Scott & Anor & Ross

[2012] FamCA 193

FAMILY COURT OF AUSTRALIA

SCOTT AND ANOR & ROSS AND ANOR [2012] FamCA 193

FAMILY LAW - CHILDREN - Parental responsibility - With whom a child lives - Family violence - Mother and father have not participated in these proceedings for quite some time - Children have been in the maternal grandparents’ full time care for years - Applicant maternal grandparents to have parental responsibility for the children - Children live with the maternal grandparents

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANTS: Mr M Scott and Ms E Scott

1^st RESPONDENT: Mr Ross

2^nd RESPONDENT: Ms A Scott

INDEPENDENT CHILDREN’S LAWYER: Mr Powe

FILE NUMBER: NCC 632 of 2007

DATE DELIVERED: 2 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 28 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Thornton, Cragg Braye & Thornton

SOLICITOR FOR THE 1^ST RESPONDENT: No appearance

SOLICITOR FOR THE 2^ND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN Mr Powe, Rod Powe Lawyers

Orders made 28 july 2009

1. That all prior parenting orders and injunctions for the welfare of the children made in these proceedings are discharged.

2. That Mr M Scott and Ms E Scott (the Applicants) have equal shared parental responsibility for the children C born … October 2005 and L born … November 2006.

3. That the children live with Mr M Scott and Ms E Scott.

4. That the children spend time with the Mother as agreed between the Mother and the Applicants, such time to be supervised by Ms E Scott.

5. That the children spend time with the Father as agreed between the Father and the Applicants, but failing agreement one occasion each calendar month, such time to be supervised by and occur at the W Contact Centre subject to the direction of the said Centre.

6. For the purpose of arranging supervision the Father and the Applicants shall contact the W Contact Centre within 14 days of the date of these orders to arrange an intake assessment:

   (a)That the Father and the Applicants attend the intake assessment as arranged.

   (b)That the Father and the Applicants comply with all reasonable directions of the staff of W Contact Centre.

   (c)That the Father be responsible for the payment of all costs associated with the supervision.

7. That the Applicant Grandfather shall attend counselling with a drug and alcohol counsellor or allied health professional in relation to his consumption of alcohol with the counselling to commence as soon as possible and continue for so long as the counsellor/therapist deems necessary.

8. The Court Notes it will be sufficient compliance with the above order if the Applicant Grandfather attends Alcoholics Anonymous on a regular basis.

9. That the Applicant Grandfather shall provide any counsellor he attends in compliance with Order 7, a copy of paragraphs 44 to 59 of the Family Report dated 26 March 2009.

10. That the Applicants have leave to provide to any medical practitioner or allied health professional who the children consult from time to time, a copy of the Family Report dated 26 March 2009 and a copy of the Children & Parents Issues Assessment dated 9 September 2008.

11. That the Applicant Grandfather is restrained from consuming alcohol beyond 0.05 whilst the children are in his care.

12. That the Independent Children’s Lawyer has leave to make an oral application for costs.

13. That the Independent Children’s Lawyer’s oral application for costs is dismissed.

14. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. That all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott and Anor & Ross and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 632/2007

Mr M Scott and Ms E Scott

Applicants

And

Mr Ross

1^st Respondent

And

Ms A Scott

2^nd Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the future living arrangements for two young boys, C born in October 2005 and L born in November 2006 (“the children”). The applicants are Mr M Scott and Ms E Scott (“the maternal grandparents”). Mr M Scott is the second respondent mother’s biological father. Ms E Scott is the second respondent mother’s step mother. The maternal grandparents are seeking orders for the children to live with them and spend time with the parents as agreed. Ms A Scott (“the mother”) has taken no active interest in these proceedings and according to the maternal grandmother has not sought to spend time with the children since December 2008. Mr Ross (“the father”) has not spent time with the children since September 2008 when he was briefly observed with the children during interviews for the Children and Parents Issues Assessment. Prior to that occasion, he has not spent time with the children since March 2008.

2. The mother’s whereabouts are unknown.

3. The father’s whereabouts, other than that he is residing somewhere in Victoria, are unknown.

4. On 28 July 2009 the matter came before me for final hearing. The only parties that appeared at the final hearing were the maternal grandparents and the Independent Children’s Lawyer. On this day I made orders identified at the beginning of this judgment which provide, in summary, that the maternal grandparents have equal shared parental responsibility for the children. The children live with the maternal grandparents and spend time with the father once a month at a contact centre and with the mother as agreed between the mother and the maternal grandparents, with such time to be supervised by the maternal grandmother.

5. These are my reasons for making those orders.

Background facts

1. The maternal grandfather was born in 1951.

2. The maternal grandmother was born in 1967.

3. The father was born in 1976.

4. The mother was born in 1987.

5. The maternal grandparents commenced cohabitation in May 1995 and were married in May 1995.

6. In 2003 the maternal grandfather was drinking heavily. The maternal grandparents separated for about five months and then reconciled.

7. The mother and father commenced living together in late 2004.

8. In October 2005 the child C was born.

9. The parents separated on 12 November 2005. The mother and C went to live with the maternal grandparents.

10. On 15 November 2005 the father removed C from the maternal grandparents’ home and took him to the paternal grandmother’s home. The same day the mother commenced proceedings at Town S Local Court for a recovery order and for C to live with her.

11. On 16 November 2005 interim orders were made for C to live with the mother and a recovery order was made for the return of C to her care. The matter was transferred to Town N Local Court.

12. On 24 November 2005 interim orders were made by consent by Town N Local Court providing that C spend time with the father each week from 5pm Wednesday to 9am Thursday and on another day from 2pm to 5pm. The proceedings were transferred to the Federal Magistrates Court.

13. In February 2006 the parents resumed cohabitation. The parenting proceedings were discontinued.  During the period of the parents’ separation up until they reconciled in February 2006, the maternal grandmother says she was C’s primary carer. The maternal grandparents say that the mother showed little concern for C’s care.

14. The maternal grandmother says that from around late February 2006 until 25 December 2006, she and the maternal grandfather cared for C most weekends.

15. On 22 November 2006 the child L was born.

16. The parent’s separated for the last time in late 2006.  Following the final separation the father began suffering from depression for which he was prescribed anti-depressant medication.

17. On 25 December 2006 C commenced living with the maternal grandparents.

18. On 9 January 2007 an AVO was made for the mother’s protection from the father.

19. In mid January 2007 the father stayed at the maternal grandparents’ home with L and told the maternal grandfather that he could not cope.

20. On 26 January 2007 the father left L at the maternal grandparents’ home. The maternal grandparents had visitors staying with them and did not have sufficient bedding for L so they returned him to the father and paternal grandmother. Later that evening, the father returned L to the maternal grandparents.  He was in such a state of agitation that when he drove away he lost control of his car and slammed into a tree. Police were notified.

21. A few days later the maternal grandfather informed the mother that L had been dropped at their home. The mother came to the maternal grandparents’ home where she stayed for three days. When she left, she took L but not C.  It is accepted that the mother has at no time asked to have C in her care.

22. Thereafter, the mother visited the maternal grandparents’ home once a week to enable the children to spend time together.

23. Some time between late January 2007 and April 2007 L came into the maternal grandparents’ care.

24. On 1 March 2007 the maternal grandparents filed an Application in the Federal Magistrates Court seeking final orders that provide for C to live with them and spend agreed time with the parents.

25. In March 2007 the father says he was very depressed about the separation and not seeing the children. He was prescribed anti-depressant medication and admitted to a psychiatric unit at a local hospital for about ten days.

26. On 14 March 2007 the father filed a Response seeking, in summary, that on a final basis he and the mother have shared parental responsibility for the children, the children live with him and spend time with the mother at the maternal grandparents’ residence on alternate weekends, half of school holidays and special days.

27. On 3 April 2007 the maternal grandparents filed an Amended Application seeking, as final orders, that both children live with them, and spend time with the parent’s as agreed.

28. On 13 April 2007 the mother filed a Response seeking that: the children live with the maternal grandparents, she and father spend time with the children as agreed, unless otherwise agreed the children spend supervised time with the father and the mother have leave to amend.

29. On 20 April 2007 interim orders were made by consent which provided for the children to live with the maternal grandparents, spend time with the father initially during the day only and thereafter each alternate weekend from 4pm Friday to 4pm Sunday and from 4pm Monday to 4pm Wednesday in the other week, conditional upon the paternal grandmother being present to supervise the father’s time with the children. Orders were also made for the mother to spend time with the children as agreed between the mother and the maternal grandparents with any overnight periods to involve the maternal grandparents or either of them being present. An Independent Children’s Lawyer was also appointed.

30. On 7 June 2007 interim orders were made by consent which provided that the children live with the maternal grandparents and spend time with the father as agreed but failing agreement, each alternate weekend from 4pm Friday until 4pm Sunday and every week from 10am Tuesday to 4pm Wednesday. The father’s time with the children was conditional upon the paternal grandmother being present to supervise. An order was also made for the children to spend time with the mother as agreed between the mother and the maternal grandparents conditional upon the maternal grandparents or either of them being present to supervise.

31. On 6 July 2007 the mother filed an Amended Response seeking the following final orders: the children live with the mother, the maternal grandparents spend time with the children as agreed between the mother and the maternal grandparents, the mother and father have equal shared parental responsibility for the children, the children spend time with the father until C commences school on alternate weekends and each Tuesday overnight, and upon C commencing school each alternate weekend and half of school holidays.

32. On 12 July 2007 the matter came before a Federal Magistrate. Only the ICL appeared. The proceedings were transferred to the Family Court.

33. Around March 2008 the arrangements for the children’s time with the father broke down when, because of her work commitments, his mother became unable to supervise his time with the children.  The father has not spent time with the children since, except briefly during an observation session with a Family Consultant in September 2008.  Suggestions by this Court that he consider seeing the children at a contact centre were rejected by him.

34. Family Consultant Ms T prepared a Children and Parents Issues Assessment dated 9 September 2008. The maternal grandparents attended with the children, and so did the father and the paternal grandmother. The mother did not attend, despite being notified of the scheduled appointments by the case coordinator to whom she indicated she would not be attending. The Family Consultant notes in her assessment that she contacted the mother by telephone after the interviews to obtain a current address so that a copy of the assessment could be mailed to her.  The mother said “Honestly I don’t want to see it”. To the Family Consultant the mother said “I no longer want any dealing with Court”.

35. The Family Consultant reported that when the children were separated from the maternal grandparents to be seen with the father, they became distressed. Due to C’s high level of distress the observation of the father and the children was ended after about ten minutes. The Family Consultant noted that this is consistent with the maternal grandmother’s description of the children crying, screaming and previously having to be forced into the paternal grandmother’s car at contact changeovers.

36. Both the father and the maternal grandparents acknowledged that C has been exposed to family violence in the parents’ care which has negatively impacted on C. The Family Consultant was very concerned about the children’s reactions to the father during the observation, especially as the children separated to the child care worker without distress.  The Family Consultant noted the “very poor” relationship between the father and maternal grandparents “as evidenced by an incident which occurred in 2006 where the maternal grandfather physically assaulted the father”.

37. The Family Consultant recommended that the contact arrangements as set out in the June 2007 orders cease, further assessment to identify triggers for trauma in relation to C as well as the father’s capacity and understanding of his son’s emotional needs. She recommended that a Chapter 15 expert (child psychiatrist) be appointed to assess the possibility of Post Traumatic Stress Disorder in respect of C, and that pending the outcome of the report the time between the father and the children be suspended. In addition she recommended a developmental assessment for C, and that the children spend supervised time with the mother as agreed between her and the maternal grandparents and that the children’s time with the mother also be subject of further assessment.

38. On 25 September 2008 a Registrar noted “the attempts to contact the mother and it is clear that she does not intend to take part in the proceedings however she will not cooperate with the filing of a notice of discontinuance or indeed keeping the court informed of any forwarding address”.

39. On 25 November 2008 the matter came before me for a first day less adversarial trial. The maternal grandparents and their solicitor were present. The father appeared in person. There was no appearance by or on behalf of the mother. The ICL also appeared. A Family Report was ordered as well as an expert report to be prepared by a child psychiatrist. It was further ordered that the father communicate with the children by telephone and by sending cards, gifts and the like. Without dispute, the father’s solicitor was given leave to withdraw. The father mentioned that he has moved to Victoria with his partner and her family but still sought orders for the children to live with him. He confirmed that the paternal grandmother would not be involved in the proceedings.

40. On 18 February 2009 the matter came before me. Other than the mother all parties appeared.  The parties were ordered to each pay the ICL $2,500 being one third of the anticipated costs of the expert. The Court noted that the father indicated he is unlikely to attend the family report process unless the mother attended.

41. The Family Consultant prepared a Family Report which is dated 26 March 2009 and which was released on 31 March 2009. The maternal grandparents attended the interviews with the children. The mother did not attend. The Family Consultant noted at par 61 of her report:

    Subpoenaed material provides some information in respect of the mother’s parenting capacity which suggests that the mother was experiencing some mental health difficulties following the birth of [C], was reluctant and resistant to engage with support services and was experiencing considerable stress as a result of the family violence and conflict in the relationship with the father.

42. The father did not attend the Family Report interviews. When the Family Consultant telephoned him to encourage his attendance he reiterated his intention not to attend. The Family Consultant noted that the subpoenaed material from the Department of Community Services (“the Department raised concern about his parenting capacity when the children were in his care in early 2007”). The Department records of 23 January 2007 indicate that the father asked for both children to be placed in respite care as he was unable to cope.

43. Turning to C, the Family Consultant noted that he had serious difficulties separating from the maternal grandmother. He was unable to successfully commence day care due to his level of emotional distress and inability to settle. The Family Consultant was of the opinion that :

    84. … [C] has an insecure anxious attachment which is likely to be caused by a combination of factors including [C’s] disrupted care arrangements in the first years of life, the interim orders for overnight spending time arrangements between [C] and the father, his exposure to family violence in the parents’ household and the quality of care provided to [C] by the parents in the first 14 months.

    85. It is suggested that the step maternal grandmother is [C’s] primary attachment figure and [C] has developed a significant and secondary attachment to the maternal grandfather.

    86. It is suggested that [C] would have no attachment relationship to the father… based on the period of almost 12 months of no contact between [C] and the father, the unlikelihood that [C] identifies the father as a person who meets his basic and physical needs and the possibility that [C] associated the father with the negative implication of being separated from his primary carer.

44. In relation to L, the Family Consultant was of the opinion that L has no attachment relationship with the father.

45. She recommended that the children remain living with the maternal grandparents, that they have parental responsibility, the children spend time with the mother as agreed between the mother and the maternal grandmother to be supervised by the maternal grandmother and that the father spend time with the children for one hour each month in a contact centre.

46. On 31 March 2009 the matter came before me and there was no appearance by or on behalf of the applicants or the mother. The father appeared by telephone. With the father’s and the ICL’s consent, the orders made on 25 November 2008 and 18 February 2009 relating to the appointment of a Chapter 15 expert and the preparation of a report by that expert were discharged.

1. The matter came before me for final hearing on 28 July 2009 and orders were made as identified at the beginning of this judgment. As has been mentioned earlier, neither parent appeared at the final hearing.

The maternal grandparents’ circumstances

1. The maternal grandmother does manual work four nights a week for three hours. She gave up full time employment in order to be able to care for the children.

2. The maternal grandfather works as a manager for a company in Town M from 6 am to 4-4.30 pm Monday to Friday. The maternal grandfather is a recovered alcoholic. He has a number of convictions for drink driving and has been disqualified from driving on three occasions. He has not had problems with excessive alcohol consumption since 2004.

3. The maternal grandparents own their own home in Town M. They are in good health.

4. The children have a cousin B who is C’s age. B lives at Town Z. B visits the maternal grandparents three times a week and sleeps over two or three times a month. The children have a good relationship with him.

5. The maternal grandparents report that C gets into bed with them at about 2 am or 3 am every morning. He will not stay away from home overnight. C is currently under the care of a paediatrician Dr V. C is on a waiting list to see a child psychologist and for speech therapy.

6. The maternal grandparents do not know the mother’s whereabouts and she has not had contact with the children since December 2008.

The father’s circumstances

1. In his Parenting Questionnaire filed on 10 October 2008 the father says he is currently unemployed. He mentioned that the maternal grandfather has assaulted and threatened him, and that he is abusive and violent. The father proposed that the children live with him.

2. The father made allegations that the mother tried to commit suicide on a couple of occasions.

3. The father denies ever hitting the mother even though he has been convicted of common assault on the mother and breaching an AVO which was put in place to protect the mother from him.

4. The father did not attend the Family Report interviews nor participate in the final hearing of these proceedings.

5. His current circumstances, except that he is living somewhere in Victoria with a partner and her family, are unknown to the Court, the ICL and maternal grandparents.

The mother’s circumstances

1. The mother’s current circumstances and whereabouts are unknown to the Court.

The general law in parenting applications

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)         to explore the full extent of that culture, consistent                with the child’s age and developmental level and the                  child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).   Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities:      s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means to consider positively the making of an order.  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays; and

   (2)The time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the   child; and

   (3)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.  Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply. 

Applying the law to the facts

1. C has lived with the maternal grandparents since Christmas 2006. L has lived with them since sometime between late January 2007 and April 2007. Before they came into the maternal grandparents’ full time care, the children regularly spent time with and were cared for by the maternal grandparents. There is no doubt that the children are well settled in the maternal grandparents’ care.

2. The Family Consultant’s evidence is that the maternal grandmother is the children’s primary attachment figure. I accept that evidence. The maternal grandparents say that C was distressed at changeovers and unsettled after returning from time with his father. His distress was evidenced by his scratching his face until it bled, hitting his head against a wall, pulling his hair and smashing objects. As has already been mentioned the Family Consultant noted that C was so distressed when he was separated from the maternal grandparents for the purpose of an observation session with the father that the observation session had to be terminated after ten minutes.

3. The maternal grandparents are able to provide for the children’s physical, emotional and intellectual needs. It is clear that the maternal grandparents care about these children very much, indeed are the only adults in the children’s lives who have consistently done so.

4. The parent’s whereabouts are unknown, and neither has participated in these proceedings for some time. The children have not spent time with the father since March 2008 except for the brief observation session at the Family Court in September 2008. The children last spent time with the mother in December 2008 at the maternal grandparents’ home.

5. Neither the mother nor the father have participated in decision-making regarding the children or supported them financially for a long time. Taking into consideration the primary and additional considerations, the evidence in this case leads me to conclude that the maternal grandparents should have parental responsibility for the children, to the exclusion of the mother and the father. I am also persuaded that it is in the children’s best interests to remain living with the maternal grandparents.

6. Considering that an order is not made for the children’s parents to have equal shared parental responsibility, the legislation does not mandate that I consider an order for the children to spend equal or substantial and significant time with each parent. In any event, I am not satisfied that it is in these children’s best interests to spend equal time or substantial and significant time with either of their parents. I am satisfied that it is in their best interests to spend time with the father once a month at a contact centre. The mother is to spend time with the children as agreed between the mother and the maternal grandparents, with such time to be supervised by the maternal grandmother.

7. There is some concern about the maternal grandfather’s alcohol use. As such, I have made orders for him to attend alcohol counselling as well as restraining him from consuming alcohol beyond 0.05 blood alcohol level whilst the children are in his care.

8. For these reasons I am satisfied that the orders made at the beginning of this judgment are in the children’s best interests.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate:     

Date:              2 April 2012