Sturt and Knight and Ors

FAMILY COURT OF AUSTRALIA

STURT & KNIGHT AND ORS

[2011] FamCA 194

FAMILY LAW - CHILDREN - Best interests of the children – with whom the children live – with whom the children spend time – where the mother has suffered from two major ill health episodes related to diabetes – where the natural father has not participated in the proceedings for a considerable period of time and did not attend the final hearing – where the children have been cared for by maternal extended family members for a considerable period of time

Family Law Act 1975 (Cth)

APPLICANT:

Ms S Sturt

FIRST RESPONDENT:

Ms Knight

SECOND RESPONDENT:

Mr Thomas

THIRD RESPONDENT:

Ms M Sturt

FOURTH RESPONDENT:

Mr Sturt

INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

FILE NUMBER:

WOC

382

2007

DATE DELIVERED:

18 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

14, 15, 16 & 17 February 2011

REPRESENTATION

APPLICANT IN PERSON:

Ms S Sturt

COUNSEL FOR FIRST RESPONDENT:

Ms Barker

SOLICITOR FOR FIRST RESPONDENT:

DGB Lawyers

SECOND RESPONDENT:

No appearance

COUNSEL FOR THIRD AND FOURTH RESPONDENTS

Ms Carr

SOLICITOR FOR THIRD AND FOURTH RESPONDENTS

Verekers Lawyers

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

Ms Stollier

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER

Rowley & Associates

Orders

The parties are to cause the children to be transitioned to the predominant care of their mother in the following graduated manner:

Until B attains the age of 12 years the mother Ms Knight (“the mother”) and Ms M Sturt (“the maternal great aunt”) are to have equal shared parental responsibility for B THOMAS (born … August 2004) and E THOMAS (born … June 2006), (“the children”). Thereafter the mother is to have sole parental responsibility for the children.

Until 27 November 2011, the children are to live with Mr Sturt and Ms M Sturt (“the maternal great uncle and aunt”).

Until 14 April 2011, the children are to spend time with the mother as follows:
B
(1)      Week 1 From:
(i)the conclusion of school until 5.30pm (during daylight saving time and 5.00p.m. otherwise) each Tuesday and Thursday (with the mother to collect B from school); and
(ii)the conclusion of school each Friday (with the mother to collect B from school) until the commencement of school the following Monday.
(2)      Week 2 From:
(i)the conclusion of school until 5.30pm (during daylight saving time and 5.00p.m. otherwise) each Tuesday and Thursday (with the mother to collect B from school); and
(ii)After school Friday (with the mother to collect B from school) until 12.00pm on Saturday (with the mother to deliver the children to the maternal great uncle and aunt).
E
(3)      Weeks 1 and 2 From:
(i)9.00am until 5.30pm (during daylight saving time and 5.00pm otherwise) each Tuesday and Thursday; and
(ii)2.45pm each Friday (with the mother to collect E from preschool) until 12.00pm the following Saturday (with the mother to deliver the children to the maternal great uncle and aunt).

From Monday, 4 April 2011 until Sunday, 29 May 2011 the children are to spend time with the mother as follows:
B
(1) Week 1 From:
(i)the conclusion of school until 5.00pm each Tuesday (with the mother to collect B from school); and

(ii)8.45am each Friday (with the mother to take B to school) until the commencement of school the following Monday.

(2) Week 2 From:
(i)the conclusion of school until 5.00pm each Tuesday (with the mother to collect B from school); and

(ii)8.45am each Friday (with the mother to take B to school) until 5.00pm the following Saturday.

E
(3) Week 1 From:
(i) 9.00am to 5.00pm each Tuesday; and

(ii)2.45pm each Friday (with the mother to collect E from preschool) until 5.00pm the following Sunday.

(4) Week 2 From:
(i) 9.00am to 5.00pm each Tuesday; and

(ii)2.45pm each Friday (with the mother to collect E from preschool) until 5.00 pm the following Saturday.

From Monday, 30 May 2011 until the commencement of school on Monday, 27 June 2011, the children are to spend time with the mother as follows:
B
(1) Week 1 From:
(i) 5.30pm on Thursday until 5.00pm on Monday, and

(2) Week 2 From:
(i) 5.00pm on Friday until 5.00pm on Tuesday.

E
(3) Week 1 From:
(i) Tuesday 9.00am to 5.00pm; and

(ii)Friday from after pre-school (the mother to collect her from pre-school) until Monday at 9.00am (the mother to deliver her to the maternal great uncle and aunt or to pre-school should that be a pre-school day for her).

(4) Week 2 From:
(i) Tuesday 9.00am to 5.00pm.

From Monday, 27 June 2011 until Sunday, 25 July 2011 the children are to spend time with the mother as follows:
B
(1)Each week from the conclusion of school Thursday until school time on the following Tuesday.
E
(2)Each week from the conclusion of pre-school Friday (the mother to collect her from pre-school) until Monday at 9.00am (the mother to deliver her to the maternal great uncle and aunt or to pre-school should that be a pre-school day for her).

From Monday, 25 July 2011 to Sunday 26 September 2011, the children are to spend time with the mother as follows:
B
(1)From after school on the first Friday of each fortnightly period until the commencement of school on the following Wednesday; and

(2)The mother is to collect B at 8.45am on the second Friday of the fortnightly period (with the mother to take B to school) until 5.00pm the next day.

E
(3)From 9.00am on the first Tuesday of each fortnightly period until the commencement of preschool on the following Wednesday; and

(4)From 2.45pm on the first Friday of each fortnightly period until the commencement of preschool on the following Tuesday.

(5)From 2.45pm on the second Friday of each fortnightly period until 5.00pm the next day.

From Monday, 26 September 2011 to Monday 28 November 2011, the children are to spend time with the mother as follows:
B
(1) The same time as provided for in order 7 above.

E
(2)From 9.00am on the first Tuesday of each fortnightly period until the commencement of preschool on the following Wednesday; and
(3)From 2.45pm on the first Thursday of each fortnightly period until the commencement of preschool on the following Tuesday.

(4)From 2.45pm on the second Friday of each fortnightly period until 5pm the next day.

At all other times not defined in Orders 2 to 8 above, the children are to spend time with:
a) The maternal great uncle and aunt; and/or
b)Ms S Sturt (“maternal grandmother”) as agreed between the maternal grandmother and the maternal great uncle and aunt provided such time is not overnight time.

From Monday, 28 November 2011 and thereafter, the children shall:
a) Live with the mother; and
b) Spend time with the maternal great uncle and aunt as follows:
B
(1)From the conclusion of school on the first Thursday of each fortnightly period until the commencement of school on the following Friday (with the maternal great uncle and aunt to take B to school); and
(2)From the conclusion of school on the second Friday of each fortnightly period until the commencement of school on the following Monday.
E
(3)From the conclusion of preschool or school on the second Thursday of each fortnightly period until the commencement of school or preschool on the following Monday; and

(4)Until such time as E commences school in 2012 each Tuesday from 9.00am until 2.45pm.

(5)From the conclusion of pre-school/school on the second Friday of each fortnightly period until the commencement of school on the following Monday.

Holidays

Following the time when the children commence to live predominantly with the mother (28 November 2011) except as otherwise agreed, the mother will facilitate the children spending at least 3 block periods of 7 consecutive nights with the maternal great uncle and aunt in each calendar year provided:
a)The maternal great uncle and aunt provide a request in writing to the mother no less than 28 days from the commencement of the time the maternal great uncle and aunt propose to spend with the children; and
b)The time is to occur during a period when the children are on school holidays.

Time with Ms S Sturt

Subject to order 13, nothing in these orders prevents the children spending time with the maternal grandmother as agreed between the maternal grandmother and the party who has the care of the children at the time the contact is to occur.

Other than in circumstances where the mother is hospitalised, the maternal great uncle and aunt and the mother must not facilitate any of the children spending overnight time with the maternal grandmother before 1 August 2011.

Special occasions

In addition to the time that the children are to spend with the parties pursuant to these orders, the children shall spend time with the mother if the children are not otherwise in the mother’s care each year as follows:
a)On each child’s birthday for a period of not less than 3 hours if the day falls on a school day and a period of not less than 4 hours if the day falls on a on-school day as agreed between the parties but failing agreement between the parties from the conclusion of school until 6.00pm on a school day and from 10.00am until 2.00pm on a non-school day;
b)From 5.00pm on the Saturday immediately prior to Mother’s Day until 5.00pm on the following Sunday (being Mother’s Day); and
c)From 4.00pm on 24 December until 2.00pm on 25 December of each year.

In addition to the time that the children are to spend with the parties pursuant to these orders, the children are to spend time with the maternal great uncle and aunt if the children are not otherwise in the maternal great uncle and aunt’s care each year as follows:
a)On each child’s birthday for a period of not less than 3 hours if the day falls on a school day and a period of not less than 4 hours if the day falls on a on-school day as agreed between the parties but failing agreement between the parties from the conclusion of school until 6.00pm on a school day and from 10.00am until 2.00pm on a non-school day; and
b)From 2.00pm on 25 December until 5.00pm on 26 December of each year.

Family therapy and parenting plans

The parties are to attend on Ms D or such other qualified counsellor(s) as recommended by her to participate in such counselling as the treating counsellor(s) considers necessary for the purpose of:
a) Facilitating the orderly implementation of these Orders; and
b)Developing a comprehensive strategy for the parenting of the children having regard to such matters as may include (but in no way fettering the discretion of the counsellor) the management of B’s and E’s behaviours, appropriate methods of discipline and rewards relating to the individual behaviours, and the development of consistent rules and routines between the relevant family units.

The parties will accept and implement the recommendations of Ms D or such other qualified counsellor(s) she recommends.

Until such time as Ms D or such other qualified counsellor(s) recommends otherwise, the parties will ensure that a communication book travels with each child as he or she moves from one household to the other. Each communication book is to record all relevant information concerning the care of the relevant child, including issues relating to the behaviour of the child and the management strategies that have been employed by each party.

The parties are to ensure that the children continue to attend:
a) In the case of B, Dr E (Family and Child Psychiatrist); and
b) In the case of both children, Ms D.
or such other psychiatrist/counsellor(s) as may be recommend by either of them for further treatment and/or counselling as is recommended.

The parties will accept the recommendations and advice of Dr E, Ms D and/or such other psychiatrist/counsellor(s) as may be recommended by either of them in relation to the children.

The appointment of the Independent Children’s Lawyer (“ICL”) is to continue for a period of 12 months from these date of these Orders and in the event there is a recommendation by Dr E or Ms D to the effect that the parenting arrangements provided for in these Orders are no longer appropriate for the children and the matter cannot be resolved by agreement between the parties, the ICL is granted leave to apply to the Court for fresh orders on short notice if necessary.

Mechanical provisions for time spent

If any party is spending time with E on a day when she is enrolled to attend pre-school, and other than in circumstances of illness or other reasonable grounds, that party must ensure that E arrives at the pre-school no later than 9.15am and departs the pre-school no earlier than 2.45pm.

Unless otherwise stated in these Orders if these Orders provide for a parties time with a particular child to:
a)Commence at the conclusion of pre-school or school and the relevant child is not at pre-school or school on the relevant day, the time shall commence at 2.30pm; and
b)Conclude at the commencement of school and the relevant child is not required to attend school or pre-school on the relevant day, the time shall conclude at 9.00am.

Each party must ensure that the children attend all of the extra-curricular activities the children may participate in from time to time when the children are in that party’s care and the party who is spending time with the children when the relevant activity occurs is responsible for transporting the children to and from that activity.

The mother and Mrs M Sturt are to agree on extra-curricular activities for the children and the payment of any fees associated with same.

Telephone contact

The mother shall facilitate telephone communication between the children and the maternal great uncle and aunt when the children are in the mother’s care between 6.00pm and 6.30pm each Wednesday with the maternal great uncle and aunt to telephone the children.

Restraints

Each party is restrained from making critical or derogatory remarks about any other party or any member of the children’s maternal or paternal family in the presence or within the hearing of the children.

Each party will use his/her best endeavours to ensure no other person makes any critical or derogatory remarks about any other party or any member of the children’s maternal or paternal family in the presence or within the hearing of the children or via any form of communication likely to come to the attention of the children (such as Face book).

Each party is restrained from passing information or messages through the children to any other party.

Each party is restrained from using physical discipline in any form with the children and will take all reasonable steps to ensure that no other person uses physical discipline with the children.
Each party is restrained from discussing these proceedings (including any orders made pursuant to these proceedings) with the children or with any other person while in the presence or hearing of the children.

The mother is restrained from moving from the Illawarra area of New South Wales for a period of 12 months from the date of these Orders. The mother is restrained from moving to a location which would render the children’s attendance at their current school and pre-school practically difficult for the children during that 12 month period.

Exchange of information between parties

The mother is to contact the maternal great uncle and aunt as soon as practicable should any of the following events occur while the children are in her care:
a) Any of the children become seriously ill;
b) Any of the children are hospitalised; or
c)Any of the children are involved in an accident resulting in injury or injuries requiring medical attention.

The maternal grandmother and the maternal great uncle and aunt are to inform the mother as soon as reasonably practicable of:
a)Any medical problem or illness suffered by any of the children while in that party’s care;
b)Any medication that has been prescribed for any of the children while in that party’s care;
c)Any medical, dental or allied health appointments which are scheduled to occur for any child while the child/ren is/are in that party’s care; and
d)Any religious functions or religious events to which they propose to take or send any of the children while the child/ren is/are in that party’s care;

Each party will inform each other party of any communication with the second respondent father within 48 hours of such communication occurring or coming to the attention of the party.

Each party will provide each other party with no less than 28 days prior notice of any intention to change their residential address and the details of the new address.

Each party will inform each other party of any changes to their mobile telephone number, house telephone number and email address (such as are applicable to each party) within 24 hours of such change occurring.

By this order, each party authorises any school, pre-school or extracurricular activity attended by any of the children to provide to that party information about the children’s education progress and involvement in the activity to:
a)        The mother;
b)       The maternal grandmother ; and
c)        The maternal great uncle and aunt.

The mother shall inform and keep informed the maternal grandmother and the maternal great uncle and aunt of the names and contact details of any doctor, dentist or allied health professional that treats or attends on any of the children.

By this order, the mother, the maternal grandmother and the maternal great uncle and aunt authorise any medical, dental or allied health practitioner who treats or attends on any of the children to provide such information as they are lawfully permitted to the provide about the children to:
a)        The mother;
b)       The maternal grandmother; and
c)        The maternal great uncle and aunt.

Mother’s health

For a period of 2 years from the date of this Order, the mother undertakes to request the I Clinic to prepare a reporting letter setting out her current insulin regime, a summary of her dietary advice, and report as to the overall management of Type 1 diabetes on at least one occasion in every period of three months and the mother is to provide a copy of each report received to:
a) The maternal great uncle and aunt;
b) The maternal grandmother; and
c)The ICL during the continuance of the ICL's engagement in the proceedings.

In the event the mother is hospitalised the maternal great uncle and aunt are to be given the right of first refusal to care for the children for the period of such hospitalisation only. For the purpose of this order, the maternal great uncle and aunt may delegate the care of the children to the maternal grandmother during the period of hospitalisation only.

On a without admissions basis, in relation to the management of her Type 1 Diabetes Mellitus, the mother must consult with and comply with the advice (including the scheduling of and attendance at appointments, monitoring of blood glucose levels and administration of insulin) of:
a)The I Clinic at S Hospital or such other outpatient diabetes service to which she is referred by the I Clinic or any subsequent referral to such comparable service as recommended by such service from time to time; and
b)Her General Practitioner, Dr H or such other general practitioner as she may attend from time to time; and
c)Any endocrinologist or other medical or allied health professional (such as an optometrist or podiatrist) to whom she has been referred by the I Clinic and/or her General Practitioner.

All outstanding applications are otherwise dismissed.

Pursuant to s65DA(2) and s62B, 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 382 of 2007

Ms S Sturt

Applicant

And

Ms Knight

First Respondent

Mr Thomas

Second Respondent

Ms M Sturt

Third Respondent

Mr Sturt

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are parenting proceedings in relation to the children, B Thomas, born in August 2004 and now 6.5 years of age (“[B]”) and E Thomas, born in June 2006 and now 4.6 years of age (“[E]”). They are the children of the first respondent, Ms Knight (“the mother”) and the second respondent, Mr Thomas (“the father”).
These children have had a rather extraordinary pattern of carers for most of their lives. Since about September 2007, they have principally lived with their maternal great uncle and aunt, the third and fourth respondents, Mr and Ms Sturt (“the maternal great uncle and aunt”). Mr Sturt is the brother of their maternal grandmother, the applicant, Ms S Sturt (“the maternal grandmother”). Ms M Sturt is the daughter of the maternal grandmother’s former partner.
In 2006, the mother suffered a major health event related to her diabetic condition which was of such seriousness that she was not expected to survive. She has since re-partnered with Mr C (“the mother’s partner”).
The natural father has not participated in these proceedings since the release of the first family report dated 31 October 2008 and marked as exhibit “X2”; nor did he attend at the Court for the hearing. Further, the family consultant in these proceedings was not able to interview him for the second family report dated 3 February 2011 and marked as exhibit “X1”.
The maternal grandmother is the only party to the proceedings who is not legally represented.
The mother filed in Court at the commencement of the hearing, on 14 February 2011, a minute of order. That document was marked as exhibit “M1”. The maternal great uncle and aunt also filed in Court on that date a minute of order. That document was marked as exhibit “UA1”. The Independent Children's Lawyer advised the Court on that date that she supported the orders sought by the mother.
Before the family consultant gave oral evidence, she was provided with exhibits “M1” and “UAI”. She was asked to consider the proposals therein and her evidence in relation to those proposals is set out hereafter.
The thrust of the family consultant’s recommendation is that the children should be restored to the primary care of the mother over a period of time, with safeguards in place to ensure that both the children and the mother are able to cope with that outcome.
The child, B has had some behavioural issues which are addressed later in these reasons. The child, E has been said to experience anxiety at changeover of care between the mother and other parental groups. She has also expressed anxiety about spending overnight time with the mother. These matters are referred to later in these reasons.

The Background Facts

Where in this judgment I make statements of fact, they are, unless otherwise specified, my findings of fact.
In about 2002, the mother and father met and thereafter commenced a relationship with one another.
In August 2004, the child, B was born.
In March 2005, the mother was diagnosed as suffering from Type 1 diabetes. She currently attends a clinic for her diabetes, and she also attends upon a diabetes educator and an endocrinologist when required. Further, she takes two forms of insulin for her diabetes which she administers to herself by injection, and she also takes each day a number of blood samples from herself for analysis by means of a machine in her possession.
In June 2006, the child, E was born premature. For a considerable time prior to the birth, the mother had been in hospital. During that period, B was cared for by the maternal great uncle and aunt.
In August 2006, B suffered two black eyes. The mother took him to a medical practitioner. She indicated that the injury was sustained as a result of B hitting a wall with his face.
On 15 September 2006, the mother became ill, suffering from a coma as a result of her diabetes. At the time, B was living with the maternal great uncle and aunt in Sydney. The next day, the father delivered E to the maternal great uncle and aunt to live with them.
Thereafter, the mother underwent a process of rehabilitation which concluded in about March 2007.
In October 2006, the mother was discharged from hospital and commenced living with the maternal grandmother.
In November 2006, B returned to live with the mother; however, E remained living with the maternal great uncle and aunt.
In December 2006, the mother initiated contact with the father and thereafter they resumed a relationship with one another.
In January 2007, the mother and father moved with B to live in Sydney.
In March 2007, E also commenced living with the mother.
In April 2007, orders were made requiring that both children live with the maternal great uncle and aunt. Following those orders, the mother and father commenced living with the paternal grandfather on the NSW south coast.
In May 2007, the mother undertook a parenting course.
In June 2007, the mother and father moved to live in Wollongong, NSW. Shortly thereafter, the mother and father separated and she by herself moved to live in Wollongong Suburb 2. She did so because the father had been violent towards her.
In October 2007, the mother commenced a relationship with her current partner, Mr C and, in early 2008, she commenced living with him.
In February 2008, B commenced spending overnight time with the mother and her partner.
In January 2009, orders were made in this Court for the family group to attend upon Relationships Australia for the purpose of implementing a process of return of the children to their mother’s care. Throughout the whole of 2009, the parenting parties attended upon Relationships Australia for that purpose. Additionally, the mother attended a parenting course over a 12 week period with Relationships Australia .
In December 2009, agreement was reached at Relationships Australia for the children to spend overnight time with the mother; specifically, for B to spend three nights a fortnight with her and for E to spend two nights a fortnight, with some additional day time contact.
At the end of 2009, the mother agreed with the other parenting parties that, if E did not want to stay overnight with her, the overnight time could be reduced and substituted for add additional day time.
In February 2009, the mother completed a certificate three in aged care and part of that involved instruction in the taking of blood samples.
On 21 February 2009, pursuant to the agreement reached at Relationships Australia, the children were to commence spending unsupervised overnight time with their mother. However, on that day, the maternal great aunt told the mother that B had complained that the mother’s partner, Mr C was smacking him. In the presence of the maternal great aunt, the mother asked B: “Who has been smacking you?” to which he replied: “I was just tricking”. The unsupervised overnight time did not commence as agreed because the maternal great aunt, as she told the mother, had been advised not to allow such time if the mother’s partner was present.
On 14 April 2009, the children commenced spending overnight time with their mother.
In 2010, B commenced his formal education.
In May 2010, there was further mediation between all the parenting parties at Relationships Australia.
Currently, the mother and her partner, Mr C live together in rented premises at the cost of $280 per week in Wollongong Suburb 2; reasonably proximate to the paternal grandfather’s residence on the NSW south coast. The mother receives Youth Allowance in the sum of $400 per fortnight. Her partner receives wages in the sum of $150 per day after tax. For the last two months, he has on average worked 17 days per month. When he does not work a full week, he applies for a part Centrelink benefit.
The mother’s partner, Mr C has one child from a previous relationship of 12 months duration. That child lives in M, NSW. He does not see that child.
It is an agreed fact that E has been delivered late to her pre-school. The mother expressed concern about this in her oral evidence. When she picked up B at the maternal great uncle and aunt’s residence at 9am, she had observed E still in her pyjamas. Notwithstanding that concern, she told me that she had last enquired with the pre-school about E’s late attendance 5 months ago.

The Issues

At the commencement of the hearing on 14 February 2011, the parties identified the issues to be determined as follows:
(1)The parenting capacity of the mother.
(2)The state of the mother’s health and its impact upon her parenting capacity.
(3)The impact on the children of the differing parenting styles of each household.
(4)The relationship between the mother and the maternal great uncle.
(5)The attendance of E at pre-school. Is she delivered at pre-school at the usual starting time? If not, why not?
(6)If the mother has the predominant care of the children, whether she will relocate with the children from the Illawarra area.
(7)The parenting capacity of the mother’s partner, Mr C.
I will consider each of these issues later in these reasons.

The Relevant Law

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration (see s 60CA). In determining what is in the best interests of the children, I must consider certain matters under s 60CC. Those matters are the “primary considerations” and the “additional considerations” (see s 60CC(2) and (3) respectively).
I am required to ensure that any order I make is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the best interests of the children being treated as paramount (see s 60CG).
I will also be guided by s 60B which sets out the objects of the part of the Act dealing with children and the principles underlying it.
I am required to consider the matters under s 60CC (4) and (4A). Without specifically setting out those matters, I will in these reasons deal with them.
Section 61DA(1) requires that:
…When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Where I propose to make an order that the children’s parents are to have equal shared parental responsibility for the child, s 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent.

The Evidence

In the lead up to the hearing, I directed that the evidence was to be given orally. This has been a very unusual case in that extended family members have taken on a supportive parenting role for the subject children. I felt that, if at all possible, the goodwill, which has been evident between the parenting parties in the past, should be preserved as much as possible. I was concerned that the filing of affidavits may lead to a concentration on the faults of each member of the parental group and thereby have a very adverse impact upon them

The Family Reports

The family consultant in these proceedings, Ms K produced two family reports: the first dated 31 October 2008 and the second dated 3 February 2011. These were admitted into evidence following the family consultant attesting on oath to the accuracy of each.
The first report details the dynamics of the family group. That group is said to comprise of the children as the subject children; the mother and the father, being the natural parents, as the parents; the maternal great uncle and aunt, being the present principal carers of the children, as other members of the parental group; and the maternal grandmother and the mother’s partner, Mr C as the remaining members of the parental group.
The family consultant notes that the natural father did not respond to a letter dated 25 September 2008 and forwarded to his last known address, requesting that he participate in the interviews for the preparation of the first report. The father did not participate in those interviews, nor did he participate in any proceeding in this Court in relation to the children. His whereabouts are unknown. His disinterest in the children is patent.
During the separate and joint interviews conducted, the maternal great uncle and aunt, the mother and the maternal grandmother agreed that the children ought to return to live with their mother and her partner, Mr C. However, it is recorded that none of them were sure as to the best way to manage the children’s return to their mother’s care.
In the first report, the family consultant recommends that the mother and the maternal great aunt have equal shared parental responsibility for the two children. She recommends that the parenting parties engage with Relationships Australia so that the organisation could assist in the return of the children to their mother’s care. She also recommends that each of the parenting parties attend any other counselling or group program recommended by the consultant with whom they would work at Relationships Australia.
In the preparation of the second report, the family consultant had access to a letter from the maternal great uncle to Dr M. That document was marked as exhibit “ICL2”. Additionally, she had access to a letter from B Public School to Dr E dated 27 April 2010. That document was marked as exhibit “ICL1”.
In that report, the family consultant notes that very little had changed in the circumstances of the children and their carers since the release of the first report. Each member the parenting group continued to live in close proximity to each other in the Illawarra area.
The family consultant reports that, at that time, the children were living primarily with the maternal great uncle and aunt. She reports that B was spending time with his mother each alternate week from after school on Friday to before school on Monday, and each other alternate week from after school on Friday to about midday on Saturday. She reports that E was spending time with her mother each week from 10.00am to 5.00pm on Tuesday and Thursday, and since about October once a fortnight from 10.00am on Saturday to 5.00pm on Sunday. She also reports that Orders made on 10 January 2009, which promoted the concept of restoration of the children to their mother’s predominant care, had never been fully complied with.
The family consultant sets out the proposals of each member of the parental group. Those proposals have now been superseded by the minutes of orders sought by each party. She identifies the issues that emerged from her conference with the parental group as follows:
a)Whether the children ought to be returned to the full time care of their mother;
b)If so, what periods of time ought they spend with the maternal grandmother, maternal uncle and maternal aunt? and
c)Whether, if the children remain living primarily with the maternal Uncle and Aunt, their time with their mother should increase.
Ms K also identifies the following issues:
a)Estrangement in the relationship between the maternal grandmother and the mother;
b)Breakdown in communication between the mother and the maternal uncle;
c)The maternal aunt’s ongoing support for the mother’s role in the children’s lives;
d)Concerns held by the maternal grandmother, the maternal uncle and aunt, that the mother might, should the children be returned to her full time care, relocate out of the Illawarra area; and
e)The maternal grandmother’s preference to negotiate her time with the children directly with the maternal uncle and aunt rather than the mother.
The family consultant highlights the consequences of poor relationships between the members of the parental group.
She notes that, notwithstanding the tensions in the parental group, they were all able to be together in a large room with the children over the course of the interviews.
She notes that the breakdown in communication between the maternal great uncle and aunt on the one side and the mother on the other is significant and troubling. It is noted, however, that the maternal great aunt retains a good and appropriate relationship with the mother.
She notes that the maternal grandmother expressed concerned that, given the estrangement between the mother and herself, should the maternal great uncle and aunt cease to have contact with the children, then her contact with the children would also cease.
She also notes that the maternal great uncle and aunt, and the maternal grandmother all expressed concern about the mother’s diabetes, believing that she was not managing it adequately. She notes that the mother denied that that was the case.
She notes that the maternal great uncle and aunt reported that E’s overnight time with her mother ceased until October 2010 as a result of there being concern about the level of distress expressed by E in relation to that time. She also notes that the maternal grandmother reported that E had spent occasional overnight time at her home, but would no longer do so.
She further notes that the maternal great uncle and aunt reported that E does not like going to pre-school and prefers to stay at home “with them” rather than going out.
The family consultant assesses B as having a secure attachment to his mother and as developing one with her partner, Mr C. Indeed, B is understood to have a secure relationship with each member of the parental group.
In her interview with B, he made positive comments about his time in each of the three households. His primary focus in his mother’s household has been on his mother rather than her partner, Mr C. He expressed a wish to live with his mother, get his own way and stay up late. He said it would be “Ok” if he did not live full time with his mother, provided that he was able to spend more time with her than he presently does.
The family consultant assesses E as having a primary attachment to the maternal great aunt and as developing an appropriate attachment to her mother. There was evidence to suggest that E was insecure in her mother’s care. The family consultant said: “If [E] was significantly unsettled in her mother’s care there would likely to be significant sleeping difficulties”. The mother asserts that this is not the case.
In her interview with E, she said that she would like to have “two sleepovers at mummy’s”.
The family consultant considers that neither child is of sufficient maturity for any significant weight to be given to their views.
In the second report, the family consultant recommends that there be an immediate increase in the time spent by E with her mother and that, to the extent that it is possible, that time coincide with the time spent by B with his mother. She recommends that a process of transfer for the children to their mother’s predominant care be instituted immediately. She recommends that, should the Court support a reinstatement of the children to their mother’s care, then both children should thereby be primarily living with their mother by the middle of 2011. She further recommends that the maternal grandmother’s contact with the children should occur by arrangements with the maternal great uncle and aunt.

The family consultant assesses that B could in the immediate future move to live with his mother permanently without experiencing any negative consequences, but that this is not so for E. Rather, she assesses that E’s time with the mother needs to be increased over a period of time.

The Oral Evidence of the Family Consultant

Prior to the family consultant giving oral evidence, I asked the Independent Children's Lawyer to deliver to Ms K copies of exhibits “M1” and “UA1”. Each of those documents sets out the orders sought by the mother and the maternal great uncle and aunt respectively. The maternal grandmother told me that she supported the orders sought by the maternal great uncle and aunt, and the Independent Children's Lawyer told me that she supported the orders sought by the mother.
The family consultant was cross-examined by all of the parties other than the maternal grandmother. When I asked the maternal grandmother if she wished to ask the family consultant any questions she declined the invitation.
During the cross-examination of the family consultant it was not suggested by any party that there was an inaccuracy or misrepresentation contained in either family report produced by her.
When the family consultant commenced to give her evidence I asked for her evidence in relation to the proposals.
When she gave her oral evidence she was critical of the proposed orders in relation to the final stages of the transfer of care between the maternal great uncle and aunt and the mother. She said that a provision for the children to spend every weekend with the maternal great uncle and aunt would not be supported by her.
The family consultant was asked what her suggestions would be in relation to a graduated program of transfer of care between the maternal great uncle and aunt and the mother. She recommended that on the days E is currently with her mother, namely Tuesdays and Thursdays, the mother should also collect B from school and return both children at about 5.30pm or 5.00pm in Eastern Standard Time. She proposed that on the weekend where B currently spends from after school Friday until lunch time on Saturday with his mother that E should join him for the occasion.
Each alternate weekend when B spends from Friday after school until Monday school time with his mother E should commence by spending from after school Friday until 5pm Saturday with the mother at the same time as B. After a few weeks that might be extended to Sunday morning and after a further period of time extended through to Sunday evening and eventually extended through to Monday morning.
The family consultant thought that in relation to the Easter school holidays the proposal of the mother and the Independent Children's Lawyer is appropriate. She considered that at the end of the first school term this year a professional consultation should take place with either Dr E or Ms D to assess how the children are coping with the changes.
Once it is assessed that the children are coping with spending the whole of each alternate weekend with the mother then that time should be extended from after school Friday until Wednesday school time in week one and the program extended so that the children primarily live with their mother and spend alternate weekends with their maternal great uncle and aunt. She also considered that each week one of the children might spend from after school Thursday overnight with the maternal great uncle and aunt. This school alternate from week to week.
The family consultant recommended that there be one general practitioner that all parental groups used in relation to the children. She further recommended that there be a clear order about the time the children spend with the maternal grandmother, who has been a very significant person in their life.
The family consultant was asked about whether she had any concerns about discipline of the children by the mother’s partner, Mr C. She said that B did not complain of physical discipline to her. He told her that the mother’s partner was not allowed to use the “F Word” in front of him. She observed a relaxed and comfortable relationship between the children and the mother’s partner.
The family consultant considered that there was no evidence observed by her to indicate an ongoing relationship between the mother and the natural father of the children.
The family consultant opined that as far as B is concerned he needs structure, clear boundaries and a common approach in each household. She recommended that a communication book might be reinstated for the parental group.
In relation to the mother’s parenting capacity the family consultant said: “She is committed. She has done a number of courses. She showed insight into the impact on the children of not spending time together. There were other things she spoke about which impressed me”.
The family consultant opined that the maternal great uncle will probably struggle with the transition of the children back to the mother. She said: “He has no children of his own and he will worry”. The family consultant confirmed her opinion that E is primarily bonded to the maternal great aunt. She agreed that there may be some initial resistance to the transfer of predominant care to the mother. She expected that that would settle quickly. She said E has a close relationship with her brother and he wants to spend more time with his mother.
The family consultant was asked about the reported “oppositional defiance disorder” diagnosed in relation to B.
I note that at this point that each member of the parenting group referred in their evidence to behavioural issues in relation to B.
The family consultant was taken to a report dated July 2010 by Dr N. She noted that B’s behaviour appeared to be improving. The commencement of administration of the drug Ritalin was not recommended.
In relation to E, the family consultant accepted that E could experience considerable distress moving from household to household. She said that the level of distress needs to be monitored and clearly action taken if the distress is at an unacceptable level or does not ameliorate.
Asked about the event on the June long weekend of 2010 when the mother was hospitalised at M the family consultant said: “She told me she had a fall and her partner’s parents called the ambulance”. That evidence was at odds with other evidence given by the mother and the mother’s partner as to the circumstances on that weekend.
The family consultant was asked to consider the minute of order proposed by the maternal great uncle and aunt. She responded by saying that she did not understand any of the parties to be supporting an equal shared time arrangement. She further said: “I do not suggest that everyone is sent away without a safety net for these children”.

Determination of the Issues as Identified by the Parties

The Parenting Capacity of the Mother

I do have concerns about the parenting capacity of the mother arising from the following facts and/or determinations:
a)The ability and willingness of the mother to properly manage her diabetes.
b)The ability of the mother to recognise the importance for her children of maintaining a good relationship with the maternal grandmother together with the maternal great uncle and aunt.
c)The general level of maturity of the mother.
d)The ability of the mother to prioritise the children’s needs ahead of her own.
Examples which prompt the above concerns are as follows:
·The concern about the mother’s ability and willingness to properly manage her diabetes is set out later in these reasons. I need to emphasis that I do not consider that the mother is reckless in her approach to the management of her illness. Rather, I consider that she may not be as attentive in this regard as her children require her to be. The criticism of the mother’s failure to properly manage her diabetes is substantiated by the records produced by I Clinic as contained in exhibit “ICL 7”. Those records show concern as late as January 2011. A note taken on 25 January 2011 by the diabetes educator at Il Clinic describes the mother as having: “Sub-optimal management of T1DM. Frequently forgets insulin. Monitors BGL 1 x daily (pre-bed) only…trying to conceive previous 2 years”.
·I accept that each of the maternal great uncle and aunt, and the maternal grandmother have the best interests of the children as the primary motivator for their concern for the mother’s health.
·In relation to the concern about the ability of the mother to recognise the importance for her children of maintaining a good relationship with the maternal grandmother, and the maternal great uncle and aunt with whom the children live and have a close relationship, it is difficult to gauge the level of her commitment to maintaining those relationships. Both the maternal great uncle and the maternal grandmother attribute the breakdown in the relationship they each have with the mother to her behaviour. Both describe her as having a stubborn personality. The maternal great uncle said that she had a “my way or the highway mentality”. On the other hand, both appear to have confident personalities and do not appear to have any reluctance about voicing criticism of the mother. Nonetheless, I do accept the evidence of the maternal great uncle and the maternal grandmother, and I accept the mother chooses not to engage in any co-operative way with them because she does not accept their criticism.
·The maternal great uncle and aunt, and the maternal grandmother have acted as a safety net for the children throughout their lives. The children have close relationships with each of those persons. E is primarily attached to the maternal great aunt. Accordingly, should the mother become incapacitated at any time, those three persons would be the logical choice to care for the children. It is therefore very important for the children that their mother and those three persons significant to them have a good and close relationship.
·In relation to the concern about the general level of maturity of the mother, her ability to foresee the consequences of her actions upon the children is called into question when considering some of the evidence in this case. Of particular note was the mother’s action on the weekend before the long weekend in June 2010 when she called the police to her property to have the maternal great uncle removed and at least E was present. At the time, her partner was present in the house. I do not accept that the mother felt so threatened by the circumstance as to warrant calling the police. Rather, I consider that the mother called the police because of her own need to win a battle with the maternal great uncle as opposed to any concern or thought for the children.
There is evidence that, notwithstanding separating from the children’s father due to his violence directed towards both the mother and B, the mother chose to return to a de facto relationship with him. She alleges further violent behaviour by the children’s father and then a final separation from him. Her poor judgment in re-establishing her relationship with the children’s father potentially subjected them to trauma and violence. As the evidence discloses, both the maternal great uncle and aunt, and the maternal grandmother do not accept that the relationship between the mother and the natural father would not be re-established should an opportunity avail itself to the mother in the future.

The State of the Mother’s Health and Its Impact upon Her Parenting Capacity

The mother suffers from type 1 diabetes. She is required to administer to herself by injection insulin, and take blood samples from herself on a number of occasions each day. She is also required to carefully monitor her diet so as not to exacerbate the symptoms of her illness.
Both the maternal grandmother and the maternal great uncle and aunt have a genuine concern that the mother does not manage her diabetes well.
There is a potential for the mother to suffer a major diabetic event which renders her unconscious. She has already suffered two such major diabetic events. The first such event occurred in 2006. It was almost fatal for the mother. The maternal grandmother told me that, on that occasion, she was told by treating medical staff that the mother only had a 1% chance of surviving. The second such event occurred on the long weekend in June 2010. It occurred at M early in the morning when the mother, her partner and B were staying with her partner’s parents. The mother was treated by ambulance officers and taken to hospital for observation. B was awake as his mother was taken from the property by ambulance. B was told by her partner’s mother that the mother had fallen and hit her head. No explanation for this untruth was ever provided.
The mother gave evidence that B knows to dial 000 on the phone if he finds his mother in a coma or unable to speak. E has likewise been given some instruction of what to do.
There can be little doubt that, if either child was required to rescue their mother in such circumstances, then it would be a traumatic event for them. It is the realisation that her children would be significantly affected by such an event which ought to drive the mother to manage her diabetes as best as can be done. On balance, I am not satisfied that the mother is managing her diabetes as well as she should. By way of example, the mother’s explanation for what had caused the symptoms on the long weekend in June 2010 was that her insulin had over heated in the car travelling to M and she had not “pierced the vial” as she had been instructed. She said to me: “I forgot to pierce the vial”. The consequence of such a lapse could be catastrophic for the mother and the children should it occur at a time when there is no adult available to assist her and the children are the only persons present. On the occasion of the incident in M, the mother’s partner, Mr C said the mother could not talk. In such circumstances, she would have to rely on the children being able to remember what to do should they be the only ones present.
I therefore conclude that the state of the mother’s health is such that it could have a major impact upon her parenting capacity at a time of catastrophic diabetic event.

The Impact on the Children of the Differing Parenting Styles in Each Household

It is difficult to determine exactly what the differences are for the children of the parenting style they experience in the mother’s home as opposed to the maternal great uncle and aunt’s household. I consider that the following are probably the main differences.
·The parenting approach of the maternal great uncle and aunt to B is likely to be calmer, less confrontational and more negotiating when he exhibits oppositional or defiant behaviour.
·The boundaries set by the maternal great uncle and aunt for the children are likely to be clearer and more consistently enforced than in the mother’s home.
·The parenting of the children by the maternal great uncle and aunt is likely to be more child-focused than that of the mother.
The evidence and matters which give rise to the above conclusions include the following:
·The maternal great uncle and aunt have been in a long term relationship for considerably longer than the mother and her partner. Their relationship appears well established with a high degree of comfort in the rolls each is expected to fulfil. The mother’s relationship is relatively new. Both she and her partner have lived in relationships which have failed with traumatic impact. The mother experienced violence both to herself and her children at the hands of the children’s father. The mother’s partner, Mr C separated from his partner and has never been permitted a relationship with his child not withstanding that he pays child support for the child.
·Both parenting groups described their house rules for the children and how those rules were implemented. The mother’s partner told me that frequently he and the mother ignore B’s defiant behaviour as it tends to escalate if confronted. The mother told me that she had been told to discipline B whenever his behaviour was defiant or inappropriate. Each of the maternal great uncle and aunt explained how they deal with B when he displays inappropriate behaviour. It seemed to me from the evidence of the maternal great uncle that B clearly understood what was expected of him in terms of his behaviour and the consequences of his misbehaviour. The maternal great uncle said that on some occasions he anticipates the punishment and takes himself to his room when he has been misbehaving.
·In my view the maternal great uncle and aunt have shown a capacity to consider the impact on the children of certain circumstances and have tried to implement changes to the arrangements for the children which alleviate the impact. An example of this is their concern for the impact on E of forcing her to spend overnight time with the mother when she is not ready to do so. Another area is the mother’s failure to achieve optimal management of her diabetic condition. In so doing she appears to not understand that her diabetes management not only affects her own health but the best interests of the children. Reasons for that statement appear elsewhere in these reasons.

The Relationship between the Mother and the Maternal Great Uncle

The relationship between the mother and the maternal great uncle appear to have become particularly troubled in about the middle of 2010.
The mother’s evidence is that on 8 June 2010, the weekend before the June long weekend, the maternal great uncle delivered E to the mother at her home. The mother says that on that occasion she initiated a conversation with the maternal great uncle by saying to him: “Next weekend we have agreed I will be taking [E] to [M]”. She said he then said to her: “No you are not taking her”. The mother then says she went inside the house. She said the maternal great uncle stayed outside in his car for about an hour. The mother rang the maternal great aunt and told her what had occurred. She asked the maternal great aunt to contact the maternal great uncle and have him leave the area otherwise she would call the police. She said he did not move. She felt intimidated and she called the police. She accepted that she did not consider the impact on the children of her action in calling the police at that time.
The mother told me that her partner was present throughout the time of the maternal great uncle being in the vicinity of the home. Notwithstanding his presence with her the mother said the maternal great uncle sitting in his car at the front of the home intimidated her to the extent that she felt compelled to call the police. She could not recall speaking to her partner about calling the police. (I note here that both the maternal great uncle and the mother’s partner, Mr C gave quite different versions of the facts of this incident from that of the mother.)
The mother’s partner gave evidence about the incident.
The mother’s partner said that when the maternal great uncle arrived at the property on this particular day he was in the back yard working. When he re-entered the house he was told by the mother that E would not be accompanying them to M for the long weekend. She then told him her version of the conversation she had with the maternal great uncle. The mother’s partner saw that the maternal great uncle was still at the front of the house. The mother’s partner said he asked him to leave. She said the maternal great uncle was very angry. He asked the maternal great uncle to leave the property or he would call the police. The maternal great uncle told him he could stay as long as he likes. The maternal great uncle said to a neighbour of the mother’s partner: “They make up stories”. The mother’s partner said he asked the mother to call the maternal great aunt and ask her to speak with the maternal great uncle. He said the mother called the police who attended the home a few hours later after the maternal great uncle had left.

The maternal great uncle gave evidence about the incident. He claimed it had not all occurred on the same day.
The maternal great uncle said that on 15 May 2010 he and his wife were very concerned about E’s attitude to spending overnight time with her mother. E had “continually” sought reassurance from the maternal great uncle and aunt that she would not have to stay over night with her mother.
On the weekend before 15 May 2010 E had returned from time with her mother in a somewhat unusual mood. She entered the maternal great uncle and aunt’s house and went directly to her room. The maternal great uncle followed her to her room. She gathered up her toys. She asked for each of the dogs to be brought to her. She then cried and told the maternal great uncle: “I don’t want Mum”. The maternal great uncle could not ascertain the cause of this behaviour.
The parenting parties all attended at Relationships Australia. The maternal great uncle and aunt pressed for day time only for E to spend with her mother. The mother pressed for over night time with E.
On the weekend of 15 May 2010 the maternal great uncle took E to her mother’s house. He spoke to the mother. He said to her: “If you are not willing to address something about over night time then we will have to do something about it”. He then went home.
When the maternal great uncle arrived home the maternal great aunt told him the mother had telephoned accusing him of causing trouble.
On the weekend before the long weekend in June 2010 the maternal great uncle delivered E to the mother to spend time with her. He told the mother he would return to pick up E at 5.00 p.m. He then moved to leave the premises. He observed the mother talking to a neighbour. He said to them “Don’t conspire with … to tell lies”.
The maternal great uncle said he then proceeded to leave however the mother’s partner emerged from the house towards him in a hurried fashion. He had a portable phone in his hand. The mother’s partner said to the maternal great uncle: “Get off the property”. The mother’s partner pressed a button on the phone and spoke to a person who he addressed as “Sergeant”. The maternal great uncle said that the mother’s partner had told him at an earlier time he had a friend who was a police officer. The maternal great uncle stood near his car glaring at the mother’s partner. He then sat in his car and waited for the police to arrive as he thought he ought to do that. In 20 minutes the police had not arrived and so the maternal great uncle left the vicinity.
Following his arrival at home he was told something by his wife. He then rang the mother and had a short and terse conversation with her.
In later evidence given by the mother’s partner he said he did have a phone in his hand at the time he approached the maternal great uncle and he did pretend to call the police. He claimed he had not called the police and that the mother had called them.
Of all the accounts of the incident I prefer that given by the maternal great uncle. I consider the mother’s version the most unreliable. There was far more consistency between the version given by the maternal great uncle and the mother’s partner.
It is clear to me that the relationship between the mother and the maternal great uncle is poor but not irreparable. The maternal great uncle said he was prepared to try and repair the relationship. The mother said likewise. They both agreed they would attend on counselling to assist with this. The maternal great uncle said he loves the mother and does not wish to be in conflict with her.
The family consultant and each of the mother and the maternal great aunt spoke of a good relationship between the mother and the maternal great aunt.
The conflict between the mother and the mother’s partner on the one part and the maternal great uncle has the potential to degenerate. There appears to me to be a lacking in confidence by the maternal great uncle that the mother and the mother’s partner can properly parent the children. There is a concern held by the maternal great uncle and aunt that B is physically chastised by the mother’s partner. This arises principally because of statements made to them by the child. There is a concern that the mother is rushing the return of E to her care in disregard for the impact on E of a change which is too quick for her to comfortably cope with the change. Both those concerns, in my view, have been validly held by the maternal great uncle and aunt.

The Attendance of E at Pre-school. Is She Delivered at Pre-school at the Usual Starting Time? If Not, Why Not?

Evidence was given by the mother and the maternal great uncle and aunt about E’s attendance at pre-school. The mother raised a concern that E was not attending at pre-school on time for the days she attends (3 days per week). The family consultant was asked about the impact of such occurrence on E’s development. The family consultant described the reasons for which late attendance at pre-school could have consequences for E. That explanation included impact upon socialisation skills and inability to experience the full range of programs provided by the pre-school to prepare children for school. Another concern was that, if late attendance was continued when she commenced schooling, then conflict with school authorities was likely to be an outcome.
The maternal great uncle and aunt both gave evidence about the difficulty they experienced having E attend at pre-school and, on some occasions, to leave their home for any event no matter how pleasurable it might sound to E.
I accept that the maternal great uncle and aunt have used their best endeavours to have E attend at pre-school on time.
In the mother’s evidence, I did not hear any plausible alternative plan to remedy the difficulty which the maternal great uncle and aunt experienced with E. I have no confidence that the mother would be able to achieve prompt attendance at pre-school for E at this time.

Whether the Mother Will Relocate with the Children from the Illawarra Area if She Has Predominant Care of Them

This is a real concern for the maternal great uncle and aunt, the maternal grandmother and the Court. Both the mother and her partner gave the Court assurances that, if the children were placed in their care, they would not be moving away from the area in which all the parenting parties currently reside. All parties sought that orders be made to restrain any attempt for the mother to move her residence out of the area she currently resides without giving prior notice of her intention to do so.

The Parenting Capacity of Mr C

Mr C gave oral evidence in the hearing. Inter alia, he told the Court the following.
He lives in a de facto relationship with the mother. He has been living in the Illawarra area from 2006.
He gave evidence about being present with the mother on the long weekend in June 2010 when she suffered a major diabetic event. He described the action he took at that time which I consider was entirely appropriate.
In relation to that incident, of importance is that B was present at the time. Mr C said that B woke when the mother was being taken from the property by ambulance. When B asked what was happening, he was told by Mr C’s parents that the mother had bumped her head and had to go to hospital. No explanation was given for this deception and Mr C’s mother did not give evidence.
Mr C was asked about an incident which had been the subject of other evidence in the case; namely, “the dead mouse incident”. He told the Court that he had been rebuilding the kitchen in the property he was living in with the mother. He said B was present at the time. He said he found a dead mouse while removing the kitchen cupboards. He thought the sight of the dead mouse might worry B and he asked B to leave the area. B wanted to see the dead mouse. After some debate between them, Mr C held up the mouse by the tail to show B. The child indicated that he thought the dead mouse was disgusting. He then momentarily left the room and returned and asked to see the mouse again. Mr C held the mouse again by the tail in front of B who responded by spitting at the mouse. Mr C reprimanded him for spitting. The mother who was present directed B to sit in the “naughty chair”.
The importance of this evidence arises from the fact that B told the maternal great aunt that he had been hit by Mr C as part of the response to his reaction to the dead mouse being held up close to his face.
I accept that B was not hit by Mr C on that occasion. I consider that Mr C has not completely accurately recounted the incident. I consider that there was probably some “game” element to the incident. I consider that the dead mouse was probably held close to the child’s face by Mr C. Based on the evidence of the maternal great uncle, I accept that the mother and Mr C were laughing at B’s reaction to the dead mouse being held close to his face. I consider that B has not accurately reported the incident to the maternal great aunt. The action of Mr C in this incident illustrates, I consider, a level of immaturity.
I do not consider that there is anything which flows from the incident which should be seen to reflect unacceptably adversely upon the mother’s or Mr C’s parenting capacity.
When asked if he had ever smacked B, Mr C initially denied that he had. He later agreed that he had “tapped him on the leg” as part of a reflex action when B kicked Mr C in the groin. I think it improbable, in those circumstances, that a reflex action would give rise to a “tap on the leg”. I think it probable that Mr C hit B with force.
Although denying that he had otherwise aggressively handled B, I consider that he has probably done so in the past; however, I consider that he probably has refrained from doing so now for some considerable time. It is agreed by the parties in this case that B has displayed defiant behaviour and can be difficult to manage at times. I consider that such a child would pose a significant challenge in management for an inexperienced parent. I accept that in frustration a parent of such a child may from time to time overreact to the child’s behaviour and do something which they would generally not.
Mr C described the range of strategies that he and the mother employ to deal with B’s behaviour. He admitted that, on many occasions, they do nothing as they find to confront the behaviour only escalates the incident and his oppositional behaviour.
Mr C told the Court that, when both children attend their home to spend time with the mother, they experience bad behaviour by B; however, it does not occur on every occasion. He appeared to be trying to say the bad behaviour was reducing in its frequency. In any event, he said it settles after about the first hour.
The incident which saw the police attend at Mr C’s home on the weekend before the June long weekend trip to M in 2010 was raised with Mr C.
He told the Court that he was working in the back yard of the home when the maternal great uncle arrived with E. He entered the home. The mother told him that the maternal great uncle had just told her that he did not agree to E attending on the trip to M planned for the next weekend. There was discussion between he and the mother about that trip being agreed to by the maternal great uncle and aunt as part of a mediation session.
Mr C spoke to the maternal great uncle and asked him to leave the property. He heard the maternal great uncle speak to a neighbour of his. He said the maternal great uncle appeared angry. He told the maternal great uncle to leave the property or the police would be called. The maternal great uncle asserted a right to be able to stay outside the house in the street. He asked the mother to telephone the maternal great aunt in the hope she might be able to convince the maternal great uncle to leave the area. He said the mother called the police who did attend, however by that time the maternal great uncle had left the area.
I have considered the evidence of the family consultant in relation to Mr C. I was impressed by him as a witness and a person. I do not consider that he is a threat to the children. Rather, I consider that he has a good relationship with the children and they with him. I accept that he does leave the predominant parenting role to the mother while the children are with them and that he plays a supporting role to her. Overall, I consider that he would be an adequate assistant parent for the children and has the capacity to apply some common sense to difficult circumstances which might confront the children while in the care of the mother.

Section 60CC Considerations

Primary Considerations

(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

All of the parties recognise that it is desirable, if at all possible, to have the children restored to the care of their mother. Orders are sought by each of them to achieve this end, albeit that the maternal great uncle and aunt seek orders for a shared equal time arrangement between themselves and the mother.
The natural father of the children has failed to participate in the proceedings notwithstanding that he was invited to do so by the family consultant. His whereabouts are unknown.

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

One of the children, namely B has complained that the mother’s partner, Mr C has been physically violent towards him.
Further, the mother states that B and herself were subjected to violence at the hands of the natural father.

Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The children have both expressed views about with whom they would like to live or not live. They expressed those views to the parties and the family consultant. I accept the opinion of the family consultant that, given their age and development, the children’s views should not be given any meaningful weight.

(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)

The children are assessed by the family consultant as having a good and appropriate relationship with each member of the parental group.
E is assessed by the family consultant as being primarily bonded to the maternal great aunt.
The children have a close relationship with each other even if at times it is conflicted. The mother’s evidence in particular highlights that relationship.

(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The maternal great uncle and aunt, and the maternal grandmother each express a desire to see the children restored to the care of their mother in a timely manner, provided that she properly manages her diabetes, remains living separately from the children’s natural father and remains living in close proximity to them.
The mother attests to those conditions.

(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

I am satisfied that B would cope well with a reasonably swift transfer of his care to his mother, provided that he could spend regular and sufficient time with the maternal great uncle and aunt, and the maternal grandmother.
The maternal great uncle and aunt’s concerns about the restoration of the children into the care of their mother primarily relate to E. According to their evidence, she does not welcome the idea of being removed from their home which she regards as her own, and she has resisted and expressed concern about spending overnight time with the mother. They have a real concern that the mother’s and the Independent Children's Lawyer’s proposal for E creates a regime for the transfer of her care which is too speedy.
In relation to E’s late attendance at pre-school, the maternal great uncle and aunt say that they experience oppositional behaviour and distress from her in the exercise of delivering her to pre-school. The mother in her evidence was critical of E’s late attendance at pre-school. She does not appear to have an appreciation of the difficulty experienced by the maternal great uncle and aunt in that regard. Having listened to the mother’s evidence as to how she might have E attend pre-school on time, I have no confidence that the mother would be able to achieve what the maternal great uncle and aunt could not; namely, E regularly arriving at pre-school on time.

(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

All of the parties live in close proximity to each other. Each party intends for that to continue into the foreseeable future.
The biggest challenge for the children continuing to spend time with each member of the parental group is the maintenance of cordial relationships within that group.

(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

I have discussed this consideration to a large extent earlier in these reasons. I find that the maternal great uncle and aunt have the requisite capacity to provide for all of the needs of the children. As stated earlier, I have reservations about the mother’s capacity to provide for those needs of the children in specific areas.

(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

B has exhibited behavioural problems at home and at school for which he has received and continues to receive professional assistance.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This is not a relevant consideration in this case.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I refer to matters addressed earlier in these reasons and relevant to this consideration. I do have concerns about the mother’s ability to properly address the responsibilities of parenthood. I am particularly concerned about her ability to foresee the impact of her actions on her children. I specifically refer to the incident where she felt compelled to call the police to her home to confront the maternal great uncle.
I have not thus far been critical of the maternal great uncle’s role in that incident. I do consider that he could have acted differently. I am critical of his reprimanding of the mother’s neighbour on that occasion. I am critical of his failure to ignore the behaviour of the mother, her partner and her neighbour, and to simply leave the vicinity. I consider that his actions exacerbated the incident rather than defusing it.

(j) Any family violence involving the child or a member of the child’s family

It appears to be common ground that the children’s natural father was violent towards the mother and B.
I am satisfied that the mother’s partner, Mr C has used corporal punishment on B on one or two occasions. I am satisfied that this is not his usual practice.

(k) Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There is no relevant family violence order known to the Court.

(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

All of the parties desire, if it can be achieved, the making of final orders as opposed to interim orders and, at the same time, the provision of a “safety net” for the children.

(m) Any other fact or circumstance that the Court thinks is relevant

There is no other fact or circumstance which requires consideration at this time.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence leads me to conclude that in reality the maternal great uncle and aunt have been exercising parental responsibility for the children for a considerable period of time. I find that the mother did not see the children for some time as a result of a complaint by B to the maternal great uncle and aunt that the mother’s partner, Mr C had been hitting him. The maternal great uncle and aunt obtained advice indirectly from the Independent Children's Lawyer through the maternal grandmother that, unless the mother agreed to the children spending time with her in the absence of her partner, then the children, B in particular should not spend any time with her. That issue was ultimately remedied; however, by that time, the children had already missed spending time with their mother.

Balancing of the Section 60CC Considerations

Balancing the matters set out in s 60CC and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
All of the parties agree that the children should increasingly over time be cared for by the mother. However, they cannot agree on the regime for the transfer of the children to their mother’s care, nor can they agree on the ultimate split of the time spent by the children with each of them.

Section 61DA

This section recites a presumption to be applied by the Court unless one of the excluding factors applies. It requires the Court to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.
However, the presumption does not apply where there has been family violence. As stated earlier, in this case, there has been family violence.
The section further provides that the presumption, if it were to apply, may be rebutted if it is determined to not be in the best interests of the children.
In this case, all of the parties agree that the presumption cannot apply because the father is not a participant in the proceedings and, in the circumstances of the case, the Court cannot consider making an order for equal shared parental responsibility in his favour.
There is no case put that an order for equal shared parental responsibility could not be made in favour of the mother and the maternal great aunt.

Section 65DAA

Section 65DAA(1)-(4)

This section requires me to consider the making of an order for equal time where the making of an order for equal shared parental responsibility is proposed. I will consider that when I look at the orders to be made in this case.

Section 65DAA(5)

I will consider the practicalities of the children spending time with each member of the parental group when I consider each of their proposals.

The Orders to be Made

The orders proposed by the mother are contained in a document marked as exhibit “M2” and received into evidence on the last day of the trial. That document effects some changes to the Minute of Order earlier filed by her. In my view, having regard to the facts in this case, no prejudice of substance flowed to the maternal great uncle and aunt by permitting the mother to change the orders she was seeking to those contained in exhibit “M2”. Those contained in exhibit “M2” are very extensive and I do not repeat them here.
The orders recommended by the Independent Children's Lawyer are contained in exhibit “ICL8”. Those orders are extensive and I do not repeat them here.
The orders sought by the maternal great uncle and aunt are contained in exhibit “UA1”. I do not repeat those orders here.
There is commonality between the parties in relation to some of the orders sought by each of them. That commonality is as follows:
·That the parties and the children continue to consult with Ms D and that the parties accept her recommendations in relation to certain aspects of the parenting of the children. (There are some differences about the specific role to be played by Ms D).
·That there should be mutual non-denigration orders.
·That there should be a restraint against physical punishment of the children.
·That there should be a restraint against discussing the proceedings with the children.
·That there should be a restraint against the mother moving her residence away from the Illawarra area.
·That each party keep the other parties informed in relation to: the health of the children; any serious accident involving the children; any special event for the children at which the parties may attend; any contact made by the natural father to that party; and any changes of the contact details of that party.
·That the children’s schools be authorised to provide to the mother and the maternal great uncle and aunt copies of all reports and other material or information usually provided to parents of school students.
·That medical and dental professionals providing services to the children be authorised to provide material or information regarding the children to the mother and/or the maternal great uncle and aunt.
·Matters relating to the mother’s health and the provision of material or information by her treating medical professionals regarding her health.
·Provision for the children to live with the maternal great uncle and aunt during any period of hospitalisation of the mother.
In relation to parental responsibility, the Independent Children's Lawyer seeks no order. Rather, she submits that parental responsibility should be determined as specified in the Act where no order is made for it. The maternal great uncle and aunt submit that an order for shared parental responsibility between themselves and the mother should be made. The mother submits that an order for shared parental responsibility between herself and the maternal great aunt should only operate until the children have reached the end point in the transfer of them to their mother’s care.
I do not consider the submission of the Independent Children's Lawyer in this regard to be in the best interests of the children given the prospect that their natural father might emerge from his seclusion and seek to be involved in their care. Given the evidence which has been given about his abusive nature, that should not be permitted without Court scrutiny. This is one of the matters which concern the maternal great uncle and aunt, and the maternal grandmother.
Both the mother and the maternal great uncle and aunt present a case with merit. Both submit cogent arguments.
The mother submits that, until the end stage of the proposed transfer of the children from the maternal great uncle and aunt’s care into her care is affected, parental responsibility for the children should be shared between the two women, each woman having the predominant care of the children in her household. She says that they have a good level of communication with and trust in each other. The mother also submits that, once the end stage has been reached and settled, she should have sole parental responsibility for the children and responsible for nearly all of their care. She says that she is the only natural parent in the mix of adults.
The maternal great uncle and aunt submit that any order for shared parental responsibility for the children between themselves and the mother should continue into the future irrespective of the split of time spent by the children with each member of the parental group. They say that, should some catastrophe occur in relation to the mother’s health, they may otherwise need an order for parental responsibility so that they could take on the care of the children while the mother is unavailable to them.
I consider that the mother and the maternal great aunt should have equal shared parental responsibility for the children for a period of 6 years from the date of the making of the orders and that, thereafter, parental responsibility for the children should rest solely with the mother. At the conclusion of 6 years from the making of the orders, B will have finished his primary school education and old enough to contact the maternal great aunt should he be concerned about parenting in his mother’s home. Additionally, by that time, if the mother has not properly managed her diabetes, she will probably have experienced significant catastrophic episodes related to her illness. In such circumstances, the children are likely to be living with the maternal great uncle and aunt. I propose therefore to continue the order for the mother and the maternal great aunt to have equal shared parental responsibility for the children until B’s birthday in 2016 when he will become 12 years of age.
The parties are at odds in relation to the timetable for the regime of the transfer of the children into the mother’s care. It is useful and instructive to consider the evidence of the family consultant on this issue. The family consultant suggested the following: E should commence spending time with the mother each Tuesday and Thursday, when she currently does not attend pre-school, for the day until 5.30pm. The mother should collect B from school and return him to the maternal great uncle and aunt on these days if he is to spend overnight time with them pursuant to other orders to be made. On each alternate weekend, both children should spend time with the mother from the conclusion of school on Friday to about midday on Saturday. On each other alternate weekend, B should spend time with the mother from the conclusion of school on Friday to the commencement of school on Monday. E should be with the mother; and E should spend time with the mother from the conclusion of school on Friday to 5.00pm on Saturday. After a few weeks, that time spent by E with the mother should be extended to Sunday evening and, eventually, to Monday morning. At the end of the first school term, a check should be conducted by Dr E and Ms D to assess whether the children are coping with the transfer of their care.
The regime for that transfer should change so that the children are both with the mother from the conclusion of school on Friday to the commencement of school on Wednesday in one week, while the Tuesday and Thursday time spent by E with the mother each week continues. Following a period of time, there should then be a change so that the children live with the mother predominantly and with the maternal great uncle and aunt each alternate weekend. Each child should have one on one time, alternating with the other child each week, with the maternal great uncle and aunt on Thursday evening.
The family consultant considered that the proposal by the Independent Children's Lawyer for the children, during school holidays, to spend shared time with the members of the parental group was appropriate.
The family consultant also recommended that there be one common General Practitioner for the children used by the parental group.
The maternal grandmother is an important person in the children’s lives and the family consultant accordingly said that there needs to be some clear order as to the time the children spend with her.

Conclusion in Relation to the Transfer of the Children into the Care of the Mother

The evidence supports a conclusion that B has coped well with the increased time spent by him with his mother and the mother’s partner, Mr C. By the same token, it is clear to me that the maternal great uncle and aunt, and the maternal grandmother perhaps to a slightly lesser degree, are very important participants in his general wellbeing. He has been in their care for a significant amount of time during a period in his life where he is particularly dependant upon parenting, and during a period which must be seen as very disrupted and challenging to his attachments and thereby his emotional security. I consider that, provided he can continue to spend meaningful time with the maternal great uncle and aunt, his transition to his mother being his predominant carer could be quite swift, probably within 6 months.
In relation to E, I have a concern that she will not transition well to her mother’s care quickly. Having heard all the evidence given in relation to her personal makeup, it seems to me that she may be innately a home body who does not adapt well to change. The history to date would suggest many reasons for which she may be insecure and for which she has attached so significantly to the maternal great uncle and aunt. I consider that she may suffer emotional trauma and the potential for long term developmental emotional damage if she is required to move to the predominant care of her mother at a pace which is beyond her coping capacity. I accept that she has a close relationship with her brother, B, and that his presence in the mother’s home with her will assist her with the transition. However, I consider that the timeframe for E to be moved to her mother’s care needs to be considerably longer. I will therefore make orders accordingly.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 17 March 2011

[2011] FamCA 194

18 March 2011

Key Legal Topics

Areas of Law

Family Law