FAMILY COURT OF AUSTRALIA

WILLIAMS AND ANOR & ROGERS & ANOR	[2015] FamCA 1069	

FAMILY LAW – PRACTICE & PROCEDURE – Where the applicant paternal grandparents sought parenting orders as between themselves and the first respondent mother and second respondent father – Where the second respondent father did not participate in the proceedings and was not present at Court for the final hearing – Where the children are currently living with the paternal grandparents

FAMILY LAW – CHILDREN – Best Interests – Where the children have a relationship with the father but it is acknowledged by all parties, other than the father himself, that there is an unacceptable risk to the children associated with him having unsupervised time with them – Where the father currently spends time with the children, supervised by the paternal grandparents – Where no formal orders are made providing for time and communication between the children and the father – Where the children have a meaningful relationship with the mother – Where the children were exposed to family violence in the context of their parents’ relationship and have been protected by the care provided by the paternal grandparents – Where there is some risk associated with changing the residence of the children so that they live with the mother – Where there is also some risk leaving the children in the home of the paternal grandparents – Where the paternal grandmother will not promote and support a meaningful relationship between the children and the mother – Where the paternal grandmother has a negative focus on the children’s health and may be putting her own interests ahead of the needs of the children – Where the mother is committed to spending time with the children – Where the mother has actively engaged with the recommendations of the Family Consultant – Where the mother is insightful and sensitive to the children’s needs – Where the children, given their ages, can make the transition into the mother’s care whilst strongly maintaining their relationships with the paternal grandparents – Where in a finely balanced case, the benefit to the children of living with the mother and other family members in her household should prevail – Where after a period of two months, in which the children will continue to live with paternal grandparents and spend substantial and significant time with the mother, the children are to live with the mother and spend substantial and significant time with the paternal grandparents 

FAMILY LAW – CHILDREN – Parental Responsibility – Mother to have sole parental responsibility, with provision for exchange of ideas with the paternal grandparents regarding long term issues for a period of two years	

Family Law Act 1975 (Cth), ss 60CC, 64B	

APPLICANTS:	

Ms Williams & 
Mr Williams	

FIRST RESPONDENT:	Ms Rogers	

SECOND RESPONDENT:	Mr Nixon	

INDEPENDENT CHILDREN’S LAWYER:	Adams & Partners	

FILE NUMBER:	PAC	2604		of	2013	

DATE DELIVERED:	1 December 2015	

PLACE DELIVERED:	Newcastle 	

PLACE HEARD:	Parramatta 	

JUDGMENT OF:	Cleary J	

HEARING DATE:	9-12 November 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANTs:	Mr Siggins	

SOLICITOR FOR THE APPLICANTs:	CA Williams Legal	

first RESPONDENT:	In Person	

SECOND RESPONDENT:	Not Applicable 	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Cook	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adams & Partners	

Orders
(1)	That all prior parenting Orders made in the Local Court at Suburb B and this Court in relation to V born … 2010 and R born … 2012 (collectively known as “the children”) are discharged.
(2)	That the mother have sole parental responsibility for the children.
(3)	That for a period of two years from the date of these Orders, the mother shall take the following steps on each occasion that an issue about the long term welfare of the children arises:
(a)	Notify the paternal grandparents in writing of the issue for determination;
(b)	Advise the paternal grandparents of the course proposed by the mother;
(c)	Invite the paternal grandparents to provide a response and any alternate proposal within a nominated period of time;
(d)	Give proper consideration to any response of the paternal grandparents received within the nominated time; and
(e)	Promptly advise the paternal grandparents of the decision taken about the relevant issue.
(4)	That the children shall live with the mother as follows:
(a)	For a period of two months from the date of these Orders:
(i)	Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday, commencing 5 December 2015; and 
(ii)	Each Tuesday and Thursday from 9.00 am to 5.00 pm.
(b)	Thereafter, the children shall live with the mother and spend time with the paternal grandparents as follows:
(i)	Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday; and
(ii)	On one occasion per week, which may include overnight time as agreed between the mother and the paternal grandparents, but failing agreement, from 9.00 am on Wednesday for R and from after school Wednesday for V, until return to school and pre-school on the following morning.
(5)	That the mother may confirm enrolment for V at CC Town Public School commencing in 2016.
(6)	That the mother shall include in the enrolment application with CC Town Public School the contact details of the paternal grandparents as family contacts in the event of an emergency.
(7)	That the mother may enrol R in a pre-school in her local area commencing in 2016.
(8)	That the mother shall include in the enrolment application with R’s chosen pre-school the contact details of the paternal grandparents as family contacts in the event of an emergency.
(9)	That the mother shall provide a copy of these Orders to the school and 
pre-school which the children respectively attend.
(10)	That each of the parties is restrained from denigrating and criticising the other parties, or any of them, in the presence, sight and hearing of the children (including by use of social media) and further, shall remove the children from the presence, sight and hearing of third parties who do so (including by use of social media).
(11)	That the Registrar of this Court provide a copy of these Orders and Reasons for Judgment to the Registrar of the Local Court at Suburb B, New South Wales.

IT IS NOTED that publication of this judgment under the pseudonym Williams and Anor & Rogers and Anor (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Family Court of Australia at parramatta	

FILE NUMBER: PAC 2604 of 2013

Ms Williams & Mr Williams	
Applicants

And

Ms Rogers	
First Respondent

And

Mr Nixon	
Second Respondent

And

Independent Children’s Lawyer	

REASONS FOR JUDGMENT
Introduction 
1.	These are competing parenting applications in respect of the only two children of the relationship between the first respondent mother (“the mother”) and the second respondent father (“the father”). The children are V, a girl aged almost five years and R, a boy aged three-and-a-half years.
2.	The children presently live with the paternal grandmother and step-paternal grandfather, who are the applicants in these proceedings (“the paternal grandparents”).
3.	The mother is 28 years old.  Her household consists of herself, her partner, their child DD aged seven months, and her partner’s mother and step-father, Ms and Mr EE.  Mr and Ms EE own the family home in which they all live.
4.	The mother has three older children; boys aged ten, nine and seven, who have been living in care in the community since 2009.  The circumstances of those children’s birth and removal will be referred to later in these reasons.
5.	The father is 24 years old.  He was not present at Court.  He did not participate in the Family Report interviews.  He is not pursuing any independent orders. The father has been able to see the children in the presence of the paternal grandparents when he has wanted to do so.
6.	The father is said by the paternal grandmother to suffer from mental illness and behavioural disorders.  Ten years ago when he was approximately 13 years old, the father he was voluntarily placed into the care of the Minister by the paternal grandmother when he became unmanageable for her.  
7.	There is no evidence before me of the current circumstances of the father in relation to accommodation, relationships, or occupation.
8.	The paternal grandparents were represented by solicitors and counsel. The mother represented herself.
Short History of Relevant Events 
9.	On 6 June 2013 the paternal grandparents filed an Initiating Application in the Suburb B Local Court, together with a Notice of Abuse and Risk.  There were a raft of allegations of abuse and neglect directed to the mother’s care of the children.  Each of the paternal grandparents filed an affidavit in support.
10.	That application was dealt with on the same day, 6 June 2013, and Orders were made ex-parte.  Service on the mother was dispensed with and a Recovery Order was made for the children.  The paternal grandparents were given sole parental responsibility and provision was made for time for the children to spend two hours per fortnight supervised with the mother. The children were living with the mother at the relevant time, independently of the paternal grandparents.  The police arrived and removed the children, which was the first notice the mother had of the application having been made.
11.	On 25 June 2013 the matter came before this Court and Orders were made by consent, pending an interim hearing.
12.	On 29 June 2013 the children had their first visit with the mother, more than three weeks after their removal from her care.
13.	On 2 July 2013 the paternal grandparents filed an Amended Initiating Application including orders for the mother to undergo drug testing, for her to be referred to a psychologist or psychiatrist, and for her to undertake such courses as the court deemed appropriate.
14.	On 6 July 2013 the children had their second visit with the mother.  There was an incident where the mother attended with a friend with a young child the same age as V who was well known to her.  The paternal grandmother took photographs of the children which led to a disagreement.  Security officers were called and that visit was terminated early.
15.	On 10 July 2013 the mother filed a Response seeking sole parental responsibility, residence and supervised time for the children with the paternal grandparents.
16.	On 11 July 2013 the mother filed an Application in a Case asking for an urgent hearing.
17.	In the second half of 2013 the mother had begun a relationship with her current partner.
18.	On 3 September 2013 an Independent Children’s Lawyer was appointed and Orders were made by consent, still pending an interim hearing, providing for similar periods of time between the children and the mother, and with the mother restrained from bringing third parties with her during those visits
19.	On 3 October 2013 the parties attended upon a Family Consultant for the preparation of a Children and Parent Issues Assessment (“CAPIA”).
20.	On 14 October 2013 the matter was adjourned to November 2013.  Further consent Orders were made increasing the time between the mother and the children to every Sunday from 9.00 am to 4.00 pm, no longer supervised, and Tuesdays for two hours.
21.	On 10 December 2013 there was an interim hearing and judgment was reserved
22.	On 12 February 2014 interim Orders were made confirming residence for the children with the paternal grandparents, expanding the time for the children with the mother to each alternate weekend and each Tuesday and Thursday from 9.00 am to 5.00 pm. 
23.	Accordingly, until that point, there had been a period of eight months of minimal time between the children and the mother.
24.	In July 2014 the parties, other than the father, attended for Family Report interviews.  The Report was released in August 2014
25.	On 22 August 2014 directions were made for assessment by the children’s paediatrician as to whether the extent of intellectual disability or developmental delay necessitated attendance at an organisation such as Q School. The parties were restrained from allowing the children to attend programs within that organisation until that assessment had been undertaken. The parties were also directed to a court ordered mediation which was to take place after the children had been assessed by their paediatrician.
26.	In November 2014 there were consent Orders that the children could be enrolled in the Q School Early Intervention Program pending an assessment of the children’s needs. The matter was set down for hearing for March 2015.
27.	On 16 March 2015 the March hearing dates were vacated.  
28.	The interim Orders for time between the children and the mother were varied such that the alternate weekend became two consecutive weekend days from 9.00am to 5.00 pm, but not overnight.  
29.	I am told from the bar table this was in response to the concerns of the paternal grandparents that they did not have sufficient information about the mother’s partner and her living arrangements; but not because of any actual incident of harm for the children. The mother was at that time close to the end of her pregnancy with DD.
30.	In early 2015 DD was born.
31.	On 16 July 2015 there were Orders made in anticipation of the preparation an Expert Report. The Independent Children’s Lawyer had been noted as intending to make an application for a grant of Legal Aid for the appointment of such an expert.
32.	A notation to the July 2015 Orders was that the Legal Aid Commission had made available a grant of Legal Aid up to $2,000 and the mother was expected to make a contribution if she was to be included in the report.  She was not at that stage able to make any such contribution.  I am told from the bar table that on that day the mother made clear that she would not be in a position to contribute. 
33.	Accordingly, no expert report was commissioned.  The matter was not relisted and there was no application for an updating Family Report.
34.	On 9 October 2015 the mother filed her trial affidavit.
35.	On 2 November 2015 the paternal grandparents filed their trial affidavits.
36.	On 6 November 2015 affidavits were filed in the mother’s case from her partner and his mother, Ms EE.  This was the first time there had been evidence before the Court of the mother’s current partner and domestic circumstances.  No objection was raised.  No doubt all parties were anxious to have the matter finalised.
37.	On 9 November 2015 the matter commenced before me. There was no application to adjourn the proceedings on any of the bases referred to above.
38.	For the first time, the paternal grandparents proposed orders for unrestricted liberal time between the children and the mother, on alternate weekends and in holiday times. Supervision, drug testing and referral of the mother for psychological or psychiatric services was not pursued.  This is a matter of some significance which I will refer to again later in these reasons.
39.	Since the application had been made in June 2013 to the Suburb B Local Court, this matter had been conducted as one where the children were very much at risk of abuse in the care of the mother. In the first day of hearing that position changed sharply in the way outlined below.
40.	The matter was concluded within three days.
Evidence 
41.	The documents relied on in respect of the application were as follows:  
(a)	Minute of Proposed Orders sought by the paternal grandparents;
(b)	Notice of Child Abuse and Risk of the paternal grandparents filed 06/06/2013;
(c)	Exhibit 3 (which contained certain paragraphs of the affidavits filed by the paternal grandparents throughout the proceedings);
(d)	Response of the mother filed 10/07/2013;
(e)	Notice of Child Abuse and Risk filed by the mother on 11/07/2013;
(f)	Affidavit of the mother filed 09/10/2015;
(g)	Affidavit of the mother filed 06/11/2015;
(h)	Affidavit of the mother’s partner filed 06/11/2015; 
(i)	Affidavit of Ms EE filed 06/11/2015; and
(j)	The Family Report dated 05/08/2014.
Oral Evidence
The Paternal Grandmother 
42.	The paternal grandmother is 49 years old.  She has three young adult children, all now living independently. The oldest, aged 24, is the father. The two younger children are daughters, aged 20 and 18.  The youngest child left the home in recent weeks to live with her father.  There is a certificate (dated 
26 May 2014), annexed to the Family Report, certifying that she, the youngest child, was unfit to attend court for the report observations “due to anxiety and intellectual delay”.
43.	During the course of the hearing, the paternal grandmother referred to her middle daughter having had a child with whom the paternal grandmother has some limited contact.  There is apparently a court case of some sort concerning that child.
44.	The paternal grandmother asked to have the father taken into care in the community in 2005 when he was aged 13-14 years of age.  She gave evidence that the father had not stayed overnight in her home since at least 2009 on the basis that the Department of Family and Community Services 
(“the Department”) would not allow her to have the father stay overnight for reasons relating to the safety of his two younger sisters.
45.	The mother raised an allegation made to her by one of those sisters that she had been sexually assaulted by the father.
46.	In relation to the father, the paternal grandmother said this:
[The father] has had mental health issues from a young age and has been treated for, and diagnosed with, many various psychological illnesses.  The father’s psychological state became that server (sic) [severe] that I voluntarily asked for him to be placed into foster care as I could no longer provide him with the care he need[ed] and look after [her other two children’s] needs.  I had to ask DOCS to intervene and take care of [the father] on a voluntary basis, which was a very difficult decision that was made in the best interest of all my children.  I believe the current diagnosis of multiple personality disorder is appropriate as I have observed behaviour consistent with the diagnosis. [The father] appears to have several personalities and requires further psychiatric care.
47.	The household of the paternal grandparents now consists of the paternal grandparents and the two subject children only.
48.	The paternal grandmother is the principal carer for the children.  She receives Centrelink benefits consistent with that role.  She has previously been employed as a disability worker with a disability service in her local area. The paternal grandmother has been a part of the lives of the children from the birth of each of them.
49.	The mother came into the household of the paternal grandmother in September 2009 as the girlfriend of the father.  They lived together in a caravan in the backyard.  The mother developed a trusting relationship with the paternal grandparents quite quickly.
50.	The paternal grandmother was not an entirely reliable witness. She has a tendency to exaggerate and to embellish. The most compelling example of this is the material contained in the Notice of Child Abuse and Risk filed on 6 June 2013.  In the three annexures to that document, there are a raft of allegations, none of which were pursued in these proceedings.  Some examples are as follows:
a)	“…Mother now threatening to take children to Western Australia and reports she is pregnant to another man”.
b)	“[V] almost loosing (sic) [losing] her toe from neglect whilst in the mother’s care, hair caught around her toes and not treated”. 
This allegation was briefly touched on.  The mother gave unchallenged evidence that she had come home from work, observed after bathing the child that one of her toes was swollen and sore, and took the child straight to hospital for treatment.  The child was discharged without being admitted.
c)	“Leaving children enclosed in room for hours and not attending to them. Feeding children Take away and soft drink in bottles. Children unclean and unbathed and dirty”.
d)	“Mother declaring constantly she cannot cope with her children leaving children with grandparents, going missing from children’s lives at times, [threatening] to harm her children”. 
The evidence said to be in support of the serious allegation of threatening to harm the children does not support this allegation.
51.	The affidavit of the paternal grandmother sets out the arrangements for care, which she and the paternal grandfather were providing to the children to assist the mother. At that time, the mother was living with a friend, whose parents were friends of the paternal grandparents.
52.	The mother and the friend subsequently fell out over the friend’s rough handling of V; however the paternal grandmother includes a statement that the friend had rung “us” (perhaps the paternal grandmother or the paternal grandfather) saying, “you’d better come and get the children because [the mother] is not coping and will hurt them”.  These two telephone calls were said to be at 11.00 pm and at 1.00 am in the morning when the children were sick.
53.	The paternal grandparents assisted the mother by providing care for the children to some extent while they were sick. The paternal grandmother set out that the mother rang asking for the children to be returned, which was done.
54.	There is then an allegation that the mother rang crying to say, “please come and get the children or I will hurt them”. The paternal grandparents then had the children for one week. There was no cross-examination on this point but in any event, there was no suggestion that the mother had hurt the children and no confirmation that she had said she would.  Further, the hearsay statement from the friend could be given, in the circumstances of this case, little weight.
55.	The paternal grandmother raised as harmful conduct of the mother an allegation that:
… [the mother] would mix baby formula with dishwasher liquid bubbles still in the bottom of the bottle.  The formula would have bubbles all the way through it.  At times I had to throw the formula out and refill it without her knowing.  After this I only washed the children’s bottles.
56.	There is an oddness about this evidence.  If it were the case that the mother was mixing detergent with the milk formula and the paternal grandmother had seen evidence of that, it would seem likely that she would have confronted the mother.  If it were the case that she thought that the mother was casual in the extent to which she cleaned the bottles, again it would be logical that the paternal grandmother would have addressed it with the mother.  Instead, her evidence is that she surreptitiously threw the milk away and refilled it.
57.	I conclude that the paternal grandmother did not have any serious concerns about the mother trying to make the children sick or hurting them in some way, but rather there was a likely minor difference of opinion on bottle washing.
58.	In Annexure C of the Notice of Child Abuse and Risk there is this statement (par 19), “Mother contracted STD and passed onto child”. There is no evidence that supports such an assertion and the mother was again not questioned about it.
59.	The paternal grandmother asserted, “[R] has severe asthma and has had asthmatic episodes in which we have looked after him”. The annexure relied on does not support a diagnosis of asthma for the child at all, certainly not severe asthma.  There is a reference in that annexure to the mother having taken the three month old R to hospital with an episode of bronchiolitis.  He was well but having difficulty breathing and drinking.
60.	Again, the paternal grandmother asserts that the mother was not taking the children for immunisation.  Annexure G does not support that assertion.  It is a letter from a medical centre advising the mother that R was due for his scheduled vaccinations.  There is also a reference in the medical notes to a delay in vaccination for R on account of an episode of bronchiolitis.  The evidence does not support delay and/or negligence in the mother’s attitude to this matter, quite the opposite.
V
61.	The paternal grandmother gave evidence that she had observed that V has “problems speaking and sometimes her behaviour is difficult to understand”.
62.	She relates V telling her that the child sees “an old man” who follows her around; that she had also seen a baby and a little girl who the paternal grandmother understood to be imaginary.  On one occasion she saw the child talking to somebody who was “not there”. She asked V who she was talking to and the child responded, “the old man”.
63.	At times the child had blamed the “old man” for not being able to get to sleep.  The paternal grandmother said that:
[V] has very particular requirements when going to bed, she has to have socks on etc, in the event one of her routines is broken or sometimes without reason [V] will have an extreme emotional response varying from aggression to long periods of crying and requesting hugs.  
My son, [V’s] father, suffers from multiple personality disorder.  [V] reminds me of her father when he was young, we have sought professional help with developing strategies to assist [V’s] development.
64.	The evidence about V’s professional help is that the paternal grandparents have attended and completed several courses for parenting and to connect carers with each other, however there has been no treatment for V.  Indeed the evidence is that her general practitioner has recommended that no treatment is required for her at this age.
65.	On 24 November 2014 an Out of Home Care Assessment Report was prepared in respect of V by a paediatrician.  Her physical examination is reported this way:
[V] looked well.  V’s BMI is well above the healthy range, and needs close monitoring.  The systematic examination was unremarkable.  Her speech was clear.  She asked and answered questions using sentences.  She was able to copy complex figures including a cross, square and ladder and drew a simple picture of a person.  [V] displayed distinct mood changes on several occasions during the assessment, at times choosing to sit alone looking sad. These quickly resolved spontaneously and she continued with her play.
66.	The overall summary in the assessment for V is as follows:
[V] is a three year girl who has been in the care of the paternal grandparents.  She has behaviours suggestive of emotional distress.  She is otherwise developing in the normal range.  Her weight is over the healthy range and requires review.  [V] would benefit from a consistent and loving home placement.  
67.	It is a matter of some concern that 11 months after the assessment, when the advice of her general practitioner was that no treatment was required, that the paternal grandmother was focusing on what she perceived to be the emotional disturbance of V. In the view of the paternal grandmother, V’s behaviour resonates with the father’s diagnosis of multiple personality disorder.
R
68.	The physical examination of R is as follows:
[R] examined well generally. His weight for his height is in the unhealthy range. His systematic examination was unremarkable […] [R’s] overall development is in the low average range.  His inattention, activity level and compulsions during the assessment may have influenced the results of the assessment.  
69.	On the childhood autism rating scale R is described as follows:
… scored well within the autistic range.  He has difficulty with transitions and prefers sensory and repetitive play.  His eye contact is inconsistent and his joint attention limited.  He has significantly delayed and disordered non verbal communication skills and his language is disordered with echolalia.  He has difficulties with emotional regulation.
70.	His overall summary in the assessment is as follows:
[R] is a healthy, happy boy who is developing in the lower average range for his age.  He has sufficient features to meet the DSM 5 diagnostic criteria for Autism Spectrum Disorder and this diagnosis is confirmed.  [R] will benefit from a stable, loving and supportive long term placement.  
71.	R presently attends for occupational therapy and speech therapy on one day a week.
72.	Both children have attended the Q School Early Intervention Program.  They commenced with that program long before the assessments were undertaken in November 2014 which gave rise to concerns by the Family Consultant.  Those concerns related to the use of a disability service when there was no expert evidence of the need for it.
73.	The outcome has been that it seems less likely that V needed to be involved in that program and more likely that R could benefit, however my overall concern is the medicalised focus of the paternal grandmother on the children.
74.	The paternal grandmother and the mother disagree about the diagnosis of R as on the Autism Spectrum.  The mother in her oral evidence referred to the fact that during the assessment which took place, she heard observations about R reported by the paternal grandmother during the assessment of behaviour that she had not seen in him herself.  On that basis she would like to have a second opinion for R. It is a significant matter for R particularly as he reaches school age.
Communication with the mother
75.	The paternal grandmother said, “I don’t communicate with mum”.
76.	She expressed her concern that the mother’s current relationship might not work out, “that happened in and out of relationships with my son and other boyfriends”. 
77.	In my view it was a legitimate concern for the paternal grandmother that the children were being exposed to unsafe relationships, however the most unsafe relationship for the children is with the father.  The paternal grandparents themselves acknowledge that the children should never be left with the father unsupervised.  
78.	To the extent that the mother was being criticised for being in and out of the relationship with the father, it is legitimate only to the extent that she apparently lacked the maturity or insight to terminate the relationship earlier than she did.
79.	My overall impression of the paternal grandmother was that she always had doubt about the mother’s capacity to raise the children and probably formed the intention to keep the children in her care quite early in their lives. 
80.	It was on her initiative that the mother provided a Statutory Declaration in October 2012 giving the paternal grandparents authority, particularly with reference to taking the children to the doctor. Subsequently that Statutory Declaration was relied on by the paternal grandparents in their Initiating Application as evidence that the mother had in fact asked for them to take over care of the children “permanently”. It was a misrepresentation
81.	I find that the mother did not intend to hand over parental responsibility of the children to the paternal grandparents on a permanent basis.  Far from it.  She was reliant on the paternal grandparents for assistance in their parental role with her.  Had the mother made such a request, for the paternal grandparents to take over, no doubt the paternal grandparents would have notified her of their application so orders could be made by consent.  In fact, no hint was given to the mother by them of the application and her reaction was one of shock and distress.
82.	The paternal grandmother has provided significant care for the children and undoubtedly loves them.
83.	At the point when her role changed from being both a supportive grandmother to the children and de facto mother-in-law to the mother, to becoming a parent to the children, the relationship between herself and the mother fractured and broke down.  This is a significant matter to consider for the future well-being of the children.
84.	I am not satisfied that the paternal grandmother will promote and support a meaningful relationship between the children and the mother.
85.	Until the commencement of the hearing, the paternal grandmother’s case was one of unacceptable risk of the children in the mother’s care, although that was not the case that was presented. Nevertheless the tenor of the paternal grandmother’s evidence was one of criticism and doubt that the mother could care for the children.  The fact that the paternal grandmother has chosen not to speak to the mother is a significant matter.
86.	In February 2012 the mother wrote critical and insulting things on social media about the paternal grandmother.  The messages were rude and immature however there is no evidence they have been repeated.  The mother has matured significantly over the last four years but the paternal grandmother appears to be comfortable with the situation where there is no direct communication between herself and the mother.
87.	I am left with the impression that the paternal grandmother does not see a need to maintain a relationship with the mother at all.
The Paternal Grandfather
88.	The paternal grandfather presented as a concerned grandfather, a kind and thoughtful man.  He is the step-grandfather of the children but has known them all their lives.
89.	He has three adult children from his first marriage.  That marriage ended in separation in 1997.  Three years later his estranged wife died leaving their three children, then aged about 11, ten and five to be cared for by him.
90.	Two of those children suffer from disabilities.  The oldest from Russel Silver Syndrome (brittle bones) and severe curvature of the spine.  The middle child is deaf, suffers from ADHD and schizophrenia.  The youngest child, not disabled, lived with the parties but no longer does so.  There was no evidence before me about the circumstances of his leaving the home.
91.	There also was no evidence about the history of the relationship between the paternal grandparents but I was told from the bar table that a relationship first formed in about 2000. In 2009 the paternal grandparents began living together and they married in the following year.
92.	In November 2010 shortly after that marriage, the mother moved in to live with the paternal grandparents, pregnant at that time with V.
93.	The paternal grandfather has for the whole of the five years of his marriage been willingly involved in assisting his wife’s family, including the mother, the father and the two subject children. I do not doubt that the paternal grandfather feels genuine sympathy for the mother who was neglected and not protected by her family of origin.
94.	The current orders he seeks, together with the paternal grandmother, are designed to increase time between the children and the mother and to reduce conditions and restraints, “we thought about being fair to [the mother]”.
95.	The paternal grandfather readily conceded that he did not have concerns about drug use by the mother and in fact never had, “no, not really”. It is difficult to reconcile this position with the urgent safety based application for recovery and exclusive care which was made two-and-a-half years ago.
96.	The paternal grandfather stated that the mother had time with the children according to current Orders with limited exceptions, “sometimes the mother couldn’t have the children because she was ill”. The paternal grandfather was not critical of the mother.
97.	In his affidavit sworn on 5 June 2013, which supported the Initiating Application, the paternal grandfather that said in February 2013, R had been suffering an asthma attack and “[the mother] told me she was too [tired] to take him to the hospital. When taken to that passage, the paternal grandfather denied hearing the words attributed to the mother by him, about the mother being “too tired” to take the child to hospital. When the mother questioned him about it the paternal grandfather agreed that the mother had been present at the hospital 
98.	I formed the impression that the paternal grandfather was committed to supporting the paternal grandmother in her application to this Court, but left the documentary side of the case to her.  For instance, he had not re-read the Family Report, released more than a year earlier, and appeared surprised by some of the material quoted from his own affidavits. I accept his evidence that there has been little conflict in his dealings with the mother, “[the mother] and I seem ok, no arguments or problems”.
99.	Indeed it was to him that the mother, and also apparently her flatmate, turned when the mother was struggling with the care of the children in late 2012. On one occasion the mother rang and asked the paternal grandfather to come and get the children, then aged 16 months and 6 months, so she could get some rest. The mother’s flatmate also rang the paternal grandfather to suggest that the mother needed a break from the children. The paternal grandfather responded immediately on each occasion.
100.	In his view the conflict between the mother and his household arose over the children’s treatment needs.
101.	Having heard all of the evidence, it is clear that the mother has disagreed with the proposition that the children have special needs requiring extensive therapeutic interventions.  She is suspicious about the motivation of the paternal grandmother.  Unsurprisingly, her suspicion was initially generated by the way proceedings were brought in the Local Court at Suburb B. 
102.	The mother made the point that in any proceedings regarding the separation of children from their parents, all interested parties must be given an opportunity to participate. Counsel for the paternal grandparents very properly conceded that the mother’s feelings of resentment in this regard were soundly based. I consider they are and although the mother has behaved immaturely at times, her attitude to this aspect is rational and appropriate.
103.	I conclude that the main area of conflict lies between the mother and the paternal grandmother, her former de facto mother-in law.  The mother had come to treat the paternal grandparents as parents and called on their assistance quite regularly in the confident expectation that it would be provided.
104.	After June 2013 the paternal grandparents have taken on the role of parents to the children. The circumstances of that happening and the period of time which has gone on has profoundly affected, in a negative way, the relationship between the mother and the paternal grandmother, and to a lesser extent, the paternal grandfather. For that reason, my impression is that the paternal grandfather has felt somewhat helpless on the subject of communication as he is caught between loyalty to the paternal grandmother and sympathy for the mother’s hopes for the return of the children to her care.
105.	The paternal grandfather has undertaken a variety of quite time consuming, extensive courses involving weekend camp, seminars and lectures.  He has taken on the care of the children with interest and seriousness.
106.	I have no doubt the paternal grandfather loves the subject children, understands their ways and wishes in a selfless way to do the best he can for them.  He takes seriously the need to supervise the father but has been willing to support his relationship with the children.  He quickly and firmly answered “no” to the mother’s question as to whether he had ever seen her hurt the children and went on to agree that R was always falling over and that both children had had stitches for accidents.
107.	There had been an occasion when the paternal grandfather had been concerned about “several bumps” observed on R after a contact visit with the mother in January 2015.  He took the child to hospital and the hospital made a notification to the Department. Even then the paternal grandfather firmly and fairly stated to the mother, “I’m not assuming you were the cause, I’m not assuming anything”.
108.	The mother made a call for the Discharge Summary relating to this incident.  It was produced and tendered into evidence.  There is no basis arising from that document for a finding that any party deliberately hurt the child, although some person may have.  Under the heading “impression” there is this statement, “Head injuries – high risk of NAI”, which I take to be “non-accidental injury”; however the child was released home with no treatment required. The matter was notified to the Department and there was no adverse outcome for any party.
109.	The mother has had solid support from the paternal grandfather which would likely continue under whatever circumstances follow from this hearing.
110.	The paternal grandfather has been wary of the mother’s new relationship, “we know nothing about the people she lives with”. He very readily conceded meeting the mother’s partner at changeovers and made a favourable comment, “it goes reasonably well”.
111.	When asked by the mother what were his concerns about the children living with her, the paternal grandfather took time and made an effort to respond honestly, but neutrally:
a)	Where the children are staying;
b)	They come back dirty, their face, hands and clothes; and
c)	Your ability to get the children to appointments.
112.	These stated concerns highlight the absence of any concern that the mother represents a risk to the children in the view of the paternal grandfather.
113.	I consider that the paternal grandfather has been an important source of stability and affection for the children and that his ongoing involvement in their lives, as their grandfather, will be valuable and enjoyable for them.
The Mother
114.	The mother is 28 years of age.  She has had to contend with profound hardship in her life.  As a child, from at least age 12, she was preyed on by her grandmother’s husband, the mother’s step-grandfather, a man then aged 47.  Sexual intercourse between them first took place when the mother was 13 or 14 years of age. The maternal family was apparently neglectful and not protective of the mother.
115.	In 2002, when the mother was 15 years old, she went to live in the home of her step-grandfather.  Over the following six years, three children were born to her and the step-grandfather.  Throughout this period the mother was subject to violent and degrading treatment by him.
116.	In 2009 the Department offered assistance by the Brighter Futures program to the family constituted by the mother, her step-grandfather and the three children. The Departmental officers subsequently assisted the mother and the children to leave the home to escape further exposure to domestic violence. The mother and children lived in two separate refuges.  On each occasion the step-grandfather found where she was.  
117.	In July 2009 the three children were removed into care for their safety and stability.
118.	Soon after, the mother began a relationship with the father in these proceedings. That relationship was highly likely to have been an adverse factor in consideration by the Department of return of the three children to the mother.
119.	On 22 December 2009 a five year Apprehended Violence Order was made for the protection of the mother and the three children from the step-grandfather.
120.	In July 2010 there was a hearing in the Children’s Court to determine the arrangements for long term care of the three children. The Director-General successfully sought orders that parental responsibility be allocated to the Minister until age 18 for all of those children. The mother was represented and through her solicitor conceded that there was no realistic possibility of restoration of the children to her care. The mother was as that time about four months pregnant with V in an unstable and violent relationship with the father.
121.	The mother has maintained regular contact with the three children which has been gradually increasing and has become unsupervised.  The children are now aged 10, nine and seven.  The mother is able to take the subject children and her new baby when she sees her three older children, now on a monthly basis. The mother has committed herself to re-taking the care of all her children if she is able to do so. The mother’s step-grandfather is excluded by order from having any contact whatsoever with his children.
122.	In 2010 the father was admitted to hospital following a suicide attempt.
123.	In August 2010 the mother and father were reconciled and moved into independent accommodation.  This attempt to live together was unsuccessful.  By agreement the mother moved to live with the paternal grandparents.  The father was diagnosed with mental illness.
124.	Soon after in 2010 V was born.
125.	In April 2011 the mother again returned to live with the father.  This pattern continued with the mother moving between the father and the home of the paternal grandparents.
126.	In 2012 R was born.
127.	Soon after in May 2012 there was a final separation of the mother and the father.  The father became agitated and violent.  The mother moved into a domestic violence refuge.
128.	In October 2012 the mother moved to live with the paternal grandparents on a promised condition that the father would not at any time live at the premises.  
129.	The mother struggled significantly at this time with the care of two infants and called on the help of the paternal grandparents at times when she was not living with them.  
130.	In January 2013 the mother began a new relationship and quickly moved with the children to live with her new partner.  Almost as quickly, she severed that relationship and returned to living with the paternal grandparents. 
131.	Understandably the paternal grandparents were deeply concerned about the exposure of the children to the mother’s new partner when she had known him for a short period of weeks only.  They were concerned about the swiftness of this move and their own lack of knowledge for the arrangements for the care of the children. The paternal grandmother contacted the Department.  It was a responsible thing to do. 
132.	The mother subsequently moved away from her new partner and also from the paternal grandparents.
133.	In April 2013 the mother again asked the paternal grandmother to take the children for a short period.
134.	In May 2013 the mother was told by third parties that the paternal grandparents were intending to seek parenting orders from the court. It is apparent that the mother panicked at that point.
135.	In June 2013 she moved with the children to live with the maternal grandmother.
136.	On 6 June 2013 the paternal grandparents filed the application in Suburb B Local Court.  On that day, urgent ex-parte Orders were made and the children have lived with the paternal grandparents since. The mother has spent time with the children pursuant to various Orders by consent and most recently, by interim Orders made after hearing on 12 February 2014.
137.	At some stage in the second half of 2013 the mother formed a new relationship with her current partner.  About 12 months ago they began living together.  In 2015 a child of that relationship was born, DD.
138.	The mother has worked as an assistant in nursing.  She studied for a Certificate III qualification in order to do so.  She has maintained her contact with the children other than at times when she was sick and has maintained her wish to have the children returned to her care.
139.	In the Family Report there is this conclusion:
On the basis of the observed relationships between the children and [the mother] and the children and the paternal grandparents, it is assessed that the children could probably live in either household, subject to the Court having confidence in the adults in either household having a clear understanding of the children’s needs and the ongoing capacity to meet those needs, including prioritising the children’s needs ahead of their own when necessary.
140.	The Family Consultant also gave the opinion that in the event that the children return to live with the mother, the mother would benefit from the assistance of an intensive family support service. 
141.	I conclude that the mother carefully considered the Family Report.  
142.	In the way that things can happen when parties are self-represented, the mother produced a folder of notes at the conclusion of the hearing which reflected that she has actively engaged with an intensive family service as was recommended.  
143.	The notes cover her involvement with the Brighter Futures program entered on 27 March 2014.  She has engaged through Organisation FF, which is the service that the Family Consultant recommended as an example of the kind of intensive support recommended.  
144.	The goal established for the mother is stated as follows:
Parental capabilities:
[the mother] will have more parenting skills and will be more confident in parenting ability.  
[The mother] will be working towards getting her children back into her full-time care.  
[The mother] will be taking the children to playgroup.
145.	The comments from the Brighter Futures program are as follows:
[the mother] has shown resilience - has survived many challenges and shown how resourceful she can be.  
Has grown in parenting confidence.
146.	There is also a reference to the fact that the mother’s partner participated in the program, although there was no reference to this in his affidavit.
147.	The evaluation of the parenting education Tuning in to Kids reads as follows:
[The mother and her partner] acknowledged that they would go through practice scenarios from previous weeks to help each other parent in a collaborative approach.  
[The mother] stated that the [children] are doing well at communicating their feelings with her; in certain situations she finds it difficult to use emotional coaching strategies.  I assured her that she was doing well and reminded her [of] the circumstances her family was in; more important to find the way that works best for your [children] and keeping core values of the program.  
[The mother] stated that she has found the program to positively reinforce her parenting skills and has given her confidence in her abilities as a parent.
148.	There is a certificate of completion from the Tuning in to Kids program which was also tendered into evidence and it is apparent that the mother engaged, as required, with Brighter Futures until April 2015, after the birth of DD.
149.	The material in the notes is very positive in terms of the mother’s willingness to engage with and accept advice. I formed the conclusion that the mother must have a high degree of resilience given what she has experienced.  She presented as a candid, straight forward and thoughtful witness.  
150.	I conclude that she suffered a personal loss of the support of her de facto parents-in-law when their application was made in June 2013.  
151.	The proposition was put to her that she is now living with a family and relying on them, as she had with the paternal grandparents.  She responded as follows:
No, they [the paternal grandparents] accepted me to live with them although the relationship [between the mother and the father] had ended.  They wanted the children in their lives.
152.	The mother made proper concessions in an impressive way.  She agreed, and it was uncontested, that the paternal grandmother had told her that the Department had at some point raised the possibility of her, the paternal grandmother, having Munchausen Syndrome by Proxy.  The mother agreed that the full extent of her knowledge about that was what the paternal grandmother had told her herself.  She did not attempt to express her own view.
153.	The mother also spoke insightfully about the time she spent with her three older children. She said she understood that it was a delicate situation for her children who enjoyed time with her and could not understand why they were in care and not living with her, “I don’t want to hurt and upset my children”.  On that basis she understood the need for working gradually with the subject children in the event they came back into her care.
154.	In answer to a question from me, the mother said she had undertaken domestic violence counselling in the context of 12 sessions with a psychologist in 2010 and various sessions in refuges when she had lived in them. The mother’s evidence was that she had come to understand what was a healthy relationship and what was not. It was generally conceded in submissions that the current relationship between the mother and her current partner appears to fit the category of a healthy relationship.
155.	My overall impression of the mother’s evidence was that she has tried to be protective of all her children.  She had no prospect of being able to protect her three oldest children.  The father of those children was her step-grandfather, married to her grandmother for 12 years before he began molesting her.  She gave evidence in the Children’s Court that when she was a child and things were difficult in her own family, he had been kind to her and told her that his door was always open to her.  She went to live with him and sexual contact followed.  There is a 33 year age gap between the mother and her step-grandfather.
156.	It is apparent from the reading of the judgment in the Children’s Court and the evidence of the mother that she was powerless in that relationship to help herself or her three older children.
157.	Subsequently the mother formed another unsuitable relationship, with the father of the subject children, a man four years younger than herself, who was quite unsuitable as a partner, suffering from mental illness, impulsive sexual misconduct and a tendency to be violent and threatening.  The mother struggled to leave that relationship.
158.	In 2013 she formed another relationship but ended it promptly when she concluded that it was unsuitable. The mother may not have understood at that time that introducing the children so quickly to a new partner was not in their best interests.
159.	It is apparent that the mother has done everything that has been recommended to her to learn about such matters, to grow as a parent and to understand more about the impact on herself of past events.
160.	The mother at one stage shared accommodation with a friend who, in the mother’s view, handled her older child roughly, which the mother did not appreciate. In those circumstances she turned to the paternal grandparents for assistance.  
161.	The mother was diagnosed by a doctor as suffering from depression and given medication, however the mother sought another opinion and was told that she was suffering from stress.  She thereafter saw a psychologist who undertook testing and advised her that she was not depressed.
162.	Soon after the children were removed from her care as a result of the Local Court Orders, she was diagnosed with suffering grief and loss. That evidence was corroborated by a mental health social worker whose report and assessment became Exhibit 5.
163.	The mother spoke sensitively about the subject children, agreeing at times their behaviour was problematic and at other times:
They can be the best, playing together like angels, other times clingy, wanting attention.  I give them attention and they settle down.
164.	Her reflection on the question of a diagnosis of autism for R was highly insightful:
Question:	Do you agree with the diagnosis of ASD Spectrum [for R]?
Answer:	Yes and no.  The paternal grandmother said a lot of things to the doctor that relate to autism that I’ve never seen [about R] so I would like to get a second assessment.  A lot depends on what carers say.
165.	When asked what she would do if the children came into her care about R, the mother said she would continue with his current program until she had a diagnosis which suggested they should be discontinued. She has also identified a place, Organisation GG, where she proposed to take the child for assessment and referral if necessary.
166.	The mother spoke of two of her older children being initially diagnosed with autism and subsequently being re-diagnosed as suffering from post-traumatic stress disorder. I consider that the mother has an open mind on the topic of a diagnosis for R and simply wants to be quite sure before proceeding with therapy and ultimately formal education based on the diagnosis.
167.	The mother spoke of the affectionate relationship between the children, particularly V and DD.  She was optimistic about having the three children together. She based her optimism in part on the nature of her youngest child:
She does not require constant attention.  She loves hugs and attention but she is content to play by herself.
168.	The mother agreed that communication between herself and the paternal grandmother was almost non-existent and at this time she continues to be affected by what she describes as “a manipulating, taking away [of the children]”. However, she agreed that communication would be required and that there were satisfactory levels of communication between herself and the paternal grandfather, “[he] talks to me and I listen to everything said about the children”.
169.	The mother conceded that the paternal grandparents cared for the children and loved them.
170.	The mother had begun to read some of the material produced on subpoena.  She had not taken the opportunity to do so prior to the hearing, although I am satisfied she was aware there were documents there to read.  The mother had begun to realise the significance of reading the material, in particular she had been reading documents produced by the Department in relation to the father as a child.  Her explanation for not having come to court to read the documents previously was that she did not want to give up any days with the children in order to be in court.  I accept that was her motivation. The decision aggravated her disadvantage as a self-represented litigant. 
171.	During the course of her cross-examination, the mother referred to a possible move to II Town.  Her partner owns a block of land there and is hopeful of building a house which would become a family home.  The mother supports that plan.  Her partner’s brother, his wife and two young children also live in II Town.  
172.	However the mother did not seek orders on the basis that the children would be living in II Town if they returned to live with her.  This was not in my view an oversight arising from self-representation.  There are no firm plans for the move at this time.
173.	The paternal grandparents were not put on notice of that move.  I do not consider that the mother had concealed it; rather it was because there was no firm plan.
174.	I accept that the mother has a plan to seek advice from a psychologist with a practice near the school where she proposes V will start in 2016 in order to ease her transition between households and into school.  Likewise she intends to seek help for R with his behaviour as well as in addition to a second opinion on his diagnosis.
175.	I come to the conclusion the mother has good parenting skills.  She made the point that there had been regular visits from the Department who had never removed or suggested removing the subject children from her care.  I also take into account the efforts the mother has made over the last almost two years to engage with the kind of support services which the Family Consultant, in his oral evidence, commended.
The Mother’s Partner
176.	The mother’s partner is 28 years old.  He presented as a hard working, good natured young man, delighted with his new young daughter and committed to the mother and all her other children. He is in full time employment.
177.	The mother’s partner has a plan to build on land he owns in II Town, “I want to build a house so the kids would have a healthier lifestyle.  We’ll build the biggest house possible for all the children”. However he firmly stated that if such a move was not suitable for the children, it would not happen.
178.	He has supported the mother but has made a decision not to take an initiating role with her children:
I’ve gone along to doctors etc but I’m there for support, I’m not part of the family, I take them fishing, I am always willing to support, drive, help out in any way I can.
179.	He spoke positively of the paternal grandparents continuing to have a role in the children’s lives, if they came to live with the mother and himself, “I hope they do, I strongly believe in having family around”.
180.	Overall my assessment of the mother’s partner is of someone who could bring fun and happiness into the lives of the children and would treat them as if they were his own.  I say that for two reasons:
a)	First, the proposition was put to him that DD has priority.  I accept his response, “all the children have priority”; and
b)	Second, he showed good insight and affection by saying to the children, when they called him “Daddy HH” (HH being his nickname) but also told him they had been directed to call him HH only, “you can call me whatever you want darling.” There was no evidence of inquiring as to who had imposed the restriction or criticism of anyone suspected of doing so. There was simply reassurance of the children and recognition of their own emotional feelings.
Ms EE, the mother of the mother’s partner
181.	Ms EE has been a nurse for 43 years.  She is also a clinical facilitator for a university.  She displayed the authority and understanding drawn from that history.  She was strongly supportive of the mother as a mother and also professionally as an assistant in nursing.
182.	I formed the view that Ms EE was affronted by being told to confine herself to “yes” or “no” answers and even more affronted by being asked rhetorically whether she was a psychologist or psychiatrist.  She thereafter remained courteous but did confine herself to “yes” or “no” answers, whereas she had previously given, for instance, a clear fluid observation of V and an opinion of the likelihood of R being autistic.
183.	I formed the view that Mr and Ms EE are quite willing to have her son, the mother, DD and the two subject children as members of their household.  However, I also consider that there is an expectation and hope that they will find suitable independent accommodation in due course.  
184.	I do not doubt, given her evident delight when referring to her new granddaughter and her respect and affection for the mother, that Mr and Ms EE will maintain family relationships wherever their son and his family are living.
The Family Consultant
185.	The Family Consultant saw the parties in September and October 2013 for the preparation of the CAPIA. 
186.	The Family Consultant interviewed the children, mother and paternal grandparents in July 2014 for a Family Report. The father chose not to participate and the paternal grandparents’ youngest daughter, eligible as a member of the household of the paternal grandparents, did not participate on the basis of being certified medically unfit to do so.
187.	The Family Consultant was clear to say that if there was to be a change of residence, presumably because of safety concerns in the care of the paternal grandparents, it should happen without transition arrangements. However in general terms, re-establishment of time before making a residence change made sense.
188.	The children had been in an established overnight pattern of time from February 2014 to March 2015.  Thereafter, alternate weekends became two consecutive days, 9.00 am to 5.00 pm on each alternate weekend. This was apparently done in response to the paternal grandparents’ concerns that they knew nothing of the mother’s new partner and was not reactive to any actual concerns for the children arising from adverse events. 
189.	Accordingly, I conclude that in the absence of immediate safety concerns, a transitional arrangement would be a benefit to the children.
190.	The Family Consultant stated:
None of the parties left me compellingly convinced that they could make optimal parenting decisions.   On that basis, sole parental responsibility for either the mother or the paternal grandparents might be the least detrimental, but would not lead to optimal parenting.
191.	In the view of the Family Consultant, what he had seen in mid-2014 led him to the conclusion that none of the adults could protect the children from the conflict between them.
192.	The Family Consultant was satisfied of the authority implicit in the Out of Home Care Assessments done of the two children.  He was not critical of the mother wanting a second opinion about the diagnosis for R, not knowing all her reasons.
193.	The Family Consultant was also properly careful to limit his comments due to lack of knowledge of recent developments over the last 18 months.  He had had the opportunity to scan, but not to fully consider, the recent affidavits of the mother, her partner and her partner’s mother, noting that an assessment of that evidence would be a matter for the Court. Falling into the category of recent events is also the mother’s engagement through Organisation FF with the Brighter Futures program and several parenting programs offered through that service.  
194.	The overall recommendation of the Family Consultant was that the children remain living with the paternal grandparents for the sake of stability and his recommendation in that regard did not change. However, I note the reservations referred to above.  There was no updating Family Report; that possibility was overshadowed by the prospect of an expert report which did not come to pass.
The Law
195.	The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)	Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)	Children are protected from physical and psychological harm;
c)	Children receive adequate and proper parenting to help them achieve their full potential; and
d)	Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
196.	These are applications for parenting orders pursuant to s 64B(2) of the Act.  In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.  The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.  
197.	There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
198.	I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
199.	I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations 
200.	The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence.  In applying those considerations, greater weight is given to protection of the child from abuse, neglect or family violence.
The benefit to the child of having a meaningful relationship with both of the child’s parents
201.	In this case, the children have a relationship with the father.  They know who he is.  They see him on an irregular basis in the presence of the paternal grandparents. It is acknowledged by all parties, other than the father himself, that there is an unacceptable risk to the children associated with him having unsupervised time with them.
202.	During submissions, the mother handed up a proposed Minute of Order, including a proposal that the father have supervised time with the children in a contact centre. I explained to the mother that such an order would not be entertained given that no one was on notice of it and there had been a pattern of supervised time by the paternal grandparents which could continue whatever orders were made about residence.
203.	The children do have a meaningful relationship with the mother.  It was not contested that the children are very pleased to see the mother and want to spend time with her.
204.	There was reference, predictably on both sides, to the children being reluctant to leave the household they are in to return to the other household.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
205.	The children were exposed to family violence in the context of their parents’ relationship. They have been protected by the care provided by the paternal grandparents.
206.	The children have not been abused or neglected by either the mother or paternal grandparents.
Additional Considerations 
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views 
207.	The children are not old enough, at age almost five and three-and-a-half years, to understand that a change of residence for them is contemplated.  They were aged three-and-a-half and just two when observed by the Family Consultant for the Family Report. At that time, the children were observed to engage well with the mother and to enjoy games with her.
208.	R became “very distressed and started crying ‘Mummy’ repeatedly” and remained distressed when the mother carried him to the court childcare room as directed by the Family Consultant.  Likewise, in observations of the children with the paternal grandparents, R demonstrated difficulty separating from the paternal grandfather.  
209.	At the start of the observation with the paternal grandparents, R was still “significantly distressed, and repeatedly sobbed ‘Mummy, Mummy, Mummy”. R was unable to be comforted even by the paternal grandfather.  He remained highly distressed throughout the observation.
210.	V seemed calm and enjoyed the activities with the paternal grandparents.
211.	At this point the children had been living with the paternal grandparents for 
12 months and spending regular time with the mother.  I am unable to interpret the level of R’s distress given his diagnosis and lack of any updating material by way of observations.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
212.	The children have their most important relationships with the mother and the paternal grandparents.
213.	The children also enjoy a developing relationship with their young sister DD, the mother’s partner and his parents. The children have been in monthly contact with their three older siblings and apparently enjoy those visits.
214.	There is a limited relationship for the children with the father, which is likely to be occasional contact supervised by the paternal grandparents for the balance of their childhood.
215.	The children have until recently shared the household with the paternal grandmother’s youngest daughter and the paternal grandfather’s youngest son.  There is no evidence about the state of those relationships or the impact on them of those young people leaving home.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
216.	The paternal grandparents made a decision to apply for exclusive care of the children without reference to the mother, either in advance of making the application or by insisting that she be made aware of the application after it was filed.
217.	The mother’s evidence is that her suggestions in the communications book were not taken up by the paternal grandparents and they have made arrangements for educational and therapeutic intervention for the children on the advice of the children’s doctor and on the advice of the principal of the Q School, where the paternal grandmother’s youngest child, now 18, attended school.
218.	The mother has committed herself to spending time with the children and communicating with them consistently with the orders. She has missed time when she or DD were sick and I am satisfied that she did not wish to put the children’s health at risk.
219.	She also for a period of time could not enjoy weekend contact.  She had obtained full time employment and was on a period of probation which required her to work at weekends.  The evidence of the paternal grandmother was that there were no other days available for the mother to have alternative days.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
220.	The evidence of the paternal grandmother is that the father pays child support to her and is up to date. The paternal grandfather had thought that the father had stopped paying. 
221.	The mother has been assessed, based on the amount of time she spends with the children, to have no obligation to contribute financially.
222.	Full Centrelink benefits for the children are paid to the paternal grandmother.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
223.	This is a most significant consideration for these children. They have for the last almost two-and-a-half years lived mainly with the paternal grandparents and indeed they have lived most of their lives in the home in which the paternal grandparents live.
224.	They were separated from the mother abruptly in June 2013 and three weeks went past without any contact with her at all as a direct result of events in court.
225.	Thereafter there was very limited supervised time, two hours in a play centre, gradually increasing until interim Orders were made in February 2014 providing for substantial and significant time for the children and the mother, that is, alternate weekends and two whole days each week.
226.	There is no evidence before me of the impact on the children, then aged three-and-a-half and 14 months, of a period of eight months of severely limited time for them with the mother.
227.	There is some risk associated with changing the residence of the children so that they live with the mother and spend substantial and significant time with the paternal grandparents; however it is a balance of risk.
228.	The mother has formed a stable relationship and has the practical and emotional support of her partner and her partner’s family in caring not only for her child from that relationship but the subject children who have been regular visitors to that household.  There is evidence which I accept that the children have a playful and affectionate relationship with the mother’s partner.
229.	To leave the children in the home of the paternal grandparents has some risk associated with what I have found to be the paternal grandmother’s negative focus on the children’s health, her tendency to exaggerate about matters involving their physical health, their emotional health and behaviour.  
230.	Further I am not satisfied that the paternal grandmother has the capacity to promote the relationship between the children and the mother.  She remains overtly critical of the mother’s current ability to care for the children. 
 The practical difficulty and expense of a child spending time with and communicating with a parent 
231.	The mother and paternal grandparents live about a 30 minutes drive apart.
232.	The mother has a learner driver’s licence but not a full licence and is not ready at this stage to become a licenced driver.  She relies on public transport.
233.	Both the paternal grandparents drive and are willing to do so.
234.	The mother’s partner and his mother drive and are willing to assist.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
235.	This too is a significant matter.
236.	There are limitations of capacity for the mother and the paternal grandparents.
237.	The mother has had a brutal experience of childhood and adolescence which deprived her of the opportunity to live safely and form relationships from a secure family base.  As a result, she did not have the tools to choose healthy relationships after her experience with her step-grandfather. She has sought and accepted advice and education which has improved her skills in understanding the needs of the children and lifted her confidence as a mother.
238.	The father in these proceedings, who suffers from mental illness and behavioural disorders, was not a safe relationship for the mother, however she sought out the help that was willingly offered from the paternal grandparents which was a sensible course in her circumstances.  
239.	The mother now appears to have found stability in her life and with her current partner and has worked hard with a psychologist, and subsequently the Brighter Futures program through Organisation FF, to develop her parenting skills and improve her confidence.  Her partner has likewise been involved.
240.	The mother has immaturely criticised the paternal grandparents on social media but ceased doing so approximately three years ago. The mother also failed to understand the risks of introducing children to a new partner who proved to be unsuitable at the beginning of 2013.
241.	The mother however is intelligent and insightful, sensitive to the children’s needs, and importantly, open to the advice and assistance of experts and she has co-operated with the Department to the extent that the time with her older children is now unsupervised on a monthly basis.  This is significant progress which reflects her commitment over a six year period.
242.	I consider the mother has reached a place in her life where she does have the capacity to meet the needs of the children, including the need to maintain a relationship with the paternal grandparents.
243.	The paternal grandparents have taken seriously the need to keep the children safe and stable.  They were supportive and encouraging of the mother, permitting her to be a member of the household for the sake of the children after she had separated from the father.  However since June 2013 competition has entered into the relationship between the mother and the paternal grandmother and I consider that she has not recognised the children’s needs to have the most meaningful relationship with the mother they can, especially in circumstances where the relationship with the father is likely to be always limited.
244.	I conclude that the paternal grandmother wishes to continue with the role of parent and does not wish to relinquish it.  In that regard although she loves them dearly and wishes to keep them safe, she appears to be putting her own needs ahead of the children’s interests.  
245.	Such evidence as there is suggests that they have suffered from separation from the mother.  The source of the emotional distress identified in the assessment report for V is indeterminate.  R’s sometimes aggressive and erratic behaviour may be as a result of autism if that is the ultimate diagnosis.  It could be disrupted attachment.  I am not in a position to make findings about that.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
246.	The children are a girl, almost five, due to start school in 2016, and a boy aged three-and-a-half, presently attending pre-school and having some therapeutic intervention to assist his speech and movement.
247.	There is significant dysfunction on both sides of the children’s families, behavioural disorders and severe mental illness.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
248.	The mother took a responsible attitude to supporting the family when V was a baby.  She worked because the father could not or did not.  If she worked overnight, she left the child in the care of the maternal grandparents at times when the parents were not living with the paternal grandparents.  She was uncomfortable with the father being in charge of the children but saw the obligation to pay the rent as falling on her.
249.	There is no evidence that the mother has hurt or neglected the children, although they have been exposed to domestic violence in their parent’s relationship.
250.	The father is providing child support to the paternal grandmother as his contribution to her caring for the children.  He visits them regularly and that may well be a pattern into the future, due to the limitations of his own mental health.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
251.	There are no family violence orders in place.
252.	The mother and her three oldest children had an order in place for their protection from their father for five years (2009-2014).
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
253.	The mother and her partner both referred to their wish to build a house in II Town and go there to live.  These plans are hopes rather than concrete arrangements.
254.	In my view, the appropriate course would be for the mother to make a fresh application to vary these Orders in the event there was a definite intention to move.  Of course, variation might be negotiated between the parties but if not, the change in circumstances which would necessitate variation, should come back to the court.
255.	There is insufficient information to justify Orders in the alternative depending on where the mother lives. The paternal grandparents and the father were not on notice of a proposed move and in any event there is no definite plan to move.
256.	Accordingly, the Orders are made on the basis of current arrangements.
Conclusion 
257.	I have concluded that the mother has the capacity to meet the children’s needs and to care for them.  She has in recent years achieved the maturity and insight needed to do so.  
258.	There is an important relationship between the subject children and their younger sister and also their three older brothers, presently in care, but regularly seen. There is a vitality and affectionate playfulness for the children in the care of the mother and her partner which will be an ongoing benefit for them growing up.
259.	There is a level of negative focus in the paternal grandmother which causes her to see the problems the children have as a first priority and to embellish those problems. She undervalues the significance of the mother to the children.
260.	Now is the time when the children, at almost five and three-and-a-half years, can make the transition into the mother’s care whilst strongly maintaining their relationship with the paternal grandparents until there is an adjustment back to the paternal grandparents re-taking the role of grandparents, as opposed to the parental role which they have taken on.
261.	I cannot be satisfied that the relationship between the children and the mother will be respected and supported by the paternal grandmother and that the needs for the children to have that relationship with her, her partner, their sister and their brothers, will be acknowledged and respected.
262.	I do not doubt that the paternal grandparents provide a good level of physical and emotional care day-to-day. However, in a finely balanced case the benefit to the children of living with the mother and other family members in her household should prevail.
263.	Accordingly, I make Orders for the children to live with the mother after a period of about two months where they spend time in accordance with current arrangements plus a restoration of the overnight on alternate weekends. There is a sufficiently good relationship between the children and the mother and a familiarity with the mother’s household that should enable the children to make the transition comfortably.  
264.	The parties would benefit from a session of a relationship counselling so that they can improve their communication and make the adjustments necessary for this change for the children but I will not make an Order about that.  It needs to be entered into willingly and not by compulsion.
265.	Orders are made accordingly.

I certify that the preceding two hundred and sixty five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 1 December 2015.

Associate:  

Date:  30 November 2015