Barker and Wylie and Anor
[2017] FamCA 665
•29 August 2017
FAMILY COURT OF AUSTRALIA
| BARKER & WYLIE AND ANOR | [2017] FamCA 665 |
| FAMILY LAW – CHILDREN – With whom the children live – Where the mother’s parenting capacity is impaired by drug use – Where the parenting capacity of the father is impaired by immaturity and self-absorption – Where both parties have confidence and trust in the paternal grandmother – Where the children associate the home of the paternal grandmother with certainty, comfort and easy contact with the paternal family – Where the paternal grandmother has maintained a respectful and cooperative relationship with the mother and been careful not to be drawn into the conflict between the parents – Where the paternal grandmother will support a relationship between the children and mother – Concluded that sole parental responsibility should vest in whom the children live with – Order the children live with the paternal grandmother |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Mr Barker |
| RESPONDENT: | Ms Wylie |
| 2nd RESPONDENT: | Ms B Barker |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | (P)NCC | 3108 | of | 2014 |
| DATE DELIVERED: | 29 August 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 27 - 30 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bithrey |
| SOLICITOR FOR THE APPLICANT: | Ashby Family Solicitors |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Boyd |
| SOLICITOR FOR THE 1ST RESPONDENT: | Perdriau Family Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE 2ND RESPONDENT: | Catalyst Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That all prior parenting Orders made in this Court and in the Federal Circuit Court in relation to C born … 2009 and D born … 2012 (“the children”) are discharged.
Parental Responsibility
That the paternal grandmother have sole parental responsibility for the children.
That the paternal grandmother shall notify the mother of decisions to be made as they arise involving long term care and welfare of the children (including but not limited to change of school, enrolment in high school, elective surgery, attendance on a medical specialist, religious instruction) and shall:
(i)Express her own views and proposed decision;
(ii)Invite the mother to express her views and proposals on the topic within a reasonable period of time nominated by the paternal grandmother;
(iii)Consider the views/proposals, if any, of the mother, expressed within the nominated time; and
(iv)Advise the mother of the decision that the paternal grandmother has made.
Residence
That the children shall live with the paternal grandmother commencing Sunday 3 September 2017 at 10.00 am with the paternal grandmother (and the paternal aunt, Ms E Barker, if she is willing and able to accompany the paternal grandmother) collecting the children from the home of the mother.
Time with the father
That the father spend time with the children by agreement with the paternal grandmother.
Time with the mother
That the mother shall spend time with the children:
(a) Each Saturday between 10.00 am and 5.00 pm; and
(b)At such other and/or additional times agreed between the mother and the paternal grandmother.
Communication with the mother
That the children have telephone contact with the mother as agreed between the mother and the paternal grandmother and failing agreement each Wednesday with the call being initiated by the mother between 6.00 pm and 6.30 pm and the paternal grandmother ensuring the children are available to speak with the mother.
Changeover
That the paternal grandmother or her nominee shall deliver the children to the home of the mother at the commencement of her time and collect the children at the conclusion of the period. However in the event that the mother moves to live more than 25 kilometres from the Suburb F area, then the children shall spend time with the mother in the Suburb F local area and the paternal grandmother shall not be obliged to transport the children.
Information
The mother shall keep the paternal grandmother advised of her current residential address and contact telephone numbers.
The Independent Children’s Lawyer shall forthwith provide a copy of these orders to the principal of Suburb F Public School.
That the paternal grandmother shall authorise the pre-school/school which the children attend to release to each of the parents (at their respective cost if there is any) copies of school reports, applications for school photographs and other documents relating to the progress and welfare of the children at school.
That each of the parents is entitled to attend events at school to which parents are invited provided that each of the parents lets the paternal grandmother know that he or she is proposing to attend.
Restraints
That each of the parents is restrained from making critical or derogatory remarks in relation to the paternal grandmother and the other parent (and that parent’s partner and extended family) in the presence and hearing of the children and shall remove the children from the presence of third parties making such remarks.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barker & Wylie and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC 3108 of 2014
| Mr Barker |
Applicant
And
| Ms Wylie |
First Respondent
And
| Ms B Barker |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications by three parties for parenting orders in respect of two children, C aged eight and D aged five.
The applicant is the father, Mr Barker (“the father”). The father is 32. He has secure permanent employment. He lives in accommodation in a self- contained part of the residence owned by his mother in Suburb F on the Central Coast of NSW. He lives there with his current girlfriend Ms G aged 20. With the approval and consent of his mother the father intends to remain living there in her home, for the foreseeable future.
The first respondent is the mother, Ms Wylie (“the mother”) aged 28. The mother is not in employment at present and is expecting a child in September 2017 or thereabouts. She is said to be living with Mr H aged 23. He is her new partner and the father of the child she is expecting. They live in J Town, a township on the Central Coast of NSW.
It is an agreed fact that the mother has been an habitual user of at least marijuana, if no other drug, consistently from her early teens to date. The mother left home aged 12 or 13 years and has relied on the drug since then.
The second respondent is the paternal grandmother, Ms B Barker (“the paternal grandmother”). She was joined as a party in July 2015. The paternal grandmother is aged 60. For almost 40 years she has been a public servant. The paternal grandmother owns and lives in the family home in Suburb F. The other members of her household are her partner Mr L aged 70, her son (the father in these proceedings) and his partner, the paternal aunt aged 35 and her young son aged 10.
Relationship of the parents
The parents met in 2007. The father invited the mother to live with him in his mother’s home at the end of that year. In February 2008 the paternal grandmother, finding the conflict between the young couple intolerable, asked the mother to leave her home. She did and the father went with her. The children were born in 2009 and 2012 respectively.
There were, throughout the years of the relationship, periods of separation of varying lengths. The father nominated final separation as August 2013. The mother asserted March 2012. Neither date is realistic. The parties continued to live in a common residence until 2014. There was a further period of intimacy, if not reconciliation, early in 2015 which ended destructively and the parties did not reconcile again after that time.
The children presently live with the mother and spend limited time with the father, supervised by and in the home of, the paternal grandmother.
All parties live in reasonable proximity on the Central Coast of New South Wales.
Short history of events since separation
In June 2014 both parents and Mr M, a friend of the father’s, moved in to a property owned by the paternal grandmother at Suburb N on the Central Coast.
On 3 October 2014 the mother went to work and did not return to the household. The children remained living with the father.
The mother had formed a new relationship with a Mr O and was probably living with him at this time.
On 12 October 2014 the mother returned to the home to collect her possessions.
The next day arrangements were made for the children to see the mother in the near future.
On 21 October 2014 there was an incident between the parties. As a result police made an application for an Apprehended Domestic Violence Order (“ADVO”) for the protection of the father and children.
The father filmed the mother yelling abuse with the children present.
C, the elder child, did not want to go with the mother. The younger child D went with the mother and she brought him back as arranged.
On 30 October 2014 the pattern was repeated with C staying with the father, D going with the mother. This time the mother kept D with her.
On 4 November 2014 interim ADVO orders were made in the Local Court at Gosford, one protecting the mother from the father, one protecting the father and children from the mother. Applications were stood over to February 2015.
On 25 November 2014 the father filed an Initiating Application in the Federal Circuit Court seeking the following orders:
a)The parents have equal shared parental responsibility;
b)That the children live with him; and
c)Spend time with the mother each alternate weekend, for half holidays and other special occasions.
The interim orders sought at that time were for the mother to return the younger child to the father or else there be a recovery order and the mother undergo drug urinalysis.
On 15 December 2014, the mother filed a Response seeking orders, agreeing that the parties share parental responsibility, proposing that the children live with her and spend time with the father on alternate weekends, each Tuesday and on special occasions.
On the same day, 15 December 2014, interim orders were made in the Federal Circuit Court which provided for equal time between the parents with changeovers every three or four days. Other orders were made in relation to drug testing and drug and alcohol counselling. At the time those orders were made the younger child was living with the mother and the older child with the father.
Child Inclusive Conference
On 22 January 2015 the parties attended a Child Inclusive Conference with a Family Consultant.
On 22 January 2015 the Memorandum to the Court from the Family Consultant indicated that both parents were happy with the current orders (equal shared care), they were working and the Family Consultant’s expectation was that the matter would settle.
The father had produced clean drug screen results, the mother had not. Her drug screen was positive for cannabis. The mother indicated at that time that she was “currently taking steps to reduce her use, and obtain counselling”.
In relation to family violence it was noted that there was an interim Apprehended Violence Order (“AVO”) to protect the father from the mother and at that time the mother had made an application for a protective order for herself. However the Family Consultant said this,
… both parents are in agreement that there is no conflict at the current time and both are willing to drop the AVO’s when heard in Local Court next month.
The Family Consultant also reported they were able to communicate well and were getting along very well at that time; that they were sharing parenting information and were flexible with regards to arrangements. Nothing untoward was reported about the children.
Shortly thereafter the parents restored the intimacy between them, and, at least on the mother’s part, there was a hope for reconciliation of the relationship. The father in his oral evidence indicated that he had never expressed such a hope nor did he hold the view that the relationship would be restored.
Far from moving towards reconciliation on 22 February 2015 the parties had a violent drunken confrontation. The mother later alleged that the father had both physically and sexually assaulted her.
The relationship between the parties ended finally in March 2015.
The father then began an online relationship with a young woman (Ms P) in Eastern Europe.
On 3 March 2015 the mother made a statement to the police.[1] She made very serious allegations of physical assaults on her by the father on 22 February 2015. For instance that he punched her in the head, hit her with a bottle and a kitchen knife, threatened to kill her, and sexually assaulted her with a bottle.
[1] Affidavit of the mother filed 13/03/2017, Annexure AW1
On 10 March 2015 an ADVO was put in place for two years. The order was made in the absence of the father who had mistakenly believed that he would be legally represented in Court on that day. He himself was absent. The consequences were immediate.
On 11 March 2015 interim orders were made by consent which suspended the parenting arrangements, provided for the children to live with the mother and spend time with the father two hours each Friday at a contact centre.
On 13 March 2015 the father applied to the Court to review the ADVO on the basis that he had been absent and had expected he would be legally represented.
The father had been charged with common assault and assault occasioning grievous bodily harm arising from the incident on 22 February 2015 which I will turn to again later in these reasons. The more serious charge was withdrawn and the father pleaded guilty to assaulting the mother. The facts pleaded to being that he poured a bottle of water over her.
On 24 March 2015 the final ADVO was revoked on the successful application of the father and an annulment was granted.
On 1 July 2015 further interim consent orders were made in the Federal Circuit Court providing for the children to spend time with the paternal grandmother on alternate weekends from 5.00 pm Saturday to 5.00 pm Sunday and for the father to be at liberty to spend time with the children in their grandmother’s care. It was at the time of those orders that the paternal grandmother was joined as a party to the proceedings, over the objection of the mother.
On 20 July 2015 the paternal grandmother filed a document proposing sole parental responsibility for herself for both children and that the children live with her and spend time with their respective parents as agreed.
On 5 August 2015 the father was convicted of common assault and fined $900. The charge of assault occasioning grievous bodily harm was withdrawn by police.[2] A final ADVO was made for a period of 12 months.
[2] Exhibit 10
The mother was then approached online by Ms P’s former husband to enquire about the suitability of the father as a step-father.
The mother gleefully involved herself in a campaign of negative information about the father which ultimately led to that developing relationship coming to an end. The mother’s main motivation for discouraging the relationship, acknowledged by her, was that she was still hoping to reconcile with the father throughout 2015.
On 9 November 2015 further interim orders were made in the Federal Circuit Court providing for block periods of extended time with the grandmother and consequentially the father.
Soon after the father commenced his current relationship with Ms G who was then aged not quite 19 years.
The mother began a new relationship also, with a man known as Mr Q.
The proceedings were adjourned to 17 March 2016, a Family Report having been ordered.
Family Report – December 2015
On 15 December 2015 the Family Report was released. The recommendations in that report were as follows:
That the parties not share parental responsibility for decisions regarding the subject children. The Family Consultant recommended that whoever the children live with should be the party that took parental responsibility. In her oral evidence the Family Consultant confirmed that view.
Recommendations for residence were made, quite properly, on the basis of whatever findings the Court made. If the father as alleged by the mother was a violent individual, the Court might decide the children should live with the mother or the paternal grandmother, provided the Court could be satisfied that the paternal grandmother ensures the father remove himself from her residence if he displayed anger or violence and find somewhere else to live.[3]
[3] Family Report dated 8/12/2015, pars 314-322
Alternatively if the violence described in the relationship between the mother and the father was “mutual and circumscribed to that relationship”[4] the Court should then take into further consideration the issues of the mother’s drug history, her history of volatile relationships and decide that the children should live with the father and visit with the mother.
[4] Family Report dated 8/12/2015, par 317
The Family Consultant recommended individualised treatment for each of the parties. The father for skills in conflict resolution and anger expression and, for the mother, individualised treatment to address her issues of violent behaviour and conflictual communication. Also, that the mother seek treatment for her addiction problems. As a parent it was recommended to the mother that she complete further parenting courses as identified behaviours of the younger child had not been addressed through the Brighter Futures program in which the mother had been engaged.
The final recommendation was that the mother and the children would benefit from attending a psychologist who could design an individual program to address ongoing problems including sleep and tantrum behaviours exhibited by the younger child.
In January 2016 the mother and her partner Mr Q were in a vehicle which struck a pedestrian, a man who is a personal friend of the father’s. There were serious injuries resulting to that person.
The mother attended R Town Police station and took responsibility, although there is evidence suggestive of the mother being the passenger not the driver.
Transfer to the Family Court
On 17 March 2016 the parenting proceedings were transferred from the Circuit Court to this Court on the basis that it would “well exceed five days of hearing”.
On 4 May 2016 orders were made for the proceedings to be conducted as a Less Adversarial Trial.
In June 2016 the oral evidence of the mother suggests that she began her current relationship with Mr H.
The mother says that the relationship is ongoing. The mother is expecting a child of that relationship to be born before the end of 2017. Mr H did not give evidence nor attend at Court. It is a significant absence of relevant information.
On 1 July 2016 the father filed an Amended Initiating Application proposing that he and his mother, the paternal grandmother, have shared parental responsibility for the children, that the children live with the paternal grandmother and spend time with him as agreed between himself and his mother.
As alternate propositions he proposed either that the children spend time each Saturday from 10.00 am to 4.00 pm with their mother or if the Court found that the mother did not pose a risk of harm to the children, alternate weekends, half school holidays and other special occasions.
On 22 July 2016 the matter came before me. The hearing was listed for five days in March 2017.
On 26 August 2016 the mother filed an Amended Response proposing that she have sole parental responsibility for the children, that the children live with her and spend time with the father supervised by the paternal grandmother.
The oral evidence of the mother was that in November 2016 she and Mr H moved in together. The child she is now expecting must have been conceived shortly after that.
In January 2017 the mother produced a urinalysis result positive for cannabis and on 21 March 2017 a drug screen request by the Independent Children’s Lawyer to the mother was not responded to.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Father
(a)Amended Initiating Application filed 1/07/2016;
(b)Affidavit of the father Mr Barker filed 8/02/2017;
(c)Affidavit of Father’s Partner Ms G filed 27/03/2017;
(d)Affidavit of friend of both parents Mr M filed 13/03/2017;
The First Respondent Mother
(e)Amended Response to Initiating Application filed 26/08/2016 amended by Minute of Orders dated 28 March 2017;[5]
[5] Exhibit 13
(f)Affidavit of the mother Ms Wylie filed 13/03/2017;
The Second Respondent Paternal Grandmother
(g)Response to Initiating Application filed 20/07/2015;
(h)Affidavit of the paternal grandmother Ms B Barker filed 10/02/2017;
(i)Affidavit of Paternal Aunt Ms E Barker filed 10/02/2017;
Reports
(j)Family Report dated 8 December 2015;
(k)Child Inclusive Memorandum 22/01/2015.
Oral Evidence
The Father
The application of the father before the Court was very much affected by the allegations of the mother of rape and assault which were raised by her in March 2015. The immediate consequences of those allegations were that the father moved from sharing care of the children with the mother to limited supervised time in a contact centre and subsequently limited supervised time with them in his own home.
The father was not charged with sexual assault but was charged with assault occasioning grievous bodily harm and common assault. The outcome of those charges was that the more serious charge was withdrawn by police and in respect of the common assault fined $900. The Court ultimately found the assault to be the father tipping a bottle of water on the mother during the course of a heated argument. An AVO was made for the protection of the mother which expired in August 2016.
The father says, and I accept, that he altered his application, to propose shared parental responsibility between himself and his own mother and for the children to live with her, based on legal advice. He feared losing contact with the children.
The father has been reckless in his conduct. He re-entered a relationship with the mother in February 2015 knowing she was hoping for another reconciliation and he privately not intending for that to happen. He did so with a history of flaring arguments and conflict between the parties in private and in public, in front of the children and whoever else was listening where each of them screamed abuse at each other.
The father was well aware of the mother’s addiction to cannabis and also that his and the mother’s poor conduct was aggravated by the use of alcohol. Whilst it can be said that the mother greatly exaggerated and to some extent fabricated the allegations she made about the father, it cannot be said that the mother is responsible for the father’s conduct.
The father now has a comfortable and convenient lifestyle. He lives in separate one bedroom accommodation with its own entrance within his mother’s home. He and his partner each contribute $50 each week and the father is responsible for mowing and maintaining the grounds.
It is apparent that the father can be quick to anger with a well-developed sense of entitlement. He has a conviction insignificant in itself for having thrown a coin at a car which cut him off. Unfortunately for the father the car was driven by a plain clothes policeman and the matter was pursued.
In terms of his children I am satisfied the father is a loving parent to them and was fully engaged in their lives particularly with the older child C until his time was greatly reduced after March 2015.
The father did see a counsellor at a medical centre and had eight sessions of counselling in accordance with the recommendation of the Family Consultant. He had also attended with the mother during their relationship for couples counselling. His main issue being that he wanted the mother to give up marijuana use.[6]
[6] Exhibit 8
The father expressed anger and frustration over the mother’s drug use, what he referred to as her “laziness” when she was drug affected.
The father, whilst perhaps not an alcoholic, drank alcohol most days through the relationship. All the ingredients for explosive argument were present and that is what happened on a regular basis.
The father readily conceded that the children had been present at times when he and the mother had argued. He denied all allegations of having hit the mother or having hurt any of the children.
To the extent that the mother alleged that the father was using or selling drugs, he denied all allegations and there was no evidence to substantiate those allegations.
In relation to the mother there is no doubt the father has been offended by her derogatory postings about his current partner and agitated by text messages from the mother both negative and positive, “One minute she is nice, one minute she is not nice.”[7]
[7] Exhibit 30
The father said this about the mother, “She does care for the children but she does not know how to do it, she is driving around under the influence of drugs. The people she hangs around with are a worry. She loves her kids”.
Mr M
Mr M is a tall, strongly built man of 50. He works in a service industry.
Mr M was exceedingly nervous whilst giving evidence and at least in the early stages of his evidence I am satisfied he agreed to any proposition that was put to him with a view to hastening release from the witness box.
However in time he relaxed enough to give more considered evidence. He is clearly a man that does everything he can to avoid conflict.
Mr M gave evidence in relation to the events on 22 February 2015 which led to charges against the father. I accept what he said.
Mr M came home from work in the early hours of the morning, about 4.30 am, to see the mother sleeping in her car outside the house. The parents and Mr M had been members of a common household, in a house in Suburb N (a property owned by the maternal grandmother). On this occasion the mother had returned to that household to visit the father.
Mr M said he was concerned about the mother straight away and knocked on the window of the car and asked if she was alright. He identified that she was upset and said to her “come inside, we can sort this out tomorrow”. He did not notice any marks, bruises or blood on the mother. Simply that she was wet. This is consistent with the evidence of the father that he poured a bottle of water on the mother during argument.
Mr M directed the mother into the spare room of the house, suggested that she sleep there and then went straight to his own room. He said that the only thing that the mother had told him about what had happened that night was “[Mr Barker] and I had a fight, sorry for messing up your room”.
On the following day after Mr M had woken up, a few friends had come over and it was apparent to Mr M that the father and mother were still angry with each other. He asked the father if he had spoken to the mother yet. The father frowned at him and did not respond. He asked the mother and she said “No”.
The mother then became what Mr M, in his minimising style, described as “touchy”. She made a cruel remark about Mr M’s late daughter who had died of leukaemia as a teenager. He became upset and offended within himself.
An argument broke out between the two parents and Mr M directed the mother to leave the property.
I am confident that Mr M would have reacted in a very different way, a protective way, if the mother had been injured and bleeding in the way she alleged.
Ms G
Ms G is 20. She is in full time employment. She was polite and considered in her responses to cross examination.
The evidence supports a finding that she is committed to both the father and to the two children whom she first met in December 2015.
The mother has made derogatory marks about Ms G on her Facebook page. Mostly about the eleven year age disparity between Ms G and the father. Nevertheless when the question was asked of Ms G whether it would be “useful to meet the mother, maybe catch up and have a coffee or a milkshake together” her response, accompanied by a spontaneous smile, was “that would be lovely”.
The mother had produced a document, which she said came from Ms G’s Facebook page, referring to past drug use. Ms G denied that it was her Facebook page. There is no evidence to support an allegation, to the extent to which one was made, that Ms G has been involved in the use or sale of drugs.
I conclude that Ms G will be an affectionate and kind presence in the lives of the children.
The Paternal Grandmother - Ms B Barker
To say that the paternal grandmother has been supportive of her family is to underestimate the situation.
The paternal grandfather died in 2006. Subsequently, the paternal grandmother formed a friendship and partnership with her current partner, Mr L. Mr L has now turned 70. In 2013 he suffered a heart attack which affected not only his heart but deprived his brain of oxygen for a time and he has been somewhat disabled as a result.
The paternal grandmother has a carers allowance and assists her partner everyday with prompts and reminders as required and also with trips to hospitals as needed.
The household consists then of the paternal grandmother and Mr L, the paternal aunt Ms E Barker aged 35 and her son S aged 10. S is autistic and functions at the high end of the autistic scale. The other members of the household are the father and his partner.
The paternal grandmother is currently on long service leave and pending the outcome of these proceedings will make a decision about returning to work and on what basis. In the event that the subject children were living with her it is most likely that she will retire from teaching.
Ms B Barker was a most impressive witness. I conclude that she has genuine feelings of compassion for the mother and understands her difficulties.
The mother left home when she was either 12 or 13 and has struggled in a way that Ms B Barker as both an educator and a mother appears to understand.
In 2007 the mother came to live in the current household with the father. After a few months of dreadful verbal arguments between the pair, the paternal grandmother put her foot down and said she could not continue to have this conduct in her home. The mother was told she would have to leave and the father chose to go with her.
From the birth of the first child the paternal grandmother has maintained a respectful and cooperative relationship with the mother and there is no doubt the mother has appreciated that connection very much.
The paternal grandmother has also spoken to her son about changing his roster to enable him to spend all of the time that the children are in the household with them. The father presently works a shift on each of Saturday and Sunday from 5.00 am to 1.00 pm.
There is no doubt that the paternal grandmother is attuned to the needs of the subject children, just as she is and has been, to the needs of her own children. However despite the fact that she is generous in spirit and financially, she draws the line at unacceptable conduct and does not back down. This is an important consideration in this case.
The Family Consultant raised the issue of the Court being satisfied that the paternal grandmother would redirect the father out of the home if there was conflict as there had been when he lived there with the mother. I do not doubt that the paternal grandmother would take that step if it became necessary.
She has been careful not to be drawn into the conflict between the two parents. For instance, she agreed that the mother had complained to her about the father’s inconsistent payment of child support. She spoke to him about it in a critical way. Nevertheless she did not speak on behalf of the mother to her son, nor did she report back to the mother. It is captured by one of her responses in cross examination “I’ll be there for the boys [the subject children] but I am not getting involved in those issues”.
In relation to parental responsibility, the position of the paternal grandmother before the Court is that she have sole parental responsibility. I infer that she has contemplated the risks of sharing parental responsibility even with her own son, despite her view that he is child focused, because of the destructive way the two parents relate. She could be drawn into that conflict over decisions about the children.
Equally, I am satisfied that Ms B Barker will talk to each of the parents as parents and will listen in a genuine way to their views and opinions about steps to be taken for long term care. Likewise I consider she would make every effort to minimise distress for the children of being separated from their mother, that she would arrange time for them in a safe setting to meet their needs in addition to whatever orders the Court was to make.
The concerns Ms B Barker holds about the mother “drugs, mixing with the wrong people, there is another child on the way” are legitimate issues to consider in relation to the best interests of the children.
I conclude that the paternal grandmother has an unwaivering focus on the needs of the children.
The Paternal Aunt – Ms E Barker
The paternal aunt is a health professional in employment. She has a very close and cooperative relationship with her mother and gets on well with her brother. She is greatly loved by the subject children. The Family Consultant considered she was an important loving presence in the lives of the children.
The behaviour of D in particular was noted to be excellent with his aunt “[T]” and “he clearly holds her in deep affection.”[8]
[8] Family Report dated 8 December 2015, par 220
The aunt had the difficult experience of an unidentified female ringing to report to her employer that Ms E Barker had been taking money from the till. Her employer did not consider there was any substance in the complaint and maintained his confidence in her. There was evidence to suggest the female reporter was the mother, although that was not fully explored.
Nevertheless I accept the evidence of the aunt that she has put that incident behind her and does not maintain ill will towards the mother on the basis of her suspicions.
The aunt has known the mother for ten years and probably accepted that if the caller was indeed the mother such behaviour is an aspect of her personality. The mother can be vengeful when she is thwarted and upset.
The aunt was nervous when giving evidence and showed physical signs of stress. I am confident she was a truthful witness committed both to her nephews and to their relationship with each of the parents.
On one occasion when the mother had injured herself the aunt accompanied the mother to hospital. The mother on her evidence had told the aunt that she had slipped and fallen. One of the many accusations that the mother made against the father was that he had hit her, causing an injury to her head which required hospitalisation. I am satisfied that if that had happened the mother would have told the aunt and she would have revealed that information in these proceedings.
The aunt was clear sighted about her own 10 year old son, saying he has problems socialising “he wants to be the boss, he tries to take control, we sort it out and he works really well [with the subject children]”.
I am confident the aunt is a loving and reliable presence in the lives of the children.
The Mother
The mother presented as immature for her age perhaps reflecting the lack of security and adult guidance she has experienced from a very young age.
Her evidence is that she is now financially dependent on her partner who is said to have permanent full time employment. The mother receives minimal Centrelink benefit.
In oral evidence the mother said she would be leaving her current residence and that she and Mr H would move to R Town, another township in the Central Coast area. That was not included in her affidavit but is a recent development apparently arising from the decision of her current landlord.
During the hearing the mother put forward a Minute of Order[9] representing a shift in her proposal about the children. That she and the paternal grandmother have equal shared parental responsibility, that the children live with her and spend time with the father and paternal grandmother five nights a fortnight and half school holidays.
[9] Exhibit 13
This was a stepping away from the requirement of supervision but within a short time the mother resiled from that prospect:
I am still not comfortable with it. I would prefer [Ms B] to be there. I still think they’re unsafe [with the father]. I didn’t understand it wouldn’t be supervised, I still thought [Ms B] would be in the vicinity. I didn’t understand supervision wouldn’t happen.
The mother has a most difficult history. She left the home of her own mother and stepfather when she was aged 13 or close to it. Initially she lived with her grandparents and then soon after moved to live with an aunt and uncle. However she began a friendship with a boy two years older when she was aged 13. She then moved from her aunt’s home to live with this boy in the home of his parents which she did for the next five years.
From her early teens the mother has been a heavy and constant user of marijuana. She has regularly told herself and others that she intended to give up and from time to time she has but has always relapsed and returned to the drug.
Her oral evidence at the commencement of her cross-examination was that she had been drug-free for three weeks and intended to remain that way. I accept the evidence of the Family Consultant that with a drug using history such as the mother’s, a minimum period of 12 months abstinence would be required before there could be any confidence that the mother could remain abstinent. The mother’s use of drugs is a central issue of concern for the children in her care.
The mother appeared at Court without support, with no witnesses and no support person present. The absence of her current partner, the father of the child she is carrying, was most significant.
The mother has a history of relationships which she described as “unlucky”. Probably they are a reflection of both her drug use, in that she has become involved with men similarly inclined, and her problems with behaviour and communication. Several of her relationships have been conflicted and abusive. Of the six relationships to date, at least three, including that with the father, involved shared drug use and family violence.
The mother revealed herself as somebody who readily lies defensively of herself and fabricates lies to cause trouble for those with whom she is angry. One example of this was in 2015 when the father had formed an on-line relationship with a potential partner in Eastern Europe.
That young woman’s former husband contacted the mother to inquire as to whether his child would be safe if she travelled to Australia with her mother to form a relationship with the father. The mother took to opportunity to be overwhelmingly critical about the father withholding any information which might have been critical about herself. For instance, she referred to an AVO without referring to the mutual AVO for the father’s protection from her. That relationship was ended. The mother conceded that she had enjoyed punishing the father by her conduct.
Another example is contained in the mother’s affidavit.[10] The mother said this:
On 4 November 2014 [corrected to 3 October 2014] the applicant father took [C] and did not return him to my care or allow me to see him for approximately six weeks. This is the only time the children have been separated from one another.
[10] Affidavit of the mother filed 13/03/2017, par 10
The truth was very different and I find accordingly. On 4 October 2014 the mother left the home in Suburb N leaving the children in the care of the father. She was at that time talking to a man Mr O with whom she soon thereafter formed a live-in relationship.
On 12 October 2014 the mother returned to the home to collect her possessions, leaving the children in their father’s care.
On 13 October 2014 the parties made arrangements for the children to spend time with their mother.
On 21 October 2014 there was an incident between the parties which led to the police making an application for an ADVO on behalf of the father and the children against the mother.
On the arranged occasion for the children to spend time with their mother, the older child C did not want to go with the mother and remained with his father. The younger child went with the mother and was brought back.
Again on 30 October 2014 the older child was unwilling to go with his mother. The younger child did go with his mother and was retained by her. The children were apart for six weeks. The mother refused to return the younger child to the father in the home.
On the morning of 4 November 2014 the mother complained to police that she was fearful of the father and an interim ADVO was made for her protection from the father. Thus, from 4 November 2014 there were mutual orders in place but extending to the protection of the children from the mother in the father’s order.
None of that material was contained in a truthful way in the mother’s affidavit or at all.
The most serious allegation made by the mother was that the father had sexually assaulted her on the evening of 22 February 2015.There is insufficient evidence for such a finding. The father readily conceded that sexual intercourse took place on that night, but consensually.
The parties agree that they were both drinking spirits during the night in question. Having heard the evidence of the level of drinking and intoxication of both parents it seems unlikely that either would be able to accurately recall events.
I conclude that both parties lacked the will to stay away from each other. The mother in particular pursued reconciliation throughout 2015 despite the terrible conflict that inevitably arose between them and the protective orders in place.
I also conclude that the mother has complete trust and confidence in the ability of the paternal grandmother to protect and meet the needs of the children. That is not to say the mother will not be angry and resentful if the children live with their grandmother. She probably will be.
The Family Consultant
The Family Consultant expressed the firm opinion that “… whoever the Court decides the children should live with should be the party who takes parental responsibility for decisions regarding the subject children.”[11] This opinion echoes the statements of the paternal grandmother about not wanting to be caught in conflict between the parties.
[11] Family Report dated 8 December 2015, par 314
In her oral evidence the Family Consultant was supportive of a change of residence for the children away from the mother.
I conclude that her focus was safety and stability.
In relation to the mother having given evidence of three weeks abstinence from drug use the Family Consultant stated “Abstinence can change in relation to psycho-social stressors”.
Given that the mother is in a new relationship with a young man without children of his own, that they are expecting a child and have had to move house, abstinence by the mother is, in my view, under threat.
Intoxicated by a substance the mother is a risk to the safety and welfare of her children. She has mood changes which erupt in impulsive verbal aggression.
In the view of the Family Consultant the “natural defensiveness” of the mother would make therapeutic treatment difficult. I interpret that to mean that there is little likelihood of positive change in the way the mother conducts herself.
That she has driven the children whilst she was “stoned”, without accident, is luck not good management.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The presumption of equal shared parental responsibility is easily rebutted in this case by family violence.
In my view the parties are incapable of constructively resolving disagreements. They fight; loudly, rudely, dangerously; oblivious to the presence of their children and the emotional impact on them of their parents conduct.
The prospect of either party conceding to the point of view of the other or compromising in the interests of children is nil.
The Family Consultant recommended against shared parental responsibility and I accept and endorse her opinion.
Both parents have confidence and trust in the paternal grandmother. However I consider it highly likely that if both parents shared parental responsibility with her they would attempt to use her as an intermediary in an immature and destructive way. If only one parent shared parental responsibility, the bitterness of perceived exclusion by the other parent would infect relationships with the children.
The interests of the children will be best met by the paternal grandmother having the authority and responsibility to make decisions, after considering, at her discretion, the thoughts of each parent.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Both children have meaningful relationships with their parents and the paternal grandmother.
The evidence suggests that D’s tantrums are a result of reactive parenting. His needs are not predictable to the mother. This is likely to be true for the father also who has spent much less time with his younger son.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The children have been exposed to so much angry conflict between their parents that they have probably come to see it as normal behaviour.
The mother has a new partner. There was no evidence from him. The mother has a history of relationships characterised by family violence including this one with the father. She was a contributor to that situation through uncontained verbal and physical conduct. She pursued reconciliation despite protective orders being in place.
The mother’s use of drugs means the children are unsafe when she is less available to them when drug affected and in the car when she is driving drug-affected.
The father re-engaged with the mother in 2015 knowing their destructive volatility when together. Alcohol fuelled sex and violence soon followed. The father was charged with serious criminal offences although largely exonerated.
If he gave any thought to the stability of the children at that time there is no evidence of it.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children were too young when observed for the Family Report to have views which could be given significant weight.
Neither child appeared to have any knowledge of the dispute in Court. They were not asked about preferences
C identified that he liked visiting his grandmother’s house and “loves his Aunty [T]”.
D displayed temper tantrums with his mother and brother,[12] not at all with his father and paternal family. The mother perceives him as oppositional and aggressive which she attributes to time spent with his father.[13]
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
[12] Family Report dated 8/12/2015, par 218
[13] Family Report dated 8/12/2015, par 225
The children have their closest relationships with each parent, the paternal grandmother and the paternal aunt.
There is an affectionate bond between the father’s current partner and the children.
There is no information about the children’s relationship with the mother’s current partner.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The father has believed that he was excluded from parental decision making from March 2015 onwards. That was not the legal position, no orders about parental responsibility were made, but it certainly would have been difficult in the circumstances of restraint by AVO and limited supervised time in accordance with orders of the Federal Circuit Court.
The father has chosen not to change his work roster in order to maximise time with the children. His evidence is that he has a family friendly work place, so could have done so.
The father has engaged in enjoyable activities with the children when he has been present with them.
The father has been grateful for and relied on the involvement of his mother with the children.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother has spent money which she cannot afford on cannabis throughout the children’s lives.
The father has been irresponsible in relation to his child support obligations. He earns a reasonable wage which he has used for overseas travel, two trips to Europe in 2015 and a further trip to Asia in 2017 with his current partner.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The children will be affected by a change of residence. Their mother has been their primary carer all their lives.
The home of the paternal grandmother is a familiar place; associated with certainty, comfort and easy contact with the father, his partner, the paternal aunt and her son.
The Family Consultant expressed the view in her oral evidence that if the children were certain that they could see their mother regularly that they would adjust to the change of residence.
The children should adjust well with support and reassurance that they will see their mother and also the new brother/sister due to soon be born.
The practical difficulty and expense of a child spending time with and communicating with a parent
The mother concedes that there may have been times when she drove with the children whilst drug affected. The mother may have been the driver when her car struck a pedestrian, she certainly took responsibility for it.
Although the mother has a Driver’s Licence she is not a safe driver.
Although the father has a Driver’s Licence the relationship between the parents is such that if the father was involved in transporting the children they would likely be exposed to verbally abusive arguments and perhaps physical conflict between their parents.
To maximise safety, the paternal grandmother or her nominee, for instance the aunt or Ms G, could be asked to transport the children.
That being the case there should be a reasonable limit on travel. At present the trip is approximately 20 minutes.
In the event that the mother moved out of the area (beyond 25 kilometres) time should be spent in the local area where the children will be living.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The Mother
On behalf of the mother the concession was properly made during submissions that “she had let herself down over the drug issue”.
The capacity of the mother to be present and attentive to the needs of the children is impaired by her drug use.
At time of hearing she was pregnant and had given up drug use perhaps for that reason. The mother has attempted treatment.
The Family Consultant put forward the professional opinion that “the mother dislikes unpleasant emotional states and wants to push them away”. This would cause her to lack trust in therapists and explain her defensiveness.
Whatever the reason, the mother has used cannabis heavily and relapsed often. She blames others for her difficulties and struggles to regulate her emotions.
Accordingly, no matter how much she loves the children and wants to be their main carer, alone she is unable to meet their needs.
The Father
The father is a loving parent but his capacity to meet the needs of the children is impaired by immaturity and self-absorption.
The Paternal Grandmother
The paternal grandmother understands the needs of the children particularly the need to have the best relationship they can with each of the parents.
Her long teaching experience means she is also particularly well placed to meet their educational and social needs.
The paternal grandmother represents emotional safety for the children.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The children are boys aged eight and five.
The Child C
When assessed by the Family Consultant in December 2105 the older child was observed to be a bright happy child of at least average intelligence. He was tolerant of his younger brother even through tantrums.
The mother believed he had been “moody, oppositional and angry” after visits with the father. If true, such behaviour could be interpreted in more than one way.
The Child D
The younger child was observed to be lively, engaging, inquisitive and risk–taking. He displayed temper tantrums when not given what he wanted.
He was having sleeping problems in his mother’s home where he was sharing her bed but not in the home of the paternal grandmother where he slept independently.
The mother described him as oppositional and aggressive on return from the home of the father/paternal grandmother.
The child did not impress as violent or angry to the Family Consultant. Again the mother’s observation could be interpreted in a number of ways.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The children have been exposed to family violence by both their parents.
There are no current protective orders.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
In the event that the mother becomes drug free without relapse for at least 12 months she may consider negotiating with the paternal grandmother for more time with the children or applying to the Court.
However, given her tendency to lie and exaggerate in her own interest, evidence of being drug free would be required.
I am satisfied that the paternal grandmother will look for the balance of emotional needs against safety and act accordingly in the growing up years to come.
Orders are made accordingly.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 29 August 2017.
Associate:
Date: 28 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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