Wilkinson and Wilkinson - [2009] FMCAfam 1456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILKINSON & WILKINSON

[2009] FMCAfam 1456

FAMILY LAW – Interim arrangements for care aged 23 months – dispute between mother and maternal grandmother – grandmother seeks orders that the child live with her and spend supervised time with mother – mother seeks orders that the child live with her – family violence – implications of supervised times – best interests.

Family Law Act 1975 (Cth), ss.60B, 60CC

Goode & Goode (2006) FLC 93-286

Applicant:

MS L WILKINSON

Respondent:

MS J WILKINSON

File Number:

ADC 4860 of 2009

Judgment of:

Brown FM

Hearing dates:

22 & 23 December 2009

Date of Last Submission:

23 December 2009

Delivered at:

Adelaide

Delivered on:

23 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr P. Liptak

Solicitors for the Applicant:

Patrick Liptak Barrister & Solicitor

Counsel for the Respondent:

Mr G.R. Noble

Solicitors for the Respondent:

Andrew Hill & Co

ORDERS

Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

THE COURT ORDERS UNTIL FURTHER ORDER OR OTHER ORDERS THAT:

The child [X] born [in] 2008 live with the maternal grandmother.
The mother spend time with the child each Friday, Sunday and Wednesday from 8.00 am to 12 midday commencing 25 December 2009.
In the event that the mother is unable to spent time with the child, she is to advise the maternal grandmother by text message as soon a possible but at least twelve (12) hours before hand.
Neither party denigrate the other in the presence or hearing of the said child or permit any other person to denigrate the other party in the presence or hearing of the said child.
The child is to be exchanged in the foyer of the [H] Police Station at the commencement of time spend and at the conclusion of time spent.
The mother be restrained and an injunction is hereby granted restraining the mother from psychically disciplining the child.
The mother is restrained and an injunction issue restraining the mother from consuming alcohol or illicit drugs during any time spent with the child and twelve (12) hours prior to the child coming into her care.
Each party enrol at the [H] Children’s Contact Service as soon as reasonably practicable but no later than 8 January 2010.
A copy of these orders be forwarded to the Director of Families SA.
Further consideration of the matter is adjourned to 4 February 2010 at 9.30 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 4860 of 2009

MS L WILKINSON

Applicant

And

MS J WILKINSON

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the lengthy interim hearing. Given the complexity of the matter and due to the fact that an independent children’s lawyer has been appointed, it is appropriate that the reasons be transcribed.
This afternoon, the matter of Wilkinson is listed before me.

The applicant in the proceedings is Ms L Wilkinson, and the respondent is Ms J Wilkinson.
The parties concerned are mother and daughter, and the proceedings concern a child, [X], who was born [in] 2008, so [X] is not yet two years of age.
The applicant, Ms L Wilkinson, is [X]’s maternal grandmother, and the respondent, Ms J Wilkinson, is [X]’s mother.
So that brief description underlines the sadness and difficulty of this particular case. It is invariably sad when a parent and child are engaged in litigation with one another in this court.
I will refer to Ms L Wilkinson as the grandmother and to

Ms J Wilkinson as the mother, for the sake of ease in delivering these reasons for judgment.
The grandmother commenced these proceedings on 9 December 2009. What she wants, by way of both final and interim orders, is an order that [X] live with her, and she have sole responsibility for his day-to-day care.
The grandmother also proposes that the mother should spend time with [X], on alternate weekends, for a period of up to two hours initially, and later for a period of four hours each weekend, but only at the [H] Children’s Contact Centre. So the grandmother is proposing that the child live with her, and have only very limited time with his mother.
The mother responded to the application on 17 December. She wants orders, on both an interim and final basis, that [X] live with her, and she have sole parental responsibility for him. She has no proposals as to [X] spending any time with his grandmother whatsoever.
Having thus briefly outlined the orders which each of the parties seek, that again outlines the sadness and difficulty of this case, and indicates, in a nutshell, how polarised the positions of the parties are.
The grandmother wanted her application listed urgently before the court. Her request was acceded to. Accordingly, the case first came before the court on 11 December 2009.
At that stage, the grandmother wanted the court to make orders about [X], in the absence of the mother. It was her case that there was something of an emergency situation surrounding [X]’s care and, on that day, I made some orders because I was persuaded that it was an urgent situation.
But I think I said to the grandmother that there would come a time when the proceedings would have to include the mother, and she would put her side of things, and, I think, also indicated to her that it was invariably the case that there was always another side to each and every case.
Now I have some evidence from the mother, I have some more evidence from the grandmother, and, perhaps importantly in a case like this, I have some records from Families SA, which has had some involvement with the family.
These records have, of course, not been interpreted by anyone. There is no one here from the department to explain what the department thinks about the case, or to indicate what I should do.
I should say that I have invited the department to be a party to these proceedings, but they have not taken up my invitation, and that is not something that comes as a surprise to me.
This case is at the interim stage. What that means is that the case has taken place in a shorten form. In particular I have not had any oral evidence from either of the parties themselves, although I have heard evidence from two people who have been proposed as supervisors of any time spent between [X] and his mother.
In addition, I have not got any evidence from a suitably qualified expert as to how [X] is currently faring and what his development need are. Such evidence, in the form of what is called a family report, is very common in cases like this one. But due to the urgency of the case, there has insufficient time for a family report to be prepared.
But nonetheless today I still have to make a decision, and decide what I think is likely to be in [X]’s interest, particularly in the short term, and it is not an easy decision for me to make, because there is a great deal of conflict between the grandmother and those who are associated with her, and the mother and those who are associated with her.
I will now, as best I can, try and outline the matters which bring the parties to this particular point. One of the things that strikes me about this case is that, although the positions of the parties are extremely polarised, there are not that many matters that are really in dispute between them.
Where they are in dispute is in terms of emphasis in what happened between them in the past. I think both parties would recognise that their relationship with one another has been a turbulent and difficult one.
By way of background, the mother, I think, is aged about 20. I am told that she is working [in the retail industry]. At the present time she is living in shared accommodation in [C].
She is sharing the accommodation with a gentleman by the name of

Mr A – I do not know very much about Mr A – and it is clear that

Ms J Wilkinson has not lived at that particular unit in [C] for a long, long period of time, although she may have lived there in the past; I do not know.
The grandmother is a lady of about 45 years of age; she is employed [in the administration industry], and she lives with her husband, Mr W, and another of her children, [Y], who is about 18 years of age, I think, at her home in [D].
It is the grandmother’s position that her daughter left home when she was aged about 16. However, it is her case that her daughter has frequently moved back home with her and her husband and [Y].
The impression I have – and I may be wrong about this – is that, although that has not been easy from time to time, her daughter has always been welcome. Although it seems to be the thrust of the grandmother’s case that she disapproves of certain aspects of her daughter’s lifestyle.
I am not here to pass judgment on anyone’s lifestyle. It is only relevant to me so far as it pertains to the welfare and safety of this little boy. But I think it is the grandmother’s case that her experience of her daughter is that she has been unstable psychologically, and that has resulted in her being prone to violent outbursts from time to time.
Whether that is true or not, I am not in a position to say today, but when I come – and I will go through them in a moment – the records that have been supplied by Families SA, it does appear to be the case that the mother and her brother, in particular, have had a turbulent relationship. Why that is so, I am not sure.
Anyway, [X]’s father is a gentleman called Mr L, I think. It is certainly the grandmother’s case that he has not had any significant relationship, if any relationship at all, with [X]. I think the mother does not disagree with that. It seems there is some financial relationship between the mother and Mr L, because he has started paying child support recently.
Anyway, regardless of that, the father is not a party to these proceedings. I do not think either party has any proposal to join him as a party. Potentially, he is an interested person as the child’s father, in the outcome of this case, but he is, at this stage, out of the picture.
It is, I think, the grandmother’s case that her daughter had a lot of issues arising from being a single mother at a fairly young age, and all the difficulties that went along with that. As a result, I think it is her case – that is, the grandmother’s case – that she has provided more of the care, and more of the nuts-and-bolts parenting, for [X] for the vast majority of his life.
The mother does not accept that. She has said in her affidavit that she is [X]’s primary carer – that is the expression that is used – obviously, that is likely to be a very significant issue between the parties, potentially, at a later stage.
I just say, that I cannot resolve this issue today, due to the limited nature of the evidence, at the interim stage. But I think it is relatively clear to me that grandmother, mother and child have occupied the same premises for most of [X]’s life, though I suspect that the mother and [X] did leave from time to time.
As such, it would seem that [X] has a significant relationship, certainly, with his grandmother, who cannot be described as a stranger to [X]; and it would also, similarly, seem to be the case that his mother cannot be described as a stranger to the child.
The grandmother has other criticisms of the mother, particularly that she engages in illicit drug use, particularly using ecstasy. The mother admits previous ecstasy use, but says she has stopped using the drug, and it seems to be the flavour of her case that it has never impacted upon her ability to care for [X] properly.
The grandmother has some criticisms of Ms J Wilkinson, the mother’s, lifestyle, as I say. In particular that she has worked in the demimonde of [location omitted] as a dancer. I am not here to be critical of that, but it is the grandmother’s case that this sort of work and lifestyle is one that inevitably is one that is undertaken at night time, and that the mother has been asleep during the day from time to time and as a result has not been available for [X].
Anyway, the gravamen of the grandmother’s case is that, for a variety of reasons which cannot be fleshed out today, the mother’s life is unstable, she is prone to violent outbursts which are unpredictable, all of which must be unsettling for a child of [X]’s age, and are something from which he must be protected. I think, it is her case that, as a result of what has happened recently, she has reached the end of her tether, so far as her daughter’s behaviour is concerned, and she is acting out of a desire to protect [X].
The mother’s case, is very different. She says she did move out of home at an early age. She says that it was as a result of having being exposed to violent behaviour by her father. It is her case that she moved out to protect herself from him.
She also says that she has, in the past, responded to the erratic and provocative behaviour of other members of her family, particularly her brother, [Y]. She says that she has responded, perhaps in an extreme manner, but only in response to the situation in which she found herself.
And as I say, it is the fundamental basis of her case that she has always been [X]’s primary carer, and any outcome in this case which sees her removed from that role is likely to be quite harmful to [X]’s long-term development.
These various issues came to a head on or around 3 December 2009. There seems to have been an altercation at the grandmother’s home between various members of the family, particularly the parties directly involved in this case. There was a third person present, and I have heard some evidence from her yesterday; her name is Ms L.
Ms L deposed yesterday that [X] was present during this confrontation, and it is her evidence, which I accept, that she took [X] outside because everyone was yelling and she thought that was the best place for him.
In any event, it is common ground that the police were called to the incident. It is also common ground that the mother took some pharmaceutical drugs – I think it was Panadol or paracetamol; I may be mistaken – but her taking the drugs was an apparent attempt on her life, although she, I think, would categorise it as a cry for help, or some kind of reaction to stress that was not thought through.
This incident led to her being taken to the [omitted] Hospital. She was there overnight. But ultimately the authorities at the hospital decided that they would not retain her in the hospital, and she left. It was at that stage she moved in with the gentleman, Mr A, at his house in [C].
In the meantime, Families SA had become involved in the matter. They moved the grandmother and [X] to a secure location, because they had some concerns about [X]’s safety. In the meantime, the mother has apparently been charged with an offence involving the possession of a taser. The suggestion being that the taser was involved in the earlier altercation.
The mother is bailed in respect of this charge. It is a condition of her bail that she cannot go to the grandmother’s home or approach her.
This was that background that led me to make the orders which I did on 11 December 2009, when I was told – and I accept the truth of it – that the Department of Families and Communities, had said to the grandmother that she needed to bring proceedings in this court to secure the safety of [X], because it was the grandmother’s position, apparently supported by Families SA, that the mother had said that she would come and retain [X], and Families SA did not think that was likely to be in his best interests.
So there is, as I say, some commonality between the parties. Essentially that the grandmother has been involved in providing some level of care to [X]; that grandmother, mother and child have been living at the same premises; that there has been an ongoing, unhappy situation which has erupted from time to time; and that the Department has been involved with the family, in one capacity or another, for some time.
That brings me to the Families SA file, which I have read. As is commonly the case with such files, they are written in official language, or bureaucratese, if I can put it that way. I have no one here to interpret the file for me, and I cannot reach any concluded findings as to the truth or otherwise of what is reported in the file. The first set of incidents relates to something that happened on 23 March 2009.
The documents I have been provided with have had the details of the notifiers of information to the Department for Families and Communities whited out, so I do not know who has provided information to the department.
In particular, I do not know whether any such notifiers had an axe to grind, whether they had a view to hurt the mother’s interests, or indeed, anybody else’s interests. And it is also the position that on a number of occasions, the Department itself declined to be involved.
Anyway, as I say, the first incident was on 23 March 2009. At that time it is clear that the mother and child concerned were living at the maternal grandmother’s home. There were concerns conveyed to Families SA that there had been a violent altercation between the mother and her brother, [Y].
This seems to have led to [Y] being charged with something, presumably an assault. The altercation apparently occurred in the presence of the child, and the mother apparently injured her leg, it seems, when she kicked at a plate-glass door. This led to her being hospitalised.
This picks up something which the grandmother deposed to in her affidavit material. It is her evidence that [X] was identified as being a child who was at risk at an early stage, around about the time of this incident, and at that stage the Department elected to place him in day care for five days per week, by which I take it that they wanted to give some respite to those who were involved in his care.
It also seems to be around that time that the mother was significantly incommoded by an injury to her leg, and I think she admits in her affidavit material that she did put her leg through a glass window, although she does not give much detail.
So in March of 2009, it seems that [X] was exposed to some significant episode of family violence. I think it would be the mother’s position that it was her brother who precipitated this incident. In any event, although this matter was notified to the Department, they elected to take no action. I understand that they did not have sufficient resources to deal with it.
Anyway, it seems to be the case that [Y] left the home. This led to a further incident on 31 May 2009, when it seems that [Y] came back to the [D] property, and the mother, according to the Families SA notifier, was aggrieved at that.
There was another altercation, and at that stage the notifier involved was concerned that [X] may not be receiving the level of emotional support which he required. However, at that stage, again, the Department elected to take no action. Again, it seems to be the position that they did not have, at that stage, resources to deal with the issues.
On 23 June 2009, there was another notification made to Families SA which was concerned about the mother’s alleged level of response to the child, particularly her angry responses. It was said that when the child had been playing with a bowl and spoon and had been hitting the mother, that she had swung out at him with her arm. There were suggestions that the mother was having difficulty coping with the child. Again, no action was taken.

The next series of matters raised with Families SA relate to 9 November 2009. The notifier concerned said he or she was concerned about [X] having been witness to what was described as DV, no doubt domestic violence, between his mother and maternal uncle.
There were also concerns raised about the mother’s apparent inability to cope with caring for [X]. It was said that [X] had been seen with mystery bumps and bruises, when he had been with his mother, that he was not getting fed properly, and concerns of that nature.
The notifier also raised concerns about the mother’s use of what are described as “pills”. She was also said to be unpredictable in her behaviour, particularly in terms of being subject to angry outbursts.
So the notifier was concerned about the types of issue which the grandmother has raised. The Department regarded this latter notification as what they call a Tier 3 matter, which led them to send a letter to the mother inviting her to attend a meeting.
The outcome of that was that the family meeting was not attended. It would then appear to be the case that the Department did nothing further. At that time, it was said by the notifier that the mother was working very late three nights per week and was sleeping into the morning. As a result, [X] was not getting a proper level of care.
That brings us to the incident that seems to be the most significant matter to date, which was 3 December 2009. The police were called to the [D] property. The mother was saying that she was fearful that somebody had been interfering with her motor vehicle, and making threats on her life.
It was said at that stage that it was the grandmother who was – by the notifier concerned – providing the majority of care for [X], and there were concerns that, if the mother did remove [X] from the grandmother’s care, this would not be in his best interests.
As I say, it seems undoubtedly the case, particularly from what Ms L has told me, that there was a very serious confrontation at the [D] house. The police were called, and it seems to have led to the mother being taken to hospital, particularly because of the pills she had taken, and also it was reported that she had also threatened to kill herself by driving into a tree.
It was also said that she was going to get a gun and shoot the grandmother and her husband. And, as I say, it seems incontrovertibly to be the case that the mother has been charged with possession of a taser. There are references later on in the material to concerns the mother has that the person she got the taser from is now aggrieved that the taser is in the possession of the police.
In any event, it seems to be the case that at the hospital the mother was assessed and interviewed by somebody who is described as a senior doctor. It was found at the hospital that the mother did not have any psychiatric illness. A psychiatrist, Dr B, agreed that the mother was not posing a risk, presumably to herself, at that stage.
In any event, the Department, against this background, were prepared to provide emergency secure accommodation for the grandmother,

Mr W, for [Y] and for [X], for three nights, and [X] has been in the care of the grandmother ever since.
There were other notifications made on 12 December 2009, when someone complained to Families SA that the mother had threatened – or there was some fear that she would send some strongarm people to forcibly get [X] from the grandparents.
The grandmother has deposed to what she understands occurred in respect of this notification. She has said there were some threats made against her. Anyway, on 4 December 2009, it is recorded in the Families SA file that the worker involved with the family is concerned at what had occurred on 3 December and about what was known of the family, in particular the significant concerns which I have outlined in relation to the mother.
As a result, Families SA were in support of [X]’s current placement: that is, remaining with the grandmother in her primary care. It was also, I think, said to Families SA by the grandmother that she was going to sell her house because of her fears about the mother’s behaviour.
So, having given that summary, it is clearly a difficult case at this stage. I have summarised the evidence. As I have said, I am not in a position to make concluded facts about what Families SA report in their file, but there are very many matters of concern in it.
I now turn briefly to the legal provisions I have to apply in this case. The provisions of the Family Law Act relating to children rest on two main and twin pillars.
The first is the importance to a child of having a meaningful relationship with his or her parents; the second is the need to protect children from physical and psychological harm.
These are stressed by the objects of the legislation set out in section 60B, and the considerations, particularly the primary considerations, set out section 60CC, which detail the various matters the court is to take into account in determining how a child’s best interests are to be served.
The parties approached this case from those two principles. From the grandmother’s perspective, the most important thing is to protect [X] from being exposed to physical and psychological harm.
The mother points to her relationship with [X], and says at this stage, there is a need for the child to have a very significant level of relationship with her. In the long-term, if she only spends two hours per fortnight with [X], it will be inevitably be the case that her relationship with [X], and [X]’s relationship with her, will diminish and come to nothing, which would not be in [X]’s best interests.
In the case of Goode & Goode, the Full Court of the Family Court directed that I am to look at the various section 60CC factors, and, as far as I can, make findings about those matters to determine what is the appropriate outcome for [X], particularly how his best interests can be served.
[X]’s best interests remain the paramount consideration in these proceedings. I am not here to be fair to the mother or the grandmother, rather, I must do what I think is best for [X].
I think it is undoubtedly the case that [X] has been exposed to family violence in the past. I view him as being a vulnerable child. I think there are reasonable grounds from which I can conclude that he has been exposed to quite significant family violence.
It also seems likely to me on balance that he has a meaningful level of relationship with both his grandmother and mother. I reach this conclusion because he has, for the vast majority of his life, lived in the same household with both the women concerned.
It is difficult for me to make any finding as who has been [X]’s main provider of care. When the issue of who could be a potential supervisor for any time between mother and child was discussed, I heard some evidence from a lady whose name is Ms M.
She is a woman of 28 years of age. She has known the Wilkinson family for six years. She is a close friend of the grandmother. She also knows the mother. Although, I think it is clear that she and the mother do not have a particularly close or supportive relationship with one another.
However, I think it was interesting that her evidence, which I have no reason to disbelieve at this stage, was that it was her experience that the grandmother provided more care for [X] than did the mother. I think that is a significant thing at this stage. But Ms [M] also said that the mother played with the child concerned, and there is, I think, no doubt that the mother loves [X] very much indeed, and that is a reason why the relationship needs to be fostered and supported.
Today is 23 December. Christmas will soon be upon us. It is likely to take six to eight weeks for the parties to be accepted into a supervised contact program at [H]. At best, mother and child will be able to spend up to two hours together at the Centre.
No matter how well a contact centre is run, and no matter how supportive the staff are, necessarily such organisations, such places, provided a stilted environment in which a child and parent spend time together.
On balance, I have come to the conclusion that the concerns I have about the mother, and the issues to do with the stability in her life at present, and particularly the fact that she was admitted to hospital – it seems clear she did take some pills; although she was not detained in hospital, there were clearly concerns about her – she has been charged with a criminal offence, there are many matters of concern in the Families SA records, notwithstanding her role as [X]’s mother, I am not persuaded that it would serve [X]’s best interests for him to be returned to her substantial care at the moment. I think, on balance, it is likely to be in [X]’s best interests for him to remain in the care of his grandmother.
The more difficult issue is what level of relationship [X] ought to have with his mother in the short term. And as I say, at best, if the parties wait for a supervised place to come up, it will take six to eight weeks, and what is available is only two hours per fortnight, which, given [X]’s age, it would seem will not be a sufficient time to foster and support the maternal relationship, which is likely to be important to [X] as he grows older.
Much time has been spent, both today and yesterday, in trying to find an appropriate supervisor, some honest broker who can step in, offer a locale, perhaps, a venue for mother and child to spend time together.
The mother’s proposal is for Ms L. As I have said already, she was present on 3 December. She is a friend of the mother’s; they met socially, I think about six months ago.
Ms L lives with her parents in [N]. She is willing to be a supervisor. She does not drive, and she would rely on her parents to assist her in getting to and from – as I said yesterday, Ms L is a pleasant person, I accept she is a well-meaning person, but in the context of this situation, which is difficult, I am not persuaded that she has anything really to add. I think she potentially may make the situation more rather than less complicated.
That is also the view I took of Ms M. Ms M, I think, again, is an honest broker, I think she is almost certainly an insightful person, but she does not have the mother’s confidence; indeed, the mother walked out of court whilst Ms M was giving her evidence, which to some extent emphasised my impression that the mother is at times – and I mean her no disrespect – perhaps emotionally volatile.
So the essential question remains: how is [X] to have some form of relationship with his mother; and, associated with that question is the issue as to whether it would represent an unacceptable risk for the mother to spend time with [X], in a context which is other than one which is rigorously and professionally supervised.
That was an issue I tried to flesh out with Mr Liptak, who appears for the grandmother today. The grandmother has concerns about the mother’s ability to safely parent this child, and those concerns are picked up by the Families SA record, particularly the record for June of 2009.
The grandmother is also fearful that the mother may abscond with [X], and certainly the mother has made threats of doing that in the past; however, up until this stage, she has not done any such thing.
It is also the grandmother’s case that the [C] property is not suited for a child of [X]’s age, particularly that it does not have any toys and things of that nature, but I suspect, in terms of toys, that that can easily be remedied.
What the issue is really about is, I suppose from my point of view, is in considering making an order for the mother to spend time with the child during the day, not overnight, whether I have formed the view that she is potentially such a defective parent that even fairly brief periods of time, when one would not anticipate the child would have a lot of needs, and any pressures would not have build up on the mother, whether that of itself would be just unacceptable for the court to take because of the risks involved.
Associated with those concerns are the grandmother’s fears about the mother’s drug and alcohol use. In regards to that, the mother does have some employment. She has attended at court today and yesterday. These are helpful indications.
Just as there are issues to do with risk of the mother’s interaction with the child, so, to my mind, there are risks for the child of losing his relationship with his mother, if her time with him is unduly short or restricted. I think that is a very significant risk in a case like this.
As Mr Noble points out, the mother has not seen the child since 3 December. Whether [X] is anxious about that, I do not know; no one has said that he is. But at some stage, mother and child are going to have to spend some time with one another, and I am quite frank when I say I do not think two hours per fortnight is sufficient to foster an important relationship such as that between a mother and a young child of [X]’s age.
On balance, I have come to the view that it would not constitute an unacceptable risk to [X], if he spends some periods of time during the day with his mother. It would be ideal if there was some supervisor who was acceptable to both parties, who would be an honest broker, who could smooth things over, when problems arise.
Such a person could help keep the grandmother’s concerns to a minimum, and to help the mother with [X]. But there is no such honest broker available.
Ms M, I suspect, will make things worse unwittingly, because the mother has demonstrated, by walking out of court, her non-acceptance of Ms M.
With the greatest respect to Ms L, she does not have the grandmother’s confidence. She is a young person, and I think it would be unfair and imprudent of me to thrust too much responsibility onto her young shoulders, particularly when it would seem to me that she will be reliant on her parents to enable her to perform the role of supervisor.
So I have come to the view that the parties must manage matters on their own. Sadly, at this stage it would seem to me that the child will have to be exchanged at a police station.
I have come to the view that at this stage, particularly balancing the child’s need to have a meaningful relationship with his mother, given my finding that she has obviously been significant to him in the past – how could it be otherwise, given that she has shared the same premises with him – that [X] needs to spend regular and frequent periods of time with his mother so that the relationship between the two can be sustained in these difficult and fraught circumstances.
Another important factor in shaping this conclusion is [X]’s age. [X] is at an age when he is forming his relationships with those who are significant to him. As such it is not likely, I think, to be in his best interests for a parent to be, as it were, removed from his life for an extended period of time.
I have come to the view that what should be done is for the mother to spend brief periods of time with him during the day. I think that is a commensurate response to the issues of potential harm which are raised by the grandmother, which I do not dismiss, and I will make some injunctions regarding alcohol and illicit drug use, and also restrain the mother from physically disciplining the child whilst he is in her care.
As I said yesterday, this is the sort of case where the child needs to be independently represented, and it may be that there has to be some sort of psychiatric assessment of the mother. It being, I think, the grandmother’s position that there are some issues to do with her psychiatric or psychological health, which need to be examined, and those matters may perhaps be attended to by an independent children’s lawyer.
So for all these reasons, subject to anything that the parties may want to say about the practicality of the orders, bearing in mind that the grandmother works, the mother works, [X] goes to day care, as I understand it, five days per week, and the day care centre, if I have not already pointed it out, are unwilling to be de facto supervisors. So there are all sorts of practical difficulties to do with this case, but what I propose at the moment is making the following orders, as I say, subject to anything the parties’ respective legal advisors want to say about their overall practicality.
For all this reasons, I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 23 December 2009