Tann and Malin & Anor

[2020] FamCA 826

FAMILY COURT OF AUSTRALIA

TANN & MALIN AND ANOR [2020] FamCA 826

FAMILY LAW – PARENTING – Where the child lives with the father – Where the mother has an extensive history of illicit substance abuse and criminal behaviour – Where the mother asserts she is now drug free – Where the child’s sibling is also subject of court proceedings – How the child’s time with the mother should be facilitated – Orders for ongoing drug testing – Orders for graduating time.

APPLICANT: Mr Tann

1st RESPONDENT: Ms Malin

2nd RESPONDENT: Ms B Malin

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: PAC 4743 of 2014

DATE DELIVERED: 29 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 7, 8 & 9 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Adams & Partners Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr Neatereenaway

SOLICITOR FOR THE 1ST RESPONDENT: Sydney West Family Lawyers

SOLICITOR FOR THE 2ND RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tabbernor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

IT IS ORDERED

1. That all previous Orders in relation to the child X born … 2010 be discharged.

2. That the father have sole parental responsibility for X and that, in the exercise of that responsibility he shall consult with the mother in writing about any major long term issue, take her views into consideration, and inform the mother of the decision after it is made.

3. That X live with the father.

4. That X spend time with the mother:

   (a)From the date of the mother’s compliance with Order 5, for a period of six (6) months, on one (1) occasion each month supervised by C Contact Centre on a Saturday, for up to three (3) hours at a time as agreed or as can be facilitated.

   (b)From the expiration of Order 4(a) for a period of six (6) months, on one (1) occasion per fortnight supervised by C Contact Centre on a Saturday, for up to three (3) hours at a time as agreed or as can be facilitated.

   (c)From the expiration of Order 4(b) for a period of six (6) months, each alternate Sunday for a period of three (3) hours as agreed and in the absence of agreement from 12 noon to 3.00 pm on Sunday; 

   (d)From the expiration of Order 4(c) above, each alternate Sunday for a period of six (6) hours as agreed and in the absence of agreement from 10.00 am to 4.00 pm on Sunday;

5. That prior to spending time with X pursuant to Order 4, the mother shall complete Chain of Custody hair follicle testing and provide a clear result to the father as follows:

   (a)The testing is to be conducted by D Pathology and undertaken to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;

   (b)The hair drug test must screen for drugs of abuse including amphetamine-type substances and metabolites (including but not limited to methamphetamines), cannabis and metabolites, cocaine and metabolites and opioids and metabolites;

   (c)      The cost of the hair drug test is to be met by the mother.

6. That in the event that the mother does not comply with Order 5 or returns a positive result her time with X shall not commence.

7. That each of the father and the mother shall complete any intake procedure, interviews and documentation required by the contact centre from time to time.

8. That in the event that the mother fails to attend any occasion of supervised contact without providing reasonable notice, the operation of these Orders is suspended.

9. That the mother shall continue to provide hair follicle testing every three months in accordance with Order 5 until the expiration of Order 4(c).

10. That in the event that the mother returns a hair follicle test result that is positive for any drugs of abuse, the operation of these Orders is suspended.

11. That for the purposes of Orders 4(c) and 4(d) changeover shall occur at the C Contact Centre unless otherwise agreed in writing between the parties.

12. That X shall communicate with the mother on the telephone each Monday and Wednesday to commence between 4.00pm and 6.00pm as agreed between the parties, with the mother to call a phone number as nominated by the father and the father shall take all steps to ensure that X is available to receive the mother’s call. 

13. That the mother's time with X pursuant to these orders be co-ordinated with the mother’s time with Y so that all reasonable steps are taken to allow the mother to spend time with X and Y together on each alternate occasion, or as otherwise agreed.

14. That neither party shall denigrate the other parent or the other parent’s family or talk about his or her respective grievances or disappointment with these Orders in the presence or hearing of X and will use their best endeavours to ensure that no third party denigrates the other parent or the other parent’s family in the presence of X.

15. That the mother shall continue to attend upon her psychologist until such time as the psychologist recommends and follow all steps as recommended by the psychologist.

16. That each party shall keep the other informed as to any emergency medical treatment X requires, any serious medical problems or illnesses suffered by X whilst in their care and any medication that has been prescribed for X.

17. That the father shall authorise the school for the mother to receive copies of X’s school reports, school photos and other documents and information otherwise available to parents, and for the purposes of such authorisation this Order shall be sufficient.

18. That the parties have leave to provide a copy of the Family Reports of Ms E, and a copy of these reasons for judgment to the mother’s psychologist and to X’s psychologist.

19. That the mother is restrained from permitting or allowing X to be in the presence of any individual or in any location where she becomes aware that an individual is using illicit drugs or where there is illicit drugs around that location.

20. That all outstanding applications are dismissed.

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

IT IS REQUESTED

A.That the Independent Children’s Lawyer provide a copy of these Orders to Ms Neate.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4743 of 2014

Mr Tann

Applicant

And

Ms Malin 

1^st Respondent

And

Ms B Malin

2^nd Respondent

REASONS FOR JUDGMENT

1. X, who was born in 2010 is the child of Mr Tann (“the father”) and Ms Malin (“the mother”). Ms B Malin (“the second respondent”) is X’s maternal grandmother.

2. The parents separated in 2013 when X was three years old. X lived with her mother after the separation and spent time with the father. On 26 September 2014, the father did not return X to the mother, after an incident involving police which is referred to later in these reasons and X has since lived with the father.

3. The father has re-partnered with Ms K.

4. The mother is currently in a relationship with Mr J. They have no children.

5. On 12 November 2014 orders were made by consent which provided for X to live with the father and spend time with the mother.

6. The mother formed a relationship with Mr Neate in 2014 and they have a child, Y who was born in 2015. Shortly after Y’s birth, Mr Neate was incarcerated.  I have assumed that the relationship then came to an end. In July 2015 Y’s paternal grandmother assumed his care and, shortly after that, the mother was also incarcerated.

7. Competing applications in relation to the parenting of Y between the mother, Ms Neate, Mr Neate and Ms B Malin are listed for hearing immediately after these proceedings.

THE HEARING

1. In the proceedings now being determined, the father initially sought orders that he have the sole parental responsibility for X and that she spend time with her mother as agreed and no specified time with maternal grandmother.

2. The mother sought a graduating order that X spend time with her, initially for two hours each fortnight at a contact centre for a period of three months; then, subject to clear drug tests, each Saturday for four hours for a three month period; then for a further three months for eight hours on Sunday; then for overnight on alternate weekends and finally on alternate weekends from after school on Friday until 6 pm Sunday and half of all school holidays. She also sought equal shared parental responsibility.

3. The maternal grandmother sought orders that X spend time with her, in the event that she is not living with the mother. She also sought telephone contact with X.

4. At the conclusion of the evidence all of the parties changed their positions.

5. There was agreement that the father have sole parental responsibility for X, on the condition that the father consult with the mother and consider her position before he makes final decisions.

6. As between the father on the one hand, and the mother and the Independent Children’s Lawyer (“ICL”) on the other, there was broad agreement about the need for supervision in a contact centre for a period of time progressing to unsupervised time. They disagreed about the length of the supervision period, the rapidity of the progression and whether there should eventually be weekend time (not overnight).

7. The father also sought to put in place a series of protective measures around the supervised time which will be discussed later in these reasons.

8. The maternal grandmother sought specified time with X, such as two hours after school once each week or each fortnight and day time contact once a week in school holidays. She also wanted telephone contact with X.

9. That application was opposed by both the father and the ICL.

10. The father relied on two affidavits sworn by him, two affidavits sworn by the paternal grandmother and an affidavit of Ms K.

11. The mother relied two affidavits sworn by her and an affidavit of Mr J.

12. The maternal grandmother relied on two affidavits sworn by her.

13. An ICL was appointed to represent both X and Y.

14. The Court was assisted by a Family Report and an Addendum Report which were prepared in relation to both this matter and the associated matter of Y’s parenting.

15. There is also an issue about the time that X and Y should spend together. There are no orders in place for the two children to spend time together. Ultimately, this was addressed by an agreement that, after the first two occasions, the supervised contact between X and the mother should take place at the same time as the currently supervised contact between Y and the mother. in order for that to be achieved, there will have to be liaison with his grandmother, Ms Neate with whom he lives. 

16. In the hearing, the significant issues were the mother’s history of substance abuse, criminal behaviour and incarceration and the likelihood of her re-offending such that she would no longer be available for the children.

17. I note that the mother’s affidavit material did not address any of the significant issues that were considered during the hearing. Her affidavit evidence addressing her drug use was limited to the paragraphs set out below:

    I acknowledge and accept that I have had an issue with illicit drugs, mainly methamphetamines. My use of illicit drugs caused a lot of damage in my life. But more so, it has caused me to miss out on seeing my children grow up and on being a parent to my children. Despite this, I feel that the both of my children have a strong bond with me and that they would benefit from having an ongoing relationship with me.

    I have not used any illicit substance since October 2018. I have my relapse prevention plan that I developed during my time in the program which I have implemented. The plan sets out my triggers and addresses the strategies that I can if I am triggered.

    I have great support from my mother Ms B Malin and my sister Ms L Malin. I also have a very supportive partner, namely Mr J.

18. This Court would have had no knowledge of the mother’s history of drug use, her interactions with police or her relapse prevention plan were it not for the subpoenas issued by the ICL, and the cross-examination of the mother by counsel.

BACKGROUND

1. Given the areas of broad agreement between all the parties about the need for supervision and continued drug screening for the mother, it might be thought unnecessary to detail, as I now set out, the mother’s history of drug use and criminal behaviour. I do so because this information was not available to the Family Consultant who relied on what she was told in interviews and because the extent of the supervision is an issue to be determined. As will be seen, I proceed cautiously because of the evidence of the effect of the mother’s drug use and criminal behaviour on X, the mother and the mother’s ability to parent.

2. The mother has a lengthy criminal history or offences relating to drugs, both possession and supply and offences of dishonesty including stealing and credit card fraud. The records produced by the police contain numerous breaches by the mother of bail conditions.

3. The account which follows does not include each and every offence but only those which are more significant.

4. The father has also used “Ice”, at times with the mother. It was his unchallenged evidence that he used “Ice” for about four months and has not used since about 2013.

5. The mother was convicted of drink driving offences in 2010 and 2012.

6. The parents separated in 2013 and X lived primarily with the mother.

7. In 2014 the mother commenced a relationship with Mr Neate. She was aware that he was a drug user. They started living together in July 2014. The mother gave evidence that Mr Neate was violent towards her. In relation to the mother’s account of her time with Mr Neate, the Family Consultant reported:

   [The mother] made multiple serious allegations against Mr Neate regarding family violence. [The mother] alleged that, throughout their relationship, Mr Neate perpetrated significant verbal, psychological, physical and sexual violence against her. She alleged that Mr Neate formed a strong psychological hold over her, controlled her social participation and her finances. [The mother] alleged that Mr Neate rarely allowed her to leave the house unless she was to be accompanied by her mother, and that if she ever went out alone, upon her return, Mr Neate removed her clothing to inspect her genitals in order to check that she had not had sex with other people. She claimed that Mr Neate did this even when there were other people present in the house. [The mother] alleged that, when Mr Neate left the house, he would tie her to a chair, sometimes leaving her there for hours at a time. [The mother] alleged that Mr Neate frequently threatened to kill himself if she were to leave the relationship. She alleged that Mr Neate once told her that if she ever left him, he would send her head in the mail to her mother, Ms B Malin. She claimed that her mother received a message from Mr Neate threatening to do this. [The mother] alleged that she sustained frequent broken bones, including a broken nose and jaw, and that she was “always covered in bruises” due to Mr Neate’s physical abuse of her. [The mother] alleged that, on one occasion, Mr Neate tied her to a chair using cables and fractured her elbows with a hammer to prevent her using her mobile phone, and that on another occasion when she was pregnant with Y, Mr Neate kicked her from behind, fracturing her tailbone. [The mother] alleged that Mr Neate frequently “elbowed” her in the face, sometimes causing her to lose consciousness. She said, “[Mr Neate] loves to use his elbows”. She claimed that, approximately once per fortnight, Mr Neate tried to strangle her, often leaving fingerprint bruises on her neck. She claimed that Ms B Malin has photographs of some of her injuries. [The mother] alleged that Mr Neate routinely sexually assaulted her, and also forced her to stay locked in a bedroom whenever he had visitors. [The mother] claimed that, after Ms Neate assumed care of Y, in 2015, Mr Neate acquired increased power over her, and used this to his advantage in retaining of control over her.

8. X was present in the home for at least some of those events. She told the Family Consultant that she remembered her mother being tied to a chair (although she said it was the police who tied the mother up). The mother in cross-examination said that when X was living in the same house as her and Mr Neate, X was not allowed to come into the bedroom that the mother shared with Mr Neate because there were drugs in the bedroom.

9. Records produced by police in relation to an incident in September 2014 (when X was living with the mother and Mr Neate) state that the police attended on the property occupied by the mother and Mr Neate to execute a search warrant. The police seized a quantity of drugs, drug related items and prohibited weapons. Mr Neate, and another person present on the premises, were arrested. Mr Neate was charged with supplying a prohibited drug.

10. Police made a child at risk notification in relation to X.

11. The mother in cross-examination, said that when the police arrived at the house, she was allowed to leave with X and that she took X to the maternal grandmother’s home to be cared for and returned to the house she shared with Mr Neate.

12. X told the Family Consultant that she was present when the police came. The father told the Family Consultant that X had witnessed the mother being handcuffed. X, then aged four years, telephoned her paternal grandmother and asked her to “come and get me”. The paternal grandmother drove to the home and collected X and then rang the father who came to her home and took X to his home where she has since lived.

13. The father deposed that X said to him, shortly after they arrived at his home, that her mother and Mr Neate were in their bedroom smoking a “bong”. She described the bong as “You know, the drink bottle with the hose in it”. X said:

    Men with masks and guns knocked down the front door and they had mummy and [Mr Neate] and his friends lying on their tummies with their hands behind their backs.

14. The records produced by the police note an incident in October 2014 where the mother, the maternal grandmother and (I assume) Mr Neate went to the father’s house at 7 am. They demanded to see X, banging on the doors and windows. I have assumed that this is the incident of which X spoke to the Family Consultant.

15. In August 2015 the police records note that the mother and Mr Neate were apprehended on a highway near S Town. They were both subjected to a roadside drug test and both registered a positive reading for methamphetamine. The vehicle was searched and found it contained a quantity of drugs including 2500 pills of methamphetamine, and various other quantities of different drugs. The record notes:

    [Mr Neate] and [the mother] both had ready access to the substances, situated directly between them in the vehicle and freely admit ownership to all other paraphernalia secreted in the same position, however not the alleged prohibited drugs. … Police located glass smoking pipes, butane lighters and multiple empty and new plastic resealable bags secreted in the same location in the centre console as the prohibited drugs. [Mr Neate] readily admitted ownership of all these items. [Mr Neate] and [the mother] both possessed diaries, notebooks and pieces of paper containing drug ledges outlining a large number of persons owing them money for their supply of prohibited drugs. [Mr Neate] and [the mother] both possessed between them, 6 mobile phone immediately in their presence within the vehicle. Four of these phones were activated and receiving calls and SMS while under police observation. [The mother] has multiple SMS and facebook messages on her phone organising and carrying the supply of prohibited drugs in western Sydney. At least one of these SMS communications relate to [Mr Neate] and [the mother] meeting persons to retrieve quantities of money owed to them for supply of prohibited drugs in the preceding days. These transactions are outlined in the SMS to take place using the same vehicle.

    (As per the original)

1. The mother was indicted on one count of possessing ammunition and two counts of supplying drugs, one of an indictable quantity and one of a large commercial quantity. She was held in custody until late 2015 when she was granted bail.

2. In December 2016 the police records noted that the mother was being monitored for intelligence surrounding drug supply and was currently on bail for possession. The records note: “Recent searches on [the mother] and her vehicles indicates that she is still involved in the supply of drugs.”

3. On this occasion the mother was searched and no drugs were located although the Police located a number of small unused resealable bags and a set of scales.

4. The mother was released on that occasion and issued a future court attendance notice.

5. From 6 March 2017 until 18 May 2017 the mother was in prison having breached bail conditions.

6. In August 2017 she was convicted of stolen goods in custody and fined

7. In October 2017 the mother was stopped by a police random breath test unit. The subsequent testing proved positive for methamphetamines and she was convicted of driving having used illicit drugs and disqualified from driving..

8. In December 2017 she was convicted of obtaining a financial advantage by deception and fined.

9. In February 2018 she was charged, and later convicted, with resist arrest and driving whist disqualified and fined.

10. Records produced by the police note that on 28 February 2018 the mother was in a vehicle stopped by police. The vehicle was searched. The record notes:

    Located in the glove box was a small fabric bag. A further inspection of this bag revealed 7 clear resealable bags containing prohibited drugs. Consisting of 2 containing white powder, 2 with pills totalling three pills, 1 with brown block and 1 with a blue powder.

    (As per the original)

11. The police were unable to ascertain the owner of the substances.

12. Records produced by the police refer to an occasion on 31 March 2018 where the mother attempted to smuggle drugs and tobacco into the M Correctional Facility, I assume for Mr Neate. The records state:

    At 3.00 pm Corrective Services commenced a search of [the mother] whom was attempting to visit her ex partner, … During this search Corrective Services located two sealed bags. One bag contained two balloons of clear crystal substance weighing 0.3g and the other containing balloons of tobacco, easily recognisable due [to the] smell. Police were contacted and attended.

    (As per the original)

13. The mother was issued with future court attendance notice.

14. In April 2018, the mother and Mr J started living together. Mr J had convictions for possession of drugs and was a drug user.

15. In June 2018 the mother was found in possession of stolen credit cards  

16. In June 2018 she was convicted of suspected stolen goods in custody and fined.

17. In July 2018, the mother and Mr J moved into the granny flat of a house owned and occupied by the wife’s sister Ms L and her partner Mr M, their two children and a third child, the child of the mother’s sister Ms N, who was in their custody.

18. In July 2018, police executed a search warrant at those premises. In the granny flat, occupied by the mother and Mr J, the police found drug paraphernalia, methamphetamines and other substances and a knuckle duster and a quantity of stolen goods. The record notes that the property recovered belonged to “no less than twenty other victims” across the Suburb C and Sydney areas.

19. Mr J was charged with possessing drugs and a prohibited article.

20. The mother was charged, relevantly, with a number of offences:

    ·    Two counts of larceny;

    ·    Two counts of steal from dwelling house;

    ·    Two counts of entering a vehicle without permission;

    ·    One count of possessing a prohibited drug;

    ·    One count of dishonestly obtaining property by deception; and

    ·    One count of possessing a prohibited weapon.

21. Records produced by the NSW Police indicate that a search warrant was executed on the same home in October 2018. The mother and Mr J were still in occupation of the granny flat and the mother’s sister and her family occupied the main dwelling. At the time the search warrant was executed there was a child in the care of the mother. That child was not identified but it was not X. The record states:

    Whilst at the location, Police have observed the state of the residence to be deplorable for the [child at risk] to be living in. The following observations were made;-[the mother] and [her partner] are both confirmed users of methamphetamine. “Ice” has been located on this occasion and on 19/7/18 in the bedroom of the parents.-There are no suitable children’s bedrooms – there is one such bedroom with a child’s bed which contained rotting food and evidence of drug use however is overly cluttered with junk and no adequate hygiene exists. Therefore Police believe the child may either be sleeping in the bedroom with the parents and/or possibly in the loungeroom. The bedroom of the parents was in a disgusting state - the floor couldn’t be seen due to piles of rubbish/clothes and tools. The ensuite is unusable due to “construction” occurring – there was a wooden replica handgun located on the bedside table of the parents which looked extremely convincing – The kitchen of the residents is uninhabitable – nil food or drink items in the fridge besides rotting food, the benches covered in centimetres of grime and rotted food, the dishwasher appeared to be broken and had cutlery and plates/bowls with rotting food covered in mould still in it. Sink appeared to be unused. The kitchen also had stolen building materials loaded into it and it was difficult to traverse. The floor was filthy and there are great concerns for a child possibly even entering that area without footwear – the [child’s at risk] aunty, who was arrested on scene, has been known to supply drugs from the location, as well as to commit break and enters and be assisted by the parents of the [child at risk] to load the stolen property into the location and keep it there until sold – There are undesirable persons coming and going from the location at all times of the day and night, possibly seen by the child - The child at the time was dressed in a school uniform however the time Police attended was after 9:30am and the child appeared to not be going to school either way, as ……… advised she had only just woken up – The child appeared sad and partly distressed, would not look at Police and Police did not interact with [the child].-The backyard of the location appears to be the area for all of the stolen property including dangerous building materials, excessive amounts of power tools (in child’s reach) to be dumped.-In the backyard there is copious amounts of farm animals, dogs and birds which were deemed on the day by the RSPCA to be bordering on animal cruelty and extreme neglect which would not only be distressing for the [child at risk] but unhealthy and an environment unsuitable for children. Two of the birds were locked in a cage and had a piece of cardboard on top of them – one of the birds was dead and the second was dying. Two of the dogs were by the occupiers admission permanently caged as they did not like one of the other dogs. The dogs were in an extremely small cage, undernourished and sleeping/eating and going to the toilet in this cage with no freedom. This would be extremely distressing for the child. As noted, Police have significant concerns for any child being at, or residing at this residence. Police are aware that [the Department of Communities & Justice] have taken [the mother’s] children from her in the past where she now only has 1 hour visitation a week. Police are not entirely sure of the residential arrangements of the child at risk and believe that the mother of … and [the mother] may sometimes look after the [child at risk]. [The maternal grandmother] attended at the scene to pick the [child at risk] up during the warrant and was aggressive and very off-side with Police, advising Police they were corrupt and targeting her daughters. Therefore, Police were unable to address their concerns with her directly as a possible carer. Police have great concerns for the [child at risk].

    (As per the original)

22. In cross-examination the mother said that she was not aware that there was a child in the house when the search warrant was executed.

23. Neither the mother nor the maternal grandmother gave evidence about who the child was or how it came about that the child was left in the house in the absence of the parents. I have assumed that the child was either the daughter of the mother’s sister Ms L or the child who was in her custody. In either case, she was the granddaughter of the maternal grandmother.

24. The mother was held in custody from 17 October 2018 until 15 March 2019 when she was released on bail to the R Rehabilitation facility. She remained in the R facility until 14 February 2020 when she was again before the Court. The outstanding charges were finalised by way of an Intensive Corrective Order and the mother released on parole until February 2021.

25. Mr J was also charged and held in custody for five months. He was remanded to the drug court and completed a Community Correction Order in January 2020.

26. The mother and Mr J moved into rented premises together when she was released from the R facility.

27. X has not met Mr J although she has twice spoken to him on the telephone.

28. After the interviews for the Family Report, the father took X to see her mother at the R facility. Those are the only two occasions on which X has seen her mother since October 2018.

29. After the mother was released from the R facility in February 2020, she started ringing X twice each week. Those calls are made to the father’s mobile phone or, if X is being cared for by her paternal grandmother after school, to her phone.

30. On occasions, X refuses to take the calls. On other occasions, she terminates the calls. Both the father and the paternal grandmother gave evidence that X talks to her mother using the speaker phone and often chooses to do so in their company although she can take the calls in private if she wants to.

THE FAMILY REPORT

1. The Family Consultant interviewed each of the parents. Of her interview with the father, she stated:

   He said that his relationship with [the mother] was a happy one prior to the birth of X, but claimed that [the mother] struggled to cope with the challenges of being a new mother, and soon began prioritising her social life over X. He said, “[she] was disinterested from day one”. He said that his relationship with [the mother] soon began to deteriorate, which he said he found difficult to cope with. [The father] said that he and [the mother] began experimenting with methamphetamine (“Ice”) when X was aged “about two or three years” and that, for him, this was a way of coping with the problems in their relationship. He said that, at that time, [the mother] began spending days at a time away from the family home, sometimes telling him that she was working. [The father] said that he used  “Ice” for “about four months” before he realised that he was behaving in self-destructive ways and sought assistance from his parents to cease using “Ice” and concentrate on X. Soon after this, [the father] and [the mother] separated.

2. The father described the circumstances in which X came into his care:

   About his decision to assume care of X in 2014, [the father] said that, at that time, he believed he had no other option to keep X safe. He said that he became aware of a police raid on the home of [the mother] and Mr Neate when X, then aged four, telephoned his mother, [the paternal grandmother], and asked her to “come and get me”. He said that it later transpired that X had been present during the police raid, and witnessed [the mother] and the other adults present in the home being hand-cuffed by heavily-armed police. [The father] said that, on that day, [the paternal grandmother] contacted him by telephone to let him know what was happening, and that he immediately left work and collected X from her. He said that this incident made it clear to him that X needed to remain in his sole care. He said, “Enough was enough”. 

3. The father told the Family Consultant about X’s relationship with her mother:

   [The father] said that X has “spent her whole life looking for her mother” and that X sometimes calls Ms K “Mum”. He said that X holds a lot of anger toward her mother, which he said can be triggered when [the mother] does not facilitate telephone contact with X. [The father] said that, since [the mother] was released from custody in March 2019, she has telephone contact with X each week. He said, however, that [the mother] rarely telephones X on the arranged time or day, which he said causes some considerable stress for X.

4. In relation to her interview with the mother, the Family Consultant reported:

   [The mother] described a troubled and chaotic lifestyle leading up to her first period of incarceration in 2015, including the use of methamphetamine by her and Mr Neate, unstable housing and family violence, which is discussed later in this report. [The mother] said that she believes she has reached a point where she will be able to abstain from using illicit substances. [The mother] said that she has been residing in the R facility, an addiction treatment service, for about four and a half months, and that the support workers there are pleased with her progress. Prior to entering the R facility in March 2019, [the mother] had been in custody since October 2018. [The mother] said that she is scheduled to complete the program at the R facility in October 2019. She said that, after she completes the program, she plans to reside with Mr J in the Suburb O area in order to be close to X’s school. [The mother] expressed confidence and determination that she will never be incarcerated again.

5. The mother told the Family Consultant that the father is “a great father, and looks after her well. X likes him and I would never take her away from him”.

6. The Family Consultant interviewed Ms K and reported:

   Ms K said that X experiences a range of strong emotions in relation to being separated from her mother. She said that X experiences particular emotional distress prior to, and after, any contact with [the mother]. She said that, prior to scheduled telephone contact with [the mother], X becomes anxious and worried that [the mother] will not remember to call her, as this has happened frequently in the past. Ms K said that X often has angry outbursts in relation to feeling “let down” by [the mother], and that she (Ms K) is often the recipient of X’s anger as she is one of X’s primary carers. She said, “I sometimes take the heat, but I just wait for her to calm down and then let her talk”. Ms K said that X has, at times, pushed her, hit her and slammed doors when she is upset with [the mother], and that these behaviours have escalated since [the mother] returned to custody again in October 2018. Ms K said that she recognises the importance of X retaining a relationship with her mother, but that she has no confidence that X would be safe in the care of [the mother].

7. Of her interview with Mr J, the Family Consultant reported:

   Mr J was not asked to attend the interviews, but was in attendance to support [the mother]. Mr J described [the mother] as a “great mother” and said that the family law proceedings have been “unfair to her”.

   Mr J spoke about his own history of illegal drug use and criminal justice involvement. He said that, after a few periods of incarceration, he had a “wake up call” and has since abstained from illegal drug use. He said that, since January 2019, he has been participating in the Drug Court program.

8. X was nine when interviewed. The Family Consultant reported that she was bright, outgoing and articulate and conducted herself “with remarkable confidence and candour throughout the day”:

   X appeared keen to speak to the Family Consultant, and was forthright in her discussion of her mother. X expressed strong concerns about her safety should she spend any time in [the mother’s] care. She said, “I’m cranky with my Mum! She told me on the phone that she was going to hug me today and I don’t want to hug her!” X recalled several significant events in her life as “scary”. She said that her most significant memory of [the mother] is from when she (X) was about four years old. She said, “The police came because Mum and [Mr Neate] were smoking drugs…”

   …

   X recalled a time when her mother brought a friend to the [father’s] household. She said, “Mummy’s friend was banging on the door, and Mummy was yelling. I’m worried that Mum will come back again and take me”. X said that [the mother] has consistently lied to her or disappointed her. She said, “Mum said she wouldn’t go back to jail, but she did!” X estimated that, prior to the day of the Family Report interviews, she had not seen her mother for 10 months. She said, “I counted the months in my dream last night, and it’s 10”.

   X described her father as “fun” and said, “He is the best Dad! I love Daddy! I can’t leave him alone”. X said that Ms K is “absolutely the nicest” and spoke enthusiastically of playing games with [the father] and Ms K in the paternal home.

   …

   X said that the Judge should know that she wants to live with her father. She said, “If I go back to live with Mum I’d be scared of police always coming into my life”.

   X and the Family Consultant discussed in detail the possibility of X spending some time with [the mother] for formal observations, and X appeared to have some mixed emotions about this. She asked the Family Consultant to monitor her comfort levels during the observation, and to end it prematurely if she appeared worried or upset. She said, “Okay, if I look happy, let it go, but if I have my head down like this, then stop it”.

9. Of her observations of X with family members, the Family Consultant reported:

   X was observed throughout the day to demonstrate warmth and affection toward [the father], Ms K and [the paternal grandmother], and appears to view them all as parental figures.

   Despite her negative comments about [the mother] during interview, X was observed to smile excitedly at her mother in the Court waiting area. She did not allow [the mother] to hug her at that time, but after the formal observations of X with [the mother], X was observed to hug her mother enthusiastically.

   X spoke very positively about [the paternal grandparents], who she referred to as “Nan and Pop” and identified that they play a significant role in her life.

10. X told the Family Consultant that she enjoys school and has lots of friends.

11. As to her observation of X with the mother, the Family Consultant reported:

    X was formally observed with her mother. [The mother] brought a craft activity to the assessment, a wooden jewellery box and materials to decorate it, in which X appeared to take great delight. The two exchanged smiles and made some minimal eye contact at the beginning of the observation. Their conversation was limited at first. X insisted that the Family Consultant sit in close proximity to her and her mother, and was skilful in utilising the Family Consultant’s presence for her own support and reassurance. As X and [the mother] decorated the jewellery box, their verbal exchanges took on increased warmth and familiarity. The two cooperated in the task and engaged in some reciprocal conversation, although X at times used quite a challenging tone when speaking to [the mother].  After about ten minutes, X leaned over and whispered to the Family Consultant, “It’s ok, I’m having fun”. Eventually, X asked the Family Consultant to allow her a few minutes to be alone with [the mother], and appeared noticeably more relaxed and confident than at the start of the formal observation. She asked the Family Consultant to check on her “in five minutes”. When the Family Consultant returned, X asked for “another five minutes” and repeated the request once more after that. X appeared to be quite elated after the observation. She later told the Family Consultant that the visit with [the mother] was positive. She said, “It was amazing! The first time ever!”

1. The Family Consultant observed X with the paternal family and reported:

   X was then observed with [the father], Ms K and [the paternal grandmother]. X approached her father, Ms K and [the paternal grandmother] enthusiastically in the Court waiting area and hugged them, appearing excited about the observation. X initially tried to negotiate with the Family Consultant about conducting three separate observations, one with [the father] and one each with Ms K and [the paternal grandmother]. Time constraints, however, did not allow for this. The four played a very animated game of Uno (a card game), laughing and teasing each other throughout. The observation was characterised by warmth and affection between the participants, and appeared to be a familiar dynamic. X appeared to enjoy the positive attention of the adults, and appeared happy and content.

2. The Family Consultant’s concerns about the mother’s proposals were stated:

   [The mother’s] future parenting capacity will very much depend upon her ability to abstain from illegal drug use and the attendant criminal justice involvement, a factor of which [the mother] appears to be well aware. It is positive that, currently, [the mother] appears to be drug-free, and would appear to be making good progress at the R facility. Having said that, however, [the mother] is still in the early stages of recovery from illegal drug use, and her parenting capacity remains untested given that she currently resides in an addiction treatment unit, and has not had either child in her care for several years. It is clear to the Family Consultant that [the mother] has very positive intentions regarding her future parenting. It is quite possible for [the mother] to make a full recovery from addiction, and to develop good parenting skills and to improve her general overall functioning. She has not, however, yet had the opportunity to demonstrate this. It is encouraging to note that [the mother] seems to be somewhat cognitive of the possible challenges ahead should Y and X be asked to navigate new care arrangements. It is less clear, however, whether [the mother] has a full understanding of the effects this may have on the children’s emotional wellbeing, or of the details of their respective individual emotional and developmental needs. A further impediment to the mother’s] future parenting capacity may be any trauma she has sustained through her alleged experience of Mr Neate as a violent and controlling partner, and whether or not she is able to make a full recovery from this. The mother’s] alleged experience of family violence may have been compounded by frequent periods of incarceration. The experience of incarceration in itself is usually an adverse experience for people, and often compromises an individual’s mental and physical health, and executive functioning. It is suggested that trauma counselling may be beneficial for [the mother].

   A further concern of the Family Consultant in relation to [the mother] is the obvious ill feeling she still holds toward [the father] and Ms Neate. If [the mother] is ever to play a significant role in the care of X and Y, she will need to form an effective co- parenting relationship with [the father] and possibly with Ms Neate. It is very disturbing and quite unthinkable that [the mother] considers that [the father] simply “overreacted” to the police raid on her home in 2014. [The mother] could not seem to fathom that [the father] was acting protectively by retaining X in his care at that time. It may be that, at that time, [the mother] was accustomed to the involvement in her life of law enforcement agents, and has therefore minimised the impact this would have had on X. [The mother’s] insight into X’s emotional wellbeing at that time would have almost certainly been impaired due to methamphetamine use. Further to this, if even a fraction of [the mother’s] allegations regarding Mr Neate and family violence are true, her parenting capacity would certainly have been seriously diminished at that time. The nature of family violence dynamics means that victims often struggle to remain attuned to the care and emotional needs of their children. If Mr Neate was perpetrating violence against [the mother] at that time, this would also undoubtedly have harmed X’s relationship with her mother. In addition, if [the mother] was regularly using methamphetamine at that time, it is also possible that she simply does not recall the police raid as frightening or out of the ordinary. Having said that, it is disappointing that [the mother] does not appear to have considered, even in hindsight, that the police raid would have probably been terrifying for a young child. The fact that X recalls the police raid in vivid detail, despite having been only four years old at the time, tells us how significant and adverse an event this was for X.

3. In relation to the father, the Family Consultant stated:

   [The father’s] level of care of X, and the knowledge and insight into her emotional and behavioural needs demonstrated by [the father] and Ms K, is assessed as excellent. It is the opinion of the Family Consultant that [the father] genuinely believed he should remove X from the care of [the mother] in September 2014, and that this was the right course of action to take. [The father] does not, however, seem inclined to believe that it is in X’s best interests to have a relationship with her mother, although he agrees with this in principle. Given [the father’s] experience and knowledge of [the mother’s] past use of illegal substances and subsequent criminal involvement, as well as what he views as [the mother’s] previous disinterest in X, it is understandable that [the father] would have reservations about X resuming a relationship with her mother. [The father] has no experience of observing [the mother] as an adequate parent, and he will need to see evidence of this if he is to have any confidence about X spending time with [the mother].

4. The Family Consultant concluded:

   If [the mother] completes the rehabilitation program at the R facility, abstains from further illegal substance misuse and avoids further periods of incarceration, it may be appropriate for X to commence spending regular time with her mother. [The mother] will also need to show some capacity to reflect on X’s perspective of her parenting arrangements, work cooperatively with [the father] and to follow his directions regarding X’s emotional and developmental needs. Of primary concern to the Family Consultant if X commences spending time with [the mother], is that [the mother] may again be experienced by X as unreliable. This would certainly result in emotional upheaval for X, who appears to be conflicted about [the mother]. X seems to want a relationship with [the mother] but has no trust in her and is very angry that she is unable to trust her mother. A further concern if X were to spend time with [the mother], is that X may possibly be exposed to any conflict that exists in the extended family networks, namely within the [maternal] family. X’s current parenting arrangement would appear to shield her from this.

5. She suggested that:

   …any time X or Y spend with [the mother] is conditional upon [the mother’s] abstinence from illegal substance misuse, and should begin with short periods of time, possibly one or two hours at a time, with a view to gradually extending it. It is suggested that any time X and Y spend with [the mother], initially occur individually until both children are re-familiarised with their mother. One option for X and Y would be for both children to begin spending regular time together with [the mother] in a supervised contact centre. This would enable X and Y to spend time together while [the mother] builds on her existing parenting capacity with support from staff at the centre. This would probably give [the father] … some peace of mind until [he] can be confident in [the mother’s] capacity as a parent. Any future parenting arrangements for X and/or Y will also be contingent upon how the supervised time goes.

6. Because the maternal grandparents did not attend the interviews for the family report, the Family Consultant interviewed them at a later time and prepared an addendum report.

7. They told the Family Consultant that they have the care of the two children of their daughter Ms N, P aged three and Q aged almost four. (Ms N’s older daughter is in the care of the mother’s sister Ms L). Those children were placed with them by the Department of Communities and Justice (“DCJ”). They receive regular home visits in relation to the children from officers of DCJ.

8. They have not seen X since a chance encounter in 2018.

9. They acknowledged that X is safe and well cared for in the father’s household and that she has a positive relationship with her paternal family.

10. The maternal grandmother told the Family Consultant that she only seeks time with X if X is not spending time with her mother. In that event, she would seek time on special occasions and in school holidays.

CONSIDERATION

1. It is not in dispute that X will live with her father. The issue to be determined is in what manner and with what frequency she should spend time with her mother and her maternal grandmother.

2. That decision is to be made bearing in mind the primary considerations, balancing the benefit to X of having a meaningful relationship with both of her parents with the need to protect her from physical or psychological harm caused by abuse, neglect or family violence.

3. It is clear from X’s interview with the Family Consultant, and the affidavits of the paternal family, that she wants to spend time with her mother but that she fears that her mother will let her down again and relapse into drug use.

4. The mother has been jailed on four occasions in the last six years.

5. The father deposed that he has heard X, during phone calls, say to her mother such things as “why are you in jail”; “what have you done now” and “what did you do”. The mother conceded that X often speaks to her aggressively and angrily and sometimes refuses to take her calls. Ms K deposed that X says such things as, “I’m angry at mum for letting me down”; “I’m angry at my mum for being in jail” and “I don’t know why mum has done this to me. What have I done wrong?”

6. Ms K deposed that, since February 2020, after the phone calls to her mother, she has observed X to be upset and crying. Ms K has encouraged X to write to her mother. She deposed that, on a number of occasions, X has said “I am too angry at her for what she has done to me so I’m not ready to send the letter”.

7. I accept that X has a close, secure and loving relationship with her father and a close attachment to Ms K and her paternal grandparents.

8. Whilst I accept that X loves her mother, she has experienced her as unreliable and inconsistent and has no confidence in her mother’s ability to be consistently available to her. X does not regard her mother as a safe person.

9. The father has, since at least September 2014, been the parent who has been responsible for X’s day to day care, with the assistance of Ms K and his parents, particularly the paternal grandmother.

10. The father has also been solely responsible to provide financially for X.

11. The mother has not been available to care for X because of her drug use and other criminal behaviours. Since September 2014, she has not spent time with X unsupervised. After orders were made for supervised time and for the mother to have random urinalysis testing at the request of the ICL, the mother conceded that she did not always comply with the request for testing and the paternal grandmother, who supervised the contact, deposed that the mother was usually late, often failed to turn up and often cancelled on short notice. The paternal grandmother deposed that X regularly said “why does she keep cancelling on me” or “why is she always so late?”

12. When the mother was in jail, her communication with X was irregular and infrequent. 

13. Whilst I accept that the mother has done well at the R facility and that she is committed to remaining drug free, these are the early days of her recovery and she has a long history of drug use.

14. When she was using drugs, and living with people who used drugs, she was unable to protect X or to keep her safe.

15. I do not accept that the mother truly appreciates and understands the devastating effect that her behaviour has had on X or the extent to which X was at risk in her care.

16. The mother told the Family Consultant that the father had “over-reacted” to the events in September 2014 and “used it as an excuse” to retain X and that he was “probably jealous” of Mr Neate. In cross-examination, the mother said that the Family Consultant had misunderstood her and that she was relating her feelings in 2014, not at the time of the interview. I do not accept that evidence.  In a document prepared by the R facility headed “Treatment Planning Group Report for [the mother]” prepared in April 2019 the mother is recorded as having made a similar statement.

17. Despite the appalling circumstances which were revealed by the police intervention at the mother’s home on 17 October 2018, and the fact that she was facing a term of imprisonment, the mother told the Family Consultant that Y was not at risk in her care and that she was [providing a “good level of care” for Y. In cross-examination, the mother conceded that she had used Ice while pregnant with Y. To the Family Consultant, she said that Ms Neate had made a decision to “steal” Y.

18. The Family Consultant in cross-examination described the impact on X of witnessing the violence between the mother and Mr Neate, and the police raid on the house where she lived as “horrendous”.

19. These matters give rise to serious concerns about the mother’s understanding of appropriate parenting and her ability to keep the children safe. I note that, at the time of the interviews with the Family Consultant, the mother had been in jail since October 2017 and in the rehabilitation program at the R facility since March 2018 and, presumably, had not used drugs for about eight months.  

20. The mother, at the commencement of submissions, conceded that professional supervision was a necessary safeguard in her re-establishing her relationship with X.

21. The mother is presently having supervised visits with Y at the contact centre once each fortnight.

22. The ICL proposed, and the mother agreed, that the progression should be:

    ·    Visits once each month for four months, supervised;

    ·    Fortnightly supervised visits for a further four months at the same time as the visits with Y;

    ·    Unsupervised time for six months for three hours on each Saturday;

    ·    For a further six months, the time to be extended to six hours on Saturday;

    ·    Then each alternate weekend on Saturday and Sunday but not overnight.

23. The ICL’s position was that the mother should have hair follicle testing every three months, the first test to be performed before the supervised contact begins and continuing during the period of unsupervised contact. It was the position of the ICL that in the event that the mother returned a positive test result, that she failed to undertake a test or that she missed a supervised visit without proper notice, all contact should be suspended.

24. On behalf of the mother it was submitted that, if she failed to submit a test or returned a positive result, the contact should revert to supervised time in the contact centre or be suspended only until she returns a negative test.

25. The father’s position was a more cautious one. He proposed:

    ·    Monthly supervised visits for six months;

    ·    Fortnightly supervised visits for six months;

    ·    Three hours on alternate Sundays for a further six months, unsupervised;

    ·    Then each alternate Sunday for six hours.

26. The issues then became:

    ·    How frequently should the visits occur?

    ·    For how long should the visits remain professionally supervised?

    ·    When should the contact move to unsupervised contact?

    ·    How should the unsupervised contact proceed?

    ·    In what circumstances should the contact be terminated?

    ·    Should there be supervised changeovers once unsupervised time starts?

27. The Family Consultant, in cross-examination, said that, in her opinion, supervised contact in a centre for a year was too long although she was not able to say what shorter period would be appropriate.

28. The Family Consultant said that it was impossible to predict what might happen once the supervised contact starts except that it would be difficult for X and that she would need the support of a psychologist throughout the process. She was unable to say whether the relationship between X and the mother would ever be repaired or that X would ever regard her mother as a person with whom she is safe.

29. The Family Consultant said that she could not predict whether it would ever be possible to proceed to unsupervised time and that this would depend to a large degree on the mother’s being able to assure X that she has not relapsed into drug use and that she was capable to being reliably present for X.

30. I accept that there are three possible scenarios:

    ·    The mother will remain drug free, X will become confident of her mother’s reliability and the relationship will progress so that unsupervised time is appropriate.

    ·    The mother will remain drug free but will be unable to convince X to trust her and the relationship will not progress sufficiently that X feels safe in an unsupervised context.

    ·    The mother will relapse into drug use and the supervised contact will cease.

31. Which of these is more likely is impossible to predict.

32. None of the parties wants to return to the court and it is my task to craft a regime of time that gives the first scenario the best chance.

33. I consider that, having regard to past events, the father’s caution is appropriate. Whilst I accept that the Family Consultant expressed her view that a year of supervised contact may be too long, she was also unable to suggest any shorter period as being more appropriate. Further, the Family Consultant had been unaware that the mother had been diagnosed with Post Traumatic Stress Disorder (“PTSD”) while at the R facility. Contrary to the mother’s evidence that she had sought help from a psychologist in relation to the PTSD some two months ago and had four sessions of treatment, the records of the psychologist, when produced, made no mention of PTSD and showed only two visits, the first on 12 August 2020. The Family Consultant said, when apprised of that information in cross-examination, that the diagnosis added a further layer of complication to the mother’s ability to mend her relationship with X.

34. Ultimately, I too, prefer to proceed with extreme caution and prefer the father’s proposal.

35. The father sought a suite of further orders which were intended to address what might happen if the supervised contact is problematic for X. Those orders are set out below:

    ·    That the Father shall within 21 days of the date of these Orders obtain a referral from a GP for the child to attend upon a child psychologist to assist her in the implementation of these Orders, the costs of the attendance at the child psychologist is to be met equally by the parties.

    ·    That the parties have leave to provide a copy of the Family Reports of Ms E to the child’s psychologist.

    ·    In the event that the Mother fails to attend to spend time with X at the C Contact Centre in accordance with Orders 5.1 and 5.2 and she does not cancel the visit at least 24 hours before the time is to take place then the time in Order 5 is to be suspended and thereafter the child shall be referred to see her psychologist forthwith and the parties shall take the advice of the psychologist as to the reimplementation of the time.

    ·    In the event that X during the time she is spending with the Mother is distressed to the extent that either or both of the parties assess that she cannot continue spending time with the Mother on that occasion, then that occasion shall be terminated or suspended and thereafter the child shall be referred to see her psychologist forthwith and the parties shall take the advice of the psychologist as to the reimplementation of the time.

    ·    In the event that the parties are unable to agree after taking advice from the child’s psychologist to the reimplementation of the time, where it has suspended or terminated in accordance with these Orders … then the child shall live with Father at all times that she would otherwise be spending time with the Mother in accordance with these Orders.

1. Those orders were opposed by both the mother and the ICL.

2. The purpose of supervision in a contact centre is that the expertise of the supervisors is available to guide the parents if there are difficulties for X. If X is unduly upset, or refuses to see her mother, then it is likely that the supervisors will stop the contact. Whether the supervisors are prepared then to attempt a resumption of contact is entirely a matter for their expertise.

3. I accept the evidence of the Family Consultant that, in this regard, the supervisors are the experts and the parents should be guided by them.

4. The ICL’s position in relation to the termination of contact was stark and rightly described as “one strike and out”. In support of that position, it was submitted on behalf of the ICL that X’s lack of confidence in, and distrust of, her mother, because of the mother’s behaviours in the past, means that any semblance of unreliability on the part of the mother will fatally interfere with the fragile process of rebuilding the relationship. The ICL submitted that X, who has lived with uncertainty in relation to her mother’s presentation and availability for the past six years, should not be subjected to any further uncertainty. Either the mother can remain drug free and have a relationship with X or she cannot. If she cannot, then the child should not be required, by orders of the Court, to give her a second chance.

5. Of course, ultimately, the parties may take a different view and, between them, with the assistance of X’s psychologist, try again, but I do not propose to mandate that they do.

6. The final matter of controversy is that of changeovers once the contact progresses to unsupervised contact.

7. The father, supported by the ICL, proposes changeover in a contact centre. The mother opposes that proposal and suggest that she collect X from the father and that he collect her at the end of the period.

8. I prefer the father’s proposal.

9. Ms K deposed that she is afraid of the mother who has, in the past, sent her threatening and abusive text messages including a threat to break her legs. The mother in cross-examination said that she did not send that message but that it was sent by a friend of hers.

10. Even if the contact has progressed to unsupervised time, X may have some residual doubts and difficulties about spending time with her mother and the expertise of the supervisors will be available to her. Additionally, there has, in the past, been conflict between the maternal and paternal families which, if repeated in the presence of X, might be harmful to her confidence in her mother.

THE APPLICATION OF THE MATERNAL GRANDMOTHER

1. The maternal grandmother, before the start of submissions, said that she wanted to spend time with X for a couple of hours after school once a fortnight and for a day each week in the school holidays. She also wanted X to participate in family Christmases and birthdays.

2. Both the father and the ICL opposed that proposal.

3. X has never met the two grandchildren who live with the maternal grandparents. She has not spent time with, or had any contact with, the three older cousins since 2014.

4. It is a matter of some concern that the maternal grandmother told the Family Consultant that she was confused about why Y was removed from the mother’s care as, she said, Y was safe in the care of his mother.

5. Further, the involvement of the maternal grandmother in the incident in October 2017, when one of her granddaughters was left in the house raided by the police, presumably in the care of the mother, raises more concerns. The maternal grandmother gave no evidence about this incident and expressed no concerns about the state of the premises, as observed by the police, in which her grandchildren were living, or the fact that drugs and stolen goods were clearly present.

6. The Family Consultant reported:

   [The maternal grandparents] also raised concerns about [the father], and alleged that [the father] has a criminal history, and has previously been charged with the sale of illegal drugs and fraud. [The maternal grandfather] claimed that [the father] has connections within the policing sector, and that he has historically hosted gambling events for police officers in his home. He further claimed that, because of his connections to policing, none of [the father’s] criminal history is on record. [The maternal grandmother] claimed that [the father’s], X’s paternal grandmother, Ms H and her partner, Mr H, have colluded to conceal [the father’s] past from the Court. [The maternal grandparents], however, that they are confident that X is safe and well cared for in the paternal household and they acknowledged that X has a positive relationship with [the father].

7. I note that the ICL issued a subpoena for the father’s police records and the documents did not support the allegations of the maternal grandparents.

8. The Family Consultant reported that the father told her:

   …that any contact he has had with the [maternal family] of recent years has been characterised by conflict and abuse on their part. He said that the [maternal] family are highly dysfunctional, often in conflict with each other and those around them, and that many of the [maternal] family members have criminal justice involvement and/or histories of violence and illegal drug use. He claimed that, as recently as a Court event on 16 April 2019, [the maternal grandparents] provoked an altercation with him directly outside the doors of the Court room, and that they “yelled” at him, “You’re in it for the money”, and “You’ll get yours”. He also claimed that, in the past, [the maternal grandmother] has called him, “a fucking grub”. [The father] said that, as a consequence of these kinds of difficulties, X is fearful of the [maternal grandparents]. He said that, on the odd occasion when he and X encounter members of the [maternal] family in the community, X holds his hand very tightly, and that [the maternal grandmother] often “death stares” him. [The father] further claimed that, in 2015 or 2016, his home was broken into, and that he suspects members of the Malin family were responsible for the break in.

9. The Family Consultant reported that the maternal grandparents both strongly denied the father’s evidence that X is fearful of them.

10. Ms K deposed that X refers to her maternal grandmother as “Nanny” and, on occasions when the maternal grandmother telephones, X “would yell “do not answer” or hang up the phone herself.”

11. Ms K deposed that, on many occasions when the mother has spoken to X on the telephone, the mother has asked X if she wants to talk to Nanny, X has refused and she has said “I’m only talking to you if nanny isn’t there.”

12. The Family Consultant did not observe X with the maternal grandparents.

13. X has had no meaningful relationship with the maternal grandparents since 2014. It is unlikely that she has, at the present time, any more trust in them than she has in her mother and she has no real relationship with them at all.

14. I accept the submission of the ICL that the primary focus for X at the present time is to rebuild her relationship with her mother. That process will be stressful and challenging for X and cannot be made more difficult by introducing another relationship to be rebuilt at the same time.

15. No orders will be made for X to have contact with the maternal grandmother.

16. If the contact between X and her mother progresses to unsupervised contact, then the mother will no doubt choose to include her extended family in the contact. That is the appropriate time for X to be re-introduced to the extended maternal family. 

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29  September 2020.

Associate: 

Date:  29/09/2020