Sitwell and Sitwell

[2018] FamCA 954

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL [2018] FamCA 954

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time and communicates – Orders that child live with the maternal grandmother – Order that maternal grandmother have sole parental responsibility – Orders that the child spend supervised time with the mother until December 2019 after which time the child’s time with the mother will be as requested and agreed by the child – Orders that the mother communicate with the child – Injunctive Orders – Specific Issues Orders.

Family Law Act 1975 (Cth) ss 60B and 60CC

APPLICANT: Ms A Sitwell

RESPONDENT:  Ms B Sitwell

INDEPENDENT CHILDREN’S LAWYER: Joliman Lawyers

FILE NUMBER: MLC 7249 of 2017

DATE DELIVERED: 30 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 30 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Colla

SOLICITOR FOR THE APPLICANT: Pearce Webster Dugdales

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Cash
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Joliman Lawyers

Orders

1. All previous parenting orders in relation to X born … 2004 (‘the child’) are discharged.

2. Ms A Sitwell (‘the maternal grandmother’) shall have sole parental responsibility for the child including sole parental responsibility for applying for a Passport or renewal of a Passport for the child.

3. BY CONSENT the child shall live with the maternal grandmother.

4. The child shall spend supervised time with Ms B Sitwell (‘the mother’) for one (1) hour supervised time on:-

   (a)a weekend day before Christmas 2018 and Christmas 2019;

   (b)over the Easter Weekend or the weekend before or after Easter in 2019;

   (c)for the Mother’s Day weekend in May 2019 (if that day is available) or the weekend before or after Mother’s Day if Mother’s Day if not available; and

   (d)for the weekend on the child’s birthday in 2019, or the weekend before or after the child’s birthday if the child’s birthday is not available.

   at further times agreed between the parties, or made available by L C Town Children’s Contact Service, D Street, C Town (‘the Contact Centre’) or as arranged through a private supervisor if the Contact Centre is not available AND IT IS NOTED these orders will apply until December 2019, after which the child’s time with the mother will be as requested and agreed by the child.

5. The mother and child shall communicate by telephone as follows:-

   (a)once a month being the last Sunday in each month at 7.30pm with the first of such telephone calls to be Sunday 25 November 2018, such call to be made by the mother to the child;

   (b)thereafter on a month about basis on the last Sunday of each month until the end of January 2020, such call to be made by the child in December 2018 and then month about; and

   (c)following January 2020 such telephone communication as is requested and agreed by the child.

   IT IS FURTHER NOTED

6. The mother is specifically invited and authorised to take the child Y on the visits to the Contact Centre and any other visits with the child.

   IT IS FURTHER ORDERED

7. The maternal grandmother and the mother are restrained by injunction from:-

   (a)discussing these proceedings or the Supreme Court proceedings with the child or with any other person in the presence or hearing of the child;

   (b)questioning the child about the other household, noting that that is not to prevent the child from telling the parties or any one of them about experiences with the other; and

   (c)denigrating, abusing, belittling or rebuking the maternal grandmother or the mother or their respective extended families.

8. BY CONSENT the mother and maternal grandmother are restrained from bringing the child into contact or communication with Mr E or enabling others to do so. This order relates to the intervention order which is in place to protect the child from Mr E, and is not intended to replace or interfere with the application of such intervention order.

9. The mother be at liberty to forward to the child appropriately worded cards, gifts, photographs and letters including around the time of the child’s birthday, Christmas Day and the like.

10. The mother is restrained from approaching the child at school or at home or otherwise as in accordance with these orders or in accordance without the express consent of the child given in advance.

11. Each party shall:-

    (a)keep the other party advised at all times of their current residential address and home telephone numbers and notify the other party of any change to these details, within forty eight (48) hours of any such change;

    (b)keep the other party advised immediately in the event that the child suffers any serious injury or illness, including informing the mother in advance of any major medical issue; and

    (c)do all things necessary to authorise and facilitate schools at which the child may attend from providing to the mother, at the mother’s expense, copies of school reports, notices and school photographs in relation to the child.

12. The maternal grandmother and mother be at liberty to provide a copy of these orders, the reasons upon which these orders are based and the report of Dr F to the following:-

    (a)the Principal or delegate of the Principal of the school in which the child attends;

    (b)any medical practitioner or allied health professional attending upon the child; and

    (c)any psychological or psychiatric medical practitioner to which either the maternal grandmother or the mother attend in relation to their own physical or psychological health.

13. Within twenty eight (28) days of the date of this order, the mother shall cause to be delivered to the maternal grandmother, by ordinary pre-paid post, the child’s Passport, if she can locate it.  If the mother is unable to locate the Passport the mother write to the maternal grandmother and inform her that she has made searches and is unable to find the Passport.

14. The maternal grandmother be permitted to authorise the child to leave the Commonwealth of Australia for the purpose of any educational excursions or holidays provided she gives the mother at least fourteen (14) days notice in advance of any such travel upon which the child proposes to attend.

15. The mother be restrained from making any complaint to professional organisations in relation to the Independent Children’s Lawyer without leave of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

16. The mother be given leave to apply for such leave as set out in order 15 above, for a period of six (6) months from the date of this order, such application to be by way of an application in a case and an affidavit which is to be listed before Benjamin J.

17. Pursuant to s 65DA(2) and s 62B 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.

18. All extant applications be dismissed.

19. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of this order.

20. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS FURTHER NOTED

1. The provisions of s 121 of Family Law Act 1975 (Cth) prevents publication of identifying material by radio broadcast, television reviews or other electronic means.

IT IS DIRECTED

1. Within fourteen (14) days of the date of this order, the Independent Children’s Lawyer inform the child of the precise nature of these orders.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Sitwell & Sitwell 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 MELBOURNE

FILE NUMBER: MLC 7249 of 2017

Ms A Sitwell

Applicant

And

Ms B Sitwell

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. This is a dispute between the child’s maternal grandmother, Ms A Sitwell, (‘the maternal grandmother’) and the mother, Ms B Sitwell (‘the mother’) as to the parenting arrangements for the child, X (‘the child’).

2. This family has been through years of stress as has the child.  As such I intend to deliver ex tempore reasons now and make orders today.  The child has just celebrated her 14^th birthday.  I was fortunate enough to be provided photographs of that delightful young girl and she looks terrific.  She is fortunate to have people who love her dearly.  Her mother loves her dearly, her maternal grandmother loves her dearly and I suspect her maternal grandfather loves her and he certainly loves his daughter who he has supported throughout this hearing.  The child has a sister, Y, who has celebrated her first birthday or about to celebrate her first birthday.

3. This is a matter where there have been generations of relationship breakdown which has no doubt impacted on all of those involved in one form or another.  My task in this case is to meet the best interests of the child.  I am fortunate in that I have a statutory pathway to follow and I am fortunate in that I have been given the evidence to enable me to make a reasoned and reasonable decision.  The issues between the parties are now relatively narrow.  The parties agree that the child should live with the maternal grandmother, at least for the time being.

4. Once she hits 16 and 17 she is likely to make up her own mind as to where she is likely to stay and there is very little this Court can do or would do.  There is probably very little that those responsible for this child can do, but I will be making the order that the parties and the Independent Children’s Lawyer suggest, that is, that she live with her maternal grandmother.

THE ISSUES

1. The issues I have to address fall into:-

   (a)parental responsibility;

   (b)the time, if any, that the child sees her mother;

   (c)the communication the child has with her mother;

   (d)some injunctions which seem to be agreed, in any event;

   (e)the power for the child to leave Australia on holidays and vacations; and

   (f)perhaps the question of a passport, although I think that is a relatively minor issue in the context of this dispute.

2. Fortunately an Independent Children’s Lawyer has been appointed and, whilst parties struggle to understand the role of the Independent Children’s Lawyer, it was necessary in this case.  Parties will sometimes be angry with an Independent Children’s Lawyer because they say things that people do not want to hear and that is the very task that an Independent Children’s Lawyer has.  I make it clear that I am not bound by the submissions of the Independent Children’s Lawyer.  I make up my mind on the evidence that is before me. 

THE LAW

1. The provisions of the Act that deals with children is set out in Part VII. In particular s 60B articulates the objects and the principles underlying them as follows:-

   (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).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act.  It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’.  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 either 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 family violence.  The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

(3)Additional considerations are:

(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;

(b)        the nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(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;

(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;

(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;

(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 child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)         the capacity of:

(i)       each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(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;

(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;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(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;

(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 the child;

(m)        any other fact or circumstance that the court thinks is relevant.

1. I will endeavour to apply the facts to the law.

2. Unfortunately, this child’s father has not been involved in her life to date, although I am told she knows who he is and will no doubt at some stage in the future make her own inquiries about him.  That is the nature of human beings; they like to know who they are and where they come from. 

BACKGOUND

1. The maternal grandmother was born in 1951, and is aged 67 years.  The mother was born in 1973 and is now aged 45 years.  She is one of two children.  Her brother, Mr G, gave evidence in these proceedings.

2. Unfortunately, the mother and her brother and perhaps soon the maternal grandmother are engaged in proceedings in relation to the mother’s grandparents’ estate.  I make no comment in relation to that, but it clearly adds to the conflict that exists between the parties. 

3. The child was born in 2004 and has a sibling, Y, who is soon to celebrate her first birthday.  Both the mother and maternal grandmother have been significantly involved in the care and upbringing of the child from the time of her birth.  The year 2017 was a significant year.  First, the mother fell pregnant to Mr E, who is the father of Y.

4. There was an incident in June 2017 and I have been given evidence in relation to that.  The consequence of the events in June 2017 is that the maternal grandmother and the child are now living as a separate unit and the mother has not spent time with the child since that time.  The child has consistently and persistently said to all who will listen that she does not want to spend time with her mother and, in many ways, is rejecting her mother, although the rejection, to the credit of the maternal grandmother, is not as absolute as I have seen.

5. The child has left the door somewhat ajar and the child, as sometimes children and, dare I say it, adults use as absolute terms, but they are not sometimes as absolute as they seem.  There were proceedings in 2017 between the police and the mother which ended up in mutual undertakings being given in a Magistrates Court in November 2017.  Proceedings were commenced in the Federal Circuit Court by the maternal grandmother and orders were made.  The proceedings were soon transferred from the Federal Circuit Court to the Family Court.  A report was ordered from Dr F and that report was prepared with interviews soon after the birth of the child’s younger sibling.

6. Dr F gave evidence and has not seen the mother or the child since that time.  I will talk about his evidence later.  In 2018 the Police applied for and obtained an order, in fact a final order, that Mr E not approach or spend any time with the child.  It is a very broad intervention order, which I understand expires towards the end of next year.  With the consent of the parties and having regard to the history of Mr E, and perhaps I am not as sanguine about Mr E as is the mother, I do not know him, but my job is to protect the child, I will be making the order that the parties see that he not approach the child, but it will be made in a way that will not in any way derogate from the intervention order that is in place or any extension of that intervention order.  That is not a matter for contention. 

7. The matter was listed for hearing before me this week and I have heard the case.  In these reasons any statement of fact is to be regarded as a finding of fact, unless the contrary is clear from the terms of the statement.  I am also very conscious that the mother is unrepresented.  As I said at the start of this proceeding, I will spend a lot of time talking to the mother, which is a two-edged sword.  It means that the mother says things to me which are at times not filtered through the thoughtful approach of some barristers and solicitors.  I have, to the best of my ability, endeavoured to apply procedural fairness so that the mother was heard and heard properly.

THE EVIDENCE

Documents

1. The material before me was the report of Dr F, filed 13 February 2018, and his report was from late 2017.  For the applicant maternal grandmother, I had her trial affidavit and her supplementary affidavits filed 21 June 2018 and 26 July 2018.  The orders that she sought were tendered and are Exhibit E4.  She also filed and relied upon affidavits of the mother’s brother, Mr G Sitwell of 21 June 2018 and 26 July 2018.  Both the maternal grandmother and her son were cross-examined by the Independent Children’s Lawyer and by the mother.  There was also the affidavits of Mr G Sitwell’s wife, Ms H, which were read into evidence and I have had regard to those and I have had regard to the annexures attached to them.

2. The only recording I listened to was that taken by the child in March last year.  Dare I say, for most of it as a one-time father of a 13 year old/14 year old girl, who fortunately grew out of it, the start of the conversation was not something that I have not heard before.  It was the end of the conversation which caused some concern. 

3. The mother relied upon her affidavit and annexures, which were filed 12 July 2018.  She chose not to rely on the affidavit of Ms J and her father Mr J, who, as I said, provided support for her.  Tendered in evidence were the case outlines of each of the parties which were Exhibits E1, E2, E3.

4. The maternal grandmother relied on:-

   (a)the orders she sought;

   (b)her chronology, much of which has been accepted by the mother, although she did not accept the questions of violence;

   (c)the annexures to her affidavits, including a genogram, which I thank counsel for the maternal grandmother for providing because it helped me understand the structure of this family, which was important;

   (d)the annexures to Ms H’s affidavit;

   (e)the email from the Independent Children’s Lawyer;

   (f)the correspondence of about 79 pages between the mother and the lawyers and some of the correspondence was unhelpful;

   (g)the delightful photographs of both of these children, which were provided by the mother and the maternal grandmother;

   (h)a report from the child’s psychologist, Mr K;

   (i)some documents from Department of Health and Human Services;

   (j)the annexures to the mother’s affidavit, such as were not rejected; and

   (k)a form of order suggested by the Independent Children’s Lawyer. 

5. The maternal grandmother gave evidence and was cross-examined.  She made concessions against interest.  She clearly articulated that she had huge difficulties with the mother, but says that this has not come out in terms of her interaction with the child.

6. I accept her evidence in that respect, although there is no doubt that the child would be aware that the maternal grandmother and the mother do not get on because children are generally far more attuned to those with who they live than those with whom who they live can give credit to from time to time.  She described the telephone calls which were occurring twice weekly and the burden that this had on the child.  The mother, in part, accepted that, but, in part, said that the level of conflict was not as asserted.  On balance I prefer the evidence of the maternal grandmother.  She gave evidence of the child expressing concern about Mr E, which evidence I accept.

7. Whilst the mother may not like to hear this, I am confident from my observations of the maternal grandmother and reading the material, including Dr F’s report, that she is not taking the child for any self-serving purpose; that she is caring for the child because, in her mind, she believes it is in the best interests of that child.  I treat her evidence as being certainly coloured by her views, but generally reliable. 

8. Mr G Sitwell gave evidence in accordance with his affidavits and at the beginning I told him if he felt overwhelmed he could take a break.  I do not know that I have ever seen a witness who was less likely to be overwhelmed than Mr G Sitwell.  He was very determined and forceful.  He is, I suspect at times, a force to be reckoned with.  I am satisfied that from his own perspective, he endeavoured to give evidence accurately, although it is strongly coloured by his support of his mother and the child.  His wife’s evidence was read in uncontested and I have had regard to that and the annexures. 

9. The mother gave evidence yesterday and it was clearly a burden for her.  As I said at the start, this mother loves this child deeply and wants a relationship with her.  Her evidence, as contained in her affidavit of 12 July 2018, was read in.  She was asked about going to the media as the first question and endeavoured to deflect the answer.

10. My sense was that the mother at times says things in anger or frustration or the combination of both with which she struggles to deal with afterwards.  That is the nature of her personality, I suspect.  The mother says that she feels set up by the maternal grandmother and gave significant evidence in both affidavit and oral form in that respect.  The mother has at times displayed great anger and perhaps in the circumstances it can be understood, although not approved.  The letters that existed that went between her and some of the legal representatives were troublesome.  When asked questions about that she prevaricated in giving evidence.

11. She clearly dislikes and distrusts the maternal grandmother and, in fact, trust in this family is in significantly short supply.  She did, however, say and to her credit the mother went the L Contact Centre to fill out the paperwork and said that she would see the child in any circumstances, including at L if that was the only one open to her.  The mother also said that she thought that bi-weekly telephone calls were counterintuitive in that she has little to say to the child and vice versa because of the constraints and feels that perhaps twice a month or once a month may allow better communication.  I have accepted her evidence in that regard.

12. The mother is concerned about the maternal grandmother, in the mother’s view, taking the child and would not trust her with Y.  The mother has been seeing a psychologist and continues to do so.  Given the health circumstances that Dr F has outlined that is a sensible course for her to adopt.  I heard the cross-examination in relation to the passport and the questions to those answers.  It is agreed between the parties that they cannot agree, that they cannot manage a joint parenting arrangement and it is unlikely that parental responsibility on a joint basis would work for this child at a time when she needs someone to set parameters.

13. I was not convinced that the March and June events were as the mother said.  I am convinced that they were far more exciting than the evidence of the mother’s would assert.  I am concerned about her defence of Mr E, and I have said that earlier.  I am concerned as to the reliability of her evidence. 

14. Dr F gave evidence in accordance with his affidavit.  He gave evidence by telephone, and his qualifications were not in any way challenged.  He described the concerns of the child in seeing the mother as tearful, significantly distressed and strongly opposed to seeing the mother, and it is clear that this view of the child has continued.

15. His suggestion for a build-up of time was an expression, I think, in my words, not his, of hope over reality.  What he did say, which struck a chord with me, was that the door ought to remain ajar for this child to have a relationship with her mother provided it meets her needs.  His evidence, which also struck a chord with me, was that in his view, given his discussions and reporting on the mother, the maternal grandmother and the child, that equal shared parental responsibility could not operate.  So what do I do?  I do not need to apply the presumption under the Act that there should be equal shared parental responsibility given the allegations; however, I have considered equal shared parental responsibility.

16. I do not think, in this case, it can work having regard to the evidence of the maternal grandmother, the mother and Dr F. It would leave the child exposed to decision-making sclerosis where decisions were not made. I have considered that in the light of the s 60CC factors to which I will allude a little later, and I am satisfied in the all the circumstances that the maternal grandmother ought to have sole parental responsibility for this child. As an aside to that, there was an issue about the child travelling overseas, and the paternal grandmother being given permission to take the child overseas.

17. I am conscious that the Act provides that a person cannot remove a child from the Commonwealth of Australia without the leave of the child’s parents if an order is in place.  Given that one of the child’s parents is not involved in these proceedings that, in itself, can cause a series of problems.  I intend to give permission for the maternal grandmother to take the child out of Australia, but require her to give the mother notice in advance of any such travel, so that the mother is aware of it, and if she wishes, and I neither encourage nor discourage her, she can take steps.  If the trip is entirely inappropriate then the matter can come back to the Court.  If it is for a piano recital in New Zealand or a school excursion to Fiji then I would not expect it to come back to the Court.  Similarly, if it was a trip to Disneyland or something along those lines I would not expect it to come back.  But the mother is entitled to know, and she is entitled to know about health aspects and education aspects of this child.  Consequently, I will be making an order for sole parental responsibilities, but with those limitations on them.  Sole parental responsibility gives the right to whoever has it to apply for a passport.  I will make that clear that that is the case, and I will direct the mother, if she can find the child’s current passport, to return it, but if she cannot then the maternal grandmother can apply for another passport. 

18. In terms of residence, it is agreed and submitted by the Independent Children's Lawyer, and I am satisfied in all the circumstances of this child, that the consent order ought to be made. 

19. In terms of the s 60CC factors, the first of which is s 60CC(2)(a), that is the benefit of the child having a meaningful relationship with her parents, it only applies in the matter I have today as to the mother.

20. It is important that this child have a relationship with her mother.  The mother made a very powerful submission that she does not want the child to end like her, which I think affected everyone in this Court, because I watched and listened.  This mother wants this child to have a decent childhood, a decent adulthood and decent relationships.  The risk the child takes is with the mother’s anger and the mother’s expressions of frustration to the child, and that is always difficult with teenage children, particularly teenage girls at about this age.

21. The child needs to be protected from the mother’s reaction, which I have seen in various ways, but, at the same time, there needs to be the door left open in some form or another.  So the child needs to be protected against those matters.  It is agreed between the parents that the child needs to be protected from Mr E, and I will put in orders to do that. 

22. Having regard to the other relevant factors, I will go through that shopping list, which I made available to the mother yesterday.  The first is the views of the child, and the child has expressed views strongly.  However, the maternal grandmother, in giving evidence, said that the child was open if pressed to communication with the mother, if not forced; although, I intend to force her, at least a little bit, for a start.  It is a bit like eating vegetables at times.  Sometimes you have to be forced to eat them.  That is a poor analogy, but perhaps one which the parties may understand. 

23. As to the relationship between the child and those involved, she has a strong relationship with her maternal grandmother, and what is clear from the objective evidence just not the maternal grandmother, is that the child is thriving in that way.  The mother acknowledged that she hoped that that was the case.  Her relationship with her mother is tenuous.  It would be unfortunate if it were broken.

24. The mother has taken all the steps that she has considered appropriate to participate in the child’s life both before and after June of last year.  She is endeavouring to spend time with the child.  She is here today in not the easiest of circumstances, but to press that desire.  Counsel for the maternal grandmother made, I thought, an extraordinary submission in support of the child, and I thank her for those, in terms of opening the door for time and for communication, and I acknowledge that this was reflected on the instructions that were given to her by the maternal grandmother.

25. I have to have regard to the likely effect of any changes in the child’s circumstances and the likely effect on the child of separation from the mother, and on that there is a balance.  Dr F says if the child is completely separated from the mother there could be a significant detrimental impact on her, but there is also the child’s strong view, and at 14 it is a very strong view, and it is how I balance that in terms of making these orders.  One of the other factors which is significant is that this child has yet to meet her sister, who is about to celebrate her first birthday.

26. I suspect, as the years pass and perhaps as things calm down the child will want to know her sister and will want to be involved in her life, particularly when she gets to 18, 19 and 20 and starts having relationships of her own and starts thinking of her own future.  It is important that the child know her sister, and it is probably equally important that the sister know the child.  It might give her another port of call to someone that Y can rely upon when she goes through these difficult years in years to come when her mother will be regarded as a very old lady and her grandparents beyond that.  So it seems to me important that there be some contact between these two sisters.

27. As to the capacity for parent, I am satisfied that the maternal grandmother has the capacity to parent.  The mother struggles with older children and probably struggles in the context of managing the fallout from her own parents’ relationship. 

28. Neither of the parties have identified as Aboriginal or Torres Strait Islander. 

29. I have had regards to the aspect of family violence in the child’s view that she was the subject of violence.  Whether it was an overreaction by the mother, an overreaction by the child, or something in the middle I probably do not know, but the child has a view about that, and it may well be worthwhile for the mother to contemplate an apology to the child.  Sometimes something like that can open a door and sometimes what may or may not be a reality become a reality in our own minds as time passes.  I am conscious of the family violence orders and the undertakings. 

30. Whatever orders I make in this case will probably be the last orders made for this child, for even if the parties do not like it, by the time there is an appeal, and I neither recommend nor oppose it, that is a matter for them, and it comes back for a hearing this child will be 18.  So further litigation in this Court or the Federal Circuit Court is not going to serve a purpose for anyone in this case.

31. I intend to put in place some orders that the child may telephone her mother at any time she chooses to do so, but that she must telephone her mother or the mother telephone her on a month about basis, so that there is at least one telephone call a month, but I insist that the Independent Children's Lawyer tell the child she can telephone her mother whenever she chooses to do so. 

1. In terms of time, I visit Children’s Contact Services all over Australia in my travels, because I like to see how they operate.  I suspect that Ls are likely to be able to find for three or four times a year, if asked, to provide supervision for an hour.  I am going to make an order that over the next 12 months the child spend supervised time at the Ls for one hour with the mother and with her sister, and I would expect the maternal grandmother to tell the child that that is a bit like eating vegetables: that she needs to go, and she needs to meet her sister.  That will give the mother a chance to have time with the child just before Christmas, in Easter, around Mother’s Day and the child’s birthday.

2. It is my hope that this leads to more regular time and perhaps, as submitted by counsel for the maternal grandmother, to go and have a cup of coffee if the child wishes or to go to a movie or to take her sibling to a pantomime or something along those lines, or, I think, nowadays, it’s to see the Wiggles or something along those lines.  I intend to restrain both parties from discussing these proceedings in the presence of the child for two reasons.  First, it hopefully prevents people from doing so.  Second, if the child asks questions it gives each of the parties the power to say, “Look, we can’t discuss these proceedings,” and you can blame me and not each other.

3. I intend to provide that the time be supervised, except as otherwise requested by the child and agreed to by the maternal grandmother. The Independent Children's Lawyer has asked me to make an injunction restraining publication. I do not think I really need to do that. I will simply the note the provisions of s 121 of the Act in the order, because it seems to me that if you breach my orders it is unlikely that somebody else will take it on board, but if you breach s 121, of the Act given what happened in the Italian children’s case, the Attorney General can actually take action against a party who publishes information proceedings such as this.

4. As I said, I intend to give permission for a passport to issue and other similar orders in relation to it.  I am going now to announce the orders, but I invite the mother, the Independent Children's Lawyer and counsel for the maternal grandmother to interrupt me if it seems to fall outside what I have set out in my reasons.  I will also make an order restraining complaint to professional bodies in relation to the Independent Children's Lawyer without the leave of the Court.  By this, I do not mean to unduly restrict legitimate complaint against an Independent Children's Lawyer, but it seems, further, that it is worthwhile for this Court to know that if an Independent Children's Lawyer has acted inappropriately, it ought to know about it and be able to deal with it firstly.

5. Second, I am aware that, and perhaps the parties are not aware, the work of an Independent Children's Lawyer is significantly pro bono.  They take on the work, they get paid very small amounts of money, and there is a significant element of community involvement for Independent Children's Lawyers to take on that role, and it is important that they are protected from frivolous or vexatious complaint.  I will give the mother, if she wishes to make any complaint, leave to apply within four or six months time to the Court with a short affidavit to tell me why there should be a complaint, and if there is basis to it the complaint will go ahead.  If there is no basis to it then the complaint ought not to go ahead.  The Independent Children's Lawyer is an officer of the court and has significant responsibilities to the court, and this Court takes that seriously.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 October 2018.

Associate:

Date:              20 November 2018