CHM and GML and Anor
[2004] FMCAfam 35
•13 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHM & GML & ANOR | [2004] FMCAfam 35 |
| FAMILY LAW – Residence – application by maternal grandmother – mother’s self-immolation – father’s use of cannabis – mental health issues – contact – s.68F of the Family Law Act1975 factors. |
Family Law Act 1975
| Applicant: | CHM |
| First named Respondent: | GML |
| Second named Respondent: | CTH |
| File No: | MLM 9372 of 2002 |
| Delivered on: | 13 February 2004 |
| Delivered at: | Melbourne |
| Hearing dates: | 20 January 2004 10, 11 & 12 December 2003 28 & 29 October 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P. O’Connell |
| Solicitors for the Applicant: | Arnold Dallas & McPherson |
| Counsel for the First-named Respondent: | Ms J. Elleray |
| Solicitors for the First-named Respondent: | McDonald Scott & Waters |
| Counsel for the Second-named Respondent: | Mr N. Eidelson |
| Solicitors for the Second-named Respondent: | Rogers & Every |
| Counsel for the Child Representative: | Mr M. Ramsay |
| Solicitors for the Child Representative: | Donald S. Lampe |
ORDER
That the child of the relationship J, born April 2001 live with the mother and she be solely responsible for the day-to-day care, welfare and development of the child.
That the father and mother and maternal grandmother have responsibility for the long-term care, welfare and development of the said child.
That until further order the father have contact with the said child as follows:
(a)on each first alternate weekend from Friday 5.00 pm until Monday 5.00 pm and on each second alternate weekend until Tuesday 5.00pm;
(b)on each other weekend from Sunday 5.00 pm until Monday 5.00 pm; and
(c)at such other times as the parties may agree upon in writing including contact on special occasions.
That TC forthwith attend upon her general practitioner for the purpose of obtaining a referral to a treating psychiatrist and she undergo appropriate psychiatric treatment for a period of at least 12 months as directed by such psychiatrist.
That for a period of 12 months commencing this day the mother attend therapeutic counselling as recommended by her general medical practitioner.
That for a period of 12 months commencing this day the mother continue to attend programs as recommended by S L’s WA.
That for a period of 12 months commencing this day the mother attend drug and alcohol counselling as directed by the Salvation Army.
That until further order the mother reside within the greater B area and the father reside within the B area.
That the maternal grandmother have reasonable contact with the said child as requested by her.
That the maternal grandmother and grandfather or either of them be at liberty to visit the mother on a daily basis.
That the father and mother be restrained from consuming illicit drugs.
That all changeover for contact periods occur at the home of the maternal grandmother and the father be responsible for the collection and delivery of the said child.
That the said child be at all times conveyed when in a motor vehicle in a properly fitted car restraint.
That the father undergo a psychiatric assessment within the next
4-month period commencing this day and provide a report pertaining to such assessment to the solicitors of the applicant grandmother, the mother and to the child representative.That each of the mother and father have the said child in their care for a period of at least 4 hours on each of the parents’ respective birthdays and on the child’s birthday regardless of any other orders to the contrary.
That the mother and father share Christmas Eve/Christmas Day periods with the said child residing the mother from 3.00 pm Christmas Eve 2004 until 3.00 pm Christmas Day 2004 and alternate years thereafter and with the father from 3.00 pm Christmas Eve 2005 until 3.00 pm Christmas Day 2005 and alternate years thereafter. The child shall then spend from 3.00 pm Christmas Day until 3.00 pm Boxing day with the other parent.
IT IS FURTHER ORDERED BY CONSENT:
That all previous orders at to the residence of B be discharged.
That the applicant maternal grandmother and the mother and B’s father, Mr B have joint responsibility for decisions concerning the long-term care, welfare and development of the child B born December 1996.
That the child live with the mother and she be solely responsible for her day-to-day care, welfare and development.
That the father have such contact with B as is agreed between himself and the mother.
That otherwise all extant applications are dismissed and the matter removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9372 of 2002
| CHM |
Applicant
And
| GML |
First-named Respondent
| CTH |
Second-named Respondent
REASONS FOR JUDGMENT
Proceedings were commenced in this court on the 8th November 2002 by the applicant maternal grandmother seeking orders that the child J born April 2001 reside with her and have contact with his father as ordered by the court. As a consequence of further events occurring over the passage of time an amended application was filed by the grandmother on the 17th September 2003 in which she then sought that the child J about whom this litigation was conducted, and his half sister B, reside with the mother subject to certain conditions with which the mother agreed. The father of the child B likewise agreed to the grandmother’s proposals. B’s father, Mr B, took no active part in the proceedings. He did however attend on the first day of the hearing to indicate that he consented to the orders sought by the grandmother. The child representative also urged the court to make the orders sought by the applicant maternal grandmother and by the mother, save the child representative urged the court to provide a longer period of contact than that which they proposed between J and his father.
Effectively the mother, maternal grandmother and child representative were united in their approach to these proceedings as regards the residence of J and the orders which they sought the court to make. The father sought differing orders, namely that J reside with him and that he be solely responsible for his day-to-day care. He sought an order as between himself and the mother as to the long term care of J whilst the mother and grandmother and child representative sought the inclusion of the grandmother in the long term care of J. At the conclusion of the proceedings he proposed orders that until J commences school in 2006 the mother have contact from 5.00 pm Friday until 5.00 pm Monday in each alternate week, and from 5.00 pm Sunday until 5.00 Tuesday in each other week and otherwise for such times as agreed subject to conditions in the main as that proposed by the grandmother and agreed to by the mother at the outset.
Statements of fact in these reasons should be taken as finding of fact on the balance of probabilities.
History
CHM and GML were in a brief relationship for approximately four months and during that time T fell pregnant with J. Prior to the birth of J, T and M had already separated. Following their separation and the birth of J, the father brought an application for residence of the child. The mother filed a response and the father then failed to attend the court hearing and orders were made on the 16th January 2002 in the Magistrates Court at B wherein it was ordered that the child J live with his mother and she be solely responsible for his day-to-day care, welfare and development. Contact with his father was reserved. Over the following 8 months contact would occur on occasion, those occasions being on an alternate weekend basis interspersed with periods of a number of weeks of no contact. I accept the evidence of NH and the mother that the father’s contact at this time was not regular. The father made no financial provision for the child.
T has two other children, M born on August 1990 and B born on December 1996. Both M and B have spent large periods of their lives with their maternal grandmother and indeed B, pursuant to a Children’s Court order, resides with her maternal grandmother. The maternal grandmother is a registered foster carer and has in her permanent care a child C born August 1992. This child is the child of a relative of the grandmother.
Following the birth of J, T suffered from depression and was prescribed and took anti-depressant medication. She has a history (to which I shall subsequently refer) of mental illness. In or about August of 2002 she found herself pregnant again this time to a VH. He was then her defacto. She ceased her anti-depressant medication. She was under considerable stress as a result of various factors in her life at that time which included the criminal activity of Mr H and his associates. She became very erratic in her behaviour and appeared ill. She was in conflict with her mother and indeed deposed in her early affidavit that it was her problems with her mother which caused her to self-immolate. On the evidence this is clearly not the case. Their relationship overall is a strongly bonded and affectionate one. There is a mutual respect. This was at a time when clearly the mother was very psychiatrically disturbed. She was fearful for the safety of herself and her children as a consequence of her association with Mr H. Her mother sought assistance from the police who had T briefly in custody for damage to a council rubbish bin. The grandmother requested a psychiatric assessment, but no assistance was forthcoming. Her grandmother was at the time seeing her daughter and grandchildren daily in response to her concerns as to the mother’s then psychiatric functioning. This is a role that has always been performed by the maternal grandmother and shall continue to be.
On 30th September 2002, T attended at the home of her mother with B and J. T went into the front yard and doused herself with paint thinner and set herself alight. B and J saw their mother and heard her screaming. The grandmother called an ambulance and T was transported to the Hospital where she was initially unconscious. She lost the baby. She remained at that hospital for a time and then spent a period of some four to six weeks at a rehabilitation centre. Following her hospitalisation, M and B remained in the care of their grandmother. J also was taken into his grandmother’s care until J’ father unilaterally removed J from the care of his grandmother and the company of his half-brother and sister. Initially M had been happy for J to reside with the maternal grandmother and he had accompanied the maternal grandmother on her visits to T in hospital. He had not been told of the mother’s injury to herself until the 10 October 2002 when he was told by a friend. He thereafter impressed the grandmother with his compassion toward T. He had overnight contact with J on one occasion and returned him to the care of the grandmother. I accept the grandmother’s evidence that the father told her at around the time they together went to visit T in hospital in Melbourne, that he was suffering from depression and that he used marijuana and had in the past used ecstasy and amphetamines. His own evidence confirmed this. On the weekend of 19th October 2002 and pursuant to arrangements made between the father and grandmother, M took his son for a weekend period of contact. He failed to return him to the grandmother’s care. M then refused J contact with his brother and sister despite the grandmother’s repeated requests. This caused J considerable distress. He had difficulty in settling in and would bang his head against the wall and hold his breath until he passed out. Both the mother and Ms H gave evidence which I accept that the father told them he was taking J away from the care of his grandmother as a form of revenge against the mother for her earlier action in notifying the police of his cultivation of a marijuana crop. I accept he said this although I have concluded it was not his main motivation. He saw an opportunity to remove J from his mother’s care and took it without a mature consideration of the consequences for J. He misguidedly thought he was acting protectively.
T is the fifth of her mother’s seven children. Her three children each have different fathers. She is currently pregnant again to Mr M and due to give birth in May this year. The mother has generally encouraged contact between each of the children and their respective fathers. In the preceding 12 months before the mother’s setting of herself alight, M, B and J had resided with their mother and together. M’s taking of J into his care caused trauma and anxiety for B and M at a time when they had to deal with the grief and trauma of their mother’s attempted suicide and the uncertainty about her recovery. M in particular missed his brother and was angry about his separation from him. M has significant behavioural difficulties. He is on anti-depressant medication and is currently seeing a paediatrician. He was disliked by both Mr B and Mr G and victimized by them. His mother concedes that in the past she has failed him in not putting his care as a first priority.
The mother T was born on April 1974 and she is now aged 29 years. The father was born on the July 1970 and is aged 33 years. The maternal grandmother was born on the September 1946 and is aged 57 years. M and T commenced their relationship in or about May of 2000 but they did not at any time live together. About eight weeks into that relationship, the mother informed the father that she was pregnant with the child J. He ceased his relationship with her as a consequence. However, the father attended at the hospital for the birth and the father visited the mother and child at their home in the early months. The father’s earlier application for residence of the child which he effectively abandoned was based upon his stated concern for the welfare of the child whilst in the mother’s household. He said he had grave concerns given the respondent mother’s then emotional state and her disregard for the child’s physical wellbeing given his many respiratory problems which was a reference to the mother and her friends and family smoking in the presence of the child. The father said at that time that the mother had asked him to collect her prescription for the anti-depressant drug Zoloft and that upon his return the mother took the tablets and told him she would swallow them all after he left. He intended as a consequence to take J to reside with him at his parents’ home where he said he would have the support of both his parents (his mother and step-father) to help him care for him. That application he did not proceed with. M also has a daughter who resides in Perth with her grandparents and is aged approximately 12 years. He has almost no contact with her.
Following the mother’s admission to the Hospital she was transferred to a rehabilitation unit in B and from 2nd January 2003 she was discharged from that unit and thereafter lived at her mother’s home in C. She resided in that home with her son M, her daughter B and her parents H and D and their adopted child C. At the time of trial she was continuing her residence at that home although was spending some time independent of her family support.
The mother has a home available to her at 4 D, L. Her injuries do not incapacitate her in that she is able to live alone and provide the necessary support and supervision of her children. The home at 4 D is a three-bedroom brick home in a residential suburb of B within walking distance of the primary school and bike-riding distance of the secondary school. It is close to the maternal grandparents home and is the home in which the mother proposes to reside. The father’s home is at N in a more remote locality and his interaction with the community limited.
The father’s marijuana habit has involved criminal activity. Members of the police force raided his mother’s home at the time he was living there where he had established a hydroponic plantation of 4 marijuana plants and as a consequence of which he was charged with cultivation and possession of marijuana. He believed the mother to be responsible for this raid. He reflected not at all upon this criminal activity and repeated it in greater degree at a later date. In or about March of 2003 the police raided his residence in N as he had in the ground 6 plants ranging from 4 to 5 feet in height with a total weight of 4.7 kg. The father was charged again. He requires a crop for his own use and I conclude is incapable of remaining free of his marijuana addiction for any sustained length of time. Given his history of mental health this presents a significant problem. On 19th November 2002 it was ordered by consent that the father until further order undergo weekly supervised urine drug screens and provide the results of same to the applicant’s solicitors forthwith. The father has not complied with this order on a weekly basis. He is indeed incapable of compliance.
As a consequence of the events of 30 September 2002 and in the period thereafter, on 19 November 2002 all previous residence orders were suspended and until further order the child J was to live with his father with the applicant grandmother having contact from 5.00 pm on Friday to 5.00 pm on Sunday in each alternate week and from 5.00 pm on Monday to 5.00 pm on Wednesday in the other week. Any contact between the child and respondent mother was to be supervised by the applicant grandmother or her nominee and the proceedings were adjourned to the 4th February 2003. A child representative was appointed on the 4th February 2003. The applicant grandmother’s contact altered so that she had 5.00 Friday until 5.00 pm Monday in each alternate week, and from 5.00 pm Monday until 5.00 pm Thursday in the other week.
Mother’s history of psychiatric care
An affidavit was provided on behalf of the mother by S, Registrar in Psychiatry. Dr S was not required in cross-examination and his evidence is unchallenged. He described T as having a history of substance use and a major depressive disorder with previous significant self-harm behaviours. These were prior to August 2002. He described her contact with psychiatric services to have begun in 1989 when she had her first suicide attempt at the age of 15. In 1998 she had further contact with the B Group Psychiatric Services, and again in 2000 with depression and suicidal ideas. In June of 2001 she had contact and was diagnosed with a mild episode of major depression. This was in the months following the birth of J. She was treated with anti-depressant medication and she was the recipient of Psychiatric Service Crisis Assessment and Triage Team contact and monitoring until early July 2001. In September of 2002 the episode of her causing burns to herself intentionally occurred. She suffered significant serious burns to her body in particular the lower half and to her left hand. Contact following this was on 10th January 2003 when Ms T was referred by her mother for assessment of and support for depressive symptoms and her difficult life situation. It was at that time that these ongoing residence proceedings were before the court and she had reported that her mood was fluctuating and she was depressed. She was already on anti-depressant medication, the dosage of which was increased. She was noted to be tearful and felt trapped in her situation. She felt that she had lost her independence due to her former decision-making having been taken away from her. She had at that time reduced enjoyment, low self-esteem and poor outlook on her future. The consultant psychiatrist who reviewed her at the time provided an assessment concluding she was suffering from depression secondary to a difficult situation. That psychiatrist saw no impairment to her decision-making capacity at that time and advised continuation of her anti-depressant medication. The Psychiatric Service maintained ongoing contact with Ms T, she being reviewed again in February 2003 when at that point her mood had improved but still fluctuated day to day. Her social situation had improved in that she was no longer under VCAT injunction wherein her parents were her guardians. The order was to have continued until May 2003 but was discharged in January 2003 due to T’s rapid recovery. She was using marijuana on a casual basis and was going to alcohol and drug counselling courses in K and was contemplating ceasing and abstaining from all drugs. The recommendation at that time was to continue her anti-depressant treatment and she had ongoing follow-up which was formally terminated on 19th February 2003. At that time it was documented that she was feeling good and that her mood had lifted. She was sleeping well and feeling improved. She denied any self-harm ideas and believed that the anti-depressant medication was at that time working. She was accordingly referred back to her GP. The next contact with the Psychiatric Service was a referral initiated by the mother herself and her mother on 27th June 2003. This was to assess and assist with worsening of depressive symptoms which included a threat by her to burn down the house and kill the occupants. She was assessed that day and again on 1st July 2003 wherein it was reported that she had felt an improvement in mood in the previous week. She denied any suicidal ideas or ever having thoughts of wanting to harm her children. The diagnosis was that she had no symptoms consistent with a then manic episode or psychotic illness. She was found to be focused on staying away from her drug use and had been involved in drug and alcohol counselling through the Salvation Army. Psychiatric assessment at that time was that she had few symptoms consistent with current depression and that she was controlling her drug use while focusing on the future custody hearing. She had importantly appeared to be stable and was not in need of anti-depressant treatment. She was assessed as not needing P.C.A.T.T. involvement. Overall, the psychiatric assessment was that the disorder suffered by the mother is one characterised by periods of remission and absence of symptoms as well as episodes of return or recurrence of depressive episodes. Maintaining a stable and as much as possible stress-free lifestyle would protect against a recurrence of a depressive episode.
The mother’s psychiatric history had not included any admission to a psychiatric hospital and was placed before the court. She at the time of trial had been stable for some time and was off anti-depressant medication. She was co-operative with all health providers and sought out and used community services and supports. She was improving her health and abstaining from drug usage. The unknown factor is what her response psychiatrically to the birth of another baby in May will be. She is attuned to that issue and will I am satisfied seek out treatment. Her mother is sufficiently vigilant to generally supervise her daughter’s attendance on psychiatric services and request same if she observed it to be needed.
Evidence of Diane Dockery, psychologist
Ms D, psychologist, prepared a reported dated 28th August 2003 pursuant to orders made by the court. Ms D noted the current routine to J’s care which had been arranged by agreement between Mr G and the maternal grandmother, namely that J is currently residing with his father from Sunday 5.00 to Monday 5.00 of the following week (8 overnights per fortnight) and with the maternal grandmother from Monday 5.00 to Sunday 5.00 (6 overnights) per fortnight. The mother is residing with her mother.
Unfortunately, during the overall interview session with Ms D, the father was informed by the mother that she was again pregnant to him which caused the father considerable dismay. This news likewise caused each of the maternal grandmothers considerable dismay. The mother, on the other hand, thought of it positively. The mother was manipulative in her choice of timing to impart this news to the father. She did so in the presence of J. The father reacted angrily. This of course impacted adversely on J and the mother showed little insight in this regard. She then comforted the child who had sought her out in his distress. The child was observed to regress in his behaviour and his initial clear speech degenerated into unintelligible babble. The father blames the mother for this pregnancy saying she had deceived him as to her ability to conceive. This is a woman whom the father has not trusted for a long time and whom he does not want another baby with. From his perspective, ensuring prevention was not his responsibility.
Ms D noted the grandmother’s emphasis on the need for sustaining the sibling relationship between M, B and J. Mrs C was observed to be devoted and committed to all of the children. Her view was that ideally she felt the childrens’ place to be with their mother which she would support so long as support networks were in place for her daughter. Ms D concluded that the grandmother appeared to have the needs of all three children as her primary motivation. She noted she demonstrated insight into the children’s differing needs; acknowledged that all three siblings should be together and that J’s current routine of shared care between the two households was not ideal for him. In her interviews with the father Ms D observed that he displayed no goodwill whatsoever toward the mother. Furthermore, she noted importantly that he had difficulty in focusing at all on J and his needs and stated that indeed his main focus was on two other matters. His car in general and the damage to it; and his personal negative views of the mother. He presented to Ms D as a notably angry young man. She gave evidence that his defensiveness was particularly evident when asked about the positive results of his drug tests. He made it clear to the counsellor and indeed to the court in the giving of his evidence that he was not going to and/or was not capable of, in the long term, modifying his cannabis intake in any way. He said as to the relationship between J and his half-siblings that “I don’t want them around him, (J) … they’re psychologically damaged”.
The father told Ms D that he planned to move to the NSW coast and that he wanted to take J surfing. He did not suggest what contact he envisaged the child would have with the maternal family if he and J were living in NSW. The psychologist concluded that the father presented as having very little insight into the needs of J. She noted that he did not appear to even acknowledge the child’s need for a relationship with the maternal family and significantly with his half-siblings or the value of siblings, or the value of those present relationships, for J.
In relation to her interviews with the mother Ms D noted that the mother perceived her current pregnancy to Mr G to be “another achievement” in her life. This was despite the fact that their relationship was over and that they were absorbed in acrimonious litigation. At the time of the interview Ms C’s feelings toward Mr G were unresolved but were not reciprocated by Mr G. Ms D concluded the parties had no ability to cooperate in their important role as parents whilst at the same time the mother could not separate emotionally from J’s father. The mother described the sibling relationships as “very affectionate and extremely close”. The mother acknowledged that J loved his father and should have a regular contact routine with him in contrast to the father’s attitude at that time to her contact with J. She however had concerns about the child J remaining in his father’s care, alleging that the child had returned from contact with black eyes and bruising and that his behaviour had gradually become more aggressive since the current routine was implemented. The mother satisfied the psychologist that she had various support networks in place for herself and that she was accessing them on a regular basis. She appeared to the psychologist to show insight into the needs of her three children, albeit it was concluded she had unresolved personal issues centreing on her low self-esteem and lack of personal confidence. The psychologist noted that she was a woman who was pregnant with her first child at sixteen years of age and is now pregnant with her fourth child to a man who currently has no goodwill toward her whatsoever. I observe the mother’s history of male partners is one wherein she has suffered through the infliction of considerable domestic violence and where her son M has suffered ostracization at the hands of the mother’s male partners causing him to remove himself from his mother’s care.
The psychologist recommended that this particular family’s needs might best be met within a public welfare support network which the mother is willing to involve herself in. She recommended all three children reside together and indeed three children will soon become four. She noted that re-establishing a secure family unit must occur within the maternal family and that the father did not present as in any way focused on J’s needs. His focus was on his own needs. She was highly critical of the father saying he had no understanding at all of what a child needed. I conclude that this is too extreme an assessment. He has cared for J for some considerable time and there is evidence that they have a close bond. However much is not known about the father and the day to day care he provides. J is described by Ms D as an anxious and distressed little boy. He has had much to be distressed about. The psychologist recommended that all three children live together in the primary care of their mother and that a reliable support network be put in place beforehand. She concluded it essential for the mother to establish that she would access such network and allow the maternal grandmother to be involved in a general overseeing role. As to the contact she proposed for the father, she said:
“This child needs to regress, if you like, or go back in time and consolidate his relationship with one primary parent at an initial stage and then move on to perhaps increasing the quantum of time with the non-resident parent. I would agree that he has consolidated his relationship with his father but I would say that that was exclusively or not including other people. I have no information that the mother was not around for a major part of this life, or not around when he was in the care of this grandmother.
So I think the primary issue for this child is actually putting him into a stable routine in one place, a consistent routine, where he can continue to form the relationships with – not just his father, but the maternal family members as well, and once that routine was in place, then it perhaps depends on the relationship between the parents, move to perhaps more time with the non-resident parent and, of course, as my report says, non-resident parent would be the father in terms of high recommendation.”
Other evidence
Mr P gave evidence in support of the father’s application. He is a mental health worker and the father’s brother and there is a close relationship. His observations of the father’s interaction with the child led him to conclude that the father was capable of caring for J in the long term. His wife A, the sister-in-law of the father provided supporting evidence. However, their observations were far too limited – the time spent with J and his father being minimal. He conceded that marijuana usage does not support good mental health and that M his brother was a regular user. He however and surprisingly from the court’s viewpoint did not deem it advisable to encourage him to give it up completely. He saw it as a choice the father had to make. His view was that the father was mentally stable if he smoked in moderation being one or twice a week.
Mr N, a registered counsellor by profession, prepared a report on the basis of his six sessions in counselling with the mother since late 2003. The mother is compliant, attends and follows through on suggested activities. Other than provide evidence that the mother is compliant and currently interacting with community supports, his evidence was not particularly insightful as to any future prognosis of the likely behaviour of the mother or indeed as to any conclusions that may be drawn from her behaviour in the past. He was an optimist who showed little real understanding of her depressive illness. He accepted his history as described by her without question or the need for elaboration. He however is in the role of providing support and encouragement to the mother. Certainly he is assisting the mother in dealing with the loss and grief of her self-immolation.
Although the grandmother described the father as “meddling with my (her) daughter’s emotions” to the devastation of the daughter, she has been and remains willing to accept him into the family. She impressed me as a generous reliable and caring woman who is dedicated to the promotion of the welfare of these children and her own. She was a credible witness. She said of the father that she was very impressed that he was brave enough to stay in the hospital for such long periods of time with the mother in the condition in which she was. She stated she was impressed with his strength in being able to do that, her daughter being in a coma and on life support.
Evidence of the father
The father was last engaged in employment in December 2001 when working for the A Shire. That was a full time job doing road maintenance. The position was commenced by him in January 2001, his departure from it arising as a result of complications he had with other employees. He described it as –
“an entrenched workplace”
Between December 2001 and November 2002 he worked for MS performing about eight hours a week. This did not infringe upon his unemployment benefit. Since November 2002 he has not been in employment. Interspersed there was a one-day period of work at the C factory. He described that likewise as “an entrenched workplace”. When asked to elaborate upon that description he referred to it as an old army term, saying “to mean that you single out the weak. Everyone is in support of everyone else being against one individual”. He determined that the bacon factory was an entrenched workplace because he concluded that someone had been into his car during the course of the day.
The father left school having completed Year 9 when he was aged 15. He at about this time commenced his use of marijuana. He worked on dairy farms and then moved to Melbourne to work in a sign company for a period of a year and a half. From there he moved into panel beating and spray painting before deciding to move back to the country at age 20 years. He worked in B for a period of time before travelling to Queensland and working up there for approximately 12 months. He spent a period of time in Perth and again in 1993 and 1994 worked in Queensland. He was unemployed during part of the time in Queensland. Upon his return to Melbourne he worked in Richmond as a leadlight artist for approximately five years and moved back to the country in 1998. He then set up his own leadlight business between the end of 1999 and January of 2001 whereupon he joined the A Shire. As to his future employment, his evidence was that:
“when a job comes to him or when he goes to a job”
he shall be employed. He hoped to get into the paving business and felt there was scope and income sufficient in that area.
When cross-examined as to whether he had suffered from depression, he acknowledged that he had done so in the past, being around 1998 following his cessation of work in Road. He had not earlier alluded to this. His evidence at trial was that he had admitted himself to the Psychiatric Centre. His hospitalisation was for a period of two weeks and he was not on medication. He said he admitted himself because he was depressed as a consequence of leaving Melbourne and losing friends. He claimed that his health had deteriorated. Thereafter he added that his mother had recommended such admission and he had followed her advice. He described the treatment as counselling through nurses and doctors with subsequent follow-up with a psychiatrist each week for a period of about four months.
M was not forthcoming about his psychiatric history. He failed to recall his involvement with the Psychiatric Services in 2001. He was last seen by that service in July 2001. When put to him he conceded that he does suffer from depression and has been diagnosed with a schizophrenic illness. He does not accept the diagnosis. He also conceded that he had been advised by his treating doctor that the schizophrenic illness he suffered was possibly made worse by increased marijuana use. He does not accept that opinion. Having previously denied being on anti-psychotic medication he conceded in cross-examination that indeed he had been in the past. This aspect of the father’s history combined with his addiction to marijuana is very worrying. There is no psychiatric evidence as to his current functioning before the court. There is no acknowledgment by the father that he has a psychiatric illness. At times in the giving and content of his evidence he appeared to exhibit paranoia. His mother confirmed this in her evidence. The father himself thought people tried to make him paranoid although said he was not.
In December 2001 criminal proceedings involving the father related to his cultivation, possession and use of marijuana and five weapon charges. The weapons charges were three long arm offences, a laser pen and a set of nunchackers. The long arms were in fact two orange guns and an air rifle used by the father for entertainment and skill enhancement. Prior to the police raid on his parents’ property, the father was smoking between half a gram and a gram (four joints) a day. Prior to the March 2003 raid and following his move into his own home he smoked marijuana regularly and up to four joints a day on most days. His mother had not allowed him to smoke on her property following the first drug raid for a period of perhaps some twelve months. Because the father was without his “toys”, being the orange guns and the air rifle that the police had confiscated and was unable to smoke marijuana, his evidence was that he started looking at other avenues for entertainment so that he actually went out and made friends with people in the town and started socialising. When asked as to what effect it had on him emotionally not taking drugs for a year, the father responded:
“well, I’ve stopped again now and my emotions seems to be a lot more intact, I can think a bit more clearly and I’m getting more physically actively, yes.”
He had said that whilst taking drugs he was fairly lethargic. He claims to have been drug free for about 10–12 weeks now. I have no confidence that state, if it exists, shall continue. He conceded this habit harmed his health.
The father said he had a few problems living in C with the locals who say rather nasty things to him. The father also complained of having left his motor vehicle parked in spots whilst he went in to the supermarket to come out and find it scratched and dented. He would as a consequence get a bit short tempered that people that did these things to him. Throughout his evidence he returned form time to time to his concern and pre-occupation with damage sustained to his car.
The father said of his relationship with the mother that his attitude to her was up and down all the time. He did not trust her. He gave as an example recent periods when she was staying at his home and he found her getting up and sneaking around the house at night. He said things were moved in the house; doors weren’t shut properly; things were damaged. He was fearful she might “poison the sugar” or “damage his car”. When questioned by him, she said she was having a cigarette. He then locked his cars in the shed so they could not be tampered with by her.
The father expressed concern that there was a lot of “drug abuse happening” in the mother’s home. He differentiated between drug abuse and drug dealing ¾ the latter in which he was engaged ¾ and showed no insight into the extraordinary nature of his differentiation and assertion as to the mother’s drug habit given his own.
The father was critical of the environment that J was in earlier when living with his mother. He reiterated that his concern in large part about J residing with his mother was her environment. That environment which he disapproved of was one wherein the mother was living in a Commission house, in a street full of single parents without a lot of money and without a car. His own home and car have been provided to him by his father. He himself is entirely financially dependent upon his father and a pension.
His dislike of the child M was because M had taken a quantity of money from his bedroom and a Nintendo game, had then denied it and subsequently confessed to the theft, whereupon Mr G received the game and most of the money back. He says that put a distrust between himself and M, albeit it was his view it was the mother’s manipulation of M that led M to the theft. He conceded that with the cooperation and assistance of both the mother and the grandmother his money was returned. He also felt that M had put dents in his motor vehicle by hiding in bushes near the mother’s home and being responsible for slingshot marks down the left-hand side of his vehicle. Although he did not see M throwing things at his car, he believes that M has been responsible for damage to his motor vehicle.
The father proposed to relocate – no longer to NSW – but to G. His proposals for J’s care should he relocate to G was that he would work full time and place J in the care of someone else, whether it be family or friends, and on the weekends J would visit his mother. His proposals as to the ongoing care of J were inconsistent throughout.
Evidence of K, the paternal grandmother
Mrs K was a most impressive and credible witness. She cares deeply for her son M and grandson J. She gets on well with the maternal grandmother and has endeavoured to resolve the family dilemma.
She described changeover times as being “really horrible” with both parents behaving badly. Her observation of constant friction between the two and attempted manipulation of J by them both results in a need for there to be a change to the changeover routine. The maternal grandmother has offered her home and both parties can relate to her and be directed by her and I am satisfied that J shall be better cared for by a changeover at this home.
Mrs K acknowledged that the implications of the current pregnancy are overwhelming for her. She will however support her son and direct her efforts to providing for what she sees as in the interests of J and the unborn child. She described the parents’ relationship as a real “love-hate relationship” and told how her son cried for about three days upon hearing of T’s self-immolation. He felt sorry for the mother and for J and, she said, protective toward his son.
Clearly Mrs K knows her son. At the age of 31 years he was still residing with her and she had to prevail upon her ex-husband to purchase a house for his son and so “get him out of my [his mother’s] hair”. She described his suggestion that he might move to the G areas as not a sensible proposal and one that would not happen. She was brutally frank in her assessment of the impact of marijuana use on her son’s life. She described it as causing M to be a different person. She said:
“he’s psychotic. He’s paranoid and he needed care, and once he went off the dope, he’s a completely different person”.
When asked –
“Do you think he’s still paranoid” she replied “there are occasional times when things don’t tell and I think probably the dope has done a lot of damage”.
When asked about her son’s description of him driving around for a week with faeces in his car that he thinks people in the workplace put there and he refused to remove, she responded that her son –
“thinks it happened”
but that she doesn’t know whether –
“it actually happened”.
The father’s proposal of relocating with J and obtaining full time employment whilst placing J in care she described as “ridiculous”. Her observations of J with his father accorded with that of her other son namely that at least in their presence J is will cared for and ably so by his father.
Conclusion
Pursuant to section 65E of the Family Law Act 1975 the Court is required to regard the best interests of the child as the paramount consideration. In doing so those matters set out in s68F of the Act must be considered.
J is of too young an age to express a wish. His relationship with his father is established and his primary attachment to his mother and her family constellation including the children M and B remains. According to Ms D those relationships need to be protected and re-established firmly.
A change is required in his care arrangements being a reversion back to those arrangements which existed prior to September 2002 save that his father will be now more actively involved in his care. The mother has the care of J’s siblings and is about to give birth to another child of whom Mr G is the father. It is important as indicated in the summation of the evidence above that J cohabit with his mother, brother and sister and have the regular input of his maternal grandmother. His father’s contact needs to be a little limited at this stage to enable J to reintegrate back within the maternal family.
The mother’s capacity to provide for the emotional needs of J exceeds that of the father. Indeed the father has very limited capacity as shown by the evidence in this regard. His attitude to the responsibilities of parenthood is sometimes questionable. His hostility to the mother; lack of insight into:
a)the need for J to have an ongoing and full relationship with his siblings; and
b)the need for J to have stable accommodation; and
c)the need to have regular interaction with his mother and maternal grandmother;
together with what can only be described on the evidence as paranoia about many aspects of life, work against him as the residence parent. In addition and in the face of the soon birth of his sibling the separation of J from the entirety of his siblings would be detrimental to all the children and no doubt engage this family in ongoing litigation. As it is that prospect is high given the personalities of the parents, the pivotal role of the maternal grandmother and past DHS and police involvement in this family constellation.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
Date: 13 February 2004
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