Crewe and Gordon and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

CREWE & GORDON & ORS

[2015] FCCA 1264

Catchwords:
FAMILY LAW – Parenting – whether the father and mother or the father and maternal grandmother ought to share parental responsibility for a 15-year-old boy who has grown up in a volatile atmosphere and displays behavioural and learning difficulties – whether the child should live on an equal shared care basis with the father and the grandmother or predominantly with the father – how the sibling relationship between the child and his 12-year-old half-sister might be maintained.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61BB, 61D, 61DA, 64B, 64C, 65C

Applicant:

MS CREWE

First Respondent:

MR GORDON

Second Respondent:

MS STILLER

Third Respondent:

MR HOWSON

File Number:

DGC 796 of 2013

Judgment of:

Judge Small

Hearing date:

16 February 2015

Date of Last Submission:

19 February 2015

Delivered at:

Dandenong

Delivered on:

20 May 2015

REPRESENTATION

The Applicant:

Ms Crewe in Person

The First Respondent:

Mr Gordon in Person

The Second Respondent:

Ms Stiller in Person

The Third Respondent:

Mr Howson in Person

Counsel for the Independent Children's Lawyer:

Mr I. Brewer

Solicitors for the Independent Children's Lawyer:

Robert Halliday & Associates

ORDERS

All previous parenting orders in relation to the children X born (omitted) 2000 (“X”) and Y born (omitted) 2004 (“Y”) are hereby discharged.
The mother and the third respondent father shall have equal shared parental responsibility for X.
The mother and the first respondent father shall have equal shared parental responsibility for Y.
X shall live with the third respondent father.
Y shall live with the first respondent father.
X shall spend time and communicate with the mother by agreement between the mother and the third respondent father from time to time, including weekly telephone time.
Y shall spend time and communicate with the mother by agreement between the mother and the first respondent father from time to time, including weekly telephone time.
X shall spend time and communicate with the applicant grandmother as follows:
(a)during school terms on one weekend of each month by agreement between the third respondent father and the grandmother and failing agreement on the last weekend, from 6:30pm on Friday to 6:30pm on Sunday;
(b)for one week during the second term school holidays each year by agreement between the third respondent father and the grandmother and failing agreement from 12 noon on the first Saturday to 12 noon on the second Saturday in odd-numbered years and from 12 noon on the second Saturday to 12 noon on the third Saturday in even-numbered years;
(c)subject to paragraph (15) hereof, for at least one week during the long summer holidays each year by agreement between the third respondent father and the applicant grandmother and failing agreement from noon on the first Saturday on or after New Year’s Day to noon on the following Saturday in even-numbered years and from noon on the first Saturday on or after 15 January to noon on the following Saturday in odd-numbered years;
(d)on the grandmother’s birthday each year should it fall on a non-school day when X is not usually spending time with her pursuant to these orders, at times to be agreed between the applicant grandmother and the third respondent father and failing agreement from 10:00am until 2:00pm;
(e)from 5:00pm until 8:00pm on the day before X’s birthday each year should his birthday fall on a day when X is not usually spending time with the grandmother;
(f)for Christmas each year by agreement between the mother, the first respondent father and the grandmother and failing agreement from 6:00pm on Boxing Day to 6:00pm on 27 December;
(g)at other times by agreement between the applicant grandmother and the third respondent father from time to time.
Y shall spend time and communicate with the applicant grandmother as follows:
(a)during school terms by agreement between the grandmother and the first respondent father but on the same weekend that X spends with the grandmother and failing agreement on the last weekend of the month from 9:30am on Saturday until 6:30pm on Sunday;
(b)for one week during the second term school holidays each year by agreement between the first respondent father and the grandmother and failing agreement from 12 noon on the first Saturday to 12 noon on the second Saturday in odd-numbered years and from 12 noon on the second Saturday to 12 noon on the third Saturday in even-numbered years;
(c)subject to paragraph (15) hereof, for at least one week during the long summer holidays each year by agreement between the first respondent father and the applicant grandmother, that week to coincide with the week that X is spending time with the grandmother, and failing agreement from noon on the first Saturday on or after New Year’s Day to noon on the following Saturday in even-numbered years and from noon on the first Saturday on or after 15 January to noon on the following Saturday in odd-numbered years;
(d)by telephone on the grandmother’s birthday each year with the first respondent father to make the call and ensure that Y speaks to her grandmother;
(e)by telephone on Y’s birthday each year with the grandmother to make the call and the father to ensure that Y speaks to her grandmother;
(f)for Christmas each year by agreement between the mother, the first respondent father and the grandmother and failing agreement from 6:00pm on Boxing Day to 6:00pm on 27 December;
(g)at other times by agreement between the applicant grandmother and the first respondent father from time to time.
Changeover for the grandmother’s time with X shall be effected by the grandmother collecting him from the third respondent father’s home or some other agreed venue at the commencement of time and the third respondent father collecting him from the grandmother’s home or some other agreed venue at the conclusion.
Changeover for the grandmother’s time with Y shall take place at (omitted).
The time X and Y spend with the grandmother pursuant to paragraphs 8(a) and 9(a) hereof shall suspend during school term holidays and shall recommence after each school term holiday period as if the holidays had not intervened.
The time X spends with the grandmother pursuant to paragraph 8 hereof shall suspend at the following times should they fall on days when X would usually be spending time with the grandmother pursuant to these orders:
(a)From 6:30 pm on the day before Father’s Day each year;
(b)From 4:00 pm to 9:00 pm on X’s birthday each year;
(c)From 4:00pm to 9:00pm on the birthdays of:
(i)the third respondent father;
(ii)the third respondent father’s wife; and
(iii)the birthdays of any of the other children living in their household.
The time Y spends with the grandmother pursuant to paragraph 9 hereof shall suspend at the following times should they fall on days when Y would usually be spending time with the grandmother pursuant to these orders:
(a)From 6:30 pm on the day before Father’s Day each year;
(b)From 4:00 pm to 9:00 pm on Y’s birthday each year;
(c)From 4:00pm to 9:00pm on the birthdays of
(i)the first respondent father;
(ii)the first respondent father’s partner; and
(iii)the birthdays of any of the other children living in their household.
In the event that the first and/or third respondent fathers wish to take family holidays away from Melbourne that would interfere with the time X spends with the grandmother pursuant to paragraphs 8(c), (e) and (f) hereof, and/or that Y spends with the grandmother pursuant to paragraphs 9(c) and (f) hereof, then the relevant child’s time with the grandmother shall suspend for that period, and make up time shall be provided either in the same long summer holiday or in the first school term holiday of the following year.
The mother is hereby restrained by injunction from:
(a)using or being under the influence of any illicit substance during any time either of the children spend with her whether supervised or not;
(b)bringing the children into contact with any other person using or under the influence of any illicit substance.
No party shall use corporal punishment on the children or either of them, nor allow any other person to do so.
The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating any other party to or in the presence or hearing of the children or either of them, and from permitting any other person to do so.
Each party shall notify the others as soon as practicable in the event of the children or either of them suffering any serious illness or injury while he or she is in their respective care, and each parent shall authorise any medical or dental practitioner who treats the child to communicate and consult with both that child’s parents.
Each party shall advise the others of any medication prescribed for the children or either of them, including the dosage prescribed, and ensure that such medication travels with the children.
The first and third respondent fathers shall authorise any school or the organisers of any extra-curricular activities in which the children or either of them is enrolled, to provide to the mother and the grandmother at the expense of the mother and grandmother respectively, all information, notices, photographs, reports and like materials usually made available to parents.
In addition to the first respondent father, the mother and the partner of the first respondent father shall be named as contact persons in the records of such school or organisation in the event of any emergency involving Y.
In addition to the third respondent father, the mother and the partner of the third respondent father shall be named as contact persons in the records of such school or organisation in the event of any emergency involving X.
All parents, their respective partners (and the grandmother provided that she gives seven days’ notice of her intention to attend) shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 796 of 2013

MS CREWE

Applicant

And

MR GORDON

First Respondent

MS STILLER

Second Respondent

MR HOWSON

Third Respondent

REASONS FOR JUDGMENT

Introduction

X (“X”) is 15 years old, having been born on (omitted) 2000. X’s living arrangements are at the core of these proceedings.
X’s father is Mr Howson (“Mr Howson”). X currently lives with Mr Howson.
Y (“Y”) was born on (omitted) 2004 and is 10 years old. Y too is a child the subject of these proceedings but her living arrangements are not in question.
Y’s father is Mr Gordon (“Mr Gordon”). Y lives with her father.
X and Y’s mother is Ms Stiller (“Ms Stiller”).
Ms Stiller has suffered for many years from persistent and severe drug addiction which has severely impacted her ability to care for her children.
She has another child, Z born (omitted) 2007 who lives with her. Z’s care arrangements are not the subject of these proceedings.
Ms Crewe (“Ms Crewe”) is Ms Stiller’s mother and therefore the maternal grandmother of Ms Stiller’s children. She and Ms Stiller have a difficult relationship which has been fractured by Ms Stiller’s drug use over many years. At times that relationship is close and supportive and at others it is hostile and conflictual. During the major part of these proceedings it appeared to be close and supportive, but now appears to have broken down again as a result of events which occurred in late 2014.
Ms Crewe is the Applicant in these proceedings. She seeks orders that X live with her and Mr Howson on an equal shared care basis. She also seeks an order that she and Mr Howson share parental responsibility for X.
Ms Crewe seeks further orders for time with Y.
Mr Gordon, who is the First Respondent, seeks orders that he and Ms Stiller equally share parental responsibility for Y; that Y live with him; and that she spend time with Ms Stiller and Ms Crewe.
Ms Stiller, who is the Second Respondent, would prefer to have X and Y living with her but she understands that her current personal circumstances are not conducive to that arrangement. She seeks orders that she and Mr Howson equally share parental responsibility for X; that she and Mr Gordon equally share parental responsibility for Y; that X live with Mr Howson and spend time with her; and that Y live with Mr Gordon and spend time with her.
Mr Howson, who is the Third Respondent, seeks orders that X live with him and spend time with Ms Crewe and Ms Stiller. He seeks an order for parental responsibility for X to be equally shared between him and Ms Stiller.
The issues in this case are therefore:
A. Who should bear parental responsibility for X?
B. With whom should X live?
C. With whom should X and Y spend time and in what circumstances?

Background

Mr Howson and Ms Stiller met when they were at high school and began living together in early 1999, separating in December 2000.
X is the only child of their relationship. After separation he lived with his mother (and for the period of the relationship between Ms Stiller and Mr Gordon, with Mr Gordon and after Y and Z’s births with Y and Z) until 5 March 2013 when he left his mother’s home and went to live with Ms Crewe.
In 2009, X was included as a subject child in Family Law proceedings between Ms Stiller and Mr Gordon in relation to Y, and orders in relation to his care were made by consent between those parties on 31 August 2009. For reasons that are unclear to the court, Mr Howson was not a party to those proceedings.
X had no contact with Mr Howson for about five years between 2008 and December 2013, when orders were made by consent providing for him to spend time with Mr Howson on the second and fourth weekends of each month.
On 28 February 2013 a notification alleging physical, verbal and emotional abuse of X in the care of Ms Stiller was made to the child protection authorities of the Department of Human Services (“the Department”). Allegations made at that time were found by the Department to have been substantiated after child protection workers spoke to X. The specific allegations related to Ms Stiller’s drug use, her constant verbal abuse and taunting of X and physical abuse perpetrated on X by visitors to Ms Stiller’s home.
On 5 March 2013, X ran away from his mother’s home and rode his bicycle to Ms Crewe’s residence. Apart from a short period in May 2014 when he ran away to Ms Stiller’s house and was then cared for by Mr Howson and his partner, he lived with Ms Crewe until court orders made 23 June 2014 provided for him to live with Mr Howson.
Since that time he has lived with Mr Howson, his partner Ms T and their three children, X, Y and Z, X’s half-siblings. They live in a four bedroomed home in (omitted). X has spent specified court-ordered time with both Ms Crewe and Ms Stiller, with Ms Crewe and later Mr Howson supervising Ms Stiller’s time.
Ms Crewe lives in a spacious family home in (omitted). She shares her home with two and often three foreign exchange students who board with her during school terms. Ms Crewe is paid $240 per week for each student’s upkeep while they are staying with her.
One of the issues in dispute between her and X in these proceedings is that X has felt that the students are more important in Ms Crewe’s eyes than he is and that he was pushed to vacate his bedroom for one of them, leaving him sleeping in a cordoned-off section of the lounge room.
The relationship between Ms Crewe and Ms Stiller, which appeared to have been quite supportive for much of the proceedings, broke down again when Ms Crewe discovered that certain items of her jewellery were missing from her home in January 2015. She gave evidence at trial that she had retrieved some of those items from a pawn shop and that she was certain that it was Ms Stiller who had pawned them. It was her evidence that she had reported the theft to the police.
Since then, X has been spending time with Ms Stiller by agreement between Ms Stiller and Mr Howson.
Ms Stiller and Mr Gordon were involved in a relationship between 2002 and 2005 (according to Mr Gordon) or 2003 and 2004 (according to Ms Stiller).
Y is the only child of that relationship.
After her parents separated, Y lived with Ms Stiller, X (and later Z) and spent time with Mr Gordon.
She was the subject of proceedings in this court which were commenced on 18 April 2008 by way of an application for a Recovery Order filed by Ms Stiller.
Final orders in relation to Y’s care were made by consent on 31 August 2009. Those orders provided for her (and X) to live with Ms Stiller and spend time on alternate weekends, half school holidays and otherwise on special occasions with Mr Gordon. Those orders also restrained both parties from using illicit substances or alcohol to excess while the children were in their respective care.
The current proceedings were commenced when Mr Gordon filed an Initiating Application on 4 July 2013, seeking orders that Y live with him.
Mr Gordon deposed that he was concerned at that time that Ms Stiller’s drug use and apparent inability to ensure that Y attended school, together with the fact that Ms Stiller was then involved in a relationship with a violent man, meant that Y was at serious risk of harm.
Y has lived with Mr Gordon and his partner Ms L, her three sons and the child of that relationship, Y’s half-brother D, since court orders made by consent on 5 August 2013 provided for those arrangements.
Ms Stiller spent time with Y at the home of Ms Crewe until that relationship broke down in late 2014. Since that time Y has spent time with Ms Stiller by agreement between Ms Stiller and Mr Gordon.
Since the institution of the initial proceedings between Mr Gordon and Ms Stiller in 2008, there have been a total of 17 court appearances relating to applications about the care of Y and X. I am the 8th judicial officer to have been involved in these matters.

Procedural History

Proceedings: (P)DGC796 of 2013

The proceedings between Ms Crewe and Ms Stiller and Mr Howson, with the file number (P)DGC796 of 2013 commenced when Ms Crewe filed an Initiating Application on 10 May 2013 seeking orders for X to live with her.
On 19 June 2013, the matter came before me for the first time in the Duty List and an order was made for X to live with Ms Crewe. Mr Gordon was joined as a Third Respondent and all three Respondents were ordered to file material before the adjourned date of 2 October 2013.
On 21 August 2013, the matter came before Judge Phipps at a Directions Hearing. At that hearing Ms Stiller was ordered to return X to Ms Crewe’s care by 7.00pm on that day. A warrant was issued for the recovery of X, that warrant being executed by Australian Federal Police who returned him to Ms Crewe.
On 2 October 2013, the matter returned before me for a Directions Hearing when the proceedings were consolidated with proceedings (P)DGC1357 of 2008.

Proceedings: (P)DGC1357 of 2008

The proceedings between Mr Gordon and Ms Stiller, with the file number (P)DGC1357 of 2008, commenced when Mr Gordon filed an Initiating Application on 4 July 2013 for Y to live with him.
On 5 August 2013 the matter came before Judge Curtain in the Duty List. The parties at that hearing came to an agreement that Y would live with Mr Gordon, with Ms Stiller to undergo supervised drug screen tests. The matter was adjourned for mention on 2 October 2013 to be heard on the same day as file (P)DGC796/2013.

On 2 October 2013 the matter came before me for mention and the only order that was made was that these proceedings be consolidated with proceedings number (P)DGC796 of 2013.

The Consolidated Proceedings

On 2 October 2013 at the hearing before me, the matters having been consolidated, an order was made for the appointment of an Independent Children’s Lawyer to represent both X and Y. Ms Crewe was granted interim sole parental responsibility for X. A request pursuant to s.69ZW was made for the Department to provide any information relating to the children contained in its files. Ms Stiller, who did not appear at that hearing, was ordered to file material. A further order was made to the effect that if she did not comply with the order requiring her to file material, the other parties may have leave to proceed on an undefended basis at the next hearing.
On 25 November 2013 the matter was before me for a Mention Hearing. Ms Stiller attended at Court and was again ordered to file responding material.
The parties returned to Court on 16 December 2013 for a further Mention Hearing. A Family Report was ordered, and orders were made by consent providing for X and Y to spend time with Ms Stiller, for her to undertake supervised drug screens, and an injunction restraining all parties from taking illicit substances or drinking alcohol to excess while the children were in their care was also made.
The Family Report prepared by Ms J (“Ms J”) was released by the Court on 28 March 2014.
On 4 April 2014 the proceedings returned for an Interim Hearing. The orders made on 16 December 2013 were discharged and extensive orders in relation to children’s living and “time with” arrangements were made by consent. Those orders provided for Y to live with Mr Gordon, and X to live with Ms Crewe. Various arrangements were made for each child to spend time with Ms Stiller.
The matter was set down for trial on 16 February 2015 for an estimated 4 day Hearing.
On 18 June 2014 the matter returned for a Directions Hearing in the Duty List. The parties and children were ordered to attend upon a Family Consultant for the purposes of a s.11F Child Inclusive Conference to take place the following day.
The Child Inclusive Conference took place on 19 June 2014 with Family Consultant Morgana Lord, but no agreement was reached.
On Friday, 20 June 2014 the parties returned for a mention hearing after the s.11F conference. Interim orders were made for X to live with Mr Howson over the weekend until the matter was to return for an Interim Judgment on the following Monday.
On 23 June 2014 I made interim orders discharging the Orders made by consent on 4 April 2014. Orders were made for X to live with Mr Howson and for Ms Crewe and Mr Howson to have equal shared parental responsibility for him in the interim. Further orders were made for X and Y to spend time with each other, with Ms Crewe, and also with Ms Stiller. An updated report by Ms J was ordered and the matter was adjourned to the Duty List in September 2014.
The Updated Family Report prepared by Ms J was released by the Court on 31 August 2014.
On 8 September 2014 further orders were made by consent and the matter was adjourned to the next Duty List in November 2014.
On 5 November 2014 the matter returned for a final time before trial in the Duty List. Variations to the holiday time ordered on 23 June 2014 were made, and a further order was made for X and Y to spend time with Ms Crewe and Ms Stiller.
The Final Hearing began on 16 February 2015 and proceeded for four days with Ms Crewe, Ms Stiller, Mr Howson and Mr Gordon all appearing in person. Mr Brewer of Counsel appeared for the Independent Children’s Lawyer.
Witnesses were Ms Crewe, Ms Stiller, Mr Howson, Mr Gordon and Ms J. All were subject to cross-examination by counsel for the Independent Children’s Lawyer, by Ms Crewe and some by other parties.
At the end of the trial I reserved my decision.

Issues

A. Who should have parental responsibility for X?

As previously stated Ms Crewe seeks to share parental responsibility for X with Mr Howson. Mr Howson seeks to share that responsibility with Ms Stiller and Ms Stiller also seeks to share that responsibility with him.
Ms Crewe says that she has been involved in X’s life since his birth and that he lived with her between March 2013 and June 2014 for much of that time by court order.
She wishes to continue to be integrally involved in making decisions about X’s welfare and therefore seeks to retain parental responsibility for him, albeit shared with Mr Howson.
Mr Howson concedes Ms Crewe’s involvement in X’s life and particularly acknowledges that she “stepped up” to care for him in March 2013 at a time when X’s life was in some chaos.
He says that now that matters have settled somewhat and X is living with him, it is more appropriate for him and Ms Stiller as X’s parents, to equally share parental responsibility for X.
Ms Stiller agrees with Mr Howson.

The Law

The law in relation to parenting issues is found in Part VII of the Family Law Act 1975 (“the Act”).
The objects and principles underlying Part VII are set out in s.60B, and I set out that section here in full:
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with and communicating the bank regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I note that the emphasis in these objects and principles is on children’s relationship with their parents, and only in s.60B(2)(b) are grandparents specifically mentioned.

Parental Responsibility

The law relating to parental responsibility is found in ss.61B, 61C, 61D, and 61DA of the Act.
Section 61B simply states that the term “parental responsibility” in relation to a child means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61C(1) states: each of the parents of a child who is not 18 has parental responsibility for the child. A note at the end of this section states that the section states the legal position in relation to parental responsibility until that position is displaced by a court order.
Section 61DA (1) states that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him or her.
That presumption therefore applies, as a matter of logic, to equal shared parental responsibility being held by Mr Howson and Ms Stiller, as they are X’s parents. The presumption does not apply to Ms Crewe, who is not X’s “parent” pursuant to that section.
It will be noted that nowhere in this part of the legislation is there specific provision for a grandparent to have parental responsibility for a child.
Nevertheless, an order relating to parenting responsibility is a “parenting order” pursuant to the provisions of s.64B(2) of the Act, and s.64C states that a parenting order in relation to a child may be made in favour of a parent of the child or some other person (emphasis added).
In addition, s.65C specifically names a grandparent of the child as a person who may apply for a parenting order.
There is therefore no doubt that Ms Crewe has standing to apply for an order giving her parental responsibility for X.
The question, as it is in all parenting matters, is whether it is in X’s best interests for Ms Crewe to share parental responsibility for him.
It has often been the case in this and other courts that orders have been made giving grandparents parental responsibility for their grandchildren. That is particularly so where there is either no parent available, or no parent appropriate to exercise that responsibility.
It was in those circumstances, where X had been living with Ms Stiller, where he had not spent time with his father for many years and where he had run away to Ms Crewe’s care because of Ms Stiller’s inability to keep him safe, that orders for interim parental responsibility were made in favour of Ms Crewe.
Those circumstances have changed considerably. X is now living with his father and his parents appear to have come to an arrangement whereby they are able to consult with each other and negotiate the matters set out in s.64B(2).
I therefore agree with both counsel for the Independent Children’s Lawyer and with Ms J when they say that while Ms Crewe’s role in caring for X while neither of his parents was able to do is to be acknowledged and commended, it is now time for Ms Crewe to relinquish a parenting role with X and revert to her more appropriate role as his grandmother.
I am therefore satisfied that it is in X’s best interests for his parents to equally share parental responsibility for him.

B. With whom should X live?

In practical terms, the issue before the court is whether X should live primarily with Mr Howson (Mr Howson’s position), or whether he should live in an equal shared care arrangement with Mr Howson and Ms Crewe (Ms Crewe’s position).
While Ms Stiller would like X to live with her, she demonstrates some insight and child focus by acknowledging that her current circumstances do not allow for that.

The Law: Parenting Orders

The question of with whom the child shall live comes under the definition of matters to be dealt with in parenting orders under s.64B(2) .
When making a parenting order, s.60CA obliges the court to regard the best interests of the child as its paramount consideration.
Section 60CC sets out the matters the court must take into account when considering what orders might be in a child’s best interests.
Two “primary considerations” are set out in s.60CC(2). They 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, neglect or family violence.
Subsection (2)(a) does not mention the benefit to the child of having a meaningful relationship with the child’s grandparents. As grandparents and other persons important to the child are specified in other subsections of s.60CC, I can only infer that subsection (2)(a) is not intended to refer to grandparents.
Subsection (2)(b) on the other hand is far more general consideration and I must certainly take its provisions into account as a primary consideration in this regard.
In X’s 15 years he has, on the evidence before the court, been subjected to physical, emotional and psychological harm as a result of abuse, neglect and family violence.
He has responded by acting out and his behaviour at times has clearly been very difficult to deal with.
The child protection authorities have been involved with his family primarily as a result of his mother’s drug abuse and her emotional abuse of him and his acting out behaviour demonstrates the impact of the abuse, neglect and family violence to which he has been exposed.
However, since living with his father, it appears that X’s behaviour has settled down somewhat and it is clearly Ms J’s view that he should continue to live with his father.
There is some evidence before the court that X might be at risk of emotional harm in the care of Ms Crewe and also in the care of Ms Stiller.
I am satisfied that any risk to him is at its least intense when he is in the care of Mr Howson.
Section 60CC(3) sets out 14 additional considerations which the court must take into account when deciding what orders to make in a child’s best interests. I will address each of them in turn, noting that many mention only “parents” and that as such, those considerations are not strictly relevant to my decision about whether X should live with his grandmother. They are nevertheless very relevant to my decision about what time he should spend with her.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
While Mr Howson and Ms Crewe both gave evidence of what X had told them about his wishes, that evidence supporting each of their respective cases, the only independent evidence of his views before the court is found in the Family Reports of Ms J.
In her first Report dated 27 March 2014 (“the first Family Report”), Ms J reports X as saying that he would be happy to live with either Ms Crewe or Mr Howson, but that he did not want to live with Ms Stiller. He did indicate however that he would eventually like to live with his father.
In her second Report dated 31 August 2014 (“the second Family Report”) Ms J reports X as describing living with Mr Howson in the following terms:
If we get into trouble or muck up at school he gives us discipline which is good. I haven’t had discipline in my life. If we behave we go out somewhere. If I behave at school for four weeks I have a treat. If we are good Dad takes us fishing. If I muck up I get grounded which is fair. It is the only way you can learn.
He reported that Ms T supported Mr Howson in providing consistent discipline for the children in their household.
In relation to living with Ms Crewe, X reported the following:
She doesn’t listen to what I say. It gets annoying. She lies to me. She tells me the computer is broken then she goes on it. She tells me things about court. She tells me what happened and Judge Small said that I would be going to live with her for the rest of my life. That’s a lie. That’s why we’re here today.
When asked how he would feel if the court decided he should live with Mr Howson he said:
I’ll be happy. That’s where I want to be. Cause at Nan’s I can’t get on with her. At Mums she is on drugs. I can’t really live with her. She and I don’t get along.
When asked how he would feel if the court decided he should live with Ms Crewe he said:
I’d run away and if I had to I’d live on the street.
Those are very clear views and as X is now 15 years old, it is appropriate that the court give considerable weight to them.
Section 60CC(3) (b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
X’s relationship with his mother is, by all accounts, complicated and difficult. At times it appears to have been close and appropriate, only for Ms Stiller’s addiction to drugs to overwhelm her, fracturing her relationship with her older son yet again.
When asked about his relationship with Ms Stiller, X told Ms J:
She is a good person and does things with us when we see her. She tried to do things that are fun for us when she had the money.
However, he said that his mother’s drug use “affects us and makes us all upset to see our Mum like that”.
He also told Ms J that his mother spoke to him about the court proceedings, which caused him some distress and that she did not want him to live with Mr Howson at that time, which I note was about six months prior to trial.
It is clear is that X does not wish to be cut off from his mother completely, and indeed, should she be able to live drug-free, his relationship with her might develop more appropriately.
Unfortunately, the evidence before the court does not give me any confidence that Ms Stiller is currently able to live drug-free, nor that she will be able to do so in the immediate to medium-term future.
Therefore, while it is not appropriate for X to live with his mother, it is appropriate for him to spend time with her in circumstances where safeguards are in place to ensure his safety and security.
X had no relationship with his father between the ages of about eight and 13, and he told Ms J that he wished his father had been in his life during that time.
However, that relationship appears to have developed steadily over the course of these proceedings, and while there are concerns expressed by Ms Crewe about Mr Howson’s discipline of X, it would appear to the court that the father-son relationship is developing appropriately.
X’s relationship with Ms Crewe is complex. I note that it was to Ms Crewe that X fled when he felt that his mother was unable to care for him, and that Ms Crewe took him in and cared for him to the best of her ability until he went to live with his father pursuant to court orders in mid-2014.
However, his relationship with his grandmother while he was living with her and since he has been spending significant time with her has been variable in quality.
The court has particular concerns about Ms Crewe’s evidence that she called the police to speak to X when his behaviour appeared out of control, and allowed a police officer to place handcuffs on him to teach him a lesson. That evidence is particularly concerning as Ms Crewe said in oral evidence that X had calmed down considerably by the time the police arrived at her home.
It was Ms Crewe’s evidence at trial that X’s behaviour had improved since that incident and she did not appear to have any genuine regrets about it. X was 14 at the time.
The court also has some concerns about the manipulative nature of Ms Crewe’s relationship with X.
There is evidence before the court that she has involved him inappropriately in adult issues and particularly in the matters before the court.
That evidence includes video evidence tendered at the trial which shows Ms Crewe speaking to Mr Howson and Ms T through a security screen at her front door. X can be heard in the background while Ms Crewe tells Mr Howson and Ms T that X will not be returning to their care as ordered by the court only two days previously, as he wants to stay with her so he can take care of his mother. X says clearly at that time that he wishes to live with Mr Howson.
I note that the video shows Mr Howson and Ms T speaking calmly and appropriately, and telling X that they love him and that matters will be sorted out.
While acknowledging that she was in breach of court orders at that time, Ms Crewe was essentially unapologetic for her behaviour on that day.
Section 60CC(3) (c)    the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)    to communicate with the child;
It is clear to the court that Mr Howson has not always either had or taken the opportunity to be involved in X’s life. The task of decision-making has been left primarily to Ms Stiller and Ms Crewe, at least since Mr Howson and Ms Stiller separated when X was less than one year old.
Mr Howson says that his absence was due as much to Ms Stiller refusing him any contact with X as to any failure on his part.

However, Mr Howson himself has “stepped up” since these proceedings began, which is greatly to his credit.
Ms Stiller looked after X, albeit on the evidence before the court in a less than optimal manner, from his birth until a couple of months after his thirteenth birthday.
Since X went to live with Ms Crewe, Ms Stiller has spent time with him on a supervised basis at her mother’s home and at Mr Howson’s home. That time has not been extensive as Ms Stiller’s personal circumstances and her relationship with Ms Crewe deteriorated over that time.
Clearly if Ms Stiller wishes to have a positive and meaningful relationship with her elder son, she will need to fully address the issue of her drug abuse.
Section 60CC(3) (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
There is no specific evidence before the court in relation to either parent’s fulfilment or lack of fulfilment of his or her obligations to support X.
Section 60CC(3) (d) 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;
X has been living with Mr Howson and spending significant time with Ms Crewe and, to a lesser extent with Ms Stiller, since mid-2014.
The change in his living arrangements at that time was significant, and he has taken some time to settle in his new circumstances.
Changing his circumstances again to an equal shared care arrangement between his father and his grandmother would, in my view, have the effect of disrupting his life further which would again carry the risk of having a negative impact on his education and social development.
In addition, since he went to live with Mr Howson, X has been able to continue to spend time with Y, and Mr Howson and Mr Gordon appear to have a cooperative relationship and a commitment to ensuring that Y and X maintain their sibling relationship. It is also significant in my view that X now lives with his three half-siblings on his father’s side of his family.
Section 60CC(3) (e) 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 relations and direct contact with both parents on a regular basis;
It would appear from the parties’ oral evidence at court that Ms Stiller is able to visit Mr Howson and that at least at the present time they have a cooperative enough relationship to ensure that X is able to maintain his relationship and contact with both parents on a regular basis.
While Ms Crewe is not X’s parent, the issue of practicality and expense is relevant to the question of whether X should live predominantly with Mr Howson or an equal shared basis between him and Ms Crewe.
I note in that regard that Mr Howson and Ms Crewe live about 25 kilometres and somewhere between 20 and 30 minutes apart.
X goes to school in (omitted) which is closer to Ms Crewe’s home than to Mr Howson’s.
There do not appear to have been major issues of practicality and expense in X maintaining his relationship and contact with his grandmother since he went to live with his father.
Ms Crewe expressed some concerns about X having to catch the train and/or bus when living with Mr Howson, but X is 15 years old and it is appropriate in my view for him to be taking public transport to and from school unsupervised.
Section 60CC(3) (f) 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
There is little doubt that both Ms Crewe and Mr Howson are able to provide for X’s material needs.
The court has grave concerns about Ms Stiller’s ability in that regard for reasons set out elsewhere in this judgment.
It is in the area of X’s emotional and intellectual needs that the court has some serious concerns about the capacity of Ms Crewe and again, Ms Stiller.
Ms Crewe sees herself as an ethical and moral woman and I have no doubt that she does her best in caring for X.
I have already set out my concerns about Ms Crewe having called the police on one occasion when X’s behaviour appeared to be out of control.
I have further concerns about two incidents that occurred in January 2015, only weeks before trial. Both have to do with the aftermath of Ms Crewe’s discovery that her jewellery was missing.
First, Ms Crewe, having reported the theft and the fact that she believed Ms Stiller to be the thief to the police, and believing that there was a warrant out for Ms Stiller’s arrest, allowed her son Mr M and a friend of his who is a police officer to inform X of those facts.
When asked at trial whether she did not think it might have been appropriate for Mr Howson to tell X that his mother might be arrested by the police, especially in circumstances where X was living with Mr Howson, Ms Crewe said that it simply had not occurred to her to do so although she had informed Mr Howson of her report to the police.
That indicates a considerable lack of insight into X’s needs. It must have been very traumatic for X to learn that his mother was suspected of theft from his grandmother and that his grandmother had reported that theft to the police, let alone that his mother might be arrested as a result. It would have been much more appropriate for Mr Howson to have informed him of those circumstances.
The second incident is equally concerning.
On X’s 15^th birthday, (omitted) 2015, after Ms Stiller and Z had attended an informal birthday event for X at a fun parlour in (omitted), Ms Crewe called the police to tell them where they might find Ms Stiller. While she informed the police that Ms Stiller had Z with her, she did not make any arrangements with the police for Z’s care should they take Ms Stiller into custody.
Again, that shows a remarkable lack of insight into the emotional needs of a young child. As it happened, the police did not arrive in time to locate Ms Stiller and such a scenario was thus avoided.
Those incidents, together with other evidence that Ms Crewe and Ms Stiller engaged in verbal abuse of X, and X’s view that Ms Crewe puts her student boarders’ needs ahead of his, do not lead the court to believe that Ms Crewe has any great capacity to ensure the X’s emotional needs are met.
Mr Howson is an uncomplicated man. He works hard to provide for his family and he has taken his oldest son in in difficult circumstances.
The evidence before the court shows that he has ensured that X goes to school each day and completes his homework, that he has provided a tutor for him to assist with his literacy skills, and that he has fostered X’s participation in community events through his local church and through sporting activities involving his younger siblings. He has also been able to develop cooperative relationships with Mr Gordon and Ms Stiller that allow for X to spend time with Y and his mother.
I am impressed by X’s statements that he considers the discipline regime in Mr Howson’s home to have assisted him in his personal development.
Ms Crewe gave evidence of her concern about the fact that while X was suspended from school during third term 2014, Mr Howson had taken him to his workplace, which was a building site, and persuaded him to do some light manual labour. Ms Crewe was concerned that someone X’s age is not legally permitted to be on a building site.
While that incident is of some concern to the court, I am satisfied that Mr Howson is able to provide for X’s emotional needs.
Section 60CC(3) (g) 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;
X appears to be a not particularly mature 15 year-old, as set out in the Family Reports of Ms J, but he seems to be progressing well in the care of his father.
The only lifestyle concerns the court has relate to Ms Stiller’s drug addiction and the lifestyle surrounding that, including a strong inference in evidence before the court that she stole jewellery from her mother in order to support that lifestyle. Those matters also indicate a certain immaturity on Ms Stiller’s part.
There are no cultural issues involved in this matter that the court is aware of.
X has had some behavioural and learning difficulties which have led to suspensions from school and conflict with his parents and grandmother.
I am satisfied that those difficulties are most appropriately dealt with in the care of his father, who is also able to provide a male role model for his adolescent son.
Section 60CC(3) (h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in this matter.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Historically it would seem that neither parent has shown a particularly selfless attitude to X and to their responsibilities as parents to him.
However, I again note that since the beginning of these proceedings Mr Howson has taken a strong interest in X’s welfare to the extent that he has been prepared to include him in his current family, and that he has taken responsibility for his son’s day to day care after a very long period of absence from his life.
Ms Stiller on the other hand does not seem to have been able to ameliorate her drug use and that fact displays a particularly irresponsible attitude to her role as X’s parent.
Section 60CC(3) (j) any family violence involving the child or a member of the child’s family;
X has alleged to Ms J that his mother engaged in a lifelong regime of verbal and emotional abuse of him and that she allowed visitors to her home to physically assault him.
Ms Crewe’s affidavit material contains allegations that Ms Stiller had “extreme outbursts” against X and that Ms Stiller had hit him on numerous occasions.
There is no evidence before the court to contradict those allegations and indeed material provided to the court by the Department in response to a s.69ZW request supports them.
There is also evidence to show that X’s relationship with his grandmother involved some verbal abuse whereby she called him names and emotional abuse as set out above.
Further, there is considerable evidence to show that X has been exposed to serious conflict between Ms Crewe and Ms Stiller for much of his life.
X also reported some physical abuse and inappropriately sexualised behaviour towards him on the part of Ms Crewe, but I am satisfied by Ms Crewe’s evidence at trial that the incidents alleged were either greatly exaggerated or misinterpreted by X.
Ms Crewe gave evidence of her concerns about Mr Howson’s behaviour towards X, alleging that Mr Howson had screamed at X and that he had roughly pulled X from his car and stood over him in a menacing fashion on one occasion.
Mr Howson’s evidence is that while he has raised his voice to X at times while disciplining him, he has not engaged in any physical abuse and he has simply sought to teach X appropriate ways of behaving. That evidence is supported by X’s own view of Mr Howson’s discipline style.
What is clear is that X has grown up in an atmosphere of conflict and neglect and times of physical and verbal violence.
I am satisfied that there is less likelihood of that situation continuing if X lives with his father for most of the time.
Section 60CC(3) (k)    if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii)     the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv)    any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no evidence before the court of any family violence intervention orders being in place currently or in the past between any of the parties to these proceedings.
Section 60CC(3) (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Orders that provide for X’s parents to equally share parental responsibility for him and for him to live predominantly with his father while spending regular time with his grandmother, will provide a stable life for X and there is no reason, on the present evidence before the court, why there should be future proceedings in relation to his care and welfare.
Section 60CC(3) (m) any other fact or circumstance that the court thinks is relevant.
I have taken into account the fact that X has five half-siblings. As Ms Crewe and Ms Stiller are now estranged, it would be difficult for X to spend time with Z if he were living half time with Ms Crewe.
If he lives with Mr Howson and spends time with Ms Stiller, he will have the opportunity of spending time with Z as well.
If he remains living with Mr Howson, he will also be living with his three half-siblings on his father’s side.
He will also have the opportunity to spend time with Y both at Ms Crewe’s home and by arrangement between Mr Gordon and Mr Howson.
In other words only if he lives with Mr Howson will X have the opportunity to maintain a consistent relationship with all five of his half-siblings.
In all the above circumstances, I will make orders for X to live with Mr Howson.

C. With whom should X and Y spend time and in what circumstances?

Based on the evidence set out above and on the fact that the court is satisfied that it is appropriate for Ms Crewe to now step back from the parental role she has taken with X and again take up her role as his grandmother, I will make orders that provide for X to spend time with Ms Crewe on one weekend each month.
I will also make orders providing for him to spend time with her on special occasions and during school holidays.
As Mr Howson and Ms Stiller appear to have a cooperative relationship and have been able to agree on times for X to see his mother, I will make orders that X spend time with Ms Stiller as agreed between her and Mr Howson. That of course will also give X the opportunity to spend time with Z.
So far in these reasons for judgment, Y has hardly been mentioned. That situation is reflective of the matters addressed in Ms Crewe’s affidavit material and of evidence adduced at trial.
Indeed Y is not even mentioned in Ms Crewe’s application for X to live with her. Nevertheless she now seeks orders for Y to spend time with her.
It is agreed between all parties that Y will continue to live with Mr Gordon and Ms L and their family and I will make orders to that effect. That will allow Y to continue to live with her half-brother and three stepbrothers as well.
Mr Gordon has some concerns about Y’s welfare in Ms Crewe’s care, mainly in relation to her exposure to conflict between Ms Stiller and Ms Crewe and to the facilities provided for Y at Ms Crewe’s home.
Currently of course Ms Crewe and Ms Stiller are estranged so the first of those concerns is unlikely to arise in the near future.
Y does not have her own room at Ms Crewe’s home and shares either with her brothers or with her grandmother. That situation may become difficult as Y enters adolescence and requires more privacy. However she is only 10 years old at the moment and in circumstances where she does not spend large amounts of time with Ms Crewe, Mr Gordon is happy for her to stay overnight at her grandmother’s home.
Y currently spends one night per month with Ms Crewe and I will make orders for that to continue such that that time is spent during the weekend when X is also spending time with Ms Crewe. That will allow Y to spend time not only with her grandmother but also with her brother.
I will make further orders for Y to spend time with the grandmother during school holidays, also at the time when X is with the grandmother and on special occasions.
All the concerns I have already discussed relating to Ms Stiller apply to Y’s care as much as to X’s and when considering what orders might be in Y’s best interests, I have taken into account all the matters set out in paragraphs (65) to (67) and (88) to (180) of these reasons in so far as they are relevant to Y.
The situation in relation to Y’s parents is similar to X’s in that Mr Gordon and Ms Stiller appear to have come to a cooperative enough relationship to allow Y to spend some time with Ms Stiller, albeit on a supervised basis.
Opportunities for Y to spend time with Z are limited in the same way as are X’s. Orders providing for Y to spend time with Ms Stiller will also allow her to spend time with Z.
Cooperation between Mr Gordon and Mr Howson will also allow Y to spend time with X in addition to the time she spends with him at Ms Crewe’s home.
I will therefore make orders that Y spend time with Ms Stiller by agreement with Mr Gordon from time to time.
In that way Y will be able to maintain her relationships with all three of her half-siblings as well as with her three stepbrothers.

Conclusion

This is in all the circumstances are very sad case.
There is a grandmother who, while having stepped in to care for X at a time of crisis, appears not to have been able to maintain a fully healthy parental relationship with him, but who does not seem to be able to relinquish that role voluntarily.
There is a mother who, because of her inability to live without drugs and the lifestyle associated with them, has lost the care of two of her three children.
The relationship between the mother and the grandmother is volatile and uncertain with trust between them having been fractured many times.
Then there is a troubled teenager who has grown up in an atmosphere of neglect and abuse, who had no contact with his father for a substantial period of his life and who is only now getting to know him properly and to have some stability in his life.
It is to be hoped that X’s relationship with his father will develop strongly and that he will be able to maintain and develop a more appropriate relationship with both his mother and his grandmother.
It is also to be hoped that Y’s somewhat tenuous relationship with her mother and grandmother will also be able to be maintained and develop appropriately.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 20 May 2015

[2015] FCCA 1264

20 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness