AJW and SW and SL
[2006] FMCAfam 584
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AJW & SW & SL | [2006] FMCAfam 584 |
| FAMILY LAW – Parenting – application by maternal grandmother for child aged 7 to live with her – mother seeks that child live with her – father supports grandmother’s application – child at risk of physical and psychological harm and exposed to family violence when in the mother’s care – mother in violent relationship – mother using illicit drugs – presumption of equal shared parental responsibility rebutted as not in child’s best interests. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | AJW |
| First Respondent: | SW |
| Second Respondent: | SL |
| File Number: | SYM 3161 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 17 & 18 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Anderson |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| First Respondent: | In person |
| Second Respondent: | In person by telephone |
| Counsel for the Independent Children’s Lawyer | Mr S Thomas |
| Solicitor for the Independent Children’s Lawyer | Marks Griffiths & Bova |
ORDERS
THE COURT ORDERS THAT:
The child EJW born 27 November 1999 (referred to herein as “Angela”) shall live with the maternal grandmother.
The maternal grandmother shall have sole parental responsibility for decisions concerning Angela.
Angela shall spend time with and communicate with the father by arrangement between the father and the maternal grandmother.
The maternal grandmother shall take all reasonable steps to ensure Angela spends time with the mother by arrangement between the mother and the maternal grandmother provided the following conditions are met:
(a)The mother does not consume any alcohol or any non-prescription drug in the 24 hours prior to Angela spending time with the mother and during all times Angela spends with the mother; and
(b)Mr S. Brown does not accompany the mother to any changeovers or have any contact with Angela; and
(c)Changeovers are arranged away from the mother’s residence whilst the mother remains in a relationship with Mr S. Brown, whether Mr Brown and the mother are living together or otherwise; and
(d)Angela spends time with the mother only during daylight hours between 8.00a.m. and 5.00p.m. whilst the mother remains in a relationship (as defined in (4)(c) herein) with Mr S. Brown unless:
(i)The maternal grandmother and the mother agree the mother will stay overnight with Angela at the maternal grandmother’s home or at the home of the maternal grandfather or at another agreed location provided that any such overnight time at ‘another agreed location’ is supervised by one of the maternal grandparents and that Mr S. Brown is absent during the whole of the period; or
(ii)Mr S. Brown is in prison when the restriction be lifted for the duration of his imprisonment.
(e)Mr S. Brown be restrained from approaching:
(i)Angela, the maternal grandmother or the maternal grandfather; and
(ii)Within 200 metres of the residences from time to time of both the maternal grandmother and maternal grandfather.
Subject to order 4 (c) herein, changeover locations shall be agreed between the mother and the maternal grandmother.
The maternal grandmother shall facilitate Angela communicating by telephone with the mother and her half siblings (when old enough to speak on the telephone) at any reasonable time, such telephone communication to occur as frequently as practicable.
The maternal grandmother shall ensure Angela receives any cards, letters and gifts sent to her by the mother or the father as soon as practicable upon receipt.
The maternal grandmother, mother and father shall keep each other informed as to their respective residential address, residential telephone number and mobile telephone number and shall advise the others within 48 hours of any change of address or telephone number.
The maternal grandmother shall keep the mother and father informed as to the school Angela attends and authorise the school to provide to the mother and to the father copies of all school reports, school photographs, newsletters or notices to events involving parents, upon the mother or father’s request to the school at the expense of the requesting party.
In the event Angela requires urgent medical treatment, the maternal grandmother shall forthwith notify the mother and the father.
Pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3161 of 2006
| AJW |
Applicant
And
| SW |
First Respondent
| SL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns living arrangements for Angela, aged nearly 7 years. The dispute is between the maternal grandmother and the mother. The maternal grandmother was represented at hearing. The mother and the father were unrepresented. The father participated by telephone from Western Australia. The independent child lawyer was represented by counsel.
The mother and father were in a relationship from 1999 until 2000, separating when Angela was a young baby. Angela is the only child of the relationship. Both parents were using illicit drugs at the time of their separation. The father then moved to Western Australia where he is still living. The father says he moved to get away from the drug scene and has been successful, now working full time. The mother is in a relationship with Mr S. Brown. For reasons later set out, I am satisfied the mother still uses illicit drugs and that Mr Brown has been violent towards her. The mother and Mr Brown have two children Claire, 2 and Tom, 3 months who live with the mother.
For the last 3 years, Angela has been living full time with her maternal grandmother (“the grandmother”) on the Central Coast and spending time with her mother and her father by arrangement with the grandmother. The grandmother first obtained an interim order for residence of Angela in October 2003 and a recovery order a month later when the mother removed Angela from the grandmother’s care without her consent. Angela has spent extended periods with her grandparents since she was born. The grandmother’s niece, Shannon 15, also lives with the grandmother. The maternal grandparents are separated but according to the grandmother “we are best friends” and live next door to each other. The maternal grandfather is also closely involved in Angela’s care.
Orders made by Wyong Local Court in early 2004 provide for Angela to live with the grandmother, to spend time with the mother each alternate weekend, for the mother to undertake urinalysis, not to consume drugs and not to bring Angela into contact with Mr S. Brown.
The grandmother wants the present arrangements to continue but wants to eliminate any likelihood of herself or Angela coming into contact with Mr Brown, of whom the grandmother is frightened and the maternal grandfather extremely wary. The independent child lawyer supports the grandmother’s application. The recommendations of the family reporter, Ms Bowen support the grandmother’s application.
Angela’s father works and lives with his four year old son and fiancé in Western Australia, 4 hours from Perth. He sees Angela occasionally when he holidays with his mother on the Central Coast of New South Wales, most recently in February 2006. He has some communication with Angela by phone. He plans to arrange with the grandmother for Angela to spend time with him in Western Australia in the future. Angela’s father has a good relationship with the grandmother, supports her application and seeks no formal orders in relation to Angela spending time with him.
The mother wants Angela to live with her, Mr Brown, Claire and Tom so “we can all be a family”. Mr Brown supports the mother’s application. The mother seeks an order that Angela spend time with the grandmother by agreement with the mother but at least one weekend a month and for two weeks in school holidays each year. Presently, the mother is living on the South Coast with Claire and Tom though plans to live with Mr Brown. Mr Brown, under current bail conditions is prohibited from being in the town where the mother lives and therefore from living with the mother and their two children while they remain living there. At the time of interview with Ms Bowen last December the mother was having problems with Mr Brown who did not present for interview as requested. The mother was uncertain as to where she would be living. At the time of hearing, she was still undecided.
Mr Brown has two children from a previous relationship. He says he has no contact with them and does not know their whereabouts.
This case is complicated by the intention of the mother to continue her relationship with Mr Brown despite his history of threats towards and violence against her and the grandparents, at times in front of Angela. Mr Brown has an extensive criminal record which suggests a propensity for violent and intimidating behaviour. The maternal grandparents told Ms Bowen:
Mr Brown has made verbal threats to kill their daughter whilst Angela has been present, and that their daughter has telephoned them numerous times distressed and fearing Mr Brown would harm her. She had also rung stating that he had assaulted her and, on an occasion, that he had spat in Claire’s face.
Both the grandmother’s counsel and counsel for the independent child lawyer ask the court to make orders guaranteeing Angela has no contact at all with Mr Brown. Their position is supported by Ms Bowen. Counsel for the independent child lawyer submits the mother, by her refusal to accept the truth about Mr Brown’s character, is “disqualified from being a parent” and as long as her present attitude persists, Angela should not see her. The mother told the court she will not comply with any court order requiring her to keep Angela away from Mr Brown, because “he (Mr Brown) is like a father to her” “he is part of my life.” She says the order currently in force restraining her from allowing Angela contact with Mr Brown is not appropriate and she concedes she does not comply with it. Mr Brown says he would have to abide by any such order if made again “but it would be hard.” The grandmother does not believe the mother will comply with any court order restraining her from bringing Angela into contact with Mr Brown.
According to Ms Bowen, Angela is strongly attached to her mother, has expressed a wish to her grandmother to live with her mother and envies her half-siblings for living with her mother. Ms Bowen however, says Angela needs to spend time with her mother in a positive and reassuring environment, not in an environment of disruption, instability and high conflict which she has experienced in the past. In Ms Bowen’s view, Angela would be better off having less time with her mother if it means the time they spend together occurs in a positive setting. Ms Bowen says Angela’s relationship with her mother may deteriorate if their time together is not reassuring for her. I am not persuaded there are any orders the Court can make to provide a cast iron guarantee Angela will see her mother only in a safe, reassuring and positive setting. To maximise opportunities for safe and reassuring encounters, Ms Bowen recommends Angela spend time with her mother only on the Central Coast, in the vicinity of the grandmother’s residence. She recommends Angela and her mother share daytime outings together as often as the mother can manage the trip to the Central Coast, ideally weekly. She recommends the grandmother have the authority to suspend Angela’s time with the mother if she believes the arrangements place Angela at risk and if there is no way to ensure Angela is secure and content when with the mother. Ms Bowen recommends Angela have no contact with Mr Brown. She recommends the mother have therapeutic counselling and psychiatric assistance “to assist with emotional regulation and gain support and advice regarding the decisions she is facing in relation to her and the children’s future.” For reasons later set out, I accept these recommendations of Ms Bowen.
Credit
The maternal grandmother and the maternal grandfather impressed me as frank and honest witnesses committed to the welfare of their daughter, the mother, as well as to Angela’s welfare.
The mother showed dramatic fluctuations in mood throughout the hearing. She behaved erratically and emotionally. At times she sobbed, at times she shouted. She swore audibly. She interrupted during the giving of evidence, gave answers to questions being asked of other witnesses. She was at times abusive to witnesses, argued with counsel in cross-examination and required cautioning by me on a number of occasions. As submitted by Mr Thomas for the independent child lawyer, at times she became wildly disruptive. She appeared almost incapable of controlling herself. She said to the court “I’m an emotional wreck. My parents have abused me all my life.” “I would like therapeutic support.” “No-one ever says anything positive about me.” Ms Bowen reported the mother to be agitated during the interviews with her in December last year and keen to leave the interview room; the mother appeared ‘hollow’ ‘did not look well’ and in the opinion of Ms Bowen, may have been affected by drugs. Ms Bowen reported in December 2005:
The mother presented as very emotionally labile and unable to decide on a number of dilemmas which face her. During her attendance there were times when she appeared agitated and as if she were finding it difficult to tolerate discussions with her mother or counsellor…overall she appeared agitated and restless during different interview and observation situations.
I found the mother’s evidence unreliable. She denied the content of police reports and health reports without plausible explanation.
I formed the view she was untroubled as to whether or not her evidence was truthful.Mr Brown found it almost impossible to answer questions. At times he harangued the questioner. He repeatedly interrupted questions as they were being asked. He seemed easily angered. He was dismissive of past events which involved him in seriously intimidating and violent behaviour. He denied without reasonable explanation the contents of police reports of incidents involving threats against the grandmother, against the mother and against others. I cautioned the mother for attempting to answer questions for Mr Brown from the Bar Table.
I found the demeanour of Mr Brown in the witness box and in the courtroom at times intimidatory and belligerent.When the evidence of either of the grandparents differed from that of the mother or Mr Brown, I preferred the grandparents’ evidence.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) which includes “any other fact or circumstance that the court thinks is relevant.” In the present case, the protagonists are the mother and the grandmother, not the two parents, though the grandmother has been in loco parentis for nearly 3 years. The father supports the grandmother’s application. I therefore have regard to the relevant subparagraphs of section 60CC by reference to the three parties. Section 60CC(4) requires me to consider also the extent to which each parent has fulfilled his or her parental responsibilities, including the obligation to maintain the child, and has facilitated the other parent in fulfilling his or her parental responsibilities. I must have regard to events that have happened and the circumstances that have existed, since the separation occurred.
Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have particular regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The primary considerations
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
The question of Angela’s safety when with her mother is the main issue in this case, particularly while the mother remains in a relationship with Mr Brown. I am left in no doubt on the evidence that Mr Brown is at times a very frightening character and that Angela is at risk if she is exposed to him. I am also persuaded the mother has a long history of illicit drug use and continues to use at least marihuana if not other non-prescription drugs. Given the importance of these issues in these proceedings, I set out the evidence in some detail.
Mr Brown has an extensive criminal record[1] from 1981 until July 2006 including convictions for assaults, maliciously inflicting grievous bodily harm, malicious damage, contraventions of apprehended violence orders, drink driving, possessing prohibited drugs, custody of a knife, several breaches of apprehended violence orders. Police records set out Mr Brown’s extensive history of violent conduct towards his first wife, the grandmother, the mother and others. Mr Brown has spent 7 months during the last 4 years in prison. Counsel for the independent child lawyer and counsel for the grandmother extensively cross-examined Mr Brown as to his criminal history. Mr Brown was on bail at the time of hearing in relation to charges for personal violence. He acknowledges being arrested at a South Coast hotel in June 2006 and biting a police officer’s thumb unintentionally. His current bail conditions prohibit him from entering the area where the mother lives. He has an assault charge pending. He is subject to an apprehended violence order for the protection of the grandmother.
[1] Exhibit 2
Mr Thomas tendered the Family Court file[2] relating to proceedings between Mr Brown and his first wife in 1999. Mr Brown produced an axe during an incident involving police and his first wife in May 1999[3]. A solicitor unconnected with the Brown matter, made a file note of her observations of Mr Brown’s threatening and abusive conduct at the Family Court on 8 October 1999. She reported Mr Brown saying to the wife’s solicitor “you can’t do things without court orders. I will snap your neck you twerp.” Mr Brown called his wife’s solicitor “a fucking bitch” on a number of occasions, speaking loudly and aggressively. The solicitor witnessing this behaviour noted her own clients being “terrified at the incident”. The wife’s solicitors reported Mr Brown’s conduct at Court to Miranda Police, noting that the Registrar agreed to the presence of the Federal Police at a directions hearing because of the conduct of Mr Brown. In her affidavit sworn 4 January 2000, Mr Brown’s first wife deposes to her relationship being “characterised by episodes of domestic violence throughout.” She deposed to Mr Brown assaulting her and threatening her life and her family’s lives.
[2] Exhibit 4
[3] Exhibit 5
The maternal grandparents give a history of serious threats and violent behaviour by Mr Brown towards the mother and themselves from the time the mother commenced her relationship with Mr Brown in approximately September 2003.
I accept the grandmother’s evidence as to the following facts involving violent conduct by Mr Brown: within weeks of the relationship starting, Mr Brown assaulted the mother. Shortly afterwards, Mr Brown said to the grandmother “I will cut your throat, I will shoot Sam (the maternal grandfather).” In January 2004, Mr Brown threatened “I’ll kill you, you fucking mole” and physically assaulted the grandmother causing her abrasions, a black eye, bruising and cracked ribs. She required an ambulance[4]. Mr Brown was charged but as a result of pressure from the mother, the grandmother did not proceed. The grandmother conceded lying to the court at the time to protect her daughter. She says she worries all the time about the mother’s safety. She has heard Mr Brown threaten the mother “I could stick a knife in you and kill you. You are scum.” When Claire was a baby, the grandmother recalls the mother and Claire being in the car when Mr Brown threatened to throw petrol on the car to burn it. Angela was present during the incident. In August 2005, when the mother refused to return Angela to the grandmother, despite court orders, Mr Brown tried to spear the grandmother with a broom handle which led to the police obtaining an apprehended violence order against Mr Brown for the protection of the grandmother for 2 years. In January 2006 the grandmother travelled to the South Coast by train and bus to collect Angela from the mother. The mother assured the grandmother Mr Brown would not be present but upon her arrival, Mr Brown, in the presence of Angela, screamed at the grandmother refusing to release Angela to her. Mr Brown grabbed the grandmother by the hair and threw her across the room and her overnight bag out the front door. He threatened “I’m going to kill you; I’m going to get a knife and cut you up.” At the same time he threatened the maternal grandfather on the phone “why don’t you get down here, I’m going to cut you up, you mother fucker, you’re dead.” He smashed the phone. Police were called and Mr Brown arrested. The maternal grandfather confirms hearing down the phone line Mr Brown yelling at the mother and grandmother “I’ll kill both of you; I’m going to kill you.” On his release from custody the following day, Mr Brown again threatened the grandmother in front of Angela necessitating police intervention. Both grandparents observed the awful impact of these events on Angela who was reluctant to separate from the grandmother for a long time.
[4] Exhibit 7
According to the police records[5], on 18 July 2005 neighbours contacted the police because of the noise in the mother’s premises. The mother reported that Mr Brown had assaulted her by hitting her on the back of the head and throwing a knife at her. She reported being frightened for her own and Claire’s safety. Mr Brown refused the police entry “get fucked, I’m not opening the door… I’m not opening the door to you cunt.” The police made a forced entry to arrest Mr Brown. The mother signed a statement. The police reported having real fears for the safety of the mother and Claire, then 8 months old.
[5] Exhibit 10
I am satisfied Angela and Claire have witnessed other acts of violence by Mr Brown. The grandmother reports the mother calling in tears many times when Mr Brown was frightening her. She recalls the mother reporting Mr Brown approaching her with a kitchen knife yelling “you’re scum; you’re nothing.” She recalls collecting the mother from her home on three occasions when the mother was in fear of Mr Brown. She recalls, when pregnant with Tom, the mother ringing to complain about Mr Brown’s intimidation.
I accept the grandmother’s evidence that during the course of this hearing, Mr Brown made a threatening sign with his thumb across his throat from right to left through the glass window of the court door addressed to the grandmother. I accept she felt threatened. I accept the maternal grandfather’s evidence that outside the courtroom during the hearing Mr Brown approached within centimetres of his face gesturing “I’m going to get you; you’re a bastard.” I accept the grandfather was nervous. He said “I could see the anger in him.”
However, the mother and Mr Brown refuse to acknowledge the nature and the seriousness of Mr Brown’s conduct. This is a serious concern.
The mother says to the court “S. Brown has never been violent to me or threatened me. I have never told my mother that.” “I agree S. Brown has a temper but he has never hurt me or my kids” “he’s not violent.” She says any reports she made to police about Mr Brown being violent or threatening toward her were lies. “He has never been violent towards me.” “I was not fearful.” In cross-examination about the events of 18 July 2006, the mother denied the police report relating to the incident and the contents of her statement to police. I do not accept the mother’s evidence on these matters.
Ms Bowen says if the court finds Mr Brown has a history of threatening, frightening and violent behaviour, he should not be permitted anywhere near Angela. In Ms Bowen’s view, such experiences would threaten the mother’s and the children’s “fundamental sense of security” in most areas of their lives. I find noteworthy Angela’s comment to Ms Bowen that if she were worried about something she would talk to “the Court or the police.”
Both the mother and her partner Mr Brown acknowledge a history of illicit drug use. However, I find the mother’s written and oral evidence is inconsistent and contradictory on the extent of her drug problem. The mother was in tears telling the court she has used marihuana since she was 14 and amphetamines since she was 16. She says she has tried cocaine, ecstasy, but not heroin. The mother confirms she has attended drug treatment facilities on a number of occasions to detoxify. She confirms the contents of health reports that she reported being suicidal in 2002 but now says “I made that up”. She says she ceased all drug use after completing a detoxification programme in 2002, which she later amended to 2003. In 2003 the mother acknowledges using marihuana each day as well as amphetamines. She later conceded she continues to use marihuana. Records from a Central Coast health service confirm her admissions for detoxification in December 2001, July 2002 and March 2003. In 2001 the mother reported to the Drug and Alcohol Service a 4 year drug habit involving use of amphetamines, cocaine, ecstasy and cannabis. The mother agrees in April 2002 she was charged with a breach of an apprehended violence order taken out against her by the grandmother. She agrees she was screaming and behaving aggressively as a result of using amphetamines. In February 2003 the mother reported to the Alcohol and Other Drugs Service a 7 year drug habit, using amphetamines every second day and cannabis every second night. She reported bingeing on alcohol irregularly. At times when the mother moved with Angela to stay with the grandmother, the grandmother recalls the mother leaving in the middle of the night without Angela and not returning for days at a time. In March 2003 the mother reported presenting to a facility “to get life in order” “for court appearance” and to using a multiplicity of illicit drugs including occasional heroin. In September 2004 she reported using intravenous speed and cannabis monthly. The grandmother says and I accept that she saw a ‘bong’ in the house belonging to the mother only a few weeks before hearing and saw the mother sharing the bong with a friend. Approximately 12-18 months ago the grandmother found syringes under the mother’s bed.
The mother has not complied with orders of Wyong Local Court of 30 January 2004 and 12 March 2004 to provide results of urinalysis to the grandmother’s solicitor. Pathology reports dated 24 April 2004 and 16 July 2004 show cannabis was detected on both occasions.[6] The mother provided only two test results.[7] The mother says it was too hard to do the tests. Mr Brown says he is unaware of any court order relating to the mother undertaking urinalysis. He denies the mother using illicit drugs after 2002. He refers to himself as a “recovered drug addict” who is now against drug use. I do not accept the mother is drug-free. Ms Bowen told the court she would refer Claire and Tom to the Department of Community Services if upon inquiry, she finds the Department has not yet been notified by another authority.
[6] Exhibit 8
[7] Exhibit 9
In my view, Angela is at risk of harm in her mother’s care given her continuing use of illicit drugs and her continuing relationship with Mr Brown. I give my findings in relation to this factor very significant weight. I propose to include in the orders a number of safeguards for the protection of Angela and the safety of her grandparents.
The benefit to the child of having a meaningful relationship with both the child’s parents
I agree with Ms Bowen that the grandmother properly acknowledges the benefit to Angela of having a meaningful relationship with both her parents and has done her best to promote those relationships. In his oral evidence, the father expressed his gratitude to the grandmother for facilitating Angela’s relationship with him, despite his poor attitude to parenting Angela and to the grandmother in the past. The father is confident that as long as Angela is in the grandmother’s care, Angela will have the opportunity to develop her relationship with him. The father submits Angela will not have that opportunity if she lives with the mother. I agree with him.
Despite the significant obstacles put in her way by the mother, the grandmother has to her credit, ensured over a long period that Angela stays in touch with her mother and spends time with her as often as possible. The grandmother has set up a telephone arrangement with Telstra so that Angela can have telephone contact with her mother anytime at no cost to the mother. Regrettably, Angela’s opportunity for a meaningful relationship with her mother is presently compromised by the mother’s unwillingness and/or inability to put Angela’s needs ahead of her own. Her efforts to change the direction of her life have so far been inadequate. She has largely rejected her parents’ offers of assistance. She has failed to comply with court orders which, if complied with, might have given Angela the chance to spend increased time with her.
Counsel for the independent child lawyer submits ‘the mother has disqualified herself’ as a parent by her at times complete disregard for Angela’s welfare. I agree with the substance of this submission. Ms Bowen told the mother in cross-examination Angela gets anxious when she goes to see her. ‘Angela says to me I’m worried about her’ ‘I’m worried about things’ ‘I’m worried Claire might fall over’. The mother’s assertion to the court that she has always provided a positive and relaxed environment for Angela is not supported by the evidence.
Ms Bowen recommends Angela spends regular time with her mother but only if she is “in a calm and secure environment” and the time with her mother is happy and relaxed. Ms Bowen recommends contact in the maternal grandmother’s home and/or on daytime outings in the Central Coast area. She says the mother should travel to the Central Coast to spend time with Angela as often as she can. Ms Bowen recommends the grandmother continually monitors the situation to work out the best way for Angela to enjoy the time with her mother. She says if the parties are co-operating well, it may be possible for the parties to meet closer to the mother’s home. While the mother is living with Mr Brown, Ms Bowen says it is essential for Angela to see the mother away from her home as “Angela would not be relaxed in her mother’s household. She needs to feel confident about seeing the mother.” Ms Bowen says it may be better for Angela to have periods of no contact if these safeguards are not present. “Angela needs to have a good time with her mother, so if she is insecure with her mother, their relationship may be damaged.”
The Act provides for the court to consider the benefit to the child of having a meaningful relationship with both her parents. I am satisfied Angela will only enjoy the benefit of a relationship with her mother if the safeguards recommended by Ms Bowen are in place. In my view, her opportunity to have a meaningful relationship with both her parents will best be facilitated if she remains with her grandmother.
The additional considerations
The child’s expressed views and the weight those views should be given
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The grandmother tells Ms Bowen that Angela “regularly voices a desire to be with her mother”. Angela expressed jealous and resentful feelings towards Claire which in Ms Bowen’s view are likely to be related to envy and confusion as to why Claire is with her mother and she is not. Angela did not express particular wishes in relation to her living arrangements to Ms Bowen and there is no other evidence of her expressed views.
Angela is still very young. However, I take into account the grandmother’s evidence as to what Angela says to her about her mother. This evidence is consistent with Ms Bowen’s observation that Angela is closely attached to her mother.
The nature of the relationships between the child and each parent and the child and other persons
There is no dispute that Angela has close relationships with her maternal grandmother, maternal grandfather, Shannon, her mother and her half sister Claire. She tells Ms Bowen one of her favourite things is going to the pool with the maternal grandfather (“Poppy”). The grandfather says Angela loves swimming and he tries to take her each week. She named her Nan, Poppy and mother as the members of her family she can talk to.
There is no doubt Angela loves her mother. She told Ms Bowen it makes her sad “when Mum yells at me.” I accept Ms Bowen’s view that this may reflect a vulnerability to rejection by her mother and/or fear of her mother’s mood swings and anger.
Mr Brown did not attend for interview with Ms Bowen so she was unable to assess the nature of Angela’s relationship with him. Mr Brown tells the court Angela has a close relationship with him. She calls me ‘Daddy’. I do not have sufficient evidence before me to make a finding about the nature of Angela’s relationship with Mr Brown.
According to the father, Angela has a happy relationship with him and his mother who Angela sees from time to time. According to the maternal grandmother, Angela sees her mother’s sister Karen, 28 and her son, aged 14 months very regularly and enjoys being with them. I accept this evidence from the father and grandmother.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent
The grandmother says in cross-examination by the mother “I know you love Angela.” She says she wants Angela to spend time with the mother and if the mother were living in a stable and safe situation, the grandmother would support Angela living with her mother. I accept this. I do not accept the mother’s affidavit evidence that Angela has lived with the grandmother against the mother’s will since October 2003 although I accept there may have been times the mother has wanted Angela to live with her, contrary to the court orders. Given the extent of their involvement in Angela’s life, I find the mother demonstrates minimal insight into the importance of the grandparents to Angela in proposing only monthly contact with the grandmother.
The father supports Angela spending time with her mother, though is concerned about her safety when with the mother.
The maternal grandparents presented to Ms Bowen “as having strong commitments to Angela’s well being.” They also presented as being very concerned for their daughter’s interests, despite the long history of difficulties they have experienced with her drug use. They told Ms Bowen they did not believe the mother or the children were safe as long as the mother remains in a relationship with Mr Brown.
Ms Bowen observed the maternal grandparents relating well to the mother during interviews and engaging harmoniously together with Angela.
The father believes he will not see Angela at all if she lives with the mother. He says he has no difficulty making arrangements with the grandmother to spend time with Angela or to speak to her on the telephone.
I am well satisfied the grandmother will continue to do all she can to encourage and facilitate Angela’s relationships with both her parents.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs
The mother has no firm plans as to where she will live, though by the end of the hearing agreed with Mr Brown they would move to Richmond to live near Mr Brown’s sister where Mr Brown will work as a landscape gardener/greenkeeper. I agree with Ms Bowen that the mother’s uncertainty about her living arrangements, emotional lability and instability continue to compromise her capacity to parent. Ms Bowen observed the mother was able to respond appropriately with Claire, though she was slightly rough with her.
Ms Bowen says she would be very concerned if the mother understated the level of Mr Brown’s violence as it may lead to her ineffectively protecting the children. Given the mother’s reluctance to acknowledge Mr Brown’s violent behaviour, I am not satisfied the mother has the capacity to provide for Angela’s emotional needs or to protect Angela from emotional harm.
On the evidence before me, I can make no findings as to the capacity of the father to parent. The father has not been involved in Angela’s parenting.
About 2 years ago, the grandmother overdosed on prescription drugs. She denies doing so in an attempt to end her life. She says she has been depressed since she found the mother was using drugs. She reported to Ms Bowen feeling desperate because of the ongoing fear and stress associated with the constant threats made towards her and her family by Mr Brown such as “you’re dead, you big fat mole”. She now takes anti-depressants and presented to Ms Bowen as “coping well”. The mother told Ms Bowen her mother used alcohol to excess and had periods she did not get out of bed which led to Angela missing school. The mother says “I used to yell at Mum because she used to stay in bed all day and I had to do everything in the house and have dinner every night on the table.” The grandmother tells Ms Bowen Angela does sometimes miss school as a result of being returned late by her mother and because of the strain associated with the family problems. Ms Bowen accepts there may have been times when the grandmother drank to excess, but she finds her well supported and any risk to Angela, minimal. Ms Bowen asked Shannon and the maternal grandfather about the grandmother’s behaviour and found no basis for concern. The grandmother told Ms Bowen she was taking medication as prescribed for depression and ‘has been better than ever.’ There is no evidence upon which I could make a finding that the grandmother is not managing well in her care of Angela. I accept Ms Bowen’s opinion that “Angela’s physical and emotional needs appear to be a priority for the maternal grandparents and Angela presented as secure and well cared for in her maternal grandmother’s household.”
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
For reasons already set out, I find neither of Angela’s parents have fulfilled their responsibilities as parents. Instead, I find the grandmother, assisted by the grandfather have fulfilled those parental responsibilities.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living
Given Ms Bowen’s observations about the importance of the grandparents and Shannon in Angela’s life, I find Angela would suffer if separated from them and moved to live with the mother.
The practical difficulty and expense of a child spending time with and communicating with a parent
There is nothing to prevent Angela having regular and frequent communication with both parents by phone, letter or other electronic means. The grandmother has facilitated telephone communication for the mother in the past. The father is free to communicate with Angela by phone at any time. The mother says she would have difficulty travelling to the Central Coast with her two other young children if the court ordered that time with Angela be spent in that region. The grandmother says she will take Angela by train or car to Richmond if the mother is living there as long as the grandmother can be sure Mr Brown is absent. I am satisfied the grandmother has in the past overcome practical difficulties to ensure Angela spends time with the mother and will continue to do so.
The maturity, sex, lifestyle and background of the child and if the child is an Aboriginal child, the child’s right to enjoy her Aboriginal culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
The grandmother says she is Aboriginal and Angela has Aboriginal heritage. She says Angela identifies as Aboriginal at her school and is one of 12 Aboriginal children in her year “Angela is proud to be aboriginal, as am I.” The maternal grandmother is a member of the local Land Council and other Aboriginal associations in the Central Coast region. I am satisfied the grandmother, the mother and Angela are Aboriginal, despite the mother’s denials in cross-examination. The mother reported to the drug and alcohol service on the central coast in February 2003 that she was Aboriginal. In cross-examination, shouting hysterically and sobbing, the mother denied being Aboriginal.
I find Angela’s need to enjoy her aboriginal heritage will be best promoted if she lives with her grandmother.
The attitude each parent and each party has shown to the responsibilities of being a parent
I accept Ms Bowen’s opinion that the mother presently displays a poor attitude to the responsibilities of being a parent as discussed already in these Reasons. I find the grandmother shows impressive insight into the importance of Angela’s relationship with both her parents, particularly her mother. She has continually encouraged and assisted the mother to participate in rehabilitation and therapy, so she can take proper care of her children, including Angela. I am not persuaded the father has demonstrated an appropriate attitude to parenting, though I find he has more recently shown a greater commitment to Angela’s welfare. I encourage the father to take further steps to promote Angela’s relationship with him and his family so he can better meet Angela’s emotional and financial needs.
Any family violence involving the child or a member of the child’s family; any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
The grandmother has a current two-year apprehended violence order against Mr Brown. Mr Brown is presently restrained by his bail conditions from entering the area on the South Coast where the mother and their two children are living. I take these factors into account.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is not a factor to which I give weight given the safety issues in this case.
Any other relevant fact or circumstance
As already noted, I have considered the factors listed in section 60CC as they apply to the grandmother as well as the parents.
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making. Section 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption has no application to orders for parental responsibility made in relation to other people who are not parents.
The father does not seek an order for shared parental responsibility but rather supports the grandmother’s application that the grandmother have sole responsibility for major decisions concerning Angela’s welfare. It is common ground that the mother and the father have not cooperated to make decisions about Angela’s welfare since their separation in 2000. They do not communicate. In my view, it is not in Angela’s best interests for an order to be made for her parents to have equal shared parental responsibility.
Ms Bowen says that even though the mother and maternal grandmother cooperated well in front of Angela at interview, she has concerns about the mother’s ability to co-operate in decision making and believes they would be unlikely to agree. The mother’s life is in flux. In my view, her present mental state is so unpredictable that an order to share parental responsibility would be unworkable. I accept Ms Bowen’s recommendation that the maternal grandmother have sole responsibility for decision-making about Angela.
Conclusion
I find the mother demonstrates no insight at all into the damaging effects of Mr Brown’s behaviour towards Angela, or indeed the effects on her other two children. For reasons already set out, I find Angela’s interests are best served by her continuing to live with her maternal grandmother. I agree with Ms Bowen that even if the mother was not in a violent relationship, Angela’s interests would be better served living with her grandmother. Ms Bowen says the mother needs an extended period of time to recover and stabilise her living arrangements. She needs long term psychiatric assistance and other therapeutic support so that the effects of her drug use on her behaviour and personality can be assessed and managed.
The mother submits “I would let her see her grandparents. I just want a chance, a trial period.” In her report of December 2005, Ms Bowen recommended the mother “attend a psychiatrist and other therapeutic support consistently and over an extended period in order to gain assistance to regulate her emotions so that she would be more able to provide calm and consistent care of the children. Further assessment for the possible effects of drug use on her behaviour and personality would also be recommended before there be any further consideration of changes to Angela’s living arrangements.”
It is worth noting that the mother received a copy of the Family Report when it was released 8 months before this hearing, but was unable to adduce any evidence of having had regard to the contents of that report. On the contrary, the mother remains in a relationship with Mr Brown and her plans for the future are far from settled. She has not sought any therapy.
Counsel for the independent child lawyer submits he can see no way Angela’s relationship with her mother can be promoted. He says the objects of the parenting provisions in the Act are designed to prevent a person such as Mr Brown having any part in a child’s life. I accept counsel’s submission that Mr Brown engenders fear in those with whom he associates and Angela should be protected from him.
I accept the mother is genuine in her expressed wish to be a family and to have Angela as part of that family. The mother will be disappointed and distressed the court will not grant her wish to have Angela live with her. I find the mother has not, as yet, shown any insight into what she needs to do to make her wish come true and has taken no positive steps towards achieving that goal. The mother shows minimal insight into the impact of her behaviour or her chaotic lifestyle on Angela or on her other two children. She says “my life is on track, thank you.” Until the mother is prepared to accept her need for long term therapeutic assistance, to arrange the therapy and to find a stable and safe long term base for her children, I find Angela’s situation in relation to the mother is not likely to improve. I agree with Ms Bowen that Angela needs to feel certain her mother loves her. She needs reassurance, especially since her younger siblings are with her mother. She needs practical signs of that love, including letters and cards and tranquil visits to show her mother is interested in her. The mother shows little understanding of Angela’s needs in this regard.
I am satisfied Angela is living in a settled household with her grandmother, Shannon and her grandfather close by and has been for the past 3 years. She is enjoying her second year of school. Her grandmother provides her with loving and competent care day to day. She enjoys regular time with other members of her extended family, her paternal grandmother and she has some contact with her father.
I am satisfied it is in Angela’s best interests for these arrangements to continue.
The grandmother believes it important for Angela to spend time with her mother and her father, recognising her strong attachment to her mother. The onus is now on both parents to prioritise Angela’s needs ahead of their own and on the mother to obtain the necessary professional assistance to set her life on a better course.
I strongly urge the mother to seek therapeutic assistance from Relationships Australia, Unifam, Interrelate, Centacare or another appropriate agency, once her residential arrangements are settled.
I am satisfied that the Orders set out at the commencement of these Reasons are in Angela’s best interests.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 31 October 2006
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