S & S - [2007] FMCAfam 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2007] FMCAfam 430

FAMILY LAW – Parenting orders – grandparent as primary carer – domestic violence.

Family Law Act 1975 (Cth), ss.60CA, 61DA(1), (2) and (4), 60CC(2), 60CC(3), 60CC(4)(4A), 65DAA

Rice and Asplund (1978) 6 Fam LR 570
Davies and French [2001] FamCA 382 at page 28

Applicant:

LMS

Respondent:

KLS

File Number:

NCM3555 of 2004

Judgment of:

Lapthorn FM

Hearing dates:

20 & 21 March 2007

Date of Last Submission:

21 March 2007

Delivered at:

Newcastle

Delivered on:

28 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Mason Lawyers

Counsel for the Respondent:

Mr Gorton

Solicitors for the Respondent:

King Street Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Bates

Solicitors for the Independent Children’s Lawyer:

Krstina Wooi Solicitors

ORDERS

The child TTRS born 18 June 2004 live with the Maternal Grandmother.
The Maternal Grandmother and the Mother have equal shared parental responsibility for the child.
The child spend time with the mother as agreed between the mother and the Maternal Grandmother from time to time and failing agreement as follows:
Until the child commences formal schooling
3.1Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
3.2Each other week from 9.00 am Thursday to 5.00 pm Friday;
3.3On the child’s birthday from 5.00 pm on the day preceding the child’s birthday until 5.00 pm on the child’s birthday;
3.4From 5.00 pm on Mother’s Day eve until 5.00 pm on Mother’s Day;
3.5From 3.00 pm Christmas Eve until 6.00 pm Christmas Day.
Upon the child commencing formal schooling
3.6During New South Wales school terms:
3.6.1each alternate weekend, commencing the second weekend after school term commences in each instance, from after school Friday until 5.00 pm Sunday;
3.6.2each alternate week, commencing the first week school term commences in each instance, from after school Thursday until before school Friday.
3.7For one half of each of the school holiday periods at the conclusion of terms 1, 2 and 3 as follows:
3.7.1During the first half of such holidays in odd numbered years, commencing at 5.00 pm on the last day of school term, and concluding at 12.00 noon on the middle Sunday of the holiday period;
3.7.2During the second half of such holidays in even numbered years commencing at 12.00 noon on the middle Sunday of the holiday period and concluding at 5.00 pm on the day preceding commencement of school term;
3.8For the second half of the New South Wales school Christmas holidays in each year, commencing at 9.00 am on the Saturday nearest the mid-point day of such holidays and concluding at 5.00 pm on the Sunday immediately prior to the re-commencement of school term.
3.9From 5.00 pm on Mother’s Day eve until 5.00 pm on Mother’s Day;
3.10From 3.00 pm Christmas Eve until 6.00 pm Christmas Day;
3.11For two (2) hours on the child’s birthday in the event that such day falls on a school day and otherwise for a period of 4 hours at such times as agreed between the Maternal Grandmother and the Mother.
The time that the child spends with the Mother shall be implemented by the Mother collecting the child from the residence of the Maternal Grandmother at the commencement of such time and the Mother returning the child to the residence of the Maternal Grandmother at the conclusion of such time unless the orders provide for the periods of time to commence from after school or conclude before school wherein the mother is to collect the child from school and/or return him to school whichever is applicable.
Each party provide such consents and authorities to allow the provision to the other party of any medical report or reports in relation to the child as required by the medical practitioner or practitioners and to allow the other party to discuss the medical condition of the child with the treating medical practitioner or practitioners or any other health professional.
These orders be sufficient authority for the mother to obtain from the school any reports, school photographs or any other notices relating to the child including all sporting and social function notices.
Each party is to advise the other as soon as practicable upon the happening of any of the following:
7.1The child becoming seriously ill or injured;
7.2The child becoming hospitalised.
Each party is to keep the other informed of their place of residence and contact telephone number(s) an in the case of any change of residence, the other to be provided with written notification of the change within seven (7) days of such change or prior to the next time that the child spends with the other party.
The parties shall not denigrate the other in the presence or hearing of the child and prevent third parties from doing so.
The Mother comply with all reasonable requirements of the Department of Community Services New South Wales in relation to the welfare of T.
The Court forthwith publish to the Director-General, Department of Community Services, New South Wales, a copy of these Orders, the Reasons for Judgment and the Family Reports of Mr Paris released on 31 October 2005 and 19 February 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM3555 of 2004

LMS

Applicant

And

KLS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in relation to a very young child, TTRS. T was born on 18 June 2006 and therefore he is 3 years of age.
The child’s maternal grandmother, LMS has brought the application seeking orders that T live with her. His mother KLS, responds to that application and seeks orders that T eventually live with her.
The child’s father, DF did not take part in these proceedings. Neither the grandmother nor the mother knew of his whereabouts. Mr F has not had any involvement in the child’s life.
Ms Krstina Wooi acted as the independent child’s lawyer for T. At the conclusion of the hearing Mr Bates, counsel for the Independent Child’s Lawyer tendered a minute of Order sought. This document became ‘ICL 2’. In effect the Independent Child’s Lawyer sought orders that provided for the child to live with his grandmother and spend time with his mother. The grandmother adopted those orders.

The evidence

The applicant maternal grandmother relied on her affidavit and the affidavit of Mr BAR filed 12 February 2007. The mother relied on two affidavits each of herself and Mr RJMN filed 14 February 2006 and 9 February 2007.
Mr Nick Paris, Family Consultant, prepared 2 reports released on

31 October 2005 and 19 February 2007.
I had an opportunity to observe all witnesses in the witness box.
Documents produced under subpoena were tendered.

Background

The mother, Ms KS is 19 years of age and was primarily raised by her grandmother who is now deceased. She is in a relationship and lives with Mr RN in Newcastle. They have a baby daughter LLN who was born on 18 September 2006.
The grandmother in these proceedings, Ms LS, who is aged 36, was reliant on heroin and involved with prostitution earlier in her life and was not in a position to properly care for her daughter. She has another daughter, A, to Mr BR. A is 7 years of age. The grandmother and Mr R share a house and both care for A but do not live together in a relationship. Ms S is on the methadone programme.
Both parties live close by each other in the Newcastle area.
The relationship between the mother and grandmother has been strained but both gave evidence that over time it has improved notwithstanding they are still in dispute as to T’s long term living arrangements.
Just prior to T’s birth in June 2004 the mother returned to live with her mother after having lived with various family members since her grandmother’s death in 2001. After T was born he was cared for by the mother with assistance from the grandmother until November 2004 when the mother moved to Gunnedah then Mt Druitt. The grandmother removed the child from the mother as she was concerned with the living conditions of the mother and child. The police were involved. By Christmas that year the mother had moved with the child to an aunt’s house but after an incident between the mother and the aunt she moved again this time to her father’s residence with the child.
The grandmother again intervened removing the child from the mother on 29 December 2004 and filed this application the next day. The child has lived with his grandmother since then.
The mother has been keen to resume full time care of the child however the grandmother is of the view that it is not in his best interests to return to the mother’s care at this time. The grandmother is concerned about the mother’s relationship with Mr N and domestic violence in particular. Although the grandmother expressed concerns that the mother was sometimes lazy in her parenting this no longer appeared to be the primary focus of the grandmother’s concern.
Interim orders were made by the court in January and March 2005 and again in February 2006. Initially, according to the interim orders of January 2005 the mother was to spend time with the child each weekend from Friday evening to Sunday evening with such periods of time supervised by her father or his wife. The times were altered in the March 2005 orders to provide the periods of time from Thursday evenings to Saturday evenings. The mother also expressed an intention to seek professional assistance and counselling in relation to parenting skills, anger management and drug and alcohol issues.
The mother did not spend periods of time with the child each week because of difficulties with supervision. However she was able to maintain a relationship with the child by making arrangements with the grandmother for her to spend time with him.
The mother attended some courses seeking assistance but did not manage to complete them for various reasons including her difficult financial situation.
In February 2006 the court made further interim orders even though the matter had been set down for final hearing. The court continued the order that the child live with the grandmother and made orders for him to spend time with the mother on an unsupervised basis increasing in time on a staged up process. The mother was also ordered to attend and complete courses in anger management and parenting as well as counselling with Ms Heather Wingate. The maternal grandmother was to also attend this counselling.
Both the mother and maternal grandmother attended upon Ms Wingate for three or four occasions but both felt that it was not helpful in improving their relationship. Fortunately they have both been able to improve their relationship over the last year or so.
The mother had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHA) in August 1996 by Dr Tait. The doctor was asked to see her in 2005 and he prepared a report dated 8 November 2005 which formed part of his notes that was tendered into evidence and became exhibit “mgm – 2”. In that report he concluded that there was no evidence that the mother was suffering from a significant depressive illness but that she was considerably at risk of depressive symptoms in view of her past history and ongoing relationship difficulties. He was of the view that the mother’s predisposition to angry outbursts and affect regulation were likely to challenge her in adult years and that her ADHD symptoms were an important influence of outcome but should not be seen as determinative of her outcome. The doctor recommended a trial of stimulant medication, counselling and guidance especially parenting training. The mother is not taking any medication as she is breastfeeding L. The mother also gave evidence that every time she took Dexamphetamine she could not eat or sleep and was like a “walking zombie”. The mother also said that she did not think she needed any counselling.
The Family Report writer recommended in his most recent report that after a transition period the child move to live full time with the mother. Mr Paris listed a number of caveats to this recommendation. He was concerned that he had not been privy to any intervention or assessments by the Department of Community Services since November 2006. He was further concerned to see Mr N complete a programme targeting men addressing issues of aggression and violence in their relationships.
Mr N has commenced a programme organised by an Awabakal group for men. This programme is not specifically designed to address issues of domestic violence or anger management but rather to help Aboriginal men deal with issues of depression, aggression and issues of loneliness. Mr Paris whilst supportive of such a programme was of the view that it would not be sufficient to meet the specific needs Mr N must address.
In November 2006 and March 2007 the mother and Mr N were involved in domestic violence incidents. I will discuss this in more detail below. When Mr Paris became more fully aware of these events he altered his position to the child remaining living primarily with the grandmother and spending time with the mother weekly but with him spending less time with Mr N. Mr Paris was of the view that at this point in time a restoration of Tremayne to his mother could not be supported but it maybe a future proposition.

Issues

The issue in dispute fell to whether orders should be made on a final basis for the child to live with the grandmother and spend time with the mother or either interim orders to that effect or final orders providing for a transition to the mother caring for the child full time.

Legal principles

The court, when making parenting orders, must consider a child’s best interests as its paramount consideration[1] and apply a presumption that it is in that child’s best interests for the parents to have equal shared parental responsibility[2]. This presumption does not apply in cases of child abuse or family violence and may be rebutted on the evidence[3].
[1] S60CA
[2] S61DA(1)
[3] S61DA(2) and (4)

Consideration as to child’s best interests

Section 60CC of the Family Law Act 1975 sets out a number of factors the court must consider when determining a child’s best interests.

The primary considerations: s.60CC(2)

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

T’s father has not been involved in his life and no one appears to know where he lives.
Although he has not lived with his mother since he was 6 months of age I am satisfied that T has a meaningful relationship with her. The mother has maintained her relationship with him notwithstanding the dispute between her and the grandmother by ensuring she has spent time with him regularly. The mother moved from the Sydney area to Newcastle to be closer to the grandmother so that the periods of time with T could be arranged more easily.
Although this factor relates to parents I am guided by it in my consideration of the need for this child to have a relationship with his grandmother. She has been a significant person is his life given that she has been his primary carer since he was six months of age.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

This is a significant factor to be considered. Regrettably there is a history of domestic violence between the mother and her partner Mr N.
On the evening of 11 November 2006 the mother and Mr N collected the child from the grandmother to spend time with him overnight. They were going to an aunt’s home on the Central Coast. Their baby daughter was also with them. L was less than 2 months of age at the time. There was a party there that night and Mr N along with a number of other men consumed alcohol. Mr N gave evidence that he was playing cards with the men and as a result of losing was required to skull alcohol. He got into a fight with one of the other men. Mr N is a young man, only 20 years of age, however, as a parent he should have had more sense than to engage in this sort of behaviour especially when the children were around. He says that he cannot remember any of what occurred between him and the mother that evening.
The mother’s evidence was that during the party she noticed that Mr N was drinking more alcohol than he usually did and that he was arguing loudly with another man. A can of beer was thrown at Mr N at one stage. During the evening the mother told him to calm down and to have a sleep. At 2am Mr N said to the mother:
“Come on, let’s go, we’re not staying here.”
The mother did not want to leave. Both children were asleep but as she did not want Mr N to go off by himself in the state he was in they left with the children in their prams. She said that as they were walking they started arguing. Mr N grabbed her, ripping her dress, and they pushed each other.
The grandmother gave evidence that the mother had told her Mr N had stripped her naked after bashing her then dragged her by the hair up the street. The mother admitted in cross-examination from Mr Bates that Mr N had ripped her dress off and that she was standing at the scene in her underwear. She had been thrown on the pavement by Mr N, her face was swollen and she had suffered grazing. She accepted that T was hysterical and that he’d wet himself.
According to a police report which forms part of exhibit ‘mgm-4’ in the early hours of the next morning of 12 November the police received in excess of 7 triple 0 calls to attend a domestic incident at this Central Coast home. When they arrived they saw both the mother and Mr N pushing a pram each. Mr N is reported to have run away still pushing a pram containing L. The mother is reported to have screamed “Stop him. He’s got my baby daughter in the pram”. The report goes on to say that whilst chasing Mr N the mother yelled out “Run R Run”. During the chase Mr N fell over along with the pram. The baby was ejected from the pram on to the gravel roadway. Mr N was arrested. The police noticed the child was having difficulties breathing and they called for an ambulance. According to the police report the mother then became aggressive and violent toward them including striking one of the officers attending to the baby. She was then arrested and ultimately charged with assaulting police in the exercise of their duty.
The mother rejected the suggestion that her priority was to protect Mr N rather than her children that night. She said:
“No. That wasn’t it at all. I wanted to get T after the police was calling me a stupid dumb slut and said that I didn’t deserve to have kids and ……
“I was getting really wild because the police were calling me a stupid dumb slut and that I didn’t deserve to have kids and that I was nothing but a fucking filthy bitch and all stuff like that. They had no idea what had just happened, but they still had to fucking didn’t – blame me.”
It was put to the mother that she was concerned about her own feelings rather than protecting her children. Her reply was:
“No. I wanted to fucking pick T up. I wanted to pick him up and cuddle him and tell him it was all right and when I went to do that they pushed me over and told – and said that to me and told me to stay away from them.”
The mother conceded that she was angry at the time and that maybe she wasn’t in a position to protect her children. I observed the mother to loose her self control during the giving of this evidence not only by her use of language in the last part quoted above but in the way that the evidence was delivered. She was angry and her demeanour changed from rather flat to assertive.
I was not persuaded that her version of events was correct. I find that she remains emotional over the events of this night and accept her evidence that she believes that these events have made it more difficult for her to have T return to live with her.

This was a very serious incident of domestic violence. I find that neither the mother nor Mr N were child focused that evening and morning. The mother should have removed the children from that environment long before 2am. The mother further placed the children in harms way by taking them from their sleep at 2am to follow Mr N. The mother’s own behaviour towards the police was also indicative of her lack of ability to remain in control of her emotions and anger.
Mr N, consented to an Apprehended Violence Order for a period of two years. The mother and L are named as the protected persons. As well as the usual restraints on his behaviour towards the protected persons Mr N is not permitted to be under the influence of alcohol when in their presence.
The Department of Community Services is working with the mother and Mr N and has referred them to agencies to help with parenting and domestic violence issues.
The mother was referred to the Community Aid Panel in relation to the charge of Assaulting police and she was required to do six hours community service before returning to have the matter finalised.
Mr N in his affidavit sworn 8 February 2007 expressed regret and responsibility for his actions on 11 and 12 November 2006. He accepted the seriousness of these actions in jeopardising the opportunity for T to be returned to his mother’s care. He said that there had not been any more violence since the November incident. Unfortunately by the time the matter came on for hearing that was not the case.
In early March the mother sustained bruising as a result of an altercation with Mr N. Her evidence was that they were having an argument about money when she pushed him and he then pushed her and in the process she banged her arm. The mother was at pains in her evidence to present the picture that Mr N was not necessarily at fault. She took responsibility for some of the arguments including this one. She said that she is more likely to yell at Mr N than him raising his voice at her. Apparently they both swear at each other when they argue and both have pushed each other physically. The mother played down her bruises saying:
“…I bruise easily anyway.”
I was left with the clear impression that although the mother accepts that such arguments are not appropriate especially when either of the children is around she minimises the seriousness of these events. She gave evidence of having attended anger management courses and counselling at Wallombimbah an Aboriginal family support service but when it was put to her that notwithstanding such attendances Mr N and her were still engaging in this inappropriate behaviour towards each other she responded :
“very rarely. Twice in the last 6 months.”
When it was put to her that that was twice too often her reply was:
“I suppose you could say that.”
This response was delivered in a very flat tone and manner that suggested that she did not place much importance on these incidents.

I became concerned when observing this that the mother may have fallen into a pattern of behaviour, common for victims of domestic violence, in minimising the extent of violent incidents and its effect on them and children. My concerns were confirmed by Mr Paris. The Family Consultant gave the following opinion:
“………the other factor was that during my assessment of the mother she had indicated that there had been a couple of episodes of violence and there had been another episode following the episode in November and that would reflect to me, especially given the young age of the mother, that she may already be entrenched in a domestic violence cycle and women who are entrenched in that cycle have a great inability to differentiate the needs of their children and prioritise those over their partners, so my view would be that the mother would need professional input herself to either be non-accepting of being in a relationship with a man who has perpetrated violence against her and she too also will need to examine her own methodology and how she resolves conflict with Mr N in the relationship. Because by her own acknowledgement she too become quite volatile in the interchanges with Mr N and that this dynamic will be very dangerous in exposing two young children to this over a period of time.”
I find that the mother is currently not capable of protecting T psychological harm from being exposed to family violence. With professional assistance in the future she may be able to do so but I have no confidence that she sees the seriousness of the effects on her and her children of the volatile relationship she shares with Mr N.

The additional considerations: s.60CC (3)

There are a number of considerations the court must look at pursuant to this subsection. I have considered all of these however I will refer only to the most relevant.

Section 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents or other persons including grandparents and relatives

I am satisfied that the child has a good relationship with his mother and grandmother. This has been possible by the mother maintaining a commitment to spending time with T and grandmother promoting those visits notwithstanding her concerns. There have been times when the grandmother has restricted the way in which the child has seen his mother but I am satisfied that on each occasion such restrictions were implemented by the grandmother because of her concern to ensure the child was safe. The mother naturally was not happy with these restrictions but has worked with her mother to maintain her relationship with T.
Currently T spends four days a week in day care. This has been arranged by the grandmother. She believes that it is good for him to socialise with other children. Such socialisation is clearly beneficial for children. Mr Paris holds the view however that should the mother and child spend some of those days together their relationship will be further cemented. I accept this evidence.

Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

In this case it is appropriate to consider whether the grandmother will continue to promote the relationship between the mother and child and also whether the mother would promote a relationship between the child and the grandmother if he goes to live with her.
I am satisfied that the grandmother is open for T to return to live with his mother at some stage in the future provided he is safe and properly cared for. She does not accept that that time has arrived. I am however satisfied from her evidence that she does not want to exclude the child from his mother’s life and will promote a relationship between them.
Although the mother and grandmother have not enjoyed a positive relationship throughout their lives I am satisfied that they have both recognised an improvement in that relationship over the last twelve months. I find that both of them have worked hard to achieve this. This improvement will help them work together in the future to ensure that the child has a positive relationship with each other.

Section 60CC(3)(d) The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative) with whom he or she has been living

The child has spent most of his life with his grandmother and would need time to adjust to any change in his primary residence.

Section 60CC(3)(f) The capacity of each of the child’s parents and any other person, including any grandparent or other relative, to provide for the needs of the child including emotional and intellectual needs

Mr Paris noted that the mother had increased her parenting capacity over the last twelve months. He observed her handle a small tantrum by T most appropriately and was impressed with her approach to the child whilst at the same time caring for baby L.
While the grandmother believes that the mother can be lazy in her parenting her primary concern is the mother’s relationship with Mr N. The grandmother believes that he is violent and controlling of the mother.
For the reasons I have already found above I find that the mother does not have the capacity to protect T from the consequences of living in an environment involving domestic violence. The mother must address the issues surrounding her own ability to act aggressively and her relationship with Mr N.
If the mother and Mr N are to continue their relationship they both have to seek support. I am encouraged that they have accepted advice from the Department of Community Services and Aboriginal organisations. More however needs to be done.
Whilst the move by the mother and Mr N to Newcastle was most appropriate and child focused it is unfortunate they have been able to make many friends since their move.

Section 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child the child’s right enjoy his or her culture and the likely impact any order will have on that right.

T is a child with Aboriginal ancestry. He doesn’t have the benefit of his natural father in his life but I am satisfied that the mother who also has Aboriginal ancestry, will promote his needs in this regard.

Section 60CC(3)(j)&(k) Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

I have considered the issue of family violence under the primary considerations above.

Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the situation of further proceedings in relation to the child

This is always an important consideration as it is always preferable for parties to avoid litigation.
I am asked to consider three options:
a)making final orders without transitory arrangements for the child to eventually live with the mother;
b)making final orders with transitory arrangements so that the child eventually returns to live with the mother; or
c)making interim orders for a period of six or twelve months and reviewing progress made by the mother and Mr N then.
All options have the potential for further proceedings.
Although pressed by counsel for the mother, the last of these options does not appeal because that has already been done - in February 2006. There is a need for some stability for this child and it is time to make final orders. Even if final orders have been made either party would be able to return to court if they found it necessary provided they are able to show a change of circumstances sufficient to justify a change of order[4].
[4] Rice and Asplund (1978) 6 Fam LR 570
It is always open however for the mother and grandmother to reach an agreement in the future without the need to return to court.
For the reasons I have set out in this judgment I am not satisfied that it is appropriate to make any transitory provision for the child to live with the mother. I accept the submissions of the Independent Child’s Lawyer that final orders be made.

Section 60CC(3)(m) Any other relevant fact or circumstance

One of the considerations in this case is what could be described as the factor of parenthood. Should the court give greater weight to a natural parent as opposed to a grandparent? This issue is a significant consideration however it is only one of the factors. The Full Court of the Family Court in Davies and French[5] held:
There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
[5] Unreported [2001] FamCA 382 at page 28
In this case I have taken into account the mother is the child’s natural parent however I find that the significant concerns as to her ability to protect the child outweigh that factor.

Section 60CC(4)(4A) The extent to which the parents have fulfilled or failed to fulfil their responsibilities as a parent.

Although this provision appears to only assess parents I use it as a guide and include a consideration of the grandmother who is caring for the child.
I am satisfied that the maternal grandmother has responsibly cared for the child since he was six months of age.
Although the mother has worked hard at improving her situation towards having T returned to her she has failed to fulfil her parental responsibilities by not addressing the important issue of domestic violence in her life.

Parental responsibility

I find that the presumption as to equal shared parental responsibility has been rebutted on the evidence in this case as the child’s father has not played any role in the child’s life.
Both the Independent Child’s Lawyer and the grandmother seek an order for equal shared parental responsibility between the grandmother and the mother. The mother argues that that order should only be made whilst the child is being primarily cared for by the grandmother and if the court intends to make orders that provide for the child to eventually live with the mother the parental responsibility should shift solely to her at that stage. There is much merit in this argument. Given that I have not been persuaded to make a transitory order it is not necessary for me to consider this submission.
I am satisfied that the mother and grandmother, notwithstanding their differences, are able to communicate sufficiently to address together decisions for the ongoing care of the child. Since both of them will be playing a significant role in this child’s life and that under the orders I will make he will live primarily with his grandmother I find it is appropriate to make an equal shared parental responsibility order.
The mother argues that if the court makes an order for equal shared responsibility the court must consider the provisions of s 65DAA. I find that that does not apply in this case as that provision only relates to an order for equal shared parental responsibility between parents[6].
[6] s65DAA

Conclusion

I find that it is in T’s best interests that he live with his grandmother and that final orders should be made to reflect that.
Parental responsibility should lie with both the mother and grandmother.
I turn now to consider what orders should be made for the child to spend time with the mother. I am satisfied that the mother intends to remain in this child’s life and she will try to address the issues referred to in this judgment.
The Family Report writer opined that should the child remain living with the grandmother it would be important for him to spend two consecutive days with the mother each week. Mr Paris was of the view that the child’s attendance at child care should be reduced. In doing so the child would be available to spend more time with the mother and further develop his relationship with her.
The Independent Child’s Lawyer proposes, and the grandmother adopts the proposal, that the child spend each alternate weekend from Saturday morning to Sunday evening with the mother one week and in the other week from Thursday morning to Friday evening until he commences formal schooling. Once at school the proposal is each alternate weekend from Friday after school until Sunday evening.
I accept the evidence of the Family Report writer as to the benefits of the child seeing the mother each week. I am persuaded the Independent Child’s Lawyer’s proposal is appropriate until he commences school.
I am of the view however that once he is at school he should still see his mother each week and therefore I propose to provide for a continuation of the Thursday evenings in the off week. The child will have a couple of years of seeing his mother every week before he commences school under these orders. To extend the time between visits when he starts school may not be beneficial for him. I therefore propose to order that once he commences school in addition to the alternate weekend periods of time he be with his mother from after school Thursday to before School Friday each alternate week. I will also order that the periods of time that commence on a Friday commence from after school. It will assist the mother to become involved with the child’s school if she has opportunities to collect and deliver him to school.
Orders 5 to 9 inclusive of the orders sought by the Independent Child’s Lawyer are not controversial and I will make those orders.
Proposed Order 10 relates to the grandmother and mother attending a course of therapeutic counselling. Orders were made in February 2006 for the parties to attend upon Ms Wingate for therapeutic family counselling. Both the mother and grandmother gave evidence that they did not find it beneficial to them and they stopped going. Notwithstanding this their relationship has improved. I am not persuaded that attending this form of counselling will be beneficial unless both parties are willing participants and I therefore decline to make the order. I am confident that if the parties both wanted to attend this form of counselling they will make arrangements for it themselves.
Proposed Order 11 has not been opposed. I propose to make this order and also make an order publishing these reasons and the two Family Reports to the Director-General of the Department of Community Services for their information. I consider the involvement of the Department important. The case workers from the Department will be able to refer the mother and Mr N to appropriate programmes addressing domestic violence and relationship issues.
Mr N is not a party to these proceedings and I therefore have no power to make any orders requiring him to also comply with the Department’s reasonable requirements. If the mother intends to remain in a relationship with Mr N I hope she will encourage him to do so and to continue his attendance at the men’s group which he has commenced. Mr N should also seek out specific programmes addressing aggression and family violence.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Acting Associate: Helen Drysdale

Date: 28 June 2007