Carlton and MacDougall (No 3)
[2015] FamCA 716
•31 August 2015
FAMILY COURT OF AUSTRALIA
| CARLTON & MACDOUGALL (NO 3) | [2015] FamCA 716 |
| FAMILY LAW – CHILDREN – Parenting orders – Where mother recently incarcerated and remains incarcerated as at trial – Where unknown when mother will be released or likely outcome of current criminal charges – Mother committed to stand trial on several criminal offences – Parental responsibility and time and communication with mother – Where mother has a lengthy history of instability of living circumstances and lifestyle – Where father able to provide stability for the child – Where order for the father to have sole parental responsibility in the best interests of the child – Time and communication with the mother during period or periods of incarceration – Orders for child to spend time with maternal grandparents to facilitate visits with the mother and child – Orders for supervised time when mother not incarcerated – Need for mother’s circumstances to be explained to child by single expert psychologist – Evidence of child achieving stability and progressing academically in the father’s household – Orders for child to live with the father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Carlton |
| RESPONDENT: | Ms MacDougall |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lyrene Wiid |
| FILE NUMBER: | BRC | 9488 | of | 2012 |
| DATE DELIVERED: | 31 August 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 24 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kissick |
| SOLICITOR FOR THE APPLICANT: | Forest Glen Lawyers |
| FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lyrene Wiid Lawyer & Migration Agent |
Orders
IT IS ORDERED:
That all previous parenting orders are discharged.
Explanation to the child
That the Father ensure that the child, the child B born … 2006 (“the child”), attends upon Ms E, psychologist, as directed by the Independent Children’s Lawyer (“ICL”) for the purpose of Ms E explaining to the child:
(a) that the Mother is currently incarcerated; and
(b) to the extent Ms E deems appropriate, these Orders.
Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) leave is given to the ICL to publish to Ms E these orders and the Reasons for Judgment of Justice Kent delivered on 31 August 2015 and the ICL is directed to so publish them.
Parental responsibility
That the Father have sole parental responsibility in respect of all major
long-term issues in respect of the child save that the Father shall, prior to making the sole ultimate decision about any such issue:(a) use his best endeavours to advise the Mother in writing of the decision intended to be made;
(b) seek the Mother’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; and
(d) advise the Mother in writing as soon as reasonably practicable of her ultimate decision.
The Father will consult with the Mother about any decision to be made in the exercise of his sole parental responsibility in the following circumstances:
(a) only whilst the Mother may be incarcerated and the Father is aware of any incarceration, he will consult by letter posted to the place of the Mother’s incarceration; and
(b) ordinarily (when the Mother is not incarcerated), and only if the Mother has kept the Father informed of a current operational email address, he will consult with her by email exchange.
In exercising his sole parental responsibility the Father will consult by email with the Mother on issues including the child’s:
(a) health (excluding care decisions regarding minor childhood illnesses);
(b) education including which school the child will attend;
(c) religion; and
(d) any proposal to relocate the residence of the child that makes it practically difficult for the Mother or maternal family to spend time with the child pursuant to these orders.
Living arrangements
The child live with the Father.
Child’s time and communication with his Mother
The child spend time and communicate with his Mother at all times as agreed in writing between the parents, but failing agreement, as set out below:
(a) if the Mother contacts the F Town Children’s Contact Centre (“FCCC”), as can be accommodated by the FCCC, and by arrangement made by the FCCC, supervised for up to two (2) hours every fortnight with there to be at least one period of a whole month each year allowing for the child and the Father’s family to go on a holiday without interruption of supervised time;
(b) both parties are to comply with any rules or reasonable direction of the FCCC and should either party fail to attend supervised time or attend unreasonably late on more than two (2) occasions after previously confirming attendance, then the FCCC is at liberty to cease supervised time;
(c) the Mother must confirm her attendance at any arranged supervised time at the FCCC by telephoning the FCCC the day prior to any supervised time or that time will not proceed and there will not be any make-up time; and
(d) to be clear, other than supervised time, the Father if he chooses, may agree to the Mother spending time with the child on any other basis he sees fit particularly as circumstances may change and the child matures.
The Mother be at liberty, if she is able, to telephone the child up to three (3) days each week between the hours of 5:30 pm and 6:00 pm to telephone number 0415 651 419. If the child is available and willing to talk to the Mother, the Father or his wife (Ms Carlton), are to facilitate the child talking to the Mother for as long as the child wishes to during this half hour. The Father and his wife are at liberty to monitor the telephone conversation and end the call if the Mother is upsetting the child due to inappropriate conversation.
The Mother be at liberty to communicate with the child in writing at an address as nominated by the Father from time to time, and the Father shall ensure all written communication will be provided to the child.
The Father shall encourage and facilitate the child to write to the Mother and will ensure that such communication is sent to the Mother’s address as nominated by the Mother from time to time.
Only during any period or periods when the Mother is incarcerated and the Father is aware of any incarceration, he will ensure that the Mother is provided by post to the place of her incarceration:
(a) four (4) new photographs of the child each six (6) months;
(b) copies of any new school report cards in relation to the child; and
(c) at least once every six (6) months a brief one page update about the child’s general progress from the Father’s point of view covering issues such as behaviour and activities engaged in by the child.
Child’s time with the maternal family
In respect of any period or periods whilst the Mother is incarcerated and commencing on the second weekend after Ms E has explained the Mother’s incarceration to the child pursuant to paragraph (2) hereof, the child will spend time with the maternal grandparents on one weekend every eight (8) weeks (eight (8) week period) from 5:00 pm on Friday until 3:00 pm on Sunday with changeover to occur at McDonalds Restaurant at G Town.
The time the child spends with the maternal grandparents provided for in the preceding order will only occur provided the maternal grandparents have contacted the Father or his wife one week prior to the scheduled time to confirm they wish to proceed with spending time with the child. If they fail to confirm that they wish to spend time with the child then the Father does not have to facilitate any time with the maternal grandparents on that occasion and the eight (8) week period re-starts.
Information
Both parents authorise any treating medical practitioner or allied health professional to discuss the child’s health or medical information with the other parent and to release any written form of the child’s medical information to the other parent and that these orders operate as an authority to such practitioners and professionals to provide at each parent’s request, and at their cost, such medical information.
Both parents authorise any school the child attends to discuss the child’s progress with the other parent and to release any written form of the child’s educational information to the other parent including matters such as school newsletters and school reports and that these orders operate as an authority for any school the child attends to provide to the requesting parent, at that parent’s cost, all information reports, photographs and authorities which the parent maybe requesting.
Both parents are at liberty to attend parent-teacher interviews, extra-curricular and school events to which parents are invited.
That both parents will advise the other as soon as practicable of any serious illness or accident suffered to the child whilst in their care and will advise of any prescribed medical treatment.
That these orders authorise any doctor, hospital, counsellor and/or health professional by its appropriate officer, to furnish both parents with any information that they may require concerning the child at the cost of the requesting parent.
That this order authorises the child’s schools/day care provider to provide both parents with copies of all school reports, school photographs (at the requesting parent’s expense) and/or any other document regarding the academic progress and/or achievements of the child and notification of such events such as
parent-teacher meetings, sports days, concerts and any extra-curricular events/activities attended by the child and both parents will be at liberty to attend any such events.
Miscellaneous
That during the time the child is with either parent, that parent shall:
(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of the other parent respectfully; and
(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the parties be restrained from:
(a) consuming illicit substances at any time;
(b) being intoxicated or otherwise under the influence of any substance whilst having care of the child; and
(c) allowing the child to come into direct or indirect contact with any person about to consume, consuming or under the influence of illicit substances.
Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) leave is given to the ICL to publish to the maternal grandparents, Ms H MacDougall and Mr I MacDougall, these orders and the Reasons for Judgment of Justice Kent delivered on 31 August 2015 and the ICL is directed to so publish them.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.
NOTATION:
A.It is the parents’ intention that during any period or periods of the Mother being detained or incarcerated the maternal grandparents shall facilitate a visit between the Mother and the child, as can be appropriately facilitated by the place of incarceration or detention, during times that the child is in their care.
B.The Mother nominated her current email address as although it is also noted that she does not have access to email whilst incarcerated.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlton & MacDougall (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9488 of 2012
| Mr Carlton |
Applicant
And
| Ms MacDougall |
Respondent
REASONS FOR JUDGMENT
B born in 2006 and now aged almost eight years and ten months (“the child”) is the subject of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The child’s father, Mr Carlton (born in 1985 and now aged 30 years) (“the father”) instituted these proceedings in the Federal Circuit Court on 22 October 2012 at a time when the child was primarily living with his mother, Ms MacDougall (born in 1987 and now aged 27 years) (“the mother”).
The parents met in late 2002; commenced cohabitation in January 2003; and finally separated in October 2009 after a period of cohabitation of about six years and nine months. At the time of the parents’ separation the child was not quite three years of age.
The parents have given differing accounts from time to time about the caring arrangements for the child subsequent to their separation in October 2009 as to the extent to which each of them undertook that care or in respect of periods when the child was living with either parent.
Overall following the parents’ separation in October 2009 the child initially primarily lived with the mother until 2 March 2014 when he commenced to primarily live with the father. A significant feature in the mother’s history is that following separation in October 2009 the mother was in a domestically violent relationship with one Mr J for some three and a half years.
A central underlying issue in these proceedings concerns the stability of circumstances the mother is capable of providing for the child.
In particular, evidence of the mother’s unstable lifestyle in association with her unstable relationships post-separation of the parents; her instability concerning accommodation and changes of geographical locations for herself and the child; her possible mental health issues and substance misuse issues; and her apparent inability to ensure that the child was continuously enrolled in school and attended school, have historically loomed large.
These issues were amongst the relevant issues leading to the appointment of an Independent Children’s Lawyer (“ICL”) to independently represent the child’s interests in the proceedings pursuant to s 68L of the Act.
On 3 February 2015 the proceedings came before me at a callover for the purpose of setting matters down for trial. These proceedings were set down for a three day trial commencing on 24 August 2015. On 3 August 2015 the
pre-trial mention of these proceedings came before me. At that mention the mother failed to appear in person and was unable to be contacted by telephone.
At that hearing the legal representative for the father and for the ICL informed the Court that information had been obtained through publication in a F Town newspaper that on 17 July 2015 the mother had been arrested on a series of criminal charges, including charges of armed robbery. It was subsequently confirmed on inquiry by the Court that the mother was being held in detention at the C Correctional Centre. No notice to that effect had been received by the Court from the mother.
Arrangements were made between the Court and the C Correctional Centre for the mother to attend in person at the final hearing of these proceedings on 24 August 2015 with an order to that effect being made in chambers on 14 August 2015.
Exhibit 2 in these proceedings are documents obtained on subpoena in response to a subpoena served on the Commissioner of the Queensland Police Service.
Taken from Exhibit 2 the mother was arrested and taken into custody and charged with a number of criminal offences alleged to have been committed on or about 11 July 2015. It is alleged that these offences were committed by four persons including the mother. The offences alleged include burglary with violence or threats; stealing; assault occasioning bodily harm; robbery and deprivation of liberty. As described in Exhibit 2, the alleged offences constitute a home invasion during which the occupant of the home was tied up whilst the four persons involved, allegedly including the mother, have allegedly robbed the victim by stealing numerous household items as well as the victim’s motor vehicle.
In advance of the trial on 24 August 2015, communication was received from the mother to the effect that she intended to apply for bail in respect of these offences on Friday 21 August 2015. In the event, the mother did not obtain bail and as at the commencement of the trial on 24 August 2015 the mother attended Court in the custody of Correctional Officers.
For reasons delivered ex tempore at the outset of the trial I refused the mother’s oral application then for an adjournment of these proceedings for “a couple of months”. In summary, conscious that these proceedings have been on foot for almost three years; and the mother was unable to provide any information as to when the trial of her criminal charges will take place in the District Court; or information as to the likelihood of her obtaining bail pending her trial; I concluded it would not be in the child’s best interests to delay the finalisation of these proceedings. As I noted in my ex tempore reasons, uncertainties surrounding the mother in terms of her stability of circumstances has long been an evident feature and in her current circumstances it is unknown when that position will improve by reason of the finalisation of her criminal proceedings.
Given the mother’s current circumstances, particularly as regards the uncertainties surrounding her criminal charges; current incarceration and potential future incarceration if she is convicted; the primary focus of these trial proceedings are the orders for time and communication for the child to spend with the mother given these circumstances. That is, it could not be said that an order for the child to live with the mother now or at some indeterminate time in the future is a realistic option and the focus of the inquiry is necessarily upon parenting arrangements given the reality of the mother’s circumstances.
Central events and care arrangements post-separation
The father’s evidence, which I accept in this respect, is that on 16 January 2010 the mother contacted the father, stating that she had been physically assaulted by her then partner Mr J, and requested the father take sole care of the child.
The child remained in the father’s care with one visit with the mother until 8 February 2010. The father states that on this occasion the mother was spending time with the child at a park in D Town, where 10 minutes into the visit with the child she “… started running off with [the child] to her vehicle and threw him into the front seat.”[1] When the father attempted to retrieve the child from the vehicle, the father alleges that he was attacked from behind by the mother’s sister Ms K and two males, including Mr J. It is alleged that the mother’s sister Ms L then drove away with the child in the vehicle. The father is said to have reported this incident to the D Town police, however no charges were made against the mother or other persons. It is asserted that the mother admitted this assault approximately 18 months after the incident took place.
[1] Father’s affidavit filed 29 August 2014 at paragraph 33.
From 8 February 2010 to 30 September 2011 the child spent time with the father for “9-12 nights per month” at the mother’s sole discretion and with the father travelling to collect and drop off the child.[2]
[2] Father’s affidavit filed 29 August 2014 at paragraph 35.
On 7 September 2011 the parents had a Legal Aid funded conference and a parenting plan was agreed to and documented.[3] This agreement provided for the father to have time with the child for one week per month (Saturday to Saturday) and one weekend per month (Friday to Sunday) until the child commenced school, however it is the father’s position that the mother failed to adhere to the terms of the agreement and he only spent approximately
70 per cent of his agreed time with the child.
[3] Father’s affidavit filed 29 August 2014 at paragraph 37 and Annexure “NC1”.
Once the child commenced school (which was in 2012), the parenting plan provided for the father to spend time with the child for two weekends out of every three and half of the school holiday period. It is asserted that the mother abided by the agreement throughout term 1 with one exception, however starting in term 2 (May 2012) the mother unilaterally changed the child’s school and did not allow the father to spend time with the child in accordance with the agreement. The father deposes to spending every second weekend with the child “at best” as opposed to the two weekends out of every three.
From May 2012 the mother refused to tell the father where she and the child were living.
As a result of the mother’s non-compliance with the parenting agreement, the father applied to the Court and consent orders were entered into on 19 December 2012 which provided for the child to spend from 9.00 am to 5.00 pm with the father on Saturdays, with changeover occurring at a contact centre.
The father deposes, and I accept, that between Christmas 2012 and January 2013 he had received a telephone call from the mother of Mr J who stated that the mother and child had been living with her, which she was allowing on a short-term basis due to the mother and child previously sleeping in the mother’s car. Ms J is also said to have told the father that the mother and Mr J were using drugs and alcohol on a daily basis, had recently committed criminal offences, and that the child was being left to be cared for solely by Ms J. The father also deposes to having received a telephone call from an “anonymous male” who stated that the mother was under investigation by police for criminal behaviour and drug dealing, and that the child was not being cared for.[4] Subsequently on 12 January 2013 the father retained the child after concerns for his wellbeing, and upon receiving advice from his solicitor.
[4] Father’s affidavit filed 19 August 2014 at paragraphs 51-52.
On 14 January 2013 orders were made by Federal Magistrate Spelleken (as her Honour then was), inter alia, that the child be returned to the mother’s care. These orders were made upon the release of a Memorandum to Court of family consultant Ms M, dated 14 January 2013, who conducted a Child Inclusive Conference. That Memorandum is Exhibit 1 in these proceedings.
On 14 February 2013 Federal Magistrate Spelleken ordered that the father spend time with the child for two out of three weekends on a three week cycle. By consent it was ordered that the child was to remain enrolled at N School and that the mother would ensure attendance unless a medical certificate was provided.
On 3 May 2013 orders were made in similar terms, with additional orders for drug testing at the request of the ICL and for the mother to file material in response.
Following the orders of 3 May 2013 the child spent two out of three weekends with the father, with the father or Ms Carlton (the father’s wife) collecting the child from school and returning him to the mother on Sunday at 5.00 pm at the park opposite the G Town Police Station.
On 15 July 2013 the proceedings were transferred to the Family Court of Australia by order of Judge Coates.
The child was not returned to the father’s care on Boxing Day 2013 in accordance with the parenting orders, and was only returned on 28 December 2013 as the mother could not get a lift to G Town.
On 7 January 2014 Ms Carlton telephoned the maternal grandmother (Ms H MacDougall) as the mother failed to attend the agreed drop-off location. Ms Carlton was informed that the mother and child were no longer residing with the maternal grandmother, which was recommended by Ms E, the family report writer. The mother subsequently attended to collect the child.
On 2 February 2014 the mother failed to collect the child from the drop-off location. The father contacted the maternal grandmother who informed the father that she does not know where the mother and child are living, and that she would prefer for the child to be in his care. The father states that the grandmother was of the opinion that “[Ms MacDougall] [the mother] might turn up deceased before she gets her life on track.”[5]
[5] Father’s affidavit filed 29 August 2015 at paragraph 72.
On 9 February 2014 when the father delivered the child to the drop-off location, the mother was witnessed to be having a verbal altercation with her then partner Mr O, who had driven her to collect the child. The father asserts, and I accept, that the mother said Mr O was a “fuckhead” in front of the child.
On 21 February 2014 Ms Carlton collected the child from the maternal grandmother, and the child told the father that he was still not going to school.
On 28 February 2014 the maternal grandmother informed Ms Carlton that the mother and child have relocated to P Town to live with the mother’s cousin, Ms Q. Ms L, the maternal aunt, collected the child and took him to the maternal grandmother’s house where Ms Carlton collected the child.
On 2 March 2014 the father contacted Ms Q by text message enquiring about the mother’s living arrangements. Ms Q replied by text stating that the child is enrolled at R School, and the mother had been “smashed off her head” and “didn’t have a care in the world about [the child]”, so she contacted the maternal grandmother to arrange for the child to be available for the father’s scheduled time with him.[6] The father then decided to not return the child to the mother’s care and the mother is alleged to have become abusive. This behaviour is denied by the mother in the family report filed 30 January 2015 at paragraph 8.8.
[6] Father’s affidavit filed 29 August 2015 at paragraph 88.
6 March 2014 the mother telephoned the child and stated she was coming to collect him, and going to be taking him on a big holiday away from everyone. The father asserts that this distressed the child.
On 13 March 2014 Acting Principal Registrar Spink ordered that the child remain in the father’s care and attend S School. No time was ordered with mother, other than agreed. An agreement was entered into between the mother and father for the mother to have every second Sunday from 10.00 am to 2.00 pm with the child at the maternal grandparents’ house in T Town, supervised by the maternal grandmother. The first visit under this agreement was on 16 March 2014, where the mother attempted to remove the child from the house and the father was notified by the maternal grandfather (Mr I MacDougall). When the father arrived the police were in attendance at the home of the maternal grandparents. The father was told that he would have to make an urgent application to the Court for a recovery order.
The father subsequently contacted R School and spoke with the principal, who advised the father that the mother had contacted her and would be attending at the school for an interview. The father explained that the child was to be in his sole care and enrolled at S School by order of the Court. Sealed copies of the orders were provided to the school on 18 March 2014, and the father and principal arranged for the father to collect the child from the school without the mother’s knowledge. The principal is said to have explained the orders to the child, after which he willingly left with the father. The father informed the mother by text message that he had collected the child pursuant to the Court orders, and the mother left an abusive voice message in reply.
On 30 April 2014 Acting Principal Registrar Spink delivered his Reasons and made interim orders for the mother to have supervised contact with the child at the F Town Children’s Contact Centre for a minimum of three months with a view to progressing to limited supervision followed by unsupervised time, and requiring the mother to file material and supply the ICL with drug screen results.
Since the orders of 30 April 2014 the child has remained in the father’s care and spent supervised time with the mother each alternate Sunday from 10.00 am to 12.00 pm at the F Town Children’s Contact Centre, however it is stated that the mother is regularly late for these supervised visits. The mother also has fairly regular contact with the child by telephone.
Issues regarding the child’s schooling
A significant issue agitated by the father in his affidavit filed 29 August 2014 is that the mother failed to ensure that the child was enrolled and attending schools at various times when the child was in her care. Below is an outline of the child’s schooling as contained in the father’s affidavit filed 29 August 2015:
a)23 January 2012 – the child commences prep at N School. The initial family report filed 1 November 2013 notes that the child was late to school 22 times;
b)Term 2 (May 2012) – the mother unilaterally changes the child’s school to U School. The father was not informed of this decision and in week two of the school term was informed by N School that the child was no longer enrolled. The father states that he only found out what school the child was attending when he saw a library book from U School. The initial family report filed 1 November 2013 notes the child missed 22 days of school due to illness, 14 days of “other missed” school (indicating that the child was kept at home) and 15 late arrivals at school. Further, the child’s last day of school was 6 November 2012, which means that he was absent for a further 38 days of school. As outlined below, it is alleged the child was sexually assaulted on 6 November 2012 by the mother’s former landlord;
c)18 January 2013 – the child is re-enrolled at N School and had not attended any school since November 2012. Orders were made on 14 February 2013 that the child must attend school unless a medical certificate is produced and must remain enrolled at N School;
d)30 January 2014 – the father was informed by N School that the child is no longer enrolled there, which is in breach of the orders of 14 February 2013. The mother reportedly told the father that she was going to enrol the child at V School, F Town;
e)1 to 7 February 2014 – the child attends S School via D Town on temporary enrolment, as arranged with Queensland Education. The child’s step-siblings also attend this school. The child was in the father’s care for this period of time due to the mother’s failure/inability to collect the child from the changeover location;
f)27 February 2014 – mother enrols the child at R School;
g)From 2 March 2014 – the child attends S School until he is retained by the mother on 16 March 2014;
h)18 March 2014 – the child attends R School. As outlined above, the father had contacted the principal of the school and provided a copy of the sealed orders. The principal arranged for the father to collect the child on 18 March 2014 without the mother’s knowledge;
i)After collecting the child from R School on 18 March 2014, the child has remained enrolled at and attending S School. On 30 April 2014 it was ordered that the child remain enrolled at this school.
In his affidavit the father details that the child is behind in his schooling. At the date of the affidavit, last year, the child was enrolled in year 2 however was completing year 1 work in accordance with an individual student plan. The child also has extra teacher aide help at all times.
The father details that the child participates in sport and eisteddfod activities at the school and has made many friends. Ms Carlton is also involved in assisting the child with his schooling and she is actively involved in the school community.
Upon the recommendation of the school, the child was taken to an optometrist on 18 July 2014 to undertake a behavioural eye test appointment. It was concluded that the child is required to wear glasses while doing his school work, which the father and Ms Carlton ensure that he is doing. The affidavit also details that the school requested that the child have his hearing checked, with the appointment to take place on Thursday 28 August 2014. No updating information has been filed by the father in this regard; however in the family report filed 30 January 2015 Ms Carlton reports that the child’s hearing is fine.
Concerns for the child’s care
Throughout the father’s affidavit he details many concerns that he has for the child’s welfare when he is in the care of the mother.
The father deposes that he has been told by the child’s previous school that he was regularly absent, as outlined above. The child is also said to have told the father that he was attending school in “free dress” and did not have any uniforms. Since being in the father’s care, the father states that he has purchased uniforms and school supplies for the child.
In relation to the child’s health, the father deposes that he noticed three black holes in the child’s teeth, which was raised with the mother as the dentist in D Town was not open on the weekend for the father to take the child. The father became aware of this in 2012, and the first time he became aware of the mother taking the child to the dentist was at the end of 2013 when the child told the father he had two out of four fillings done. On 7 April 2012 the father also noticed a wound on the child’s left outer ankle and took the child to the doctor for examination. The wound was diagnosed as a staph infection and ointment as well as oral antibiotics needed to be administered. When the mother was informed of the infection she is said to have called the father a liar, so the father arranged for the medical centre to telephone the mother and send her a copy of the prescription. The wound healed by the time the father next saw the child, so it is assumed that the mother provided the prescribed medication to the child.[7]
[7] Father’s affidavit filed 29 August 2014 at paragraphs 47-48.
The father maintains that he is concerned that the mother and other people were using illicit drugs while the child was in her care and in the child’s presence. The father states that at the end of May 2012 the child had a burn on his left thumb. The child told the father that it had been a blister that the mother had popped, and he burnt it on the end of the mother and Mr J’s “bong” and spilt water everywhere.[8] The orders of 3 May 2013 required the mother to provide the ICL with drug screen results at the discretion of the ICL, however in her affidavit of 7 November 2014 and the chronology contained in the Case Information document filed 6 August 2015, the ICL outlines that the mother has consistently failed to provide any results on request. The ICL requested the father provide a random drug test on 14 July 2014. The father’s clear results were received by the ICL on 15 July 2014.[9]
[8] Father’s affidavit filed 29 August 2014 at paragraph 44.
[9] ICL’s affidavit filed 7 November 2014.
The father deposes that the child had bruises on his legs, and told the father that it was from Mr J playing “dead legs” with him, which involved Mr J punching/hitting the child in the leg. The father was also concerned about the child being exposed to Mr J after being informed that he had assaulted the mother.
The father details in his affidavit that the mother was also involved in a break and enter in early 2014, where she broke into a house and was living there with the child. The mother states to the family report writer that the owner’s son gave her permission to stay at the residence with the child and a friend, however is unable to remember their name. The mother reports she was convicted and fined $300.00 for this offence.
As outlined above, the father deposes that he was told by Ms J (the mother of Mr J, with whom the mother was previously in a relationship) that the mother and child had been sleeping in the mother’s car, and for this reason she had agreed for the mother and child to stay with her on a short-term basis.[10]
[10] Father’s affidavit filed 29 August 2014 at paragraph 51.
In the initial family report filed 1 November 2013 the mother reports that the child was sexually abused by the mother’s previous landlord on 6 November 2012 and the incident was reported to the W Town police, however the alleged perpetrator died on 13 November 2012 and the matter was therefore finalised. The mother also reports that Ms Carlton’s two children from a previous relationship involved the child in inappropriate sexual games in March 2011 and November 2012 at the father’s home. This is denied by the father and Ms Carlton.
The initial family report filed 1 November 2013 notes that there is a history of Department of Communities, Child Safety and Disability Services (“DoCS”) notifications in relation to the child, including allegations that the mother is unfit to care for the child due to substance abuse and domestic violence issues involving her ex-partner Mr J. No action has been taken by DoCS as all information was hearsay and there was no supporting evidence to warrant an investigation.
Mother’s failure to comply with orders and directions for trial
A consistent and troubling feature of the mother’s conduct throughout these proceedings has been her failure to comply, on numerous occasions, with orders and directions made either by the Federal Circuit Court or by this Court for the parties to file material.
On 15 July 2013 Judge Coates made orders in the Federal Circuit Court which, apart from an order transferring these proceedings to this Court, included orders for the mother to file and serve a Response and supporting affidavit. The mother did not comply with that order.
Registrar Coutts made an order on 19 September 2013 for the mother to file and serve a Response by 24 October 2013. The mother did not comply with that order.
On 6 February 2014 Registrar Coutts made a series of orders and directions designed to advance the matter towards a trial including for the parties to file material. At that stage the mother had failed to attend a Legal Aid conference arranged for 4 February 2014 and indeed had not collected the child from the father on 2 February 2014 pursuant to interim orders that had been made on 3 May 2013. Registrar Coutts listed the matter before the Principal Registrar giving the father liberty to apply for final parenting orders on an undefended basis.
The mother did appear before the Acting Principal Registrar on 13 March 2014 when again a series of orders were made for the mother to file material. In the event consent orders were made on 4 April 2014 for the child to continue to live with the father and attend the school in D Town where he had been enrolled by the father. It was ordered by consent that the mother spend time with the child at a contact centre.
The Acting Principal Registrar afforded the mother the opportunity, by the making of directions on 4 April 2014, to file material for a further hearing on 30 April 2014. However, this, the mother again failed to do and further orders were made on 30 April 2014. Under those orders the child lives with the father and orders were made for the child to spend time and communicate with the mother with such time to be spent at a contact centre.
The interim orders made on 4 April 2014 remained the operative interim orders pending the trial of these proceedings.
On 22 May 2014 Registrar Coutts made further orders and directions to ready these proceedings for trial including directions as to the filing of trial affidavits and affidavits by any relevant witness. Again, the mother failed to comply with these orders and directions.
At a compliance mention on 4 September 2014 Registrar Coutts yet again made directions and orders for the mother to file material. The mother had filed, on 7 August 2014, an affidavit but she did not comply with the further orders made on 4 September 2014 for the filing of her Response or the results of ordered drug tests.
On 24 November 2014 Registrar Coutts made further orders and directions for the filing by the mother of her trial material as specified in that order. The mother only partially complied with those orders and directions by the filing of a document described as a “Case Outline” on 22 December 2014. The mother has filed nothing in these proceedings since 22 December 2014.
Child’s current living circumstances
As already noted, the child has been living with the father since March 2014 and interim orders formalising the current position were made on 4 April 2014.
The father has now for a significant period been in consistent employment as a mechanic in D Town.
The father lives in D Town with his partner Ms Carlton (nee X) whom he married in 2013. Ms Carlton is aged 30 years and has two children of a previous relationship primarily resident with her namely a boy Y aged eight years (born 2007) and a girl Z aged six years (born January 2009).
The father and Ms Carlton have two children of their relationship namely AA aged three years (born in 2012) and BB aged one year (born in 2014).
Thus the child has been part of the father’s household since 2 March 2014, a household comprising the father and Ms Carlton; their children AA and BB; and the father’s step-children (Ms Carlton’s children) Y and Z.
The father has progressed in his employment to being employed as a head mechanic supervising two other staff on a farming enterprise at D Town.
The child has been attending the S School since early 2014 and that is the same school where the father’s step-children attend.
Proposals of the parties
At the conclusion of the evidence at trial and in the course of submissions the Court sought that each of the father and the ICL provide minutes of orders reflecting their respective final positions as to the parenting orders to be made; given in particular that it became evident during submissions that some variations or alterations of previously stated or documented positions was evident.
In particular, each of the father and the ICL actively sought to accommodate the position of the child having the opportunity to have face-to-face time with the mother even if she remained incarcerated; based upon the recommendation of the family report writer, Ms E, psychologist, to that effect given in oral evidence as will be discussed.
Whilst the maternal grandparents are not parties to these proceedings they participated in the family report writer’s enquiries and the maternal grandparents were identified by the mother and indeed by Ms E as a prospective avenue to facilitate time between the child and the mother, whilst she is incarcerated.
At the conclusion of submissions directions were made for each of the father and the ICL to provide written minutes of proposed orders and for these to be provided by the ICL to the mother.
For the record, admitted and marked Exhibit 3 are the proposed minutes of orders received from the father. Admitted and marked Exhibit 4 are the proposed minutes of orders received from the ICL.
The father’s and the ICL’s proposed orders
The father’s proposed orders are set out as follows (errors as in original):
1. All previous parenting orders are discharged.
Living Arrangements
2.The child [B] born … 2006 (the child) live with the father ([Mr Carlton] born … 1985).
Parental Responsibility
3. The father have sole parental responsibility for the child.
4.The father will consult with the mother ([Ms MacDougall]) about any decision to be made in the exercise of his sole parental responsibility in the following circumstances:
a.Only whilst the mother maybe incarcerated and the father is aware of any incarceration, he will consult by letter posted to the place of the mother’s incarceration; and
b.Ordinarily (when the mother is not incarcerated), and only if the mother has kept the father informed of a current operational email address, he will consult with her by email exchange.
5.In exercising his sole parental responsibility the father will consult by email with her on issues including the child’s:
a.Health (excluding care decisions regarding minor childhood illnesses);
b. education including which school the child will attend;
c. religion; and
d.any proposal to relocate the residence of the child that makes it practically difficult for the mother or maternal family to spend time with the child pursuant to these Orders.
Child’s time with his mother
6.The child spend time and communicate with his mother at all times as agreed between the parents, but failing agreement, as set out below:
a.If the mother contacts the [F Town] Children’s Contact Centre ([FCCC]), as can be accommodated by the [FCCC], and by arrangement made by the [FCCC], supervised for up to two hours every fortnight with there to be at least one period of a whole month each year allowing the for the child and the father’s family to go on a holiday without interruption of supervised time.
b.Both parties are to comply with any rules or reasonable direction of the [FCCC] and should either party fail to attend supervised time or attend unreasonably late on more than two occasions after previously confirming attendance, then the [FCCC] is at liberty to cease supervised time.
c.The mother must confirm her attendance at any arranged supervised time at the [FCCC] by telephoning the [FCCC] the day prior to any supervised time or that time will not proceed and there will not be any make-up time.
d.To be clear, other than supervised time, the father if he chooses, may agree to the mother spending time with the child on any other basis he sees fit particularly as circumstances may change and the child matures.
7.The mother be at liberty, if she is able, to telephone the child up to three days each week between the hours 5:30pm and 6pm to telephone number …. If the child is available and willing to talk to the mother the father, or his wife ([Ms Carlton]), are to facilitate the child talking to the mother for as long as the child wishes to during this half-hour. The father and his wife are at liberty to monitor the telephone conversation and end the call if the mother is upsetting the child due to inappropriate conversation.
Information Provisions
8.The father will ensure that the child is made available to Ms E (psychologist and family report writer) for the purpose of Ms E explaining the mother’s incarceration to the child as Ms E in an age appropriate way as she sees fit.
9.Both parents authorize any treating medical practitioner or allied health professional to discuss the child’s health or medical information with the other parent and to release any written form of the child’s medical information to the other parent and that these Orders operate as an authority to such practitioners and professionals to provide at each parents request, and at their cost, such medical information.
10.Both parents authorize any school the child attends to discuss the child’s progress with the other parent and to release any written form of the child’s educational information to the other parent including matters such as school newsletters and school reports and that these Orders operate as an authority for any school the child attends to provide to the requesting parent, at that parent’s cost, all information reports, photographs and authorities which the parent maybe requesting.
11.Both parents are at liberty to attend parent-teacher interviews, extra-curricular and school events to which parents are invited.
12.Only whilst the mother maybe incarcerated and the father is aware of any incarceration, he will ensure that the mother is provided by post to the place of her incarceration:
a. Four new photographs of the child each six months;
b.Copies of any new school report cards in relation to the child; and
c.At least once every six months a brief one page update about the child’s general progress from father’s point of view covering issues such as behaviour and activities engaged in by the child.
Child’s time with the maternal family
13.Only whilst the mother is incarcerated and [Ms E] has explained the mother’s incarceration to the child pursuant to Order 8, the child will spend time with the maternal grandparents on one weekend every eight weeks (eight week period) from 5pm on Friday until 3:00 pm on Sunday with changeover to occur at McDonalds Restaurant at [G Town].
14.The time the child spends with the maternal grandparents provided for in the preceding order will only occur provided the maternal grandparents have contacted father or his wife one week prior to the scheduled time to confirm they wish to proceed with spending time with the child. If they fail to confirm that they wish to spend time child then the father does not have to facilitate any time with the maternal grandparents on that occasion and the eight-week period re-starts.
Miscellaneous Orders
15.Neither parent will denigrate the other in the presence of the child and will immediately remove the child from any third party denigrating the other parent.
16.The father will if he or his wife are contacted by any place incarcerating the mother, do all things necessary to facilitate the mother being able to spend time with the child (either by telephone or with the assistance of the maternal family during the time the child is with them pursuant to Order 13).
NOTES
A.The purpose of the child spending time with the maternal family as set out in Orders 13 & 14 is for the maternal family arranging, if they choose to and it can be accommodated and arranged with the place of the mother’s incarceration during any period the child spending time with them, for the child to spend time with the mother at the place of her incarceration.
B.The mother nominated her current email address as … during the trial although it is also noted that she does not have access to email whilst incarcerated.
C.When the mother is released from incarceration the time that the child spends with the maternal grandparents will be a matter for the father.
The ICL’s proposed orders are set out as follows (errors as in original):
1. That all previous Orders are discharged.
2.That the Father have sole parental responsibility in respect of all major long-term issues in respect of the child [B] born … 2006, save that the Father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the Mother in writing of the decision intended to be made;
(b) Seek the Mother’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; and
(d)Advise the Mother in writing as soon as reasonably practicable of her ultimate decision.
3. That the child live with the Father.
4.That the Father communicate with the Mother in relation to decisions to be made in accordance with Order 2 herein, such communication occur in writing at such an address/email address as nominated by the Mother from time to time.
5.That both parents keep the other informed of a contact address, telephone number and email address and notify the other of any change to those details within forty-eight (48) hours of any change.
6.The child spend time and communicate with the Mother at all times as agreed between the parents, but failing agreement, as set out below:
(a)If the Mother contacts the [F] Town Children’s Contact Centre ([FCCC]), as can be accommodated by the [FCCC], and by arrangement made by the [FCCC], supervised for up to two hours every fortnight with there to be at least one period of a whole month each year allowing the for the child and the father’s family to go on a holiday without interruption of supervised time.
(b)Both parties are to comply with any rules or reasonable direction of the [FCCC] and should the Mother fail to attend supervised time or attend unreasonably late on more than two occasions after previously confirming attendance, then the [FCCC] is at liberty to cease supervised time.
(c)The Mother must confirm her attendance at any arranged supervised time at the [FCCC] by telephoning the [FCCC] the day prior to any supervised time or that time will not proceed and there will not be any make-up time.
7.That the Mother be at liberty to initiate a telephone call to the child up to three (3) times per week with the call to be made between 4:00pm and 4:30pm and continue as long as the child is prepared to talk. That the Father do all things as required by the correctional centre to enable such telephone calls to occur.
8.That the Mother be at liberty to communicate with the child in writing at an address as nominated by the Father from time to time, and the Father shall ensure all written communication will be provided to the child.
9.That the Father shall encourage and facilitate the child to write to the Mother and will ensure that such communication is sent to the Mother’s address as nominated by the Mother from time to time.
10.That both parents will advise the other as soon as practicable of any serious illness or accident suffered to the child whilst in their care and will advise of any prescribed medical treatment.
11.That these Orders authorise any doctor, hospital, counsellor and/or health professional by its appropriate officer, to furnish both parents with any information that they may require concerning the child at the cost of the requesting parent.
12.That this Order authorises the child’s schools/day care provider to provide both parents with copies of all school reports, school photographs (at the requesting parent’s expense) and/or any other document regarding the academic progress and/or achievements of the child and notification of such events such as parent-teacher meetings, sports days, concerts and any extra-curricular events/activities attended by the child and both parents will be at liberty to attend any such events.
13.Only whilst the Mother may be incarcerated and the Father is aware of any incarceration, he will ensure that the Mother is provided by post to the place of her incarceration:
(a) Four new photographs of the child each six months;
(b)Copies of any new school report cards in relation to the child; and
(c)At least once every six months a brief one page update about the child’s general progress from father’s point of view covering issues such as behaviour and activities engaged in by the child.
14.That the Father ensure that the child is made available to [Ms E] as directed by the Independent Children’s Lawyer, for [Ms E] to explain to the child that the Mother is incarcerated.
15.Whilst the Mother is incarcerated and provided [Ms E] has explained the mother’s incarceration to the child pursuant to Order 14, the Father shall make the child available to the Maternal Grandparents on one weekend every eight weeks (eight week period) from 5:00pm on Friday until 3:00pm on Sunday with changeover to occur at McDonalds Restaurant at [G Town].
16.The Father shall notify the Maternal Grandparents within forty-eight (48) hours of the completion of Order 14, with Order 15 to commence the second weekend after notification occurs.
17.To facilitate Order 15, the Father shall confirm changeover arrangements with the Maternal Grandparents seven (7) days prior to changeover.
18.That Order 15 be suspended at all times during which the Mother is not incarcerated.
19. That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
20. That the parties be restrained from:
(a) Consuming illicit substances at any time;
(b)Being intoxicated or otherwise under the influence of any substance whilst having care of the child;
(c)Allowing the child to come into direct or indirect contact with any person about to consume, consuming or under the influence of illicit substances.
NOTATION:
A.It is the parents’ intention that the Maternal Grandparents shall facilitate a visit between the Mother and the child at the prison, as can be appropriately facilitated by the correctional centre, during times that the child is in their care.
B.The mother nominated her current email address as … although it is also noted that she does not have access to email whilst incarcerated.
Mother’s proposed orders
At various stages throughout the trial and during submissions at the conclusion of evidence, the mother advanced the proposition that she is likely to be released on bail in respect of the criminal offences with which she presently stands charged.
The mother also advanced confident assertions to the effect that she would certainly be acquitted of the offences with which she is charged.
The mother may be right about these things. That is, that she may well be released on bail in the near future and she may well ultimately be acquitted of all charges. The difficulty, though, is that no evidence was provided in the mother’s case as to when it is likely a bail application will be considered nor was the mother able to say when it is likely that her criminal trial will take place. It would appear that the mother was recently committed to stand trial in the District Court but the mother could offer no information as to when it is likely her trial is likely to be heard. Moreover, outside of an acquittal on all charges, it is not known from any information the mother provided what likely penalty or sanctions would be imposed for any of the relevant charges (if she is convicted) and thus it is unknown whether the mother will likely escape any period of imprisonment if she is convicted of any of the charges.
The mother emphasised that it was her aim to ultimately obtain parenting orders for the child to live with her. However, the mother recognised that she would not be in a position to advance such an application unless and until her criminal matters were resolved, and resolved in her favour.
In her final submissions, acknowledging her current circumstances, the mother seemed to be accepting of the revised proposals made by each of the father and the ICL as to the provisions for time and communication with her during any period or periods of her incarceration in future; and otherwise with respect to the provisions for time in respect of any period or periods where she is not incarcerated.
In the course of the hearing I explained to the mother that if final parenting orders are made she would likely need to demonstrate in future a substantial enough change in her circumstances if she wished to advance yet another parenting application to a Court exercising jurisdiction under Part VII of the Act for the Court to entertain her application. As these Reasons will demonstrate, it is not simply the current criminal charges that adversely impact upon the mother’s capacity to provide for the child. As already noted, the mother’s capacity to provide stability to the child has long been a feature of this case and the mother’s circumstances subsequent to the parental separation in October 2009.
In summary as to the mother’s position, it did not appear that in her final submissions the mother sought any significantly different parenting orders than those ultimately sought by each of the father and the ICL, when it is understood that each of the father’s and the ICL’s proposed orders would see the child spending face-to-face time with the mother if that is facilitated by her parents via the orders for the time the child is to spend with the maternal grandparents.
Moreover, the mother did not seek different or other orders concerning communication between the child and herself in respect of any period or periods when she is incarcerated as is the case currently. Finally, in the scenario that the mother is released from incarceration, the mother did not seem to actively pursue any orders different from those proposed by each of the father and the ICL for the child’s time and communication with her in that scenario subject to only her general proposition that she would in future seek to agitate, by way of a further application for parenting orders, for her ambition for the child to primarily live with her at some stage in the future.
Statutory framework
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. .
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4) of the Act).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents.
Expert evidence
Ms M, family consultant
Ms M, family consultant, provided a “Memorandum to Court” to the Federal Circuit Court on 14 January 2013. That Memorandum was admitted and marked Exhibit 1 in these proceedings. Ms M was not required for cross-examination by any party.
Ms M received the report from both parents that the child had lived with his mother since the parents separated in October 2009 but she notes “although the parents have not been in agreement about this”. Ms M noted that there was discrepancy as to the time that the child had spent with his father over the period since the parental separation and that attempts to implement a parenting plan in November 2011 was not successful.
The father reported to Ms M that he had retained the child on a visit on Saturday 12 January 2013 on legal advice. Information had apparently been received to the effect that the mother may have been arrested by police in relation to an assault and that the mother’s previous partner “[Mr J]” (a reference to Mr J) had recently been released from a mental health institution.
The mother reported to Ms M that she and the child were currently living with her parents in T Town and that she intended on remaining there for the foreseeable future. The mother reported that she had moved in with her parents approximately two months previously following the ending of her relationship with “[Mr J]”. The mother acknowledged that Mr J had been in a mental health institution from which he had recently been released.
Notably, the mother denied to Ms M that domestic violence was an issue in her relationship with Mr J. She did acknowledge to Ms M that there was a current domestic violence order against Mr J which the Queensland Police had applied for and which she said was in response to a reported verbal argument.
The mother’s statement to this effect to Ms M stands in stark contrast to the evidence she gave in these proceedings. In the course of her evidence the mother acknowledged that the relationship she had with Mr J over the three and a half year period or so following the parental separation was characterised by domestic violence perpetrated by Mr J and the mother acknowledged in her evidence at trial that this would have been traumatic for the child.
It would thus seem clear that when interviewed by Ms M for the purpose of the Memorandum referred to the mother untruthfully minimised the level of domestic violence that prevailed over the years of her relationship with Mr J.
Notably, Ms M recorded that the child spoke positively about both of his parents and was able to describe good things he enjoyed about spending time with each parent. The child expressed to Ms M the wish to be able to spend significant time with each of his parents.
It is clear from the Memorandum of Ms M that the father was already expressing significant concerns about the child’s school attendance. The year 2012 was the child’s preparatory school year and the father reported that the child was missing, routinely, many days of school and absences of blocks of time from school.
As is recorded in the Memorandum, it seems not to be in issue that the child was sexually abused by the mother’s previous landlord in November 2012 which significantly impacted upon the child. It seems that a police investigation was pursued but the alleged perpetrator died obviously bringing an end to that investigation.
The mother raised with Ms M asserted concerns about the child being sexually interfered with when at his father’s house via the father’s
step-children. Ms M seemingly took up the child’s relationship with his step-siblings in the course of her interviews but determined that any expressed complaints of the child appeared to be normal sibling rivalry behaviour.
Ms M assessed that the child would benefit from spending increased time with his father as a means of assisting in strengthening relationships and the child’s role within that family unit. Ms M recommended that such time should include overnight periods and be at a minimum for a full weekend each alternate week.
Ms E, psychologist – family reports
Ms E, psychologist, prepared a detailed family report dated 31 October 2013; an addendum report to her first report which is dated 21 February 2014; and an updated family report dated 30 January 2015. Ms E also gave oral evidence at trial.
Ms E’s curriculum vitae is set out in her affidavits and reports. There is no doubt that Ms E has specialised knowledge based upon her training, study or experience within the meaning of s 79 of the Evidence Act 1995 (Cth) and I am comfortably satisfied that the opinions she expresses in her reports are based upon that specialised knowledge as referred to in s 79.
I am satisfied that Ms E has specialised knowledge of child development and child behaviour within the meaning of subsection (2) of s 79. I record that no party challenged Ms E’s expertise nor indeed was any challenge made to the opinions expressed in any of her reports.
For the purpose of her first family report dated 31 October 2013, Ms E reviewed all of the Court documents available as at that date, including Court orders as well as documents obtained on subpoena. Ms E also undertook a comprehensive round of interviews, not only with the parents and child, but also with Ms Carlton the father’s wife; and with Ms H and Mr I MacDougall the maternal grandparents. Ms E also undertook interviews with relevant school personnel; with the child’s step-siblings and; the F Town Children’s Contact Centre and with the paternal grandmother Ms CC. Ms E’s sources of information for her first family report are set out in section 1 of her report.
In contrast to what she had told Ms M as recorded above about the absence of domestic violence in her relationship with Mr J the mother acknowledged to Ms E in that interview that on 16 February 2012 there was a violent incident perpetrated by Mr J upon herself resulting in a domestic violence protection order being taken out by police.[11]
[11] Paragraph 4.16 of family report of Ms E dated 31 October 2013.
Ms E noted that Mr J has a criminal record and a history of domestic violence orders that have occurred within his relationships. It is plain that the relationship between the mother and Mr J was a domestically violent one and the mother, as earlier noted, acknowledged in her evidence in this trial that it was unreasonable for the child to have been exposed to her relationship with Mr J over the three and a half years that it subsisted given the extent of domestic violence that occurred within that relationship.
At paragraph 4.17 of her first report Ms E sets out her review of the documents subpoenaed from Education Queensland in relation to the child’s school attendance in the 2012 year. She there notes that within a two month enrolment period the child was late to school 22 times. Thereafter he missed 22 days of school due to illness; another further 14 days of “other missed” and 15 late arrivals at school. It is there recorded that the child’s last day of school for the year 2012 was on 6 November 2012 meaning that the child was absent for a further 38 school days.
In relation to Mr J Ms E records this in her report at paragraph 4.18:
4.18Based on the documents from the [DD Town] Base Hospital Mental Health Services dated from 28 November to 5 December 2012 (the date of his Discharge Summary), [Mr J] was hospitalised by an Involuntary Treatment Order as he was experiencing a manic psychotic episode. Whilst hospitalised, [Mr J] was diagnosed with Bipolar Disorder. The Hospital file notes also reported that [Mr J] was a heavy user of illicit drugs, including amphetamines and cannabis, and he has also misused alcohol.
In my judgment it says much about the mother’s instability of lifestyle and instability of living arrangements that she would choose as her partner Mr J for a period of some three and a half years. Plainly she was not only subjected to domestic violence in that relationship (as was the child) but also Mr J’s unstable mental health and his illicit drug use and abuse as well as alcohol abuse.
As at the time of the first report, pursuant to an order made on 3 May 2013 the child was living primarily with his mother and was, by order, to have time with his father for two out of three weekends on a three week cycle. Moreover, the order specified that the child was to remain attending the N School and not be late for school. The mother was directed to provide a medical certificate for any days the child missed school. In addition, at that time, the mother was ordered not to allow the child to have any further contact with Mr J.
It is clear that the mother did not comply with the orders in relation to the child’s continued attendance at the N School.
Nor did the mother comply with the orders for the child’s time with the father.
Ms E details in her first family report the parents’ competing versions as to care arrangements over the period post-separation. As already noted, there are discrepancies between the accounts of each of the parents respectively but in the current circumstances and with the effluxion of time there is no forensic utility in resolving all of those discrepancies for present purposes.
What is relevant is that the father was plainly raising, based upon information he had received from the child, instability in the mother’s life concerning relationships and the treatment that the child received from partners of the mother and more particularly in relation to the child’s exposure to drug use by adults. For example, as is recorded in paragraph 8.18 of Ms E’s report, the child made a statement to the father that he saw the mother “smoking out of a bottle” plainly being a reference to the mother using a bong. To similar effect is the child’s statement that his mother “has got a hose and smoke comes out of it”.
As is recorded in paragraph 8.26 of the first report, the father plainly raised issues concerning the mother’s transience and her frequent changes of accommodation. Related to that is the instability created for the child in having to change schools.
At section 9 of her first report Ms E sets out relevant details concerning her interview with the mother. There are concerning aspects of that. For example, Ms E records in paragraph 9.1 that the mother apparently grew weary of the assessment given to her and did not follow the directions “thus jeopardising the validity of the results”.
In respect of a home visit Ms E found the mother’s behaviour “… very unusual and inappropriate, given the importance of clarifying her point of view for the current [r]eport”. Ms E there records that soon after her arrival the mother left suggesting she would be gone for 10 minutes to look at a house available for rental but was away for nearly two hours. Ms E assessed that the mother’s behaviour was inappropriate and “… did not reflect an understanding of the importance of the current situation”.
The mother recorded to Ms E that she had completed her first affidavit but had not lodged it with the Court. She spoke of an intent to lodge a response affidavit and indeed a second response affidavit together with it. The mother confirmed her awareness to Ms E of the need to file Court material but as already noted the mother has on numerous occasions and over a lengthy period failed to file material in compliance with Court orders.
Ms E records at paragraph 9.22 the mother’s acknowledgement of experiencing depression and having historically been prescribed antidepressant medication.
At paragraph 9.25 it is recorded that the mother reported to Ms E that she ceased marijuana during 2010 but admitted “on rare occasions” that she has had a marijuana cone. She denied being a drug dealer or ever having used heavy illicit drugs such as amphetamines.
I interpolate here that the mother acknowledged in cross-examination that early this year the mother was convicted in the EE Town Magistrates Court of an offence concerning a failure to dispose of a syringe. The mother gave evidence to the effect that on that occasion she was with one Mr FF and that this drug paraphernalia belonged to him and that she had, in effect, taken a conviction on behalf of Mr FF. Her evidence on this topic, and her reasons for so doing, were unconvincing. The mother offered no rational explanation for why it would be that in the context of these proceedings she would be prepared to incur a drug conviction for which she was not responsible in fact. I do not accept the mother’s evidence in this respect. It follows that significant questions attend the mother’s use of drugs and in conjunction with what will be discussed about drug testing there are significant reasons to have doubts about the mother’s denials from time to time that she uses drugs.
I also note here that in March 2014 the mother was convicted in relation to occupancy of a house and that was again a conviction in the EE Town Magistrates Court. On the mother’s version, a friend named Ms GG (whose surname the mother could not recall) in turn had a friend who was temporarily an inmate at the HH Mental Care Facility in F Town. On the mother’s version Ms GG had suggested that the friend had given permission for he and the mother to occupy the home temporarily. The home was apparently owned by the unnamed parents of the unnamed friend. The mother was convicted of an offence in relation to that occupation and suffered a fine.
That is testament to the mother’s instability as at early-2014 and the drug conviction in early-2015 would suggest a continuum of the mother’s instability or at least her undesirable lifestyle choices.
It is also to be noted that in 2013 the mother lost her driver’s licence, initially for driving under the influence of alcohol. Further driving offences including driving without a licence and for driving an unregistered motor vehicle apparently resulted in the mother losing her licence for a two year period from 2013. The mother remains without a licence to drive a motor vehicle currently.
Returning to the first family report of Ms E, it is clear from paragraph 9.32 that the mother has long had difficulties accepting that the father re-partnered with Ms Carlton. Paragraph 9.32 records the mother’s criticisms to the effect that Ms Carlton takes control and directs all around her, including the child.
I interpolate here that Ms Carlton provided an affidavit in the father’s case and was cross-examined. I found her to be an impressive witness. It is clear that she is devoted to the needs of all of the children in her household, including the subject child. It is clear that she has played a role in remedying the child’s delayed educational development largely produced, it would seem, by the mother’s failure to ensure his attendance at school in the period prior to the child coming into the full-time care of the father in early 2014. It is clear that Ms Carlton is motivated to assist all of the children with their educational needs and has ambitions to qualify herself as a teacher’s aide. She assists at the children’s school. In my judgment the mother’s criticisms of Ms Carlton are entirely misplaced and in my assessment Ms Carlton is a very positive influence and source of stability for the child in the father’s household.
I note that in her first family report Ms E made the following assessment of Ms Carlton at paragraph 10.33 as follows:
10.33[Ms X] [Ms Carlton] presented as a responsible, caring person who is committed to making her home the best she can for all family members, including [the child]. [Ms X] and Mr Carlton have been together for four years and [Ms X] appears very committed to their relationship and supporting her husband in the care of his son.
In relation to her mental health, it is to be noted that in the first family report (and elsewhere) the mother has denied ever attempting suicide. However, the father instances an episode of an attempt to commit suicide and it is to be noted that when interviewed the maternal grandmother Ms H MacDougall reported to Ms E that the mother has previously tried to commit suicide.[12] The maternal grandmother reported this episode to be at a point when the mother was very low emotionally and that an ambulance had to be called for the mother.
[12] Paragraph 11.13 of family report of Ms E dated 31 October 2013.
At section 14 of her first family report Ms E reports the outcome of her investigations with relevant school teachers and the school principal concerning the child’s school attendance during 2013. At paragraph 14.4 of her report Ms E records the information that the child had missed 17 days of school between January and September 2013 with nine of those days being unaccounted for by way of any medical certificate. Moreover, Ms E obtained the information that the child had been late (up to 15 minutes late) on some 36 occasions. Notably the teachers reported that the child was significantly below class expectations and that in term 3 of 2013 it was recorded that the child had only completed his homework on four occasions for the term.
At section 18 of her first family report Ms E sets out her evaluation following her interviews of the child and observations of his interactions with the other children in his life.
At paragraph 18.14 of her report Ms E expresses there being no question in her mind that the child was exposed to emotional harm, and possibly placed at risk of physical harm, during the mother’s relationship with Mr J. She assessed the child to be appearing to copy such violence by displaying aggressive language and behaviours in his play and towards others. She recommended (at paragraph 18.15) the child’s attendance at counselling.
In relation to the mother’s drug use and alcohol use Ms E recorded the following in paragraphs 18.19 and 18.20 of her report:
18.19In relation to [Ms MacDougall], she has a history of drug use. Her first drug test indicated some residual of marijuana, while her other test results were clear. Therefore, I recommend that continued random drug/alcohol tests be conducted with [Ms MacDougall] so that she may be monitored and her results can confirm if she is not abusing substances. Research has indicated that chronic marijuana use can impact on parenting in significant ways such as affecting motivation and short-term memory and may trigger paranoia and depression.
18.20In relation to alcohol use, allegations have been made against [Ms MacDougall] but limited information has been provided to support such claims. [Ms MacDougall] has denied that she has a problem with excessive drinking. However, she has stated on two separate occasions that she had two alcoholic drinks, when it appeared she was intoxicated. Firstly, as stated in the Police report (dated 6/11/12) relating to her reporting of the sexual abuse of [the child] when the police stated she appeared intoxicated, and secondly, when fleeing from [Mr J], who had threatened her, and she was charged by police for driving under the influence of alcohol. At that time she lost her licence for 2 months. My concern is whether [Ms MacDougall] has a low tolerance for alcohol, or lacks self-awareness as to the amount of alcohol she is consuming, and her consumption of alcohol can therefore reach a hazardous level. Whichever is the case, [Ms MacDougall’s] alcohol consumption is a concern.
At paragraph 18.23 of her report Ms E records the child’s experience of a lack of stability generated through the mother’s frequent changes of her place of abode. She there expresses concerns as to the mother’s long-term ability to provide the child with safe and stable accommodation and notes that has found to be a major contributor to an individual’s wellbeing.
Notably, at the time of her first report as is recorded at paragraph 18.24 the mother and the child were (at least temporarily) living in a stable home situation with the maternal grandparents. The mother had not re-partnered and the living conditions for both the mother and the child were assessed by Ms E as being very suitable and providing stable accommodation.
That was obviously an important factor in the recommendations ultimately made by Ms E in the first family report as appearing at section 19 of the report. Those recommendations included, then, that the child continue living with the mother but with the recommendation that the mother be required to live in the home of the maternal grandparents for at least 12 months if the mother was unable to find a suitable home in F Town.
Ms E also then recommended that the mother be required to complete random urine tests for a further six months as well as attend domestic violence counselling.
Ms E recommended that the child spend regular alternate weekend (Friday to Sunday) time with the father as well as half school holidays.
Notably, it was only a matter of three months later that Ms E completed her addendum report dated 21 February 2014.
The addendum report was completed against the background that the mother did not attend Court as required on 6 February 2014.
Ms E records in her addendum report significant changes in the short period following her first family report. She records that the child had not been returned to attend the N School as was directed by Court orders and that indeed thus far into 2014 the mother had not enrolled the child into any Queensland state primary school. Ms E also records that the mother left the address of the maternal grandparents in December 2013, within two months of the first family report and the recommendations based upon the mother’s continuation of that accommodation as outlined in the first family report.
Notably in her addendum report Ms E refers to a telephone interview with the mother on 18 February 2014 as follows:
6.1On 18 February 2014 I had a telephone interview with [Ms MacDougall]. She reported that she was living in [EE Town] but would not provide me with her current address or who she was living with. [Ms MacDougall] stated clearly that she did not see the reason why she needed to disclose such information but she would disclose it all when she attends the Family Court in Brisbane on 13 March 2014. Furthermore, [Ms MacDougall] stated that she has genuine reasons for not attending the Family Court on 6 February 2014 and she will inform the Court of her reasons on 13 March 2014.
Ms E took the trouble to make arrangements for the mother to have an opportunity of a face-to-face interview with her so that the mother could explain her circumstances of her apparent failure to meet commitments to the child such as providing stable accommodation, schooling, psychological counselling and being able to routinely attend changeovers. The mother did not meet the arrangements made by Ms E to afford her that opportunity.
At paragraph 6.4 of her addendum report Ms E notes that the mother had suggested in the first round of interviews for the first family report that the mother would be lodging material in the Family Court but Ms E notes that still had not occurred.
The mother asserted that the maternal grandparents had ejected her and the child from their home in December 2013. The mother also asserted to Ms E that her father had removed her car and that she intended to lay a stealing charge against her father.
I interpolate here that the mother’s attempts to explain this in
cross-examination were not credible.
The information Ms E obtained from the maternal grandmother, Ms H MacDougall, as to the mother’s departure from the home of the maternal grandparents in December 2013 is completely at odds with the mother’s version. The version of the maternal grandmother is, I find, more likely to reflect the truth.
Relevant to the proposed orders advanced by the father as to the maternal grandparents having time with the child, there is the following in Ms E’s addendum report at paragraphs 7.6, 7.7 and 7.8:
7.6[Mrs MacDougall] [maternal grandmother] stated that she believes [Mr Carlton] will provide a stable home for [the child] and [the child] will regularly attend school as [the child] did when living with them this year for a brief time. [Mrs MacDougall] stated that she is aware her daughter finds it very difficult without her driving licence and having to rely on other people.
7.7[Mrs MacDougall] reported that she asked [Mr Carlton] if the Courts did grant him full time care of [the child], would she and [Mr I MacDougall] be able to continue to have contact visits with their grandson on a regular basis such as contact visits and telephone calls. [Mrs MacDougall] also reported that she would like [the child] to continue to have contact with all his maternal extended family members as they also love him very much.
7.8[Mrs MacDougall] reported that she has recently spoken to [the child] on the telephone when he was staying at his father’s place. She said that [the child] sounded happy and informed her about going to school. [Mrs MacDougall] stated that she would be happy to telephone [the child] each alternate week to maintain their contact.
In her addendum report Ms E again recommended that the mother continue random drug/alcohol tests.[13]
[13] Paragraph 9.9 of addendum report of Ms E dated 21 February 2014.
Ms E also noted that the child’s lack of stability with the mother, generated by her frequent changes of residence, had continued with the mother’s leaving of her parents’ home environment since the first family report.
Ms E recommended in her addendum report that the child live with the father and spend weekend time with the mother. That recommendation was based upon her opinion that the child would remain in a stable and safe home environment with the father where he would attend school on a regular basis and would not be exposed to possible abuse or neglect.
Notably, Ms E expressed this at paragraph 9.12:
9.12[Ms MacDougall] has been granted plenty of time by the Courts to become emotional [sic] stable and gain control of her life however this has not happened. As [Ms MacDougall] admitted [the child] is angry at her as she has let him down by [sic] providing a stable home, taking him to school and neglecting his psychological issues by not taking him to counselling. Furthermore, [Ms MacDougall] has also neglected her own mental health issues. There is no safety net for [the child] while he lives with his mother.
(emphasis added)
As at the time of undertaking her further family report dated 30 January 2015 the child had been living in the father’s household since 2 March 2014.
Ms E in her third family report[14] noted that since her addendum report of February 2014 the mother had moved to live in the EE Town region, as well as P Town and F Town before moving to live in II Town, near JJ Town. Ms E noted that II Town is approximately five hours or 366 kilometres from F Town.
[14] Paragraph 3.5 of family report of Ms E dated 30 January 2015.
Ms E records at paragraph 3.7 of this report that records of the Family Court indicate that since October 2012 the mother “has been requested time and again” to file material in the Court and that the mother has continued to ignore the Court’s requests.
Importantly, at paragraph 3.8 of her final report, Ms E records that the mother has failed to complete random drug tests requested by the ICL. Ms E notes that historical allegations made that the mother was misusing alcohol and illicit drugs resulted in her recommendation that the mother complete random urine tests so that any substance use can be monitored. Ms E noted that such monitoring would provide evidence one way or the other as to the mother’s use of alcohol or illicit drugs.
Again, it can be observed of Ms E that for the purpose of her final report she undertook detailed exploration of the issues including via interviews and assessments of the child and his siblings as well as making enquiries from independent sources. For example, Ms E undertook a telephone interview with Ms KK from the F Town Children’s Contact Centre and likewise with the principal of the child’s school as well as with the psychologist who undertook therapy of the child between 20 March 2014 and 3 April 2014.
For the purpose of her final report Ms E also undertook psychological testing of each of the parents.
It is to be noted that between the time of Ms E’s addendum report dated 21 February 2014 and her final report dated 30 January 2015 the mother had been involved in the conviction of the offence in early 2014 in relation to occupation of a residential property without the owner’s permission earlier referred to.
Also, on 13 March 2014 after the parents had signed a consent agreement for the mother to see the child at her parents’ home while being supervised and after the father delivered the child to the maternal grandparents’ home, he was called back urgently by the maternal grandfather. The mother had taken the child and returned the child to the R School and the father by reference to orders had to collect the child. In short, the mother had plainly breached the existing arrangements as agreed and as per Court orders.
In the course of her interview with the child for her final report Ms E formed the impression that the child enjoys playing with the older two children in the household and formed the impression that the child is very close to his two younger brothers spending a lot of time with them caring for and playing with them.
At paragraph 13.10 Ms E records this:
13.10I inquired again where [the child] would like to live. I got the impression that [the child] was making every effort to treat everyone equally when he indicated it would be good if he could share his time between his mother and father. This is when I inquired if [the child] knew that his mother had moved to live at [JJ Town] and that she was living with [Mr O]. I also advised [the child] that his parents lived too far apart to change week about. [The child] said he has met [Mr O] and he remembers he drinks rum and not beer. [The child] also stated “I don’t like him”. He explained that he thought he would be going back to [LL Town] to see his Gran and Pop, cousins and friends. He reported that he would like to do that. [The child] then said that [Mr O] gave him the “rude finger” and threatened to punch him. [The child] reported that [Mr O] lied about it when he told his mother. Then [the child] said he has no friends at [JJ Town], saying he did not know his Mum was living there.
13.11[The child] discussed how scared he was last time when his mother did not pick him up. He also said he did not like what had gone on before, reporting again how scared he was and how unhappy he was…[the child] informed me that his mother had told him that he would have to decide who he wants to live with and part of him wants to live with his mother but it is better if he lives with his father and [Ms Carlton].
In the evaluation section of her final report Ms E relevantly records this:
14.3Since [Ms MacDougall] and [Mr Carlton’s] final separation in October 2009, [the child] has predominately lived with his mother, [Ms MacDougall]. Based on my observations over three Reports, I note that mother and son have a very close attachment and it is easy to see that [Ms MacDougall] has been [the child’s] primary caregiver. However, even though [Ms MacDougall] has verbalised a desire for [the child] to be returned to her care, she has not demonstrated her capacity to meet [the child’s] developmental, emotional or educational needs with any longevity.
(emphasis added)
At paragraph 14.4 Ms E records the opportunities the mother has had via directions from the Court to provide random urine tests so that allegations relating to her possible substance abuse could provide evidence either way for the Court. Ms E notes that the ICL had reported the mother’s failure to provide requested random urine tests.
At paragraph 14.9 Ms E records her assessment of the mother displaying depressive and stress symptomology, as well as paranoia, for which she was not receiving treatment. She expresses a repeated recommendation that the mother seek medical and psychological assistance and support.
Ms E records in her report the recommendation that the mother’s contact visits stay at the F Town Children’s Contact Centre every alternate Sunday but that the mother and child spend a half an hour at the beginning and end of each visit so that the mother could be monitored. In the longer term Ms E recommended that the child live with the father and see his mother every second weekend and for half of school holidays.
Ms E also records the child’s reported wish to see his maternal grandparents and other maternal relatives and expressed the opinion that it was important that these relationships be maintained by the father.
Ms E’s oral evidence at trial took account of the fact of the mother’s current circumstances of incarceration in the face of her criminal charges.
Ms E expressed the opinion, which I accept, that it is important that the child be informed about his mother’s incarceration but this communication should not be performed by either parent but rather by a trained professional. Ms E confirmed that she would be willing to undertake that process with the child.
Ms E acknowledged in her oral evidence, on the topic of any visits of the child to the prison, how confronting that might be for any person let alone a child. Nevertheless, Ms E opined that if the maternal grandparents were prepared to do so a visit once every two months would be recommended in respect of any period whilst the mother remains incarcerated. That was in the context of the mother potentially being released on bail but again being incarcerated if she is convicted on any of her criminal offences with which she is charged.
With respect to the position if the mother is released, Ms E emphasised in her oral evidence the mother’s need to undertake counselling but observed that one cannot make a person go to counselling and that it would only be successful if the person was willing to attend counselling. Ms E referred to the mother’s test results on psychological testing as disclosing that the mother significantly lacks insight into her own behaviour.
In cross-examination by counsel for the father, Ms E acknowledged that the mother had not shown progression in terms of any demonstrated ability to achieve stability of circumstances or her lifestyle. Ms E emphasised that whatever the outcome of parenting proceedings, a fundamental need for the child was the need for stability of his circumstances. Ms E assessed the child to be very insightful and emphasised that the father had provided via his household stability of circumstances of the child.
I observe at this point that the orders proposed by each of the father and the ICL are consistent with the views Ms E expressed in her oral evidence in the context of the mother’s current circumstances.
I have emphasised the expert evidence of Ms E, and the significance of that evidence, for the following reasons:
a)In my judgment Ms E’s reports reflect her detailed and careful analysis of, and approach to, the issues in this case which are central to the parenting orders which ought be made to meet the child’s best interests;
b)Ms E’s thorough reviews, as evidenced in her three family reports, span the period from August 2013 to early 2015 and her oral evidence at trial and her opinions are provided from that extensive foundation of knowledge and assessment;
c)Ms E’s opinions, both those contained in her respective reports and as expressed in her oral evidence reflect, in my judgment, careful, considered and balanced assessments. In my judgment Ms E could not be seen to have given any inappropriate weight to any single factor or body of evidence nor has it been demonstrated that Ms E failed to take properly into account relevant factors;
d)Ms E’s ultimate recommendation as expressed in her final report to the effect that it is in the child’s best interests that he continue living primarily with the father was plainly not driven by the mother’s current circumstances. Ms E formulated and expressed that opinion in both her addendum report and her January 2015 report, both of which are well prior to the mother’s current difficulties.
This last factor is obviously of critical importance to any future consideration by any court exercising jurisdiction under Part VII of the Act in relation to any further application by the mother in future for parenting orders and the need for the mother to demonstrate such a significant change in circumstances for such a further application to be entertained by the Court in the child’s best interests.
That is, it is not simply the mother’s current difficult circumstances that dictate the result that it is in the child’s best interests that he live primarily with the father. Accepting as I do Ms E’s opinion, the mother has not demonstrated, since the parental separation in October 2009 a period now of almost six years, the capacity to provide consistent stability of circumstances and stability of care so important to this child’s healthy development as it is for any child.
As it seems to me, the mother would have to demonstrate not only overcoming her current difficult circumstances but addressing the issues that have been prevalent in these proceedings over the entirety of the period from October 2009. For three and a half years of that period the mother maintained the relationship with Mr J which undoubtedly adversely impacted upon not only her but profoundly upon the child.
In contrast, the father has demonstrated the capacity to provide in his household significant stability of circumstances. The father has maintained over a significant period stability of employment. His relationship and marriage with Ms Carlton provides a stable platform of living circumstances for the five children living in that household, including the child.
As already noted, Ms Carlton has, in my judgment, demonstrated the capacity to provide a positive source of stability for the child’s healthy development even though it would seem the mother refuses to accept that to be so.
None of this is to suggest that the child does not love the mother, he clearly does. It does not suggest that the child does not benefit from having a meaningful relationship with his mother. He clearly would benefit given that the mother is undoubtedly his primary attachment figure given that she has been his primary carer for most of his life.
The significant impediment in the mother meeting the child’s best interests is her apparent inability to achieve stability in her lifestyle and living circumstances. Whether that be the result of her poor choices as to partners; any misuse of drugs or alcohol; or underlying mental health issues, the point is that for a lengthy period from October 2009 until March 2014 the mother had the opportunity to demonstrate that she could achieve sufficient stability in her circumstances to adequately provide for the child’s physical, emotional and intellectual needs; and to provide him with stability of circumstances for his healthy development. Plainly, that has unfortunately not been demonstrated by the mother.
Section 60CC considerations
Obviously enough, much of the preceding discussion and many of the findings already recorded resonant with one or more of the relevant considerations expressed in s 60CC of the Act. It would be unnecessarily repetitious to repeat them specifically in addressing particular considerations.
Benefit of a meaningful relationship
It is clear that the child loves both of his parents and the child would benefit from having a meaningful relationship with both of his parents.
As already noted, the history of the child’s care arrangements dictates that the mother is likely to be the child’s primary attachment figure and it would thus undoubtedly be to his benefit to continue a meaningful relationship with the mother.
So too it is the fact that Ms E’s reports reflect the benefit to the child of his meaningful relationship with the father being maintained.
Need to protect
Plainly the child was exposed to possibly physical but certainly psychological harm over the three and a half years following October 2009 when the mother was maintaining her relationship with Mr J.
Moreover, there is, in my judgment, the need to protect the child from any such harm by any continuation of the unstable lifestyle and unstable living circumstances that the mother has exposed him to from time to time over (and throughout) the period when he remained in her primary care.
Child’s views
Given that the child is not quite nine years of age, he does not yet have a level of maturity or level of understanding that would support a conclusion to the effect that his views ought be given determinative weight or significance.
That noted, it is clearly consistent with the child’s expressed views that he have and maintain a relationship not only with the mother but with members of the maternal family with whom he has developed attachments.
As the final report of Ms E reveals, it is clear that the child has developed significant attachments not only with his father and Ms Carlton but also with the children that form part of that household, particularly with his younger siblings.
Nature of relationships
The child has well-developed relationships with each of his parents and with the other members of his household. He also has positive relationships with the maternal grandparents and those relationships ought be maintained in his best interests. I am confident that the father understands and recognises the importance of the child’s relationships with extended family members, on both the maternal and paternal side of the family.
Failure to take opportunities to make decisions/spend time with the child or communicate with the child
The history of the mother’s living circumstances and changes in circumstances from time to time has shown the mother’s capacity to act unilaterally without reference to the father on important issues such as the child’s living circumstances and location and centrally important things such as the school he attends.
The father has maintained a consistent willingness to participate in the child’s life including being involved in decisions concerning major long-term issues in relation to the child. Indeed it would seem that since the child has been in the father’s primary care from early 2014, matters such as his educational needs, including his need for reading glasses, have been addressed by the father with the support of his wife Ms Carlton.
Failure to maintain the child
It would seem that the mother’s unstable living circumstances from time to time may have well impacted upon her ability to properly maintain the child in terms of his living circumstances. The fact that the mother was convicted of an offence in relation to occupation of a residential property is a matter of significant concern. Likewise her conviction in respect of possession of a syringe earlier discussed.
Plainly the child’s needs are currently being met by the father via his employment. Obviously enough, whilst the mother remains incarcerated and in respect of any periods when she is in future incarcerated, the child’s needs will be mainly maintained by the father.
Likely effect of any changes in the child’s circumstances
The child has been living in the father’s primary care since March 2014. It is clear from Ms E’s January 2015 report that stability of circumstances has been achieved in the child’s living circumstances within the father’s household.
Final orders which formalise the child’s living circumstances would not be productive of any change in terms of the circumstances that it would seem that the child has now grown accustomed to.
Moreover, the orders proposed by the father and the ICL will see maintenance of the child’s circumstances in terms of his relationship with the mother and also in terms of his having the opportunity to spend time with the maternal grandparents and extended family members on the maternal side of his family.
Practical difficulty and expense of time and communication
The obvious current practical difficulty relating to the mother surrounds the current circumstances of her incarceration.
The proposed orders of the father and the ICL best meet that difficulty in the expectation that the maternal grandparents will utilise their time at least in part in facilitating the child’s face-to-face time with the mother whilst she is incarcerated.
Otherwise, the orders proposed by the father and the ICL meet the child’s right to maintain his personal relations and direct contact with both parents on a regular basis subject only to the mother’s future choices so far as her living circumstances are concerned.
It is of obvious concern that historically the mother chose to relocate to II Town and place such a significant geographical distance between the respective households. That would not recur in future if the mother makes choices that avoid such practical difficulties and associated expenses of maintaining time and communication.
Parental capacity
For the reasons already discussed I am satisfied that the child’s father has the capacity to meet the child’s needs, including his emotional and intellectual needs, given also the assistance the father receives in that respect from his wife Ms Carlton.
On the evidence of Ms E as to the views of the maternal grandparents I am satisfied that they, too, can meet the child’s needs within the context of the time and communication they will have with the child; and as a means of facilitating the child’s time with the mother whilst she remains incarcerated.
I have already expressed findings as to the mother’s apparent lack of capacity to provide for the child’s needs, including his emotional and intellectual needs, on a continuing basis or consistently. That has been a primary focus of Ms E’s evidence which I accept.
In my judgment, the mother has never demonstrated, since the parental separation in October 2009, any consistent capacity to provide for the child’s needs, including his emotional and intellectual needs.
Family violence
Whilst there were obviously difficulties between the parents during their relationship, particularly towards the end of that relationship, there would not seem to be a sound basis for concluding that the child was involved in family violence prior to the parents’ final separation.
Plainly the child was exposed to family violence in the mother’s household over the period when she maintained her three and a half year relationship with Mr J.
The mother has historically obtained family violence orders with respect to Mr J and the relevant inferences to be drawn from those orders are the obvious inferences as to family violence occurring perpetrated by Mr J upon the mother.
It is plain from Ms E’s interviews of the child that he was aware of the conflict that occurred between the mother and Mr J given that his reports include observations to the effect that he saw Mr J strike his mother. The child has also referred to hiding under his bed when hearing loud verbal arguments break out between the mother and Mr J.
Further proceedings in relation to the child
I have already expressed observations concerning any further parenting application in future by the mother.
My refusal to adjourn these proceedings at the outset of the trial on the mother’s oral application was driven by the consideration that there needs to be a conclusion, in the child’s interests, to these proceedings given that they have been on foot for now almost three years.
In my judgment it is preferable to now make final orders, notwithstanding the mother’s current circumstances, given the history already discussed as to the continuum of the mother’s instability of circumstances and having regard to the stability for the child that has now been achieved since early 2014 in his living circumstances with the father.
Balancing best interests considerations
In my judgment the overwhelming preponderance of the statutory considerations is in favour of orders along the lines ultimately sought by each of the father and the ICL.
It is plainly now in the child’s best interests for final orders to be made that he continue to live in the father’s household albeit with orders that preserve and maintain his important relationships primarily with the mother, but also with the maternal grandparents in the mother’s current difficult circumstances.
The stability of circumstances the child has now achieved in living with the father is something that has long been missing from his life. The child’s educational needs were impacted by the mother’s instability and there needs to be stability for him to regain lost ground in that respect. That would appear to be being addressed by the father and Ms Carlton in the child’s current circumstances.
I am comfortably satisfied that orders along the lines proposed by the father and the ICL are in the best interests of the child.
Parental responsibility
In my judgment the presumption in s 61DA(1) is rebutted because it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)).
The level of antagonism between these parents is reflected not only in the contents of Ms E’s family reports but as each parent presented at trial.
It would seem clear that the mother’s antagonism towards the father is directed in large part to his current wife Ms Carlton. That, in my judgment, demonstrates a lack of insight by the mother and a misjudgment by her as to the positive influence Ms Carlton has in terms of the child’s living circumstances.
It is clear that the father’s antagonism towards the mother is largely driven by the history that has occurred between them in the post-separation period, particularly as regards the mother’s deficits concerning her lifestyle and instability of circumstances as provided for the child; and her capacity to act unilaterally without any reference to him concerning important matters for the child.
In my judgment it would be unrealistic to expect these parents to properly manage decision making in relation to long-term issues for the child that an order for equal shared parental responsibility would require.
Put simply, given that it is now almost six years since the parents separated there cannot be any confidence, given their ongoing antagonism towards each other, that they would be capable of meeting the requirements of s 65DAC of the Act as would be required by an order for equal shared parental responsibility.
In my judgment, it would meet the child’s best interests for an order to be made for the father to have sole parental responsibility albeit with an obligation to consult the mother on any decision concerning long-term issues prior to a final determination of such a decision.
As I do not consider it to be in the best interests of the child that an order be made for equal shared parental responsibility, and I do not propose to make that order, s 65DAA does not apply.
Conclusion and orders
The orders ultimately proposed by each of the father and the ICL respectively (Exhibits 3 and 4) are in broadly similar terms or of similar effect as each other.
I have reviewed those respective proposed orders and adopted and/or reformulated those orders as considered appropriate in determining the form of final orders I consider best meet the child’s best interests.
These incorporate the prospect of the father, in future, agreeing in writing (in the exercise of his parental responsibility) to the child spending time with the mother and/or the maternal grandparents on a more expansive basis than is provided for in the specific orders that are made. I am satisfied that the father recognises the importance to the child of his mother and of his maternal family and that the father is likely to give effect to that recognition as circumstances in future provide and as the child matures.
For these reasons I make the orders set at out the commencement of these reasons.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 August 2015.
Associate:
Date: 31 August 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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