Pearlman and Verell and Anor

[2018] FCCA 1007

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEARLMAN & VERELL & ANOR [2018] FCCA 1007

Catchwords:
FAMILY LAW – Parenting – children live with paternal grandmother – parents have history of drug use and failure to comply with orders for drug screens – whether or not it is in the children’s best interests to live with the paternal grandmother or the mother.

Legislation:

Family Law Act 1975, ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)

Cases cited:

Waterford & Waterford [2013] FamCA 33,

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] HCA 4

Applicant: MS PEARLMAN

First Respondent: MS VERELL

Second Respondent: MR PEARLMAN

File Number: MLC 6773 of 2015

Judgment of: Judge Harland

Hearing dates: 26, 27 & 28 February 2018

Date of Last Submission: 28 February 2018

Delivered at: Melbourne

Delivered on: 26 April 2018

REPRESENTATION

Counsel for the Applicant: Ms Rothschild

Solicitors for the Applicant: Elisa Rothschild Lawyer

The First Respondent: Self-represented

The Second Respondent: Self-represented

Counsel for the Independent Children's Lawyer: Ms Wiener

Solicitors for the Independent Children's Lawyer: Perry Weston Lawyers

ORDERS

1. That the mother, father and the Paternal Grandmother, MS PEARLMAN have equal shared parental responsibility for [X] born (omitted) 2011 and [Y] born (omitted) 2013 (the children”).

2. That the children live with the Applicant Grandmother.

3. That the children spend time and communicate with the Respondent Mother as follows:

   (a)Every alternate Sunday from 10:00am until 4:00pm;

   (b)The mother collect the children from and return to the Applicant paternal grandmother’s home. If after three consecutive visits the mother has been on time for both pick up and drop off, then the paternal grandmother will collect the children from the mother’s home at the conclusion of the time.

   (c)On special days including the children’s birthdays and the parent’s birthdays from 3.00pm to 6.00pm;

   (d)Christmas Day in odd years from 10.00am to 5.00pm;

   (e)Boxing Day in even years from 10.00am to 5.00pm;

   (f)Easter Sunday 10.00am to 5.00pm;

   (g)Good Friday from 3.00pm to 9.00pm with the mother to collect the children from the Paternal Grandmother’s home and the Paternal Grandmother to collect the children from McDonald’s in (omitted);

   (h)On the Saturday after [A]’s birthday on (omitted) (or on (omitted) if it falls on a Saturday), from 3.00pm to 9.00pm with the mother to collect the children from the Paternal Grandmother’s home and the Paternal Grandmother to collect the children from the McDonald’s in (omitted);

   (i)On the Saturday after [B]’s birthday on (omitted) (or on (omitted) if it falls on a Saturday), from 3:00pm to 9:00pm with the mother to collect the children from the Paternal Grandmother’s home and the Paternal Grandmother to collect the children from the McDonald’s in (omitted);

   (j)For Mother’s Day from 10.00am to 5.00pm;

   (k)On 20 May 2018 from 10.00am to 5.00pm for the mother’s grandmother’s birthday;

   (l)Telephone contact between 6.00pm and 7.00pm on each Tuesday and Thursday night with the call to be initiated by the mother to the applicant’s phone;

   (m)As otherwise agreed between the parties.

   (n)If the mother fails to collect the children after half an hour, time for that day will be forfeited.

4. That the children spend time and communicate with the Second Respondent Father as follows:

   (a)Every alternate Sunday from 12:00pm until 4:00pm;

   (b)For Father’s Day from 12:00pm until 4:00pm;

   (c)The father collect the children from and return to the Applicant paternal grandmother’s home;

   (d)Telephone contact between 6.00pm and 7.00pm on each Monday and Wednesday night with the call to be initiated by the father to the applicant’s phone;

   (e)As otherwise agreed between the parties.

5. If the father fails to collect the children after half an hour from the time ordered at Order 4(a) and 4(b) herein, the time for the day will be forfeited.

6. If the mother fails to collect the children after half an hour from the time ordered at Order 3(c) to 5(k) herein, the time for that day will be forfeited.

7. That the Mother and Father be restrained by injunction from being under the influence or using any illicit substance or drug of addition whilst the children are in their care or 24 hours prior to any time spent with the children.

8. That each party keep the other informed at all times of:

   (a)Their residential address and contact telephone;

   (b)Any illness suffered by any of the children while in their care that required attendance upon a medical health professional.

9. That the parents be entitled to receive copies of all school and kindergarten reports in relation to the children at their expense.

10. That the Applicant Grandmother is restrained by injunction from:

    (a)Denigrating, belittling or criticising each or both of the Respondent mother and father or any members of the maternal family to or in the presence of the children; and

    (b)Allowing others to denigrating, belittling or criticising each or both of the Respondent mother and father or any members of the maternal family, to or in the presence of the children or either of them.

11. That the mother and father are each restrained by injunction from:

    (a)Denigrating, belittling or criticising the Applicant grandmother to or in the presence of the children, or either of them; and

    (b)Allowing others to denigrate, belittle or criticise the Applicant grandmother, to or in the presence of the children or either of them;

12. That the Applicant grandmother and the mother and father are each restrained by injunction from discussing these proceedings with the children, or either of them.

13. Each parent:

    (a)sign all documents and do all acts and things to enrol in the Parenting Orders Program recommended by the Independent Children’s Lawyer;

    (b)attend the Program for assessment and family counselling;

    (c)follow the recommendations of the Program administrator; and

    (d)complete all aspects of the Program required by the Program administrator.

14. The Independent Children’s Lawyer provide to the Program administrator with a copy of any family report, s.11F memorandum and a copy of these reasons relating to the parents and their children, or any of them.

15. After compliance with Orders 13 and 14 herein the Independent Children’s Lawyer be discharged.

NOTATION

(A)Order 3 (a) and (b)  herein commenced on 4 March 2018, and Order 4 (a) herein commenced on 11 March 2018

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6773 of 2015

MS PEARLMAN

Applicant

And

MS VERELL

First Respondent

And

MR PEARLMAN

Second Respondent

REASONS FOR JUDGMENT

1. This is a troubling case as it is difficult to see a way of ensuring that the three adults, who all dearly love these children, can work together.

2. These proceedings concern [X] born (omitted) 2011 aged 6 (“[X]”) and [Y] born (omitted) 2013 aged 4 (“[Y]”).  The applicant is the paternal grandmother. The first respondent is the children’s mother.  The second respondent is the children’s father and the paternal grandmother’s son.

3. The paternal grandmother lives in (omitted). The parents live in (omitted), which is about an hour’s distance away. This distance between the parties’ homes contributes to their difficulties, as does their modest financial circumstances.

4. The mother and the father advised that they have recently separated but their position was united until the closing submissions. Before closing submissions it was the parents’ case that the father continues to spend significant time with the mother and children. The parents’ case was that the children should live with the mother and spend time with both parents at the same time. After closing submissions, it was the mother’s case that they should separately spend time with the children. She disclosed family violence for the first time in her closing submissions.

The paternal grandmother’s case

1. The paternal grandmother relies on her trial affidavit filed on 23 February 2018 and the minute of orders sought by her that was handed up during the course of the hearing. It is her case that she has been the primary carer of the children for significant parts of their lives and that she is able to provide them with the stability and support that their parents are unable to provide. She believes the parents are not capable of providing the children with proper care. She worries about the children’s wellbeing when they are with their parents.

2. The paternal grandmother said she was shocked by the Department of Health and Human Services (“DHHS”) decision to reunify the children with the mother, after the DHHS had placed [X] and later [Y] in the paternal grandmother’s care, and that it was wrong. She said she can provide a more stable and settled environment for the children, and meet all their developmental needs and educational needs free from risk.

3. She seeks that the children live in her primary care. She also seeks an order that she have sole parental responsibility for the children.

4. The paternal grandmother says the children are settling in to their school and making friends, and that she volunteers at the canteen.  Counsel for the ICL had spoken to the school principal and indicated that the children were happy. The paternal grandmother said that made her happy to hear that.

5. The paternal grandmother also said that parents have not told her that they had separated recently.

The Mother’s case

1. The mother relied on her affidavit filed on 25 February 2018. The mother seeks orders that are consistent with the family report recommendations. The difficulty with this position is that the recommendations were predicated on the parents being able to demonstrate that they are drug free and reliable.

2. The mother wants the children to live in her primary care. She says that she does not take drugs anymore and is not a risk to the children, and that the paternal grandmother will never accept that she has turned her life around.

3. The mother says the paternal grandmother refused to accept the DHHS’ assessment that the children were safe and were to be returned to her care. She also complains the paternal grandmother does not accept that she is not the children’s mother and will continue to undermine the mother’s parenting whenever she can. She says she will never be able to satisfy the paternal grandmother that the children are safe in her care.

4. The mother acknowledges that the children have a close and loving relationship with the parental grandmother and should spend regular time with her.

5. The mother wants equal shared parental responsibility with the father and for the children to live with her and spend regular time with the grandmother.

6. The mother is reliant on Centrelink benefits.

7. The mother says that she and the father have not told the children that they have separated as they think children have been through enough.

The father’s case

1. The father relied on his affidavit filed on 24 February 2018. The father seeks orders in line with the family report recommendations.

2. The father complains in his affidavit that the paternal grandmother will always believe that he and the mother are unsafe parents regardless of what progress they show and that she will take any up opportunity to attack them for their past mistakes. 

3. The father seeks that the children live with the mother. Like the mother, he acknowledges that the children have a close relationship with the paternal grandmother.

4. Apart from some casual (omitted) work, the father is out of work and reliant on Centrelink benefits.

The Independent Children’s Lawyer’s case

1. The Independent Children’s Lawyer (“the ICL”), whilst expressing concerns about the paternal grandmother’s attitude towards the parents and aspects of her care of the children, submitted that it was in the children’s best interests that they remain living with her given the parents’ failure to comply with the orders and the inability address their own deficiencies.

2. In light of the mother’s disclosures about family violence during her closing submissions, Counsel for the ICL also submitted that there should be orders for the parents to spend time with the children separately from the other parent.

3. The ICL submitted that the parents should only have day time contact with the children.

History of the proceedings

1. These proceedings have a long unfortunate history.  The paternal grandmother filed her initiating application on 17 July 2015 seeking that the children live with her.

2. At the first return date on 21 September 2015, the mother appeared unrepresented. The father was not a party to the proceeding at this stage. I ordered that the paternal grandmother and mother attend a s11F conference. I also made orders for the children to spend time with the paternal grandmother each weekend from after school Friday until 5.00pm Saturday in one week and from after school Friday until before school Monday in the other week.

3. On 20 November 2015, I made orders joining the father to the proceedings as the second respondent and listed the matter for final hearing. On 5 September 2016, I made orders in chambers vacating the final hearing by consent.

4. When the matter next came before me on 15 September 2016 I listed the matter for an interim hearing.

5. I made interim orders by consent on 16 December 2016 varying the spend time with arrangements so that the parents had a full weekend with the children every third weekend and also made orders for the paternal grandmother to spend time with the children during the school holidays.

6. On 24 April 2017, I ordered an updated family report and listed the matter for trial.

7. On 9 October 2017, I adjourned the contravention application filed by the paternal grandmother to the final hearing. The parents did not attend the final hearing on 26 October 2017. The father contacted the Court to say he had to take the mother to hospital so they could not attend Court. I relisted the matter for trial in February 2018 and listed the matter a Mention Hearing on 15 December 2017.

Change in interim living arrangements

1. The paternal grandmother filed an application in a case seeking an interim change of residence. I heard the application on 15 December 2017. The parents had not complied with orders for drug testing. The mother did not attend Court at all and the father attended late. At the time, the father was also facing theft charges which he said was a result of a misunderstanding.

2. The paternal grandmother also filed material in support of her application which showed that [X] missed a concerning number of school days and was late for many others when she was in the care of the mother and the father. Neither parent filed material in response to the paternal grandmother’s interim application.

3. Given the concerns raised by the paternal grandmother and the parents’ ongoing non-compliance with orders for drug testing, I made orders changing the interim living arrangements placing the girls with the paternal grandmother and ordering that the parents spend day time periods only with the girls pending the final hearing.

Parents’ history and history of care arrangements

1. Both parents have a long history of substance abuse and have spent periods of time in prison.

2. The mother has two older children, [A], aged 15, and [B], aged 10, who live with the maternal grandparents pursuant to permanent care orders made by the Children’s Court in 2009. The mother spends regular time with them.

3. The mother told the family report writer that she was incarcerated when [B] was a baby. [B] lived with her in the drug treatment unit at the prison. Both [A] and [B] lived with her after she was released.

4. The mother and the father began their relationship when [B] was about 18 months old.  The mother told the family report writer that she and the father were using heroin regularly at the time. The DHHS became involved, removing [A] and [B] from her care and placing them with her parents.

5. The mother recounted her history to the family report writer saying that she started abusing drugs when she was 15. She says that when she had her second admission to the drug treatment programme at the (omitted) Prison she engaged voluntarily and that made the difference. The mother said she has worked with (omitted) Child and Family Health Services to improve her parenting skills and has attended drug and alcohol counselling. The mother represented herself at the trial and relied on a brief affidavit. She does not refer to having any current supports in place.

6. The mother acknowledged that she bonded better with [Y] than [X].

7. The DHHS removed [X] from the mother’s care after she was born as there were concerns that she was exhibiting signs of withdrawal. [X] was placed with the paternal grandmother by the DHHS.

8. The paternal grandmother says she did not know about the parents’ relationship and had only met the mother once shortly before [X] was born. The paternal grandmother says the DHHS told her about the mother’s drug use. The father was remanded around this time.

9. The paternal grandmother told the family report writer that during this time the parents visited [X] inconsistently and irregularly and continued to use drugs.

10. The mother says in 2013 she had had enough of her lifestyle and turned herself into police. She thought going to prison and entering the drug treatment program there was only option for her. She gave birth to [Y] in prison. [Y] was also placed with the paternal grandmother.

11. In August 2013 the paternal grandmother stopped facilitating time between the girls, their brothers [A] and [B], and the maternal grandparents believing it was not beneficial for them. The DHHS noted that there was animosity between the paternal grandmother and the mother.

12. The mother was released from prison in (omitted) 2013.

13. The DHHS noted that mother was progressing well and implemented a reunification plan which was completed in October 2014. The DHHS closed their case in May 2015. Both the mother and the paternal grandmother reported that their difficulties with each other increased after the DHHS ceased their involvement.

14. The father was released from prison on parole on (omitted) 2015 on the condition that he live with the paternal grandmother. His parole was later revoked.

15. The father did not participate in the first family report interview as he was incarcerated at the time.  The father was released from prison in (omitted) 2016. He moved in with the mother and the children.

16. In his trial affidavit the father says he moved out of the home he shared with the mother after the girls were removed from the mother’s care, pursuant to the Court orders of 15 December 2017, as they were having issues in their relationship.  He says in his trial affidavit that he plans to continue to be there for the girls when they wake up and when they go to bed and that his home is a 5 to 10 minute walk from mother’s home. He says he will be there to support her if she needs it. He says he does not want to rock the boat. He said he has a link to the Commonwealth Court Portal and helped the mother lodge her affidavit.

17. The father also referred to his Court appearances which finalised on 13 February 2018 with respect to charges against him for stealing items from (store omitted).  He says he walked across from (store omitted) into (store omitted) and mistakenly believed he was in the same store.  He says he has been ordered to undergo 30 hours of unpaid community work over a three month period.

1. Exhibit B is the mother’s closing submissions. Some of those submissions raise allegations that the parents’ relationship broke down because of the father’s family violence. As the mother did not raise this during the course of the hearing it was unable to be explored

The family reports

1. There have been two family reports prepared in this matter. The first report was released on 26 May 2016. The father did not participate in that report as he was incarcerated at the time.

2. At the first interview the family report writer recorded that the mother impressed as shy and quietly spoken with signs of vulnerability around particular issues.

3. The mother told the family report writer of her concerns about the paternal grandmother undermining the parents and placing [X] in the middle of the conflict.

4. She told the family report writer that she understands the paternal grandmother does not trust her because of her past, but believes things have worsened between them since the DHHS ceased being involved with the parties.

5. The paternal grandmother talked about the father’s drug use which predated his relationship with the mother and his periods of relapse and being in and out of prison and in and out of touch with her.

6. The paternal grandmother said she is not able to tell if someone is on drugs and has been lied to about it before. She said that one of her concerns is that she does not hear about things directly from the parents but from other sources, such as the DHHS.

7. The paternal grandmother’s attitude has to be seen in the context of both children being placed in her care by the DHHS when they were babies because the parents were not able to provide a safe and nurturing home environment for the children. She has good reason to be wary of the parents, but her actions have gone beyond that and are unhelpful to the children’s development.

8. The comments of the family report writer at [87] and [88] of the second family report are worth setting out in full as they highlight the current concerns and difficulties these children face currently.

   The issues seem to have heightened and the conflict between the parties escalated to such a point that it appears to go beyond confusion for the children and may now be in realm of them exhibiting behaviours that may suggest they are entwined within the conflict to such a degree it is of concern to their ongoing development. Ms Pearlman views herself as providing optimum care for the children and her intentions are to care and love the children.  She does not regard herself as actively undermining the parents care of the children, however, her lack of insight into the impact of the ongoing conflict, complexity in negotiations and her views that her parental style is superior, is likely adding to difficulties for the children.

   The lack of trust and respect between the parties is of concern. Ms Verell and Mr Pearlman are able to acknowledge the love and care Ms Pearlman gives to the children and the benefit that this brings them. Ms Pearlman seems unable to place any trust in the parent’s capacity to care for the children. She is unable to acknowledge their love and care for the children and whilst she regards if her application is successful she would not be restrictive about the time the parent’s spend with the children, she holds little regard for their parenting capacity. This mistrust seems to extend to things such as unwillingness to believe Ms Verell’s instructions over medication given to the children, requests to see originals of birthday party invitations when asked to alter weekend arrangements and continual worry and concern that the children are never safe in their parents care.

9. It was telling that when the above was put to the paternal grandmother she said that that is not true and that she knows the parents love the children as parents do but they do not take responsibility like parents do.

10. When the paternal grandmother was asked if she accepts the parents love, the children she said she did not know what to say and then said that it was 50-50. Later in her evidence she said she accepts that the parents do love the children, but she doesn’t know how much. She also says the children told her they want to stay with her forever. These comments demonstrates the difficulty the paternal grandmother has in saying anything positive about the parents.  The paternal grandmother said that she did not tell the family report writer that she did not acknowledge that the parents love the children. Again that misses the point of what the family report writer was saying. It is concerning that the paternal grandmother could hold that belief. Why would the parents put themselves through the stress and scrutiny of the DHHS involvement and these Court proceedings if they did not love their children?

11. In the evaluation section of the first report, the family report writer recorded that there did not appear to be any current child protection risks. The issues centred on the difficulties in establishing the mother as the primary carer and the lack of any positive and cooperative relationship between the paternal grandmother and the mother.

12. The report writer agreed with the DHHS’ observations that the paternal grandmother could not focus on future or positive changes in the parents. The family report writer thought the paternal grandmother was fixed in her views that the mother may relapse and the children’s lives will be chaotic and unstable if they live with the mother.

13. The family report writer made the following comments at [52] and [53] of the first family report:

    There is little doubt Ms Pearlman loves the children and has provided a safe and nurturing environment for them. The children appear to have a strong relationship attachment to her and as such Ms Pearlman views it as her role to continue to make parenting style decisions for them. Some reported examples are Ms Pearlman wanting to maintain the children in private (hobby omitted) lessons and her view the Doctor [sic] she consulted as offering the correct advice, not the one Ms Verell consulted.  This resulted in [Y] consulting two different Doctors [sic] and differing advice given.  Whilst it is important for the children to maintain an ongoing relationship with Ms Pearlman, especially given the attachment to her in their earlier years, Ms Pearlman’s persistence in the role of primary parent may begin to contribute to additional confusion and difficulty for the children to settle into the current arrangement. At present Ms Verell carries the weekday routines and responsibilities and does not have as much opportunity to further her relationship with the children by experiencing some weekend time. This may assist her to further her bond with the children and further establish her role as the current caregiver.

    Ms Verell is reported to have made significant changes in her life. She presented at interview as determined to maintain these changes, as focussed on her family and with some insight into how these positive changes came about as opposed to previous failed attempts at rehabilitation. Whilst Ms Verell demonstrated good insight and determination to remain drug free and assume responsibility in her life, she did; however, appear at times to display fragilities. As such, she may be minded to consider seeking maintenance type support where she can “check in” monthly or bi-monthly with a supportive counsellor so as she can build greater resilience around these fragilities.

14. The family report writer further commented that the children presented as delightful and well cared for.

15. The mother showed “good insight and determination” to remain drug free and responsible but showed some fragility.

16. The family report writer noted in the first report that [Y] had difficulty separating from the paternal grandmother but that it was normal for transitions to be hard for a 3 year old. It would be easier for the children to manage transitions if the paternal grandmother and mother could interact more positively with each other. She also thought the current living arrangements should remain given the fact that the children have experienced a change in primary residence and attachment once already and everyone appeared to be still adapting to the current arrangements.

17. The family report writer also expressed concern that the arrangements with respect to the father are untested and he was not able to be assessed for the report. She also recommended that the interim arrangements be varied so that the mother have some weekend time with the children. She also recommended that the parties attend a parenting orders program with CatholiCare.

18. The second family report was released on 2 October 2017.

19. At the second report interviews, the family report writer interviewed the parents together. The reporter observed that the mother appeared to have made gains since the first interview, was clearer in her views and better able to express herself.

20. The report writer commented at [77]:

    The parents’ current presentation suggests they are managing ongoing issues in relation to maintaining a drug free lifestyle. Notwithstanding this, the impacts of severed family relationships and maintaining healthy emotional responses to life’s stressors is likely to be a life time task for the parents. The parents should be commended on the efforts they have made and progress they have demonstrated thus far. The parents both report a willingness to engage in support and counselling services to assist them with their ongoing rehabilitation and the re-establishment of their family unit. It is likely that this not only assists the parents in their parenting endeavours but also acts as an additional protective factor.

21. The family report writer observed that the paternal grandmother’s presentation has not changed from previous interviews. She believes that the children need her protection as they did when they were babies and that the parents are unable to meet their needs. The report writer thinks the paternal grandmother’s views will not change.

22. Both parents told the report writer that their drug use was in the past. They said they understood the important role the paternal grandmother had in the children’s lives but that the paternal grandmother undermines their parenting and does not understand her role is as a grandparent not a parent. They said the paternal grandmother will never accept that they have changed and are able to care for the children. They want the paternal grandmother to get counselling so she can better understand her role as grandmother and not as a parent.

23. At the time of writing the second report the family report writer assessed that the children were not at risk in either home. Also at this time there were no concerns about the children’s education.

24. The parents expressed concern that the children do not have a regular bedtime at the paternal grandmother’s home. They also complained that the paternal grandmother encourages the children to behave badly for the parents.

25. They expressed concern that [X] in particular is embroiled in the dispute, tells each of them what they want to hear and tells the paternal grandmother things to get toys and other rewards, and that the paternal grandmother tells both children that they are not allowed to love their parents because they are bad people. The paternal grandmother was dismissive of these complaints.

26. The father expressed frustration with the situation and the ongoing conflict with the paternal grandmother. He said he left home when he was young because the paternal grandmother never regards herself as wrong. He feels she is doing things to make him look bad rather than supporting his rehabilitation. He has had difficulties finding employment since his release from prison.

27. The parents spoke about their difficulties navigating their relationship post prison and being drug free. They talked about the routines that have set up for the children and their concern about a lack of routine in the paternal grandmother’s home.

28. The parents spoke about the support they have of the maternal family. As the maternal grandmother is legally blind, the mother attends her parents’ home several times a week to help her father with housework and to help with her older sons from a previous relationship who are in the care of the maternal grandmother.

29. The mother became upset when speaking about the children’s school as she feels that since the paternal grandmother started volunteering at the school, she has been shunned by some parents and feel shamed and uncomfortable going there.

30. The paternal grandmother presented in the same way as she did at the first interview. She discussed her lack of trust and concern with respect to the parents’ treatment of medical issues and that she felt she has to consult a doctor a number of times.

31. She also expressed concern about the parents not complying with drug tests and that their argument that they could not afford the tests was flawed as if they really wanted the children they would do it. By not complying with the requests for drug screen, the parents have also squandered their opportunity to show to the paternal grandmother and the Court that they have put their drug use and other issues behind them.

32. The paternal grandmother told the family report writer in the second report at [51] that she does not trust the parents as they have deceived her before. She feels that the previous involvement of the DHHS shows the parents are not capable of caring for the children adequately. She says she cannot stop the children calling her ‘mama’ and that the children have been traumatised by being separated from her.

33. The paternal grandmother told the family report writer that the children have told her they want to live with her and she wants them to see a psychologist so they can express their views as even though they are young they should be listened to. She mentioned this several times.

34. The family report writer observed that all the parties remained fixed in their positions.

35. The family report writer recorded some concerning aspects of [X]’s presentation. She opined that [X]’s presentation was suggestive of coaching or being deeply entwined in the conflict.

36. The family report writer recommends that all three engage in therapeutic counselling to assist with communication and their other issues, but it is unlikely to assist whilst the paternal grandmother persists in her view that she does not need assistance and that she does not believe the parents’ problems are in their past.

37. The family report writer’s observations at [85] – [88] of the second family report echo the concerns I had at the hearing:

    The parents seemed to demonstrate insight into the position of [X] within the parties’ conflict. They acknowledged an understanding she was telling them and Ms Pearlman different things. They also seemed to understand that this was placing pressure on her, creating confusion and approached this with sensitivity allowing [X] to tell them these things without fear of retribution or offering any responses as to how she should behave.

    Ms Pearlman seemed to demonstrate little insight into how [X] could be telling her one thing and the parents something different. She emphatically believes [X], says she is not lying to her and interprets [X]’s behaviour of seeming worried or clinging to her as a fear of returning to the parents care. She did not seem to be able to demonstrate understanding of the impact that exposure to conflict may have upon the children, but more so viewed this in terms of the parents restricting her and the children’s rights for them to share a loving relationship where she believes the children’s needs are best met.

    The writer in the Family Report dated 26 May 2016 noted in paragraph 52 “There is little doubt Ms Pearlman loves the children and has provided a safe and nurturing environment for them. The children appear to have a strong relationship attachment to her and as such Ms Pearlman views it as her role to continue to make parenting style decisions for them” and further in the same paragraph; “Whilst it is important for the children to maintain an ongoing relationship with Ms Pearlman, especially given the attachment to her in their earlier years, Ms Pearlman’s persistence in the role of primary parent may begin to contribute to additional confusion and difficulty for the children to settle into the current arrangement”.  The writer’s views remained unchanged in relation to this issue.

    The issues seem to have heightened and the conflict between the parties escalated to such a point that it appears to go beyond confusion for the children and may now be in realm of them exhibiting behaviours that may suggest they are entwined within the conflict to such a degree it is of concern to their ongoing development. Ms Pearlman views herself as providing optimum care for the children and her intentions are to care and love the children.  She does not regard herself as actively undermining the parents care of the children, however, her lack of insight into the impact of the ongoing conflict, complexity in negotiations and her views that her parental style is superior, is likely adding to difficulties for the children.

    The lack of trust and respect between the parties is of concern. Ms Verell and Mr Pearlman are able to acknowledge the love and care Ms Pearlman gives to the children and the benefit that this brings them. Ms Pearlman seems unable to place any trust in the parent’s capacity to care for the children. She is unable to acknowledge their love and care for the children and whilst she regards if her application is successful she would not be restrictive about the time the parent’s spend with the children, she holds little regard for their parenting capacity. This mistrust seems to extend to things such as unwillingness to believe Ms Verell’s instructions over medication given to the children, requests to see originals of birthday party invitations when asked to alter weekend arrangements and continual worry and concern that the children are never safe in their parents care.

38. The family report writer concluded that there is little prospect of the parties’ relationships improving. Given the distance and the fixed views she did not think that any shared parenting or shared care arrangements would work.

39. It is important to note that the family report writer’s recommendations that the children live with the parents and that they share parental responsibility was subject to the parents providing drug screens and the ICL obtaining collateral information from the children’s schools and medical practitioners. Unfortunately the parents did not provide clear drug screens and the information from the school is concerning. The tests are expensive for those on low incomes, as are drugs. The parents acknowledge their serious drug history.

The paternal grandmother’s concerns

Parents’ non-compliance with orders for drug testing

1. Order 1 of the consent orders made on 24 April 2017 required the parents to undertake supervised drug screens at the ICL’s request, with such request not being made more than once a month.

2. Neither parent complied with this order despite being aware of its importance.

3. At [34] of the second family report the family report writer records that the paternal grandmother was concerned that the parents’ erratic and inconsistent behaviour was consistent with their using drugs again and that she does not know how to identify signs of drug use. The paternal grandmother says she does not trust them not to use drugs again.

4. When told by the family report writer that the mother was willing to continue drug tests if the paternal grandmother paid for them, the paternal grandmother replied that if the mother could afford cigarettes she could afford to pay for the drug tests.

5. The mother conceded that she has not complied with the ICL’s requests for drug screens.  She further conceded that she had told the family report writer she would comply.

6. The mother denied having spent money on a car which she could have spent on drug screens. She said her father bought a Holden (omitted) for her to drive and he also paid $450 for drug screens. The mother does not drive as she does not have a drivers licence and has relied on the father to transport her and the children.

1. The mother said she completed her first drug screen on the day she swore her affidavit and that she would complete another one before the end of the hearing in order to have results to show the Court. She annexed a drug screen dated 23 February 2018 to her affidavit but it does not indicate whether or not that was a supervised drug screen. The mother did not tender any drug screen test results during the course of the hearing. The mother also referred to this in her written closing submissions, saying she would get a drug screen daily if required.

2. The mother told the family report writer during the first report interviews that when she entered the drug program at the prison for the second time, she willingly engaged with the program and worked hard and has continued to work hard on her rehabilitation, repairing her relationship with her family and being a mother.

3. The family report writer said the following at [32] of the second report:

   The parents have not given cogent explanations for not doing the drug tests. They have been on notice for many months of the importance of doing these tests given their history. There is a cost to these tests, but given their importance it is something the parents could have and should have made a priority.

4. The parents told the family report writer that they had only received a request from the ICL for a drug test on 4 September 2017. They claimed there were problems with their contact details. The family report writer asked them to contact the ICL to ensure he had their correct details and they told her they did that. The father agreed that he wrote an email to the ICL on 6 September 2017 confirming their contact details and stating that they would comply with drug screen requests.

5. The parents have been on notice for many months, both via the family reports and the many court appearances, that whether or not they continue to use drugs remained a real issue of concern. It is not a matter of historical interest only. Despite this, the parents failed to address this issue.

[X]’s school attendance

1. There was evidence about [X]’s absences from school in 2017 as follows:

   ·In term one she missed three days. 

   ·In term two she missed 5 ½ days. 

   ·In term three she missed nine days. 

   ·In term four she missed 14 days. 

   ·The school also recorded that in October, November and December she was late or absent most days. 

2. The mother was cross examined about these absences. When these were put to the mother she said that she was not doing pickup and drop offs and the school did not contact her.

3. The mother said she had ongoing medical issues with her leg which meant she was in pain, could not walk properly, and was at times bedridden. She said on most days she would sleep for most of the day. The mother annexes to her affidavit copies of prescriptions of Oxycodone and codeine tablets prescribed to her in September and October 2017. She said the father had to attend to the children’s needs, including the school pickups and drop offs. She says she regrets putting that pressure on the father because he had not been in that position before. She says she did not know about [X]’s poor school attendance at the time. The mother also said that during this period she and the father let their personal issues escalate.

4. Counsel for the ICL suggested to the mother that in term four [X] missed 14 days of school so the mother would have had to have been sleeping all day to have not noticed that [X] was not at school.  The mother then said that she was not always at home as a couple of times a week she attends her parents’ home to assist them with housework as the maternal grandmother is legally blind.

5. Counsel for the ICL also suggested to the mother that either she knew about the poor school attendance or if she did not know, it was because she was out of it on painkillers or drugs. The mother denied this.  The mother said she was only taking the medication at night and was not waking up at her normal time. In her closing submission the mother repeated that she was under doctor’s orders to not place any pressure on her leg and to take OxyContin and Panadeine Forte to treat the chronic pain. The mother says she has a prescription for painkillers and that she now only takes OxyContin at night one or two nights a week and that she only takes Panadeine Forte perhaps once or twice a month.

6. She says that she was not aware of [X]’s poor attendance record and was not in a position to do anything about it. The fact is that while in the parents’ care over a period of several months, [X]’s school attendance impacted on her school progress and her mood and demeanour also changed.  This is concerning. The mother’s evidence was inconsistent, as were her closing submissions, on this point.

7. The father was also cross-examined about [X]’s school attendance.  He said on number of occasions she was ill, so he would take her on errands such as shopping, paying bills, general household chores and returning library books.  He said on some occasions she was out with him and on other occasions she was at home.  He was asked what kind of illnesses she had and he replied that they were temperatures and upset stomachs.  He claims he was in constant communication with the school. The father’s evidence on this point contradicts the mother’s evidence. The father’s evidence about the reasons for [X]’s school absences lacked credibility.

8. The school principal wrote a letter on 13 December 2017 in which she said that there were significant increases in absences and lateness during the year which the principal and class teacher were concerned about. [X]’s instances of attending late greatly increased in the last part of the year. In October, November and December 2017 there was hardly a day where she was not late or absent. [X]’s class teacher spoke to the father on a number of occasions about it. The father gave excuses that the car had broken down or that someone was sick.

9. Counsel for the ICL put the contents of the letter to the father school records to the father. The father said this did not happen all the time and maybe happened once.

10. The father said it has been difficult for him as he is learning to be a parent.  He claimed to be in regular contact with the principal. The father’s evidence about this was not credible. Clearly both parents are responsible for [X]’s appalling school attendance which regrettably impacted on her progress at school. Regular school attendance is very important for children. Attending on time is also important as being late is embarrassing as it draws attention to the child.

11. The parents’ explanations for [X]’s absences simply do not make sense.  If [X] was ill with temperatures and stomach upsets she would have been too unwell to be attending various errands with the father.  It is more likely that the father was unable to get [X] to school on time and on many days did not take her at all. It is consistent with his unreliability with respect to Court events.

12. The mother’s evidence is also not credible as she was either so unwell she had no idea what was going on in the household as she was bedridden and on heavy medication or she was well enough to be attending her parents’ home and assisting them a couple times a week.  It is also not credible that the school would not have kept a record of the absences being excused absences if the school had been informed of [X]’s absences as the father claims.

13. The father was also cross-examined the concerns of the school principal about [X]’s change in demeanour at school, which she had included in her letter of 13 December 2017.  The principal said she had spoken to [X]’s class teacher. He had noticed a real change in her demeanour. In the first half of the year she was bubbly and outgoing with friends. In the second half of the year she became withdrawn and less social. He thought something was going on at home but did not know what. The principal noted they had hardly had any interaction with the mother. [X] had also fallen behind, particularly her writing, and generally her progress was badly affected by her non-attendance.

14. Counsel for the ICL also suggested to the father that the school indicated they had little interaction with the mother and that [X]’s progress was being badly affected by her frequent absences and late attendances. The father said that sometimes the mother was at home and at other times she was at her parents’ home. He said that the arguments between himself and the mother were not all screaming matches. Sometimes it was silent treatment. In the morning the mother would be in bed. He said if they were not talking he would not know if she was awake or not.  He said that sometimes the mother was home and so knew [X] was not at school.

15. The mother was also cross-examined about the school reports. It was put to her that the school noted that [X] used to be bubbly but in the second half year she was more reserved and less social, and the principal was concerned that something may be going on.  When this was put to the mother in cross-examination, she said that maybe [X] had picked up on tensions between herself and the father.

16. Counsel for the ICL suggested to the mother that girls picking up on the conflict between parents and family violence was to blame for the changes in [X]’s demeanour.  The mother agreed that was probably the case.

Parents’ unreliability spending time with the children

1. The paternal grandmother complains in her most recent affidavit that the parents are unreliable about visiting children and often turn up very late or do not turn up at all.  She says that children get upset if she has to comfort them and that when the parents either do not come or are late it is distressing for the children and her.  She says when the children realise that their parents are not coming they act like they do not care because they are upset.  The paternal grandmother also says that parents have only called twice since the orders were made on 15 December 2017.

2. The mother refutes the paternal grandmother’s complaints in her affidavit and says that whilst they have been late a couple of times they have not been hours late and there have not been occasions when they have not attended all.

3. The mother conceded that she did not have an independent recollection of 17 December 2017 when the grandmother said the parents were 90 minutes late.

4. The mother denied that they arrived on Christmas Eve at 3.00pm instead of 10.00am and said they have never been that late. She was asked to concede that given she did not keep notes the paternal grandmother’s recollection was likely to be more accurate. The father said that the latest they would have been on that day was midday.

5. The father said he could not recall being three hours late on 7 January 2018.  The Father agreed he text the paternal grandmother asking if he could take the girls to the swimming pool.  He said they never got a chance to take girls there because there was a special event booked there.  He says he was very disappointed about it.  His version of this inconsistent with the mother’s version who said they never said they were going to the pool that day as there was a special event on which meant they could not take the children.

6. In her trial affidavit the paternal grandmother said that the parents did not collect the children as arranged on Thursday 11 January 2018 and that the children were disappointed as their parents had promised to take them to the (omitted) theme park (“(omitted)”).  She said that the children asked her if she could take them another time and she told them that she would as she did not want them to be disappointed.

7. The paternal grandmother says that the parents had asked if they could have the children on 11 January instead of on Sunday 14 January because they thought it would be cheaper to take the girls to (omitted) on a Thursday.

8. When the mother was asked about this said that she never discussed taking the girls to (omitted) with the children and that it may have been the father.  The father said he thinks he mentioned he was thinking about taking them to the theme park. He denied texting the grandmother about booking tickets.  The father was shown his text message where he was asking for confirmation from the paternal grandmother as he was about to buy tickets online.  The father said he was going to buy tickets to (omitted) as there was a special show.  He was then shown a text where he said that he forgot that they were going to go to (omitted).  When faced with the text, he said he must have sent it.  He agreed the girls were excited.  He said he did not take them because he was ill and that [B] had missed out as well. Again his evidence was inconsistent.

9. When it was put to the father that the reason given to the paternal grandmother that the parents had not been able to collect the children had been that a friend of the father’s passed away, he said that a friend did pass away in a car accident as well.  He said he had called the paternal grandmother at the time and asked for extra time with the girls and had also asked to borrow five dollars petrol money as he had a problem with his Centrelink payments and hadn’t received them.

10. The series of text messages between the father and the paternal grandmother were tendered as Exhibit A. They support the paternal grandmother’s version of events. The parents did request a swap of arrangements so that they would see the children on Thursday 11 January 2018 instead of Sunday 14 January 2018. After they did not arrive, the paternal grandmother messaged them about having their time on the Sunday and messaged them at 11.40am noting they had not arrived yet. The father said he was sick and does not recall seeing the messages on his phone.

11. After arranging for the parents to attend on Sunday 14 January 2018 as they had missed the Thursday visit, the paternal grandmother said that on Sunday the parents did not collect children at 10.00am as they were supposed to.  She says they called her at 1:05pm telling her that they were still at the funeral and would be leaving soon.  She complains that the parents could have let her know in advance.  She says the parents did not arrive until 3.58pm just two minutes before this time was due to end.  She agreed to let parents take the children provided they returned them at 6.00pm.  She says the parents returned the children at 6:37pm.  The paternal grandmother says she keeps a diary of these issues.

12. The paternal grandmother says the parents were due to have the children on Thursday (omitted) 2018 for [Y]’s birthday.  She says the parents were an hour late collecting the children and asked if they could have the children for extra time. The paternal grandmother says she agreed that they could have the children until 6.00pm.  She says at 6:30pm the parents rang to say they had only just gotten home with cake.  The paternal grandmother says she told the parents they needed to return the children by 8:30pm.  She says at 8:56pm she received a text saying they were only leaving then.

13. The paternal grandmother says she was very concerned when parents had not returned the children by 10:30pm so she called the police.  She said the parents finally returned to the children to her at 11:30pm.

14. The father was also cross-examined about a text he sent the paternal grandmother saying he would pick up [X] for her birthday from school between 3.15pm and 3.30pm.  The father claims that the paternal grandmother told him that she has to attend with him at the school. The father said he thought about it and thought it would be embarrassing for [X]. The father claims he rang the paternal grandmother and told her he would meet her at home instead.

15. The father denied that they have been as late as the paternal grandmother alleges. He said they were sometimes late and they communicated frequently.  He said he did not write down times but that they were maybe half an hour late but not an hour late.

16. The father conceded during cross-examination that he was aware that there were two things he and the mother had to do which were:

    1) drug screens; and

    2) turn up on time when collecting the children and for Court events.

    They have done neither of those things.  It was most concerning that the father could not turn up on time for the final hearing despite knowing how it important it was.  Late last year he was 90 minutes late for a Court hearing. He was an hour late for the first day of the final hearing. Counsel for the ICL put to him that the concern was either he cannot get himself organised or has taken drugs. He was also over an hour late for the final day of the hearing even after all of this. He could give not coherent explanation for his lateness on this last day of hearing.

17. The ICL put to the mother that the paternal grandmother recorded specific dates and times when she and the father had turned up late. The mother says she did not write anything down and that they were only late a couple of times. 

18. The paternal grandmother complains the parents do not telephone the children, despite orders permitting them to do so. The mother agreed that they did not telephone the children in accordance with the orders as when they tried the paternal grandmother did not encourage the children to speak with their parents, so they stopped trying.

19. With respect to this issue I prefer the grandmother’s evidence to that of the parents. She kept records at the time. Exhibit A supports the grandmother’s version of events. The parents’ evidence was vague and, at times, contradictory.

20. The father agreed with Counsel for the ICL’s proposition that reliability and predictability is important for the children and that it would be upsetting for them when the parents are late or do not show up to spend time with the children .

21. The children have had a lot of changes in their lives and the unpredictability is a further stressor for them. Predictability and reliability are particularly important for the girls

The parents’ complaints about the paternal grandmother

1. The parents’ main complaints about the paternal grandmother are that she undermines their role as parents and does not appreciate that she is the children’s grandmother and not their mother. The parents raised both these issues with the family report writer.

Allegations that the paternal grandmother encourages the children to refer to her as their mother

1. During the first family report interview the paternal grandmother told the family report writer that she regards her relationship with the children as being a parent child relationship.  She said that the girls call her mummy but she claimed to encourage the children to call the mother ‘mummy’ and herself ‘(omitted)’.  The family report writer recorded that throughout the interview the paternal grandmother referred to the children as “my girls” and only corrected herself during the end of the interview.

2. The paternal grandmother was cross-examined about this.  The father cross-examined the paternal grandmother about [22(a)] of his trial affidavit wherein he said that when he returned the girls to the paternal grandmother on 15 January 2017 he heard the girls call the paternal grandmother ‘mum’ and waited to see how the paternal grandmother would respond.  Observing that the paternal grandmother did not say anything to the girls, the father raised it with her.  He says that the paternal grandmother was adamant that she did not have to discourage the girls from calling her ‘mum’ and would encourage it.  The paternal grandmother denied his version of events. The father referred to there being an order restraining the paternal grandmother from allowing the girls to refer to her as their mother, but upon review of the Court file it is apparent that no such Order exists.

3. In response, the paternal grandmother gave evidence that she does not encourage the children to call her ‘mummy’ and told them to call her ‘(omitted)’. She says the children tell her “no you’re mummy”. The paternal grandmother’s further comment was telling, she said that she feels the children are comfortable calling her ‘mummy (omitted)’. She said when she raised the issue with the children they become stressed so she does not raise it. When talking about the children and parents I found it significant that the paternal grandmother referred to the mother as ‘mummy Ms Verell’. That would not be necessary if the paternal grandmother was clear with the children that they have one mum and one dad. My impression is that she does encourage the children to call her ‘mummy’ as that is how she sees herself and that is the role that she wants to have. This is confusing and unhelpful for the children. 

1. Counsel for the ICL asked the paternal grandmother what her understanding was of how her role as grandmother was different to the role of a mother.  Her answer was telling.  She said that the way she sees her role as grandmother is the same as her role raising her own children. It is about bonding and connection. The paternal grandmother’s lack of sensitivity and insight is concerning. Whatever the parents’ faults may be, the children only have one mother and father.

The paternal grandmother undermining the parents

1. It is concerning that the paternal grandmother has undermined the parents with respect to medical issues. The parents complain that the paternal grandmother ignores their instructions and takes the children to her own doctor for a second opinion.

2. This was an issue that canvassed in the first family report. Order 14 of the Orders made on 16 December 2016 provided that the children only to be treated by Dr P.

3. The family report writer noted that the children’s medical needs was an ongoing issue among the parties. The mother expressed concern to the family report writer that the paternal grandmother took the children to an emergency department for a cough. The paternal grandmother continues to believe that the parents do not care for the children’s medical needs appropriately. The paternal grandmother said once the mother sent the children to her with medication that was not prescribed by Dr P, so she queried it with her own doctor.

4. The parents’ evidence is that one of the children was ill and had been prescribed the common antibiotic Amoxil.  They said they provided it to the paternal grandmother with the medication in its packaging. It is common knowledge that pharmacists dispense medication with labels that include the name of the patient and instructions as to the dosage and when and how frequently it is to be taken. Both the parents and the Counsel for the ICL cross-examined the paternal grandmother about her actions in taking girls to her own doctor in breach of Court orders. 

5. The paternal grandmother’s evidence was most concerning. The grandmother said that the orders say “except in case of emergency”.  She said every time she sees the girls and one of them is unwell she feels that it is an emergency and that she has a duty of care as their grandmother.

6. She complained that parents did not provide her with a medical certificate and that for the children’s safety, as she knows nothing about medications, she had to take them to her own doctor. She says the doctor then told her that the dosage was too strong. The paternal grandmother sought to further justify her position saying that the child did not look ill. Again, it is common knowledge that when a person is prescribed antibiotics is necessary to complete the course of antibiotics, even when the patient is feeling better, in order for the antibiotics to be effective. She claims that she always provides the parents with a medical certificate when she has taken the children to the doctor to put them at ease.

7. Counsel for the ICL asked paternal grandmother if she was seriously suggesting that the parents would give girls inappropriate medication and take them to a doctor unnecessarily if they were not ill. The grandmother’s responses to these questions were discursive and concerning. It was clear from her answers that she does not trust the parents to take the children to doctors when appropriate, to give them the right medication, and to act responsibly. She is suspicious of anything the parents do.

8. Taking the children to her own doctor and questioning the parents’ doctor’s diagnosis and treatment sends concerning message to the children that their parents cannot be trusted to exercise judgment to look after them and also sends a clear message to the parents that they cannot be trusted. The paternal grandmother’s evidence is concerning. Her reaction borders on the irrational. The incidents that the paternal grandmother refers to fall well short of an emergency.

9. The parents also expressed concerns that the paternal grandmother has been coaching the girls to undermine them. The father his concerns put to the paternal grandmother, set out in [24] of his trial affidavit, that [X] has told them that the grandmother does so.  He put to her that she tells the girls to misbehave for the parents and tell the girls that they should not love their parents as they are bad people.  The paternal grandmother denied these allegations. She said the girls are young and do not need to know about these things.  She said that she would not encourage the girls to misbehave.  She also denied telling the girls that their parents are bad people. Having heard the paternal grandmother give evidence, I think the girls would be aware that the paternal grandmother does not think their parents are safe.

10. Counsel for the ICL asked her if she thought the parents did a reasonable job last year up until [X]’s school attendance dropped off.  Tellingly the paternal grandmother answered that she did not know as she only saw them once a fortnight.

11. It is also concerning that the paternal grandmother showed no insight into the fact that children in the middle of such entrenched conflict, as these children have experienced all of their lives, has a long-term detrimental impact on their development and emotional welfare. Children in this position will tell the adults that they love what they want to hear. This does not mean that children are lying but that they are keen to please the important adults in their lives. It is important to the adults to understand this and not simply take everything they are told at face value and act on it. I think the paternal grandmother needs professional assistance in this regard.

12. Unless the paternal grandmother is able to adjust her thinking and attitude, this could have a long term impact on the children’s emotional wellbeing and ability to trust adults.

Allegations that the paternal grandmother fails to encourage the girls’ appropriate development

1. The father also cross-examined the paternal grandmother about continuing to give the girls dummies and milk in bottles despite the parents asking her to stop doing so.  Initially, the paternal grandmother replied saying that she does not give the children dummies or bottles.  This answer was disingenuous as she then said that she does not give [Y] a dummy but rather she had simply forgotten and just leaves it in the fridge and [Y] gets it for herself.  She also said that [Y] only uses the dummy now if she needs it for security and comfort. Her evidence was unclear as to whether or not both girls take dummies or bottles.

2. The paternal grandmother was not forthcoming in her answers to the ICL with respect to giving the girls dummies and bottles.  When she was asked whether she thought was acceptable to give a five-year-old dummy, she said all children are at different stages.  When pressed she conceded that the last time the girls had had a bottle was on the weekend that had just passed.  She also conceded that the parents had raised their concerns about this with her and despite the parents’ concerns she had continued to do it. This also underlines her disregard for the parents.

3. It was most concerning that the paternal grandmother still allows the youngest child to have dummies and bottles of milk.  The paternal grandmother says she was reliant on advice from a nurse not to make a fuss of [Y] using a dummy. What she failed to say, and what became clear when she was pressed, was that this advice was given over three years ago when [Y] was only 18 months old. The paternal grandmother showed no appreciation of the fact that it is developmentally inappropriate for a five year old attending prep to use dummies and take bottles. If [Y] was to mention this to her new friends at school, it is likely that she would be teased and would be embarrassed. It is concerning that the grandmother saw nothing wrong with this behaviour. I do not accept her evidence that she did not encourage this.

Sleeping arrangements for the girls

1. It is also apparent from the evidence that the paternal grandmother does not encourage the children to sleep in their own beds in their own room, and that several times a week the children sleep in her bed with her. The paternal grandmother said that she has two double beds in her room pushed together. That is encouraging and inviting the girls to sleep with her. The concerning aspect about this is that she is not encouraging the children to individuate. Conversely, she is encouraging the children to engage in clingy behaviour. I do not think that she is doing this deliberately, but clearly has no insight or appreciation as to how unhelpful this is to the children’s development.

2. The grandmother gave inconsistent evidence about the girls’ sleeping arrangements.  She said she has two double beds pushed together in her bedroom and that there are two single beds in the girls’ bedroom.  She said that she sees no problem with the girls sleeping in her room with her for comfort but she then agreed that it was better for the girls to sleep in their own rooms and claimed that the girls do sleep in their own room.  She said that the girls sleep in her bed two or three times a week.

3. I have no doubt that the children have been insecure and are clingy and that they have had difficulties in adjusting to the many changes that they have been subjected to since birth, but the grandmother does the children a disservice by tacitly approving and encouraging this behaviour rather than encouraging them to feel secure and to individuate.

Impact of the conflict on the children and the paternal grandmother’s attitude towards the parents

1. It is clear that the paternal grandmother feels free to disregard anything the parents suggest. When the father put to the paternal grandmother that she had been asked not to let the children sleep with her but still does, the paternal grandmother answered that the children were obviously unhappy at their parents’ home. These children are not free to express happiness about their parents’ home. They would be painfully aware that the paternal grandmother does not like the parents and does not regard the children as safe with them.

2. The father put to the paternal grandmother that he and the mother are trying to encourage the girls to be independent. The paternal grandmother was dismissive of this and says that the children may be unsettled at their home but were settled at her home.

3. The father also cross-examined the paternal grandmother about allowing the paternal grandmother’s brother to stay with them even though he is a drug user.  The grandmother said he had not stayed with them at her house. She was dismissive of the parents’ concerns and conveyed a sense of entitlement with respect to making whatever arrangements for the children that she liked, regardless of the parents views or concerns. The mother also cross-examined the paternal grandmother about her brother. She denied knowing much about his past and said that he is not a risk.  She then said she has a big family and she is responsible for all of them.

4. At [30] of the second family report the family report writer records the parents’ concerns that [X] in particular has become embroiled in the conflict amongst the adults and is exhibiting concerning behaviour.  They express the view that she tells them one thing and the grandmother another that she tells the grandmother things in order to get toys and other awards.  At [31] of the second family report the family report writer records that the paternal grandmother also dismissed the parents’ concerns and said that [X] does not lie to her and that [X] has told her she wants to live with her and her wishes should be listened to and respected.

5. Counsel for the ICL asked the paternal grandmother if she thought it was possible that the girls tell her one thing and tell the parents something else.  The paternal grandmother did not believe that was possible and she accepts that everything the children tell her is true.  She said “I do not know about that” and that she has faith in what children tell her.  The mother also suggested to the paternal grandmother that the children play their parents and the paternal grandmother off against one another. The paternal grandmother showed a lack of insight when she said she accepts what the children say at face value.  When I asked the grandmother if she thought the children loved their parents she said “I think they do but I don’t know how well.” This is very telling. The grandmother was dismissive of those concerns both when raised by the family report writer and when cross-examined by counsel for the ICL.

6. The paternal grandmother would not acknowledge that children know that she does not think they are safe in their parents’ care. The paternal grandmother simply said she does not know if the children know that.  She then said that there is no negativity from her. The paternal grandmother also shows a lack of insight and understanding to the children’s developmental needs and the difficult position they are in and the conflicting loyalties they must feel. The children could not help but be aware of the strained relationship amongst the adults and the fact the paternal grandmother worries about the children when they are with the parents.

7. When it was put to the paternal grandmother that the children would not feel comfortable telling her that they had a good time with their parents, she said that she encourages the children to have a good time.  She missed the point of the question. 

8. I also asked the paternal grandmother what parents would have to do to satisfy her that the children are safe in the parents’ care. She replied that the parents have been using drugs and been late so many times, which is disappointing for the children. It is clear from paternal grandmother’s evidence that she cannot conceive of the situation where she would have confidence in the parents.

9. It is the parents’ complaint that the paternal grandmother always refers back to the past and will not look forward. Whilst that is certainly true what the parents do not appreciate is that it is not simply a matter of their past being in the past. A line is not able to be drawn in the sand because they have not done what they needed to do to show that their drug use and other issues are historical and that there is no current drug use. It needs to go further and they need to show a pattern over time of not using drugs and of being reliable in spending time with the children, as well being able to get them to school and all of those other things. They showed no insight into the need of being able to present that evidence to the Court.

The parties’ communication

1. The paternal grandmother told the family report writer about difficulties with communication with the parents when negotiating variations to the spend time arrangements due to travel between parties homes. 

2. The paternal grandmother complained that communication with the mother is difficult as the mother wants things her own way and that the mother does not greet her warmly at handovers.  The paternal grandmother did not think counselling would assist as she did not consider that she had a problem.  That comment is telling in this another example of grandmother’s lack of insight.

3. The mother says she does not communicate with the paternal grandmother directly at all.  She said she could not recall if they asked to change the dates from the Sunday to Thursday.  The mother says she lets the father communicate with the paternal grandmother.  Now that the parents are separated the mother is going to have to communicate the paternal grandmother directly.

4. The mother says she and the grandmother have been able to communicate in the past and that she has given the paternal grandmother the girls’ school reports.

5. The paternal grandmother said she saw a psychologist after the first family report but says the psychologist told her she does not have any problems. She believes it is the parents who need help as they are drug users and they need help with their communication. This rigidity of thinking and lack of insight by the paternal grandmother was evident at the hearing.

6. In order to assist with improving the communication between the parents and the paternal grandmother, I will order that they attend a Parenting Orders Program for the purposes of family counselling to assist them.

Cross examination of the family consultant

1. The family report writer was cross-examined. She had read the recent affidavits of the parties prior to this.

2. Counsel for the ICL put [X]’s poor school attendance to her, as well as the principal and class teacher’s concerns that [X] had become more withdrawn. The family report writer said she observed [X] to be more withdrawn the second time she saw her as well.

3. She said it was unfortunate that the parents were not able to maintain consistency and reliability for the children. The children have been through a lot of changes and disruptions in their lives. If this continues it is likely to cause difficulties in their development.

4. Another concern that Counsel for the ICL put to the family report writer was the mother’s use of painkillers. The family report writer said again it was of concern that the mother was not able to attend to the children’s needs if she was sleeping till noon.

5. The family report writer also expressed concern about the parents failing to provide a single clean supervised drug screen as their drug history is a vulnerability for them.  She said if she had been aware of this updated information at the time she may have changed her recommendations. The lack of drug screens and the fact that the parents have been unable to maintain reliability is of concern.

6. None of the things she recommended in [93] of her second report have come to pass.

   It is respectfully recommended subject to the parents providing clean drug urinalysis testing results and collateral information obtained by the ICL from the children’s schools and medical practitioners that indicates the parents are maintaining stability and consistency in their parenting of the children…

7. The family report writer thought that 6 months was a long time to require drug screens and that it might entrench some of the issues further. The difficulty is that the parents have had the opportunity to do this whilst the proceedings were on foot. She acknowledges that it was a dilemma for the Court in balancing the issues. She acknowledged that the mother taking OxyContin is also a risk issue in terms of the strength of the medication and the impact on the mother’s ability to care for the children at night.

8. The mother also asked the family report writer about drug tests. She said that if the mother had been able to produce drug tests earlier over a period of time then her recommendations would be the same.

9. The family report writer expressed concerns about the paternal grandmother having sole parental responsibility if the children remain with the grandmother as she is concerned that the parents would be pushed out of the children’s lives. Several times during the hearing also I expressed this concern. The paternal grandmother clearly wants to be the children’s parent to the exclusion of their actual parents.

10. The family report writer said it was unfortunate that the parents had not contacted the children’s school and said they may have thought they were unable to. The parents could have contacted the ICL if they were unsure.

11. The mother said she did not go to the children’s first day at their new school because she did not think the father and mother were allowed to go. She conceded that she has not contacted the principal of the school.

12. The father has not made contact with [X]’s new school. He said he has not interfered and would have to go through his mother. It shows that he as a parent not taking any proactive steps.

13. The father asked the family report writer if it would make a difference if he was not with the mother anymore and she had primary care. She replied that it would be difficult now for her to give an opinion given the passage of time without a further assessment.

1. The family report writer expressed the view that the paternal grandmother needs assistance to encourage the children to sleep in their own beds and to stop using dummies and bottles as sources of comfort.

2. The family report writer agreed that the issues with respect to dummies and bottles is a problem with boundary setting. A concern is that if the paternal grandmother has sole care she will continue to undermine any relationship the children have with their parents. The children have stability with their grandmother but they also need stability in their relationships and with their attachment figures. It can impact negatively on their development when relationships with people who have been their caregivers are severed. It can impact on their ability to form relationships in the future.

3. The family repot writer observed was some clinginess in the children. The paternal grandmother did not encourage it necessarily but saw it as the children just loving her dearly rather than having insight to recognise that the adults need to encourage the children to transition between the adults.

4. She thinks the Parenting Orders program could assist the paternal grandmother with these issues. The difficulty will be her willingness to engage with such a program.

5. She also agreed that before moving to overnights the parents would need to demonstrate being able to attend reliability for contact on time.

Overseas travel

1. The paternal grandmother wants to take the children to (country omitted), her home country, for a holiday. The paternal grandmother’s Counsel pointed out that this issue was not canvassed by the parties at the trial so her evidence was not challenged.  Whilst this is true, it must be borne in mind that parents were self-represented and that the issues of risk were the main focus of trial.  Before making orders for overseas travel, I must be satisfied that those orders are in children’s best interests.

2. The family report writer explored this issue. The mother does not trust that the paternal grandmother would return with the children.

3. I am not satisfied that it is in children’s best interests to make an order permitting them to travel at this stage.  It is important that children given the opportunity to settle into the current arrangement. Both parents and the paternal grandmother have much work to do to improve the situation for children before consideration is given to overseas travel. The Parenting Orders Program will assist the parties with improving their situation.

Legal Principles and their application to children’s issues

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.

3. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.  There are no issues of family violence in this case.

9. Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.

11. For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.

12. In MRR v GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time.

13. I share the concerns the family report writer expressed about giving the paternal grandmother sole parental responsibility. The concerning issue is the exclusion of the parents by the paternal grandmother. It is hard to see what can be done to ensure the parents are able to participate in decision making for the children because of the level of distrust the paternal grandmother has for the parents. Due to these concerns I am going to order that the parents and the paternal grandmother share parental responsibility. It is important that the paternal grandmother realise that the parents have an important and valuable role to play in the children’s lives. I am mindful that the parties do not trust one another and are not currently able to communicate constructively about major issues. As I have indicated earlier in these reasons, it is because of these concerns that I am going order that the parties attend a Parenting Orders Program recommended by the ICL.  I will also order that the ICL provide a copy of these reasons and the family reports to the Parenting Orders Program provider.

14. Having made an order for equal shared parental responsibility I must consider the provisions with respect to 65DAA(5).  The distance between the parties’ homes and the parties limited financial means. Of greater significance is the fact that the parents have not demonstrated that they have remained drug free and were not able to ensure [X]’s consistent school attendance. It is for these reasons that both the ICL and the grandmother submitted that day time only time between the parents and children was appropriate.  The other issue of concern is the parent’s inability to consistently exercise the limited time they have had with the children since December 2017.

15. The children are too young to express views that show a mature understanding of the situation they face. They clearly love the paternal grandmother and both their parents. Currently the paternal grandmother is able to provide a stable environment for the children, which their parents cannot.

16. A concerning development in the hearing occurred during closing submissions. The mother was understandably distraught. She prepared written submissions which I allowed her to tender rather than read out.

17. In that submission she refers to the breakdown of her relationship with the father. She refers to being subjected to family violence. As these issues were only raised in closing submissions they were not explored in evidence. As a result of this, the ICL raised the possibility of interim orders being made and the proceedings adjourned. In my view, it would not be in these children’s best interests, and would not assist the parties, to have these proceedings to continue to be on foot. The final hearing has previously been adjourned. There have been two family reports and the parents have been given ample opportunity to address the concerns of the Court.

18. At the end of the hearing before reserving judgment, I made interim orders providing for the parents individually to have day time periods with the children. The orders also provide for the parent’s time to be cancelled for that day if they are more than 30 minutes late. This is to avoid the problem of the children being disappointed and waiting for hours not knowing if their parents are going to attend.

19. I have addressed the issue of the parents and paternal grandmother’s capacity to provide for the children’s physical, emotional and intellectual needs elsewhere. All three have their limitations.

Conclusion

1. None of the parties were impressive witnesses. All show a lack of insight and inability to consider the other’s point of view and how their inability to communicate constructively impacts negatively on the children.

2. It is obvious from the paternal grandmother’s evidence in Court that she does not have trust in the parents and that, whether consciously or not, she has undermined their parenting efforts.

3. The paternal grandmother’s attitude has to be seen in the context of both children being placed in her care by the DHHS when they were babies because her parents were not able to provide a safe and nurturing home environment for the children. She has good reason to be wary of them but her actions have gone beyond that and are unhelpful to the children’s development.

4. Despite these concerns have been highlighted in both family reports, but unfortunately the paternal grandmother still has no insight into the issues that were highlighted and sees herself as being absolutely correct and having made no mistakes. The optimal situation for these children would be to be living with their parents in a safe, secure and stable household and spending regular time with the paternal grandmother who they have a close and loving relationship with. The Court is not faced with the optimal situation and indeed is probably self-evident that such matters do not require judicial determination.

5. These proceedings have been on foot since July 2015, which is for most of these young children’s lives, and must be brought to an end.

6. It is most unfortunate that the parents realised all too late that their failure to comply with orders for drug testing and their inability of being able to show that they could establish a track record of being reliable resulted in the children being removed from their care in December 2017 and placed back with the paternal grandmother.

7. The parents knew how important it was to undergo these drug screens. It is unfathomable as to why, despite knowing this and despite all the warnings, they failed to do so. The mother’s attempts to obtain drug screens for the final hearing was too little too late.

8. The parents fail to appreciate that their drug history is not ancient history. They have not proved that they are drug free. In fact the parents’ failure to do these tests, combined with their inability to ensure [X]’s school attendance and inability to be consistent and reliable with respect to spending time with the children and communicating with them since 15 December 2017, all heighten the concern that they are still using drugs or have other issues which impact on their parenting capacities.

9. The parents will need to address these concerns if they, or either of them, wish to seek a variation of these Orders.

10. Considering all of the evidence, I am satisfied that the Orders I make are in the children’s best interests.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 26 April 2018