Bolton & Athol and Ors

FAMILY COURT OF AUSTRALIA

BOLTON & ATHOL AND ORS

[2009] FamCA 10

FAMILY LAW – CHILDREN – With whom a child lives – where the child has lived with the paternal grandparents for over 18 months – where each of the father, the mother and the paternal grandparents initially sought to have the child live with them – where the father withdrew his application for the child to live with him – where allegations that each parent used drugs heavily and had an unstable lifestyle – where mother alleged that father had perpetrated family violence – where each parent conceded having given false evidence during the trial – where the paternal grandparents and the father live in Tasmania and the mother lives in Victoria – whether each party able and willing to promote a meaningful relationship between the child and the other parties – determined that in child’s best interests to return to live with the mother and to spend time with the father and the paternal grandparents

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

APPLICANT:

Mr Bolton

RESPONDENT:

Ms Athol

SECOND RESPONDENT:

Mr Bolton (Snr)

THIRD RESPONDENT:

Mrs Bolton

FILE NUMBER:

HBC

277

2007

DATE DELIVERED:

9 January 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Hobart, Adelaide, Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATES:

21-24 January, 18-21 February, 1 and 10 April, 19 August, 9 September, 15-17 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lynch

SOLICITOR FOR THE APPLICANT:

Butler McIntyre and Butler

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Eilish Cooke Family Law

COUNSEL FOR THE SECOND AND
THIRD RESPONDENTS:

Mr Crotty

SOLICITOR FOR THE SECOND AND
THIRD RESPONDENTS:

James Crotty Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

That Mr Bolton (“the father”), Ms Athol (“the mother”), Mr Bolton (Snr) (“the grandfather”) and Ms Bolton (“the grandmother”) share parental responsibility for the child J born … July 2003 (“the child”).
That the child live with the mother.
That the mother consult with the father, the grandfather and the grandmother in relation to decisions to be made about major long-term issues; including making a genuine effort to come to an agreed decision about any issue.
That the child return to his mother’s care on Friday 23 January 2009 and that and that the mother be responsible for his collection.
That the matter otherwise be adjourned until 9.30am on Thursday 5 February 2009 for any submissions in relation to the draft orders for the child to spend time with his grandparents and father and the costs involved.
That pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 277 of 2007

MR BOLTON

Applicant

and

MS ATHOL

Respondent

and

MR BOLTON (SNR)

Second Respondent

and

MRS BOLTON

Third Respondent

and

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

This parenting case proceeded over several months with periods intervening between each of the hearings for reasons which will become apparent. Essentially, the arrangements between the parties, which were fluid at the commencement of the hearing, continued to change, requiring the case to be re-opened on two subsequent occasions and resulting in the father and the paternal grandparents adopting a different position at the conclusion of the case from their position at the outset. The mother’s position has at all times been consistent, namely that she seeks parenting orders which will enable the parties’ one child, a son J, aged 5.5 years (born in July 2003) to live with her.
The other parties involved are the child’s father (“the father”) and paternal grandparents (“the grandparents”). Their position has not been as consistent as the mother’s, although, at least as far as the orders sought are concerned, both the father and his parents have consistently maintained that it would not be in the child’s best interests for him to live with his mother. The grandparents, with whom the child has been living since April 2007, have consistently put themselves forward as the best default carers for the child in the absence of the capacity of either of his parents to care for him adequately.
At the commencement of the proceedings they were prepared to support an order which would place the child in the care of either parent if the Court found that either parent had the capacity to care for him adequately and it was in his best interests. Nevertheless from the manner in which their counsel approached cross-examination of the mother, it was clear that from their point of view they really only saw one parent capable of caring for the child, and that was their son, if not them. By the conclusion of the hearing (after the re-openings) the father had withdrawn himself as a potential primary carer in whose favour an order should be made. Thus, by the conclusion of the case, it had changed to a clear contest between the mother and the grandparents.
Within those parameters now lies the heart of the dispute. The grandparents have been caring for the child for nearly two years and he initially came into their care (albeit by arrangements which were subject of some dispute) because neither parent was able to provide appropriately for his care at that time. It does not appear to have ever been contemplated that he would live with them for the rest of his dependency and, as the father is no longer putting himself forward as a primary care giver for the child, the question posed is whether it is now appropriate for the child to return to his mother’s care or whether that should occur at some later stage (assuming no significant intervening events). The concerns about the child immediately going into his mother’s care relate to her long-term cannabis use and whether she is now drug-free, and whether her previously unsettled lifestyle can be confidently assessed as now being a stable one.
The consideration of the best interests of the child in differing households is obviously one of relativities which together with an examination of the mother’s household and its benefits to the child, also requires consideration of the relationships he has with each of his parents and grandparents and the quality of the care provided to the child by his grandparents in all of its aspects. The matter could be categorised, if one were looking for a simple description, by asking the question whether the mother has done enough to demonstrate that her lifestyle is sufficiently stable and that she is sufficiently free of drug use to assume the full-time care of the child when he has been cared for by his grandparents in a stable and secure environment for over 18 months.
Although the father is not presently an applicant for the care of the child, the relationship between him and the mother makes it necessary to consider some of the other matters the parties identified at the commencement of the proceedings when all three applicants were seeking orders. Those matters were the nature and extent of the conflict between the mother and father, their ongoing relationship and the relevance of domestic violence alleged by the mother to have been perpetrated by the father, if it were established.
The differences between the orders sought by each of the parties have also reduced as the time for the child to commence school now approaches. The places where the grandparents and mother reside, in Tasmania and Victoria respectively, make it necessary for the time the child spends with family members with whom he is not primarily residing to be confined in the main to school holidays. Both the mother and the father sought orders for equal shared parental responsibility for the child, irrespective of the parent with whom the child would be spending most of his time. The grandparents sought equal shared parental responsibility with both of the parents.

Background

Some of the background facts are in dispute but those which are not can be conveniently stated. To the extent that disputed facts are discussed, findings will be made.
The grandmother is aged 60 years and the grandfather is aged 56 years. The father was born in April 1974 and is 34 years of age. The mother was born in November 1974 and is also 34 years of age.
The parents have known each other as friends since they were teenagers. The mother was the childhood friend of the father’s previous partner with whom he has three children E, aged 16, D, aged 15 and C, aged 6. E was living with the father prior to and during the first part of the hearing but, before the matter concluded, went to live with her mother and is now living with her mother full-time. The father thus has none of his previous children living with him and they all reside with their mother in Melbourne. He sees them from time to time.
The mother has a daughter from a previous relationship, P, aged 11. P has lived primarily with her mother but has spent periods in the care of her maternal grandmother. She has been in the full-time care of the mother since approximately November 2006.
Prior to meeting the father, the mother had a long-term problem with cannabis use. In 1998 the maternal grandmother had moved from Victoria to the Gold Coast. She was asked by the mother to care for P while the mother went into drug rehabilitation. In 2001 the maternal grandmother notified Child Protection in Victoria, where the mother was living with P, that there were concerns about the care of P and the mother’s marijuana use.
In early March 2002 the mother and father commenced a relationship in Melbourne. The mother contends that they did not live together until February 2003. In May 2003 the mother and father separated for the first time but the relationship continued on and off. At the time of their separation there was a report to the Victoria Police about a property dispute between the mother and the father in which one or other of them sought the intervention of the police. The police presaged their continuing conflictual relationship. In July 2003 while the parents were still separated, J was born in Melbourne.
On 15 November 2003 the parents reconciled and moved to Queensland, where the father’s parents were then living. They were accompanied by J and P and the father’s two older children E and D.
On 18 November 2003 there was a notification to the Queensland Department of Child Safety regarding P. On 24 November 2003 the parents separated following an incident in which the mother alleged she was assaulted by the father. The father would not allow the mother to take J, who remained with the paternal grandparents while the mother went into temporary accommodation in a women’s shelter. The Queensland Department of Child Safety was notified and P went to live temporarily with her maternal grandmother. A short time thereafter the paternal grandmother took J to visit the mother at the shelter in Brisbane and the shelter workers would not allow the paternal grandmother to leave with J, who thus remained in the mother’s care. The mother then immediately returned to Victoria with J and, she asserts, with P.
On 1 December, the father, who was at that time was driving trucks as his livelihood, drove to Melbourne, went to the home where the mother was staying in the peninsula area and forcibly removed J from the mother’s care. The mother alleges she was assaulted by the father and that the child was almost seriously injured, being caught between his fighting parents. Child Protection in Victoria were notified of allegations of domestic violence by the father and concerns for the child’s safety.
The following day the mother made an application in the Frankston Magistrates’ Court for an intervention order against the father. The father consented to an order being made but made no admissions.
On 5 December 2003 the mother filed an application in the Federal Magistrates Court at Dandenong seeking a residence order, whereby J would live with her, and a recovery order to recover the child from his father’s care. On the same day an order was made ex parte for the father to return J to the mother’s care. On 8 December 2003 the recovery order was executed and the child was returned to the mother.
On 12 December 2003 the father filed a response and an affidavit. Around about the same time, the mother tested positive for cannabinoids on a random drug screen test required to be carried out because the orders included an order that neither parent would use non-prescription drugs or drink alcohol to excess while J was in their care.
During this period the mother lived with a friend in L and in early January 2004 Child Protection in Victoria wrote to both the father and the mother confirming that protective services would no longer be involved with their family.
A Family Report which had been ordered was released on 10 May 2004 and on 21 May 2004 the intervention order against the father was revoked by consent.
On 31 May 2004 there was an order made by consent in the Federal Magistrates Court at Melbourne providing for J to reside with the mother and for reasonable contact between J and the father, including alternate weekends. The orders included, at the request of the children’s representative, random urine analyses of both the father and the mother to continue.
Following these orders the children’s representative requested a random urine sample analysis of both parties, but they did not comply. In about August or September (there is some dispute between the parties as to when this occurred) the mother and father recommenced their relationship and began to live together again. In October 2004 the children’s representative, presumably assuming the parties were still living apart, filed a contravention application as a result of both parties failing to provide him with random drug tests. Ultimately on 29 November the applications brought by the child representative were struck out and the child representative was discharged.
In late April 2005 the father, mother, P and J moved from Melbourne to Brisbane to live with the father’s parents. The father continued to drive long-haul trucks and the mother commenced working as a cleaner with the paternal grandmother at a motel. At the request of the mother, because the relationship between P and the father was becoming difficult, P went to live with her maternal grandmother in May 2005.
In July 2005 the father was convicted of fraud and received a two-year suspended sentence. This related to him fraudulently obtaining a long-haul truck driver’s licence.
In August 2005 the paternal grandparents moved from Brisbane to Tasmania and in the same month the mother began to work at a motel in W.
In January 2006 the father obtained an interstate heavy rigid truck licence.
P spent Easter 2006 with the mother, father and J, although she was still predominantly living with her grandmother on the Gold Coast. The father was away truck-driving during this period, and the mother and J commenced living at the W motel in the manager’s flat. The mother contends that she did so following the final separation between her and the father. The father says the relationship continued on and off until January 2007, notwithstanding that the mother and J were living in the manager’s flat at the motel.
There were difficulties between the parents at this time. The mother asserts the father was becoming increasingly jealous and increasingly hostile and threatening towards her as he could not accept the relationship was over. She asserts he repeatedly threatened to harm her and drive his truck through the motel and accused her of having men in her motel room.
Around this time the mother asked the grandparents to have J stay with them in Tasmania for a while, while things between her and the father settled down. It was conceded by both parties that during this time they were both using drugs. The mother was using marijuana and the father was also smoking with the mother. In addition, the father was taking speed, mainly, he asserted, to assist him to drive longer hours. He admitted to using speed more in 2006 than he had previously done. Both parties admitted to heavy cannabis use when they were together. It is not clear to what extent they were smoking during periods of separation but both acknowledged that the drug use continued.
By August 2006 the mother was asking the grandparents to return J to her care but they were resisting her requests to return him. The mother finally informed them that unless J was returned she would seek a recovery order for his return and on 23 August contacted the police in Tasmania, who went to the home of the grandparents. Several days later the grandparents filed an application in the Family Court at Hobart seeking orders for J to live with them. The grandparents and the mother attended court on 30 August and Benjamin J made orders that the child be returned to the mother’s care on that day. He also made orders for the grandparents to spend time with J for periods of three weeks including in October 2006, January 2007 and April 2007 and relevantly made orders for J to spend time “with the father on a regular basis as is arranged between the parties and in the event the parties are unable to reach agreement leave be given for the matter to be re-listed before the Family Court on seven days notice to the Court and to the other parties.” He then transferred the matter to the Brisbane registry of the Family Court. When the matter was listed on 4 October 2006 in Brisbane the mother attended court but none of the other parties attended and the matter was adjourned. Finally, on 5 October, the grandparents filed a Notice of Discontinuance in the Court at Brisbane and shortly after that time P moved back into her mother’s care.
The exact nature of the relationship between the parties between the end of August 2006 when J was returned to the mother and February 2007 when the father removed the child from the mother’s care is unclear. The mother’s evidence was that the parties did not resume cohabitation in any real sense, while the father asserted that they were living as a couple. As they both put different interpretations on the events that were occurring and there is no other independent evidence it is difficult to make firm findings. It is more likely that their relationship had improved but they had not fully resumed cohabitation and there were still elements of animosity between them whilst at the same time elements of cooperation. This somewhat schizophrenic pattern was to continue right through their relationship, including throughout the hearing and as recently as the final days of hearing of evidence in October 2008.
The matter is also somewhat clouded by the fact that the father was doing interstate long-haul truck driving at this time and spending a great deal of time away from mother and J in any event. Some indication of the cooperation between them is given by the fact that the mother allowed the father to take the child on an interstate trip with him. The circumstances of the trip are somewhat curious, as the father asserts that he informed the mother that he was taking the child for a number of weeks and that she agreed. On his own admission, during the road trip he used drugs, but asserted that J was safe in the truck with him. At this time he was driving 10 to 12 hours, or about 1,000 kilometres per day alone in the truck with J. The trip involved a couple of weekends in Melbourne, when they stayed with the father’s relatives. He asserted that J had wanted to come with him and he thought at that time that the child was better off in his care as the mother was working in the motel and had little time to care for J.

The mother’s version of this trip was somewhat different. First, and importantly, she did not mention it in an affidavit sworn by her the following year, although it was a significant period of time that J had spent with his father. The mother’s version was that the father had wanted to take J for a long weekend to Melbourne and that the father simply kept the child and did not return him. She admits that contact was made during the trip because the father had rung her from Perth because of some problems accessing money. In addition the episode is clouded by other complications. The father produced a document from his employers authorising him to have J travelling in the truck with him. However, it emerged that the document had been post-dated which led to the inference that the father did not in fact have any authorisation to take J with him. He denied this and said that he had obtained verbal authorisation, at least after the trip had commenced around 2 September. He asserted that he had obtained the document only to corroborate that permission had been given because he felt it was necessary once proceedings were commenced by the mother, presumably on the basis that she might use his lack of permission from his employer to be of benefit to her or some detriment to him.
If he did have permission from his employers, it seems unlikely that he would be concerned about her allegations and the inference I draw from this is that he did not have his employers’ consent in advance, although they were prepared to indicate at a later stage that they had no objection. In the end, nothing turns upon this, except to highlight the difficulty in arriving at an accurate picture of what actually was happening in the lives of the parents with any degree of certainty. For the mother’s part, whilst she may not have agreed to the length of the trip on which J was taken by his father, it is obvious that she did nothing formal to seek his return. The inference I draw from that behaviour is that the parents were getting along well at that time, even if they were not formally living together.
As a result of a problem with her employers the mother’s employment was terminated and she had to find somewhere else to live. She moved into the B Caravan Park with J and P and the father spent time with them at the Park and paid for the accommodation as the mother had no income. During this time there was an argument in front of the children. The father admitted the argument but asserted that he had merely been protecting himself from an assault by the mother. He conceded that they were arguing about the mother seeing another man while she was working at the motel, which the father conceded had angered him.
Towards the end of December the father assisted the mother, J and P to move to Victoria. The mother moved temporarily into the home of a friend, Ms H. Living in the home were Ms H, her daughter, son and boyfriend. Ms H had been a long-term friend of the mother and was also, and continues to be, a drug user.
Again, the evidence of the nature of the arrangements between the parents differs. The mother asserts that the father was assisting her to move but that they had not resumed cohabitation. The father asserts that they had moved down together and that he regarded them as being a couple. He asserted that during Christmas and New Year 2006-07 he spent time at Ms H’s house.
It is difficult to make positive findings about whether the parties resumed cohabitation or not, but the more likely version is that, as previously, the truth lies somewhere in between. The father was still doing long-haul truck driving and away for much of the time. The parents were obviously getting along adequately, although probably short of having firmly committed to a reconciliation. There is support for the mother’s version of events in the father’s evidence, as he asserted that he was concerned during the time they were staying at Ms H’s place and that he did not want them to be there. He said that he wanted the mother to move with him but that she was content to stay there. He asserts that he finally decided to end the relationship in February 2007. While nothing turns on this, I find it more likely that the parties were not reconciled in this period, although the father spent some time living there. He wanted the mother to move with him and when she refused he decided to take matters into his own hands.
The mother obviously had some concerns about what the father might do as she was reluctant to agree to him having J on the weekend of 23 February. The father asked the police to intervene and the mother reluctantly agreed to him collecting the child on Friday with the agreement that he would be returned on the Sunday.
The father conceded that he had no intention of returning J to the mother and that he intended to remove him from her care on a permanent basis. The father told the mother and the police that he would be returning the child on Sunday. He took J to Tasmania on 25 February and two days later filed an application in the Family Court of Australia at Hobart seeking orders that the child live with him. On 5 March the mother filed an application for an order that the child live with her and for a transfer of the proceedings.
The application was dealt with on 3 April and an order was made that J be returned to the mother on 5 April and the grandparents were given leave to intervene. J was returned to his mother’s care on 5 April. In early May 2007 the mother moved from the home of Ms H to G in Victoria, where she still lives.
Having been given leave to intervene, the grandparents filed an application and affidavits seeking orders that J live with them. A number of allegations were made about the mother by the grandparents and by the mother’s mother, who expressed concerns about the mother’s capacity to care for J given her use of drugs and itinerant lifestyle. Benjamin J expressed concerns about the various moves and the failure of the mother to comply with orders regarding drug screening and the involvement of mental health professionals to deal with her use of illegal drugs. While noting that the child had been in the significant and perhaps primary care of the mother for most of his life, he was concerned to ensure some stability for J pending a hearing. He made orders which provided for J to live with the grandparents in Tasmania, with one week per month with the mother if she decided to remain in Victoria, but if she moved to Tasmania, an arrangement which provided for J to spend week about with the parents and grandparents. The mother did not move to Tasmania and the regime put in place by Benjamin J essentially continued up until the commencement of the hearing before me.
When the father took J from the mother in February, he went initially to live with his parents but later established a residence of his own not far from his parents’ home. The hearing commenced on 21 January 2008 and did not conclude until 17 October. This is because the somewhat chaotic relationship between the parties continued throughout 2008 despite the proceedings and resulted in some significant shifts in position and attitudes between the parties, including the grandparents.
In May 2007 E, the father’s daughter by his previous relationship, moved in to live with him but during the course of proceedings moved out again and is currently living with her mother. P has continued to live with the mother since she returned to her care in late 2006.
When the proceedings commenced the mother was living in G in a three-bedroom home with P, where she still resides. She has no partner and works part-time as a cleaner in G. She has consistently held that employment and anticipates she will shortly move from casual to permanent status bringing with it considerable advantages.
The father had been in a relationship but that relationship had ended prior to the commencement of proceedings. He was then living in three-bedroom accommodation in Tasmania with E, aged 15. He stopped long-haul truck driving in January 2007 and said that he intended to start his own business making pine furniture.
The grandparents both work. The grandfather is an interstate truck driver, mainly in Victoria, spending up to three weeks per month away from home. The grandmother works in a nursing home. They both live in accommodation in the Hobart area and J has resided with them consistently while spending time with his mother in G.
Not long into cross-examination of the father by the mother’s counsel the father was asked whether he had recently been in contact with the mother both personally and by text messages. Initially the father denied assertions put to him about the state of his contact with the mother. In particular, the following exchange took place, in which counsel put the following to the father.
So after you broke up with [the mother], and she moved out, what do you say your contact was between the end of November, then – late November, and today in court? How many times have you spoken to her?---Half a dozen times.
How else have you contacted her?---I haven't needed to contact her. Only when [J] is with her in the weeks that he's with her and I ring to speak to [J].
So you say you've had no other contact with her?---She's rang me a few times, yes.
Text messages?---The odd one. (Transcript, 22/1/08, p 154)
The father then went on to indicate that there had been about ten text messages in regard to J and “the odd one” in regard to anything else.
Bit by bit the truth emerged and was far from the version given by the father. After the phone records and the phones were subpoenaed and the messages downloaded, there were literally hundreds of messages. What had occurred was that the parties had been in a great deal of contact with each other in the months prior to the hearing. Although the father denied it, they had spent an evening together in December and again on the weekend immediately prior to the hearing. Initially the father’s denials were strong and he voiced the complaint that he made many times throughout the proceedings, namely that the mother’s evidence was virtually all “a pack of lies” and she could be relied upon for almost nothing. A stark example of the lack of veracity on his part is obvious from the following exchange:
I put it to you that you came and had a chat to her at the hotel on Sunday this weekend?---No, it didn't happen.
You say you didn't go there?---No.
Well, she says that you did?---Again, she's lying.
She's lying?---Yes. (Transcript, 22/1/08, p 158)
And further on, on the same issue:
What reason would she have to lie about that?---The same reason she has to lie about everything.
She didn't lie about the text messages, they're there in the phone?---That's obvious.
You lied about those?---That's right.
She didn't lie about - - -?---She lied to me saying that she wouldn't bring all that up; she deceived me.
So that's the lie?---Yes. (Transcript, 22/1/08, pp 160-161)
Even the grandparents’ counsel elicited the following concession from the father:
You're saying now to the court that, yes, you have lied on oath to the court about the degree of contact you have had with [the mother]. Is that correct?---Yes. (Transcript, 22/1/08, p 161)
As it transpired, the mother was correct. The father had spent the evening just prior to the hearing with the mother at her hotel. The father was angry about what he said was a breach of the agreement between the parties that they would keep the level of contact between them to themselves. He claimed that he had not really been contacting her with a view to a reconciliation but only because he wanted to deceive her into having orders made by consent in his favour (he was later to make a similar claim about her). I do not believe him. There is little doubt from the text messages that both parties were engaged in an increasing level of communication and intimacy and subsequently both agreed that there was some strong bond between them which drove them together, albeit their relationship was not a healthy one. I find without any difficulty that the father was seeking to conceal his increasingly close relationship with the mother from his parents and there is no doubt that they were startled and dismayed by the revelation that the parents had been in such close contact and at the intimacy of their relationship that emerged.
What I will call the first part of the proceedings concluded on 10 April 2008 when submissions were made by counsel. By that time the proceedings had occupied eight days of hearing of evidence which occurred in two periods in late January and late February.
On the last day of evidence, counsel for the independent children’s lawyer indicated he needed to re-open his case. This was because it had emerged that in April 2007 the father was driving in Victoria and was intercepted on a random breath test that proved positive. It emerged that he had an existing prior conviction for failing to undergo a test and was charged, convicted and the sentence was two years’ suspension of his driver’s licence. Of more concern was that he had had a suspended sentence for obtaining a licence by fraud which lasted two years and had not expired until June 2007. The latest offence apparently occurred prior to the expiration of the suspended sentence and in addition would not be his first alcohol-related driving charge. Counsel sought leave to issue a subpoena to obtain the relevant police records and to mention the issue again when making submissions, the concern being that if the father was facing a term of imprisonment, then there would be an issue about his capacity, at least in the short term, to undertake the full-time care of J.
When the matter came before me for submissions on 1 April the parties agreed that the most likely outcome would not involve an actual term of imprisonment, but if it did, it would not be a lengthy term. The most likely outcome was a short suspended sentence.
The other matter that had changed was that the father’s child E had returned to live with her natural mother and the father had returned to live with his parents, so that at that point at least he was living in the same household with J and his parents. A third issue was raised by counsel for the grandparents, which was a concern about the continued communication between the parties which suggested, despite the fact that both had previously said that they were not ready to reconcile, a possible reconciliation. This, from the grandparents’ point of view, was undesirable as they feared the somewhat toxic relationship between the parents might resume and that it would not be in J’s best interests for him to live in a family comprising the father and the mother. In the main they blamed the mother for her bad influence on the father, although they accepted his immature choices ultimately placed some responsibility on the father.
In the end the parties through counsel were able to agree on a set of facts that could be put to the Court by consent. These were that there had been positive communication between the parents and that the father had spent a weekend visit at the mother’s home in G taking his two children D and C with him; that the parties had had a sexual encounter, but neither of them regarded the relationship as having resumed, although there were discussions about a possible resumption of the relationship. Both agreed that they would need counselling if that was to happen. It was also agreed that there had been significantly improved communication between the mother and the grandparents and that telephone communication was working well.
Prior to judgment being delivered, on 29 July 2008, the solicitors for the grandparents wrote to the Court indicating that there had been a material change in circumstances. It was asserted that the father had relocated and that arrangements for contact with the child had materially changed. The grandparents sought that the Court reconvene and the matter be re-opened so that further evidence could be put before the Court. On 1 August the grandparents filed an affidavit. A mention of the matter took place with agreement that the matters raised by the grandparents in their material did suggest that there were significant changes to the parties’ position which would need to be canvassed prior to a decision being handed down. Ultimately, due to counsel’s commitments, the matter was listed for further hearing on 15 October. The mother filed an affidavit and I allowed further cross-examination to occur. Before the matter came on for further hearing in October, the father’s solicitors filed a Notice of Ceasing to Act and he appeared for himself, albeit with some assistance from counsel for the grandparents. In the course of the further evidence another matter emerged which required a certificate under s 128 of the Evidence Act 1995 (Cth) to be given to both the mother and the father in respect of a portion of that evidence. In summary the grandparents’ concerns that the parents had once again resumed cohabitation did prove to have some basis.
Again, inconsistent versions of what had occurred emerged from the evidence of the mother and the father. In essence, however, there had been significant changes. The affidavit filed by the grandparents asserted that since the evidence had concluded the father had refreshed his relationship with the mother. In particular, it was said that he had gone to Melbourne in April, collected his other two children and stayed approximately a week with the mother at G and resumed what they described as “a marital relationship”. They said that he returned to Tasmania after the week but appeared to become increasingly distracted and was in daily contact with the mother, often ringing several times a day. They were also on MSN for long periods during the evening.
The grandparents asserted that in early July the father also spent time with the mother before moving to Queensland to drive trucks.
In July they said the father was required to return to Victoria to answer the charges pending in the Magistrates’ Court in Victoria relating to his driving offence. They asserted that the father had told them that when he attended court, despite the previous indications that the offence was unlikely to attract a prison sentence, he was told on that day that a plea of guilty was likely to attract a sentence of up to nine months’ imprisonment. The father then breached his bail and went to Queensland. At the time of swearing their affidavit they said the father had returned to Tasmania in late July but was leaving again for Queensland in about a week and had proposed to them that they return J to the mother’s care.
The grandparents said their grave concern was that the father and mother had resumed their relationship and that as the father could not return to Victoria, having breached his bail, they had fears that the mother intended to relocate to some other place, perhaps Queensland, to be with the father. They expressed concern that, should this happen, the pattern of instability and disruption to J’s life would recommence. They referred to the stable environment with them in which J was thriving, and their great concern about the effect of the instability of the parents, were they to resume their relationship, move back together with J and move once again. They sought a re-opening of the case to deal with this development and the re-opening was granted.
The evidence of the more recent involvement of the parents with each other bears some careful analysis for a number of reasons that will become evident. In particular four matters emerged, all material to the decision, in different ways. First, the father ultimately pleaded guilty to the driving offences with which he had been charged, and no term of imprisonment was imposed. Secondly, the parents did resume a relationship although they did not resume cohabitation in any real sense. Thirdly, during this period of contact the parents smoked cannabis together. Fourthly, an incident occurred leading to the deterioration of the relationship between the parents and to a lesser extent between the mother and grandparents. The last incident highlights the fragility of the relationships between all the parties as its genesis was in a comment made by J to his grandmother which was given a meaning without any of those concerned really knowing what, if anything, had occurred, and further inferences from it were drawn by the father.

The mother filed an affidavit in response to the affidavit of the grandparents. As the father was not represented, he did not file an affidavit but was permitted to give oral evidence, and on the re-opening all the parties gave evidence and were cross examined.
The mother vehemently denied the allegations that she and the father had resumed living together or that she intended relocating to Queensland where he was living. She admitted that they will always share a connection but said that she had realised following her own counselling that the pattern of their breaking up and then getting back together was an unhealthy one. She said that earlier in the year the father had promised her that he would have counselling and make an effort to overcome some of the problems that had bedevilled them, including his drinking and violent behaviour to her. She said that she finally came to the realisation that he was not likely to change after he left the court, breached his bail and fled to Queensland. She said that she had still held out some hope earlier in the year that he might change but she was now convinced that he would not.
She then went on to speak of an incident which occurred, it transpired, on 26 July, when P rang the grandparents to speak to J. The incident had its genesis in something said by J to the grandmother some days earlier. J had said to her “You know when my mummy’s car broke down, a man fixed it.” He then said “They had the ‘c’ word. Sex.” The grandmother apparently asked him if he was there and he said that he had seen it through the window. The grandmother later conceded that she had never talked about sex with J, did not ask him what he meant and did not know what J thought it meant.
By the time this information was relayed to the grandfather it had already been embellished, albeit unwittingly. The grandfather said that his wife had told him that J was sitting on the lounge with her and out of the blue said “The man who fixed mummy’s car was in bed with her, I saw them through the window.”
When P phoned J, the grandfather answered the phone and spoke to the mother about forthcoming contact arrangements about which there was some dispute. The parties’ versions differed but whether or not it was the mother who first started name calling, the grandfather lost his temper and called the mother a slut and a whore and said “You’re rooting someone who fixed your fucking car, you moll.” He terminated the conversation and then left the house.
Unfortunately the father was in the room with the grandfather when this conversation took place and was overheard by him. The mother could hear the father in the background arguing with the grandfather. She denied this accusation, but on learning it had come from J, the father took J up to his bedroom and asked him about it. After he had finished speaking to J he rang the mother, and accused her of having a relationship with the mechanic which she again denied. He admitted that when he rang the mother back he was hurt and that J was present when he made the phone call. He said something to her like “What’s this about the mechanic?” and she had responded that his parents must be making it up to split them up.
The father then told her he had spoken to J and that J had told him about the mechanic. The mother denied it vehemently and asked him to put J on the phone on loud speaker. She heard J crying and distressed and tried to comfort him. The father accused her of trying to manipulate J. The father said in his evidence he was concerned about who the ‘mechanic’ was and the fact that she had had sex in front of J. He admitted that they had engaged in name calling since this event and that since 26 July he had sent her five or six test messages. His text messages, he said, were along the lines that he could not believe what she had done. The father said that he had not asked J what he meant by “having sex” but it seemed to be playing on his mind. .
He said that his supposition was that she had sex with her mechanic in lieu of paying for repairs on her car. He conceded that he had called her a “fucking whore” and said that was what she was because she had sex with the mechanic in front of J. Since the conversation the father had rung the mother from Queensland calling her a whore and a bad mother.
When cross-examined about the phone conversation and his allegations regarding the mechanic, the father said that he had subsequently spoken to his mother and his mother had told him that the origin of it was J, who brought it up out of the blue. However, there was no doubt in his mind about it. He said that he was quite convinced that the mother had had sex with the mechanic and J watched. He also alleged that messages from earlier in the year and later text messages indicated that the mother was having sex with women and liked sex with women.
The mother’s evidence was that the father’s demeanour had changed considerably following this incident. In the week before 26 July they were not officially a couple but she was not seeing anyone else and they were going to see if they might eventually work out their relationship. The mother’s evidence was that at first the father thought he would persuade her to go to Queensland but he eventually accepted that she was not going to leave G and the question of him returning to Victoria was discussed. There was no commitment between them but they were trying to work things out and at that stage she had no intention of being with anyone else. She said once this altercation with the grandfather occurred, the father’s text messages went from “I love you” to “You can get fucked”. She said that this had given her a realisation that he was unstable, particularly as far as their relationship was concerned, and it brought back the past conflicts in their relationship.
The father denied having subsequently spoken to the mother about the allegation but admitted that he was upset about the thought that she was having sex with someone else. In particular, he said that they were strongly held beliefs and that he still held them. Almost as soon as the phone call was completed, the father sent a text message to the mother in the following terms: “You can go and get yourself fucked… I’m not playing your game any more.” About 20 minutes later he sent another message to her: “You have tried to fuck me over for the last time! I am going home on Sunday and [J] will be staying with me! I will never allow you to manipulate his mind like you have [P] and me! You make me sick!” Several calls were made to the mother that evening including one at 10.19pm that said “How fucken funny do you think you are now? And you can tell your solicitor about my new warrant as its now your only hope but believe me I will beat it and if not I will do the time but you will never get [J] back as long as I breath air!” On 31 July, as part of a stream of text messages to the mother, the father said:
“Whose (sic) fucken […]? How many blokes are you rooting?”
“The more I think about things the more I’m starting to realise what you have been up to. I wondered a lot where you were getting all the cash from lately one minute its […’s] tax cheque the next minute its yours now I know how you paid to get your car fixed it’s all starting to make sense! I hope you can live with yourself I really do!”
I observe that there was no attempt to corroborate the allegation, and it was not put to the mother that she had sex with the mechanic or that she had lied in her denials. Indeed, counsel could not properly do so, as it was impossible to discern from the comment J had made to his grandmother, which the genesis of all of this was, that such an allegation had in fact been made. I find there is no evidence to support this. No one when pressed could really say what J was referring to or what he really meant. Hence, I find on the basis of the mother’s denials that there was no evidence of any kind from which to make an allegation that the mother had sex with a mechanic in J’s presence in lieu of payment for some work done on her car, or at all. Indeed, given the actual comments reportedly made by J to his grandmother, the grandfather’s allegation to the mother about her behaviour was quite unfair and irresponsible.
The father’s response to the mother was immature and self-absorbed. He gave her no opportunity to deny the allegations, let alone to discuss anything about what was said. In any event, the child’s words could not have been reasonably interpreted in the way that the grandfather and father interpreted them. However, the grandfather’s comments were of a different kind to the father’s. They were reckless and unwarranted but said in the heat of the moment and I find that he was upset, he had lost his temper and probably legitimately regretted that he had made the comments. It is doubtful however whether the mother could be expected to so easily put them aside. The father is a totally different proposition. His response stems from immaturity, insecurity and a high degree of jealousy.
The father asserted that he and the mother continued the communication that had been revealed in January right through until the conclusion of the evidence in February until late June. In May the father obtained a multi-combination licence in Queensland and has been spending time truck driving working for a relative in Queensland. He said he did not wish to live in Victoria, I infer because of the circumstances in which he had left, thereby breaching his bail. He said that he had been to G three or four times and had spent time at the mother’s home but that at the present time he and the mother no longer communicated. He explained the breach of his bail conditions by saying that he had received advice that he would have a jail sentence imposed of at least six weeks and that his solicitor told him that if he wasn’t intending on living in Victoria he should go back to the state he was living in as it was unlikely they would extradite him for a breach of his warrant. He said he made a spur of the moment decision and at the time he gave evidence on 16 October he understood there was no outstanding warrant for his arrest. He said that his plan was to continue to keep working in Queensland and visiting J in Tasmania or Victoria. He said that he was not stable enough in his current lifestyle to care for J but wanted him to live with his parents where he knew he was safe.
He alleged that while he was with the mother in G in April she had purchased marijuana and they had smoked. He asserted that he saw himself as being over his drug problems, that he had rid himself of all the bad influences in his life and, despite the fact that he had smoked with her in April, she still used drugs daily. He agreed that in the past there had been verbal altercations and physical altercations between them. He admitted that he had told his parents that he thought it would be best for J to live with the mother but said that he had now changed his mind.
He said that they discussed the possibility of the mother working and him staying home and caring for the children but denied that the parties were reconciled as his parents had asserted. He said there was a discussion about them both moving to Queensland but that the mother had let him know that that was not going to happen from her point of view. He said he now believed this was all about her trying to get J back and getting him onto her side. He said he thought he had been manipulated by the mother. He admitted that, as the mother had said, that they had discussed having counselling together but that he had left it up to her to arrange. He said that he obtained his licence in Queensland and there had been discussions with the mother that she would visit him with J and P on 28 July in Queensland. Shortly prior to that happening he said he went to Tasmania and found out that she had had sex with a mechanic and that was the last straw as far as he was concerned and he wished to have nothing further to do with the mother.
The father said that every time he was with the mother they smoked marijuana. This he said occurred in April this year and at other times. He said that he had not used speed but in any event did not think it was such a bad thing because truck drivers get tired and it is useful for wakefulness. He said they are very strict about drug testing now for drivers and it is difficult to take the drug without being caught. He said that he could not be around people who used drugs because he had a tendency to relapse.
This evidence was given in a fairly angry manner and was concluded by him saying that since November 2007 the mother had been manipulating him to get J back with her and there was nothing honest about her behaviour at any point.
During the lunch adjournment on 16 October the father was arrested, taken to the Magistrates Court and then bailed to appear the following morning at 9.30. The father said that the police had informed him that the mother and/or her friends had informed them of the Family Court hearing that day and consequently of where he could be found and the warrant for his arrest executed. The father’s response to this was to assert that the mother wanted to have him locked up and was “being vindictive as usual”.
The following morning, the father appeared in the Magistrates Court and pleaded guilty. His licence was suspended for 18 months, an $800 fine was imposed and no conviction was recorded
In her evidence, importantly, the mother admitted that she had smoked cannabis with the father but said that it only occurred three times. Once when with him in Victoria in April, once four weeks later in May and then in July when she was distressed about the phone call. She said that she rang the drug and alcohol program immediately after that for assistance.
The mother admitted that she had been at least indirectly responsible for the police being informed of the father’s whereabouts. She denied that it was in order to pay him back regarding the allegation about the mechanic but said that she was distressed that she had been called names by his father unreasonably and in the end she thought that the father just needed to accept the consequences of some of his actions.

Proposals at the conclusion of the hearing

Having commenced the proceedings with both the mother and father being put forward as prospective candidates with whom J could live and the grandparents offering to care for J essentially as default carers, and being willing for J to be placed with one of his parents if the Court was satisfied it would be in his best interests, the case concluded with the father excluding himself as a potential carer and the grandparents asserting strongly that the child should not be placed with the mother. The mother has at all times maintained that she should be the primary carer for J.

The mother’s proposals

The mother has continued to live in G in the accommodation that she has had for many months. She has stable employment in G where she has been working largely as a cleaner since late 2007. Her employers have offered her accommodation on site, where she would have slightly cheaper rent and it would be a better home and a little more convenient to the children’s school. At present the mother is paying $175 per week rent but the house is relatively cold and she has other outgoings. The new property, if available, would be better and the rent slightly cheaper, and she would save on electricity and water.
Her employment is immediately across the road from the primary school at which J would commence in 2009 and even if she does not move her current house is in very close proximity to the school. She has been offered full-time employment in the motel, as distinct from the casual employment she has had since commencing work there, which has meant that during the non-tourist season there has been less work available. She will be entitled to holiday pay, a stable income and, in all likelihood, slightly better housing. At the moment her income is on average $550 per week after tax and she receives a Centrelink pension, part of which is the Family Tax Benefit. She is not living with any other person and proposes to continue to live in G, to work at the resort on a full-time basis now that that work is available, to send J to the local state and then high school close to her home.
She has family including her father and siblings living in Melbourne and country Victoria.

The grandparents’ proposals

The grandparents propose that the current arrangements for J that have been in place since he has been living with them in mid-2007 should continue. The grandfather proposes to continue truck driving at least in the short term, and the majority of J’s care will fall to the grandmother, who also works part-time. J has been attending pre-school two days per week in 2008 as well as crèche, and will commence full time primary school in 2009 at the same school.

Proposals of the parties for J to spend time with the other party

The father was not a candidate to be J’s primary parent and gave scant evidence about his living arrangements and his future aspirations. He is currently living with an uncle in Queensland and working for him truck driving. He has recently obtained a comprehensive licence and proposes to continue long haul truck driving. He will be able to visit J either in Tasmania or Victoria or both, depending on where J is living.

Evidence

The parents and grandparents rely on several affidavits sworn by each over time. There is an affidavit from the maternal grandmother, but as she was not available to give evidence and be cross-examined, caution must be used in accepting her evidence unreservedly. Nevertheless, she cared for P for several months in 2005-06. She was familiar with the mother’s drug taking and equally critical of the capacity of the mother and the father to provide adequately for J. Some of her observations about the relationship between the parties during their relationship are corroborated by other material and she was privy to disclosures to her by P about what it was like in their household. However, there are two other reservations regarding her evidence. The first is that she does not enjoy a close relationship with the mother and has not apparently seen her for over 12 months. She has therefore no capacity to comment on current circumstances. The second is that the mother asserts she was sexually abused when younger by her mother’s partner and alleges that her mother was addicted to alcohol. In short, she asserts that she herself came from a dysfunctional family.
Evidence was given by Ms S, a family consultant with the Family Court. There were two family reports, dated 10 May 2004 and 2 December 2007. Evidence was taken by telephone from Ms T, a psychologist who had been treating the mother. A letter from Dr R was tendered and the mother also relied on a report from Dr N, a psychiatrist, who gave brief evidence by telephone.
In the recording of the background which precedes this section, certain findings of fact have been made. In the consideration of the issues and the relevant matters that the Court must take into account in determining what is in the best interests of the child, further findings of fact will be made and addressed as they arise for discussion. One matter however requires comment. Both of the parties, at various times, lied in their evidence and both subsequently admitted to having done so and recanted that evidence. Both did so when confronted with conflicting evidence. Both sought to justify their lack of veracity, although the father sought to justify his much more than the mother did. On almost each occasion he blamed his lack of honesty on something the mother had done. Each of them chose to conceal the truth in circumstances where it was to their advantage to do so. Caution must therefore be exercised with the evidence of each of them where there is a forensic advantage to be obtained.

Observations of the parties reveal two quite different personalities and their evidence was given consistently with their demeanour. The father moved between a position of adopting the moral high ground, truculence and aggressiveness. He rarely accepted responsibility for being found wanting and consistently made denials on the basis that anything the mother said was a lie and she could not be believed. As this was demonstrably untrue on many occasions (of which the example of text messages is one) the father’s evidence must be treated with caution.
Mostly circumstances were seen through the prism of his own concerns and he emerged as a significantly immature young man. He presented often as being dogmatic and cold.
The mother, on the other hand, was quite different. Unlike the father, she was willing to accept criticism and make concessions. Her difficulties were that she was too garrulous by far and, like the father, could not be relied upon to be entirely truthful when it came to important matters. Her concession that she had endeavoured to buy cannabis after an initial denial is but one example.
Her attitude to the present and future success of her cessation of drug taking and stable lifestyle did not really take account of the long history of drug abuse and instability that preceded it. Nevertheless, by the end of the hearing she was a little more realistic about her substance abuse and seemed to have made some firm decisions about the apparent danger of recommencement of a relationship with the father. To some extent, the acceptance of the difficulties of ceasing drug use comes from the mother with its own disadvantages because whereas the evidence earlier in the trial was that she had confidently overcome her addiction, this was ultimately tempered by the reality that she had not. The significance of that issue continues to be one of the major issues in the case.
The grandparents I find to be essentially truthful witnesses. Any reservations about their evidence stem from their innate disrespect and suspicion of the mother, which no doubt has a long genesis. But, as with the example of the allegations about the mother having sex with a mechanic, it has a reckless element to it and thus dulls to some degree the notion of the purely objective grandparents that their case suggests. I will make specific findings about the important matters that the Act requires to be considered in the consideration of best interests.

Legal principles

The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975 (Cth). The best interests of the child are the paramount consideration (section 60CA) and that applies to the whole of Part VII.
The reference in some of the provisions of Part VII to parents is given its ordinary meaning. A number of sections do not apply when assessing best interests in proceedings that are not between parents but between a parent and a non-parent. For example, three of the four objects in section 60B(1) are confined to parents; similarly with the principles in section 60B(2). Only two of the five sub-sections remain relevant. They are:
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
…
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Only one of the factors in section 60CC(2), which contains the primary considerations, would apply where the contest is not between the parents. Similarly section 60CC(3), being the additional considerations the Court must take into account, contains paragraphs which apply only to parents. I do not however consider that the court is constrained by this and in any event, they can be taken into account under other relevant sub-sections or ultimately under sub-section (m), which requires the Court to consider “any other factor or circumstance that the Court thinks is relevant”.
On the same basis, the presumption of equal shared parental responsibility imposed by section 61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the children spending equal time or substantial and significant time as set out in section 65DAA are not mandatory pathways towards the consideration of a best interests conclusion in proceedings between a parent and a non-parent. However, particular applications will make it necessary to address these outcomes in any event as will the necessity to arrive at a result in the best interests if the child..
In this case, given that the two sets of proposed carers live in different states, the question of equal time does not arise.
That being so, the task is now to identify the essential issues, canvass the evidence about them and then analyse how the best interests of the child will be met, taking account of the relevant matters in section 60CC.

Issues

Four main issues emerged in the case:
·    family violence by the father
·    the mother’s drug use
·    the mother’s stability, including the likelihood of a resumption of a relationship with the father
·    whether the grandparents would promote a meaningful relationship between J and the mother and vice-versa.

Family violence by the father

The mother accused the father of having serious anger problems “made worse by his drinking and drug taking”. In her affidavit of evidence and subsequently in oral evidence the mother relied upon the following examples to support her contention:-
·    specific incidents of physical violence to the mother on 24 November 2003 and 1 December 2003;
·    jealous and unpredictable behaviour in April / May 2006 while the mother was staying at the motel and separating from the father;
·    removal of J by the father on 23 February 2007 by subterfuge.
To these can be added:-
·    removal by the father of his children from his former partner without her consent;
·    aggressive and threatening demeanour and language to the mother when he believed she was sleeping with “the mechanic”;
·    his demeanour in court when unrepresented.
The background to the mother’s assertions, in addition to the father’s own evidence, is the continuing on/off relationship between the father and the mother. The mother asserted that they separated on 24 November 2003 and that the father assaulted her in front of his mother. The police were called and the mother made a statement upon which she relied. The parties had been staying for about six or seven days with the father’s parents in Queensland when the mother decided that the relationship was not working. The mother asserts that she informed the father the night before that she was leaving the next morning. She apparently did so while the father was still asleep but returned to the house to get a street directory. When she got there, the father came out of the house and approached her in the car aggressively, telling her in particular that she was not going to take his son. When she opened the door, he reached in, unlocked the rear driver’s side passenger door, opened it up and threw the belongings from the back seat to the ground and then unbelted J and took him from the car.
The mother followed him into the house and while the father went to answer the phone J sat on her lap. The mother’s version of these events is that the father threatened to punch her and grabbed J and tried to pull him off her. She still had hold of him but the father was pulling hard and, as J was screaming, she let go of him.
The father then took J back to the room where the grandmother was and the mother then went to grab J. As she was doing so, the father grabbed her with one hand from behind around her neck, pulled her away from J, pulled her to the bedroom door and after them wrestling for a short time, threw her into the bedroom wall and onto the floor. Whilst this was occurring, the grandmother called out “Don’t do it – she’ll charge you!” whereupon the father let go of the mother and called the police. The police came, interviewed both, and asked the mother to leave. She did so, leaving J behind. She had bruising to her upper body, including her neck. The father denied all of these accusations, save that he said that he recalled the mother falling over a mattress which she had tripped on. He agreed however that there was a lot of swearing going on but said there were no threats made and said that the mother’s evidence was completely fabricated and that she wished to lay a false charge of assault against him with the police in order to get J back. To the family consultant, Ms S, the father said that her allegations were all false, there had been mutual verbal abuse and the “odd push and shove” and admitted that during one incident her head hit the wall.
On this incident I prefer the evidence of the mother. The father’s denials were made significantly on the basis that the mother was simply not to be believed on any issue and was not reliable on any matter when her evidence conflicted with his, which I have noted is demonstrably wrong. Furthermore, there was aggression, at least verbally, conceded by the father and subsequent similar incidents, in which he removed J, lend weight to the mother’s version. Having removed J forcibly from the car and being adamant that the mother was not going to remove him from the father if the level of verbal aggression which even the father concedes occurred, his version is simply not believable. Whilst the mother may have exaggerated what occurred in other documents, I find her version of what occurred much more likely than that of the father. There is in addition the comments by P to the family consultant that she had lived in a tense household with the father and had witnessed incidents of domestic violence. There is also the further admission by the father to Ms A, a family consultant who prepared an initial report, that although he had never assaulted the mother, he acknowledged that he had “removed [J] by force, but didn’t strike anyone”. The counsellor noted that clearly he did not see the removal by force as violence.
The second incident of physical violence alleged by the mother occurred on 1 December 2003. After the first assault the mother then went to a refuge and, as previously described managed to get J back into her care and left Queensland for Victoria. On 1 December when she was visiting a friend, Ms O, in the peninsula area, the father located her and, according to the mother’s version, forced his way in, beat her up, and forcibly took J from her. She attended Frankston Hospital for treatment of her injuries. On 2 December she attended the Frankston Magistrates Court and obtained an intervention order against the father by consent but without any admissions. The father had been accompanied by his brother who came directly into Ms O’s home and found the mother in the bathroom. She was holding J and there was a tug-of-war with the father having J’s arms and the mother having J’s legs. The mother said that J was crushed between them and starting to turn blue and she let him go to avoid any injury or further distress to him. She alleged that when the father first came in, he slammed her head against the wall. Again, there may be some exaggeration by the mother in respect of this incident, in what she told the police in her subsequent statement, which tended to suggest that the father had endeavoured to strangle J. The mother clarified that she did not think that the father intended to do so, but that his endeavour to take J by force from her and being engaged in what was a tug-of-war, at four months’ old, was causing J to be choked and he was turning blue.
The father admitted to going looking for the mother with his brother and finding her car outside her friend’s home. He said that because he saw her things piled in the car he assumed that she was living in the car and having seen her car telephoned his brother to come around and accompany him so that he could be a witness to the events. He conceded that his brother came to the door with him but failed to contact the police, because he said “I knew the police wouldn’t help me…I knew they wouldn’t agree with me because I know what a liar she is and she is the baby’s mother.” He conceded that he did not ring Child Protection either, because he wanted to get his son himself.
Despite some slight inconsistencies in the mother’s evidence, I again prefer her version of what occurred on 1 December. The father conceded that he had gone to the home of her friend to remove J and that he had called his brother to assist him. Whilst he had options to contact the police and/or the Department of Human Services, he eschewed those options and clearly intended to remove J from the mother by force if necessary. As it transpired, force was necessary. The father conceded he took J forcibly from her arms and further said that she may have bumped her head, in fact probably did. I accept that the injury to the mother occurred in the course of the father’s attempts to remove J from her care but find that he had determined to remove the child, whatever force was needed, and had little regard for J’s welfare in doing so. The mother’s evidence was corroborated in most material matters by Ms O, whose home the mother was in when this occurred.
In April / May 2006 the mother asserts the parties separated and she and J moved into the manager’s unit at the motel, at which she was then working. It appears that the father stayed there from time to time as well as he was then working as a long-haul truck driver. She asserts he was becoming increasingly jealous and unpredictable and became obsessed with the false idea that she was having affairs. She asserts that he repeatedly threatened to harm her and to drive his truck through the motel and she decided that it would be in J’s best interests for him to spend a few weeks with the father’s parents until he settled down and accepted that she was not going back. The grandparents agreed to have J for a few weeks in mid-June 2006 and J went to Tasmania with the grandmother.
The father claimed that the decision to send J to his parents was made entirely by the mother during a period when he was away interstate truck driving. Nevertheless, he admitted that he had been angry when he returned from one of his trips and found that the mother had moved out of her previous accommodation and was living in the motel with the children and that they had argued. The father and grandparents assert that the mother sent J to live with them for a few weeks because the accommodation in the motel was unsatisfactory. On balance, I prefer the mother’s version of events although the grandparents’ version is not contra-indicated by the mother’s evidence, namely that the accommodation was less than optimal for the children. This does not, however, negate the veracity of her concerns about the father’s threats of violence and given the father’s subsequent behaviour, particularly when involving jealousy, on balance I find the mother’s version more likely to be the correct one than the father’s.
The next event involves the removal of J by the father by subterfuge from the mother. The father admitted that he informed the mother that he wanted J for the weekend but had the intention of retaining him and taking him to Tasmania to live with his parents. He asserted that he did so purely in the best interests of J because he was living in a house full of “drugos and drug-dealers and marijuana use, with the inadequate sleeping arrangements and neglect.” This was the house where Ms H lived. There are several reasons for not accepting the father’s evidence at its face value. The first is that he himself had been living in the household from time to time in between his jobs and his truck driving and that while he was there, they smoked cannabis. Secondly, it followed a period of reconciliation between the parties between the end of August and late December and periods of separation seem to de-stabilise the father. There is no real explanation for why he took matters into his own hands in the way in which he did, but whilst I am prepared to accept that the living arrangements in the house were unsatisfactory and he might have been acting in J’s best interests, it is another example of the father’s controlling behaviour.
In late 2004 the father wanted to see his children by his previous partner on Fathers’ Day but there was a problem with her partner, who did not want him to see them. The father went to his former partner’s home and her partner refused him entrance and asked him to leave. He was determined to have the children for Fathers’ Day and after being told to go away he then forced entry through the front door and managed to take his younger daughter outside. The children’s mother refused to allow the other children to come with him and eventually he left with C. The police were called and the father’s brother also attended. When he came he calmed the father down and he ultimately returned her to the home.
On another occasion the father and his former partner had agreed that he would have the children during the school holidays for a particular period. He retained the children at the end of the holiday period and made application to court for them to live with him. The father’s explanation for this was that he had kept the children due to his concern that the youngest daughter had been sexually abused by her grandfather and that he was not sure about her new partner. It is hard to accept that evidence at face value given that, on his own admission, the children were with him for two months before any notification was made to the Department of Human Services about concerns in the mother’s household. The whole incident is another example of the level at which the father operates, albeit on this occasion with a different partner.
These incidents, and in particular those involving the mother, suggest that when the parties were separated, issues of jealousy affected the father. I do not accept that he was motivated on each occasion by concern for J’s welfare as he and the mother reconciled their relationship on many occasions and he was happy for J to be in her care. Even though at these times the care was less than optimal, with both parties taking drugs, the father was a willing party to their living arrangements.
When cross-examined by the independent children’s lawyer about comments by P about the father’s aggressive behaviour, the following exchange took place:
Do you agree that you have become less moody?---Yes, I agree.
By that less aggressive?---Well, I'm aggressive when forced to be that way when pushed.
Less violent?---I don't believe I'm a violent person.
But you are not conducting yourself to try to give a sense of violence, that you control the household by instilling fear on that household?---I have never instilled fear on any household. I admit that I may have reacted in ways that I shouldn't of. I should have thought a bit more before I reacted in the ways - with the language and the things that happened around the kids. [The mother] tries to make me out as some sort of wife beater.
But you understand the importance of violence is multifold, that they include acknowledgment of that violence and the confidence of addressing that violence?---Mm'hm.
The violence is not elevated so you are punished simply because you are violent but your failure to recognise the violence or acknowledge the violence and deal with the violence is a factor the court might take into account as to its confidence of the child being with you. You acknowledge the violence, that you might have created?---A violent situation, yes, but there's never been the striking and the belting that she accuses me of. Yes, to a child it would be a violent situation, yes, I understand that.

There is practical difficulty and expense in the arrangements for J having contact with family members, but that will apply whether he lives with his grandparents in Tasmania or with his mother in Victoria. The practical difficulty and expense arises partly from the fact that they live in different states, partly from the fact that the mother lives in country Victoria, which adds another dimension to the travel, and partly because none of the parties have much spare income and the travel arrangements provide financial pressure. That said, all parties have managed a regime of contact that will to some degree ameliorate with the focus on school holidays.
The capacity of the parents and grandparents to provide for the J’s needs, including emotional and intellectual needs
I need not deal in detail with the grandparents, who have demonstrably indicated a capacity to provide for J’s physical, intellectual and emotional needs and neither of the parents suggested anything to the contrary. They have demonstrated, by their willingness to care for J and their ongoing concern for his stability that they have his needs and best interests at the forefront of their consideration.
I have significant doubts about the father’s capacity to provide for J’s needs. His own needs appear to have been overwhelming from time to time and taken precedence. He has not been in a position where he has cared for J on his own for any significant periods and whilst he clearly has the capacity to care for J’s physical needs, taking overall responsibility for J’s care and all that that entails is not something that he has had to do. The present emotional volatility of his relationship with the mother does not give any confidence that he could take responsibility for J and his needs, including the need to promote a close relationship with the mother. From his own more recent withdrawal as a potential primary carer, I infer that he too accepts that he is not in a position to accept that responsibility at this point.
I find that the mother does have the ability to care for the physical needs of J as well as his intellectual and emotional needs, with the caveat that she remain relatively free of drugs and a drug using lifestyle, and that she does not resume cohabitation with the father. She has demonstrated the capacity to acquire stable and appropriate accommodation close to the primary school where P has attended for the last 12 months. She has obtained employment and advanced herself in that employment and demonstrated as well a capacity to financially support the children and to provide a role model as a hard-working parent.
The unstable life that was provided to P was largely as a result of the mother’s volatile relationship with the father, although her substance abuse cannot be so easily categorised. The risks to the mother’s capacity to provide the best care for J remain the potential for her to resume a relationship with the father and drug use.
Relevant characteristics of J and his link to Aboriginal culture
The grandparents, and hence the father, learned not all that long ago that they were part Aboriginal. This is on both sides of the grandparents’ family. The parents have some involvement with the indigenous Tasmanian Aboriginal community and attend social functions. The father had not been involved in this scene until he moved back to Tasmania. The father’s evidence was that J had been made aware of that background but he was content, if J was living with his mother, for any Aboriginal involvement to be pursued by him or his parents in Tasmania. The father had no expectations that the mother would need to attend to that side of J’s life and that his father and paternal grandparents would provide all the cultural background necessary at times when J was with him. The mother for her part was supportive of J’s Aboriginal heritage and willing to do what might be reasonably asked of her to promote his enjoyment of and to develop a positive appreciation of that culture.
The attitude to J and to the responsibilities of parenthood demonstrated by each of the parents
Again, under the rubric of this subheading I propose to also consider the attitude to the child and parenting responsibilities demonstrated by the grandparents.
In most respects the grandparents have demonstrated appropriate and adequate responsibility for the care of J. The only uncertainty relates to the promotion of J’s relationship with his mother through contact, in particular, the difficulties that have occurred from time to time with contact and what I have found to be a hardening of the grandparents’ relationship over time. They are also to some extent blind to the faults of the father. They have during the hearing rarely accepted that the mother’s version of events should be preferred over his, although I have found him to be an unreliable witness in many respects. They have not acknowledged the real impact of the family violence created by the father’s moodiness, controlling behaviours, jealousy and self-obsession. Whilst they acknowledge the relationship between the mother and the father to be “toxic”, they have been inclined to blame this on the mother. That is not to say that they have not recognised that there is fault on both sides but they have been, perhaps understandably because he is their son, less willing to recognise the extent to which there is fault with him.
The father’s complete unwillingness to accept responsibility for any of his actions has gone unremarked by his parents. This “blind spot” on their part loses some importance given that he is not a candidate for the primary care of J and they are aware of the dangers that lie ahead if the parents were to resume a relationship, although they tend to place the blame for this on the mother. The relevance of this factor to J’s future is that whilst they could have lent support to a situation in which J was able to return to the care of his mother, with her increasing stability, they have not done so. In fact, they have not really accepted that she has made obvious progress in this respect. It simply may be that, having formed a view of her in the past, they are unable to change that view and neither they nor the mother have a sophisticated capacity to discuss differences. However, they have the capacity to manage well enough.
Whilst the passage of time over which the proceedings occurred advanced the mother’s case, in contradistinction the father’s case diminished. Several incidents showed him to be irresponsible and entirely focussed upon himself, rather than J and his needs. His irresponsibility in leaving court and ultimately being arrested simply highlights his immaturity and difficulties in accepting responsibility for his actions. His reaction when learning about what he believed to be the mother having sex with “the mechanic” which it was asserted was seen by J, appears to have been entirely related to his feelings of betrayal and not to any concerns he had about what J might have seen. This is consistent with the jealousy and emotional immaturity the father has exhibited in his relationship with the mother. Despite his protestations that the relationship is now at an end, similar protestations were made by him earlier in the proceedings, particularly to the family consultant. The hiding of his relationship with the mother from his parents creates concerns about his capacity to make mature decisions.
The mother’s evidence regarding what she saw as the end of their relationship was much more compelling. She asserted that the events of late July 2008 were both cathartic and an epiphany, to use the words of the independent children’s lawyer in submissions, and enabled her to disengage emotionally from the father. Her evidence regarding his controlling behaviour was much more insightful than it had been in the past, although she had consistently been cautious about the re-establishment of a relationship. Even though the parties were discussing a resumption of their relationship, her refusal to move with him to Tasmania or Queensland demonstrates a reasonable degree of responsibility to her obligations as a parent. The father appeared much more obviously emotionally affected by the mother and his outbursts and anger towards her at various times did not seem to have moved significantly or given him any greater insights into his own behaviours and how they might have led to the disruptive relationship the parties have.
To the extent that the findings appear unduly harsh to the father, this is because his responses to the events of late 2007 and 2008 seem to have demonstrated the worst side of him. I accept that for the best part of twelve months prior to the commencement of the hearing he was apparently performing much better as a parent but it that side was lost to a great degree once the parties started to resume their relationship. It does suggest however that the father has the capacity to do better and his ongoing relationship with his other children also suggests a side to him that was not really apparent in these proceedings.
As far as the mother is concerned, she has demonstrated over a period of in excess of 12 months considerable progress in changing her lifestyle and providing stability. Importantly, she has done so without J living with her and maintained contact with him despite logistical and financial difficulties. Her interactions with the grandparents have not always been exemplary, but neither have theirs. She has established a stable home and employment and a lifestyle which is relatively free of drug use. Her path to completely giving up use of cannabis has not been as clear as she would have had the Court believe at the commencement of the hearing, but her attitude at the end was probably a more realistic one, namely that it is difficult to overcome decades of addiction and, if considered like cigarette smoking, it would be unreasonable to expect immediate perfection.
If I accept her evidence in preference to that of the father, which I do, then the cannabis smoking around the time she had resumed a relationship with the father was limited to about three occasions. I accept the evidence, which is corroborated by some drug screens, that she had stopped smoking cannabis between about October 2007 and April 2008. This in itself was significant and the evidence at present suggests that, to the extent that she has “relapsed”, her drug taking is nothing like the extent to which she was using cannabis prior to separation from the father. The evidence demonstrates that the mother has made considerable efforts, with considerable success, to change her life. She no longer mixes with drug takers, she has stable accommodation and employment and has demonstrated a wish to better herself. She has an awareness of the disadvantages of a drug-addicted lifestyle and acknowledges, and I conclude understands, the harmful effect on her parenting capacity, if she were to resume a lifestyle similar to that which she previously had. Although P’s development may be in large part due to the fact that she is a resilient child, she has clearly thrived at school with the stability that the mother’s life in G has provided and provides a reminder to the mother of the benefit of stability and appropriate parenting. The mother’s refusal to comply with drug screen tests is concerning, however, and may suggest that she does not have the insight into the addictive habit that she claims.
Any family violence involving J or a member of his family
J has been subjected to family violence when his parents were together. I have made findings about the father’s part in this and it remains clear that he does not really appreciate the extent to which his behaviour is of a violent nature, or his own personal responsibility in the disruptive relationship he and the mother have had. Although he has been to counselling, he did not seem by the end of the case to have any better understanding of his behaviour or give any confidence that he has the capacity to control it. That said, the problems appear to be confined to an emotionally intense relationship between the parties and the cessation of that emotional relationship is likely to eliminate the risk of J once again being exposed to family violence. For example, the period in which the father was living in Tasmania in 2007 and not in an emotional relationship with the mother was one that was not characterised by any violent or controlling behaviour. It is only the likelihood of reconnection between the parties that gives rise to concerns for J.
As to the matters in s60CC(4), I consider they have been adequately addressed by the relevant matters referred to above and nothing more needs be said.

Conclusions

Given that the father has disqualified himself as an applicant for primary care, the issue is whether J should remain with his grandparents in Tasmania, or whether he should live with his mother in Victoria. The issue attains more importance because of J’s commencement of primary school in 2009. It is essential that, if possible, his primary school years are not disrupted by instability of parental relationships around him, that he has stable accommodation and schooling and certainty and stability of parenting arrangements. Thus whatever orders are now put in place, it is best for J that there are no significant changes to them in the foreseeable future. The grandparents have from the start put themselves forward as being prepared to provide care and stability for J but only in circumstances in which the parents are not able to do so.
When they filed their affidavit of evidence in January 2008 they supported the father being able to have J living with him, believing that he was well settled in Tasmania and free of drugs. At that stage he was but they were unaware that he was already having a relationship with the mother and they were wrong about his capacity to be the primary carer for J.
The grandparents have never really accepted that the mother’s lifestyle has changed, even though demonstrably it has. Given the positive changes in the mother’s life, including a significant change to her drug use, the question is really whether sufficient confidence can be reposed in the mother that she can continue to maintain the stability she now has, continue to eschew her past friends and associates who were drug takers, and to work towards a complete cessation of all use of cannabis. If the past 12 months or so are any indication, then she will be able to do so and will be able to provide J with a stable lifestyle with a parent who is working towards complete cessation of the use of drugs and at this stage is relatively drug free. The difference in the mother’s lifestyle between now and when J went into the care of his grandparents in April 2007 is significant and does, in my view, indicate that the mother can provide stability and can change, and has changed, her lifestyle.
There remains the problem of the unhealthy relationship between the parents but I find that on balance the mother has demonstrated sufficient insight now to understand that it is not in J’s best interests for her and the father to live together, or even have a close emotional relationship.
If J remains with his grandparents then he will certainly have a stable life but he will become increasingly distant from his mother as a parent and I accept her evidence that already she feels more like an aunt to him than like a mother. The father, if anything, appears to have become less connected to J over the last 12 months, perhaps as the consequence of his focus on the relationship with the mother, rather than on J, and he has taken little demonstrable initiative in the child’s development. On balance, in what is probably a finely balanced case, I conclude the mother has done sufficient to demonstrate that she can adequately care for J and provide for his needs and on balance, taking all of the matters referred to in these reasons into account, I conclude that J’s best interests are met by living with his mother. It should not be forgotten that the grandparents took on their role to provide assistance in very different circumstances.
It hardly needs stating that if the mother were to lapse into increasing use of drugs and an unstable lifestyle, and assuming that the grandparents were still prepared to care for him, then J would be likely to spend at least his primary school years with the grandparents.
I am confident that the mother and the father, with a reasonable degree of detachment, can make arrangements for contact and even though the father said that he would not see J other than in Tasmania at the home of his parents, his other children reside in Melbourne and I would expect that he and the mother would be able to make arrangements for him to see J when he is in Victoria visiting his other children, or indeed on other occasions.
In coming to this conclusion I have regard to the primary considerations under s 60CC, namely the benefit to the child of having a meaningful relationship with both of his parents and, in this case particularly, being able to grow up in the care of a parent, as well as the need to protect him from physical or psychological harm. This includes the need to protect him from the harmful effect of significant drug use, instability of accommodation, living arrangements and lifestyle, and the dysfunctional and harmful effects of a close relationship between his parents. In the circumstances, however, I find that the mother will protect J from these risks.

Parental responsibility

The independent children’s lawyer proposed that there should be an order for parental responsibility to be shared between the parents and the grandparents. Section 65DAC of the Act provides that if under a parenting order two or more persons are to share parental responsibility for a child, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, then:-
a)the order is taken to require the decision to be made jointly, and
b)the parties concerned are required to consult in relation to the decision to be made and make a genuine effort to come to a joint decision.
I have given considerable thought to whether an order should include simply the two parents, or the grandparents as well. In the end, in my view, it is in the best interests of J for both the grandparents and the parents to have shared parental responsibility. This will require the mother to consult not only with the father, but also with the grandparents, on significant long-term decisions for J. In this case, that is likely to involve decisions which would change the area (rather than the house) in which he is living, require her to advise them if she were to form a relationship and move in with someone else or another party to move in with her and J, and to consult in relation to any other major long-term issues. This would in my view continue to enable the grandparents to maintain some responsibility for J’s continuing development. I would not expect that, if all goes well, there would be any arguments between the parties but it will mean that they are to play a significant role and, more importantly, to be kept informed about any major decisions or changes.
Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in inter alia family violence. In this case, that could lead to the rebuttal of the presumption, but nevertheless I consider that it is in the best interests of J that his parents, as well as his grandparents, have equal shared parental responsibility, notwithstanding the findings about family violence. If they continue to maintain their separate lives and proceed as they were in the latter part of 2007, then there is nothing to indicate that the father should be excluded from shared parental responsibility and much too support it.

All parties put forward proposals for the child to spend time with them, if they were not to be the primary care giver, which amounted to J spending substantial and significant time with each parent and the grandparents. The orders that I propose to put in place will provide for substantial and significant time between J and his father and grandparents.

Proposals

The mother’s proposals were that J live with her and spend substantial and significant time with the father and grandparents. The parties in the end made proposals which were little different. Both agreed there should be significant holiday periods with two long weekends each term encompassing the child’s birthday. The mother proposed that the costs of travel be shared, the grandparents indicated they were prepared to pay the costs of travel four times per year for J to come to Victoria, assuming he lived with them, and that the parents should pay the additional costs. The father said that he would be residing in Hobart about every three to four weeks for at least a week and that he would be able to spend time with J when he was with his parents in Tasmania. He did not otherwise put forward any other proposals for spending time with J in the event that he lived with the mother.
Given the logistical difficulties for each of the parties it is reasonable for the expenses of contact to be shared in some measure between them so that the burden should desirably be shared between the father, mother and grandparents.
As the mother’s case is that she has substantially given up drug taking I propose to make orders that neither party is to be affected by illicit or illegal drugs or take illicit or illegal drugs while J is in their care.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant.

Associate:

Date: 9 January 2009

[2009] FamCA 10

9 January 2009

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