Thorn and Whitehead and Ors

[2015] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORN & WHITEHEAD & ORS [2015] FCCA 2551

Catchwords:
FAMILY LAW – What parenting orders are in the best interests of children where they are young and have special needs – where the mother has chronic mental health issues – where the children have lived for most of their lives in the maternal grandparents home – where the maternal grandmother has been affected by mental health issues – where the maternal grandparents are now separated – where the fathers have had little involvement with their child – where the children have by interim orders been in the care of the maternal grandfather – whether the children should live with the maternal grandfather and he should have sole responsibility for the children – what time should the mother spend with the children.

Legislation:

Family Law Act 1975, ss.91B, 11F, 60B, 60CA, 65AA, 60CC, 60B(1), 60B(2), 60B(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 60CC(1), 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(l)

Mazorski & Allbright [2007] FamCA 520

Tait & Densmore [2007] FamCA 1383
Collu & Rinaldo [2010] FamCAFC 53
Champness & Hanson [2009] FamCAFC 96

Applicant: MS THORN

First Respondent: MR WHITEHEAD

Second Respondent: MR THORN

Third Respondent: MR INGHAM

File Number: DGC 3847 of 2012

Judgment of: Judge Jones

Hearing date: 27 July 2015

Date of Last Submission: 30 July 2015

Delivered at: Dandenong

Delivered on: 18 September 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the First Respondent: Self Represented

Solicitors for the Second Respondent: Self Represented

Solicitors for the Third Self Represented Respondent: Ms Glaister

Solicitors for the Independent Children's Lawyer: Robert Halliday

ORDERS

1. The children X (“X”) born (omitted) 2007 and Y (“Y”) born (omitted) 2010 (“the children”) live with the maternal grandfather.

2. The maternal grandfather shall have sole parental responsibility for the children.

3. The maternal grandfather shall, within 48 hours of having made any decision about long term issues relating to the children, inform the mother of the decision and his reasons for that decision.

4. The mother shall spend time and communicate with the children as follows:

   During the school term

   (a)on the first weekend of each month from Friday after school to 5.00pm Sunday;

   (b)on the second and fourth weekends of each month from Saturday 5.00pm until Sunday 5.00pm;

   (c)provided the mother has spent time with the children in accordance with order 4(a) and (b) and has complied with order 6(a), for a period of six monthly cycles, her time with the children on the first weekend of each month shall commence from Thursday after school and end on Monday morning before school and, where Monday is a public holiday, until Tuesday morning before school.

   During school holidays

   (d)the mother’s time with the children in accordance with order 4(a) (b) and (c) be suspended during school holidays and she shall spend time with the children as follows:

   (i)during the school term holidays, for one week at a time to be agreed or in default of agreement commencing from the last day of the school term to 5.00pm of the second Saturday in the school term holiday;

   (ii)during the long school summer holiday, for two weeks at a time to be agreed or in default of agreement commencing the third Monday at 10.00am of the holiday and ending on the fifth Monday at 5.00pm.

   Special occasions

   (e)from 5.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;

   (f)from 5.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years;

   (g)for a minimum of three hours on the children’s and the mother’s birthdays by agreement and in default of agreement from 4.00pm to 7.00pm;

   (h)if Mother’s Day falls during a time the children are not spending time with their mother then, a minimum of four hours by agreement and in default of agreement from 11.00am to 3.00pm;

   (i)such other times as agreed.

5. The Maternal Grandfather shall continue to engage with support services to assist in his care the children.

6. (a)The mother shall maintain her engagement with the (omitted) Mental Health Service and her treating medical practitioners and shall comply with all recommendations of her treating medical practitioners.

   (b)Where the mother fails to comply with order 6(a), her time with the children shall be suspended and shall be resumed after she has re-engaged with the support services and the (omitted) Mental Health Service for a period of three weeks.

   (c)The mother shall provide a copy of these orders to the (omitted) Mental Health Service and her treating medical practitioners.

7. The maternal grandfather shall authorise the children’s schools to provide to the mother and each of the children’s father, at the mother and fathers’ expense, copies of all school reports, newsletters, photos and notices to which a parent would normally be entitled.

8. Each of the children’s fathers spend time with their child as agreed with the maternal grandfather.

9. The Independent Children’s Lawyer be discharged.

10. Otherwise, all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3847 of 2012

MS THORN

Applicant

And

MR WHITEHEAD

First Respondent

MR THORN

Second Respondent

MR INGHAM
Third Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision relates to the future parenting arrangements for the children X (“X”) born (omitted) 2007 and Y (“Y”) born (omitted) 2010 (“the children”).

2. Ms Thorn (“the mother”) is the mother of both children. Mr Whitehead (“X’s father”) is the father of X and Mr Thorn (“Y’s father”) is the father of Y. Mr Ingham (“the maternal grandfather”) is the children’s maternal grandfather.

3. X has been diagnosed with Autism Spectrum Disorder and Y with having Autism Spectrum Disorder traits.

4. The mother has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), chronic depression and Borderline Personality Disorder. She has had a long involvement with the Department of Human Services (“DHS”) following the birth of both children. The children have, for the greatest part of their young lives, lived with the maternal grandparents. In addition to having responsibility for the care of the children, the maternal grandparents also care for a foster child Z (“Z”), who has lived with them since before X was born. The maternal grandmother suffered mental health issues in late 2013 and early 2014 including attempted suicide. Around that time, the maternal grandparents separated with the maternal grandmother moving out of their home, where the children live. Around that time, Z was placed in the care of the maternal grandfather. From 11 February 2014, by order of the Court, the children have been living with the maternal grandfather.

5. X and Y’s fathers have had very limited involvement in their child’s life. The paternal grandparents have had regular time with the children by agreement with the maternal grandparents. It seems that the time spent by the fathers with the children has largely been when the children have spent time with their respective paternal grandparents, usually each Friday night.

Parties Proposals

1. The maternal grandfather supported by the Independent Children’s Lawyer (“the ICL”) propose the following parenting arrangements:

   1.The children X (“X”) born (omitted) 2007 and Y (“Y”) born (omitted) 2010 (“the children”) live with the maternal grandfather.

   2.The Maternal Grandfather shall have sole parental responsibility for the children.

   3.The Maternal Grandfather shall continue to engage with support services to assist his care the children.

   4.The children spend time with the mother as follows:

   a.on the first weekend of each month from Friday after school to 5.00pm Sunday;

   b.on the second and fourth weekends of each month from Saturday 5.00pm until Sunday 5.00pm;

   c.from 5.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;

   d.from 5.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;

   e.a minimum of two hours on the children’s and the mother’s birthdays by agreement and in default of agreement from 5.00pm to 7.00pm;

   f.for one week in school term holidays and two weeks in the summer holidays;

   g.such other times as agreed.

   5.The mother’s time with the children be conditional upon her maintaining contact with the (omitted) Mental Health Service and her treating medical practitioners and complying with all treatment recommendations.

   6.The maternal grandfather do all things necessary to ensure that the mother and both fathers are provided, at their individual expense, with copies of all school reports, newsletters and notices to which a parent would normally be entitled.

   7.The children’s fathers spend time with the children as agreed with the maternal grandfather.

2. These parenting arrangements were supported by Ms K in her second Family Report dated 15 June 2015.

3. The mother proposes the following:

   1.   The mother and maternal grandfather have equal shared responsibility for the children.

   2.   The children live with her each week from Monday after school to Friday before school;

   3.   Each week the paternal grandparents spend time with their grandchild from after school on Friday to 5:00pm Saturday.

   4.   Each week the maternal grandfather spend time with the children from 5:00pm on Saturday to Monday before school. 

4. The mother said she would like each father to spend time with their child once a week after school in an activity the children are engaged in such as swimming.

5. During her evidence, when she was asked questions about the significant change which her proposals will bring to the parenting arrangements of the children, the mother said she proposes that there should be a transition period during which the time the children spend with her each week increases so that eventually her dad will become the grandfather again. X’s father and Y’s father support the mother’s proposals.

Background and Evidence

1. There is very limited affidavit material before the Court. The mother has not filed any affidavit material since 13 March 2014. None of the respondents have filed affidavit material. The maternal grandmother, who was, in the initial stage of the proceedings, a named respondent, filed two affidavits in February 2014.

2. The main documentary material before the Court is from independent sources:

   a)A section 91B of the Family Law Act 1975 (“the Act”) report dated 28 February 2014 produced by the Department of Human Services (“DHS”) ;

   b)a section 11F memorandum prepared by Family Consultant Mr T;

   c)two Family Reports dated  31 October 2014 and 15 June 2015 prepared by Family Consultant Ms K;

   d)a psychiatric assessment of the mother prepared by Dr A, Consultant Psychiatrist on 14 April 2014.

3. The oral evidence before the Court is from the mother and the maternal grandfather. The children's fathers declined, when given the opportunity, to give evidence in chief. Whilst subpoenaed documents from (omitted) Mental Health Service; Partners in Recovery were not tendered as an exhibit, possibly through oversight, the mother was extensively cross-examined on the records from Partners in Recovery and I have had regard to this cross-examination as evidence properly before the Court.

4. The following background is taken from the limited affidavit material, the independent documentary material and the cross-examination. Unless indicated otherwise, the background is to be taken as findings of fact.

5. The mother was born on (omitted) 1990. She says she has had ADHD since age 5. She continues to take dexamphetamine. She has had chronic depression since age 12 (which was her first suicide attempt). She was treated by a psychiatrist for a year up until July 2013 but ceased because she says a co-patient was stalking her. She re-engaged with a psychiatrist and a psychotherapist following interim orders of the Court in these proceedings. She was diagnosed by Dr A as having Borderline Personality Disorder. She believes she has multiple personality disorder but this has not been confirmed by professional diagnosis. She was admitted to (omitted) Hospital Psychiatric Unit from 22 March 2014 to 25 March 2014. Over the course of the proceedings she has also been admitted to the Emergency Department of (omitted) hospital. She has been on the antidepressant Fluoxetine 40mg which she resumed when she was admitted to the (omitted) Psychiatric Unit. The mother is presently in receipt of a disability pension but has worked casually in a supermarket in her local area. At the time of the hearing, she was not working. She described her occupation as (omitted) and home duties. The mother lives in a 2 bedroom unit in (omitted) and has lived there since the end of November 2014.

6. X’s father was born on (omitted) 1988 and Y’s father was born on (omitted) 1986. The maternal grandfather was born on (omitted) 1960. He has four children, the mother being one of them. None of his children reside at home. The children, the maternal grandfather and his foster child Z, who has lived with him since 14 December 2005 and is now 11 years old, live at the family home in (omitted).

7. Consent orders were made on 30 September 2009, which provided that the maternal grandmother and mother have equal shared parental responsibility for X, that X live with the maternal grandmother and that his parents spend time with X as agreed. The mother and X’s father were restrained from attending X’s day care or school without the consent of the maternal grandmother.

8. On 5 July 2010, four days after Y’s birth, the mother and Y were transferred to the (omitted) Mother and Baby Unit. The DHS reported significant concerns about the mother and the second respondent’s capacity to parent Y. [1]

   [1] DHS correspondence dated 26 February 2014 section 91B order report.

9. An interim accommodation order was made placing Y in the care of the maternal grandmother. In July 2011, Y was placed in the mother’s care under Supervision Orders containing 15 conditions including that the mother engage with mental health services and attend psychologists and/or psychiatrists as agreed with the DHS. After a six month period, Y was placed in the maternal grandmother’s care by the mother and she has continued to live with her brother X and foster sister Z at the maternal grandparents house until late 2013.

10. On 15 November 2013, the maternal grandmother was admitted to the psychiatric ward of the (omitted) Hospital. She was discharged on 21 November 2013. The children were placed by the maternal grandfather in the mother’s care on 15 November 2013.

11. On 9 December 2013, the maternal grandmother attempted suicide by overdose and was admitted to the psychiatric ward of the (omitted) Hospital. She was discharged on 16 December 2013, following which she admitted herself to (omitted), a private mental health rehabilitation centre for period of two weeks.

12. The applicant filed an Initiating Application on 9 December 2013 seeking orders that the children live with her and spend alternate weekends and one day each week with the maternal grandmother. The maternal grandmother was then named as the first respondent with the fathers of the two children respectively the second and third respondent. The maternal grandmother sought orders that the children live with her.

13. The DHS report dated 28 February 2014 records that on 14 January 2014 a call was received from a member of the (omitted) CATT Team advising that on the weekend of 11 January 2014 to 12 January 2014, the mother had contacted the CATT Outreach Team as she had taken an overdose of Phenergan and was feeling suicidal. The report records that the mother had advised she was struggling with the full-time care of the children. In cross examination the mother denied that she was struggling to cope with the children full-time. She said she was not coping because her parents were denigrating her.

14. On 9 February 2014, the paternal grandmothers respectively received text messages from the mother asking that they care for their grandchild. The children lived with their respective paternal grandparents for a short period of time. The maternal grandfather's evidence is that the mother and the children joined him on an outing on the Australia Day weekend and the mother asked him to look after the children saying that she could not care for the children and that she had no support from the family. The mother's evidence is that it was the paternal grandparents who placed the children in her father's care. Whatever is the basis for the children returning to the maternal grandfather's care, the fact is that from that time onwards, by Court orders, the children have remained in the primary care of the maternal grandfather.

15. The Family Consultant, Ms K, reported that the mother stated that the change of living arrangement for the children in February 2014 was because she was not coping. She told Ms K that, "it wasn't the kids I wasn't coping with – it was the judgement from my family – I didn't want this for my kids." (Family report dated 31 October 2014 [47]).

16. On 11 February 2014, interim orders were made joining the maternal grandfather as a party to the proceeding and providing that the children remain in the care of the maternal grandfather, referring the parties pursuant to s.11F to a Child Inclusive Conference and requesting the appointment of an Independent Children’s Lawyer (“ICL”).

17. On 13 February 2014, following evidence given by the Family Consultant, interim orders were made that the children live with the maternal grandfather and spend time with the mother, the maternal grandmother and their father’s as agreed and that the mother and maternal grandmother attend upon a psychiatrist for report.

18. On 22 March 2014, the mother was admitted to the (omitted) Psychiatric Unit and discharged on 25 March 2014.

19. On 14 April 2014, Dr A released his report containing a psychiatric assessment of the mother. His opinion was that the mother’s presentation is consistent with the diagnosis of Borderline Personality Disorder, which he stated refers to a pattern of instability of moods, identity relationships and is an enduring problem. He notes the history of chronic depression and ADHD. He opined that it is important the mother re-engage with a psychiatrist to monitor her medication on an ongoing basis, that more regular contact with the children may improve the mother’s mental health, that her periods of instability may negatively impact on her ability to care for the children and that she should undertake further psychotherapy for her mental health issues.

20. One 8 May 2014, the maternal grandmother filed a Notice of Discontinuance. On 15 July 2014, interim orders were made giving the maternal grandmother leave to withdraw. An order was made for the preparation of a Family Report and the matter listed for final hearing on 26 November 2014.

21. In or around May 2014, the mother was assaulted by a former girlfriend of Mr S whom the mother had taken out an intervention order against because he was stalking her. Apparently, he was a former work colleague of the mother. The mother said that she was fearful after the assault of going out because of concerns for her own safety. The records of Partners in Recovery report the mother having chronic thoughts of suicide.

22. The mother’s evidence is that in May 2014, she was utilising two people for support and safety measures. Y’s father was staying during the week and Mr D (“Mr D”) provided her support during the weekend.

1. In mid June 2014, the police attended her home following a report by Mr D alleging she had overdosed on Diazepam. She was taken by ambulance to the (omitted) Hospital Emergency Department and released the next day. In her evidence, the mother claims that she was not feeling suicidal and that this was a vindictive act by Mr D so he could steal from her.

2. In late June 2014, Mr D engaged in domestic violence against the mother by grabbing her throat. The police and ambulance attended. The mother was again admitted to (omitted) Hospital Emergency Department.

3. In mid-July 2014, the mother moved in to live with a couple, named Ms W and Mr N. During interviews with the Family Consultant, Ms K, X’s paternal grandmother stated that the mother had telephoned her and told her the person she was living with was a convicted paedophile (Family Report dated 31 October 2014 [67]). The mother confirmed in cross examination that she had said this.

4. The mother gave evidence that Mr N was on a registered sex offenders list. She stated he was a paedophile but she did not make judgements of people with such a history. She said that she was “aware that half my friends currently have a criminal background because they have had their own struggles themselves… – one of my friends is a registered paedophile. And he - over the last three years – has been doing everything the court ordered.  And I have made an agreement that I will not judge others. I will be concerned, yes. I will not judge others for their history when I don’t want others to judge me for mine.”

5. In early August 2014, the mother attended (omitted) Hospital Emergency Department having taken an overdose.  The mother was reported as not conscious when admitted and was discharged around a week later. During that time there were discussions between the mother’s support facilitator from Partners in Recovery and a psychiatric specialist at the hospital regarding the difficulties in getting the mother to engage with regular psychiatric services. In mid August 2014, the mother is recorded as saying she does struggle with pressures of organising day-to-day life and is feeling overwhelmed. She states that her friend Ms W is helping her with creating schedules with a view to better managing her time. She is recorded as admitting that when she becomes overwhelmed she disengages from services and will not answer her phone. Around this time, there is a record of the mother reporting that she had an altercation with Mr D over the weekend and ran away to Mr S’s house. Apparently, the mother had expressed suicidal ideation to a mental health worker, Mr C, who then contacted police for a welfare check. It appears that on contact with (omitted) Hospital psychiatric triage the mother informed them she was no longer suicidal.

6. In early September 2014, the mother had presented by ambulance to (omitted) Hospital Emergency Department after she claimed she had taken an overdose, however, she was assessed and released without admission to ward. The mother is recorded as stating she is staying with Mr D and has arranged to tutor him in return for free rent.

7. In early October 2014, the mother’s mental health deteriorated as a consequence of her learning about her uncle’s death by suicide. The mother is urged by the support facilitator to use available mental health experts as supports rather than her friends. In October 2014, the mother sent a text to her support facilitator stating that she “needs to feel safe somewhere because around my friends I am not safe from myself and that scares me, and I am scared of what I’m capable of.” The mother’s evidence was that, at that stage, she was living with Mr S and the person who assaulted her was living next door.

8. The mother was asked whether the following note on 23 October 2014 was a fair assessment of how she was at the time. The note stated:

   “Client has a history (sic) suicide attempts when not coping. Client is currently overwhelmed by her situation. Client poses medium to high risk to her friends when over agitated and can become aggressive towards them. Client is not present risk to workers.

9. The mother said that was a fair assessment of how she was at the time.

10. There is a report, at the end of October 2014, that on arrival in a car park next to an office of the DHS, the client had her head in her hand and was sobbing uncontrollably. The mother said that she was upset because after coming to this Court, providing a home for her family and not having any money and left homeless again she was upset about having to go to DHS and claim homelessness. At this time there is also a report of an incident when the mother was discharged from the (omitted) Hospital when Mr D had presented to the ward on 30 October 2014 allegedly drunk and aggressive to staff. The mother agreed that Mr D had gotten worse over the last year. In response to a report that he had become aggressive to the staff who thought he was bringing dexamphetamine to the mother in the ward, the mother responded that if they are going to make allegations, someone may get agitated and that she cannot control the actions of others.

11. That report also notes that the client has seven personalities and identifies R as anger. The client stated she is having difficulty controlling R and is scared what she might do. The mother said in cross-examination that she does hear voices, that she does not like them and does not know how to get rid of them. She said she was aware of Dr A’s opinion that she did not have multiple personalities and that she accepted this diagnosis.

12. Following the attendance at DHS, the report records that the mother expressed wanting to jump in front of a moving car and made half an attempt to do so. She was restrained by the support worker and then held her head in her hand for several minutes while crying, stating that her life was not worth living. The mother agreed she said that her life was not worth living without her children. The report then records that the mother lost it and the staff had to restrain the mother from attacking her support worker.

13. In or around November 2014, the maternal grandmother is hospitalised following an attempted overdose.

14. By November 2014 the mother had been accommodated in her own home by the Department of Housing.

15. On 27 November 2014, the final hearing was vacated and orders made that the maternal grandfather have sole parental responsibility for the children, the children live with the maternal grandfather and the mother spend time with the children for one day each weekend. The mother was also ordered to undergo psychotherapy and psychiatric treatment. The maternal grandfather was ordered to make contact with Child First for support.

16. In early 2015, the support facilitator reports visiting the mother at home when Y is present. The support facilitator reports the child displaying affection with PIR workers, “demonstrating inappropriate attachments.” The mother’s response to being read this record was that, “After being taken at seven days old she has attachment issues, yes”. She said that it will require a lot of counselling, therapy and programs and she is aware of the needs of the children. The mother agreed that the workers found a crossbow in a cupboard in her room which belonged to Mr D. She agreed they told her that it was not safe to have it in her house. She said that it was on top of the cupboard in a locked box which the children could not reach.

17. On 2 February 2015, the support facilitator received a text from the mother stating that:

    “The weekend didn’t go so well. I have been having severe nightmares and crying pretty bad and got to a point where I was scared to see the kids because they can’t see me like this if I haven’t slept for a few days I’m not sure.”

18. In early February 2015, the mother commences engaging with a psychiatrist and working with a psychotherapist (Mr K) in accordance with Court Orders. She is reported as saying to the support facilitator that she is scared of having the children due to potential domestic violence situations, particularly with Mr D and does not want to expose them to such situations.

19. The mother gave evidence that the situations with Mr D had become worse since the Court order was in place because, she says, Mr D has started blaming himself for the kids being removed from her care. She gave evidence that Mr D has now his own mental health issues because he has started blaming himself.

20. During early 2015, the maternal grandfather refuses to allow the mother to spend time with the children after he was informed by Mr D that the mother was a drug dealer. The mother said in cross-examination that Mr D told her father this false allegation because he was being spiteful to get back at her for saying “no” to him. She was very upset by her father’s actions but she did concede that in the circumstances he was acting protectively. She said that is why she was happy for her children to be in her dad’s care because she knows he will always protect her children.

21. Mr K reports to the ICL in March 2015, that the mother is not doing well following her mother’s “recent suicide attempt”.

22. In March 2015, there was a potential domestic violence situation with Mr D. The mother is recorded as asking the support facilitator to call the police. A Constable Mr R from Victoria Police is recorded on 17 March 2015 stating he attended the mother’s property twice and on both visits the mother was very anxious. The mother said that she does find the police attending her home a trigger for anxiety after what she refers to as last year’s arrest and being put in the mental hospital under section 10 of the Mental Health Act. She had called the police on that day because Mr D had turned off her gas, electricity and water and had taken goods from her shed. In her evidence, the mother referred to Mr D as an ex-partner but that she had done a background check on him. She agreed that he had presented as a risk as he had wanted to come into her house and she had said “no.” Later in her evidence she denied that if it had happened on a day the children had been in her care they would have been at risk.

23. The mother agreed in cross-examination that, around April 2015, there was a crisis in her mental health because there had been a difficulty at school with X. There is a record in the Persons in Recovery documents dated 24 March 2015 of the support facilitator being sent an email from a Department of Housing worker stating that the mother had turned up in an agitated state, saying that her eight-year-old son had hit four children and the teacher at his school which had resulted in an incident report.

24. In May 2015, the support facilitator reports that the client has a safety management plan of calling the police if and when male friends are being threatening. The mother advises that Y’s father has caused a lot of domestic violence issues in the past. The mother gave evidence that she has had a history of intervention orders which shows that she has sought help from the Courts to protect her and her family from violent people.

25. On 16 June 2015, the support facilitator reports that she is contacted by the mother who says she is not coping. The mother is reported to have said that she was upset over the ongoing situation with her father and her children, that she admitted she is becoming unwell and is trying to seek help now before having to be admitted to hospitals and/or harms herself or others. The report notes that she is staying with Mr S and that she is very upset because Mr D is now living with her good friends and supports Ms W and Mr N. The report notes that the mother has asked Ms W to assist with washing dishes, particularly knives as the mother was concerned about her feelings when around knives. The mother said in cross-examination that her issue with knives is due to homelessness and being involved in many knife fights on the streets. She stated that the streets are a very dangerous, scary place and that she is scared of knives because of the many scars she has. The mother agreed that when she is feeling like this it would not be good for the children to be in her care. She said that is why she seeks help from grandparents, the Dads and support services.

26. One 24 June 2015, the support facilitator notes that she contacted Mr K to discuss the mother’s engagement with the psychotherapy program. Mr K reports that the mother’s engagement with her psychotherapist was good initially, however, she had missed four appointments in a row and she risked being exited from the program. With the assistance of her support facilitator, the mother contacted Mr K and the re-orientation requirements were waived.

27. By the end of June 2015, the support facilitator reports that the mother is progressing out of crisis and has returned to her home.

28. The mother agreed with the Counsel for the ICL that she had experienced further mental health problems after the updated Family Report was completed dated 15 June 2015. She said this was because of “continuous family abuse.” She gave evidence that in the last month, before the hearing in July 2015, she had been unable to go to the Dialectic Behaviour Therapy (with Mr K) but that she had been having phone support from the program and from the (omitted) Health Support Services. She said that she has been struggling to go out due to physical and mental concerns of anxiety after a history of family violence.

29. On 15 July 2015, the support facilitator from Partners in Recovery records the mother saying:

    "I'm not doing well, as Mr D being at Ms W and Mr N’s has isolated me a lot, as I went there for a girls night with Ms W, and Mr N had an anxiety attack, asking Mr D to end his suffering, as he was struggling to cope without his daughter. It got too scary, and I am very shaken. Mr D turned it on to me. I'm okay physically. The police were called, ambulance too as Mr D tried to break in.. Police came, and I told them I was fine and went to bed "

30. The mother said that she was upset because she wasn't able to see her friends as Mr D was there. She said she went home to bed after what had happened and Mr D followed.

31. When it was put to her by the Counsel for the ICL that, as recently as 13 July 2015, police and ambulance had to come and attend because of concerns about her mental capacity and how she was coping, the mother responded that if people are going to call them (the police and ambulance) they have to attend. She said she was fine and went home and went to bed. She says she left the situation just like "my DST and Partners in Recovery have informed me to do." She said this has confirmed everything she said because she was isolated due to Mr D living there but she cannot control the action of others.

32. The mother gave evidence that she gave a crisis contact list to her friends to inform them that if there are any concerns she will contact them herself. She said “I do not want to harm myself or my children or others. I am scared of doing that. And that is my fear.” She stated that she had not been suicidal in over a year since her coma when her children came to the hospital and made her realise she had something to live for.

33. The mother remains in the Partners in Recovery program and is engaged with Mr K, psychotherapist whom she has regular weekly contact with. Mr K runs the (omitted) Health Dialectic Behaviour Group therapy program. She also attends psychiatrist, Mr P.

34. In her second Family Report dated 15 June 2015, Ms K observed at [48]:

    "The mother's mental health appears to have stabilised over the past 12 months. Although, given the persistence of symptoms over many years in the diagnosis of Dr A, she remains vulnerable to depression, mood instability and impulsivity. Her current treating psychiatrist may be able to provide more information."

35. When cross-examined by Counsel for the ICL, Ms K stated that in light of the material provided by Dr A and the DHS, she was not surprised that as recently as 9 July 2015, there was an incident where due to the mother's demeanour the police and ambulance had attended having been called by friends of hers.

36. Ms K observed in her second Family Report that the mother has good support through (omitted) Mental Health Services and has complied with the requirement of Court orders, that she now has stable accommodation which has contributed to her improvement and seems genuinely interested in the benefits of counselling she is attending (at [50]). Ms K recommended that the mother spend time with the children in accordance with the maternal grandfather’s recommended monthly cycle and time over the school holidays provided she maintain her contact with the (omitted) Mental Health Services and her treating medical practitioners and comply with all treatment recommendations.

37. The maternal grandfather gave the following evidence in relation to the children's circumstances:

    a)X attends (omitted) Primary School and is in Grade 2. Apart from a short period of time when he lived with his mother he has attended that primary school all his school life;

    b)He has had two notifications regarding behavioural incidents with X at his school. Each time he consults with the teacher and teacher's aide about the best way to handle it. Once he does that he then talks to X’s paternal grandmother so that she is informed;

    c)Both children have been assessed as on the Autism Spectrum and both attend a paediatrician. Y’s paediatrician has advised him that she should be assessed for schooling in 2016. He says he is currently in the process of doing that;

    d)Z has disabilities as well and he has attended courses through Oz Child on parenting children with disabilities. He says he disagrees with his daughter’s view that he was incapable of dealing with her disability. He says he believes that with his experience and his maturity he is in a position now to care for the three children. He said that he has been assessed by DHS as being an appropriate carer for Z;

    e)The children and Z are close and see themselves as a sibling group and he believes that they should remain together as much as practicable.

38. The maternal grandfather was questioned about incidents when he had placed conditions on the mother's time with the children or had stopped her time spent with the children. He gave evidence that he questioned the mother about the fact that she was allowing Y’s father to be present in her home when the children were spending time with her. He said he believed that this was inappropriate because, on the one hand, it was important for her to be spending one-on-one time with the children and secondly, it created false expectations by the children about an ongoing situation between the parents. He said the mother’s inconsistency in her relationships with male friends would cause confusion for the children.

39. The maternal grandfather readily agreed that he ceased the mother's time with the children when a friend of hers, Mr D, rang him and informed him that his daughter was dealing in drugs. He said that he did this because he was concerned about the mother’s behaviour and the risk to the children's safety.

40. The maternal grandfather said that when he forms the view that the mother is not travelling well and the children are not safe in her care unsupervised, he suggests to the mother that she comes and sees the children at his home so that she can maintain contact and the children can be safe. He said that, if the mother's time with the children was progressing well, he would be prepared to allow the mother to spend increased time with the children, including during weeknights.

41. The maternal grandfather said that he believed it would be a good thing if the fathers were more involved in their children's lives and he was happy to facilitate time being spent by the fathers with their child during the week. He says that he has a very good working relationship with the paternal grandparents and is able to reach flexible arrangements to ensure that the children have regular time with them and spend time with them on special occasions and on holidays. He says that likewise when he has a commitment he would like to attend on the weekend the paternal grandparents have taken care of the children.

1. The maternal grandfather said that his goal in making his proposed parenting arrangement for the children as between the mother and the paternal grandparents over a monthly cycle, was to enhance the time that all family members get to spend with the children.

2. The maternal grandfather said that when the school holidays are approaching he sends an SMS text message to all parties, including the grandparents, asking them what time they would like to spend with the children. He said that the only response he tends to get is from X’s grandparents who might say they are going away on holiday and would like to take X.

3. The mother cross-examined her father with respect to events that happened on Christmas Day 2014 and the children's birthdays. The mother had not filed any affidavit material on these events nor had she given evidence-in-chief about these events. Consequently, it is difficult to discern what the purpose of these questions were and precisely what happened.

4. It appears from her father's responses in cross-examination that, just prior to Christmas 2014, which was arranged to be held at X’s grandparent's home, the mother asked to borrow her father's car. Her father agreed but asked that the car be returned by a certain time. Apparently, she sent a text message to her father saying not to get upset with her boyfriend because he was her father's age. The maternal grandfather said that whilst he was out shopping for Christmas presents the mother rearranged the Christmas decorations and started preparing Christmas dinner. There then followed an argument. It is not clear whether the mother attended on Christmas Day but apparently at a family barbecue after Christmas she attended and gave her family crossbows.

5. The mother was invited to a birthday party for X being held at her father's home. The mother apparently attended and demanded to take X and Y away. Y’s father had accompanied the mother. The maternal grandfather asked the mother to leave and the mother threatened to call the police but nothing came of it.

6. As to Y’s birthday, it is difficult to understand what the circumstances were except to say that the maternal grandfather had planned a holiday away with the children to Queensland to visit his mother and his sister. The mother had suggested a birthday party on a particular date which was cancelled, apparently, because the mother was ill and it seems arrangements could not be made for a suitable alternative date.

Statutory Provisions

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests. In Collu & Rinaldo [2010] FamCAFC 53, the Full Court held that a Court’s task, informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) (and where relevant s.60B(3)), is to undertake consideration of and make findings about each of the “best interests” considerations set out in s.60CC having regard to the parties’ respective proposals.

4. Section 61DA(1) of the Act provides 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. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: S.61DA(4). It is to be noted that where the presumption does not apply, in circumstances where the Court has reasonable ground to suspect abuse of the child or family violence has occurred, the Court nonetheless retains the discretion to order equal shared parental responsibility.

5. Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1). Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). The meaning of substantial and significant time is set out in s.65DAA(3).

6. Before considering s.61DA and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC, s.60CC(1) provides that in determining what is in the best interests of a child the Court must consider the matters set out in subsections (2) and (3). S.60CC(2)(a) specifies what are described as the primary considerations and s.60CC(3) sets out what are described as additional considerations.

S.60CC – Best Interest of the Children

Primary considerations

Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents

1. The superior Courts have discussed the concept of "meaningful". The adjective “meaningful” is a qualitative not strictly quantitative one: Mazorski & Allbright [2007] FamCA 520 at [26].

2. The concept of “meaningful” was expanded on by Cronin J in Tait & Densmore [2007] FamCA 1383:

   “To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”

3. The enquiry in relation to s.60CC(2)(a) is a prospective one requiring the Court to :

   “…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”: G & C [2006] FamCA 994 at [72]

4. Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].

5. The children have lived with the maternal grandparents for most of their lives. They had lived with their mother for very limited periods of time and the mother’s time spent with the children when they have been in the maternal grandparents care has been sporadic. Since early 2014 the children have been living with their maternal grandfather. He has been their primary caregiver for at least a year and a half now.

6. Nevertheless, the children clearly enjoy their time with her mother and have a close and affectionate relationship and, consequently, I am satisfied that they would benefit from having a meaningful relationship with their mother subject to their mother's mental health being stabilised so that she is able to spend consistent and regular time with them in a safe and secure environment.

7. The mother’s proposed parenting orders give her greater time with the children. However, given her history of mood instability and the fact that she has very limited experience in caring for these young children with special needs, I am not satisfied the quality or her relationship with the children would be such as to provide a benefit to them.

8. Both fathers’ time with the children has only occurred when the children have spent time on Fridays with their respective paternal grandparents. Although limited time, this time with their children has been regular time since the children have been in the maternal grandparents care. I agree with the submission of the ICL that the history of the fathers’ relationship with their child could not be seen (at this stage) as "important, significant and valuable" to them: Mazorski & Allbright.

9. X’s father no longer spends time when X is at the paternal grandparents place as he has become estranged from his parents. The paternal grandmother of X reported to the Family Consultant, Ms K, that she has suggested to her son that he spend one day a week with X but that he was not willing to. She told Ms K that their relationship with the maternal grandfather is very good and they can make flexible arrangements for them to spend time with X. She said that X goes away with them on holidays and that X and the paternal grandfather have a very close relationship. The maternal grandfather reported that X adored his paternal grandfather. The paternal grandfather's evidence is that the conflict between X’s father and his parents is because X’s paternal grandparents have formed the view that X’s father has failed to step up and take proper responsibility for his child.

10. X’s paternal grandmother has told Ms K that she firmly believes that the children should stay in the maternal grandfather's care as the mother would not be capable of looking after the children.

11. Under the orders proposed by the maternal grandfather, the children will remain living predominantly in his care.

12. I am satisfied that the maternal grandfather will take all steps necessary to ensure the children benefit from a meaningful relationship with their mother and their father's. I am satisfied that he is able to act protectively, in circumstances where the children's well-being may be at risk. The mother has complained about actions the maternal grandfather has taken in terms of stopping her time with the children or placing conditions on the time she spends with the children. However, given the mother's history with inappropriate friends, her variable mental health and the desirability of the mother spending one-on-one time with the children when they are in her care, I am satisfied that the action taken by the maternal grandfather has been appropriately  protective  of the needs of the children.

13. I am also satisfied that the maternal grandfather is able to adopt flexible arrangements with the children's paternal grandparents to ensure that they have the benefit of regular and quality time with their paternal grandparents.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. The mother’s mental health and consequently instability in her capacity to care for the children is a significant factor in these proceedings. In her Family Report dated 31 October 2014, Ms K’s opinion was that: “The children are going to be served best by regular and routine caring arrangements. Their own special needs make it more imperative that they have a predictable, stable schedule.” ([88]) I agree with this opinion.

2. The writer of the DHS report, an Advanced Child Protection Practitioner, opined in early 2014, that a risk factor for the children was the ongoing impact of cumulative harm because of exposure to constant mental health issues with their mother and, at the time of the writing of the report, the maternal grandmother. The writer noted that there was then a lack of safety and stability for the children and that the mother had been overwhelmed in caring for the children for only a few weeks. She stated that the research shows that, “cumulative harm may impact on the children if they are not placed in a safe and secure environment, free from exposure to mental health, change of residence, schools and day care. Research shows children who are continuously exposed to similar issues without appropriate intervention ….may suffer from the effects of cumulative harm.”

3. I should emphasise that there is no doubt that the mother loves the children, however, her history has been one of ongoing instability in her mental health. Dr A’s opinion was that a sufferer of Borderline Personality Disorder would experience significant distress at losing custody of the children. However, he said, "it is clear that she does have periods of mood instability, disassociation and impulsivity and may potentially impact on her ability to care for her child will depend on the degree to which her personality traits are responsive to specific psychotherapy." (p.415).

4. The mother has engaged in psychotherapy although her engagement was, for a period, inconsistent and has attended a psychiatrist for the past year. Despite this, the evidence from the records from Partners in Recovery revealed that, sadly, the mother continues to experience instability in her mental health. In her Family Report dated 31 October 2014, Ms K stated that her, "history demonstrates that she would not be able to adequately look after the children for any length of time." ([89]) In her second Family Report dated 15 June 2015, Ms K’s opinion was that “The mother's mental health appears to have stabilised over the past 12 months. Although, given the persistence of symptoms over many years in the diagnosis of Dr A, she remains vulnerablere to depression, mood instability and impulsivity (at [48]) and that "unfortunately, the demands of looking after children for substantial amounts of time in the past has triggered or at least contributed to deterioration and functioning." (at [49]).  Ms K's evidence in cross-examination was that she was not surprised, given the mother's psychiatric assessment by Dr A and the DHS records, that her instability had continued.

5. I accept that at times the mother reaches out for support from relevant organisations. However, there is also evidence that when she is overwhelmed she disengages from professional support. Were this to occur when the children are in her care, the result could only have severe adverse impacts on the psychological well-being of these young children. I have serious concerns about the friendship or social group the mother engages with. The mother has been in an intimate relationship and then a friendship with the person, Mr D, who has provided support to her, contacted police when he believed she was at risk of harm and in addition engaged in family violence against her causing the mother to call the police to her home. Her relationship with a former work colleague has the hallmarks of a dysfunctional one, the mother being assaulted by a former girlfriend and neighbour of his. The mother gave evidence that both these men have mental health issues. She gave evidence that they had tried to manipulate her. When asked why she would maintain a friendship with such people, she was unable to give a satisfactory answer. Furthermore, the mother has apparently relied on, for considerable comfort and support, a friend Ms W whose partner is registered sex offender. I found the mother’s statement that she doesn’t make judgements of people with such a criminal history worrying.

6. The mother’s proposal is that the children live with her during the week and spend time with their grandparents during the weekend. When asked, she said she would not bring her children into contact with her friendship group. Given her closeness to Ms W, I have serious concerns that the mother would not protect the children from contact with Ms W and Mr N and her very chaotic friendship group. She conceded in cross-examination she does not have control over whether or not family violence would occur at her home.

7. I am satisfied that the children would be most protected from physical or psychological harm, or from being subjected to or exposed to, abuse, neglect or family violence in the primary care of the maternal grandfather.

8. I am satisfied that the proposed parenting orders supported by the paternal grandfather and the ICL will provide a regime of regular and consistent time for the mother to build upon her relationship with the children. It enables her to spend one-on-one time during the school holidays. This will enable her to engage in support services during the week to assist her in acquiring the skills of parenting. I do not accept the mother's criticism of her father that his control of her time with the children has interfered in her relationship with them. I accept his evidence that provided the mother's time with the children progresses well than it is his intention to enable her to spend, over time, progressively more time with the children.

9. I am not satisfied that, even with the transition period the mother suggests, she would be capable of sustaining a parenting arrangement in which the children live with her from Monday to Friday each week. She has a somewhat naive view that because the children are at school her time with them is limited and she can therefore cope. In my view she does not fully comprehend the day to day demands and stresses over the course of the week involved in meeting the needs of her children, especially given their special needs.

10. It would not be in the children's best interests to make orders that are most likely to fail because the mother has yet to establish to the satisfaction of the Court that she can maintain stability in her mental health and her behaviour.

Additional considerations

Section 60CC(3)(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

1. X is 8 and a half years old and Y is 5 years old. They are, of course, too little to express views which the Court would give weight to. However, the limited interviews conducted by Ms K and her observations of the children interacting with the mother and the maternal grandfather are relevant.

2. X said that he was happy attending (omitted) Primary School and liked seeing his mother on weekends and that if he is worried about something he would tell his "Pa Pa" (maternal grandfather).

3. Y said that she goes to preschool, she likes to see her father at weekends when she goes to her "Nan" and "Pop". She said that if she was worried about something she would tell her mother or the maternal grandfather.

4. Ms K observes that there was nothing to suggest anything other than an affectionate and close relationship between the children and the maternal grandfather. She observes that there were also displays of affection and enthusiasm between them and their mother.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. Having lived in the maternal grandparent’s household for most of their lives, there can be no doubt that the children have a close and meaningful relationship with the maternal grandfather and with their foster sister, Z.

2. Ms K observed in her Family Report dated 31 October 2014, that the children appear to have a close attachment to their maternal grandfather and felt safe and confident with him (at [80]).

3. Ms K observes in her Family Report dated 15 June 2015 that there was nothing to suggest anything other than an affectionate and close relationship between the children and the maternal grandfather. She observes that there were also displays of affection and enthusiasm between them and their mother (at [41]).

1. Under the mother’s proposed orders the children would spend two nights and one day with their grandfather and Z. Under the grandfather’s proposal the close relationship with their foster sibling and grandfather remains intact.

2. As already noted, the children have spent time with their father's when they are in the care of their respective paternal grandparents on Fridays. X has not seen his father from February 2014 to June 2015, save for a one-off arrangement made between the maternal grandfather and X’s father around the time of X’s birthday. X’s paternal grandmother told Ms K during the first interviews that she had asked X’s father to make the effort to spend a day with X but that he had not responded to this. Ms K reported in her Family Report dated 31 October 2014, that when she asked X if he misses his father, he responded "No".

3. Y’s father has appeared to have continued his regular time spent with his daughter when she is the care of her paternal grandparents.

4. I am satisfied that the children have a good relationship with their paternal grandparents.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child

1. The DHS has had a long history of involvement with these children since X was an infant and Y was removed from her mother's care when she was 7 days old.

2. It is safe to say on the evidence before me that it is has been the maternal grandmother and, more recently, the maternal grandfather who have taken responsibility for making decisions about the long term issues affecting their children, including their education and their mental health issues.

3. As I have already noted, the mother has not cared for the children for any significant length of time and her time spent with the children, either by agreement with her parents or by Court orders has been generally sporadic. The mother has attributed this to her homelessness, her need to earn money to support the children. She has blamed her parents for her inability to see her children. I do not accept that the mother has been stopped by her parents from spending time with the children, save to say, when the parents have appropriately decided that the children would not be safe in her care unsupervised. It is my opinion having regard to the expert medical evidence, that a significant reason for the mothers inconsistent time with the children has been her mood instability and impulsivity associated with her ADHD and her Border Personality Disorder.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child

1. On the evidence before the Court, I am satisfied that none of the parents have contributed to the maintenance of their children. There is no evidence that X or Y’s fathers have provided financial contributions to the maternal grandparents for the maintenance of their child. There is evidence that the mother has worked at a (employer omitted) and has applied this money to maintain rental accommodation. She has been unsuccessful in this but now has housing accommodation. When it was put to her that the proposed spend time arrangement by the ICL would enable her to obtain regular work and provide some financial support to her father for his care of the children, the mother responded rhetorically why was she doing the dad's job when she could do the mother’s job.

2. To date it has been the maternal grandparents who have predominantly carried the financial burden for the maintenance of these children.

3. From the mother’s evidence it is clear that she holds the view that if the children were in her care from Monday to Friday's each week, she would obtain financial assistance from the children's fathers. Given the lack of financial support hitherto provided by the fathers for the maintenance of their children, this is an unrealistic expectation of the mother. The mother said that under her arrangement, she would be able to work at the (employer omitted) on weekends and earn penalty rates and be in a better position to provide financial assistance.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living

1. The mother’s proposed orders involve a significant change; this is the person with whom they live. Their time with their foster sister and maternal grandparents will be substantially reduced. As both children have or have traits associated with Autism Spectrum Disorder, the effect of a change in their circumstances must be given careful consideration in the framing of any parenting orders.

2. The mother says that, under the proposed parenting arrangements by her father, there will be disruption to the children's routine under which they spend each Friday with their respective paternal grandparents. The mother's submission is that even if it means she spends less time with the children on weekends, her preference is that the children maintained their regular spend time with their paternal grandparents.

3. I have some difficulty understanding the mothers viewpoint, given that she has complained that she does not see the children enough. No doubt, the children have benefited from their regular Friday night spent with their paternal grandparents. However, the benefit for the children in regularly seeing their paternal grandparents can be achieved by an agreed arrangement between them and the maternal grandfather.

4. The maternal grandfather's evidence is that, because of the very good relationship he has with the paternal grandparents, he is confident that he can ensure that the children maintain their relationship with their paternal grandparents.

5. It should be remembered that the early period of these children's lives was chaotic. This was followed by a lengthy period of stability in the maternal grandparent's home with the maternal grandmother as the primary caregiver. These children would have experienced the loss of their maternal grandmother following the tumultuous events in late 2013 relating to her mental health. Since then they have had a period of almost two years of stability in their home in the care of their maternal grandfather. The Court gives significant weight to the desirability of maintaining the children's sense of stability and security in their living arrangements.

Section 60CC(3)(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

1. The parents live in reasonably close proximity to each other and to the maternal grandfather. There is no evidence before the Court with respect to any practical difficulties or expenses of the child spending time with parents under either proposal. The maternal grandfather's proposal, which involves the children residing with him during the week reflects the status quo and, consequently, there seems to be little difficulties in a practical sense nor any expenses in the parties accommodating his proposal.

2. There is no evidence before the Court from the mother about how she would manage transporting the children to their schools each day.

Section 60CC(3)(f) – the capacity of each of the child‘s parents and 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

1. Thus far the mother has demonstrated little capacity to care for the children on a consistent basis and provide for their intellectual and emotional needs. During the time when they were in her full-time care in late 2013 to early 2014, the DHS observed her parenting skills thus:

   "She stated that in terms of caring for the children she advised that she does not know where to start as she is never really parented long-term before and does not know how…..She explained that she has decided to parent by letting the children make their own decisions by giving three options they choose an option. She has developed a routine chart broken into to 30 minute increments from 5am so that the children can also tell what needs to happen. When questioned what would happen if her schedule did not work for any reason she replied that they would all sit down and decide where it went wrong and get back on schedule. In terms of discipline she explained that the children have a timeout. X has a timer which he sets so he knows how long his punishment is for. Time out has alarm says he has to sit on bed. Y has to pick a toy which gets locked away for the rest of the day. They punish themselves. Ms Thorn stated that if she does something wrong she gets punished as well so the children tell her what she has done wrong and they punish her" (p.10).

2. The writers opinion at the time, which I agree with, was:

   "Although Ms Thorn has the children's best interests first and foremost, and she has strongly indicated that she wishes to be a full-time parent to X and Y, it is the assessment of the writer that she does not fully understand parenting and the need to set boundaries and routines in order for the household to run smoothly. Ms Thorn has sought supports and has developed a schedule in 30 minute increments to allow her and the children to be up to work as a unit on a daily basis. Ms Thorn lacks insight into Child Protection concerns that children do not always work to a schedule and that if the day does not run as planned, she was unable to state how she would be able to cope with that" (p.11).

3. The mother's response when read this part of the DHS report was that in her home the children are treated as adults in training and her goal is to allow them to be the most responsible adults that they can be. When asked whether they may be too young for such an approach, the mother said she understood that but they are never too young to learn. The mother said that she consults with the children and allows them a voice in the setting of the rules and application of the rules in the house.

4. The mother’s case is that she is unable to learn the skills of a parent until she has the full-time care of the children. She says that support services such as Child First only operate during week days.

5. The capacity of the parent to provide for a child or children's needs necessitates a consistent and stable level of care or involvement in the child or children's lives. The mother's capacity to provide such care on a consistent basis is dependent upon her ability to manage her vulnerability to depression, mood instability and impulsivity. It is clear from the evidence that she has struggled to do this.

6. Ms K reported in her Family Report dated 31 October 2014, from the DHS case closure summary completed 15 March 2014  (at [84]):

   “The mother believes that she is able to parent children even though they have complex needs which she does not fully understand, and the fact that she is not parented for the last 7 years. The mother is having difficulty understanding her own mental health needs.

   CP believes that the mother has no concept of being able to parent on a full-time basis and has no contingency should things challenge the routine.

   The mother is unable to identify the hierarchical system of child to parents. She believes that she is equal and level with the children and they make up all the rules on how the house runs.

   This concept of parenting concerns CP as there appears to be no one that can make parental decisions for the family if left to the mother and the two children.

7. I accept that the mother has taken steps during the period since this report was made to improve her understanding of the children's special needs and to improve her parenting skills, however, on the basis of the evidence given by the mother during the proceedings, I remain concerned that her understanding of the appropriate boundaries and hierarchy as between parent and child is limited. I am not yet satisfied that she has a clear ability to establish consistent boundaries within which the children can be cared for.

8. In the first Family Report dated 31 October 2014, Ms K reported the maternal grandfather saying that from June/July 2014 he arranged with the mother that she collect the children from each of the paternal grandparent’s houses on Saturday afternoon but that she was unpredictable in relation to attending at the paternal grandparents homes. The mother’s evidence in relation to this, was that at the time she was homeless trying to pay rent and could not afford to pay for fuel and struggled to spend time with the children on a regular basis.

9. The children's fathers have not demonstrated the capacity to meet the needs of the children, they have never lived in the care of their respective fathers. I agree with the opinion of Ms K in her first Family Report dated 31 October 2014 that “it is disappointing that neither child's father has shown a responsibility towards them.”

Section 60CC(3)(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

1. The children are young, being eight and five years old respectively and both have special needs.

2. The mother is relatively young and has had chronic mental health issues including depression, ADHD and Borderline Personality Disorder.

3. Both the children’s fathers are relatively young and have had very limited involvement in their children’s lives.

4. Section 60CC(3)(h) is not relevant to these proceedings.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. When these proceedings were in their early stages, it was apparent from the independent documentary material; namely, the DHS report dated 26 February  2014 and the Family Report dated 31 October 2014, that the mother related to the children in an immature and childlike manner.

2. To her credit, the mother has engaged in appropriate counselling and implementing strategies she has learned in counselling with X and, according to the Family Report dated 15 June 2015, she is reading a book “Raising Happy Kids” which is also been helpful for her ([25]).

3. While I am satisfied that the mother has developed a more mature approach to parenting, she needs to build on this learning. It seemed to me, from her evidence, that she still had not grasped that appropriate parenting requires a hierarchical structure in which she was the mother and the children are her children not her friends.

4. In the future, the mother’s attitude and responsibilities to parenthood will be affected by her capacity to manage her vulnerability to depression, mood instability and impulsivity. This will require her to maintain her therapeutic and psychiatric treatment.

5. For the mother’s proposed parenting orders to be in the best interests of the children she would have need to have developed a mature and child focused approach to children and to have sustained over a period of time consistency and stability in relation to her mental health issues. The evidence before the Court is that she has not yet reached that stage. This is not to say she may well do so into the future.

6. The orders proposed by the maternal grandfather and supported by the ICL, enable the mother to develop a level of maturity in parenting and stability in her life over a period of time. She will be able to utilise school holidays to engage in child support services to assist her with parenting and to enable her to develop and implement appropriate parenting strategies. A consideration which the Court believes is relevant is whether, in any orders made, provision should be made for the mother to spend time during the school week, so as to enable her to engage with the children’s school and manage the day-to-day demands of caring for children whilst they are at school, whilst she is supported by appropriate services.

Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter

1. The mother claims that she has been subjected to abuse by her parents. In my opinion the mother seems to interpret boundaries that are set for her by her parents as abuse. I do not accept the mother’s claims.

2. The mother has also given evidence that she herself has been subject to violence in the form of stalking by various people within her friendship group. As I have earlier indicated, it is a concern of the Court in considering the mothers proposed parenting orders, that the children may well be exposed to this violence or violent incidents.

Section 60CC(3)(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.

1. There is no doubt that it is in the best interests of the children that the litigation finalise and orders are made that will endure for a reasonable period of time.

2. In crafting parenting orders with the objective of avoiding the institution of further proceedings in relation to the children, at least for the medium term future, the following factors are relevant:

   a)the children’s special needs and the desirability of consistency and stability in their lives;

   b)the mother’s chronic mental health issues which necessitate, for her, ongoing treatment by medical practitioners and support of appropriate support services;

   c)the pivotal role the maternal grandfather has played in being part of the children’s lives and for the last period of almost two years, being their primary caregiver which has required him to attend to their intellectual, emotional and mental health needs;

   d)the involvement on a regular basis of the children’s paternal grandparents;

   e)the limited role the children’s fathers have played in their lives, together with the fact that they do not appear to wish to increase their involvement in their children’s lives.

3. It will be obvious that I am not confident that the mother can yet sustain consistency in her capacity to care for the children for long periods of time. It seems to me that her parenting proposals are not likely to work in the sense that they may place on her demands and stresses that she would not yet be able to manage. In other words, I have formed the view that her parenting proposals would be most likely to lead to further litigation.

4. On the other hand, I am satisfied that the parenting orders proposed by the maternal grandfather and supported by the ICL are orders which are least likely to lead to further litigation.

Section 60CC(3)(m) -any other fact or circumstance that the court thinks is relevant.

1. There are no other facts or circumstances which have not already being considered, that I consider relevant.

S.61DA – Equal Shared Parental Responsibility

1. The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4). It is to be noted that where the presumption does not apply, in circumstances where the Court has reasonable ground to suspect abuse of the child or family violence has occurred, the Court nonetheless retains the discretion to order equal shared parental responsibility.

1. The ICL and the maternal grandfather propose that the maternal grandfather has sole parental responsibility for the children.

2. Having regard to the evidence, I am not satisfied that the mother is able to engage, communicate and consult with the father in a mature fashion with respect to long term issues affecting the children. The mother’s oral evidence to the Court is replete with blame on her parents; firstly, the maternal grandmother and then the maternal grandfather for many things that have gone awry in her life. For instance, she blames her mental deterioration and admission to (omitted) Psychiatric Unit on the fact that she says her father made an adverse judgement about her. She made general allegations during the proceedings about the abuse she has suffered at the hands of her father. These allegations are completely unsupported and I reject them. In her Family Report dated 31 October 2014, Ms K observed that, "there was no indication during the interview that Ms Thorn was conscious that her mother and father had been helpful to her with the children. On the contrary she was resentful of their interference." ([92]) This attitude towards her parents accords with the tenor of the mother's evidence to the Court. This is not merely a question of lack of gratitude but is indicative of the mother’s capacity to engage with her father for the purpose of focusing on her children.

3. Furthermore, I am not confident that the mother has developed sufficient maturity to be able to engage with her father in genuine consultation about the children’s long-term issues. This does not mean that she should not be informed about the matters relevant to the children’s long-term interests which her father is considering.

4. I should note that neither of the children’s fathers sought orders that they have equal shared parental responsibility. I am satisfied that given their very limited involvement and interest in their children’s lives such an order would not be in the children’s best interests.

5. Having regard to the evidence before me I find that it is in the children’s best interest that the maternal grandfather have sole parental responsibility for them.

s.65DAA – Equal Time or Substantial and Significant Time

1. As I have decided that the presumption under the Act of equal shared parental responsibility is rebutted, I am not required to consider firstly, whether it is in the best interest of the children and is reasonably practicable for the children to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1). Nor am I required to then consider whether it is in the best interest of the children and is reasonably practicable for the children to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2).

2. Substantial and significant time is defined in s.65DAA(3) of the Act as:

   (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child's daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent

3. The children’s best interests necessitate that the mother establishes and maintains a consistent routine of spending quality time with her children. An order enabling her to spend such time on weekends and during the holidays will, in my opinion, provide her with the foundations for establishing consistency and stability in her care for the children.

4. I appreciate the mother’s desire to be involved in the routine of the children’s day-to-day lives, but this must be approached on a cautious basis. I am satisfied that the mother should be involved in occasions and events that are of special significance to her. There seemed to be no reason why it would not be reasonably practicable for this to be achieved.

What orders should be made?

1. The children’s stability and security living with their maternal grandfather and foster sister Z, should be maintained. I am satisfied that the maternal grandfather has appropriately engaged with support services to assist him in the care of the children and he should continue to do this.

2. I am satisfied that the maternal grandfather is able to take appropriate protective action in the best interests of the children and has a good relationship with the children’s paternal grandparents and sufficient relationship with their fathers to ensure that the children maintain an ongoing relationship with them. I do not accept the mother’s evidence that he has interfered with her relationship with her children. If the time spent with them has been less than she would want, I am satisfied that this is because she has either engaged in conduct or has become involved in incidents which pose risk factors for the children. I am satisfied that the father is in the best position to understand the mental health issues confronting his daughter and to be sensitive to circumstances where her mental health has deteriorated.

3. I am satisfied that the maternal grandfather has taken the role of primary carer of the children, not because he does not want the children to have a meaningful relationship with the mother, but because he is very aware that without his presence in their life there would be no adult of the family who would be able to care for them on a full-time basis. I am further satisfied that he is committed to his daughter developing a meaningful relationship with her children and, if the circumstances permitted, he would facilitate the mother spending increasing time with the children. In other words, I am satisfied that he would prefer to be in the grandfather role but until such time as his daughter is capable of undertaking the responsibilities associated with parenthood, he has accepted and is committed to, taking on the parental role for these little children.

4. For the reasons set out in this judgment, it is vital for the children’s emotional needs that the mother maintains her engagement with her current support services and medical treatment. The evidence suggests that when the mother becomes overwhelmed with stresses in her life, she will disengage from these support services. This is unfortunate because it is precisely at this time that she needs those services. In the children’s best interests, therefore, I am satisfied that her time with the children must be dependent upon her maintaining her engagement with these services and her medical treatment.

5. I have taken into account the mother’s desire to spend time with the children during the week so that she can be involved in their daily routines and further can learn appropriate parenting skills with the assistance of support services such as Child First. I am satisfied that it would be in the children’s best interest to make orders that allow this to occur after a period of time and subject to the mother maintaining consistency in the time she spends with the children.

6. On the basis of the evidence before the Court and the consideration of the factors relevant to the best interest of the children I am satisfied that orders should be made which include the following:

   a)the maternal grandfather have sole parental responsibility for the children;

   b)the children live with the maternal grandfather;

   c)the mother spend time and communicate with the children: on three weekends in each month, for one week in the school term holidays and two weeks over the summer school holidays and on special occasions such as the children’s birthday, the mother’s birthday, Mother’s Day and Christmas;

   d)the mother’s spend time with the children, following a consistent period in accordance with the orders, increase to include a weeknight in one week each month;

   e)the children’s fathers time with the children be as agreed with the maternal grandfather;

   f)the maternal grandfather to continue to engage with support services to assist his care of the children;

   g)the mother’s time with the children be conditional upon her maintaining contact with the (omitted) Mental Health services and her treating medical practitioners and comply with all treatment recommendations;

   h)the maternal grandfather do all things necessary to ensure that the mother and the fathers are provided at their individual expense with copies of all school reports, newsletters and notices to which a parent would normally be entitled.

7. None of the parties addressed the question of how the changeover of the mother’s time with the children should occur. Nor is there any evidence before the Court about how this has been occurring. Consequently, I will not include an order for changeover on the basis that this is a matter that is not in dispute between the parties.

Conclusion

1. For the reasons set out in my judgment, I will make the order set out above.

I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  18 September 2015