Croft and Wilmot and Anor
[2021] FCCA 1542
•15 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROFT & WILMOT & ANOR | [2021] FCCA 1542 |
| Catchwords: FAMILY LAW – Parenting – whether a child aged 2 should remain living with his paternal grandmother or transition to the care of the mother – where there are concerns about the mother’s mental health, cannabis use, aggression, perpetration of family violence and association with the child’s father – where the court could not currently even order that the child spend unsupervised time with the mother – child to live with the paternal grandmother and spend supervised time with the mother on four occasions each year – mother may bring a further application for parenting orders once she is able to demonstrate that she has dealt with her issues. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 61DA |
| Cases cited: Mazorski & Albright (2008) 37 FamLR 518 |
| Applicant: | MS CROFT |
| First Respondent: | MS WILMOT |
| Second Respondent: | MR FOX |
| File Number: | NCC 2452 of 2019 |
| Judgment of: | Judge Terry |
| Hearing dates: | 10 – 12 May 2021 |
| Date of Last Submission: | 12 May 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 15 June 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | NLS Law |
| Counsel for the First Respondent: | Mr Mueller |
| Solicitors for the First Respondent: | Walker Legal Taree |
| Second Respondent: | Mr Fox |
| Counsel for the Independent Children’s Lawyer: | Mr Guyder |
| Independent Children’s Lawyer: | Foat Roberts Lawyers |
ORDERS
The paternal grandmother shall have sole parental responsibility for the child X born in 2019 (“the child”).
The child shall live with the paternal grandmother.
The paternal grandmother, mother and father shall keep the other parties informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parties of any change thereto within 48 hours of such change.
The paternal grandmother shall promptly notify the parents if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness. The parents may not without the consent of the paternal grandmother visit the child in hospital.
Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents but the parents shall not attend events at the child’s school normally attended by parents.
Pursuant to section 68B of the Family Law Act 1975 for the protection of the child the mother is restrained and an injunction is granted restraining her from removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the paternal grandmother has placed the child.
The mother may have video calls with the child on the last Sunday of the month at 10.00am NSW time with the mother to place the call to the paternal grandmother’s device.
The paternal grandmother is permitted to record the calls and if during the calls the mother is aggressive or abusive then the paternal grandmother is permitted to terminate the call. If this happens on more than three occasions the order about the video calls is discharged.
The mother shall spend time with the child for two hours supervised by B Contact Centre, contact phone No: … on four (4) occasions each year, and if possible to include days which are within reasonable proximity of the child’s birthday, Christmas Day and the mother’s birthday.
The time shall occur at a place and on a day agreed between the mother, paternal grandmother and the supervision service and if no agreement is reached at a place and on a day nominated by the supervision service.
The mother and the paternal grandmother must promptly contact B Contact Centre and complete the necessary intake procedure.
The paternal grandmother shall pay the costs of the supervision.
Order 9 shall remain in force regardless of whether the mother fails to take up the option to spend time with the child on any particular occasion each year.
If the B Contact Centre ceases to be available the mother and the paternal grandmother must use their best endeavours to agree on an alternative service and if no agreement can be reached the paternal grandmother must nominate another service and promptly advise the mother of her choice and the mother and the paternal grandmother must then undergo the intake procedure with that service.
The child shall spend time the father as agreed between the paternal grandmother and the father.
THE COURT NOTES THAT:
A.If mother files another her application for parenting orders in relation to the child she will need to attach to the affidavit she files in support of that application evidence in the form a hair test that for the preceding 6 months she has been free of illicit drug use and evidence of her engagement with a drug and alcohol counsellor, current engagement in relation to abstinence from cannabis use, information about the current circumstances of the father and her involvement with him, information about how she has dealt with the issues raised in this judgment about her anger and aggression and her mental health. If she does those things then the court may reconsider the orders.
IT IS NOTED that publication of this judgment under the pseudonym Croft & Wilmot & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2452 of 2019
| MS CROFT |
Applicant
And
| MS WILMOT |
First Respondent
And
| MR FOX |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The issue in dispute in this case is whether X, who is two, should be restored to the care of his mother Ms Croft, who would ultimately take him back to City C in Queensland or should remain in the care of his paternal grandmother Ms Wilmot in Town D, New South Wales.
X his lived with his paternal grandmother since he was about four months old. She said that this came about because he was at risk of harm because of the mother’s mental health, cannabis use and lack of parenting skills. The mother said it came about because the paternal grandmother stole the child to fill a need in her own life.
The mother denied that she lacked parenting skills. She said that immediately after X’s birth she was having issues with X’s father, Mr Fox, and was distracted and upset by these issues, but that she had since shown that she was able to care for X on a practical level.
The mother agreed that her mental health had not always been stable and that she had a history of cannabis use but she said her mental health was currently well managed and that she was endeavouring to become abstinent from cannabis use and her cannabis use would not expose X to risk of harm
The mother said she was keen to return to City C where she grew up and where her family and her supports were and that this would have a positive impact on her capacity to parent X.
The orders sought by the mother in her case outline document were that she have sole parental responsibility for X and that he continue to live with the paternal grandmother for the next 12 months but spend increasing amounts of time with her until he was transitioned into her full time care.
She proposed that the time be each Monday, Wednesday and Friday from 10.00am until 2.00pm for three months, then each Wednesday from 10.00am until 2.00pm and each weekend from 10.00 am on Saturday until 4.00pm on Sunday for three months and then each week from 10.00 am on Thursday until 4.00 pm on Sunday for six months.
The mother proposed that thereafter X live with her and spend time with the paternal grandmother as agreed in writing.
The mother said she had difficulty with the idea of leaving X with the paternal grandmother after he came into her full-time care because she feared that the paternal grandmother would withhold him or make further complaints about her care of him. She said she also feared the paternal grandmother might try to turn X against her.
In her proposed orders the mother included an order that she do a hair test each four months until she had done a total of four tests, but she did not suggest that any consequence follow if she was found to be using illicit drugs or did not do the test, nor did she propose that she be restrained from using cannabis while X was in her care.
During submissions at the end of the hearing, the mother’s counsel informed the Court that these were still the orders the mother sought.
The paternal grandmother proposed that she have sole parental responsibility and that X live with her. She said as follows in her affidavit:
Given Ms Croft’s unaddressed mental health issues, her continuing drug use, the injuries X has suffered recently, and the likelihood that Ms Croft will return to City C with X without any support or appropriate accommodation, I simply cannot be satisfied that X will be safe in Ms Croft’s care.[1]
[1] Paternal grandmother’s affidavit paragraph 409
In her affidavit the paternal grandmother said that she was struggling with a final proposal for X to spend time with the mother. She said that she would only agree to supervised time, and E Contact Centre, who operated a supervised contact centre in Town F, would not provide further supervision given issues which had arisen.
She said that her family and friends had offered to supervise time in the past but the mother rarely showed up to such visits and did not communicate with her when she was running late, unable to attend or sick.
In her affidavit the paternal grandmother said that she was willing to supervise day visits between the mother, father and X if a support person was present. However she was opposed an order being made for this to happen at a defined time and in her amended response she sought an order that the child spend time with both the mother and father at her discretion.
At the end of the hearing the Independent Children’s Lawyer proposed that X continue to live with the paternal grandmother and that she have sole parental responsibility for him.
The Independent Children’s Lawyer proposed that within seven days of the mother providing the paternal grandmother with a drug urinalysis screen which was not positive for illicit drugs and which did not have sample integrity issues the parties place themselves on a waiting list for time at G Contact Centre Town F and that the mother then spend time with X supervised by G Contact Centre for six months.
At that point, the matter would go one of two ways.
If at the end of six months the mother provided a hair test that was negative for illicit substance use for the preceding three months and provided evidence that she was engaged with a clinical psychologist or mental health social worker, she would commence spending unsupervised time with the child, beginning with blocks of two hours and gradually increasing until by the time the child started school he was spending time with her each alternate weekend and for half of the school holidays.
The orders also envisaged the mother having ongoing hair tests.
If however at the end of six months the mother failed to provide a clean hair test she would only be able to spend supervised time with the child six times a year for two hours, with a supervisor to be agreed between her and the paternal grandmother and with the costs of the supervision to be shared.
Those orders are laudable in that they create the opportunity for the mother to have a meaningful relationship with the child, but they are hugely impractical. Supervised time has not been able to be successfully organised in the past, at least not for any length of time. The mother frequently did not avail herself of time supervised by paternal family members and E Contact Centre, who initially facilitated supervised time, declined in February 2020 to continue to provide a service due to issues between them and the paternal grandmother.
I was informed during submissions that G Contact Centre, another supervised contact service in Town F, would do six months of supervision notwithstanding that final orders had been made, but there was nothing to suggest that they would provide a service if the second pathway had to be followed.
Another issue with the proposed orders is that the mother is currently using illicit drugs, and it is unclear when she would be able to produce a clean urinalysis result. Further, she is impecunious and is unlikely to be able to afford regular hair tests, and she is not currently engaged with a mental health social worker or clinical psychologist, so she would have to find such a person and commit to engagement with them.
Finally, the mother is a fish out of water in Town F. She is chafing to get back to City C and it is open to question whether she would commit to remaining in New South Wales indefinitely if those orders were made, or whether she would simply give up and go home.
If those orders are made, or indeed if any order is made which includes X continuing to live with the paternal grandmother, there is quite a high likelihood that his relationship with his mother will cease.
The other parent X has of course is the father. He is named as the Second Respondent but he has never filed a response. He filed one affidavit in the proceedings, but he filed it under cover of calling it an affidavit of documents and sneaked it in without paying a filing fee. He did not file a trial affidavit and he did not take part in the trial as a party.
The Independent Children’s Lawyer proposed that the child spend time with the father as agreed between the paternal grandmother and the father. They do not have the best of relationships and the father has his own issues with ongoing cannabis use which means the paternal grandmother is not likely to agree to anything much in relation to the father, and he also would prefer to live in City C. If those orders are made the child is also unlikely to have a relationship with his father.
The father is however on good terms with the mother and if orders were made for the child to live with her, or even to spend unsupervised time with her, it is likely that the child would through that means have some contact with and/or spend time with the father.
The evidence
The mother gave evidence in her case. She relied on an affidavit and a minute of order attached to her case outline document.
The paternal grandmother relied on an affidavit and her amended response filed on 26 April 2021.
A family report was prepared by Mr H, a regulation 7 family consultant and all of those witnesses were cross-examined.
Prior to the family consultant giving evidence the father went into the witness box at my request because he had been sitting in Court by the mother’s side throughout the trial. The brief affidavit he filed on 13 December 2019 was read and he gave some brief oral evidence and was cross-examined.
A tender bundle was prepared and at the end of the trial each party provided a list of the documents from the bundle that they wanted the Court to read. When I say each party, a written list was provided by the mother’s counsel and the father’s counsel.
Background
The mother and father commenced a relationship in City C in 2017 and commenced cohabitation in December of that year.
The mother was born and grew up in City C and she had been working on and off as a health care worker. The father was brought up in New South Wales to the best of my knowledge, but he was living in City C and working on farms.
The mother fell pregnant in 2018 and X was born in City C in 2019.
The paternal grandmother had contact with the mother and father after they commenced their relationship. She met them in Canberra in 2018 and the mother and father told her then or later that the mother was pregnant. In October 2018 the paternal grandmother visited the mother and father in City C and they spent Christmas 2018 with her in Town D.
The mother said that from January 2019 there were issues in her relationship with the father and that their relationship became on and off, which caused her considerable stress and distress. She admitted that in February 2019 she self-harmed by scraping her skin with a broken plastic spoon. She said that this was because the father told her that he did not love her and she had not planned to be a single mother and was very upset.
The paternal grandmother went to City C in 2019 at the time of X’s birth and she was extremely concerned about events that happened after she arrived in City C. There was a shouting match at the hospital between the mother and the maternal grandfather and his partner, and a watch was put on the mother during her time in hospital and she was required to have a mental health assessment.
The mother said that her behaviour was due to the circumstances and this was not how she was normally. She said that she did not feel herself around the time X was born and was under stress dealing with the father, extended family, finances and a newborn.
For reasons that will become apparent from findings I make later in the judgment, I do not accept that this was aberrant or situational-only behaviour by the mother, and it concerned the paternal grandmother.
The mother and father had nowhere satisfactory to go after X was born. The shack they had been living in was unsuitable for a baby, and the maternal grandfather and his partner said that they would take the mother in but not the father and the mother did not find that acceptable.
After the mother was released from hospital she and the father stayed in the apartment in City C which the paternal grandmother was renting. The paternal grandmother suggested that they come down to Town D and stay with her for a while. They accepted the offer and the mother, father, X and paternal grandmother arrived in Town D on 10 April 2019.
The paternal grandmother alleged that in Town D there were ongoing issues with the parents fighting and that the mother became extremely upset if the father wanted to go out and made threats about going back to City C or even killing herself.
She also alleged that both parents were smoking cannabis and were not looking after X properly. She said that she eventually tried to work from home and took on more and more of his care.
The mother admitted that she and the father had many arguments. She said that this was one of the reasons the Department of Family & Community Services (FACS) as it then was became involved. She denied that X was not properly looked after, but there is no doubt that she was distressed over the state of her relationship with the father during that period and no doubt that both parents were using cannabis heavily, and I prefer the evidence of the paternal grandmother about what was happening in the home.
FACS became involved on 3 June 2019. They insisted that the parents be tested for cannabis use and they both tested positive. The mother’s reading was high and the father’s reading even higher. FACS thereafter drug tested the mother on a number of occasions. The father only ever did one test.
The paternal grandmother said that she valiantly tried to step back and let the mother parent X but on one occasion when she tried this his clothes were not changed and he was not bathed for five days.
The mother vehemently denied this but the paternal grandmother attached to her affidavit some notes the mother wrote to herself during this time which support her evidence that the mother was not coping. One dated 6 June 2019 said as follows:
Where do I even begin? How do I do any of what is coming my way. Mr Fox going to work and it’s just me….HOW? I know I can’t do it. I can’t even seem to go to the shops alone. So how do I look after X. Everything is messed up big time. I am pretty sure I’m faking my way through. How I say anything if I do I probably end up loosing X. So I just SHUT UP!! SHUT UP MS CROFT.[2]
[2] Paternal grandmother’s affidavit page 45
On 9 June 2019 the father returned to City C. The mother missed him and on 16 July 2019 she went to City C to find him and left X with the paternal grandmother. It was not her intention to permanently leave X behind and she kept in daily contact with the paternal grandmother, and insofar as it was possible given his age she kept in contact with X via video calls.
There was a dispute about whether a definite date had been set for the mother’s return to Town D but there was no doubt she intended to return and she did so in very late July 2019.
The paternal grandmother was not in Town D when the mother returned. She had gone up to City J where one of her employers is located taking X with her.
The mother could not get into the house and she was not able to contact the paternal grandmother and she became very distressed. Going into all the detail around that will not assist me but eventually the mother went to the police. They were unable to assist her and on 6 August 2019 she filed an application for a recovery order.
That application came before the Court on 7 August 2019 and the Court made orders on that day for the child to live with the paternal grandmother and spend time with the mother supervised by E Contact Centre, a private supervision service.
The mother obtained accommodation in Town F and commencing on 15 August 2019 she spent time with X supervised by E Contact Centre. Their notes suggest that she came well prepared for the visits and cared well for X and was very responsive to him.
However all was not entirely well in the mother’s life. On 20 September 2019 she was taken to hospital by ambulance after someone she was in communication with in a chat room reported that she was talking about killing herself.
On 3 November 2019 she returned to City C. She said that this was to sort out her finances and line up some accommodation in City C should she be able to return there with X.
The mother returned to Town F on 15 November 2019 and she contacted E Contact Centre about the supervised time resuming but there was then a series of difficulties including a misunderstanding between the paternal grandmother and the E Contact Centre about whether she was on holidays and why she wanted the visits to be on Sunday.
The mother did not cope well during that time and on 15 December 2019 she was transported to Town F Hospital after taking an overdose of Seroquel.
The father had been travelling back and forth between City C and Town D in the second half of 2019. He had initially stayed with the paternal grandmother and had had some limited contact with X but she asked him to leave her home after finding marijuana in the shed.
The mother, and I think the father as well, spent some time with X at the home of the mother’s foster-brother Mr K on 25 December 2019.
On 16 January 2020 an interim hearing took place and it was ordered that the visits supervised by E Contact Centre continue, but that there be additional visits supervised by Mr K.
It would appear that no visits ever took place supervised by Mr K. Various reasons were given for that. Time supervised by E Contact Centre did resume but the relationship between the paternal grandmother and E Contact Centre continued to deteriorate. On 28 February 2020 E Contact Centre cancelled a visit because they mistakenly believed that the paternal grandmother had not paid her half of the invoice and not long afterwards that they advised that they were no longer willing to provide a service.
On 20 March 2020, just before the full impact of the COVID-19 crisis hit, the mother returned to City C. She then remained in City C until 4 June 2020, the day of the family report interviews.
The mother said she was unable to return to Town F because of border closures. At trial there was some discussion about whether that was correct, because while Queensland shut their border New South Wales was not in the habit of doing that, but I am not going to attempt to make a finding about that. Nothing now turns on it.
The fact is that the mother remained in City C from March 2020 until 4 June 2020 and spent no time with X during that period. FaceTime communication was attempted three times a week but both parties made complaints about what happened during the calls. The paternal grandmother alleged among other things that the mother called her a bitch. Given the content of other communication between the parties which I will refer to later I accept her evidence that this occurred.
The mother attended the family report interviews on 4 June 2020 as did the paternal grandmother and X. The father attended by telephone from City C.
It would appear from the report that the family consultant accepted the mother’s assertion that she had not used cannabis since around mid-2019. He was of the view that X should be living with a parent if possible and expressed some concerns about the paternal grandmother’s facilitation of time between the mother and X. He recommended that X recommence supervised visits with the mother with a view to being transitioned into her primary care, conditional on her remaining free of cannabis use.
The parties could not reach agreement following the release of the report, and they could not even reach agreement about ongoing interim arrangements. As a result the mother filed an application in a case seeking further interim orders.
The interim application was listed for hearing on 21 October 2020 but there were some events between the release of the report and that hearing.
On 7 September 2020 the mother attended the paternal grandmother’s workplace. There was no dispute that she went up to the front desk and left two cupcakes there. There was a dispute about what else if anything happened and I will refer to that in the family violence section of the judgment, but the incident led to the mother being charged with stalk/intimidate and an interim ADVO being made for the paternal grandmother’s protection.
On 2 October 2020 the mother had another short hospital admission for mental health issues and was prescribed Seroquel.
On 6 October 2020 the paternal grandmother found some threatening letters in her mailbox. I will refer to those in detail later but she reported it to the police. The mother denied that she was responsible for those letters.
On 21 October 2020 an interim hearing took place. The mother had secured accommodation in Town F and an order was made for X to spend time with her for four hours each Monday and Friday unsupervised until 21 March 2021. The time was then to graduate to two visits each week during the day and one overnight visit.
Some unsupervised visits took place in accordance with those orders but there were further issues.
On 5 November 2020 the paternal grandmother found a further threatening letter in her mailbox, which she also reported to the police and which the mother again denied sending.
The paternal grandmother also alleged that X returned from his visits with some injuries. She said that on one occasion he returned with a bruised eye and on another occasion with scratches on his face and a small wound near his nose which developed into significant bruising and swelling. It was not disputed that he did return with those injuries but the cause of them was disputed.
In December 2020 the paternal grandmother made a report to police about the injuries. An investigation was conducted by the Child Abuse Squad and notwithstanding that they could not be satisfied that the mother had either deliberately or negligently harmed X the paternal grandmother ceased making the child available to spend time with the mother. She alleged that the Child Abuse Squad advised her not to do so.
I cannot make a finding about what the detectives from the Child Abuse Squad might have said but there is no doubt that the paternal grandmother was concerned about the injuries notwithstanding the outcome of the investigation. She also said that X had become extremely reluctant to go to the mother at changeovers, and finally she said that another concern was that the mother had failed to do the hair test which she had been ordered to do on 21 October 2020 when the Court made the spend time with orders, and she failed to do it notwithstanding that the paternal grandmother had offered to pay for it.
On 4 March 2021 a hearing took place in the Local Court in respect of the stalk/intimidate charge. The mother was found not guilty but an ADVO was made for the paternal grandmother’s protection for two years.
The mother’s counsel mentioned in submissions, and I agree that this is the case, that it is unclear exactly what incident the stalk/intimidate charge the mother was convicted of related to. It seemed to be assumed at some points during the hearing that it may have related to the letters but it could also have related to the visit to the grandmother’s workplace and the allegation that the mother followed her in a motor vehicle later that day.
The mother was anxious to spend time with X and filed another application in case. However on 17 March 2021 when the matter was mentioned the only order made was for video calls to take place between the mother and X pending the final hearing.
Both parties said that the calls were not a success. The mother complained that sometimes X was asleep or the phone was on mute. The paternal grandmother alleged that the mother engaged in further verbal abuse.
On 25 March 2021 the mother complied with the order to do a hair test and tested positive for cannabis. She alleged that she had resumed using cannabis in December 2020.
On 10 May 2021 when the hearing commenced the mother had not spent time with X for some five months.
The parties’ circumstances
The mother is 26. She is currently living in a studio apartment in Town F. She said the unit was set up with a cot and other items necessary for X.
The mother is not employed. She said in the longer term, if X was returned to her care and she returned to City C, she would like to complete year 11 and 12 and then study health care.
The mother was born in City C and she lived there all her life until she came down to Town D with X in April 2019. The maternal grandfather, Mr L, and the maternal step-grandmother, Ms M together with friends the mother has known for a long time and some other members of her extended family all reside in City C.
The mother said that if X was returned to her care she planned to return to City C where her support network were. She said that she could stay with her father and stepmother for a few weeks and would then obtain a rental property. She said that she had identified services such as a GP and psychologist she could see in City C, and identified a playgroup she could attend with X.
The mother’s proposal to rely on the support of the maternal grandfather and stepmother raises some concerns. They have been, at various junctures, been supportive of her. They came to see her in hospital when X was born. They came down to New South Wales on one occasion since the mother has been down here. They offered to have her, but not the father, stay in their home after X was born.
However although they have been supportive of her, their relationship with her has not always been without concern. There was an argument between them at the hospital when X was born. The mother ended up shouting at them and there is evidence in the subpoena material which I will refer to in the family violence section of the judgment about historic issues between the mother and the maternal grandfather.
Another concern about the mother relying on their support is that the mother’s drug use is a significant issue in the case and she is still using cannabis and the maternal grandfather lost his driver’s licence for six months at the end of January 2019 after he twice tested positive for drug driving, with what appears to have been cannabis in his system.
Whether they are ideal people to be around the mother if she is trying to overcome her cannabis use has to be open to question.
The other person to discuss here is the father. He is 35. He is currently living, in the mother’s words, on her couch, and the evidence suggests that he has had long-term difficulties obtaining accommodation when he is not working on farms.
Prior to X’s birth he was living in a shack in the rainforest which had solar power and no running water, which may be acceptable for an adult but was concerning for a baby.
In his affidavit filed on 13 December 2019, which was filed after the paternal grandmother refused to have him in her house because of finding cannabis in the shed, he said that he was staying at a friend’s on a couch (his words) while helping that family out while there.
The father is also a long-term cannabis user. His drug test result when FACS administered a test on 5 June 2019 was 1866 ug/l, where the cut-off was 15. He has done no other tests but he told the family report writer in June 2020 that he was still using cannabis and I have no reason to doubt that this is still the case today.
The father’s presentation in the witness box when he gave evidence was concerning. He is not someone who the court would be likely to order spend unsupervised time with a young child without a cognitive and mental health assessment being done and evidence being given that he had ceased cannabis use.
The paternal grandmother is 57. She lives in a three-bedroom unit in Town D.
The paternal grandmother has a partner, Mr N. According to the family report Mr N lives in Town O, near City J. The paternal grandmother said that he was at her home for the majority of the week. Wherever the truth lies, nothing much turns on that, because while he did not give evidence at the hearing no issue was raised about him.
The paternal grandmother is a self-employed professional who has businesses in Town D and City J. X currently attends day care three days a week and the paternal grandmother gave some evidence about how she would manage his care as he got older and how that would fit in with her work arrangements.
The paternal grandmother has two children. One is her son Mr Fox, the father in this case, but the other is a daughter, Ms P, who is about 39 and who lives in City C. Ms P has a two-year-old child. The paternal grandmother has no relationship with Ms P. She could be described as being estranged from her.
X’s best interests
Any orders I make about X must be determined by treating his best interests as the paramount consideration, and section 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine his best interests.
The paternal grandmother has standing under the Family Law Act to apply for parenting orders, but not all of the section 60CC(2) and (3) matters apply to grandparents. Some of them apply only to parents and I will need to bear that in mind when making findings about the section 60CC (2) and (3) matters.
The primary considerations in sections 60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC (3) and as I frequently do I am going to start by discussing those before returning to the primary considerations.
The first additional consideration is shortly disposed of. It is any views of the child and the weight to be given to the views.
X is too young to have a view about parenting arrangements.
The second additional consideration is the nature of the child’s relationship with each of his parents and any other person, including a grandparent of the child.
There is reference in the E Contact Centre notes to X smiling at the mother and being responsive to her during supervised visits in the second half of 2019, and the family report writer observed a satisfactory interaction between the mother and X in June 2020, notwithstanding that X had not spent physical time with her for many months. He said as follows:
During my observation of the mother spending time with the subject child, it was evident at the outset that X recognised his mother. Ms Croft hugged X after removing him from his pram. Ms Croft brought some toys for X for the observation period. The mother eventually sat on the floor and played with him, and it was evident that X was joyous throughout the observation. Ms Croft was focussed upon X for the entire observation, while it was clear that the subject child was also happy and relaxed in the mother’s presence. [3]
[3] Family report paragraph 83
After those observations in June 2020 there was then a further gap until October 2020 when X spent no time with the mother and then there were a number of short unsupervised visits.
The mother said that they went well. The paternal grandmother said that on the last three occasions X was fighting not to go to the mother and that it was this, as well as the unexplained injuries, which caused her to stop complying with the orders.
The paternal grandmother’s evidence about X’s reaction and his fighting not to go was convincing during cross-examination, but changeovers and children’s behaviour at changeovers are only part of the picture. The fact that a child does not want to transition to one parent at changeover does not necessarily mean they have a poor relationship with that parent.
However X has not spent any time with his mother for six months now and I cannot be sure about the nature of their relationship at the moment. He has been having some video calls with her since 17 March 2021 but on the evidence of both the mother and the paternal grandmother they have been very unsatisfactory.
X has been in the primary care of the paternal grandmother since he was four months old and he has a good relationship with her. There are references to a positive interaction between them in doctor’s notes in the tender bundle, and the observation by the family report writer was positive. He said as follows:
During my observation of the paternal grandmother spending time with X, there were no evident transition issues for the subject child in moving between his mother and his paternal grandmother. Ms Wilmot easily engaged X in play, sitting on the floor with him. It was again evident that X presented as a happy child and was certainly excited whilst he was engaged in play. The paternal grandmother was certainly affectionate with X and nursed him whilst X scrolled through pictures on the paternal grandmother’s mobile phone.[4]
[4] Family Report paragraph 84
The paternal grandmother is X’s primary attachment figure and I cannot be sure about the nature of his relationship with the mother.
What I can be sure about is that X does not have a relationship with his father. He has seen him on only brief occasions since he was two months old, and to the Court’s knowledge at least not at all in the last 18 months.
The next thing I have to consider is the parents’ obligation to support the child.
A child support assessment appears to be in place and it is likely that not much is being paid, because the mother, at least, is on Centrelink benefits, but nothing turns on the issue of whether the parents are financially supporting the child.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child or communicate with the child.
The father has not made much effort in that regard. He did not file a Response and has never asked the Court to make any orders.
The mother has missed some opportunities to spend time with the child due to illness, unavailability of transport, unavailability of supervision or being in City C. However if you step back and look at it from a broader perspective she has consistently wished to have a relationship with her son and spend time with him, and that is a positive about the mother’s case.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of his separation from either of his parents or any other child or person, including any grandparent or other relative of the child with whom he has been living.
The mother proposed that X immediately commence spending unsupervised time with her and that this build up until in 12 months he had transitioned into her full-time care.
X does not have much of a relationship with the mother at the moment, but if she were a capable, empathic parent it is possible that he would adjust to this change if it was slowly introduced. I therefore cannot make a finding about the likely effect of that change until I make further findings about the section 60CC (3) matters and findings about the s. 60CC (2) matters.
The mother proposed that ultimately she be able to take X to City C.
If he had successfully transitioned into her care that might not be detrimental for him. It would mean that he would spend fairly limited time with his paternal grandmother, but she could slip back into the role of a grandparent leaving the mother to parent X, and X would have the benefit of being brought up by one of his parents.
It would be beneficial for X if that could occur, indeed it was the outcome the family consultant recommended. If however the mother had not successfully been able to build a bond with X, if she continued to use cannabis and use it heavily, if she lacked the capacity to keep him safe and well cared for and if she was not well supported in City C it would be a detrimental outcome for the child.
The likely effect of change is the central issue in the case and I will need to come back to it after making further findings about the section 60CC(2) and (3) matters.
I must consider 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.
The only relevant parent here is the mother. She is living in Town F which is about half an hour from Town D. She is reliant on a bus but any practical difficulties there could be overcome, for example by requiring the paternal grandmother to facilitate the travel.
Distance by itself, if the mother remains in Town F, is not a practical difficulty which will affect the child’s right to spend time with the mother, one of his parents, and I cannot do anything to achieve him being able to spend time with his father. That is out of my hands.
From the point of view of distance practical difficulty is not an issue. However if it is determined that supervision is required there will be a practical difficulty.
E Contact Centre, who might not refuse to do long-term supervised time even after final orders were made, are now out of the question for this family. G Contact Centre will do supervised time after final orders are made but they will only do it for six months.
I will discuss this further at the end of the judgment as needed but there could well be a considerable practical difficulty in the child spending time with the mother if the Court is left with no option but to make an order for supervised time.
I must consider the capacity of each parent and any other person, including a grandparent of the child, to provide for the needs of the child, including his intellectual and emotional needs.
The paternal grandmother has the capacity to provide for X’s needs. The mother made no complaint about X’s appearance whenever she saw him and the family report writer and various doctors X has seen have all observed him to be well cared for.
Numerous concerns were raised during the trial about the mother’s parenting capacity. The family consultant rightly said in cross-examination that the mother’s cannabis use, her mental health issues and her parenting skills were all interconnected issues and there is no doubt this is the case. They are also issues which are relevant both to her parenting capacity and to the assessment of risk of harm but I am going to start by discussing them here and I am going to break them down into individual components.
The paternal grandmother maintained that the mother lacked parenting skills. She said that she had left X close to the edge of a table and left him near a hot oven and made other poor decisions during the first couple of months of life. She questioned how X came to have an injury to his arm when supervised time was taking place at E Contact Centre and she was suspicious about the injuries to his face which he suffered on two separate visits to the mother’s home in the last quarter of 2020.
The mother denied that she had failed to look after X properly when she lived with the paternal grandmother. She said that the injuries to his face were accidental and she strongly denied that his arm had been injured at E Contact Centre.
I cannot find that X’s arm was injured during the supervised visits, and I cannot make a finding that he suffered any deliberate or reckless injuries to his face. However I prefer the paternal grandmother’s evidence about what happened during the three or four months the mother lived with her. The mother’s diary notes, the fact that she was upset and angry with the father and quite possibly distracted by issues in her relationship with him and the fact that she was using cannabis quite heavily all incline me to the view that the mother did not parent X well during those four months.
The mother said that things had been different after that and there is evidence that during the 27 visits supervised by E Contact Centre between August 2019 and February 2020 the mother did parent X well. She came well prepared. She gave him a bottle. She settled him to sleep. She was careful about things such as testing the temperature of the milk in his bottle on her wrist.
The mother tried to get involved in caring tasks for X during this period. She wanted to attend to his immunisations although the paternal grandmother would not agree to that, and she made frequent inquiries about the formula that he was using.
The paternal grandmother said that she distrusted the accuracy of the E Contact Centre notes. In her view they had got so many other things wrong that she was not prepared to accept they had got their observations of the mother right. However my view the notes from E Contact Centre suggest that in a supervised setting the mother was able to focus on X and attend properly to his needs.
It is very difficult though for me to assess the mother’s current parenting skills. The fact that she has resumed using cannabis (if indeed she ever ceased) makes me extremely concerned about how she would parent X if she was not under the observation of an organisation like E Contact Centre and was in a home setting and had him for a lengthy period of time.
The state of the mother’s home when the Child Abuse Squad visited also gives me considerable cause for concern.
In early January 2021, police from the Child Abuse Squad went to the mother’s home and their notes include the following:
Detectives Q and R conveyed Ms Croft home to S Street, Town F where Ms Croft provide police with written and video recorded consent to conduct a crime scene examination / walk through of the unit. The unit was a single bedroom dwelling which emcompassed a living area, small kitchen and combined bathroom/ laundry. The front veranda was littered with rubbish and broken pieces of furniture and toys. The main bedroom contained a double bed, television and book shelf. Rubbish and rotten food was scattered throughout the unit along with dirty dishes and dirty laundry. Ms Croft stated the unit was not in the current state when she was minding baby X. Ms Croft showed police the toy set and toy pizza in which T and he were playing with. The pizza was a plastic toy comprising of four pieces which could all be pulled apart with minimal force – creating doubt about how the pizza could be used in a tug a war type of scenario.[5]
[5] Tender Bundle page 448
The mother said during cross-examination that her home might have been messy but this was because she was down about not seeing X and that she usually cleaned up before he visited.
I have some reservations, given the whole history of the matter and various things that have happened and the mother’s ongoing cannabis use, about whether that is necessarily the case. I cannot be certain at present that the mother has the skills to parent X if he was in her care for a lengthy period of time.
A recent independent observation of the child with the mother might have provided some insight into the matter. The child might or might not have displayed fear or reluctance to go to her. I do not have that and I cannot make any findings about the mother’s current level of parenting skills but regardless of that I have concerns about her parenting capacity arising from her cannabis use, the evidence about her mental health and the evidence about her anger management issues which I will refer to in the family violence section of the judgment.
In her affidavit the mother said she had a history of cannabis use but she provided no further detail.
She told the family consultant that she started using cannabis when she was 21, prior to commencing a relationship with the father. She was adamant in the witness box that this was when she started using and no earlier. She said that she and the father used cannabis together on a regular basis each week.
The mother agreed during cross-examination that she used cannabis during her pregnancy but said it was only in “the last three or four months”. She said she used cannabis to treat anxiety and stress. She denied using it every day and in the witness box she said “I can go a few days without it. No worries.”
The paternal grandmother said that she had been told that X had been born showing signs of withdrawal, most likely from pot. That is mentioned as a possibility in the subpoenaed documents but there is insufficient evidence to allow me to make a finding about it. Nevertheless the mother has that history of cannabis use. She used it for a period at least when she was pregnant and she continued to use it after X was born and when she was breastfeeding him.
The mother tested positive for cannabis in tests done by FACS in June 2019, but it was her case that she had then ceased using cannabis and had not used again until December 2020.
The mother did a number of urinalysis tests requested by the Independent Children’s Lawyer and she said in her affidavit that all of the urinalysis tests showed a decrease in her level of marijuana use in 2019 and then clean results throughout 2020.[6]
[6] Paternal grandmother’s affidavit Exhibit “ 1” page 34
The following table provides information about the mother’s test results.
Date of Order/Request from
Date Collected
Donor
Specimen Type
Result
FaCS
05.6.19
Mr Fox
Chain of custody urine drug screen
Positive – Cannabis 1866 ug/L
FaCS
05.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 413 ug/L
FaCS
11.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 300 ug/L
FaCS
13.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 658 ug/L
FaCS
14.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 723 ug/L
FaCS
17.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 55 ug/L
FaCS
21.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 56 ug/L
FaCS
26.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 49 ug/L
FaCS
28.6.19
Ms Croft
Chain of custody urine drug screen
Positive – Cannabis 453 ug/L
FCC Order 7.8.19
9.8.19
Ms Croft
Chain of custody urine drug screen
Note: integrity issue raised
No request, voluntary
19.8.19
Ms Croft
Chain of custody urine drug screen
Negative
No request, voluntary
28.10.19
Ms Croft
Chain of custody urine drug screen
Negative
ICL request 17/4/20
17.4.20
Ms Croft
Chain of custody urine drug screen
Note: integrity issue raised
ICL request 22.6.20
Ms Croft
FCC Order 21.8.20
Ms Croft
Hair follicle due 30.11.20
FCC order 21.10.20
Ms Croft
Hair follicle test due 30.3.21
This shows cannabis detected in June 2019 at a level of .413. There is then a decrease in the next couple of results and on 9 August 2019 there is a clean result and the next few results the mother provided were clean of drug use.
However all the clean test results provided in response to a court order had sample integrity issues, in other words, dilute creatinine, and what that might mean is mentioned on one of the results as follows:
The urine was very dilute. This suggests a large water intake prior to passage of the urine, or perhaps adulteration of the sample with water after collection. This may be used to dilute out any drug metabolites to concentrations below detection limits.
The Chain of Custody form has been inspected. The temperature of the sample and the supervision of the collection suggests adulteration of the sample after passage is unlikely.[7]
[7] Paternal grandmother’s affidavit page 43
On 21 October 2020 the mother was ordered to do a hair test. She did not do so, even though the paternal grandmother offered to pay for it. Finally, on 25 March 2021, she provided a hair sample, and she tested positive for cannabinoids at 85.0 pg/10 mg, where the screening cut-off was 10 pg/10 mg.
In her affidavit the mother said that she had used marijuana sporadically since 18 December 2020 as a result of her distress about not being able to see her son.
During cross-examination in May 2021 she said that she had last used cannabis seven or eight days ago.
There is no doubt that cannabis use has a negative impact on the mother’s parenting capacity. She said as follows in her affidavit:
I also acknowledge the concerns presented by my cannabis use and the effects of this on X. I remain engaged with drug and alcohol counsellor in relation to cannabis use.[8]
[8] Mother’s affidavit paragraph 114
Caseworkers from FACS commented in 2019 on the impact of the mother’s cannabis use. Their notes include the following:
It was noted by caseworkers that both parents appeared to be under the influence during the home visits. Ms Croft was observed to have glassy eyes and was very quiet and not willing to engage in eye contact with caseworkers, whereas Mr Fox was agitated and unable to follow the conversation. Mr Fox was slurring his speech and also avoiding eye contact.
The parents have been observed to be affected by cannabis, not just to have it in their system. FACS gave them some information about why they needed to cease using but neither of them were able to do so at that time.
At trial the mother produced a letter from a Drug and Alcohol service in Town F dated 14 April 2021 indicating that she had engaged with them in August 2019 and remained engaged with them until 30 April 2020. They said that they considered that she was committed during this period and had remained drug-free.
They said that in October 2020 she contacted the service again seeking ongoing support and relapse prevention. She told them that she was maintaining her goal of abstinence. The letter noted that she had a brief relapse in January 2021 but said that she had continued with her goal of abstinence.
However the mother has not been abstinent from cannabis this year and I seriously question the extent, if any, to which she has ceased using cannabis since she came down to New South Wales.
Much was made of the fact that there were no results between August 2019 and March 2021 which were positive for cannabis, and the mother insisted she had been abstinent for the period June 2019 to December 2020. However I cannot be satisfied of that on the balance of probabilities.
There was at least one missed test, and every single test that was done from 9 August 2019 except for two the mother did of her own volition had sample integrity issues. The hair test was not done when it was ordered, despite the paternal grandmother offering to pay for it, and the admission by the mother, which is seemingly frank, that she commenced using cannabis again in December 2020 is really quite opportunistic, because in March 2021 the mother’s hair was tested for drug use in the previous three months and the mother selected a date three months back from the date of the hair test result as the date on which she alleges she resumed using cannabis.
I do not accept the mother’s evidence and am satisfied on the balance of probabilities that it is more likely than not that the mother has not, except perhaps for very brief periods of time, ever ceased using cannabis.
She certainly continues to use it today and this has serious implications for her parenting capacity in terms of her being available to the child and responsive to the child if he needs attention and being able to drive the child somewhere he becomes ill. It also impacts on her finances if she needs to purchase it and it has implications for her mental health.
The mother said in the witness box that she suffered from anxiety and depression. She said that she had been diagnosed with that in 2017. She admitted that she had been told that cannabis use was likely to impact negatively on her anxiety and depression, and yet she has continued to use cannabis.
The mother’s mental health is another significant concern in this matter.
The mother told the family consultant that she had had suicide ideation since she was an adolescent. She attempted suicide in 2017, or at least she took an overdose of medication, something of that nature. She said that arose out of grief about a violent relationship and/or her mother deciding to return to Country U.
She engaged in some self-harm in February 2019 when she superficially scraped her legs with a broken plastic spoon. Following X’s birth a nurse was stationed outside her room until she left hospital the following day and she was required to have a mental health assessment.
The mother consulted a GP in Town D on 31 August 2019 because she was concerned about her mental health. On 20 September 2019 she was taken to hospital after telling someone in a chat room that she was threatening to kill herself, and this was during a period when she was having regular supervised time with X at E Contact Centre and they considered the time was going well.
On 29 October 2019 the mother went to a GP and obtained a mental health plan.
On 15 December 2019 she was taken to hospital again after telling people that she felt isolated in Town F and was upset about not spending time with X and was feeling suicidal and had taken 20 pills.
The mother said that she had not been hospitalised for her mental health since December 2019. She said that she had had some engagement with a psychologist since then but the details of that are unclear to me.
The mother has had mental health issues, in terms of feeling suicidal and engaging in self-harm, over quite a number of years. She admitted that her cannabis use had a negative impact on her mental health. I cannot see any evidence that she is currently involved with a psychologist about her mental health, as opposed to being involved with a counsellor for drug and alcohol issues, and I have serious concerns about whether her mental health is stable or whether issues could flare up again in the future, and that has implications for her being a reliable parent for X in the longer term.
Another concern about the mother’s situation is her relationship with the father.
The mother and father had many heated arguments after X was born, which X was exposed to. In her trial affidavit the mother said that she recognised that the arguing and verbal disputes with the father when X was a baby were not healthy for X. She said she had done a Circle of Security course and had come to realise the damage this could do and she had worked on communicating respectfully with the father since then.
However it required FACS to step in before the mother ceased exposing X to that situation and indeed I am not sure that caused it to cease. I think the father going back to City C caused it to cease.
I have considerable concern about what might happen between the parents in the future and whether X might be again exposed to arguments and verbal disputes between the mother and the father if he spent unsupervised time with the mother.
The paternal grandmother labelled the interaction between the parents family violence. For reasons to be given shortly I do not consider I can put that label on it but it would be undesirable for X to be living in a home where there was unrestrained yelling and arguing.
The mother and father still see each other. The father is living on the mother’s couch. They denied they were in a romantic relationship and I cannot find that they are, but I cannot be satisfied that all risk of them coming into conflict is gone, especially when they are both continuing to use cannabis.
The mother’s ongoing relationship with the father, romantic or otherwise, is a negative, not a positive, for her case.
I must consider 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 has only recently turned two. He is very vulnerable and completely unable to protect himself. He is also not of an age when he could intelligibly tell anyone if he was being hurt or exposed to danger by one of the adults in his life.
I must consider any family violence involving the child or a member of the child’s family.
The paternal grandmother alleged that there was family violence between the mother and the father. She put that label on their interaction but she did not flesh that out to any great extent. Presumably she attached that label to their interaction because of them having loud arguments. She also said that the mother attempted to coerce and control the father by threatening to harm X or kill herself if the father went out without her or left her. She said that on one occasion during an argument the mother jammed the father’s hand in a door.
The parents told the family report writer that there was no physical violence between them but that they engaged in yelling and arguments, which the mother said was due to the father using dating websites.
The evidence about the incidents between the parents was fairly slender and I cannot be satisfied, on the balance of probabilities that it was violence as defined in section 4AB of the Family Law Act. There are however much more serious allegations of violence in the matter, and they involve the allegations about the mother’s conduct toward the paternal grandmother.
On 7 September 2020 the mother went to the paternal grandmother’s workplace with two cupcakes. She said one was for the paternal grandmother and one for her foster brother Mr K.
The mother said she placed them on the front desk and left. The paternal grandmother alleged that she could hear shouting and that Mr K told her that the mother had slammed the cupcakes on the counter, taken a picture, shouted about seeing X, and left.
The paternal grandmother said that when she left work that afternoon to collect X from day care the mother followed her in her vehicle. She said she felt intimidated. She made a complaint to the police and an ADVO was made for her protection.
The mother denied that she had any intention of intimidating or upsetting anyone when she took the cupcakes into the grandmother’s office. She denied that she had tailed the paternal grandmother in her car and tried to intimidate her.
The mother was not always a witness of credit and I prefer the paternal grandmother’s evidence generally about what happened, but I cannot rule out the possibility that there is some innocent explanation for it, for example that the mother meant no harm when she left the cupcakes or that there was some innocent explanation for what happened with the motor vehicle. I cannot find that the mother perpetrated family violence on that occasion. However there are other issues.
On 13 September 2020 the mother put a copy of a long text message on the paternal grandmother’s Facebook page. She accused her of claiming child support under her ex-husband’s name, said that her son was a drug addict, that she was going after her, that her daughter wanted nothing to do with her and that she was sick of her shit.
On 6 October 2020 the paternal grandmother arrived home to find two letters in her mailbox. One was handwritten, but appeared to have been made using a stencil, and it said as follows:
Hand X back or get hurt. Stop calling him X X. His name is X. Stop!!! Using Fox for claiming child support from me. If I can’t have him I will make sure you don’t….Have a good week?? Tell him I miss him.[9]
[9] Paternal grandmother’s affidavit page 77
The second letter was also mainly stencilled, apart from the middle two words and it said:
I know where YOU ARE!
Give back X.[10]
[10] Paternal grandmother’s affidavit page 78 or paragraph
On 5 November 2020 another letter appeared in the grandmother’s mailbox and it said:
Ha. The police can’t prove I sent you the letters. I told you I would take your reputation down…Now check the next mail box to yours, you will find the family report. Now did I put it in all mail boxes in A3 block radius, or was it 10 blocks. Was it this week or late last month. Never mind everyone will see you’re a bitch. Now that the Judge has given me X you can’t stop me!!! 1 way or another, you will never see X again. If I can’t keep him, then no one else will have him, especially you!!! Bitch!!![11]
[11] Paternal grandmother’s affidavit Exhibit H
The paternal grandmother reported the receipt of all of those letters to the police.
In her affidavit the mother said that there was an occasion when she was detained at the police station for 14 hours. I am unclear about what incident that related to but there is another entry which indicates that the police attempted to speak to the mother about the first two letters at least. The record states that she refused to talk to them and slammed the door on them.
The mother denied, and this was made clear by her counsel in final submissions, that she was responsible for any of the letters.
It is unclear to me if any of those letters were the basis for the stalk/intimidate charge of which the mother was acquitted. However even if they were and even if a Criminal Court found that they could not be satisfied that the mother had written them, that would not be the end of the matter in this Court, because I am not required to consider the components of a criminal charge.
The standard of proof that applies in this Court is also different. I only have to be satisfied on the balance of probabilities that certain things have occurred and I am satisfied on the balance of probabilities that the mother either created each of those letters and placed them in the paternal grandmother’s mailbox or was complicit in that occurring.
The father is another possibility in relation to putting the letters in the mailbox, but it is the mother who has been concerned throughout these proceedings with having X returned to her care. It is also too much of a coincidence that the messages refer to the paternal grandmother claiming child support in the name of Fox, something the mother referred to in an email she posted on the paternal grandmother’s Facebook page prior to the first letter being sent.
Another relevant matter is that the mother admitted in cross-examination that she had sent the grandmother a text message on 26 August 2020 asking about X and making a number of complaints, including:
Why do you call him X X? His name is X. You have his birth certificate you took from my laptop bag. Have a look at it.
There is also the fact that the third letter refers to the family report, which only the mother, the father or the paternal grandmother could have had.
I am satisfied on the balance of probabilities that the mother created those letters or was instrumental in them being created and placed in the grandmother’s letterbox, and given the content of the letters that was family violence perpetrated by the mother against the paternal grandmother. The letters contain threats and they are intended to be intimidatory.
That finding is relevant to the issue of the allocation of parental responsibility, not that the parties really argued about that. They each wanted sole. It is also relevant to any decision I might make about whether the paternal grandmother and the mother can be expected to cooperate in organising supervised time.
The content of the letters is also concerning because they include the statement:
If I can’t keep him, no one else will have him, especially you.
In some cases that might lead to a suggestion that X might be at risk of catastrophic harm from the mother if an order was made for her to spend unsupervised time with him. That was not suggested at trial, so I am not going to go there, but another issue about the letters as a whole is the aggression they display. They give rise to considerable concern in my mind both about the mother’s parenting capacity and about whether X might be at risk of harm from the mother as a result of aggressive behaviour.
I have the letters, which display considerable aggression and I also have the evidence about the mother’s aggression to the father. The issue of the mother being extremely aggressive is something which gives rise to considerable concern.
A hypothesis which needs to be considered in the context of the letters is whether, as threatening and aggressive as they are, they were grounded in despair felt by the mother about not being able to have X in her care and may not indicate that she is likely to be violent to other people or be indicative of how she would act if her situation was different.
I have considered that hypothesis but there are a number of reasons to reject it.
The paternal grandmother observed aggression by the mother to the father prior to X’s birth. The mother was also aggressive to the paternal grandfather and step-grandmother at the hospital and there is information in the tender bundle which suggests that she may have had a very longstanding issues with aggression.
In 2009 a complaint was made to Child Safety in City C by a Ms V, who I presume is the mother’s sibling or half-sibling. She complained about the mother shoving her, hitting her with a thong, throwing her stuff in the bin and screaming and she also said that there was an occasion when the mother tried to smother her with pillows.
Ms V said that there were holes in the walls and dents in nearly every door because of the mother. She also said the mother had pulled a knife on her and she did not feel safe when the maternal grandmother, with whom the children appear to have been living at that time, was not around.
Ms V also alleged that the maternal grandfather had been violent to the maternal grandmother and on one occasion had picked the mother up by the throat and thrown her across the room and said that if Ms V did not stop crying she would be next.
Notes made by the Department of Child Safety state that the maternal grandmother was interviewed by phone after Ms V made this complaint and that she said that her daughter was out of control and violent.
In May 2010 the mother was seen by a psychologist at Child and Youth Mental Health. The psychologist said in a letter she wrote that she had known the mother for eight years and was very concerned about her. She said that she had poor peer relationships and would not take ownership of her behaviour and said as follows:
She cannot control her temper or her mouth.
There is also a letter by the same doctor which was written in 2004 when the mother was 10. The doctor said as follows:
Her behavioural problems have really been going on for the last 18 months, where she is having a lot of tantrums. She is quite reactive and sometimes this is for no reason. Her reaction includes screaming, punching, climbing onto the roof and threatening to kill herself. She’s been seeing Mr W at the Child Mental Health Unit at Y Street and she is much improved since then.[12]
[12] Letter from City C District Health Service dated 26.8.2004
The mother was cross-examined about the information in the subpoena material about her behaviour. She did not admit that it was accurate but she also said that she had blocked out the past and she questioned why going into her childhood issues was relevant.
The fact that all this information about the mother’s aggression is in existence is a red flag when it comes to assessing whether the only reason she has been so aggressive to the paternal grandmother and in the court setting, which I will refer to in a moment, is because of her feeling of disempowerment and frustration about the issues to do with X. It raises a considerable concern that the mother might struggle controlling her anger and that X may be at risk of exposure to abuse and family violence if he spent unsupervised time with her.
The mother had considerable difficulty controlling herself during cross-examination. When I asked her to place a bundle of documents to one side so that they did not distract her, she became impatient and angry and lifted them up and put them down heavily on the side of the witness box.
Later in the morning she became upset when I tried to explain something to her and she stood up and left the witness box and did not return to the courtroom for over an hour. She displayed some attitude as she walked out.
She also walked out on a second occasion but on that occasion she was brought back in a shorter period of time.
I have considerable concern about the mother’s capacity to control herself and about the risk of her acting out in anger if she had X in her unsupervised care.
In closing submissions the mother’s counsel suggested that if the mother ceased using cannabis and engaged with a mental health practitioner for six months, any risks to X of spending unsupervised time with her would be considerably diminished.
However the mother was adamant that she had not commenced using cannabis until she was 21, and the problems with anger and aggression in the material predate that by 11 years. The other difficulty is that the letter the mother tendered from Region Z Area Health only referred to the mother being engaged with a drug and alcohol counsellor, not with a counsellor or psychologist to treat her mental health.
I have to consider whether any family violence order applies.
On 4 March 2021 a two-year ADVO was made for the protection of the paternal grandmother from the mother.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
Considering that as a separate issue will not assist me.
I must consider whether it would be preferable to make the order that will be least likely to lead to the institution of further proceedings in relation to the child.
As is so often the case in risk of harm matters there is no such order.
If I make an order that the child lives with the mother, the matter could easily come back before the Court because risk of harm issues arise, and an order for unsupervised time could have the same result.
If I make an order that time be as determined by the paternal grandmother there is a considerable risk that the matter will come back before the Court. The mother may well consider that she should bring another application once she gets some of her issues under control and I have seen that happen over and over again.
If I make the order proposed by the Independent Children’s Lawyer for supervised time six times a year, the difficulties with finding a supervisor and complying with that order are highly likely to lead to further proceedings in relation to either compliance or someone seeking variation of the orders.
I must consider any other fact and circumstance which the Court thinks are relevant.
A highly relevant matter is the nature of the relationship between the mother and the paternal grandmother.
The paternal grandmother complained about some of the things the mother said to her on the video calls between February and July 2020. Some examples were the following:
During Zoom calls, Ms Croft had said to X words to the effect of “Grandma’s a bitch” and “There won’t be any Grandma after this is finished”.
Ms Croft was talking to X and because he wasn’t responding immediately, Ms Croft lost her temper and yelled “That bitch has turned the volume down so he can’t hear me.”[13]
[13] Paternal grandmother’s affidavit page 23
The mother denied speaking in that way. Given the history of the matter and my findings about the letters I do not accept her denials. The relationship between the paternal grandmother and the mother just keeps getting worse and worse.
Things have become so bad that if I made the orders the paternal grandmother proposed that time be at her discretion it seems very unlikely that any time will occur.
I must now return to the primary considerations.
The first of those is the benefit to the child of having a meaningful relationship with both of his parents.
The mother is the only parent who has shown a consistent interest in X and it is important that he has a relationship with her if possible. Even if the relationship cannot be meaningful, in that it is significant, important and valuable to the child[14] it is still desirable that X have an opportunity to form some sort of a bond with his mother.
[14] Mazorski & Albright (2008) 37 FamLR 518
The mother said this in her affidavit:
I feel that no matter what I do I will never be good enough for Ms Wilmot. I am committed to doing what it takes to have X returned to my care, and I do not feel supported by Ms Wilmot. I do not feel that Ms Wilmot is encouraging my relationship with X.[15]
[15] Mother’s affidavit paragraph 111
The mother’s counsel pressed me during submissions to find that there was truth in that. He pointed out that the paternal grandmother had struggled in the witness box to come up with a suggestion about how time could occur in the future and he submitted that I should find that the she wanted to sabotage the relationship.
I do not accept that this is the case. The paternal grandmother is not encouraging the relationship between the mother and X, it is true, and that is regrettable because the mother is the only parent who has shown a consistent interest in X. However I am satisfied that the paternal grandmother has genuine, soundly based concerns about X’s safety in the mother’s care, and the difficulty is the second primary consideration, which is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence which I must prioritise over the benefit of the child of having a meaningful relationship with both of his parents.
There are a number of risks for X at present if he spends unsupervised time with the mother, and they arise out of the intertwined issues of the mother’s mental health, drug use and parenting capacity and her anger management issues.
The combination of the mother’s ongoing drug use, anger management issues, association with the father who is also a heavy cannabis user and with whom she has a history of conflict, including yelling and arguing around the child and mental health issues, which have resulted in some involuntary trips to hospital, means that I am comfortably satisfied that this two-year-old child would be at unacceptable risk of harm if he spent unsupervised time with the mother at present.
The fact that I cannot find that the mother deliberately injured the child in late 2020 or was reckless in caring for him when she was spending unsupervised time with him is irrelevant. There is an unacceptable risk due to the issues I have just raised of the child being subjected to or exposed to abuse, neglect or family violence in the mother’s unsupervised care.
The mother’s counsel pressed me to find that if the mother was able to demonstrate abstinence from cannabis and engagement with a mental health professional for six months then it would be appropriate to consider unsupervised time.
The difficulty with that submission is that it does not address the issue of the mother’s relationship with the father, who continues to use cannabis or the mother’s problems with anger and aggression which well predated her commencing cannabis use.
I have considerable concern about whether the mother is going to be able to cease using cannabis and whether even if she was able to cease using it for six months that would be enough to ensure that she would refrain from using it in the long term.
I cannot find that if the mother was able to demonstrate at the end of six months that she was not using cannabis that this would mean the child was no longer at risk of harm, because there is a risk that the mother would relapse into cannabis use.
I also cannot be satisfied the mother would be able to do the things her counsel proposed because she is not currently engaged with a mental health professional and she has had a longstanding problem with cannabis use.
Parental Responsibility
There is a presumption in section 61DA of the Family Law Act that the parents should have equal shared parental responsibility for X, but the father was not a participant at trial, and the mother, the only parent who was, sought an order for sole parental responsibility.
The paternal grandmother also sought an order for sole parental responsibility.
Parental responsibility will have to go to the adult with whom the child primarily resides. The mother and the paternal grandmother are not capable of sharing parental responsibility. The level of dislike and distrust between them is extremely high. Neither of them wants to share it. An order that the party X lives with has sole parental responsibility for him is the only order I could make.
Conclusion
The family report writer recommended that X be transitioned into the mother’s full-time care and the mother crafted her orders based on his recommendations.
The dispute the parties presented to the family report writer and which led to him making that recommendation was the same dispute that is before me.
The mother was adamant when talking to the family report writer that she did not lack parenting skills and that X should be returned to her care. She told the family report writer that the paternal grandmother wanted X only because she had no relationship with her own daughter. The paternal grandmother raised risk of harm concerns.
The family report writer considered the matter in that context but the major risk of harm issue that he identified was the mother’s cannabis use. She told him that she had last used cannabis in June 2019 and he seems to have accepted that all her tests from then until time of the report interviews in June 2020 were negative. He said as follows:
According to the mother, as a result of having undertaken several urine drug analysis tests, that the Department of Communities and Justice closed her file at the end of July 2019. The mother further indicated that after July 2019, that she has undertaken five urine drug analysis tests which she paid for, and a random one as ordered by the Independent Children’s Lawyer in March of this year which was also negative. Ms Croft stated that she is awaiting a further request for a random drug test, and she assured the Family Consultant that it would again produce a negative result.[16]
[16] Family report paragraph 38
He went on to say this:
There is little doubt that at the time when the parents were residing with Ms Wilmot, soon after the birth of the subject child, that she would have had legitimate concerns about the parents’ use of cannabis, and specifically about Ms Croft – that she was still breastfeeding and also using cannabis. However, it is almost 12 months since that situation.[17]
[17] Family Report paragraph 43
The family report writer recommended the child immediately commence spending unsupervised time with the mother, saying as follows:
Given that the mother has been cannabis-free for a significant period of time, she should commence spending unsupervised time with the subject child on a daytime basis in the immediacy.
The family report writer said that he had concerns about whether the paternal grandmother had sabotaged her relationship with the E Contact Centre which led to cessation of the mother’s contact with the child. He went on to make the following recommendation about the child being transitioned back into the mother’s care:
I support the notion that stabilising the mother and her parenting development with the subject child in the Town F/Town D area will need to be an initial step prior to the Court examining the possibility of Ms Croft returning to City C with the subject child. However, this remains conditional upon the mother maintaining her illicit substance free existence and ensuring that she maintains her own therapeutic relationship, as well as engaging in a further parenting program with the Town F Family Support Service, or other relevant community based agency.
It is fair to say that a transition phase should be implemented, whereby the subject child spends three occasions with the mother each week for several months, prior to commencing overnight time with him, and eventually into the mother’s primary care, certainly within twelve months from the date of this report and preferably beforehand. This is in the context of the developmental considerations associated with the subject child’s age.[19]
[19] Family Report paragraphs 89 & 92
A family report is always an important piece of evidence but it is only one piece of evidence, and other evidence which emerges at trial can limit the weight that can be placed on the recommendations in the report. One thing which undermines the weight I can give to the recommendations in this report is that while the family consultant accepted that the mother had been free of cannabis use from June 2019 to 4 June 2020, I do not accept it.
Another issue is that I have to factor in events that have occurred since the report was released, such as the threatening letters sent to the paternal grandmother and I have evidence about the mother’s anger and aggression and the family consultant did not see the mother’s impatience and anger during the trial.
A family report is an important piece of evidence but in this particular case I cannot place weight on the recommendations and I have to form my own view about what should happen for X.
I cannot be satisfied that the paternal grandmother has been unreasonably frustrating a relationship between the mother and X, and in light of my findings to date, I could not possibly consider making an order that X spend unsupervised time with the mother.
The concerns I have are that if she ceased at all the mother has ceased using cannabis for only a limited period since prior to X’s birth. She is using cannabis today and it has serious implications for her parenting.
She has mental health issues which manifested themselves prior to X’s birth and have manifested themselves sporadically since she has been in New South Wales and she is not engaged with a mental health practitioner.
She has anger management issues of long standing which have never been properly addressed and which manifested themselves when she was in Court during this hearing and in the letters she sent to the paternal grandmother. I have considerable concerns about X’s safety as a result of that.
I also have considerable concerns about what it would mean for X to spend unsupervised time with the mother, let alone live with her, if the mother was continuing her association with the father, who has a cannabis habit even worse than the mother’s and who presented in a very concerning fashion in the witness box.
Another concern would be what would happen if X went up to City C. She might not always have support from her family and the fact that her father has a cannabis use history might impact on her motivation to cease cannabis use.
I could not consider transitioning X into her care and I could not consider, at present, making an order for unsupervised time. X would be at unacceptable risk of harm if I made such an order, but that creates a very considerable difficulty about what I do.
The Independent Children’s Lawyer proposed a set of orders which are laudable in their intent but which in my view are impractical.
It was proposed that before anything else happened the mother provide a clean urine analysis, which she would not be able to do today and it is unclear when she would be able to do it.
It was proposed that time supervised by G Contact Centre commence once she provided that result and that unsupervised time commence once she provided a clean hair test, and the fact that I cannot see a time when she would even be able to provide a clean urinalysis is a problem just in itself. The order could be sitting there for years and not even be able to be actioned.
If the mother was not able to produce a clean urine analysis order 5(c) would come into effect, which provides for the mother to spend time with the child on six occasions each year for two hours, such time to occur on the first Sunday of February, April, June, August, October and December, with time to be supervised as agreed and the cost to be shared equally between the mother and the paternal grandmother.
There is an enormous practical difficulty with that. It is impossible to see who would do that supervision. Nobody was identified during the trial as someone who might be able to provide that supervision. G Contact Centre would not do that. E Contact Centre would be very unlikely to do it. Family supervisors have been tried in this matter before and failed.
If I make that order I am simply inviting a situation where one or both of the parties came back to Court and said, “That order is unworkable. We have not been able to agree. We want the Court to consider doing something else.”
Another difficulty with the proposed orders is that even if some miracle happened and the mother provided a clean urine analysis and we then had six months of supervised time at G Contact Centre, which the Independent Children’s Lawyer had inquired about and found was feasible, I could not consider, simply because there was six months’ worth of supervised time and a hair test covering the last three months of that period which was clean of illicit drugs, making an order for unsupervised time, because the problems of the involvement of the father in the mother’s life, the mother’s anger management issues and the mother’s unaddressed mental health issues would still be sitting there.
It was proposed that the mother provide a letter from her treating clinical psychologist or mental health social worker once every six months detailing her attendance at appointments, diagnosis, any recommended treatment and current plan for ongoing appointments but the mother does not have a history of engaging with a clinical psychologist or a mental health social worker. Whether she would comply with that is uncertain and even if she did it would not necessarily assuage my concerns about her mental health issues.
In summary I could not make an order that was open-ended for the mother to do the urinalysis test, which she might do in two years and then demand that supervised time commence, and even if she passed the drug test now, with all the other problems in the case I would not be prepared to make an order that unsupervised time commence after six months and the alternative order for supervised time six times a year is simply inviting the matter to come back very quickly.
I sometimes say that often the easy part is making findings and the difficult part is coming up with orders at the end of a trial.
X is only two years old. It is important that he has a relationship with his parents if possible and the only parent who has shown a consistent interest in him is the mother.
He will share characteristics with his mother. He may sound like her when he talks and he may share some of her interests. It will be a significant loss for him if he cannot have a relationship with her.
Children can form the view as they get older that they are not seeing a parent because they were not wanted and were abandoned. That is a very poor thing to get fixed in their head.
Another problem is that X is only two years old and unless he has an opportunity to spend time with his mother now he is going to forget her. Not completely forget her. He will know he has a mother, but anything about her is going to fade in his memory, and in a supervised setting the mother was able to appropriately parent him and I accept the E Contact Centre notes that he was responsive to her.
To make an order which cuts the mother out of the child’s life is not desirable. The family report writer was clear about that in cross-examination. He was asked by the paternal grandmother’s counsel whether given all the difficulties in the case the Court should consider making something like a no time order, and he said it was too early to give up on the possibility of the child having a relationship with one of his parents.
The problem for me is that it is almost impossible to come up with an order that is going to work. The closest we get to it is the proposal by the Independent Children’s Lawyer about supervised time but in the circumstances of this particular case I just cannot see how that workable in the form that is proposed.
Sometimes absence of time can be overcome to a degree by having some video calls but video calls have been unsatisfactory in this case. Both parties said that. Part of that is due to the child’s age and part of it is due to the mother being aggressive to the paternal grandmother.
I have thought and thought about what I can do and after careful reflection I am not prepared to make orders about the mother spending unsupervised time with the child if she jumps over some hurdles. It is going to have to happen in reverse. The mother is going to have to jump the hurdles and get things in her life in order and then come back to the Court and make an application.
She is going to have to get herself free of drugs. She is going to have to be able to demonstrate a much longer period than six months during which she is not using drugs. She is going to have to confront the issues with her anger, aggression and mental health and provide some evidence that she has dealt with those issues and that she is not likely to pose a risk of harm to X.
Sometimes when I get to the point of saying that a parent is going to have to do those things and then come back, the only alternative is to make a no time order but I am not going to do that in this case. It is not desirable. The mother needs to keep a connection with X and X needs to keep a connection with the mother.
I am going to make an order for the paternal grandmother to have sole parental responsibility and for X to live with her.
I am going to make an order permitting the parents to obtain information from the child’s school but I am not going to make an order about them being able to attend activities at the school. The paternal grandmother proposed that but given the issues between the paternal grandmother and the mother and the aggression and threats displayed by the mother it would not be in the child’s best interests for me to make an order that they be in the same place at the same time. Schools are meant to be safe zones for children.
I will make the section 68B order that is proposed.
In terms of the mother keeping contact with the child, the best I can do with the matter is this.
I am going to make an order for video calls to occur once a month and I will pick a day, the last Sunday of the month at 10.00 am New South Wales time, with the mother to place the call to the paternal grandmother’s device.
However I am also going to make an order that the paternal grandmother be permitted to record the calls. If during the calls the mother is aggressive or abusive the paternal grandmother is permitted to terminate the call and if this happens on more than three occasions the order about the video calls is discharged.
The next order I am going to make is not entirely going to suit the paternal grandmother because it is going to involve some small cost to her and I accept she is financially supporting the child, and I am not even sure it is going to happen if I order it, but I want it to happen.
There are services which will provide one-on-one supervised contact and I intend to make enquiries and name a service in the order and not leave it up to the parties agreeing on a service. I am proposing to make an order that on four occasions each year, including on or about the child’s birthday, within reasonable proximity of Christmas Day and the mother’s birthday and on one other occasion, that the mother spend time with the child for two hours supervised by one of those services.
I am going to order that the paternal grandmother pay the cost of the supervision. I have to do that because she is in a much better financial position and if I make any other order time may well not occur.
I will make some specific orders about how the parties are to organise for that supervised time to occur.
I am still worried that it might result in the matter coming back but if I am able to name a particular service and it is four times a year that hopefully should not happen.
It is not going to be easy, because it will require the mother to come down to New South Wales, and it might be there are times when she is not able to do so, but I am going to make an order that regardless of whether a particular occasion is missed the order will continue in force.
I am going to put a notation on the orders to the effect that if the mother files another application for parenting orders she will need to attach to the affidavit she files in support of that application evidence, in the form of a hair test, that for the preceding six months she has been free of illicit drug use, evidence of a current engagement with a drug and alcohol counsellor in relation to abstinence from cannabis use, information about the current circumstances of the father and her involvement with him and information about how she has dealt with the issues raised in this judgment about her anger and aggression and her mental health.
If she does those things then the Court may reconsider the orders but I stress the word “may”. I am simply wanting to make it clear that it might happen if the mother is able to do those things.
The Independent Children’s Lawyer proposed that the child spend time with the father as agreed between the paternal grandmother and the father. I am going to make that order without any conditions on it about things the father has to do. The paternal grandmother has acted protectively of the child in relation to the father in the past and I am confident that she will continue to do that in the future. It may seem unfair to the mother, but the father is not likely to bring his mother back on a contravention and the grandmother can protect the child, so that is the order that I am going to make.
I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 9 July 2021
[18] Family Report paragraph 54
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