WKM and LD - [2002] FMCAfam 391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WKM & LD

[2002] FMCAfam 391

FAMILY LAW — Children — Residence — young child residing with grandparents from early age as a result of Department of Human Services intervention — mother seeks residence — father has personality disorder — father intimidates grandparents and grandparents unable to control him or withstand his influence — mother has mild intellectual disability — mother in stable relationship with supports in place.

Applicant:

WKM

First Named Respondent:

Second Named Respondents:

File No:

(P)MLM 4256 of 2000

Delivered on:

4 December 2002

Delivered at:

Melbourne

Hearing Date:

24 – 26 April 2002, 1 – 2 May 2002,
7 May 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Ms Phelan

Solicitors for the Applicant:

Hale & Wakeling

Counsel for the First Named Respondent:

Mr Pinner

Solicitors for the First Named Respondent:

T J Mulvany & Co (Ceased to Act)

Counsel for the Second Named Respondents:

In person

Solicitors for the Second Named Respondents:

Unrepresented

Counsel for the Child Representative:

Mr Curtain

Solicitors for the Child Representative:

Donald S Lampe

ORDERS

(1)See paragraph 208 of these Reasons.
(2)Counsel (or, where appropriate, the parties) will be heard regarding the precise terms of orders necessary to give effect to this Judgment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM 4256 of 2000

WKM

Applicant

And

First Named Respondent

And

Second Named Respondents

REASONS FOR JUDGMENT

Introduction

Before the Court are the parties’ competing applications relating to parental responsibility for their child and grandchild, S.
The parties to the proceedings are the mother, the father, the father’s parents (to whom I shall refer — from time to time — as the grandparents) and the Child Representative.
The mother proposes that S live with her, that the grandparents have certain defined contact with S, and that the father only have contact with S during his parents’ contact periods — and subject to various conditions.
The father proposes that S reside with his parents, that he have contact with S by agreement between himself and his parents and that the mother have certain defined contact periods with S.
The grandparents support the father’s proposal. Broadly speaking, the Child Representative supports the mother’s proposals.
The mother is presently aged 25 years. She has a mild intellectual disability. The father is aged 52 years. He has a personality disorder.
S is aged 4 years. She has spent most of her life living with the grandparents. The grandmother is aged 73 years. The grandfather is aged 75 years.

Documents Relied Upon

The mother relied upon the following documents:
a)her application filed 23 October 2000;
b)her affidavits affirmed on 25 March and 22 April 2002;
c)affidavit of Mr F sworn 20 March 2002; and
d)affidavit of Mrs M sworn 19 March 2002.
The father relied upon the following documents:
a)his response (being a joint response of the father and the grandparents) filed 5 December 2002;
b)his affidavits sworn 5 December 2000, 24 April 2001 and 23 April 2002; and
c)affidavit of Philip Wood (psychiatrist) sworn 22 April 2002.
The grandparents (who have at all relevant times been treated as parties to the proceedings) relied upon the affidavits sworn by the grandfather on 5 December 2000 and 9 April 2001.
The Child Representative relied upon a Family Report prepared by Michelle Meyer, dated 4 February 2002. The report was prepared pursuant to an order made by Federal Magistrate Hartnett on 5 December 2001.
The mother filed an Outline of Case Document on 22 April 2002. None of the other parties filed a Case Outline.
Written Outlines of Submissions were provided on behalf of the mother, the father, and the Child Representative. The grandparents, who were present throughout the trial and represented themselves (with the assistance of an interpreter), did not provide a written Outline of Submissions.
The mother, the father, and the Child Representative all provided various Minutes of Proposed Orders Sought at various stages of the trial.
The mother, the father, the grandfather, the grandmother and the witnesses Meyer, Mr F, Mrs M and Doctor Wood all gave oral evidence, and all were cross-examined. A further witness, Ms G, gave evidence by telephone link. She was also cross-examined. Ms G is the proprietor of the day care centre previously attended by S. She gave evidence pursuant to a subpoena issued at the request of the Child Representative.

Background

S was born on 18 June 1998. She is 4 years old and is the only child of the father and the mother. Neither the father nor the mother has any other children.
The father was born on 29 May 1950. He is presently aged 52 years. The mother was born on 14 January 1977. She is presently aged 25 years.
The grandmother and grandfather are aged 73 and 75 years respectively. They have 3 adult sons, of which the father is the eldest.
The parties met when they were both residing at a “half-way house” run by Hanover (which, I understand, is an independent welfare agency providing various services for homeless people, or for those in need of crisis accommodation, transitional housing and other assistance).
The father and the mother commenced a relationship in 1995. At that time, the mother was aged 18 years and the father was aged 45 years. They finally separated in May 2000 — when S was aged approximately 2 years.
The background to these proceedings is adequately summarised in the following passages from Ms Meyer’s report:
When S was only a few weeks old, the couple’s problems were exposed, when (the father) notified the Department of Human Services, following his concerns that (the mother) had inappropriately shaken S. The problems in the relationship included the couple’s inadequate care of S, ongoing domestic violence, issues related to the mother’s past history of childhood abuse, the mother’s mild intellectual disability and excessive use of alcohol, and the father’s volatile and aggressive personality, including a history of hostility and paranoia.
Following the Department’s involvement, the couple attempted to address their issues. S was placed in foster care from the age of four and a half months, for short periods of respite. At the age of seven months, S was placed in the care of her paternal grandparents, and has remained in their care since that time. The Department of Human Services ceased their involvement with the family in mid 2000.
The mother commenced a de-facto relationship with Mr F in or about September 2000. Mr F was born in June 1956. He is aged 46 years. He is in full time employment as a sales agent. He owns his own home in a suburb of Melbourne — where he and the mother have resided since October 2000.
Mr F has two children from a previous marriage. He has regular contact with his children.
The father has not re-partnered.
According to the mother, the Department of Human Services became involved when S was approximately six weeks old as a result of:
a)S’s exposure to domestic violence between the father and the mother;
b)the mother’s inability to separate from the father;
c)the father’s psychiatric problems;
d)the mother’s mild intellectual disability; and
e)the mother’s alcohol use.
The Department commenced care and protection proceedings in the Children’s Court in approximately August 1998. As a result, S was placed in foster care on numerous occasions as the proceedings progressed.
In approximately September 1998 both the mother and the father were psychologically assessed at the Children’s Court Clinic. In January 1999 S was placed with the grandparents on an interim basis. In June 1999 she was formally placed with the grandparents for a period of twelve months pursuant to a Custody to Secretary Order. From that time until the father and the mother separated in May 2000, both the mother and the father had frequent contact with S. The Department withdrew its involvement with S in June 2000, but she continued to reside with the grandparents.
On 23 October 2000, the mother filed an application seeking an order to the effect that S reside with her and that she have sole responsibility for S’s day to day care, welfare and development. She also sought an order that the father and his parents have contact with S at times to be agreed between the parties.
In the same application, the mother sought certain defined contact with S on an interim basis.
The father’s response was filed on 5 December 2000. It is expressed to be a joint response of the father and his parents. The final orders sought in the response are as follows:
a)that S reside with the father and he have sole responsibility for her day to day care, welfare and development; and
b)that the mother have contact with S at times to be agreed by the parties.
In their response, the father and his parents also proposed that an interim order should be made to the effect that the mother have contact with S “at times to be agreed between the parties”.
On 5 December 2000, Federal Magistrate Hartnett made a number of orders in the proceedings. They included the following:
a)that until further order, the mother, the father, the grandfather and the grandmother each have responsibility for the long term care, welfare and development of S;
b)that the mother have contact with S:
i)each Tuesday from 11.00 a.m. until 4.00 p.m. at the home of and in the presence of the grandparents, and in the absence of the father;
ii)each Sunday from 11.00 a.m. until 4.00 p.m. with changeover to take place at the Deer Park Children’s Access Program;
iii)from 11.00 a.m. to 2.00 p.m. on Christmas day at the at the home of and in the presence of the grandparents, and in the absence of the father; and
iv)at such other times as may be agreed,
c)that a family report be prepared; and
d)that a child representative be appointed.
On 19 February 2001 further interim orders were made by consent, reflecting a variation of the contact arrangements set out in the orders made on 5 December 2000.
On 19 June 2001, Federal Magistrate Connolly ordered that all previous orders as to contact be discharged, and that the mother have contact with S —
a)from 3.00 p.m. on Thursday until 12.00 p.m. on Friday of each week, with the mother to collect the child from and to return the child to the Bishop Street Childcare Centre; and
b)from 11.00 a.m. until 4.00 p.m. each Tuesday at the Bishop Street Childcare Centre.
His Honour also ordered that the mother’s contact, and all contact changeovers, take place in the absence of the father.
Other procedural orders were made at various times.

Preliminary Observation

In many ways, this was a most unusual case. It was dominated by the father’s presence, and by his personality. I propose, therefore, to deal with certain of the evidence of the two expert witnesses in the proceedings (being the father’s psychiatrist, Dr Wood and the author of the family report, Ms Meyer) at the outset. I shall then comment upon the evidence of the father and the mother, and the other witnesses.

Evidence of Doctor Wood (the Father’s Psychiatrist)

Doctor Wood swore an affidavit in the proceedings on 22 April 2002. He is a consultant psychiatrist in private practice. I accept his status as an expert in the field of psychiatry.
In the report attached to his affidavit, Doctor Wood wrote that he had been provided with a copy of the family report (prepared by Ms Meyer) and that he had been asked to comment on the report.
Doctor Wood wrote:
I first had contact with (the father) in 1993. He told me that he had been diagnosed as having schizophrenia but I could find no evidence for that diagnosis. His main problem was depression and anxiety about his inability to start a career. I noted that he was suspicious of other people’s motivation and had poor relations with others including his family. When crossed he is prone to start making remarks about having friends in the Mafia or that he is going to start electronic surveillance. Despite his threats (the father) has no history of serious violence…He has never been easy to fit into any psychiatric classification, but I see him mainly as having a mild personality disorder in the cluster A group. This includes paranoid personality, schizoid personality and schizotypal personality. He is not permanently dominated by feelings of resentment. When relaxed, he can be quite humorous…His mental state does vary at different interviews. It is possible that this is due to his diabetes, which has not been under good control. He is being much more careful with his diet recently. He is being given a low dose of anti-psychotic drug, but this is given to enable him to stay calm, not because he is psychotic. He finds the drug helps him relax, so there are no problems with compliance. (The father) has two brothers, neither of them works and one has schizophrenia. They both live with their parents and (the father) feels they are given preference over him. In his late childhood he was sent to Italy and he sees this as another demonstration of parental rejection. These beliefs do make it difficult for him to co-operate with his parents, but he is aware of the necessity to do so and is able to control his resentment.
Doctor Wood’s report continues:
In recent times, (the father) has improved in his attitude. For example, he is now able to hold cleaning contracts, while in the past he would inevitably quarrel with his clients. He copes well playing with S, but only spends a limited time with her…
…I confirm that, in my opinion, (the father) would not be able to provide adequate psychological care for S if he was by himself.
…I do not think (the father) needs to be supervised at times of access, but he needs to be reminded that he must not interrogate S about her life with (the mother).
Doctor Wood gave evidence before me on 26 April 2002. During the course of his evidence, he said that the father is “so opinionated and rigid” that Doctor Wood could not see him handling problems in a reasonable way. In his opinion, if S were to be placed in the father’s “sole custody”, then “…eventually she would have to run away”. Doctor Wood explained that S would be likely to run away in such circumstances at age 10 or 11.
During cross examination, counsel for the mother drew Doctor Wood’s attention to the father’s actions in taping various conversations (and his conversations with S in particular). Doctor Wood agreed with counsel that the father’s actions in taping S are not in her best interests. As to the father’s insight into the effect of his actions, Doctor Wood said:
I can’t say that he understands enough to appreciate that he shouldn’t do it.
Doctor Wood was referred to a letter that he had written to the Department of Human Services in August 1998. The letter became exhibit “M1”. It includes the following passage (which Doctor Wood conceded is a “fair description” of the father):
(The father) bears grudges and is unforgiving of insults. He is easily slighted. He has a hostile, threatening approach. His truculent manner angers or frightens others and he has lost many jobs because of this.
In response to questioning by counsel for the Child Representative, Doctor Wood re-stated that the father is suspicious of other people and that he “easily feels that whatever they do is malevolent”. Although the father’s work record had improved, Doctor Wood confirmed that he had not seen a similar improvement in the father’s behaviour.
Doctor Wood concluded his evidence by saying that it would be “safest” to ensure that contact between S and the father is supervised — to ensure that the father does not make inappropriate comments to S.
I pause at this stage in my Reasons to comment that counsel for the father conceded — in his written submissions — that “…there is alarming evidence of (the father’s) attitude, demeanour and behaviour with third parties”. I also remind myself that (in theory, at least) it is not the father’s case that he should be the principal residence parent for S. It is his case (as formally presented to the Court) that S should reside with his parents, and that they should be responsible for the making of decisions with respect to her day to day care, welfare and development. The father’s formal proposal is that all contact between S and the father be by agreement between himself and his parents.

Evidence of Ms Meyer (Author of the Family Report)

Ms Meyer holds a Bachelor of Social Work from the University of New South Wales. She was awarded the degree in 1983. She is presently a “Regulation 8 Counsellor” and is in private practice as a social work consultant. Her qualifications and experience were not challenged by any of the parties, and I accept her status as an expert in the field of social work and the preparation of family reports for this Court and for the Family Court. I also accept Ms Meyer as a witness of truth.
In the family report, Ms Meyer wrote:
During the counselling sessions, (the father) presented as a committed and caring father, who is deeply motivated by his love for his daughter. However, he also presented as a person with aggressive and controlling tendencies, displaying on-going animosity and hostility toward anyone with whom he disagreed. He appeared to lack any insight regarding the impact of his aggressive behaviour, including on S, which was indicated speaking inappropriately and abusively in her presence. He also conveyed paranoid ideations, including allegations that a number of people connected with S were “child molesters”, such as numerous boarders at (the mother’s) home, and Mr F. His perceptions were also sometimes skewed by grandiose ideas, believing that he had residency of S and that he was making substantial financial contributions to her care which were beyond his means.
Ms Meyer continued:
It appeared that (the grandparents) were intimidated by (the father’s) controlling behaviour, being unable to confront him about particular issues pertaining to S or to contact with (the mother).
Under the heading “Conclusion” Ms Meyer wrote:
(The father) is deeply committed to the welfare of his daughter, and believes that he is capable of accepting the residency of S. Unfortunately, his personality disorder markedly impacts on his ability to offer his daughter the stability and care she requires. His history of aggression and hostility, as well as his paranoid ideations, skew his view of the world, markedly distorting his interactions with those around him. According to his psychiatrist, Doctor Wood, (the father) would not be deemed to be a suitable option for the residency of S, as her exposure to his personality on a day to day basis would not be healthy for her development. (The father’s) control and manipulation of both his parents and (the mother) has also been detrimental to S, as he has sabotaged contact visits over the last 18 months[1].
[1] See, for example, the history of problems associated with contact set out in paragraphs 40 to 43 of the mother’s affidavit affirmed 25 March 2002.
Clearly, Ms Meyer has accurately stated Dr Wood’s views in the above paragraph — and Dr Wood did not suggest otherwise.
Although I shall return to Ms Meyer’s report later in these Reasons, I record at this point that her recommendation is that S reside with the mother on a full time basis, that the grandparents have either weekly or fortnightly contact with S (preferably at their home) and that the father have contact with S on a fortnightly basis — preferably being supervised by an independent person in a neutral setting. Ms Meyer also recommended that telephone contact be maintained between S and the father, but that such telephone contact only be initiated by the mother.

Ms Meyer gave evidence before me on 24 April 2002. At the commencement of her evidence, she was asked whether she had heard from the father since the preparation of the report. The relevant questions and answers are as follows:
Ms Meyer, since the preparation of this report, have you heard from the father? — I’ve had several messages left on my answering machine, yes.
What’s the nature of those messages? Do you recall what’s being said? — They have been abusive messages towards myself.
Can you be more specific? — He has made some anti-Semitic comments, he has made some threats about my family, he’s made comments about whether I sleep well at night. Yes, there have been a whole range of threatening and abusive phone messages which I have not returned.
It was very clear to me that Ms Meyer was anxious whilst giving evidence, and that she was concerned for her own safety and the safety of her family. I formed the impression, however, that she was capable of providing a fair and balanced account of her contact with the parties and that she did so, and that the expression of the opinions that she had reached was unaffected by her concerns regarding the father’s behaviour.
At the conclusion of Ms Meyer’s evidence, I asked her certain questions:
Ms Meyer, are you aware that (the father) is currently having overnight contact with the child, away from his parents' home? — No.
So the first you've learnt of that is what I've just told you? — I was aware that he had taken her to his place but not overnight.
Is that a matter that causes you discomfort? — It does.
Is that for the reasons that you've set out in your report? — Yes.
Ms Phelan for the mother made reference to the orders that the mother has sought regarding contact in the event that the mother is successful. One of the orders that she has sought is that the father have contact with the child during the grandparents' contact period, save that the child sleep at the residence of the grandparents and the father be restrained from removing the child from the care of the grandparents and the father be supervised at all times during his contact period. If those conditions are imposed, does that arrangement cause you discomfort? — No.
The father's proposal is that S reside with his parents and that they be responsible for making decisions with regard to her day-to-day care, welfare and development. He proposes certain defined contact that the mother should have and the order that he seeks in relation to his own contact with S is as follows: “ that all contact between the child and the father ‘be by agreement between myself and the paternal grandparents’”. So what he wants to press upon the court is to simply leave it to his parents to make that sort of decision regarding contact, and I assume that what he's implying is that if they think overnight contact is appropriate, then so be it; if they think it isn't, then so be that. The influence that (the father) appears to have over his parents has already been mentioned. Are there any comments that you would want to make about the orders that the father proposes? — I feel they're quite unrealistic, given the conflictual relationship he has with his parents and the amount of control he has over them.
Do I gather from your comments and your report — and correct me if I'm wrong but this is my understanding of your comments — that your firm recommendation is that S should continue to have contact with her grandparents but that that should move from being in the context of a quasi‑parental relationship to a grandparental relationship in the usual sense? Is that a summary of what you're suggesting? — Yes, it is.

Evidence of the Father

In his affidavit material, the father was highly critical of the mother. Some of his allegations bordered on the bizarre. For example:
As the child grew I noticed that (the mother) has peculiar ways of dealing with the child. For instance, on one occasion I brought (sic) a home made meat pie and (the mother) ate the meat in the pie and gave the child the crust. She would also become upset if the child drank more milk than she did.[2]
...on a number of occasions (the mother) would orchestrate an argument so she could leave the residence with the rent money in order for her to indulge in either her binge drinking or her various sexual fantasies with either men or women. One week prior to leaving (in May 2000), she provoked an argument and started yelling that I could have S — whom she referred to as the “little shit”. She threw the child at me like a ball.[3]
See also paragraphs 64 and 65 below.
[2] See the father’s affidavit sworn 12 December 2000, paragraph 4.
[3] See the father’s affidavit sworn 5 December 2000, paragraph 5.
In his affidavit sworn 23 April 2002, the father said:
I admit that I have a problem in relating to any person when I am under stress, particularly when I consider that I am threatened or the best interests of S are not being served. I “fly off the handle” verbally and I yell and I admit that sometimes I make threats. (paragraph 10).
I admit that when I am under pressure I call other people “pedophiles” and “child molesters”, and I say I use this language, perhaps incorrectly, when I believe that my relationship with S is under threat. I admit that in the past I have called the mother, Mr F and the mother’s friend Mrs M such names. I do not mean these things literally but I am always insistent that maximum care and security be taken when people are looking after S (paragraph 14).
In paragraph 7 of his affidavit sworn 23 April 2002 (being the day upon which the trial commenced), the father said:
It is my understanding that at present S lives with my parents as a result of consent orders entered into in this Honourable Court in February 2001, and I seek that those orders be made permanently (paragraph 7).
In paragraph 11 of the same affidavit, the father said:
I reside in a rented flat. The flat is a three bedroom flat leased on a monthly tenancy...It is a ground floor flat, S has her own room at the flat and there is a garden area at the rear for her to play in. S stays with me at least one and regularly two nights each week by agreement with my parents.
At the commencement of the trial it became apparent that neither the mother nor the child representative was aware that S was spending overnight periods with the father. During the course of his oral evidence, the father said that the arrangement had commenced approximately two months before the trial. He said it was for the purpose of “attempting to make the transition from his parents to himself”. He also said that he leaves S at “Kids on Collins” (a day care centre in the Melbourne CBD) whilst he is working, and that he would like S to — ultimately — be “boss of the company”.
The father told Ms Meyer (and the Court) that he is self employed in a cleaning business. It became clear during the course of his oral evidence that the enterprise in which the father is involved is a very modest one. It is unclear whether it involves anyone other than the father.
The father then said that S had been staying with him on average three or four nights per week.
In paragraph 5(b) of his affidavit sworn 24 April 2001, the father said:
…at Mr F’s residence reside two other male adults. I have no information about those adults but on 4 April 2001 I was told by (the mother) that those adults would engage in drinking binges with Mr F and when (Mr F) wanted to punish her he would make the other two male adults make fun of her, for instance “you’re fat”, “you’re stupid”, “you’re ugly”, “you have a disability”, etc. They would also engage in group sex and (the mother) admitted to me that she had been stabbed by (Mr F). The stabbing incident was to have occurred on 16 December 2000 when (the mother) rang my parents in a distressed state alleging that she had been stabbed and that she wanted to come over and stay with them for the night. My parents offered to put her up for the night and in fact offered to pay for the taxi from (Mr F’s home) to (my parents’ home). My parents waited up all night however (the mother) did not appear.
During the course of his evidence, the father made further allegations or assertions:
a)He said that the mother seeks residence of S because she and Mr F “want S’s money so that they can build their home”.
b)He said that “their approach” is “barbaric” and is like “...going back to Nazi Germany”.
c)He said that he had completed an application for legal aid shortly before the commencement of the trial, in which he had confirmed that he did not propose to seek residence orders in his favour. He then conceded that he still wished to seek an order for residence of S.
d)When pressed, the father identified his concerns regarding the treatment of S by the mother and Mr F in the following terms:
i)S told him that Mr F “cuts her singlet and wants to make a bra”;
ii)Mr F calls S “little piggy”;
iii)The mother and Mr F drink beer and smoke cigarettes in front of S;
iv)The mother and Mr F appear naked in front of S (“expose her to nudity”), and S “doesn’t like looking at (Mr F’s) ‘thing’”;
v)The mother has contact with undesirable people, including pedophiles.
e)The father conceded that the matters referred to in the preceding sub-paragraph are not matters of which he is aware of his own knowledge. In relation to some of them, he has allegedly relied upon statements made by S.
f)He confirmed that he makes tape recordings of his discussions with S (that he “puts a tape recorder in front of her and then speaks”).
g)The father said that he is going to continue taping S, even if the Court orders her to live with the mother. He asserted that her “safety is the most important thing”. He later said that he would comply with Court orders — but “it will place a great deal of stress on me”.
h)In relation to the allegation that the mother has contact with pedophiles, the father asserted that the mother had received an invitation of some sort from a “convicted pedophile”. He did not know whether the mother responded to the invitation.
i)Notwithstanding the matters deposed to in his affidavit, the father asserted that he genuinely believes that S is at risk with the mother and Mr F and that he “wouldn’t be surprised if Mr F was a pedophile”.
j)The father asserted that the Child Representative is not really concerned about S’s welfare — “other than for financial interests”.
k)At the conclusion of his cross-examination by Counsel for the Child Representative, the father became agitated and angry. He said that, in his view, the mother should have no contact, and no role in S’s life. He said that he would “...rather be safe then sorry”. He then accused Counsel for the Child Representative of being “...the one jeopardising S’s safety”.
I paid careful attention to the father as he gave his evidence, and at other times during the course of the proceedings. He was short tempered, and petulant at times. He was often reluctant to answer clear and direct questions. He clearly holds strong feelings of resentment and has little or no insight into the effect of his behaviour on others. I agree with Ms Meyer’s observation that he presents as a person with aggressive and controlling tendencies, displaying ongoing animosity and hostility toward anyone with whom he disagrees.[4] Irrespective of his mental state, I did not believe much of what he said. I do not find him to be a witness of truth. In short, I am not prepared to accept his evidence unless it is specifically admitted (where relevant) or directly corroborated by a wholly independent source.
[4] Ms Meyer’s observation regarding the father is little different from that of Dr Wood — see paragraph 43 above.

Evidence of the Mother

During the course of her evidence, the mother was open and frank about her past behaviour. For example, she admitted that she had “had drinking binges” in the past. I observed the mother carefully as she gave evidence, and at other times, and formed the view that she was an honest, and guileless, witness. I accept her to be a witness of truth and have no hesitation in preferring her version of events where it differs from that of the father (and, for that matter, where it differs from that of the grandparents).
In relation to her binge drinking, the mother said that it had occurred prior to the parties’ separation in or about May 2000. She said, and I accept, that she drank “…to escape from physical and emotional abuse”. She contrasted her relationship with the father with her present relationship with Mr F in the following way:
We have arguments, but (Mr F) doesn’t put me down or hurt me (the way the father did)
The mother appears to have some (probably minimal) contact with her mother. She has a brother and two half sisters, with whom she appears to have no contact. It follows that she does not have family support.
It was clear from the mother’s evidence that her principal sources of support are her partner, Mr F and her friend, Mrs M.
In relation to her mild intellectual disability, the mother said ¾ and I accept ¾ that it only affects her reading, and that she otherwise functions normally[5].
[5] The mother admitted that she finds reading difficult. She confirmed that her affidavits had been read to her before she affirmed them.
Exhibit C4 comprises an extract from a Court Report prepared in 1998 for the Children’s Court proceedings. The father and the mother were referred for psychological assessment. The extract relates to the mother’s assessment and is as follows:
(The mother) was very co-operative when carrying out this test, and she endeavoured to do well. At times she became frustrated, particularly when she was unable to do a task well. She obtained a Verbal I.Q, of 72, a Performance I.Q. of 67 and a Full Scale I.Q. of 69, which places her at the upper end of the mentally retarded range of mental functioning. Taking statistical error into consideration, (the mother’s) full scale I.Q. has a 95% probability of falling between 64 and 74 I.Q. points. (The mother’s) test results indicate that she is functioning in the lower two percent when compared to her age-related peers.
On the Verbal sub-tests, (the mother’s) highest score was on Digit Span, which means that she has good short-term memory or immediate auditory memory, and reasonable concentration and attention. She is also able to sequence and rote learn. (The mother) did markedly better on digits forward than digits backwards, which means that she is not very tolerant of stress and not very flexible. She finds it difficult to scan mental images formed from auditory stimulus.
(The mother’s) lowest scores on the Verbal sub-tests were obtained on Information and Similarities. This indicates that her general fund of accumulated information and alertness to the day-to-day world is impaired. She finds it very difficult to form verbal concepts and to think conceptually, and there is impaired logical abstract reasoning. An essential aspect to adjusting to one’s environment is the use of these abilities to clarify, reduce and classify the style and manner to which a response will be made. (The mother) is somewhat inflexible in her thinking; she has poor abstraction and a problem in being over literal.
On the Performance sub-tests her profile was rather flat, with the best score obtained on Picture Arrangement. Thus, she has some ability to comprehend a total situation and evaluate its implications, albeit in a limited way. She can, to some extent, anticipate consequences of initial acts, and she is able to use general intelligence in non-verbal social situations.
I was impressed by the mother. Her intellectual disability did not manifest itself in any relevant way during the course of the proceedings. She was alert, and responded appropriately to all questions and other stimuli. It was not apparent to me that she had any significant difficulty in family related concepts, thinking conceptually, or in reasoning. If she was inflexiable in her thinking, then it was not to a significant extent. I am satisfied that she fully comprehended all aspects of the proceedings and their implications for her, for S and for others.
I bear in mind, as well, that the psychological testing referred to above was performed at a time when the mother was abusing alcohol and whilst she was still involved in a destructive relationship with the father. Her present circumstances are very different from those that adhered at the time of the assessment.
I do not accept any of the father’s criticisms of the mother, unless they were specifically admitted by her. Relevantly, I do not accept the truth of the various allegations or assertions referred to in paragraph 57 of these Reasons.

Evidence of Mr F (mother’s partner)

Mr F was born in June 1956. He is in full time employment.
Mr F owns his own home in Upwey, where he and the mother have resided since October 2000. He has two children from a previous marriage, aged approximately 17 and approximately 14. He has contact with his children by agreement with his former wife (with whom he maintains an amicable relationship). According to Mr F, his children live near him and he sees them regularly.
As may be expected, Mr F speaks positively of the mother’s relationship with S. Amongst other things, he states (in paragraph 10 of his affidavit) that, from his observations of the mother, it is his view that she is very attentive to and protective of S.
In paragraph 12 of his affidavit, Mr F wrote:
I have consciously taken a secondary role in parenting S whilst she is with us, as I feel that there are already enough adults with differing parenting approaches involved. S and I have, however, established a good relationship. She feels comfortable around me, jumps on my knee while I’m watching television, gives me hugs. I feel that S and I are developing a bond.
I accept Mr F’s description of his relationship with S as quoted in the preceding paragraph.
Not surprisingly, having regard to the father’s personality, Mr F’s relationship with the father is strained.
Having seen and heard the parties give their evidence, and having seen and heard Mr F, I am satisfied that all the allegations made by the father regarding Mr F’s behaviour should be rejected. Relevantly, I reject the father’s assertions that Mr F is a “child molester”, and that he has, intimidated, humiliated and even “stabbed” the mother. I find that there is no truth whatsoever in these allegations.
Mr F gave his evidence in a calm and forthright manner. His demeanour was understated. In my view, he was clearly a credible witness. I find him to be a witness of truth.
During the course of his evidence, Mr F described his relationship with the mother as “loving and stable”. I find, on the basis of the evidence before me, that that is a fair and accurate description of their relationship.
Mr F confirmed that he has a motor vehicle and a current drivers license. He is able to assist the mother with travel associated with changeover arrangements.
Mr F is clearly supportive of the mother’s application for residence of S, and is supportive of the mother herself. I find him to be a sensitive, sensible and responsible companion and partner for the mother, and a wholly appropriate person to assist the mother with the care and supervision of S.

Evidence of Mrs M (mother’s friend)

Mrs M is a retired school Deputy Principal. She is a qualified social worker and special education teacher, who holds appropriate qualifications from the University of Melbourne.
Mrs M has known the mother since she was an 8 year old student at a school at which Mrs M was the Deputy Principal. After Mrs M retired in 1991, she kept contact with the mother. They are friends, with the mother viewing Mrs M as her “adopted grandmother”. Mrs M has also coached the mother’s basketball team.
Save for a short period after the mother and father separated, Mrs M has maintained frequent contact with the mother — either by telephone, visits or at weekly basketball games. It is clear that the mother regards Mrs M as a family member.

In her affidavit sworn 19 March 2002, Mrs M described certain contact that she had had with the father in November and December 2000. The father’s behaviour on those occasions amounts to further examples of the “aggression and hostility”, “paranoid ideations” and distorted interactions with others already commented upon by both Ms Meyer and Dr Wood.
At the commencement of her oral evidence (on 24 April 2002), Mrs M described an incident which had occurred outside the courtroom that morning. As a result of the father’s behaviour, Mrs M felt threatened, and contacted court security.
Mrs M said that she had never seen the mother or Mr F consume alcohol — let alone drink alcohol to excess. She has observed them at a social function, sporting events and in private settings. As a result of her background and training, Mrs M said — and I accept — that she would recognise relevant “signs” of the mother using drugs or drinking to excess. Mrs M said that she had recognised no such signs.
Mrs M stated that the mother provides “loving but firm care” for S. In her view, the mother interacts appropriately with S, is aware of S’s physical and emotional needs, and talks, sings and plays with S.
Mrs M clearly knows the mother well, and has had adequate opportunity to observe her with S. I accept her conclusion to the effect that the mother has the “patience and the energy to contain S”.
Because of her contact with the mother, Mrs M was able to state that she is confident that the mother would “seek out and follow advice about parenting strategies”, if necessary. Mrs M said that the mother is willing to use “the people that she should” in order to obtain advice relating to parenting matters. She said, and I accept, that the mother would seek advice if she were to find her role as a full time parent (or part time parent, for that matter) overly difficult. Just as importantly, it was Mrs M’ view that the mother would follow through on any advice that she might obtain.
Mrs M said that she is prepared to assist the mother in parenting matters.
Like Mr F, Mrs M is clearly supportive of the mother’s application for residence of S, and is supportive of the mother herself. I find her to be a sensitive, sensible and responsible friend and support person for the mother.
Mrs M is clearly intelligent and insightful, and she gave her evidence in a calm and balanced manner. In my view, she was a witness of truth. I have no hesitation in accepting her evidence. In particular, I accept her evidence regarding her interaction with the father and find that she has accurately described all aspects of that interaction.

Evidence of the Grandparents

The grandparents were present throughout the trial. An interpreter was with them at all relevant times. They participated in the proceedings to the extent that they wished to do so. I am satisfied that they fully understood all aspects of the proceedings, and that the oral evidence of all witnesses, counsels’ submissions and all exchanges between bench and bar were also understood by them. I was conscious of the fact that they were not represented by a legal practitioner and took steps to ensure that they encountered “a level playing field”[6].
[6] The Court was at all times fully conscious of the dicta/guidelines in Johnson (1997) 22 FamLR 141, Su and Chang (1999) 25 FamLR 558 and Re F: Litigants in Person Guidelines (2001) FamLR 517
I have already recorded the grandparents’ ages. They are in their 70’s. They have three sons. The father is the eldest. The other two are aged approximately 41 and approximately 33. The father’s brothers live with their parents.
The grandparents have cared for S from time to time since she was approximately 3 months old.
At times in the past, the grandparents have had a close relationship with the mother. It was clear to me during the course of the proceedings that the mother still has some fondness for them.
It is the view of the grandparents that the mother “is not responsible enough to have the sole care of (S) and to have unsupervised access”. In his affidavit sworn 5 December 2000, the grandfather said:
I am still of the view that the only reason that she wants the child is so that she can obtain the family allowance payments which would give her a greater income to satisfy her drinking habits.
This is an allegation that the grandfather repeated during his oral evidence. Further, the grandfather said that he doesn’t believe that the mother “has any love for S”.
According to the grandfather, the mother was “always drunk” when she rang his home. The last time that that had occurred was (according to the grandfather) in or about January 2002.
The grandfather also said that the mother had told him that she had been stabbed by Mr F, as a result of which she had received 10 stitches.
In relation to the “stabbing” allegation (which was denied by the mother and Mr F) the grandfather’s evidence was confused. He admitted, however, that — not withstanding the seriousness of the assault that the mother had allegedly described to him — he did not call either an ambulance or the police.
Mr F was not cross-examined regarding the alleged stabbing incident, and I find that no such incident occurred. Further, I find that the mother did not tell the grandfather (or the father, for that matter) that she had been stabbed or otherwise injured — by Mr F or by anyone else.
The grandfather said that he “knows (the father’s) character very well” and that “his bark is worse than his bite”. He asserted that he and the grandmother could “control” the father and could stop him from removing S from their care.
The grandmother also gave oral evidence. She agreed with the evidence of the grandfather.
Clearly, the grandparents are supportive of their son’s case. Ms Meyer described them as “loving grandparents, who are extremely committed to the well being of their grand-daughter”. I agree with that description.
Having seen and heard the grandparents, and the father and the other witnesses, however, I find that I am also in agreement with the following passages from Ms Meyer’s report:
It appeared that (the grandparents) were intimidated by their son’s controlling behaviour, being unable to confront him about particular issues pertaining to S or to contact with (the mother)…Despite having interim residence orders, the couple were also unable to overcome their son sabotaging contact visits.
I am satisfied that the grandparents, although well meaning, are indeed “intimidated by their son’s controlling behaviour”. More importantly, I find that the father’s negative attitude towards the mother has infected his parents’ attitude to her (and to Mr F). I find that the grandparents were prepared to distort the truth in order to increase the father’s chances of obtaining orders which might be satisfactory to him. In my view, they are in an intolerable position. I find that, although they may have had genuine concerns regarding the mother’s ability to care for S in the past (and, relevantly, prior to the separation of the mother and the father), they have had no genuine concerns for some time. They love their son and are loyal to him. They wish to support him in his endeavours to maximise his involvement in the life of his daughter. I find, however, that they are well aware of his personality problems and the way in which those problems manifest themselves from time to time. I find that each of the grandfather and the grandmother did his/her best to tread the narrow path between supporting the father in a constructive and positive manner on the one hand, and actively misleading the Court on the other. I conclude, however, that the grandparents were not witnesses of truth, and I am not prepared to accept their evidence unless it is specifically admitted (where relevant) or corroborated by a wholly independent source.

Evidence of Ms G

Ms G is the proprietor/director of Bishop Street Childcare Centre in Kingsville, a suburb of Melbourne.
The father lives “across the road” from the day care centre.
S started at the centre in May 2000. She attended for two days in the first week, and thereafter attended for four days each week for the following five weeks. The booking was discontinued without notice in June 2000. S returned to the centre in August 2000.
S attended the centre on two days per week for 21 weeks from August 2000. Thereafter (and according to Ms G):
A full time position was started Monday 15 January 2001 at the request of the father (he had sought this as soon as a vacancy became available as he said his parents were too old to look after S all day. She needed childcare, they were helping him care for S).
In or about August or September of 2001, S was removed from the centre. According to the grandfather, the decision to remove the child was his. He said that S was “coming home sick all the time”. The grandfather also said that S had “eaten green olives” at the centre — which, according to the grandfather, had made her sick.
According to the grandfather, S had recently (in or about March 2002) started at a different day care centre (Summers Parade Day Care Centre in Altona).
The father was effectively banned from the Bishop Street Childcare Centre in April 2001 (some five months before S ceased attending the centre). According to the father, he was banned from the centre because Ms G said that he was “threatening the workers”.
Exhibit “M2” is a copy of a letter dated 26 April 2001 from Ms G to the father. The relevant parts of the letter are as follows:
I have rung Human Services to discuss your unacceptable behaviour and threats against myself and staff at this centre…
They have advised me that I can ask you not to enter the property (and the police at Footscray have confirmed this) nor make harassing/threatening telephone calls…
Staff have been directed not to accept abusive calls from you (they do not have to accept such behaviour as part of their job) nor are they to allow you to enter the centre. If you do enter the centre/the grounds/harass out the front etc, the police will be called.
During the course of her oral evidence, Ms G confirmed that the father had made threats, one of which was in the following terms: “Do you think your children are safe?”
Ms G has had the opportunity to observe S with the grandparents, and with the mother. She said that she had spoken with the grandfather, who had experienced “a lot of stress and strain” in his relationship with the father. According to Ms G, the grandfather had told her that he was “ready to give up”, and “hand (S) over to foster care or the government”.
According to Ms G, the grandfather told her that he was removing S from the centre because the father wanted her removed. The grandfather also told Ms G that the father had retained certain financial benefits (relating to S), to which the grandparents were entitled. This version of events was confirmed by the grandmother, who said in evidence:
There was very little wrong with the centre. S was pulled out because (the father) fell out with the staff.
Ms G also said that she witnessed conversations and arguments between the father and the grandfather — which arguments related to the financial benefits to which the grandparents were entitled for the care of S.
According to Ms G, the father’s main purpose in coming to the centre was “to come to the office, rather than spend time with S”.
Ms G described S as an intelligent and personable child, with advanced language skills. She said that she was “a little bit rough” being “a bit more aggressive” than the other children. She described S’s health as “robust” (but confirmed that she has asthma). By and large, S presented as clean and well cared for.
Ms G confirmed that S has a good bond with the mother. She also confirmed that the mother has been actively involved with S, by participating in play sessions and assisting with room routines. It is her view that the mother has taken appropriate care of S. Ms G referred to the mother’s parenting skills as being adequate — and reflecting the mother’s (then) lack of experience and self confidence.
It is clear from the evidence of Ms G that the mother is more than willing to seek advice from those who have more experience and confidence than she does. The fact of the matter is, however, that the mother has had considerably more contact with S since the time that S was withdrawn from the Bishop Street Childcare Centre, and I am satisfied that her parenting skills and self confidence have improved since that time.
I am satisfied that Ms G was a truthful witness, and that her recollections were accurate. Her evidence was not seriously challenged by either the father or the grandparents.

Family report

I have already referred to the evidence of Ms Meyer, who was the author of the family report.
I have referred to Ms Meyer’s observations regarding the father. Insofar as his interaction with S was concerned, Ms Meyer wrote:
From observation, (the father) appeared to enjoy playing with S. However, he found it very difficult assisting her to explore her environment, and became very despondent when she did not respond to his limited interaction. (The father) also found it very difficult setting limits with S’s sometimes demanding behaviour. His only solution was to offer her bribes such as lollies, and when she did not respond to his empty promises, he had to resolve (sic.) to seeking assistance from his parents. When S began to tire of playing (the father) appeared to lack the necessary insight to comfort her, interpreting her unwillingness to play as her feeling uncomfortable with being watched by the counsellor. It was on these grounds that (the father) ceased the session, stating that the “experiment had failed”.
In relation to the grandparent’s interaction with S, the counsellor wrote:
(The grandparents) appeared to understand S’s needs as they pertained to her personality, describing her as being very intelligent and sociable, and needing on going stimulation and the company of other children. Although both describe themselves as being in good health, it appeared that due to their age, they were limited in their ability to offer S the necessary stimulation. During observation of their interaction, both they and S enjoyed their time together, but they tired quickly, leaving S to play independently. The grandparents managed to set appropriate limits with S, but they struggled maintaining consistency due to their lack of energy.
According to Ms Meyer, the mother was open about her past, and how she had overcome certain problems. In relation to the mother’s interaction with S, Ms Meyer wrote:
From observation, (the mother) enjoyed her time with S, and S was particularly excited and comforted by her mother’s presence. (The mother) was physically affectionate towards her daughter, played alongside S, and encouraged her to explore different activities during the session. (The mother) was able to set limits on S’s behaviour, and maintain a consistency in her approach.
Ms Meyer continued:
S appeared to have a fond relationship with all her family members. She responded to her grandparent’s attention, and was physically affectionate towards them. At times, she became clingy with her father but enjoyed her time with him. At times, S became fairly bored in her father’s company, rejecting his attempts to engage with her. S was particularly affectionate toward her mother, offering her lots of hugs and kisses. When S became distressed and tired, she sought out her mother for comfort. S enjoyed playing with her mother and was particularly distressed when her mother left.
There was no or no significant cross examination of Ms Meyer by any of the parties regarding the passages quoted in the preceding paragraphs. I accept that Ms Meyer’s observations are fair and accurate.
Ms Meyer wrote that the father’s personality disorder markedly impacts on his ability to offer S the stability and care she requires[7]. It was her view that it is very important for the grandparents to continue to maintain a high level of contact with S in the future. In Ms Meyer’s opinion, however, their ability to maintain the full time residency of S in the future appears uncertain — given the level of energy required in caring for her. Ms Meyer also wrote:
Another issue of concern is (the grandparent’s) inability to confront their son regarding the daily management issues of S and the contact with her mother.
[7] See paragraph 51 above.
Ms Meyer wrote that the mother “…presents as a person who has appeared to have confronted and overcome considerable adversity in her life”. Ms Meyer did not regard the “alleged concerns” expressed by the father and his parents (regarding the mothers ability to care for S) as matters of significance.
Ms Meyer concluded her report as follows:
S is an active and bright child, who needs consistency and stability, and an environment that is able to meet her needs for stimulation and socialisation. It appears that the current residency arrangements with the paternal grandparents are in need of review, given the concerns regarding their ability to meet S’s ongoing needs. It also appears that S’s bond with her mother has been impaired by her lack of contact over the last 18 months. Although S’s immaturity must be considered, her notion of family did not appear to include her current family. In addition, her indiscriminate choice of wanting to live with the counsellor may indicate that her current attachments are fragile. S was also particularly clingy to her mother, seeking her for comfort during moments of distress.
Ms Meyer’s reference to S’s “notion of family” and “indiscriminate choice of wanting to live with the counsellor” is clearly drawn from the following passages in the report:
S described the only person in her family as being Maree. It is difficult to know to whom she was referring, as her mother is sometimes referred to as “Maree”. However, her mother felt that she might have been referring to a child at her day care centre. When S was asked where she wanted to live, she replied that she wanted to live with the counsellor.
Ms Meyer recommended that S reside with the mother on a full time basis. She also “strongly suggested” that the mother seek support from local community child care, from Mrs M (in the role of mentor) and services such as Parent Zone. Ms Meyer also recommended that the grandparents have either weekly or fortnightly contact with S (preferably at their home). In so far as the father is concerned, Ms Meyer recommended that he have contact with S on a fortnightly basis — preferably being supervised by an independent person in a neutral setting. Telephone contact should be maintained between S and the father, such contact to be initiated by the mother.

The Law

Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. They are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration. That is the overriding principle.
The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[8].
[8] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).
Section 60B is in the following terms:
60B Object of Part and principles underlying it
(1)     The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)     parents 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.

The Full Court discussed the effect of section 60B in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:
9.6Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive "adequate and proper parenting to help them achieve their full potential" and that parents "fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children".
9.8     In relation to sub-s.(2), the following matters may be noted:-
-    It sets out the principles "underlying" the object contained in sub-s.(1) and consequently is to be read as directed to effectuating that object.
-    It is expressly made subject to the child's best interests.
-    It cannot be regarded as an exhaustive list of principles which underlie the object in s.60B(1) or the child's best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s.(2), such as the wishes of children and their right to be protected from abuse. Those two matters, together with a number of other important considerations are set out in s.68F(2) as matters which the Court must consider in determining the best interests of the child. It is this circumstance which makes the inter-relationship between s.68F(2) and s.60B difficult to precisely define. The matters in the two sections vary but overlap. Neither purports to be exclusive or exhaustive. We will return to those aspects later.
9.9Dealing more specifically with the principles listed in s.60B(2), we would make the following comments.
9.10Paragraph (a) emphasises two matters, namely, the rights of a child to "know" both parents and to be "cared for" by both parents. These rights apply "regardless" of whether the parents are married, separated, have never been married or have never lived together.
9.11The first of those matters, including the broad issue of a child's psychological identity, has always been recognised as a fundamental consideration and it is unlikely that orders made under Part VII would interfere with that other than in the most exceptional of circumstances. The right to be "cared for" by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders which the Court may make or the parties may agree upon.
9.12Paragraph (b) is the critical one in this appeal and that is likely to be so in most proceedings under Part VII. It provides, in effect, that children have a "right of contact, on a regular basis, with both their parents" and other people significant to their care, welfare and development. In that latter respect, the right of a child to have contact with, for example, a grandparent or other siblings, is provided for by s.65C which enables "any other person concerned with the care, welfare or development of the child" to apply for a parenting order…
9.14It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years…
9.15But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children's best interests there is nothing in s.60B which suggests or requires any different outcome…
9.16Paragraph (b) refers to the right of contact "on a regular basis"…
9.18In considering this aspect the Court must make the order which it considers to be in the best interests of the child. The nature and degree of contact is ultimately influenced by that, par.(b) providing guidance in that respect. This Court has in the past consistently attempted to make orders for contact which are practical and maintain as much direct and indirect contact between the children and the contact parent as is appropriate in the circumstances of that case. That remains the approach…The object in s.60B(1) would not be likely to be achieved in most cases by providing only for contact which was regular but infrequent. Consequently, having regard to the previous approach of this Court and the requirements of the best interests of the children, par. (b) should not be narrowly interpreted. Fundamentally it emphasises the desirability of contact, and "regular" carries with it a clear understanding that it should also be as frequent as is appropriate and by the various means which are considered to be in the children's best interests.
The Full Court in B & B continued:
9.53 … the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.
9.55 Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case…
In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:
…the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them, In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):
The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.
in Burton (1978) 4 FamLR 783, the Full Court said (at page 786):
…we are of the view that no legal onus rests upon a party to whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination — and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.
The Full Court’s remarks in Burton (above) were recently re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[9].
[9] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6
In Re:David (1997) 22 FamLR 489, the Full Court said (at page 505):
While it is obviously a very serious step to alter a residence order in respect of a young child which has the effect of removing him from his principal care giver, there are some situations…where the Court has no option but to do so.
The current proceedings involve a “contest” (as it were) between S’s mother on the one hand and her grandparents on the other. Although the father does not seek residence of S, he clearly supports his parents’ case.
There is no presumption (in relation to residence issues) in favour of a natural parent. Each case must be decided upon its facts, according the child’s best interests. While the fact of parenthood is an important and significant factor in considering which proposal best advances a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent “…nor generate a preferential position in favour of that parent from which the Court commences the decision making process.” (per the Full Court in Re: Evelyn (1998) 23 FamLR 53 at 69; see also Rice v Millar (1993) 16 FamLR 970 and Hodak v Newman (1993) 17 FamLR 1; see also Re: Lynette (1999) 25 FamLR 352 at 363).

Discussion - Preamble

I have re-read and now remind myself of the object of Part VII of the Family Law Act, and the principles underlying that object — as set out in section 60B. I keep that object, and those principles, firmly in mind as I consider the matters set out in section 68F(2). Indeed, I have borne that object and those principles in mind at all times during the preparation of this Judgment.
I am conscious of all of the following matters:
a)The welfare or best interests of S comprise the paramount consideration in this case.
b)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and will do so (or will have done so) — directly or indirectly — in these Reasons.
c)I understand that the evaluation of the parties’ competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for S (and for her best interests). I have performed that evaluation (or will perform it) — directly or indirectly — in these Reasons.
d)I understand that it is necessary to follow the legislative directions set out in sections 60B and 68F of the Family Law Act, and that I must consider the various matters set out in section 68F(2).
e)I understand that neither of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote S’s interests. I have taken into account the whole of the evidence which I consider to be relevant to S’s best interests.
f)I understand that, while the fact of parenthood is an important and significant factor in considering S’s best interests, that fact (of itself) neither establishes a presumption in favour of a natural parent nor generates a preferential position in favour of that parent from which the decision making process commences.
Before proceeding further with these Reasons, I refer to paragraph 74 of the Full Court’s decision in A v A: Relocation Approach (2000) 26 FamLR 382:
In our view, the use of a structured series of analytical steps is an aid to the decision—making transparency and minimises the risks of a court falling into appealable error…In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).
I bear in mind all the principles and dicta to which I have referred and remind myself that the Full Court’s frequently stated direction to itself to avoid “an overly critical, or pernickety, analysis” of Reasons such as these necessarily recognises the “large element of judgment, discretion and intuition” involved in the decision making process[10]. I interpret these comments as inferring that a Judicial Officer should not “lose sight of the wood for the trees” (as it were). The principles and dicta to which I have referred form the foundation upon which these Reasons are constructed (and have structured the thought process that I have employed). I understand them and the need to apply them.
[10] See U v U (2002) 29 FamLR 74 at 101, A v A: Relocation Approach (2000) 26 FamLR 382 at 410 and Re G: Children’s Schooling (2000) 26 FamLR 143 at 150

Discussion — Relevant Competing Proposals

I have already recorded the parties’ proposals in broad outline[11]. The mother proposes that S reside with her and that she have sole responsibility for her long term and day to day care, welfare and development. Her case is that she will live with and be assisted by Mr F, and be advised by and emotionally supported by Mrs M (who she referred to as her “adopted grandmother”).
[11] See paragraphs 3, 4 and 5 above
The mother asserts that she has undertaken a parenting course, that she no longer abuses alcohol and that she is in a happy and supportive relationship with Mr F. She asserts that, whatever may have occurred in the past (and, particularly, whatever may have occurred prior to the date of separation), she now has the capacity to recognise and promote the welfare and best interests of S.
In practical terms, the grandparents’ proposal amounts to a continuation of the same standard of care and love that the child has enjoyed since she started living with them.
Neither the mother nor the Child Representative was critical of the past care provided by the grandparents for S — save in relation to the involvement of the father in those arrangements. According to the Child Representative, one area of concern is the grandparents’ “inability to effectively police and control their son’s role in S’s care.” The Child Representative submitted that the grandparents “…have not prevented their son from frustrating the mother’s contact, nor have they properly overseen or supervised their son’s contact.”
Both the mother and the Child Representative submit that the situation described in the previous paragraph is likely to continue if the grandparents retain residence “…unless orders can be made to control the father’s behaviour”. Having regard to the father’s personality disorder, it is apparent that no such orders can be made.
Notwithstanding the father’s formal proposal (to the effect that S should continue to reside with his parents), he (to use the words of his own Counsel in the outline of argument filed on his behalf) “…has advised the Court of his own agenda, and unfortunately his psychiatrist has not supported him in his ultimate aim.” His “agenda” or “aim” is to care for S on a full time basis. During the course of his oral evidence, the father said that he had made arrangements for S to spend extended periods of time with him (including overnight periods) because he was “attempting to make the transition” from his parents’ sole care of S to his care of her. The father said that S had been staying with him approximately three or four nights a week (on average) for approximately two months.
None of the parties raised any significant concerns regarding the physical arrangements for S’s care, such as the accommodation that each could provide for her. I find that the mother and the grandparents can provide proper accommodation arrangements for S.
During the course of his oral evidence, the father frequently displayed anger and impatience. He said that he would comply with Court orders (even if they were not in accordance with his wishes) and not breach them — but that “it would place a great deal of stress” on him. Having seen and heard the father during the course of the proceedings, and taking into account all the evidence before me, I regret that I have no confidence that the father has sufficient insight, patience, restraint or empathy to enable him to overcome that “stress”. During the course of cross examination by Counsel for the Child Representative, the father said (after demonstrably, and inappropriately, losing his temper): “I have outbursts of anger — otherwise I’m a normal person”. Tragically, that comment exemplifies the father’s lack of insight into the psychiatric/psychological/emotional problems that so obviously beset him.
Towards the end of his evidence, the father said that, in his opinion, the mother should have no contact with S, and no role in her life. His explanation for this approach was that he “would rather be safe than sorry”.
Such is the nature and strength of the father’s personality, and such is his relationship with his parents, that the only finding reasonably open to me is that the father will inevitably prevail upon his parents to allow him to care for S on a full time basis — irrespective of the formal proposals that have been placed before this Court. Although the grandparents did their best to impress upon the Court that they have the capacity to withstand the pressure that will be placed upon them by their son, the totality of the evidence compels me to conclude that they cannot and will not prevent his “agenda” being progressed. In other words, I find that to place S with the grandparents is, in effect, to place her with the father (and my use of the word “place” is not intended to infer anything beyond the broadest encapsulation or summary of the Court’s role in these proceedings).
During the course of his closing address, Counsel for the Child Representative observed (correctly) that the parties had agreed that the time had arrived for one of S’s parents to look after her. The Child Representative was of the view that the grandparents could not ensure that S would continue to have contact with the mother. He submitted that they had minimised certain aspects of the father’s behaviour and “displayed poor insight”. He submitted that where their evidence conflicts with that of the mother, the evidence of the mother should be preferred. Those are submissions with which I concur.

Discussion — Section 68F(2) Factors

S is a very young child. Her wishes are not a relevant consideration in this case, and none of the parties suggested that they are. I note, however, that Ms Meyer wrote that, when S was asked where she wanted to live, she replied that she wanted to live “...with the counsellor”. In relation to this comment, Ms Meyer opined:
Although S’s immaturity must be considered, her notion of family did not appear to include her current family. In addition, her indiscriminate choice of wanting to live with the counsellor, may indicated that her current attachments are fragile.
S has a close and loving relationship with the mother, the father and the grandparents. Although Ms Meyer suggested that S’s bond with the mother “...has been impaired by her lack of contact over the last 18 months” (i.e. until February 2002), I am mindful that Ms Meyer had only limited opportunity to observe the mother with S. I give greater weight to the evidence of the mother herself, and to the evidence of Mr F, Mrs M and (to a lesser extent) Ms G, in forming the conclusion that S is indeed bonded to the mother and that their relationship is as I have described it in the first sentence of this paragraph.
I am also satisfied that S has a good relationship with Mr F and Mrs M. Both Mr F and Mrs M impressed me as sensible, caring and compassionate people — who can be relied upon to continue to support the mother in a positive, constructive and patient manner. I have no doubt that they will display the same personal qualities in their ongoing contact with S, and that the connection that she now has with them will continue to strengthen.
Unfortunately, the opposite may be the case where S’s bond with the father is concerned. In that regard, I give considerable weight to the evidence of the father’s own psychiatrist, Dr Wood, who said that the father is “so opinionated and rigid” that Dr Wood “can’t see him handling problems in a reasonable way”. Dr Wood said that if S were to be placed in the father’s “sole custody”, then “eventually she’d have to run away — when she is 10 or 11”.
I am satisfied that the mother can be relied upon to promote contact between S and the grandparents, and between S and the father (subject to the mother’s understandable concerns regarding the father’s psychiatric/psychological or emotional state).
The grandparents and the father have not promoted a close relationship between S and the mother. I have no doubt that the relationship between S and her mother will be severely strained, if not severed or destroyed, if S were to reside with the father or his parents, given:
a)the grandfather’s expressed view to the effect that the “only interest” of the mother and Mr F in S is “to get money from the government to drink beer” and that he does not believe that the mother has any love for S;
b)the approach that the grandfather adopted on the final day of the trial (when he said: “I can hardly believe that the mother can become a good mother — because if you have a drinking habit, you don’t loose it”);
c)the grandmother’s comments made at the same time, to the effect that she is sure that S will fall sick whilst in the care of the mother;
d)the father’s influence over his parents;
e)the father’s lack of respect for the mother and his view that the mother should have no contact and no role in her life; and
f)the various problems associated with the mother’s attempts to exercise contact with S[12].
[12] See paragraphs 40 to 43 of the mother’s affidavit affirmed 25 March 2002 — the evidence contained in which I accept as being accurate.
It is difficult to assess the likely effect of changes in S’s circumstances if she were to be separated from the grandparents on a permanent basis. I am aware that S has resided in the grandparents’ home — with them and with her two uncles. She has also had significant contact with the father.
Until the commencement of the trial, the mother had had fairly limited contact with S. On 24 April 2002, however, I ordered that the mother have contact with S from the adjournment of court on that day to 9.45 a.m. on 16 April 2002.
On 26 April 2002, I made the following orders:
1.Until further order, and notwithstanding any previous order of the Court:
a.The mother have interim residence of S from 4.30 p.m. on Friday 26 April 2002 until 10.00 a.m. on Sunday 28 April 2002, and thereafter from 2.00 p.m. on Sunday 28 April 2002 until 5.30 p.m. on Monday 29 April 2002.
b.The grandparents have residence of S between 10.00 a.m. and 2.00 p.m. on Sunday 28 April 2002, and from 5.30 p.m. on Monday 29 April 2002 until 10.00 a.m. on Wednesday 1 May 2002.
c.The grandparents or either of them be restrained by injunction from allowing the father to remove S from their care and supervision at any time, and, in particular, from causing, permitting or facilitating the father having overnight contact with S at any time.
d.The father otherwise have contact with S whilst the said child resides with the grandparents.
e.The contact changeovers occurring at 10.00 a.m. and 2.00 p.m. on 28 April 2002 and 5.30 p.m. on 29 April 2002 do occur at the North Altona Police Station, in the absence of the father.
f.The father be restrained by injunction from:
i.       removing S from the care and supervision of his parents or either of them at any time;
ii.      having overnight contact with S at any time;
iii.     discussing these proceedings or any of the matters raised in them with S; and
iv.     taping any conversations that he may have with S, the mother, MR F or MRS M.
g.The father and the mother be restrained by injunction from telephoning each other for any purpose whatsoever.
On 1 May 2002, I made the following orders:
1.The orders made on 26 April 2002 be discharged.
2.The grandparents have residence of S between 4.30 p.m. today and 9.00 a.m. on 2 May 2002.
3.Until further order:
a.The grandparents or either of them be restrained by injunction from allowing the father to remove S from their care and supervision at any time, and, in particular, from causing, permitting or facilitating the father having overnight contact with S at any time;
b.the father otherwise have contact with S whilst the said child resides with the grandparents;
c.the father be restrained by injunction from:
i.       removing S from the care and supervision of his parents or either of them at any time;
ii.      having overnight contact with S at any time;
iii.     discussing these proceedings or any of the matters raised in them with S; and
iv.     taping any conversations that he may have with S, the mother, MR F or MRS M;
v.      the father and the mother be restrained by injunction from telephoning each other for any purpose whatsoever; and
vi.     the grandparents, mother and father all be restrained by injunction from smoking in the presence of the said child and from permitting any other person to smoke in the presence of S.
4.The grandparents do deliver S to the Child Minding Centre of the Family Court of Australia at Melbourne by 9.00 a.m. on 2 May 2002 to await further order of the Court.
On 2 May 2002, I made the following orders:
1.Notwithstanding any previous orders of the Court, the mother have interim residence of the child S from 1.00 p.m. on 2 May 2002 to 5.00 p.m. on 4 May 2002.
2.Notwithstanding any previous orders of the Court, the grandparents have interim residence of S between 5.00 p.m. on 4 May 2002 and 9.00 a.m. on 7 May 2002.
3.All injunctions set out in paragraph 3 of the Orders made on 1 May 2002 do continue in full force.
4.The grandparents do deliver S to the Child Minding Centre of the Family Court of Australia at Melbourne by 9.00 a.m. on 7 May 2002 to await further order of the Court.
5.Changeover occurring at 5.00 p.m. on 4 May 2002 do occur at the North Altona Police Station in the absence of the father.
On 7 May 2002 (being the final day of the trial) I made the following orders:
1.Notwithstanding any previous orders of the Court, the mother have interim residence of S each week from 3.00 p.m. on Wednesday to 3.00 p.m. on the following Sunday, commencing Wednesday 8 May 2002.
2.Notwithstanding any previous orders of the Court, the grandparents have interim residence of S each week from 3.00 p.m. on Sunday to 3.00 p.m. on Wednesday, commencing Sunday 12 May 2002.
3.Changeover on Sundays do occur at the police booth at Flinders Street Railway Station, in the absence of the father.
4.Changeover on Wednesdays do occur at the North Altona Police Station, in the absence of the father.
5.The grandparents have interim residence of the S between 12.30 p.m. on 7 May 2002 and 3.00 p.m. on 8 May 2002.
6.All injunctions set out in paragraph 3 of the orders made in this Court on 1 May 2002 do remain in full force and effect.
On 18 November 2002, the mother filed an application for a recovery order. She asserted, amongst other things, that the grandfather had refused to deliver S to the mother on 30 October 2002 in accordance with the orders that I had made on 7 May 2002. The application was supported by an affidavit of the mother sworn 13 November 2002. I do not propose to review the contents of that affidavit. Suffice it to say that, on 19 November 2002, I ordered that a recovery order be issued and that, until further order, all orders providing for contact between S and the grandparents and/or the father be suspended. The evidence relied upon by the mother in support of that application has had no effect upon the conclusions that I have reached in these Reasons. The application for and granting of the recovery order are referred to for chronological accuracy only. It is the case, however, that S has been in the mother’s sole care since the Recovery Order was executed.
The reality is that the mother has had very substantial contact with S since April 2002. S has also had substantial contact with the grandparents and with her father. She has also attended day care.
I am not aware of any evidence (being evidence other than the evidence of the father or the grandparents — the weight to be attributed to which has already formed the subject of comment in these Reasons) that would suggest that S would be adversely affected — or unduly adversely affected — by ceasing to reside with the grandparents and commencing to reside with the mother on a full time basis. Ms Meyer commented that S is an active and bright child, who needs consistency and stability, and an environment that meets her needs for stimulation and socialisation. I am firmly of the view that the environment described by Ms Meyer, and the necessary consistency and stability, are far likely to be found if S were to live with the mother, than if she were to continue to live with the grandparents.
There is no doubt that practical difficulties exist in relation to the facilitation of contact between S, the mother, the father and the grandparents. They live some considerable distance apart. Neither the father nor the mother drive. It follows that the mother must rely on public transport, or on Mr F. Similarly, the father must rely on public transport, or on his father or one of his brothers. The mother’s evidence (which I accept) is that it takes her nearly 2 hours to travel by public transport from her home (with Mr F) in Upwey to the grandparents’ home in Altona. The journey involves one and a half hours on the train, and 20 minutes on foot.
Suffice it to say that the practical difficulty and expense of S having contact with her parents and grandparents will not substantially affect her right to maintain personal relations and direct contact with her parents (and grandparents) on a regular basis. Clearly, S must undertake some travel whether she resides with the grandparents or with the mother. The practical difficulty of and expense associated with that travel is likely to be significantly affected by the contact orders that I make.
In the circumstances of the present case, I am of the view that this factor is not one of great significance. I propose to hear further submissions from Counsel regarding appropriate arrangements for the facilitation of contact after the handing down of these Reasons.
I am satisfied that the mother has the capacity to provide for S’s needs, including her emotional and intellectual needs. I am well aware of the mother’s intellectual difficulties, but the fact of the matter is that she has demonstrated that she is more than willing to seek assistance from Mr F, Mrs M, day care staff and parenting courses, and I have no doubt that she will continue to avail herself of all forms of resources that may be available to her. The core of my finding in this regard is my view that the mother has insight into the difficulties that she faces, and the patience and determination to deal with them. If the mother has difficulty providing for S’s intellectual needs herself, then I am satisfied that she will find a way to ensure that those needs are properly and effectively met by others.
I have already dealt with the father’s psychiatric/psychological/ emotional problems. Having regard to the matters already discussed in these Reasons, I find that the father lacks the capacity to provide for S’s needs (apart, perhaps, from her basic needs such as food and shelter). I find that, unfortunately, he does not have the capacity to provide for her emotional needs. I concur with the conclusions of Dr Wood and Ms Meyer in that regard.
I find that the grandparents have the theoretical capacity to provide for S’s needs (including her emotional and intellectual needs), but that their position in that regard is compromised by their relationship with the father and his intimidation of them.[13]
[13] See, for example, paragraphs 110 and 111 above.
In my view, there is a need to protect S from psychological harm that may be caused to her by being subjected or exposed to the father’s behaviour. I have already discussed certain aspects of the father’s behaviour but, again, it seems to me that the Court’s concerns are adequately encapsulated in Dr Wood’s conclusion that, if S were to be placed in the father’s care, then she would eventually have to run away — and that that would occur at age 10 or 11. I have also discussed the grandparents’ inability or unwillingness to protect S from the more damaging aspects of the father’s behaviour and outlook. In my view, the most effective way of protecting S from this type of harm is to order that she reside with the mother on a full time basis.
The only other factor under s. 68F(2) that I consider to be of significance in these proceedings is the requirement that the court consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of S’s parents. I am satisfied that the mother has demonstrated a responsible and proper attitude to S and to the responsibilities of parenthood, since (at least) the time that she commenced to reside with Mr F. Even to pursue the current proceedings — opposed, as they are, by the father and his parents — demonstrates to me that the mother has considerable strength of character and that she is prepared to subject herself to considerable criticism, strain and anxiety in order to promote what she believes to be S’s best interests. I am not unaware that there have been significant periods in the past when the mother has not demonstrated an appropriate attitude to S, and to the responsibilities of parenthood. I accept, however, that the attitude that she then displayed was a consequence of the unhappy and destructive relationship that she then had with the father. I find that the mother no longer drinks to excess, and I do not believe that she involves herself in any activity that could effectively compromise her care of or relationship with S.
The grandparents’ attitude to S, and to the responsibilities of surrogate parenthood (as it were), is reasonable and appropriate. They have done their best to care for S in difficult circumstances. They have adult children living with them (one of whom suffers from schizophrenia and would therefore require some degree of support in his own right), and have had to experience the type of behaviour from the father to which reference has already been made in these Reasons.
I have already recorded Ms Meyer’s observations regarding the grandparents’ limitation in their ability to offer S appropriate stimulation, and the fact that they “tired quickly” whilst with S.
My impression of the grandparents is that they are kind, patient and loving grandparents. They give S as much attention as they can, and the grandmother said that S always sleeps with her – whether S is sick or well. I gained the clear impression, however, that the grandparents have grown weary of having to discharge the responsibilities associated with their role as care givers for S. The weariness to which I have referred is not simply due to their advancing years[14]. I have little doubt that the grandparents recognise and understand the manifestation of the father’s psychiatric/psychological/emotional problems. Their desire to support him in his quest to become the sole care giver for S, coupled with their inability to withstand his intimidatory behaviour (or, simply, the strength of his personality), has led them to take what may be described as the path of least resistance. The grandmother said that if the father wants overnight contact with S, then she would agree to such contact occurring. The grandfather has also permitted the father to spend overnight periods with S. The grandfather said that the father has had S “a couple of nights per week”, and that this has “always” been the case. The grandfather also said that in his house, he decides what happens (implying, of course, that the father does not intimidate or control him). Having seen and heard the father and the grandparents during the course of the proceedings, and taking into account all other relevant evidence in the proceedings, I conclude that the grandparents’ autonomy does not extend to matters associated with the care of S. In the broadest terms, I find that S will only remain in the care of the grandparents for so long as the father is content to allow that to occur.
[14] Although I bear in mind the evidence of Ms G set out earlier in these Reasons — and in particular the evidence in paragraphs 116 and 122 above.
I do not propose to repeat the matters to which I have already made reference in these Reasons regarding the father. The evidence of Ms G was that there was a dispute between the father and the grandfather regarding financial benefits to which S’s carer is entitled. Prima facie, it would appear that the father retained benefits to which he may not have been entitled. During the course of his evidence, the grandfather said that the father does not provide his parents with money for the care of S — but that he buys her things (such as clothing and shoes).
During the course of his cross examination by the Child Representative, the grandfather said that he would respect the orders of the Court, that he could stop the father removing the child from the grandparents and that he can “control” the father. He said that he knows the father’s character very well, and that “his bark is worse than his bite”. He continued that he would let the father look after S if he considered that he could. Insofar as the mother caring for S is concerned, the grandfather said that he does not believe that she is capable of change and that he “sees dark clouds in the future”. He also said that he does not think that the mother loves S.
It is apparent from the findings that I have already made in these Reasons that I do not accept the assertions by the grandfather in the preceding paragraph. I find that neither of the grandparents can control the father (where S is concerned) and, indeed, that neither of them genuinely believes that the mother is incapable of change. Further, I find that neither genuinely believes that S would be at risk in the care of the mother.

When the grandfather was asked what sort of contact with S he would seek if the mother were to be successful in her claim for residence, the grandfather said that he would like to see S once per week — but not have responsibility for her care. He said that “…if S is given to the mother, then she must take full responsibility — and not expect (the grandparents) to look after S”. Further, the grandfather said that if S were to reside with the mother, then he did not want extended periods of contact over the school holidays. He only wants “some days”. The grandmother’s approach was little different to that of the grandfather.
I do not doubt that all the parties in these proceedings love S. The sad reality is, however, that such a sentiment is often a “given” in residence cases. The mother has done a great deal to improve her parenting skills and to confront and overcome the problems that she has experienced in her life. Whilst the father wishes to have S reside with him on a full time basis, he has done little to demonstrate that such a result could ever be in S’s best interests. It seems to me that, given the father’s age, the involvement of DHS in his and S’s lives and his ongoing association with Dr Wood, the father should understand by now that he is unlikely to be able to achieve his aims until such time as he recognises, confronts and deals with his own problems. Good parenting must always involve more than just love and good intentions.

Conclusion

It was the submission of the Child Representative that the mother’s proposals should be preferred to those of the grandparents (and those of the father). He urged the Court to conclude that “…on the balance of probabilities, the mother has changed and can positively promote S’s welfare and her best interests”. Counsel for the Child Representative made reference to Ms Meyer’s report and to the fact that her recommendation was “not successfully challenged by the father or the grandparents”.
Counsel for the Child Representative submitted that there were various “difficulties” associated with the grandparents’ proposals. Relevantly, Counsel for the Child Representative referred to the grandparents’ age, health, attitude to the mother, inability to promote the mother’s contact (and ensure that it occurs), and inability to “police, control and supervise” the father.
During the course of the proceedings, little emphasis was placed upon the grandparents’ age and state of health. I do not regard these matters as disqualifying factors, or even as highly significant factors, in these proceedings — but they are matters that I have taken into account and weighed in the balance, together with all other relevant evidence placed before the Court. I have already recorded Ms Meyer’s observations of their “lack of energy”. Having seen and observed them during the course of the proceedings, I have no doubt that they are weary of their role as S’s principal care givers. This weariness does not have its genesis solely in the day to day tasks associated with S’s care and supervision. In large part, I find that it is due to the father’s behaviour. It would be an extremely difficult task for them to endeavour to “police, control and supervise” the father (to use the Child Representative’s words).
Of more significance is that, in my opinion, S’s right to know and be cared for by both her parents would be seriously and adversely affected if S were to remain living with the grandparents. Similarly, S’s right of contact with her mother would also be seriously and adversely affected if S were to continue to reside with the grandparents.
I am confident that, if S is to reside with the mother, then she will have a reasonable opportunity to know and be cared for by the father and by the grandfather. Her right of contact with the father and with the grandparents will also be recognised and respected.
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in B & B: Family Law Reform Act 1975[15], and in the other legislation provisions or authorities referred to in paragraphs 141 to 153 above. I have imposed no legal or other onus upon any party, and have applied no presumptions of any sort. I have deduced from the evidence, and my assessment of the parties and their witnesses, the essence of their competing proposals — and I decide, having considered all relevant factors, that the mother’s proposals would be more likely to advance S’s best interests (which are the paramount consideration in these proceedings).
[15] (1997) 21 FamLR 676.
I am concerned that, should S continue to live with the grandparents (or with the father), there is a much greater prospect of future court proceedings than if she lives with the mother. This is because of the father’s attitude to S’s contact with the mother and those associated with her, coupled with the father’s influence on the grandparents. It is likely that proceedings concerning contravention of orders for contact made in the mother’s favour would arise in circumstances where that may become the only way that the mother can maintain her relationship with S to any meaningful extent. In my view, the same prospects do not arise if S lives with the mother. She can be relied upon to provide appropriate contact to the grandparents (and, indirectly, to the father).
I am satisfied that the orders that I propose to make will promote S’s best interests. I am well aware that the orders will change a pre-existing status quo. In the circumstances of the present case, however, and for the reasons that I have given throughout this Judgment, the change that the orders require is necessary in S’s best interests. From a purely physical point of view, the pre-existing status quo has been beneficial to S. Regrettably, it has clearly been emotionally damaging for her and I have no doubt that the situation will further deteriorate (from S’s point of view) if the current arrangements continue to adhere.

Orders

I am satisfied that orders to the following effect are in S’s best interests:
(1)S is to reside with the mother.
(2)The mother is to have sole responsibility for S’s long term and day to day care, welfare and development.
(3)The grandparents are to have contact with S in accordance with the contact arrangements described in paragraph 3 of the mother’s final “proposal”.
(4)In the event of the grandparents not wishing to exercise all the contact referred to in the preceding paragraph, then I shall hear the grandparents as to the contact that they consider appropriate.
(5)All contact changeovers are to occur at the police booth at the Flinders Street railway station, in the absence of the father.
(6)The grandparents (jointly and separately) are to be restrained by injunction from allowing the father to remove S from their care and supervision at any time, and, in particular, from causing, permitting or facilitating the father having overnight contact with S.
(7)The father is to have contact with S at any time whilst S is with the grandparents pursuant to the provisions of these orders.
(8)The father is to be restrained by injunction from:
(a)removing S from the care and supervision of the grandparents or either of them at any time;
(b) having overnight contact with S at any time;
(c)abusing, criticising or belittling the mother or Mr F to or in the presence or hearing of S.
(9)All extant orders will otherwise be discharged.
I shall now hear Counsel (or, where appropriate, the parties) regarding the precise terms of orders necessary to give effect to this Judgment.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the Reasons for Judgment of Walters FM

Associate: Paul O’Halloran

Date: 4 December 2002