Stamford & Jewel & Anor

FAMILY COURT OF AUSTRALIA

STAMFORD & JEWEL & ANOR

[2011] FamCA 890

FAMILY LAW – CHILDREN – parental responsibility – with whom a child shall live – parties agree the maternal grandmother should have sole parental responsibility for the child – orders made for maternal grandmother to have sole parental responsibility
FAMILY LAW – CHILDREN – with whom a child shall spend time – section 60CC primary considerations - where child’s primary attachment was with the maternal grandmother and where the child has a meaningful relationship with the father – risk of harm posed to child by exposure to mother’s erratic behaviour caused by her psychiatric condition and her continued use of illicit drugs – risk of child being emotionally harmed by exposure to father’s suspected drug use and his violent behaviour towards his current partner – child not at unacceptable risk of emotional harm whilst child is in father’s care - orders made for child’s time with mother to be supervised by maternal grandmother and for child to spend unsupervised time with father

FAMILY LAW – CHILDREN – section 60CC additional considerations – consideration of practical difficulty and expense of child spending time with father - where the only viable method of transport between the two households is a road journey of five hours by private car – where father is in a slightly better position to undertake more of the travelling – where father has not paid any child support for the child - orders made for parties to travel approximately equal distances to begin the child’s time with the father but the father will need to travel further than maternal grandmother to return the child to her

FAMILY LAW – CHILDREN – Aboriginality - where parties assert that child has Aboriginal heritage through maternal family – where aboriginality is not raised as an issue for consideration or the right of the child to enjoy aspects of that culture or the likely impact of the proposed parenting orders upon that right – held that in such circumstances it is not for the court to develop the issues

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Family Law Rules 2004 (Cth) rr 16.08, 16.09

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Malcolm & Monroe & Anor (2011) FLC 93-460
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394

APPLICANT:

Mr Stamford

1st RESPONDENT:

Ms Jewel

2nd RESPONDENT:

Ms Nickel

INDEPENDENT CHILDREN’S LAWYER:

Ms Olsen, Boyd Olsen Lawyers

FILE NUMBER:

NCC

2134

2009

DATE DELIVERED:

23 November 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

1 & 2 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weightman

SOLICITOR FOR THE APPLICANT:

Bell & Johnson Solicitors

COUNSEL FOR THE 1ST RESPONDENT:

Ms Carty

SOLICITOR FOR THE 1ST RESPONDENT:

Jason Curtis, Solicitor

COUNSEL FOR THE 2ND RESPONDENT:

Mr Bateman

SOLICITOR FOR THE 2ND RESPONDENT:

Craney Family Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Olsen, Boyd Olsen Lawyers

Orders

All former orders relating to the child B, born … 2004, (“the child”) are discharged.
The second respondent maternal grandmother (“the maternal grandmother”) shall have sole parental responsibility for the child.
The child shall live with the maternal grandmother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the first respondent mother (“the mother”) at times and under circumstances determined by the maternal grandmother, supervised personally by the maternal grandmother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the applicant father (“the father”) as follows, unless otherwise agreed between the father and maternal grandmother:
(a)For a period of six months following the date of these orders, on the first Saturday of each month from 10.00 am until 4.30 pm; and
(b) Thereafter:
(i)During NSW public school terms, from 10.00 am on the fifth Friday of the term until 4.30 pm on the following Sunday;
(ii)During NSW public school holidays, except Christmas school holidays, for the first week of the school holidays commencing at 10.00 am on the first Saturday after the last day at school and concluding at 4.30 pm on the following Saturday; and
(iii)During NSW public school Christmas holidays, for two weeks, commencing at 10.00 am on the first Saturday after the last day at school in December 2012 and concluding at 4.30 pm on the second following Saturday (and every alternate year thereafter), and commencing at 10.00 am on the first Saturday in January 2014 and concluding on the second following Saturday (and every alternate year thereafter).
For the purposes of implementing Order 5(a) hereof, unless otherwise agreed between the father and maternal grandmother:
(a)On the first, third, and fifth occasions, the maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the public tennis courts at C Town, NSW, and the father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the same place; and
(b)On the second, fourth, and last occasions, the maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at D Town, NSW, and the father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the same place.
For the purpose of implementing Order 5(b) hereof, unless otherwise agreed between the father and maternal grandmother:
(a)The maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the public tennis courts at C Town, NSW; and
(b)The father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the McDonalds Restaurant at D Town, NSW
Unless otherwise agreed between the father and maternal grandmother, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with the father each Monday and Thursday, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the maternal grandmother, and the maternal grandmother shall ensure that the child is able to receive the father’s calls on that number at that time.
The father is restrained from consuming alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.
Each party is restrained from allowing the child to remain in any car, house, or other confined space in the presence of any person who is smoking.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The maternal grandmother and father shall notify one another of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the parties about the condition and treatment of the child.
The maternal grandmother shall authorise and request the principal of any school attended by the child to provide to the father and mother, at their expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Stamford & Jewel and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2134 of 2009

Mr Stamford

Applicant

And

Ms Jewel

First Respondent

And

Ms Nickel

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The best interests of the only child of the applicant father and respondent mother are at stake in these proceedings.
But for the selfless intervention in the lives of the mother and father by the second respondent maternal grandmother the safety of the child would certainly have been alarmingly compromised for most of her short life.
During the course of this litigation the mother and father both sensibly came to realise that only the maternal grandmother could capably care for the child and so it was agreed she should have sole parental responsibility for the child and that the child live with her.
The trial was necessary to determine the manner in which the child should individually interact with the mother and father, about which there was residual dispute.

Background

B, born in 2004, (“the child”) is the subject of these parenting proceedings.
She was born to the relationship between the mother and father. The evidence about the nature and duration of their relationship is inconsistent and does not permit any firm findings of fact. There was some initial doubt about the paternity of the child, but all parties now accept the father is the biological father of the child.[1]
[1] Family Report, par 1.
The maternal grandmother asserted the child has lived with her since she was born in 2004,[2] the mother agreed the child has lived with the maternal grandmother for most of her life,[3] and the Family Consultant’s review of the material produced on subpoena supported that appraisal.[4] The father also agreed with that proposition in cross-examination, even though he contrarily deposed in his affidavit that the child lived for equal time with both he and the maternal grandmother[5] and then primarily with the mother once she was released from prison.[6] I accept the child has lived with the maternal grandmother for most of her life.
[2] Maternal grandmother’s affidavit, par 2.
[3] Mother’s affidavit, par 3.
[4] Family Report, par 9.
[5] Father’s affidavit, par 13.
[6] Father’s affidavit, par 14.
In November 2006 parenting orders were made between the mother and father in respect of the child in the NSW Local Court at E Town, without recourse to the maternal grandmother, with whom the child was residing.[7] The child continued to live with the maternal grandmother even though the orders notionally provided for the child to live with the mother. The maternal grandmother still facilitated the implementation of those orders by driving the child vast distances to spend time with the father.[8] The child’s inconsistent interaction with the mother was due, at least in part, to the mother’s imprisonment at various times.[9]
[7] Family Report, par 7; Father’s affidavit, par 9.
[8] Maternal grandmother’s affidavit, par 5; Father’s affidavit, par 9.
[9] Family Report, pars 5-6; Father’s affidavit, pars 10-11.
The father commenced these proceedings on 30 April 2009 by filing an Initiating Application with the NSW Local Court at E Town.[10] The proceedings were later transferred to the Federal Magistrates Court at Newcastle, and then to this Court.
[10] Father’s affidavit, par 18.
When commenced, the proceedings involved only the father and mother, but the maternal grandmother later sought and was granted leave to intervene in the proceedings. The motivation for the maternal grandmother’s involvement was the father’s retention of the child in August 2009.[11]
[11] Maternal grandmother’s affidavit, pars 9-10.
In September 2009 the Court made interim parenting orders providing for the child to live with the maternal grandmother and granted an order for the recovery of the child from the father in favour of the maternal grandmother.[12]
[12] Family Report, par 12.
The maternal grandmother filed a Form 4 Notice of Child Abuse or Family Violence in September 2009 alleging the possibility of the father’s sexual abuse of the child. Although the allegation was reported to the maternal grandmother’s doctor and presumably the NSW Department of Family and Community Services (“the Department”), there is no evidence of the allegation being investigated, let alone confirmed. The father, who denied any impropriety,[13] was never charged with any offence and the maternal grandmother abandoned any reliance upon the allegation as these proceedings progressed.
[13] Father’s affidavit, par 19.
Further interim parenting orders were made with the consent of the parties in November 2009 confirming that the child was to live with the maternal grandmother and providing generally for her to spend time with the father each alternate weekend during school terms and for half of all school holidays.
The parties’ respective use of illicit drugs was by then a vexed issue in the litigation and an order was made requiring the parties to undertake monthly drug screens and to provide the results to one another.[14] Since the mother was imprisoned at that time, it was noted that she was unable to comply.[15] Later, in December 2010, the orders were changed to require only random drug screening at the request of the Independent Children’s Lawyer.
[14] Family Report, par 15; Maternal grandmother’s affidavit, par 35.
[15] Order 1.6 made on 20 November 2009.
The mother admits she continues to use illicit drugs even now, which impairs her reliability as a parent.[16] The maternal grandmother’s drug screen results have always been negative since the orders were made in November 2009.[17] The father’s drug screen results were initially positive, but have been uniformly negative since July 2010.[18]
[16] Mother’s affidavit, par 87.
[17] Maternal grandmother’s affidavit, par 36; Father’s affidavit, par 42.
[18] Exhibit ICL2; Maternal grandmother’s affidavit, pars 37-46; Father’s affidavit, pars 40-41.
In April 2010 the Court made further interim parenting orders, discharging the previous order providing for the child to spend time with the father and referring that issue to another contested interim hearing. That was apparently because of the father’s failure to provide negative drug screens in accordance with the orders made in November 2009. The Department was requested to intervene in the proceedings, but did not do so.
In May 2010 the Court ordered the parties to ensure the child spent time with the father for two hours per month under supervision at the F Town Family Relationship Centre.[19] That contact centre was chosen because the father then lived in F Town and the maternal grandmother then lived in D Town. The Court also restrained the parties from permitting the child to spend any time with the mother unless supervised by the maternal grandmother.[20] The orders made in May 2010 continue to regulate the parenting arrangements in respect of the child.
[19] Family Report, par 19; Order 2 made on 19 May 2010.
[20] Family Report, par 19; Order 1 made on 19 May 2010.
The Court again invited the Department to intervene in the proceedings, but as before, the Department did not avail of the invitation. The family is well known to the Department. The mother has five other children, three of whom are older and two of whom are younger than the child. The three elder children are already in the foster care of the Department, and the younger two live with the child in the care of the maternal grandmother.[21] The mother has lived close to the maternal grandmother since her release from prison in January 2010, occasionally living in a rear shed at her property, regularly seeing the children.[22]
[21] Family Report, par 2; Mother’s affidavit, pars 4-6; Father’s affidavit, par 8.
[22] Mother’s affidavit, pars 81-86; Family Report, pars 40, 44, 52.
By the time the matter was allocated its first day of less adversarial trial before a judge pursuant to r 16.08 of the Family Law Rules 2004 (Cth) in November 2010, the parties had reached agreement that the maternal grandmother should have sole parental responsibility for the child.[23] The scope of the dispute was narrowed to the circumstances under which the child would spend time and communicate with the mother and father,[24] and the less adversarial trial was adjourned for the express purpose of enabling the mother and father some time within which to demonstrate improvement in their respective parenting capacities.[25]
[23] Order 1.1 made on 8 November 2010.
[24] Notations B, C made on 8 November 2010.
[25] Notations D, E made on 8 November 2010.
By June 2011 the parties were no closer to agreement on the contentious issues and so the matter was fixed for orthodox trial under r 16.09 of the Family Law Rules 2004 (Cth).[26] Judgment was reserved when the trial concluded on 2 November 2011.
[26] Orders 1, 5 made on 24 June 2011.
The parties’ positions remained fluid and they changed their proposals throughout the trial. There was ultimately little difference between the proposals of the father, maternal grandmother, and Independent Children’s Lawyer.

Proposal of and primary evidence of the father

The father began the trial pressing for the orders set out within his Further Amended Initiating Application filed on 8 July 2011, but concluded the trial propounding a different minute of orders,[27] which provided for:
a)The maternal grandmother to have sole parental responsibility for the child (Order 1);
b)The child to live with the maternal grandmother (Order 2);
c)The child to spend time with the father, unless otherwise agreed, on a graduated basis involving an initial period of six months during which the child would spend time with the father on one day per month, and thereafter one extended weekend during each school term and for half of all school holidays (Orders 3, 5);
d)The changeover venue to be the public tennis courts at C Town, NSW (Order 4);
e)The child to have reasonable telephone communication with the father (Order 6);
f)The child to spend time with the mother as agreed between her and the maternal grandmother (Order 10), which time is to be supervised. Although the father’s minute of order proposed that supervision be provided by the maternal grandmother, during final submissions the father adopted the Independent Children’s proposal that the supervision be provided by staff at a contact centre; and
g)Restraint of the mother from staying overnight in and around the maternal grandmother’s home (Orders 7-9).
[27] Exhibit F1.
In support of his proposal the father relied upon his affidavit filed on 16 September 2011 and the affidavit of his partner, Ms G, filed on 23 April 2010.

Proposal and primary evidence of the mother

The mother commenced and concluded the trial by proposing the orders set out within her Further Amended Response filed on 29 August 2011, which made provision for:
a)The child to live with the maternal grandmother (Order 2);
b)The maternal grandmother to have sole parental responsibility for the child (Order 3);
c)The child to spend time with the mother under supervision of the maternal grandmother until such time as the mother provides to the maternal grandmother negative monthly drug screens for a period of 12 months, and thereafter in circumstances agreed between the mother and maternal grandmother (Orders 4-5);
d)The father to provide monthly drug screens to the maternal grandmother for 12 months (Order 6), pending which the child should spend supervised time with the father on one day per month at a contact centre (Order 7), and if the father’s drug screens are negative for the designated 12 month period then the child should spend unsupervised time with the father on one weekend per month, with the maternal grandmother’s home as the changeover venue (Orders 8-9); and
e)The child have liberal telephone communication with the mother and father (Order 14).

During the trial the mother’s counsel announced that the mother also desired an order making the expenditure of time by the child with the father conditional upon the father “not having any offence involving drugs or violence of any nature proven against him”, with such condition to prevail until the child attained her majority. However, in the absence of the mother being present to provide her counsel with proper instructions during final submissions, the oral application for that order was not pressed.
In support of her proposal the mother relied upon her affidavit filed on 16 September 2011.

Proposal and primary evidence of the maternal grandmother

The maternal grandmother began the trial relying upon her Amended Response filed on 22 July 2011, but concluded the trial pressing for the orders set out within a fresh minute,[28] which essentially provided for:
[28] Exhibit MGM1.
a)The maternal grandmother to have sole parental responsibility for the child (Order 2);
b)The child to live with the maternal grandmother (Order 3);
c)Unless otherwise agreed, the child to spend unsupervised time with the father on a graduated basis, beginning with an initial period of six months during which the child would spend two consecutive days per month near to the maternal grandmother’s home in H Town (Orders 4.1, 4.2), and thereafter for one extended weekend during each school term, for two weeks during the Christmas school holidays, and for one week during all other school holidays (Orders 4.3, 4.5, 4.6);
d)The child’s time with the father to be implemented, after the initial period of six months, by the father collecting the child from the maternal grandmother at her home and returning the child to the maternal grandmother at the McDonalds Restaurant, D Town (Orders 4.4, 4.7), and the father paying to the maternal grandmother the sum of $150 at each changeover effected at D Town (Order 4.8);
e)The father to continue undertaking illicit drug screens randomly at the direction of the maternal grandmother for six months, and in the event of a positive result the maternal grandmother would be at liberty to unilaterally suspend operation of the orders providing for the child to spend time with the father (Order 10);
f)The child communicate with the father by telephone on four evenings each week (Order 5);
g)The father and maternal grandmother maintain a communication book (Orders 6-7);
h)The child to spend time with the mother as agreed between the mother and the maternal grandmother, but always subject to supervision by the maternal grandmother (Order 8); and
i)Each party inform the others if they are charged with any criminal offence (Order 11).
In support of her proposal the maternal grandmother relied upon her affidavit filed on 14 September 2011.

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer did not announce the orders she proposed until final submissions commenced. At that time she tendered a minute of orders,[29] which provided for:
a)The child to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for the child (Order 1);
b)The child to spend time with the father on a graduated basis, beginning with one day per month for an initial period of six months (Order 2.1) and then moving to one weekend during each school term, for two weeks during the Christmas school holidays, and for one week during each of the other school holidays (Order 2.2);
c)The changeover venue to be the park at C Town (Order 3);
d)The child to communicate with the father by telephone on three evenings each week (Order 4); and
e)The child to spend time with the mother as agreed with the maternal grandmother, but supervised by the maternal grandmother, and conditional upon the mother attending upon a psychiatrist for assessment, acceptance of psychiatric treatment, and provision of evidence of her treatment to the other parties (Order 5), and restraint of the parties from permitting the child to otherwise interact with the mother (Orders 7-8).
[29] Exhibit ICL3.
The Independent Children’s Lawyer did not call any evidence, but did rely upon the evidence of the Family Consultant, contained within her affidavits affirmed on 3 September 2010[30] and 26 September 2011. The Family Consultant was cross-examined by the Independent Children’s Lawyer and the parties on that evidence.
[30] Exhibit ICL1.

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child

Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]). However, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59-61, 76-81, 83]; Dennett & Norman [2007] FamCA 57 at [53-60]).
Given the agreement between the parties that the child should live with the maternal grandmother, there will be an ongoing necessity for the maternal grandmother to interact with each of the parents with regard to the child. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern a grandparent may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]; Malcolm & Monroe & Anor (2011) FLC 93-460 at [94-100]). Consequently, I will deal with the parents and maternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

primary considerations

Section 60CC(2)(a)

The evidence proves the existence of a meaningful relationship between the child and the father.
The child described to the Family Consultant a loving relationship with the father,[31] but as with the mother, the father was unable to attend the appointed interview with the Family Consultant on 21 September 2011 and was therefore not observed with the child.[32] The father was disappointed at being unable to attend.[33] The Family Consultant did see the child in the company of the father about a year before on 2 September 2010 when she was observed to respond towards the father in an affectionate manner.[34]
[31] Family Report, par 50.
[32] Family Report, page 3, par 23.
[33] Family Report, par 32.
[34] Exhibit ICL1, page 6.
The positive comments made by the child to the Family Consultant about the father in September 2011 were corroborated by the maternal grandmother in cross-examination, who volunteered that the child and the father loved each other very much.
A recent report from the contact centre, where the child presently spends supervised time with the father, also demonstrates the quality of the child’s relationship with the father. On 25 September 2011 the child was observed to run to the father, hug him tightly, and tell him she loved him. Tactile warmth was a feature of the visit between them.[35]
[35] Exhibit F2.
I am satisfied the child will benefit from preservation and promotion of the meaningful relationship she enjoys with the father.
The nature of the relationship between the child and the mother is not quite so easily discerned because of a paucity of evidence. The mother adduced no evidence about the nature of her relationship with the child. Nor did the maternal grandmother, other than to say in cross-examination that the child has a loving relationship with the mother.
When the child was initially seen with the mother by the Family Consultant on 2 September 2010 they appeared to enjoy a loving relationship.[36] The mother failed to attend the appointed interview with the Family Consultant a year later on 21 September 2011 and was therefore not observed in interaction with the child.[37] The child spoke briefly of the mother to the Family Consultant on that occasion, but not in terms that unequivocally suggested she has a meaningful relationship with her.[38] The child refers to the maternal grandmother as “mum”,[39] and the mother as “Mummy …”.[40]
[36] Exhibit ICL1, page 6.
[37] Family Report, page 3, par 23.
[38] Family Report, par 52.
[39] Family Report, pars 1, 43, 53.
[40] Family Report, par 43, 52.
Despite the brevity of evidence I infer the child regards her relationship with the mother as significant. However, that relationship is far less significant than the one she enjoys with the maternal grandmother. Retention of the child’s relationship with the mother will only be beneficial for the child if she is protected from the harm liable to be caused through exposure to the mother’s chaotic behaviour, which is discussed below.

Section 60CC(2)(b)

No party asserted that any other party had abused the child.
It is implicit from the family history that the mother and father, at least to some extent, neglected the child in the past. Had that not been the case the child would not have lived with the maternal grandmother for most of her life. Given the consensus that the child will continue to live with the maternal grandmother, no party contended the child would be neglected in the future.
The critical issues in the proceedings were distilled to, firstly, the risk of harm posed to the child by exposure to the mother’s erratic behaviour caused by her acute psychiatric condition and her continued use of illicit drugs, and secondly, the risk of the child being emotionally harmed by exposure to the father’s suspected drug use and his violent behaviour towards his partner Ms G.
It is convenient to deal with those issues separately.
Risk allegedly posed by the mother
The mother is really quite unwell. When she first saw the Family Consultant in September 2010 the mother presented as under the influence of drugs.[41] She admitted she was “unwell” and conceded she was “very depressed” and “still ha[d] a drug problem”.[42] The mother’s confession that she was then “unable to mak[e] any changes in her own life” proved prescient. Although more than 12 months have now since elapsed, she remains addicted to illicit drugs and is psychiatrically impaired.
[41] Exhibit ICL1, page 4.
[42] Exhibit ICL1, page 8.
In clear contravention of the interim orders made in November 2009, the mother has not provided a single drug screen, despite her release from prison in January 2010. The mother seems unapologetic, acknowledging any drug test would prove positive. She admits her continuing use of illicit drugs prevents the child from spending time with her alone.[43]
[43] Mother’s affidavit, par 87.
Analysis of the evidence reveals no improvement in the mother’s condition over many years. In September 2003 the mother stabbed the maternal grandmother’s partner to death and she was later convicted of his manslaughter.[44] She was sentenced to a suspended term of imprisonment, but as a consequence of her subsequent breach of the good behaviour bond, the bond was revoked and she was sentenced to imprisonment. The remarks on sentence delivered by the Supreme Court of NSW at that time disclose the Court’s conclusion that the mother was addicted to amphetamines and unable to engage in counselling and rehabilitation. The Court found in February 2008 that there was no change in the mother’s attitude or conduct from when she was originally sentenced in October 2006.[45]
[44] Family Report, par 5.
[45] Father’s affidavit, Annexure DSS-2.
Unfortunately, continued use of illicit drugs is not the mother’s only problem. In cross-examination the mother said she was a “multiple split personality” and was diagnosed with schizophrenia. She also said she “hears voices [in her head] all the time”, for which she was medicated. She said her schizophrenic condition was diagnosed by her former general practitioner at F Town, whom she last consulted in March 2011, but she is not treated or monitored by any psychiatrist. She missed an appointment with the F Town general practitioner in May 2011.[46] The general practitioner she recently consulted in H Town has referred her for both psychiatric and neurological evaluation. The mother has arranged a neurological appointment in January 2012 but, for undisclosed reasons, she is reluctant to act on the psychiatric referral. The mother recently rebuffed the maternal grandmother’s encouragement to seek out psychiatric assistance.[47]
[46] Family Report, page 3.
[47] Family Report, par 40.
The Family Consultant considered the mother may be suffering from drug-induced psychosis,[48] but acknowledged such an opinion was at the margin of her expertise.
[48] Family Report, par 60.
Whatever the correct diagnosis of the mother’s psychiatric condition, it is plainly evident she is impaired and struggling with her condition. Her demeanour in both the witness box and the body of the Court throughout the trial fluctuated dramatically. Frequently she departed the Court, without warning to her solicitor and counsel, and later returned. She absented herself from the Court entirely for the concluding stage of the trial.
The father and Independent Children’s Lawyer contended the mother posed a risk of both physical and psychological harm to the child.
The risk of physical harm was said to arise from the mother’s capacity to attack others in moments of heated aggravation, as occurred with the deceased in September 2003, which risk might be accentuated if the mother was intoxicated by drugs and/or suffering from psychiatric instability.
The risk of psychological harm was said to arise by exposure of the child to the mother’s erratic behaviour, which is contended to be already distorting the child’s perception of normality. The child was aware of the mother’s behaviour immediately before the appointment with the Family Consultant in September 2011, telling the Family Consultant the mother was “crying and couldn’t get out of bed” and that she had been “making a lot of noise”. The child nonchalantly told the Family Consultant she was unconcerned by that behaviour because “[the mother] always does that”.[49] The father and Independent Children’s Lawyer contended such evidence demonstrated the child was inured to the bizarre nature of the mother’s behaviour.
[49] Family Report, par 52.
It could not be said that the concerns of the father and Independent Children’s Lawyer are alarmist. Even the maternal grandmother guards against the risk of bizarre behaviour by the mother, conceding she does not ever leave the child alone with the mother for any reason. The maternal grandmother won’t even risk leaving the child alone with the mother for the brief time she takes to use the bathroom. Although she allows the mother to sleep in the rear shed, she asserts not allowing the mother to live in the house.[50] The maternal grandmother regards the mother as incapable of parenting alone.[51]
[50] Family Report, par 40.
[51] Family Report, par 44.
I am satisfied the child is at risk of both physical and psychological harm through subjection or exposure to the mother’s behaviour, but I am not satisfied that either risk is so pronounced that it cannot be satisfactorily alleviated by ensuring the time spent by the child with the mother is permanently supervised.
I regard the maternal grandmother as sufficiently responsible to fulfil the role of permanent supervisor. She has adequately discharged that role for years. She said she recognises when the mother is unwell and shields the child from her. I accept her evidence that she has always acted in the interests of the child, and will always continue to do so, in preference to the interests of the mother. The child’s exposure to the mother under the supervision of the maternal grandmother does not place the child at unacceptable risk.
I am not satisfied that the supervision should be afforded by staff at a contact centre, as was submitted by the father and Independent Children’s Lawyer. They recognised that the maternal grandmother had selflessly taken on the burden of providing the mother with whatever assistance she could, but contended there were limits to her capacity when she already provides full-time care to three of the mother’s children. They considered the prospect of the child’s interests conflicting with those of the mother loomed large, dividing the maternal grandmother’s loyalty. Their apprehension was not unreasonable, but I am persuaded the maternal grandmother has proven her reliability.
The Family Consultant said in the Family Report[52] and in cross-examination that there will always be a need to supervise the time spent by the child with the mother, which evidence I accept.
[52] Family Report, Recommendation III.
The father and Independent Children’s Lawyer submitted the Court should make other restrictive orders apart from supervision to alleviate the risk to the child – firstly, by restraining the mother from living at the maternal grandmother’s home, and secondly, by restraining the maternal grandmother from permitting the child to spend time with the mother whilst ever the mother refuses to engage in psychiatric treatment. I am unconvinced of the need to resort to either of those remedial measures, which the Independent Children’s Lawyer conceded were “Draconian”.

In all probability, the mother does regard the maternal grandmother’s home as her principal place of residence. The mother began her evidence-in-chief by saying “my address is Mum’s”, even though she deposed in her affidavit to having no permanent place of abode and staying temporarily in F Town.[53] The mother sleeps in a shed at the rear of the maternal grandmother’s property and spends at least part of each week at that location. I am satisfied the maternal grandmother recognises the need to act as a filter between the child and the mother, and ensuring the mother sleeps under a separate roof, albeit at the same property, is undoubtedly designed to enforce that sense of separation in both the child and the mother. I am also satisfied the maternal grandmother would, if necessary, act to evict the mother from her premises if the mother’s behaviour became unmanageable. The maternal grandmother would not tolerate the mother’s overt repudiation of her authority in respect of the child.
[53] Mother’s affidavit, par 7.
The Family Consultant was unconvinced of the suitability of an order that excluded the mother from the mother’s home, other than in circumstances where the mother’s psychiatric condition was unmanaged. Generally, I accept the evidence of the Family Consultant, but she was equivocal about some issues. Her willingness to acknowledge equivocation when she was uncertain was one reason why I found her evidence reliable.
Whilst it would clearly be desirable for the mother to willingly engage with psychiatric treatment, her disinclination to do so likely renders the goal futile. It is important to differentiate between inducing the mother’s psychiatric treatment for the mother’s benefit, on the one hand, and the child’s benefit, on the other. The Court’s business is only with the latter, not the former. Precluding the child’s interaction with the mother in the event of the mother’s failure to engage with psychiatric treatment would almost surely result in no interaction between them at all because of the mother’s reluctance to accept such treatment. That would cause obvious detriment to the child, but without receipt of any necessary benefit in the mid to long term of a relationship with an emotionally transformed parent. The child derives benefit from her current relationship with the mother, despite the mother’s limitations, and it is as well for that to continue under the stewardship of the maternal grandmother.
Risk allegedly posed by the father
The mother’s belief in the risk posed by the father to the child through the commission of violence upon his current partner was not apparently shared by the maternal grandmother and Independent Children’s Lawyer. They only shared the mother’s concern about the father’s possible relapse to illicit drug use, and were content for the child to spend unsupervised time with the father subject to his provision of negative drug screens for a further finite period.
The species of risk posed to the child by the father’s propensity to act violently towards his partners was said to be emotional rather than physical. The mother deposed in her affidavit to her worry that the father might even become physically violent towards the child,[54] but that was not a stated concern during the trial, it was not a submission made on behalf of the mother, and such a concern was inimical to the orders she proposed.
[54] Mother’s affidavit, par 66.
The mother contended that the father’s past physical abuse of her, his past physical abuse of his current partner Ms G, and his possible continuing physical abuse of Ms G, collectively proved the likelihood of the father continuing to physically abuse Ms G (or any other domestic partner) in the future. It was furthermore contended the exposure of the child to such family violence in the father’s household would occasion emotional harm to her, and the only way to satisfactorily curtail that risk was to ensure that any time spent by the child with the father was supervised in a contact centre.
As would be apparent, the mother’s submissions entailed a number of sequential conclusions, and it is necessary to evaluate them individually.
Initially, it ought be observed that the orders proposed by the mother betrayed no obvious connection with her concern about the father’s alleged propensity to act violently towards his partner. The mother’s proposed orders envisaged the child spending unsupervised time with the father subject only to his provision of negative drug screens for a further 12 months. The mother could point to no evidence that connected the father’s alleged history of family violence to his past use of illicit drugs. The father attributed his past reprehensible behaviour to excessive consumption of alcohol.
It should also be observed that the mother’s evidence in cross-examination was irreconcilable with the orders she proposed. She said she would never trust the father with the child, no matter how long he was able to provide negative drug screens. She professed harbouring continuing concern about the father’s use of drugs, his violent behaviour, his ability to properly care for the child, and the child being exposed to the father’s “sexual behaviour” and “stealing”. The mother added she would “never be happy with the father having unsupervised time with [the child]”, even though that is precisely what she proposed in her orders.
Those inconsistencies remain unexplained.
Although the father did not squarely admit he had been violent to the mother during their relationship, at the commencement of his cross-examination he conceded the proposition he “had significant issues of violence against women”, and further, that the police had been called in the past to intercede in incidents between he and his current partner, Ms G.
The mother adduced considerable evidence about her violent treatment at the hands of the father, which comprised most of her affidavit.[55] She was not challenged about that evidence, for which there are numerous plausible explanations. Perhaps it was because the father had acted violently towards the mother at times in the past, irrespective of any dispute over the detail, but perhaps also because the mother’s allegations of violent conduct appeared to have no material bearing upon the parenting orders she proposed, making it unnecessary to challenge her about it.
[55] Mother’s affidavit, pars 13-64.
In all likelihood the father did perpetrate family violence upon the mother at times in the past, just as the Family Consultant concluded.[56] However, the evidence is in such a state that it is unwise and unnecessary to make any precise findings of fact about the nature and frequency of that conduct.
[56] Exhibit ICL1, page 3.
Additionally, there seems little doubt the father has acted violently towards his current partner Ms G since they formed a relationship in April 2008. The police were summoned to protect Ms G on numerous occasions in January 2009,[57] June 2009,[58] and November 2009,[59] on which occasions Ms G was assaulted and injured. On each of those occasions the mother reported to police the father was the person responsible for the assaults upon her. Although charged, the father was never convicted of any of the charges.
[57] Exhibit M1.
[58] Exhibit M2.
[59] Exhibit M3.
When Ms G gave evidence, she admitted having nominated the father to police as the perpetrator of the assaults upon her, but contended she had lied to the police. She asserted she had been assaulted by third parties and had mischievously blamed the father because of pressure exerted upon her by the police. Either the mother lied to the police and gave truthful evidence to the Court, or she correctly implicated the father to police at the time of her assaults and lied in her evidence to the Court. Either way, Ms G is a person who is prepared to lie when it suits her and I treat her evidence with the caution it therefore deserves. I accept the submission that, in all probability, Ms G correctly implicated the father to police for the violence he perpetrated upon her and lied to the Court.
The mother’s counsel cross-examined the Family Consultant about how Ms G, as a victim of domestic violence, may possibly have been motivated to lie in her evidence to protect the father due to her status as a victim of the father’s continuing domestic abuse. The Family Consultant acknowledged that as a “possibility”, responsively to the theoretical question posed to her, but there was no evidence adduced to establish that theory as a fact on the balance of probabilities. It remained entirely conjectural. There are other equally plausible explanations for Ms G’s mendacity. Perhaps she wanted to merely give evidence she perceived would be favourable to the father in his quest for the parenting orders he desires.
Irrespective, the events of 2009 and those that preceded them are receding into history. They influence, but do not determine, the outcome of these proceedings. The father denied attracting police attention for the last two years[60] and the evidence was otherwise silent about any domestic violence in the relationship between the father and Ms G since November 2009. The father seemingly had an epiphany, stating he realised he had a problem “when [he] was at Court all the time” – an apparent reference to the series of criminal charges he faced in 2009.
[60] Father’s affidavit, par 51.
Two years have elapsed since then, during which time the father has experienced quite a transformation. The Family Consultant is also of that view, stating in her report the father had made “significant progress” and “significant changes in his life”.[61] In cross-examination the Family Consultant was more effusive, saying the father had made a “huge effort”. In cross-examination, when the father’s attention was drawn to the Family Consultant’s opinion he said “determination got me through”.
[61] Family Report, pars 29, 62.
It is common ground the father proved his abstinence from cannabis use with negative drug screens between July 2010 and June 2011.[62] Although there have been no more recent screens, none have been requested of him. The father said he had not resumed using cannabis and I accept his evidence as truthful.
[62] Exhibit ICL2.
The father has also significantly moderated his consumption of alcohol. Although he deposed literally in his affidavit to abstinence for more than three years,[63] I do not accept that evidence. But nor do I conclude the father was being dishonest. In cross-examination the father said “I don’t drink no more. I stay away from the drink and the drugs”. However, he also said he does drink occasionally but no longer feels the need to get drunk. He asserted last having an alcoholic drink months ago. I impute that when the father made statements about no longer drinking he really meant he was no longer drinking to excess.
[63] Father’s affidavit, par 44.
Within the last few months the father and his family, comprising Ms G, Ms G’s child, and the child of the father and Ms G, moved to E Town from I Town.[64] They did so in order to enhance the father’s employment prospects. He is now in employment working casually, but regularly, between 30 and 50 hours per week. They have purchased a house and they have a mortgaged loan.
[64] Father’s affidavit, par 55.
The father also deposed to his completion of an anger management course,[65] but in cross-examination he conceded he found little value in it, preferring to rely upon his new found common sense.
[65] Father’s affidavit, pars 48, 51.
The father completed a parenting course,[66] from which he said he derived greater value, and he also participated in counselling.[67]
[66] Father’s affidavit, par 51.
[67] Father’s affidavit, par 51.
Realistically, there is little more the father could have done over the last two years to prove his resolve to better himself. He deserves commendation for his efforts. I am not satisfied the child is at unacceptable risk of emotional harm through exposure to violent conduct committed by the father whilst the child is in his care. I reject the mother’s proposal to impose a requirement for the time spent by the child with the father to be supervised for that reason.
As already noted, the mother, maternal grandmother, and Independent Children’s Lawyer all continued to harbour some apprehension, to varying degrees, about the father’s continuing use of cannabis or his propensity to resume its use.
The mother was steadfast in the maintenance of her suspicion about the father. Nothing he could do would be enough to sway her.
The maternal grandmother seemed willing in cross-examination to accept the father was now drug-free, saying that gave her considerable comfort. Nonetheless, she did not dispense with her proposal for the father to submit to future drug screens, although her counsel said in final submissions she would find three negative drug screens over the next six months to be sufficient. She did however abandon her earlier proposal for the continuation of supervision of the child with the father for a further finite period, which idea she discussed with the Family Consultant.[68]
[68] Family Report, par 48.
It was the Independent Children’s Lawyer’s idea for the father to complete three further drug screens over the next six months, apparently as a compromise. Such an order was proposed orally and was not contained within her minute of orders.[69]
[69] Exhibit ICL3.
The Family Consultant recommended the continuation of drug screens for the father for a further six months.[70] She acknowledged in cross-examination that continued screening would be expensive and inconvenient for the father, but still useful to demonstrate he is not liable to relapse, particularly in this time of stress for him. She identified specific current stressors for him, including financial hardship, relocation to a new town with few social supports, the father’s sufferance of anxiety, the sufferance of post-natal depression by his partner, and their care of two young children. The Family Consultant observed the father had used cannabis to self-medicate his anxiety in the past and she was concerned he may do so again while under pressure.
[70] Family Report, par 63.
Subject to continuing negative drug screens, the Family Consultant recommended both cessation of the supervision of the time spent by the child with the father, and an expansion in the amount of time spent by her with him.[71] The recommendation for dispensation with supervision and the program of expanded time was consistent with the proposals of the father, maternal grandmother, and Independent Children’s Lawyer.
[71] Family Report, par 65, Recommendations VI and VII.
There is little doubt the drug screening causes the father expense and inconvenience. He said the tests with his general practitioner each cost $100. Now that he is living and working in E Town it will likely be even more inconvenient to undertake the tests. He will need to take time off work to do so. The existence of his employment is of itself suggestive that he has freed himself from the shackles of illicit drugs.
Having considered the evidence, I am not persuaded of the need for the father to undertake further drug testing. I am satisfied he has now been drug-free for at least 17 months. Only the mother really doubts that and she will never be convinced. There is no utility in requiring the father’s subjection to drug testing in an attempt to convince the mother.
While the maternal grandmother, Independent Children’s Lawyer, and Family Consultant propose or recommend some further limited testing, it is not because they genuinely suspect the father has relapsed into drug use. Rather, it is simply a measure designed to prove his continued abstinence. Once that is the acknowledged purpose, the duration of any further testing is entirely arbitrary because the possibility of relapse is diminished incrementally but never extinguished.
If continued drug testing is required of the father, there remains the vexed question of what repercussions should be enshrined in the orders in the event of a positive drug test being returned. The Independent Children’s Lawyer was silent on the issue – she simply proposed three more random tests be undertaken over the next six months, apparently presuming they would continue to be negative. The maternal grandmother submitted that a positive result should invest her with discretion to unilaterally suspend the child’s time with the father indefinitely.[72] I am not satisfied it is appropriate to delegate the Court’s discretion on such an important issue to the maternal grandmother.
[72] Exhibit MGM1, Order 10.
The alternatives are to make only further interim parenting orders pending the father’s completion of further drug testing to ensure his results remain negative, or conclude the proceedings with final orders that provide for a self-executing permanent suspension of the child’s time with the father in the event of a positive result. I am not inclined to take the first course because proceedings involving the child extend back to 2006 and these current proceedings, having been commenced over two years ago, need to be finally resolved. Nor am I inclined to take the latter course because some person would need to take responsibility for evaluating the results of the father’s tests to determine whether any were positive, and even if positive, it would be improper to assume now that a future positive result should result in permanent severance of the child’s relationship with the father.
I am satisfied the father has already proven his commitment to abstinence from illicit drug use and also to use alcohol moderately and sensibly. I am not satisfied the child is at risk of emotional or physical harm through exposure to the father in a drug-addled or intoxicated state. In any event, the father will need to drive to collect and return the child. He will be at risk of detection on the road by police if he is intoxicated by drugs or alcohol.

additional considerations

Section 60CC(3)(a)

The views of the child are clear and unequivocal. She wishes to spend more time with the father and his family. She told the Family Consultant she enjoys her visits with the father at the contact centre and would like to have sleep-overs at his home.[73] When pressed about the possibility of sleep-overs the child confidently assured the Family Consultant she would manage.[74]
[73] Family Report, par 50.
[74] Family Report, par 53.
The Family Consultant said in cross-examination the child was a “very mature little girl” who would cope with overnight time with the father “very well”, after the introductory phase of six months.
The child is still only young. Little weight can be attributed to her views, but it is comforting she is positive about the parties and the Family Consultant is confident in her resilience.

Section 60CC(3)(b)

The child enjoys her relationships with her half-sister and Ms Gs’ child.[75]
[75] Family Report, par 50.
The Family Consultant was unable to observe the child with Ms G in September 2011. When the child spoke to the Family Consultant of Ms G in September 2010 she expressed negative sentiments about her,[76] but she did not do so in September 2011. By then she had been seeing Ms G with the father at the contact centre for nearly a year. I accept the evidence of the father and Ms G that Ms G has attended every visit with the child at the contact centre, with the exception of the first two visits, and the child enjoys her association with Ms G.
[76] Exhibit ICL1, page 5.
The father also gave evidence, which I accept, that the paternal grandmother occasionally attends the contact centre to enable the child to spend time with her. There was no suggestion the child did not enjoy that interaction.
The child is primarily attached to the maternal grandmother and has a loving and affectionate relationship with her and the two half-sisters with whom she lives.[77]
[77] Family Report, par 56.

Sections 60CC(3)(c), (4)

The maternal grandmother is willing and able to facilitate and encourage the child’s relationship with both parents. Nobody suggested to the contrary. She deserves great credit for her efforts in ensuring maintenance of the child’s relationships with both parents, despite their individual difficulties.
Similarly, I am satisfied the father is supportive of the dominant role played by the maternal grandmother in the child’s life. He is grateful for the maternal grandmother’s efforts and does not wish to see the child’s primary attachment disturbed. I am also satisfied the father is willing and able to support the child’s relationship with the mother, provided he is re-assured the child is adequately protected against any risk of harm posed by the mother.
As with the father, I am satisfied the mother is supportive of the pre-eminent position of the maternal grandmother in the child’s life. However, I am much less convinced about the mother’s willingness and capacity to encourage a close and continuing relationship between the child and the father. In cross-examination, the mother vehemently professed her fears about various dangers posed by the father to the child. She said she would always hold concerns about the father and did not believe the child should ever spend unsupervised time with him.
Since the maternal grandmother will have sole parental responsibility for the child, the mother will not be able to usurp her control and preclude the child’s interaction with the father. However, the mother’s antipathy towards the father will likely become known to the child and may impinge upon the quality of the relationship she enjoys with him. An injunction prohibiting the parties’ denigration of one another is therefore warranted.

Section 60CC(3)(d)

The orders entail no change to the child’s residential arrangements, or the arrangements under which she has been interacting with the mother.
The orders introduce some change in respect of the frequency and duration of the time spent by the child with the father, together with dispensation of the need for supervision. I am satisfied on the evidence the child will not only cope with, but embrace, such changes.

Section 60CC(3)(e)

By the conclusion of the trial, the father, maternal grandmother and Independent Children’s Lawyer were in agreement that the distance between the households of the father and maternal grandmother precluded the child from spending frequent time with the father.
The father now lives at E Town and the maternal grandmother at H Town. Neither plans to move. The drive between those two locations slightly exceeds 5 hours duration.
The father, Ms G, and the maternal grandmother are all licensed to drive. The only viable method of transport between the two households is a road journey by private car.
The father, maternal grandmother, and Independent Children’s Lawyer all agreed the child should spend time with the father in accordance with the following regime:
a)For an initial period of six months, for some time over one weekend per month. The only significant difference was whether it be on one day of that weekend, as the father and Independent Children’s Lawyer proposed, or on both days, as the maternal grandmother proposed.
b)Thereafter, for one extended weekend of three days duration during each school term, together with block periods of time in the school holidays. The only significant difference was whether the block period in the Christmas school holidays would be two weeks, as the maternal grandmother and Independent Children’s Lawyer proposed, or half of the holidays, as the father proposed.
The mother proposed the child spend only supervised time at a contact centre in Newcastle for at least the next 12 months, and thereafter for one weekend per month, with the father to undertake all of the travelling.
I am satisfied that the regime largely agreed between the father, maternal grandmother, and Independent Children’s Lawyer envisages a frequency of changeovers that is reasonably practicable
However, there remains a complication with the expense incurred by the parties in implementing that regime and the sharing of the travel burden.
The father and Independent Children’s Lawyer proposed that the travel burden and expense be shared equally between the father and maternal grandmother.
While the maternal grandmother was prepared to share some of the load, she proposed the burden be primarily borne by the father, and further, that he pay money to her to reimburse the expense she estimated she would incur in undertaking her part of the travel.
D Town, C Town, and F Town are townships between the households of the father and maternal grandmother. It was agreed the driving time between the maternal grandmother’s home and each of those townships is respectively approximately 1.5 hours, 2.66 hours, and 3.2 hours.
The father and Independent Children’s Lawyer proposed changeovers at C Town.
The maternal grandmother proposed the father collect the child from her home at H Town and return the child to her at D Town.
The Family Consultant recommended something different again.[78]
[78] Family Report, Recommendation VII.
The parties offered rational reasons for their respective proposals.
The maternal grandmother has borne the burden of travelling with the child since orders were first made in 2006 so that the child may maintain her relationship with the father. She has regularly travelled to the contact centre at F Town each month to fulfil the orders made in May 2010. She finds it expensive, because of her impecuniosity, and she and the children find it exhausting. It is necessary for her to take the two younger half-sisters with her and the child on the journey.[79]
[79] Maternal grandmother’s affidavit, pars 13-30.
However, the maternal grandmother said in cross-examination “[D Town] would be convenient for me and the kids [as a changeover venue]”. That is because her adult son and his family live in D Town and she could use his home as a base.
Although a little further distant for her, C Town would also offer some attraction to the maternal grandmother. Her own parents live in reasonable proximity to C Town at J Town and she could also use their home as a base, albeit not as conveniently as the home of her son in D Town.
The father proposed changeovers at C Town because it was roughly equidistant between their households. He was worried that if he was to bear more of the travel burden then the travel time would impinge upon the leisure time he had available to share with the child.
The father is also now working, and although in a casual position, he is working hours consistently with full-time employment. Now that he and Ms G have purchased a home both of them need to work in order to maintain their home loan. Between work commitments, they are jointly caring for two young children in their household. Ms G is suffering from post-natal depression and the pressure upon the father and Ms G to maintain equilibrium within their household is significant.
The father is also desirous of the child spending time with the members of his family, who have historically always travelled with the father to visit the child at the F Town contact centre. The father understandably regards the child’s interaction with them to be just as important as the child’s interaction with her half-sisters who live in the maternal grandmother’s home. Travel which the father must undertake to collect and return the child will therefore also be burdensome for the father’s partner and the two young children in their family.
The countervailing considerations are largely pertinent to the interests of the parties rather than the child, even though it is the child’s best interests which ought inform any parenting decision. Any order that requires the travelling to be shared will wreak some degree of inconvenience upon both the father and maternal grandmother. Having weighed those considerations I am satisfied the father is in a slightly better position to undertake more of the travelling.
Accordingly, the maternal grandmother will need to deliver the child to the father at the commencement of her time with him at C Town, but at the conclusion of such time the father will need to return the child to the maternal grandmother at D Town. The parties will therefore travel approximately equal distances to begin the child’s time with the father, but the father will need to travel further than the maternal grandmother to return the child to her. Their comparative inconvenience is proportionately reflected in that arrangement.
It should be remembered that, leaving aside the monthly visits over the first six months, the child will visit the father on only eight separate occasions each year. That will mean 16 separate changeovers each year, which is a tolerable travel burden for both the father and maternal grandmother.
For the initial six month period of the parenting regime, the maternal grandmother proposed that the father travel to H Town and then remain in that area in order for the child to spend time with him close to her home.[80] That proposal differed from the recommendation of the Family Consultant, who suggested the visits alternate between H Town and F Town.[81]
[80] Exhibit MGM1, Orders 4.1, 4.2.
[81] Family Report, Recommendation VI.
I am satisfied that such visits should alternate between D Town and C Town, consistently with the changeover venues used once the introductory period is concluded. There is no evidence to suggest the child would reasonably need the security of being close to the maternal grandmother’s home for the first six visits with the father, but not thereafter. Since the first six visits will comprise only several hours on one day the changeovers on those occasions will occur at the same place, since the parties will likely remain in that locality for the balance of the day.
I decline to make the order proposed by the maternal grandmother that the father pay to her $150 every time she meets the father to collect the child. As the Independent Children’s Lawyer correctly pointed out, the maternal grandmother could and should make an application for a child support assessment against the father.

Section 60CC(3)(f)

The maternal grandmother is the only party capable of providing for the child’s physical, emotional, and intellectual needs on a full-time basis. The parties’ agreement that the child live with her and that sole parental responsibility for her be allocated to the maternal grandmother manifests acceptance of the proposition.
The father is capable of meeting the child’s physical, emotional, and intellectual needs for the relatively short periods the child will stay with him.
The mother has no capacity to provide for the child’s physical and intellectual needs. She can meet the emotional need of the child to maintain a relationship with her only when she is relatively well, which is why it is necessary for the maternal grandmother to determine when the child spends time with the mother and always supervises that interaction between them.

Section 60CC(3)(g)

Each of the parties have criminal convictions, with some worse than others.
Some years ago the maternal grandmother was convicted of possessing and supplying illicit drugs, for which she was sentenced to a term of periodic detention.[82]
[82] Family Report, par 6.
The mother and father both have extensive histories of criminal convictions for a variety of offences relating to violence, drugs, and dishonesty.[83]
[83] Family Report, pars 4-5.
Those backgrounds of the parties do not stand in the way of the parenting orders proposed, but continuing criminal conduct may bear upon the proper parenting arrangements for the child.
Whilst there is no evidence of current turpitude by the father and maternal grandmother, the mother openly continues to regularly use illicit drugs, exposing herself to further criminal conviction and sentence and even more deleterious repercussions for her health.
Unless the mother is closely and indefinitely supervised with the child, the mother’s immaturity and lifestyle would justify severance of the relationship between her and the child in the child’s best interests.

Sections 60CC(3)(h), (6)

Without adverting to any evidence adduced in these proceedings, the father and maternal grandmother submitted in their Case Outline documents that the child has Aboriginal heritage through her maternal family. Even if that is so, no party raised as an issue for consideration the right of the child to enjoy aspects of that culture or the likely impact of the proposed parenting orders upon that right. In such circumstances it is not for the Court to develop the issues.

Sections 60CC(3)(i), (4)

The father conceded he has never paid any child support to the mother or maternal grandmother in respect of the child. Although the maternal grandmother has never applied for a child support assessment, that is hardly the point. The father should have shouldered part of the financial burden in maintaining the child.
Aside from his failure to contribute financially to the child’s support, the father now demonstrates a proper attitude to the child and the responsibilities of parenthood.
The mother demonstrates a proper attitude to the child, in that she loves and wants the best for the child, but her attitude to the responsibilities of parenthood is hopelessly deficient. She is unable to muster the will to overcome her drug addiction or seek out psychiatric treatment.
Needless to say, the maternal grandmother displays a proper attitude to the child and the responsibilities of parenthood.

Section 60CC(3)(j)

The issue of family violence has already been addressed as a primary consideration under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

There is no family violence order in existence involving the child, the parties, or any other member of the child’s family.

Section 60CC(3)(l)

The orders made are least likely to lead to the institution of further proceedings concerning the child because they generally accord with the proposals of the father, maternal grandmother, and Independent Children’s Lawyer.
Although the orders providing for the child to spend time with the father are inconsistent with the mother’s proposal, the orders are generally consistent with the mother’s proposal about the time to be spent by the child with her.

Section 60CC(3)(m)

No submission was made that there was any other fact or circumstance relevant to the outcome of the proceedings.

Parenting orders

Equal shared parental responsibility for the child is not allocated to the parents. That is because it was properly conceded such an order would not be in the best interests of the child.
As a consequence, there is no need for the Court to consider “equal time” or “substantial and significant time” parenting arrangements. The discretion of the Court is at large.
The orders provide for the maternal grandmother to have sole parental responsibility for the child and for the child to live with her. Such orders are uncontroversial and in the best interests of the child.
The orders provide for the child to spend time with the mother at times and in circumstances determined solely by the maternal grandmother, but always subject to supervision by the maternal grandmother.
The orders provide for the child to spend time with the father for one day, rather than two days, per month over an introductory phase of six months. That was the father’s preference, so as to avoid too much travel for the child and everyone else. If the father is not desirous of more time with the child on the weekends of monthly visits, even though the maternal grandmother is willing to afford it, I am satisfied it should not be forced upon him. He may resent it and that would not be in the child’s best interests.
The Family Consultant recommended the child spend two weeks during the Christmas school holidays with the father, which recommendation is reflected in the proposals of the maternal grandmother and Independent Children’s Lawyer. I accept the evidence and proposal that, for the foreseeable future, the child should not be away from her primary attachment figure for too long.
There was agreement that the time in other school holiday periods should be one week. I accept that proposal.
No party proposed any order making particular provision for special occasions such as birthdays, Christmas, and Easter. The father expressly noted in his proposed orders that he purposely desisted from doing so.[84] Accordingly, no order is made catering to those special events.
[84] Exhibit F1, Notation (a).
The maternal grandmother told the Family Consultant that the father only telephoned the child monthly.[85] The child also reported to the Family Consultant, seemingly wistfully, her perception that the father did not telephone her very much any more.[86] The father however said in cross-examination that he telephones the child about weekly. The Family Consultant recommended that regular telephone communication occur between the child and the father,[87] with which the father,[88] mother,[89] maternal grandmother,[90] and Independent Children’s Lawyer[91] all agreed.
[85] Family Report, par 47.
[86] Family Report, par 54.
[87] Family Report, Recommendation IV.
[88] Exhibit F1, Order 6.
[89] Further Amended Response filed 29 August 2011, Order 14.
[90] Exhibit MGM1, Order 5.
[91] Exhibit ICL3, Order 4.
The order prohibiting smoking in the presence of the child is made at the request of the maternal grandmother, with the consent of the other parties and the Independent Children’s Lawyer.
The orders preclude the father from consuming alcohol when the child is in his care, and shortly prior thereto. That injunction should serve as a reminder to the father about the need for his sobriety. There is no need to make a similar injunctive order about use of illicit drugs because it is illegal anyway.
The remaining orders are self-explanatory and were sought by all parties and the Independent Children’s Lawyer in one form or another.
The mother proposed an order exhorting the parties not to give excessive amounts of confectionary or soft drinks to the child.[92] I decline to make such an order. The issue was not mentioned once in the trial and an order in those terms is aspirational rather than prescriptive and therefore meaningless.
[92] Further Amended Response filed on 29 August 2011, Order 11.
The maternal grandmother proposed use of a communication book.[93] I reject the idea since the father has limitations with his literacy.
[93] Exhibit MGM1, Orders 6-7.
The maternal grandmother proposed an order that each of the parties notify the others if they are charged with a criminal offence.[94] The motivation for the proposal was presumably the Family Consultant’s recommendation that the child’s time with the father be suspended in the event of any further criminal charges being proffered against him.[95] I do not accept that recommendation and reject the proposed order. The nature of criminal conduct can vary greatly from murder to speeding. The parties are entitled to some degree of privacy. If in the future one or more of them are involved in conduct that compromises their liberty or parenting capacity that will become obvious and the parenting arrangements can be re-evaluated then.
[94] Exhibit MGM1, Order 11.
[95] Family Report, Recommendation VIII.
The Independent Children’s Lawyer suggested an order be made authorising a copy of the Family Report be furnished to the Department with a further request made for the Department to intervene in the proceedings.[96] I decline to make such an order. The Department declined previous requests to intervene, the proceedings are now at an end, and I am satisfied the child is safe in the care of the maternal grandmother.
[96] Family Report, par 61, Recommendation IX.
The orders set out at the commencement of these reasons reflect the best interests of the child.

I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 November 2011

Associate:

Date: 23 November 2011

[2011] FamCA 890

23 November 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies