Barry and Payton and Anor
[2016] FCCA 2002
•12 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARRY & PAYTON & ANOR | [2016] FCCA 2002 |
| Catchwords: FAMILY LAW – Children –– best interests of child – allegations of risk – allegations of family violence – child of three and a half years of age who has been living with the maternal grandmother since she was six months old – capacity of each of the parties to care for the child – child to live with father – child to spend significant and substantial time with maternal grandmother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422; (2006) FLC 93-286 MRR & GR [2010] HCA 4 |
| Applicant: | MR BARRY |
| First Respondent: | MS PAYTON |
| Second Respondent: | MS RICKARD |
| File Number: | PAC 4893 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 27 and 28 June 2016 |
| Date of Last Submission: | 28 June 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 12 August 2016 |
REPRESENTATION
| Appearing for the Applicant: | Mr Massey |
| Solicitors for the Applicant: | Barber & Massey |
| First Respondent: | In person |
| Counsel for the Second Respondent: | Mr Pickering |
| Solicitors for the Second Respondent: | Sarah Bevan Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Rowley & Associates |
ORDERS
That the father have sole parental responsibility for the child X born on (omitted) 2013.
That the child live with the father.
The child spend time with the maternal grandmother as follows:
(a)From the date of these Orders to 10am on Sunday 14 August 2016;
(b)Commencing on 14 August until and including 3 September, each week from 6pm Sunday to 6pm Saturday, namely:
A.From 6pm on Sunday 14 August 2016 to 6pm on Saturday 20 August 2016;
B.From 6pm on Sunday 21 August 2016 to 6pm on Saturday 27 August 2016
C.From 6pm on Sunday 28 August 2016 to 6pm on Saturday 3 September 2016;
(c)Commencing 5 September 2016 until and including 1 October 2016, each week from 6pm Monday to 6pm Saturday, namely:
A.From 6pm on Monday 5 September 2016 until 6pm on Sunday 10 September 2016;
B.From 6pm on Monday 12 September 2016 to 6pm on Sunday 17 September 2016;
C.From 6pm on Monday 19 September 2016 to 6pm on Sunday 24 September 2016;
D.From 6pm on Monday 26 September 2016 to 6pm on Sunday 1 October 2016;
(d)Commencing 4 October 2016 until and including 5 November 2016, each week from 6pm Tuesday to 6pm Saturday, namely:
A.From 6pm on Tuesday 4 October 2016 to 6pm on Saturday 8 October 2016;
B.From 6pm on Tuesday 11 October 2016 to 6pm on Saturday 15 October 2016;
C.From 6pm on Tuesday 18 October 2016 to 6pm on Saturday 22 October 2016;
D.From 6pm on Tuesday 25 October 2016 to 6pm on Saturday 29 October 2016;
E.From 6pm on Tuesday 1 November 2016 to 6pm on Saturday 5 November 2016;
(e)Commencing 9 November 2016 until and including 3 December 2016, each week from 3pm Wednesday to 6pm Saturday, namely:
A.From 3pm on Wednesday 9 November 2016 to 6pm on Saturday 12 November 2016;
B.From 3pm on Wednesday 16 November 2016 to 6pm on Saturday 19 November 2016;
C.From 3pm on Wednesday 23 November 2016 to 6pm on Saturday 26 November 2016;
D.From 3pm on Wednesday 30 November 2016 to 6pm on Saturday 3 December 2016;
(f)Commencing Wednesday 7 December 2016, in a two week cycle:
(i)In week one from 3pm (or after school) to 7.30pm on Wednesday; and
(ii)In week two from 3pm (or after school) on Thursday until 9am (or before school) on Monday;
That the child shall spend time with the mother at times agreed between the mother and the maternal grandmother and failing agreement:
(a)Commencing 13 August 2016 and concluding Saturday 3 December 2016 each Saturday from 10am until 6pm; and then
(b)From 10 December 2016 and each alternate Saturday thereafter from 10am to 6pm
And during these times, the time that the child is spending with the maternal grandmother, shall be suspended.
Once the child commences school, that she spend time with the maternal grandmother for half of each school holiday period as agreed between the father and the maternal grandmother but failing agreement the first half of each school holiday.
That the child spend time with the maternal grandmother each Christmas Day from 12 noon to 8pm;
That the child spend time with the maternal grandmother on Mother’s Day from 9am to 8pm;
That the child’s time with the maternal grandmother (or mother) is suspended on Father’s Day from 9am to 8pm, and that the child spend time with the father on Father’s Day from 9am to 8pm.
That the child spend time with the maternal grandmother for 4 hours on her birthday at times to be agreed between the father and the maternal grandmother and failing agreement from 3pm to 6pm.
For the purposes of changeover, at the commencement of the time the child is to spend with the maternal grandmother, the maternal grandmother and/or her nominee shall collect the child from the father’s residence or when the child is of school age, from school.
For the purposes of changeover, at the conclusion of the time the child is to spend with the maternal grandmother, the father and/or his nominee shall collect the child from the maternal grandmother’s residence or when the child is of school age from school.
That the father shall not consume alcohol to such level that he becomes intoxicated at least 12 hours prior to the child coming into his care and for the duration of the time that the child lives with the father.
That the maternal grandmother shall use her best endeavours to ensure that her daughter Ms K or her partner Mr T not consume any alcohol at the address where the grandmother is spending time with the child and if she is unable to do so, she will return the child to the father immediately.
That each of the parties is restrained from using physical discipline on the child.
That the father and the maternal grandmother shall communicate by way of text message.
That each of the parties is restrained from denigrating any member of the other’s household in the presence or hearing of the child.
That the parties each complete the Unifam Parenting After Separation Course as soon as reasonably practicable.
That the father, as soon as reasonably practicable but no later than 6 months from the date of these orders, enrol in a drug and alcohol course and commence attending upon a drug and alcohol counsellor and continue attending upon such counsellor in accordance with the counsellor’s recommendations.
That the father, as soon as reasonably practicable but no later than 6 months from the date of these orders, attend upon his general practitioner for the purposes of obtaining a referral for counselling and/or psychological services and attend upon such services in accordance with their recommendations.
That the father, as soon as reasonably practicable but no later than 6 months from the date of these orders, enrol in a parenting course such as Triple P with Parenting NSW or Keeping Kids in Mind with Catholic Care, and complete such course at the first available opportunity.
That the maternal grandmother be permitted to attend the child’s first day of school and all events held at the child’s school to which parents are invited to attend.
That the father authorises any school which the child attends to provide information to the maternal grandmother about the child’s progress at school, including copies of school reports, photographs, newsletters and other general information about the child’s attendance at school.
That the father use his best endeavours to consult with the maternal grandmother before making any major decisions in relation to the child’s education or health.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Barry & Payton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4893 of 2014
| MR BARRY |
Applicant
And
| MS PAYTON |
First Respondent
| MS RICKARD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
X, born on (omitted) 2013, has been living with her maternal grandmother since she was approximately six months old. She is now three and a half years old.
The Applicant is Mr Barry, X’s 23 year old father. The father was born on (omitted) 1992.
The father lives with the paternal grandfather, Mr C and Mr C’s wife Ms C. Mr C is not the father’s biological father, although the father has lived with him most of his life. The father has two siblings Mr P (25 years old) and Ms L (22 years old).
The First Respondent is X’s mother, Ms Payton. The mother was born on (omitted) 1992. She is currently 24 years old.
The mother did not disclose her address to the Court during the hearing. The mother has another child, Y, who is approximately six months old, and is a child from a later relationship.
X’s maternal grandmother, Ms Rickard, is the Second Respondent. The maternal grandmother, was born on (omitted) 1967, she is currently 48 years old.
The maternal grandmother lives with her partner of 19 years, Mr T and her daughter Ms K (27 years old). Mr T is not X’s biological grandfather, nor the biological father of the mother’s two sisters Ms S and Ms K. The home of the maternal grandmother has been X’s main home environment for approximately the last three years.
The primary issue for the Court to determine is whether it is in X’s best interest to remain living with her maternal grandmother or to have a change of residence and live with her father.[1]
[1] The mother does not seek orders that X live with her or that she spend any specified time with her. She supports the maternal grandmother’s application.
That decision is not an easy one to make, particularly as there are significant disadvantages and risks to X in both households.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the child.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (subs(2)) and additional (subs(3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s60CG (1)(b)[2]. The Court may include[3] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[2] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[3] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[5] mandated that this legislative approach must be followed in all parenting cases.
[5] (2007) 36 Fam LR 422, (2006) FLC 93-286
The High Court in MRR v GR[6] affirmed the legislative pathway.
[6] [2010] HCA 4
In Starr & Duggan[7] Boland, Thackray & Watts JJ stated :
“…. the legislation does not mandate consideration of the relevant sections in any particular order”.
[7] [2009] FamCAFC 115
In Heath & Hemming[8] Justice Kent said at paragraph 87:
[8] (No.2) [2011] FamCA 749 - A decision prior to the 2012 amendments to the Act, and the comments being obiter
“Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a) Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U [2002] HCA 36; (2002) 211 CLR 238)
(b) Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c) Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d) In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 at [142]).
(e) Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f) If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g) If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a) Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b) Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h) The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i) To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively”.
Also of importance to these proceedings is the fact that the ‘contest’ is essentially between a parent and a grandparent, with the other parent taking the sideline.
In Donnell & Dovey[9] the Full Court said:
[9] [2010] FamCAFC 15
95. … In particular, the first of the "primary considerations" places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents.
96. The predecessor to s 60CC was s 68F(2). This now repealed subsection contained the list of matters the court was required to take into account in dealing with disputes concerning children. Although that list of factors contained some that referred only to parents, this did not seem to give rise to any particular difficulty. This was to change following the amendments made to the legislation in 2006. The amendments to Part VII placed a sharper focus on parents in the objects and principles underpinning them. They also provided what might appear to be a hierarchy in the importance to be attached to some of the factors. In particular, the first of the "primary considerations" places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents.
97. There have now been a number of cases which have come before the Full court involving a parent and a non-parent in which it has been asserted that the trial Judge or Magistrate erred because of an inconsistent approach taken in addressing the relevant factors. This has especially been so where although one of the parties is not a "parent" within the meaning of the Act, they have been regarded within the family as if they were a "parent". The difficulty has also arisen in other cases where one of the parties has been the primary carer to the child and hence largely stood in the place of a "parent". For an example of each of these types of cases see Mulvany & Lane (above) and Hort & Verran (above).
98. In both Mulvany & Lane and Hort & Verran an issue was raised on appeal arising out of the approach taken at first instance to the application of s 60CC(3)(c). It will be noted that this paragraph makes no reference to the willingness and ability of a non-parent party to facilitate, and encourage, a close and continuing relationship between the child and one or both of the child's parents. Yet, in a case involving a non-parent (who may have played and seeks to play a significant role in a child's life), it would seem essential to address that person's willingness and ability to facilitate the relationship between the child and the child's parent(s).
99. Anxious to address this factor, some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c). In the present case, the Federal Magistrate expressly noted that this factor refers only to parents but said he proposed to consider the provision nevertheless.
100. While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error. The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a "parent". To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to "any other fact or circumstance that the court thinks is relevant".
101. The suggested error in the present case, and in the earlier cases, arises out of the fact that having treated the non-parent as a parent, or as if a parent, for the purposes of discussion of s 60CC(3)(c), the judicial officer has not been willing to regard the non-parent as a person to whom s 60CC(2)(a) applies. It will be recalled that this is the paragraph which contains the first of the primary considerations, namely "the benefit to the child of having a meaningful relationship with both of the child's parents".
102. In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a "parent". This is so because the paragraph refers only to "parents", and there is no extended definition of that word — save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a "parent" to ensure that clearly relevant matters are given appropriate weight.
103. We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a "primary consideration" does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden and Winch (No 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (above) at [84] and Aldridge & Keaton (above) at [74] and [75].
104. On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
Brief History
The parents were in a relationship from about 2011 until March 2013.
The mother asserts that during the parents’ relationship the father was a regular user of cannabis, that the two of them would often yell at each other, that the father would lose his temper and punch holes in the walls and smash her things.
The father accepts that he was a user of cannabis during the parties’ relationship but denies the extent of the allegations of poor and abusive behaviour towards the mother. There was very little cross examination of the father on these issues and given the lack of particulars and specificity in the evidence I am unable to make any findings of fact about most, if not all, of these general allegations.
I do however find that the relationship of the mother and father was a turbulent one, that they were both immature and not particularly supportive of each other.
After the parents separated, the mother and X moved in with the maternal grandmother. In about April 2013, the mother and X moved to a unit in (omitted).
Within a very short period of time, the mother left X with the maternal grandmother and Mr T, for them to care for her on a permanent basis. She did not seek the father’s agreement in relation to this arrangement nor notify him of her unilateral decision.
It is not clear exactly when but in early 2013 there was an incident between the mother and the father which resulted in the police applying for an Apprehended Violence Order for the mother’s protection. On the same day, the property where the father lived was raided by the New South Wales Police Drug Squad as a result of which the father was charged with cultivation of cannabis, to which he pleaded guilty and was subsequently fined.
In August 2013 the father attended the maternal grandmother’s home “to try and see X”. He says that while he was there the mother was contacted and asked to come to that address and “that meant I was in breach of the ADVO”. The father was charged for breaching the provisional Apprehended Domestic Violence Order. That same day he went to a liquor store to buy some rum without any money. He left his licence “as security”. He was later charged with larceny. Ultimately an Apprehended Domestic Violence Order was made naming the father as the Defendant and the mother as a protected person for a period of twelve months. That order expired on 24 September 2014.
In October 2013 there was an agreement between the parents and the maternal grandmother for the father to spend time with X on a regular basis. The parties then went to mediation on 6 March 2014 where a document titled “Parenting Plan” was signed by the parties. The father did not seek any legal advice before signing the agreement. The written agreement between the parties provided for the child to live in the home of the maternal grandmother. The father says that his understanding was that the mother was living in the grandmother’s household and therefore that the mother would be looking after X. In any event it quickly became obvious to the father that X was in fact living with and being looked after by the maternal grandmother rather than the mother.
Following the commencement of these proceedings, the father commenced spending time with X in accordance with orders made on 25 November 2014, initially each Saturday from 10am to 6pm. The orders were then varied such that time was to occur each Wednesday instead of each Saturday, and this time occurred. After mediation in April 2015, there was an agreement for X to spend time with her father each Wednesday and each Sunday, such agreement being the subject of consent orders on 28 April 2015.
Time has not occurred in accordance with the orders of 28 April 2015, in that for the majority of the time since the orders were made, it is only on Sundays that X has spent time with her father. The reason for this is that the father has not availed himself of the opportunity of spending time with X on the Wednesdays.
On Sunday 23 August 2015, after spending time with X the father failed to return X to the maternal grandmother’s care contrary to the orders which the father was aware of. The father let the grandmother know that he would not be returning X and it was his intention that she would live with him and spend time with the grandmother in the manner she had been spending time with him. However, upon the maternal grandmother attending Court for the purpose of commencing recovery proceedings and a telephone call being made to the father’s solicitor, the father returned X to the maternal grandmother on the Monday afternoon.
There have been other difficulties between the parties which have resulted in time not always occurring on the Sundays and there have been disputes between the parties in relation to changeover.
The second respondent has at times, insisted that changeover occur at places other than that provided for in the orders and that the mother collect X at the conclusion of her time with the father.
Some of the communication in relation to changeover has been between the father and Mr T and the messages included statements such as:
We are X’s grandparents/guardians. We have control over her. It’s up to us. If we ask you to pick X up from another destination that is our choice not yours.
X did not spend time with her father on Sunday 8 May 2016 as the respondents advised the father that X would be spending Mother’s Day with her mother. There was no make-up time offered.
Time did not occur again on 15 May 2016. This time, on 13 May 2016, in a message sent to the father Mr T said:
Hi Mr Barry. You just range me saying you don’t want X anymore because she is a hassle then you hanged (sic) up and called back saying she is just like her family a bunch of cunts… You need to give the drugs up and alcohol you sorry sack of garbage. No visit any more after your two phone calls Dont (sic) every (sic) contact me or Ms Rickard anymore or we will call the police. We have had enough of your shit.
The father denied making such a phone call and saying the words attributed to him by Mr T. He did make a number of phone calls but none of them were answered.
On 21 May 2016, Mr T sent the father a further text message as follows:
Hi Mr Barry you go Mr C to text Ms Rickard about your visit. You were told visit is over due to the two phone calls from you on 13/5/2016 This is for X’s safety.
X did not spend time with her father on 22 May 2016, 29 May 2016 and 4 June 2016. The father had in the meantime attempted to contact the maternal grandmother to ensure that time would occur but there was either no response or he was told that time would not occur.
The maternal grandmother did not think about the effect that no time with her father might have on X but was more concerned about her welfare. It is unclear what the maternal grandmother’s concerns were based on and how X’s welfare might have been detrimentally affected by her spending time with her father in accordance with the orders. The maternal grandmother did not apply to the Court to change the orders but after three weeks time simply resumed. The decision for time not to occur during this period was a decision made jointly by Mr T and the maternal grandmother.
The maternal grandmother has also raised concerns about the possibility of the father sexually abusing X. Mr T raises similar concerns. The basis for the concerns as set out in their evidence is fairly weak and no such concerns were raised with Mr G during the interviews for the Family Report.
Neither the maternal grandmother nor Mr T looked to the father for an explanation or indeed looked for an innocent explanation of what Mr T called ‘sick’ behaviour – for example, that X had said “… Daddy goes to the toilet and shows me” and the fact that X is bathed by her father when she spends time with him even though she’s already had a bath at her grandparent’s home.
Mr T complained that the father had said to him that X reminded him of the mother, which the father denies saying.
The Applicant
The father is immature and irresponsible, that much is clear. That may be however because he has never really been given the opportunity, or rather the burden, of having to be mature and responsible. Someone else has always looked after him, whether it be in providing accommodation, financial assistance or generally keeping him on the straight and narrow. For that the father should be grateful.
The father appears to take little, if any, responsibility for most of his actions.
The perceived delays in this Court may have been a frustrating circumstance for the father. However, the chronology of the Court events indicates that the matter at all times has been dealt with in a timely fashion and within a fairly reasonable time frame:
a) The father filed an Initiating Application on 13 October 2014 and then an Amended Initiating Application on 23 October 2014.
b) On 25 November 2014, orders were made by Judge Harman for X to live with the maternal grandmother and spend time with her father from 10am until 6pm each Saturday. Such an order was made pending further order and in circumstances where the Respondent had not filed any material. An order for the appointment of an Independent Children’s Lawyer was also made on that occasion.
c) On 4 March 2015, the orders were varied such that X was to spend time with her father from 10am to 6pm each Wednesday rather than Saturday.
d) On 28 April 2015, the orders were varied again and provided, inter alia, that X spend time with her father from 10am to 6pm each Wednesday and from 10am to 6pm each Sunday. The parties were also to enrol and complete a Parenting After Separation Course.
e) On 26 June 2015, an order for the preparation of a Family Report was made. The father was also granted leave to file a further Amended Initiating Application, which he did on 5 August 2015, seeking orders that X live with him. [10]
f)On 19 February 2016, the Family Report was released.
g) On 8 April 2016, trial directions were made and the matter was listed for trial on a date to be advised. It is understood that the Court indicated on that occasion that it may be twelve months before the trial would get on.
h) On 16 May 2016, the matter was listed for final hearing on 27 and 28 June 2016.
[10] The father’s Amended Initiating Application filed 23 October 2014, together with his affidavit filed on the same day albeit not specifically saying so, can in fairness, be said to make the father’s position clear – namely that he wanted X to live with him. The only final order which he sought pursuant to that document was for ‘soul (sic) parental responsibility’ and the affidavit indicates that he is asking for ‘permanent custody’ as a final outcome. The father was not legally represented at the time.
As noted earlier the father has not spent time with X in accordance with the orders of this Court. He explains that this was because he commenced working on the Wednesdays a short time after the orders were made but then when he stopped working he did not do anything about recommencing that time. He says that it would have been difficult to get the maternal grandmother to agree.
Whatever the father’s motivation for not recommencing the time on Wednesdays, X would have benefited from spending this time with her father, as might have the relationship between the maternal household and the father. One of the major complaints by the Respondent grandmother about the father is that he is immature and that he is not responsible. In her eyes, the fact that he did not avail himself of the opportunity to spend as much time with X as the orders permitted is testament to his lack of commitment to X.
The father, upon hearing that the trial might take another twelve months, was very upset. He reacted in an immature and irrational manner by becoming intoxicated. Between approximately 3pm and 7pm that day he sent numerous text messages to the Second Respondent, which on his own admission “were shamefully written and immature in the extreme”. The father also says that the text messages were “out of character”.
The father’s reaction to the further possible twelve month delay in hearing time is not entirely understandable was indeed immature and not necessarily out of character, as the father submits.
His reactions to situations of frustration concerning time with X are not indicative of any significant capacity to deal with stressful situations and he will need to develop some strategies to ensure he can do so in the future.
The fact however, that following his irrational and immature behaviour on 8 April 2016, the father essentially picked himself up dusted himself off and got on with it by obtaining employment straight away, is evidence of his maturing.
Father’s Drug and Alcohol Use
The father has smoked cannabis in the past. His evidence about when he stopped is inconsistent and contradicted by evidence of his father.
The father has provided to the Court two clean urine analysis results, being in early April 2016 and early June 2016. It is accepted that the father has not been a user of cannabis for at least six months prior to the hearing, although he did have one relapse in about late May or early June.
The father regularly drinks alcohol and from time to time abuses it.
There is however no evidence that since separation the father has been intoxicated or affected by alcohol to such an extent as to compromise his ability to care for X while X has been spending time with him.
The father’s medical records formed part of the documents tendered in the proceedings[11]:
a)The father reported feeling depressed in November 2014 at which time he said that he had been clean for three months from using marijuana. The notes indicate that the father declined the offer for counselling under a mental health care plan and that he was reluctant to try antidepressants.
b)In June 2013 the father reported having a panic attack as a result of which he took himself to (omitted) Hospital, he also indicated that he was feeling depressed. At the time the father was taking an antidepressant, Lovan but had also commenced taking another prescribed drug. A few days prior the father had been brought to the medical centre by the paternal grandfather, he was not coping well after the breakdown of his relationship with the mother. The history notes that the father had a history of depression in his teens and that he was on Lovan for a period of time he advised the doctor that he saw a psychologist when he was on parole. The notes indicate that there was a discussion with the father about engaging in some counselling which the father declined. The father reported in early June 2013 that his use of cannabis had escalated.
c)In June 2012 the records indicate that the father had a history of ADHD when he was younger and that he had been prescribed Lovan two years prior.
d)In May 2012 the records indicate issues of ADHD, marijuana use, alcohol abuse and that the father had left school in year eight as a result of his ADHD and that he was on Ritalin for a few months. The reason for the visit on that occasion was that the father was feeling depressed and there was a discussion with the doctor that he might need to take antidepressants and look at seeing a psychologist.
[11] Exhibit “H” being the progress notes from (omitted) family medical practice commencing on 24 March 2015 and in descending order down through to 14 September 2007
The father has never engaged with a drug and alcohol counsellor to assist him with his long-term marijuana use or his use of alcohol, which may well be excessive.
The father has not engaged, at least since X was born, with any counselling service, psychologist or psychiatrist. This is despite his repeated complaints to his general practitioner of feeling depressed and taking antidepressants from time to time. The father has clearly had difficulties in coping with the separation from the mother, his drug use and the animosity experienced between him and the maternal family, in particular, over X.
Incidents involving the father post separation
On 27 December 2015, the father telephoned both the maternal grandmother and Mr T. The phone calls were made over a period of hours, they were numerous and not all were answered. He asked for the mother’s phone number and played music to them. After about five hours the maternal grandparents telephoned the police who attended their home and spoke to the grandparents. No further police action was taken.
On 15 March 2016 there was an argument between the father and the paternal grandfather. The argument was about money. During the argument the father threw a tub of margarine at the wall but did not cause any damage. The paternal grandfather then drove the father to the home of a relative for him to calm down. The wife of the paternal grandfather telephoned the police who arrived after the pair had left. The police did not take any action. The child was not present during this incident and the paternal grandfather was able to deal with the situation without it escalating.
On 25 March 2016 the father telephoned the maternal grandmother at least 15 times (although only a few of the calls were answered) and played music over the phone.
The father has a very negative view of both the mother and the maternal grandmother. He has a fairly poor relationship with the Respondents, a matter which is reciprocated by them. It is unlikely that any of the parties’ attitudes to each other will significantly improve in the near future.
The Respondents
The removal of the mother when she was a child
One of the most concerning issues for the father since he learned that X was living with the maternal grandmother, was the fact that the mother had been removed from the maternal grandmother’s home when she herself was a child. The father understood that the incident involved physical abuse of Ms Payton including a broken arm. If this is what the father believed, it is understandable that he would have concerns about the maternal grandmother’s capacity to care for X, notwithstanding the fact that such an incident occurred approximately 13 years ago.
If the incident was one of sexual abuse (rather than physical abuse) there would be little argument against the severe risk of harm that might be posed to the child if she remained in the maternal grandmother’s care. It would be unlikely that the maternal grandmother could come to Court and say ‘that is not going to happen again because I’ve learnt my lesson’ which is in essence what both she and Mr T say to the Court now.
From the police records[12] the incident involving the mother at a time when she was 10 years and 10 months old, which she was, as a result, removed from the maternal grandmother’s care was as follows:
[12] Exhibit C
a)On 23 January 2003 the mother at the time a 10-year-old child, (to whom I will refer as Ms Payton in this narrative) woke up and walked to the living area of her home. She was told by her mother (the maternal grandmother) and/or Mr T, to resume her punishment of standing at the hallway wall with her legs slightly apart, knees bent with a small piece of paper in between her knees and to look up at a mark on the wall, which was approximately 7 feet from the ground. Both of Ms Payton’s sisters were present at the time.
b)A short time later the maternal grandmother and the oldest sister left the premises to go to the shops. Approximately five minutes later Ms Payton began to feel severe pain to her feet and legs, she began to cry and told Mr T about the pain that she was suffering. Mr T told Ms Payton to stay there even though she continued to cry and complain about the pain. Due to the pain Ms Payton ran from the house and out the front door.
c)A short time later the maternal grandmother arrived home to find Ms Payton sitting on the lounge outside the home. She asked Ms Payton what she was doing at which time Mr T came to the front door where he told Ms Payton to explain to her mother what had happened. The three then walked back into the house. The maternal grandmother asked Ms Payton why she was not completing a punishment to which Ms Payton replied that she was feeling a lot of pain as a result of the punishment. Mr T then began yelling at Ms Payton telling her that she was lying and the maternal grandmother pushed Ms Payton out the front door. This occurred at about lunchtime. Ms Payton then sat outside the house on the lounge and the maternal grandmother closed the front door with Ms Payton remaining outside. She remained there until the evening, when she was asked to come back inside.
d)Mr T had been drinking during this period and when Ms Payton came back in he started talking to her. He became very angry and began swearing at her. He then yelled at the maternal grandmother.
e)The maternal grandmother once again gave Ms Payton the paper and told her to stand against the wall again. Mr T kicked Ms Payton’s legs stating that they weren’t far enough apart at which time Ms Payton’s mother was standing over her and yelling. Ms Payton then fell to the ground and while she was lying on the ground the maternal grandmother began hitting her to her buttocks with her hand. While she was being hit Mr T was counting. He counted to 19, which was the number of times that Ms Payton was hit by her mother. By the end of it the maternal grandmother was sitting on top of ten year old Ms Payton.
f)Mr T then grabbed the maternal grandmother and pulled her off Ms Payton. He then hit Ms Payton twice on the head. In order to protect herself Ms Payton put her hands up over her face while Mr T continued to hit her. Ms Payton felt severe pain and her hand was swollen and bruised. Mr T then grabbed hold of Ms Payton’s left upper arm which hurt her, walked to the front door while holding her arm, pushed her out and closed the door. This was at approximately 11pm.
g)Ms Payton walked over to her neighbour’s where she stayed for about half an hour, when her mother came and took her home. Shortly thereafter everybody went to bed.
h)The next morning at about 7:15am Ms Payton was woken up by her sister. After her shower Ms Payton was told by her mother that she needed to resume her punishment of standing at the wall and looking at the spot. When Mr T woke up he saw Ms Payton standing at the hallway wall he appeared very angry and aggressive. He then took hold of a black electric jug cord from the kitchen table and hit Ms Payton twice to the back of her legs causing her severe pain. Ms Payton had large red welt marks and bruising on the back of her legs as a result of being hit with the electric cord. Mr T again grabbed Ms Payton by the arm and threw her out the front door slamming the door behind her and saying to her sisters and the maternal grandmother that no one was to go near that door or else.
i)Ms Payton went back to the neighbour’s from where she called the kids helpline. The police arrived a short time later and observed bruising to Ms Payton’s left hand, her left upper arm and red welt marks and bruising to her upper rear legs and lower buttocks. The police called the Department of Community Services and took Ms Payton to (omitted) Children's Hospital where she was examined and where she spoke to the child protection unit and caseworkers from (omitted) Community Services.
j)Both Mr T and the maternal grandmother were interviewed by the police. Ms Payton’s mother made admissions that she hit Ms Payton more than 10 times and that she saw Mr T hit Ms Payton on the head, grab her by the arm and hit her with the electric cord. Mr T made no admissions when interviewed by the police.
k)Both Mr T and the maternal grandmother were ultimately charged and the police applied for an AVO for Ms Payton’s protection.
This incident is described somewhat differently in the maternal grandmother’s Affidavit. Relevantly the maternal grandmother says:
44. In about January 2002, Ms Payton and I got into an argument regarding her general behaviour. I was unable to control Ms Payton on this occasion and Mr T and I resorted to smacking her on the bottom. Ms Payton started screaming and yelling that I had hit her. Our neighbours heard Ms Payton and called the Department of Community Services. Ms Payton was subsequently taken from me and placed in foster care.
…
48. I acknowledged that the fact Ms Payton was taken from my care may raise concerns regarding my ability to parent and care for X. This incident occurred 13 years ago and Ms Payton herself has told me on numerous occasions that she was too out of hand during her teenage years and that I acted appropriately in disciplining her.
49. Despite Ms Payton being removed from my care, DOCS allowed me to continue to care for my other two children, Ms S and Ms K. I cared for Ms S until she moved out at the age of 16. I continue to care for Ms K as she still resides at home with Mr T and me.
At the time of hearing Ms K is almost 28 years old. There is no evidence that she suffers from any form of disability which would require the maternal grandmother to continue to care for her so far into her adulthood.
At paragraph 14 of the Family Report the following is noted:
When Ms Payton was seven years of age she was removed from her mother and stepfather and placed in permanent foster care. This stemmed from parental physical abuse. Mr Rickard spent nine months periodic detention and Ms Rickard was placed on a good behaviour bond.
Neither the maternal grandmother nor Mr T in their affidavits filed in these proceedings mention that they were charged as a result of the incident involving Ms Payton in 2003, least of all that they were sentenced as a result of such charges being proven. It was during cross-examination that these matters were mentioned for the first time in their evidence[13].
[13] The charges and sentences received by the maternal grandmother and Mr T are mentioned in the Family Report, with Mr G being informed of these matters by the maternal grandmother.
During cross-examination the maternal grandmother tried to play down the severity of the incident involving Ms Payton but acknowledged (albeit grudgingly), that such discipline was not appropriate.
Mr T, when cross-examined, said that the reason that Ms Payton was removed from their home was because he had smacked her and that he hit her with a jug cord a couple of times. Mr T said that he was “screwed over in court” when talking about the sentence he received.
It is of significant concern that neither Mr T but particularly, the maternal grandmother, were open and forthright in relation to this incident that led to the mother being removed from their care on a permanent basis when she was 10 years old. In fact, such omissions in the evidence speak volumes; not only in terms of a Jones v Dunkel[14] inference which I am obliged to draw but more in terms of the maternal grandmother’s capacity and insight.
[14] (1959) 101 CLR
The mother herself says does not recall the incident. When asked about it in cross-examination she said that she was a troubled child and that the punishment from her mum was “fit”.
It is difficult to understand how it is that the mother does not recall the incident which led to her being removed from her mother’s care on a full-time basis yet at the same time give evidence that the punishment that was meted out by her mother and Mr T was “fit” punishment.
Whatever the incident was, any punishment which would lead the department to remove a child on a permanent basis from her home could not be “fit” punishment.
Violence involving the adults living with the maternal grandmother
August 2013
The mother was cross-examined about an incident of violence between her and Ms K at the home of the maternal grandparents on 16 August 2013. The incident was said to have occurred while X was in the home but asleep.
It was put to the mother that during the incident her sister had punched her to the left side of her ribs and was grabbing and scratching her face. The mother said that the incident “did not ring a bell” and that she could not remember it at all.
The incident is also recorded in the records of the Department of Family and Community Services which have been tendered in the proceedings.[15]
[15] Exhibit “I”
The records of the Department give significant detail about the incident. In summary:
a)Ms K and Mr T had been drinking alcohol for about four hours. Ms K was then told by Mr T that she shouldn’t drink any more, as she was becoming argumentative with everybody in the house.
b)Ms K then walked past the mother and as she did she pushed her using her right shoulder and right hand. Ms K tried to punch the mother who managed to duck the punch and tackled Ms K taking her to the ground. Ms K then punched the mother in the left side of her ribs, was grabbing her face and scratching her.
c)In order to stop Ms K from further scratching her, the mother held Ms K by the throat. The maternal grandmother then stepped in but Ms K continued to yell and shout.
d)The maternal grandmother then attempted to remove X from the bedroom and this was resisted by Ms K.
e)The police were called and when they arrived they observed that the mother had blood coming from around her nose and under her left eye. They found Ms K on the floor of the bedroom yelling and screaming.
f)In the opinion of the police Ms K appeared to be moderately under the influence of alcohol, she was behaving in an irrational manner as she was unable to follow and comprehend police instructions. Ms K was consequently handcuffed and placed under arrest.
March 2015
On 14 March 2015 at a time when X was two years old and living with her maternal grandmother at (omitted), the mother assaulted her older sister Ms K. Mr T in cross-examination described this assault as a “sisterly love fight” and the mother described the same event to the Family Consultant as a “sibling squabble”.[16]
[16] Paragraph 26 Family Report
Based on the police records[17], which were admitted without objection and not otherwise challenged in evidence, it was in fact, a very serious incident which is described as follows:
a)On 7 March 2015 Ms K had been drinking a large quantity of rum in the backyard at the maternal grandparents’ home with Mr T, who was also consuming a large amount of alcohol.
b)After finishing work for the night, the mother went to the maternal grandmother’s home. When she got there, she got into an argument with Ms K.
c)As the argument got more and more heated the mother became upset and started to hit, kick and punch Ms K. During the fight between the two sisters, Ms K fell to the ground where the mother kicked her in the head, breaking her nose. There was also significant swelling to Ms K’s right eye.
d)Mr T unsuccessfully tried to break up the fight.
e)After the fight finished the mother walked away and Ms K called the police who arrived a short time later. Ms K was taken to hospital by ambulance.
f)The following day the mother was arrested and participated in an electronically recorded interview with the police, during which she made full admissions of assaulting Ms K.
g)The mother told the police “I remember punching her she sort of stumbled back and punched her, she fell down and she went to get back up and I got a few scratches, I kicked a few times. I remember my dad yelling.”
[17] Exhibit “F”
During cross-examination the mother described the incident as a “punch up”.
The mother received a good behaviour bond after pleading guilty to a charge of assault occasioning actual bodily harm.
June 2015
An incident occurred between the maternal grandmother and Ms K on 11 June 2015, at a time when X was present in the home.
During cross-examination, the maternal grandmother described the incident in the following manner: Ms K and Mr T had been talking and listening to music, while she was reading. The maternal grandmother told them to keep the noise down as she was on her way to the bedroom with X to put her down for the night. She then continued to bed and all was quiet for a while and the bedroom door was closed. There was then a sudden bang on the door and the door was broken. Ms K fell through the door. The maternal grandmother later found out that Ms K had tripped on a hall runner on her way to say goodnight to X. The police were called as there were words exchanged. Ms K had started ‘waffling’ and would not settle down.
The police records[18] tell a slightly different story. In the afternoon of 11 June 2015 Ms K commenced drinking and continued over the next 7 to 8 hours. A little after midnight the maternal grandmother came out the back of the house and asked Ms K to turn down the music. An argument broke out between the two. A short time later, the maternal grandmother picked up X and took her to her room as Ms K was yelling out to her in an abusive manner. There was then ‘one almighty bang’ as if Ms K tried to kick the door down. There was damage to the architrave on the side of the door. A short time later Mr T called the police. When speaking to Ms K, the police were told “I kicked it in cause I wanted to get my phone and they wouldn’t let me.” Ms K was arrested and charged.
[18] Exhibit “G” in the proceedings
Mr T said that both him and Ms K had been drinking and were affected by alcohol.
Whichever version is correct, it is beyond question that Ms K had caused damage to the door and behaved in a manner which was sufficiently worrying for the maternal grandparents to call the police. X was present in the home when the incident occurred.
August 2015
Indicative of the relationship between the parties is the incident which occurred at the maternal grandparents’ home on 23 August 2015.
That morning the father arrived at the maternal grandmother’s home to pick X up so that she could spend time with him in accordance with the orders. The father knocked on the fly screen door and waited for someone to answer. There was a hole in the fly screen door through which he then unlatched the lock on the fly screen and opened it, so that he could knock on the front door. Mr T was far from happy with the father opening the fly screen door in the way that he had and an argument ensued between the parties.
X was present during the argument, indeed she was at the front door when Mr T started swearing at the father for opening the screen door. In Mr T’s view the father had engaged in criminal conduct. Mr T does not recall why he did not hand X over but probably it was for the simple fact that what the father did was a “break and enter” and he could have just grabbed X. In Mr T’s words “He gets away with everything... He needed to be told… Enough is enough…”
It was the father who called the police on this occasion with a view to obtaining assistance so that X could spend time with him. After the police arrived and each of the parties gave their versions of the story to the police, X was ultimately handed over to the father and spent time with him.
One of the troubling things about this incident is that the maternal grandparents particularly did not consider how X in might have been feeling or indeed that she might have been affected by what was going on. Mr T said “If she was feeling something she would have said so.” X was two and a half years old at the time and the suggestion that if she was feeling something she would have said so, is evidence of the lack of insight and understanding by Mr T in respect of X’s developmental stage and emotional needs.
When asked how he would react now in a similar scenario Mr T said words to the effect:
I would close the door, call the police and have him charged for break and enter... If it’s just little bitchy stuff I get the point. If he’s breaking the law then I can’t let him get away with it.
Importantly Mr T gave evidence that he should have a say as much as the maternal grandmother about what happens to X, that he had a quick look at the orders which were in place at the relevant time and that he thought that the orders said “our discretion” in relation to saying to the father where changeover was to take place. It was clear to the Court that Mr T considered his views about parenting and living arrangements of X to be just as important as those of the maternal grandmother.
November 2015
On 1 November 2015 an incident occurred between Mr T and Ms K while the two were away camping near (omitted).[19] X was not present at the time of the incident but the incident is nonetheless relevant because it shows the interaction of the adults who live in the home where X lives.
[19] Exhibit “G” in the proceedings
The incident occurred after Ms K had consumed a significant amount of alcohol and there was then an argument between Ms K and Mr T. The argument escalated with Ms K going to the kitchen, taking out a knife from the drawer and cutting lightly to the left and right side of her throat. Mr T sensibly called the police and ambulance who both attended. When the police arrived Ms K was reportedly agitated and intoxicated. She was restrained by handcuffs to prevent further injury to herself or others and once she had calmed down she was transported by ambulance to (omitted) Hospital with a police escort for a mental health assessment. The records indicate that Ms K stated that she has depression, anxiety and a personality disorder for which she does not take any medication.
Ms K was not called as a witness in these proceedings. Mr T says that he called the police because Ms K was going “a bit silly”. Grabbing a knife, holding it to her neck and threatening to self-harm is more than “a bit silly”.
Alleged assault of mother’s niece by the mother
The police records for 31 August 2014[20] contain a complaint made by the mother’s niece against the mother. At the time of the complaint the niece was about nine years old.
[20] Exhibit “F” in the proceedings
The alleged physical abuse of the niece occurred sometime between late 2013 and 22 August 2014, at a time when the mother was living with her sister and her niece at (omitted).
The mother’s niece made disclosures to her father that the mother (the First Respondent) would pinch her around the body and hit her across the arms. It appears that such treatment stopped for a little while but then occurred again. A complaint was made to the police by the father of the niece. The child was also taken to see a psychologist, who being a mandatory reporter, informed the Department about the matter. Consequently the matter was disseminated to the (omitted) local area command, child abuse squad and JIRT for further investigation.
Neither the mother nor the maternal grandmother was cross-examined about this matter, nor is there any evidence in the material filed by the Respondents in relation to these allegations.
The maternal grandmother
There is a great deal of animosity between the maternal grandmother and the father stemming no doubt in large part from the mother’s reported abuse during her relationship with the father at the hands of the father. Some of it must though come from the maternal grandmother’s own experiences of the father.
Notably there was nothing positive that the maternal grandmother said in her Affidavit to the Report Writer or during her cross-examination about the father. Given her own life experiences and history, one would have expected a greater deal of insight and ability, or at least a desire, to foster a relationship between X and each of her parents.
The maternal grandmother’s evidence, when asked about how she saw the future, was that she and Mr T loved having X. However if X wanted to spend more time with her mother that would be fantastic. The same was not said of X spending time with her father.
Indeed because of the father’s perceived abuse of the maternal grandparents, both the maternal grandmother and Mr T thought it, at times, appropriate to cease time between X and her father particularly earlier this year.
It was also very clear that the maternal grandmother tried to minimise the violence which occurs in her home between the various members of her household. When asked about these matters her answers were either evasive or not entirely honest, with evidence such as “I don’t know anything about it” or “I wasn’t there”.
The mother
The police records[21] include a narrative of an incident between the mother and her partner, the father of her second and youngest child. The records indicate that there is one report of a verbal argument between them on 5 February 2016. The police involvement that night resulted in the mother and the baby staying the night at a relative’s house.
[21] Exhibit “G” in the proceedings
The incident which occurred on 6 February 2016 resulted in the father of the mother’s second child being arrested and charged and the police making an application for an Apprehended Violence Order on behalf of the mother.
The mother stated to the Police that her partner threatened to “snap her neck” if she ever took his son away from him again. The mother also stated that her partner punched the front fly screen door while she was standing near it.
The father of the mother’s second child was not called as a witness in the proceedings.
The mother herself has a very poor view of the father and it is highly unlikely that she will encourage any relationship between X and her father into the future.
The mother’s actions in leaving X with the maternal grandparents when X was a baby might be seen as protective of X, on the basis of the behaviour which the mother reports of the father at the time if such is accepted. However, I am not able to make any findings of fact in relation to the mother’s allegations of the father’s abuse of her during the parties’ relationship as mentioned earlier in these reasons.
The orders which the mother seeks are not supportive of a relationship between X and her father. They provide for limited time and do not take into consideration X’s future needs and changes which will occur when she starts school.
The Evidence of the Report Writer
The Report Writer, Mr G, has concerns about X living in either of the two proposed households. At the time of the interviews the parties were making such different claims and assertions against one another, that if some of those were true it would cast dispersions on both households.
Mr G’s opinion was that at the time of interview the parents indicated immaturity and insufficient child focus. He opined that the maternal grandmother, out of all of the parties, had to date expressed the greatest child focus although it appeared to the Court that such opinion had been given reluctantly.
It was clear to Mr G that because of the child’s tender and young age, the maternal grandmother seems to have become the main adult attachment figure.
Mr G did not interview Mr T, so no opinion on Mr T’s character or capacity was formed. The maternal grandmother told Mr G during the interviews that Mr T was “good” and there were “no problems”. This was completely contrary to what the father was asserting.
There would be ongoing conflict between the adults no matter whom the child is to live with such that it would likely undermine shared parental responsibility. Whomever the Court determined X is to live with, then sole parental responsibility was said by Mr G to be the ‘least of two evils’.
During the observation sessions between X, her mother and the maternal grandmother, the maternal grandmother was the first port of call to X in her interactions, although she was observed as being friendly with her mother. Mr G observed that the grandmother was the more proactive of the two.
There was no comparison made between the relationships of X and her father and X and her maternal grandmother as a result of the observations of the Report Writer.
The maternal grandmother was in the opinion of Mr G, the person providing the primary care to X, rather than the mother.
If X was ordered to live with her father the impact on her would likely be that X would emotionally miss her main attachment figure (the maternal grandmother) and that at three and half years old it would be a critical stage for her to be removed from her primary attachment figure.
If she was to remain living with the maternal grandmother, then the Report Writer recommended that it would be appropriate to increase to overnight time between X and her father providing that the father has suitable accommodation in the immediate future.
Down the track and once she started school and providing that the father has suitable accommodation and doesn’t have an ongoing drug and alcohol issue, weekend time with the father is something which would be recommended.
If X was to have a change of residence and live with her father, then significant and substantial time for X to spend with the maternal grandmother would ease any detachment issue that may arise for X but it may not totally ameliorate it. A significant period of a fortnight between X and the maternal grandmother would help continue that attachment and the relationship.
In his oral evidence, the Report Writer said of the father:
[he] Believes very strongly in his cause and his case. So that indicates in large part his commitment in his daughter. He may be misled in one or two areas or doesn’t look at his own situation, but he is genuine in his feelings towards the child.
The Report Writer was questioned about the father’s genuine commitment to receiving assistance from agencies such as Unifam given he only made contact with Unifam prior to the hearing and six months after the recommendation was made to him. On this point Mr G was of the view that should the father take on X’s care this ought to be “a real push for the father to take on advice”.
The Report Writer further stated that parental experience (which the paternal grandmother has) is something which the father will gain with more experience and proficiency as a parent.
Mr G opined that there were causes of concern with all three adults and that the Court really needed to be focused on the least detrimental proposal for X.
When the incident which resulted in the mother being removed from the maternal grandmother’s care as recorded in the Police records was put to him, Mr G stated that:
Whatever happened, the fact that the child was removed, and the fact that Mr T was convicted of assault and put on parole and Ms Rickard was put on a good behaviour bond, that speaks for itself, definite child abuse. The fact that she was removed speaks of a very serious assault.
The disadvantages to X which were identified by Mr G during cross-examination, if she was to live with her father were as follows:
a)the main would be losing contact with the maternal grandmother who was her primary attachment;
b)possibly losing ongoing contact with her mother because the mother seems to have mended some bridges with the maternal grandmother and there might be less chance of X losing contact with the mother if she lived with the maternal grandmother rather than with the Father; and
c)The suitability of the father as a parent and his accommodation.
If X was to live with her father, then significant time with her grandmother would help X deal with the loss of that primary relationship. A gradual increase in time: if treated gently she is going to adapt. Mr G stated that it would be easier for X now than if she was seven or eight to adapt to the change in residence which the father is proposing. Her young age is an advantage if that scenario was to occur.
In the opinion of Mr G, a gradual increase in time over six months would be ideal but that would require everybody cooperating and keeping to the actual orders in place. Otherwise it would not work for X and the matter is likely to come back to Court. In the meantime, X would be exposed to more parental conflict.
Mr G spoke of a number of alternatives, such as extending the time X spent with her father for about three months but all the while maintaining her living with the maternal grandmother, gradually extending the overnight time to fifty-fifty and then seventy-thirty. The overall process would be looking at about six months until X was at least four.
Section 60CC(3) Factors
Views of the child
X is only three and a half years old. Due to her age and developmental stage, she was not interviewed by the report writer. As such, there were no views ‘expressed’ by the child in the ordinary sense.
The father has given some evidence about the child expressing a wish to spend time with him or to remain spending time with him when she is in his care.
The maternal grandmother has given evidence as to how she gets X excited about spending time with her father and that X will go off willingly to spend time with him. She also gave evidence that the mother will spend time with X and will sometimes look after her.
Relationship of child with parents and other persons
X was observed by the report writer with both the Applicant father and each of the Respondents.
With the father, X was observed to be friendly and relaxed, she played naturally and engaged with her father freely. The father was observed to be patient and appropriately instructive. The two shared affection on occasion and chatted quietly.[22]
[22] Family Report paragraph 58
With the maternal grandmother and the mother, who were observed with X together, in the opinion of the report writer the child appeared just as relaxed but a little more verbal and spontaneous. She spoke to them more excitedly and shared outbursts of laughter and singing. X largely ignored her little baby brother, whom the mother was holding. X mostly chose the grandmother (rather than the mother) as her first point of reference.
Overall, in the opinion of the report writer, X presented as a happy, trusting, well-groomed three year old.[23]
[23] Family Report paragraph 61
As noted earlier in these reasons, she has been living with her maternal grandmother for almost three years (which is almost the entirety of her very young life) and has spent very limited time with either of her parents. It is not surprising then that she appears to have a primary attachment to the person who has been taking care of her on a daily basis.
Parents’ participation in long term decisions, spending time and communicating with child
In accordance with the interim orders which were in force, X was to be spending time with her father each Wednesday and Sunday from 10am to 6pm. Only the time on a Sunday has been occurring.
X has been spending time with her mother usually on a Saturday but also at times during the week, as agreed between the maternal grandmother and the mother and usually at times when the mother comes to pick up her younger child from the maternal grandmother who looks after him while the mother works.
There have not been any long term issues which have needed decision. X is only three and a half years old. She does not attend school yet and she is a healthy little girl who is on all accounts meeting her milestones.
Parents’ obligations towards maintaining the child
Neither of the parents pays any child support at present.
Likely effect of any changes in the child’s circumstances
If the orders as sought by the maternal grandmother and the mother were to be made, there would be no change and things would simply continue as they have been for the last twelve months or so.
If the orders as a sought by the father were to be made by the Court this will be a significant change to X. She will be removed from her home and from her primary carer. This of itself is not an insurmountable obstacle, nor is it of itself a reason as to why there would not be a change of residence for X.
While she is of a tender age, the move from her primary carer would be easier for her now than if she was seven or eight years old. A gradual decrease in time with the maternal grandmother and an increase in time with her father would see her transition into this change and would ameliorate some of the negative effect the change would have on her.
X has a positive and loving relationship with her father.
The father will continue to facilitate a relationship between X and the maternal family.
There is another year and a half before she is due to commence school, and that would permit a fairly lengthy time frame for her to transition from one household to the other.
Practical difficulty and expense of a child spending time with a parent
The father does not drive at present. This is due to the fact that he lost his driver’s licence in 2014. He has been able to spend time with X using either public transport or otherwise getting the assistance of his father to transport him.
The father and the maternal grandmother live some 35km apart. There is no evidence of where the mother lives but it is inferred that she lives in the Sydney metropolitan area.
If X was to remain living with the maternal grandmother, there would be, as there currently is, some practical difficulty for her to spend time with the father and the mother.
The same practical difficulties would be applicable if X was to live with her father and spend time with her mother.[24]
[24] section 60 CC(3)(e) is concerned with a “parent” and as such I have not considered the practical difficulty of X spending time with the maternal grandmother under this heading
But these are not insurmountable obstacles. The parties (and not only the parents) have managed to date to accommodate X spending time with the father in accordance with the orders as they were at the time, notwithstanding the practical difficulty of such time occurring. There is no reason why, on the evidence, the parties’ ability would be any different in the future such that time between X and the parents would be substantially affected.
Furthermore, the father will be able to reapply for a driver’s licence in about mid- 2018. That is approximately 2 years from now and about 6 months after X is due to start school.
Parties’ capacity to provide for the needs of the child
The father’s capacity provide for the needs of X, has to a large extent, been untested. She has spent limited time with him. He has however, been committed to X.[25]
[25] I make this finding based on the evidence of the Family Consultant and after taking into consideration that the father has not availed himself of all of the time that X was to spend with him pursuant to the orders previously made
There is some suggestion by the respondents, that the accommodation which the father has is not suitable. The father lives in a one-bedroom granny flat, which has a separate bathroom and all of the usual amenities. The granny flat is located on the property belonging to the paternal grandfather, who has always been supportive of the father and of his relationship X. There is no evidence before the court, which would lead me to make a finding that the father’s accommodation is unsuitable for X, whether to live there or simply to spend time there. In any event, the father proposes to find new more spacious accommodation in the near future. He is supported in that endeavour by the paternal grandfather.
The father is currently employed but proposes to take time off work until X’s fourth birthday, so that she may get used to the change in residence which he proposes. Once she has turned four years old the father presently plans to have X attend preschool two or three days per week. It is his intention to work on the days when X attends preschool.
The maternal grandmother has a demonstrated capacity to meet the child’s basic physical needs as such. The exposure of X to concerning and violent behaviours of others in the home of the maternal grandmother is evidence of lack of insight on the part of the maternal grandmother and is indicative of a lack of capacity to meet the child’s emotional needs.[26]
[26] In this regard I refer to paragraphs 97 - 99
The very little evidence of the mother’s capacity to meet X’s needs. I infer, from the orders she seeks and the fact that X has been living with her maternal grandmother because this is where the mother placed her, that the mother herself does not consider that she has the requisite capacity to meet X’s needs, except on a limited basis.
Attitudes to child and responsibilities to parenthood of parents
The father’s attitude to X and his responsibilities to parenthood are more strongly demonstrated than those of the mother.
The father does have certain and significant shortfalls in this regard. His comments that parenting comes naturally to him and that he considered he did not need to complete a parenting course,[27] are evidence of an attitude that is somewhat cavalier, particularly given his limited parenting experience.
[27] Family Report ¶ 53
However, he is genuine in his feelings towards X and wanting to do what is best for her.
Family Violence
These reasons have, elsewhere in the Judgment, already set out my various findings in respect of family violence and the need to protect X from being exposed to such violence.
Further Proceedings
There is a possibility that no matter whether X is living with her father or her maternal grandmother, further proceedings between the parties may occur.
I am mindful that with the orders which I am making there will be a period of adjustment for not only X but more so for the parties. It will require significant cooperation between them, which may not easily happen. However, significant cooperation between the parties would be required if any order is made where X travels between the parties’ homes and spends time with the non-resident party.
The parties will need to ensure that they adhere to the orders and not take matters into their own hands as each of them has done in the past.
It is the parties’ compliance with orders and respectful behaviour towards each other in X’s presence that will best ensure that the likelihood of further proceedings in the future is lessened.
Other Relevant Matters
There is no doubt that the maternal grandmother cares for and loves X very deeply. She has provided her with a loving home for the last three years and has looked after all of her needs. X has a strong attachment to her maternal grandmother which ought to be nurtured and encouraged in the future. X will suffer a great loss if her relationship with the maternal grandmother is not maintained in the future but she will also suffer a great loss if she is denied the opportunity of a meaningful relationship with her father (and also her mother).
The orders which are proposed by the maternal grandmother and her expressed attitude to the father lead me to conclude that she will be unlikely to encourage and foster an ongoing relationship between X and her father if X is to remain living with her. The maternal grandmother does not propose any overnight time between X and her father, nor any extended periods during school holidays going into the future. This simply cannot be in X’s best interest given the warm and loving relationship she currently has with her father.
The involvement of Mr T in the decision making about X has led to some poor decisions by the maternal grandmother. It is likely that as he is a significant member of the maternal grandmother’s household and is considered to be X’s grandfather, that he will continue to have a say in the decision making concerning X – or at least he will consider that he ought to have such a say in the decision making.
Most, if not all of the incidents of violence which have occurred at the home of the maternal grandmother or have involved the adults living in that home, appear to have been fuelled by alcohol.[28] Very little has been said during the hearing which indicates that such incidents will not continue to happen into the future or that X will not be exposed to such behaviour in the future if she is to remain living there, even with safeguards put in place. Risk of exposure to such incidents will be reduced if X is only spending time with the maternal grandmother.
[28] The incident involving the father and Mr T does not appear to be alcohol related
Primary Considerations: s60CC(2)
The Act does not mandate the discussion of considerations under s60CC in any particular order and it is well recognised that additional considerations may outweigh primary considerations.[29]
[29] see for example Slater & Light [2011] FamCAFC 1at [45]
The primary consideration in s60CC(2)(a) only applies to parents. For this reason I need to consider the benefit of X having a meaningful relationship with her mother and her father only when deliberating upon the primary considerations.
In applying the primary considerations set out in sub-s 60CC(2), the Court must give greater weight to the consideration set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having carefully considered the facts as set out earlier, I find that X has been exposed to family violence[30] in the home of the maternal grandmother.
[30] As defined in s4AB
Having carefully considered the facts as set out earlier, I find that the mother has been a perpetrator of family violence[31] as well as a victim of family violence involving her sister and that X was exposed to such violence on at least one occasion.
[31] As defined in s4AB
Having carefully considered the facts set out earlier, I find that the father has been also been a perpetrator of family violence[32] against the paternal grandfather. However, X was exposed to such behaviour nor is there evidence that she has been exposed to similar behaviour by the father while spending time with him.
[32] As defined in s4AB
What X has been exposed to is the behaviour by Mr T in swearing at the father and not permitting X to spend time with her father because of a perceived illegal act (of breaking and entering) by the father in Mr T’s eyes.
While some of the responsibility for what happened on that day must fall to the father, the actions of Mr T in the presence of X (and while the maternal grandmother was there) are of greater significance and concern.
Consequently, there is a need to protect X from being subjected to or exposed to family violence particularly in the maternal grandmother’s home.
Due to the dynamics of the relationship between the maternal grandmother and the mother and in particular that both of their proposals for orders are such that time between the mother and X will be spent as agreed between the maternal grandmother and the mother, it is the benefit of X having a relationship with her mother that I must consider in light of the finding that there is a need to protect her from family violence, specifically, in the home of the maternal grandmother.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child”: Mazorski & Albright[33] and cited with approval by the Full Court in McCall & Clark.[34] The focus is not on the relationship as such but on the benefit the relationship might have for the child.[35]
[33] [2007] FamCA 520 at [26]
[34] [2009] FamCAFC at [121]
[35] Ibid at [122]
Notwithstanding that X needs to be protected from being subjected to or exposed to family violence, there is a benefit to X in having a relationship with her parents.
In the orders that I have made, I have put in safeguards to ensure that the orders do not expose any person but in particularly X, to an unacceptable risk of family violence.[36]
[36] as mandated by s60CG
Parental Responsibilities
The question of parental capacity to implement arrangements and to communicate and resolve difficulties are very important issues in this matter.
There is sufficient evidence of family violence, poor behaviour, lack of a child focus from all of the parties and poor communications between the parties due to the parties’ behaviours that make the sharing of parental responsibility very difficult and not in the child’s best interest.
The presumption in s.61DA of equal shared parental responsibility between the parents. For similar reasons, it is not appropriate or in X’s best interest in all of the circumstances for there to be shared parental responsibility as between the parties.
An order that the father have sole parental responsibility is in the child’s best interest.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in X’s best interest that she lives with her father and spend time with her maternal grandmother and mother, namely, for orders to be made as set out at the forefront of these reasons.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 12 August 2016
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