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Supreme Court of New South Wales

Re Linda [2011] NSWSC 1596

Categories: Parens Patriae
Tags: , , , , , , , , , , , ,

Judge Name: McCallum J
Hearing Date:
Decision Date:20/12/2011
Independent Children s Lawyer: Independent Children's lawyer (child)
Applicant: Karen Graham
Respondent: John Gerard Carey (second defendant/ respondent father)
Solicitor for the Applicant: Hunter Family Law Centre (plaintiff/applicant)
Counsel for the Applicant: M Graham (plaintiff/applicant)
Solicitor for the Respondent: Rod Powe Lawyers (second defendant/respondent)
Counsel for the Respondent: D Burns and later A Mooney (second defendant/respondent)
Solicitor for the Independent Children s Lawyer: Legal Aid (child)
Counsel for the Independent Children s Lawyer: M Neville (child)
File Number: 2010/415007
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006
Family Law Regulations 1984
Mental Health Act 2007
Cases Cited: Cowley & Mendoza [2010] FamCA 597; (2010) 43 FamLR 435
Director-General, Department of Community Services; re Jules [2008] NSWSC 1193; (2008) 40 FamLR 122
Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483
Re: Georgia and Luke [2008] NSWSC 1277
Wilson v Department of Human Services - re Anna [2010] NSWSC 1489
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Rice & Asplund 6 FAMLR 570
Starr & Duggan [2009] FamCAFC 115
Jurisdiction: Supreme Court of NSW
Parental Responsibility Outcome: Equal Shared Parental Responsibility
Residential Outcome: Equal Residence - 45% to 55% residence with either Parent


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JUDGMENT

1These proceedings concern the care of a child referred to for the purpose of the proceedings as Linda (in accordance with a pseudonym order made by Hidden J on 3 February 2011).

2The proceedings were commenced by Linda’s mother after the Director-General of the Department of Community Services assumed the care responsibility of Linda in exercise of the power under section 44 of the Children and Young Persons (Care and Protection) Act 1998. The principal relief initially sought was to have Linda returned to the mother forthwith. In order to explain the relief ultimately sought in the proceedings, it is necessary to explain the context in which the Director-General’s decision was made and the events that followed it.

Care of Linda prior to the Director-General’s decision

3The plaintiff has an older son from a previous relationship, to whom I will refer as Ashley (not his real name). Ashley was born in February 1996. The plaintiff and Ashley’s father were divorced in early 1997. Ashley lived with the plaintiff from that time until the middle of 2010. Both the mother and Ashley have been diagnosed with ADHD.

4Linda’s biological parents are the plaintiff and the second defendant. They met in January 2003. They became engaged to be married in November 2003 and began to live together in December 2003. It is convenient from this point to refer to them as the mother and the father.

5Linda was born in June 2004 and is now aged 7. In July 2007, when Linda was aged 3, the mother and the father separated after an incident in which the father assaulted both Linda and Ashley. Following the separation, both Linda and Ashley remained living with the mother. The father pleaded guilty to two charges of common assault arising out of that incident.

6In September 2007, the mother made an application for parenting orders in the Family Court seeking an order that Linda live with her and spend time with the father. That application was determined by consent in March 2008. The orders made on that occasion provided for the parties to have shared parental responsibility and for Linda to live with the mother and spend time with the father three days each fortnight.

7In March 2009, the mother commenced proceedings against the father seeking property orders. The father then made an application for a variation of the existing parenting orders. That application was again determined by consent, on 28 September 2010. The orders made by the Family Court on that date provided for Linda to live with the mother and to spend time with the father (providing for slightly more time with the father than under the previous orders).

8 Ashley was not in the care of the mother at the time the second orders were made. In May that year there had been a “critical incident” between Ashley and the mother allegedly involving some violence. He had been in temporary foster care from time to time before then on occasions when the mother had placed him in the temporary care of the Director-General. Following the critical incident in May 2010, Ashley was formally removed from the mother’s care by an order under s 43 of the Children and Young Persons (Care and Protection) Act. Care proceedings were commenced by the Department in relation to him in June 2010.

9 The conflict between Ashley and the mother had evidently prompted concerns as to whether Ashley might become violent towards Linda. The parenting orders in relation to Linda made by consent in the Family Court in September 2010 included an order prohibiting Linda and Ashley staying with the mother at the same time (order 7). That did not impose any practical difficulty at that time, since Ashley was in foster care.

10 On the evening of 7 December 2010 (when Ashley was still in foster care) the mother attended his presentation night at the college at which he was a student. She learned that evening that he had been suspended from the College for a period of time. The Department had not informed her of that event, although it was accepted at the hearing that it should have (T167.31). The mother became concerned as to Ashley’s progress at school and wanted to look through his school workbooks. The foster carer was in a hurry and wanted to leave with the books. The foster carer said to the mother:

No you’re not allowed to [finish looking at the books]. I have my orders from Mary Hamilton. You’ve got to understand that you are no longer the parent, the Department is the parent and you can’t keep this stuff.

11The mother responded:

You’re not the parent, you didn’t go through six days of labour and sit for four weeks in NICU, so you can fuck off.

12 In addition to her concerns about Ashley’s progress, the mother was under other stresses at that time. There was a substantial amount of conflict between her and the father over Linda (the detail of their dealings is addressed further below). Shortly before the settlement of the Family Court proceedings in September 2010, the mother was diagnosed with skin cancer. She had day surgery on 30 November 2010 involving a skin graft from her left arm to her forehead. In early December, the skin graft had become infected, requiring daily visits to the doctor to have dressings changed.

13The morning after Ashley’s presentation night, 8 December 2010, the mother wanted to arrange a meeting with the Department to discuss her concerns as to the care of Ashley, including the fact that she had not been advised by the Department that he had been suspended from school.

14The mother wanted to have a support person present at that meeting. To that end, she called the Maitland Family Support Scheme. However, her usual support worker was not at work that day. She spoke to another worker, Ms Mercer. During that telephone conversation, the mother was extremely upset. She recounted the argument with the foster carer the previous night. In that context, the mother made remarks to Ms Mercer to the effect that she “[didn’t] want to be here anymore” and that she had been thinking of killing herself.

15Ms Mercer then made an appointment with a casework manager of the department, Ms Christine Hills and another employee of the Department, Ms Mary Hamilton. It appears Ms Hills understood that the appointment was made “following disclosures…of potential self-harm”.

16The meeting took place later that morning. Notes of the meeting taken by the Department record the fact that it opened with the mother raising several issues of concern regarding Ashley’s education. However, the details of the issues raised are not recorded in those notes.

17The mother also had concerns about Ashley’s health. She gave evidence that the conversation included the following exchange:

Karen: And when are you going to do something for [Ashley] for his speech problems. I arranged the appointment for him in July and you refused to allow me to take him to it. While this continues on, [Ashley’s] disabilities gets worse.

Chris: We have done something about it and [Ashley] had a speech assessment undertaken in October. However, [Ashley] will not be attending further speech therapy session as he has stated that he would not do the homework given by the therapist.

Karen: Ok, so what is [the foster mother] there for? Is she not supposed to assist the children in care with their homework? If you arrange the appointment I would make sure he does his homework when I have contact with him. It seems to me that you don’t care about his disabilities and when [Ashley] is 18 he will come back to me unemployable and dependent totally on me because these issues are not being addressed now.

18The mother acknowledges that, at some point during the meeting, she made remarks threatening self-harm. According to her evidence, she said words to the following effect:

Karen: I just want you to understand that I don’t think [Ashley] is doing well at school. He’s definitely in trouble academically. I think he’s in trouble academically, medically and mentally.

Chris: You need to understand that we’re the parent now, we make these decisions now. It’s not up to you.

Karen: You people can make people so frustrated enough that they would just drive their car into a tree.

Chris: What do you mean by that?

Karen: I mean what I said. I would just leave my kids and get into my car and drive it into a tree.

Chris: Would you do that?

Karen: No, it’s just that you people can drive someone insane. You need to be held accountable for that.

Chris: Are you going to see a doctor?

Karen: Yes, I did today and I’m going tomorrow. I have seen the doctor each day since I had the surgery on 30 November.

19According to the notes kept by the Department, the conversation included the following exchange:

Chris said: So, you’ve said to Sally that you are feeling stressed.

Karen said: Yes, I’m over it. How much can a person take? I’ve just had enough I’ve just had a shit three days with John stuffing me around about Christmas drop off and pick ups for [Linda]. I told my solicitor to fuck off. I told him that John can have [Linda] because he just won’t fuck off and I can’t take it anymore. He lives in a one bedroom unit with three people there. I can’t take any more pressure. How much is one person supposed to put up with?

Sally said: Remember what you said to me this morning Karen and how you told me you lost it last night.

Karen said: Yes.

Sally said: And remember what you said to [Ashley], that when he said goodbye to you and said “I’ll see you later” you said back to him “if you are lucky. I’m not going to be around much longer. I’ve had enough”. Do you remember that? Is that what you said to me?

Karen said: Yes.

Mary said: Was [Linda] with you when you said this?

Karen said: No.

Mary said: Where was she?

Karen said: In the car.

Sally said: And do you remember what you said you meant by that?

Karen said: Yes, I don’t want to be here anymore.

Sally said: When you said that, did you mean you want to commit suicide?

Karen said: Yes.

Sally said: Do you remember I asked you if you had a plan about how you would do it?

Karen said: Yes I was going to run my car into a tree.

Sally said: Have you been thinking about doing this?

Karen said: Yes. I can’t take it anymore.

Mary said: Would you drive with [Linda] in the car?

Karen said: No. I’m not supposed to drive at all at the moment because of the skin graft.

Chris said: Do you feel you need to go to Maitland Hospital for an assessment?

Karen said: No.

Sally said: I can go with you if you want.

Karen said: No. There’s no use going up there. No one gives a shit about me or my kids anyway. I’m not going up there. I’m fine.

Director-General’s decision to assume care responsibility of Linda

20In light of the remarks made by the mother during the meeting indicating thoughts of self-harm, Ms Hills (as delegate of the Director-General) decided to exercise the power under s 44 of the Children and Young Persons (Care and Protection) Act to assume the care responsibility of Linda. Linda was collected from her school by employees of the Director-General without prior notice to the mother.

21When the mother attended school to collect Linda and was served with the s 44 notice, she reacted angrily. She ripped up the notice and attempted to obstruct the caseworkers from leaving with her daughter. Her response to those events resulted in police being called. The mother was told that she was under arrest for breaching the peace. In due course, after discussing the situation with Ms Hills, police conveyed the mother to hospital for assessment under the Mental Health Act 2007.

22The Director-General submitted that the behaviour of the mother on 7 and 8 December was “thoughtless”. That is a surprising characterisation, in my view. It may be accepted that the mother was angry and frustrated but she was also evidently struggling to cope with the many stresses she faced at that time. Her reaction to having Linda removed from her care without notice after she raised her concerns regarding Ashley is understandable, in my view. Thoughtlessness is scarcely the issue in such circumstances.

23The request for an assessment under the Mental Health Act was completed by a police officer and is recorded in the following terms:

Patient is going through issues with DOCS re her six year old daughter – on the morning of 8/12/10 was interviewed by DOCS – stated to DOCS she had nothing to live for and would drive her car into a tree. DOCS removed her six year old at East Maitland Primary. Patient caused a scene. Later, after child was taken she stated to Police that she would kill herself. Again she used her car as the instrument she would use. Also walked towards service station stating she would get fuel and torch her car and herself.

24The mother was assessed by a psychiatrist that evening, who concluded:

I, the undersigned, a registered medical practitioner, on 8/12/10 personally examined Karen Graham. In my opinion Karen Graham is not a mentally ill or mentally disordered person. The basis for my opinion is as follows: Not suicidal, not psychotic, not under influence of drugs/ETOH.

25The Director-General nonetheless remained of the view that Linda was at risk of serious harm. She was placed into the care of the father from that date.

Commencement of two sets of proceedings on 13 December 2011

26As at 8 December 2011 (the day on which the Director-General assumed care responsibility of Linda), section 45 of the Children and Young Persons (Care and Protection) Act imposed a time limit of 72 hours for the commencement of any care proceedings in the Children’s Court. The full terms of section 45(1) were as follows:

45 Application to Children’s Court for care order

(1) If a child or young person is removed from premises or a place under a power of removal conferred by or under this Act or the care responsibility of a child or young person is assumed by an order under section 44, the Director-General must, no later than 72 hours after the removal or assumption of care responsibility, make a care application in the Children’s Court for one or more of the following care orders in respect of the child or young person:

(a) an emergency care and protection order,

(b) an assessment order (within the meaning of Division 6 of this Part),

(c) any other care order.

27Section 45 has since been amended so as to express the time limit in “working days” rather than hours. Section 45(1)(A) now provides:

(1A) The care application must be made within 3 working days after the day (the “relevant day”) on which the removal or assumption of care responsibility occurs. If this would permit the care application to be made more than 5 days after the relevant day, the application must instead be made no later than on the fifth day after the relevant day or (if the fifth day is not a working day) no later than the first working day after that fifth day. A “working day” is any day that is not a Saturday, Sunday or public holiday.

28The day on which the Director-General assumed care responsibility of Linda was a Wednesday. Accordingly, the 72-hour period expired on Saturday, 11 December 2010 (unless, on the proper construction of the section, Saturdays and Sundays are to be excluded in that calculation).

29On Monday, 13 December 2010, a written demand for the return of the child not having been met, the mother commenced these proceedings. The summons sought a declaration that the Director-General’s assessment for the purpose of the removal of Linda under s 44 entailed jurisdictional error; a declaration that the Director-General acted ultra vires s 45 of the Act by failing to return Linda within 72 hours (that is, by 3.00 pm on Saturday, 11 December 2011) and an order directing the Director-General to return Linda to the mother forthwith. The summons was made returnable on 3 February 2011.

30However, also on 13 December 2010, the Director-General made a care application in the Children’s Court. The mother contended that her proceedings were commenced first in time but I do not think that was conclusively established on the evidence.

31The care application was made returnable on 14 December 2010. On that date, the Court made an interim order placing Linda under the parental responsibility of the Minister until further order. The matter was then adjourned to 20 January 2011 for hearing of the question of “establishment”. That is not a term that appears in the Children and Young Persons (Care and Protection) Act 1998. However, it appears to be the term commonly used in proceedings in the Children’s Court to describe the determination required to be made under s 71(1) of the Act before a care order may be made by that Court. The establishment hearing was subsequently postponed twice, ultimately being determined on 10 February 2011.

32The orders made in the Children’s Court allocating parental responsibility to the Minister until further order meant that the relief initially sought by the mother in these proceedings (which was directed only to the decision of the Director-General to assume care responsibility for Linda) was arguably redundant. When the proceedings came before the Court on 3 February 2011, the mother was granted leave to file an amended summons in Court.

33The relief sought in the amended summons challenged the interim orders of the Children’s Court allocating parental responsibility to the Minister on the grounds of jurisdictional error. That issue could not be determined that day because there was no transcript of the Magistrate’s reasons. Hidden J (sitting as duty judge) stood the proceedings over to 14 February 2011.

34In the meantime, on 21 December 2010 final orders were made placing Ashley under the parental responsibility of the Minister until he attained the age of 18.

35On 10 February 2011, the question of “establishment” in relation to Linda was heard in the Children’s Court. The magistrate purported to determine that issue in favour of the Director-General and adjourned the proceedings for consideration of a care plan. It will be necessary to return to the detail of that hearing.

36On 14 February 2011, the present proceedings came before Schmidt J as duty judge. At that stage, the mother was representing herself. Her Honour noted that the matter did not appear to be ready for hearing and made directions for the service of further evidence. The proceedings were stood over to 24 February 2011.

37On 17 February the mother filed a further amended summons challenging the establishment determination of 10 February 2011 on the grounds of jurisdictional error.

38On 24 February 2011 the present proceedings came before me as duty judge. The parties had different expectations as to what was to be heard that day. The mother submitted that the power of the Children’s Court was not properly engaged, since the Director-General had not brought her application within 72 hours of assuming care responsibility of Linda, as required by s 45 of the Act as it then stood. The Director-General submitted that, prior to determining any substantive issue in the proceedings, a threshold issue arose as to whether this Court should exercise its jurisdiction at all.

39The position was further complicated by the fact that, three days before the hearing before me, Ashley left his foster care placement and returned to live with the mother. In light of the fact that the Director-General then had parental responsibility of Ashley, the mother took him to a police station and was told to take him to the Department the following morning, which she did. At that time, she says she was told that the Department did not propose to take steps to remove Ashley from her care. As already noted, the orders of the Family Court then in force prohibited the mother from having Linda when Ashley was with her.

40The basis for the Director-General’s submission as to this Court’s jurisdiction was a line of authority to the effect that, where proceedings are on foot in the Children’s Court in respect of the care of a child, this Court should not exercise its parens patriaejurisdiction so as to affect the decisions of that Court other than in exceptional circumstances. I reviewed some of the relevant authorities in Re: Georgia and Luke [2008] NSWSC 1277; (2008) 40 FamLR 122 at [31] – [35] as follows:

“31 There is, however, a substantial body of authority for the proposition that this Court should not exercise its wardship jurisdiction so as to affect the decision of a Magistrate in the Children’s Court except in the most extraordinary circumstances. In Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157, Palmer J expressed the view at [31] that it would be ‘highly inappropriate for appeals from decisions of Magistrates in the Children’s Court to be made as a matter of course to this Court under the guise of invoking the wardship jurisdiction’. His Honour stated that a party dissatisfied with a decision of the Children’s Court after a contest should appeal to the District Court under s 91 of the Act; see also at [36] to [40].

32 In the present case, the Children’s Court made final orders in respect of Georgia on 2 September 2008. Those orders placed Georgia under the parental responsibility of the Minister until 1 March 2009. Accordingly, in respect of Georgia, there is a right of appeal under s 91 of the Act against that order. It appears, however, that the parents’ primary grievance is not with the decision placing Georgia under the parental responsibility of the Minister, since Georgia remained in their care after that order was made, but with the subsequent removal decision following the alleged failure of the parents to meet the Department’s requirements under the care plan.

33 In respect of Luke, no final order has been made and accordingly there is no right of appeal under s 91. However, the remarks of Palmer J apply with equal (perhaps greater) force to the circumstance where final orders have not yet been made. In my view, this Court should not exercise its wardship jurisdiction in such a way as to interfere with interim orders of the Children’s Court unless there are extraordinary circumstances.

34 Re Victoria was cited with approval in Re Liam [2005] NSWSC 75 where McDougall J at [27] emphasised the need to establish some justification for interfering with a discretionary decision made within jurisdiction by another judicial officer, citing the remarks of Hodgson CJ in Eq in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20-22].

35 Re Victoria has also been followed in DOCS v Priestley [2004] NSWSC 639 per Young CJ in Eq at [5]; Re Frances and Benny [2005] NSWSC 1207 per Young CJ in Eq at [18]; Re Barbara [2006] NSWSC 536 per White J at [17]; Re Elizabeth [2007] NSWSC 729 per Palmer J at [17] and most recently in Re Alan [2008] NSWSC 379 per Gzell J at [13].”

41After hearing argument on those issues, I adjourned the proceedings to 28 February 2011 in order to consider the mother’s submissions by reference to the transcript of proceedings before the Children’s Court, which had become available. Upon considering that material, it appeared to me that the care application was proceeding on an erroneous premise and that the jurisdiction to make a care order had not yet been enlivened.

42Section 71(1) of the Children and Young Persons (Care and Protection) Act 1998 provides:

“71 Grounds for care orders

(1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:

(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,

(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,

(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d) subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,

(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,

(h) section 171 (1) applies in respect of the child or young person,

(i) in the case where the application for the order is made by filing a contract breach notice-any presumption arising from the operation of section 38E (4) that the child or young person is in need of care and protection has not been rebutted.”

43The section plainly directs attention to the position at the time the Court is considering that issue. There is an alternative source of power in section 72, which permits the Children’s Court to make a care order if satisfied that the child was in need of care and protection when the circumstances that gave rise to the care application occurred and would be in need of care and protection (at the time of the hearing) but for the existence of arrangements for the care and protection of the child made by force of orders under the Act. However, the Magistrate did not turn his mind to section 72 in this case.

44The test applied by the Magistrate in determining that the Children’s Court could make a care order in respect of Linda was whether she was in need of care and protection at the time the application was filed (on 8 December 2010). His Honour said:

The question for me is whether at the time the application was filed that the child was in need of care and protection, the context in which that is being put to me is that these threats were being made. One has to look as to the Department’s point of view, whether they needed to intervene at that stage. You have got to look at the whole history of this matter not just the fact that there was a fight the night before and then the threat being made but one has to go back into previous issues where there are numerous reports of the mother being in agitated states, for instance in February 2008. This by itself doesn’t – or definitive but you’ve got to put the threats that were made on 8 December in the context of these previous threats. Report indicates that the mother was hysterical and screaming. Report indicates the mother stated that she felt that she could kill Elizabeth. Report indicates that Elizabeth bit her mother, the mother responded by biting her back. There are a number of instances in the previous reports where the Department would have had concerns about her general mental state over a period of time. There was nothing ever, any one particular point in time, where they were heightened, those threats, to a degree where it would ground an application but certainly on this date, there were specific threats made about self harm and those threats had to be taken seriously in the context of the way they were said to these people and also, as I say, in the context of the previous assertions she had made about harm in the past and her previous mental health problems.

I am satisfied on the material before me that certainly there was areal risk to this child on the particular day if the mother would carry out that. There was nothing the Department knew whether she would carry out these events or not. They had to assume, in fact, that she would, for the sake of the child and I am more than satisfied that the child was in need of care and protection as at the date of the application being filed.

45In my view, it is clear from the language of the section that the Children’s Court has no power to make a care order unless it first reaches a state of satisfaction in accordance with the section that the child “is in need of care and protection”. Accordingly, before ruling as to whether I should decline to exercise the jurisdiction of this Court on the strength of the line of authority referred to above, I invited the Director-General to make further submissions as to the power of the Children’s Court to proceed to make a care order in the circumstances.

46After considering the matter further, the Director-General conceded that the determination of the Magistrate in the Children’s Court on 10 February 2011 entailed error in that the Magistrate applied the wrong test. In that context, my attention was drawn to the decision of Palmer J in Wilson v Department of Human Services – re Anna [2010] NSWSC 1489 in which his Honour held at [99] that exceptional circumstances warranting the intervention of this Court notwithstanding the existence of care proceedings in the Children’s Court were demonstrated where it appeared that the Magistrate in the Children’s Court had erred in precluding the mother from contesting that there was an acknowledged need for a care order at the time of the child’s birth. Palmer J stated:

Harm to Anna if this Court did not intervene quickly appeared from the fact that a District Court appeal would inevitably take some time and that in the meantime the relationship between Anna and Ms Wilson might be irretrievably damaged by severance of the maternal bond.

47Mr Moore, who appeared for the Director-General, nonetheless submitted that this Court should decline to exercise jurisdiction in respect of the mother’s proceedings commenced in this Court, but should rather allow the proceedings in the Children’s Court to run their course, whilst identifying the need for that Court to make a determination in accordance with s 71 of the Children and Young Persons (Care and Protection) Act.

48The mother submitted that exceptional circumstances existed because the course of the proceedings demonstrated that the Director-General was not fulfilling the objects of the Children and Young Persons (Care and Protection) Act (set out in s 8 of the Act). In particular, she relied upon the Director’s decision to place Linda with the father, who has previously assaulted Linda; the Department’s failure to take into account the mother’s disability (her ADHD) when assessing her conduct on 8 December 2010 and the alleged failure of the Department to respond to her earlier requests for assistance before that critical event.

49The mother also relied upon the complication created by Ashley’s decision to return to live with her and the Department’s evident tolerance of that position. She submitted that this Court would have power to suspend order 7 of the Family Court orders made in September 2010 (which prohibited Ashley and Linda from living under the one roof).

50In that context, the mother relied on the decision of Brereton J in Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36. That case was concerned with an application under cross vesting legislation to have proceedings in the Equity Division of the Supreme Court transferred to the Family Court. His Honour was satisfied that the Family Court had accrued jurisdiction to determine so much of the controversy between the parties as did not fall within its statutory jurisdiction and said (at [59]):

While there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one court.

51The mother submitted by parity of reasoning that the proceedings in this Court should continue, since it has jurisdiction to resolve the whole justiciable controversy.

52Upon further consideration of those complexities, the Director-General subsequently withdrew her objection to the determination of the mother’s claim in this Court. Mr Moore noted the following peculiar legal difficulties attending the matter of Linda’s care. First, he recorded his client’s view that, as events had transpired, the issues to be determined were more in the nature of family law issues than care and protection issues. He noted that, if the proceedings were to continue in the Children’s Court, any care order made under the Children and Young Persons (Care and Protection) Act would prevail over the jurisdiction under the Family Law Act 1975 (Cth) by reason of the application of s 69ZK of that Act.

53Mr Moore further noted, however, that, if the proceedings in the Children’s Court were to continue, each party (including the Director-General) would have a right of appeal to the District Court under s 91 of the Children and Young Persons (Care and Protection) Act , such appeal being by way of a new hearing at which fresh evidence may be given.

54Mr Moore noted that any order of this Court in exercise of its parens patriae jurisdiction would not prevail over the jurisdiction under theFamily Law Act , since s 69ZK of the Family Law Act applies only to a child who is under the care of a person under “a child welfare law”. That term is defined in s 4 of the Family Law Act to mean a law of a state or territory prescribed for the purposes of that definition. The laws so prescribed (in Schedule 5 to the Family Law Regulations 1984) do not include this Court’s inherent parens patriae jurisdiction. It follows that, if I had exercised parens patriae jurisdiction, the parties could nonetheless have returned to the Family Court to seek further orders and the jurisdiction of that Court would have been unaffected by the orders of this Court.

55Finally, Mr Moore noted that this Court may exercise jurisdiction under the Family Law Act . He referred me to the decision of Brereton J in Director-General, Department of Community Services; re Jules [2008] NSWSC 1193. In that case, his Honour observed that, as a result of the jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth), this Court now enjoys all the jurisdiction of the Family Court of Australia, including its powers in relation to children (at [8]).

56Having regard to all of those complexities, the Director-General, whilst not opposing the continuation of the proceedings in the Children’s Court, did not oppose the matter being determined in this Court in exercise of the Court’s cross-vested jurisdiction under the Family Law Act.

57I was satisfied (and the Director-General acknowledged) that the Children’s Court was proceeding on the strength of a decision that entailed an error of law. I was further satisfied that, by reason of that error, the power of the Children’s Court to make a care order had not been established. That power arises only if the Court is satisfied in the terms of s 71(1) of the Children and Young Persons (Care and Protection) Act . No finding in the terms of that section had been made, but the proceedings had been listed for consideration of a care plan to be put forward by the Director-General as if it had already been determined that the Court was so satisfied. I was persuaded in all the circumstances that the establishment hearing miscarried and that the order made on 10 February 2011 should be set aside. None of the earlier interim orders was or could fairly be treated as providing a proper basis for proceeding to consider a care plan.

58I was further satisfied that exceptional circumstances were demonstrated such as to warrant the continuation of the proceedings in this Court. Until the incident of 8 December 2010, Linda’s care was governed by the orders entered by consent in the Family Court just over two months earlier. Those orders provided for Linda to live with the mother and spend time with the father. Linda had lived with the mother since her birth. I was satisfied that the continuation of a regime which saw Linda almost completely removed from that care involved the risk of severance of the maternal bond.

59I also took into account the peculiar legal complexities in the case and the desirability of having the whole of the justiciable controversy between the parties resolved in one court. I was persuaded by the submissions of the parties that it would be in Linda’s best interests to have all issues of her care determined in a single proceeding in this Court subject to a single right of appeal.

60At the time of that determination, Linda was the subject of a care order made by the Children’s Court, namely, the interim order made on 10 February 2011 placing her under the parental responsibility of the Minister until further order. In order to avoid tension between that order and any parenting order that might be made by me under the Family Law Act , a delegate of the Minister gave consent on the Minister’s behalf pursuant to s 69ZK to this Court’s exercising jurisdiction under the Family Law Act in relation to Linda.

61On 18 March 2011, I made interim orders by consent for the mother to spend time with Linda. Further interim orders were subsequently made, most recently on 18 May 2011.

62On 26 May 2011, an order was made in the Children’s Court placing Ashley under the parental responsibility of the mother, subject to the supervision of the Director-General for 12 months.

Relief sought under the Family Law Act

63The relief sought by the mother was then recast by reference to the Court’s jurisdiction under the Family Law Act (the orders sought were set out in a case summary document filed on behalf of the mother on 12 May 2011). Separately, the Director-General set out the final orders sought by her in a notice of motion filed on 1 April 2011 and the father set out the final orders sought by him in a notice of motion filed on 15 April 2011.

64The final parenting orders sought by the mother provided for Linda to live with the mother and to spend time with the father. During the hearing of the proceedings, however, it was indicated by Mr Graham of counsel on behalf of the mother that she would consent to orders providing for Linda to spend equal time with the mother and the father.

Appropriateness of re-opening issues determined by the earlier parenting orders

65The parties noted the decision of the Full Court of the Family Court in the marriage of Rice & Asplund 6 FamLR 570, which holds that a court should not lightly entertain an application to reverse an earlier custody order in the absence of some changed circumstance.

66As already noted, parenting orders were made in respect of Linda by consent as recently as September 2010. However, the mother, the father and the Director-General all submitted that those orders should be set aside. In my view, the removal of the child from the mother and the Director-General’s decision to allow her to live with the father clearly constitute changed circumstances such as to warrant entertaining the applications now before the Court.

Parenting orders – principles

67The applications are to be determined in accordance with Part VII of the Family Law Act . Those provisions were amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, which came into force on 1 July 2006.

68The effect of the amendments was considered by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) FLC 93-286. The Court summarised the effect of the amendments as follows (at [65] per Bryant CJ, Finn and Boland JJ):

[65]. In summary, the amendments to Part VII have the following effect:

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).

3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

6. The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends and holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in

s 60CC.

10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

11. The child’s best interests remain the overriding consideration.

69The power to make parenting orders is contained in s 65D(1) of the Act, which provides:

65D Court’s power to make parenting order

(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

70The Independent Children’s Lawyer drew the Court’s attention to the decision of Murphy J in Cowley & Mendoza [2010] FamCA 597; (2010) 43 FamLR 435 at [41] as a helpful starting point. That decision analyses the principles to be applied in determining applications for parenting orders with admirable clarity and felicity of expression and I have found it very helpful (especially at [17] to [25]).

71It was submitted on behalf of the mother that there is no requirement when determining applications for parenting orders to consider the relevant provisions of Part VII in any particular order, citing Starr & Duggan [2009] FamCAFC 115 at [38] per Boland, Thackray and Watts JJ.

72However, as explained by Murphy J in Cowley & Mendoza , the proper approach will be informed in many cases by the need to have regard to the mandatory considerations in s 65DAA(1) and (2). Those sub-sections provide:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) Subject to subsection (6), if:

(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

73In MRR v GR [2010] HCA 4; (2010) 240 CLR 461 at [13], the High Court explained that consideration may only be given (under s 65DAA(1)(c)) to the making of an order that equal time be spent with each parent where each of the earlier questions (in s 65DAA(1)(a) and (b)) is answered in the affirmative. Having regard to that analysis, and mindful also of the decision in Goode v Goode , Murphy J concluded in Cowley & Mendoza (at [41]) that a court contemplating the making of parenting orders is required to:

· First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;

· Next, make findings as to whether any “family violence” or “abuse”, as each is define d, exists;

· Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;

· Determine, accordingly, whether the pr esumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;

· If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

· If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:

o Make findings as to whether the subject children’s best interests are best met by an order for equal time; and

o Make findings as to the matters prescribed in s 65DAA(5), and, as a result;

o Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and

o If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DA A(3)) should be made;

· If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65A A).

74In my view, that is a logical approach and the proper approach in the present case.

75As noted by Mr Moore on behalf of the Director-General, whilst the Court must consider the proposals put forward by the parties, the Court is not bound by those proposals: Goode v Goode at [47]. Subject to the rules of procedural fairness, it is open to the Court to make orders that were not sought by any party. Indeed, as explained by Murphy J in Cowley & Mendoza at [34], there is an obligation to formulate orders that are considered best to meet the best interests of the child. His Honour noted that section 65DAA endorses the existence of such an obligation, requiring the Court to consider the matters listed in the section independently of the proposals of the parties in circumstances where there is to be an order for the parties to have equal shared parental responsibility.

Presumption of equal shared parental responsibility

76It was common ground at the conclusion of the hearing that the presumption of equal shared responsibility does not apply in the present case by reason of the common assault charges against the father in respect of Linda and Ashley, to which he pleaded guilty (see T315.35 to 316.15). The father did not seek to be heard as to whether the assaults amounted to “family violence” within the meaning of that expression as defined in s 4 of the Act.

77I am satisfied that, by reason of the application of s 61DA(2) of the Act, the presumption of equal shared responsibility does not apply. As already explained, it is nonetheless appropriate to consider, by reference to the mandatory considerations in s 60CC(2) and (3), whether such an order should be made.

Conclusion as to whether an order for equal shared parental responsibility should be made in any event

78The mother sought an order for equal shared parental responsibility requiring each parent to consult the other regarding any long term issues concerning the child, including but not limited to religion, education and health. The order sought by the mother further provided that, in the event that the parties are unable to agree on matters concerning the long term issues, they attend upon mediation prior to commencing proceedings in any court.

79The father sought an order that he and the mother have parental responsibility for Linda shared equally with Director-General (order 2 in the notice of motion filed 15 April 2011). However, the Director-General did not join in that application and does not consent to being allocated shared parental responsibility. In that circumstance, I do not think parental responsibility for Linda should be shared with the Director-General.

80The Director-General initially proposed that the parents have equal shared parental responsibility (case information document dated 13 May 2011).

81The Independent Children’s Lawyer put forward his proposal at the conclusion of the hearing. As to parental responsibility, he proposed that the father have sole parental responsibility for Linda subject to a number of specific exceptions. The father and the Director-General then adopted that proposal.

82As already noted, the father’s initial proposal was for equal shared parental responsibility between him, the mother and the Director-General. When cross-examined by Mr Graham on behalf of the mother as to what he would propose if the Director-General did not wish to share that responsibility, he said “then the arrangement has to be 50/50 between the mother and myself” (T138.37). I consider that to be a fairer and more compelling assessment of Linda’s best interests than the position the father adopted at the conclusion of the hearing, when he joined in the proposal put forward by the Independent Children’s Lawyer.

83The reasons put forward by the Independent Children’s Lawyer for proposing an order that the father have sole parental responsibility were: first, the contention that there is a high degree of conflict between the parents; secondly, the poor communication between them and, thirdly, the proposition that Linda is a child who would benefit from stability in her life which, in the submission of the Independent Children’s Lawyer, the father is better placed to offer.

84For the reasons discussed in further detail below, my consideration of the evidence and the mandatory conditions in s 60CC satisfied me that an order that the mother and the father have equal shared parental responsibility is in the best interests of Linda and should be made.

Mandatory considerations under s 65DAA

85In light of that conclusion it was necessary to consider the matters in s 65DAA. I was satisfied that spending equal time with each of the parents would be in Linda’s best interests. I was further satisfied that, on a practical assessment, equal time parenting is feasible having regard to the matters set out in s 65DAA(5).

86Taking Linda’s best interests as the paramount consideration, I determined to make orders including provision for Linda to spend equal time with each of the parents.

87My findings and reasons in support of those conclusions and determinations are explained further below.

Primary considerations

88In determining what is in the child’s best interests, the Court must consider the primary considerations set out in s 60CC(2) and the additional considerations set out in s 60CC(3). The primary considerations have “particular importance” but are nonetheless to be considered in conjunction with the additional considerations: see Cowley & Mendoza at [18].

89The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

90As to s 60CC(2)(a), the Full Court of the Family Court has stated that the preferred interpretation of “benefit to a child of having a meaningful relationship” in s 60CC(2)(a) is “the prospective approach”, which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child and determine how, if it is in a child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents: McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483 at [117-119].

91I do not have any doubt that a meaningful or significant relationship with both parents is going to be of advantage to Linda. The Independent Children’s Lawyer submitted, and I accept, that the evidence supported a finding that Linda has a strong and close relationship with each of her parents and that there is real benefit offered to Linda in having a meaningful relationship with each parent. There was ample evidence in the hearing to support that conclusion.

92The proposal put forward by the Independent Children’s Lawyer included spending time arrangements providing for Linda to spend ten days a fortnight with the father and four days a fortnight with the mother. It was submitted that those arrangements offered Linda the opportunity to continue the development of her relationship with each of her parents by providing that adequate time be spent with each of them.

93As to s 60CC(2)(b), the Independent Children’s Lawyer indicated that, notwithstanding the admitted assaults committed by the father, it was not submitted that family violence would disturb the presumption of equal shared parental responsibility. However, as already noted, I understood it to be common ground at the conclusion of the hearing that the Court would accept that the presumption did not apply by reason of those assaults.

94Whilst the mother retains concerns as to the impact on Linda and Ashley of the father’s assaults, she submitted in support of her application for equal shared parental responsibility that the child is not at risk of emotional, psychological or physical harm from either of the parents.

95Separately, the Independent Children’s Lawyer raised a concern as to Ashley’s history of emotional and behavioural issues.

96Ms Neville, who appeared for the Independent Children’s Lawyer, noted the contents of a psychological report prepared by Dr Lee Sturgeon dated 11 May 2011, who expressed the opinion that there had been a reduction in the conflict between Ashley and the mother since his return to her care but that some of those positive changes may have been part of a “honeymoon” period. In those circumstances, the Independent Children’s Lawyer sought an order restraining the mother from leaving Linda in the sole care of Ashley.

97By the time of the hearing, parental responsibility for Ashley had been restored to the mother and there had been times when the mother, Linda and Ashley had unsupervised time under the one roof in accordance with the orders of the Court made by consent on 18 May 2011. Those arrangements, however, were of relative recency.

98I also note that in early 2010 when the mother was experiencing difficulties with Ashley, she was concerned that he may harm Linda. The complex history of their difficulties and the involvement of the Director-General in Ashley’s care was recited at length in both the mother’s affidavit and the affidavit of Ms Hills and I have considered that material.

99I am satisfied that the restraining order sought by the Independent Children’s Lawyer is appropriate.

100It was submitted on behalf of the father that the Court would find that the mother continues to make unsubstantiated allegations against the father and that those allegations present an unacceptable risk of emotional abuse to Linda. It was further submitted that the making of such allegations constitutes an unacceptable risk indirectly by way of their impact upon the father. I do not think that the evidence sustained that submission and I reject it. It may be noted that the submission was to some extent inconsistent with the evidence of the father, who frankly acknowledged that he had no concerns about the mother’s capacity to care for Linda (T120 to T123.28 especially at T123.24).

101Finally, it is necessary to refer to the evidence of Dr Brent Waters, a child and family psychiatrist appointed by the Court as a single expert. Dr Waters had prepared an earlier report dated 6 August 2010 in anticipation of the earlier Family Court proceedings, which were ultimately determined by consent. On the application of the Independent Children’s Lawyer, Dr Waters was requested to provide a further report to this Court. The proceedings were stood over part-heard to enable that to occur. Both reports were admitted into evidence and Dr Waters was cross examined at the hearing before me.

102As to the benefit of having a meaningful relationship with both her parents, Dr Waters expressed the opinion that, in general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future and that those principles applied in the present case.

103As to the need to protect Linda from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, the principal issue addressed by Dr Waters was the relationship between Linda and Ashley. Dr Waters recorded his observation that, although Ashley is “a somewhat impulsive and driven child”, he is also very affectionate and caring with Linda and perhaps even more patient with her than he is with other people. Dr Waters shared Dr Sturgeon’s view that the improved relationship between Ashley and the mother “could still be a honeymoon” but he added that Ashley impressed him as being somewhat more mature than when he last saw him. Dr Waters recommended orders that Linda not be left unattended with Ashley. As I have already indicated, I accept that an order in the terms sought by the Independent Children’s Lawyer on that issue should be made.

104Separately, Dr Waters considered the father’s vulnerability to depression, which was addressed at length in the mother’s case. Dr Waters expressed the opinion that it would not be surprising if the father was vulnerable to depression in light of his personality, he being “quite a rigid, inflexible and uncompromising person”. Dr Waters noted that such people do not cope well with stress and can be inclined to aggressive outbursts associated with impatience. That is an important consideration.

105I consider that the benefit to Linda of having a meaningful relationship with both of her parents points in favour of their participating equally in her parenting and having equal time with her. Subject to addressing the concerns over Ashley in the way I have indicated, I do not think that any different order needs to be framed in order to protect Linda from any risk of being exposed to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

Additional considerations

106My consideration of the additional matters set out in s 60CC(3) sustained the conclusion that a parenting order for equal shared parental responsibility on the parents and orders for Linda to spend equal time with each of the parents would be in her best interests.

Views expressed by Linda

107As to any views expressed by Linda, the father frankly acknowledged that, since being placed in his care after 8 December 2010, Linda had been missing her mother (T130).

108The Independent Children’s Lawyer did not put on any material directed to that issue.

109Dr Waters canvassed Linda’s views in detail and concluded that she was trying not to be drawn into expressing a strong preference one way or the other. She designated a preference for 20 days with the mother and 19 with the father, which Dr Waters took as a subtle indicator that if she was forced to make a choice, she would probably favour her mother.

110I consider it likely that Linda’s preference would be to have equal time with each parent, if not more time with the mother.

Linda’s relationship with the parents and others

111As to the nature of Linda’s relationship with each of her parents and other persons, I accept as submitted on behalf of the Independent Children’s Lawyer that Linda enjoys a close and strong relationship with each parent. That conclusion is supported by the opinions expressed by Dr Waters and to some extent by the evidence of both parents.

112Dr Waters expressed the opinion that “[Linda’s] undoubted separation anxiety and wish for reunion with her mother should not be the overriding issue, but that it needs to be balanced against child protection issues as well”.

113That opinion was based on the apparent strength of the relationship between Linda and her father and the material Dr Waters drew from the affidavit of Ms Cheree O’Neill (the Principal at Linda’s school) together with the events of 8 December 2010. In so far as the opinion was based on what Ms O’Neill said, it must be assessed with caution, in my view.

114In my view, the cross examination of Ms O’Neill by Mr Graham of counsel on behalf of the mother established that Ms O’Neill had had little opportunity to make some of the observations she expressed. I also think that her evidence was to some extent coloured by her own dealings with the mother, which she has found trying. I have taken that into account in my assessment of Dr Waters’ opinions expressed on the strength of that material.

115In my view, the evidence supports the conclusion that Linda has important and rewarding relationships with each of her parents. In reaching that conclusion, I have not overlooked the body of evidence as to observations made by some of the witnesses concerning the mother’s relationship with Linda, some of which are referred to above.

116In my view, many of the concerns about the mother recorded in the evidence must be viewed in the context that, in her dealings with other adults, the mother is robust and at times confrontational. Her behaviour is no doubt contributed to by her diagnosed condition of ADHD. In my assessment, some of the criticism of her as a mother has been coloured by considerations that are of marginal relevance to a true assessment of her importance to Linda. The overriding consideration is Linda’s best interests. It is important in that context not to be distracted inadvertently by consideration of the reactions of people other than Linda to her mother.

117During the course of the proceedings, I had many direct exchanges with the mother when she was representing herself. In my assessment she is articulate, intelligent and above all passionately devoted to the care of her two children. I have no doubt that her focus on her children must at times have made her extremely difficult for other people to deal with. Importantly, however, no one questions her importance to Linda.

118In that context, whilst I can understand the decision of the Director-General to assume care responsibility in the acute circumstance of the mother’s having made reference to thoughts of self-harm, it is regrettable that the decision set in train the present juggernaut of further litigation. Interestingly, Ms Hills was evidently of the understanding that, once the order for removal had been issued, the Director-General was compelled to leave the matter for the Court’s determination (T177.1). It is difficult to reconcile that view with the terms of the legislation. In my view, it would be perfectly open to the Director-General, having obtained further information after assuming care responsibility for a child, to revisit the issue of risk of harm and inform the Court accordingly. The pursuit of care orders is not compulsory.

119Accepting that clarity comes with hindsight, the Director-General might have seen fit, in response to the acute stresses on the mother late last year, to install intensive support for the mother whilst inviting her to consent to be assessed under s 54 of the Children and Young Persons (Care and Protection) Act before moving unequivocally and uncompromisingly towards a care application with interim orders almost completely terminating Linda’s time with the mother for several months.

120Linda’s relationship with the father is different and probably of equal importance to her. On the one hand, I accept that he is able to offer Linda stability, which is important. In her affidavit, the Principal of Linda’s school, Ms O’Neill, set out her observations of Linda with each of her parents. She described, with implicit criticism, her observation that the mother and Linda’s interactions were child-like and that there were exaggerated displays of affection between them such as long, clingy cuddles.

121Ms O’Neill also described at great length her own interaction with each of the parents. Her interactions with the mother were evidently fraught, whilst she finds the father polite and easy to deal with. Care must be taken in the consideration of that evidence. Whilst I would accept that Ms O’Neill and indeed other adult witnesses in the proceedings prefer the father’s approach and find him easier to deal with, those considerations are not synonymous with Linda’s best interests.

122There is some basis for concern as to some aspects of the evidence concerning the father. Psychiatric reports in evidence reveal a history of serious depression. He evidently experienced some difficulties adjusting to family life after Linda was born and in dealing with Ashley. Dr Waters’ observation was that the father is rigid, inflexible and uncompromising.

123The experience of recent times reveals, however, that he has responded well to the responsibility of having Linda placed in his care and that they have a happy and loving relationship. There appeared to be a consensus in the evidence (other than that of the mother) that the assaults on Linda and Ashley did not reflect any basis for ongoing concern.

124I am satisfied that Linda has a strong and happy relationship with each of her parents. She also clearly has a strong bond with her maternal grandmother.

Willingness of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent

125There was a great deal of evidence in the case as to conflict between the parents on this issue. I do not doubt that, as submitted on behalf of the Children’s Independent Lawyer, there is a high degree of conflict between the parents and poor communication between them. However, I have ultimately been persuaded by the submissions of Mr Graham on behalf of the mother that, upon analysis, there is a great deal of smoke and perhaps little fire. Mr Graham submitted, and I accept, that each parent is able to perform adequately as a parent in a manner that is focused on Linda’s best interests.

126Further, notwithstanding their readiness each to lay blame and criticism at the feet of the other, I think each parent is ultimately sufficiently focussed on his or her responsibilities to Linda as to render it likely that their dealings will improve with time and will not substantially infect their dealings with Linda. I am satisfied, as submitted by Mr Graham, that despite their differences, and their evident capacity to annoy each other, ultimately they will be able to deal with each other in Linda’s best interests.

127Dr Waters’ opinion on that issue has not persuaded me that an order for sole parental responsibility on the father is appropriate in this case. In my assessment of the mother, she will not rest until she has what she considers to be an acceptable amount of responsibility for and time with Linda. The proposition that allocating sole parental responsibility to the father will quell the conflict is untenable, in my view.

The likely effect of any changes in the child’s circumstances

128As submitted by Mr Graham on behalf of the mother, until the events of 8 December 2010, the position had been accepted for many years by consent that Linda should spend most of her time with the mother whilst spending increasing time with the father. It was submitted on behalf of the Independent Children’s Lawyer that Linda has become well settled with the father and that to alter that position now would be a negative change.

129I do not accept that submission. The evidence has persuaded me that Linda misses her mother and wishes for more time with her. Dr Waters recorded that Linda has little or no awareness of the reasons that she changed from one home to the other. The orders made during the course of these proceedings have seen a gradual reversal of the extreme change effected by the decision of the Director-General to remove Linda from the mother’s care. Further, the timing of the implementation of the orders (at the beginning of the summer holidays) will present a ready basis for Linda to accept and adjust to the move back to more equal time.

Practical difficulty and expense

130Leaving aside the issue of conflict between the parents, it was common ground at the hearing that there is no practical difficulty or expense to the child spending equal time with each parent and that this is a neutral consideration.

Capacity of the child’s parents to provide for the needs of the child

131For the reasons explained in respect of other considerations, I consider each of Linda’s parents to be well able to provide for her needs.

Characteristics of the child

132I have considered Linda’s level of maturity and her evident affection for each parent. Linda had until 8 December 2010 spent most of her time with the mother and evidently had a strong bond with her. Equally, since 8 December 2010, she has plainly formed a stronger relationship with the father than she previously enjoyed. Those considerations are neutral, in my view.

Attitude of the parents

133As to the considerations raised by s 60CC(3)(i), the evidence revealed that each of the parents has a positive attitude to Linda and to the responsibilities of parenthood. The father was less involved with Linda when the parents first separated but has amply demonstrated his ability to accept his responsibilities as a father since the change of circumstances effected by the Director-General’s decision. The mother is an extremely focused parent.

Family violence

134I have already addressed the issue of family violence.

Threat of further proceedings

135It was submitted on behalf of the Independent Children’s Lawyer that an order for sole parental responsibility on the father would be least likely to lead to the institution of further proceedings in relation to Linda. For the reasons already indicated, I disagree.

Conclusion as to section 65DAA considerations – Linda’s best interests

136In my view, a consideration of the matters required to be taken into account in determining Linda’s best interests points strongly in favour of an order for equal shared parental responsibility between the father and the mother and orders providing for them each to spend equal time with Linda.

137Upon analysis, the evidence and submissions to the contrary may be reduced to a small number of relevant considerations. First, as I have already noted, the mother evidently has a capacity to rub people up the wrong way. In my view, that has coloured some people’s assessment of Linda’s interests. I would include in that category Ms Hills, Ms O’Neill and Mr Brownsey, the Principal of the college formerly attended by Ashley. Criticism of the mother in the evidence and in submissions in my view gained a momentum that did not truly reflect her ability as a mother and her capacity appropriately to meet Linda’s needs.

138No doubt some of the mother’s difficulties are explained by her diagnosis of ADHD. Serendipitously, the requirement that she see Dr Waters for the purpose of his report in these proceedings produced some cause for optimism in that respect. The mother had previously been unable to take certain medication to treat her condition due to the risk of an incidental increase in blood pressure. It happened that Dr Waters was aware of a new drug that is a treatment for both ADHD and high blood pressure (T257 to 258). There would appear on that basis to be every reason to expect some relief from the difficulties the mother has experienced in the past due to her condition. That in turn seems likely to see an improvement in her dealings with the father.

139The second substantial consideration pointing against the orders I propose was the opinion of Dr Waters as to equal shared parenting responsibility and equal time.

140Dr Waters’ reports suggested that his opposition to equal shared time derived principally from the issue as to the capacity of the parents to communicate effectively with each other and to resolve difficulties. At the hearing, however, his view became more refined and came down, in my assessment, to his opinion as to the peculiar impact of a 50/50 arrangement on the perception of power between the parents.

141Dr Waters acknowledged that the proposal put forward by the Independent Children’s Lawyer made provision for Linda to spend significant time with each of her parents. He went some way to acknowledging that issues of conflict will arise whether the orders provide for equal shared care or a proportional arrangement (T260).

142Upon analysis, his principal reason for opposing equal time was that there is less conflict in a proportional arrangement because the parent that has less time is “not quite as empowered”. It was his opinion that, in a 50/50 arrangement, rather than feeling equally empowered, each parent feels they have got all the power and can have “as much say as the other person”. He thought that such arrangements tended to fall apart with parents who don’t trust each other (T262).

143In my view, that is a slender basis for departing from the arrangement that, in my view, is in Linda’s best interests. I doubt whether the power relationship between the mother and the father in this case would be any different whether the orders provide for equal time or, alternatively, substantial and significant time. On either scenario, it seems likely that there will be some conflict. Conversely, on either scenario, it seems likely that both parents will continue to hold Linda’s best interests in mind. Dr Waters’ evidence has not persuaded me that a substantial and significant time arrangement (which is accepted by the father and the Independent Children’s Lawyer) will entail less conflict, and a better outcome for Linda, than equal time.

144Accordingly, I am satisfied that it would be in Linda’s best interests for her to spend equal time with each of the parents.

145It is necessary next to consider whether it is reasonably practicable for Linda to spend equal time or substantial and significant time with each of her parents. Section 65DAA(5) of the Family Law Act contains a list of mandatory considerations in that assessment.

146The first is how far apart the parents live from each other. There is no practical difficulty in that respect.

147The remaining considerations are of more significance in the present case. The Court must have regard to the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind and the impact an arrangement of that kind would have on the child.

148It is significant, in my view, that the Independent Children’s Lawyer did not contend that it would not be reasonably practicable for Linda to spend substantial and significant time with each of her parents. The objection was to equal time.

149The particular problems identified by the Independent Children’s Lawyer were the high degree of conflict between the parents, their poor communication and Linda’s need for stability in her life. It is difficult to see how, in a practical sense, those considerations could be seen to sustain an arrangement for Linda to spend substantial and significant time with each of the parents (an arrangement not suggested by the Independent Children’s Lawyer to be inappropriate) but to be inimical to her spending equal time with each of the parents.

150There is undoubtedly a large measure of animosity between the parents, which is regrettable, but I do not accept that such conflict as might obtain in the future would pose a practical impediment to an arrangement for equal time but not to an arrangement for substantial and significant time.

151I see no reason to suppose that orders providing for equal time will have anything other that a favourable impact on Linda.

152In light of those findings and for those reasons, I am satisfied that orders should be made providing for equal shared parental responsibility and equal time.

153The orders I proposed were made on 16 September 2011 but later stayed for the reasons given in my judgment dated 21 October 2011. With appropriate amendment of the commencement date, the orders should have effect as follows:

Orders

1.That the orders of the Children’s Court made on 14 December 2010 and 10 February 2011 in respect of Linda be set aside.

2.That all previous parenting orders in relation to the child be discharged.

3.That the father John Gerard Carey and the mother Karen Graham have equal shared parental responsibility for the child and that each consult the other regarding any long term issues concerning the child, including but not limited to religion, education and health and that in the event the parties are unable to agree on matters concerning the long term issues, the parties attend upon mediation prior to commencing proceedings in any court.

4.That commencing 20 December 2011 the child live with the parents as follows:

(a) Except during the Christmas school holidays, with each of the parents for a period of one week with changeovers to occur after school on Friday, except that when the child is not attending school such changeover shall occur at 3.00 pm;

(b) During the Christmas school holidays, with each of the parents in block periods of three weeks, commencing at the conclusion of school provided that if school does not close on a Friday then such changeover shall occur at 3.00 pm on the first Friday after the conclusion of school. In odd numbered years the child shall live with the Mother in the first block period and in even numbered years the child shall live with the Father in the first block period.

5.That Orders 4(a) and 4(b) be suspended and that the child spend time with the Mother as follows:

(a) From 6.00 pm on the day prior to Mothers Day until 4.00 pm on Mother’s day;

(b) From 6 pm on Christmas Eve until 10.00 am on Boxing Day in odd numbered years.

(c) If the child is not living with the Mother, on the child’s birthday for a period of three hours by agreement and failing agreement from 4.00 pm until 7.00 pm.

(d) If the child is not living with the Mother, on the Mother’s birthday, Linda’s sibling Ashley’s birthday and the grandparents’ birthday for a period of three hours by agreement and failing agreement from 4.00 pm until 7.00 pm.

6.That Orders 4(a) and 4(b) be suspended and that the child spend time with the Father as follows:

(a) From 6.00 pm on the day prior to Father’s Day until 4.00 pm on Father’s Day.

(b) From 6.00 pm on Christmas Eve until 10.00 am on Boxing Day in even numbered years.

(c) If the child is not living with the Father, on the child’s birthday for a period of three hours by agreement and failing agreement from 4.00 pm until 7.00 pm.

(d) If the child is not living with the Father, on the Father’s birthday for a period of three hours by agreement and failing agreement from 4.00 pm until 7.00 pm.

7.That the mother be restrained by injunction from:

(a) Leaving the child in the sole care of Ashley;

(b)Permitting the child to come into or remain in contact directly or indirectly with Brian Hurley.

8.That the mother and the father be restrained by injunction from:

aDiscussing the incident of 7 July 2007 in the presence or hearing of the child;

bDiscussing the payment of child support in the presence or hearing of the child.

cExercising physical chastisement of the child.

9.That all changeovers occur at the child’s school except when the child is not at school, when changeover will occur at McDonald’s Family Restaurant at Green Hills.

10.That each parent be entitled to communicate with the child each Tuesday, Thursday and Sunday between 5.30 pm and 6.30 pm during the times when the child is living with the other parent.

11.That each parent is to inform the other parent as soon as practicable in the event of:

(a) the child becoming seriously ill;

(b)the child being hospitalised;

(c)the child being involved in an accident;

(d)the child attending upon a medical practitioner.

12.That each parent be restrained from denigrating the other party in the presence of the child or permitting any other person to denigrate the other parent in the presence of the child.

13.That each parent use all reasonable endeavours to ensure the child maintains her social, educational and sporting commitments during each period the child is with that parent.

14.That pursuant to s.65D(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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