Carlson v Bowden
[2008] FamCA 1064
•4 December 2008
FAMILY COURT OF AUSTRALIA
| CARLSON AND ORS & BOWDEN | [2008] FamCA 1064 |
| FAMILY LAW – CHILDREN – with whom the child lives – where each parent presents with vulnerabilities and reduced parental capacity – Paternal grandparents seek lives with orders – Entrenched mistrust and hostility between parents, between mother and grandparents and between mother’s new partner and paternal family –Parents have little capacity or willingness to promote a relationship with the other – Grandparents present a stable and responsible relationship for the child - Best interests of the child to live with and receive predominant care from the grandparents – Child to spend time with parents from this stable base FAMILY LAW – CHILDREN – Parental responsibility – Proposal that the parents and grandparents have equal shared parental responsibility – Discussion of framework of Act in relation to equal shared parental responsibility and non-parents – Parties unable to communicate and consult as required by Act – In child’s best interests that the grandmother have sole parental responsibility for ultimate decisions – Nature and structure of orders as orders require parties to attempt consultation and agreement |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA, 65C, 65D, 65DAA, 65DAC, 65DAE, 65L, 68F(2) |
| AIF v AMS (1999) 199 CLR 160 CDJ & VAJ (1998) 197 CLR 172 Neil v Nott ((1994) 68 ALJR 509 Runcorn & Raine [2008] FamCA 837 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
APPLICANT GRANDPARENTS: | Mr Carlson Ms Brack |
| APPLICANT FATHER: | Mr Grant |
| RESPONDENT MOTHER: | Ms Bowden |
| INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Lawyers |
| FILE NUMBER: | BRC | 9331 | of | 2007 |
| DATE DELIVERED: | 4 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 20-22 October 2008 |
REPRESENTATION
| FOR THE APPLICANTS: | The Applicants appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Pieterse |
| SOLICITOR FOR THE RESPONDENT: | Richard Gray & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Sayers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Lawyers |
Orders
That the child, L born on … October 2004 (“the child”) live with the paternal grandmother Ms Brack and her partner, Mr Carlson.
That the paternal grandmother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the child, save that the paternal grandmother shall, prior to making the sole ultimate decision about any such issue:
a) Use her best endeavours to advise the mother and father in writing of the decision intended to be made;
b) Seek the mother’s and father's written response in relation thereto;
c) Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d) Advise the mother and father in writing as soon as reasonably practicable of her ultimate decision.
That the child spend time with the parents as follows:-
A.The mother
a) Until the child commences school in 2010:
i)from 9:00am Wednesday until 5:00pm Thursday in the first week; and
ii)from 5:00pm Friday until 5:00pm Sunday in the second week.
b) When the child starts school, from after school Friday until the commencement of school on the following Monday or Tuesday, should there be no school on the Monday, on the first and third weekends of a 4 week cycle commencing on 1 February 2010;
c) On the child’s birthday as follows:
i)In odd numbered years from after school on the day before his birthday until commencement of school on his birthday;
ii)In even numbered years from after school on his birthday until the commencement of school on the day after his birthday;
iii)If it falls on a weekend from 12:00 noon until 6:00pm on the birthday.
d) On the mother’s and baby T’s birthday as follows:-
i) If they fall on weekday from 3:00pm until 6:00pm, and
ii) If they fall on a weekend from 12:00 noon until 6:00pm on the birthday.
e) On Mother’s Day from 9:00am until 5:00pm Sunday, provided that on Father’s Day the child shall spend time with the father from 9:00am until 5:00pm on that day.
f) From 2:00pm on Christmas Day until 2:00pm on Boxing Day in even numbered years and from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years.
g) For one week from 12:00 noon on the first day until 12:00 noon on the 7th day as follows:-
i) The first week of the June/July gazetted school holiday period;
ii)The first week of the September/October gazetted school holiday period;
iii)For one week from 12:00 noon on New Year’s Day;
iv) The last week commencing on a Saturday of the Christmas School Vacation period.
h) That the time the child is to spend with the mother pursuant to order 3A(a)(i) , 3A(a)(ii) and 3A(b) be suspended during gazetted school holiday periods and the cycle shall recommence on the first weekend after school resumes.
i) The mother communicate with the child by telephone once per week on a Tuesday, with the mother to initiate the telephone calls to the child’s residence between the hours of 6:00pm and 6:30pm and with the call to last no more than 15 minutes.
B.The Father
a)Until the child commences school and should the father not be working then:
i) From 9:00am until 12:00 noon each Friday, and
ii)Such other times as may be arranged with the paternal grandmother to take place at the paternal grandmother’s home.
b)That after the father provides to the paternal Grandmother written confirmation of having enrolled in a Triple P Group Program (4 x 2 hour group sessions held once per week, followed by 3 x 15 minutes to 30 minutes telephone calls once per week and a Post Separation Parenting Program) and until the child commences school, the father spend time with the child in addition to the Friday morning, from when the father finishes work on a Tuesday until the commencement of work the following morning in the second week of a 2 week cycle.
c)That when the child starts school, provided the father remains drug free and has attended the Triple P Group Program and the Post Separation Parenting Program, from 5:00pm Friday until the commencement of school on the following Monday or Tuesday, should there be no school on the Monday, on the second weekend of a 4 week cycle.
d)During school holiday periods on such occasions as may be arranged with the paternal grandmother.
e)From 9:00am until 5:00pm on Father’s Day.
f)On the child’s birthday at such times and such places as may be negotiated with the paternal grandmother to coincide with the time the child spends with the paternal grandmother on his birthday.
g)On the father’s birthday:-
i)From 3:00pm until 6:00pm if it is a weekday; or
ii)From 12:00 noon until 6:00pm if it is a weekend, regardless of whether the child is with the paternal grandmother or with the mother.
h)On Christmas Day at such times and such places as may be arranged and agreed with the paternal grandmother to coincide with times when the child is with the paternal grandmother on Christmas Day.
That subject to the Father having enrolled in the Triple P group programme and then the Post separation parenting programme and remaining drug free, the Applicant Grandmother and her partner shall allow the Father to have unsupervised time with the child as set out in these orders and at such further times as may be agreed provided that the time is not to reduce the Mother's time with the child.
That in relation to all changeovers between the Paternal Grandmother and the Mother or the Mother and the Father:
a)the Paternal Grandmother and/or her partner or the Mother and/or her Mother shall deliver the child to McDonalds, G and collect the child from McDonalds, G;
b)only the Paternal Grandmother, her partner, the Mother or the Maternal Grandmother shall be present at changeovers.
That as soon as possible the Mother enrol in a Triple P Group Program (4 x 2 hour group sessions held once per week, followed by 3 x 15 minutes to 30 minutes telephone calls once per week and a Post Separation Parenting Program.
That each party hereby authorises each other party, and shall do all such things to communicate this Order, to the Child’s Child Care Centre or schools :
a)to obtain copies of any reports, any newsletters or other Notices issued by the Child Care Centre from time to time;
b)to attend interviews, sporting activities, excursions or other activities where the Child Care Centre requests parent support or participation.
That within 7 days of the child being enrolled to participate in any sporting or other extra-curricular activity each party shall inform the other of the name of the organisation and all details of the activity including times, place/address, contact person, contact telephone number and the like such that the other party may attend such activity to watch the child participate.
That, at the earliest possible time or within 4 hours, each party shall inform the other party of:
a) Any serious accident or the diagnosis of any medical condition which would prevent the child from attending school or any sporting or other activity;
b) Surgery and hospitalisation and medical treatment for any serious injury, illness or disability.
That this order be authority for the child’s child care, school, doctors or other professionals involved in the child’s life, to provide to each of the parties to this Order, at their own cost, such reports or information as may be requested about the child, copies of the child’s school reports, any school newsletters and other notices issued from time to time.
The Independent Children's Lawyer shall not be discharged until 12 months from the date of these orders.
The Independent Children's Lawyer has liberty to relist on the giving of 2 days notice.
That pursuant to Sect 65L of the Family Law Act 1975:-
a.Compliance with these orders is to be supervised by a Family Consultant of the Family Court of Australia Brisbane Registry and to the extent possible it is requested that the Family Consultant be Mr F;
b.The supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
c.Each party shall do all things necessary to encourage their partners to co-operate with the Family Consultant and to attend any meetings at which the parties and their partners are requested to attend;
d.Observations made by the Family Consultant during the Sect 65L process shall be reportable and the Family Consultant shall conduct such interviews, observation and assessments as appropriate so as to prepare a Family Report to be made available to the parties not later than 22 October 2009;
e.Upon receipt of the Family Report all parties shall have liberty to apply to have the matter relisted before Justice Murphy on the giving of 14 days notice;
f.At the expiration of one month from the release date of the report, if the matter has not been relisted then the matter be finalised and removed from Justice Murphy’s docket.
That the Mother and Father undertake random urine or blood or other drug testing with QML in such manner and within 8 hours of a request being received from the Independent Children’s Lawyer.
That when requesting a referral for the drug test from their treating GP and when completing the request for QML to undertake the drug tests, the Mother, Father and Mr V must specify that:
a.The test is for a medico legal purpose;
b.Supply a copy of this order to their requesting GP and to QML; and
c.Advise their prescribing GP and QML that if the test results are positive for opiates or any other possible illicit drugs, then QML are authorized to undertake such further tests including a GCMS test to identify the drug and the quantity of drug identified in the drug test.
That the Mother take all steps and do everything in her power to persuade her partner, Mr V, to agree to and to undertake random urine or blood or other drug testing at the request of the Independent Children’s Lawyer and to do so within 8 hours of the receipt of a request from the Independent Children’s Lawyer.
That the Mother, Father and Mr V authorize, by this Order, QML to speak to and supply the Independent Children's Lawyer with all documents and information as may be requested in relation to their drug tests.
That the parties shall bear their own costs of any drug tests undertaken.
Pursuant to s.65DA(2) and s.62B, 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.
IT IS NOTED that publication of this judgment under the pseudonym Carlson and Ors & Bowden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9331 of 2007
| MR CARLSON AND MS BRACK |
Applicant Paternal Step-Grandfather and Grandmother
And
| MR GRANT |
Applicant Father
And
| MS BOWDEN |
Respondent Mother
REASONS FOR JUDGMENT
The parents of L, who was born in October 2004, bring to the current parenting dispute about him, tragic and significantly compromised pasts which, in each case, significantly impact on their capacity as parents.
The father was born to the applicant grandmother when she was 16. He has no contact with his biological father. A man he identifies as his stepfather was violent to him and “threw him out of the house” when he was 13. His schooling was significantly disrupted.
He has a lengthy history of anti-social behaviour; his criminal history extends over nine years and includes imprisonment. He has suffered from significant drug dependency and says that his criminal behaviour is connected with that dependency – a claim which seems to be borne out by his criminal history.
The mother’s parents separated when she was a baby. Her mother had a partner for about 8 years who was abusive to both her mother and her. She was raped by a boyfriend at 14. Another former boyfriend committed suicide. She talked to him by telephone immediately prior to him hanging himself and witnessed his hanging body. She herself attempted suicide many years ago.
Her schooling was curtailed; she left, effectively, after completing Grade 10. She met the father when she was 16 and he was 26. They used illegal drugs together, including injecting heroin. She has suffered from significant drug dependency and has a minor criminal history.
The mother’s partner, MR V, was released from jail in April 2007. It seems they commenced a relationship shortly after. Their child, T was born in May, 2008.
Mr V has a lengthy criminal history including convictions for “robbery with actual violence – armed with offensive weapon” and “threatening violence – discharge of firearm or other act”. His most recent period of imprisonment arose by reason of a breach of a suspended sentence. He, too, has a history of illicit drug dependence.
The father and mother were involved in a highly-charged relationship marked by conflict and their drug dependency. There continues to be significant animosity between the two.
There is a dispute about when they separated – the mother alleging January, 2006 and the father (and the applicants) alleging September, 2006. It seems that events in 2007, to which more detailed reference will be made, precipitated the current proceedings.
The applicants in the current proceedings are the maternal grandmother (who is aged 48) and her partner (aged 30). They commenced living together in 2005 and their relationship has subsisted since. They intend marrying later in the year. For ease of reference, I will refer to them collectively as “the grandparents”.
Each is in remunerative employment. There is no suggestion of any anti-social behaviour by either, nor is there any suggestion that either is, or has been, involved in the use of illegal substances.
Each of the mother, father and Mr V claim to be drug-free. Each has, since the commencement of these proceedings, undergone random drug screening. Each is taking “anti-withdrawal” medication as prescribed by their treating medical practitioners.
Each of the mother, father and Mr V assert that they are on a pathway, which they assert to be permanent, to a healthier, lawful and more constructive life.
But, as each effectively concedes, their respective pasts give light and shadow to the decision about what parenting orders ought be made as best meeting L’s best interests and, it might be said, the Act’s Objects, Principles and Considerations.
Independent psychiatric evidence before the court from Dr M, not challenged in this respect, suggests that the father suffered from “a significant conduct disorder” as a child and Dr M considered that a current “likely diagnosis was anti-social personality disorder”.
The mother is diagnosed by Dr M as having “post-traumatic stress disorder with borderline personality traits”. Mr V was noted to have had “a very dysfunctional childhood”, to have a “history of substance induced psychosis” (although not psychotic at the time of assessment) and that he currently “exhibits an anti-social personality disorder”.
What Are The Parties’ Proposals For L’s Care?
(a) The Father
The father did not file a formal Application or Response. The orders sought by him at the outset of the hearing are contained, he said, in paragraph 11 of an affidavit filed by him: “The ultimate outcome for me at the end of this trial, would be that I spend a significant amount more time with [L], unsupervised, slowly building to the stage that I have custody”.
That remained the father’s position, in essence, at the end of the hearing.
Although not expressed in these terms, the father’s proposal in fact contains a concession that, as at the date of trial, he is not in a position to be L’s predominant carer and a further concession that his mother and her partner should at present continue to have a very significant role in caring for L.
(b) The Grandparents
The applicants’ proposals changed twice, the second time less significantly than the first. Their initial application sought (in broad terms) equal time with the mother.
A document amending that position was relied on at the commencement of the hearing and became Exhibit GP1. Speaking broadly, it can be seen to seek orders more restrictive of time between the mother and L – essentially providing that he live with them and with the mother spending time with him one day each week and, additionally in each fortnight, for one night in one week and two nights in the other week until he commences school (in 2010). Thereafter, it was provided that the mother spend time with L on two out of three weekends. Other specific time, including holidays and the like, is also provided for.
It is not submitted against the applicants that their position changed through any capriciousness or that it was motivated by ill will. In submissions, the applicants contend that their proposals – at every stage – were an attempt to encapsulate what was best for L, having taken into account the events surrounding these proceedings and, in particular, the reports of Mr F and Dr M as to what is best for L. I accept that this is the motivation of the applicants.
At the conclusion of the hearing, the applicants adopted the Orders sought by the Independent Children’s Lawyer (ICL) (which had been outlined at the end of the second day of hearing and formalised in writing prior to submissions on Day 3). The differences between the orders sought by the applicants at the start of the hearing and their final position according with the ICL are not, in the scheme of things, significant.
(c) The Mother
The mother’s position also changed during the course of the hearing. What was initially expressed as an “alternative proposal” was subsequently adopted as the only proposal by the mother and her earlier proposal was abandoned. The new proposal was reduced to writing and was admitted as Exhibit M1.
That proposal, again speaking broadly, provides for equal time between the applicant grandparents and the mother – four days with the mother in week one and three days in week two and the balance in each week with the grandparents.
On the mother’s proposal, the father would spend time with L for three hours on each of Saturday and Sunday, then for six hours each Saturday and Sunday for two months and thereafter overnight each Saturday from 12 noon until 12 noon Sunday. Other time is provided for on “special days”. An order is sought for “each party [to have] equal shared parental responsibility for the child” – an order explained in address, as intending to apply to each of the parents and the paternal grandparents.
It is noteworthy that the mother’s proposals are expressed to be interim and contemplate an adjourned date of hearing no sooner than 12 months from the date of orders. Of significance in that respect is that L is due to start formal schooling (prep) in 2010.
(d) The Independent Children's Lawyer
The orders contended for by the ICL are contained in a document handed up during submissions. Those draft orders contend for an order for sole parental responsibility to the applicant grandmother in respect of long term issues with a specified, written process of consultation with each of the parents prior to an ultimate decision being made solely by her.
Otherwise the draft orders provide that L live with the grandparents and spend specified time with his parents. That specified time alters when L commences school in 2010.
Until 2010, it is contended that the mother should spend time with L from 9.00am Wednesday until 5.00pm Thursday in week one and each alternate week and from 5.00pm Friday until 5.00pm Sunday in week two and each alternate week thereafter. From 2010, it is proposed the mother spend two weekends in three with L. It is also proposed that the mother spend four separate periods of a week with L (whether now or when he starts school).
It is contended by the ICL that the father spend time with L for three hours each Friday and for such other times as agreed with his parents until he enrols in specified parenting programmes. Upon him doing so, it is proposed that time increases to incorporate an overnight on Tuesday each second week until L starts school. Thereafter, provided the father has attended the specified courses, and remains drug free, one weekend per month together with such school holiday time as agreed with the grandparents. Provision is made for any increased time to not diminish the mother’s time.
In addition, the mother is also required to attend specified parenting programmes. Each parent is required to provide random urine or blood samples for forensic testing for drugs with specific requirements in respect of that. Further, the draft orders contemplate an order being made pursuant to s 65L of the Act (a previous order to that effect having been made during the course of proceedings leading to the hearing).
Best Interests – What Are The Issues and “Considerations”?
The Act mandates the consideration of specified matters in ascertaining best interests, and, upon the application of the presumption of equal shared parental responsibility, mandates consideration of specified periods of time.
But, as the Act reminds the Court more than once, (eg s 60CA; s 65AA), findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of this particular child in his particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including masters that can be seen as central to Part VII.
Indeed, a central component of the Part - the statutory presumption of equal shared parental responsibility - is, ultimately, governed (in part) by an exception based on findings as to best interests. So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests. (See the coda to each of the sub-sections of s 65DAA.)
Ultimate findings about best interests specific to the case before the court rest on a fact-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests is to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.
Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it. It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts and that broad enquiry must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
In my view, then, it is necessary to commence the application of the statutory process by examining, and making findings about, the issues specific to the best interests of L arising from the proposals for his care put forward by the parties (or, subject to procedural fairness, any alternative proposal which the court considers better meets his best interests – see U v U (2002) 211 CLR 238). Those findings can then be used to inform the statutory requirements.
Here, the issues relevant to the parties’ contentions and proposals readily find clear reflection in the mandatory considerations – whether “Primary” or “Additional” - by which the court is to determine L’s best interests.
The orders sought by each of the parties (including the Independent Children’s Lawyer) in respect of parental responsibility contain, inherently, a contention that the statutory presumption of equal shared parental responsibility should be rebutted in L’s best interests.
On any view of the evidence, there is currently significant overt hostility between the parties. Put in s 60CC(2)(a) terms, there are real doubts about whether some of the parties can see the benefit of L having a meaningful relationship with both of his parents.
Significant concerns were expressed about the need to protect L from future physical or emotional harm (s 60CC(2)(b)). Specifically, concerns arise about risks posed to L by the former instability of the parents and the potential precariousness of recovery from significant drug addiction.
In addition, concerns arise from the attitudes and behaviours of Mr V. On the mother’s case, their relationship will provide co-nurturing for L for substantial, regular periods of time. An issue arises in that context as to whether the attitudes and behaviours of Mr V give rise to concerns about L’s potential exposure to psychological harm, in particular.
Whilst the father contends that, when the parties were together, he played a significant role in the care of L, it seems to me – and certainly if quantity of time is the measure – that it can fairly be said that L’s primary attachment is to his mother. Dr M is also of that view. Mr F, in oral evidence, acknowledged the likelihood that this was the case.
A move to the predominant care of the grandparents will, then, involve a change in emotional attachments for L. Such an arrangement can be seen to call into question the nature of the relationship and attachments of L with each of his parents and the grandparents (s 60CC(2)(b)) and a consideration of the potential effect of significant separations from his mother (s 60CC(3)(d)).
The co-nurturing environment offered to L on the mother’s proposal also involves, necessarily, a proposal that parenting of L, who is an active 4-year-old, will occur for substantial periods of regular time in a household where the mother and Mr V are co-parenting a five-month-old baby with all of the issues, stresses and strains that parenting any baby involves.
This last matter provides, in my view, a vitally important component of the background against which the respective capacities of each of the mother and Mr V to nurture L and to provide for all of his needs, including his emotional and intellectual needs, falls to be considered. (s 60CC2(a); s 60CC(3)(b); s 60CC(2)(b)).
That important circumstance also provides a change – in my view, a very important change - to the environment in which L’s erstwhile parenting has been provided by the mother (and Mr V) for the great bulk of the time since separation; the child T is but five months old. (s 60CC(3)(d))
Although only five months old, T is L’s only sibling. Unsurprisingly, as it seems to me, both Dr M and Mr F (and, indeed, all of the parties) accept that this relationship will need the opportunity to grow and develop as each child gets older. (s 60CC(3)(b))
It is also necessary to bear in mind in this case, the provisions of s 60CC(4A). The father (being the “other parent” within the meaning of that section) alleges that the mother and her partner have failed to accord to him a meaningful role in L’s life and has sought to deny him the opportunity to participate in decisions about L. Evidence given by Mr V is important in that respect.
The Parties and Their Evidence
Before moving to examine the issues just described, it is necessary to comment upon, and make findings about, the reliability of the parties’ evidence.
In that respect, I am conscious that the grandparents and father were each self represented. I am mindful that self-representation (and, in this case, the preparation of their own material) may create for some parties some disadvantages.
In this case, Mr Carlson conducted the case on behalf of the grandparents. He has a law degree but is not admitted as a legal practitioner and works for a financial institution. He is obviously both intelligent and articulate. I consider that neither the preparation of their own material nor his representation of the grandparents in the hearing created for them any real disadvantage.
The father brought to his material and to his representation, the personal issues (including lack of education) outlined earlier in these reasons. He asked few questions during the hearing. His material was, though, clear and readily understood. His self-representation can be seen to have had some disadvantages. For example, he revealed only in cross-examination that he had been undertaking counselling for his drug and other problems. However, overall, I consider I had a clear understanding of his case and the issues he considered important in L’s best interests.
I nevertheless have sought to be particularly careful when assessing the evidence (and submissions) to bear in mind the self representation of those parties. (I have in mind, for example what the High Court said in Neil v Nott (1994) 68 ALJR 509). A corollary of the concern about self-representation is that it can also bring with it the opportunity for a trial court to see and hear things (albeit in the “artificial” setting of the courtroom) that otherwise might be shrouded in the expertise of that party’s representation. (See, for example, the comments by Justice Wilson (UK) in his 2002 Atkin Lecture “The Misnomer of Family Law”.)
It needs to be recognised that the grandmother (and to a lesser extent Mr Carlson) faced difficulties in the course of the proceedings. The grandmother was in the position of presenting a case that asserted, contrary to her son’s position, that his health and prospects for stability were more precarious than what he contended.
Moreover, she (his mother) was seeking to obtain the predominant care of his child and, by definition, to have a measure of legal authority over a child greater than the child’s parent, her son.
Additionally, the grandparents indicated to me, immediately prior to Mr V giving oral evidence that they were intimidated by him – a claim which I have no doubt was sincere (as distinct from a claim made with a self-serving purpose or for the purpose of engendering prejudice in me against Mr V).
I was impressed with each of the grandmother and Mr Carlson as witnesses. Not only do I consider that they were each genuinely attempting to give the best honest evidence that they could, I consider that they each harbour a genuine, sincere and deeply-held concern for L and his best interests. They presented, individually and together, as stable, thoughtful and caring.
The father struck me as a person who sincerely believes that he has turned his back on a life which, up until fairly recently, has been marked by significant anti-social behaviour and drug addiction. He struck me as sincere and committed. I consider, however, that significant immaturity attended the father’s attitudes in general and toward the mother in particular – a woman with whom, after all, he fathered a child.
Similarly, whilst he deserves very significant credit for what I am convinced has erstwhile been a very difficult and brave process of recovery, and further significant credit for what I judge to be his sincere commitment to remaining on that path of recovery, I think he is somewhat naïve about the nature and extent of difficulties he might confront in the future. That is particularly so when, in contrast to what he says is his current situation, the exigencies and stresses of life impact upon his rebuilding and coping mechanisms.
In particular I have some concerns about his insight into the fact that, as pointed out by Mr F in this case, heroin addiction is, by definition, a chronic, relapsing condition. Equally, however, I have no doubt about his commitment and sincerity in seeking to establish and maintain a meaningful relationship with L both immediately and into the future.
The father is now in a relationship with Ms N. She is 21 years of age. She was cross-examined by Counsel for the Independent Children’s Lawyer but not by any other party, including Counsel for the mother.
There is no evidence that Ms N has ever been involved in the use of illicit drugs or in “the drug culture”. She professes to have an abhorrence of illegal drugs and a “nil tolerance” attitude towards them as far as the father is concerned. I believe her.
Although, if I may respectfully say so, she is young, and not a mother herself, Ms N struck me as a person who had considered the ramifications on her relationship of the father having L in his care for any period of time and she exhibits what I consider to be an intelligent and thoughtful approach to her role in L’s life. She said that she “was not and never would be” L’s mother and saw herself as providing “responsibility” or “leadership” in respect of guiding aspects of L’s care in the future.
I have some significant reservations about the veracity of the mother. A good example is provided by her evidence in respect of providing L for time with the grandparents (and the father) on his birthday which, as it happened, fell during the hearing.
During evidence, the applicant grandmother alleged that the mother had said that she would not provide L for time on his birthday in accordance with the Orders previously made by Fowler J because, once the hearing before me commenced, the orders were “null and void”. That expression, the grandmother deposed, was the expression used by the mother.
The mother denied using the expression “null and void” and attempted to explain her conversation with the grandmother. I found her account of the conversation unconvincing. As to the use of the particular form of words, Mr V used virtually the same words as those alleged to have been used by the mother (but denied by her) when giving evidence about that issue in the witness box. On this issue, I prefer the evidence of the grandmother to that of the mother.
Issues which I consider to be important in respect of more than one of the statutory considerations emanate from behaviour exhibited by, and words used by, Mr V during the assessment process undertaken for the purposes of the family report prepared by Mr F.
The mother sought to, as it were, excuse Mr V from behaviour, which she said in the witness box she now considered inappropriate, by saying that Mr V was under stress during that assessment process. I have little doubt that an assessment process involves significant stress for all participants in the context of a prospective Court hearing. However, I do not consider it provides the explanation for Mr V’s behaviour.
Moreover, the fact that the mother seeks to explain it in that way, and her apparent failure to appreciate the ramifications of that behaviour for L, exceeded, in my view, any allowance that might be made for her clear lack of education and sophistication.
My impression is that there was an air of desperation about the mother retaining the relationship with Mr V which, put in its best light for her as I see it, impedes her capacity for insight into L’s needs and her capacity to place L’s true needs ahead of her own.
Each of Dr M and Mr F described Mr V as being “drowsy” during their assessment processes. Dr M gave evidence that, in using that expression, she was intending to convey a clinical impression that exceeded a description of a person affected by usual tiredness. In the witness box, Mr V exhibited none of the aggression deposed to by the grandparents or the father. He gave evidence in a flat monotone that, at times, was somewhat difficult to understand.
I have significant reservations about Mr V’s veracity. An example is his evidence in respect of an incident alleged to have occurred after a Court hearing on 29 February 2008 when the grandparents travelled to the mother’s residence to collect L pursuant to Orders made by me on that day.
In broad terms, they allege that Mr V ran towards them and appeared to be carrying something in his right hand covered with a towel or a cloth or some such. They say they were frightened and intimidated. I reject Mr V’s account of that incident in the witness box. His purpose, he says, in approaching them was to “tell them to piss off – to go away and leave me alone”. Mr V said, when asked why he confronted the grandparents at all, that he “had done a lot of time in jail” and that it makes him “paranoid” or he “freaks out” when he considers that people are watching him (as he considered that the grandparents were).
Whether that was his purpose or not, I reject utterly his denials that his behaviour was intimidatory or threatening. I accept the account of the grandparents. I consider that Mr V’s behaviour was, and was intended to be, precisely that.
Even if his purpose and demeanour were as he would have it (neither of which I accept) Mr V appeared to take no account at all of the fact that there was a Court Order permitting L to spend time with his grandparents made only hours before and they were there to give effect to that order.
Documents subpoenaed from the Royal Brisbane and Women’s Hospital (forming part of Exhibit GP3) have, on 25 February 2008, a nurse recording:-
“[the mother] had her son with her who [the mother’s] partner was interacting with by pressing on his bruises…”
And again on the same day:
“… partner [ie Mr V] was handling [the mother’s] son rather roughly and in a threatening manner….”
Additional notes on the same day indicate:-
“…did not observe any rough handling but did observe [Mr V] to be inappropriate by putting his hand over [L’s] mouth when he was trying to talk.”
When asked about this Mr V agreed that he was pressing on L’s bruises and that “they both do it to each other”. He said it was “a game we play” and it was in the nature of a “tickling game”.
Subsequently, however, Mr V gave evidence that he had “got into trouble” from the mother’s mother, the maternal grandmother for “the tickling game”. When asked about this he confirmed that he was referring to the poking at bruises that had been referred to in the hospital notes just referred to and which he passed off as a “tickling game”.
I am troubled that Mr V’s behaviour raised concerns in two women (independently of each other) but did not seem to be of any concern to Mr V. I am very concerned that he has little insight into what may or may not be appropriate behaviour to, or in the presence of, young children. His behaviour with a whiteboard during Mr F’s assessment process will also be referred to specifically below in that regard.
It is also noteworthy, in terms of parental capacity and the responsibilities of parenthood, that Mr V also “got into trouble” with the mother’s mother because he has a “short fuse” and was swearing a lot (“the f-word” as he put it) and that he had “got into trouble” for being “racist”. That occurred, as he explained, when he had recounted the story of a fight he had in jail with a man who he had referred to, when recounting the story, as “a black prick”.
Mr V’s credit was called into question directly in respect of an incident alleged to have occurred the weekend prior to trial. The grandparents allege that in a happenstance meeting at Bunnings, Mr V walked past and said in their direction “fuckheads”. Mr V agreed that he was at Bunnings (with his father-in-law) around midday. He said he didn’t recall seeing the grandparents. He denied walking past them saying “fuckheads”. I don’t believe him. I accept the evidence of the grandparents.
The Events of Mid-2007: Allegations of Sexual Abuse
In September 2007 Judicial Registrar Forbes made orders that the grandparents spend time with L each Sunday between 10.00am and 4.00pm supervised as might be agreed or otherwise supervised at a contact centre. The reason for that supervision is, in broad terms, an allegation made prior to that time by the mother that L was at risk of sexual abuse whilst in the care of the father and/or the paternal grandparents.
On 29 November 2007 Fowler J made orders for the applicants to spend unsupervised time with L. Evidence of significance emerged between the two dates so as to satisfy this court, on an interim basis, that there was insufficient risk to suggest that the applicants’ time with L should be supervised.
Consequent upon interviews conducted primarily on 31 October 2007, Mr F, a Family Consultant, attached to the Family Court Registry in Brisbane, prepared a report dated 22 November 2007. At that time Mr F opined:-
“16. The mother presents with an implacable and rigid belief that the child was sexually abused by Mr [B], a boyfriend of the child’s paternal aunt [R], in the home of the paternal grandmother. This allegation and her perception that it fails to be accepted by the paternal grandmother acts as the basis for her position in this proceeding [which was, as reported by Mr F, that “she does not believe that it is safe for the child to spend time with the applicant grandmother unless it is to be supervised at a contact centre”].”
Mr B has always denied any impropriety of any type or description. He was a deponent in the proceedings before me. He was not required for cross-examination. He deposes that, during the course of a relationship with the grandmother’s daughter R, commencing in approximately May 2007 and ending in approximately November 2008 he would “occasionally stay overnight in [R’s] room at the applicant’s home”.
It was accepted, at the time of the trial before me, that Mr B was no longer in a relationship with R and there was no reason to suggest that, whatever be the allegations otherwise made in respect of him, it was anything other than highly unlikely that he would have any further contact with L.
However, the nature and circumstances of the allegations made by the mother continue to bear consideration not least because the mother told me in evidence to the effect that she “still believes that something happened notwithstanding the reports of the SCAN team and the reports of the Department of Child Safety”.
She seemed to accept that Mr B was no longer present at any regular times in the applicant’s household nor would likely be in the future, however, her attitude was to the effect that the grandmother “couldn’t prevent it in the past”. I wasn’t entirely clear whether this was a reference to the grandmother preventing sexual harm to L or to the grandmother preventing harm occurring to the father during the course of previous relationships when he was a child.
The circumstances of the original allegation by the mother in respect to the potential for sexual harm are summarised at paragraph 53 of Mr F’s report of November 2007. The incident was alleged to have occurred in June 2007. At that time L was aged 2 years and 9 months.
Describing various behaviours and observations of L to Mr F the mother said to him:-
“I thought something had happened to him on his overnight stay…I said, had anything happened at [the grandmother’s]? He didn’t answer me. I asked had anyone touched him” She reports he was quiet and then nodded and looked away. She said “I asked had anyone touched your diddle and you didn’t like it?” She reports that he was silent for a while and then nodded and said yes…”
Later in the same paragraph Mr F reports:-
“She states that she ran through a list of people’s names [with L]. She reports that she did not mention the name [Mr B]. She states after listing off people’s names he said “[Mr B]”. She reports that she did not know who he meant at first. He said this twice and she replied “[Mr B]?” and he said, “[Mr B]”. She states that he then said “[Mr B] played with my diddle”. She stated that [L] then, “opened his mouth and pointed to his tongue…””
Under cross-examination from Counsel for the ICL, it emerged that the mother had contacted the Department of Child Safety in July 2007 in respect of an incident alleged by her to have occurred in April 2007, involving the father coming to her residence. She did not tell the Department of Child Safety about the alleged disclosures by L. She did tell them on 13 September 2007.
The mother denied the specific suggestion put to her in the witness box that she mentioned it to the Department on 13 September 2007, in effect, only because she did not obtain the results she wanted from the first investigation by the Department after the July 2007 complaint. I have real doubts about the veracity of that denial.
There are anomalies in the account of the alleged disclosure. For example extracts from the relevant Departmental notes (Exhibit GP3) refer (despite the account given to Mr F just referred to) to the child associating the behaviour with “[another similar-sounding name]”, as distinct from “[Mr B]”.
No police action was taken. The Department did not substantiate the concerns in respect of L. I note that, in terms of any perceived risk, the mother’s proposal now sees the applicants spending equal time with her, and time with the father.
Dr M said, in respect of the allegation of sexual abuse that:-
“The allegation of sexual abuse of [L] in the care of the paternal grandmother has some concerning aspects, in particular the interrogation to which the mother subjected the child which would be very likely to elicit a response from him that he had been abused”.
Mr F ultimately opined, at paragraph 83 of his first report that:-
“I am of the view that the information concerning sexual abuse as it was supplied by the child and the manner in which it was extracted is unreliable. The mother’s language to the child was suggestive. Her description of her actions and responses to the information points to a discussion characterised by heightened arousal”.
Subsequent to his first report, Mr F conducted a process pursuant to s 65L of the Act pursuant to an earlier order to that effect. Having carried out further assessments, including during the s 65L process, Mr F opined in a report dated 18 September 2008 that:-
“There is no information from this assessment that points to [L] being at risk in the care of [the grandparents]. They present as quite stable, child-focussed people who display a desire to minimise conflict and cooperate. They display compassionate yet realistic views regarding [L’s] parents and a genuine desire to offer [L] stable and consistent support. Further, [L] displays a considerable level of comfort in their care.”
I consider that I can safely find that L is not at any risk of sexual harm whether in the care of the grandparents or father.
Attachments, Capacities and Willingness
Mr F, in each of his reports, but in particular his most recent report dated 18 September 2008, flags “the capacity of the parents and Mr [V] to meet the needs of a young child, with particular reference to their histories of substance misuse and the social, behavioural and environmental issues that may arise” to be a significant issue in the determination of L’s best interests. I agree.
Given the context in which Mr F posits parental capacity and given what I consider to be an important context within which that issue needs to be determined, the issue of capacity is closely aligned with, to use the words of the Act, “the maturity…lifestyle and background…of either of the child’s parents” and “the attitude to the…responsibilities of parenthood demonstrated by each of the child’s parents”. (S 60CC(3)(g) and (i) respectively.)
Furthermore, given that Mr V is, on the mother’s case, to be a significant person in L’s future care (as well as the parent of a very young sibling of L’s) similar considerations apply, in my view, to him (s 60CC(3)(f)(ii); (3)(m)).
It is interesting, and in my view instructive, to observe that, having previously participated in a process conducted by Mr F, and clearly being aware of Mr F’s role, Mr V should commence the s 65L process ordered by me by attending on 10 April 2008 and displaying what Mr F described as an “aggressive demeanour”.
Mr F went on to say:
“He appeared quite agitated and eventually, without warning he left the interview and the building. I asked him how things were going and he replied, “It’s shit. His [L’s] attitude has changed dramatically he’s getting equal time now, if not more time. It’s bullshit. They have no right to have him. His father’s a dickhead. He’s fucken scum [he has a] new sheila. She’s a fucken junkie, just like him. He’s not stable and he doesn’t give a fuck.”
It was admitted by Mr V in the witness box that despite referring to the father’s “new sheila” as a “fucken junkie” this was not based on any information. He accepted that he had no data whatsoever (from any source) about Ms N, let alone any data that suggested that she is, was, or ever has been, involved in drugs.
Subsequently Mr F reported a conversation with Mr V which he indicated had involved some discussion about L attending child care. Mr F reports:-
“Mr [V] stated “we’ll discuss it”. I asked who and he replied rather aggressively, “[the mother] and me”. I indicated that there had been some discussion about this between the mother, the paternal grandmother and Mr [Carlson] and Mr [V] interrupted, “I couldn’t give a shit about the paternal grandmother mate. She’s a fucking…” I didn’t hear his last word. I asked him to repeat himself. He then walked out of the room and left the building”.
I repeat that Mr V admitted in the witness box that he had “got into trouble” from the mother’s mother for having a “short fuse” and for using inappropriate language which he described as “the f-word”.
The comments made to Mr F also had echoes in the oral evidence given by Mr V in the hearing. He said that he “didn’t have a lot of enthusiasm” for the paternal grandparents saying that he “doesn’t care much for the paternal grandmother or her partner”. I also reiterate in this context my finding that, contrary to the denials of Mr V, he passed the grandparents at Bunnings approximately one week prior to the trial and called them “fuckheads”.
In my view, each of the incidents just referred to speak ill of the maturity of Mr V and his capacity to focus on child-related issues in a mature and responsible way. This aspect was to take on even greater significance as a result of an incident also reported by Mr F and which I regard as extremely significant. Mr F reports:-
“70. [The mother] entered the room. The other parties left. There was no shift in [L’s] manner. During the changeover there was no overt tension between the adults. He greeted his mother with a hug. They played on the floor and [L] chatted to her.
71. Mr [V] entered the room. He sat with [L] at the whiteboard and they did some drawing. [L] was attempting to write his name, a task he had attempted with his father. Mr [V] pointed to his writing and said, “What does it say?” [L] replied, “[L]”. Mr [V] said to him, “It says turd.” [The mother] laughed. They did more drawing on the whiteboard. Mr [V] and [the mother] chatted gently and quietly and [L] appeared quite relaxed”.
I asked questions about this incident of each of the mother, her mother and Mr V. I also put the incident to Mr F and to Dr M. In particular I put to Mr F the impression that I had gained from reading that part of his report; I had the impression of a young boy, delighted by his attempts to write his name, who could have legitimately expected delighted praise from a caregiver. Instead he received something juvenile and inappropriate.
Mr V indicated in his evidence that what he said to L was “a joke”. Like me, Mr F could not see the humour. Like me, both Mr F and Dr M thought the behaviour utterly inappropriate.
In my view, the incident demonstrates immaturity and insensitivity of a quite extraordinary level. Equally, that Mr V was prepared to act in this way while, as it were, under the scrutiny of a report writer, engaged in a s 65L process, almost beggars belief. In my view it raises significant questions and profound concerns in me about the nature and degree of Mr V’s insensitivity, lack of insight and immaturity when, as it were, left to his own parental devices.
The maternal grandmother was ready to concede in the witness box that Mr V’s comment was entirely inappropriate. She seemed to me to be talking as any mother might be expected to react. Equally it seems to me that any mother – indeed any responsible parent – is highly likely to respond in a similar way. That the mother, whilst in the presence of Mr V (and Mr F), was prepared to laugh at the behaviour speaks ill of her maturity and capacity to exercise appropriate parental responsibility.
I accept that the mother’s actions might have been activated, at least in part, by nervousness or, as Mr F suggested as a possibility “to move it along” so as to pass beyond the uncomfortable situation created by Mr V’s comment. However, the observed conduct of the mother must also in my view be seen against my impression of her in the witness box. I am not, on balance, prepared to be that charitable toward her reaction.
I pose for myself a rhetorical question: when left to their own parental devices – particularly now with a new baby and all that implies – what degree of maturity, responsibility and sensitivity will the parenting unit comprised of the mother and Mr V bring to the parenting of L? I think it highly likely that their capacity to parent is significantly deficient.
I am strengthened in that view by the evidence of Dr M with respect to her opinions as to whether the mother (and father) were each “good enough parents”. That expression was used by the doctor as a term of art – that is by reference to work done principally by the British psychoanalyst Winnicott. In essence, the expression emanates from the notion that all parents will inevitably bring failings to the task of parenting. Children can tolerate these failings and, indeed flourish, despite them; parenting need not be perfect but it must be “good enough”.
Dr M was of the view that neither of L’s parents were “good enough parents” in that sense. I agree.
Risk – Drug Abuse
As a result of previous orders, each of the parties submitted to random drug testing. The father and Mr V produced “clean” results in respect of those tests.
The mother’s tests contained an anomaly. That anomaly was addressed in evidence from Dr A who had, it is conceded, the relevant expertise to comment upon the drug test results forming Exhibit ICL3 in the proceedings.
A urine test collected on 26 August 2008 from the mother detected “opiates”. Dr A indicated that only a particular sort of test (a “GCMS”) could have confirmed the particular opiate. Each test requires a patient to complete an information sheet that includes on it a question about the drugs that had been taken by the patient providing the sample. The mother gave evidence that, as well as her prescribed detoxification medication, she had taken “Nurofen” and “Panadol”.
Dr A gave evidence that “Nurofen Plus” (as distinct from “Nurofen”) could produce an opiate reading. He also gave evidence that, in his (extensive) experience, consistent and experienced users of illicit opiate drugs are aware of the fact that significant quantities of a drug such as “Nurofen Plus” can produce an opiate reading in a drug test and are therefore aware that disclosure of taking of such a drug can provide an “innocent” explanation for a positive opiate result and, thus, “mask” the use of illicit opiates.
The mother was, understandably, cross-examined at some length about this issue. Of considerable significance, as it seems to me, is that, when questioned about whether she had taken “Nurofen” or “Nurofen Plus” and about the quantity taken, she confirmed that she suffered from frequent headaches and took such drugs for them. She was, though, vague about whether she had taken those over-the-counter medications or the quantity she might have taken within the time frame relevant to the test results. I thought her evidence in that respect was honest and that she was doing her best to recall and tell the truth.
I consider that, as an experienced former opiate user, if in fact the mother had taken “Nurofen Plus” in order to “mask” a positive test result for illicit opiates, she would have been anxious to, as it were, grasp on to the use of a significant quantity of “Nurofen Plus” within the pre-testing time frame as an explanation for an adverse result.
She did not do so. I think it highly likely that the adverse test result is explained by the mother’s use of “Nurofen Plus” within the pre-test time frame. The opposite conclusion would need a finding of feigned vagueness by her in the witness box and, I should add, a significant degree of Machiavellian sophistication. I did not have an impression of the former and very much doubt the latter. I think the mother’s vagueness and her answers generally on this topic was each honest.
The evidence of Dr M in particular flags significant caution about optimism for either of the parents and Mr V remaining drug free in the long term. The doctor indicated in her evidence that it was very encouraging, in the father’s case, that he had been drug free for so long and had taken steps to address his previous behaviour but, nevertheless, caution was required. As Mr F said (at para 79 of his report dated 18 September 2008) “heroin addiction is a long term relapsing/remitting condition.”
The evidence before me does not support a finding that the children are currently at an unacceptable risk of not having their intellectual, emotional and physical needs met by reason of either parent’s (or Mr V’s) drug addiction. The evidence before me indicates, and I find, that each of those conditions is well controlled and each of those parties has, to their great credit, taken steps to address the underlying conditions.
I expressed some concern during the hearing that the mother’s mother and her partner run a drug-themed website and the grandparents assert that some behaviour on L’s part is suggestive of him imitating the use of a “bong” – which, it was accepted by all parties at the hearing, is an implement used for smoking illicit drugs.
In my view the evidence falls short of that which is required to make a finding that L is at risk directly from being exposed to drug-taking behaviour from either of his parents, or Mr V, or from them being adversely affected by drugs such that their parenting capacity is thereby directly affected.
Relationships and their Meaningfulness
I was impressed by the reports, and the oral evidence from Mr F. His approach, to my mind evidences a cautious, child-focussed approach that sought to properly assess the issues which, to my mind, are central to a determination by this court of L’s best interests.
At paragraph 75 of his report dated 18 September 2008, Mr F said:-
“[The mother] and Mr [V] each strongly oppose the level of intervention of [the paternal grandparents] in [L’s] life and they have consistently opposed him spending periods of time with them. Mr [V’s] overt aggressive attitude toward them, and proprietorial approach to [L], is most concerning. I am of the view that it is very unlikely, in the long term, that they will promote [L’s] relationship with [the grandmother] or Mr [Carlson]. They each maintain a rigidly negative view of them and will rely on small pockets of information from [L] to form their views”.
That paragraph is entirely consistent with my findings of the attitudes of the mother and Mr V to the importance of L having his father and paternal grandmother in his life. As previous examples cited in these reasons make clear, I agree that each maintains “a rigidly negative view” of the father and paternal grandmother.
Mr F goes on:-
“83. Mr [V’s] aggression is directed toward the paternal family as a whole, [a]lthough he appears overly focussed on [the grandmother]. I am not of the view that he should not be included in any changeover arrangement or structure of communication between the parties as his stance appears to be quite intimidating. Should there be an adverse assessment or Court proceeding against the mother, it is likely he will react poorly to such an outcome.”
In turning his attention to the potential for L to have a meaningful relationship with the father should he be in the significant care of the mother and Mr V, Mr F said:-
“85. I am not of the view, on the history of their behaviour and with the presenting levels of their mistrust that [L’s] relationship with his father would develop safely or substantially if it was left to [the father] and [the mother] to manage. I think it would be more likely, in my view that the parties would overact, poorly communicate, threaten each other and withhold the child.
…
87. Given these concerns, the best chance for [L] to form a meaningful relationship with his father, and maintain a relationship with his mother is if the time he spends with him is subject to the ongoing support of [the grandparents]. It allows for [the father] to develop his skills as a parent. It also allows [L] to transfer to him with a greater level of predictability. On this basis, it is difficult to recommend a structure that does not have as its foundation, a substantial amount of time between [L] and his grandmother and her partner.
88. [L] is of an age where he cannot reasonably understand or assert his needs, he will display labile temperament and he will have limited understanding of time. There will be difficulties associated for him in having escalating levels of time in the primary care of his father. There is likely to be greater difficulty for [the father] given his general temperament, his experience and vulnerability. It is my view that any shift to unsupervised time between [L] and [the father] should be structured and gradual.
89. Of the caregivers in [L’s] life it would appear that in the long term, the safest place for him is if he is in the primary care of the paternal grandmother and Mr [Carlson]. It is also the place where [L] is most likely to be able to develop and maintain his relationships with his parents. Of all the options for this child, this in my view is the most likely to afford him long term stability, emotional containment and consistent care.”
I agree with each of those comments. They were fortified by my impressions of, and the evidence given by, the parties in this case.
The mother admitted under cross-examination from Counsel for the ICL that L referred to Mr V as “dad”. She said that she said nothing to L about that. She said that Mr V said “I’m dad, but your real dad is [the father]”. Mr V, for his part, gave evidence that he had never heard the mother give an explanation to L that distinguished between him and L’s real father.
I think it highly unlikely that the mother or Mr V will ever promote L having a meaningful relationship with his father.
Given the past and present vulnerabilities of each of the father and the mother I consider it crucially important that L receive very substantial care, and his primary stability, from the grandparents. The father, despite advocating his own cause, appears to understand this – at least in the short term. In my view the mother and Mr V do not.
The mother and Mr V have a new child. All parties recognise the importance for L in having a relationship with his sibling. Equally, though, that relationship is a new relationship for L who is yet a toddler.
The capacity of each of the mother and Mr V to promote and facilitate L having a meaningful relationship with his father and the grandparents must be exercised in an environment where the basic and primary needs of a new baby will necessarily occupy a considerable proportion of his parents’ time.
Clearly enough, a new child involves significant stresses on any parent. The stressors on these particularly vulnerable parents, with particular personality frailties, are all the greater.
I find that the mother (and Mr V) have very little willingness or capacity to promote a relationship with the father or grandparents in any event. In my view that is likely to be all the worse by reason of the circumstances just described.
Attachments and Change
The expressions “primary carer” or “primary attachment” are frequently used but rarely explained.
For example, it frequently seems to be the case that the expression “primary care” is used as if it were solely a function of the quantity of time a child spends with a parent. Clearly enough, quantity of time is likely to be a significant component of “primary care”. Nevertheless, it seems to me that the quality of care provided within that time frame must also be a component of a child’s “primary care”.
There is little doubt that the mother has, in terms of time, been L’s “primary carer”. However, as indicated earlier, the notion of a parent being a “good enough parent” was explored with Dr M during her oral evidence. Mr F was aware of this term, (used in the sense earlier described). He gave evidence that, in his opinion, neither of the child’s parents was a “good enough parent” in that sense.
Having said that, Dr M was of the opinion that “it would appear that the primary bond of [L] is to his mother”. The doctor went on to say:
“Severing of a primary attachment bond has considerable implication for children of a negative nature. However [L] appears to have been able to tolerate separations from his mother and to have strong attachment to the paternal grandmother in particular. There is a history of him having witnessed conflict between the parties and I have no doubt from my assessment that he is aware of hostilities between them”.
Dr M could see merit in the equal time interim arrangement proposed by the mother because, as she put it, it would have the advantage of loosening the bond between the child and the mother in a more gradual way.
She emphasised, however, that this proposal, too, was not ideal because the ideal position for a child of this age is to preserve the attachment between the child and the primary attachment figure. But, as Dr M pointed out on a number of occasions, “this is not an ideal situation”. The doctor went so far as to say “none of the situations” (i.e. the parties’ proposals) was ideal. But, that is almost always true in high conflict parenting situations which, almost by definition, are the grist for this Court’s mill.
Dr M said in oral evidence that she did not believe that L “was in a good situation now” and that he is “already likely to have been traumatised”. In her written report Dr M said of the mother that:
“Individuals with borderline personality disorder can improve with time but it is unlikely that such improvement would occur in time to meet [L’s] developmental needs and her new partner demonstrates significant anti-social personality traits and this does not auger well for the stability of her current relationship”.
Mr F also addressed, in oral evidence, the issue of L’s attachment to his mother and the significance of a change for him in his day to day primary care. Included among the factors considered is of course, that L has a new brother in that household. Mr F was of the view that the issue needed to be looked at “holistically”, because it involved “a constellation of factors”.
Mr F thought that L’s best interests required a structure to be developed that could allow the bond with his mother to develop and continue, but which balanced the risks which he perceived L being exposed to in the continued significant care of his mother. He posited those risks as: the vulnerability of the mother; her capacity to comply with orders and arrangements for L; the likelihood of her allowing L to develop a meaningful relationship with his father and the “social” behaviour of her chosen partner Mr V including the aggressive disposition noticed by Mr F.
He considered that the mother’s choice of partner was an example of her falling below the “good enough parent” criteria. He said that the choice of such a partner stifled her role as a primary parent as well and presented a risk to L and compromised her primary parenting.
In that regard it should be pointed out that at the conclusion of his first report, Mr F recommended L live with the mother and spend time with the father and paternal grandmother each Tuesday to Wednesday and on alternate weekends from Friday to Monday.
Nine months later, in his second report, Mr F’s ultimate recommendations were that L live primarily with the grandparents and that he spend “frequent, regular time with his mother until school age for one night in week one and two nights in week two, for special events and four non-consecutive weeks a year”. He also recommended that L spend escalating levels of unsupervised time with his father, commencing with day time outings, moving to overnight time once a week”. Mr F also made recommendations in the long term and an alternate recommendation should the court consider a shared living structure between the mother and the grandmother was appropriate.
Mr F was asked to explain the difference in those recommendations in that period. He indicated that his first report contained interim recommendations, made at a time when there was a significant lack of information about L and the grandmother. In the intervening time he had had the opportunity, through the s 65L order process to gain a greater understanding of the “sense of mistrust and conflict” between the parties and greater insight into the capacities of the respective parties to care for L’s day to day and emotional needs.
Mr F indicated clearly that, in the long term, he considered that there were risks for L if he was in the primary care of either parent.
I have already referred to his assessment of risks in the mother’s care. His enumeration of risks in the father’s care included his background of illicit substance use (albeit that he was managing his withdrawal syndrome). This applies equally to the mother of course. That he had engaged in anti-social behaviour and came from an unstable background (one at least of those features apply also to the mother) and that he had an unstable and volatile relationship with the mother and an inability to maintain and promote a relationship with the mother of his child.
Parental Responsibility
It will be clear that, in my view, the evidence compels a finding that the father and the grandparents and mother have no current capacity to communicate or discuss reasonably or meaningfully with each other any issues relevant to L’s welfare or best interests.
I consider there is no realistic prospect of them reaching agreement about major long term issues (as that term is defined in the Act) in respect of L.
Moreover, it seems abundantly clear that this highly charged situation – particularly any situation in which Mr V will continue to play a part – is very unlikely to change in the near future.
The statutory presumption of equal shared parental responsibility is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted. Again, then, the s 60CC findings as to best interests are called into use.
In my view, a specific additional consideration (s 60CC(3)(m)) also emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for L. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Carrying out those tasks and obligations, on what might be a regular basis, particularly when, as here, a child is young, carries with it potential significant difficulties. That is all the more so where, for example, parties other than the parents are involved, there are siblings of another relationship involved and where the parties are in high conflict. All three are present here.
Equally, though, an order for “sole parental responsibility” in favour of a party (as is frequently sought as an alternative to either the sharing of parental responsibility or equal shared parental responsibility) means, as it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child - particularly when, as here, the child is young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
Counsel for the mother argues that the mother, father and grandmother should together have equal shared parental responsibility. Such a submission calls into question what the Act means by the undefined “equal shared parental responsibility”.
At first blush the Act would appear to give no power to make an order for non-parents to receive the benefit of such an order. First, s 61DA – the section containing the presumption - speaks only of “parents” having equal shared parental responsibility. Further, the power to make parenting orders (s 65D) is made subject to s 61DA. And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.
But, the picture is not that simple. Section 64B defines parenting orders to include orders whereby the court allocates parental responsibility. Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility as distinct from parents.
Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child (s 65C) and can be made in favour of a parent or “some other person”.
The position is, then, it seems to me, that an order allocating parenting responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not a parent. However, the presumption of equal shared parental responsibility applies only as between parents.
Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents. Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.
Thus, in the present case, it seems to me, with respect, erroneous to seek an order for three persons, including a non-parent to have “equal shared parental responsibility”.
Equally, though, it would be open for the mother to argue (although her counsel did not express it in these terms) that s 61DA(2) or (4) applied so as to rebut the presumption of equal shared parental responsibility and to then contend for an order that parental responsibility be allocated equally between the parents and the grandmother.
Whilst that might seem to be sophistry, it seems to me that this is what the application of the Act requires.
Expressed in those terms, the argument by counsel for the mother implies a contention that the presumption is rebutted. However, I do not consider it fair to the mother to approach the matter on that basis. Although I raised a query during counsel’s address as to whether the court had power to make an order for the three-part equal shared parental responsibility contended for, the issue was neither explored in any depth nor fully argued.
In the event, little in my view turns on that as I have come to the firm conclusion that the ultimate decisions in respect of long-term issues affecting L should be made by the grandmother.
The ICL submits for orders which, I gather, are modelled on orders made by me in Runcorn and Raine [2008] FamCA 837. In essence, those Orders contemplate a process of consultation and a genuine attempt by the parties to reach agreement about major long term issues (as that phrase is defined in the Act) but, in the absence of agreement, the ultimate decision being left to the grandmother.
I have determined to make orders in those terms (which, I should add, seem to be orders of a type contemplated by the Act – see s 64B(2)(d)) by reason of the issues discussed, and findings made earlier in respect of: the clear need for stability for L; what I have judged to be the impaired capacity of each of the parents to provide for the totality of L’s needs, including in particular, his right to know and be cared for by the other parent; the very real concerns I have about any influence Mr V might exercise in parenting decisions made by the mother and the responsibilities of parenthood exhibited by the parents.
I have also had particular regard to the manifest extreme levels of conflict between the parents and between Mr V and the father and grandparents and what would appear to be contempt that Mr V has for the views of the grandparents who are the people I have judged to be likely to provide the most consistent and stable care for L.
I also take into account what I have judged to be the utter incapacity of the parents, if left to their own respective devices, to consult and agree about major long-term issues for L. I am somewhat pessimistic about them having the capacity to do so within the process envisaged by the orders, but I judge the grandparents to be sincere in their commitment to L’s best interests, including involving the parents in significant decision making for him.
It will be clear, then, that in my judgment, the evidence compels a finding that L’s best interests require the presumption of equal shared parental responsibility to be rebutted.
Equally clearly, for these reasons just enunciated, I reject the submission by the mother that parental responsibility should be allocated between the parents and the grandmother.
I have also taken into account the matters raised at paragraphs 174 to 176 of these Reasons. Whilst I consider that L’s best interests are clearly best met by orders that allow the ultimate decision making to be carried out by the grandmother, I order for “sole parental responsibility”. When combined with the process contained in the orders, in my view, this strikes a balance between L’s best interests and interference with what I see as fundamental rights of his parents.
Advantages and Disadvantages of the Parties’ Proposals
As a result of the decision made by me in respect of equal shared parental responsibility, it is not necessary for me to consider, in the mandatory manner outlined by the Act, whether I should order equal or, if applicable, substantial and significant time to the parents.
However, the Objects and Principles remain relevant and applicable, particularly those emphasising the role of both parents in L’s life. I am aware of those Objects and Principles and the need to primarily consider him having a meaningful relationship with his parents when arriving at a decision with respect to time.
I propose to discuss what I consider to be the advantages and disadvantages in the respective proposals of the parties and the ICL.
The mother contends for interim orders lasting not less than 12 months. Mr F saw some advantages in this. Primarily, he said that it would, perhaps, allow some issues with respect to L to “become more obvious”. In terms of an assessment, as L got older, there was an opportunity for “greater longitudinal assessment”. Dr M was of a similar view, saying that, by reason of L’s current developmental stage, an interregnum would allow it to become “more obvious how [L] is faring”.
The disadvantage, as it seems to me, is that there is a significant risk of prolonging, and, in a sense, promoting, the conflict between these parties. I am extremely pessimistic that there will be any abatement of the conflict in any circumstances, but, to make orders that, in effect, beg a re-agitation of issues in twelve months or so gives a future focus for that conflict.
Mr F also saw this as a potential disadvantage. He extended his concerns in that respect even to final orders which included a s 65L order. To use his words, that “still keeps it within the confines of the court”. Dr M also saw the potential for increased hostility between the parties as being a disadvantage in such a proposal.
I have already said that I consider it axiomatic to L’s best interests that as much stability as possible be introduced into, and maintained in, his life. I have concluded that this will likely best occur if he is to be placed in the predominant care of the grandparents. To make interim orders is, in my view, to derogate from the very stability I consider best for L.
In my judgment, the primary disadvantage of removing L from his mother’s essentially full-time care is the potential to cause emotional harm by reason of L being removed from his likely erstwhile primary attachment figure.
This issue was a particular focus of Dr M’s evidence. She gave evidence that a severing of the significant attachment bond can have a number of ramifications later in life: feelings of insecurity; reduced self worth and feelings of rejection among them. Dr M indicated that the mother’s proposal (which, it is to be noted, would see L separated from her for half of the time but for not more than four nights at a time each fortnight,) might have “fewer negative effects” for L.
In re-examination, Dr M was asked whether the negative effects could be ameliorated in a different way, consistent with the ICL’s ultimate proposals. Dr M indicated that alternating between households did not work particularly well for a child of L’s age. And, Dr M indicated that L is “not in a good situation now” and that, although any of the mooted arrangements was “not ideal”, L’s situation “is not ideal”.
In her written report, Dr M noted that L “appears to have been able to tolerate separations from his mother and to have a strong attachment to the paternal grandmother”.
I am also conscious of the fact that removing L from his mother’s full-time care will involve a separation from his baby brother. Although I am cognisant of this factor, and reiterate that I consider L’s relationship with T to be important, my orders will provide for the mother to spend time with L and, of course, time with T will be an important part of that. I consider that the advantages for L in a placement with the grandparents outweigh any detriment for L (and T) spending only the time together that the orders will provide.
Such disadvantages for L as exist in removing him from his erstwhile primary attachment figure must, in my view, be balanced against the quality of the care comprising that erstwhile attachment and any advantages in L’s primary care being shifted from the mother.
As to the former, it will be obvious from my earlier reasons that I consider the quality of care provided by the mother and Mr V falls below a standard that might be described as being a “good-enough parent”.
As to the latter, I consider that L will have the considerable benefit of stability and reliability if his primary day to day needs are met by the grandparents. I think the fact that, for much of the time in any such arrangement, he will be away from the quality of parenting by Mr V as earlier assessed by me, will be to his significant advantage.
I consider it advantageous for him to enjoy and develop a relationship with each of his parents. I think it highly unlikely that will be permitted to occur if L is in the primary care of either his father or his mother.
Although pressed to provide specific parenting proposals the father contended for an order that would see L “come into his custody eventually”, I consider that his true present position is probably best summed up by an offhand answer in cross-examination from counsel for the ICL. He said: “I just want to see my boy, mate”.
Whilst not expressed either clearly or in particularly sophisticated terms, the father, as it seems to me, implicitly recognised that L’s current best interests required the sort of stability and responsibility that his mother and Mr Carlson can provide. The father has much work to do to grow and develop his relationship with L. I think this is most likely to be achieved whilst L is cared for by the grandmother and her partner and with him (and his partner) seeing L regularly without interference or impediment save as the grandparents determine is in L’s best interests.
It follows from what I have said that I consider that, whilst there is benefit for L in spending regular time with his mother, there should be a clear demarcation in time and relationships that makes it clear that, and allows the opportunity for, the grandparents to provide his primary day to day care.
I have considered the possibility of the mother spending “block time” with L and I particularly have in mind in that respect the evidence of Dr M about limiting changes for L. However, it seems to me preferable, particularly considering L’s age, to provide for more frequency in periods of time than could be accommodated (within the context of my other findings) in one block. The periods proposed by the ICL in my view meet that need.
The orders proposed by the ICL provide for shorter specified periods of time with the father. However, it stands to reason – and he appears to concede - that (assuming his relationship with his mother remains as it is at present) he will have opportunities to spend time with L when he is in the care of the grandparents.
In that respect, should it not be clear from earlier parts of these reasons, I make it clear that, I trust the grandparents to act in L’s best interests in ensuring that his routines and stability are put ahead of any protestations by the father for more time than they consider appropriate in L’s best interests.
I should also make it clear that I am acutely conscious that I propose making orders placing L in the care of a non-parent when the Act, in a number of different, but related, ways, requires me to consider the primary importance of each parent having a vitally important continuing role in L’s life.
Ultimately, however, the decision is about, and guided by, L’s best interests. In my view, a decision about best interests in any case is arrived at by assessing the nature and value of the mooted relationship between the mooted carers and the child. Time is how divisions in the co-parenting relationship (and court orders) is expressed, but a decision about time in my view follows from a decision about the nature, extent and parameters of the relationship between child and carer, measured by its value (or potential for harm) to the child.
Here, by reason of the matters discussed, and findings made above, I am firmly of the view that L will benefit most from maximising the care-giving provided by the grandparents and the relationship flowing from that. I consider that it is clearly in his best interests for him to receive the great bulk of his day to day care and nurturing from them.
He will, as I have found, benefit primarily from the stability and routine provided by the grandparents and what I have assessed as a current superior capacity to parent and their (as I assess it) superior attitude to the responsibilities of parenthood. I think L’s emotional and intellectual life is highly likely to prosper in the mooted division in relationships – expressed in terms of time – provided for in the orders I will make.
Finally, orders are sought by the ICL compelling the parties to attend drug screening and parenting programmes. The orders appear on their face to be somewhat draconian. However, each of the parents was at pains to assure me that they are willing to undergo each. Clearly enough, adherence to a drug-free lifestyle can only be of benefit to the parents’ respective capacity to parent.
Equally clearly, given the tragic and difficult starts in life experienced by each of the parents, appropriate professional assistance combined with the appropriate commitment from each of them, could only be of benefit in their future parenting of L.
Given the freely-expressed consent of each of the parents to regular drug testing and their expressed willingness to attend parenting courses as proposed, I will make the orders sought by the ICL in each respect.
I order accordingly.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 4 December 2008
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