Browney & Pitcher and Anor
[2008] FamCA 569
•25 July 2008
FAMILY COURT OF AUSTRALIA
| BROWNEY & PITCHER AND ANOR | [2008] FamCA 569 |
| FAMILY LAW – CHILDREN – With whom a child lives – when the proceedings started the central issue was whether the children should remain living with the paternal grandmother or live with the mother – subsequently all the parties agreed that the children should remain living with the paternal grandmother and the focus shifted to the amount of time and conditions under which the mother spends time with the children FAMILY LAW – CHILDREN – With whom a child spends time with – none of the parties suggest an equal time arrangement – mother proposes that she spends substantial and significant time with the children – mother suffers from bipolar disorder and is also an alcoholic – mother contends that she has made significant gains in terms of managing her mental health and limiting her consumption of alcohol and is well placed to play a larger role in the children’s lives than the father and paternal grandmother suggest FAMILY LAW – CHILDREN – Family violence – risk – risks arising from the mother’s alcohol abuse, domestic violence and mental health difficulties – mother contends that she has made significant gains in terms of managing her mental health and limiting her consumption of alcohol – there is domestic violence in the relationship between the mother and her current partner – mother is restrained from bringing the children into contact with her partner because the risks of family violence when those adults are together is unacceptably high FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility is rebutted FAMILY LAW – CHILDREN – With whom a child spends time with – children’s views – both children would like to spend more time with their half sister who lives with the mother but neither child expressed a strong wish to the Family Consultant to spend more time with the mother |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| A v A (1998) FLC 92-800 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 H v W (1995) FLC 92-598 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 R v R (Children’s wishes) (2000) FLC 93-000 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Browney |
| FIRST RESPONDENT: | Mr Pitcher |
| SECOND RESPONDENT: | Ms Edwin |
| FILE NUMBER: | (P)NCF | 332 | of | 2006 |
| DATE DELIVERED: | 25 July 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATES: | 30 & 31 October 2007, 19 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Robyn Sexton & Associates |
| FIRST RESPONDENT: | In person |
| SECOND RESPONDENT: | In person |
Orders
That in addition to the Orders made 19 February 2008:
The children spend time with the mother:
(a)Each alternate weekend from the time school concludes on Friday until 5.00 pm on Sunday.
(b)Each Monday in the “off week” from the time school concludes, or would otherwise conclude, until 7.30 pm.
(c)From 2.00 pm Christmas Eve until 2.00 pm Christmas Day in 2008 and each alternate year thereafter and 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2009 and each alternate year thereafter.
(d)On each of the children’s birthdays from the time school concludes, or would otherwise conclude, until 7.30 pm.
(e)On Mother’s Day from 9.00 am until 5.00 pm.
(f)During school holidays the time the mother spends with the children is extended to 5.30 pm on Monday.
That the time the mother spends with the children during school holidays is suspended if the paternal grandmother and/or the father gives the mother three weeks notice in writing of their intention to holiday with the children outside of the Newcastle area for one week in one of either of terms one, two or three school holiday periods for each year and/or for up to two weeks in the Christmas school holiday period each year but only to the extent that those times clash with order 1 above.
In the event by virtue of order 2 above, the mother and the children miss out on spending a time together, the mother and children are to have make up time at a time the mother nominates but not added to any other periods which she is entitled to spend with the children.
The mother continue to regularly attend upon a drug and alcohol counsellor for a periods of 12 months from the making of these orders or for such period as recommended by her counsellor.
That the mother continue to regularly attend upon Dr S as he recommends, or other psychiatrist to whom she is referred by him, for a period of twelve months from the making of these orders or until such time as her treating psychiatrist recommends the cessation of such consultations, and notifies the Independent Children’s Lawyer if there is a change of psychiatrist.
That the mother is restrained from consuming any alcohol during or 24 hours prior to spending time with the children.
That the mother is restrained from consuming any alcohol during or 12 hours prior to communicating with the children.
That the mother is restrained from bringing the children into contact with Mr D.
Until both children are attending high school the mother is restrained from taking them away from the Newcastle region, being the area bounded by Lake Macquarie and 50 kilometres north and west of the Newcastle GPO.
That the order appointing the Independent Children’s Lawyer is discharged 12 months from the date of these orders.
Pursuant to s 65DA(2) and s 62B 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 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.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Browney & Pitcher and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCF 332 of 2006
| MS BROWNEY |
Applicant
And
| MR PITCHER |
First Respondent
And
| MS EDWIN |
Second Respondent
REASONS FOR JUDGMENT
These are parenting proceedings concerning two sisters, L and H Pitcher. When the proceedings started the central issue was whether they should remain living with their paternal grandmother, Ms Edwin, or live with their mother, Ms Browney. Subsequently, the children’s parents and the paternal grandmother agreed that the children will live with the grandmother. The focus then shifted to the amount of time and conditions under which the mother sees the children.
The children’s father, Mr Pitcher, lives with them and his mother. To a considerable extent, the father and paternal grandmother have a common approach to the mother’s desire to extend the amount of time she spends with the children. All parties agree the mother suffers a serious mental illness and is an alcoholic. The father and paternal grandmother acknowledge the mother’s contentions that she has made significant gains in terms of managing her mental health and limiting her consumption of alcohol. Because of these improvements in the mother’s situation, during these proceedings the father and paternal grandmother shifted from pursuing orders limiting the mother’s time with the children from brief supervised periods to regular alternate weekend and other periods, unsupervised. The father and paternal grandmother believe the existing arrangements strike an appropriate balance between promoting the children’s relationship with their mother and the risks which arise from her alcohol abuse, domestic violence and mental health difficulties.
On the other hand, the mother is confident her mental health is now stable and says she is well placed to play a larger role in the children’s lives than the father and paternal grandmother suggest. She highlights that the children’s elder half sister, M, now lives with her and points to her care of M as proof of her improved parenting capacity. The mother says her relationship with her partner, Mr D, is more settled and the risk the children will be exposed to domestic violence while with her has dissipated.
Because of the complex issues raised an Independent Children’s Lawyer was appointed. At the end of the hearing, the Independent Children’s Lawyer supported the mother’s approach for a gradual increase in the time the children spend with her. Such an outcome, it was submitted, is consistent with the children’s views and the overall improvement in the mother’s parenting capacity.
Background facts
The paternal grandmother was born in October 1940.
The father was born in July 1964.
The mother was born in April 1967.
The mother divorced her first husband in 1994.
In November 1994 the mother married Mr R.
M, the mother’s daughter with Mr R, was born in June 1995.
In December 1996 the mother was admitted to Northside Psychiatric Hospital under the care of Professor T. The mother remained in hospital for ten weeks during which she was diagnosed with major depression and alcohol abuse disorder. While in hospital the mother was stabilised on medication and following her release she completed a thirty day stop drinking program. The mother ceased drinking alcohol for six months.
On 21 June 1997 the mother was readmitted to Northside Psychiatric Hospital for two weeks. This was about the time she separated from Mr R.
In February 1998 the mother was admitted to the psychiatric unit at North Shore Hospital. She had recommenced alcohol consumption and was suicidal. It is unclear how long the mother remained in Royal North Shore, but in any case, she was again admitted to Northside Clinic on 30 July 1998. On this occasion the mother overdosed on a friend’s anti-depressant medication. The mother had been drinking, and had been in the habit of drinking three to four glasses of wine daily and more if she was away from home.
The father and mother commenced cohabitation at N in Sydney in November 1998. By this time the child M was living with her father.
In December 1998, because she was pregnant and without medical advice, the mother stopped taking her anti-depressant medication.
By February 1999 the father was supervising the mother’s contact with M.
In October 1999 the older child later to be known as L was born.
On 10 December 1999 the mother was admitted to Hornsby Hospital with suicidal ideation. The mother had continued regularly consuming alcohol.
On 17 January 2000 the mother and Mr R entered into final parenting orders[1] whereby M lives with her father and spend time with her mother. By these orders Mr Pitcher was required to supervise the mother’s visits with M, the mother was restrained from driving a motor vehicle with M as a passenger and to continue regular attendances upon Professor T, her then treating psychiatrist. Within one year the mother stopped attending Professor T. This is the longest period during which the mother has regularly consulted a psychiatrist.
[1] Exhibit “I”
In September 2000 the mother stopped paid employment.
In early 2001 M and her father moved to north-west New South Wales.
H was born in February 2001.
The mother and father separated in June 2001. At separation L and H remained with their mother.
In August 2001 the father assumed L’s fulltime care. Upon doing so, he returned to Newcastle and his mother became actively involved in the child’s care.
On 15 October 2001 the parties entered into consent orders which essentially provide that L lives with her father and has liberal and flexible contact with her mother. The mother claims she was unaware of the gravamen of these orders. As the orders gave effect to the parties informal agreement, the language used is clear and the mother knew how the family law system worked, at least by virtue of her involvement in prolonged litigation with Mr R, before signing I am satisfied she understood the nature and effect of the orders.
The mother returned to paid employment in December 2001.
On 12 February 2002 the father assumed H’s fulltime care. The previous day the mother left her with a babysitter and when the mother failed to return, the babysitter contacted the father. When the father arrived to collect H, the mother had arrived home and was inebriated. As the mother was obviously incapable of caring for the baby and notwithstanding the mother’s opposition, the father removed her. The same day police took the mother to Manly Hospital where she was admitted. The mother was suicidal and had a well formulated plan to hang herself. The mother had been binge drinking, and on admission, the hospital noted she was bruised and drunk. The bruising arose from a physical altercation between the father and the mother. This is the last time the mother has been admitted into a psychiatric hospital. She has maintained psychiatric treatment through Professor T, then after a gap of at least 12-24 months from late 2003 her general practitioner Doctor E and since August 2007, Dr S.
From March 2002 for the next 18 months the mother had contact with the children on average five days per month.
In July 2002 the father commenced part-time work in Newcastle. Upon his doing so, the children’s paternal grandmother started caring for both children overnight.
During May 2002 the mother commenced a relationship with her current partner, Mr D.
During 2002 the father changed the older child’s name to L.
In February 2003, L began living fulltime with the paternal grandmother. Although living with her grandmother, L regularly spent time with her father.
On 9 December 2003 the mother was charged with high range PCA. The mother erroneously says this is the last time she drank alcohol to excess.
In March 2004 the mother moved to Newcastle. By agreement her time with the children increased. The parties do not agree about precisely how much time the children spent with the mother, with the father and his mother disputing her evidence that she assumed the children’s primary care. Notwithstanding the dispute clearly both children were spending significant time with their mother and L significant time with the paternal grandmother. By August 2004 the children were back in their father and paternal grandmother’s care.
In October 2004, the father resumed fulltime employment. Upon his doing so, the amount of time H spent at her paternal grandmother’s home significantly increased.
By January 2005, both children were living with the paternal grandmother. A pattern developed whereby the children spent alternate weekends with either their mother or father. Additionally the children spent about half of the school holidays with their mother.
In August 2005, the father and mother signed documents required to formally change L’s name to L.
In October 2005, the mother commenced cohabitation with Mr D in Brisbane. Although the mother was living in Brisbane, the arrangement whereby the children saw her each alternate weekend continued, with the mother flying from Brisbane to see them in Newcastle.
During the Christmas 2005/2006 school holidays the children spent two weeks with their mother in Brisbane and on the Gold Coast. Shortly before the children arrived, to be precise on Christmas Day, Mr D assaulted the mother.
In February 2006 the mother and Mr D moved to Sydney. Alternate weekend visits continued with the children travelling between Newcastle and Sydney in order to spend time with their mother.
Between 22 April 2006 and 7 May 2006, the children spent time with their mother during the school holidays in Newcastle. The father and paternal grandmother opposed the mother taking the children to Sydney and at their insistence for a period weekend visits also took place in Newcastle. On occasions the visits did not occur.
On 15 May 2006 the mother commenced fulltime employment as a collections officer.
On 23 May 2006 the mother started these proceedings.
On 17 July 2006 the parties, including the paternal grandmother entered into interim consent orders. Essentially, these orders provide that the children live with the paternal grandmother and spend each alternate weekend and half school holidays with the mother. The father is to spend time with the children by arrangement with the paternal grandmother.
On 5 August 2006 the father moved in with the paternal grandmother and the children.
In August 2006 the father purchased a home at W in Newcastle. This property is tenanted.
During August 2006 the mother and Mr D moved to Sydney.
In October 2006 the mother and Mr D separated. In simple terms when the mother arrived home inebriated Mr D refused to let her into the house. A similar incident occurred on 11 November 2006. Although separated the mother and Mr D continued a sexual relationship.
In January 2007 the mother moved to Y in Newcastle.
On 3 March 2007 Mr D was charged with assaulting the mother. In this incident he twice head butted her.
In late March 2007 the mother moved into shared accommodation at E.
On 9 May 2007 and pursuant to interim parenting orders M commenced residing with the mother. The catalyst for this change was Mr R’s conviction for sexual assault on one of M’s school friends.
On 20 July 2007, an order for the appointment of an Independent Children’s Lawyer was made and the paternal grandmother was given leave to again intervene in the proceedings.
On 16 August 2007 the mother attended her first appointment with her psychiatrist, Dr S. That is, about nine weeks prior to the final stage of this hearing.
On 3 October 2007 Mr D appeared in court on the 3 March 2007 charge of assaulting the mother. He admitted the offence with no conviction recorded upon his entering a Good Behaviour Bond. The mother gave evidence on his behalf to the effect that they have resumed their relationship and as a consequence of his improved behaviour she no longer fears him.
On 18 October 2007, interim orders were made in proceedings between the mother and Mr R providing that M lives with her mother.
On 30 October 2007 the final stage of this hearing commenced. That day and by consent interim orders were made which provided for the children to spend time with the mother on Christmas Day[2]. The orders include a restraint upon the mother bringing the children into contact with Mr D. The parties interpret the restraint differently with the mother contending that it was limited to Christmas Day and the father and his mother saying it has broader application. Irrespective, the children have not had contact with Mr D.
[2] Exhibit “F”
On 6 February 2008 the mother and M move into a three bedroom home the mother leases at A, south of Newcastle.
On 19 February 2008 this hearing concluded.
Agreed orders
The parties agree upon the following orders[3]:
[3] Exhibit “R”
1.That all orders previously made are discharged.
2.That the children [L] born on […] October 1999 and [H] born on […] February 2001 live with the paternal grandmother, [Ms Edwin].
3.That the paternal grandmother has sole responsibility for the children except that the parties have equal shared parental responsibility for the children’s medical care.
4.That the children spend time with the father at such times as agreed between the paternal grandmother and the father.
5.That for a period of six months the children spend time with the mother as follows:
(a)Each alternate weekend from the time school concludes on Friday until 5 pm on Sunday, commencing 22 February 2008.
(b)Each Monday in the “off week” from the time school concludes, or would otherwise conclude, until 7.30 pm commencing on 3 March 2008.
(c)From 2.00 pm Christmas Eve until 2.00 pm Christmas Day in 2008 and each alternate year thereafter and 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2009 and each alternate year thereafter.
(d)On each of the children’s birthdays from the time school concludes, or would otherwise conclude, until 7.30 pm.
(e)On Mother’s Day from 9.00 am until 5.00 pm.
6.That during school holidays and on the children’s birthdays that fall on a non-school day, or when the children otherwise are not spending time with the mother, changeover is to be effected by the mother collecting the children from either the paternal grandmother or the father at the residence of the paternal grandmother and delivering the children to either of them at the conclusion thereof, otherwise the mother is to collect the children from school at the commencement of the time she spends with the children and to return them to school at the conclusion thereof.
7.That on the weekend Father’s Day falls the mother’s time with the children is suspended from 9.00 am, with the father to collect the children from the mother’s home.
8.At the extension of the mother’s time with the children is conditional upon her remaining compliant with the following:
(a)the medication prescribed by her psychiatrist or medical practitioner for the treatment of her mental illness;
(b)any treatment either prescribed by her psychiatrist, medical practitioner and/or her drug and alcohol counsellor for abusing alcohol.
9.That the mother continue to regularly attend upon a drug and alcohol counsellor for a period of 12 months from the making of these orders or for such period as recommenced by such counsellor.
10.That within 7 days the mother is to authorise in writing the drug and alcohol counsellor on whom she is attending to inform the Independent Children’s Lawyer for a period of 12 months from the making of these orders as to the following:
(a)his/her concerns if any, as to the mother’s failure to attend appointments;
(b)the mother’s problematic use of alcohol, if any; and
(c)his/her concerns if any, of the mother’s failure to accept treatment for the problematic use of alcohol.
11.That the parties are not to leave the children in the sole care of any person under the age of 16 years.
12.That the paternal grandmother is to authorise the Principal of any school the children attend to provide the mother with any oral or written information she may request from time to time, including copies of school reports, school photos, standardised testing results, school notices, school events and any other information relating to the children.
13.That the paternal grandmother is to do the following:
(a)provide in a timely manner, information to the mother as to parent and teacher interviews, school carnivals and other school events involving the children;
(b)give the mother eight weeks notice of any intended change in the school either child is to attend.
14.That the parties are to keep each other informed of the following:
(a)any serious medical condition effecting the either child and treatment required;
(b)any medical emergency involving either child.
15.That the paternal grandmother and father facilitate liberal and regular telephone communication between the children and the mother.
16.That the paternal grandmother is to enrol, undertake and complete a “Building Connections” course within six months of the making of these orders, and provide confirmation to the Independent Children’s Lawyer.
17.That all parties are restrained from denigrating the other in the presence of the children and from actively eliciting information about the other party to use in potential future litigation.
Remaining issues
The Independent Children’s Lawyer helpfully prepared a list of issues[4] which, following the agreements described above, remain outstanding. The outstanding issues are set out below:
[4] Exhibit “Q”
·Should the mother have to remain in Newcastle on weekends with the children?
·Should the mother’s weekends extend to Monday morning from July 2008?
·Should the children spend school holiday time with the mother?
(a)If so, when?
(b)If so, outside New South Wales/Newcastle?
(c)If so, in the United States of America?
·Should the mother be restrained from drinking alcohol for 24 hours prior to spending time with the children?
·Should the mother be restrained from drinking alcohol for 12 hours prior to communicating with the children?
·Should the mother be restrained from bringing the children into contact with Mr D?
·The period of time the mother should be required to see Dr S.
·The length of time the mother should be required to provide serum level analysis to the Independent Children’s Lawyer and/or authorise her medical practitioner to speak with the Independent Children’s Lawyer.
·The length of time the Independent Children’s Lawyer remains involved.
·Should there be restrictions upon the mother transporting the children?
Each of the above issues is supported by orders proposed by the Independent Children’s Lawyer.[5] The mother agrees with the Independent Children’s Lawyer’s orders 6 and 7. These provide for her weekends with the children to extend to include public holidays and commencing from 25 July 2008 until Monday mornings. Additionally, order 6 provides for an extended weekend period during school holidays.
[5] Exhibit “R”
The father and paternal grandmother support the Independent Children’s Lawyer’s proposed orders 11, 12, 14 and 16. These variously concern injunctions against the mother’s alcohol consumption, her bringing the children into contact with Mr D and in relation to drug and alcohol treatment and attendance upon a psychiatrist. Concerning the continuation of the appointment of the Independent Children’s Lawyer, the father and paternal grandmother suggest a longer period than the suggested 12 months.
The Family Reports
By agreement, these proceedings have been conducted in accordance with Div 12A of the Family Law Act 1975. The Family Consultant allocated to the case is Ms TR, who on 4 May 2007 I ordered to prepare a Family Report. Ms TR interviewed the children, their parents, the paternal grandmother and M on 6 June 2007. At that stage, L was seven years and nine months old and H six years and five months. The paternal grandmother had withdrawn from the proceedings and it appeared that either the father or mother would need to take on the children’s care. Ms TR identified the children’s attachment to their paternal grandmother as so strong that they view her as “the parent”. Ms TR opined that changing the children’s care arrangements in a manner which involved a reduction in their paternal grandmother’s role could have very detrimental effects upon the children. This is because she has been the only stable person in their lives.
Ms TR identified serious concerns arising from violence in the mother’s relationship with Mr D, as well as issues concerning the mother’s parenting capacity relating to her alcohol consumption, mental health and the extent to which she “may prioritise her own emotional needs over those of the children”.
Ms TR views the father as failing to accept appropriate parental responsibility for the children and comments that he appears to have “made use, financially and otherwise, of the grandmother’s love and concern for the children”. Notwithstanding the apparent agreement that the children would live with their father, Ms TR recommended that they live with their paternal grandmother.
Concerning the disposition of the matter, Ms TR recommended:
1. It is recommended that the paternal grandmother be rejoined as a party to these proceedings.
2. If the grandmother once again becomes a party, then it is strongly recommended that the children continue to live with her and she and the father have equal responsibility for decisions concerning the children. The mother should have an equal responsibility in regard to medical decisions only.
3. It is recommended that the order that the father live in the paternal grandmother’s home be discharged.
4. It is recommended that if the children live with the grandmother, that they spend time with the father on a liberal and flexible basis as agreed between the father and the grandmother.
5. It is recommended that the children spend time as per the interim orders with the mother, dependent upon the mother providing evidence to the Court that her mental health status is stable, that she does not use alcohol problematically and that in future the children will not be exposed to domestic violence. The time with the mother should occur only if the mother continues to reside in the Newcastle area.
6. If the Court finds that the mother’s mental health status is unstable or that she is not compliant with treatment for her bipolar illness or if alcohol and violence continues to affect the mother’s life, it is recommended that the children spend time with her once each fortnight supervised by Rainbows Contact Centre, Broadmeadow.
7. If the paternal grandmother is not joined as a party, then the order that the father live at the grandmother’s home should be discharged and the children should live with the father and the father should be encouraged to allow the children to spend liberal and flexible time with the grandmother, at least weekly. The mother should spend time with the children in the Newcastle area as outlined above.
When the hearing did not finish on 30 October 2007 and the proceedings were adjourned, the mother and Independent Children’s Lawyer applied for an updated family report. Orders were made accordingly and on 6 February 2008 Ms TR interviewed the parties, children and M. In her second report, Ms TR comments that the children continue to be well cared for by their paternal grandmother and: “They are fortunate to have her as their primary carer”. It was apparent to Ms TR that the adult’s relationships had improved somewhat, an outcome plainly beneficial to the children. Whilst remaining concerned about the mother’s insight into the impact of her alcohol addiction she comments that the mother appears to have progressed to a contemplative phase in relation to it. Ms TR is particularly concerned about the nature of the mother’s relationship with Mr D and describes it as “imperative that [L] and [H] not be placed in a similar position” that is, exposed to violence between Mr D and the mother.
Because of the paternal grandmother’s advancing years, Ms TR expresses concern she may have difficulty continuing her primary parenting role for as long as the children require it, that is, into her seventies. Consequently, over the following few years, she opines it is important the parents moderate the paternal grandmother’s everyday parenting burden.
Concerning the ultimate issues Ms TR provides a suite of recommendations, which are set out below:
63.All parties agree the children should remain living with the paternal grandmother. I support this agreement wholeheartedly.
64.It is recommended that the paternal grandmother, whilst ever the children remain in her primary care, has sole decision-making responsibilities for the children apart from medical decisions, which should be shared equally between all three parties.
65.It is recommended that the children spend time with the father as agreed between the father and the paternal grandmother.
66.It is recommended that an order be made that the mother does not consume any alcohol twelve hours prior or during any time spent with the children.
67.It is recommended that an order be made that the Independent Children’s Lawyer remains appointed for a twelve month period following the making of final orders.
68.It is recommended that an order be made that the mother gives her permission for her regular and ongoing blood results for Lithium levels to be forwarded to the Independent Children’s Lawyer in order to monitor the mother’s compliance.
69.It is recommended that an order be made that the mother continue to attend upon Dr [S], psychiatrist, or any other psychiatrist nominated by Dr [S] for a twelve month period or until discharged from therapy by the treating psychiatrist. It is further recommended that an order be made for the mother’s to give her permission for the psychiatrist to inform the Independent Children’s Lawyer if the mother becomes non-compliant with attending therapy.
70.It is recommended that an order be made that the mother continues to attend upon her current Drug and Alcohol Counsellor/Service as directed by that counsellor or service until discharged from that service. It is further recommended that an order be made for the mother to give her permission to the counsellor or service to inform the Independent Children’s Lawyer if the mother becomes non-compliant with attending therapy or it is believed the mother is using alcohol problematically.
71.If these above recommendations are ordered as safeguards for the children, it is recommended that for six months the children spend each alternate Friday from school to Sunday 5.00 pm (or Monday if a public holiday), three consecutive nights in each of Terms 1, 2 and 3 holidays and three separate periods of three consecutive nights across the Term 4 holidays with the mother and [M].
72.It is recommended that the existing mid-week visits are altered in their content as the travel time from the children’s school to the mother’s home is sufficient to limit the amount of quality time the children can spend with the mother and [M]. It is recommended that the mother collect the children from school each alternate Monday and spend until 6.30 pm in the grandmother’s local area and take the children with [M] to a local food outlet or enjoy a picnic dinner near to the grandmother’s home. The children would then be returned home in time to complete any homework, bathe and be in bed by the required 8.00 pm.
73.It is recommended that the children, [M] and the mother have free and flexible telephone time but the mother must not drink alcohol prior to or during these telephone calls.
74.It is recommended that the children are not physically exposed to the mother and Mr [D] together.
75.After the initial six month period, if the mother has remained compliant with her prescribed medication, her psychiatric care and her drug and alcohol treatment, then it is recommended that the children’s time with the mother be extended to include each alternate Sunday night with the mother returning them to school on Monday morning (or Tuesday if a long weekend) and the holiday periods increase from three nights to five night periods.
76.It is recommended that the children spend each alternate Christmas Eve to Christmas afternoon (beginning Christmas 2008) with the mother and [M]. It is further recommended that the children spend time similar to that outlined in paragraph 72 above, with the mother and [M] on each of their birthdays. It is recommended the children spend Mother’s Day with the mother and Father’s Day with the father.
77.It is recommended that the children not be left in the sole care of any person under the age of 16 years until they commence high school.
78.It is recommended that the children not travel interstate or overseas with the mother for the 12 month period and only after that if upon the end of the 12 month period both the mother’s treating psychiatrist and Drug and Alcohol counsellor are of the view that the mother no longer uses alcohol problematically and her mental health status is stable.
79.If the recommendations made in paragraphs 67 to 70 inclusive are not translated into orders then it is respectfully recommended that the current interim orders be made final.
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
General principles to be applied in determining risk allegations
The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The Briginshaw test is now enshrined in s140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.
Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 of the Evidence Act, in all the circumstances there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page (supra).
These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.
The mother’s circumstances
The mother lives with M in a home she rents at A, south of Newcastle. In early February 2008 the mother was required to move out of her rented E home, because her flatmate, Mr WN, moved his girlfriend and her son in. The period between May 2007 and February 2008 is the longest period the mother has lived in one place since separation. In the short time M has lived with the mother she has lived in two homes. The A property comprises three bedrooms and provides adequate accommodation for the children, including for the longer periods the mother proposes.
The mother works Tuesdays, Wednesdays and Thursdays. On those days M catches the school bus to and from school. On Mondays and Fridays M catches the school bus in the mornings and the mother collects her in the afternoons. M started high school this year and attends H High School. This is approximately three to four kilometres from the mother’s home.
The mother’s partner, Mr D plans to sell his rural holdings in Queensland and purchase a property in the Hunter Valley. Presently, Mr D and the mother do not plan living together within the foreseeable future. Although not living together upon Mr D’s moving to the Hunter Valley they will be able to spend considerable time together. On 12 February 2008 the mother and Mr D commenced counselling with Relationships Australia. In part, this counselling will address relationship issues including domestic violence.
The mother and Mr D are shareholders and directors of D Pty Ltd, which is the corporate vehicle for Mr D’s business interests. Via her loan account, D Pty Ltd has advanced the mother $63,459.33[6] which Mr D says she must repay. Other than her interest in D P/L the mother has no assets and the probability is that notwithstanding his demands for repayment, Mr D will allow the mother’s liability to continue. Of the monies the mother has drawn from the company none has been contributed to the expenses the paternal grandmother incurs supporting the children.
[6] Exhibit “J”
In December 2007 the mother commenced drug and alcohol counselling with Ms G at the area health service. The mother plans to continue attending for so long as Ms G recommends.
On 11 February 2008 the mother commenced a Relationships Australia Parenting after Separation program, that is, approximately 18 months after being ordered to. The mother explains her late start as relating to the Sydney waiting list and her subsequent move to Newcastle. At the same time I ordered the mother to attend a Parenting after Separation program, the father was also ordered to attend. Within six weeks of the order the father commenced the relevant program. Although it may have been inconvenient to her to attend the program other than that nearest to her home, if the mother fully appreciated the importance to the children of the parties improving their communication skills and ability to cooperate with each other, she would have ensured compliance with my order far sooner.
Since March 2007 the mother has participated in Centrelink’s Personal Support Program. The program takes clients referred through Centrelink and aims to help people with “more severe personal barriers” to employment. Through this program, the mother attends Ms K. Together they have worked to ensure the mother receives counselling and support concerning her alcohol dependency, support in relation to anxiety disorder, assistance with accommodation issues and support and counselling with interpersonal skills and job searching. Ms K says the mother attends regularly and presents well. She appears calm and is accessing services that target her issues. In Ms K’s opinion the mother appears to be coping well and understands from the mother that she has not abused alcohol for approximately four years.
The mother’s family reside in the United States of America. The mother does not have any family members in Australia. The mother plans to remain in Australia, however, because of her parents advancing years, is keen that the children are able to see them. The mother says her parents are unable to travel to Australia and for the children to see them the children must travel to the United States. While I accept the mother’s parents are unable to travel, the issue concerning permission for the mother to remove the children from Australia is not as straight forward as the mother suggests.
The mother attends a psychiatrist, Dr S monthly. In accordance with Dr S’s advice, the mother takes Lithium daily and says she is working with him towards her goal of becoming completely alcohol free. The mother’s blood test results demonstrate that she has been compliant with taking the recommended lithium dose since late 2003[7]. Dr S diagnoses the mother as having a bipolar affective disorder, currently in remission and secondary alcohol dependence, also in remission. Concerning her history, Dr S says:
[The mother] reveals a history of bipolar disorder characterised by periods of hypermanic or manic episodes alternating with the depressive episodes. Bipolar disorder – hypermanic phase is characterised by elevation of mood with increased energy and activity and usually marked by feelings of wellbeing and both physical and mental efficiency. Individuals who experience a hypermanic swing may expect increased sociability, talkativeness, over familiarity, and a decreased need for sleep. Irritability may also occur. The differentiation of hypermania and mania is essentially one of degree. [The mother] has also experienced depressive episodes characterised by depressed mood with loss of interest and pleasure in her activities and decreased energy and increased fatigability. During her depressed phases [the mother] has experienced a loss of self-confidence and self-esteem with excessive and inappropriate guilt. There has also been suicidal ideation. Attempts at self-harm have occurred. They have been associated with impairments in concentration and sleep.
[7] Exhibit “M”
Concerning her alcohol use, Dr S says:
The history at hand is consistent with [the mother] resorting to alcohol against a background of relapsing in regard to her bipolar affective disorder. When [the mother] is stable in regard to her bipolar affective disorder she does not resort to alcohol utilisation nor does she display problems connected with gambling.
At her initial interview, Dr S took a detailed history from the mother. He observed, and says his observations hold true throughout their subsequent monthly meetings, that the mother was alert and oriented. Her concentration and memory are good. Concerning her prognosis, Dr S says her prognosis is good “provided she remains under psychiatric care and continues with her lithium or alternative medication as maybe required from time to time. It is also essential that she refrain from alcohol. [The mother] is most motivated to maintain her mental stability and provide responsible care for her daughters. Taking into account her family situation and responsibilities it is my opinion that [the mother] does have the ability to achieve her objectives in that regard.”
Concerning the mother’s ability to care for the children, Dr S says provided the mother remains under psychiatric care the children will not be at substantial risk of harm if they live with or spend significant time with her. In his oral testimony, Dr S said alcohol is a wild card in managing the mother’s mental health. With her history complete abstinence is critical. In effect, the mother’s ability to manage her mental health is closely linked with compliance with medication and complete alcohol abstinence.
In his report, Dr S erroneously asserted the mother’s “utilisation of alcohol has ceased.” This is what the mother told him. In her oral testimony, the mother said she has two or three glasses of wine a couple of times a week and Saturday or Sunday if the children were not with her. As the issue was explored the mother said she only occasionally had a glass of wine on the weekend. Mr WN corroborated the mother’s evidence. Upon learning the mother was still using alcohol, Dr S said provided the mother remains free of alcohol, takes medication and her mental health in monitored, it is more likely than not she will be ok, that is reasonably stable.
Another piece of misinformation the mother gave her psychiatrist concerns her relationship with Mr D. The mother told him that her relationship with Mr D was harmonious. Dr S reports:
[The mother] stated that Mr [D] recently, following an inadvertent combination of Stillnox and alcohol, assaulted her. She reported that this was a one off event and did involve intervention with the police who had been contacted by her girlfriend. She stated that Mr [D] was not aware of the potential hazards of utilising Stillnox with alcohol.
The mother failed to disclose that Mr D has been using Stillnox for five years and consumes alcohol daily. She failed to disclose an incident of Christmas Day 2005 which occurred after both parties had been drinking. In this incident, Mr D threw the mother down the stairs. The parties scuffled and because of her injuries, the mother was taken to hospital. Nor did she mention an incident on 30 September 2006 (when both children were with her) in which, following the consumption of alcohol, the mother abused Mr D and he called the police. When the police arrived the mother went berserk and was charged with intimidation. Police forcibly removed the mother from Mr D home. This followed an incident two days earlier during which the mother threw a beer bottle at Mr D following which police attended and took out an apprehended violence order for his protection. Similarly, no mention was made of the mother arriving at Mr D’s home late at night on 11 November 2006, inebriated and demanding to be let in. This brief summary highlights that the mother’s claims her relationship with Mr D is harmonious and Mr D assaulted her on the one occasion are wrong.
Unfortunately, the mother has yet to reveal to Dr S the extent to which alcohol has featured in her relationship with Mr D, or the extent of physical violence between them. These are core, not peripheral, matters and persuade me to take a cautious approach to Dr S’s optimism vis-à-vis the mother’s mental health. By this I mean, whilst I accept his evidence regarding the conditions which provide the best environment for the mother to manage the mental health, I am not satisfied she has reached the stage where I can be confident these will be routinely met.
I am strongly persuaded that the mother’s relationship with Mr D is volatile and toxic. In the years they have been together, the mother and Mr D have each displayed a cavalier approach to the known risks associated with alcohol consumption and mood stabilising drugs. Although alcohol has featured in all of their violent exchanges, I am not satisfied that alcohol or drugs or a combination of both is causative. From both participants perspective this is a stressful relationship and it would take a much longer period of obvious personal stability for each of them before I could be satisfied that, from the mother’s perspective, her relationship with Mr D is beneficial rather than a stressor. Nor am I satisfied, that by merely ceasing Stillnox, the risk Mr D maybe violent with the mother has abated. The totality of the circumstances of the mother’s relationship with Mr D satisfies me that if they are together, there is an unacceptable risk to the children of exposure to family violence. Because the mother has not been fully frank about these issues with Dr S he does not yet have a true picture of the mother’s circumstances.
Of the various witnesses to give evidence in the mother’s case, Mr D has known her longest. They have known one another approximately twenty years. Other than Mr D, the longest period any of the mother’s witnesses have known her is Ms EL who has known her since 2005. With apparently few close friends and family living so far away, the mother is significantly reliant upon Mr D.
It is appropriate to observe here that all of the services the mother is presently engaged with commenced after these proceedings started. One sees a similar pattern in the sense that she consulted Professor T whilst involved in litigation concerning M, only to disengage after the proceedings were finished. I have some moderate concerns that once these proceedings are finalised and the motivational benefits of the potential strengthening to her case that attending doctors, counsellors and the like disappear that the mother’s resolve may weaken.
The father’s circumstances
The father resides with his mother and the children in the paternal grandmother’s home. The father is the second of four children. He and his siblings are close and enjoy good relationships with their mother. Between them, there are ten grandchildren, with L and H seventh and eight in age order.
The father is employed in financial services. Before meeting the mother, he left Newcastle and moved to Sydney. When the parties met he was working full time with a large company. Following the parties separation in August 2001, the father resigned his employment and taking L with him, returned to Newcastle. The father has lived in Newcastle ever since. Initially the father rented a unit which was close to his mother and sister’s homes. The father supported himself and L from Centrelink benefits. As I have earlier found, the father assumed H’s full time care in February 2002. Thereafter he cared for both children, with his mother’s and sister’s assistance, until July 2002. In July 2002 the father resumed part-time employment as a consequence of which the paternal grandmother’s role in the children’s care dramatically increased. When the father increased his hours in October 2004 so that he was working full time, both girls lived with his mother during the week and with him each alternate weekend. As best he could, the father saw both of the girls at his mother’s home after work. His presence in the children’s lives increased when he returned to live with his mother and the children.
At some stage, the father left his part time work in Newcastle and since then he has had a number of full time positions in Sydney and Newcastle. Presently, he is hopeful of returning to full time work in the Newcastle area working standard office hours. The father is usually successful in obtaining appropriate employment, and I have no reason to doubt he will shortly do so.
The father has a relationship with Ms BU. Ms BU is divorced and has two children, age about nine and five. The father and Ms BU have no plans to live together.
The father pays the paternal grandmother approximately $1,300 per month towards his and the children’s costs for living expenses.
The Paternal Grandmother’s circumstances
The paternal grandmother lives in a home she owns. This is a large home in which the children each have their own bedroom. The home provides the children with a comfortable standard of living.
The paternal grandmother has been married twice. She has four children by her first husband and none to her second. The father’s father lives in Sydney and the grandmother’s second husband resides in Newcastle. Although they have lived separately for many years they remain close and Mr Edwin maintains her grounds, cleans her pool and occasionally has dinner at her home. The children enjoy a close relationship with Mr Edwin and are very fond of him.
Mrs Edwin has regular contact with her children and all of her grandchildren. Through their combined efforts, the father and the paternal grandmother ensure that the children have close relationships with their extended paternal family.
The paternal grandmother is a self-funded retiree. She receives an allocated pension of approximately $2,000 per month, Centrelink payments of approximately $174 per week and approximately $1,300 per month from the father. In total, the paternal grandmother has received approximately $250 child support from the mother.
In the grandmother’s care, the children have a rich, happy and well ordered existence. With the parties agreement, the paternal grandmother enrolled both children at F Catholic School. L is in third class and H in second class. The children catch a bus to school with three cousins. The paternal grandmother does voluntary work at the school on Thursdays and maintains contact with the school concerning the children’s progress.
L has weekly piano classes and practices piano before leaving for school. L attended ballet for two years and H for one. These classes stopped because the paternal grandmother was unable to afford the fees. The children have attended art classes and swimming lessons. The children swim well and participate in Little Nippers during the summer. The Nippers season commences in September and activities occur at the local beach on Sunday mornings. Most weeks the paternal grandmother takes the girls to Newcastle library and both are active readers.
The paternal grandmother is committed to the children’s long-term care.
Applying the law to the facts
By section 60CC(3)(a) where a child expresses views about his or her welfare, the child’s views must be considered together with any factors the Court feels are relevant to the weight given to the child’s views. Previously the Family Law Act referred to a child’s wishes. The new terminology appears to be a response to concerns expressed by academics and others that the word “wishes” trivialised the child’s opinion on matters concerning his or her welfare. It does not appear that the new terminology changes the substantive law concerning the manner in which the Court should receive a child’s views. In R v R(Children’s wishes) (2000) FLC 93-000, the Full Court cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
Once a child’s views are established the next part of the exercise requires analysis of the views, including any factors such as the child’s maturity or level of understanding.
The Family Consultant explored the children’s views with them on two occasions. The Family Consultant first interviewed the children on 6 June 2007. L was then seven years and nine months and H was six years and five months. Concerning the children’s views the Family Consultant reports:
The children identified that they lived with Ma (the paternal grandmother) and dad and […] (a cousin who has been staying with the paternal grandmother). The children reported having a close and comfortable relationship with the members of the paternal grandmother’s household.
The children report they spend time with the Mother and since May 2007, their half sister [M] each alternate weekend from Saturday until Sunday and for dinner every other night. The children report, [Mr WN], the man who shares the house with the Mother, ‘has a beard’ and is ‘a nice man’.
The children do not report missing the Mother but report they enjoy the regular time they now spend with the Mother and their half-sister, [M]. They report they play with the children who live next door, go ice skating, go shopping and go on picnics. The children report that they share a mattress in the second bedroom with [M] who sleeps on the only bed in the room.
[L] reports to understand that she and [H] do not live with the mother as the mother is ‘manic depressive, its called bipolar.’ When asked her understanding of this, [L] said ‘she’s got this sickness, sometimes she gets drunk, I’ve heard her on dad’s phone, she sounds kind of mean.’ When asked how she came to hear the mother on the phone, [L] said ‘dad let us listen so I could see if she was drunk or not.’ [L] and [H] identified the mother’s last partner [Mr D] as ‘a nice man but the mother and he fought at times.’ Both children stated they would like to stay living with the paternal grandmother but spend some more nights with the mother. When asked if they would still like this if their half-sister [M] returned to boarding school in Sydney, [L] said ‘I don’t know, just the normal time then’.
From the discussions with the children, the Family Consultant concluded:
It would appear the children enjoy spending time with the mother but most recently have enjoyed reconnecting with their half-sibling, [M]. It would appear that the children requested extra time with the mother purely on the basis of seeing more of [M].
I have no difficulty accepting the Family Consultant’s opinion on this point.
The Family Consultant saw the children again on 6 February 2008. L was then eight years and five months and H six years and eleven months. As well as interviewing the parties, on this occasion, the Family Consultant interviewed M. Procedurally, the Family Consultant interviewed the children separately from each other and the adults. From her discussions with the children and observing them with their mother and half-sister, the Family Consultant reports:
[L] and [H] were observed to be pleased and excited when told [M] was coming to the Court that day. They were observed to run to her and hug her when she arrived in the child-care room. They objected mildly when it was time for [M] to go home.
In observation [L] and [H] appeared not to have a strong attachment with the mother. They were not fearful or anxious but did not approach her for affection when she first joined them. The mother did not initiate any affection either. The children just continued to play and spoke comfortably with the mother, asked her questions and answered her questions. The mother spoke to them in a very matter of fact quite adult way. The atmosphere was not cold but it seemed quite formal and not spontaneous. It is quite probable that due to the separations from the mother for both children when they were infants and toddlers, that both children have a disrupted attachment to the mother. It is positive that both children seem to have formed their primary attachment, albeit later in their lives, to the paternal grandmother.
The children were observed to be slightly more spontaneous in their relationship with their father but neither made complaint that he had been away in Sydney working. Neither child could report many activities the father did with them. They both reported he took them to the beach on occasion but reported all other activities were carried out by the paternal grandmother when in her care or the mother when in her care.
Neither child reported a strong wish to spend time with the mother. Both children reported it would feel “about the same” if they had one more overnight each weekend. One child said that the good thing would be seeing more of [M] and her friends. When asked if it would still be good is [M] returns to live in Sydney, the child said “oh no, I wouldn’t want another night if [M] isn’t there”. Both [L] and [H] confirmed they have not had contact with Mr [D] for some time. Both stated he was “not a very nice man”. One child could not give further details while the other reported “he encourages mum to drink alcohol”. Neither child seems aware that [Mr D] and the mother have hurt each other physically in the past which would suggest that they have not witnessed any of the violent episodes or if they did then the memories were not developed enough to have language recall of the event.
It would appear that at times the grandmother might have given the children negative information in regard to the mother. [H] reported she had something wrong with one of her eyes ‘because mummy drank alcohol when I was in her tummy.’ When asked who told her this she said, ‘Ma.’ One of the children said she was a bit worried sometimes in the mother’s care because if she drank alcohol or became ill she would be ‘dangerous.’ When asked who told her that her mother might be dangerous, she said ‘ma told me.’ This is a very difficult situation for non-parents to find themselves in when trying to answer children’s questions as to why they do not live with the parent. Some explanation needed to be given by the grandmother but it is unfortunate that the word ‘dangerous’ was used, as this will cause the children some level of anxiety in the mother’s care.
From her discussion with the children and the observation sessions, the Family Consultant concluded that the children enjoy spending time with their mother, but in particular, with M. For her part, M would welcome additional time with her half-sisters.
Following the first reports release the paternal grandmother and father suggested that because M was in her mother’s care pursuant to interim orders, little weight could be attached to the children’s desire to spend more time with her. Basically, because it was then far from certain that M would continue living with the mother, increasing the children’s time with the mother so as to increase their time with their half-sister, was premature until the mother secured final orders. Mr R remains in jail and is apparently appealing his conviction. In these proceedings it is not possible to anticipate his prospects of early release. The totality of the evidence indicates that even absent final orders, M is likely to remain in the mother’s care indefinitely. Hence increasing the children’s time with the mother for the foreseeable future has the effect of increasing the children’s time with their half-sister. As M spends time with her paternal relatives during school holidays, the only qualification to the above finding is that the times would need to coincide so as to ensure all children were simultaneously in the mother’s care. Achieving this is not difficult.
It is revealing that absent M neither child seeks an increase in the time spent with the mother. Each child is obviously settled and happy with their paternal grandmother and appears content that the amount of time they spend with their mother is sufficient. The children’s views concerning increasing time with their mother are influenced by her prior care of them and to a lesser extent information provided by the father and paternal grandmother. Although neither child spoke about it, there is no doubt that both have been in the mother’s care when she has been psychiatrically unwell, drunk and verbally aggressive with Mr D. As the children spend unsupervised time with the mother, and she has been less than frank with the father and paternal grandmother, it was necessary for the children to have information concerning the mother’s situation so that the children could protect themselves if she was drunk, mentally unwell or violence erupts. Although the paternal grandmother denies using language such as “dangerous” the children have interpreted the information provided in this manner. Nonetheless, the paternal grandmother also encourages the children’s relationship with their mother and reports that both girls look forward to seeing her. Having regard to the children’s maturity, their own experiences in the mother’s care and the information received from the paternal grandmother and father, the children’s views reflect a logical and age appropriate balance. By this I mean the desire to maintain the existing arrangements vis-à-vis their relationship with their mother, but increase time if this enables them to develop their relationships with M. Although the children are relatively young, their views warrant reasonable weight.
By section 60C(3)(b) I am required to consider the nature of the children’s relationship with each of their parents, grandparents and other significant people. The findings made pursuant to this subsection are intrinsically linked to section 60CC(2)(a) and provide the factual substratum for its application.
Both girls’ closest relationships are with their paternal grandmother and each other. In circumstances where neither parent has been a stable and continually reliable presence in the children’s lives, their grandmother’s love and stable commitment to their care has resulted in both girls strongly attaching to her and seeing her in every respect as their primary carer. The Family Consultant’s strong support for the children’s continued care by their paternal grandmother is consistent with the primacy of the children’s relationship with her. Unless it was clearly advantageous to the children to do so steps which potentially destabilise the children’s relationship with their paternal grandmother are contra indicated.
The children do not have a strong relationship with their father. Perhaps as the consequence of his work and relationship commitments, he has failed to find an appropriate balance between these and actively parenting the children. From the children’s and paternal grandmother’s perspective, since the children came into the paternal grandmother’s care, the father has delegated much of his parental responsibilities to his mother. Although the children undoubtedly love him and enjoy his company, his frequent and occasionally reasonably prolonged absence from their lives, has taken its toll upon the children’s relationship with him. Whilst the children have an adequate relationship with their father, they do not miss him when he is away for work. The father says he takes heed of the Family Consultant’s evidence and the importance that as his mother ages he is in a position to shoulder more responsibility for the children. Essentially, if for age related reasons, the paternal grandmother is unable to continue with the children’s care, his relationship with the children needs to be sufficiently strong that he can in effect take over in a fairly seamless way or compliment the grandmother’s care to the extent required.
Although the paternal grandmother, for years, has been the primary female carer and role model in the children’s lives, she has been scrupulous to ensure that the children know her as their grandmother and are clear concerning their mother’s separate identity. The children are very clear about their mother’s identity and there is no ambiguity between these two women concerning their roles vis-à-vis the children. Clearly the children know the mother as their mother and relate to her accordingly. As I have earlier found they enjoy spending time with her and are content in their relationship with her. Mr WN, who impressed me as a balanced and reliable witness, observed happy interaction between the children and the mother. Ms EL gives evidence to a similar effect. In essence, she says the mother and children relate in an appropriate and openly affectionate manner. Where necessary the mother applies appropriate discipline and the general tenor of her evidence is that these two well mannered girls interact easily with their mother.
These observations differ somewhat, particularly in relation to the quality of the children’s interaction with their mother, to those made by the Family Consultant. The Family Consultant explained that she is a trained observer who brings a skill set and critical analysis to her observations. The point the Family Consultant makes is that to an untrained eye human interaction may suggest a particular quality, whereas the trained eye discerns something different. I accept the Family Consultant’s evidence and, notwithstanding the other witnesses have observed the mother and children over longer periods and in a natural setting, the Family Consultant’s opinions drawn from her observations of the mother and children warrant considerable weight. If the conclusions which the mother’s witnesses draw from their observations of the children with her were apt, I would have expected the children to speak in favour of increasing their time with their mother because of their desire to be with her. The children’s stance against an increase for reasons solely associated with the mother illustrates the higher probability that the Family Consultant’s assessment of the children’s relationship with their mother is correct. This is a finding to which I attach considerable weight.
The Family Consultant says that increasing the children’s time with their mother along the lines the mother, Independent Children’s Lawyer and Family Consultant suggest is unlikely to affect the children’s relationship with the mother. This evidence contrasts with the mother’s stance that she and the children will achieve more meaningful relationships if afforded a greater opportunity to spend time together. The Family Consultant’s evidence reveals that in this case focussing on the amount of time rather than the nature and quality of relationships is erroneous.
Since M came into her mother’s care, the children’s relationship with her has blossomed. The three girls enjoy each other’s company and there is no doubt that they enjoy M’s presence in their lives. There is a paucity of evidence, however, which suggest the additional time the mother desires to have with L and H may influence the quality of the three children’s relationships. Irrespective of which parties proposals are ordered, for so long as the children have at least the amount of time with M which they have enjoyed since May 2007, the children will continue to enjoy happy and healthy sibling relationships with her.
By Section 60CC(3)(c) I am required to consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother submits the Court should be concerned about the father and paternal grandmother’s willingness to facilitate the children’s relationship with her. As a general approach, the mother submits the father and his mother have imposed unreasonable restrictions on the circumstances and time for her to see the children. Indeed the mother contends that virtually all of the restrictions the father and his mother have imposed are unreasonable and indicative of their unwillingness to promote her relationship with the children. In making this submission, the mother misses the obvious point that the father and his mother’s restrictions are responsive to her and/or Mr D’s behaviour and information they received concerning the children’s welfare when with her. Although the mother acknowledges she is an alcoholic and describes herself to medical practitioners as a binge drinker, she fails to appreciate that her binge drinking placed the children at risk.
The mother rejects as unreasonable the father’s concerns about her leaving H with a baby sitter on 12 February 2002 but failing to return and collect her then twelve months old baby. She similarly complains about the father being concerned when she left the children with a neighbour they did not know, or that Mr D did the same. Without notice to the father the mother took the children to Brisbane at a time when she was supposed to return them to him. On another occasion, on 30 September 2006, only months after the mother secured an interim order that she have the children for half of the school holidays, Mr D contacted the father and told him to collect the children. The mother was intoxicated and had been arrested and bail refused. The father was away from Sydney and unable to retrieve the children. Arrangements were made with his father to retrieve them the following morning.
In 2005, 2006 and as recently as 3 March 2007, there have been serious domestic violence incidents between the mother and Mr D. All of these involve alcohol, one of the participants being arrested and, whether considered individually or collectively, provide the father and his mother with good reason to place limits upon the amount of time and circumstances under which the children spend time with her.
In 2001, the mother attended a clinical psychologist in relation to a Victims Compensation claim she made following being raped by a taxi-driver in 1997. The father and his mother had this report and from it the psychologist’s opinion that the mother presents with a pattern of chronic psychological maladjustment that involves extreme anxiety and depression, relationship difficulties and the potential for further alcohol abuse. Both were aware of her numerous suicide attempts and relative social isolation. It is difficult to see how, armed with this information the father and his mother could have facilitated more frequent and liberal contact between the children and their mother of the type she proposed, without being very concerned that agreeing to her proposals involved grave risks to the children.
In any event, having accepted the mother’s protestations that her relationship with Mr D had settled down, her alcohol use was no longer problematic and her mental health stable, the father and his mother from mid-2006 facilitated half school holidays and alternate weekends between the children and the mother. Even putting the incidents described above to one side, whatever trust they had in the mother’s assertions was seriously undermined by information Mr D emailed the father on 21 December 2006. Mr D, sent the father two emails that day. The first email was sent at 5.58 pm and is a copy of one sent to the mother’s solicitor. It is set out below.
Hello […], these premises have been leased by [D] Pty Ltd since August 2006 where it maintains an office. It is also my residence and has been occupied by your client on a casual basis since August 2006. She has moved out three occasions and is now an itinerant resident coming and going when she pleases. She left a 6 pm on Monday of this week in an intoxicated state and returned at 3 pm on Wednesday. She has left again this afternoon on your advice.
I am advising you of your concern for the safety of equipment and confidential business information contained in the office whilst I am in Brisbane between 22 December and 31 December. Previously your client has removed a laptop computer which she took to a pawn shop and most recently a cheque book has gone missing. She has also threatened to sell my artwork. I intend placing a lock on the office door when I leave tomorrow and seek assurance that it will not be removed. Your client has no need whatsoever to access the office as there is another refrigerator in the kitchen.
At 11.55 pm the same evening, Mr D sent the father the following email;
Hello […], Help me. How do I get rid of her? She won’t move out and says I have to relocate her and pay all relocation expenses. She keeps disappearing for three days at a time when she is drinking and then comes home and tells me it is my fault because I wasn’t nice to her and she had to leave and spend time with her “friends”.
Attached are the details of what she owes to [D] Pty Ltd.
You will obviously note the $18,000 that has been spent on legal fees. I will wear this expense as I was supporting [the mother] at time.
The cheque for $5,000 on 14 July 2006 went through the [M] RSL pokies the next day.
I have probably contributed about $50,000 from my personal funds along the way that is not included.
This, however, is my financial problem and I will sort it out and not the purpose of contacting you.
If you can countenance the situation where [the mother] will be living in Newcastle and seeing the girls, I would be prepared to move all her possessions up there into storage and she can arrange accommodation. However, she has worked a total of three days in the past five months and is currently on the dole. So, I don’t know how it will all work out. Help me, regards [Mr D].
On 3 March 2007 the father received an sms text message from Mr D which read: “I had to throw [the mother] out last night for the usual reasons. She called the police and lied about what happened. I have been arrested for assault and my bail conditions contain a clause that I can’t enter my own house before the court case next Wednesday. She said she lived there permanently. Looks like she’s got even for what happened last October.”
Four days later the mother sent the father a photograph showing her distressing injuries received in the 3 March 2007 incident. The photograph[8] shows the mother with a blackened left eye and bandaged broken finger on her right hand.
[8] Annexure H father’s affidavit filed 3 October 2007
The father and his mother were enormously concerned by this information, as any responsible parent would be. On balance I am not persuaded that their restrictions on the children’s time with the mother and limiting contact to Newcastle and the like have been unreasonable nor are they suggestive of an unwillingness to promote the children’s relationship with her.
In making the above findings, I have not lost sight of a number of instances where the father or his mother had the opportunity to take appropriately positive steps in favour of the children’s relationship with their mother but failed to do so. For example, the father and paternal grandmother have made it nigh on impossible for the mother to be involved with the children’s schooling. When the paternal grandmother enrolled H at F School she failed to provide the mother’s details and made no arrangements for the school to be able to contact the mother or vice versa[9]. The father specifically refused the mother’s request to be present on H’s first day at school. When the mother sought his agreement that she spends a few hours during the middle of mother’s day 2007 with the children, the father delayed his response and only at the last moment said she could have a maximum of four hours early in the morning or late afternoon. On a couple of occasions, the father abused the mother in the children’s presence at changeover and in spite of his denials, I am satisfied that he has allowed the children to listen in to his telephone conversations with the mother on occasions where he believed and informed the children, that she was drunk.
[9] Exhibit “O”
If any good ever comes from proceedings such as these, it is that the parties have an opportunity to listen to experts such as the Family Consultant and reframe their approach. When the father gave evidence, I discerned in him an appreciation that his abusive voicemail and sms messages are manifestly inappropriate and if communicated to the children would be extremely distressing to them. His changed approached from seeking supervised to regular unsupervised time between the children and their mother reinforces my view that overall, the father and his mother recognise the importance of facilitating and encouraging the children’s relationship with their mother.
The mother’s concession the children reside with the paternal grandmother and inferentially the father, indicates her willingness to encourage the children’s relationship with them. This is not an issue about which I have concerns about the mother.
Section 60CC(3)(d) is one of the pivotal issues in the proceedings. There is a strong connection between this and my risk findings. The subsection concerns the likely effect of any changes in the children’s circumstances, including separation from parents, a child or other person with whom the child has been living.
The paternal grandmother and the father’s proposals involve few changes to the children’s circumstances. From the children’s perspective, by and large life continues in a manner where their routine is maintained, family and peer relationships preserved and their educational and extra-curricular activities promoted. There are no separation issues which might trouble them or the Court.
Concerning the mother’s mental health, substance abuse and issues concerning family violence it is sufficient to observe that it has taken the mother many years of professional assistance to reach a point where her mental health is reasonably stable and she has vestiges of insight into the effect of alcohol abuse upon her mental health. I agree with the Family Consultant that the mother lacks insight into the toxic nature of her relationship with Mr D. In my view the mother has little insight into the harmful effects upon the children if they are exposed to family violence directly, or its aftermath.
When one stands back and examines the mother’s circumstances, since 1997 her life has been chaotic. She has had three significant but difficult relationships in each of which there has been domestic violence. In the earlier period, the mother was frequently admitted to psychiatric hospitals with suicidal ideation and until 2003, she took a cavalier approach to managing her mental health. The mother frequently changed residence and it is far from certain that she will provide a reasonably stable home for the children. It is far from certain that the claims the mother has made concerning alcohol abuse, managing her mental health and personal stability will be maintained. As my earlier summary indicates, if the mother relapses in relation to alcohol abuse or vigilant attention to her mental health, the effects on her and thus the children are potentially catastrophic. Far more time needs to pass during which the mother demonstrates her gains are in effect indicative of the future before the Court could reasonably risk exposing the children to the consequence of her relapse. Apart from the potential harm to the children, if the mother relapses or is unable to adequately care for herself and the children while they are with her, she puts her and the children’s relationship at jeopardy. When all of the evidence is taken into account, I consider a cautious approach to changing the children’s arrangements for spending time and communicating with the mother provides the appropriate balance between the identified risks and promoting the children’s relationship with the mother and M.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with his or her parents. Presently, the parties live sufficiently close to each other that logistical difficulties do not arise. The mother is able to transport the children between her home and the maternal grandmother’s home within half and hour and irrespective of whichever parties proposals are ordered, they can be easily implemented. If the mother moves from her current location it is possible that logistical issues may arise. Although the mother says she plans to stay in the one place, history demonstrates that she rarely stays in the one place for long.
A corollary to this is the father and paternal grandmother’s application for an order restraining the mother from driving with the children as a passenger. The genesis for this order arises from the consent orders the mother reached with Mr R in 2001. The father points out that on 6 August 2001 the mother drove to Dee Why police station where she was charged and subsequently convicted of failing to undergo a breath analysis. The mother was obviously inebriated on that occasion. He alleges, and it appears to be the case, the mother drove whilst intoxicated in October 2006.
An embargo on the mother driving with the children will impede her ability to take the children on outings and makes the effort of giving effect to these orders more difficult. The overall effect of the evidence is that with Dr S’s support, the mother’s drinking has dramatically reduced. The risk the mother will drive whilst over the prescribed limit for alcohol is not so high that the injunction is warranted. For abundant caution, however, it is appropriate that the paternal grandmother obtains information about how she can educate the children so that they know they should not get into a car in which they suspect that the driver has been drinking.
Section 60 CC(3)(f) focuses on the parents parenting capacity. The father has abrogated to a very considerable extent his parental responsibility for the children to his mother. In 2001 the father sought assistance from the Department of Community Services with the children. The attending officers report the father as regarding childrearing being a mother’s responsibility. Perhaps he did not ever contemplate a situation where he would be required to care for the children full-time. Whatever his reasons, the father chooses to use his physical, intellectual and emotional ability to care for the children in a supporting, not primary role. Given his mother’s age, the father will gradually need to recalibrate his commitments so that he provides her with more practical assistance in the children’s day to day care than he presently does.
The paternal grandmother is demonstrably able to provide the children with high level personal, educational and emotional support. In her care the children’s needs are lovingly and capably met. The only caveat arises when in their latter childhood years, the paternal grandmother’s age may limit her ability to continue to care for the children at the level currently provided. The paternal grandmother is in good health and believes she is able to care for the children until they reach their majority. As the years pass, the children will become increasingly independent and themselves, under their grandmother’s supervision, take on a greater role in managing their own lives. Both children can be expected to take on greater roles in the home, taking themselves to and from social and extracurricular activities and the like. With the father’s support, even if only in a supplementary role, he and the children will be able to fill any void which develops by virtue of the paternal grandmother’s advancing years. This is a finding to which I attach reasonable weight.
The mother’s parenting capacity is compromised by her mental illness and when the mother is mentally ill or inebriated, she is unable to care for herself, let alone the children. Unmedicated the mother becomes agitated and suicidal. When abusing alcohol, her mental health is severely compromised and she lacks judgment and can be physically and verbally abusive. These findings weigh heavily in favour of the injunctions against the mother’s alcohol consumption and in favour of not extending too far the amount of time the children spend with her.
There are no section 60CC(3)(g) factors which require elaboration.
Aboriginal or Torres Strait Islander issues do not arise.
I have already made findings concerning the parent’s attitudes to the children and the responsibilities of parenthood. Both parents love the children and want to be as good parents as they can be. For reasons already discussed the paternal grandmother has filled a necessary void and she carries the main role in the children’s lives.
There are no family violence orders.
I have already made findings concerning family violence in the mother and Mr D’s relationship. These do not require restating.
The last, and possibly only, incident of physical violence between the mother and father occurred on 12 February 2002. The mother had been drinking for 12 hours and was heavily inebriated. She had formulated a detailed plan to hang herself. In the situation which developed, and it was never clear to me who initiated the violence, both parties hit and probably punched each other. Police observed bruising to both of them. Although the father denied hitting the mother, there is nothing else which explains the injuries police and Manly Hospital staff observed to her. Following this incident the mother applied for an interim apprehended violence order. The first the father knew of this was months later when he applied for employment. As part of its background checks his prospective employer discovered and told him about the AVO. At the father’s request the mother signed a statement agreeing to withdraw the AVO. She did not appear at the hearing and in May 2002 the AVO was dismissed.
Other than in his relationship with the mother, there is no evidence the father has been involved in other violent incidents. In the six years which have passed since then the father and mother have come into contact with each other on many occasions. There is no suggestion that on those occasions the parties have been physically violent to each other. The effect of this is that I am satisfied provided the father and mother do not cohabit there is virtually no risk that in the father’s company the children will be exposed to family or other violence. Nonetheless, it remains preferable that the children are not required to spend time with both parents present. Changeover arrangements are agreed and enable the children to move between the two homes without the adults needing to speak with one another in the children’s presence.
There are no family violence issues regarding the paternal grandmother.
All parties are weary of litigation and as far as possible want to avoid it in the future. Their poor communication skills and lack of trust makes it difficult for them to problem solve and compromise issues. The mother has had many years of litigation with M’s father and now also with these children’s father and carer. Although she asserts the father and his mother have prolonged this litigation in the sense they maintain unreasonable stances qua her proposals, she fails to appreciate her role in the difficulties which have arisen. The mother is obviously intelligent and presents as having a very forceful approach to this litigation. The same must be said of the father but not of the paternal grandmother. As best I can my orders will set the parameters for the children’s future and are designed to limit the prospects of future litigation. However the unfortunate reality is that if in the future these parties disagree on matters concerning the children litigation is a real possibility. The issue is particularly relevant in relation to the mother’s desire for orders permitting her to take the children to America. If her application fails, she submits it should be dismissed but the Court would not go so far as to make an injunction restraining her from removing the children from Australia. The later course, she says, guarantees further litigation. In the situation where the children do not have passports I agree that utilising the PACE alert system and statutory protections against removal is sufficient protection against wrongful removal.
There is considerable overlap between section 60CC(3), (4) and (4A). There are no further factors which on the facts of this case require further detailed consideration. To recap, the mother has not contributed appropriately to the children’s financial support. She is presently challenging the CSA’s claim she is about $5,000 in arrears. It is easy to understand the father and paternal grandmother’s irritation that the mother seeks orders enabling her to take the children to America but fails to appropriately contribute to their financial support. No similar criticisms of the father are appropriate.
The father and his mother have not involved the mother in parenting decisions to the extent the mother considers appropriate. In the circumstances where the parties have had tempestuous relationships and trust has largely broken down, it is difficult to see how involving the mother in necessary parenting decisions would have resulted in appropriate decisions being agreed in a timely way. The more likely scenario is that discussions would have broken down and decisions which the children required be made, would have been delayed to the children’s detriment. I can only repeat my frustration at the mother’s delay in completing the Parenting After Separation program and the paternal grandmother’s belated recognition that she should as well.
Conclusion
As a consequence of my findings concerning family violence, the presumption of equal shared parental responsibility is rebutted. None of the parties suggests an equal time living arrangement. It is the mother’s case that something consistent with substantial and significant time is appropriate.
The mother submits the importance to the children of meaningful relationships with her as promoted by the primary considerations, mandates orders in the form she suggests. It is important to recognise that the section promotes the benefits to children of a meaningful relationship with both parents, to the maximum extent consistent with the child’s best interest. The phrase is qualitative not quantitative. Increasing the children’s time with the mother in the manner she suggests will not change the nature of the children’s relationship with her. That is, the children’s relationship with their mother is made no more meaningful if her proposed changes are ordered. On the other hand, the mother’s suggested changes increase the risks the children may be exposed to if her mental health deteriorates. The children’s relationship with their mother is best promoted if it is managed within boundaries she can most likely cope with and avoid taking risks s 60CC(2)(b) says the children should be protected from.
The case in favour of the mother being restrained from consuming alcohol for 24 hours prior to and whilst the children are with her is very strong. It needs to be plain to the parties and a matter of record that the Court requires the mother to heed her psychiatrist’s advice by total abstinence and ensure that all people involved in the children’s care understand the importance for the children that they are not exposed to the risks arising from the mother’s alcohol addiction. Although the risks to the children are less immediate if they and the mother are speaking on the telephone, the mother’s prior history of binge drinking and according to the paternal grandmother’s evidence rambling and unpleasant telephone calls, indicates the 12 hours timeframe prior to speaking to the children is in the children’s best interests.
I strongly agree with the Family Consultant that the mother must be restrained from bringing the children into contact with Mr D. As I have already discussed the risks of family violence when those adults are together is unacceptably high.
Concerning the mother’s attendance upon a drug and alcohol counsellor, the suggested 12 months is appropriate having regards to the length of time during which the mother has had alcohol problems, the risks to her and the children if she uses any alcohol and her reluctance to accept Dr S’s advice she cannot consume alcohol without jeopardising her mental health. Because I am concerned that with the completion of these proceedings the mother’s resolve may falter, it is desirable from the children’s perspective, that her motivation is reinforced by virtue of complying with orders.
For similar reasons I agree with the Independent Children’s Lawyer’s approach to orders requiring the mother to attend Dr S’s or such other psychiatrist to whom she is referred, for 12 months or until her treating psychiatrist recommends the cessation of consultations.
The Independent Children’s Lawyer agrees to remain involved for twelve months. The father and paternal grandmother suggest five years is more appropriate. The longer period imposes a burden upon the Legal Aid Commission well beyond its area of responsibility.
I am not persuaded that it is appropriate to extend weekends to include public holidays or until school on Monday mornings. The father and paternal grandmother are keen the children are returned on Sunday evening so that homework is completed and the children fresh for school on Monday morning. While the mother is capable of helping the children with homework, the issue is more whether extending time to Monday morning is beneficial for the children. The mother has no doubt about her ability to have the children organised and at school on time from her home at A. Apart from my concerns regarding her overall coping, I am far from satisfied the mother will remain living there. I agree that from the children’s and the paternal grandmother’s perspective having the children home on Sunday nights during school term provides the children with an appropriately ordered existence and maximises their educational opportunities.
During school holidays the mother’s time with the children shall extend to 5.30 pm on the Monday of each weekend they spend with her. This maintains the rhythm of the children’s lives, gives them more time with M but without placing stressors upon the mother, the grandmother and the father. As the amount of time during school holidays will have with the children is short, her desire to take the children intrastate, interstate and overseas is largely thwarted. In any event, until both children are in high school and sufficiently familiar with public transport that they could, if necessary, take themselves say from Sydney to Newcastle or make arrangements themselves for their father or paternal grandmother to retrieve them, I do not consider it in the children’s best interests that the mother takes them away from their familiar environment. Quite simply, the father, paternal grandmother and children should not need to worry that the mother leaves the children with strangers or telephone calls are made requiring them to collect the children early. There is a vast array of activities in the children’s community which they and the mother can enjoy. Restricting the mother’s time to the children’s local community for the foreseeable future, does not interfere with her ability to take the children to visit family or close friends. There are no people within this category, other than Mr D, who the order restricts the mother from visiting in Australia. To avoid ambiguity, a concept with which these parties struggle, I have defined the local area as best I can, taking into account the where the parties live and surrounding areas.
Concerning the mother’s application to take the children to the United States of America, the difficulties for the children if their mother’s mental health deteriorates are self-evident. While I assess the risk the mother may fail to return the children to Australia is low, I am more concerned about the effect on the children trying to cope with the difficult situations which develop when their mother is unwell, in a strange country visiting people they do not know.
I am conscious the amount of time the children will spend with their mother and M is considerably less than the mother seeks. There will as a consequence be aspects of the children’s lives with which she has little involvement and the opportunity for longer holidays is denied them. The overall structure of the orders seeks to ensure the children spend time and communicate with their mother in circumstances which maximise the likelihood she will be well and hence provide an appropriate framework for the children to maintain the most meaningful relationship with her possible.
For these reasons I am satisfied that the orders identified at the beginning of this judgment are in the children’s best interests.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 25 July 2008
Key Legal Topics
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Family Law
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Remedies
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Procedural Fairness
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