Wetherden & Grehan
[2023] FedCFamC1F 499
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wetherden & Grehan [2023] FedCFamC1F 499
File number(s): BRC 11202 of 2022 Judgment of: BAUMANN J Date of judgment: 22 March 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where the Senior Judicial Registrar ordered a change of residence to the father’s primary care – Where the mother has relocated to New South Wales – Where the children remain resident in Region B – Where the mother sought children be returned to her on an interim basis – Review Application dismissed Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 22 March 2023 Place: Brisbane Solicitor for the Applicant: Michael Dwyer, Solicitor Counsel for the Respondent: Mr Hartwell Solicitor for the Respondent: MS And Co Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid New South Wales ORDERS
BRC 11202 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WETHERDEN
Applicant
AND: MR GREHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
22 MARCH 2023
THE COURT ORDERS:
1.That the Application for Review filed 11 January 2023 be dismissed.
2.That the Order of the Senior Judicial Registrar dated 22 December 2022 remain in full force and effect.
3.That the Case Management Hearing listed 6 April 2023 be vacated.
4.That the three (3) day Final Hearing due to commence 22 May 2023 be vacated.
5.That by no later than 4.00pm on 20 April 2023, the Independent Children’s Lawyer file and serve an affidavit setting out their respective orders sought on a final basis, including an alternate proposal.
6.That these proceedings be adjourned for Case Management Hearing at 9.30am on 27 April 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That the parties have leave to appear by telephone on 27 April 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25 (AEST) on 27 April 2023; or
(b)They shall each telephone … by 9.25 (AEST) on 27 April 2023;
(c)They shall each then enter the pass code …; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
8.That the Independent Children’s Lawyer be at liberty to apply upon the giving of seven (7) days’ written notice to all parties.
9.That the mother be at liberty to apply to have the proceedings re-listed in the event she relocates to the Region B area.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wetherden & Grehan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
On 22 December 2022, a Senior Judicial Registrar made orders in two matters which followed an earlier Order made on 7 December 2022. The effect of the orders were that the child, X, born 2016 (now aged seven years), move from the primary care and almost exclusive care of her mother into the residence of her biological father, Mr Alfaro. The Orders further provided that the child Y move from the primary care of the mother into the residence of her biological father, Mr Grehan. It is the Orders of 22 December 2022 in respect of both matters that the mother has filed a Review Application which came before me today for determination.
This matter has had a very long history with many events before a number of judicial officers, but it seems to be no Judges. That is not a criticism of the judicial officers who have tried to manage what is clearly a complex and difficult dynamic that involves one mother, two fathers and two children, one aged seven years and one currently aged under two years. Nonetheless, I made that clear today to the assembled legal talent before me, being Mr Dwyer, a solicitor advocate for the mother; Mr Hartwell of Counsel appearing for Mr Grehan; Ms Fawaz, a solicitor advocate for Mr Alfaro; and Ms Marshall, Independent Children's Lawyer from Legal Aid New South Wales, who has been the Independent Children’s Lawyer in both matters for some time.
I do not propose to recite in these oral Reasons all the material that the parties relied upon. It is reflected in the volumes and volumes of affidavits, tendered documents, and the like. I made the observation early today that, frankly, the amount of material the Court had to wade through was bordering on oppressive. Nonetheless, I give credit to the parties in, at my direction, consistent with my rights under the Family Law Act 1975 (Cth) (“the Act”) to manage proceedings of a child related nature, that they tried their best to direct me to the most relevant material.
It is, of course, the nature of a Review Application that the proceedings are a hearing de novo. The issue is not whether the Senior Judicial Registrar made an error in an appealable sense. This is not an appeal from his decision or order; it is a review. Clearly, as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) make clear and as common sense would dictate, this Court is entitled to take into account all the evidence before the Senior Judicial Registrar on 22 December 2022, and any subsequent relevant evidence since then. In that regard, both fathers have provided to the Court a fresh affidavit, the effect of which is to provide to the Court evidence of how each of their respective daughters, they say, have adjusted to what was no doubt a difficult emotional journey for them on 7 December 2022.
The mother has provided a number of further affidavits, including an affidavit by a person who she regards as a grandmother of the children, it being acknowledged in much of the material that she is currently estranged from her biological mother. That lady, Ms C, clearly supports the mother. She has been not only in Court on at least two occasions before me, but she has filed affidavits in support of the mother’s position. She is prepared to supervise; provide comfort to the mother and provide a home for the mother and the girls. I take it that Ms C and her husband, who I have no evidence from but who I accept is also similarly supportive for the purpose of this decision today, will do anything she can to support the mother and what she says, as she deposes to in her affidavit, the children returning to the mother’s care as a primary carer, which she regards is in the children’s best interests.
I made the point to Mr Dwyer, of course, that Ms C is not a party to the proceedings. She has not sought that the children reside with her, but rather that the mother reside with her with the children. The mother is currently residing there. “There” is Town D, New South Wales, no doubt a delightful town in or around Region R of New South Wales, certainly some distance and at least a period of travel by car to Sydney airport and a return flight from Sydney to Region B to enable the mother to exercise time under the current Orders made by the Senior Judicial Registrar for supervised time in Region B.
The evidence from the mother identifies that there have been some difficulties with those arrangements. That is hardly surprising considering the way in which residence changed; the different levels of cooperative co-parenting that the parents are able to bring to the proceedings and to their children’s lives, and just the mere fact of distance, cost of travel, and the like. Put within the context of highly conflictual parties, I was provided with recent evidence which I gave leave to Mr Dwyer to rely upon in two of those affidavits which importantly identifies the exchange between the lawyers on so many issues. These cases deserve the tag of a high-conflict environment, one with little trust and very poor communication between the parents. That, in one sense, is one of the major risks for these children wherever they live.
The pathway in an interim parenting decision, which is what I am dealing with today, is well-illuminated by the Full Court in the case of Goode & Goode (2006) FLC 93-286, but, more particularly perhaps for the purpose of this decision, the decision of Banks & Banks (2015) FLC 93-637 where the Full Court identifies that in most cases on an interim basis, where the Court is being invited to make a decision on a truncated hearing basis where one cannot make findings that are disputed without properly testing the evidence, the Court should direct its attention to the significant s 60CC(2)(a) and (b) and s 60CC(3) factors, as are relevant in this case. The reasons which follow will identify how I have done that today.
It is, however, apparent from the submissions I have heard and the material, that these cases very much brings into sharp focus the competing primary considerations, namely, s 60CC(2)(a), being the benefit to a child of having a meaningful relationship with both parents, and s 60CC(2)(b), which must be given greater weight, namely, the risk the child might be at in the care of either of the parents who compete for the residence of the child.
Having at least looked at the new material, I was also presented today (and marked as Exhibit 1) a further police record produced and tendered by the Independent Children’s Lawyer, the most relevant of which was an entry on 8 December 2022 and a further entry in early 2023. I refer, having read those records, but including ones that go back some time as early as early 2022, to the more relevant parts of that document shortly.
I should also indicate that when this matter first came before me as the review Judge in Division 1, my hope was – and may still be – to have this matter listed for trial quickly. In circumstances where, for the reasons I will now deliver, the Court’s decision will be that the Review Application be dismissed, I am conscious that the current circumstances are causing much distress to the mother and are less than ideal for these young children. My hope was to have an early trial in this matter and, in fact, I had indicated that I could possibly give the matter a hearing as early as June this year.
However, I was informed today by Mr Hartwell for Mr Grehan that family violence proceedings between Mr Grehan and the mother scheduled to be heard in the Local Court, Town E in early 2023, were not reached. They have been adjourned now until mid-2023. As between particularly the mother and Mr Grehan, and by reference to the potential exposure of X to family violence during the relationship of the mother and Mr Grehan, any findings by a State Magistrate in relation to the family violence issues which include, I understand, elements of alleged breach of current Apprehended Violence Orders, will be very relevant, quite possibly, to determination ultimately in this matter. For those reasons it is not my intention now to fast track this matter to a trial in June 2023.
I say that because, having indicated as I have to Mr Dwyer earlier, that, for the reasons I will now deliver, I was not minded to change residence today, I sense that the mother is anxious for the matter to proceed quickly. But as I indicated to Mr Dwyer on behalf of the mother, the mother needs to be careful about being in a position to offer to the Court the best evidence about her dealing with the risk issues which I will now identify.
The Independent Children’s Lawyer made submissions to me today based on the material, broadly adopted by Mr Hartwell for Mr Grehan and by Ms Fawaz for Mr Alfaro, that the risks that the Court should be concerned about as we sit here today are as follows and, in assessing that risk without being able to make findings. Mr Dwyer for the mother in both matters made oral submissions, he having been given the opportunity at my direction to address the Court after all other submissions had been made. Those submissions, in short, contended that:
(a)the mother’s drink driving offence, whilst a strong lapse of judgement, the roadside breath analysis was higher than the blood test taken when in custody. No evidence to support this assertion was provided to the Court;
(b)although the mother says she has enrolled in a program to assist her with her excessive alcohol consumption, Mr Dwyer conceded that the evidence the mother has presented to date is vague and needs to be further explained. I am sure for a final hearing, the mother will file further evidence of her counselling/therapy and any expert opinions as to her attendance, treatment and prognosis;
(c)the mother’s drug testing must be seen within the context to her having a serious back condition, and being prescribed medication for pain management;
(d)the Court should hold some concerns about the drug testing compliance and results (detecting cannabinoids) for Mr Grehan. Mr Dwyer contended that both the mother and Mr Grehan, as previous drug users, are both vulnerable to future use which is a risk to the child in their care;
(e)Mr Dwyer accepted he was not able to direct the Court to any evidence currently before the Court that adequately responds to the concerns raised by the Independent Children’s Lawyer in respect of the mother’s current mental health;
(f)the mother continues to press, as she did before the Senior Judicial Registrar, that both children should return to live with her, supported by Ms C, in Ms C’s home in Town D, New South Wales. If the children continue to live with their respective fathers in Queensland, and as the mother is employed in the Town D area, any time between the children and the mother in New South Wales would involve extensive and costly travel. The option of the mother coming to Queensland to spend time with the children would require the mother having a place to stay when in Queensland. In that regard, Mr Dwyer submitted, without any evidence produced to support his submissions, that “a friend of [Ms C] may be able to assist in housing the mother [in Region B]; and
(g)in summary, Mr Dwyer argued that the Orders of the Senior Judicial Registrar would not have changed residence if the same material was before the Senior Judicial Registrar when the Court made those Orders. Mr Dwyer was reminded that as the Review Application is a hearing de novo, I have considered all relevant material now before me.
It is clear that, as Ms Marshall submitted, the mother has had a history of involvement with the Department. That should not of itself be regarded as a stain upon the mother, but reflective of the different relationships she may have had from time to time. Nonetheless, her behaviour as the primary carer of X, and then subsequently Y has been well-known to at least the Department in New South Wales, and it seems also the Department in Queensland.
I deal with the issue of family violence. The mother does not, it seems, make any allegations either in the child impact report which was prepared by Ms F in April 2022 that Mr Alfaro in some way had been a domestically violent partner. I will return to the child impact report when considering a further child impact report prepared in relation to Y in December 2022.
What the child impact report identified is that Mr Alfaro has had very little time with his daughter since about the age of one until the recent Orders. The father has subsequently re‑partnered and has two infant children from his new relationship. Much of the mother’s complaints to the independent Court Child Expert, Ms F, seem to be directed to how Mr Alfaro had forced, she says, Mr Grehan to sign documents that were critical of the mother. She raised somewhat vague allegations that Mr Alfaro had committed some form of sexual abuse upon her in 2016. It is clear that the father had had little time with the child, X, and offered himself as the primary carer of the child when he became more aware of some of the risks in the mother’s household through the course of the investigation into these matters.
I drew attention to the parties to the somewhat different confection of the child impact report prepared by Ms G dated 20 December 2022. In the early report of Ms F, the mother is recorded as acknowledging that she regarded the relationship with Mr Grehan as good, supportive and somewhat of a benefit and support to her. Certainly, by the time the Court was invited to consider the dynamics relating to Y, the relationship between the mother and Mr Grehan, such as it was, had broken down. By that stage there was also available through that child expert some subpoena material that suggested the mother had a significant alcohol use, which to some degree the mother accepted.
This matter seemed to bubble along for a while until the critical orders made the Senior Judicial Registrar first on 7 December 2022 and then further on 22 December 2022. They were no doubt orders that had a significant impact on the children because of the change that had come about. The issues of violence as between the mother and Mr Grehan are still matters of high controversy. There is no doubt that at one stage the Department did become very concerned about the level of violence in that household. X was, during the short relationship between Mr Grehan and the mother, exposed to whatever was going on in the home. There are allegations of drug taking and other antisocial behaviour. I have indicated some of those matters are currently before a local court for determination, but I do not ignore that the mother says that she has been the victim of family violence at the hands of Mr Grehan, which he denies.
As to how that family violence, if proved, ultimately has shaped some of the other issues, is difficult to know. What is clear is that the mother has had a significant alcohol misuse problem. This was identified particularly by the Department where they assessed the mother. I make this clear, this Court is not bound to accept this assessment of the position at that time but nonetheless it cannot ignore the assessment by a properly engaged statutory authority. The assessment made by the Department of Children, Youth Justice and Multicultural Affairs in Queensland after the Orders of 7 December 2022 includes this statement:
Despite [Ms Wetherden’s] best efforts, she has been assessed as a parent willing but unable to meet [Y] and [X’s] care and protection needs at this time. [Ms Wetherden] reports limited alcohol misuse. However, she did complete CDT testing and neuro drug testing provided by the Department [in] December 2022. Large quantities of empty alcohol bottles and cans were found inside and outside of [Ms Wetherden’s] unit throughout the investigation. Information obtained from Queensland Health indicates that [Ms Wetherden] attended [H Hospital] due to crashing a vehicle with the children in the car whilst driving under the influence of alcohol.
The driving offence occurred in 2022. Whilst there may be some argument about what was the actual level at the time of driving, there can be no argument that being in control of a motor vehicle with passengers, including a baby, whilst affected by alcohol was a serious error of judgment. As I say, the Department assessed the mother as having a serious alcohol misuse problem. The drink driving offence took place before the events of 7 December 2022, and therefore before the Orders of 22 December 2022 which are now under review.
I regard the alcohol use problem as the most significant current risk issue relating to the mother. It may, as I will indicate shortly, have been a contributor to some of the more recent mental health challenges the mother has faced. However, what can be said is that the mother would ask me to accept by her current affidavit that she is now aware of her alcohol use issues and is undertaking treatment for it.
The difficulty with the evidence put before me by the mother as recently as yesterday, which I have read and gave leave to the mother to rely upon, is that annexure MW-3 is an unsworn but nonetheless signed letter by Mr K who describes himself as the “transition coordinator [U Service] men’s residential rehabilitation” dated 20 March 2023. I have read it. It would suggest that the mother has, as she says, attended the S Services Recovery program in early March 2023. The attendance and participation record that is also part of MW-3 shows an attendance by the mother on that date at T Venue. There is no evidence that corroborates further attendances, although there is a conflict between information obtained by the Independent Children’s Lawyer and the instructions that Mr Dwyer has from his client, namely that she had attended another session later in March 2023.
Be that as it may, it is not possible on the evidence to take it any further at this stage whether the S Services program is a required course and/or intensive therapy necessary for a person with significant longitudinal alcohol misuse issues to effectively, even with insight, recover from and abstain from the use of alcohol. Even if it is, and the Court cannot say it is at this stage on the evidence, attending at most two nightly sessions for an hour or two may not be sufficient of itself to support the mother through the difficult transition her use of alcohol requires for her not to be a potential risk to these children.
One can only hope that by the time this matter does come to trial, the evidence the mother produces to the Court, and I give her notice that it should be before the Court, is of a higher quality than what I have today. The mere production of a certificate from somebody whose qualifications are unknown, when there is no evidence of what the course is designed to do, the extent to which they are aware of the mother’s past use issues; and how they monitor and regulate not only her attendance (which is a voluntary course) but her development, is all matters the Court would be required to know about for the risk that the mother currently, on the evidence, may present to these young children, can be assessed.
When one is confronted with a history of mental health challenges for the mother, which the Independent Children’s Lawyer has directed me to, one always has to be prepared to consider that those challenges must be seen in context. I was directed by the Independent Children’s Lawyer to the events of 7 December 2022, and particularly what I now have in Exhibit 1 tendered today; a report by police of the events that brought the attention of the Suburb J Police Station to the mother in the early hours of 8 December 2022. I read from the document to record in the Reasons that this is what it says:
On Thursday the 7th of December the informant… the MHC mother phoned 000 stating that her daughter [Ms Wetherden] had drunk a whole bottle of [alcohol] and taken some pills and was going to kill herself. Prior to the phone call the MHC had her children removed by DCJ earlier in the day and was very emotional. Police attended… at 9:30 pm and were informed by neighbours they […] had a spare key if police needed to go inside. Police approached the unit and knocked on the door however there was no answer and used a spare key to gain entry to the unit due to the concerns from the MHC health. Police activated their body worn cameras and entered the unit and found the MHC asleep on her bed, police woke the MHC up and questioned her about what she had said to her mother earlier. The MHC denied that she had taken pills and saying she wanted to kill herself. Police requested paramedics to attend the address and assess the MHC. A short time later the MHC walked [outside] where she attempted to skull [alcohol], police seized the alcohol and advised the MHC that paramedics were coming to assess her due to what she had said earlier. The MHC repeatedly stated she wanted to be left alone and said she never said she wanted to kill herself. whilst speaking with the MHC she was very emotional. paramedics attended the location at about 10pm and spoke to the MHC, whilst speaking with the MHC a paramedic saw a [lethal object] sitting next to her on a chair and when questioned the MHC stated that she had [acquired] it today and was going to use it tonight when it was darker as there were too many people walking by during the day. Paramedics told the MHC she was going to be taken to [L Hospital], the MHC was aware if she didn’t go with the Paramedics she would be taken by Police. The MHC grabbed her belongings and walked out of the unit into the ambulance. Police approached the paramedics and liaised where they said to Police they didn’t have enough to schedule her and she voluntarily went with the paramedics meaning that she could leave at any time. Police believed the MHC to have made a serious suicidal threat with the intention given that she had [acquired a lethal object] and stated she was going to use it. The MHC also referenced many times “just let me be its more humane for you to let me die” Section 22 completed by police. The MHC was conveyed to [L Hospital] by Ambos with Police following…
(As per original)
Whilst I accept that the mother at a trial may challenge many of the statements said to have been made by the police and recorded in this note, it bears acknowledgement that this event was just over three months ago. It was, I accept, at a highly difficult time for the mother. I sought to get a sense of what awareness the mother had of the likelihood of such an order for removal of the children from her primary care she had before that Order was made on 7 December 2022, and effectively confirmed with Reasons on 22 December 2022.
I am not sure whether, however the process was, the mother actually expected such an event on that day. Nonetheless, however difficult that day was for the mother, the Court cannot ignore those serious consequences, and the potential that under stress the mother could react similarly, if the children are in her primary care. The extent to which the mother fully, entirely and honestly and genuinely shares with any health professional the full extent, not only this event, seen in context understandable perhaps, but wider issues about her capacity and mental health to be properly assessed and treated will be no doubt a focus at any trial.
I remind myself, because it is important, that the mother is a relatively young woman aged but 27 years of age who became a parent to X when she was in her early 20s. I was also directed by the Independent Children’s Lawyer to an event in early 2023 in Exhibit 1. This seemed to be the mother attending the Region M Police Station to complain about the loss of a ring. I do not need to get into that issue today. The police record at some earlier stage, but it is not clear when, that the mother handed her daughter a ring being family heirloom as I understand. She is recorded as saying she did so because “she had made a decision to kill herself, and she wanted to pass on the ring down to her”. She is recorded as indicating that she was receiving treatment for her mental health.
It is not clear when the “ring” incident took place. Nonetheless, again, not surprisingly, the police recorded it as a matter of concern. I note that that record records that the mother is estranged from her own mother, and I am not sure who the term “mother” in the earlier notation of the 8th of the 12th actually referred to. It may have been Ms C who in many ways the mother in this case refers to her psychological mother.
I am comfortably satisfied at this stage that sadly there are risks in the mother being the primary carer of these children. At least for that reason, if not the other reasons which follow about changing the current arrangements where the children are at least settled to some degree and have adjusted to the change, I would not change the Orders about where the children live on an interim basis. That is, I would not make orders different to those made by the Senior Judicial Registrar. In making that comment I make it again clear that it is not a review of his Orders, but rather a hearing de novo assessment of the situation at this stage.
Before I move to the issue of time both children spend with the mother, I acknowledge that the mother does raise now some issues about Mr Grehan which are partly in the family violence courts and/or contravention arena, and partly relating to drug use. There is no doubt that the mother and Mr Grehan have used drugs in the past. That makes them vulnerable to using drugs again. I was directed by Mr Hartwell to the most recent evidence I have of drug use which included one hair follicle test late last year that detected cannabinoids. Mr Grehan gives an explanation for how that was detected. Whether ultimately the Court accepts that explanation or not, I do not know, but he has offered an explanation.
Mr Hartwell directs me to the more recent hair follicle test which did not make any detection of illicit substances. The Orders of the Senior Judicial Registrar required the mother to undertake hair follicle and CDT testing, but I was not addressed today on what the result of those tests were. Presumably the mother will continue to comply with Orders made by the Senior Judicial Registrar where they are not being altered by my decision today.
The other reason why I would not be comfortable in returning the children to the mother, although the risk issues are the most dominant reason, and notwithstanding what I will accept with a minimal amount of evidence that the change on 7 December 2022 and perpetuated on 22 December 2022 would have been a very significant and emotional hurdle for these young children, is that I am satisfied from the evidence given by both Mr Grehan and Mr Alfaro in their recent affidavits that their daughters are settled in their care at this stage. That, of course, is a matter the mother might find difficult to accept, and in fact may not accept. The Independent Children’s Lawyer in her submission, from her inquiries and including speaking, as I understand it, to X, accepts that to be the case.
Looking first at X’s situation, the change on 7 December 2022 required a change of schooling from what I think was a small school in the Suburb J area to where she is now attending, being N School. A change of schooling for any child at any age can often create issues. I do not have any recent confirmation from the schools, but I am told by the father of X that she has adjusted well to her new school. A change of residence as the mother is proposing, and vigorously and properly agitated for by her advocate, Mr Dwyer, would involve X having to change school not to the school she was attending at the time of change of residence in December 2022, but in fact a totally new school, unknown to her, somewhere in Region R.
Leaving aside change of curriculum that occurs when you move from one State to another, to the extent that the father of X gives evidence that the child is settled in a new school, is making new friends, including, as I understand it, another Aboriginal child with an Aboriginal mother, any changes to the current living arrangements now I do not regard would be on an interim basis in the best interests of the child.
Turning to the younger child, Y, had been having more regular time with her father. Their relationship was much more recent, of course. The adjustment for Y was as a result, because of her age and other factors, maybe less stressful for her than it was for X, because of her age. It might be more stressful. I do not know. What I do know is that Mr Grehan has done his very best, he says, to support and help Y to adjust to living in his household. He made a choice to move from City P to the Town Q area. He lives with some relations in that area. I have no evidence from them. Nonetheless, the benefit to Y, who is attending a local child care facility now, living in the Town Q area is that there is the capacity for the fathers of X and Y to provide regular interaction between the siblings.
No one would ever suggest it is a good thing for siblings to be separated. But when parties choose to have children with different fathers, as the mother did, it could always be assumed to be a possible outcome at some stage, if the children do not live together in the care of the mother. Nonetheless, for the same reasons, but differently because of Y’s age and the risks already identified, it would not be in the best interests of Y for her current living arrangements with her biological father in that household to be disturbed on an interim basis.
Before moving to the difficult issue of what time these children who remain living with the fathers have with the mother, I want to acknowledge that in respect of X, one of the clear benefits that arise, it seems to me, is that the father has re-partnered, and has two infant children of that new relationship. They are, of course, siblings of X and that relationship would not seem to have had much opportunity to develop over the last few years. Now, as to why that occurred, whether as the mother says through lack of interest by the father or other issues, I do not know. But it must be, on any test, a benefit to X that she is now having an opportunity to develop a relationship with her siblings in the home of her father. This is another reason why I would not disturb the current interim arrangements.
I am not bound, of course, by the arrangements for time ordered by the Senior Judicial Registrar on 22 December 2022. They are, on any test, limited, providing for the mother to have supervised time for two hours as the order prescribes. The frequency of that time is very much shaped not so much by the Orders, but the costs of the mother exercising time in Queensland and travelling from New South Wales. Of course, if the mother decided to live in Queensland, or closer, then the capacity to consider more frequent time would occur, and could be considered.
Mr Dwyer on behalf of the mother, whilst pressing for the change of residence from the current situation, urges that the Court consider making orders for the children to spend time with the mother unsupervised. Because of the risk factors in this matter and the state of uncertainty in relation to the mother’s capacity, I am not prepared to consider unsupervised time at this time. The fact that the mother proposes, it seems, that it would be in the best interests of the children that she spend time in the Town D area supervised by Mr and or Ms C, does not at this stage give me sufficient comfort to order it. I can accept the mother’s distress in not having the children with her. However, I could not risk the potential for the children not returning to the home of the father. I think in this case, because of the level of distress exhibited by the mother at least on 7/8 December 2022, that could be a risk. I am not prepared to have other than supervised time for the mother at this stage, with the only real option being supervised time at a contact centre. That is the Order that the Senior Judicial Registrar made.
It is not ideal that these children have such limited time with their mother. Time electronically, especially for a child of Y’s age, is no real substitute for physical time. X being older may get something more out of an electronic communication than Y would get.
Nonetheless, where I have made a decision on an interim basis that time must be supervised by a contact centre, the only location for such contact can practically be around Region B. The only way that that contact could become more frequent would be if the mother chose, as she is perfectly entitled to do, move to Queensland or Northern New South Wales, she says, she derives, significant benefit from the comfort and support of Mr and Ms C in their home, and perhaps the therapeutic network she is developing where she is currently living, I accept that moving to Queensland would create some challenges for her. However, I cannot see how I could shape any orders for more frequent physical time supervised at a contact centre in Region B than currently ordered, unless the mother moved closer.
Accordingly, on an interim basis, although I intend to dismiss the Review Application, I give the mother liberty to apply if she actually moves to Region B, and that might then allow me to consider, if she and the fathers cannot reach an agreement, some greater frequency of time. The most recent evidence of the mother suggests that it is a significant cost and difficulty to come to Queensland so often for the time ordered by the Senior Judicial Registrar, but I am not minded to reduce it.
The end result of my decision today is the orders simply are that the Review Application will be dismissed. It means that the Orders made by the Senior Judicial Registrar on 22 December 2022 will continue in their full force and effect. As I have indicated, I will give leave to the mother to seek to relist the matter if she moves to Queensland or northern New South Wales, and can be more available for more frequent time.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 3 July 2023
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