Childs and Brennan and Anor

[2008] FamCA 668

FAMILY COURT OF AUSTRALIA

CHILDS & BRENNAN AND ANOR [2008] FamCA 668

FAMILY LAW – CHILDREN— with whom a child lives—application by paternal grandmother that two of the children continue to live with her and other two children continue to live with Respondent mother—allegations of sexual abuse of female child by a person not in the paternal grandmother’s household—concerns about Mother’s capacity to care for four children—Orders made for two children to remain living with paternal grandmother enabling a continued relationship with Father—two children to live with mother

APPLICANT: Ms Childs

FIRST RESPONDENT: Ms Brennan

SECOND RESPONDENT: Mr Pauls

FILE NUMBER: BRF 482 of 2005

DATE DELIVERED: 11 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 9 - 11 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appeared for the Applicant Paternal Grandmother

SOLICITORS FOR THE APPLICANT: Anthony Black Family Law Services

COUNSEL FOR THE FIRST RESPONDENT: Mr Read of Counsel appeared for the First Respondent Mother

SOLICITORS FOR THE FIRST

RESPONDENT:

Bucknall Rayward Family Law Services

SOLICITORS FOR THE SECOND

RESPONDENT:

The Second Respondent Father appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: SBA Family Lawyers

Orders

IT IS ORDERED THAT:

1. The children, B born … October 1994 and J born … July 1999 live with the Paternal Grandmother with the Paternal Grandmother to have sole parental responsibility for the short term and long term care, welfare and development of the said children.

2. The children, M born … July 1993 and S born … August 2002 live with the Mother with the Mother to have sole parental responsibility for the short term and long term care, welfare and development of the said children.

3. M spend time with her Father and/or her Paternal Grandmother at all such times as may be agreed between M on the one hand and her Father or Paternal Grandmother on the other.

4. The costs of any such visit by M be borne by the Father and/or Paternal Grandmother as may be agreed between them.

5. That the child S spend time with his Father or Paternal Grandmother at all such times as may be agreed between the Mother on the one hand and the Father or Paternal Grandmother on the other.

6. The costs of any such visits by S be borne by the Father or Paternal Grandmother as may be agreed between them.

7. B and J spend time with their Mother at all such times as may be agreed between the Mother and the Paternal Grandmother but in the event they are unable to agree then:

   (a)       the whole of the mid-year Northern Territory school holidays in each   year;

   (b)       for four weeks of the Christmas holidays in the Northern Territory      gazetted school holidays, in the first half for years ending with an even        number and the second half for years ending with an odd number.

8. The Mother shall be responsible for paying the airfares for B and J for travel from Darwin to Brisbane for any such holiday period.

9. The Paternal Grandmother shall be responsible for paying the airfares for B and J for travel from Brisbane to Darwin for any such holiday period.

10. Unless the Mother provides confirmation in writing to the Paternal Grandmother of the purchase of airline tickets for travel from Darwin to Brisbane for the children B and J twenty-one (21) days prior to the scheduled date of travel, the Paternal Grandmother is not obliged to send the children for that particular visit.

11. Unless otherwise agreed between the parties the Mother is to be responsible for collecting B and J from Brisbane Airport and returning them to Brisbane Airport in sufficient time to board their return flight to Darwin on each occasion the children travel for holiday periods.

12. The Mother to have telephone contact with the children B and J at all reasonable times as may be agreed between the Mother and Paternal Grandmother.  In the event they are unable to agree then between 7.00 pm and 7.30 pm Northern Territory time each Sunday with the Mother to initiate the telephone call on alternate weekends commencing the Sunday after the making of the orders in this matter with the Paternal Grandmother to initiate the telephone call on the alternate Sundays.

13. The Father spend time with B and J at all times and subject to such conditions as may be agreed between the Father and Paternal Grandmother.

14. All parties shall keep the other informed of their residential address, land telephone line and mobile telephone numbers and of any change to those details within seven (7) days of any change occurring provided that this information is treated confidentially and not disclosed to third parties except as agreed between the parties or as necessary to enforce these orders.

15. Notwithstanding that the Paternal Grandmother has sole parental responsibility for B and J the Mother is at liberty to contact the schools attended by B and J from time to time for the purpose of obtaining school reports or any other information held by the school in relation to their academic progress or behavioural issues at the school.

16. IT IS ORDERED BY CONSENT that the Paternal Grandmother shall provide to the Mother in writing within seven (7) days of this Order all relevant details of the school or schools attended by B and J, including name of school, address and telephone number and thereafter in the event of any change of schooling within seven (7) days of any such change.

17. The Mother is at liberty to contact any medical practitioner or hospital attended by the children, B and J from time to time for the purpose of obtaining any information as to the medical treatment received by the said children.

18. IT IS ORDERED BY CONSENT that the Paternal Grandmother shall provide to the Mother in writing within seven (7) days of this Order relevant details of medical practitioners and hospitals attended by B and J since January 2007 to date and thereafter shall keep the Mother informed from time to time in a timely manner of medical practitioners and hospitals attended by B and J save in circumstances of life threatening illnesses or accidents, shall inform the Mother within twenty-four (24) hours of such incident.

19. The Independent Children’s Lawyer is discharged.

20. Pursuant to s 62B and s 65DA(2), 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF482/2005

MS CHILDS

Applicant Paternal Grandmother

And

MS BRENNAN

First Respondent Mother

And

MR PAULS
Second Respondent Father

REASONS FOR JUDGMENT

1. The First and Second Respondents are the parents of four children, M born in July 1993 (14), B born in October 1994 (13), J born in July 1999 (8) and S born in August 2002 (5).

2. M and S currently reside with their mother in G in Queensland.  B and J reside with the Paternal Grandmother in Darwin.

3. The Applicant Paternal Grandmother and the Respondent Mother each seek orders that B and J reside in their respective household.  The Paternal Grandmother had originally sought orders that M live with her but in the final report of Ms P the Applicant disclosed that she no longer sought orders for M.

4. This was confirmed by the Applicant’s Counsel at the commencement of the hearing before me.

5. The hearing proceeded over three days from 9 July 2007 until 11 July 2007.

6. The Mother and the Paternal Grandmother were each represented by Counsel.  The Father was not legally represented but appeared personally, gave evidence and made submissions.

7. The Court was assisted by the appointment of an Independent Children’s Lawyer who also had briefed Counsel.

8. It is common ground that whatever outcome is reached as to the future of B and J there should be time spent in the other household but this is complicated by the distance between the two households with the associated expense of air travel.  The respective households subsist on Centrelink benefits.

Witnesses

Applicant Paternal Grandmother

1. In the Paternal Grandmother’s case the witnesses were the Father and the Paternal Grandmother.  Reliance was also placed on an affidavit of Ms H filed in November 2006.  She is the Applicant’s daughter and therefore sister of the Second Respondent.  She was not required for cross examination.  Her evidence is before the Court on an unchallenged basis.

Respondent Mother

1. Witnesses in the Respondent Mother’s case were the Respondent Mother and the maternal grandmother, who had filed an affidavit on 24 October 2006.

Independent Children’s Lawyer

1. The principal witness in the Independent Children’s Lawyer’s case was Ms P who had provided five reports in this matter.

2. Reliance was also placed on affidavits of Ms G filed 28 June 2006, Ms L filed 4 June 2007, Ms N filed 4 June 2007 and an affidavit of the Independent Children’s Lawyer herself filed 13 February 2006 which appended various school reports.

3. Apart from Ms P the other witnesses were not required for cross examination.

4. Various exhibits were tendered which included the Northern Territory Police file, the Queensland Police Service file the Northern Territory Centacare file and the Northern Territory Department of Family and Children’s Services.  The material to which I was referred in these files has been flagged by coloured coded stickers.

Orders sought

1. The Paternal Grandmother sought orders in terms of those set out in the Further Amended Application for Final Orders filed 28 June 2007.

2. In summary, the Paternal Grandmother proposes:

   ·    that B and J continue to reside with her in Darwin, M and S reside with their mother in Queensland;

   ·    that she have parental responsibility for the two children in her care;

   ·    the Mother have parental responsibility for the other two children; and

   ·    that B and J spend time with the Mother at all reasonable times as may be agreed between the Paternal Grandmother and the Mother but failing agreement for the last two weeks of the Northern Territory June/July school holidays and for three weeks of the Christmas holidays;

   ·    M and S (starting mid-2009) spend time in Darwin with the Paternal Grandmother.  The Paternal Grandmother also sought (by paragraph 6) that the children spend time with the Father as agreed between the Paternal Grandmother and the Mother or between the parents themselves depending on the circumstances.

3. The orders sought by the Paternal Grandmother are extremely detailed covering some 29 paragraphs.

4. I do not find it necessary to refer in detail to the balance of the orders sought.

5. The orders sought by the Father are to be found in the final page of his affidavit filed 20 November 2006.  In summary form, he seeks that all four children reside with the Paternal Grandmother, that he spend reasonable time with them and that they visit their mother during the mid-year and Christmas holidays.

6. In his brief final submissions the Father simply adopted the orders as sought by the Paternal Grandmother.

7. The orders sought by the Mother are set out in her Summary of Argument document filed on 6 July 2007.  In summary form, she seeks:

   ·    that all children reside with her;

   ·    that the Paternal Grandmother and the Father spend time and communicate with B and J as agreed but in the event the parties are unable to agree then for two weeks during the mid-year holidays and half the Christmas holidays together with telephone contact;

   ·    that she contribute $500 to the cost of the flights for B and J and that the Father and the Paternal Grandmother be responsible for the balance of the costs;

   ·    in the alternative, in the event that B and J continue to reside in Darwin, she proposes that she have two weeks during the mid-year holidays and one half of the Christmas holidays and she contribute $500 to the cost of air travel for the two boys;

   ·    there be no orders for S to spend time with the Paternal Grandmother or his Father.  There was general agreement that M was of an age where it was not appropriate to put in place specific orders other than with her consent. 

BACKGROUND FACTS

1. The parties commenced cohabitation in October 1992.  The relationship was dysfunctional for the greater part of its duration.  The parties consistently consumed drugs, in particular cannabis and later amphetamines.  There were numerous separations followed by subsequent reconciliations.  The Father served a number of periods of imprisonment.  The Mother served one period of imprisonment.  They separated in October 2002.  The Father was incarcerated from February 2003 until about December 2003.  On separation the Mother proceeded to move to Queensland with the children.  She herself was incarcerated from April 2004 until July 2004.  M was placed with the Paternal Grandmother in March 2003 a month after the Father was incarcerated.  This occurred because of M’s wish at that time not to reside with her Mother.

2. The Paternal Grandmother moved to Darwin in August 2004.  She had children residing there.  In September 2004 the three oldest children travelled to Darwin.  The Mother says that this occurred without her consent.  The Mother had been released from jail in July 2004.  There is evidence that she was still taking drugs in about August 2004 and the more likely version is that the children were being cared for by their Father and he moved the children to Darwin so they could have the relative stability which would result from care by the Paternal Grandmother.  S remained with his Mother in Queensland.  The Father gives his explanation for this in his affidavit and it is one of the few pieces of evidence given by him which I am inclined to accept.

3. By early 2005 the Mother wanted the children returned.  She sought a recovery order from the Magistrates Court at G in February 2005.  The Paternal Grandmother wrote a letter (JC2 to her affidavit filed 10 November 2006).

4. The recovery order was never executed and it was agreed that the order would be stayed pending the outcome of this litigation.

5. In October 2006 M returned to Queensland to reside with her mother.  This was done without the consent of the Paternal Grandmother.  There were allegations that M had been sexually assaulted by her paternal uncle, K.  The Paternal Grandmother says that K and his family consisting of his wife and two children, a daughter aged ten and a son aged six left Darwin in November 2005.  K was with the Armed Services.  The allegations of sexual abuse were not raised by M until the end of term 1 in 2006.

6. No order is sought in relation to M other than an order in general and consensual terms.  It is not necessary to make a finding as to the nature of the sexual abuse other than to deal with suggestions the Paternal Grandmother was not sufficiently protective of M prior to or at the time she raised the allegations.  In any event I am unable to make a finding as to the validity or otherwise of the sexual abuse allegations.  I note the comments in the various reports by Ms P.  I will proceed on the basis that M was sexually abused but by a person not in the Paternal Grandmother’s household.  There is a suggestion in the material that the Father was the perpetrator but I unhesitatingly reject such an allegation.  It is not borne out by any proper evidence placed before the Court.  Similar comments apply in relation to the Applicant’s partner.

school reports

1. In the school reports for the children B and J annexed to the Paternal Grandmother’s affidavit filed 28 June 2007, the general comments as to their behaviour are positive.

2. For first semester 2007 the general comments for B are in the following terms:

   “[B] has worked very well this half year.  He is a happy student who has proven himself to be trustworthy and reliable.  He ensures he starts his work quickly and tends not to get distracted by those around him.  He will ask for assistance when needed.  He ensures that he completes his work and that it is always to the best of his ability.  Congratulations on representing [the school] in basketball.  An excellent half year’s work”.

3. For J the comments on his report card for the same period are in the following terms:

   “[J] is a well mannered, courteous and friendly student.  He is attentive and works hard to attempt and complete all set tasks.  [J] has shown enthusiasm for his learning and demonstrates sound academic habits.  I have encouraged [J] to ask for assistance if he is unsure of a task.  [J] has shown an improvement when asking for assistance in both seeking help and clarifying what he needs to understand.

   [J] participates actively during mathematics lessons.  He has worked hard to complete addition and subtraction sums using trading and re-grouping and seeking assistance if required.  [J] enjoyed completing his 2D shape art work needing assistance to design and create his animal.  [J] attempted estimating and measuring length using informal and formal units of measurement.  Thank you for your wonderful efforts, keep up the fabulous work.”

MATERIAL RELIED ON

1. The Paternal Grandmother relied on affidavits by herself filed on 10 November 2006 and by her daughter Ms H filed on 8 November 2006.

2. The Father relied on the affidavit by himself to which I have referred filed on 20 November 2006, though he was called on as a witness in the Applicant’s case.

3. The Mother relied on two affidavits filed 24 October 2006 and 14 June 2007 together with the affidavit of the maternal grandmother to which reference has been made.

4. I have previously outlined the material relied on by the Independent Children’s Lawyer.

REPORTS OF MS P

First Report Dated 25 January 2006

1. In this report it is clear that as early as January 2006 M was wanting to reside in Brisbane (refer paragraph 37).  The basis for this was she would live with her paternal aunt, Ms H and visit her mother every weekend or every second weekend.

2. There is evidence that for most of the time M has had a close relationship with Ms H.  I accept such evidence.

3. At paragraph 43 of this report Ms P notes:

   “[B] indicated that he would like to live with his grandmother or aunt, [Ms H].  Throughout out discussion he reiterated a reluctance to get to know his mother.  However in response to my statement that the Court may decide that he have contact, he said it would be alright but he wouldn’t go that often.”

4. At paragraph 45 of this report J indicated that he would like to live with his mother and his grandmother.

5. At paragraph 57 under the heading ‘Adult Dynamics’ Ms P comments:

   “The writer observed a lack of child focus on the part of both women (Applicant and Respondent).  Contact in January (2006) did not occur because of technical requirements by the airline, which is unfortunate.  However, a lack of co-operation and generosity was notable.”

6. In paragraph 52 of this report Ms P noted that the three children present as:

   “Well nurtured, well cared for children who would appear to be thriving in their grandmother’s care.”

7. There was no cross examination on this aspect as how she could observe that the Paternal Grandmother was not child focused and at the same time the children could be thriving in her care.  I expect the report writer is referring to the poor communication between the households as evidencing the Mother and Paternal Grandmother not being prepared to put aside their own differences / feelings in order to promote the best interests of the children.  This interpretation is confirmed by reference to paragraph 58.

   “58.    [The mother] refused to allow [the paternal grandmother] to use the airfares to bring the children down for the purpose of this assessment.  [The grandmother], who did actually spend a few days in [G], made no offer to make the children available to their mother during this time.  She also objected to the children having lunch with their mother during the day of the report assessment, which would suggest an unwillingness to allow the children contact with their mother.”

1. Ms P produced an addendum to her first report as a result of a telephone consultation with the mother on 8 February 2006.  She also spoke to the respective grandmothers. These telephone calls were made after the Independent Children’s Lawyer had forwarded a summary of her inspection of the subpoenaed documents. 

Second Report Dated 10 August 2006

1. Contact occurred between the Mother and the children M, B and J in the G district in the mid-year holidays of 2006.  This is the only time B and J have spent with their mother in the last three and a half years.

2. At paragraph 43 the report writer acknowledges that there was complaint that the Mother was unco-operative in relation to the return of the children to the extent that Ms H had to drive from Brisbane to G to collect them.  As I understand the position this was not part of the original arrangement.

Third Report

1. This report largely focused on M’s position only.  It is of limited value in deciding the future of the two boys.  B turns 15 later this year.  He is very fixed in his view that he does not wish to move to Queensland.  His relationship with his sister M is problematical.  J is less fixed in his wishes and could possibly be moved.

Fourth Report Dated 12 December 2006

1. In this report the wishes of the boys are set out in the following terms:

   B

   “75.     When talking about current phone contact with his mother he stated that he does talk to her, but not that long” and expressed the opinion that “she does not want to talk to me that long”.  When he asked why he thought that might be he stated that “when we were in Queensland all she cared about was [S] and [M] – she did not give so much time for me and [J]”.

   “76.In doing his family drawing his mother, [M] and [S] were not included.  When questioned about where he would place them [B] stated that he would need another drawing for them because they live in separate houses.”

   At paragraph 79 B’s teacher (Ms CE) made positive observations about the Paternal Grandmother being supportive of B doing special homework and describes her as:

   “Responsive and involved as needed to assist [B] in his school.  She has demonstrated a consistent interest in what he is doing and in his progress”.

1. In relation to the child J the report writer (paragraph 88) observes:

   “On discussing future care arrangements [J] stated that he would be unhappy if a decision was made for him to reside in [G].  He stated that he would not like to live with mum because “she swears at me sometimes and the house smells like cat pee”.  He asserted that he would not go to school in [G] (suggestive of negative scripting about his mother).”

2. In her fourth report under the heading ‘Conclusions and Recommendations’ the report writer observes:

   “129.[M] would appear to be happy and progressing well in the care of her mother.  Support for continuation of this arrangement is recommended.

   130.It is recommended also that [M] be supported in her desire for no contact at this stage in view of her alleged experience, the reported punitive and accusing behaviour toward [M] by her father and paternal grandmother, and the resulting anxiety and fear observed by the child.

   131.While [B] and [J] are reported to be progressing well at school and presented to the writer as physically well cared for children, the management of [M] and concerns noted by professionals involved would suggest that there are concerns about dynamics in Mrs [the grandmother’s] household and implications for the boys’ protection, and emotional and personality development.

   132.Decisions around future placement of [B] and [J] would need to take into account the relative health of that household for their future development.

   133.Alternative placement with their mother would need to be considered in light of newly developed strengths and the demands of providing consistent care for [M].

   134.In the interim, ensuring boys (sic) have the three weeks Christmas holiday contact with their mother is recommended.”

3. It is noted that although there was a recommendation for three weeks Christmas holiday contact with the boys in G in 2006 this did not take place.  The Mother was unable to finance her share of the travel.

Fifth Report Dated 24 May 2007

1. In paragraphs 58 and 62 of this report Ms P sets out the wishes of the boys.  In relation to J he stated in unequivocal terms that he would like to continue to live in Darwin. B’s position was unchanged, namely, he wished to remain in Darwin.

2. At paragraphs 83, 84, 85, 90 and 91 Ms P comments:

   “83.However the boys have been in their grandmother’s care going on for three years in September.  They are settled in this environment and do not express a desire for a change of residence at this point in time.  They are of an age (latent stage and early adolescent) in which they are unlikely to seek change.

   84.For the reasons outlined, in particular parental conflict and obstruction, the mother’s environmental vulnerability and financial constraints, there has been limited contact with their mother during this time (one visit in two and a half years).

   85.[M], if she remains in the care of her mother, will require dedicated care and supervision over the next two years in particular:.

   ……………….

   90.Whilst there are a number of issues of concern in relation to the paternal household, outlined in this and previous reports, a change of residence for [B] and [J] at this point in time would seem precipitous.

   91.They have not demonstrated an emotional and psychological readiness for a change in care and there is a realistic question about the capacity of [the mother’s] environment to support the move of the two boys to [Queensland].”

3. I accept B and J wish to remain in Darwin.  I accept the strength of the recommendations concerning B and J made by the report writer in paragraph 91 as quoted above.

OBSERVATIONS OF WITNESSES

1. I have no reason to disbelieve the evidence of the Paternal Grandmother.  She gave her evidence in a straight forward and consistent manner.  The Paternal Grandmother admitted that she and the Mother should communicate but do not do so.  In the course of cross examination by Counsel for the Independent Children’s Lawyer the Paternal Grandmother said:

   “I’m as much to blame as she is but we just can’t communicate.”

2. The Paternal Grandmother presented as a mature, concerned individual with the best interests of all children at heart.  Apart from raising her own three children she had the full time care of Ms H’s son for about eight (8) years till he finished high school because of her daughter’s work commitments.

THE FATHER

1. I did not find the Father a reliable witness other than the individual finding previously referred to. I am satisfied he has no respect for authority whatsoever.  On my calculations he has been convicted of driving whilst disqualified on eight separate occasions.  There were suggestions in the evidence that this has not deterred him one bit and he continues to drive whilst disqualified.  He has an appalling traffic history generally.  He has been sentenced to terms of imprisonment on six separate occasions.  He has had a lengthy history of serious drug abuse.  He is aggressive and bad tempered and has engaged in acts of domestic violence.

2. On a positive note he has been working consistently in the Northern Territory and assists his mother by paying $200 per week for the support of the two boys in her care.  I accept he has a reasonable relationship with B and J.

THE MOTHER

1. I found the Mother to be very honest in the giving of her evidence, perhaps too honest for her own good.  She made many admissions/concessions against interest.  In the course of her evidence and generally throughout the trial she appeared highly stressed and anxious.  I am satisfied that her anxiety level is such that at times she finds it difficult to cope in the role as parent to her children.  I would be concerned if she had to care for four children on a pension income, particularly during any stressful periods.

THE MATERNAL GRANDMOTHER

1. I was impressed with the evidence of this witness.  Although there have been difficulties in her relationship with her daughter (the Respondent) in the past, I am satisfied she is fully supportive of her at the present time and would do her best to assist with the care of the children.  Her capacity to assist in the care of the children is somewhat limited by her employment.

SECTION 60CC FACTORS

1. When referring to the children in considering the factors in this section I am to be taken as referring to B and J only unless the context otherwise indicates.

Primary Considerations

1. The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, negligent or family violence.

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Because of the poor relationship between the two households coupled with the distance and lack of financial capacity it is unlikely the children would maintain a relationship with both parents regardless of any decision made.  The children appear to have a close relationship with the Father but at the present time they do not have a relationship with their mother.  To place the children in the Mother’s environment would almost certainly lead to the loss of a meaningful relationship with their paternal grandmother, father and members of that extended family.

2. B is now of an age where to move him from his present environment contrary to his strongly held wishes could not be seen to be in his best interests.  To separate J from his older brother is likely to have a significant detrimental impact on him.  It is necessary to balance this with the possibility of fostering a relationship between J and his mother and the siblings in her household.  On present indications the detriment to J from a loss of the support of his paternal grandmother and his father and his older sibling outweighs the benefit of developing a relationship with his Mother, M, and S.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, negligent or family violence

1. There is no reliable evidence the boys are at risk of physical or psychological harm in the Applicant’s household.

2. The letter from M would indicate verbal and physical abuse towards B occurs but having regard to the circumstances in which that letter was written (not long after moving to her mother’s household) I place little weight on her claims. The claims are inconsistent with other more reliable evidence including reports from school and the observations of the report writer. 

3. If the boys are placed in the Mother’s care it is unlikely they would be exposed to abuse, neglect or family violence.  I note that B and M do not get on.  I will have more to say about this aspect later in these Reasons.

Additional considerations:

Any views expressed by the child and any factors (such as the child’s

maturity or level of understanding) that the Court thinks relevant to the

weight it should give to the child’s views.

1. I have previously canvassed the wishes of the children.

The nature of the relationship of the child with:

• each of the child’s parents and;

• other persons including any grandparent or other relative of the child

1. The boys appear closely bonded to the Paternal Grandmother and their father.  Unfortunately they do not have a close relationship with their mother nor is there a close relationship between M and B.

2. There is limited communication between the two households.  The main reason for this is because of the attitude of the adults towards each other.  This situation has existed for many years and appears intractable.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

1. There has been a considerable delay in the delivery of this Judgment.  I have made enquiries through the Independent Children’s Lawyer whether the children spent any time with their Mother in the 2007/2008 Christmas school holiday period.  The answer given has been in the negative.

2. Copies of correspondence were forwarded to my Associate by the Independent Children’s Lawyer.  In a letter to the Independent Children’s Lawyer by the Mother’s solicitors of 29 January 2008, it is indicated that the Mother tried to contact the Paternal Grandmother to organise holiday time over Christmas but by the time a response was received it was too late for the Mother to be able to afford the flights.

3. In a letter from the Paternal Grandmother’s solicitors to my Associate of 31 January 2008 the final sentence is in the following terms:

   “According to the instructions from our client the parties reached agreement that the boys would visit the Mother in the June/July school holidays this year (2008), provided sufficient funds are provided by the Mother for a one way flight by April this year and our client will meet the return flight.”

4. I am unable to conclude either household would promote a relationship with the absent parent/grandparent.  If B and J move from the Northern Territory to reside with their Mother in Queensland there may be regular contact in all its forms with the Paternal Grandmother and the Father but apart from that nothing would occur to foster a close and continuous relationship with the family members in the Northern Territory.  At the present time the best that can be said is that the Paternal Grandmother does facilitate telephone communication between the Mother and the boys but as relayed by Ms P in the course of cross examination there is no positive attitude demonstrated in the Darwin household towards the Mother.

   From the Mother’s position the major difficulty in complying with arrangements to see her children is a financial one in the sense she is unable to pay her share.  This position is likely to be exacerbated if she were to have the financial burden of caring for four (4) children.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

i.       either of his or her parents; or

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

1. The boys are well settled in the Darwin environment.  Having regard to the chaotic nature of their upbringing prior to living with their Paternal Grandmother I have little doubt they appreciate the stability of the home environment and school environment presently available to them.  Prior to that time they were engaged in frequent changes of address, frequent changes of schooling, periods of separation of the parties and at other times separation from a parent because that parent was incarcerated.

2. The boys’ reports from school are positive.  There is an established status quo that has built up over the period of time the children have resided in the Darwin environment.  To remove the children from that environment would necessitate a change of schooling, a loss of school friends, a different curriculum, a loss of association with sporting bodies and friendships built up from such sporting contacts.  The other major change would be the separation in a physical and emotional sense from the Paternal Grandmother and the Father.  The benefit of being reunited with the Mother, M and S and developing a relationship with them has to be balanced against these considerations.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis

1. In the period of three and a half years since September, 2004 when the children first moved to Darwin there has been minimal time spent by the boys in their Mother’s care.  If the boys are to continue to reside in the Northern Territory I would envisage that there would be difficulties in organising travel to Queensland because of the associated costs.  If as a result of these proceedings the boys were placed in the Queensland environment the Paternal Grandmother would ensure more regular travel but I expect it is likely to be wholly at her expense.  I would not be adverse to ordering the Paternal Grandmother and/or the Father to pay the whole of the costs of such visits if in all other respects I thought it appropriate that the children be placed in their Mother’s care.

The capacity of:

i.       each of the child’s parents; and

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

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

1. The Mother conceded in cross examination that over the past three years she had had no contact with the children’s schools in Darwin.  She did not know the names of the teachers the children had.  She had not seen school reports. She did not know the names of the medical practitioners the boys attended.  In part this would be explained by the Mother being adverse to having any communication with the Father or his Mother but there was no evidence that she had discussed such issues with the boys in regular telephone conversations or that she had made direct enquiries with the school. 

2. The evidence would indicate the weekly telephone conversations between the boys and their mother are somewhat perfunctory.  The Mother is somewhat shy and anxious and I would assess she is not a good conversationalist.  The boys may be embarrassed at talking to their mother for a lengthy period of time knowing the attitude towards her in the Darwin household.

3. The Paternal Grandmother has been involved in the children’s education.  B informed Ms P that his grandmother helps him with his homework.  The Father and Paternal Grandmother have actively fostered the boys’ sporting activities.  B was house captain at school in his grade 7 year.  He has represented the Northern Territory in sports which has included travel to North Queensland.  All of this has been financed by the Father and/or the Paternal Grandmother.  Such sporting achievements would I expect do a good deal to increase B’s self esteem.

4. After her move to the Mother’s residence, M has experienced problems in her own education.  She has been suspended from the school a number of times.  The Mother conceded that she had not arranged counselling for M although it was generally agreed that M would benefit from such therapy.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant

1. No relevant submissions were made under this subsection nor did the evidence indicate the necessity for any relevant finding.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

1. In the course of cross examination of Ms P by Counsel for the Mother, Ms P observed (transcript of her evidence page 11):

   “What I did observe when I was in the home in Darwin in December was - - my assessment is the family needs to have a child or a scapegoat within the family and I felt that [M], from what I had heard and was reported to me, [M] had been the scapegoat prior to her leaving - - and what I was observing was that that shift was moving to [B] and that he was the child was experiencing more negation, less positives and [J] was the favoured child and I felt concerned around what I observed there.”

   I am unable to adopt this observation made by Ms P.  I had the distinct impression that B was greatly favoured for his sporting prowess and his school reports appear to reflect a growing self esteem.  The Paternal Grandmother helps him with his homework.  Money has been spent on his travel for sporting outings.  I find it unlikely there has been any form of discrimination as between the boys in the Darwin household.

1. At page 15 of her evidence in the course of cross examination by Counsel for the Mother Ms P observed:

   “I am not sure what the Mother is putting forward in terms of how she would manage this other than what she said to me is that, you know, she wants them there and I don’t think that is enough.  I think there needs to be more.  She needs to have been able to have thought it through and really show she has embraced the difficulties and have some real strategies in place.  I was concerned that she hadn’t been to [M’s] school in the nine months that I – when I last spoke to her and that is out of her shyness and sense of lack of confidence etc., so there are, you know, I mean there are some real vulnerabilities there.”

2. I accept the validity of this observation by the report writer.  Ms P made observations to the effect that the Paternal Grandmother had no resilience in terms of containing her son’s behaviour.  Such a comment does not accord with my own observations.  I was impressed with the strong personality of the Paternal Grandmother.  I observed her to be a sensible and organised woman.  She is very protective of her family.  I accept she finds it difficult to find fault with her sons but that is quite a different matter from being unable to control their behaviour as adults.  She was non-accepting of M’s assertions that she had been abused by her uncle K.  I take into account the fact that K had not been in Darwin for a significant period of time when M first raised the allegations.  I find there is merit in the submissions that she did not act in a sufficiently protective way when M first raised her allegations of abuse.  The anti-authority attitude of her son, the father, is to some extent reflected in the Paternal Grandmother’s behaviour when he continued to remain a member of her household notwithstanding directives from the Department that he should vacate.  By the same token I am more than satisfied there was no legitimacy in the allegations against the Father vis-à-vis M’s complaints.

3. I expect it is unlikely the Applicant would put her grandsons at risk in any way of physical or emotional harm.  An inference can be drawn from the available evidence she has monitored the children’s whereabouts and has detailed knowledge of their interaction with their Father.

4. At page 20 of the transcript Ms P repeated her concerns about a move to Queensland when she observed:

   “With [the mother] it is a very unknown situation and there are a few indicators that would question that she will manage it.”

   Again, I accept the validity of this observation by the report writer.

Family Violence

1. I am not satisfied there is any risk of any family violence directed towards the boys in either household.

2. As noted earlier I place little weight on the contents of M’s letter of late 2006 which is annexed to Ms P’s report of December 2006.

3. This letter was written at the request of the report writer.  It was written a few months after M had moved to her mother’s care.  I expect the child had some concerns she may be returned to Darwin and did not want this to occur.  The contents of the letter appear “over the top” in relation to each adult member of the household.  In assessing the accuracy of the allegations I have had regard to the evidence of Ms N, Ms G and Ms L on the one hand and the psychologist/therapist Ms X on the other. 

4. In the nine page report of Ms X dated 12 March 2007 (part of Exhibit 2) she notes that she saw the Paternal Grandmother and M on many occasions in the period from 30 May 2006 through to 18 September 2006.  She observed M was very hostile with the Paternal Grandmother’s failure to believe her allegations of sexual abuse by her Uncle K.

5. There is evidence that M had in previous times acted in a promiscuous manner towards K.  Whether this led him to act in a sexually inappropriate manner with M I am really unable to say but I accept that M was very hostile towards her Paternal Grandmother for her failure to believe her allegations of sexual abuse.

6. M disclosed to Ms X that she definitely wanted to live with her mother.  In page 4 of her report of 12 March 2007 she observes:

   “Part of the reason for this was that her mother believed her about the sexual abuse; plus she admired her mother’s youth and vitality and felt she could talk to her mother more easily than to other family members.  [M] was convinced her mother had changed and given up drugs.  Before, [M] reported she did not like the fact that her mother had lots of men over and would use drugs.  [M] also indicated that previously she felt protective towards her mother and would watch her mother through the hole in her bedroom wall.  The fact that her mother wants [M] to live with her is significant as well.”

7. In assessing the positives and negatives of residing with the Paternal Grandmother at no stage does M make any reference to the serious type of allegations which she sets out in the letter annexed to Ms P’s report.

8. Under the heading of “Assessment” at page 8 of her report Ms X records:

   “This family, and [M] in particular, have proved to be very confusing.  Information given separately to the various members of her support team was not always consistent and there was a sense that [M] was scheming to meet her own needs.

   This behaviour of itself may be abuse reactive and there is evidence that [M] has been sexually abused in the past.  The problem is determining the perpetrator of the abuse and thus developing a plan to keep her safe.  Her sexualised behaviours and beliefs around sexual activity were evidence of being a victim or modelling victimised behaviour.  It seems she desperately sought to be special, loved and nurtured and looked to replicate this in her environment, often to her own detriment.  This behaviour probably emanates from the fractured attachment bonds with her parents. 

   Her abrupt departure to return to live with her mother is of concern.  It is not clear if [the mother] has developed the skills to cope with a headstrong, indulged adolescent girl who has gained a great deal of power and autonomy over her own life at far too early an age.  [M] knows well how to use the system to have her short term needs met, but is not thinking long term as she does not yet have this capacity.

   Her education has suffered and she may never recover as [the paternal grandmother] was the one who assisted her most with this.  This would have long term implications for her future vocational life.”

9. In quoting from this report I am only too conscious that the care of M is not an issue which I have to determine.  However, I have made reference to the contents of her letter as they reflect badly on the environment in which I am being asked to leave B and J.

10. Having regard to the ages of these boys and the number of times they have been interviewed, if they had concerns about the Paternal Grandmother’s environment I am more than satisfied that there would be at least a hint of this in the material reporting on their wishes.  I can find no evidence of this.

Other Factors

1. I do not find any other factors to be of relevance.

Submissions on behalf of the Mother

1. Central to the Mother’s case was the theme that it was a “now or never” situation – if the boys did not move to her care now they would never have an opportunity to develop a relationship with her.

2. I accept there is no criticism of the Mother’s care of the youngest child, S.  S has at all times been in the Mother’s care.  The evidence would indicate the Mother has had difficulties managing M since her return to the Mother’s household in October 2006.

3. The Mother has the support of the children’s maternal grandmother – I have already made positive comments about this development.

4. A significant hurdle for the Mother to overcome is that on her own admission she could well have considerable difficulty in caring for four children.  Her accommodation is not set up for four children.  She has had difficulty in managing M’s return.  I accept that by all reliable accounts M has at times been a difficult child to manage.  It is likely there would be considerable friction between M and B in view of the evidence of past conflict between them.

5. I accept that an important factor in acceding to the orders as sought by the Mother is that the children would be reunited in the one household and B and J would have the opportunity to develop a relationship with their Mother. 

Submissions on behalf of the Applicant Paternal Grandmother

1. Counsel for the Paternal Grandmother relied on ten factors why the children should remain in his client’s care.  In summary form these were:

   i.The Court could not be satisfied the Mother has demonstrated a capacity to care for all four children.  A corollary to this submission was that M has always been a difficult child to manage.  At age nine the Mother sent her to Darwin to be cared for by the Paternal Grandmother.  Since her return to the Mother’s care she has notified authorities that she had been “kicked out of home” by the Mother and wished to return to the Paternal Grandmother’s household.

   ii.The Paternal Grandmother has done a good job in raising the children, stepping into the task when the parents themselves were unable to do so.

   iii.The Mother’s past history of drug taking and instability cannot be ignored.  There is no equivalent risk in the Darwin household.

   iv.The Mother’s past history of criminal behaviour cannot be ignored.  Again with no equivalent risk in the Darwin household.

   v.The Mother’s relationship with B has at times been problematical.  The Mother conceded in cross examination it has been very stressed at times.

   vi.Having regard to the age of the boys and their general level of intelligence the Court should give their wishes considerable weight.

   vii.There has been a lack of commitment by the Mother towards the boys.  This is reflective in the fact there has only been one contact period in three and a half years.  There has been no involvement in the children’s schooling and other activities.

   viii.Because of ongoing problems the Mother has had with M the Court could not have confidence the Mother could cope if two other children were to be introduced into the Mother’s household.  Ms P described such a move as “precipitous”.

   ix.Exhibit 5 being the file of the Northern Territory Department of Family and Children Services reveals the extent of the difficulties in dealing with M.  Exhibit 5 would indicate there have been ongoing difficulties with the Mother’s relationship with M. 

   x.The Mother has not provided relevant information which has to come light from other sources.

2. There is credible evidence to support each of the above submissions.  I accept the accuracy and force of these submissions.

Position of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer in the course of final submissions supported the position of the Applicant Paternal Grandmother so far as the boys, B and J, remaining in Darwin was concerned.  This position was reached not without some reservations which were forcefully expressed.  For the reasons I have set out above I am minded to accept this recommendation.

2. The Independent Children’s Lawyer was of the view that no Order should be made in relation to S as the Father was not accepting he was the biological father of this child.  In the course of his final submissions Counsel for the Mother had adopted the position of the Independent Children’s Lawyer so far as M and S were concerned.  S appears to be the forgotten child in this litigation.  The Father has certainly been treated as the father and no attempts were made to establish he was not the biological parent.  The Paternal Grandmother in her further amended application had sought orders for S from mid-year 2009 to travel to Darwin. 

3. The way I have framed the orders is such that S would only travel to Darwin provided the Mother was agreeable and providing the Paternal Grandmother and/or the Father paid the whole of the costs of the return airfare.  The view that I have taken is that at the very least even if the Second Respondent is not the biological parent of S it would give S the opportunity to develop a relationship with his half brothers, B and J.  There is of course a possibility that the Mother may not be able to raise the funds for B and J to visit her in Queensland in which event the only opportunity S would have to meet his brothers would be by the Paternal Grandmother or Father funding such travel for S to Darwin provided the Mother has approved same.  I see no prejudice to the child in formulating orders in these terms.

Conclusion

1. It is not possible to make an order which would comply with the legal imperative to foster a relationship with both parents (and grandparents). 

2. It is possible the Mother may be able to develop a relationship with B and J in the fullness of time but to do so she would need to make significant changes.  In particular she would have to:

   ·    Ensure she can avail herself of every opportunity to spend time with the children.  I fully accept the difficulties in this regard where she is on a limited income.

   ·    She would have to make a greater effort to be involved in the lives of the boys by writing, sending gifts, evincing an interest in their schooling and other activities.  At the present time the communication appears to be limited to a perfunctory telephone call once per week.

3. I propose to put in place orders for B and J to remain living with the Paternal Grandmother.  My reasons for so doing are as follows:

   ·    The status quo favours this arrangement.  The children are well settled in this environment.

   ·    It will enable the children to continue a relationship with their Father.  With his history of criminal behaviour and drug taking I accept the Father does not pose as a great role model for his sons but he does assist in supporting them.  There is no evidence at the present time the children’s relationship with their Father has any adverse impact on them.

   ·    Such an order accords with the children’s wishes.

   ·    Such an order accords with the recommendation of the experienced Independent Children’s Lawyer.

   ·    Such an order accords with the recommendations of the social worker Ms P.

   ·    I have serious concerns about the Mother’s capacity to care for four children.

   ·    I have concerns there would be conflict between M on the one hand and B on the other, having regard to the past behaviours of both children.

   ·    I am aware of the serious nature of the allegations M makes about her Uncle K and indeed all members of the Paternal Grandmother’s household.  I have detected in the evidence of M a tendency to embellish stories and manipulate situations to her own best advantage.  I am not disbelieving of her allegations but have preferred to adopt the course that her safety is not a consideration as her care is not in issue.

   ·    I accept it would be desirable to reunite all four siblings but the benefits of such an outcome must be counter balanced with the other factors which I have fully considered.  For these reasons I make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  11 June 2008