Babbitt and Braswell and; Braswell and Golding

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABBITT & BRASWELL and
BRASWELL & GOLDING

[2014] FCCA 2049

Catchwords:
FAMILY LAW ̶ Whether mother or father better able to provide care for children ̶ consideration of separation of siblings.

Legislation:

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

Applicant:

MR BABBITT

Respondent:

MS BRASWELL

File Number:

DGC 786 of 2013

AND

Applicant:

MS BRASWELL

Respondent:

MR GOLDING

File Number:

DGC 2761 of 2012

Judgment of:

Judge Phipps

Hearing date:

17 March 2014

Date of Last Submission:

17 March 2014

Delivered at:

Dandenong

Delivered on:

5 September 2014

REPRESENTATION

DGC 786 of 2013

The Applicant:

Appearing on their own behalf

The Respondent:

Appearing on their own behalf

DGC 2761 of 2012

The Applicant:

Appearing on their own behalf

The Respondent:

Appearing on their own behalf

ORDERS: BABBITT & BRASWELL – DGC 786 of 2013

That the mother and the father have equal shared parental responsibility for the child [X] born [omitted] 2007.
That the child live with the father.
That the child spend time and communicate with the mother as follows:
(a)From 4.00pm Friday until 6.00pm Sunday each alternate weekend to coincide with the time the child [Y] born [omitted] 2010 is spending with the mother;
(b)For half of all school holidays as agreed and if not agreed the first half in odd numbered years in the second half in even numbered years;
(c)From 5.00pm on the eve of Mother’s Day until 5.00pm on Mother’s Day each year (with time to be suspended for a like period on the Father’s Day weekend of each year);
(d)On the child’s birthday and the mother’s birthday as agreed;
(e)By telephone and Skype or similar communication at all reasonable times;
(f)Otherwise as agreed.
That paragraph 3(a) is suspended during all school holidays.
That notwithstanding any other order at Christmas:
(a)The child shall spend from 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year and thereafter from 3.00pm on Christmas Eve to 3pm Christmas Day in 2015 and each alternate year thereafter with the father;
(b)The child shall spend from 3.00pm on Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter and from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2015 and each alternate year thereafter with the mother.
That the mother is entitled:
(a)To receive copies of all reports, correspondence and notices including notices of school concerts, sports days, speech nights, parent teacher interviews the like usually provided to parents;
(b)To attend all school functions to which parents are usually invited;
(c)To attend upon any doctor or other health professional treating the child and to be given information about the treatment and general health of the child.
That each parent keep the other informed of their residential address and telephone number.

ORDERS: BRASWELL & GOLDING – DGC 2761 of 2012

That the mother and the father have equal shared parental responsibility for the child [Y] born [omitted] 2010.
That the child live with the father.
That the child spend time and communicate with the mother as follows:
(a)From 4.00pm Friday until 6.00pm Sunday each alternate weekend to coincide with the time the child [X] born [omitted] 2007 is spending with the mother;
(b)Until the child commences school from 8.30am to 5.00pm on Tuesday and Thursday in each week;
(c)For half of all school holidays as agreed and if not agreed the first half in odd numbered years and the second half in even numbered years;
(d)From 5.00pm on the eve of Mother’s Day until 5.00pm on Mother’s Day each year (with time to be suspended from like period on the Father’s Day weekend of each year);
(e)On the child’s birthday and the mother’s birthday as agreed;
(f)By telephone and Skype or similar communication at all reasonable times;
(g)Otherwise as agreed.
That paragraph 10(a) is suspended during all school holidays.
That notwithstanding any other order at Christmas:
(a)The child shall spend from 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year thereafter and from 3.00pm Christmas Eve to 3.00pm Christmas Day in 2015 and each alternate year thereafter with the father;
(b)The child shall spend from 3.00pm on Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter and from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2015 and each alternate year thereafter with the mother.
That the mother is entitled:
(a)To receive copies of all reports, correspondence and notices including notices of school concerts, sports days, speech nights, parent teacher interviews the like usually provided to parents.
(b)To attend all school functions to which parents are usually invited.
(c)To attend upon any doctor or other health professional treating the child and to be given information about the treatment and general health of the child.
That each parent keep the other informed of their residential address and telephone number.

IT IS NOTED that publication of this judgment under the pseudonym Babbitt & Braswell and Braswell & Golding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 786 of 2013

MR BABBITT

Applicant

And

MS BRASWELL

Respondent

And

DGC 2761 of 2012

MS BRASWELL

Applicant

And

MR GOLDING

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Braswell is the mother of [X] born [omitted] 2007 and [Y] [omitted] 2010. Mr Babbitt is the father of [X] and Mr Golding is the father of [Y]. Ms Braswell commenced proceedings in relation to [Y] on 7 January 2013. Mr Babbitt commenced proceedings in relation to [X] on 2 April 2013. The mother now has a third child, [Z] who was eight months at the time of the hearing.
Under interim orders made in each proceeding [X] lives with

Mr Babbitt and [Y] lives with Mr Golding. Each child spends time with the mother. This was the position prior to each of the proceedings being commenced. The proceedings were fixed for final hearing together. Family reports were prepared for each proceeding by the same family consultant Mr A. The mother’s proposal is that both children should live with her. Each father proposes that his child should continue to live with him and continue to spend time with the mother.
The significant issues are the separation of siblings and the mother’s ability to care for the children. The best interests of the two children cannot be considered separately and it would be unrealistic to prepare two separate sets of reasons. Much contained in each set of reasons would be identical.
Each party was self represented at the hearing. Notwithstanding that the mother is applicant in one proceeding and the respondent in the other I directed that the mother present her case first.

Proposals

The mother and Mr Babbitt each filed a case outline which contain their proposals. The mother’s proposal is identical for each child. She proposes that the mother and father have equal shared parental responsibility for each child and that each child live with the mother. She proposes each child spend time with the father:
a)Each alternate weekend from 6.00pm Friday until 5.00pm Sunday;
b)For the first half of each short holiday period commencing at 6.00pm on the first Saturday of such holidays and concluding at 5.00pm the following Sunday;
c)For the first half of each Christmas school holiday period commencing at 6.00pm on the first Saturday succeeding the conclusion of term four and concluding on the third Saturday thereafter at 6.00pm;
d)On Father’s Day in each year commencing at 6.00pm on the Saturday preceding Father’s Day and concluding at 5.00pm on Father’s Day;
e)From 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year thereafter;
f)From 3.00pm Christmas Eve to 300pm Christmas Day in 2015 and each alternate year thereafter.
The mother then has proposals concerning information about schools and medical matters and attendance at school functions.
Mr Babbitt filed a case outline. He proposes that he and the mother have equal shared parental responsibility for [X] and that [X] lives with Mr Babbitt. He had alternative proposals for time depending on whether the mother was living in the [H] area or relocated to the [O] area. The mother remains living in [H] and stated that she no longer intends to move to [O].
Mr Golding did not file a case outline but adopted as his proposal the recommendation made by Mr A who prepared a family report in each case. Mr A recommends that the mother and Mr Golding have equal shared parental responsibility for [Y] and that [Y] live with Mr Golding. For [Y]’s time with her mother Mr A recommends as follows:
a)Each alternate weekend from 5.00pm prior Friday until 6.00pm Sunday or Monday if Monday is a public holiday;
b)That the alternate weekend time that [Y] spends with her mother be made congruent with the alternate weekend time [X] spends with the mother;
c)That until [Y] commences school she spend time with the mother on two weekdays each week from 10.00pm to 5.00pm;
d)That after [Y] commences school she spend half school holidays including the long summer vacation with her mother with each period not exceeding 14 consecutive nights;
e)That there be liberal telephone and Internet contact between the mother and [Y] at reasonable times;
f)That each of the parents provide the other parent with the results of supervised drug screens at reasonable times;
g)That the mother receive copies of all childcare, kindergarten or school reports available to parents;
h)That if they have not already done so the mother and Mr Golding separately attend and complete post separation parenting courses.
Mr A made one further recommendation. That is that in the off weekends when [X] and [Y] do not spend time with their mother

Mr Golding make every effort for [Y] to spend time with [X] either at his mother’s residence or at Mr Babbitt’s residence.
The mother proposes that [X] and [Y]’s time with their fathers should be on the same weekend. Both Mr Babbitt and Mr Golding propose that [X] and [Y]’s time with the mother should coincide. This is Mr A’s recommendation.

Family Law Act

All parties propose that there be an order for equal shared parental responsibility for each child and this coincides with Mr A’s recommendations. Nothing in the evidence suggests a contrary order.
The intention of making of such an order means that s.65DA of the Family Law Act 1975 (Cth) applies. It requires that the court must consider whether equal time with each parent is in the best interests of the child and reasonably practicable or if not equal time substantial and significant time.
Section 60CA provides that in making parenting orders the best interests of the child is the paramount consideration. Section 60CC contains the matters a court must consider in deciding what is in a child’s best interests. Part VII of the Family Law Act 1975 (Cth) contains children’s provisions. Section 60B describes the objects of Part VII and the principles underlying it so that the other provisions of the Part must be applied bearing in mind these objects and principles.

Background

The mother was born on [omitted] 1985, Mr Babbitt on [omitted] 1972 and Mr Golding on [omitted] 1983. The mother and Mr Babbitt commenced living together in April 2005 and separated on 26 December 2007. The mother formed a relationship with Mr Golding in 2008 and commenced living together in November 2009 they separated on 20 April 2012.
[X] was about six months old when his parents separated. After the separation Mr Babbitt says that he and the mother shared the care of [X] whereas the mother says that [X] lived with her and spent time with the father each weekend and on other occasions as agreed. She says there were a couple of occasions when [X] went with his father to Sydney to spend time with the paternal grandparents.
[X] came into his father’s care in October 2010 according to

Mr Babbitt and May 2011 according to the mother. The mother says that in about May 2011 she returned to full-time work and for approximately 2 months she was putting [X] in day care five days per week while she worked. She says that [X] was reluctant to go to day care. The father was employed at [omitted] which has a child-care centre. The mother says she wondered whether the child would be better in a child-care centre where somebody was around if need be and that she agreed with the father that [X] go to him during the week and she have the child each weekend until the end of the 2011 year.
Mr Babbitt says that by October 2011 the mother was spending very little time with [X]. He moved to [W] and decided to cease work and move to [omitted]. The mother says that she agreed with Mr Babbitt that [X] would remain with his father and come to her each weekend and they would review the arrangement prior to [X] commencing school in 2013.
The mother claims that it was always understood between Mr Babbitt and her [X] would recommence living with her full time before he started school. Mr Babbitt disputes this. The father enrolled [X] in the [omitted] School at the commencement of 2013 and [X] has attended ever since. He has remained living with his father and spending time with his mother on alternate weekends. Since interim orders were made on 29 May 2013 these arrangements have continued pursuant to those interim orders.
The mother and Mr Golding separated in April 2012 when [Y] was about two. [Y] remained living with her mother until 9 July 2013 when Mr Golding retained [Y] in his care. He says it was because of concerns about the mothers continuing illicit drug use and inadequate care of the child. The mother maintains that in July Mr Golding became aware of her new relationship with Mr U and claims he retained [Y] out of jealousy.
Following this Mr Golding, according to the mother, insisted that the mother see [Y] only under supervision. The mother says she saw [Y] on 7 September 2012, and 14 November 2012. Mr Golding says she saw [Y] on about four occasions until orders were made on 18 April 2013.
The mother says that she attended Legal Aid on 31 July 2012 and was referred to a private practitioner. She wished to obtain a recovery order. By the time she had obtained the necessary documents and made application for legal aid and it was approved it was 21 August 2012. On 17 August 2002 she received a request for mediation and she attended but that mediation was unsuccessful.
The first court date for the mother’s application was 5 March 2013. On that day orders were made by consent that [Y] lives with Mr Golding and spend time with the mother each Saturday from 12 noon to 5.00pm. The order provided for the mother to obtain a psychiatric assessment from her treating psychiatrist Dr K and orders for each party to obtain supervised drug tests. The order was made for the parties to meet with a family consultant.
The meeting with the family consultant was on 18 April 2013 and on that day orders were made by consent for the child to live with the father and for the child to spend time with the mother from 4.00pm Friday to 11.00am Saturday each week and from 10.00am to 5.00pm each Monday and Wednesday of each week.
Mr Golding is employed working five days a week Monday to Friday from 8:40am to 5.00pm and generally not at weekends. He is assisted by his mother in caring for [Y]. [Y] has spent more time with the mother than the order provides for. The time on Mondays and Wednesdays is generally extended and there have been occasions when [Y] has spent extra nights with the mother.
The mother is now in a relationship with Mr U. They commenced living together about November 2012 and have one child [Z] born [omitted] 2013. Mr U is from [omitted] and a member of a large family. The mother and Mr U live at the mother’s address in [H] and members of Mr U’s extended family live close by.
[X] did not spend time with his mother over the Christmas period 2012/2013. Mr Babbitt says he did not provide the child because he asked the advice of his solicitor who said that normally orders were suspended over Christmas holidays. The orders for time did not provide for holidays and so the basis for an implied suspension of regular weekly or fortnightly time did not apply. While Mr Babbitt may have thought he was justified in doing what he did his action shows a lack of insight into [X]’s need to have a relationship with his mother.
Two issues concerning the mother can be dealt with briefly. The mother has an acknowledged use of illicit drugs in the past but drug screens over the time leading up to the hearing have all been clear and the question of her drug use and in particular its effect on her ability to care for children is not now an issue.
The mother suffered from depression and attended upon Dr K consultant psychiatrist. An affidavit annexing his report is part of the evidence. The report is dated 15 April 2013.
Dr K saw the mother on three occasions 1 October 2012, 22 November 2012 and 12 April 2013. When he last saw her she was five weeks pregnant. Dr K says she has numerous stresses in her life which includes her ex-partners having custody of their respective children. She was sleeping quite well energy levels has been good. He said there were no symptoms of anxiety disorder nor psychosis evident. He said her mood remained good and she had decreased her medication and intended ceasing it.
Dr K said he believed that the mother met the criteria for a Major Depressive Disorder which was mild and Borderline Personality traits. He said she had a past history of Marijuana Dependence.
Dr K says that he believes her prognosis in the short and long term is good. He did not believe her illness poses any unacceptable risk of abuse to her children and he fully supported her wishes to have joint custody of her daughter [Y].
Consequently while the mother has had a past history of marijuana dependence and some depressive disorder they are now not an issue in determining her ability to care for her children except that the diagnosis that Dr K made is relevant to the opinion expressed by the report writer Mr A of doubts about the mother’s ability to care for three children together.

Best Interests Considerations

Section 60CC of the Family Law Act 1975 (Cth) provides:
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.

Each party acknowledges that the children need to have a relationship with their parents. Currently each child lives with that child’s father and spends time with the mother, including overnight time. Whichever proposal is adopted the children will continue to have a meaningful relationship with their parents. How well the first of the primary considerations will be satisfied depends on a consideration of other factors.
The second of the primary considerations is the need to protect the children from harm. No issues arise in relation to each father and I have dealt with the potential issues in relation to the mother. Dr K’s report shows that the mother’s prognosis is good, drug tests have been clear and neither father alleges that the mother now poses a risk in caring for the children.
The first of the additional consideration is the views of the children. Mr A conducted interviews for his two reports on different days but both children attended on both days. Mr A refers to both children in each report.
In his report in the Babbitt matter Mr A says that at the end of his interview [X] reiterated, unambiguously, that “I want to live here and visit mum”. He said to Mr A that it is “lovely living with my dad” and that “going to see mum is good of course”. He understood he has two sleeps on weekend with his mother but lamented that “[Y] is there for one night”. He would like her to be there for both nights at his mother’s. Mr A says than when he put to [X] that if he remained living with his father it might be possible for [Y] to visit him there [X] was enthusiastic.
In the report in the Golding matter Mr A says that the siblings were particularly happy to meet each other and have the opportunity to play together. Mr A described his conversation with [X] on that day and says that it was clear from conversation with [X] that he expects to continue to live with his father.
[X]’s young age has to be taken into account but his desire to remain living with his father is understandable. Mr A says that he is well settled in an established routine with his father. He is a bright boy enjoying school and is well established with friends and activities in the [W] area.
[Y] is too young to have any views.
The next consideration is the relationship of the children with their parents and other people. [X] has lived with Mr Babbitt since October 2010 according to Mr Babbitt and July 2011 according to Ms Braswell. Whichever it is [X] has now lived with his father for a considerable period of time and during that time the father has been his principal carer.
[Y] has lived with her father since July 2013. The mother and

Mr Golding separated in April 2012 and so [Y] was aged two when her parents separated. She has been cared for by her father and paternal grandmother and Mr Golding acknowledges that he relies heavily on his mother’s assistance. Mr A describes [Y] as active and inquisitive. She showed no anxiety in the presence of the father and grandmother. On the contrary it was clear that [Y] was very familiar with both people and was at ease. With a little encouragement from her father she was happy to remain in the playroom with her grandmother while her father was separately interviewed. In the absence of the grandmother [Y] and Mr Golding played together for about half an hour. Mr Golding got down on the carpet to play and [Y] clearly enjoy interacting with her father.
Mr A describes the mother’s interaction with the children in both of his reports. In the report in the Golding matter he describes the mother as somewhat inactive, leaving the children to play by themselves and entertain her. No tension or animosity was observed between the children or between either of the children and the mother. In the Babbitt matter Mr A says neither child showed any sign of anxiety in the presence of their mother: they simply seemed somewhat indifferent to her and tied up in their own activities. Again Mr A describes the mother as passive in her interaction with the children, tending to let them do their own thing, while observing.
As to the relationship between the two children Mr A says that when the mother and [Y] arrived [X] ran to meet them at the front door. [X] greeted [Y] with particular enthusiasm and guided her into the playroom. The two children played together. Mr A says one thing that is evident is that the two children miss each other and need to spend more time together.
The next consideration is the extent to which each parent has participated in decision making spending time and communicating with the child. Since each child went to live with that child’s father decision-making has been with the father in [X]’s case and with the father and grandmother in [Y]’s case. Mr Babbitt has made the decision about where [X] should attend school and Mr Golding and the grandmother make decisions about [Y]. To be fair to the mother she has not been consulted. She has spent time with each child since they ceased living with her, more so with [Y] than with [X]. A point Mr A makes is the time which elapsed before the mother commenced or became involved in proceedings. In the case of [X], Mr Babbitt commenced proceedings on 2 April 2013. In the case of [Y] the mother commenced the proceedings on 7 January 2013. In the case of [Y] the mother gives the explanation of time taken in attempting to have mediation and in obtaining legal aid but it was still six months after [Y] had gone into her father’s care before the mother commenced the proceedings.
The next consideration is the extent to which each party has fulfilled the obligation to maintain the child. The mother and each father care for the child while the child is in their care. Other than this, there is no evidence relevant to this consideration.
The next consideration is the effect on the child of any change. [X] has been in his father’s care for at least three years. He is settled living with his father and attending his school and with his friends at the school. He expects to keep living with his father. [Y] has lived with her father and grandmother for two years. She is well cared for but more likely to adjust to living with her mother.
The next consideration is the practical difficulty and expense for the child to spend time with each parent. While there is some distance between the mother’s home and Mr Babbitt’s home this has not affected [X]’s ability to spend time with his mother. The mother’s home and Mr Golding’s home are close to each other.
The next consideration is the ability of each parent to provide for the needs of the child. This is of considerable significance in this case. Both Mr Babbitt and Mr Golding show that they have the ability to provide for each child’s needs. Mr A says that observation of [Y] with her father has shown him to be a competent, attentive parent who would not put [Y] at risk and, at the same time endeavours to maximise the child’s time with her mother. Mr A says that [X] is now well settled in the established routine with his father at [omitted]. He says “this bright boy is enjoying school where even in his prep year he is an advanced reader. [X] is also well established with friends and activities in the [W] area”. Thus, Mr A observed well cared for and happy children and the mother does not contradict this.
There must be some doubt about the mother’s ability to care for three children together. The mother asked Mr Babbitt to care for [X] although she says this was to be for a limited time. She says it was because she had returned to work and had a relatively young child, [Y], but the inescapable fact is that while she was clearly [X]’s primary carer at that stage she considered that he would be better cared for by his father at least for a time. The inference that she felt she could not cope is inescapable.
Circumstances with [Y] are different. Mr Golding retained [Y] in his care against the wishes of the mother because he was concerned about what he says was the mother’s drug taking and mental state. I consider he was sincere in his belief. He was working full-time and so taking [Y] into his care required considerable adjustment in his life, although that adjustment was much assisted by the grandmother’s role.
The mother disputes that she was taking drugs when [Y] went into

Mr Golding’s care or that there was any difficulty with her mental state. Dr K’s report shows past problems but does not suggest that those problems were such that in the middle of July 2012 she could not care for a child. As to drug taking there is no evidence other than the assertion by Mr Golding. However, the fact remains that [Y] is well cared for both in general physical aspects of her life and in her emotional and intellectual development.
Mr Golding’s mother provided an affidavit and she was interviewed briefly by Mr A. She was not cross-examined but her affidavit is consistent with Mr A’s report of the interview. She strongly supports her son. She told Mr A that the mother won’t cope especially with a new baby. She talked about the mother smoking during each pregnancy and use of illicit drugs. She said she was confident about her opinions about the mother’s parenting capacity because she had seen them when the mother, Mr Golding and the child had lived with her on two occasions.
Mr A says this in the Babbitt matter:
Both cases have similarities in that the care of the children has passed to the fathers in circumstances that are not entirely clear. In the case of Mr Babbitt he has said he was invited to care for [X] at a time – some 2 to 3 years ago – when it seems Ms Braswell was not coping due to her depressive illness and/or was preoccupied with her then new relationship with Mr Golding.
There is a recurring pattern here whereby as each child has grown up, first [X] and then [Y], they have become cared for by their fathers. It seems as though, as Ms Braswell has moved from one partner to the next, she has found it acceptable, or convenient at the time, for the fathers to intervene and take responsibility.
In the Golding matter Mr A says:
In this writer’s opinion, notwithstanding Dr K’s report about Ms Braswell’s mental health, there is a question about this Braswell’s parenting knowledge, skills and capacity; particularly, in the given situation where she expects to be caring for a new baby.
Whatever parenting problems Ms Braswell has had to contend with in the past will of course be magnified by the return of [Y] and/or [X] to live with her.
The undisputed facts alone show that Mr A’s opinion is soundly based. [X] went into Mr Babbitt’s care with the consent of the mother in circumstances where the mother had a young child and was returning to work and she wanted the father’s help. The circumstances in which [Y] went into Mr Golding’s care are different, but the mother allowed that to continue for some time before taking any steps to have [Y] returned to her care. In Mr A’s words as the mother has moved from one partner to the next it seems she has found it acceptable, or convenient at the time for the fathers to intervene and take responsibility.
There is no evidence relevant to the balance of the best interests considerations.

Conclusion

The best interests of each child is to live with the child’s father. In the case of [X], while taking into account his young age, his view is that he expects to remain living with his father and he wants to remain living with his father. He is well settled and well cared for with his father. To change his circumstances to living with his mother might have an adverse effect on his current satisfactory state. There is no doubt about his father’s ability to provide for his needs including intellectual and emotional needs. There is doubt about the mother’s ability.
In the case of [Y] she is settled and well cared for with her father. There is considerable help from Mr Golding’s mother, but that does not detract from the fact that [Y] is well cared for. Family circumstances where parents work full time and a grandparent helps care for a child is common and if the care is good the child thrives. This is the case with [Y]. Again, to change [Y]’s circumstances might have an adverse effect on her current satisfactory state, and again there is doubt about the mother’s ability to provide for [Y]’s needs, including her emotional and intellectual needs.
There is a contrary consideration, and that is the separation of siblings. The relationship between [X] and [Y] is strong. They enjoy each other’s company and [X] wants to see more of [Y]. In addition they now have another younger sibling.
[X] has lived with his father since 2011 or 2012 and the best interests considerations, apart from his relationship with his siblings, are strongly in favour of his continuing to live with his father. The separation from his siblings is not sufficient to detract from the strength of the other considerations.
For [Y], while the best interests considerations, apart from her relationship with her siblings, are in favour of her living with

Mr Golding they are not as strong as they are for [X] but strong enough that they should prevail.
The most significant consideration in reaching these conclusions is the doubt about the mother’s ability to care for three children together. Apart from separation from each other [X] and [Y] are well cared for. Living with a sibling would not compensate for the loss of well-being that might come about if they were to live with their mother and I consider that is too great a risk.

Reasonably practicable

None of the parties propose equal time and the best interests considerations are against such an order. In the case of [X] the distance between the homes is too far as to make equal time reasonably practicable. If [Y] was to spend equal time with her mother there would be a complicated arrangement in the mother’s household where one child lives full time, [Y] lives half the time and [X] every second weekend. I do not see that as reasonably practicable.
I am satisfied that each father’s proposal and the recommendation of Mr A does, in this case, satisfy the requirements of substantial and significant time.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 5 September 2014

[2014] FCCA 2049

5 September 2014

Key Legal Topics

Areas of Law

Civil Procedure

Equity & Trusts

Legal Concepts

Abuse of Process

Estoppel

Res Judicata

Standing