Shields & Anor and Putney

[2017] FamCA 123

FAMILY COURT OF AUSTRALIA

SHIELDS AND ANOR & PUTNEY [2017] FamCA 123

FAMILY LAW – CHILDREN – Interim – Best interests – With whom a child lives – With whom a child spends time – Where there are three children – Where the father of one of the subject children has not taken an active part in the proceedings but has adequate notice – Where the children live with the respondent maternal grandmother pursuant to interim orders – Where the mother and father live together but are not in a relationship – Where the mother seeks that the children are restored to her care – Where the father supports the mother’s application – Where the central issue is when the children should be restored to the mother’s care – Where the circumstances warrant the restoration of the children to the care of the mother forthwith – Orders made that the children live with the mother and father on a date commencing in approximately two weeks – Orders made that the children spend time with the maternal grandmother for one weekend per month and block time during school holidays – Order made requiring the mother to comply with requests by the Independent Children’s Lawyer for drug screening.

Family Law Act 1975 (Cth) s 60CC

APPLICANT MOTHER: Ms Shields

APPLICANT FATHER: Mr Oaks

RESPONDENT MATERNAL GRANDMOTHER: Ms Putney

INDEPENDENT CHILDREN’S LAWYER: Intercept Law

FILE NUMBER: SYC 8459 of 2015

DATE DELIVERED: 23 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 20 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER: Mr Millar

SOLICITOR FOR THE APPLICANT MOTHER: Gordon & Barry Lawyers Pty Ltd

APPLICANT FATHER APPEARED IN PERSON: Mr Oaks

RESPONDENT MATERNAL GRANDMOTHER APPEARED IN PERSON: Mrs Putney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Intercept Law

Orders

1. Pending further order of the Court the applicant mother and the applicant father have equal shared parental responsibility for C born … 2011 and D born … 2012.

2. Pending further order those children and B born … 2007 live with the applicants as agreed between them.

3. The Court noted that the applicants live together at U Street, Suburb Q in the State of New South Wales.

4. Until further order it is ordered that the parents are restrained from causing any significant change in the residence of the children without giving the Independent Children’s Lawyer and the maternal grandmother at least two months’ prior written notice.

5. Unless the parties otherwise agree the change in residence arrangements referred to in Order 2 will commence at 10.00 am on 4 March 2017 and effect will be given to that Order by the parents collecting the children and such of their personal possessions as are available from the home of the maternal grandmother at that date and time.

6. Upon the commencement of that changed residence arrangement and pending further order, the children will spend time with the respondent maternal grandmother as agreed between the parties and if not agreed:

   6.1On the last weekend of each month from 10.00 am Saturday to 4.00 pm Sunday; and

   6.2For seven days during each of the school holiday periods as agreed between the parties and in default of agreement in respect of the three shorter school holiday periods from 10.00 am on the day following the last day of the previous school term until 4.00 pm on the day seven days later and in respect of the Christmas school holidays from 10.00 am on 27 December to 4.00 pm on 3 January.

7. For the purposes of giving effect to those orders, unless the parties otherwise agree, on each occasion of time the children are to spend with the maternal grandmother that occasion commence with the children being collected by her or by Mr Putney or by another adult agreed to by the applicants at V Street, Suburb M and by the children being collected at the conclusion of each such occasion from the home of the maternal grandmother by either of the applicants, by either of the paternal grandparents or by another adult whose name is provided to the maternal grandmother at least 24 hours in advance.

8. Within 21 days of the date of these orders the maternal grandmother shall provide to the solicitors for the mother the names and contact details for any health professional consulted by the her since 11 December 2015 in respect of the children or any of them together with such information within her possession as to the date or dates of those consultations, the reason for the consultations, any diagnosis given, any treatment given, any prognosis given and any future appointments made.

9. The mother shall forthwith comply with any requests by the Independent Children’s Lawyer to provide supervised drug screens for testing of illicit drugs and those requests shall not be made more frequently than once a month.

10. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8459 of 2015

Ms Shields

Applicant

And

Ms Putney

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to three children.  The matter was heard by me in relation to interim parenting on 20 February 2017.  I reserved judgment and indicated to the parties that I would deliver judgment this morning.  The parties were excused on delivery of judgment.  Leave was granted to them, if they wished, to attend by telephone.  In fact, the mother is here with her solicitor.  The father is not here.  The maternal grandmother is also present in Court.  And Mr Quinn, the Independent Children’s Lawyer (“ICL”), is on the telephone.

2. The parties to the proceedings are Ms Shields, Mr Oaks and Ms Putney.  I gave reasons for judgment in these proceedings on 12 January 2016 and 13 April 2016.  And I will not repeat all of the background facts or observations contained in those reasons.  There are three children, B, born in 2007, C, born in 2011, and D, born in 2012.  The younger children are the children of the applicants, Ms Shields and Mr Oaks.  Although Mr Oaks is not the father of B, I will generally refer to them as “the mother and father”.

3. B’s father is Mr H, who has prepared an affidavit in the mother’s case.  He had earlier prepared an affidavit, on behalf of the maternal grandmother.  He says that he does not wish to take active part in the proceedings.  I am satisfied that he has had adequate notice of the proceedings.  There was no attendance by him or on his behalf at the hearing on 20 February.  Under the Rules of Court, he is a necessary party, because he is a parent; but in my view it is appropriate that the matter be determined in his absence.

4. Before the Court is the interim application of the parents for a change in the living arrangements for the children, from living predominantly with the maternal grandmother to living predominantly with them.  The hearing was conducted on the basis of affidavits relied on by the parties, some exhibited material, and oral submissions. 

5. The respondent maternal grandmother and the father appeared without legal representation.  Unfortunately, neither of them had read all of the affidavit evidence relied on by the other parties.  The maternal grandmother had refused to do so because, as I understood her to say, it made her upset or angry to read the material.  And rather oddly, the father told me that he had been advised not to read any other affidavits.  They each ultimately told me that they had read what they wanted to read for the purpose of the hearing.  Although he is not a party to the proceedings, without objection the husband of the maternal grandmother made a brief statement at the commencement of the hearing.

6. As to background facts, in circumstances that were detailed in my earlier judgments, until 10 December 2015 the children were living with their mother in a house which she rented from the maternal grandmother on the Central Coast of New South Wales.  The applicants – the parents – had lived together in Sydney from July 2011 and later moved to the Central Coast, where they were living when they separated in late 2012.  In late 2013 the father returned to Sydney.  He said he did that to obtain employment.  He continues to live there.  As at December 2015 – and today – he was living in a property at Suburb Q.  That is, he lived in separate premises from the premises at Suburb M occupied by his parents.  The paternal grandparents feature to some extent in the case.  The father is in full-time employment as a manager.  As at December 2015, the children had been having some weekend time with him.  It was planned that they would have some holiday time with him in the Christmas school holidays. 

7. On 10 December 2015, B was at school and the two younger children were asleep in the mother’s home.  I understand that the mother contacted the father in Sydney and asked him to collect the children.  She was at her home when she connected a hose to her car’s exhaust and fed the hose into the car window.  A neighbour came by and disconnected the hose, and the police were called.  There was a substantial struggle when the police sought to restrain the mother.  The mother was scheduled under the mental health legislation, taken to hospital, and released fairly quickly.

8. The police took action to secure an apprehended violence order (“AVO”) against the mother.  I think on 11 December 2015 an interim AVO was granted.  Several days later a final order was made preventing the mother from having contact with the children for 12 months.  That final order was made in proceedings where the mother was present and there was a level of acquiescence to that order.  Importantly, the final AVO lapsed on 15 December 2016. 

9. Since 10 December 2015 the children have lived with the maternal grandmother and Mr Putney.  Pursuant to orders made on 12 January 2016, the mother commenced to spend some time with the children.  Those orders provided for a level of supervision of the mother, by the father and his parents. 

10. It is important to note that these proceedings were caused by the events of 10 December 2015 and their consequences.  Prior to that date, there were no ongoing proceedings in relation to any of the children. 

11. There is evidence that in addition to the events of 10 December 2015, the mother may have attempted to kill herself some days before that.  That was referred to in an SMS message from the mother.  I understand it is the mother’s evidence that she fabricated, for reasons that does not really make sense, that earlier allegation, and that there was no earlier attempt at suicide. 

12. It is the mother’s case that her conduct on 10 December 2015 was not an attempted suicide but a cry for help.  She contends that the incident was a reaction to her mother terminating her lease and her despair at the prospect of being left without accommodation for her family.  It is common ground that the mother had experienced homelessness as a child.  The maternal grandmother and her first husband separated when the mother was quite young.  The mother left home at 16 years of age and at times thereafter she was homeless.

13. There seems to be no contest about the experiencing homelessness as a young child.  Indeed, in the course of her submissions on Monday, the maternal grandmother said something to the effect or from which I understand that after her separation from her first husband, he may well have evicted the mother from his home when she was still a child.  The mother says that when she was younger, she briefly engaged in sex work and that on occasions she used illicit drugs.  It is the mother’s case that the Notice to Vacate served on her by her mother late in 2015 brought back memories of homelessness for the mother and caused her to have a temporary breakdown, that she was lost, upset and anxious. 

14. The parenting proceedings before the Court were initially commenced by the father.  On 12 January 2016 orders were made which formalised the arrangement which had the children living with the maternal grandmother.  On 13 April 2016 orders were made in terms of an application filed by the mother to restore regular contact between the children and her.

15. Importantly, at all times it has been the ultimate proposal of each of the parents, the father of B, Mr H and the maternal grandmother, that the children be restored to the mother’s residence.  The only issue has been, and continues to be, when that should occur.  It was common ground on 13 April 2016 that the children could not be immediately restored to the mother.  On her own case, there were things to be done.  In the reasons for judgment of that day, I identified the need for the mother to establish a record of stable behaviour and continued good mental health, supported by her treating practitioner, and a satisfactory report from an independent expert.

16. As to the applications before me, the parents now seek that the children live with them, in a manner to be agreed between them.  They note that that will occur at the father’s Suburb Q address in Sydney.  The orders sought by the mother are contained in her application in a case filed 19 December 2016, together with orders she seeks in terms of what became exhibit 3.  The latter order being an order in respect of the provision of information about health treatment of the children while in the care of the maternal grandmother. 

17. Among other orders, the mother also seeks that the children spend overnight time with the maternal grandmother on the last weekend of each month and for some time during school holidays.  Just in that regard, as was pointed out by the mother’s counsel, those were orders similar to the orders sought by the maternal grandmother in her Response to an Initiating Application filed on 2 June 2016. 

18. The father joins in the mother’s application.  And insofar as the proceedings relate to B, Mr H also supports, or does not want to be heard against, the mother’s application.  The children are represented and the ICL generally supports the mother’s application.

19. The ICL also seeks an order that the mother comply with random drug screen requests, noting that those requests would not be made more frequently than once a month. 

20. Parenting decisions are made by reference to what is in the best interests of children.  The determination of parenting proceedings starts with parental responsibility.  The only orders sought of me in respect of parental responsibility would affect the two younger children. 

21. I note that there is a document described as a parenting plan attached to Mr H’s affidavit.  If there is no order in relation to parental responsibility, then parents of a child have joint parental responsibility.  That is the position in relation to B.  Even though Mr Oaks has acted as a father figure in relation to B, and even though Mr H’s time with B has been unsatisfactory and is perhaps slowly being restored, the mother and Mr H each have parental responsibility in relation to her.  In relation to B, the legislation does not require that the Court give any special consideration to any particular pattern of living arrangements.

22. As will become apparent, I intend to order that the children return to live substantially with the parents.   

23. It is an agreed fact that at present, the mother and the maternal grandmother have a fractious relationship and that their communication is poor.  That has not always been the case.  The evidence reveals the changeability of their relationship.  It seems that at times they have been very close.  At times the support of the maternal grandmother has been gladly provided and accepted by the mother from the maternal grandmother.  Sadly that is not the case at the moment.  In my view, it is not practicable for there to be sharing of parental responsibility involving the maternal grandmother in those circumstances. 

24. As the children will mainly live with them, I will order that the parents have equal shared parental responsibility for C and D.  Because I intend to make that order, I am required to consider the parents having equal time with the children.  The orders sought by the parents are not expressed in those terms.  As I understand their application, they plan to continue to live together at the father’s home at Suburb Q, albeit in a platonic and not a romantic relationship.  I was told of no proposal for that situation to change in the short or medium term.  I can rely on that to assume there will be no such change because the parents are obliged to inform the Court of any plans that would affect the period for which the interim orders might apply. 

25. There was no argument on this point, but while the parents live together, insofar as the provisions of s 65DAA of the Family Law Act 1975 (“the Act”)  is concerned, in my view the children may well be deemed to spend equal time with each of them.  However, in terms of the practicalities, with the father in full-time employment, the reality is that he is likely to spend less time with the children than the mother during the working week.  But there it is.  If and when they separate, the parents intend to agree on the time the children will live with each of them.  That eventuality was discussed during the hearing briefly, and I indicated to the parties that if an order was made in terms proposed by the parents, I would restrain them from causing a significant change of residence for the children without giving the maternal grandmother a meaningful period of advance notice.

26. In that way, she should bring the matter back to the Court before the move took place.  To the extent that the orders proposed by the parents would involve the children no longer living mainly with her, as I have indicated, the maternal grandmother opposes that change – not indefinitely but at the current time. 

27. Section 60CC of the Act sets out the criteria in respect of what is in a child’s best interests. The primary considerations are the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

28. A meaningful relationship is one that is important and valuable.  In my view, the evidence supports a finding that there is a meaningful relationship between B and her mother and between each of the parents and the younger children.  Until 10 December 2015 the mother was the primary, and for many years, the sole caregiver for all three children.  There is criticism in the evidence before the Court about the father having a lack of commitment to the younger children or a lack of willingness to support them.  On the other hand, as I have indicated, at the time of the events of December 2015, there were plans in place for him to spend time with the children, and I am satisfied that he intended to exercise that time. 

29. He is not the father of B, and therefore his relationship with her is not relevant to this consideration.  Just to labour the point, the primary consideration here is the benefit to a child of having a meaningful relationship with both parents.  The legislature excludes anybody else from this consideration.  The importance of relationship between B and Mr H is not clear.  As at December 2015, he had little to do with her.  Since March 2016, the mother says he has spent something like three occasions with B.  There is also some criticism of Mr H by the mother.  She reported that at one point that she counted an extraordinary number of occasions when he had consumed alcohol, and I think that might have been the triggering event for their separation.  It is possible that there is meaning in the relationship between father and daughter but the evidence does not permit a confident finding on the issue. 

1. As with Mr Oaks in relation to B, the importance of the relationship between the children and the maternal grandmother, although itself relevant, is irrelevant to this consideration.  This primary consideration relates only to parents.  Subject to any other considerations, any orders I make should foster and promote the relationships between the parents and the children.

2. The second of the primary considerations is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  On 10 December 2015, the police took the view that the children were at risk with the mother.  The two younger children were asleep in the mother’s care when she connected her car’s exhaust to the cabin of the vehicle as if to kill herself.  On 11 and 15 December 2015, a New South Wales court imposed restraints on the mother, albeit that she now apparently regrets doing so, with her formal agreement. 

3. Those restraints were intended to protect the children from the mother.  Sadly, the mother was not able to insulate the children from her conduct on that day.  She was not able to ensure that the younger children were in a safe environment before the incident and before she was taken away.  The legislation provides that any conflict between the need to restore and promote a meaningful relationship between a parent and a child and the need for safety is resolved by the latter consideration having more weight than the former.  In other words, if there is a conflict between promoting the parental relationships and safety, safety is of greater importance.

4. As the mother’s counsel submitted, since April 2016 there has been very substantial compliance with the Court’s orders and no significant problems.  The AVO restraining the mother in respect of the children lapsed in December 2016.  The maternal grandmother continues to express concerns about the mother’s mental health and the apparent lack of her active engagement in any mental health treatment.  The maternal grandmother is also concerned about the mother’s financial capacity to provide for the children. 

5. Dr R is a consultant psychiatrist and she saw the mother on 29 February last year.  She opined that the mother showed no evidence of a psychiatric disorder and recommended no psychiatric treatment.  However, Dr R wrote that she planned to provide ongoing support to the mother until restoration of her children.  In Dr R’s opinion, with restoration of the children and given the support of the father and his parents, the prognosis for the mother was excellent. 

6. Dr U is a clinical psychologist and he was appointed as a single expert to report on the mother’s mental health.  He interviewed the mother on 1 September 2016, and his report dated 1 October 2016 is attached to his affidavit sworn 19 January 2017 and filed 30 January 2017.

7. The mother told him that she had used amphetamines, including ICE, on two or three occasions.  She used it when she was 17 or 18, and again when she lost custody of her children (presumably after 10 December 2015).  She told Dr U that one of her former partners, Mr V, had hit her and threw her around.  Dr U notes that from other records that in January 2015 the mother’s parenting skills had regressed.  The READ Clinic notes of February 2015 recorded that the mother was overwhelmed with the children:  “[Ms Shields] (the mother) was yelling.” 

8. The Central Coast Local Area Health discharge summary for 10 December 2015 recorded a diagnosis of the mother of Adjustment Disorder.  There were queries on those notes as to whether she had a Cluster B personality trait that would involve borderline personality disorder, histrionic personality disorder or antisocial personality disorder.  The mother’s history, presumably provided by her to that health authority, recorded that she had been prescribed Prozac at an early age and had overdosed on that medication at 18 years of age.  She worked as a prostitute at that age. 

9. Dr U said that along with her sisters and the maternal grandmother, the mother was the victim of abuse at the hands of the maternal grandfather.  Dr U opined that it is likely that the mother developed attachment difficulties resulting in a pattern of unstable relationships with others.  He reported that the mother’s recurrent relationship difficulties, previous drug and alcohol abuse, self-harm attempts, sexual risk-taking and difficulty with emotional regulation suggests that she developed a personality disorder.  It appeared to Dr U that she developed to see others as all good or all bad.  She ceased contact with anybody who made negative comments about her.  He opined that those circumstances were likely to lead to difficulties for the mother with the demands of motherhood. 

10. The mother’s interaction with the children reportedly improved after she undertook a Positive Parenting Program but the READ Clinic notes of 25 February 2015 reveal that the mother appeared overwhelmed by the children.  Dr U went on to recommend that the mother attend for treatment with Dr R and, upon restoration of the children to her, she should attend on a clinical psychologist to learn emotional regulation and stress management strategies.  He advised that those attendances could be provided under a Medicare mental health plan that allows for up to 10 appointments with a mental health professional.  In his report, Dr U addressed some matters beyond the required mental health assessment including recommending that the maternal grandmother continue to be involved with the children to monitor behaviour or emotional problems in them and he recommended, with certain supports in place, that the children be restored to the mother.

11. Although not supported by any independent evidence, there have been allegations of physical abuse, allegations made against the mother, against the maternal grandmother and against Mr Putney, her husband.  Since April 2016 there was an allegation of B being struck with a wooden spoon by the mother.  The mother alleges that her children are being struck while in the care of the maternal grandmother and that she or someone deliberately scratched one or more of the children.  There is no credible independent evidence of physical abuse of the alleged types and it seemed to me, talking to the parties on Monday, that it is accepted on both sides that it may be that those allegations are not true. 

12. Ms F, a child and family consultant, has prepared two reports in these proceedings; a preliminary report dated 21 February 2016 and a full family report dated 17 October 2016.  In the full family report Ms F observed the mother as happier and more hopeful than she had been previously.  In her observations of the mother and father with the children she recorded that they interacted appropriately and affectionately, aside from the mother’s expression in the presence of the children of her unhappiness with D’s recent haircut.  Ms F expressed the view that while the mother clearly has vulnerable features, her actions in late 2015 were in the context of a highly stressful situation.  Ms F noted that, despite the intervening stressors about her children, she has not repeated any such actions.  Ms F noted that two psychiatrists independently assessed the mother as not having a psychiatric illness.

13. I do not think Ms F had the benefit of Dr U’s final report.  Although it could have been done, the filing of the report came after Ms F’s report.  The mother’s presentation to Ms F was consistent with her being drug-free, says Ms F.  Ms F expressed a level of concern with regard to the maternal grandmother and Mr Putney’s controlling stance in relation to the children and in relation to the maternal family.  The mother and the maternal grandmother have a complicated relationship which is dysfunctional and it features a higher than normal level of ambivalence.  In other words, it changes from time to time.  Ms F recorded that the father did not present as having a current drug or alcohol problem.  She assessed the paternal family as providing the possibility of more stability for the children as well as for the mother.  She observed the relationships of the paternal family as straightforward and uncomplicated.

14. Ms F opined that while the mother continues to share a residence with the father, the children are likely to be protected from witnessing any family violence.  The recommendations of Ms F would see the mother and father sharing parental responsibility, that the children live with them, spend time with the maternal grandmother and step-grandfather one weekend each month from 9.00 am Saturday till 6.00 pm Sunday and on some special occasions.  Ms F recommended changeover at the paternal grandparents’ home.  The applicant’s proposals incorporate a level of informal supervision of the mother by the father and will facilitate some observation of the children by both the paternal grandparents, by the maternal grandmother and Mr Putney.

15. The additional considerations in s 60CC start with any views expressed by the children and factors such as their maturity and level of understanding that the Court thinks are relevant to the weight that should be given to those views. As I noted in the April 2016 judgment, when related to questions of safety, the views of the children are largely irrelevant. If the children would be in harm’s way because their mother is mentally unstable or might hurt herself and the children might be exposed to that, the fact that they wanted to live with her would have no weight. However, in my view, on the basis of the living arrangements proposed, the children will be safe if returned to the primary care of the mother. B is of an age where one would start to take account of her views. However, the evidence suggests that she suffered a level of developmental delay and has experienced behaviour problems. The younger children are too young to express an influential view.

16. All of that said, the common-ground evidence is that the children have consistently expressed a desire to live with or to spend time with their mother.  As to the nature of the relationship of the children with the parents and others, including the grandparents and other relatives, that continues to be a highly contested issue.  As I have indicated above, there are allegations that at times the relationships between the children and each of the primary parties have been abusive.  The mother and the maternal grandmother have very different views about the level of support offered and provided to the children by the maternal grandmother.  It is the mother’s case that the maternal grandmother has provided little support; effectively, abandoning the mother and the children for years and that, when she sought to be involved, she has been controlling and overbearing.  Although the mother herself is critical of the behaviour of some of her former partners, she complains that the maternal grandmother set out to disrupt her relationships with those partners.

17. The most recent romantic partner is a case in point.  The mother would have it that part of the motivation of the maternal grandmother for evicting her in late 2015 was to interfere with her relationship with her then partner.  I think he was called Mr T.  However, the fact is that the mother is no longer in a relationship with him.  It is obvious that he was unable to provide adequate support to the mother on 10 December 2015.  There is evidence of critical comments made about him by the children to the maternal grandmother and, importantly, to Ms F.  He was somebody introduced into the lives of the children by the mother, somebody with whom she was keen to prosecute a relationship.  As I noted in the earlier judgment, the mother and Mr T are now estranged.  I understood that there are or were AVO proceedings between them or affecting them.  It is not suggested today that Mr T is somebody with whom the children are going to have an ongoing relationship. 

18. So just stopping there.  We started this with a criticism by the mother that the maternal grandmother was being controlling in seeking to disrupt her relationship with Mr T.  On those facts, it may be that whether it was done the right way or for that reason.  It might be that that was not a worthwhile relationship in any event. 

19. In my view, the fact of the children having difficulty separating from the mother raise a concern about the security of their attachment to the mother.  There is evidence about the children acting out at various times and, as I noted in the April 2016 reasons for judgment, there remains an issue as to why.  The children could be acting out because they are upset, because they miss somebody or because somebody is not meeting their needs.  They could be afraid of one or more of their carers.

20. As to the extent to which the parents have failed to take an opportunity to participate in decision-making, spending time communicating with the children.  In relation to B, I have made the observations I have made about Mr H and I will not repeat them.  As to the other children, there is no suggestion that the mother has not taken opportunity to spend time with, make decisions and so on in relation to the children.  And, indeed, for much of the children’s lives, she has been left on watch in relation to those issues.  There is some criticism in relation to the father’s involvement.  There is the complicating factor, of course, that his relationship with the mother broke down and there may be something to say about his need to move away, his lack of availability and so on.  As to the extent to which the parents have fulfilled their obligations as parents, there is evidence about a recording from 2014 of the mother shouting, screaming at B.  I have referred to the documents in relation to the READ Clinic. 

21. As I observed in April, despite all of those things, all of the complaints about the mother, she was left as the primary caregiver of the children at all times up until 10 December 2015. 

22. As to the likely effect of changes for the children, the proposed change is a significant one but not as significant as the change that occurred on and from 10 December.  It is a change to a return to a familiar circumstance in relation to the fact of the mother being there, living on a full-time basis with the father.  It would a new physical arrangement.  Living in Sydney will be a new situation.  There will be a change of school.  Ms F expresses concerns about the import for the children of the dramatic changes of December 2015.  Notwithstanding that those changes were unavoidable, sight must not be lost of that fact.  That is not to say that if the children have had a dramatic change of circumstances they will be unable to cope with another one.  The sad fact is that they have to accommodate changes of location, school, and so on. 

23. As to the practical difficulties and expense of spending time or communicating with a parent – that does not really apply.  All of those practical considerations will be obviated by the move.  There will be some related practical considerations, but in the same style as the travel between the households that occurs now; just the emphasis will be different.  There were in April the practical considerations about supervision.  Under the proposals that I have indicated, that is going to be wound back to a less formal arrangement.  So there will not be the spectre of financial costs associated with possible supervision arrangements.  A level of supervision will be available in an informal way.

24. As to the capacity of the parents and others, there are still concerns expressed by the mother in relation to the maternal grandmother, the maternal grandmother in relation to the mother, the maternal grandmother in relation to the father.  However, those concerns did not prevent each of the parties proposing effectively unsupervised time between the children and the maternal grandmother, including overnight time; nor under the maternal grandmother’s proposals, overnight time, including block time with the mother and father.

25. As to the children, they have their stated age and sex.  They have had the disruption that I have identified.  The READ Clinic notes of February 2015 recorded that B showed some signs of anxiety on separating from the mother.  That was long before the events of December 2015.  There had been arguments between the mother and the child, but the notes recorded that those problems were reducing.  The notes of 26 May 2015 recorded that B had been seen on six occasions and that she was assessed to be at “medium” risk of emotional disorder and a “high” risk of behavioural disorder.  She showed some anxiety on separating from the mother.  A paediatrician, those notes record, had diagnosed B with oppositional defiant disorder and separation anxiety.

26. As to family violence, there was the incident of 10 December.  Family violence orders were put in place.  There are now no such orders; and obviously that is because no one applied for the continuation of those orders. 

27. On balance those circumstances, with the safeguards I propose, warrant the return of the children to the mother.  

28. As to the style of orders that have been sought, the applicants proposed that the changed living arrangements commence in 48 hours from the date of the orders.  In that regard it was submitted that the children could be distressed by a delay and that the change should effectively be immediate.  The maternal grandmother opposes any change, but in the event that there was to be a change, she said that that could occur at the end of school term.  She referred to commitments in respect of the children and the need for them to be able to say goodbye to their schoolmates and friends.  There is merit in both arguments.  The arguments in favour of an urgent return relate to the risk that the parties will not be able to protect or insulate the children from a level or uncertainty.

29. On balance, I think something of the order of a week would be appropriate.  Under the existing arrangements the children see the parents each weekend for virtually all of one weekend and one week, and Sunday alone on the next.  I do not recall any evidence before me on Monday about where the cycle is up to.  There is no perfect answer to this situation.  It seems to me that a week or so will give the maternal grandmother time to provide advice to schools etcetera and have teachers manage any informal farewells that need to occur.  Unless the parties otherwise agree in writing, the children will return to live with the parents at 10.00 am on Saturday, 4 March; and that will be effected – again, unless there is another agreement – by the parents collecting the children from the home of the maternal grandmother at that date and time.

30. As counsel for the mother indicated, the mother’s proposals for time with the maternal grandmother effectively mirror the final orders sought by the maternal grandmother, which is the last weekend of each month and a week in the school holidays.  The first of the weekends, unless the parties otherwise agree, would be at the end of March. 

31. This year, Easter occurs within the April school holidays, and the school holidays commence on 8 April.  The school holiday arrangements proposed by the mother are a bit confusing.  The application says that the children should be with the maternal grandmother for five days and then they refer to seven days.  And there is no reference in the application to the Christmas school holidays.  No submissions were made about that.  I will provide for periods of seven days, leaving the parties to decide which seven days; but if they cannot agree, it will be the first seven days in the shorter school holidays and seven days from 27 December in the Christmas holidays.  Again, the parties are free to change those arrangements or implementation by agreement.

32. As to handovers, the parents seek that the maternal grandmother do all of the travel to implement the new arrangement.  The maternal grandmother raised some concerns about train travel, the fact that she does not drive and is unwilling to commit her husband to onerous travel.  Under the regime since April 2016, all of the travel has been undertaken by the parents.  The parties may be able to agree on another arrangement; but if they cannot, in my view the fairest arrangement would be to have the maternal grandmother responsible for collecting the children at the commencement of each period of her time and the parents responsible for collecting the children from her at the conclusion of each period.  In that way the travel will be shared.

1. The collection should be from the homes of the grandparents.  There is conflict between the grandparents, but it seems to me that that arrangement provides the most comfortable circumstances for the children.  If the parties use a railway station or a restaurant and there is a delay, then there is the potential for the children to be uncomfortable and in an awkward situation.  In the other hand if they wait in somebody’s home, they can be getting on with their lives.

2. There has been an increasing level of antipathy, particularly I think between Mr Putney and the paternal grandfather.  They are obviously responsible adults, and they should be able to avoid any unpleasantness in the presence or hearing of the children.  And if they cannot do that, then the parties can agree on an alternate collection arrangement.  Commencement of the time with the maternal grandmother will be 10.00 am rather than the proposed 9.00 am, as the maternal grandmother has indicated that she may have to travel by train.  If that is the case, then it seems to me that making it a slightly later time might make the collection a bit easier for her.

3. As I indicated, the mother seeks an order that the maternal grandmother provide specified details about past health treatment for the children.  The maternal grandmother responded by saying something to the effect that she did not have all of the information that is required.  There is quite a menu of dates and details being sought.  It is obviously advantageous for the children if the parents are aware of medical and related appointments that have occurred during period when the children were in the care of the maternal grandmother.  But that said, the maternal grandmother can only provide the information she has available to her.  I indicated on Monday that I would order that she provide information that she has available to her.  She can only do the best she can.

4. As I indicated, the ICL seeks an interim order that the mother respond to requests from him for random drug-screens.  Those requests will not be made more frequently than once a month.  That is a sensible and appropriate safeguard.  Parenting is a high-functioning task and in the case of illicit drugs – they are either stupefying, meaning that you cannot concentrate and adequately provide support, or they affect your judgment about what should happen, or in the case of ICE, notoriously they can leave a person completely out of control.  So for the price of some inconvenience, that is a sensible safeguard in the short-term.  The mother has fairly conceded that she has used illicit drugs as recently as after 10 December 2015, and she had some use of the drugs at an earlier age.  It is important for the Court to know that that is not going to happen.

5. As to the future of the proceedings, we have a final family report.  I will arrange to list the matter in a month or a bit more, for the purpose of making any directions that are needed to ready the matter for a final hearing.  The problem is that a family report can become out of date.  There are expenses incurred in a final report being updated.  The processes of updating a report are inconvenient and stressful for the children and the parties.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 February 2017.

Associate: 

Date:  7 March 2017