Sandberg & Fairburn
[2021] FedCFamC2F 27
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandberg & Fairburn [2021] FedCFamC2F 27
File number(s): MLC 5102 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – parenting – parental responsibility – with whom a child lives – where the child has been in the primary care of the applicant grandparents for three years – where there is significant intergenerational turmoil between the applicants and the respondent mother – where the child faces significant health challenges – where the Court determined it would be in the best interests of the child for the applicants to have sole parental responsibility for the child – child to remain in the applicants’ primary care – orders made for the mother to spend time with the child if she remains living in Melbourne – other orders made for the mother to spend time with the child if she were to relocate to City C. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA. Division: Division 2 Family Law Number of paragraphs: 124 Date of last submission/s: 10 June 2021 Date of hearing: 24 – 27 May 2021, 10 June 2021 Place: Melbourne Counsel for the Applicants: Ms M Stavrakakis Solicitor for the Applicants: JS Law Barrister and Solicitor Counsel for the Respondent: Ms D Foong Solicitor for the Respondent: Kerr & Thomas Lawyers Counsel for the Independent Children's Lawyer: Mr J Korke Solicitor for the Independent Children's Lawyer: Docherty Legal ORDERS
MLC 5102 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SANDBERG
First Applicant
MR JANKOVIC
Second Applicant
AND: MS FAIRBURN
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The First Applicant Maternal Grandmother Ms Sandberg and Second Applicant Step-Grandfather Mr Jankovic (together, “the Applicants”) have sole parental responsibility for the child X born in 2016 (“X”).
2.X live with the Applicants.
3.If the Respondent Mother remains living in Melbourne, X spend time and communicate with the Mother:
(a)in 2021 until the commencement of school in 2022, each alternate weekend from 4.00pm on Thursday until 4.00pm on Sunday;
(b)upon X commencing school in 2022, each alternate weekend from 4.00pm Friday until 4.00pm Sunday;
(c)commencing at the end of Term 1 in 2022, during the gazetted mid-year school term holidays for half of the school holiday period, as agreed between the parties, but failing agreement, from 4.00pm on Friday on the last day of school until 4.00pm on the mid-Saturday of the holiday period;
(d)commencing the end of Term 4 in 2022, during each of the gazetted long-summer holidays for half that period as agreed, but in default of agreement, on a week-about basis, commencing at 4.00pm on Friday on the last day of school until 4.00pm on the following Friday and each alternate week thereafter.
4.If the Mother relocates to City C in or before January 2022, X spend time and communicate with the Mother:
(a)in 2021 until the commencement of school in 2022, each alternate weekend from 4.00pm on Thursday until 4.00pm on Sunday;
(b)upon X commencing school in 2022:
(i)each alternate weekend from the conclusion of school on Friday until 4.00pm on Sunday; then
(ii)commencing at the beginning of Term 2 in 2022, each alternate weekend from the conclusion of school Thursday until 4.00pm on Sunday; then
(iii)commencing at the beginning of Term 1 in 2023:
A.each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday; and
B.in each other week, from the conclusion of school on Thursday until the commencement of school on the following Friday;
(c)commencing at the end of Term 1 in 2022, during the school term holidays for half of the school holiday period, as agreed but failing agreement then from the conclusion of school on Friday on the last day of term until 4.00pm on the mid-Saturday of the holiday period; and
(d)commencing the end of Term 4 in 2022, during each of the long-summer holidays, for half that period as agreed, but in default of agreement, then on a week-about basis commencing the conclusion of school on Friday on the last day of term until 4.00pm on the next Friday, and each alternate week thereafter.
5.Notwithstanding orders 3 & 4 herein, X shall spend time with the parties on the following special dates:
(a)during Christmas:
(i)in 2021 and each alternate year thereafter, with the Mother, from 4.00pm on Christmas Eve until 4.00pm on Boxing Day;
(ii)in 2022 and each alternate year thereafter, with the Applicants, from 4.00pm on Christmas Eve until 4.00pm on Boxing Day;
(b)If X is not otherwise spending time with the Mother on Mother’s Day, then on the Weekend that Mother’s Day occurs, from 4.00pm on Friday until 4.00pm on Sunday;
(c)If X is not otherwise spending time with the Mother on X’s birthday then X spend time with the Mother on X’s birthday as follows:
(i)if falling on a weekday, then between 4.00pm and 7.00pm, to occur in City C with changeover at the City C Train Station;
(ii)if falling on a weekend, then for that weekend from 4.00pm on Friday until 4.00pm on Sunday.
6.Unless otherwise agreed in writing, changeover shall occur at the City C Train Station at the commencement of the Mother’s time and the D Train Station at the conclusion of the Mother’s time, in the event that the Mother relocates to City C then changeovers (not otherwise occurring at school) to occur in an agreed neutral location, but in default of agreement then the E Park.
7.Each of the Maternal Grandmother and Mother must attend on a family therapeutic counsellor with F Families or such other appropriate service that may be able to facilitate some sessions by video conference, and further:
(a)each of the Maternal Grandmother and Mother shall provide the family therapeutic counselling with authority to communicate with their respondent treating psychologists.
(b)the family therapeutic counsellor to be provided with a copy of these Orders, the reports of Mr G, and Dr H and the Family Report of Mr J.
(c)the purpose of the counselling is to include a focus on the communication between the Maternal Grandmother and Mother, the inter-generational conflict between the biological Maternal Grandparents that has affected the Mother’s relationship with her parents;
(d)each of the Maternal Grandmother and Mother to be responsible for the cost of any of their respective individual sessions, and to equally share the cost of any joint sessions;
(e)the counsellor to be at liberty to include either of the Maternal Step-Grandfather or the Mother’s partner, Mr L, if they consider it appropriate.
8.The Maternal Grandmother must continue to engage with her Clinical Psychologist with the M Centre in City C, until such time that her treater arrives at the view is it no longer necessary. That upon the Maternal Grandmother being discharged from that treatment, it is requested that the professional provide a brief letter confirming the reasons for discharge, and a copy of that letter to be provided directly to the Mother.
9.The Respondent must continue to engage with her treating psychologist Mr G, until such time that her treater arrives at the view is it no longer necessary. That upon the Mother being discharged from that treatment, it is requested that the professional provide a brief letter confirming the reasons for discharge, and a copy of that letter to be provided directly to the Applicants.
10.The Maternal Grandmother must:
(a)keep the Mother advised of all X’s current treating medical, allied health, mental health or like professionals and engagements including contact details for the same; and
(b)keep the Mother advised of any major decisions that the Applicants intend to make regarding X by providing that information within 7 days prior to a major decision being made.
11.The Mother is authorised to, with these orders to be taken as authority:
(a)receive all notices, letters, reports, invitations and the like from any kindergarten, childcare or school that X attends including access to any parenting app or online portal.
(b)receive and obtain any medical records and documents and the like directly from any medical, allied health, mental health or similar professional, service, institution or entity that is engaged with X, including records relating to Medicare, Early Intervention and NDIS, and is authorised to make appointments with any said professionals (subject to their policies) to inform herself regarding X’s development and treatment, and if practical continue to engage and attend X’s treatment sessions (subject to the discretion of the that professional or service).
12.Each of the parties shall:
(a)keep each other advised of any change of address or contact details and provide those details within 24 hours of any change occurring.
(b)in the event of any emergency affecting X (including injury affecting one of his caregivers) notify the other by direct phone call as soon as is practicable.
13.Each of the parties are restrained from:
(a)consuming any illicit drugs or unprescribed substances, save for over the counter medicines typically obtained at chemists;
(b)denigrating, belittling or otherwise speaking negatively about the other parties in the presence or hearing of X;
(c)exposing X to Family Violence or permitting any other person to do so.
14.The Independent Children’s Lawyer be permitted to provide a copy of these orders to each of the Maternal Grandmother and the Mother’s psychologists, and X’s Early Intervention Provider, Paediatrician and Speech Therapist and Play Therapist.
15.In the event that there is any dispute regarding the operation of these orders, the parties must engage in mediation or some other alternative dispute resolution prior to any application being filed.
16.Each of the parties be at liberty to provide a copy of these orders to any school, child care, medical, allied health and like professionals that are engaged with X.
17.The order appointing the Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sandberg & Fairburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
In this matter the First Applicant is the Maternal Grandmother, who is 44 years old and not in paid employment. The Second Applicant is the Maternal Step-Grandfather, who is 40 years old, and is employed as a transport worker. The Applicants reside in City C.
The Respondent Mother is 22 years old and works as a part-time Manager for Company N. The Mother resides in Melbourne.
In February 2013, the Mother commenced a relationship with the Father. The Mother and Father never cohabited or married. At the time the Mother and the Father commenced their relationship, the Mother was 14 years old and the Father was 20 years old. Prior to the final hearing, the Father, who is 27 years old, was a party to these proceedings. However, due to a failure by the Father to engage in these proceedings, he was removed as a party by orders of the Court made on 7 May 2020.
In 2016 the child X was born. The child has significant and ongoing health issues and currently has a Global Developmental Delay. The Applicants have been the primary caregivers to the child since in or around June 2018, and the child lives with them. The child spends time with the Mother pursuant to various interim orders of the Court made since the Applicants filed their initiating application on 13 May 2019.
In January 2017, the Mother and Father separated. In August 2017, the Mother commenced her relationship with her current partner, Mr L, who is 41 years old and was employed as hospitality worker at the time of the final hearing.
PROCEEDINGS BEFORE THE COURT
This matter has a long and relatively complex history before the Court.
On 27 November 2017, final parenting orders were made for the Mother to have sole parental responsibility for the child and for the child to live with the Mother. Further orders were made for the child to spend time with the Father by written agreement and under conditions to be determined by the Mother. The Father did not participate in the proceedings.
On 13 May 2019, the Applicants commenced proceedings seeking final parenting orders for sole parental responsibility for the child, for the child to live with them and for the child to spend time with the Mother.
On 22 July 2019, interim orders were made for the matter to be adjourned to 5 December 2019 for further hearing and for:
(1)all previous parenting orders to be discharged;
(2)the Applicants to have sole parental responsibility for the child;
(3)for the child to live with the Applicants;
(4)for the Mother to spend supervised time with the child;
(5)for the Mother and her partner to undertake a random monthly urine drug screen; and
(6)an Independent Children’s Lawyer to be appointed.
On 5 December 2019, interim orders were made by consent for the orders of 22 July 2019 to remain in full force and effect, for the Father to file material, for a s11F child inclusive conference to take place on 25 February 2020, and for the matter to be otherwise adjourned for an interim defended hearing on 7 May 2020.
On 25 February 2020, the parties participated in a s11F child inclusive conference with a Family Consultant. The Family Consultant provided a s11F report to the Court on 27 February 2021.
On 7 May 2020, following the interim defended hearing, orders were made discharging the orders made on 5 December 2019 and 22 July 2019, save for the order compelling the Mother and her partner to undergo a random monthly urine drug screen. Further interim orders were made for, amongst other things:
(1)the First Applicant to have sole parental responsibility for the child and for the child to live with the Grandmother;
(2)the child to spend time with the Mother as follows:
(a)on Mother’s Day (10 May 2020) from 10.00am to 4.00pm;
(b)on Wednesday 13 May, 20 May and 27 May 2020 from 10.00am to 4.00pm;
(c)commencing Tuesday 2 June 2020, from Tuesday at 2.00pm until Thursday at 2.00pm and each week thereafter;
(d)by video call, via Facebook Messenger (or other medium as agreed) each Saturday, for up to 30 minutes between 6 – 7pm (or earlier as agreed); and
(e)such other times as may be agreed between the Grandmother and the Mother in writing.
(3)the Mother to continue to engage with her psychologist, attending at least once per month with the Independent Children’s Lawyer to have authority to confirm the Mother’s attendance and for the Mother’s psychologist to provide a report;
(4)the parties to complete a parenting course;
(5)the Grandmother to attend on a forensic psychologist or psychiatrist for the purpose of preparing a report in this matter;
(6)a family report to be prepared; and
(7)for the matter to be adjourned 13 November 2020 for an Interim Defended Hearing.
On 13 October 2020, a Family Report prepared by the Family Consultant was provided to the Court. By that report, the Family Consultant recommended that the Mother have sole parental responsibility for the child and for the child to live with the Mother. It was recommended that the child spend alternate weekends with the Applicants from Friday to Sunday. The Family Consultant also recommended that the Mother be supported by a community based agency, the Mother continue to attend therapy with her psychologist and that she and her partner undertake a further parenting program.
On 11 November 2020, the Applicants filed an amended initiating application seeking, amongst other things, for the parties to have equal shared parental responsibility for the child and for the child to live with the Mother. Further orders were sought for the child to spend time with the Applicants each alternate weekend from Friday until Sunday and for half of all school holidays. The Applicants also sought that, in the event of any dispute as to final parenting orders, the parties attend Family Dispute Resolution.
On 13 November 2020, interim orders were made for, amongst other things, the orders of
7 May 2020 to remain in full force and effect, for the matter to be adjourned to 23 February 2021 for directions and for the matter to be listed for final hearing on 24 May 2021.
On 22 February 2021, orders were made in Chambers by consent relevantly for the directions hearing on 23 February 2021 to be vacated, for the orders of 13 November 2020 to remain in full force and effect, and for the child to spend time with the Mother on her birthday and on Mother’s Day.
On 15 April 2021, the Applicants filed a further amended initiating application seeking, amongst other things, final orders for:
(1)the parties to have equal shared parental responsibility for the child,
(2)the child to live with the Applicants;
(3)the child to spend time with the Mother:
(a)In 2021, until the commencement of school in 2022, each alternate weekend from Thursday until Sunday;
(b)From the commencement of school in 2022:
(i)each alternate weekend from Friday to Sunday;
(ii)for 7 nights of all school holiday periods;
(c)on various public holidays and special occasions; and
(4)in the event of any dispute as to final parenting orders, the parties attend Family Dispute Resolution.
On 10 May 2021, the Mother filed a further amended response, seeking that:
(1)she have sole parental responsibility for the child and for the child to be transitioned into living with her,
(2)the child to spend time with the Applicants:
(a)on various days in May and June 2021, and ultimately for the child to spend to spend time with the Grandmother (with the Second Applicant to be in substantial attendance) every third weekend from Friday to Sunday; and
(b)on various public holidays and special occasions.
The matter came before the Court for final hearing, and was heard between 24 May 2021 and 27 May 2021. At the conclusion of the hearing on 27 May 2021, the matter was adjourned to 10 June 2021 for closing submissions to be delivered by the parties. Orders were also made for the parties to file and serve written submissions and a proposed minute of final orders by 4.00pm on 9 June 2021. The Independent Children’s Lawyer filed submissions and a proposed minute of final orders on 8 June 2021, and the Applicants and the Mother filed their respective material on 9 June 2021. The matter returned before the Court on 10 June 2021, and all parties made oral closing submissions. All of the parties had Counsel appear on their behalf on each day of the hearing. At the conclusion of the hearing on 10 June 2021, judgment was reserved.
FINAL ORDERS SOUGHT
In respect of final orders sought by each of the parties, the primary points in dispute are parental responsibility and spend time arrangements.
The Applicants’ Proposed Orders
By way of the proposed minute of final orders provided to the Court on 9 June 2021, the Applicants relevantly seek orders as follows:
(1)the Applicants have sole parental responsibility for the child and the child live with them in City C;
(2)the Applicants consult with the Mother regarding issues concerning the child’s medical and educational needs, endeavouring to reach agreement regarding those issues, but having the final decision in relation to any issues that arise;
(3)the child spend time with the Mother as follows:
(a)in 2021 until the commencement of school in 2022, each fortnight from 4.00pm on Thursday until 4.00pm on Sunday;
(b)from the start of school in 2022, each fortnight from 4.00pm on Friday until 4.00pm on Sunday;
(c)should the Mother relocate to City C then the child shall spend time with the Respondent Mother for the first 3 weekends of each month from 3.30pm on Friday until 5.00pm on Sunday or as otherwise agreed in writing between the parties.
(d)commencing at the end of Term 1 in 2022, the child spend time with Mother for 7 nights of all gazetted school holiday periods as agreed and failing agreement, to commence at 4.00pm on the Respondent Mother’s usual Friday changeover until the following Friday at 4.00pm for 7 consecutive nights and that any provision for time in this Order that is inconsistent with school holiday time be suspended during gazetted school holiday periods;
(e)unless otherwise agreed in writing, the child spend special days with the Respondent Mother as follows:
(i)from 10.00am Christmas Eve until 10.00am Boxing Day each year; and
(ii)for the Respondent Mother’s birthday, the child’s birthday, and Mother’s Day, if the child is not already spending time with the Respondent Mother from 11.00am until 3.00pm if the birthday/s fall on a weekend; and from 4.00pm until 7.00pm if the birthday/s fall on a weekday.
The Mother’s Proposed Orders
By way of the proposed minute of final orders provided to the Court on 9 June 2021, the Mother relevantly seeks orders as follows:
(1)the Applicants and the Mother have equal shared parental responsibility for the child, in relation to all medial decisions related to the child;
(2)from the date of these orders until 10 January 2022, unless otherwise agreed between the parties in writing, the child live with the Applicants, and on that basis the child spend time and communicate with the Mother as follows:
(a)from 2:00pm on Tuesday until 2.00pm on Thursday for a period of six (6) weeks;
(b)from 2.00pm on Tuesday until 2.00pm on Friday for a period of eight (8) weeks; thereafter;
(c)from 2.00pm on Tuesday until 2.00pm on Saturday for a period of eight (8) weeks; thereafter;
(d)from 2.00pm on Tuesday until 2.00pm on Sunday for a period of eight (8) weeks; thereafter;
(e)from 2.00pm on Tuesday until 2.00pm on Monday thereafter; and
(f)at such further or other times as may be agreed between the parties in writing.
(3)from 10 January 2022, the child live with the Mother in the City C region, and on that basis the child spend time and communicant with the Applicants, with the Second Applicant in substantial attendance, as follows:
(a)during school terms, from 6:00pm on Friday until 4:00pm on Sunday and each alternate weekend thereafter;
(b)for one week during all gazetted school holiday periods as agreed between the parties in writing and failing agreement:
(i)from the conclusion of school on the day of the school term (or 3:30pm) until 3:30pm on the second Saturday of the holidays for the term 1, 2 and 3 school term holidays; and
(ii)from 5 January until 12 January during the long summer school holidays;
(c)by video call via Facebook Messenger every Wednesday for a period of up to 30 minutes between 6:00pm and 7:00pm (or earlier as agreed) with the First Applicant to either use her Facebook account or that of Second Applicant to initiate the call to the Mother’s Facebook account;
(d)Such other times as may be agreed between the parties in writing; and
(4)notwithstanding any other order, the child spend time with the Applicants and the Mother on various special occasions, including the Mother’s birthday and the Applicants’ birthdays, the child’s birthday, Mother’s Day, Easter and Christmas.
The Independent Children’s Lawyer’s Proposed Orders
By way of the proposed orders filed with the Court on 8 June 2021, the Independent Children’s Lawyer relevantly seeks orders as follows:
(1)the Applicants have sole parental responsibility for the child, and the child live with the Applicants;
(2)if the Mother remains living in Melbourne, the child spend time with her as follows:
(a)in 2021 until the commencement of school in 2022, each alternate weekend from 4.00pm on Thursday until 4.00pm on Sunday;
(b)upon the child commencing school in 2022, each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;
(c)commencing at the end of Term 1 in 2022, during the school term holidays for half of the school holiday period as agreed, but failing agreement from 4.00pm on Friday (being the last day of school) until 4.00pm on the mid-Saturday of the holiday period;
(d)commencing the end of Term 4 in 2022, during each of the long-summer holidays, for half of that period as agreed, but in default of agreement on a week-about basis commencing from 4.00pm on Friday (being the last day of school) until 4.00pm on the following Friday, and each alternate week thereafter;
(3)if the Mother relocates to City C on or before January 2022, the child spend time and communicate with the Mother as follows:
(a)in 2021 until the commencement of school in 2022, each alternate weekend from 4.00pm on Thursday until 4.00pm on Sunday;
(b)upon X commencing school in 2022, each alternate weekend from the conclusion of school on Friday until 4.00pm on Sunday; then
(c)commencing at the beginning of Term 2 in 2022, each alternate weekend from the conclusion of school Thursday until 4.00pm on Sunday; then
(d)commencing at the beginning of Term 1 in 2023:
(i)each alternate weekend from the conclusion of school Thursday until the commencement of school the following Monday;
(ii)in each other week, from the conclusion of school Thursday until the commencement of school the following Friday;
(e)commencing at the end of Term 1 in 2022, during the school term holidays for half of the school holiday period, as agreed but failing agreement then from the conclusion of school on Friday on the last day of the school term until 4.00pm on the mid-Saturday of the holiday period;
(f)commencing the end of Term 4 in 2022, during each of the long-summer holidays, for half that period as agreed, but in default of agreement then on a week-about basis commencing the conclusion of school on Friday on the last day of term until 4.00pm on the following Friday, and each alternate week thereafter; and
(4)notwithstanding any other orders, the child spend time with the parties on various special occasions, including Christmas, Mother’s Day and the child’s Birthday.
EVIDENCE
This case is an example of the effects of ongoing, high-level conflict between two generations of a family and where the effects of that conflict are felt in a powerful and destructive way by all parties, but in particular by the third generation, in this case, the child.
A significant amount of time and energy could be spent trying to explain the level of conflict that has played out between the Mother’s biological parents and the effect that conflict had on the Mother. However, that is beyond the scope of the task that the Court is required to undertake and, in any case, to do so would ultimately be unproductive, or indeed counter-productive, to the determination of this matter.
Some brief history is necessary to understand how the present arrangements came into place. Whilst I will only set out a brief history, to the extent that it is not set out below, I have also taken into account the significant amount of evidence filed as to the historical background of matters and events that have occurred which are relevant to these proceedings.
The Mother is the child of the First Applicant and Mr K Fairburn. The medical report of Dr H, Psychiatrist, in relation to the Mother notes that the First Applicant commenced a relationship with Mr K Fairburn when she was 15 years old and he was 26 years old. The report notes that she started working at Company N, in which Mr K Fairburn is involved, when she was 13 years old. That is the same company where the Mother now works.
The relationship between the First Applicant and Mr K Fairburn was plainly difficult and there was subsequently protracted family law proceedings regarding the three children of the relationship (including the Mother in these proceedings). The relationship between the First Applicant and Mr K Fairburn continues to be highly fractious, if not downright hostile. Mr K Fairburn has adopted a position in these proceedings as being aligned with the Mother and uses that position as a platform to maintain hostilities with the First Applicant. The First Applicant was also openly hostile in relation to Mr K Fairburn when giving evidence at the final hearing. To his credit, Mr K Fairburn assisted the Mother in finding employment, as well as supporting the Mother and Mr L to obtain accommodation. In his evidence, he adopted the position that the developmental issues that have been identified in relation to the child are:
(1)exaggerated matters that will ultimately pass as the child grows up; and/or
(2)caused by the First Applicant.
The Mother has clearly had a difficult childhood with the breakup of her parents’ relationship and the ongoing litigation between them when she was a child. She has also had to deal with the effects of a series of unsuccessful attempts by the First Applicant to establish a new relationship, until she met the Second Applicant. Arising out of those difficult circumstances, the Mother commenced the relationship with the Father of the child in 2013, when she was
14 years old and he was 20 years old. The child was born in 2016 as a result of that relationship.
When the Mother was three months pregnant she moved in with the First Applicant in City C. The Mother then subsequently returned to live with the Father in Melbourne at his mother’s house, and continued to do so until the child born. At that point in time the Mother was
16 years old.
In July 2016, the Mother returned to live with the First Applicant whilst the Father remained in Melbourne. The First Applicant deposes that the relationship between the Mother and the Father ceased in January 2017. There were proceedings issued between the Mother and the Father and a recovery order was made in order to return the child to the Mother (from the Father’s family). This all occurred when the child was young and the Mother was approximately 16 years old.
The Mother was living with the Applicants and was challenged by the situation, in dealing with the young child, a violent ex-partner (the Mother gave evidence of the Father breaking her ankle and I accept that evidence and the other evidence she gives of being subjected to significant violence by the Father) and trying to get along with her own mother at a point in time when she was approximately 16 years old.
In that context, in 2017, the Mother and child were admitted to City C Hospital’s Mother/Baby Unit to obtain assistance. The Mother celebrated her 18th birthday in that Unit. The First Applicant gave evidence that she supported the Mother through that process and that was not disputed.
The Mother met Mr L in mid-2017, and at that point she was 18 years old and he was approximately 37 years old. At that time, the Mother and Mr L were using illicit substances including, at least on the part Mr L, crystal methamphetamine (“ice”). I note that Mr L lost his driver’s licence in October 2018 for 12 months for failing to complete a random drug test. In December 2017, the Applicants allowed Mr L to move into their house to live with the Mother and the child. This lasted until April 2018. At this point he was using ice and I accept the Applicants’ description that this was a very difficult situation, where they were caring for the child whilst the Mother and Mr L were using drugs. I accept the evidence of the Applicants’ regarding the behaviour of the Mother and Mr L during this period: see the First Applicant’s trial affidavit at [30] – [40].
I also accept that during this period the Applicants had assumed the role of primary (or near primary) carers for the child, given that the Mother and Mr L were using drugs and were often absent. In particular, I rely on the evidence of the Second Applicant in this regard. In his written and oral evidence it is plain that he was at pains not to exaggerate his evidence or denigrate any other person concerned with these proceedings. His account regarding the Mother and Mr L at this time suggests that they were chaotic and frequently hostile. It is clear that whilst the Mother loves the child, she was either not able or willing to prioritise his needs at that time.
In March 2018, there was an incident involving the Mother and one of the maternal aunts, who had been asked to stay at the Applicants’ home whilst they were away on holiday in Queensland. The incident ultimately involved the police being called and Mr L being placed in to a police vehicle. The Applicants had to cut short their holiday in order to return home after the incident, and the First Applicant says she had a conversation with the Mother and Mr L where he admitted he was 38 years old (where the First Applicant had been previously told he was 30 years old) and disclosed that he had been using illicit drugs at least three times per week for the past 20 years. I accept the First Applicant’s evidence regarding that conversation. The First Applicant gives further evidence that in or around March 2018, the Applicants asked Mr L to move out of the house, but he refused to do so until April 2018, following multiple further requests to leave the house.
In May 2018, Mr L sent the Applicants a series of extremely abusive and threatening text messages: see the First Applicant’s trial affidavit, annexure LYJ-2. For example, one text message sent by Mr L to the Second Applicant stated:
I’d be looking over your shoulder from now on [expletive], ya never known who’s gonna be around.
From in or around June 2018, the Applicants had the full-time primary care of the child. Without going into detail, the Mother’s behaviour deteriorated during this time, and the Applicants obtained an interim intervention order in their favour against the Mother and Mr L in August 2018. In relation to the Mother, the intervention order provides that the Mother may:
(a) Do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(b) Negotiate child arrangements by letter, email or text message regarding communication for parenting arrangements.
The intervention order was ultimately extended in January 2019. The First Applicant gives evidence that, at the time of the hearing at which the intervention order was extended, the Mother and Mr L presented at Court as drug affected and left prior to the matter being determined by a Magistrate.
I find that during the period of May 2018 and September 2019 and beyond, the Applicants were acting protectively of the child and, indeed, of themselves in seeking to obtain an intervention order.
In the context of this history, there is a five year old child who has a Global Developmental Delay, is unable to go to the toilet independently and has significant difficulties in communication. The expert opinions in this case are that the child will require significant professional support throughout his childhood and adolescent years. I note that, in making the orders as set out herein, the Court is directing the parties’ attention to those needs rather than dealing with peripheral issues.
The Applicants’ Evidence
Both Applicants gave evidence at the final hearing and relied on their trial affidavits, both filed on 28 April 2021, to which I have regard.
The First Applicant gave evidence which is largely outlined in the background set out above. A theme in the First Applicant’s evidence was that she wished the Mother and child to be in a position where the child could be returned to the Mother’s care. The First Applicant expressed concern that the Mother has not fully engaged with the full extent of the child’s needs and, given the child’s significant needs, the Mother is not presently in a position to provide the support and care that he requires.
Concerns were raised by the Mother, and to a degree the Independent Children’s Lawyer, as to the First Applicant’s capacity to appropriately care for the child, in particular in situations where the Second Applicant is at work, due to her chronic health issues, primarily vestibular migraines. Those migraines are said to be of such an unpredictable nature and severity that they render the First Applicant unable to maintain employment and can affect her for days at a time. As a result, the First Applicant is in receipt of income insurance. In cross-examination, the First Applicant conceded that she has functional limitations and a limited ability to complete
day-to-day tasks around the house when she is suffering from a migraine. In cross-examination, the Second Applicant agreed that the First Applicant has functional limitations when suffering from a migraine, and gave the example of the First Applicant not being able to bend down to start the dishwasher.
Both Applicants gave evidence that, whilst the First Applicant’s health issues are challenging and may affect her capacity to care for the child, the Applicants are able to meet the challenges as they arise by, in effect, operating as a team. The First Applicant gave evidence at the final hearing that she is able to undertake day-to-day task when necessary, despite the somewhat debilitating effects of her migraines, and the Second Applicant gave evidence that he is generally able to return home promptly when needed to care for the child, subject to the time it takes to travel back to City C, due to his employment as a transport worker.
The Second Applicant impressed me as a measured, open and modest witness who was at pains not to give evidence about matters beyond which he was aware as a result of his own observations. He was not given to speculation or denigration of other people. He presented as fully engaged with the care of the child and going to whatever lengths he could reasonably take to provide for the child and to ensure that the child has a relationship with the Mother. He gave evidence that he would love for the Mother to step up as a parent, but that he believed that this has to happen over time and that many of the steps that the Mother has taken recently were all at the last minute and did not take into account all of the matters that the Mother had to deal with. He described his experiences of living with the Mother up until June 2018 when she was “spinning out of control” as well as his experiences of living with Mr L, who had a drug addiction and could not control his temper, either with the Mother, the child or the Applicants.
I accept without hesitation the Second Applicant’s account of the difficulties that occurred when the Mother and Mr L were living in the house with the child and the intermittent care they gave the child during that time.
The Mother’s Evidence
The Mother gave evidence at the final hearing and sought to rely on her trial affidavit filed on 19 May 2021, to which I have regard. Much of her affidavit evidence set out the background as to how the Mother took active steps leading up to the final hearing to make enquiries about treating professionals for the child in Melbourne.
In giving her evidence the Mother impressed me as a relatively young person (being 22 years old) who had been through a lot and had successfully put herself into a position where she was not using illicit drugs and was doing her best to focus on the needs of the child. She is actively addressing her mental health through regular attendances upon a psychologist and, in giving oral evidence at the final hearing, she seemed to have insights into the treatment she was receiving and getting benefits from it.
Whilst the Mother has been diagnosed as being affected by Borderline Personality Disorder (“BPD”), as set out below in Mr G’s evidence, there is no evidence that has been pointed to which demonstrates that condition has affected the Mother’s conduct since these proceedings were issued. There is no evidence that the Mother has not cared for the child whilst he has been in her care or that she has exposed the child to any significant risk whilst he has been in her care since these proceedings commenced. The Mother has complied with all orders made by the Court, including:
(1)completing and producing clean drug screens,
(2)completing and producing clean hair follicle tests,
(3)attending upon her psychologist on who she had previously attended; and
(4)completing drug and alcohol counselling and parenting programs.
However, I did receive the impression from the Mother’s evidence that she did not fully engage with the advice received from Ms O or Dr P in relation to the particular needs of the child and that lack of engagement is central to this matter.
Mr L’s Evidence
The Mother also called her partner, Mr L, to give evidence, who sought to rely on his affidavit filed on 4 May 2020, to which I have regard.
Mr L gave oral evidence at the final hearing that he was not using illicit drugs of any kind. He was reasonably candid about his extensive drug use up until reasonably recently, including the use of ice and cannabis on a regular basis.
He did not give the impression that he had a positive relationship with either of the Applicants. Further, he had a little insight into the effects of his behaviour whilst he was drug affected and living in the Applicants’ house and how that might have affected the Applicants and the child. Mr L was cross-examined about the circumstances of him being charged and convicted of intentionally causing injury in May 2008. Whilst I do not accept that this creates a basis for a finding that he has any propensity for violence, I have no doubt that when he was drug affected, in particular by ice, his presentation would have been frightening and the threats that he made in writing to the Second Applicant would have been terrifying to an ordinary person. Mr L gave evidence that he was ashamed about the words that he had used, but I note that he has never apologised, either in or out of Court, for his behaviour, whether in relation to the threatening language he has used or the fact that he was frequently and regularly drug affected in the Applicants’ house.
The Applicants make somewhat historical allegations as to family violence being perpetrated by Mr L against the Mother, usually involving abuse, coercive and controlling behaviours, and often whilst the child was present. However, there is no evidence that Mr L has been violent towards the Mother, or that he has presented a as danger to the child, since these proceedings were issued. In the future Mr L has to be very careful not to engage in the use of illicit drugs, in particular ice, and he must control his temper and moderate his behaviour, given that he will regularly have a child with high needs in his care (as he lives with and is in a relationship with the Mother) who may present challenges to the Mother and him.
Mr K Fairburn’s Evidence
Mr K Fairburn, who is the Maternal Grandfather, relied on his affidavit filed 29 April 2020. In his oral evidence he confirmed that his relationship with the First Applicant was highly conflictual and had been since about 2004.
He gave evidence that he was assisting the Mother by supporting her in rental accommodation and noted that she is working in Company N in which he is the Chairman of the Management Committee.
The most striking evidence that Mr K Fairburn gave was that he does not believe that the child has special needs, and said that he believes that the child is very similar to the Mother, and that once she went to school she got over speech problems which she had as a child. He said that he saw no behaviour warranting any assistance from a psychologist and that there is no need for the intervention of any therapist or speech pathologist. As to the child’s toileting issues and self-care, his view is that any problems in that regard could be resolved through a change of diet. He blamed the poor diet and the child’s reticence to use the toilet on the First Applicant.
I pause at this point to say that this evidence and, indeed, these views, are not helpful to the Mother or the child. The overwhelming evidence in the case is that the child is affected by significant developmental delay which affects his capacity to self-care and communicate. I assume that Mr K Fairburn’s views about the child have affected the Mother, which is entirely understandable given her age, relative lack of experience in these matters and the influence of her Father.
On a positive note, Mr K Fairburn is supporting the Mother and her partner in tangible ways, including assisting her in housing, paying for the fees associated with her treatment by Mr G and otherwise supporting the Mother in this difficult time. He appears to support the Mother’s relationship with Mr L.
The Family Consultant’s Evidence
The Independent Children’s Lawyer called the Family Consultant to give evidence at the final hearing in respect of the contents and recommendations set out in the family report dated
13 October 2020.
By the family report, the Family Consultant notes that it appears there is continued hostility between the parties, and that they have a limited capacity to cooperatively parent and care for the child and his needs. The Family Consultant stated the parties’ capacity to co-parent is unlikely to change without considerable therapeutic input for both the First Applicant and the Mother. The Family Consultant set out at [96] of the family report that:
96. Both the mother and the maternal grandmother and their respective partners are critical of the others parenting of X and each believes any delays or difficulties X experiences are the direct result of inappropriate care and understanding of X's needs. For example, diet and constipation are according to the mother and Mr L due to a high intake of carbohydrates and limited fruits and vegetables. In the alternative, Ms Sandberg believes X's routines are disrupted from spending time with his mother and Mr L, and that he continues to be exposed to illicit substance use.
In respect of the First Applicant’s health, the Family Consultant noted that her mental health history is significant and that she had chronic pain and neurological issues. Of greater concern to the Family Consultant was the First Applicant’s physical health, which the Family Consultant indicated must be considered when making orders in relation to future parenting arrangements. The Family Consultant stated that Second Applicant has a significant role in the care of the child, particularly when the First Applicant is unwell. The Family Consultant noted that this occurs in the context of the Second Applicant continuing to work full time.
However, the Family Consultant sets out that the child’s early development was affected by his exposure to family violence, transient parenting, the unavailability of the Mother or the child’s Father for a significant period of time, and this resulted in delays in his development. The Family Consultant states the Applicants have provided the child with stability and predictability, and ensured that his needs are met. It is said that the child will benefit from continued consistency and predictability in his routines going forward and should receive clear explanations of any changes that do occur.
In relation to the arrangements for the child that should occur in the future, the Family Consultant states that it is in the child’s best interests to live primarily with the Applicants or the Mother and to spend consistent time with the other. The Family Consultant also indicates that, regardless of which party the child lives with, that party should have sole parental responsibility for the child, so as to prioritise the child’s needs, because the parties are incapable of doing so and shared parental responsibility would likely lead to further familial hostilities and litigation.
The Family Consultant provided a summary of their position at [99] – [102] of the family report as follows:
99. Ms Fairburn is X's mother, she has been in her current relationship for three years and settled in accommodation for a similar amount of time, which is significant given her early years of parenting X. Ms Fairburn is a young mother and it is likely she may face other challenges going forward. It is the writer's view she will likely be able to manage any challenges, if she is well supported by both family and community services in her area and she continues to engage in the recommended therapy and reaches out for support when required. Ms Fairburn has experienced difficulties parenting X but has attended and complied with an in house Parent Infant Unit Program. She has complied with all Court Orders attending for drug and alcohol rehabilitation, attending supervised time and now having X in her care for two nights each week.
100. Ms Sandberg and Mr Jankovic, as grandparents have stepped up and care for X, whilst Ms Fairburn has been unable to do so. On balance and the basis of information provided and interviews, it is the writer’s assessment that X will into the future and for longevity of his relationships, benefit if he lives primarily with his mother and there are regular and consistent opportunities for him to spend time with his maternal grandmother, Mr Jankovic and also his maternal grandfather and other extended family.
101. If the decision of the Court is for X to live primarily with Ms Fairburn, as recommended by the writer, it is acknowledged the transition will be a significant upheaval for X and will require substantial planning and structures in place.
102. Ideally X should be settled and living with Ms Fairburn at least two weeks before the 2021 kindergarten and school year commence which is the end of January. X would benefit from gradual increases in time spent with Ms Fairburn, which is currently two nights a week, to three nights each week, increasing so that after the holiday season or by the end of the first week in January 2021, X is spending a full week with his mother and weekends with Ms Sandberg and Mr Jankovic. Once X commences kindergarten the writer recommends time with Ms Sandberg and Mr Jankovic is every second or third weekend to allow for X's kindergarten routines to be established. X would benefit from attendance with a psychologist to assist him with the transitions.
On that basis, the Family Consultant made recommendations at [103] of the family report as follows:
103. Based on the available information and in the absence of evidence to the contrary, it is respectfully recommended;
a) If X is to live with Ms Fairburn, sole parental responsibility should be with her as the primary care giver.
b) X is to live primarily with his mother, Ms Fairburn.
c) Ms Fairburn is to continue to attend therapy, cognitive behavioural therapy as recommended by Mr G.
d) Ms Fairburn and Mr L would benefit in their parenting of X if they were to attend a parenting program, such as Positive Parenting or Tuning into Kids.
e) Ms Fairburn would benefit from support from a community based agency in the area. R Community Services offer a range of parenting support services, City T. U Families have services located throughout metropolitan Melbourne.
f) Ms Fairburn is to ensure X is enrolled as soon as possible, into 4-year old kindergarten to commence in 2021 when the school year begins. Kindergarten hours are limited and it is recommended initially X does not attend child care every day, so that he can settle into a routine and time with Ms Fairburn.
g) Ms Fairburn is to remain engaged with NDIS services for X and is to organise and follow up a full behavioural paediatric assessment before X commences school.
h) X is to spend alternate weekends from Friday afternoon until Sunday 4.00pm with Ms Sandberg and Mr Jankovic in City C.
i) Mr L is to drive Ms Fairburn and X to changeover on Friday afternoon and collect on Sunday. In the event Mr L is unable to drive Ms Fairburn will need to take the train and meet Ms Sandberg and Mr Jankovic at City C station.
j) The parties are not to denigrate or criticise the other to or in front of X at any time.
The Family Consultant’s evidence at the final hearing was informed by her having read Ms O’s report and Dr S’ report, which are set out in part below. As a result of reading that material the Family Consultant recommended that the child remain living with the Applicants and spend time with the Mother on a regular basis. She recommended the child spend time with the Mother from Thursday until Sunday until the child commences school and then from 4.00pm on Friday to 4.00pm on Sunday. She said that if the Mother was to move to City C or the surrounding areas, then she would support the Mother spending increased periods of time with the child because the Mother would be able to participate in some the child’s daily activities, including taking him to school and picking him up after school. The Family Consultant expressed reservations in relation to the spend time arrangements proposed by the Mother as to how they would be managed, in particular, given the uncertainty in relation to the child’s level of cognition.
The Family Consultant acknowledged the First Applicant’s health issues but also noted that, whilst those issues may come to the fore as the First Applicant gets older, she is still relatively young, and as the child becomes more energetic he may be better able to express himself in relation to his views and choices, and may choose to spend more time or live with the Mother.
In relation to parental responsibility, the Family Consultant expressed the view that the party (or parties) who hold the primary care of the child should have sole parental responsibility with the proviso that that party should keep the other party up-to-date in relation to all issues and decisions made in respect of the child. In relation to the Mother having sole parental responsibility in relation to some matters, the Family Consultant recommended against this option, given the long history of disputes and animosity between the parties.
The Family Consultant also cautioned against any orders that contemplated a relocation of the child from City C (where the Applicants live) to Melbourne (where the Mother currently lives) at some point in time in the next three or four years. She noted that there may come a time that the child may want to live with the Mother, but she did not see that happening in the next three or four years. She said that if the parties were living relatively close to one another then the child’s time with the Mother might progress to a ‘5 and 9 arrangement’, in that the child spend five nights out of a fortnight with the Mother.
The Family Consultant also cautioned against forcing the parties to attend family therapy at this stage and if there was to be an improvement in their relationship, family therapy would have to come as a result of them both wishing to have significant change rather than that change being forced upon them.
Medical and Psychological Evidence
Mr G’s Evidence
Mr G, Psychologist, provided a psychological report of the Mother, based on 15 sessions conducted with the Mother from across 16 months. That report is an annexure to an affidavit filed on 7 April 2021. Mr G was called to give evidence by the Mother at the final hearing.
At [6] his report, Mr G noted that the Mother wanted to improve her communication skills and to work towards having full time care of the child. Mr G set out at [7] that throughout his sessions with the Mother, the Mother presented as someone who owned her mistakes and was candid about a number of issues, including her relationship with the First Applicant.
As a result of psychometric testing conducted on 18 December 2020, Mr G reports that the Mother scored “normal” in the depression, anxiety and stress categories. Mr G conceded that the test was subjective, but that it remains a useful measure of an individual’s progress over time. Mr G noted that the Mother’s presentation and symptoms were consistent with her test.
Mr G notes that he has previously assessed the Mother as living with BPD, and although he had not observed the symptoms directly, her history and behaviours were consistent with those of symptoms of someone diagnosed with BPD.
At [13] of the report, Mr G noted that some of his previous comments were discussed at a previous Court event, in particular, his comment that “Ms Fairburn has developed some satisfactory coping strategies to complement her “avoidance” strategies”. Mr G clarifies that his use of the word ‘satisfactory’ is based on his observations at the time, and the limited opportunities for testing the Mother’s coping skills, due to a portion of the Mother’s treatment not occurring face to face. Mr G indicates that the Mother’s adaptability and learning of those skills were acceptable, and he did intend for his previous commentary to be interpreted as stating that the Mother’s coping skills were inadequate. Mr G notes at [14] that “I have recently observed Ms Fairburn coping skills in sessions and have found those skills to be good.”
Mr G conceded in the report that he has not observed the Mother using her parenting skills in a practical setting, and as a result he is unable to comment on specific parenting skills. However, he states that, in the course of his sessions with the Mother, the Mother presented as having determination and commitment to being a full-time parent, through consistent and regular psychological therapy. Mr G states that his overall observations of the Mother are consistent with her reported psychometric testing, which indicate that the Mother’s scores were in the normal range. Mr G stated that he has not observed any behaviours that would indicate increased risks in relation to the Mother’s parenting skills.
At the final hearing Mr G gave evidence in relation to his treatment of the Mother and recommendations in relation to therapy that she may engage in to assist her. Understandably he had a limited understanding of the background of the conflict between the Mother and the First Applicant. He did give the impression that the Mother was making a genuine effort to engage and had made real progress in dealing with the psychological effects of the trauma that she has been exposed to over the years since about the age of at least fourteen.
Ms O’s Evidence
Ms O, Psychologist, provided a psychological report of the child as an annexure to an affidavit filed on 18 May 2021. Ms O was called to give evidence by the Independent Children’s Lawyer at the final hearing.
By her report, Ms O states that the child is delayed in a range of areas including speech, language, communication, peer interactions, social skills as well daily living skills, such as toileting and self-care. Ms O indicates that due to the child’s delays in development, the child will require ongoing, regular support throughout his childhood. Further, due to previous trauma, disrupted attachment and emotional stress, Ms O says that it is important the child receives monitoring and support for his emotional and psychological needs.
Ms O gives the opinion that the Mother presents as dismissive of the child’s needs in sessions with her. Ms O reported that the Mother acknowledged some speech concerns, but did not demonstrate that she understands, or is willing to learn about, the extent of the child’s developmental delays. Ms O indicates that if the child is returned to the Mother’s care whilst she is in Melbourne, the child is not linked to any services or education that would help him and therefore there are safety concerns for the child due to a lack of protective factors. On that basis, Ms O recommends that there be ongoing parental education around the child’s delays so that the Mother can meet the child’s needs and that the child regularly attend therapy or kindergarten/school so as to monitor the child’s behaviour and any distress.
Ms O goes on to say that the Mother does not acknowledge the potential damage she caused the child when she left him in the care of the Applicants for an extended period of time, and recommends that the Mother and the child engage in mental health support together to repair their relationship, which would begin with an acknowledgment by the Mother of why such therapy is necessary.
In respect of the child relocating to live with the Mother in Melbourne (and therefore leaving the Applicants’ residence), Ms O indicates that there would be significant psychological challenges in doing so, as it could represent an additional trauma for the child. Ms O recommends that the transition be gradual so as to allow the child time to adjust. Ms O states that it is important the child maintain contact with the Applicants, particularly as the child’s relationship with them is a source of enjoyment and support for the child.
Ms O concludes her report by stating that it is essential the child’s severe and ongoing impairments are not overlooked when determining care arrangements and parental responsibility in this matter.
At final hearing, Ms O gave evidence that she had been working with the child for over a year and had worked with his case worker, Mr T, Speech Pathologist. Initially she had worked with the child through a service called Noah’s Ark but had subsequently worked through Therapy Connect pursuant to an NDIS plan arranged by the First Applicant.
Ms O confirmed in her evidence that her main involvement in 2020 was with the Applicants and in 2021 she had also had appointments with the Mother and stated that she been working well with her. The Mother’s involvement came at the request of the Applicants.
Ms O did stress the view that she feels that the Mother does not understand the full extent of the child’s developmental delays and the fact that the child will require long-term support. In examination by Counsel for the Mother, Ms O stated that:
So it’s my perspective from my appointments with Ms Fairburn that she does not understand the full developmental delays and the extent of them for X. He is a five year old boy with largely unintelligible speech without context, and without a prior relationship with him it is very hard to understand anything of what he says. Ms Fairburn does acknowledge there are speech difficulties, however, it was very hard to get her to engage in discussions about therapy and treatment for this. Also, she did not recognise developmental delays in play, in social skills, in emotional skills, in some of his cognitive areas such as concentration and attention. She did discuss toilet training as a concern, but did not pick up on other elements of self-care.
(Transcript, page 5, line 25 – 33)
In cross-examination by Counsel for the Mother, Ms O did acknowledge that her impressions of the Mother’s involvement with the child in 2020 were gained through reports from the Applicants rather than having any knowledge as a result of having spoken to the mother. Ms O’s evidence, which I have set out above, was based on her impression from conversations with the Mother in 2021.
In respect of evidence that X was attending kindergarten twice a week, but the Mother was not able to enable that to happen on a Wednesday, Ms O emphasised the need for the child to attend kindergarten more often than two days per week because of delays in a range of areas including play, social skills and emotional skills and that the child would start develop age-appropriate relationships if given the opportunity.
In relation to education, Ms O stated that it was appropriate for the child to complete a cognitive assessment and then consult with treating practitioners as to the best choice of school for him. There will also have to be some care taken with the cognitive assessment due to the child’s speech characteristics.
Dr S’s Evidence
During the course of the final hearing, Counsel for the Respondent tendered a letter of Dr S, Paediatric Fellow, which provided a medical assessment of the child and his ongoing needs: see exhibit R1. That letter was accepted by all parties and Dr S was not called to give evidence at the final hearing.
By that letter Dr S sets out that she has been seeing the child in her capacity as a Paediatric fellow at D Health Care since January 2021. The child’s first appointment was on 29 January 2021, and there was subsequently four telehealth appointments. Dr S’s opinion is said to be based on her observations of the child and information provided by the Applicants and the Mother.
The Applicants raised a number of concerns including, but not limited to, food fussiness, communication difficulties, toileting issues and sensitivity to loud noises and aggressive tones. The Mother is said to have raised concerns in relation to speech delays and bowel issues. Dr S note that these issues are occurring in circumstances of intergenerational trauma in the Mother and First Applicant’s family. Dr S also notes that concerns were raised by the Applicants as to whether to the child was exposed to drugs in utero and possible exposure to family violence. Dr S sets outs that the Mother told her that she stopped taking any substances as soon as she found out she was pregnant. The Mother said she experienced family violence from the child’s biological father, but denied any family violence in her current relationship.
Dr S gave the opinion that the child is suffering from very significant delays in his speech and language development, as well as delays in his social-emotional development and play skills. Dr S sets out that children who have delays in two or more areas are said to have a Global Developmental Delay (“GDD”), however stresses that GDD is not a single medical condition, rather it is a descriptive diagnosis. Dr S gives the opinion that the child suffers from a GDD, but does not currently meet the criteria for an underlying neurodevelopmental disorder.
Dr S sets out that children who experience family violence, disruption of primary relationships or other toxic stressors in early childhood are at significantly increased risk of having developmental and behavioural difficulties, however, those factors do not entirely explain all of the child’s currently difficulties in this case. Dr S stresses that the child is “developmentally vulnerable and will require ongoing early childhood supports and monitoring by a Paediatrician.”
Dr S then gave recommendations as follows:
•That X be enrolled in, and regularly attend, a funded Kindergarten program. This will help him develop his social-emotional and play skills, as well as promote language development. Funding is available for developmentally vulnerable children to attend a Kinder program 5 days per week.
•That X, and his carer(s) continue to receive regular input from a qualified Speech Pathologist to work on his speech and language development. This intervention is most effective when parents/carers are engaged with sessions, and can integrate strategies from therapy sessions into the home environment and day-to-day routines.
•That X and his carer(s) continue to engage in regular Play Therapy sessions with a qualified Psychologist.
•That X continue to have regular paediatric follow up, with a Paediatrician experienced in the assessment and management of developmental and behavioural difficulties. He will also require ongoing input regarding constipation and toileting.
•That X’s carer(s) understand his current developmental needs, support his developmental needs in the home environment and be able to co-ordinate and engage with appropriate services. X is likely to continue to require a great deal of additional support, compared to his peers, throughout childhood and adolescence.
I note that Dr S, quite rightly, says that she does not routinely make recommendations in relation to parenting capacity, as this is beyond her scope of practice. Dr S states that the capacity of each party to comply with the above recommendations should be considered when deciding parenting matters, such as parental responsibility and care arrangements.
CONSIDERATION
For the reasons set out below, in my view, the orders sought by the Independent Children’s Lawyer are in the best interests of the child.
Equal Shared Parental Responsibility
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This is true when the Court is making interim orders, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
However, s61DA(2) of the act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
Having regard to the evidence of Ms O, Dr S and the Family Consultant, in my view, the interests of the child are best served by the party or parties who have primary care of the child having sole parental responsibility. Given the current lack of capacity between the parties to cooperate in relation to decision-making, and given the disparate views that they have in relation to the needs of the child, I am of the view that orders being made for the Applicants to have sole parental responsibility is likely to lead to greater stability for the child and more effective decision-making in his bests interests. The parties are at a point where a significant amount of work is required to assist the child and serious decisions with far-reaching consequences must be made. I will order that the Applicants keep the Mother of informed of all major decisions that are made in relation to health and education of the child. I am mindful of the views expressed by Ms O and Dr S that the child’s impairments are severe and ongoing and he needs all the help that he can get.
Statutory Considerations
By operation of s60CA of the Act, the Court is required to have regard to the best interests of the child as the paramount consideration when making parenting orders. To determine what is in the best interests of the child in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
The Father has not participated in these proceedings and has not seen the child for some time. The orders made provide for the child spending time with the Mother and for that time to increase in the event that the Mother relocates to the City C region. The child will have a meaningful relationship with the Mother under the terms of the orders that the Court will make.
s60CC(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.
In my view there is no risk to the child living with the Applicants. The point has been made in the course of proceedings that the First Applicant suffers from health issues which, at times, can be quite debilitating, but I note that she has significant assistance from the Second Applicant. There is also no evidence that those issues have affected the child to the extent that he has been exposed to abuse, physical harm or psychological harm.
There have been times where the Mother was not in a position to properly care for the child and was overwhelmed by the circumstances that she found herself in, but that is in the past and presently there is no evidence that the child is at risk of any of the matters referred to in s60CC(2)(b).
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
The child is not presently in a position to express his views, however, it is apparent that the child enjoys spending time in each of the households.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
This is set out above.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
There was a period of about 18 months from June 2019 when the Mother was, in effect, not involved or participating in the child’s life or his care. Since that time the Mother has gradually taken a greater role in relation to spending time and communicating with the child. Once supervised time commenced in September 2019 the Mother has taken all opportunities to spend time with the child as provided for by orders of the Court. In recent times the Mother has also sought to become more involved in longer-term decisions about the health and welfare of the child. I fully understand why she may not have done this previously as the child was not in her primary care and there are real difficulties associated with trying to organise appointments/treatments when that is the case.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Applicants have assumed primary responsibility for maintaining the child and have done so for a significant period of time. However, there is no suggestion that the child is not properly maintained whilst in the care of the Mother.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If the orders that were sought by the Mother were made, in my view, there would be a substantial change of circumstances which may have a detrimental effect on the child. The strong message that came from the evidence of the Family Consultant at trial was that it is most important that the child have stability and certainty. I agree that the continuity of care offered by the Applicants at this time is most important for the child and the change of circumstances as a result of any change of primary residence are more than likely to have a significant detrimental effect on the child and his health issues. The child faces significant challenges and, in order to meet his needs, it in his best interests that he maintains treatment from the health professionals who are engaged with him. I also have regard to the evidence of Ms O and Dr S regarding the paramount importance of the primary carers being able to continue to engage in supports for the child. The Applicants are best placed to do that and have demonstrated a capacity to do so.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the Mother is to remain in the Melbourne area this will likely present as a significant practical difficulty for the Mother given that she does not drive and the respective residences of the parties are about two hours and fifteen minutes apart by car. However, submissions were made on behalf of the Mother that she intends to relocate to City C or the surrounding areas in the near future if orders are made for the child to live with her. In cross-examination, Mr L stated that he was not against moving back to City C and to do so would not create a problem for him.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
In my view the Applicants have a greater capacity to provide for the needs of the child at this time, in particular, given his significant needs and because the Applicants have a greater appreciation of those needs than the Mother. I have no doubt that the Mother, as she experiences greater stability and continues to receive psychological assistance, will develop greater skills, and it is hoped that she will be in a position to provide care as the primary carer of the child in the future. However, the Mother is not at that point at present because of the very high needs of the child and the vital importance of his need to maintain arrangements with services.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The background of each of the parties is discussed above and it is apparent that both the First Applicant and the Mother have struggled at times. The Mother is still young and she has been through an awful lot, in particular, when she was a teenager. That said I am not persuaded that she has the framework or capacity available to her to deal with the issues faced by the child in the short to medium term. It is essential that the child receive the benefit of the stability afforded by being in the care of the Applicants, who have been his primary carers since in or around June 2018.
s60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in this matter.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
Whilst there have been difficulties in the past in respect of the Mother’s attitude and approach to parenting the child, at the time of the final hearing, the Mother gave the impression of being very caring and loving the child. My concern is that she did not fully appreciate the extent of his needs and had not established the frameworks or networks necessary to respond to those needs.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
I have set out the evidence of family violence above. I have no doubt that the Applicants were the subjects of family violence whilst the Mother and Mr L were drug affected and living in their house. Mercifully, that seems to be in the past and it is hoped that Mr L can reach out to the Applicants and make a proper apology in respect of his previous conduct. The changeovers and ongoing interactions between the Applicants, the Mother and Mr L are likely to be uncomfortable for them and the child if that does not occur.
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
As set out above, there was previously a family intervention order in place against the Mother and Mr L in favour of the Applicants and the child. However it is said that order has expired, and as at the time of the final hearing, the Court is not aware of any family violence order that applies.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
I have sought to make orders that are least likely to lead to further proceedings being issued. The orders that are made take into account whether or not the Mother moves to the City C area and are an attempt to avoid the need for further proceedings.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
Whilst the Family Consultant suggested that it may not be appropriate to make any orders in relation to family therapy, each of the parties sought orders that it occurs and accordingly the orders reflect that. It is hoped that, through family therapy, the parties will be able to better cooperate in order to work in support of the best interests of the child, who is a young boy currently facing significant challenges now and will continue to do so into the future.
CONCLUSION
For these reasons I will make orders in the terms proposed by the Independent Children’s Lawyer, subject to some modification. The Court was assisted by Counsel who appeared at the final hearing and their efficient conduct of the hearing. The clear and succinct written submissions that were filed by the parties’ legal representatives are greatly appreciated.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 10 September 2021
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