Curnow and Suban
[2014] FCCA 1671
•30 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CURNOW & SUBAN | [2014] FCCA 1671 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – both parents propose equal shared parental responsibility – Applicant Father seeks orders that child live with him and spend time with Mother – Respondent Mother seeks orders that child live with her and spend time with Father – both parents recreational drug users – consideration of Mother’s drug addiction and subsequent rehabilitation – consideration of supports in place for Mother – consideration of Father’s continued denigration of Mother and possible alienation of child from Mother – consideration of legal principles. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode v Goode (2006) 36 Fam LR 422 |
| Applicant: | MR CURNOW |
| Respondent: | MS SUBAN |
| File Number: | MLC 6696 of 2008 |
| Judgment of: | Judge Whelan |
| Hearing dates: | 6–7 & 13 February 2014 |
| Date of Last Submission: | 13 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms McCreadie |
| Solicitors for the Applicant: | Kelly & Associates Family Lawyers |
| Counsel for the Respondent: | Mr Gray |
| Solicitors for the Respondent: | Heinz & Partners |
| Counsel for the Independent Children’s Lawyer: | Ms Bonney |
| Solicitors for the Independent Children's Lawyer: | Glezer Lanteri & Associates |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2007 (“the child”).
From the date of these Orders until the commencement of the 2015 school year, the child live with the Father and spend time and communicate with the Mother each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday and from after school on Thursday to commencement of school on Friday in the alternate week; and for one half of the school term holidays.
Following the conclusion of time spent pursuant to Order 3 above,
the child live with the Mother.
The Mother be entitled to enrol the child at [T] Primary School for the 2015 school year.
Both parties be at liberty to communicate with the child by telephone at all reasonable times when the child is not in that party’s care, such time to be no later than 7.00 p.m.
Following Order (4) herein the child spend time and communicate with the Father as follows:
(a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday and from after school on Thursday to commencement of school on Friday in the alternate week;
(b)For one half of each of the school term holidays as agreed and failing agreement, the first half;
(c)For the long summer holidays as follows:
(i)The long summer holidays commencing in 2014, and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00 noon on the third Saturday following the conclusion of school term; and
(ii)The long summer holidays commencing in 2015, and each alternate year thereafter, from 12.00 noon on the third Saturday following the conclusion of school until the commencement of school on the first day of the next term.
(d)In the event that the child’s birthday is not on a day that the Father would normally spend time with the child, at times to be agreed and failing agreement, from 3.30 p.m. to 7.00 p.m. on a weekday or 1.00 p.m. to 5.00 p.m. on a weekend day;
(e)In the event that the Father’s birthday is not a day that the Father would normally spend with the child, on the Father’s birthday at times to be agreed and failing agreement, from 3.30 p.m. to 7.00 p.m. on a weekday or 1.00 p.m. to 5.00 p.m. on a week-end day.
(f)In the event that Father’s Day is not a day that the Father would normally spend with the child, from 5.00 p.m. on Father’s Day eve to 9.00 a.m. the following Monday;
(g)Such further and other times as may be agreed in writing between the parties.
The child shall spend time with the parent with whom she is otherwise not living with/spending time with pursuant to these Orders, from
4.00 p.m. Christmas Day to 4.00 p.m. Boxing Day.
The Father’s time pursuant to paragraph 7(a) of these Orders be suspended during holiday periods and resume in the same pattern after the school holiday period as if the holiday has not intervened.
The Father’s time pursuant to paragraph 7(a) of these Orders be otherwise suspended on Mother’s Day from 5.00 p.m. Mother’s Day eve to 9.00 a.m. the following Monday, and for the child’s and the Mother’s birthdays for the same periods as specified in paragraphs 7(d) and (e) in the event such days fall on days the child is in the Father’s care.
Changeovers are to occur at the child’s school during school term, and at all other times at a venue as agreed between the parties in writing (including by SMS text message), and failing agreement, to be at [omitted] Police Station.
Both parties forthwith advise and keep the other advised (by email, SMS text message, letter, and in the case of an emergency by telephone) as to:
(a)The name and address of any health professionals the child attends;
(b)Any initial medical appointments for the child (as distinct from subsequent appointments) and the purpose of such initial appointments;
(c)Any significant injury or illness affecting the child;
(d)Any illness requiring the provision of any medication to the child prescribed by a medical practitioner; and
(e)Any hospital attendance by the child.
The parties continue to utilise a communications book to travel with the child between the parties’ residences, such book to detail information pertaining to the child’s health, education and social activities. The parties shall use such communications book to convey comments about the child’s schooling, health, activities and welfare only and shall not be utilised by either party to denigrate the other, or otherwise comment on the conduct of the other, or any other person (apart from the child).
The Mother continue to attend upon her treating psychiatrist
Dr H, and/or such psychiatrist and/or health provider as recommended by Dr H, and if Dr H is no longer able to treat the mother, then the Mother shall attend upon such psychiatrist as recommended by Dr H or the Royal Australian and New Zealand College of Psychiatrists, at times, and for such duration as is recommended by Dr H, or such other psychiatrist.
The Mother be restrained from using illicit substances/drugs at all times whilst the child is in her care.
The Mother shall comply with all reasonable treatment recommendations made by her treating psychiatrist and continue to attend Narcotics Anonymous.
Neither party shall organise any extra-curricular activities for the child which occurs in the child’s time with the other party without first obtaining written permission from the other party (including by text) and, if so agreed to, the party in whose care the child is in shall be responsible for taking the child to such activity.
The child continue to attend upon Ms K for the purposes of therapeutic counselling. If such counselling is not covered by Medicare, the parties are to share the cost.
The Father attend and complete, as soon as practicable, a parenting orders program and:
(a)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program; and
(b)Pay and otherwise be responsible for any/all costs associated with the program.
Both parties, their servants or agents be restrained from criticising or denigrating the other party or the other party’s family in the presence of the child or within hearing of the child.
Both parties be entitled to:
(a)Contact the child’s school and request all school notices, reports, newsletters and photographs from the child’s school at his/her request and expense; and
(b)Attend all school functions to which parents are invited, including but not limited to information nights, parent/teacher interviews, sports days, school plays, curriculum presentations and excursions and any extracurricular activities.
Each of the parties shall keep the other informed of their current residential address, contact telephone numbers and email addresses.
The appointment of the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Curnow & Suban is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6696 of 2008
| MR CURNOW |
Applicant
And
| MS SUBAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR CURNOW (“the Father”)
for parenting orders with respect to the child of the relationship, [X], born [omitted] 2007 (“the child”). The Father seeks that he and
MS SUBAN (“the Mother”) have equal shared parental responsibility for the child and that the child live with him. The orders proposed by the Father and the Independent Children’s Lawyer (“ICL”) would provide for the child to spend time with the Mother as follows:
·Each alternative weekend, from after school on Friday until before school on Monday;
·In every other week, from immediately after school on Thursday until the commencement of school on Friday;
·For one half of each of the school term holidays; and
·On other significant occasions.
The Mother opposes the orders sought by the Father and proposes that the parties have equal shared parental responsibility for the child and that she lives with the Mother. Her proposals, with respect to the time spent by the child with the Father, are as follows:
·Every second weekend, from 5.00 p.m. on Friday until 5.00 p.m. on Sunday;
·Every Wednesday, from 4.30 p.m. until 7.30 p.m.;
·For half of the school holidays; and
·On other significant occasions.
In her oral evidence, the Mother agreed to proposals which essentially mirror the Father’s proposals with respect to the time spent by the child with her.
The maternal grandparents, Mr S (“Mr S”) and Mrs S (“Mrs S”) (collectively “the maternal grandparents”) were initially parties to the proceedings but, by the time of the hearing, had withdrawn their application[1] and supported the application of the Mother.
[1] Interim Order of Judge Whelan made 7 February 2014.
Background
The Father was born on [omitted] 1973 and is now 41 years of age. The Mother was born on [omitted] 1982 and is now 32 years of age.
The parties commenced a relationship in 2005 and the child was born on [omitted] 2007. The parties separated in January 2008 and the child remained primarily in the Mother’s care. The parties initially agreed to some informal parenting arrangements following their separation, although their personal relationship was acrimonious. The Mother gave evidence of the Father being abusive and threatening, and failing to return the child to the Mother as agreed. On 23 July 2008,
the Mother commenced parenting proceedings as a result of which final orders were made on 11 August 2009. Those orders provided for the child to live with the Mother and to spend time with the Father:
·Every Wednesday from 4.30 p.m. to 7.30 p.m. and
·
Every second weekend, initially from 10.00 a.m. on Saturday to 5.00 p.m. on Sunday and then from 5.00 p.m. on Friday to
5.00 p.m. on Sunday.
These arrangements continued until September 2012.
In or about January 2009, the Mother commenced a relationship with Mr P (“Mr P”). The Mother and the child subsequently moved into a house owned by Mr P. Mr P suffered from a serious heart condition known as Cardiomyopathy. The Mother became his carer and she also continued to care for the child. On her own admission, the Mother had been a drug user, since she was 11 years old and had also used drugs during her relationship with the Father. Her evidence was that she ceased using drugs during her pregnancy. The Mother stated that
Mr P was a drug user, and that during her relationship with him, she relapsed into fairly regular drug use, mostly on the weekends. Mr P died as a consequence of his heart condition in May 2012. The Mother stated that she was emotionally devastated by his death and her reliance upon drugs significantly increased thereafter. Mr P had not made a will before his death and his family demanded that she move out of the home, where she and the child was living, not long after his funeral.
On 23 July 2012, members of Mr P’s family attended the home and forcibly evicted the Mother and the child. It was the Mother’s evidence that an acquaintance of Mr P, Mr H (“Mr H”), offered her a place to live. He told her he would be moving out in the near future anyway. The Mother accepted the offer and moved into Mr H’s unit with the child in August 2012. They thereafter commenced a casual relationship. Mr H was a heavy user of drugs and a binge drinker and he kept the Mother supplied with drugs. The Mother was aware that he had a criminal history and had spent time in jail. However, she was not aware of the crime for which Mr H been convicted. Shortly after the Mother moved into his unit, Mr H became verbally abusive towards her and, on occasion, the child was exposed to his abusive tirades. By September 2012, the Mother stated that her depression and drug use had reached a crisis point. She knew that she needed to end the relationship with Mr H and left his unit, taking the child with her.
It was the Mother’s evidence that, at this point, she felt that the child would be better off without her in her life. She decided to take the child to her Father and to commit suicide. The Mother told the child that she was going to be with Mr P and that she was taking the child to her Father. After leaving the child at the Father’s house, the Mother proceeded to the cemetery where she took an overdose of various prescription medications and sent SMS text messages to some of her family and friends to say goodbye. The Mother regained consciousness the following day when she was in hospital.
The child has been living with the Father since 3 September 2012.
The Father’s evidence
The Father provided minimal affidavit evidence. He gave no evidence about his relationship with his family, or previous relationships prior to his involvement with the Mother which commenced in 2005.
The Father agreed that he and the Mother were both consuming recreational drugs during the course of their relationship, although their drug use did not impact on their everyday functioning. It was his evidence that he ceased using recreational drugs around the time that the relationship with the Mother broke up. The Father stated that he continued to have a relationship with the child after separation and, on occasions, during 2011 and early 2012, he looked after the child on additional occasions at the Mother’s request while she was caring for Mr P.
In cross-examination, the Father admitted that he and the Mother had been to court in [B] during 2008 and 2009 on six occasions, without being able to agree on parenting orders. He stated that the Mother had withheld the child from him for eight weeks until they got to court, and then he was allowed to see the child two days a week.
The Father was taken to SMS text messages between the parties in January 2009. It was the Mother’s evidence that the Father had refused an offer to spend time with the child because of transportation issues. The Father’s SMS text message makes statements such as “I will hate you forever”;[2] and:
[X] will have my brain (she is already smarter than you) and realise what a self centred, uncaring parent that you are.
i (sic) do plan on teaching her this regardless of what you try and make some stupid judge say.i (sic) love my daughter and me and [Ms R] plan on showing her the better side of life since you and your partner are too poor to do so.see (sic) you in march (sic) unless you come to your senses and let me see [X] (sic) before this[3]
[2] Affidavit of Ms Suban filed 30 January 2014, Annexure “VAS-01”, at p.40.
[3] Ibid.
The Father stated that, at the first court hearing, “I waived my rights and I walked out of court”.[4] When it was put to him, “you’re willing to hold out rather than drive that extra 10 minutes yourself to see her. You’re willing to hold out to prove that point?” he replied
“[o]h, probably back in 2009, yes, I was”.[5]
[4] Transcript of Proceedings, 6 February 2014, p.34 at line 32.
[5] Ibid, p.34 at lines 39-41.
The Father agreed that he had told the Family Consultant,
Ms B (“the Family Consultant”), about the Mother concerning that period in his life, stating that “she made me go through hell” and she was “a nasty vindictive bitch”.[6]
[6] Family Report prepared by Ms B dated 20 August 2013, p.8 at para.16.
The Father stated in cross-examination that he used to have a girlfriend called Ms R (“Ms R”). He broke up with Ms R two times, once in October 2012 and then most recently in June 2013. The Father stated that Ms R had two daughters and that she lived with him and the child. When asked what happened to the relationship, the Father stated that it “just ran its course, pretty much. [Ms R], didn’t have a job, got depressed, pretty much never really contributed to my relationship. She wasn’t what I wanted and so, yes, the relationship ended”.[7]
[7] Transcript of Proceedings, 6 February 2014, p.55 at lines 3-6.
When asked whether there were any applications for intervention orders, the Father replied “No, nothing like that”.[8] He did agree that there was an incident in September 2010 when it was alleged that he burnt Ms R’s belongings in the backyard using an accelerant.
The Father further agreed that Ms R had taken out an intervention order against him at that time, but two months later they reconciled and “went back to court and we had it removed”.[9]
[8] Ibid, p.55 at line 9.
[9] Transcript of Proceedings, 6 February 2014, p.55 at line 33.
The Father stated that, around 10.00 a.m. on Monday
3 September 2012, he heard the doorbell ring and opened the door to find the child there in her pyjamas. The child was crying and told him that the Mother was going to kill herself. The Father stated that he made several attempts to call the Mother’s phone but it was switched off. He also attempted to contact the Mother’s family to try to find out what was happening. At about 12.30 p.m., the Father was contacted by Victoria Police who advised him that they had found the
Mother unconscious, and that she was on her way to the hospital.
The Father was, later that day, contacted by the Mother’s sister
Ms C (“Ms C”) and told that children services would be in contact with him.
It was the Father’s evidence that, on about 6 September 2012, he was contacted by the Mother who spoke to the child. During this conversation, the Mother told the Father that she was going to the [H] Drug Rehabilitation Clinic (“the [H] Clinic”) a drug and alcohol rehabilitation centre in Geelong, for a period of three months. From that time until early October, the Mother rang the child every Tuesday, Thursday and Sunday.
The Father initially facilitated the child visiting the Mother, with the maternal grandparents collecting the child from his home each Sunday and taking her to visit the Mother at the [H] Clinic. He also allowed the child to spend additional time with the maternal grandparents on some weekends. On 7 October 2012, in response to a text message from
Mr S thanking him for allowing the child to stay with the maternal grandparents, the Father wrote the following:
Hopefully [Ms Suban] and I will have our new custody orders in place by the time she is discharged so [Ms Suban] can spend some time with [X] over the xmas break but with strict supervision. I hope [Ms Suban] (and yourself) realise [X] won’t be living with her ever again as she abandoned her child and no judge in there (sic) right mind will let a mentally unstable adult look after [X].[10]
[10] Affidavit of Ms Suban filed 30 January 2014, p.12 at para.77.
On 9 October 2012, the Father sent another text message to Mr S stating:
I will ring you tomorrow to confirm this more but I saw my lawyer today and I am applying for sole parenting of [X] which means [Ms Suban] will have no decision what so ever as to what I decide is best for [X]. I have also been advised to stop [X] having any more phone calls or visits with [Ms Suban] starting today until we have been to court which should be early 2013. This includes you or [Mrs S] taking [X] to see her on weekends. [Ms Suban] would appreciate the irony in this as it’s what she did to me when we broke up (its (sic) called karma!) … I hope you and me can have a civilised talk and maybe avoid all lawyers completely as I have been told it will cost me $5,000 roughly but I am guaranteed to win and get my way and with the restrictions I will put on [Ms Suban] it will cost her her daughter and thousands of dollars more for all the psyche assessments, weekly drug tests and supervised visits at facilities with moderators.[11]
[11] Ibid, at para.78.
On 14 October and 21 October 2012, the maternal grandparents again collected the child from the Father and took her to visit her Mother. When the child was delivered home to the Father on 21 October 2012, he told Mr S that it was his intention to visit the Mother and talk to her about parenting matters. On Saturday 27 October 2012, in response to an SMS text message from Mr S, the Father sent the following message:
No we not (sic) going down and [X] isn’t going down there again either. I am sick of her coming back upset cause (sic) certain members of your family keep filling her head with bullshit. I have rejected all of [Ms Suban]’s calls this week and will continue to do so until we go to court next year. I have paid the deposit to my lawyer so he can commence legal proceedings so it’s in black and white for all to understand. Sorry it’s come to this but you obviously hadn’t told anyone where they stand legally with [Ms Suban] abandoning our child.[12]
[12] Ibid, p.13 at para.82.
In response to a further SMS text message from Mr S on
29 October 2012, the Father sent the following message:
You can thank [Ms C] as It’s (sic) her that wanted to get involved in shit that has nothing to do with her and tells [X] she’ll be going to school with [names omitted]. Over my dead body![13]
[13] Affidavit of Ms Suban filed 30 January 2014, p.13 at para.84.
On 7 November 2012, the Father took out an intervention order against the Mother. The Father stated that his reason for taking out the intervention order was that it was the best legal alternative he had to stop the Mother from contacting and seeing the child until things were sorted out. He agreed that the Mother:
·Was in the [H] Clinic at that time;
·Had not come to his house at all; and
·Had not tried to come to his house.
In cross-examination, the Father was questioned as to why, if he had told Mr S “[y]ou can thank [Ms C]”,[14] he had sought an intervention order against the Mother. The Father replied, “[w]ell, I couldn’t take one out on [Ms C]”.[15]
[14] Ibid.
[15] Transcript of Proceedings, 6 February 2014, p.24 at line 28.
The Father was asked, “[w]as it your view that [Ms Suban] engaged in some form of family violence towards you?” and he responded,
“[n]ot towards me. Towards [X], yes”.[16] When asked if this was the incident back in September, where the Mother left the child on the doorstep, the Father replied “[y]es”.[17] The Father was then questioned with respect to the fact that he had initially agreed for the child to see the Mother after that incident. He replied, “I had a change of heart when [X] kept coming back upset from visiting her mother”.[18] When asked if he blamed the Mother for that, the Father responded,
“I blamed the whole family”.[19]
[16] Ibid, p.28 at lines 4-6.
[17] Ibid, at line 9.
[18] Ibid, at lines 20-21.
[19] Ibid, at line 28.
On 7 November 2012, the Father sent the following SMS text message to Mr S:
Just so everyone is aware, as per my lawyer’s instructions, I have been to court this morning and taken out an intervention order against [Ms Suban]. This means she is not to contact [X] anymore, come within 200 metres of my house and not within 15 metres of [X]. The police will be serving the papers to [Ms Suban] in the near future at the rehab clinic. I have rung the clinic and advised them to stop all calls as it’s a serious offence to break an intervention order. So please don’t ask to take [X] to see [Ms Suban] as refusal may offend. You are welcome to ring [X] any time to see how she is but if [Ms Suban] speaks I’ll be calling the police immediately.[20]
[20] Affidavit of Ms Suban filed 30 January 2014, pp.14-15 at para.92.
When it was put to the Father, “even if your problem is with the rest of the family, there is one person that you’re looking to cut out here?”[21] he responded:
No, because the intervention order was to stop her being able to see her and doing damage to [X]. The intervention order, as far as I know, didn’t stop the grandparents from ringing to find out how [X] was travelling, but it definitely stopped [Ms Suban]. As I said, [Ms Suban] may have been the innocent victim in all, but, as I said, that’s just the way it was.[22]
[21] Transcript of Proceedings, 6 February 2014, p.29 at lines 8-9.
[22] Ibid, at lines 9-13.
The Father denied that this was a way of paying back the Mother. When questioned by Mr S as to what had brought on his actions, the Father replied:
The fact that [X] kept coming back upset as people kept filling her head with BS about where she was going to live, go to school, etc. This way everything is in black and white for [Ms C] to look at like she asked
No one had any complaints when [Ms Suban] denied me access for 8 weeks and then 3 months. Karma.[23]
[23] Affidavit of Ms Suban filed 30 January 2014, p.15 at para.94.
When Mr S sent the Father an SMS text message saying it was up to him and [Ms Suban] to work things out, but that he did not know how getting back at her by refusing the child to see or speak to the Mother was going to help, the Father responded:
I’m protecting [X] not getting back at [Ms Suban]. [X] is the one getting upset and crying cause (sic) of the stupid decision of [Ms Suban] to try and kill herself. No-one should ever tell a 5 year old they are going to kill themselves. Way to scar [X] for life. And I’m positive you don’t know what she said to [X] when she abandoned her on my doorstep and drove away. It’s something I’ll never forget. Thanks to her trying though, I have the law on my side and plan to use it.[24]
[24] Affidavit of Ms Suban filed 30 January 2014, pp.15-16 at para.96.
The intervention order was listed for mention on 19 December 2012. There were attempts made to negotiate a resolution on that day.
The court was unable to hear the matter on that day and the hearing was rolled over to 20 December 2012. It was again not reached and was listed for a final contested hearing on 17 January 2013. On that day, the order was struck out.
On 19 December 2012, the Father filed an application for parenting orders in the Federal Circuit Court at Melbourne. On the same day, the Mother made an application for orders in the [B] Magistrates Court. Interim orders were made in the [B] Magistrates Court on 16 January 2013 for the Mother to spend time with the child each Sunday from 10.00 a.m. until 5.00 p.m. with the maternal grandparents to supervise the time. Both matters were adjourned for hearing in Melbourne on 25 February 2013.
[26] Affidavit of Mr Curnow filed 22 February 2013, p.3 at para.8.
On 26 January 2013, it was the Father’s evidence that the child was not feeling well and had stomach issues. The child was still unwell on
27 January 2013, so the Father sent an SMS text message to the Mother advising that the child could not travel to [B] and back. The Father stated that, at about 12.30 p.m., he drove the child to the [omitted] Medical Centre and, as he was about to take her in, he was confronted by the Mother and Mr S. The child was still in the motor vehicle when they were approached. The Father was surprised that they were there and was about to speak to them when both the Mother and
Mr S started to yell at him and attempted to grab the child. The child became very upset and started crying. The Father stated, in his affidavit evidence, that he told the Mother, “[p]lease stop this you are upsetting her”.[25] The Mother stated something along the lines of
“I am taking her”[26]and opened the side passenger door of the motor vehicle, attempting to snatch the child. The Father shut the door and told the Mother and Mr S that they were leaving. As he was attempting to drive away, Mr S jumped in front of the car. Mr S then “proceeded to theatrically fall next to the car as if he was hit by [the Father]”.[27] The Mother proceeded to scream “[y]ou hit him, you hit him”.[28] The police took the Father to the [omitted] police station where he was questioned. The Father stated that, while he was at the [omitted] police station, independent witnesses to the incident contacted the investigating police and advised that Mr S had simulated being hit by him. The police advised him that no further action would be taken.
[27] Ibid.
[28] Ibid.
[25] Affidavit of Mr Curnow filed 22 February 2013, p.3 at para.8.
In cross-examination, the Father agreed that the Mother was supposed to have the child on that day. He could not remember exactly, but was pretty sure that he sent an SMS text message saying that the child was not well. He was asked if a response came back saying that they could take her to the doctor. The Father replied that he was actually working that morning and that it was Ms R who was organising the doctor’s appointment. The Father denied that the police had suggested that there be an intervention order taken out against him, and that it was in fact Mr S who asked the police not to proceed with the application. The Father agreed that, at the request of the police, Ms R brought the child to the police station and that, at their direction, the child then spent time with the Mother and Mr S. The Father also agreed that it was probably likely that when the Mother approached the child, he told her to ‘fuck off’.[29]
[29] Transcript of Proceedings, 6 February 2014, p.55 at line 41.
On 22 March 2013, the Father terminated the child’s time with the Mother. On the previous occasion she had spent time with the child, the Mother had gone to the movies with her sister-in-law, the child and the child’s cousins. The Father suspended all contact on the basis that the orders required the Mother’s time to be supervised by the maternal grandparents who were not present on that occasion. On 23 March 2013, the Father sent the Mother the following SMS text messages:
Come anywhere near me and [X] and I’ll be calling the cops and taking out another intervention order against you.
See you April 22.
You caused the stress you dumb shit. Fuck off.
[X] wants us to move to Perth to get away from you and I am seriously considering it.[30]
[30] Affidavit of Ms Suban filed 30 January 2014, Annexure “VES-04” at pp.66-67.
During November 2013, the parties had some discussion about the forthcoming summer holidays. The Father was going to Perth to visit his mother and take the child with him. The Mother suggested that she had a friend in Perth and asked that, if she travelled to Perth, could she pick up the child and stay with her friend for a few nights before returning to Victoria. The proposal was that the Father would pay for the child’s airfare to Perth with him and the Mother would pay her return airfare from Perth with her.
On 23 November 2013, the Father sent the Mother the following message:
I spoke to my lawyer and she seems to think you need clearance from the ICL to take [X] on holiday as you are court ordered to live with your parents … Please get clearance from the ICL to prove you are allowed to take [X] on holiday.[31]
[31] Ibid, Annexure “VES-09 at p.79.
The Father agreed that the response from the ICL indicated that, if the parents agreed to the proposal, the ICL would not stand in the way of those arrangements. The Father agreed that the ICL had told him that he could agree to the arrangement, but that he decided not to.
The Father stated, “[i]t’s an option I chose not to take”.[32] He also stated, “I didn’t have to give a reason for my not letting her go to Perth”.[33]
[32] Transcript of Proceedings, 6 February 2014, p.44 at lines 13-14.
[33] Ibid, p.43 at line 38.
In his oral evidence, the Father accepted that the Mother had turned her life around since September 2012. He commended her for it. The Father denied that he continued to be angry towards the Mother and stated “I’m not angry. Probably a little bit of a resentment, only for the damage that she has caused to [X]”.[34]
[34] Transcript of Proceedings, 6 February 2014, p.45 at lines 25-26.
The Father stated that he had not had any counselling and that he had not completed an anger management course. He also stated that he did try to facilitate meeting with the Mother. He asked her out to dinner but she refused and told him that it was inappropriate. The Father agreed that he had said some nasty things about the Mother in the past, including in SMS text messages. He stated that he regretted having done so.
The Father agreed that he had told the Family Consultant that his father had committed suicide when he was 16 years old. He was asked if he thought it would have been wise to have some counselling about that and responded, “I think I’m pretty much past it”.[35]
[35] Ibid, p.47 at line 32.
The Father stated that he had taken the child to see a child
psychologist after seeing his GP and then a paediatrician,
Dr G (“Dr G”). He stated that the child was having stomach problems which began when she started school. Dr G suggested that he take the child to a psychologist for some counselling. The Father stated that the stomach aches had stopped and stated, “I guess there was also the nerves of starting school being a big step, being prep … there was a lot going through her little life at such a short period of time”.[36]
[36] Ibid, p.48 at lines 29-31.
The Father stated that the child was attending [school omitted] and was doing well at school. He stated that he had no problems with the Mother being in the child’s life. The Father stated that the child’s school was probably a 10-minute walk from his place and that the only extra-curricular activity the child engaged in was [omitted] on a Tuesday night from 6.30 p.m. until 7.00 p.m.
The Father stated that he knew that the Mother was using drugs during the four years she was the primary carer for the child. He never saw her affected by drugs during that time. The child always came to his house in a reasonable condition. The Father had no issues about her parenting.
The Father stated that he worked full-time and that he normally started work at 8.00 a.m. and finished anywhere between 4.00 p.m. and
5.30 p.m. and later on Fridays. He could be required to work on a weekend, but in the first six months this had not occurred. The Father stated that the child was enrolled in before-school care and that he usually dropped her off at about 7.20 a.m. or 7.25 a.m. The child was enrolled in after-school care two days per week, Tuesday and Wednesday, and on the other days she was either collected by the Mother (on a Thursday and alternative Friday) or, when the child was in his care, she went to one of her friend’s homes in the street after school. The Father collected the child from there after he finished work.
The Father stated that he has lived in the same house since 2008.
The house is registered in the names of the father and the paternal grandmother.
The Father told the Family Consultant that he did not believe the report of Dr H (“Dr H”),[37] the Mother’s treating psychologist, in which he stated that the Mother was capable of caring for the child. In fact, the Father told the Family Consultant that “it was garbage” and in his opinion, Dr H was biased towards the Mother and incapable of writing the truth.[38] When questioned about this, the Father stated, “I do not agree with Dr H’s report … He’s giving an opinion. His opinion is just an opinion in my mind”.[39]
[37] Affidavit of Dr H filed 4 February 2014, at Annexure “D”.
[38] Family Report prepared by Ms B dated 20 August 2013, p.8 at para.18.
[39] Transcript of Proceedings, 6 February 2014, p.13 at lines 10-12.
The Mother’s evidence
The Mother provided some seven affidavits in the proceedings, including her trial affidavit.[40] The Mother stated that her immediate plans were to stay living in [T] at the [property omitted], and that if the child were to live with her, she would go to school in [T] with her cousins and the friends that she grew up with there. She stated that she could move out into one of the properties owned by members of her family in the [T] area. The Mother also stated that there were two houses on the [property omitted] and that she was living in one of them and the child would have her own room. The Mother further stated that she was currently working in a [omitted] where she did shift work, and therefore it was possible to work around her time with the child. The Mother’s employer had told her that if she was to obtain care of the child, they would be able to work around this.
[40]The Mother stated that, if the child were to live with her, it would be possible for her to continue at the school that she was currently attending, but that it would be better if she went to school in [T]. The Mother stated that it was a smaller school in a country town where most people knew each other. The child has two cousins who will start at that school in the next couple of years and there are friends that she grew up with and went to three-year old kindergarten with. The Mother stated that Ms C and her two children, [names omitted], were close to the child and lived in the same town, and that her sister-in-law and her two children lived in the next town and one of them is the same age as the child. Two of the Mother’s brothers, as well as her grandmother, also live in [T].
The Mother stated that, after her attempted suicide, she was full of remorse for her actions and knew that she wanted to live and that she needed help. She remained in hospital until 15 September 2012 and then, with the help of the maternal grandparents, made arrangements to enter the [H] Clinic. The Mother undertook a voluntary in-patient program, which involved a stringent regime of:
·Supervised drug testing;
·Residence at the facility;
·Limited contact with visitors;
·Screening of visitors; and
·Commitment to frequent medical and psychiatric monitoring and therapeutic counselling.
The Mother gave evidence of her initial contact with the child while she was undertaking rehabilitation and the circumstances that led to the Father terminating that contact. With respect to the intervention application taken out by the Father on 7 November 2012, the Mother stated that the only grounds given for seeking the order was her attempted suicide in September 2012. The Father also stated that, while she was currently in rehabilitation, she could discharge herself at any time. The Mother stated that, although that statement was essentially true as the program was voluntary, she had never made any threats to discharge herself and the Father had never previously raised this is a concern.
In her affidavit evidence, the Mother also gave her version of the events which occurred on 27 January 2013.[41] She stated that the Father had sent an SMS text message saying that the child was sick and he had an appointment for her with the doctor at 1.00 p.m. He also stated he did not have to make the child available because she was sick.
The Mother sent the Father an SMS text message saying that she would take the child to the doctor but received no reply. She then drove with Mr S to the Father’s home, but nobody was there. They then drove to the local shopping mall where they saw the Father and the child.
The Mother ran up to the child to give her a hug but the Father kept pulling the child away from her, yelling at her to “fuck off” and that “she was his daughter”.[42] The Father then dragged the child towards his car, put her in her car seat and got in to drive off. The Mother opened the car door next to the child to calm her down as she was very upset and the Father started to drive off. Mr S was standing in front of the car and, as the Father drove off, he ran into Mr S and knocked him to the ground. A lady came up to Mr S and asked if he was okay and told him that she had called the police.
[41] Affidavit of Ms Suban filed 30 January 2014, pp.18-19 at para.110.
[42] Ibid, p.18 at para.110(g).
The police attended soon after and accompanied them to the police station where they took statements from the Mother and Mr S.
The Father then attended at the police station with the child.
After intervention by the police, the Father allowed the Mother to spend some time with the child.
The Mother gave evidence that, in November 2012, Mr H was charged in relation to a murder. He was later convicted and sentenced in
August 2013. The Mother stated that the child told her that the Father had informed her that Mr H was a murderer. She assured the child that Mr H was locked up because he was a bad man and that she did not have to worry about him. The Mother would then change the subject.
The Mother gave affidavit evidence in relation to variations made to the parenting orders, including a variation to the amount of time which the child could spend with her, and alterations to the supervision arrangements so that either Mr S, her brother Mr J, or Ms C could supervise the time. There were also orders made restraining the Father from discussing certain matters with the child.
The Mother also gave evidence about the circumstances in March 2013 which led to the unilateral termination by the Father of the child’s time with the Mother. As a result of that action, she was unable to spend time with the child until the matter returned to court in April 2013.
The Mother stated that, after further orders were made on
23 September 2013, there was an improvement in her relationship with the Father. His communications with her were relatively civil and they were able to negotiate variations to scheduled times by informal agreements on a few occasions. The Mother also gave evidence about the arrangements that she had made with the Father to spend time in Perth with the child during the summer school holidays. She stated that, despite the ICL’s statement that the arrangements would be
okay provided both parties agreed, the Father refused to agree.
On 11 December 2013, the Father sent the Mother the following
SMS text message: “Have you booked plane tickets for [X] and yourself? Hope not, as the ICL has stated it is a breach of orders if you go to Perth as you have to reside with your parents. :-(”.[43]
[43] Affidavit of Ms Suban filed 30 January 2014, p.27 at para.146.
On 31 December 2013, the Father sent the Mother a further SMS text message while he was on holiday with the child in Perth:
I really hope you are stupid enough to bring [X] to Perth with Skye this lot of school holidays weeks before we go to Court.
I don’t need any help in Court, but will happily use it against you since you need my approval to break the Court orders and you’ve been advised by the ICL its (sic) not to happen.[44]
[44] Ibid, p.28 at para.149.
The Mother stated that she had been abstinent from all illicit substances since 5 September 2012. She was in the residential treatment program from 5 September 2012 until 9 December 2012, where she completed the residential detoxification and rehabilitation program. The Mother then moved into the transitional halfway house program until
March 2013. From March 2013, she has been involved in an
out-patient treatment service offered by the clinic. The Mother has had clear drug screens on all occasions since the first drug screen at the [H] Clinic which was positive due to her overdose. The Mother also saw
Dr H, who has provided reports in these proceedings.
In cross-examination, the Mother agreed that, since 2009, she had not lived alone with the child. She agreed that, since his relationship with Ms R ended, the Father had been living alone with the child. She raised a couple of matters concerning the Father’s care of the child but otherwise stated that he was doing okay. The Mother did not accept that the Father had been encouraging her relationship with the child; rather, he had been doing everything he could to stop the relationship.
The Mother did not accept that the Father’s anger was a reaction to the circumstances surrounding her attempted suicide and relationship with Mr H. She stated, “I think a lot of it was uncalled for. I can understand his anger but it also happened in the previous proceedings. It has happened for the last eight years so it’s nothing really new”.[45]
[45] Transcript of Proceedings, 6 February 2014, p.65 at lines 18-21.
When later asked what she meant by that statement, the Mother said,
“I sort of just meant like the anger and the way he speaks to me has never changed”.[46] When it was put to her that the Father’s position was that he had moved on since then, she replied, “I’ve seen this cycle before and I don’t believe it. No”.[47]
[46] Ibid, p.82 at lines 45-46.
[47] Ibid, p.83 at lines 6-7.
The Mother was questioned as to why she refused to have dinner with the Father and the child. She replied:
[T]he fact that we don’t get along, I don’t think it would have been a very good thing to be in front of [X], having dinner, with two people that can’t get along. Is that going to be healthy for her? I don’t think so.
…
[W]e did go to the beach one day. [Mr Curnow] was still with [Ms R] … and he was all very nice and loving and it upset [X] because then she thought we were getting back together, which was never going to happen. So it’s confusing for her. So I figure to go out for dinner and confuse her more when she has already had all this stuff, there’s no need for it … And for the cause that it could have, actually, gone bad and we could have got into an argument in front of her, no need for it. Best not to do it.[48]
[48] Transcript of Proceedings, 6 February 2014, p.66 at lines 15-17, 21-22, 26-29 and 31-32.
The Mother agreed that the child would have seen the effects of drug use. When she was living with Mr P, she did the parenting. Mr P was out a lot because he had a [omitted] business. The Mother stated that, during this period, the child attended three-year-old kindergarten at [T] and later four-year-old kindergarten at [W]. She also stated that the only time that the child had missed kindergarten was when she went into rehabilitation.
The Mother agreed that the relationship with Mr H was not a good one. She stated that as soon as she realised that he was not the person she thought he was, she got out of there and got the child out of there. The Mother stated that she would not allow anyone to use drugs in front of the child. She also stated that Mr H was very manipulative and controlling. The child was exposed to his tirades on three or four occasions. The Mother stated that, when she moved in with Mr H, she did not know that he was a murderer. She did not know what sort of person he was and he was not meant to stay there; he was meant to move out within a week and it did not happen. The Mother was only living with Mr H for about four weeks. After she entered rehabilitation, she had no contact with him. Mr H came to try and get in to see her. The staff at the [H] Clinic asked her if she wanted to see him and she told them that she did not. It was put to her that Mr H had visited the
[H] Clinic. The Mother responded that he wanted to come and see her and the [H] Clinic make an appointment so that the person could be screened before they are allowed to come. In the end, after they have been screened and approved by the [H] Clinic, the patient also has the opportunity to approve them.
When questioned further about her relationship with Mr H the Mother stated, “I clearly weren’t (sic) making any rational decisions [at that time]”.[49] After Mr P died, from then until September 2012, the Mother’s life spiralled downhill. She stated that Mr H had helped her when she was low and thought she had no one around. The Mother stated that she did not know, until after his death, that Mr P had been involved in dealing drugs. She knew that he was using drugs. When asked how the Court would know that she would not make such bad choices again, the Mother responded:
Because I see through different eyes now. I’m not – I don’t – like I said before I don’t have a drug haze any more. I can make clear decisions. I can see people for what they are. I can make my own decisions. I don’t have to run on, you know, this self-will that wants to use drugs.[50]
[49] Transcript of Proceedings, 6 February 2014, p.93 at lines 33-34.
[50] Ibid, p.95 at lines 14-18.
When the Mother was asked about how she was working on her bad choices about men, she stated:
It sort of comes hand-in-hand but it is obviously another one of my flaws that I’ve been working on in step work through the program … It’s another – it’s another thing of, you know – like, you put the drugs down and then you feel empty and you feel the need to be needed and you feel the need to be loved so this program teaches me how to love myself and how to fill that hole myself and not fill it with drugs and not fill it with men and not fill it with shopping and not fill it with gambling and, you know, all this external stuff that you could possibly fill that hole with. I fill it with myself and that’s what this program teaches me.[51]
[51] Ibid, p.95 at lines 43-45 and p.96 at lines 5-11.
The Mother admitted that the child might have some anxiety
about coming back to live with her. She was seeing an Educational and Developmental Psychologist, Ms K (“Ms K”) so that she could realise this was not going to happen again. The Mother stated that it was always obviously going to affect the child but that she could not change the past; all she could do was change the future.
The Mother admitted that she had contact with a fellow patient during the time that she was in the [H] Clinic, contrary to the program rules. She also admitted that she had had sexual relations with a person on the program on one weekend while they were in Sydney and still remained friends with him. The Mother disagreed that this was indicative of her having difficulty in making good choices when it came to relationships. She stated that she did have difficulties but she had done a lot of work since then, and that was why she was in the program. The Mother stated that she had progressed a lot in the past seven months.
[52] Transcript of Proceedings, 6 February 2014, p.72 at lines 17-18.
The Mother agreed that, when she was at the lowest point in her life, the person she had delivered the child to was the Father. She stated,
“I had all intentions to die so who else would I leave her with, other than her father?”[52]When asked if she had any positives to say about the Father, the Mother said, “[h]e’s her dad … she lives near where she goes to school. There’s (sic) positives there … I don’t feel that there’s anything he can offer her that I can’t offer her”.[53] She agreed that the Father offered the child stability and security, and that he obviously loves the child. The Mother accepted that the Father was someone who would put the child’s needs first. She stated, however, that, “[e]ven in my darkest times, I still put her first and made sure she was safe before I did anything … I did say goodbye to her, but I really thought I was going to die. I wanted her to have the opportunity to say goodbye”.[54]
[53] Ibid, at lines 42-45.
[54] Ibid, p.73 at lines 9-12.
The Mother stated that she had a close supportive relationship with the maternal grandparents. She was asked if they were aware of the level of her drug use. The Mother responded, “[t]hey are now. They weren’t, at the time”.[55] She agreed that Mrs S had gone away for a few months while she was in rehabilitation but she still had Mr S and her six brothers and sisters there.
[55] Ibid, p.72 at lines 25-26.
The Mother stated that there was an available place for the child at [T] Primary School. She stated that there was nothing stopping the child from continuing to see the same professionals who were providing her with support. The Mother assumed that there would be an initial period of time where the parenting arrangements were gradually changed and that it would not happen overnight because that would not be easy for the child. She stated that she was not willing to go backwards. The Mother agreed she could understand why the Court might have some anxiety about the child living with her but stated that, even if she was to live on her own, she would still have the maternal grandparents and her brothers and sisters as a safety net. She stated, “[w]e all are there for each other”.[56]
[56] Transcript of Proceedings, 6 February 2014, p.75 at lines 18-19.
When asked why she had not sought the maternal grandparents as a safety net before, the Mother responded, “when I was in active addiction and after [Mr P] died and I did spiral downhill … I didn’t put it onto them because … I was … delusional. I was on drugs. I didn’t want them to see me like that”.[57] It was put to her that the
maternal grandparents had previously organised for her to
go into rehabilitation in [omitted] to which the Mother responded, “[m]e and [Mr Curnow] sorted that out and we didn’t actually get there because [Mr Curnow] convinced me that I was all right”.[58] She further stated, “[i]f my parents knew about my drug use, to the extent of my drug use, they would not have left [X] in my care. They would have stepped in way beforehand”.[59] The Mother further stated, “I don’t know any parent that would stand back and let their daughter do what I was doing, if they knew I was doing it”.[60]
[57] Ibid, at lines 22-24.
[58] Ibid, at lines 35-36.
[59] Ibid, p.75 at line 47 and p.76 at lines 1-2.
[60] Ibid, p.76 at lines 32-33.
With respect to her employment, the Mother stated that her earnings changed because she was on shift work and it depended when she worked, but that, on average, she earned from $500.00-$700.00 per week. When asked how much rental accommodation would be in the [T] area, the Mother said about $250.00 and that there were many rentals available in the [T] area.
The Mother stated that she had read the report[61] by Ms K and that she agreed with some of Ms K’s observations, but not so much the recommendations. When she was asked, “do you agree that this court could not be certain that you would be able to continue on this path of good health if your circumstances were to change?”[62] the Mother responded:
That’s why I have a program in my life these days … To benefit my life. So why would I stop that if it’s benefiting my life. If I’ve gotten so much out of it now and I can only get better, then why would I stop doing that program? And I know that it’s a program that I have to do for the rest of my life. It’s just like if somebody gets cancer and they get chemo and they have to have treatment … I’ve got the disease of addiction and I have to keep doing this program for the rest of my life to keep that addiction at bay.[63]
[61] Affidavit of Ms K filed 15 January 2014, at Annexure “AK-1”.
[62] Transcript of Proceedings, 6 February 2014, p.77 at lines 32-34.
[63] Ibid, at lines 35-36 and 38-44.
When asked, “[w]hat about your poor judgment, in terms of forming relationships with other users?” the Mother responded, “[a]lso dealt with in the program … I’m not living in a drug haze any more. I can see people for what they are”.[64]
[64] Ibid, p.77 at lines 46-47 and p.78 at line 1.
When she was asked about people telling the child when she first went into rehabilitation that she might be moving away from the Father,
the Mother responded:
I wasn’t made aware of anything that happened … I was made aware after it had happened and my nieces told me that they were talking to [X] and they were talking about school – my eight year old nieces – and they were talking and saying that [X] was going to be going to school with them.[65]
When asked, “your sister’s kids would have got that from somewhere, wouldn’t they?”[66] the Mother replied, “[b]ecause growing up, they were always going to go to school together. They were around each other a lot and they were always going to go to school together”.[67]
The Mother stated the child was going to go to [T] Primary School. [M] (where she was living) is only half an hour from [T]. When it was put to the Mother that the idea was probably something that was talked about by adults and the children picked up on, she responded, “I doubt it very much”.[68] The Mother stated that she had told her family, “we can’t discuss stuff like that until … we know what’s happening, to where she’s going, which is what I said to my nieces”.[69]
[65] Ibid, p.78 at lines 12 and 14-17.
[66] Ibid, at line 19.
[67] Ibid, at lines 20-22.
[68] Ibid, at lines 36-37.
[69] Transcript of Proceedings, 6 February 2014, p.78 at lines 44-46.
When asked, “[d]id you ever turn your mind to how your actions were impacting on [the Father]?” the Mother replied, “I recommended that he should go and get some help and talk to someone so he can deal with the stuff that’s being brought up for him from my actions”.[70]
[70] Ibid, p.79 at lines 8-11.
The Mother was questioned about her proposals should the child live with her. She stated that the child would live in [T] and attend [T] Primary School. She was asked how she thought the Father would return the child to [T] if he worked full-time. The Mother responded, “[i]t’s up to him. Don’t know”.[71]
[71] Ibid, p.85 at line 42.
When questioned about her current working arrangements, the Mother stated that she worked anywhere between 25 and 35 hours a week.
The Mother did not have set hours; there was a roster and she sat down with the manager and they worked out what hours she would work.
She was working at [omitted] in [M] as a [omitted]. The Mother had almost finished her [qualification omitted] and once done, she intended to undertake study to obtain a diploma in [omitted]. She was asked if she paid to do the study, to which the Mother responded, “it costs me $200 because I was on a healthcare card when I started”.[72] The study involved eight hours per week and two hours extra outside of classes. The Mother stated that it was her intention to remain living on the [property omitted] and that her brother lived there in the other house and she could stay there for as long as she liked. She was not charged rent by the maternal grandparents.
[72] Ibid, p.87 at lines 14-15.
The Mother denied that her parents were involved in most of the child’s care. She stated that Ms C had cared for her once when she was at work, and that a girlfriend had once picked the child up from school and she had collected her from her girlfriend when she finished work. Her shift usually finished at 4.00 p.m. or 4.30 p.m. and, as a girlfriend lived up the road from the Father, she would pick the child up from school and then the Mother would collect the child from her when she finished work. The Mother stated that her work hours would change if the child came to live with her and that she would only work while the child was at school.
The Mother was asked if she was currently taking any medication to which she responded that she was taking medication to stop smoking. She was asked who her friends were now, and she indicated that she had met a lot of people through Narcotics Anonymous. Some of them had been clean for 25 years and mentored people, and some friends had the same clean time as herself. The Mother was asked if she had met any friends who had not been drug addicts and she said yes, she had met friends “through working” and “out on social occasions”.[73] The Mother stated that it was her choice to attend Narcotics Anonymous, and that she still went out to pubs and dinner and things like that but she did not associate with people who drank or took drugs.
[73] Transcript of proceedings, 6 February 2014, p.89 at line 32 and line 35.
The Mother agreed that she had used drugs for most of her life but there had been times when she had not used drugs. She stated that she never took drugs in front of the child and that the child never saw any of her paraphernalia. The Mother stated that she usually took drugs before the child got out of bed in the morning.
The Mother agreed that the Father was doing a good job with the child. She disagreed that he had worked so that she could see the child.
The Mother stated there was a four-month period where she did not get to see her at all because he stopped it and because he had obtained an intervention order against her. The Mother stated that she was not exactly impressed with him about that, but she did understand why he did it. She further stated that she could not talk to the Father about it because the intervention order covered both him as well as the child.
When asked what were the reasons why she thought the Father was ‘okay’, rather than ‘great’ the Mother responded:
I don’t think he looks after the best that he can. Like, she comes to my house. She hasn’t got her hair brushed. It has clearly been not brushed for a week. She, a lot of times, hasn’t had a shower – hasn’t been bathed. She has always got dirty clothes on. And, you know, it’s always a big effort and a big struggle to get her into the shower to wash her hair. Like, she’s – always a big fight with her when she first comes, because her head is sore for not getting brushed. It’s all matted together. Like, it’s not okay.[74]
[74] Transcript of Proceedings, 7 February 2014, p.100 at lines 38-44.
The Mother stated that the child was a girl and she needed a mum.
She was concerned also that the Father allowed the child to play out in the street which she did not think was okay.
The maternal grandfather’s evidence
Mr S also gave evidence. He stated that, on the [property omitted], there were two houses adjoining each other. He further stated that the family also had several rental properties in [omitted], and that his mother had gone into a care home now so her house was also free, which is about 200 metres from [T] Primary School. Mr S also stated that there were a lot of options available for the Mother, but currently she was living in the main house on the [property omitted]. He agreed that the Mother could remain living on the [property omitted], essentially indefinitely.
Alternatively, Mr S stated that the Mother could live in his mother’s house with a low rent. If she did want to move closer to work,
Mr S would be willing to sell one of the properties and bring forward her inheritance. In [T], there is support available for the Mother. Ms C lives approximately two kilometres from the [property omitted], and she has two children who go to school in [T]. There are cousins around the same age or just a few years older. If the Mother is working and somebody has to pick the children up from school, there are people and cousins and uncles to help out if required.
With respect to the decision of the Father to prevent the child from visiting the Mother at the [H] Clinic, Mr S said:
I didn’t observe her crying … She was really excited to see her mother. There was only two visits with the rehab and I actually had [X] for a week … during that time as well ... with her cousins … I don’t know why or what happened, and [Ms Suban] being in rehab then for quite some time and no contact with the outside world whatsoever and in actual fact, [Mr Curnow] was talking to me on the phone and he wanted to meet [Ms Suban] and I said well, it’s not so simple because it’s a private facility and I have to first find out how we can arrange that and I will let you know … And in that week he applied for an intervention order and that was it.[75]
[75] Transcript of Proceedings, 7 February 2014, p.105 at lines 8-18.
Mr S was asked if any member of the family had said anything to the child about the topic of returning to live with the child. He replied:
No, nobody spoke to her directly. Certainly, she has got a lot of cousins. We’ve got, you know, 14 grandchildren so there are always plenty of grandchildren around and children will talk. Who knows what they talk about. But she was never ever upset at any point in time. You know, the exact opposite. She was always very happy to be there and when she left she was quite happy.[76]
[76] Ibid, at lines 27-31.
In cross-examination, Mr S stated, “[w]e’ve been to hell and back with the daughter”.[77] He agreed that it had certainly been stressful at times. In his view, Mr S did not believe that the Mother intended to kill herself; to him, it was more a cry for help. Mr S stated that he was not well aware of the extent of his daughter’s illicit drug use. He had become aware several years ago that there was a problem when Mrs S spoke to the Father about getting the Mother into rehabilitation. Then after that, “it sort of all cooled down again”.[78] Mr S stated that he had never seen the Mother using drugs, and that “she never came home spaced out or abusive or any issues whatsoever”.[79] The Mother did not ask for any help and when she did ask for help, “we gave her the help”.[80]
[77] Ibid, at lines 45-46.
[78] Ibid, p.106 at lines 12-13.
[79] Ibid, at lines 23-24.
[80] Ibid, at line 28.
Mr S stated that he had met Mr P but was not aware that he was a drug addict. He had only met him twice and all that he knew was that Mr P was a very sick man. He observes that the child was very happy with him and he seemed to be happy with her; to Mr S, “everything looked fine”.[81]
[81] Ibid, p.107 at line 6.
Mr S agreed that the September 2012 events would have been traumatic for the child, but all that he could say was that he remembered the first time that the child visited her Mother, “she was all over her, you know, kissing her, hugging her, licking her”.[82]
Mr S was asked if, now that he was aware of the extent of the Mother’s drug use, it raised concerns about what the child may have been exposed to while in the Mother’s care. He stated:
Not really. Because she always – her first priority was always [X] … And like I said, I had never ever seen her at home or out of the home with [X] on drugs – spaced out or, you know, some sort of problem.[83]
[82] Transcript of Proceedings, 7 February 2014, p.107 at lines 19-20.
[83] Ibid, p.108 at lines 19-23.
Mr S stated that it was a stressful time for everyone when the Mother was in rehabilitation, but he had no idea why the Father had obtained an intervention order when he was going to go and meet the Mother that weekend. When asked if the Father had done a good job with the child, Mr S responded:
From experience, I would say he’s coping. I – I had to cope nearly 30, 40 years ago, very similar situation. I have three children and I know what it’s like to try and bring up a child. I’ve done it almost 12 months, and without the support of my brothers and parents, no hope in the world. It’s very difficult when you’re going to work, just to get the food together, to do the washing and – and then, you know, get her to the school, pick her up from school … he’s coping, struggling because [X] – when we pick her up, quite often, you know, her hair hasn’t been washed, I don’t know how many days, hasn’t been brushed … I know it’s difficult for a man to do all that.[84]
[84] Ibid, p.108 at lines 44-47 and p.109 at lines 1-6.
Mr S agreed that the child was doing well at school. He stated that she loves to read while she is up at the [property omitted] and “we all read with her”.[85] He stated he had attended her school on several occasions with the Mother and spoken to her teacher. When he was asked if he agreed that the child appeared to be a “happy, well-settled little girl now”, Mr S responded, “[s]he always was happy and settled. She was never unsettled”.[86]
[85] Ibid, p.109 at lines 11-12.
[86] Ibid, at lines 16-17.
Mr S stated that, if the Mother chose to move to [W], he would support her wherever she wanted to move. He was asked if he intended to move to [G] to which he replied that he had no solid plans because he was still working. Mr S had been working for the same company for 45 years as the [omitted] and it was a job that he was not going to “throw away”.[87] He stated that financially, he and Mrs S were pretty secure but it was difficult to stop working. [G] was an investment property; it would be on the market as a rental property and they would use it as a holiday home.
[87] Transcript of Proceedings, 7 February 2014, p.110 at line 4.
The maternal grandmother’s evidence
Mrs S also gave evidence. She stated that she had known for 15 years of the Mother’s drug use. Mrs S had suffered “[w]orry, stress, anxiety, hopelessness, all those feelings that a mother has when she has a sick child”.[88] When asked if she had the same anxieties regarding the child, Mrs S replied, “[n]o … I felt that [Ms Suban] really put [X] first and that she always put her … I always felt that she was safe”.[89] She was asked if she was aware that Mr H had a criminal record to which Mrs S replied that she was not until it was reported in the paper. The Mother had told her that Mr H had been in prison, but she was not sure that she knew what for. Mrs S had not felt that there was a need to contact anyone while the Mother was living with Mr H as the child “always seemed to be well fed, clean, well dressed” and “there wasn’t anything said by [X] that would make me feel worried”.[90]
[88] Ibid, p.111 at lines 39-40.
[89] Ibid, at lines 42-44.
[90] Ibid, p.112 at lines 14-17.
Mrs S agreed that the Father should be given some credit for the fact that the child was doing well at school. She could imagine how difficult it must have been. The child seemed a “well-adjusted, normal child”.[91] She agreed that the child’s relationship with the Mother was still quite good. Mrs S did not accept that this had something to do with the Father.
[91] Ibid, at lines 29-30.
The evidence of Dr H
At the request of the ICL, Dr H, the mother’s treating psychiatrist, provided three reports.[92] In his most recent report,[93] Dr H stated as follows:
On examination she looks fit and healthy, is calm and organised. Mood and affect are normal and her thought rate and form are normal, she has good insight and is approaching her situation in a sensible manner.
Her diagnosis is methamphetamine dependence, now in remission. There is no evidence of depression or risk of self harm.
Her prognosis is excellent, she has taken on recovery principles and has followed treatment advice at all stages, thus her excellent out come (sic) thus far. She should continue on with her current path of full involvement with Narcotics Anonymous and this should be amply sufficient for her ongoing health. I am happy to review her progress at any time in the future but see no ongoing need for my services.
Given that she has previously reared her child when not as healthy as this, and her demonstrable ability to calmly care for multiple persons in rehabilitation who represent far more challenge than caring for [X], I think her ability to care for [X] in her current state is not impaired in any way and I see her as needing no limitation nor supervision on this, and that she is fully capable of being [X]’s primary carer. She is capable of making informed decisions about [X]’s care, has good family support and is financially viable. She appears to have done everything anyone could to put herself into healthy recovery and to be in a position to resume primary care of her daughter. She is actually within best possible outcomes in terms of her recovery so far, which augurs well for her future.[94]
[92] Affidavit of Dr H filed 4 February 2014, at Annexures “B”, “C” and “D”.
[93] Ibid, at Annexure “D”.
[94] Ibid, at p.15.
The evidence of Dr H was admitted without cross-examination.
The evidence of Ms K
At the request of the Father, Ms K, a psychologist who has been seeing the child, also produced a report for the Court.[95] The child was referred to Ms K by her paediatrician, Dr G. Ms K saw the child on 10 occasions. On five occasions, the Father brought the child and on the other five occasions, the Mother brought her. On all occasions the child was seen in the session on her own and the parent in attendance was provided with feedback. The report covered the period from 12 July 2013 until 4 December 2013.
[95] Affidavit of Ms K filed 15 January 2014, at Annexure “AK-1”.
Ms K reported that:
[X] presents as a well mannered and engaging you (sic) girl who generally displayed positive affect … she talks positively about a group of friends she interacts with at school …
[X] displayed affection towards both her mother and father. She reported that she liked living with both of them. [96]
Ms K stated that the child was aware of the Mother’s drug use and rehabilitation and:
She has mentioned going to meetings with mum and her friends from rehabilitation. [X] has also spoken of her sadness regarding the death of [Mr P] … She also expressed feeling scared at one point when she thought her mother would fall in the ‘hole’.[97]
[96] Affidavit of Ms K filed 15 January 2014, Annexure “AK-1”, pp.2-3 at para E.
[97] Ibid, at p.3.
The child also spoke about Mr H. She told Ms K that “he was bad - went to jail because he killed a person”.[98] She stated that he scared her when she and the Mother were leaving. During one of the sessions, the child bought in her diary in which she had written
“my life is wonderful but sometimes complicated”.[99] When asked what ‘complicated’ meant, the child said she thought it meant ‘difficult’.
She further elaborated, “[s]ometimes I don’t know what’s going on at mum and dads. Sometimes they keep on talking about each other and I don’t know what they mean and that makes it complicated”.[100]
[98] Ibid.
[99] Ibid, at p.4.
[100] Ibid.
Ms K stated that the child needed to “feel supported and unconditionally loved by each parent, particularly when she speaks positively about the other parent”.[101]
[101] Ibid.
Ms K ventured an opinion on the child’s living arrangements and whether they should be changed. She stated that, on several occasions:
[X] has voiced that she would like to leave the living arrangements as they are, or seeing mum on the weekends but staying at dads on weekdays. In one session she said she’d like to see mum and dad on alternate days.[102]
[102] Affidavit of Ms K filed 15 January 2014, Annexure “AK-1”, p.8-9 at para E.
Ms K voiced the opinion that the child’s living arrangements should remain as they are. The reasons were for this were:
1) [X] is very happy at her current school. She speaks positively about both the teachers and has established good friendships
2) [X] has also established friendships with children that live in the same street as her dad
3) There is an established routine with regards to access and how [X]’s time is divided
4) [X]’s specialists are located closer to her dad’s residence
5) As noted [X] has stated her preference in not changing the current living arrangements[103]
[103] Ibid, at p.9.
Ms K also stated that she felt that “stability, safety and security would be most important for [X]”.[104] She further stated that, in her view, “a change in current living arrangements would be disruptive and potentially distressing for [X] rather than beneficial”.[105]
[104] Ibid.
[105] Ibid, at p.10.
In her oral evidence, Ms K elaborated on these views,
saying that, primarily, it was the structure and the routine that the child currently has, which included:
·Her educational placement;
·The after-school activities that she is involved in; and
·Friendships that she has formed in the area,
which was important, and these protective factors and having that continuity, particularly with the school system, would definitely be something that she would not want to change at this point in time.
Ms K also stated that one would expect there to be
“some anxiety about having another major change … transitionafter [the child] has already had one quite recently”.[106]
[106] Transcript of Proceedings, 7 February 2014, p.116 at lines 34-35.
In cross-examination, Ms K indicated that she was not aware of the duties of an expert witness, and that she was not a Regulation 7 Consultant under the Family Law Act1975 (Cth) (“the Act”). She stated that she had been requested by the Father to provide a report which specifically related to future living arrangements for the child. Ms K received that request on 28 November 2013.
Ms K stated that the original request for her to see the child came from the Father. She had received a referral from Dr G as well as from the GP. The presenting problem was ‘generalised anxiety’. Ms K was taken to specific notes that she had made during the course of her sessions with the child.[107] She had noted that the child had told her that she “liked living at mum and dads” and that she “has lots of friends at dads but ‘most of [her] cousins live at mums”.[108] She had also noted that the child said, with respect to the Mother, that:
she loves me
b/c (sic) she takes me places
she lets me play with her phone[109]
With respect to the Father, the child had said:
[107] Exhibit R1 and R2 of the subpoenaed material produced by Ms K under subpoena filed 29 November 2013 by the ICL.
[108] Exhibit R1- Subpoenaed material produced by Ms K under subpoena filed 29 November 2013 by the ICL.
[109] Ibid.
he lets me go to other peoples (sic) houses
he bought me guinea pigs
he bought me a cat.[110]
[110] Exhibit R1- Subpoenaed material produced by Ms K under subpoena filed 29 November 2013 by the ICL.
Ms K was asked about the reasons, or the assumptions,
she made about the child’s anxiety. She stated that “psychosomatic pain is very common in young children”[111] when they are under stress or anxiety. Ms K assumed that the cause of this anxiety related to the circumstances that she had experienced with the Mother. When asked, “[d]id you consider the possibility that where there was stomach pain of non-physical origin that there could have been a cause other than she just resumed spending time with her mother?” Ms K responded, “there’s no way of definitively stating that either way. Of course there’s other possibilities”.[112]
[111] Transcript of Proceedings, 7 February 2014, p.128 at line 38.
[112] Ibid, p.129 at lines 29-31 and 32-33.
Ms K was asked at what point in time her role changed from offering therapeutic assistance to the child to voicing an opinion with respect to her future living arrangements. She responded that “there’s always a strong awareness that at some point in time you will be asked for an opinion in terms of access, in terms of custody, and so forth”.[113]
[113] Ibid, p.130 at lines 30-31.
Ms K could not say what documents she had actually received concerning the Court proceedings. With respect to her discussions with the child concerning Mr H, Ms K stated that she did not ask the child how she knew that Mr H had murdered someone. Nor did Ms K ask either of the parties how it was that the child became aware of it. She stated it was possible that the child had overheard conversations rather than being directly told by anyone in particular. Ms K stated that she had not asked the child about any of the Father’s previous girlfriends or partners. The child never mentioned Ms R and, every time she drew a picture of her family, the child did not include any other adults apart from her parents.
Ms K stated that “[w]hen we are under distress, regardless of the age, but particularly with a five-year-old, the way that we recall information isn’t going to be accurate”.[114] It was put to Ms K that questions about how the child felt about her current living arrangements had only been discussed with her in the last three of her appointments, all of which occurred after the appointment with the Family Consultant. Ms K stated, “I knew that I would be asked these questions by someone today so that I needed to get the information”.[115] When asked when she knew that she would be called to give evidence in the Court, Ms K stated, “[o]n the basis of the initial referral, I knew at some point in time it may occur from the initial referral and from the initial phone call from the ICL”.[116]
[114] Ibid, p.145 at lines 6-8.
[115] Transcript of Proceedings, 7 February 2014, p.145 at lines 28-29.
[116] Ibid, at lines 43-44.
Ms K was asked about a sentence in her report where she said: “[a]t times [the child] was able to say she felt sad but did not know why”.[117] Ms K responded, “a child is expressing how they’re feeling but they can’t articulate the reasons behind it”.[118] It was put to her that there might be other sources of a child’s unhappiness, to which Ms K replied:
[W]ith a child we look at what is happening at school, what is happening at home, with friendship groups and so forth, all of those things. There was no distress related to any of those things.[119]
Ms K stated that she did not contact the school to find out about it, but did ask the child constant questions about how she felt about school and her friendships at school.
[117] Affidavit of Ms K filed 15 January 2014, Annexure “AK-1”, p.3 at para.E.
[118] Transcript of Proceedings, 7 February 2014, p.147 at lines 14-15.
[119] Ibid, p.147 at lines 23-25.
It was put to Ms K that it was only after she was told that the Family Consultant proposed that the child stay with the Father for six months and then transition back into her Mother’s care that she started asking the child about what she wanted concerning her living arrangements. Ms K agreed that she had spoken to the Family Consultant who prepared the Court report, but that it was not suggested to her by the Family Consultant that she might need to do a report.
It was put to Ms K that Dr G had expressed concern about the fact that the Father had been talking about adult matters in the presence of the child, to the extent that she actually had to stop him and invite him to continue the conversation with her outside. Ms K was asked if the Father ever said anything to her in the presence of the child that she thought was inappropriate, to which she responded, “No”.[120] She agreed that being exposed to inappropriate information and the negative putting down of the other parent could give a child psychosomatic pain. Ms K stated that it appeared that, in both of the different households, maybe things were said in the child’s presence that should not have been.
[120] Transcript of Proceedings, 7 February 2014, p.160 at line 44.
Ms K stated that a child “[r]ecollecting facts and looking at how the child is actually feeling and express it in emotions”[121] are two different things. Her focus was on the child’s feelings of being scared, rather than the actual factual information she provided. Ms K was questioned about why the child might be feeling scared with respect to Mr H a year after she had had any contact with him. In Ms K’ view, the child’s fear about Mr H was still alive. When asked:
Is it possible that … what the child has told you about Mr H relates more to what she has been told about him being a murder (sic) … than about things that happened during that four week period … over 12 months before …
Ms K stated, “I guess that’s possible”.[122]
[121] Ibid, p.161 at lines 29-30.
[122] Ibid, p.167 at lines 7-10 and line 12.
Ms K agreed that she had never received a copy of the family report[123] prepared by the Family Consultant. Ms K stated that she really felt that the child was still processing a lot of what happened at the time of the Mother’s attempted suicide. In her view, the fact that there was another parent that could provide a different environment for her at that time was a positive thing; in her view, “it’s too soon for another major change”.[124]
[123] Family Report prepared by Ms B dated 20 August 2013.
[124] Transcript of Proceedings, 7 February 2014, p.168 at lines 19-20.
The evidence of the Family Consultant
The Family Consultant prepared a family report on the orders of the Court.[125] She found the child to be a “delightful, smiling faced child”.[126] The child told the Family Consultant that she likes school, and considered that she had a lot of friends. The child stated that she lived with her Father, but remembered life with her Mother, especially being pushed in the supermarket trolley and “Mum laughing” and playing near “the duckpond”.[127] On the feelings chart, the child “picked out the happy face when she is at each of her parents’ houses, the sad face when she thought about her mother, and the confused face when she thought about where she would live”.[128] The child told the Family Consultant that her favourite “thing to do was playing outside at her mother’s house” and “playing ball with her dog”.[129] The
Family Consultant spoke to:
·Dr G;
·Ms F, the Mother’s drug and alcohol counsellor;
·Ms K; and
·Dr H.
She also interviewed both of the parties and the maternal grandparents, as well as the child.
[125] Interim Order of Judge Jones made 19 June 2013.
[126] Family Report prepared by Ms B dated 20 August 2013, p.13 at para.33.
[127] Ibid, p.14 at para.34.
[128] Ibid, p.14 at para.35.
[129] Ibid.
The Family Consultant stated that the Father believed that the child was settled and was happy in his care and that she had told him so.
She suggested that the child might well have indicated to the Father that she wanted to remain living with him. However, she noted, “children love to please their parents, and children of separated parents frequently reflect what they believe the parent with whom they are living at the time wants to hear”.[130] The Family Consultant also noted that, despite seeming to understand that her parents had separated and no longer lived together, the child “still dreams of their reunion, and she believes that if she wishes hard enough it might happen, even though she may not have any memories of her parents ever living together”.[131]
[130] Ibid, p.19 at para.52.
[131] Family Report prepared by Ms B dated 20 August 2013, p.19 at para.53.
The Family Consultant was of the view that there was more time needed for the Mother to prove her commitment to remain drug-free. She suggested a probationary trial period of a further six months and,
if this was successful, then the child should return to live with the Mother. The Family Consultant understood that this would necessitate the child changing schools, but also understood that the child was already familiar with children who attended the primary school in [T].
In cross-examination, the Family Consultant stated that “the priority has to be [X] and her ability to work through the issues that have occurred with her in the past”.[132] She stated that, from her observation, the child had an excellent relationship with both her parents.
The Family Consultant agreed that it was to be expected that the child would be settled in her current environment with the Father and the fact that she seemed to be doing well at school would indicate that her home life was secure. She stated that it was very important that the parents understood that the child needed to settle wherever she was living. The child had experienced a lot of trauma and it was important that the parents did not denigrate each other; that was very important for whoever the child lived with.
[132] Transcript of Proceedings, 7 February 2014, p.174 at lines 30-31.
It was suggested to the Family Consultant that the distance between the parties’ homes raised problems for travel. She was of the view that an hour’s travel time for a child of that age was not excessive. The
Family Consultant also expressed the view that, if the child could witness that there was improvement and the Mother had worked through her issues and those things were not happening any more, the child could recover from the trauma associated with the Mother’s behaviour. She felt that, in the short term, it would be beneficial if the Mother had support close by her.
The Family Consultant was of the view that the Mother could cope with working 25 to 30 hours per week and studying for eight hours per week if the child was in her full-time care. She stated that, as far as she knew, the Father had been doing a good job with the child.
The Family Consultant was still of the view that the recommendation that she had made in her report was appropriate, being:
[X] to live with father and spend time with her mother each alternate weekend, from after school on Friday until Monday before school, for a further period of six months preparatory to returning to her mother’s care.[133]
[133] Family Report prepared by Ms B dated 20 August 2013, p.21 at para.57.
The Family Consultant was still of the view that that arrangement would best provide for the child’s interests. She further expressed the view that it was in the child’s interest to be in the primary care of the person that was not going to denigrate, or was least likely to denigrate, the other parent. The Family Consultant considered Dr H’s report to provide excellent support for consideration to be given to the Mother as primary carer.
The applicable legal considerations
The starting point in considering any parenting applications lies in the provisions of s.60CA of the Act, that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B of the Act and by the requirement that it consider the matters set out in s.60CC of the Act.
Parental Responsibility
Further, s.61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[134]
[134] Family Law Act 1975 (Cth), s.61DA(4).
The Father’s initial application sought that he have sole parental responsibility for the child. However, during the course of the proceedings, the Father changed his position to support the proposal of the ICL, which was that the parents have joint parental responsibility. It was the submission of the ICL that the presumption pursuant to s.61DA of the Act applied in this case. I am satisfied, on the basis of all of the material before me, that it is appropriate that the parents have equal shared parental responsibility for the child.
Equal time spent with each parent
Section 65DAA(1) of the Act requires that, where a parenting order has been made for equal shared parental responsibility, the Court is to consider the reasonable practicality of the child spending equal time with each parent and whether it would be in the child’s best interests.
The Full Court in Goode v Goode (2006) 36 Fam LR 422 held that, even where the Court does not make an order that the parents have equal shared parental responsibility for a child, the Court must still consider whether it is in the child’s best interests that the child spend equal time or substantial and significant time with each parent.
The Court must also consider whether spending substantial and significant time is reasonably practicable. Such is provided for in s.65DAA(2) of the Act.Pursuant to s.65DAA(3) of the Act, substantial and significant time constitutes both weekend and holiday time[135] and allows the parent to be involved in both the child’s daily routine and occasions and events that are of particular significance to the child.[136]
[135] Ibid, s.65DAA(3)(a).
[136] Ibid, s.65DAA(3)(b).
Section 65DAA(5) of the Act also sets out what the Court must have regard to in considering what is reasonably practicable.
I have considered these issues. If not for the practical difficulties associated with the location of the parties, this is a case where equal time might be considered. A significant practical impediment to the child spending equal time with each parent is that the parties’ respective residences are approximately 80 kilometres apart.
Both parties also propose that should the child live primarily with them that she would attend a primary school close to where they reside. The Mother’s evidence was that she had some flexibility in terms of her hours of work, and when she worked. The Father’s evidence was that he worked full-time and that his hours were reasonably fixed.
I note, in this regard, that currently the child spends quite a lot of time in before and after-school care.
Primary considerations
Section 60CC factors
Section 60CC(2) of the Act sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) of the Act is based on the objectives of ss.60B(1)(a) and (b) of the Act which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence.
A significant issue in this case has been aspects of the Mother’s behaviour prior to the child coming into the Father’s care. The child essentially lived with the Mother from the time she was born until September 2012. While there were issues concerning her past drug use raised, the Mother’s evidence was that, during the pregnancy, she did not use drugs and it would appear that her drug use was not obvious to others during the time that she was residing with Mr P. Certainly, the Father’s evidence was that he had no concerns about her parenting during that time, and the evidence of the maternal grandparents was that they never saw her under the influence drugs and that the child was always clean, well-fed, well-dressed and a happy, settled child. It would appear that, up until the death of Mr P, the Mother was able to care for the child in an appropriate way, despite her drug use.
On her own evidence, things spiralled out of control after the death of Mr P and, over a period of a few months, the Mother took up residence with a person who had a criminal record, albeit that she was not aware of the nature of that record and that the residence lasted for only some four weeks, and by early September 2012, she had attempted to commit suicide.
There is no doubt that the events of that time were traumatic for the child. It is significant in my view that, even at her lowest point, the Mother sought to ensure the child’s safety by leaving her with the Father. She was also able to take the child away from the environment with Mr H, even though, on her own admission, the child had witnessed his inappropriate behaviour on approximately three occasions before she did so.
Both the Father’s case and that of the ICL appear to be based on a view that the Court should not trust the Mother to continue to be drug-free and to put the child’s interests first. I am satisfied that what has been referred to in this case as the Mother’s ‘poor relationship choices’, and I include in that her relationship with the Father, were manifestations of a lifestyle which she is now doing her utmost to put behind her. I am of the view that weight should be given to Dr H’s assessment and to the Mother’s own actions in facing her problems and putting herself in a position to deal with them. I am satisfied, from the totality of the evidence in this case, that the child would not be at risk in the Mother’s care.
Another significant issue, in my view, is the potential for psychological harm to be done to the child from the Father’s anger towards, denigration of, and poor opinion of, the Mother. While, in his oral evidence, the Father was prepared to acknowledge the efforts the Mother had made in addressing her problems, his attitude in general, in my view, was contemptuous of her. As late as December 2013, he was sending her emails which are indicative of his animosity and contempt for her.
The maternal grandparents raised with the Family Consultant their concerns at the Father’s deep hostility towards the Mother and his consequential determination to have the child continue to live with him into the future. Both maternal grandparents believed that the Father had discussed the Mother’s substance-abuse and suicide attempt with the child many times, and they believed that he had led the child to believe that the Mother was neither capable of caring for her, nor interested in having the child returned to her care. It would also appear to me that the child’s knowledge of the subsequent conviction of Mr H for murder may well have also originated from the Father. The Mother reported, in her evidence, comments made by the child which would suggest that the Father had discussed this matter with her. There was also the evidence that Dr G had expressed some concern at the Father discussing adult matters in front of the child.
The email and SMS text exchanges authored by the Father also raised extreme concerns about the abusive nature of his relationship with the Mother. While, in his oral evidence, the Father expressed regret for some of the statements that he had made, I was not satisfied of the sincerity of those sentiments. I note, in this regard, the evidence of the Mother that, as late as December 2013 when the hearing of the intervention order application was adjourned until after Christmas, the Father had made comments along the lines of the following to her: “Suck shit … You still don’t get her for Christmas”.[137]
[137] Transcript of Proceedings, 7 February 2014, p.101 at line 32.
Additional considerations
Section 60CC(3) of the Act deals with additional considerations to which the Court must turn its mind in dealing with parenting matters.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Evidence concerning the child’s wishes was primarily given by Ms K. I indicated, during the course of the proceedings, my concerns that Ms K, who, on my understanding, had been engaged to provide therapy from the child, had been requested by the Father to essentially gauge the child’s views with respect to future living arrangements and to give evidence on his behalf to the Court with respect to those matters. I make no criticism of Ms K as a therapist, however, my concern is that she appeared ignorant of the role, responsibility, and requirements of an expert witness. I put more weight on the views of the Family Consultant, who commented on the tendency of children of the child’s age to make statements which they wished the parent with whom they are living to hear.
Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The evidence before the Court was that the child had a loving relationship with both of her parents. I am sure that these relationships existed prior to her coming into her Father’s full-time care and it is a testament to the strength of the relationship with each of the parents that it has been sustained through a difficult and traumatic time for her.
There was no evidence concerning the relationship the child had with any of her Father’s relatives. Surprisingly, despite the length of his relationship with Ms R and the fact that she had been living with him, and continued to do so, after the child came into the Father’s full-time care, there was little evidence of any relationship between the child and Ms R.
The child appears to have a loving relationship with the
maternal grandparents and with the extended Suban family of aunts, uncles and cousins. It is evident that she has cousins of an age close to her own, with whom she has grown up.
Section 60CC(3)(c):the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It is evident that the Father, certainly in more recent times, has taken the opportunity to participate in making decisions about the child’s life, to spend time with her and to communicate with her. It would appear that, at an earlier stage in the relationship, he was prepared to sacrifice his ability to spend time with her for what he regarded, at the time, to be a principle about transportation. There is no issue that the Father has contributed to the child’s maintenance and continues to do so.
The Mother’s capacity to spend time with the child, to communicate with her and to participate in making major long-term decisions about her life have been, to some extent, thwarted by the Father’s attitude. His unilateral decision to cease the child having any time with the Mother, and then take out a intervention order against the Mother while she was in full-time residence in a rehabilitation centre as well as various threats that he made to call the police should the Mother have any contact with the child, are concerning in the context of his willingness to share any decision-making with the Mother. Prior to September 2012, I am satisfied that the Mother took appropriate opportunities to spend time with the child and to participate in making decisions about her life.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Considerable emphasis was placed by Ms K, in her recommendations, on her concern that any change in residence might be disruptive and potentially distressing for the child. Her reasons for considering that the child’s living arrangements should remain as they were related to the child’s happiness with her current school and the friendships she had established, both at the school and in her neighbourhood. Ms K also referred to the child having an established routine and being closer to her specialists while living with her Father. She stated that one would expect there to be “some anxiety about having another major change … transition after [the child] has already had one quite recently”.[138]
[138] Transcript of Proceedings, 7 February 2014, p.116 at lines 34-35.
The Family Consultant, for her part, seemed less concerned than
Ms K about the potential for the child to be damaged by a change in her residence. The Family Consultant noted that, should the child have a change of school, she would be attending school with children that she knew and had grown up with. I also noted, from the Mother’s evidence, that she was friends with someone who lived in the same street as the Father and living with the Mother would not prohibit the child enjoying the friendship of children in her Father’s neighbourhood.
While I accept that a change in residence could be disruptive for the child and may provide a source of anxiety, if she were to live with her Mother at the maternal grandparents’ [property omitted], it would be in a house with which she was familiar and amongst family members with whom she had an existing relationship.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As has previously been noted, the parents lived some 80 kilometres apart. I note that the Family Consultant did not consider that an hour’s drive between residences was excessive for a child of that age. Both parents have access to motor vehicles and are able to drive the child from one location to the other. It would not appear to be an excessive cost for them to continue to do so.
Section 60CC(3)(f): the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
While the Mother had some criticism of the Father’s capacity to care for the child in terms of her appearance, and in particular his attention to her personal hygiene, I am satisfied that both the parents are able to provide for the child’s physical and economic needs. The Father appears to have some criticism of the Mother’s capacity to deal with the child’s intellectual needs, although it did not appear obvious to me that the Mother lacked capacity in this area. I am satisfied that there have been times where both parents have failed to meet the child’s emotional needs. I also have concerns that the Father’s attitude towards the Mother and, in my view, his inability to cease denigrating her, could have a significant impact psychologically on the child. This is in the context where the Mother’s actions have already had a significant psychological impact and a likely need for the child to have ongoing therapy.
I am, however, of the view that the maternal grandparents have a very loving relationship with the child and, along with the Mother’s extended family, would support the Mother in providing for the child’s emotional and other needs. At present, the child attends before-school care every day and after-school care on some days. The Mother would appear to be in a better position to care for the child before and after school than the Father.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child appears to have been a relatively unscathed by the lifestyle choices made by the Mother up until the time of the death of
Mr P. Over a short period of time in 2012, the child was then exposed to some fairly traumatic experiences. I am satisfied that the Mother has made a deliberate decision to put that lifestyle behind her and to change her life for the better.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Section 60CC(3)(h) is not relevant to these proceedings.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both parents have shown a positive attitude towards their responsibility as parents. Even at a very difficult time in her life, the Mother showed sufficient insight to extract herself from an abusive situation and to remove the child from that situation as well. At a time when she thought that she wished to end her life, she made sure that the child was safe before taking the actions she did. I am also satisfied that the Father, when faced with the necessity to have the child in his
full-time care, did his best to rise to the occasion, and clearly the child has not suffered from being in his care.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
On her own admission, the Mother exposed the child to the abusive behaviour of Mr H over a period of about four weeks in August/September 2012. It is not known whether the child was exposed to any abusive behaviour in the home of the Father while he was living with Ms R. It would appear, from his own evidence, that, despite living with Ms R on and off over a number of years, he did not have a very high opinion of her.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
The Father obtained an intervention order on his own behalf and that of the child against the Mother while she was undertaking rehabilitation. It would appear, from the evidence, that the Father’s motivation for seeking the order was not an on-going concern about the child being exposed by the Mother to some form of violence, but his worry that members of the Mother’s family were telling the child things which he did not want her to hear. Effectively, the Father used the application as a way of preventing the Mother from seeing the child for a period of months. I do not find his resort to this action, or his reasons to doing so, to be acceptable. It is certainly not a matter that should be held against the Mother.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is generally preferable, in my view, to make orders that are least likely to result in further proceedings in relation to a child. In this case, it is of concern to me that the Father has been prepared to take unilateral action against the Mother and, in doing so, to breach orders of the Court. While the Mother may have been in breach of the existing orders at the time she took the child to the movies with Ms C, that did not give the Father licence to breach the orders himself by withholding the child. Further, the fact that the child was ill on a day that the Mother was due to spend time with her would not, in itself, give the Father the right to withhold the child.
It is important that, whatever orders the Court makes, the child is provided with stability and security and that, so far as it is possible, she feels free to love both of her parents equally. It is important that the child be able to speak positively about the other parent without that being undermined by the parent with whom she is living.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
I have given serious consideration in this matter to making orders which are not final. I am, however, satisfied that that would not be in the best interest of the child. While the Father and the ICL have urged me not to change the child’s living arrangements, I am not satisfied that it is in the child’s best interest to live permanently in her Father’s care. My main reason for forming this view is my concern at the Father’s lack of insight and his palpable antagonism towards the Mother.
I think that the issue concerning whether the parents should have dinner together with the child was an important test of both parents, their knowledge of the child and their insight into themselves. The Mother was most concerned about the impact on the child of seeing her parents together in such a circumstance, either because she may gain the wrong impression that they might be reunited, or because they would find it impossible not to end up in some sort of an argument. The Father, for his part in my view, suggested the outing because he felt that it would make him look better and that he would be seen to be making positive overtures towards the Mother.
I am satisfied that the Mother has made remarkable efforts to turn her life around and that she has shown considerable insight into herself and what she needs to do into the future. I believe that she loves the child and that she will make all possible efforts to keep the child safe and to re-establish the child’s trust in her. I am also satisfied that she can, and will, call on the assistance of her extended family to support her in ensuring that the child has safety and security in her life. While the ICL and the Father suggest that the Court should be cautious in having faith in the Mother’s capacity to remain drug-free and to avoid entanglements with unsuitable men, I am satisfied that the Mother has earned the right to be given that trust. I further believe that she has a far greater capacity than the Father to avoid making negative comments about the other parent in the child’s presence, or allowing others to do so.
I have a serious concern that, should the Father continue to be the primary caregiver for the child, he will be unable to help himself from exposing the child to the type of abusive and denigrating comments which he has shown himself to be capable of expressing with respect to the Mother. I am satisfied that this is likely to cause the child conflict and psychological harm if it is allowed to continue. While I am satisfied that the Father dearly loves the child, I am also satisfied that he is prepared to use her in his quite spiteful exchanges with the Mother. Should he be the main parental influence in the child’s life, it is conceivable that she may ultimately become alienated from her Mother.
For these reasons, I am satisfied that the orders of the Court should provide for a transition from the child living primarily with her Father to her living primarily with her Mother, and spending substantial and significant time with the Father.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 30 July 2014
Affidavits of Ms Suban filed 19 December 2012, 15 January 2013, 21 February 2013,
11 April 2013, 13 June 2013, 19 September 2013 and 30 January 2014.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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