Bower and Theiss

[2008] FamCA 695

FAMILY COURT OF AUSTRALIA

BOWER & THEISS [2008] FamCA 695

FAMILY LAW – CHILDREN – Parenting orders – consent orders – orders inconsistent with experts recommendations – evidence reveals significant improvements to parties parenting capacity subsequent to reports release – consent orders made

Family Law Act 1975 (Cth)

APPLICANT: MR BOWER

RESPONDENT: MS THEISS

FILE NUMBER: NCC 80 of 2007

DATE DELIVERED: 3 June 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon Justice Ryan

HEARING DATE: 3 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Edwards

SOLICITOR FOR THE APPLICANT: Denis Edwards & Associates

COUNSEL FOR THE RESPONDENT: Mr Roberts

SOLICITOR FOR THE RESPONDENT: Ticehurst Foat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Powe

Orders

1. BY CONSENT of the parties and their legal representatives but I make orders in accordance with the document entitled Terms of Settlement signed by the parties and their legal representatives (not consented to nor opposed by the Independent Children’s Lawyer) marked Annexure “A” and attached hereto.

2. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. I give leave to both parties and the Independent Children’s Lawyer to provide copies of the reports of Ms S and Dr G to the Department of Community Services if any further issues arise or any counsellor that the parties would attend upon.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC80 of 2007

MR BOWER

Applicant

And

MS THEISS

Respondent

REASONS FOR JUDGMENT

1. These Reasons were delivered orally.

2. This is an application by Mr Bower for parenting orders.  The proceedings relate to the parties' daughter, born in April 2006.  Because of the complex issues raised, an Independent Children's Lawyer was appointed to represent the child’s interests and experts reports obtained from Dr G, a paediatrician, and Ms S, a psychologist.  The latter report, in particular, raises serious concerns about each party’s parenting capacity.  Simply put, Ms S recommends that the child lives with her father and spends time with her mother, supervised, ideally by the mother's foster parents. 

3. This morning the parties have tendered a suite of consent orders which bear little relationship to Ms S's recommendations.  Essentially, the orders provide that the parties will have equal shared parental responsibility and that, primarily, the child will live with her mother.  She will have three weekends in each calendar month with her father until she starts school, when the arrangement changes to alternate weekends plus Wednesdays overnight.  The orders provide for special occasions to be shared between her parents in different configurations and address school holiday arrangements. 

4. The Independent Children's Lawyer does not submit against the orders, but, particularly because the Court must be satisfied the orders are in the child’s best interests and of the risk issues identified in Ms S's report and the evidence given previously in this Division 12A less adversarial hearing, is uncomfortable consenting to them.  Because of the Independent Children's Lawyer's concerns, I have taken further evidence today from the parties, the paternal grandmother and Mr C.  Mr C is the mother's partner and the father of the baby she is carrying.  These witnesses speak with one voice.  All attest to a dramatic improvement in the mother's parenting capacity and the child’s presentation subsequent to the release of Ms S’s report.  All witnesses corroborate the mother's evidence that she is not abusing drugs.  All witnesses corroborate the mother's evidence that she has refocused her energies so that the child’s needs are more adequately met than was the case when the parties saw Ms S.

5. The evidence establishes that the child physically presents well and emotionally is much more settled than has previously been the case.  Ms S commented that, on her observations, she believes the child presented as a child with an adjustment disorder of some magnitude.  Having regard to the mother's drug use and frequent changes of partner, the father's alcohol abuse and fairly ad hoc approach to his parental responsibilities, it is unsurprising that Ms S saw the disturbed attachment behaviours commented upon in her report.  The evidence indicates much greater improvement in the child’s relationships with her mother and her father.  She is somewhat unsettled at leaving her mother but settles quickly when with her father and paternal grandmother.  She is comfortable returning to her mother, and the distress apparent to the father and his mother previously has abated.

6. The parties all attribute these improvements to two factors: firstly, the stabilising effect the mother's relationship with Mr C has brought to her and the child.  He impressed me as a responsible young man who values his relationship with the mother and is keen that they have a settled, happy family life including the baby the mother carries.  Mr C presents as a young man of sober habits and who has acquired his own home and is in full‑time employment.  He has never used drugs.  Mr C has undoubtedly been a force for good in the mother’s life, and there is reason for cautious optimism that this is a healthy adult relationship of a type she has never previously experienced.  It is, however, a relationship of relatively recent origin and comes at the end of a long line of frequent changes of partner by the mother.  While she says she is committed to her relationship with him I expect it is a mantra others have previously heard.  Mr C’s commitment to the mother is but one part of the elements necessary for a successful family life for them and the children.  For her part, the mother needs to be able to maintain her commitment to Mr C and the type of healthy family life which, with his support, they can enjoy.

7. The Independent Children’s Lawyer commented, "If only we had a crystal ball".  I understand his sentiment.  Obviously we do not, and the best I can do is express cautious optimism that the improvements seen in the mother’s parenting capacity over the last six months will continue.  In this regard she has the active support of the paternal grandmother, her foster parents and her counsellor, in addition, of course, to Mr C.  One can only hope that the mother realises that she has good people in her corner who desire the best for her personally and in relation to her ability to care for the child.

8. At this stage, one could only say that the changes in her life are of recent origin and her ability to maintain her positive attitude to her parental responsibilities to the child is relatively fragile.  But it is a different Ms Theiss who appeared before me today than the young woman who appeared when this case commenced.  She appreciates very clearly that if I make these orders, the outcome is, in a sense, surprising and that earlier in these proceedings she held on to the child by a thread.

9. We see in these cases too often the release of reports the type which Ms S and Dr G provided and thereafter nothing positive from the parents.  This may well be one of those cases where court intervention has worked to great advantage for the child and the family.  There is reason to believe that the mother has carefully considered the reports and the Court's response to them. She has realised that she was not meeting her daughter's needs appropriately and that unless she made the changes recommended in the reports, she could not expect the child to continue living with her.  It is a good outcome for the child if her mother truly takes to heart what is in the reports and the information that she has received from these proceedings.

10. It would be wrong to suggest that all of the child’s presenting problems reported upon by Ms S are attributable solely to her mother.  The father also failed to adequately regard his obligations for the child’s wellbeing.  His alcohol abuse has been severely debilitating for him and has compromised his ability as a partner and as a parent.  Earlier in the proceedings, had the choice for the child’s future care been solely between her parent’s I anticipate I would have been invited by the Independent Children's Lawyer to request the intervention of the Department of Community Services with the option being pursued that the child was placed in long‑term foster care.  This did not happen because of the paternal grandmother’s commitment to the child.  She is the father's mother, and, as was commented on during the proceedings, is a most impressive and capable person.  She is fundamentally committed to the child’s wellbeing and provides a very good backstop for her son and the mother.  The paternal grandmother has been actively involved in the child’s life and sees her when the child is spending time with the father.  I place great weight on the paternal grandmother’s evidence concerning the improvements she has observed in the child, and both parent’s parenting capacity. 

11. The paternal grandmother also supports the proposed orders.  In doing so, she does not relinquish her interests in the child’s future.  I am satisfied that if she observes signs in her son or the mother that the types of antisocial behaviour and substance abuse issues identified in Ms S’s report recurs, then she will intervene.  I would expect her to intervene immediately and directly for the child with the parents, and the probability is quite quickly there would be further parenting proceedings.

12. The net effect of my findings is that I am satisfied that, that just as the mother has made significant improvements in her circumstances and parental capacity, so has the father.  His improvements are of relatively recent origin as well.  It must be said that his ability to meet the child’s needs, even during the shorter periods of time she is with him, is fragile.  It is adequate provided the paternal grandmother is guiding his care.

13. Of the options available to the Court, I am satisfied that the terms presented are in the child’s best interests.  In making this finding I take into account the prospect of further proceedings.  The orders suggest, against the background of Ms S’s report, that there is a real likelihood of further proceedings, and I take that into account.  However, on balance, the totality of the evidence supports that the orders presented are made.  I order accordingly.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: …

Date:  19 August 2008