’s affidavit, par 86; Maternal grandmother’s affidavit, par 57

19. The maternal grandmother arranged a meeting with the father and paternal grandmother to discuss the care of the child. There was disagreement about who should be the primary carer of the child.[33] In the absence of agreement, the maternal grandmother refused to let the child spend time with the paternal family until parenting orders were in place. She wrote to the father telling him so.[34]

    [33] Maternal grandmother’s affidavit, par 58

    [34] Maternal grandmother’s affidavit, Annexure H

20. The maternal grandmother, mother, and father attended a Legal Aid conference about the dispute in September 2008.[35] A parenting plan was conceived,[36] but the father declined to sign it. In all probability, that was because the parenting plan recited that the mother agreed to the child’s return to live in New Zealand.[37] It was hardly likely the father would have agreed to that provision in view of his successful pursuit of Hague Convention proceedings only weeks before.

    [35] Maternal grandmother’s affidavit, par 61

    [36] Maternal grandmother’s affidavit, Annexure K

    [37] Maternal grandmother’s affidavit, Annexure K, par 8

21. The child spent time with the father for a few days in early October 2008 consistently with the provisions of the parenting plan. That apparently only occurred on the insistence of the mother, against the wishes of the maternal grandmother, with both of them believing that the parenting plan had been signed by the father.[38]

    [38] Maternal grandmother’s affidavit, pars 62-65

22. The father commenced these proceedings by filing an Initiating Application on 16 October 2008. He was clearly dissatisfied with the terms of the parenting plan proposed by the mother and maternal grandmother.

23. Under the parenting plan, the child was next due to spend time with the father commencing on 24 October 2008. Irrespective of the terms of the parenting plan, and irrespective of whether it was signed, the maternal grandmother refused to let the child spend any time with the father because she believed the child was at risk in his care.[39]

    [39] Maternal grandmother’s affidavit, par 66

24. The father was so incensed by his perception of the maternal grandmother’s belligerence that he arranged to abduct the child the following day. Although the maternal grandmother believes that the father’s brother abducted the child,[40] the paternal grandfather said in evidence that he believed the father did it himself. That accords with the father’s admission to the single expert.[41]

    [40] Maternal grandmother’s affidavit, pars 67-68

    [41] Expert report, page 10

25. In any event, the child was taken into the care of the paternal family. The father informed the maternal grandmother of that development.[42]

    [42] Maternal grandmother’s affidavit, par 68

26. Some days later, on 29 October 2008, the maternal grandmother drove the mother to the father’s brother’s home to see the child.[43] The mother was directed to leave the property by the father’s brother. The paternal grandfather admitted in cross examination that he said to the mother at the time “It’s his property sweetheart. I can’t tell him what to do on his own property”, because he too wanted her to leave. As the paternal grandfather was impelled to admit in evidence, he was condoning the child being kept from the mother. The paternal grandfather also admitted that the mother would have been intimidated, although he asserts he did not intend that result.

    [43] Maternal grandmother’s affidavit, pars 70-71; Mother’s affidavit, par 109

27. The parties have differing versions and perceptions of their behaviour on that occasion, but I find as facts that the mother was prevented from seeing the child that day, she was made to feel unwelcome by the paternal family, and she was induced to leave the property by intimidation.

28. Shortly following the child’s abduction, the father took the child with him to live with the paternal grandparents on the mid north coast of NSW.

29. At about the same time, the maternal grandmother and mother each filed documents with the Court. On 28 October 2008 the maternal grandmother filed an Initiating Application, which was deemed a Response to the father’s earlier Application, and the mother filed her Response on 3 November 2008.

30. Interim parenting orders were made by the Court on 17 November 2008, which relevantly provided as follows:

    1.The child [J] born […] February 2004 (“the child”) spends time with the second respondent as follows:

    a.From 5:00 pm Friday to 4:00 pm Sunday each alternate weekend, extended to 4pm Monday if Monday is a Public Holiday, commencing 21 November 2008;

    b.For the second half of the term 1, 2 and 3 gazetted NSW school holidays, from 9am on the day midpoint through the holiday period to 4pm on the day prior to school returning the following term;

    c.From 12 noon Christmas Day until 12 noon on 10 January 2009;

    d.On the child’s birthday for 2 hours if this falls on a school day, such time to occur at [the paternal grandparents’ local area], or from 9am to 4:00 pm if this falls on a weekend;

    e.From 9:00 am to 4:00 pm on Mother’s Day;

    f.On special days for the maternal family provided that the second respondent gives the applicant 2 weeks notice of the occurrence of a special day and the applicant agrees to [the child] spending time with the second respondent;

    g.On 19 November 2008 from 11:00 am to 4:00 pm.

    2.The child lives with the applicant at all times not stated in Order 1 above and additionally the child’s time with the second respondent is suspended and the child lives with the applicant from 9:00 am to 4:00 pm on Father’s Day.

    3.The child spends time with the first respondent as agreed between the second respondent and the first respondent, such time to occur during the times set out in order 1 above.

    11.The applicant is restrained from changing the child’s residence to outside the [local] area until further order.

    17.The father has sole parental responsibility for all decisions concerning the child.

31. As far as the evidence goes, those orders were the subject of compliance.

32. The child started school in early 2009 in the area where he lived with the father and paternal grandparents.[44] He still attends that school now.

    [44] Paternal grandfather’s affidavit, par 34

33. Only days after the orders were made on 17 November 2008, the maternal grandmother returned to New Zealand to attend to pressing family matters.[45] But for taking short holidays back to Australia in January and August 2009, the maternal grandmother remained living in New Zealand until she relocated back to Australia permanently on 26 November 2009.[46]

    [45] Exhibit MGM1; Maternal grandmother’s affidavit, par 78

    [46] Exhibit MGM1; Maternal grandmother’s affidavit, pars 78, 92

34. Since December 2009 the maternal grandmother has resided in rental accommodation in the Newcastle area with her husband, his two children, the mother, and the mother’s brother.[47]

    [47] Maternal grandmother’s affidavit, pars 92, 97; Mother’s affidavit, pars 325-326

35. In February 2009, after having lived with the paternal grandparents for some months, the father found alternate accommodation for himself and the child. They continued to live in the same locality as the paternal grandparents and continued to have almost daily interaction with them.[48]

    [48] Paternal grandmother’s affidavit, par 6

36. Whilst living alone with the child, the father receded into a lifestyle that was inconsistent with proper parenting of the child. Between July and September 2009 the father was the subject of police interest on several occasions because of intoxication, violence, erratic driving, and dishonesty.[49] In September 2009 the father was taken into custody and/or rehabilitation and the child resumed his residence with the paternal grandparents.[50]

    [49] Exhibit MGM2

    [50] Expert report, pages 3, 21, 24

37. On 12 October 2009 the paternal grandparents sought to intervene in the pending proceedings concerning the child, and on that day further interim parenting orders were made to the following effect:

    1.1That Orders 1-5 inclusive of the Orders made 17 November 2008 be suspended.

    1.2That the child [J] born […] February 2004 live with his paternal grandparents [Mr and Mrs Paton Snr].

    1.3That [the child] spend time with his mother as follows:

    a.Until 4:00 pm Sunday, 18 October 2009 with changeover to occur at McDonald’s Family Restaurant, […], NSW;

    c.     The first half of all NSW school holidays.

    3. [The child] shall spend time with the mother each alternate weekend from 5:00 pm Friday to 5:00 pm Sunday.  The first weekend to commence on Friday, 30 October 2009.

38. The matter came back before the Court on 8 December 2009 at which time further interim orders were made to the following effect:

    1.1All previous parenting orders are discharged.

    1.2That the child [J] born […] February 2004 live with the paternal grandparents [Mr and Mrs Paton Snr].

    1.3That the child spend time with the mother as follows:-

    (a)each alternate weekend from 5pm Friday till 5pm Sunday during school term;

    (b)from 5pm Friday 18 December 2009 till 12 noon Friday 25 December 2009;

    (c)for one week of each New South Wales school holiday period in 2010 and thereafter from 5pm on the first Friday of the holiday period or if the Friday is the last day of the school term from 5pm on that Friday till 5pm the following Friday.

    1.20 That the paternal grandparents are restrained from allowing the child to be in the presence of the father unless supervised by either the paternal grandmother or grandfather.

    2.4That the child spend time with the maternal grandmother as follows:-

    (a)from 5pm 25 December 2009 until 5pm 8 January 2010;

    (b)from 7pm 3 March 2010 till 5pm 13 March 2010 with the maternal grandmother and mother being at liberty to take the child to New Zealand.

39. There is no evidence to suggest that those orders made in October and December 2009 have been flouted – at least in respect of the arrangements for the child to live with the paternal grandparents and spend time with other important adults in his life.

40. However, issue was taken about the paternal grandfather continuing to attend change-overs,[51] and cessation of the use of a communication book.[52]

    [51] Mother’s affidavit, pars 376-378

    [52] Mother’s affidavit, pars 368-372

41. The father was released from custody in or about March 2010 and now lives in the Newcastle area.[53]

    [53] Paternal grandfather’s affidavit, par 58

42. The trial commenced on 7 September 2010 and concluded on 10 September 2010. Judgment was reserved.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

1. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

2. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.

Best interests of the child

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton [2009] FamCAFC 229 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59-61, 76-81, 83]; Dennett & Norman [2007] FamCA 57 at [53-60]).

2. Although some of the factors proscribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]). Consequently, I will deal with the parents and grandparents simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

3. In reality, few of the issues relevant to the child’s best interests are contentious.

Primary Considerations

Section 60CC(2)(a)

1. The value of the child’s relationship with the father will likely be restricted to some degree because of the mutually recognised need for that relationship to be supervised. Nothing can be done about the father’s apparent disinclination to retain regular and frequent interaction with the child.

2. The value of the child’s relationship with the mother will be preserved by the orders for the child to spend time with her. There is no evidence that the child will not be able to preserve the current relationship he has with the mother under that regime.

3. No party contends otherwise than it is in the best interests of the child to have a meaningful relationship with both of his parents.

4. Although not strictly a primary consideration, no party contends otherwise than it is in the best interests of the child to have a meaningful relationship with his grandparents.

Section 60CC(2)(b)

1. On 13 March 2009 the mother filed a Form 4 Notice of Child Abuse or Family Violence, in which she alleged that the child was at risk of abuse, and that various members of the paternal family had perpetrated family violence towards her.

2. Notices filed under the Act (s 67Z) and the Family Law Rules (Rules 2.04B and 2.04D) contemplate a wide spectrum of irregular behaviour. It is necessary in every case in which such a Notice is filed to carefully analyse the evidence to determine precisely what is alleged and what risks exist for the subject child.

3. The mother’s allegation of the risk of harm to the child stems from the mother and maternal grandmother observing the child to act in a sexualised manner in the early months of 2009.[54] The allegation does not support any concern for the risk of physical harm to the child. The mother only holds concern for the risk of psychological harm. Clearly the mother and maternal grandmother can only speculate about the cause of the child’s behaviour, but they suspect that the child was able to view pornography upon a computer, or witness sexual liaisons between the father and a girlfriend.[55] There is no suggestion that the child was sexually molested. The alleged risk relates only to the father’s failure to properly supervise him. No criticism is made of the paternal grandparents.

   [54] Maternal grandmother’s affidavit, pars 83-86; Mother’s affidavit, pars 194-197

   [55] Mother’s affidavit, Annexures G, H

4. I accept that the mother and maternal grandmother truthfully reported what they observed about the behaviour of the child. However, that of itself does not prove that the child was abused, or that he suffered harm. There is no evidence of the child’s behaviour extending beyond a closed period of several months, and the pattern of his behaviour was not pervasive. The members of the paternal family deny seeing behaviour of that sort,[56] and the single expert saw no evidence of aberrant sexual behaviour in the child when she observed him in August 2009.[57] I also accept that evidence.

   [56] Expert report, page 10

   [57] Expert report, page 33

5. The reason for the child’s transitory sexualised behaviour remains conjectural. Even if some act or omission of the father was the cause, the father no longer lives in the same household as the child and all parties agree that any time spent by the child with the father should be the subject of supervision. Consequently, there is no future prospect of the child being exposed to psychological harm in the manner suspected by the maternal family. I do not accept the submission of the maternal grandmother that the only way to eradicate any unacceptable risk is to completely remove the child from the paternal grandparents’ care.

6. As for the alleged incidents of family violence, with one exception, the mother’s allegations all relate to incidents that occurred on or before 29 October 2008, being the date upon which the mother attended the father’s brother’s home following abduction of the child by the father.

7. It is unnecessary to make extensive findings about the circumstances of that incident. It is sufficient to conclude that the mother was induced to leave the property that day by intimidation she faced from the father, his brother, and the paternal grandfather. In all likelihood, the mother’s feeling of intimidation was reasonable, in which case the definition of family violence under the Act (s 4) is fulfilled, even though it is common ground that there was no assault committed. However, that incident was isolated and occurred at a time of high emotion. The father had only just prosecuted proceedings under the Hague Convention to recover the child from New Zealand, and despite the child being back in Australia, the maternal family had been obstructive about the child spending time with the father.

8. The mother said in cross examination that that was the one and only time that the paternal grandfather and the father’s brother had intimidated her. The maternal grandmother said in cross examination that she admired the paternal grandfather for the courteous way in which he treats his wife and for his family-orientated attitude. He is plainly not a man who is pre-disposed to aggressive conduct. I find that the paternal grandfather will probably not act in a similar way towards the mother again and that he poses no risk of physical or psychological harm to the child by his exposure of the child to family violence. For similar reasons I make the same findings about the father’s brother.

9. I accept the veracity of the mother’s allegations against the father in relation to incidents of violence on other occasions. Her evidence was not challenged. The last such incident concerning the father occurred on 6 February 2009, when the mother first raised the issue of the child’s sexualised behaviour and the father reacted indignantly.[58] In addition, the father admits that he has acted violently towards another female companion more recently.[59]

   [58] Mother’s affidavit, par 203

   [59] Expert report, page 10

10. There is no allegation that the father has ever been physically violent towards the child, but any violence perpetrated by the father upon other persons in the presence of the child would undoubtedly be psychologically harmful to the child. The risk of such harm is mitigated by the parties’ agreement that any time spent by the child with the father should be supervised.

11. It was uniformly accepted that supervision of the child’s time with the father was a satisfactory protective measure to inure the child against the risk of exposure to family violence. No-one submitted that the child should have no interaction with the father at all.

12. Apart from the issues raised by the mother in her Form 4 Notice of Child Abuse or Family Violence, no party submitted that s 60CC(2)(b) of the Act was relevant to the outcome of the proceedings in any other way.

Additional Considerations

Section 60CC(3)(a)

1. The child is too young and immature to express any reliable views about his parenting arrangements. He is still only 6 years of age.

2. The child told the single expert that he did not want to live with the mother, but otherwise expressed no views about living arrangements to the single expert.[60]

   [60] Expert report, page 14

Section 60CC(3)(b)

1. Comments made to the single expert by the child about all of the parties were somewhat equivocal.[61]

   [61] Expert report, page 14

2. The child’s behaviour is likely to be a much more reliable indicator of the quality of his relationships, particularly in view of the parties’ joint concern about the child’s ability to express himself clearly.

3. The single expert observed that the child made warm eye contact with both parents and the maternal grandmother.[62] He was obviously comfortable in the presence of all of them.[63] The single expert also observed a warm and happy interaction between the child and paternal grandparents.[64]

   [62] Expert report, page 14

   [63] Expert report, page 21

   [64] Expert report, page 26

4. The single expert expressed opinions about the child’s relationships with the parties. The single expert regarded the attachment style between the child and mother as “insecure avoidant”,[65] and between the child and maternal grandmother as “insecure anxious”,[66] even though the child’s relationships with both of them were important to him.[67]

   [65] Expert report, page 35

   [66] Expert report, page 36

   [67] Expert report, page 36

5. The single expert concluded that the attachment style between the child and the father was “secure”, and that the father was the child’s main attachment figure.[68] Of course, that was an opinion expressed on the basis of observations made more than a year ago. The child’s recent interaction with the father has been quite sporadic.

   [68] Expert report, page 36

6. In cross examination the single expert said that all of the grandparents had been significant support persons and that the child had developed secondary attachments to all of them.

7. Importantly, the single expert concluded that the paternal grandmother is the most child-focussed party, and that the child loves her and is securely attached to her.[69] It was also observed that the child has a close relationship with the paternal grandfather.[70]

   [69] Expert report, page 36

   [70] Expert report, page 37

8. The paternal grandparents readily conceded to the single expert that the child loves the maternal grandmother and her husband,[71] and the paternal grandfather said in cross examination that he and the paternal grandmother realised the child loved the mother too.

   [71] Expert report, page 22

9. The mother and maternal grandmother also both acknowledged in cross examination that the child loved the father and paternal grandparents.

10. I am satisfied the child has a loving relationship with all parties, which fact is recognised by all parties.

Section 60CC(3)(c)

1. It was contended that the circumstances of the maternal grandmother’s retention of the child in New Zealand in 2008, and deprivation of the child’s interaction with the paternal family upon his return to Australia in August 2008, is evidence demonstrating the unwillingness of the maternal grandmother to facilitate and encourage a close and continuing relationship between the child and members of the paternal family. That must surely be so – at least insofar as it is evidence of her attitude in 2008.

2. Similarly, it was contended that the circumstances of the father’s abduction of the child from the maternal family on 25 October 2008, and the subsequent complicity of the paternal grandparents in guaranteeing the success of that strategy, is evidence demonstrating the unwillingness of the paternal family members to facilitate and encourage a close and continuing relationship between the child and members of the maternal family. That must also surely be so – at least insofar as it is evidence of their attitude in 2008.

3. The two families should regard their conduct concerning the child in 2008 with regret and embarrassment. However, I am satisfied that such behaviour is uncharacteristic for them. In other respects the parties are deserving of much credit for their conduct, not least in respect of the way in which the maternal grandmother and paternal grandparents have stepped in to render parenting assistance to the parents over the years when they have clearly needed it.

4. The interim parenting orders have been, in the main, faithfully implemented since November 2008. The parties are therefore willing to observe proper parenting arrangements for the child. That bodes well for the child continuing to enjoy his relationships with both family groups.

5. Recently, when the paternal grandparents took a long-planned holiday, they amicably arranged for the child to stay with the mother and maternal grandmother. They did the same thing on another occasion in November 2009.[72] There were no orders requiring them to do so. Those arrangements were reached amicably between the families. They are poignant examples of the capacity of the two families to work with, rather than against, each other.

   [72] Mother’s affidavit, pars 328-330

6. It is true that criticisms were made by the parties of one another in the course of the evidence, but those criticisms were mainly elicited in cross examination, and were interspersed with other complimentary remarks. The occasional criticisms fell far short of providing a foundation for any argument that any one party would not promote the child’s relationships with the others. It was a fatally flawed forensic strategy to think otherwise and it is a pity that was not recognised.

7. The two families undoubtedly do feel a degree of dissatisfaction with one another. I accept the evidence of the single expert to the effect that the regrettable events of 2008 soured the previously healthy relationship between the two families, which problem was compounded by some parts of the cross examinations. The parties’ relationships have otherwise historically been characterised by goodwill, and that is probably capable of recapture.

8. The single expert said she believed the paternal grandparents had a kind regard for the maternal grandmother, her husband, and the mother,[73] and the paternal grandparents expressed some similar sentiments in evidence. According to the single expert, the past criticisms made by the paternal grandfather of the mother were likely the product of his misunderstanding about the status of the mother’s mental health.

   [73] Expert report, page 24

9. The maternal grandmother also made complimentary remarks about both of the paternal grandparents. Mention has already been made of her comments about the paternal grandfather,[74] and she said of the paternal grandmother that she was “a decent woman who has tried hard as a parent and grandparent.” The maternal grandmother said she thought the paternal grandparents had both prioritised the child’s interests ahead of the father’s.

   [74] See paragraph 94

10. I am satisfied on the balance of probabilities that each party will facilitate and encourage the relationship that the child enjoys with the other parties.

Section 60CC(3)(d)

1. The orders now made reflect the living arrangements that have been in place since September 2009, which arrangements were ratified by interim orders on 12 October 2009.

2. There will be no changes to which the child will need adjust. That is an important consideration. Given the upheaval that has occurred in the short life of the child, stability is imperative to his happiness and development.

Section 60CC(3)(e)

1. The parties all conducted the case on the basis that the child will either live with the paternal grandparents on the mid north coast of NSW or in the Newcastle region with the maternal grandmother, and that wherever the child lives, change-overs will occur at a place equidistant between the households.

2. There will be some practical difficulty and expense in implementing the orders now made because of the distance between households, but no more than has been incurred since September 2009. No party submitted that the difficulty or expense will preclude, or render impracticable, the implementation of the orders in the future.

Section 60CC(3)(f)

1. The mother and father do not have the capacity to provide for the needs of the child. That has been proven over a period of years. Whenever the child has lived individually with the mother or father the arrangement has collapsed, with each anticipating that their own parent or parents would step in and assume the parenting role for the child.

2. The mother admits that to be so.[75] That is why she now supports the maternal grandmother’s proposals. Although the father has not done so expressly, he has done so inferentially, by consenting to the interim orders in October and December 2009, and by abstaining from participation in the trial. When the paternal grandfather was cross examined about the father’s absence, the paternal grandfather said that he had been told by the father that he supported the proposal of the paternal grandparents.

   [75] Mother’s affidavit, par 79

3. While it is common ground that the parents do not have the capacity to properly provide for the needs of the child, it is similarly common ground that both the maternal grandmother and paternal grandparents do have that capacity.

Section 60CC(3)(g)

1. There is nothing about the maturity, sex, lifestyle, or background of the maternal grandmother or paternal grandparents that materially detracts from their capacity to care for the child.

2. The single expert made some mildly adverse observations about the character traits of the maternal grandmother,[76] but that evidence did not in any way suggest that the maternal grandmother was incapable of providing adequate care for the child. The single expert expressly disavowed that the personality traits of the maternal grandmother precluded her having residential care of the child. Rather, the evidence was relevant only to the comparison of the parenting capacities of the two grandmothers. Obviously it would be advantageous to select the optimum parenting regime available for the child. The single expert simply regarded the paternal grandmother as having a superior capacity to cater to the child’s emotional and intellectual needs. I accept the single expert’s opinion about that.

   [76] Expert report, page 31

3. The maternal grandmother possesses Maori heritage, of which she is justifiably proud. The child’s middle name is of Maori derivation.[77] It is important to both the maternal grandmother and the mother that the child be imparted with knowledge of his Maori culture.[78] The mother sought a specific order about the issue,[79] but that is unnecessary.

   [77] Expert report, page 13

   [78] Maternal grandmother’s affidavit, pars 108-109; Expert report, pages 5, 7, 13

   [79] Mother’s Response, Order 15

4. The paternal grandparents are both supportive of the child being inculcated with Maori cultural experiences.[80] I accept their evidence as being genuine, even though the maternal grandmother doubts their sincerity.[81]

   [80] Paternal grandmother’s affidavit, pars 57-58; Paternal grandfather’s affidavit, par 68

   [81] Expert report, page 7

5. The evidence of the single expert, which I accept, is that the child will have sufficient exposure to Maori culture through periodic visits to the maternal family. She considered that, by reason of the child’s language delay, the child was struggling to manage the English language without being constantly overburdened with the Maori language in the maternal grandmother’s home.

1. The child is well settled at his current public school, to and from which he travels by school bus. The school and the paternal grandparents are happy with his progress.[112] The paternal grandparents assert that the child loves attending the school. He has friends at the school and also in the neighbourhood where he lives. He enjoys playing soccer with a local club. Each school holiday period the paternal grandparents have some of their other grandchildren stay with them, and the child associates with them if he is not away visiting with the maternal family.

   [112] Exhibit PGP1

2. Retention of the child at his school was the determining factor in the paternal grandparents’ decision to remain living on the mid north coast of NSW and to dispense with the idea of their move back to Newcastle, which idea they discussed with the single expert.[113]

   [113] Expert report, page 34

3. If the child lived with the maternal grandmother he would obviously need to change schools. That would be a significant change for the child because, apart from the paternal grandparents’ home, school has been the only other constant in the child’s life. The change of school would likely be even more significant for the child because the maternal grandmother proposes that he attend a school some distance from her home. Although the child would initially attend that school with the maternal grandmother’s step-daughter, because of her age, that child will likely only attend the school for another year. After that, the child would attend the school alone, with no other children from the maternal grandmother’s family or neighbourhood attending with him.

4. Any change of residence would also necessitate a change of medical professionals for the child, including a speech therapist, with whom the child consults each fortnight.

5. Each of those changes could conceivably be implemented with sensitive handling of the child. But there is no need to make the changes. The current residential circumstances of the child are more than satisfactory. The orders therefore provide for the child to live with the paternal grandparents, as he now does.

6. The child has a need to see members of the maternal family as frequently as is practicable, allowing for the distance between the households. I accept the parties’ uniform belief that approximately one weekend each month is an appropriate frequency for their interaction, together with extra time during each school holiday period.

7. The orders contemplate the child spending time with both the mother and maternal grandmother, either individually or jointly. The orders do not make provision for the child to spend time separately with the mother and maternal grandmother because the evidence is that the mother will live with the maternal grandmother indefinitely. When the child sees one, he will invariably see the other, but there may be occasions where that is not possible. The orders therefore need to account for instances where the child will spend time with only one of them when the other is unavailable.

8. There has apparently been some uncertainty in the past about the correlation of weekend time with school holiday time. Consequently, to avoid any ambiguity, the orders clearly spell out when the child is to spend time with the maternal family in school terms and during school holidays.

9. The parties were all prepared to contemplate the child spending extra time with the mother if she is able to travel to the locality of the paternal grandparents’ residence. The paternal grandparents sought to make specific provision for that to occur.[114] But such extra time is dependent upon the mother having the resources to make the journey. The orders do not make express provision for it, other than by recognising that the parties may amicably agree on the implementation of such extra time. The single expert was relatively enthusiastic about that occurring if the mother’s circumstances permitted it.

   [114] Response, Order 3.3

10. Provision is made for the child to spend the entirety of the mid year holidays with the maternal family. That will enable them to take the child for visits to New Zealand when they are able, which is their wish. The paternal grandparents agree that such trips could occur twice per year for fortnightly periods, if it can be arranged.[115] That could not occur unless the child spends time with the maternal family for two discrete periods of not less than a fortnight each year.

    [115] Response, Order 6

11. The Christmas school holidays are simply shared equally on an alternating basis. That was the proposal of the Independent Children’s Lawyer,[116] with which the paternal grandparents indicated their agreement in final submissions. The mother and maternal grandmother both suggested breaking up the Christmas arrangements, but it would create undue difficulty for the child to share Christmas Day with both families when there is such a significant distance between their households. Longer block periods of time at Christmas also facilitates the prospect of the maternal family taking the child on visits to New Zealand in those holidays.

    [116] Exhibit ICL2, Order 4(b)

12. No order is made for the child to spend time with different parties on his birthday, although express provision is made for his telephone communication with other parties on his birthday. That is to avoid too much disruption on a single day, which will often fall on a school day.

13. All parties agree that change-overs of the child between the maternal and paternal families should take place at B, NSW, which is approximately equidistant between their homes.

14. It is common ground that the time spent by the child with the father needs to be supervised. Although the child was observed by the single expert over a year ago to have a primary attachment with the father, much has occurred since. The father was taken into residential rehabilitation and/or custody in September 2009, shortly after the single expert’s observations were made. He was subsequently released in about March 2010, but since then has been living somewhere in the Newcastle region. Not even the paternal grandparents know exactly where. They are dreadfully disappointed by his conduct. They expressed that to the single expert,[117] and those sentiments were repeated in evidence. The father’s interaction with the child since his release from custody has been spasmodic. The father’s behaviour is too erratic to enable any conclusion to be comfortably reached that the child will be safe in his unsupervised care.

    [117] Expert report, pages 22, 26

15. An order is made which will ensure that the child has regular telephone communication with members of the maternal and paternal families.

16. An injunction was sought by the maternal grandmother and the Independent Children’s Lawyer, with the support of the paternal grandparents, precluding the parties from consuming alcohol under certain conditions, but not in the form of an absolute prohibition.[118] I decline to make such an order because it would be unenforceable in the terms proposed or mooted. In those circumstances, no party sought a complete embargo on the consumption of alcohol, and so no injunction is made.

    [118] Exhibit ICL2, Order 15; Maternal grandmother’s Response, Order 13

17. The other restrictive and mandatory injunctions (Orders 9-13) are consistent with the proposals of the Independent Children’s Lawyer,[119] with whom the paternal grandparents agreed, and also the proposals of the maternal grandmother[120] and mother.[121] Alternatively, they are orders about which there can be no sensible dispute.

    [119] Exhibit ICL2, Orders 12-14, 16

    [120] Response, Orders 10-12, 14

    [121] Response, Orders 8, 16

18. The restrictive injunction concerning third parties (Order 14) has already been explained.

19. For abundant caution, an express order has been made discharging the interim airport watch orders made on 17 November 2008[122] and 8 December 2009.[123] The circumstances in which the maternal family may take the child to New Zealand are also stipulated. Those circumstances reflect the views of the Independent Children’s Lawyer[124] and the mother.[125] As the recipients of parental responsibility for the child, the paternal grandparents will hold his passport, consistently with the Independent Children’s Lawyer’s proposal.[126]

    [122] Order 15

    [123] Order 3

    [124] Exhibit ICL2, Order 17

    [125] Response, Order 11-13

    [126] Exhibit ICL2, Order 18

20. I am satisfied that the orders set out at the commencement of these reasons are reasonably practicable and meet the best interests of the child.

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 September 2010.

Associate: 

Date:  27 September 2010

    Paternal grandmother’s affidavit, pars 40-41; Paternal grandfather’s affidavit, pars 51-54    Paternal grandmother’s affidavit, pars 43-47; Paternal grandfather’s affidavit, pars 55-57