Bonham and Bradbury and Ors

[2018] FCCA 1812

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONHAM & BRADBURY & ORS [2019] FCCA 1812

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – paternal grandmother – no contact with mother since 2008 – substance abuse – family violence – father incarcerated – whether children should spend time with mother and maternal family – children’s wishes.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS BONHAM

Respondent: MR BRADBURY AND MR A BRADBURY

First Intervener: MS BRADBURY

Second Intervener: MS STONE

File Number: MLC 10739 of 2015

Judgment of: Judge Mercuri

Hearing date: 7 March 2018

Date of last submission: 7 March 2018

Delivered at: Melbourne

Delivered on: 6 July 2018

REPRESENTATION

Advocate for the applicant: Ms R Teicher

Solicitors for the applicant: D & M Lawyers

Advocate for the respondent: No appearance

Solicitors for the respondent: None

Advocate for the first intervener: Mr M Leeton

Solicitors for the first intervener: Comito & Associates

Advocate for the second intervener: In person

Solicitors for the second intervener: None

ORDERS

1. The paternal grandmother, MS BRADBURY have sole parental responsibility for the children, namely:

   (a)[X] born 2004; and

   (b)[Y] born 2006 (collectively referred to as “the children”).

2. The children live with the paternal grandmother.

3. Notwithstanding paragraph 1 hereof, the paternal grandmother shall:

   (a)advise the mother of the details of any school at which the children or any of them is enrolled and authorise any such school to provide to the mother, at her expense if any, copies of the children’s school reports and photograph order forms each year;

   (b)advise the mother of any serious illness or injury suffered by any of the children and advise the mother in the event that any of the children are hospitalised and the paternal grandmother do authorise any medical practitioners treating the children in such circumstances to provide information to the mother relevant to the children’s medical welfare;

   (c)advise the mother of a current telephone contact number on which she can be contacted by the mother to discuss matters relevant to the children’s welfare and further advise the mother of any changes to such details within seven days of any change; and

   (d)if the children’s school cannot or does not provide copies of the children’s school reports or photograph order forms, the mother may request school photos and reports from the paternal grandmother, at her expense, and the paternal grandmother will provide them to the mother in a timely manner.

4. The mother and the paternal grandmother shall forthwith undertake counselling through an organisation such as Relationships Australia for a period of at least six months (unless the said organisation terminates the counselling prior to 6 months) to assist them to support the children if and when they express a desire to spend time and communicate with their mother and the mother will pay the costs (both for herself and for the paternal grandmother) of such counselling.

5. At the conclusion of the counselling referred to in order (4) herein, if necessary the mother and the paternal grandmother may participate in family dispute resolution with a view to negotiating arrangements to progress the children’s time with the mother.

6. The mother and the paternal grandmother are authorised to provide a copy of the child inclusive conference memoranda prepared by Ms D, family consultant dated 20 February 2017 and 8 September 2016 to any counselling service engaged by the mother and the paternal grandmother pursuant to order (4) above.

7. The mother and MS STONE, the maternal grandmother, each be permitted to send the children or any of them cards and gifts on their respective birthdays and for Christmas, such cards and gifts to be sent to the paternal grandmother, C/- Ms C, Suburb A, in the State of Victoria or such other address as may be provided to the mother and the maternal grandmother for that purpose by the paternal grandmother and the paternal grandmother will ensure that such cards or gifts are given to the children.

8. Should the children or either of them express a wish to contact the mother or the maternal grandmother, the paternal grandmother will facilitate such contact via email or telephone, and will provide transport as required.

9. The mother, the maternal grandmother and the paternal grandmother provide one another with their current mobile telephone numbers and advise each other of any changes to such contact details within seven days of any change.

10. The mother, the maternal grandmother and paternal grandmother, and their respective servants and agents be hereby restrained by injunction from:

    (a)discussing the court proceedings with the children or any of them or allowing anyone else to do so;

    (b)denigrating the other in the presence of the children or any of them nor allowing another person to engage in such conduct or otherwise exposing the children or any of them to the parental conflict; and

    (c)physically disciplining the children or any of them or exposing any of them to any form of family violence.

11. The mother, maternal grandmother and paternal grandmother be restrained by injunction from bringing the children into contact with the father under any circumstance.

12. All parenting applications in relation to the children otherwise be dismissed.

13. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10739 of 2015

MS BONHAM

Applicant

And

MR BRADBURY AND MR A BRADBURY

Respondent

MS BRADBURY

First Intervener

MS STONE

Second Intervener

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of [X] born 2004 (“[X]”) and [Y] born 2006 (“[Y]”) (collectively referred to as “the children”).

Background

1. The facts in this matter are not significantly in dispute.

2. The applicant mother and the respondent father commenced a relationship in or about 2000 and separated in about 2007.  The relationship bore the two children which are the subject of these proceedings.

3. The applicant mother also has a daughter born in 2015.

4. The father did not participate in the proceedings at all. The evidence suggests that the father was convicted of murder in 2017 and has been incarcerated.  His likely release date is 2030.

5. Ms Bradbury’s evidence which is not disputed, is that she commenced a relationship with the paternal grandfather in 1997, they were married in 2002 and she has had a warm and loving relationship with the children since their birth. 

6. The mother gave evidence that both parents consumed drugs and alcohol during their relationship. 

7. Records from the Department of Health and Human Services (“DHHS”) indicate that there was significant involvement from DHHS with both parents since [X]’s birth.  DHHS’ involvement related to parental drug abuse and allegations of family violence. 

8. DHHS records further indicate that in 2007, a report was made about the children being left unsupervised.  Following an investigation and an after-hours visit from child protection after the children were sighted wandering on a busy roadway, the mother voluntarily placed the children in the care of the paternal grandparents.[1]  This information was put to the mother during cross examination and she conceded this was an accurate account of what occurred.

   [1] See Annexure A to affidavit of Ms Bradbury dated 1 February 2018.

9. Over the period from April 2007 to June 2008, court proceedings were commenced by the department in relation to the children which ultimately resulted in a Supervised Custody Order being made for the children to live with the father, with the paternal grandparents providing regular respite.  Child protection continued to monitor the children’s welfare for a further six months and closed their file as no protective concerns were identified.

10. The children have consequently lived with the paternal grandfather and his wife, the paternal grandmother since May 2011 with the father’s consent. Following the paternal grandfather’s death in October 2011, the children have continued to live with the paternal grandmother.

11. The mother gave evidence that she did not attempt to regain custody of the children prior to filing this application in November 2015 as she feared for her life as a result of threats made to her by the father.  She said that it was only after she became aware that the father had been imprisoned that she felt able to make this application.

12. The paternal grandmother gave evidence that until these proceedings were issued, the mother only contacted her once about the children in about 2012 even though the mother had her contact details.

13. Irrespective of the reasons why this has occurred, it is not in dispute that the children have had no contact with their mother since [X] was 2 and a half years old and [Y] was 13 months old. 

14. When this matter first came before this court, a section 11F child inclusive conference was ordered.  Ms D, family consultant met with the children and made the following observations in her first memorandum:

    [X] stated that his preference was not to see his mother at present but to spend time with her when he was older if he chose to; 

    [X] expressed curiosity regarding his younger half-sister and in discussing options, he stated he would like to spend some time with his counsellor talking about his feelings before the judge made decisions for him as he wanted to be sure he would feel safe.  [X] stated he would like to be asked again in a couple of months after speaking to the counsellor about whether he was ready to meet his mother; 

    [Y] stated that he wanted to live with his ‘Nanna’ as he did not know his mother and that ‘maybe’ he would like to meet her when he was older.  He was reassured that his mother was not seeking for him to live with her but to spend time with him.  He stated he thought it would ‘be ok to see her sometimes’; 

    [Y] stated that if his mother was not trying to take him away from his ‘nanna’, he would be interested in getting to know her and his new sister, although he would only like to spend a short amount of time with them as he felt nervous; and 

    [Y] stated he was not open to spending time alone with his mother yet and would like his ‘nanna’ with him to ensure he was safe.  He became distressed at the thought of his ‘nanna’ not being present and when the option of a contact centre was discussed with him, [Y] stated he would feel safer if someone else was present. [2]

    [2]

15. Ms D recommended, amongst other things, that the court may consider a period of counselling with the children to prepare them for time with their mother. She further recommended that another child inclusive conference occur in about 3 months to review the progress made by the children in their counselling prior to initiating time between the children and the mother.

16. Ms Bradbury annexed to her affidavit filed 1 February 2018, a letter from Mr M, the psychologist who had been seeing [X] since 2014 and [Y] more recently.  In his letter, Mr M stated that:

    Both children have been confused and unsure about the recent attempts by their mother to be involved in their life.  Since hearing of this news, and the idea of potentially seeing their mother and spending time with her, both boys have been particularly unsettled…

    Both children have indicated on multiple occasions through counselling that they do not wish to be involved with their mother, and certainly have no interest in staying overnight, or engaging in any living arrangement with her…. [X] has said “I wish it would just end, I do not want to see her” and [Y] has stated “100% I do not want to be involved and do not want to see her.”[3]

    [3] Annexure B of the affidavit of Ms Bradbury filed 1 February 2018.

17. Mr M recommended that the children continue to live with the paternal grandmother and that any decision to meet and spend time with their mother be dealt within in future when they are a little older and more mature.[4] 

    [4] Annexure B of the affidavit of Ms Bradbury filed 1 February 2018.

18. Ms D conducted a further section 11F conference on 10 February 2017.  Whilst Ms D noted concerns raised by the mother that the children had been told things which made them apprehensive about her, she made the following observation:

    The children have experienced significant changes and trauma in their young life to date and within interview they both independently expressed strong views about not spending time with their mother.  Although this is likely to be highly distressing and difficult for the maternal family to consider, this assessment would suggest that Ms Bonham and Ms Stone need to reconsider their application in more pragmatic terms.  It would appear that due to their history and the length of time since they had a relationship with their mother that their response is indicative of a realistic estrangement from their mother, particularly in light of their early traumatic experiences of substance abuse, family violence and neglect.  Ms Bradbury does not appear to have actively sought to align the children to her views and she expressed appropriate sympathy for the extended maternal family, however this assessment would suggest that it would be highly problematic and confronting for the children to reintroduce their mother into their life at this stage against their wishes. (emphasis added)[5]

    [5] Page 2 of the section 11F child inclusive memorandum prepared by Ms D dated 20 February 2017.

19. Ms D made the following recommendations:

    a)the court should consider reserving any time between the children and the maternal family until the children are of an age and maturity to initiate a relationship;

    b)should the court wish to consider the children spending time with the mother and maternal grandmother, a period of specialist therapeutic intervention would be necessary prior to this to ameliorate the impact on the children’s emotional wellbeing;

    c)the court should consider releasing a copy of this memorandum to court and the initial memorandum dated 8 September 2016 to the therapeutic service;

    d)the mother and the maternal grandmother be permitted to send cards and gifts to the children on birthdays and Christmas;

    e)the mother and maternal grandmother are to provide the paternal grandmother with up-to-date contact details for the children in the event that the children express a wish to spend time with their mother and the maternal grandmother;

    f)the children continue to attend upon their psychologist for the duration of the court proceedings to provide them with emotional support;

    g)given the children’s strong opposition to a relationship with their mother and maternal family due to a realistic estrangement, it is highly unlikely that the court would benefit from any further intensive assessment in this matter via a family report.[6]

    [6] Page 3 of the section 11F child inclusive conference memorandum prepared by Ms D dated 20 February 2017.

Evidence

1. The mother, paternal grandmother and maternal grandmother gave evidence and were subject to cross examination.

Mother

1. In giving her evidence, the mother did not seek to underplay her drug history and also appeared genuinely focused on wanting to support her children in re-establishing a positive and constructive relationship with her.

2. It was evident both from her affidavit material and the evidence given during the hearing that the mother remained distrustful of the paternal grandmother and believed that she has negatively influenced the children with respect to spending time with her. In her material, the mother alleges that the paternal grandmother has alienated the children from her.

3. In the course of giving evidence with respect to what the children have been told about her and the impact that this might have on the children wanting to make contact with her and have a relationship, the mother said:

   It will never happen if the boys are being made to fear me and being told I’m schizophrenic and crazy… If the boys have appropriate counselling or the support they need to deal with this… If the boys have an opportunity to have facts, not some fear mongering scare tactic… about me… and the boys said ‘No, I’m not ready’, I would gladly back down. I would back away. I would be very happy with that. But I feel the boys haven’t been given an opportunity at all. They haven’t… There’s no hidden agendas. None. I have a daughter, my sons’ sister. They’re missing out.[7]

   [7] Transcript page 18 at lines 30 to 43.

4. In her trial affidavit, the mother deposed that she has returned clear drug screens and also completed a parenting orders program and therapeutic counselling with Catholic Care.[8] 

   [8] Paragraphs 27 to 30 of the affidavit of Ms Bonham filed 10 January 2018.

Dr W, psychologist

1. The mother undertook a psychological assessment as contemplated by Ms D’s recommendations in her first memorandum. The mother refers to the findings by Dr W in her trial affidavit.[9]

   [9] Paragraphs 39 and 40 of the affidavit of Ms Bonham filed 10 January 2018.

2. Dr W also filed an affidavit in these proceedings attaching his report dated 5 February 2017.[10] Dr W was not called to give evidence at the hearing; however, no issue appears to have been taken with the report he provided.

   [10] See affidavit of Dr W filed 6 March 2018.

3. I note the following observations made by Dr W in his report:

   …I spoke with Ms Bonham about parent-child reunification after alienation and what she thought might be the greatest challenges. She spoke with some insight and consideration, with an apparent realisation that any reunification or reconnection with her sons… will be agreed and endorsed and monitored by several third parties and closely checked to ensure the boy’s (sic) experience is in a positive direction and congenial to their overall health and wellbeing. At this point she entered into a deep conversation about unconditional love, and having patience and hope and mothering/parenting teenagers. She also again spoke optimistically of the support from her mother and sister A in this complex process.[11]

   [11] Page 8 of the affidavit of Dr W filed 6 March 2018.

   …

   Ms Bonham presented as a resilient and very determined person willing to comply with requirements, not just to achieve an outcome, but to ensure she provides the boys and herself and her family with optimum and safe opportunity to rekindle sons/mother relationship with expert advice, consideration, appropriate pace and realistic expectations.[12]

   [12] Page 9 of the affidavit of Dr W filed 6 March 2018.

4. I am satisfied that the mother is genuinely interested in re-establishing a positive and constructive relationship with the children and is amenable to doing this in a child-focused manner which is most likely to achieve long-lasting and positive consequences.

Paternal grandmother

1. The paternal grandmother gave evidence that she has done her best to raise the children and denied telling them any negative things about their mother. When questions were put to her in cross-examination about the support she would provide to both the mother and the maternal grandmother in developing a relationship with the children, it was apparent and I find that the paternal grandmother at all times indicated a preparedness to support this despite acknowledging that it may not always be easy given the wishes expressed to her by the children about not wanting to spend time with the mother. The paternal grandmother also referred to the fact that as these children are now adolescents, sometimes it is difficult to get them to do what they are asked.

2. There was also some questions about a card which the mother sent to the children and a response that the paternal grandmother passed on to the mother from the children.[13]  The paternal grandmother gave evidence, which I accept, that she passed on the card from the mother to the children and asked them to read it and reply and that she then passed on the card from the children to the mother.  I accept that the paternal grandmother tried her best and did not intentionally seek to undermine the mother’s relationship with the children.

   [13] Exhibit B and Exhibit C.

Maternal grandmother

1. The maternal grandmother filed an affidavit in these proceedings on 1 March 2018. In essence she sought orders facilitating a relationship between herself and the children and which would enable the children to know the maternal extended family.[14]

   [14] See response to initiating application filed 1 March 2018.

2. In cross examination, the maternal grandmother said:

   …I only want what’s best for the boys too, but they do have our family. They do have another grandmother. And it’s a shame that they’ve never been afforded that opportunity.[15]

   [15] Transcript page 40 at lines 25 to 28.

Ms D, family consultant

1. Ms D’s evidence at trial was consistent with that contained in her most recent report. Ms D stressed the need to give these children a sense that their wishes have been heard particularly given their age and stage of development.  Ms D gave the following evidence:

   …With adolescents, if you try and force them into that relationship without the ground work, they’re likely to be rejecting and long-term it’s going to actually have a worse impact on their capacity to have a relationship with their mum. They’re likely to be even more rejecting of her.[16]

   [16] Transcript page 60 at lines 19 to 23.

2. It was suggested by counsel for the mother that one option could be for the court to make interim orders and then to review the situation in approximately 12 months’ time. Counsel for the paternal grandmother asked Ms D about this to which she responded:

   …that’s far from ideal. Adolescents experiencing ongoing court proceeding is very unsettling… it’s about weighing up the benefits of sending this away for a further period of counselling, with a view that you would then be able to progress the relationship with the mum, versus the children feeling increasingly unsettled and, subsequently, being more rejecting of this process because they feel forced into it…

   I would say a… better approach would be that the… grandmother and the mother to be able to go off, do that therapeutic counselling and allow this to evolve in a more natural way, without the need for the court intervention, potentially… by going through mediation or something along those lines.[17]

   [17] Transcript page 60 at lines 27 to 36.

3. In relation to the maternal grandmother’s proposal that she be permitted to spend time and communicate with the children, Ms D stated that in her view, if new people are to be introduced into the children’s lives then priority should be given to the mother and that if and when that happens, things could naturally evolve to include the extended maternal family.[18]

   [18] Transcript page 61 at lines 21 to 24.

4. The maternal grandmother expressed some concern about how cards and gifts would be received when the children did not have any existing relationship with her.[19]  In response, Ms D stated that this was something that she had previously discussed with the children and that if it was explained in the context of those discussions, then the children had expressed that they were comfortable with that occurring.[20]

   [19] Transcript page 62 at lines 38 to 47 and page 62 at lines 1 to 2.

   [20] Transcript page 63 at lines 4 to 18.

Proposals

1. At the hearing, the parties’ respective proposals were as outlined below.

Mother’s proposal

1. After hearing the evidence of Ms D, the mother, to her credit, acknowledged that although she did not wish to give up on a relationship with her children and remained prepared to do what is necessary to achieve that, she understood that it would not be in the best interests of the children to force that.[21] 

   [21] Transcript page 65 at lines 28 to 31.

2. To that end, the mother moved away from the orders sought in her amended initiating application and, through her counsel, indicated that she sought orders that:

   a)she and Ms Bradbury have equal shared parental responsibility for the children;

   b)the children live with Ms Bradbury;

   c)Ms Bradbury be restrained by injunction from bringing the children into contact with the father or allowing anyone else to do so;

   d)she and Ms Bradbury attend counselling though an organisation such as Relationships Australia, to help them to develop the necessary tools to support the boys in developing a relationship with the mother when they indicate that they are ready to do so and that they both follow all reasonable recommendations of the counsellor;

   e)the mother meet the costs of such counselling both in respect of herself and Ms Bradbury;

   f)after such counselling (without limiting the duration of such counselling), the parties engage in family dispute resolution to try and facilitate moving forward to effect time between the children and the mother;

   g)the mother be provided with updates about the children’s progress at school and any medical conditions;

   h)there be a restriction on Ms Bradbury leaving Victoria with the children;

   i)each party keep the other advised of their contact details; and

   j)a mutual non-denigration clause.

Paternal grandmother’s proposal

1. For her part, Ms Bradbury sought:

   a)sole parental responsibility:

   b)that the children live with her;

   c)

   that the mother and the maternal grandmother be permitted to send the children cards and gifts on their respective birthdays and for Christmas, such cards and gifts to be sent to Ms Bradbury,

   
   

   C/-Ms C, Suburb A, in the State of Victoria;

   d)should the children or either of them wish to contact the mother or the maternal grandmother, Ms Bradbury will facilitate the contact via email or telephone; and

   e)she agreed to the mother’s proposal as set out in paragraphs (d) and (e) above provided that there be a time limit of 3 months on any such counselling and that the mother meet all associated costs.

2. Ms Bradbury further indicated that:

   a)she was agreeable to an order that the children not come into contact with the father;

   b)she was ‘vehemently opposed’ to the mother knowing the children’s residential address but was agreeable to giving the mother her mobile telephone number although she indicated that it would be preferable for communication to be limited to issues relating to the children’s welfare; and

   c)she agreed to a mutual non-denigration clause.

Maternal grandmother’s proposal

1. In her response filed 1 March 2018, the maternal grandmother sought orders that:

   a)she be permitted to contact the children by telephone, including SMS and FaceTime calls on a weekly basis;

   b)she be permitted to send packages to the children at the paternal grandmother’s home;

   c)the children spend time with her for two hours, once per month at Restaurant, or other agreed location;

   d)she receive updates from Ms Bradbury about the children’s progress, including photographs, school reports and medical information; and

   e)she be permitted to contact and visit the children on their birthdays and other special occasions.

2. At the hearing, Ms Stone indicated that she did not expect all of these orders to be made, but she would like the opportunity to get to know her grandchildren and to spend time with them.[22]  Ms Stone also filed with the court an undertaking that:

   a)she would not approach, intimidate or harass any of the parties involved, including the children;

   b)she would not show up uninvited at any time to the place of residence of any of the parties involved including the children’s’ home; and

   c)she would not disclose the address of any of the parties to a third party without prior consent.[23]

   [22] Transcript page 40 at lines 13 to 28.

   [23] See undertaking of Ms Stone filed 1 March 2018.

Issues in dispute

1. The key issues remaining in dispute relate to:

   a)parental responsibility;

   b)whether orders should be made for the children to spend time and communicate with the mother and, if so, when and how that might be effected; and

   c)whether orders should be made for the children to spend time and communicate with the maternal grandmother and, if so, what such orders should provide.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (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

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

4. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

5. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

6. I will address each of these considerations below.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The circumstances in this case are somewhat unusual in that the mother has had no contact with her children since 2008 when the children were very young infants and the father is currently incarcerated and also has no contact with the children for some time.

2. The paternal grandmother has provided the children with stability and care since 2011. The information before the court suggests that the children are well looked after and their physical and emotional needs are being met.

3. Whilst the mother has criticised the paternal grandmother’s encouragement of the children’s relationship with her, the mother does not raise any concerns about the children’s wellbeing in the paternal grandmother’s care.

4. The mother has, since filing this application, pursued a relationship with her children. She appears to have dealt with her substance abuse issues and wishes to play an active role in her children’s lives. Her efforts are to be commended.

5. Unfortunately, the children are both of an age and stage of development where they have very strong views about spending time with their mother.

6. Whilst things may have been different if the mother had amended her application at a much earlier stage (once she was aware that the children were distressed at the thought of her trying to remove them from the only stable environment that they have known since they were babies, and I make no finding in that regard), the reality is that the children have, on numerous occasions, expressed very strong views that they do not wish to engage with their mother at this point in time.  

7. Ms D expressed the strong view that the children’s rejection of their mother at this stage was due to realistic estrangement rather than any alienation by the paternal grandmother. I agree with this assessment.

8. Having heard from the paternal grandmother and observing her during cross examination, and in particular noting the concessions she made with respect to facilitating the children’s relationship with both the mother and the maternal grandmother, I am satisfied that the paternal grandmother would support the children developing a relationship with their mother if they expressed a wish to do so.

9. In these circumstances and having regard to the background of this matter, whilst there is clearly a benefit to children, as a general rule, in having a relationship with both of their parents, regard must be had to this particular set of circumstances which have resulted in these two adolescent boys, who have had a fairly traumatic start in life, to have no memory of their mother.

10. Having said that, it is evident that if both the mother and the paternal grandmother are able to establish some trust between them and open communication channels with the assistance of external support, they may be able to facilitate a meaningful relationship in the long term between the children and their mother.

11. Having heard from the mother, the paternal grandmother and the maternal grandmother as well as the family consultant in this matter, I am satisfied that the best chance of encouraging a meaningful relationship between the mother and the children requires a gradual and measured approach. The orders that I propose making in this matter are designed with that intent.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Although there were allegations of domestic violence between the mother and father during the relationship, they are no longer relevant in this case for the reasons set out above.

2. Having said that however, it is apparent from Mr M’s letter that these proceedings have been unsettling for the children and the manner in which their mother is reintroduced to them needs to be handled in a supportive and constructive way to avoid further harm.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The key issue in this case is the very strong views expressed by the children about spending time with their mother.

2. It may well be that the strength of these views have arisen from concern that the stable environment in which they have lived for some years may be disrupted by the mother’s initial application for the children to live with her.

3. I am satisfied that the mother recognises that her application for the children to live with her is not in their best interests and, to her credit, she did not press that application at the hearing. Notwithstanding this, the children have expressed a very strong view to their treating psychologist, the paternal grandmother and to the family consultant is that they are not ready at this stage to spend time with their mother.

4. In light of the ages and stages of development of both children, I am satisfied that it is appropriate for significant weight to be given to their views.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. The children do not have a relationship with the mother or maternal grandmother at present. The children had a relationship with their father but have not seen him since his incarceration.

2. By comparison, they have a very close relationship with the paternal grandmother who has been their primary carer for a number of years and has played a significant part in their lives since they were born.

3. It is hoped that the counselling that the mother and paternal grandmother will participate in will equip them with skills to support and assist the children when they are ready to re-establish a relationship with the mother, and through her, the maternal grandmother and broader maternal family.

4. I have also had regard to the fact that the children have a sibling, being the mother’s young daughter whom they have not yet met. Ideally, the children should be able to develop a relationship with their sister.

5. However, for the reasons set out above, the focus at this stage should remain on providing the children with a supportive and stable environment from which they may wish to explore their relationship with their mother in the first instance. If that relationship is established, a relationship with the broader maternal family including the children’s sister, can follow.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)          to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child

1. As stated above, the mother has had no involvement in the children’s lives since 2008. She gave evidence that she did not contact the children or make any attempt to initiate court proceedings to reconnect with the children due to fear of the father who allegedly threatened her. 

2. It is also apparent that the mother had a significant drug problem for a number of years which she, to her credit, acknowledged in the course of giving evidence. She also acknowledged that, for at least part of the time, this may have also been a contributing factor to her absence from the children’s lives.

3. The father did not participate in these proceedings and is not currently in a position to exercise any parental responsibility in relation to the children. Indeed, the paternal grandmother gave evidence that the father handed over parental responsibility in respect of the children in 2011 when he asked the paternal grandfather and the paternal grandmother to take care of them on a full-time basis.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. I refer to my comments above which equally apply in relation to this factor.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The proposed orders would not see any significant change to the children’s living arrangements so, to that extent, this factor does not significantly come into play.

2. Having said that however, for the reasons set out above the change arising from the reintroduction of the children to their mother has caused the children to become unsettled. The orders address the concerns the children have expressed in this regard and are aimed at providing the mother with an opportunity to establish a relationship with the children in a way which acknowledges those concerns and the children’s expressed wishes.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The orders provide for the mother and the maternal grandmother to be able to send the children cards and gifts for their birthdays and Christmas. They also provide that if the children or either of them express a desire to communicate or spend time with the mother, that the paternal grandmother shall facilitate that. 

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. As stated above, when the children were infants there were concerns about the mother’s parenting capacity which ultimately led to the children being placed in the care of the father with support and respite from the paternal grandparents. The father, as stated above, is not in a positon to provide for the children’s daily needs. The mother’s evidence, which I accept, is that she is now drug free and is able to provide for the children.

2. The issue in this case, as discussed above, is the strength of the children’s wishes in the particular circumstances.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. This factor is not relevant.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I refer to my comments above.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. I refer to my comments above in relation to issues of family violence which are no longer relevant.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)       any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter

1. This factor is not relevant.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. As discussed above, counsel for the mother suggested that one option might be to deal with this application on an interim basis.

2. For the reasons articulated by Ms D, which I accept, I am satisfied that the more appropriate course is to make final orders which provide the children with some certainty and stability and are least likely to lead to the institution of further proceedings.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. The maternal grandmother seeks time with the children, independently of any orders made with respect to the mother.

2. I accept that the maternal grandmother is genuine in her desire to meet the children and welcome them into the broader maternal family. However, I accept Ms D’s recommendations that the primary focus, in the first instance should be to try and support the establishment of the children’s relationship with the mother.

3. The orders provide the maternal grandmother with the opportunity to send cards and gifts to the children and also that if they express a desire to communicate or spend time with the maternal grandmother, that the paternal grandmother will facilitate that.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   …

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. As stated above, the paternal grandmother sought an order for sole parental responsibility of the children. On her behalf it was argued, in essence, that this was in the children’s best interests.

3. In circumstances where the mother and the paternal grandmother have had no relationship for at least 10 years, it is not in the children’s best interests that the paternal grandmother be required to consult with the mother and agree on key issues relating to the welfare of the children.

4. Similarly, given the father’s non-participation in these proceedings and the paternal grandmother’s evidence that she is estranged from him, it is not in the children’s best interests for the father to retain parental responsibility at this time.

5. The focus of the mother and the paternal grandmother in the short to medium term should be upon building a relationship in which they can communicate effectively and support the children should they express a desire to re-establish a relationship with the mother.

6. It was apparent from the evidence given in this matter by the mother and the paternal grandmother that there is a lack of trust between them. The paternal grandmother expressed concern throughout the hearing about the mother knowing where she lives on the basis that she may try and take the children away.

7. Although the mother denied that she would do this, the fact remains that the relationship between them is such that that denial is not sufficient to appease the paternal grandmother’s concerns.

8. In those circumstances, and having regard to the fact that the paternal grandmother has, in effect, exercised sole parental responsibility for the children for approximately 7 years (since the paternal grandfather passed away in 2011), the court ought to formalise that arrangement. I am satisfied that such an order would be in the best interests of the children to the extent that it will provide them with certainty and stability in that relationship.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.

2. Given my conclusions in relation to sole parental responsibility, it is not necessary for me to say anything further about this.

Conclusion

1. For these reasons, I propose making the orders attached to this decision.

I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:         6 July 2018