Williams & Anor and Rogers & Anor

FAMILY COURT OF AUSTRALIA

WILLIAMS AND ANOR & ROGERS AND ANOR

[2014] FamCA 59

FAMILY LAW – CHILDREN – Interim parenting – Where applicants are non-parents – Where the father is not participating in the proceedings – Whether there is a risk in the children spending time with either parent or the paternal grandparents – Best interests of the children pending final determination – Where the Court finds that the children’s living circumstances should be stable pending final determination

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Goode and Goode (2006) FLC 93-286
Marvel & Marvel(No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANTS:

Ms Williams
Ms Williams

1st RESPONDENT:

Ms Rogers

2nd RESPONDENT:

Mr Nixon

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

PAC

2604

2013

DATE DELIVERED:

12 February 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

10 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

CA Williams Legal

COUNSEL FOR THE APPLICANTS:

Ms Rebehy

SOLICITOR FOR THE 1ST RESPONDENT:	Marsdens Law Group
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adams & Partners Lawyers

Orders

That all previous Orders in relation to the children, V, born … December 2010, and R, born … April 2012, (“the children”) be discharged.

Pending further order:

That the paternal grandmother, Ms Williams, paternal step-grandfather, Mr Williams, and the mother, Ms Rogers, have equal shared parental responsibility for the children.
That the children live with the paternal grandmother and paternal step-grandfather.
That the children spend time with the mother as follows:
(a)commencing on the first weekend after the date of these Orders, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday;
(b)commencing on the first Tuesday after the date of these Orders, each Tuesday and Thursday from 9.00 am until 5.00 pm; and
(c)at such other times as are reasonably agreed in writing between the Applicant paternal grandparents and the mother, with such writing to include SMS or email communication.
That the mother be at liberty to attend on such occasions as are relevant to the welfare of the said children including, but not limited to, occasions relating to the children’s health, preschool and school education, extracurricular activities, religious education or such other occasion where the attendance of a parent is reasonably expected.
That for the purpose of facilitating changeovers for the children’s time with the mother, the Applicant paternal grandparents shall deliver the children to the mother at the commencement of each such period of time at the Suburb B McDonald’s Family Restaurant, and collect the children from the mother at that location at the conclusion of each such period of time.
That the Applicant paternal grandparents and the mother are restrained from allowing or permitting the father to spend any unsupervised time with the children.
That the Applicant paternal grandparents be restrained by injunction from facilitating or permitting the father residing in the home or, on occasions and at times when the children are in the care of the Applicant paternal grandparents, from facilitating or permitting the father from spending overnight time in the home or attending at the home other than for the purposes of spending time with the children, with such time to be supervised at all times by either the Applicant paternal grandmother or the Applicant paternal step-grandfather.
That the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children, or either of them, and from permitting any other person to do so, and that the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the children, or permitting any other person to do so.
That the father and the mother are restrained from consuming alcohol or illicit drugs for twelve (12) hours prior and during any time that the children are spending with either of them.
That the father and the mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008) urinalysis for drug screening within forty-eight (48) hours of receipt of a request to do so from the Independent Children’s Lawyer, with such request to be communicated by email, SMS communication or facsimile transmission to the solicitor for the party or the party directly, and provide copies of the results of the tests to the other parties and the Independent Children’s Lawyer within forty-eight (48) hours of receipt of same and for the purposes of this Order, each party, if unrepresented, shall within twenty-four (24) hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address (if available) and facsimile phone number (if available).
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), the father is restrained from:
(a)contacting or approaching the mother at any time, and at any time when the children are spending time with the mother, or whilst she is in their presence; or
(b)entering upon any premises at which the mother may be at any time, and where the children may be from time to time whilst spending time with the mother or in her presence
and that this Order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Act.
That the mother shall notify the Applicant paternal grandparents at least four (4) weeks prior to any change of her residential address with such notification including details of the proposed changes of residential address, the nature of such accommodation and details as to who will be living in the proposed new residential address.
That the Applicant paternal grandparents and the mother shall keep the other informed as to their current residential telephone number, mobile telephone number and email address and advise the other within two (2) days of any change to such information.
That in the event of either child suffering a medical emergency that requires medical attention while spending time with or living with either party then:
(a)the other party is to be notified as soon as practicable;
(b)the other party is to be provided with the full details of the medical practitioner or medical facility at which the child attends as soon as practicable; and
(c)such medical practitioner or medical facility be advised that the other party has access to the child’s medical records and information obtained upon them upon request and is at liberty to enquire of and seek information as to the child.
That the Applicant paternal grandparents do all things necessary and sign all necessary documents so as to facilitate the enrolment of the children in daycare/preschool at least two (2) days per week, such days being on a Monday, Wednesday or Friday.
Pursuant to section 62G(2) of the Act the parties and the children attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:
(a)the factors in sections 60CC and 65DAA of the Act;
(b)a profile of the parents and other significant adults, including the paternal grandmother and paternal step-grandfather;
(c)to assess the interactions of the parents and other significant adults, including the paternal grandmother and paternal step-grandmother, with the children;
(d)to assess the children’s developmental and emotional state;
(e)to assess the relationship of the children with each of the parents and other significant persons, including the paternal grandmother and the paternal step-grandfather;
(f)to ascertain the wishes of the children, unless inappropriate by reasons of age or other special circumstances;
(g)to assess the proposed and actual home environments; and
(h)to assess the proposals of each party as to the children’s future.
That the proceedings be relisted as soon as practicable but not less than fourteen (14) days after the release of the Family Report.
That the Family Consultant is granted leave to inspect and photocopy all documents produced on subpoena in these proceedings.
Following the release of the Family Report and prior to the relisted directions date, each of the parties are to file and serve a minute of final orders sought by them as to parenting and both parties are to be in attendance in person on the relisted directions date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2604 of 2013

Ms Williams and Mr Williams

Applicants

And

Ms Rogers

First Respondent

And

Mr Nixon
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

The present applications before the Court are for interim parenting orders in relation to the children, V, born in December 2010, and a R, born in April 2012, (“the children”).
The primary proceedings involve an application by the paternal grandmother and step-grandfather seeking final orders in relation to the children that, in summary, provide for:
a)the children to live with the Applicant paternal grandparents;
b)for the Applicant paternal grandparents to have sole parental responsibility for the children;
c)for the mother to have defined supervised time with the children; and
d)various specific issues orders providing for the mother to keep the Applicants advised as to her residential address and contact telephone numbers, that she be restrained from making derogatory remarks about the Applicants and the father in the presence of the children, that she submit to urine analysis testing and that she undertake counselling for multigenerational abuse and trauma.
The First Respondent to the proceedings is the mother, Ms Rogers. The Second Respondent is the father, Mr Nixon, who has not engaged in these proceedings.
The mother in her Response filed on 10 July 2013 sought the following final orders in relation to the subject children:
a)that the mother have sole parental responsibility for the children;
b)that the children live with the mother;
c)that the children spend supervised time with the Applicant paternal grandparents as agreed and supervised by the mother; and
d)that the children spend time with the father in accordance with recommendations made by a qualified psychiatrist after reviewing the father’s mental health.
The proceedings were commenced by the Applicant paternal grandparents in the Local Court on 6 June 2013. On that date, the Court made Orders, in summary, as follows:
a)that service upon the mother be dispensed with;
b)that a recovery order issue to recover the children and deliver the children to the Applicant grandparents;
c)that the mother be restrained, pending further order or with the consent of the Applicant grandparents, from removing the children from their care; and
d)that the proceedings be transferred to the Family Court of Australia.
Upon transfer to the Family Court, the proceedings were listed before a Registrar on 25 June 2013 and, inter-alia, the parties were ordered to attend intake events for the Child Responsive Program on 19 September 2013. It was noted on that day that the children were not spending time with the mother and were living with the Applicant paternal grandparents. It was ordered by consent and pending further order that the children spend time with the mother each Saturday from 2.00 pm to 4.00 pm, supervised by either of the Applicants.
On 3 September 2013 an Independent Children’s Lawyer was appointed in the proceedings.
On 14 October 2013 the proceedings were once again before a Registrar. It was noted that the father was not participating in the proceedings other than to participate in the Child Responsive Program. Otherwise, by consent and pending further order, the Court ordered:
a)that the children spend time with the mother each Sunday from 9.00 am to 4.00 pm with the mother to collect the children from Town C McDonald’s Family Restaurant and return the children to Suburb B McDonald’s Family Restaurant, and each Tuesday from 10.00 am to 12.00 pm with the mother to collect and return the children to Suburb B McDonald’s Family Restaurant;
b)that the mother ensure the children are in her care at all times while the children spend time with her; and
c)that the Applicant grandparents ensure that the father’s time with the children is supervised and in their presence.
On 11 November 2013 the proceedings were before the Court and directions were made for the matter to proceed to interim hearing on 10 December 2013 at 10.00 am.
The matter was heard on an interim basis on 10 December 2013.

The Interim Application

The interim application before the Court is the mother’s Application in a Case filed on 11 July 2013. In that application the mother, in summary, seeks the following relevant orders:
a)that the Applicant grandparents forthwith return the children to the mother and a recovery order issue to that effect;
b)that the Applicant grandparents be restrained from removing or taking possession of the children;
c)that the mother have sole parental responsibility for the children;
d)that the children live with the mother;
e)that the children spend supervised time with the father as agreed and supervised by the mother; and
In response, the Applicant paternal grandparents seek interim orders in the same terms as those set out above (which are sought also on a final basis).

Background

The Mother’s evidence

The mother was born in 1987 and is presently 26 years of age. The father was born in 1991 and is presently aged 22.
The father is the son of the Applicant paternal grandmother. The father has a younger sister Ms D. The mother asserts that the father raped his younger sister Ms D in 2010 and threatened her with a knife. The father, she says, was admitted to E Mental Health Unit in May 2010 following a suicide attempt.
The parents commenced a relationship in about September 2009 and the subject children are the children of that relationship. The parents ended their relationship on a final basis in May 2012.
The mother has three other children who are presently in foster care. They are J, aged nine, F, aged nearly eight, and G, aged five and a half. These children are the children of a previous relationship of the mother with a much older man. The mother asserts that that relationship was controlling and abusive.
The mother ended that relationship and moved into a refuge and then into her mother’s home. She asserts that her elder children’s father continued to threaten and stalk her. However, after what appeared to be protracted Children’s Court proceedings, the three children were placed under the care of the Minister until 18 years of age. The mother asserts that this was as a consequence of the risk to the children should they be in her care as a consequence of the father’s abusive and violent behaviour.
The mother has contact with these children by arrangement through the Department and is aware of their schooling circumstances and receives school reports regularly. She proposes that once her circumstances settle she may seek to have the children returned to her care.
The mother’s relationship with the father in these proceedings commenced with them living in a caravan at the back of the Applicant paternal grandmother’s home in late 2009. The father and mother moved to premises at Suburb H in August 2010, but in November 2010, the mother moved out of those premises and in with the paternal grandmother. She says that in April 2011 she moved from the paternal grandparent’s home to premises at Suburb H, where she lived with the father. In July 2011 and until September 2011 the parents lived in premises at Suburb K.
Thereafter, the mother returned to the paternal grandparents premises for a short period and then resumed living with the father at Suburb K in November 2011. The child R was born while both the father and the mother were residing at Suburb K.
In mid-2012 the father attended at the paternal grandmother’s home. The police were called and the father was found to be carrying 2 knives. The mother moved from the paternal grandmother’s home to a refuge and, thereafter, into shared rental accommodation until October 2012. She then returned to reside in the paternal grandmother’s home on the promise that the father would not live at the premises and would not spend unsupervised time with the children.
The mother and subject children continued to reside at the paternal grandparents’ home until mid-May 2013 when the mother asserts that she discovered that the paternal grandparents were seeking to obtain orders for the care of the children.
The mother thereupon left the paternal grandparents home on or about 19 May 2013 and, without notice to her, she says, recovery orders referred to above were made in the Local Court as referred to above.
The mother says that since the birth of the subject children they have always been in her primary care, spent some time with the father and time with the paternal grandparents. The mother asserts that the father has had little quality involvement in the lives of these young children.
The mother’s application is supported by her friend, Ms M, who gives evidence as to the mother’s parenting skills and an insight into the nature of the mother’s relationship with the Applicant paternal grandparents.
In October 2012 the mother says she was diagnosed with depression. She says that at this time she signed a document that evidenced her wish that the paternal grandparents care for the children whilst she was unwell. The mother asserts that she is no longer suffering from depression.
The mother is in employment with I Organisation in a welfare role and had been in that employment since October 2010. She is presently not working due to a back injury.
In June 2013 she commenced to reside with her mother, the maternal grandmother at Suburb A. The premises is a three-bedroom home, also occupied by her brother Mr L.
The mother relocated from her mother’s home on 11 October 2013 to the home of a family friend and she has applied for housing commission accommodation and has been informed that in the event that she has the children returned to her full-time care she will obtain suitable accommodation promptly.
It appears that the relationship between the mother and the paternal grandparents is now to some extent conflictual.
The mother expresses concerns for the safety of the children continuing to reside with the paternal grandparents as a consequence of the father’s previous criminal history and mental health. She expresses a concern that he may sexually abuse the children, he having committed bestiality at the age of 12 and alleged to have raped his sister.
The mother also expresses concerns that the father’s sister Ms D, who has self-harmed and had various admissions in relation to that, will expose the children to harm.
The mother reports that the paternal grandfather’s youngest son Mr N is living in the home, although she does not believe that he poses a risk to the children. The child O, now aged 15, resides in the paternal grandparent’s home. O has an intellectual disability and, to the mother’s observation, is very withdrawn. The mother has concerns that O, since the age of 12, has engaged in sexualised behaviours that might present a risk to the children.

The mother proposes that she obtain housing from the Department of Housing. The nearest affordable housing is on the South Coast area of New South Wales. The mother presently resides with a close family friend in the Sydney Suburb B area, who has offered her and the children ongoing accommodation. That accommodation would provide a separate bedroom from the children and the children are familiar with the premises. That person has provided an affidavit in support of the mother’s application.
If the children are returned to the mother’s care and she receives available government assistance, she may be able to afford private rental accommodation in the Suburb B area. She proposes to return to work once the children are in preschool.
Pursuant to interim Orders, the mother has had time with the children each Sunday and they had been taken to her home or to visit the maternal grandmother and have been visited by the maternal grandfather.
The interim Orders present issues for the mother in terms of travel as she does not have a vehicle. It takes her, she says, some 90 minutes to travel by public transport to the collection point and some 90 minutes back to her home, and then an hour back to the drop off point.

The paternal grandparents

The Applicant paternal grandmother is aged 47. She is employed on a casual basis in a welfare role at P Organisation in Suburb B. She has lived with the Applicant paternal step-grandfather since 2009.
The paternal grandmother has three children, the father in these proceedings Mr Nixon, Ms D, aged 18, and O, aged 16. The child O has a disability and attends Q School.
The child Ms D has been treated for mental illness and has struggled with her condition. Ms D presently resides with her father and has only limited supervised contact with the subject children. In her affidavit, Ms D confirms her living circumstances with her father, where she has resided since February 2013. She denies telling the mother that the father (her brother) raped her whilst at high school in mid-2009, an assault that was reported to the police and to JIRT.
On 8 June 2012 Ms D underwent a neuropsychological assessment by Ms S, clinical neuropsychologist, at the T Mental Health Service at Suburb B. It is reported that she has a long history of learning difficulties and was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at age 6. On testing, she presented with below average level of general ability in comparison to her years. On 1 March 2013 she was admitted to a mental health facility and was not discharged until 12 July 2013. On admission, there were risk factors in relation to suicidal ideation and violence. On occasions she reported thoughts of self harm and on one occasion reported superficial cuts to her arms in response to several stressors, including grief in relation to the loss of her paternal grandmother, memories of child sexual assault and conflict with family members and friends. On discharge, it was recommended ongoing support to develop coping skills with a referral to a psychologist and/or other organisation for ongoing support.
The father in these proceedings, Mr Noxon, has a history of mental health issues. The paternal grandmother says that his circumstances became so severe that she voluntarily asked for him to be placed into foster care as she could not cope with him and the needs of her two daughters. The paternal grandmother believes that her son’s current diagnosis of multiple personality disorder is appropriate and that he requires further psychiatric care. The Applicant paternal grandparents propose that any contact between their son and the children be supervised by them.
The Applicant paternal step-grandfather has three children and his son Mr N, aged 18, resides with the Applicants. Mr N has an intellectual disability.
The paternal grandmother referred to the Children’s Court proceedings in relation to the mother’s children of her previous relationship, who are presently in the care of the Department. On 15 September 2011 the Supreme Court of New South Wales dismissed an appeal by those children’s father seeking contact with the children.
She says that the mother had prolonged exposure to domestic violence in her previous relationship and was sexually abused by her step-grandfather.
The paternal grandmother says the mother was distressed when she was pregnant with the child V by reason of the risk that the Department may take the new baby off her if she was residing with the father Mr Nixon. She asserts that it was agreed with the Department that provided that the mother resided in the home of the paternal grandparents, the child would not be removed from the mother’s care.
Following the birth of the child R in April 2012, the mother was discharged from Suburb B Hospital maternity ward. At that time the discharge documents reveal that the mother was residing in premises at Suburb K, not at the paternal grandparent’s home. The discharge support plan discloses no necessity for any follow-up from the social worker, no drug health issues, no mental health issues and no further involvement from the Department.
Whilst the paternal grandmother asserts that both Applicants have been the primary carer for the subject children since their birth, the circumstances are that the mother was living at various times in the household with the children and at other times independently with the father.
The paternal grandmother says that the mother left their home with both of the children on 20 May 2013. On that day they made a risk of harm report to the Department.
The paternal grandmother asserts that the mother, father and child V were previously living independently at Suburb H and the Applicants were not able to see the child V for nine months. Then in early June 2011 the mother returned to reside with the Applicant paternal grandparents as a consequence of the breakdown in her relationship with the father, then returned to reside with the father at Suburb K in about November 2011.
Following the birth of the child R, the paternal grandparents had some contact with the child by arrangement with the mother. Shortly after the birth and by reason of a further breakdown in the relationship between the mother and father, the mother moved to her own mother’s home and then in July 2012 back to reside with the paternal grandparents together with the children.
There was subsequently an incident in July 2012 when the father attended at the paternal grandparents’ home and the police were called. On 19 July 2012 the mother left the paternal grandparents’ home taking the children with her. The paternal grandmother was informed by the Department that they had placed the mother and children in a refuge and would not disclose her whereabouts by reason of concerns for the mother and children’s safety at the hands of the father.
By arrangement with the mother, the paternal grandparents spent some time with the children. At this time the mother was living in shared accommodation at Suburb U.
The paternal grandmother asserts that there was an arrangement with the mother where the children spent significant time each week with the paternal grandparents.
On or about 11 November 2012 the mother and the children returned to reside in the maternal grandparents’ home. Shortly prior to returning to reside in the paternal grandparents’ home, the mother on 30 October 2012 swore a statutory declaration attesting as to her then unsuitable and unsafe accommodation for the children and that she was suffering from severe depression. The declaration attested that, until she obtained help and got herself settled into suitable accommodation, she gave authorisation for the paternal grandparents to have the day-to-day care of the children.
The mother and children thereafter resided in the paternal grandparents’ home until the mother departed with the children in May 2013.
In January 2013 the mother formed a relationship with a Mr W and she and the children moved to live with him at Suburb X for three weeks. The paternal grandmother made a complaint to the Department about the mother’s partner’s behaviour.
The paternal grandmother says that in late April 2013 the mother asked her own mother to take the children as the mother could not handle it any more. The paternal grandmother says she was upset as she and her husband had spent money, time and affection on the children and the mother had asked her own mother to look after them.
The paternal grandmother expresses concerns for the children as the mother is unable to cope with them and has mental health issues. She expresses further concern that the mother will neglect them, that they will be placed in an unsafe environment, that the mother will not properly manage the child R’s asthma and the child V’s constipation, and that the mother will not feed the children appropriately and expose the children to her smoking.
The concerns of the Applicant grandparents are supported by affidavits from Ms Y and Ms Z.
As a consequence of electronic communication between the mother and the paternal grandmother, it is clear that their relationship now is extraordinarily conflictual, with the mother using extensive abusive and foul language.
The Applicant parental grandparents propose that the children continue to reside in their home. Their home is a four-bedroom home where the children would have their own room. She says that she and the paternal step-grandfather take turns in looking after the children, depending upon their work commitments. It is proposed that the children be enrolled in day care three days per week so as to socialise with other children.
The Applicants are happy to continue to facilitate time for the children with the mother.
The Applicant paternal grandmother is supported in an affidavit by the Applicant paternal step-grandfather.
The paternal grandparents have engaged in a weekend course designed to improve parenting skills and have enrolled in two parenting programs with AB Organisation.

The Child Responsive Program Report

A Child Responsive Program memorandum dated 3 October 2013 was admitted into evidence as Exhibit D.
It is noted that the father did not attend his scheduled intake appointment on 19 September 2013 but in a telephone conversation with the Family Consultant he informed the consultant that “once [the mother] was out of the way he would share care of the children with the paternal grandparents.” The father was not prepared to disclose his living circumstances to the Family Consultant because of his professed concerns that the mother may arrange to have him harmed. He attended on 3 October 2013.
In observation, the Family Consultant observed that the children separated from the paternal grandparents without distress when they were placed in the Court childcare room. The children readily accompanied the Family Consultant “to see mummy”. Both children were positive in their responses to the mother and it was observed that she interacted with the children in a manner that was appropriate to and supportive of the children’s apparent developmental levels. The children separated from the mother without distress and returned to the childcare room with the Family Consultant.
The children appeared comfortable with the paternal grandparents, who interacted with the children in a manner that was appropriate to and supportive of the children’s apparent developmental levels.
The Family Consultant observes that the children appeared comfortable with the father when he was introduced into the observation room whilst the paternal grandparents were present. However, when the paternal grandparents were asked to leave the observation room, the child R clung onto the paternal step-grandfather and became distressed. He settled quickly after the paternal grandparents left the room.
The paternal grandparents expressed to the Family Consultant their concerns that V may have traits of Asperger’s disorder, although this had been discussed with the child’s paediatrician. They informed the consultant that the children attended day care on Monday, Wednesday and Friday.
The paternal grandparents reported the history of concerns for their son’s mental health from adolescence and that he had been admitted to a mental health unit at Suburb B Hospital.
The paternal grandparents asserted that the Department had been involved with the mother when the child V had been an infant. They expressed concerns as to the mother’s problems with substance abuse, gambling and depression.
The mother reported to the Family Consultant that she had been the primary carer for the children until Orders made in mid-2013. The mother expressed concern that R’s relationship with her had deteriorated since that time.
The mother denied any substance abuse and said that she had been falsely diagnosed with depression when in fact she was simply stressed.
The mother expressed concerns as to the father’s mental health and the paternal grandparents capacity to protect the children from him.
The father said that he did not have the capacity to provide adequate care for the children and was thus supporting the paternal grandparents’ application. He said that he had been the subject of a number of diagnoses in relation to his mental health in childhood and adolescence including Attention Deficit Hyperactivity Disorder, Asperger’s disorder and schizophrenia. He said he had been in the Department’s care during his adolescence.
The father said he was not engaged in any treatment currently and managed his situation through working hard. Otherwise, he was currently on a three-year Good Behaviour Bond arising from an affray charge in 2012.
The Family Consultant, in summary, observed that the children appear to have established relationships with each of their parents as well as their paternal grandparents. The mother, father and paternal grandparents give different accounts of concern for the children and there was some alignment between the paternal grandparents and the father in relation to the mother’s capacity as a parent there was also some alignment between the paternal grandparents and the mother in relation to the father’s mental health function.
It was recommended by the Family Consultant that the parties’ access support to address the conflict, that a Chapter 15 expert child and family psychiatrist report be obtained.
The Family Consultant observed that the children are both still very young and at developmentally-sensitive ages. The history of prior disruptions to the care arrangements was concerning. Further, lack of stability in the ongoing arrangement for the children may significantly exacerbate any developmental harm for them.

Objective Evidence

Tendered during the course of the interim hearing were a significant volume of material produced on subpoena by the Department of Family and Community Services. Matters of some note are as follows:
a)A notification was made to the Department in May 2012 that the mother had overdosed on pain killers and was taken to hospital. A Departmental enquiry revealed that the mother’s hospitalisation was as a result of migraines and the mother had not taken an abnormal amount of painkillers. The social worker at the hospital reported that there were no concerns and that both parents had been actively engaging with the hospital and had been pleasant to deal with. The social worker reported that the mother was very good in her mother craft skills and the hospital had no concerns for the mother’s care of R.
b)Notifications in relation to the child V were investigated whilst R was a newborn. The reports were unsubstantiated, which was supported by a home visit where basic needs for the newborn were cited. A Departmental enquiry revealed that the mother had appropriate antenatal check-ups and was appropriate in her care for R and mother craft skills.
c)A memorandum dated 22 November 2012 reveals a number of reports and concerns held by the Department. It is to be inferred from the memorandum that some of the complaints to the Department were made by the Applicant paternal grandparents.
d)In December 2012 a notification appears to have been made by a neighbour complaining that the mother was always screaming at the child V. The notifier alleged that the adults in the home, that included the Applicant grandparents, were constantly arguing, slurring their words and appeared to be alcohol-affected. On 5 December 2012 Departmental officers undertook a home visit at the Applicant paternal grandparent’s home at Town C. The report noted that the home was free from clutter, both front and back yards were secure. The pool was cited in the backyard enclosed by appropriate fencing. Food was cited in the kitchen, benches, floor and sink to be clean and free from rubbish. There were no safety concerns.
e)Concerns held by the Department as to the father having unsupervised time with the subject children with assurances being sought from the Applicant paternal grandparents that they supervise his time with the children at all times.
Documents from Suburb B Mental Health Unit reveal that on 15 December 2010 the father was certified mentally ill under the provisions of the Mental Health Act 2007 (NSW). He was observed to be angry, combative and refusing to cooperate. He was grandiose and threatening with his judgement and insight grossly impaired. It was concluded that he had delusional beliefs and posed a risk to himself and others. He was detained under the provisions of that Act and released the following day.
Historical documents from the New South Wales Children’s Court proceedings relating to the mother’s other three children reveal that the mother herself has a child protection history with the Department dating between 30 October 1997 and 19 May 2003. The issues predominantly relate to physical and emotional harm of the mother by her own mother and a risk of physical and sexual abuse from Mr BB, the father of her three other children. Mr BB was 33 years older than her and she commenced a sexual relationship with him when she was 13 or 14 years of age.
Documents from the Town C Medical Centre in relation to the mother reveal an attendance upon her General Practitioner on 20 June 2013 that disclosed the stress on her at that time by reason of her children being in the care of the Applicants.

Submissions

The Independent Children’s Lawyer contended that interim orders should be made, in summary, as follows:
a)that all previous Orders in relation to the children be discharged;
b)that the Applicant paternal grandparents and the mother have equal shared parental responsibility for the children;
c)that the children live with the Applicant paternal grandparents;
d)that the children spend time with the mother each alternate weekend from 9.00 am Saturday until 4.00 pm Sunday, each Tuesday and Thursday from 9.00 am until 4.00 pm and at other times as agreed between the Applicant paternal grandparents and the mother;
e)that changeovers at the commencement of time be at Town C McDonald’s and at the conclusion of time at Suburb B McDonald’s;
f)that the Applicant paternal grandparents and the mother be restrained from allowing the father to spend unsupervised time with the children;
g)that the mother be restrained from consuming alcohol or illicit drugs for 12 hours prior and during any time that the children would spend with her;
h)that there be a mutual non-denigration order;
i)that the mother notify the Applicant paternal grandparents at least four weeks prior to any change in her residential address, including details of the proposed new address and who she will be living with;
j)that each party keep the other informed as to their current residential telephone number, mobile telephone number and email address, and advise each other within two days of any change; and
k)that in the event of either child suffering a medical emergency that requires medical attention, the other party is to be notified as soon as practicable and provided with full details of the medical practitioner or medical facility at which the child attends, and that the medical practitioner or medical facility be advised that all parties have access to the child’s medical records and the information obtained with them upon request.

The Independent Children’s Lawyer was also mindful that an order for urinalysis testing of the mother might be appropriate. The Independent Children’s Lawyer noted that there had been previously good communication between the Applicant paternal grandparents and the mother. The children, it was submitted by reason of the observations in the Child Responsive Program memorandum, had positive relationships with both the Applicants and the mother.
It was contended on behalf of the mother that there was an ongoing risk to the children should they remain in the Applicant paternal grandparents’ care. This was substantially represented by the father’s attendances at the paternal grandparent’s home and significant concerns in relation to the mental health of their daughter Ms D and her contact with the children.
It was contended on behalf of the Applicant paternal grandparents that the children had been in and out of various accommodations and there was a necessity, as suggested in the Child Responsive Program memorandum, that at least in the immediate future the children have some stability. In this regard, the Applicant paternal grandparents’ home has been the one real constant in the lives of the children. It was further contended that historically the paternal grandparents had been supportive of the mother, particularly in the context of her difficult relationship with their son. It was suggested that the Applicant paternal grandparents’ proposals were best for the children.
As to the precise orders sought by the Applicant paternal grandparents it was contended that the mother should have time with the children as follows:
a)each alternate weekend from 9.00 am to 4.00 pm Saturday and 9.00 am to 4.00 pm Sunday and each Thursday from 9.00 am to 4.00 pm; and
b)that changeovers be effected at the Suburb B McDonald’s restaurant, which is closer to the mother’s residence.
As to the risk potentially to the children represented by their son in the light of his historic and significant mental health issues, the Applicant paternal grandparents would consent to injunctive orders that he not reside in their home, that he spend no overnight time in their home and that he only have time with the children under the direct supervision of one of the Applicant paternal grandparents.
As to the Applicant grandmother’s child Ms D, it was contended by the Applicants that she no longer resided in their home and they could be restrained by injunction from allowing her to do so.
As to the mother’s time with the children, the Applicant’s proposed day contact only by reason of the uncertainty in relation to the mother’s accommodation and their lack of knowledge as to its whereabouts.
The mother responded by providing particulars of her address and seeking protective orders by way of injunction preventing the father and the Applicants from attending at those premises.

Discussion

In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act, as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)];
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In Goode (supra); the Full Court, comprised of (Bryant CJ, Finn and Boland JJ), discussed the application of the presumption in section 61DA to interim proceedings at [56]:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

The Presumption

The Court is satisfied that in all circumstances of this matter the presumption should not apply. Primarily, the issues as to parental responsibility are between the Applicant paternal grandparents and the mother. In those circumstances, it is inappropriate that the statutory presumption as to the parents to apply. However, it is appropriate for the mother to have input into long term decisions for the children pending final hearing.
Accordingly, the matter is to be determined by reference to the objects and principles of the Act as referred to above and the best interests’ considerations set out in section 60CC of the Act as they are applicable to the parties in these proceedings.

Best Interests of the child

As the Full Court observed in Collu & Rinaldo [2010] FamCAFC 53, as the Court turns to look at the best interests considerations set out in section 60CC, it should firstly consider the additional considerations.

The Additional Considerations: s 60CC(3)

The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act relevant in this case, as follows:
(b) the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The Child Responsive Program memorandum gives an overview in relation to the observed children’s relationships with the Applicants, the mother and the father. It is apparent that the Applicant paternal grandparents at various times have had a significant involvement in the lives of the children, especially during periods when the mother has resided in their home. Whilst there is an issue on the evidence as to who indeed was the primary carer it is important to note that at all times prior to the orders in mid-2013 the mother was living in the Applicants’ home with the children and when she was absent from that home the children were in her care save for various short periods they spent with the Applicants. The Court is satisfied that the children have a substantial and significant relationship with the Applicant paternal grandparents and a similar relationship with the mother. However, the Court is mindful of the need for the children to develop in an appropriate way a strong attachment to their mother subject to protective concerns. In this matter, the father’s relationship with the children has been fractured and uncertain. His conduct and behaviour notwithstanding, the children appear to have a sound relationship with him and identify with him as their father.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Since the interim Orders made in mid-2013, albeit on an ex parte basis and pursuant to further interim Orders made on 14 October 2013, the children have resided in the home of the Applicant paternal grandparents with the mother having prescribed time with children, not including overnight time. The Child Responsive Program memorandum is mindful of the need to provide stability for the children having regard to the instability of their earlier arrangements. At present, the mother’s proposal would see the children dislocated once again in circumstances where her accommodation is to some extent uncertain and her financial ability to provide for the children is untested. Of greater importance is the mother’s capacity to be able to provide appropriate care for the children, particularly having regard to her own care background, the relationships that she has chosen to enter into and the various allegations as to her neglect of the children. All of these await determination at a final hearing, prior thereto it is appropriate for the Court to steer a safe course in the best interests of these children.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
To the extent relevant the Applicant paternal grandparents have agreed that changeovers in relation to the proposal for the children to have time with the mother will take place at the Suburb B McDonald’s Family Restaurant. This will facilitate much less travelling by the mother and by the mother with the children at times of changeover than if she had been required to travel to Town C by public transport.
(f) the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
In the context of this consideration the father concedes that he does not have the capacity to provide for the ongoing needs or care of the children. The capacity of the Applicant paternal grandparents is subject to some criticism by the mother, particularly in the context of risks presented by their household should the father or the child Ms D be present. The issue as to the mother’s capacity has been referred to above and it may be that she will need to earn the trust of the Applicant paternal grandparents and, indeed, the Court in this regard as her time with the children expands.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This factor touches upon the mother and father, and by his own admission the father has significant shortfalls in this regard. The mother has experienced significant difficulties during the early lives of the subject children, particularly by reason of the nature of the relationship between her and the father. Perhaps she has made decisions that, on reflection, would not have been made. However, a consideration of this issue will await a final hearing in the fullness of time.
(j) any family violence involving the child or a member of the child's family;
The mother alleges that she has been subjected to violence at the hands of the father. The evidence before the Court, such as it is, is corroborative of that assertion. The nature and extent and relevance of the background of violence in the relationship between the father and mother will await a final determination.
(m) any other fact or circumstance that the court thinks is relevant.
This consideration is relevant as it permits the Court to consider the Applicant paternal grandparents in the context of the considerations above that would otherwise only apply to the parents. The relevant matters have been commented on above.

The Primary Considerations: s 60CC(2)

The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(a) – “meaningful” relationship

In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
In the context of this primary consideration it is important for the Court to be mindful of focusing on the prospect of the children having in the interim and on a final basis a relationship with the mother that is meaningful to them and not overshadowed by issues of relationship violence, mental health, allegations of neglect and other criticisms. A determination as to the way in which to promote a relationship of this nature will essentially await a final hearing but on an interim basis steps can be made to commence the process. This can be done by affording to the children more meaningful time with their mother, while still recognising appropriate protective concerns. In relation to the father, by reason of his own personal circumstances and the nature of the children’s relationship with him, it appears in the long-term that the children’s relationship with him only be permitted in appropriately protective way.

Section 60CC(2)(b) – need to protect

This primary consideration is, of course, a matter of significant priority in the context of the best interests of the children. The children in the past have been exposed to violence, allegations of neglect, uncertainty in terms of their relationship with their mother and, indeed, the paternal grandparents, particularly in the context of the deteriorating relationship between the Applicant paternal grandparents and the mother. It is of a prime concern to the Court to ensure that orders are made that an address these ongoing issues as best can be facilitated. By reason of recent amendments to the Act these protective concerns overshadow the other primary consideration. At least in the interim, and for the reasons discussed above, the Court is satisfied that stability for the children is paramount.

Section 65DAA – equal or substantial and significant time

In light of there being no presumption as to equal shared parental responsibility, the Court is not required to give consideration to whether the children spending equal time with each of the parents is in the best interests of the children and reasonably practicable, and if so, to consider making an order for such equal time, nor consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and reasonably practicable.

Conclusion

The Court is satisfied that, having regard to the best interest considerations and the objects and principles of the Act, that orders that primarily reflect the interim orders sought by the Independent Children’s Lawyer are appropriate, and will be made accordingly.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 February 2014.

Legal Associate:

Date: 12 February 2014

[2014] FamCA 59

12 February 2014

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Family Law

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Injunction

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