Wearing & Anor and Green & Anor

[2020] FamCA 525

FAMILY COURT OF AUSTRALIA

WEARING AND ANOR & GREEN AND ANOR [2020] FamCA 525

FAMILY LAW – CHILDREN – Interim – Best interests – With whom the child shall live and spend time – Where current interim orders provide for the subject child to live with the mother and spend time with the paternal grandparents – Where the paternal grandparents seek a reversal of the child’s residence prior to final trial – Where the paternal grandparents allege the risk of harm to the child is unacceptably high in the mother’s care – Where the mother, the Intervener and the Independent Children’s Lawyer refute the contention – Where there is no dispute that the child has a meaningful relationship with the mother from which he derives benefit – Where there is a live dispute over the single expert’s opinion that the child may be primarily attached to the paternal grandmother rather than the mother – Where the child has an important relationship with the paternal grandmother – Where there is no suggestion the child is currently at any risk of harm due to subjection or exposure to family violence in the mother’s care – Where the paternal grandparents allege the child is exposed to the risk of both physical and psychological harm by reason of the mother’s neglect of his needs – Where the potential risk of neglect arises from the mother’s unstable emotional condition and cannabis use – Where the paternal grandparents rely primarily on the opinion evidence of the single expert – Where the single expert is generally supportive of the child’s transition into the full-time care of the paternal grandparents but does not recommend the child’s immediate removal from the mother – Where the paternal grandparents are not necessarily supportive of the child’s relationship with the mother – Where limitations to the paternal grandparents’ capacity to meet the child’s physical and emotional needs – Ordered the child live with the mother subject to her compliance with the Intervener’s directions relating to drug screening – Ordered the child spend time with the paternal grandparents each weekend – Ordered the paternal grandparents are restrained from allowing the child’s unsupervised contact with the father – Any and all interim applications dismissed – Application for costs made orally by the mother is dismissed.

FAMILY LAW – CHILDREN – Parental Responsibility – Where presumption of equal shared parental responsibility is rebutted – Where parental responsibility should be allocated to the party with whom the child lives – Where interim orders made for the child to continue to live with the mother – Ordered the mother have sole parental responsibility for child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Banks & Banks (2015) FLC 93-637
Goode and Goode (2006) FLC 93-286
SCVG & KLD (2014) FLC 93-582

APPLICANTS: Mr Wearing &
Ms Wearing

RESPONDENT: Ms Green

INTERVENER: Secretary, Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2682 of 2017

DATE DELIVERED: 11 June 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 11 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Gardiner

SOLICITOR FOR THE APPLICANTS: Hotop Family Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Russo, Dean Lawyers

COUNSEL FOR THE INTERVENER: Ms Carty

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Blackman, Legal Aid NSW

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.All former orders relating to the child Z, born … 2017, are discharged.

2.The mother shall have sole parental responsibility for the child.

3.The child shall live with the mother, subject to her compliance with the Intervener’s directions about her submission to:

a.Chain of custody urinalysis testing, no more frequently than fortnightly, at the expense of the Intervener; and

b.Hair follicle testing, on no more than two separate occasions, at the expense of the Intervener.

4.The parties shall take all reasonable steps to ensure the child spends time with the paternal grandparents each weekend from 9:00 am Saturday until 4:00 pm Sunday.

5.For the purposes of implementing Orders 3 and 4 hereof, the parties shall arrange the child’s exchange at the Suburb V Railway Station.

6.The paternal grandparents are restrained from allowing the child’s unsupervised contact with the father, Mr M Wearing.

7.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8.Save as to costs:

a.The Application in a Case filed by the paternal grandparents on 24 March 2020 is dismissed;

b.The Amended Response to an Application in a Case filed by the mother on 25 May 2020 is dismissed;

c.The Response to an Application in a Case filed by the Intervener on 10 June 2020 is dismissed; and

d.Any and all other outstanding interim applications are dismissed.

9.The respondent mother’s oral application for costs against the applicant paternal grandparents is dismissed.

BY CONSENT, IT IS ORDERED THAT

10.The Application-Contravention filed by the mother on 16 April 2020 is dismissed, with no order as to costs.

NOTATION

A.The parties intend to approach the Court about the matter being listed for final trial at the earliest available date.

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 Wearing & Green and Anor 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 NEWCASTLE

FILE NUMBER: NCC 2682 of 2017

Mr Wearing & Ms Wearing

Applicants

And

Ms Green

Respondent

And

Secretary, Department of Communities and Justice

Intervener

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1.These proceedings were commenced by the paternal grandparents on 5 September 2017. At that time, the subject child was barely six weeks old and was living with the respondent (“the mother”). The child was born in … 2017 and is now nearly three years of age.

2.The father was named as a respondent to the proceedings, but he did not actively participate. He filed a Notice of Discontinuance in June 2018 and was formally removed as a party by an order made on 2 July 2018.

3.The Independent Children’s Lawyer (“the ICL”) was appointed to represent the child’s interests in February 2018.

4.The child welfare authority (“the intervener”) sought and was granted leave to intervene in the proceedings in August 2018.

5.In September 2018, Cleary J made interim parenting orders. In effect, the orders provided for the child to live with the mother (subject to compliance with certain conditions), to spend time with the paternal grandparents each weekend from Saturday morning to Sunday afternoon, and to restrain the paternal grandparents from allowing the child to have any unsupervised contact with the father.

6.The paternal grandparents and the mother now make reciprocal allegations of their breaches of those orders. Nonetheless, the orders operated relatively unremarkably until March 2020, when the paternal grandparents withheld the child from the mother. This current interim dispute erupted at that time. The child was later restored to the mother’s primary care, but the evidence before me does not indicate precisely when. Regardless, it is common ground the parties have resumed compliance with the existing orders. 

7.Nevertheless, the paternal grandparents persist with their interim application to reverse the child’s residence. Their case is that the dispute cannot await final trial (expected within the next six months) and must be determined now on untested evidence, because the risk of harm to the child in the mother’s care is unacceptably high. That contention is refuted by the mother, the intervener and the ICL.

Proposals

8.The paternal grandparents moved on their Application in a Case filed on 24 March 2020. Essentially, they seek to reverse the child’s residence so that he instead lives with them and for the child to spend only supervised time with the mother. They envisage that the supervised time will be suspended if the mother returns any positive test results for illicit drug use. 

9.The mother relied upon her Amended Response to an Application in a Case filed on 25 May 2020. In effect, she seeks maintenance of the existing interim orders, save for two variations. The first is a variation of the changeover venue and the second is the restraint of the paternal grandmother from corresponding with, or even coming near, her. 

10.The intervener abandoned, during the course of submissions, the Response to an Application in a Case it filed only yesterday (10 June 2020). Instead, the intervener ultimately sought retention of the existing interim orders. 

11.Likewise, the ICL sought only retention of the existing orders.

Evidence

12.To prosecute their application, the paternal grandparents relied upon:

a)the affidavit of the paternal grandmother filed on 24 March 2020; and

b)the affidavit of the father filed on 9 June 2020.

13.The paternal grandparents wanted to rely upon two other affidavits filed by the paternal grandmother, but leave was refused. The paternal grandmother’s affidavit filed in January 2020 was prepared and filed before the current interim application was even made in March 2020. The paternal grandparents conceded it was unnecessary to rely upon the paternal grandmother’s affidavit more recently filed in June 2020, given the acceptance of the father’s affidavit.

14.The mother relied upon her affidavit filed on 2 April 2020. 

15.The intervener relied upon the affidavit of the caseworker, Ms Y, filed on 10 June 2020. No objection was taken by any party to the lateness of the intervener’s material. 

16.The parties and the ICL relied upon the single expert report of Dr P, clinical psychologist, prepared by him on 13 March 2020.

Legal Principles

17.Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

18.When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

19.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

20.The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

21.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

22.Those statutory considerations apply not only to final parenting orders, but also to those which are made on an interim basis, as in the case at hand.

23.In Goode and Goode (2006) FLC 93-286 at [68], the Full Court commented upon the procedure for conducting an interim hearing in the following terms:

…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

24.In Banks & Banks (2015) FLC 93-637 at [47]-[50], the Full Court noted that a paucity of uncontested evidence “means that only limited consideration may be given to the factors prescribed by s 60CC of the Act”. The Full Court also noted “interim parenting proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at final trial”. Not every s 60CC factor need be discussed in that process.

Child’s best interests

Section 60CC(2)(a)

25.There was no dispute the child has a meaningful relationship with the mother from which he derives benefit. 

26.There is a live dispute over the single expert’s opinion that the child may be primarily attached to the paternal grandmother rather than to the mother. Irrespective, the child has an important relationship with the paternal grandmother and, although that is not a primary consideration, it is nonetheless an additional consideration pursuant to s 60CC(3)(b)(ii) of the Act.

27.I pause at this juncture to observe the single expert’s reservations about whether the paternal grandmother appreciates the importance of the child’s relationship with the mother. At [101] of the single expert report, the single expert said:

[The paternal grandmother] is likely to maintain connection between [the child] and his mother, but will seek to minimise that. In my view, [the paternal grandmother] distrusts [the mother] but recognises the need for [the child] to have a meaningful relationship with his mother, and with his new sibling. She will, however, seek to control that, and she will exercise conditional support for that relationship depending on her view of [the mother’s] drug use or mental health…

(Emphasis added)

28.It is unnecessary to discuss the nature of the child’s relationship with the father because, voluntarily, he is not a party to the proceedings and seeks no orders in relation to the child.

Section 60CC(2)(b)

29.This is an important consideration because, as submitted, it is pivotal to the success of the paternal grandparents’ application.

30.Although there is evidence of the father’s past perpetration of family violence against the mother and the paternal grandparents, there is no suggestion that the child is currently at any risk in the mother’s care due to his subjection or exposure to family violence or abuse.

31.The paternal grandparents’ case is that the child is exposed to the risk of both physical and psychological harm by reason of the mother’s neglect of his needs. Further, it is said that the risk is unacceptably high and can only be satisfactorily attenuated by the child being professionally supervised when in the mother’s care. The potential of the mother’s neglect is said to arise from her unstable emotional condition and her use of cannabis.

32.At this point it is convenient to start with some uncontroversial facts. The mother has used cannabis for a long time. She still uses cannabis. She has failed to produce drug-screen tests in the past, in breach of the existing interim parenting orders which require her to do so.

33.That evidence of itself warrants a cautious approach being taken, but it does not, without more, prove the risk asserted by the paternal grandparents. To substantiate the risk of harm, the paternal grandparents relied primarily, if not exclusively, upon the opinion evidence of the single expert.

34.The single expert made several important observations in his report upon which the paternal grandparents relied. I will advert to a selection of them.

35.At [12] of the report the single expert said that, of the drug screens produced by the mother which he had seen, her use of cannabis showed “some fluctuating levels” in 2019, but he regarded her cannabis levels in September and October 2019 to be “extremely high”.

36.At [50] of the report the single expert noted that the mother, at that point in time, “seemingly adamantly refuses” to submit to urinalysis screens.

37.At [95] of the report the single expert said that the mother continues to present as an “immature and self-absorbed young woman” who lacked insight into her behaviour and continued to act in ways that revealed “poor emotional and behavioural regulation” and who was in denial about her drug use.

38.At [111] of the report the single expert commented that he believed the risk posed by the mother was, in part, a function of her “mental health issues” and that her drug use was an attempt to self-medicate those problems. He regarded her as showing no insight into those difficulties.

39.However, the single expert also noted that there is some level of risk to the child posed in the paternal grandparents’ home.

40.At [106] of the report the single expert said his main concern in relation to the paternal grandparents is their ability to balance their loyalty to the father (their son) and the need for them to be protective and loving towards the child.

41.At [110] of the report the single expert concluded that the risk of the child’s neglect in the mother’s care was substantially higher than in the care of the paternal grandparents, but, inferentially, he still sees some risk for the child within the paternal grandparents’ household.

42.At [112] of the report the single expert commented that the “actuarial risk” posed by the paternal grandmother is “moderate”.

43.Ultimately, while the single expert is generally supportive of the child’s residence with the paternal grandparents, he is not recommending the child’s immediate removal from the mother’s care. Rather, he contemplates either of two scenarios. 

44.At [102] of his report the single expert said:

…A change in circumstances needs to occur: [the child] needs to be with one family most of the time, but with meaningful contact with the other. There are two scenarios.

45.The first scenario posed by the single expert at [103] was the child’s transition into the full-time care of the paternal grandmother. The second scenario posited by the single expert at [104] was the child’s transition into the full-time care of the mother. Clearly, the single expert expresses a preference for the first option but does not rule out the second option. 

46.Although it may be trite to say so, the single expert’s evidence is not dispositive, even when it is tested under cross-examination, which has not yet occurred. 

47.The intervener outlined some areas of dispute in relation to the information which forms the foundation of the single expert’s opinions. One must remain open-minded to the prospect of the single expert altering his opinions, once tested and once furnished with updated information at the trial. Besides, there is other evidence to consider apart from that of the single expert.

48.The intervener’s caseworker deposed that a visit was conducted at the mother’s home in February 2020 for the purpose of a safety assessment. That was very shortly after the birth of the mother’s second child, who is now barely five months of age. That home visit was unannounced and the caseworkers who attended the mother’s home noted there were no concerns of cannabis smoke or smell in the home, the home was clean, and no cannabis or associated drug paraphernalia was observed. The mother was calm and was able to talk sensibly to the caseworker.

49.The caseworker reports that, on 10 March 2020, another home visit was conducted with the mother for the purposes of gathering information for a new risk assessment in respect of the child who is the subject of these proceedings and the mother’s new baby. On that occasion, there was no evidence of cigarettes or cannabis being smoked inside the home and none of the adults who were present appeared drug-affected.

50.The mother informed the caseworkers that she had attended her intake appointment with an indigenous drug-rehabilitation organisation, to which I will turn in more detail shortly, and she had already commenced weekly drug and alcohol counselling to support her reduction of cannabis use.

51.The caseworker reports viewing records of the NSW police who attended the mother’s home at 9.15 pm on 15 March 2020. The police report indicates the child was in bed. The police did not smell any cannabis in the house and there were no other adults in the home. The police noted there was plenty of food and baby items in the house. The house was clean and the children appeared well cared for. The mother showed police some drug-smoking accoutrements in the house, admitting she still used cannabis, but said she had begun her rehabilitation. The police did not regard the mother as drug-affected, even though it was 9.15 pm. 

52.Following upon those visits, the intervener prepared a “Family Action Plan”. That action plan was prepared on 6 April 2020 in the intervener’s full knowledge of the single expert’s report, prepared and disseminated several weeks before on 13 March 2020. The intervener was aware that the single expert considered there were risks to the child in the mother’s home and the intervener attempted to take account of those risks in the action plan.

53.The action plan is annexed to the affidavit of the caseworker and it indicates that the mother, her partner, the child and the new baby have a support network comprising both family and professionals.

54.I referred a short time ago to an indigenous drug-rehabilitation program with which the mother has now engaged. It is called the BA Program. She receives rehabilitation and relapse-prevention counselling. The mother was formerly ordered by Cleary J, in September 2018, to attend S Organisation for drug rehabilitation. Suffice to say, the mother did not do so and is in breach of that order. Nonetheless, it seems as though, with the assistance of the intervener, she recently engaged with and remains engaged with the BA Program. 

55.In addition, the intervener has referred the mother to her general practitioner for general review and a mental-health plan.

56.As I said, the action plan was prepared on 6 April 2020 and it will be reviewed after three months, on or about 6 July 2020.

57.Although the mother is still using cannabis by her own admission, the evidence suggests there has been a recent change of attitude on her part. After a long history of refusal to comply with drug tests, the mother has recently reversed her position. She has attended, at the direction of the intervener, a pathology laboratory and reports have been produced for her on 27 March 2020, 4 April 2020, 10 April 2020, and 2 May 2020. She attended for another test on 16 May 2020, but no qualified technician was available and the pathology laboratory was unable to conduct the test.

58.In addition, the intervener reports the mother and her partner have both agreed to undertake hair-follicle testing, which test has greater longitudinal capacity to detect illicit drug use. That hair-follicle testing was scheduled to take place last week but has been rescheduled.

59.That evidence tends to erode the premise for the single expert’s opinion, encapsulated at [111] of the single expert report, upon which the paternal grandparents heap so much weight.

60.At that point in the report, the single expert said he “believed” the mother showed no insight into her drug use, which he considered was her way of self-medicating her “mental-health issues”. Self-evidently, the mother’s adherence to the drug-testing schedule over the last two months and her engagement with the indigenous drug-rehabilitation organisation suggests a different attitude from that assumed by the single expert.

61.While, clearly, there remains a risk the mother will intoxicate herself, thereby impairing her parenting capacity and causing her to neglect the child, which would place the child at some risk of harm, the evidence does not demonstrate the risk is so potent that it demands the child’s immediate removal from the mother’s care.

62.It may be the paternal grandparents eventually succeed with their claim to reverse the child’s residence at final trial, but that would only be through the benefit of reliable findings of fact and inferences based on thoroughly tested evidence.

Section 60CC(3)

63.No submission made by the ICL or any party touched upon ss 60CC(3)(a), (c), (ca), (d), (e), (g), (i), (j), (k), (l) or (m) of the Act, so far as I can tell. If those factors are regarded by the parties and the ICL as unimportant, it is unnecessary for me to address them.

64.As the Full Court has said, reasons for judgment only need address the contentious factual and legal issues which are engaged between the parties (SCVG & KLD (2014) FLC 93-582 at [78]).

65.Nor was any submission made under s 60CC(3)(b)(ii) of the Act in so far as it relates to the mother’s partner, Mr N, but there is some relevant evidence in that regard. The single expert reports at [18] of his report that the child appeared to have a “very strong relationship” with Mr N. The paternal grandparents conceded it to the single expert, so there can hardly be any factual dispute about it.

66.At [74] of the single expert report the single expert noted his observation of the mother and her partner with the new baby and the child. The single expert said that the child was:

…responsive to both [the mother] and to [Mr N]…

67.I draw the inference that not only does the child have a meaningful relationship with the mother, but that he is also fondly attached to the mother’s partner.

68.I turn to s 60CC(3)(f) of the Act, which concerns the capacity of the mother and the paternal grandparents to provide for the child’s needs.

69.The mother’s capacity has been satisfactorily discussed under s 60CC(2)(b) of the Act and no more can be usefully said.

70.There is something else to be said, however, about the paternal grandmother’s capacity on several levels.

71.She works full-time in Sydney and commutes to that employment from her home in the D Region. The single expert reported at [33] of the report that, on weekdays, meals in the paternal grandparents’ home are late because they wait for the paternal grandmother to arrive home from work.

72.At [32] of the report, the single expert sets out how the paternal great-grandmother (Ms B, aged 85 years) is the “primary carer” of the child whenever the child is within the care of the paternal family on weekdays. In fact, the paternal great-grandmother is often responsible for meeting the mother to exchange the child.

73.At [106] of the single expert report, the single expert made this comment:

… [The father] remains the most important caveat to the capacity of the [paternal] grandparents to meet [the child’s] needs as their work necessarily makes [the child] dependent on the [paternal great-grandmother] who, as she is aging, will become more dependent on [the father] for support…

74.No submission at all was made about how the paternal grandmother would have the physical capacity to manage her work commitments, including the daily commute to and from Sydney, with her proposed newly-adopted role as the child’s primary carer. There was no evidence at all that the paternal grandfather could assume the role. 

75.I conclude on the available evidence that there is a very clear impediment to the paternal grandparents now assuming the role of primary care for the child. They would necessarily have to rely heavily upon the paternal great-grandmother and, perhaps to a lesser extent, the father in circumstances where the injunction concerning the father has already been the subject of commentary.

76.The paternal grandparents presently pose some form of risk to the child by reason of the way in which they manage the father. The injunction made against the paternal grandparents in September 2018 provided as follows:

…

(16)That the paternal grandparents, and each of them, shall be and hereby are restrained by injunction from:

(a)Allowing or permitting the father to spend any unsupervised time with the child;

…

77.The single expert reported that the father admitted he, too, continues to smoke cannabis and is on parole. The father admitted to the single expert that he had been “going quite badly until recently” and he had a “tempestuous relationship” with the mother. I have already indicated how, later in the report at [106], the single expert considered the father to be the most important caveat to the capacity of the paternal grandparents to meet the child’s needs.

78.As I indicated earlier, the paternal grandparents relied upon the father’s affidavit. According to the contents of that affidavit, the father lived with them until April 2020. He then moved out with his current partner, before moving back into the paternal grandparents’ property in May 2020. He deposes that he left the property again in June 2020. Even if that evidence is accepted without equivocation, it is clear that the father is prone to float in and out of the paternal grandparents’ household.

79.That is significant because the evidence adduced by the intervener proves the NSW police conducted a welfare check on the child at the paternal grandparents’ home when they withheld the child from the mother in March 2020. The police reported that when they attended the property the child was observed in the care of the father, but the paternal grandmother was not present. There is no indication the paternal grandfather was present, which remains possible, but it was not suggested in answer to that evidence during submissions that the paternal grandfather was present, in which event the paternal grandparents would then have been in breach of Order 16(a) made by Cleary J in September 2018.

80.Lastly, I have already touched upon this issue, but the paternal grandparents are not necessarily supportive of the child’s relationship with the mother. While the single expert was satisfied the paternal grandmother was likely to maintain the child’s connection with the mother, if he lives with the paternal grandparents, he considered the paternal grandmother would “seek to minimise” that relationship.

81.Self-evidently, there are some limitations to the paternal grandparents’ capacity to meet the child’s physical and emotional needs.

82.Finally, in deference to s 60CC(3)(h) of the Act, I note the mother and the paternal grandmother identify as indigenous, even though not mentioned by anyone in submissions.

Conclusions

83.Returning, then, as the law requires, to the question of parental responsibility, I am required by s 61DA of the Act to apply the presumption of the child’s parents being vested with equal-shared parental responsibility for the child. Even if there is no firm basis to find the past commission of family violence between the mother and the father, allowing for the father’s concession to the single expert of it being a “tempestuous relationship”, to thereby render the presumption inapplicable (s 61DA(2)), the presumption is comfortably rebutted by the evidence (s 61DA(4)).

84.The father, by his own admission, is disinterested in participating in these proceedings as a party. He obviously wants no connection with the mother. The parents, so far as the evidence goes, have no interaction with one another, in which case it would be impossible for them to confer in the manner which the Act requires (s 65DAC). Accordingly, equal shared parental responsibility will not be conferred on the mother and the father. Rather, parental responsibility should be vested in the party or the parties with whom the child primarily lives.

85.Curiously, no party nor the ICL made any submission at all about the allocation of parental responsibility for the child. Without an order, parental responsibility would remain vested by law in the mother and the father (ss 61B and 61C), which, as I have just explained, is an untenable situation. 

86.The child has primarily lived with the mother since birth, but spends regular time with the paternal grandparents. No reasonable basis has been demonstrated to warrant peremptory removal of the child from the mother’s primary care. In my view, the child should live with the mother and she should have sole parental responsibility for the child on an interim basis. 

87.There are some risks in the mother’s household but also, apparently, in the parental grandparents’ household. The risk in the mother’s household is not so pronounced that it demands immediate remedy. The controversy should be allowed to play out at final trial.

88.The orders made in September 2018 fixed the changeover venue in the D Region but, sometime later, the mother moved to Sydney and the parties commendably began using another changeover venue to suit them. The mother now wants an order made formally fixing the changeover venue as the Suburb V Railway Station. The paternal grandparents made no counter proposal because they invested the entirety of their interest in this case in the reversal of the child’s residence. When alerted to the likely dismissal of their application and were asked for an alternate proposal about the changeover venue, through their counsel, they nominated the Suburb BC Railway Station.

89.The mother’s proposal for the Suburb V Railway Station is based on its proximity to her home. As I have said, she now has a six month old baby and it is uncontroversial that she has very limited financial circumstances. Travel with two young children is obviously very difficult for her. The paternal grandparents proposed Suburb BC Railway Station, apparently because it is arbitrarily equidistant between the two households. They admit they drive to and from the changeover venue. In my view, the child’s best interests, let alone the balance of convenience, requires the adoption of Suburb V Railway Station as the changeover venue for the child. 

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

90.Mr Russo, I am not inclined to grant costs. It is effectively for this reason: the paternal grandparents have been wholly unsuccessful, which counts in your favour, but is counteracted, if you like, by their modest financial circumstances as has been explained by Ms Hotop.

I certify that the preceding ninety (90) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 11 June 2020.

Associate: 

Date:  3 July 2020