CV and MD and HB
[2003] FMCAfam 266
•10 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CV & MD & HB | [2003] FMCAfam 266 |
| FAMILY LAW – Children – best interests – no preference for parents over other persons – family violence – risk of exposure to family violence assessed – mother unable to protect child from exposure to violence – child in the care of paternal aunt and uncle – drug and alcohol abuse impairs parents’ capacity to care for the child long term – separation of siblings – applicant aunt and uncle to have residence – mother to have block and other contact – father to have limited supervised contact – father to attend anger management and perpetrators of violence programs – aunt and uncle to have long term parental responsibility. |
Family Law Act 1975, ss.60, 62, 65, 68
Family Law Reform Act 1995
Evidence Act 1994
Storie v Storie (1945) 80 C.L.R 597 at 603
Lovell v Lovell (1950) 81 CLR 513
Morrison v Jenkins (1949) 80C.L.R 626 see for example Dixon J at 641
Gronow v Gronow (1979) 144 CLR 513
Braithwaite and Stocks Unreported 19 December 1991
Logie v The Department of Community Services Unreported 29 August 1991
In the Marriage of Drew and Drew: Lovett v Lovett (intervenor) (1993) FLC 92-360
Rice v Miller [1993] FLC 92-415
B v B [1997] FLC 92-755
Re Evelyn [1998] FLC 92-807 at p.24
Ws v Lombardo [2002] 26 Fam LR 382 at 405-6
JG and BG (1994) FLC 92-515
Patsalou & Patsalou (1995) FLC 92-580
M and M (1988) 166 CLR 69
A and A (1998) FLC 92-800
| Applicants: | CV LV |
| First Respondent: | MD |
| Second Respondent: | HB |
| File No: | PAM2779 of 2002 |
| Delivered on: | 10 July 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 17, 18, 19 December 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Snelling |
| Solicitors for the Applicant: | Lamrocks |
| Counsel for the First Respondent: | Mr G. Gersbach |
| Solicitors for the First Respondent: | Burston Cole & Co. |
| Counsel for the Second Respondent: | Mr M. Anderson |
| Solicitors for the Respondent: | Adams & Partners |
| Solicitor Advocate for the Child’s Representative: | Mr S. Hammond |
| Solicitors for the Child’s Representative: | Legal Aid Commission of NSW |
ORDERS
That all prior parenting orders are discharged.
That the child T born 11 July 1999 live with the applicants, CV and LV.
That the applicants shall have sole responsibility for making decisions concerning the child’s long term care, welfare and development.
Prior to implementing any significant changes relating to the child’s long term care, welfare and development, the applicants shall consult with the mother concerning the specific issue.
That the mother shall have contact with the child as follows:
(a)Until T starts school for one week in each of the short Queensland school holidays.
(b)Upon T starting school for one half or one week (whichever is the longer period) in each of the short NSW school holidays.
(c)During the 2003/2004 Christmas school holidays for two weeks at dates and times nominated by the mother no less than eight weeks in advance.
(d)Until T starts school in the event that the mother is in Sydney, from 12 noon Thursday until 12.00 noon the following Tuesday on one occasion in each calendar month. This order does not apply to months during which the child exercises contact to the mother in school holidays. In relation to this order the mother shall give the applicants no less than three weeks notice that she wishes to exercise this contact.
(e)Commencing 2004/2005 for four weeks during the Christmas school holidays starting on the first Sunday after school has finished in 2004/2005 and the first Saturday after Christmas in 2005/2006 alternating annually thereafter.
(f)Upon T starting school in the event that the mother is in Sydney she shall have weekend contact on one occasion in each calendar month. This contact will start at 4.00 pm after school on Friday and conclude at the start of school Monday. In the event that this contact coincides with a long weekend it will extend to include the public holiday. This order does not apply to months during which the child exercises contact to the mother in school holidays. In relation to this order the mother shall give the applicants no less than three weeks notice that she wishes to exercise this contact.
(g)In addition to the contact ordered above, should the mother wish to participate in any activity at the child’s school she may do so. She must advise the applicants in advance if she intends to attend a school based parent’s activity.
(h)By telephone at any reasonable time, but no more frequently than twice each week. and
(i)At other times as agreed between the applicants and the mother.
That the father shall have contact to the child as follows:
(a)For one day each fortnight;
(b)Upon condition that the contact is supervised by either of the applicants or the paternal grandmother.
The father’s contact is suspended during any periods that the mother has contact to the child.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 12.00 noon.
(b)SHALL conclude at 12.00 noon.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
That the father is restrained from approaching the mother or coming within one kilometre of her home. This is an order for the personal protection of the mother.
That the father’s contact ordered in Order 6 of these orders is conditional upon him starting a perpetrators of domestic violence program within eight weeks of the date of these orders. Unless he does so, he shall have contact to the child no more frequently than one day each month which contact is to be exercised at the home of the applicants under their supervision.
The mother and the father are both restrained from taking any drugs or consuming alcohol within twenty-four hours of the start of contact and during contact. In the event that either party breaches this order the applicants are at liberty to suspend contact and retrieve the child. This is an order for the personal protection of the child.
That for the purposes of contact exercised in Sydney the mother shall collect the child from the applicants’ home at the start of contract and return her to the same place at the end of contact.
That for the purposes of holiday contact the applicants’ shall deliver the child to the mother at an agreed half way point. The mother shall return the child to the applicants’ at the same place at the end of contact. In the event that the parties are unable to agree on a contact changeover point it shall be Coffs Harbour.
That the mother is entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the applicants shall immediately notify the mother of the names and contact details of any relevant education, health or welfare professional and keep her so informed.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2779 of 2002
| CV and LV |
Applicants
And
| MD |
First Respondent
And
| HB |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings relate to residence, contact and other parenting orders. They concern T born 11 July 1999.
The Applications
CV and LV (“the applicants”) initiated these proceedings when they filed an application for final orders at Penrith Local Court on 13 June 2002. In essence, they sought orders for interim and final residence of T. She is their niece. Because they did not know where the father was an order was made on 20 June 2002 dispensing with service of their application on him. That same day an order was made for substituted service upon the mother that required the applicants to post their application to her last known address in Queensland.
At trial the applicants proposed that the mother have supervised contact to the child. Mrs CV proposed that the father have unsupervised contact, whilst Mr LV considered that the father’s contact should be supervised.
Because of the multiplicity of parties there was some confusion about who was the moving party. Thus the applicants filed a response on
9 August 2002. It sets out the orders sought by them at trial. They are as follows:
1.That the child T born 11 July 1999 reside with the respondent aunt and uncle CV and LV.
2.That the respondent aunt and uncle shall be responsible for making decisions affecting the child’s care, welfare and development.
3.That the applicant mother shall have contact with the child supervised by CV, LV or J and P at times as agreed between the parties.
MD filed an application in the Federal Magistrates Court on 24 July 2002. It sets out the orders sought by her. They are as follows:
1.That the orders made in the Local Court in Penrith on 20 June 2002 are hereby revoked.
2. That the child T born 11 July 1999 aged 3 years shall reside with the applicant mother.
3.That the applicant mother will be solely responsible for making decisions affecting the child’s long term care, welfare and development.
4.That the applicant mother and the first respondent shall be responsible for making decisions affecting the child’s day to day care, welfare and development whilst the child is in their respective care.
5.That the child shall have reasonable and liberal contact with the first respondents at times as agreed between the parties.
6.That the first respondent shall have reasonable and liberal telephone contact with the child
In her affidavit she identifies in greater detail the orders sought concerning contact. These are set out below:
“I am seeking an order that T have contact with CV and LV at the following times:
(a)For all of the short Queensland school holiday periods and for at least three weeks during the Christmas school holidays.
(b)At any time when CV and LV are in Brisbane provided that I receive at least 48 hours notice.
(c)As otherwise agree between C and L and myself.
(d)That we each will give each other at least 48 hours notice in the event that either CV or myself cannot exercise contact.
In the event that I am not successful in obtaining a residence order, I seek orders for contact with T as follows:
(a)For all of the short Queensland school holiday periods.
(b)For the first four (4) weeks during the Queensland Christmas school holiday period and, upon T starting school, for the first four (4) weeks of the New South Wales Christmas school holidays.
(c)That until T commences school, for not less than one (1) period during the Queensland school term from 12 noon Thursday until 12 noon on the following Tuesday.
(d)At any time when I am in Sydney for a period of not less than 72 hours and I shall give CV and LV at least 48 hours notice of my intention to exercise contact.
(e)Telephone contact each Monday, Wednesday and Friday between 5.00 pm and 6.00 pm.
(f)And as otherwise agreed between CV, LV and myself.
HB (“the father”) joined the proceedings late. He prepared, but did not file a response. It was made an exhibit[1]. It sets out the orders sought by him. They are as follows:
[1] Exhibit A
1. That the father and L and CV have joint responsibility for making decisions concerning the long term care, welfare, development and control of the child the subject of these proceedings.
2. That the child reside with the applicants.
3. That the children have contact with the father as follows:
(a) From 5pm Friday until 5pm Sunday in each alternate week.
(b) One half of all New South Wales school holiday periods as agreed between the parties, and in the event the parties do not agree on school holiday contact, then for the first half in years ending in an even number and the second half in years ending in an odd number.
(c) On Father’s Day in each year from 6pm the Saturday immediately preceding Father’s Day until 6pm on Father’s Day and in the event that Mother’s Day falls during a contact period when the children would otherwise be with the husband/father contact shall conclude at 6.00pm on the Saturday night immediately preceding Mother’s Day.
(d) At such other times as may be agreed between the parties.
4. School holiday contact –
(i)Shall commence at 10am.
(ii)Shall conclude at 6pm
(iii)Shall be calculated from the day after the last day of school until and including the day immediately before school resumes.
(iv)Pupil free days are deemed to be school holidays.
(v)Contact pursuant to orders 3(a) herein shall be suspended during school holiday periods.
(vi)That the father shall collect the child from the applicants at the commencement of contact and return the children to the applicants at the conclusion of contact.
5. That the applicants shall make arrangements at the children’s school as follows:
(a) That the father receive a coy of all school reports for the said subject children.
(b) That the father receive notification of all school activities that he may desire to attend.
(c) That the father be informed of parent/teacher nights and the school is informed that it is the father’s desire to attend such events.
(d) In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the father/mother be informed as soon as is practicable.
6. That in the event of a child suffering a medical condition or requiring medical attention while exercising residency or contact -
(a) The father is to be notified as soon as practicable.
(b) That the father be provided the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
(c) That the medical practitioner or medical facility be advised that the parents have access to the children’s medical records and the information contained within them upon request.
Short history
LV was born on 4 November 1964 and is 38 years old.
CV was born on 29 December 1965 and is 36 years old.
The mother was born on 19 September 1967 and is 35 years old. She and the father are first cousins. Their mothers are sisters. CV is her cousin.
The father was born on 29 April 1969 and is 32 years old. CV is his sister.
The mother and father commenced cohabitation on 19 September 1996 when the mother, accompanied by her three children I, W and J moved to Mudgee to live with HB. The mother and father’s relationship started about six weeks later.
Their daughter T was born on 11 July 1999.
In July 2001 the mother returned to Queensland leaving T in her father’s care.
Between August and October 2001 the father and T stayed with the mother on a number of occasions, the longest for about two weeks during September 2001.
The mother and father reconciled on 18 December 2001 and on
23 December 2001 collected T from the paternal grandparents.
On 14 February 2002 the father’s niece, MB, collected T from the mother and took her back to Sydney. T was placed into the care of her paternal grandmother. A short time later she returned to live with CV and LV where she has lived ever since.
The mother and father finally separated in February 2002.
Current orders
On 20 June 2002 ex parte interim orders were made at Penrith Local Court. These orders are set out below:
1.That the child T born 11 July 1999 reside with the applicants (Mr and Mrs V).
2.That the court dispenses with the service of this application upon the respondent HB at this time.
3.That substituted service be granted on the respondent MD by posting the application dated 13 June 2002 by pre paid mail to her at 51 Harden Street, Acacia Ridge, Queensland.
4.That the proceedings are adjourned to 18 July 2002.
On 18 July 2002 the proceedings were transferred to the Family Court of Australia. They were transferred from the Family Court of Australia to the Federal Magistrates Court on 2 August 2002.
On 9 August 2002 interim contact orders were made. They are set out below:
IT IS ORDERED PENDING FURTHER ORDER:
1. That M D have contact to the child T born 11 July 1999 as follows:
1(a) 24 August 2002 from 9.00am to 5.00pm;
(b) 25 August 2002 from 10.00am to 2.00pm;
(c) 30 September 2002 and 1 October 2002 from 11.00am to 4.00pm;
(d) 2 and 3 October 2002 from 9.00am to 12 noon;
(e) 18 October 2002 from 9.00am to 5.00pm;
(f) 19 October 2002 from 10.00am to 2.00pm;
(g) 15 November 2002 from 9.00am to 5.00pm;
(h) 16 November 2002 from 10.00am to 2.00pm;
(i) 16 – 19 December 2002 from 9.00am to 5.00pm;
2. That the contact shall be supervised by J and if J is not available then Ms U shall supervise.
3. Mr and Mrs V are restrained from allowing the said child to be alone with HB.
4. HB is restrained from removing the said child from the care of Mr and Mrs V or any other person they ask to care for the said child. This is an order for the personal protection of the child. The provisions of section 68B(c) apply and HB can be arrested without warrant if a police officer is satisfied this order has been breached.
5. That MD is restrained from consuming alcohol or any non-prescribed medication for twelve hours prior to the commencement of contact and during contact.
6. That pursuant to Section 68L of the Family Law Act 1975 that the said child be separately represented and I request that the Legal Aid Commission provide that representation.
The evidence
The applicant aunt and uncle relied on the following:
·Affidavit of CV sworn 28 November 2002 and her oral testimony.
·Affidavit of LV sworn 28 November 2002 and his oral testimony.
·Affidavit of RB (paternal grandmother) sworn 28 November 2002 and her oral testimony.
·Affidavit of MB sworn 28 November 2002 and her oral testimony.
·Affidavit of J sworn 28 November 2002 and her oral testimony.
The respondent mother relied upon:
·Her affidavit sworn 4 December 2002 and her oral testimony.
·Affidavit of SM sworn 4 December 2002 and her oral testimony.
·Affidavit of CGJ sworn 18 December 2002 and his oral testimony.
·Oral testimony of GW which was taken by telephone.
The respondent father relied upon his affidavit sworn 12 December 2002 and his oral testimony.
Pursuant to s62G(2) a family report was ordered on 6 September 2002. Court counsellor JL conducted the interviews for preparation of the report on 12 November 2002 in relation to Mr and Mrs V and T, on 15 November 2002 in relation to the mother and T and a telephone interview with Mr B on
21 November 2002. Because Mr B did not attend his appointment in person the court counsellor was unable to observe the child’s interaction with her father. At the court’s request, the court counsellor helpfully made himself available to observe and assess the child with her father during the afternoon of the second day of the hearing. The court counsellor’s report is dated 25 November 2002. It became an exhibit in the proceedings[2]. Mr JL gave oral evidence, reporting initially on his observation of the father and child and was cross-examined. He made the following recommendations:
“Mr and Mrs V impressed as concerned and capable people able to provide T with appropriate parenting. Likewise, Ms D demonstrated the capacity to meet the child’s needs. However, if Ms D is found by the court to be continuing with substance abuse and prone to violence, or to associate with violent men, then Mr and Mrs V emerged as appropriate alternate carers for T. However, this assessment indicates that if Ms D is drug free and able to conduct her life without exposure to violence, and if the child’s father is not a care option, then alternate care for T is not required. The child would be more appropriately placed with her natural mother.
Given T’s history of exposure to violence and residential instability, an assessment of her emotional state, followed by appropriate therapy is indicated, following the determination of this matter.[3]”
[2] Exhibit B
[3] Exhibit B paragraphs 37 and 38
Documents were tendered that became exhibits.
The applicants’ proposals and current circumstances
CV and LV have been married for eighteen years. They have three children. E who was born on 25 February 1986, K who was born on 3 June 1988 and A who was born on 15 May 1991. Together with their three children and T they live at X. E and A share a bedroom, K and T share a bedroom and the applicants have the third bedroom. E has completed school and is about to start an apprenticeship. All parties agree that the three children are happy and well adjusted children. Neither of the applicants is in paid employment. Mr LV last worked about four years ago. He suffered a back injury as a consequence of which both applicants receive a disability pension. Mr LV’s back injury limits his capacity to remain seated for long periods. It does not interfere with his physical capacity to care for T.
When T was about 6 months old her parents asked the applicants to take care of her while they undertook counselling and tried to work their relationship out. The applicants considered this a temporary arrangement and encouraged the respondents to have regular contact with their daughter. For the first six weeks that she lived with them the respondents did not see T. Mrs V forced the issue and established a pattern of weekend contact, whereby she delivered T to her parents each Friday and collected her again on Sunday. Although encouraged by an officer of the Department of Community Services to make an application that they have custody of T, the applicants did not do so. Thus, when she was about 12 months old, upon her parents’ request, they returned T. Thereafter, T lived in either of her paternal grandparents’ care, her parents’ care or the applicants’ care. She stayed with the applicants for periods from one to three weeks, as well as shorter periods when either the respondents or Mrs RB asked them to care for the child.
There were no long periods when the applicants did not have contact with or actual care of T. They took care of T during mid 2001 and have cared for her continuously since February 2002. They have enrolled T in preschool, which she attends two days each week. Since she has been attending preschool T’s speech has improved and she is generally a more settled child than she was when she returned to their care in February 2002. Because they were concerned that T had a violent imaginary friend, Mrs V arranged counselling for her through Dalmar. The counsellor discontinued counselling after the first appointment. Later they sought assistance from a local clinic in relation to aspects of T’s care.
Other than one or two occasions when there has been a misunderstanding as to when contact should occur, the applicants have complied with the contact orders made in the mother’s favour. Both applicants have a comfortable relationship with the father and facilitate regular and easy contact between the child and her father. This contact is predominantly exercised in their home or at the paternal grandparent’s home.
The mother’s proposals and circumstances
The mother and father are first cousins. Other than her sister, SM, the mother has little contact with members of her family and for many years has relied upon the father, his sister and Mrs B for support. As a child her stepfather JK sexually abused her and her siblings. He was convicted on 24 February 1978 of five counts of sexual assault of these children. The mother was sexually assaulted by her stepfather from when she was 7 years old until she was about 13 years old. The consequences for these children and their family are horrendous. Her brother Frederick is a heroin addict. Her sister Y committed suicide. Her sisters Z and SM left home as soon as they could. They are both happily married. The mother received sexual assault counselling arranged for the children through the criminal justice system when they were young. It was brief and was insufficient to divert the mother from the self-destructive path she later pursued.
When she was 18 years old the mother fell pregnant. At 19 she married the child’s father, RJ. They have one child I who was born on 21 May 1986. They separated when I was about 18 months old. In total their relationship did not last three years. I lived with the mother until 2002 when he went to live with his father in Maryborough. The mother anticipated that I might return to live with her sometime during the 2002/2003 Christmas school holidays.
When I was about 7 years old the mother commenced a relationship with QD. This relationship continued for five or six years. QD is the father of her children, W who was born on 17 February 1994 and J who was born on 17 August 1995. Without Mr D’s prior consent, upon their separation in September 1996, the mother left Queensland and moved to Mudgee. Because she took the children with her when she moved to New South Wales, I, W and J did not see their fathers again until July 1999. In July 2001 QD filed an application in the Family Court of Australia at Brisbane that he have residence of W and J. This was because he was concerned about the mother’s capacity to care for the children whilst she lived in New South Wales with H B. The mother’s sister, SM, supported QD’s application. The mother left the father and in July 2001 returned to Queensland with I, W and J. Although she denies it, I am satisfied that one of the main reasons she left was her concern that she may lose her children to their father. When she departed the mother left T with her father.
On 22 August 2001 she gave an undertaking without admissions to the Family Court of Australia in the proceedings with Mr D in the following terms:
1.Not to consume or be affected by illegal drugs whilst the children are in my care.
2.Not to consume alcohol to excess or be adversely affected by alcohol whilst the children are in my care.
3.Not to leave the children in the care of a person under the influence of alcohol or illegal drugs.
4.To notify the father at leats seven days prior to any change of residence of my new address.
5.To notify the father forthwith of any change of my telephone number.
6.To attend upon a qualified drug and alcohol counsellor and undertake such counselling and treatment as recommend by the counsellor and provide to the father upon request information from time to time concerning same.
7.Not to expose the children to domestic violence.[4]
[4] Exhibit K
After a defended hearing on 11 February 2002 Federal Magistrate Baumann ordered that the children live with the mother and have contact with their father. The orders made are as follows:
1.UPON the undertaking of the FATHER without admission:
a)not to consume or to be affected by illegal drugs whilst the children are in my care;
b)not to consume alcohol to excess or be adversely affected by alcohol whilst the children are in my care;
c)not to leave the children in the care of a person under the influence of alcohol or illegal drugs;
d)to notify the mother at least seven (7) days prior to any change of residence of my new address;
e)to attend upon a qualified drug and alcohol counsellor and undertake such counselling and treatment as recommended by the counsellor and to provide to the mother upon request information from time to time concerning same;
f)not to expose the children to domestic violence
2. AND UPON the undertaking of the MOTHER without admission:
a) not to consume or to be affected by illegal drugs whilst the children are in my care;
b) not to consume alcohol to excess or be adversely affected by alcohol whilst the children are in my care;
c) not to leave the children in the care of a person under the influence of alcohol or illegal drugs;
d) to notify the mother at least seven (7) days prior to any change of residence of my new address;
e) to attend upon a qualified drug and alcohol counsellor and undertake such counselling and treatment as recommended by the counsellor and to provide to the mother upon request information from time to time concerning same;
f) not to expose the children to domestic violence
IT IS ORDERED:
1.That the parties have joint parental responsibility for the long term care, welfare and development of the children W D born 17th February, 1994 and J D born 18th August, 1995 (hereafter “the children”);
2.That each party have sole responsibility for the short term care, welfare and development of the children when the children are in that party’s care;
3.That the children live with the MOTHER;
4.That the children have contact with the FATHER at all times as agreed in writing between the parties including but not limited to:-
(a) from 11.00am Saturday 18 August 2001 to 5.00pm Sunday 19th August 2001;
(b) from after school Friday 24 August 2001 to commencement of school Monday 27 August 2001 provided that if the FATHER cannot deliver the children to school on the Monday he will notify the MOTHER in the morning of the preceding Sunday and deliver the children to the MOTHER at 5.00pm on the preceding Sunday;
(c) from 31 August 2001 after school to 3 September 2001 provided that if the FATHER cannot deliver to school on Monday 3 September 2001 he will notify the MOTHER in the morning of the preceding Sunday and deliver the children to the mother at 5.00pm on the preceding Sunday;
(d) from 14 September 2001 to 17 September 2001 provided that if the father cannot deliver the children to school on the Monday he will notify the MOTHER in the morning of the preceding Sunday and deliver the children to the mother at 5.00pm on the preceding Sunday;
(e) from after school Friday 19 October 2001 to commencement of school on Monday 22 October and each alternative weekend thereafter at the same times provided that if the FATHER cannot deliver the children to school on the Monday he will notify the MOTHER in the morning of the preceding Sunday and deliver the children to the mother at 5.00pm on the preceding Sunday
(f) for half of the school holiday periods each year being the second half of the school holiday periods commencing in 2001 and each alternate year thereafter at the same times and for the first half of school holiday periods commencing in 2001 and each alternate year thereafter at the same times;
(g) on Father’s Day each year from 9.00am to 5.00pm
(h) for half of each child’s birthday each year commencing 2002 provided that if any birthday falls on a school day on any occasion for two(2) hours after school on that occasion;
(i) from 9.00am Christmas Day to 3.00pm Christmas Day 2001 and each alternate year thereafter at the same times and from 3.00pm Christmas Day to Boxing Day 2002 and each alternate year thereafter at the same times;
(j) by telephone each week between 5.00pm and 5.30pm on Tuesdays and Thursdays with the FATHER to initiate the call provided that if telephone contact is not established between those times then between 7.00pm and 7.30pm on the same evening;
(k) on public holidays such that if declared public holiday occurs either the day before or the day after any contact occasion then the contact time will be extended to accommodate the public holiday within the contact occasion.
3. The children will have contact with the MOTHER on Mother’s Day each year from 9.00am to 5.00pm.
4. That pursuant to Section 62F(2) of the Family Law Act, the parties attend a conference or conferences with a Counsellor nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia to take place at Relationship Australia, Spring Hill at a time to be nominated for the purpose of discussing the welfare of the children W born 17 February 1994 and J born 18 August 1995.
5. Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and Annexure B to these orders.
She has complied with the contact orders and W and J have contact to their father in accordance with Federal Magistrate Baumann’s orders.
Since she has lived in Queensland the applicant has lived in two houses. Currently she lives in a safe house that she organised through the Department of Housing. During final addresses her counsel advised that she intended to change house again. That is because she believes, as a consequence of information contained in her affidavit, the father would be able to locate her. I do not know whether this change in residence will require W and J to change schools. The mother plans to continue to reside in Queensland I infer reasonably close to her sister and QD. She is close to her sister and presently relies upon her for personal support. The mother receives a supporting parents benefit of approximately $360 per week as well as child support of $20 per month. She is available to care for all of her children on a full time basis. Earlier this year she met her current partner, Q CGJ. He is 29 years old. Mr CGJ is a house painter who until recently lived with his father. As their relationship developed he stayed overnight at the mother’s home, usually two or three nights a week. A few weeks prior to the start of the hearing he moved in to her home. In the event that T comes to live with her, Mr CGJ will move out and live with SM for about six months. On 27 November 2002 on medical advice the mother aborted the child she was carrying by Mr CGJ.
The father’s circumstances and proposals
Presently, the father lives with his parents at XX. He is unemployed. His relationship with the mother is the most significant and long lasting relationship he has had with any partner. Since his late teens he has had many short term relationships. He admits that he was addicted to amphetamines and marijuana and frequently used these drugs during cohabitation. After the parties finally separated he returned to New South Wales and then lost contact with his family. He was motivated to try and address his drug and alcohol abuse. None of his family was appraised of his whereabouts. He returned to Queensland on 16 September 2002 and voluntarily attended Roma Street Police Station. He was motivated to address an outstanding charge for failing to appear in a Queensland Magistrates Court in May 2002.
After final separation the father remained for two and a half weeks, living with the mother’s next door neighbours. He then moved to the mother’s nephew’s home at Forest Lakes where he stayed for a few days. Once he returned to New South Wales, he spent a few days with his parents. Next he went to J and P’s home, returning shortly thereafter to his parents and then moved to Llandilo. After a violent altercation with his niece MB he returned to his parents. The father had planned to then leave for Melbourne. However, on his way he met a woman who he then went with to Bathurst. That liaison lasted a few weeks and he returned to his parents’ home apparently never having made it to Melbourne.
The father loves T and wants her to live with the applicants. He has never believed that he or the mother was able to meet T’s needs in the long term, an opinion he still holds. Irrespective of the outcome of these proceedings, he says he will complete an anger management program as well as a program for perpetrators of domestic violence. Although he opposes supervised contact, he agrees that either of the applicants or his parents are appropriate supervisors should the court order it.
Credit
This is one of those unusual matters in which it is necessary and proper to make credit findings. The father’s evidence in a number of material respects was unsatisfactory, not as a consequence of inadvertence, but rather because he deliberately attempted to mislead the court. His evidence conflicted with that given by a number of witnesses. It is not my usual practice to place significant weight upon a litigant’s demeanour when assessing credit. That is because the court environment itself can be unsettling and the court does not necessarily have an intuitive capacity to assess whether a person appears uncomfortable because they are lying or in response to the environment itself. Occasionally, a person’s behaviour and evidence is so unsatisfactory that the only proper conclusion is that the behaviour is deliberate.
The father entered and left the courtroom as and when it suited him. He did so irrespective of the significance of the evidence being taken. When he gave evidence alleging that he had arrived home and found the mother on their bed with his dog, clearly intending to imply improper behaviour on her part, he was grinning and appeared delighted by an opportunity to say something about her that was appalling. If true I would have expected that he would demonstrate some sign of distress or at least apparently acknowledge the seriousness of the allegation. Rather he thought it hilarious. He also thought it was amusing to speak of “wiping his arse” when answering questions from the mother’s counsel. He denied that he was violent to women, but was forced to concede that he violently assaulted his niece MB in October 2002. Whilst he indicated he had fewer qualms about hitting a man, only when he pressed did he concede head butting a police officer. He denied threatening the mother’s sister SM. SM was an impressive witness, all counsel agreed that she was the witness with the greatest integrity. She said “On three separate occasions between September 2001 and February 2002 H said to me words to the effect of ‘you’d better watch your back, you and you’re fucking family”[5]. I accept her evidence and am comfortably satisfied that his denial was a deliberate lie.
[5] Paragraph 11 affidavit filed 5 December 2002
I am satisfied that the father’s evidence was unsatisfactory in many respects. Insofar as it related to the mother he attempted to mislead the court often. He made little attempt to give credible evidence and generally treated the process and his obligation to tell the truth with disdain. Unless I otherwise identify in the reasons a preference for his evidence, where there is a conflict between his evidence and the evidence given by other witnesses, I prefer the other witnesses.
The issues
The primary issues are these:
·The nature and extent of family violence between the mother and the father.
·Whether the mother has the capacity to protect T from exposure from domestic violence in the future.
·The nature and extent of the mother and father’s drug and alcohol abuse.
·The effect of removing the child from her aunt and uncle.
·The effect on the child’s relationship with her half siblings if she does not live with her mother.
·The mother’s capacity to meet the child’s physical and emotional needs.
·Whether the father has the capacity to meet the child’s physical and emotional needs during contact.
·The applicants’ capacity to promote the child’s relationship with mother.
·The applicants’ capacity to limit the child’s contact with the father if the court is satisfied his contact should be supervised.
·Whether in the whole of the circumstances the mother’s contact should be supervised.
Relevant law
The question of whether there is a presumption in favour of natural parents in residence (formerly custody) disputes has been addressed in numerous cases. Many early cases supported the view that in a custody dispute between a natural parent and a non-parent, the natural parent is preferred. In Storie v Storie[6] the High Court, per Latham CJ said, “prima facie the welfare of the child demands that a parent who is in a position, not only to exercise parental rights, but also to perform parental duties, should have the custody of the child as against a stranger. The fact that a stranger can also provide as good (or even, I should say, a better home is in the circumstances an element of only slight, if any weight”.
[6] Storie v Storie (1945) 80 C.L.R 597 at 603
This statement was grounded upon the idea that considerations other than the child’s welfare could be relied upon when making a parenting order. This position was maintained in Lovell v Lovell[7] when the High Court emphasised that the welfare of the child is not the only consideration and cannot “elbow out all other considerations”.[8] According to this view there must be other considerations, besides the welfare of the child, that need consideration in custody proceedings. Latham CJ concluded that these other considerations could exist as independent determinants and rejected the idea that other considerations were relevant only to the extent that they were linked to the child’s welfare. The gist of this argument is that “exclusive attention to the welfare of the child would allow rich men to adopt children against the will of poor parents”[9]. See also Morrison v Jenkins.[10]
[7] Lovell v Lovell (1950) 81 CLR 513
[8] Lovell v Lovell. Ibid
[9] Lovell v Lovell. Ibid
[10] Morrison v Jenkins (1949) 80C.L.R 626 see for example Dixon J at 641.
Storie v Storie[11] and Morrison v Jenkins[12] were displaced by the High Court in Gronow v Gronow.[13]In Gronow v Gronow the court impliedly rejected recourse to any ‘presumptions’ in residence or similar proceedings relating to children “… even in a community of unchanging social conditions, hard and fast rules or presumptions, based only upon matters of common but invariable experience, provide a poor basis for the assessment of human behaviour compared with detailed investigation of the individuals in question. In times of rapid social change their inadequacy will be greater”.[14]
[11] Storie v Storie. Supra n.6
[12] Morrison v Jenkins Supra n.10
[13] Gronow v Gronow (1979) 144 CLR 513
[14] Gronow v Gronow. Id at 522-24
In cases decided later one sees a growing body of jurisprudence supporting a preference for natural parents in custody cases. Numerous cases appear to have been decided upon the basis of a presumption that children have a prima facie right to be raised by their parents. See Braithwaite and Stocks[15], Logie v The Department of Community Services[16] and In the Marriage of Drew and Drew: Lovett v Lovett (intervenor)[17].
[15] Braithwaite and Stocks Unreported 19 December 1991
[16]Logie v The Department of Community Services Unreported 29 August 1991
[17] In the Marriage of Drew and Drew: Lovett v Lovett (intervenor) (1993) FLC 92-360
However, in Rice v Miller[18] the Full Court of the Family Court made it clear that custody disputes between a natural parent and a non-parent for a child, must be decided solely on the basis of the child’s best interests. The court must not apply any “presumption in favour of the natural parent” when determining custody or similar matters. The Full Court firmly stated that there is no preferred position of parenthood “it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural parent is to be “preferred”, or to have recourse to a “presumption” that the welfare of a child will best be served by an order in favour of a natural parent.”[19]
[18]Rice v Miller [1993] FLC 92-415
[19] Rice v Miller. Ibid
The Full Court upheld the trial judge’s decision that “the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour if the natural parent from which the court commences its decision making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved.”[20]
[20] Rice v Miller. Id per Lindenmeyer J at 80,343
From this decision it was made clear that it was the court’s duty to arrive at a decision which is in the overall best interests of the child. Thus each case must be determined on its own facts with the welfare (now the best interests) of the child being the paramount consideration.
What effect, if any, has the Family Law Reform Act 1995 had on the decision in Rice v Miller? Part VII was substantially reframed. It made use of new concepts of residence, contact and parental responsibility with the aim of eliminating the idea that in contested child proceedings there were winners and losers, which many commentators suggested, carried the implication that parents had proprietary rights in their children.[21]
[21] See Kennedy, I, “Family Law Reform Act 1995 – New Laws for Children” June (1996) Australian Family Lawyer (11)2 at 12
Section 65E conforms to the new language of the Family Law Reform Act and states that the court, in deciding whether to make a parenting order, must “regard the best interests of the child as the paramount consideration”. This provision replaced s.64(1)(a) of the Family Law Act 1975 which stated that in proceedings relating to custody, guardianship or welfare of, or access to, a child “the court must regard the child’s welfare as the paramount consideration”. The change from the term “welfare” in previous legislation, to the “best interests” of the child in s.65E, had no bearing on the interpretation of the provision. Its purpose was to bring the Family Law Act in line with the United Nations Convention on the Rights of the Child. Accordingly, the interests of the child should be interpreted to mean the same as welfare, that is, in its broadest sense.
Section 60B sets out the objects of Part VII and the principles that underline these objects. Section 60B(2)(a) is as follows “children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.”
Clearly sub-paragraph 2(a) emphasises the ‘right’ of a child to ‘know’ and to be ‘cared’ for by both parents, regardless of whether they are together or separated. The question is whether in affording children this right, it has changed the position laid down in Rice v Miller. That is, whether the objects section and therefore a child’s right to know and be cared for by a parent should be given predominance over the principle that the child’s interests is the paramount consideration.
This issue was resolved in B v B: Family Law Reform Act[22]. It was argued that the objects section is to be given predominance over the ‘paramountcy’ of the ‘best interest’ principle in s.65E. Writing ex judicially, Nygh supported this view arguing that a hierarchical approach to relocation cases should be taken.[23] This would mean that s.65E must be set against or read down in light of the s.60B objects. Accordingly, the court must first consider the rights in s.60B, secondly the best interest principle and finally apply s.68F.[24] This argument is compatible with the view that in making a parenting order under s.65E, considerations other than that of the interests of the child can be considered.
[22] B v B [1997] FLC 92-755
[23] See Nygh, P. "B & B: Family Law Reform Act 1995" (1997) Australian Journal of Family Law(11)
[24] Young, L. "Are Primary Residence Parents as Free to Move as Custodial Parents Were?" (1996) Australian Family Lawyer (11) 3 p33.
The Full Court rejected this argument. It determined that ss.60B(2) and 68F are subject to the child's best interests. According to B v B: Family Law Reform Act 1995[25] the best interests of the child, in proceedings under Part VII is the paramount or pre-eminent consideration “all other considerations are subservient to that”. This represents the current law. It was confirmed in B v B that “a court which is determining issues under Part VII of the type which we have referred, starts from that essential premise and it remains the final determinant”[26]. It would therefore seem, that whilst children have a right to be “cared for” by both parents, this must be subject to the child’s best interests, and hence the Family Law Reform Act has had no effect on the principle laid down in Rice v Miller.[27]
[25] B v B. Supra n.22.
[26] B v B. Supra n.22 at 9.51
[27] Rice v Miller. Supra n.18
Importantly, the Full Court stated that in parenting proceedings no questions of a ‘presumption or onus’ arises, “the Act contemplates individual justice … any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof”.[28]
[28] B v B. Supra n.22 at 9.59
It is therefore apparent that there continues to be no presumptions or preferences in favour of a natural parent in a residence dispute as against a stranger or blood relative. Other significant post Family Law Reform Act decisions support this view. For example, Re Evelyn [1998] FLC 92-807. There the Full Court decided: “there is no presumption in favour of a biological parent nor any presumption of the biological mother where the child is female.”[29]
[29] Re Evelyn [1998] FLC 92-807 at p24
So too in Williams v Lombardo [2002] 26 Fam LR 382 the Full Court stated: “there is no presumption (in relation to residence issues) in favour of a natural parent. Each case must be decided upon its facts, according the (sic) child’s best interests. While the fact of parenthood is an important and significant factor in considering which proposal best advances a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent.”[30]
[30] Ws v Lombardo [2002] 26 Fam LR 382 at 405-6
Section 68F(2) – Determining the bests interests of the children
The child’s wishes, maturity, sex and background
T is nearly 4 years old. Whilst all parties claim that T is closely attached to them none suggested that there is cogent evidence about T’s wishes. Given her age and numerous changes in carer this is not surprising. All parties gave evidence concerning statements attributed to T in which she expresses affection for each of the parties, the applicants’ children and her half-siblings. When T saw the court counsellor she did not articulate a preference as to where or with whom she wanted to live. Or the arrangements that she wanted for contact. At not quite 4 years old, T does not have the life experiences to reach a mature and balanced decision concerning her future. I am satisfied that T does not have a clear wish as to residence or contact that could influence the outcome of these proceedings.
Nature of the child’s relationships
T’s first years of life have been unstable. This instability arose from numerous changes in where she lived and with whom. Until February 2002 she had never experienced consistent parenting in the sense of a clearly identified prime care giver or family environment. When T was born her parents were living together at XXX. T was born with an olive complexion, which prompted the father to initially deny paternity and to accuse the mother of sleeping with his friend, “black P”. Two days after the mother arrived home from hospital he assaulted her saying “T’s not mine”. When T was about 3 weeks old the mother signed an acknowledgment for Centrelink confirming that T lived with the father and that he was primarily responsible for her care. Whilst the precise nature of the document is unclear, it is widely regarded by both parties’ and their families as the mother formally relinquishing T to the father. From that point he had control of T.
A few weeks later the mother returned to Queensland using train tickets provided by her sister SM. She left T with the father. About three or four days after she arrived in Queensland the father arrived too. T was left behind in her paternal grandmother’s care. The parents stayed together at a friend’s place for about one week before returning to Sydney. When the parents returned to Sydney they took T back into their care. Between then and late December 1999 the parents placed T into the applicants’ care on several occasions for periods of up to one week. She was also put into her paternal grandmother’s care for short periods.
On 29 December 1999 the mother was taken by ambulance, accompanied by police, to Mt Druitt Hospital. The clinical notes[31] reveal that having been called to her home at XXX the ambulance officers waited until police arrived because the mother was drunk and aggressive. The ambulance workers were not prepared to approach her without police assistance. I accept that she was threatening to stab herself. When she arrived at the hospital she smelt strongly of alcohol and told Dr F that she had attempted to stab herself in her abdomen intending to kill herself. She refused to remain in hospital, insisting that she wanted to go home to her boyfriend (the father). Not surprisingly the parties received a visit from a district officer attached to the Department of Community Services (“DOCS”) a few days later. The DOCS officer took a detailed history from both the mother and the father. Both parents confirmed that the mother had responsibility for J and W and that the father cared for T. The mother told the officer that T was spending a lot of time in her paternal grandparent’s care. The officer took the opportunity to see the children with both parents and also T with her grandparents. The officer reported, “All children appeared happy with M and H. T was happy and bright when seeing her father as she had a big smile on her face and her body shook with happiness” and “T was seen while spending time with her paternal grandparents. T was a very clean, well looked after happy baby”.[32]The DOCS officer arranged for the mother to have her own Department of Housing home at O. Nonetheless, she allowed the father to move in with her.
[31] Exhibit D
[32] Exhibit I page 54
Shortly after the parents asked the applicants to take T for about three months. Apparently they planned to address their relationship difficulties and attend drug and alcohol counselling. The applicants agreed and in early January 2000 took T into their full time care. On 25 January 2000 the father signed a letter by which he intended to give joint custody to the applicants. Part of the letter said “T will be under their guardianship and live with them for her own safety and wellbeing”.[33] For the first six weeks neither parent made any attempt to see their daughter. Eventually Mrs V took matters into her own hands and contacted the mother saying “T is doing things and you are missing out on it.” Although she was initially reluctant to see T the applicant aunt persisted and made arrangements for the parents to take T for the weekend. The applicants took her to the parents’ home at 2.00pm Friday intending that she would remain with them until the Sunday evening. At 9.00pm that same day the mother rang and asked the applicants to collect T, which they did. Because their intent was to care for T only on a temporary basis the applicants were concerned to ensure that T maintained her attachment to her parents. Indeed they were more concerned about this than either of T’s parents. As far as the parents would allow they delivered T for contact most weekends. She rarely stayed the entire weekend and was usually returned before the applicants expected. At an interview at St Mary’s Community Health Centre on 3 April 2000 the mother reaffirmed the information provided to the district officer concerning T's care by others. During intake interviews at the same centre a few days later[34] the mother revealed that she had been bingeing on alcohol for the last 12-18 months and was using between 10-20 cones of marijuana a day.
[33] Annexure Affidavit C V
[34] Exhibit E
In her written and oral testimony the mother denied that T was so extensively in the applicants care. Yet when the same DOCS officer interviewed her on 1 May 2000, she said that T was living with the applicants. When asked how she felt that T was staying with her aunt the mother responded to the effect that part of her soul was missing, but said that she knew that this arrangement was best for T. Once again the district officer recommended that the mother undertake drug and alcohol counselling and offered domestic violence assistance. She encouraged the mother to give T’s needs priority as compared to the mother’s desire to continue her relationship with the father. At that time her sister SM tried to arrange for W and J to go to their father in Queensland for twelve months, an arrangement the mother resisted. The mother did, however, send I to stay with his father because of the child’s behavioural problems and drug use.
Having discovered that she was expecting a second child by the father the mother decided to terminate the pregnancy. The father did not want her to do so and attacked her during an argument on 16 May 2000. The police were called and after dealing with the domestic violence incident once again notified all children as “children at risk” to the Department of Community Services. The next day the same district officer interviewed the mother and father, saw the children and also interviewed the applicants. The mother and father confirmed that T was living with the applicants. In relation to the mother the district officer concluded, “There are issues of bonding and attachment with T. M has handed T over to H saying that it is his children [sic] and he is responsible for her. While together M will assist H with the physical care of T, but she appears to lack attachment”. In relation to the father the district officer concludes, “H does not appear to be able to handle the care of his daughter T on his own. Handing her over to his sister C and mother R for extended periods of time”. Both parents made it clear to the district officer that “H’s sister has been the primary carer for T since she has been born”.[35]
[35] Exhibit F page 5
When T was about 12 months old the applicants returned her to the parents. She then lived with her parents on and off until the mother went to Queensland on 22 July 2001. She lived with her paternal grandmother during September 2000, between mid-November 2000 and December 2000 with both parents and then late December 2000 with her father. This chaotic pattern continued throughout the first half of 2001. The paternal grandmother had a cot set up for T in her home and the applicants obtained a port-a-cot for the child’s use. Thus they were ready and able to take T whenever she was given to them.
When the mother decided to move to Queensland T was staying with the applicants. After the father joined the mother in Queensland the parents took T back into their care. Once again they separated and at the mother’s request T returned to her paternal grandmother. Because she needed to have surgery the grandmother was unable to keep T and in August 2001 the child returned to the applicants’ care. The father went to Queensland with T during September 2001 and the parties reconciled for about two weeks. Again when the parents separated again he returned to Sydney with her. Once again he went back to the mother arriving at her home on
17 October 2001. During a drinking session on 25 October 2001 the father said foul things to the mother which prompted her to warn him to stop abusing her or she would hit him. He laughed at her and the mother then punched him in the testicles. The argument continued the following morning with both parties abusing one another until the father poured beer over the mother and kicked her bed in. Eventually she managed to get out of the house, but the father grabbed her and carried her inside. The police arrived and the mother was taken to Goodna Police Station. Her middle two children were present throughout the incident. Although the police were prepared to charge the father, it does not appear that the mother cooperated and in the end the police took out a domestic violence application for her protection. The order was entered on 30 October 2001.
After the incident in October 2001 the father returned to New South Wales. The mother next saw T when the parties collected her on 23 December 2001 following their reconciliation on 18 December 2001. When the parents came to take her from her grandmother T hid behind Mrs B and refused to go to her parents. Nonetheless, they took her and she lived with her parents until their separation on 14 February 2002. Although she denies it I am satisfied that the mother telephoned the paternal grandmother and asked her to make arrangements to collect T. The grandmother complied and booked an airline ticket intending to travel to Brisbane to collect the child. Having made these arrangements she then received a telephone call from the father who told her that there was no hurry. Upon confirmation from the mother she cancelled her airline tickets. Two days later the grandmother received a telephone call from the mother in which she said, ‘Get her out of here.” The grandmother then arranged for her niece MB to drive to Brisbane and collect the child. Before she left for Brisbane MB telephoned both parents. When she spoke to the mother she said, “Do you want me to come up for T?” to which the mother replied “I want someone to pick her up. I want her gone.” The niece did as she was asked and accompanied by two of her friends, collected the child in mid-February 2002. In spite of the mother’s opinion that her niece and friends had been using amphetamines on the drive, she handed T over to them.
The mother did not see T again until 24 June 2002. Having been made aware of their application for parenting orders the mother then became involved in these proceedings. After interim orders were made on 9 August 2002 the mother commenced supervised contact on 24 August 2002. She has regularly travelled from Brisbane for the purpose of contact in accordance with the various sets of orders made.
An important part of the mother’s case is that in spite of their disrupted relationship she and T have a close and loving relationship. The mother strongly believes that T is securely attached to her and recognises her as her mother. I am satisfied that when the mother lived with T the mother used alcohol and marijuana to excess and was regularly heavily intoxicated. Until the parties separated in July 2001 T experienced her mother as erratic and unstable. The mother had good reason for her numerous separations from the father and for allowing T to be cared for by other members of the family. The parents’ relationship was violent and dysfunctional and the mother was unable to care for a baby. Not only because of the family violence, but also because she was frequently drunk and/or under the influence of drugs. From T’s point of view she was far less likely to have established a close and secure relationship with her mother than was desirable. During the first two year’s of T’s life the mother’s focus was much more substantially upon preserving her relationship with the father than it was on nurturing any relationship with T. It was only when she realised that she may lose T permanently to the applicants, that the mother started to put her relationship with T in proper focus, giving it reasonable priority in her life. I agree with the district officer’s opinion expressed in 2000 that the mother, in effect, had less attachment to T than she did to her other children. While I have no doubt that she allowed the father to take control of T partly because she was afraid of him, I am also satisfied that the mother did not form a close attachment to T and deprived T of the chance to do so with her. This is a factor to which I attach considerable weight.
Although understandable it is regrettable that the applicants did not heed the district officers advice and make a residence application when first advised to do so. Had they done so this child’s early years would have been far more stable than transpired. It is unlikely that T was securely attached to any individual in the sense that she had a clearly identified primary carer when her parents separated in February 2002. She was too young to understand why she moved from person to person and place to place. It is probable that having started to attach to the applicants her attachment was disrupted when she returned to her parents and grandmother. At least when with the applicants and her grandmother she was protected from violence and substance abuse. She would have experienced their early care as safe and reliable on a day by day basis. However it was also uncertain in the sense that she repeatedly left their care. Nonetheless her early life with them will have provided at least a safe and familiar family environment into which she could later settle without difficulty. To the extent that T had established an attachment to any person as at February 2002 I am satisfied that she had attached to the applicants.
When the court counsellor observed the mother and child together he saw a warm and happy interaction. He reported that T, “showed no indication of anxiety and remained confident and active. Ms D was instructive and warm with the child who appeared to be attached to her mother.”[36] The court counsellor concluded that T is at ease with her mother and that “her behaviour with her mother indicated attachment to her and security with her”. Against a background of impaired parenting and limited life together, I am not satisfied that the court counsellor’s brief observations of the child with her mother are sufficient basis to conclude that the child and the mother have a strong relationship in the sense that the child identifies her mother as her primary care giver and a person who provides stability. Rather, the observations indicate no more than that the child was happy to see her mother and in the safe counselling environment wanted to spend more time with her. Their interaction indicates that when the mother is sober, drug free and emotionally stable she is able to focus on the task at hand and interact with her daughter in an appropriate, child focussed manner.
[36] Exhibit B Page 12
T probably does not understand why she was placed again and again into the care of her father, paternal grandmother, aunt and uncle. From her point of view she probably experienced this as inexplicable rejection by her mother. Exposure to frequent family violence, drug and alcohol abuse will almost certainly have adversely impacted upon her relationship with her mother – perhaps in a fashion that is not yet clear. As must be apparent I do not accept that the mother and child enjoy a strong and secure relationship. It is more likely that it is confused, sometimes happy and loving and other times frightening and unstable.
The court counsellor’s observation of the child with her father was qualitatively consistent with her interaction with her mother. They played happily together and T appeared to relish her father’s company. Whilst T has lived more substantially with her father than she has with her mother, many of the findings I have made about her relationship with her mother apply with at least equal force to the father. He abused alcohol to great excess and to a far greater degree than the mother used drugs, particularly amphetamines. When she lived with her parents T’s experience of her father was of an angry man whom, when affected by drugs or alcohol, physically and verbally abused those around him. The many incidents outlined in the police reports, hospital notes, Department of Community Services records, as well as the parties’ evidence, leaves me with no doubt that T is highly likely to have witnessed loud arguments between her parents, smashing of furniture, screams from children and adults as well as the sounds of physical assaults that accompany this extreme violence. That is violence predominantly from her father to her mother, but also serious violence on occasion from her mother directed at her father. Just as the mother inexplicably disappeared out of her life on occasion, so did her father. Between February 2002 and August 2002 the child did not see her father. They saw one another briefly in August 2002 until he disappeared again. Between August and December 2002 no one in his family knew where he was and he made no attempt to maintain his relationship with T. Contact resumed shortly prior to the start of this hearing.
The father’s attachment to T is highly likely to be dysfunctional. The applicants and RB described T’s delight when she is with her father and claim she is strongly attached to him. While I accept their evidence that she does enjoy time with her father when he is sober, drug free and calm I am not satisfied that this is the true measure of their relationship. It is probable that only in an environment that is secure is T likely to feel comfortable and happy with her father. When he is drug affected, angry and violent it is almost certain that she is frightened and profoundly confused by him. T is used to him coming in and out of her life. It seems to me that while she may miss him when he departs if he has been around for a while, it is unlikely that she would feel any enduring sense of loss. Although they are able to play happily together I am not persuaded that their relationship is healthy or appropriate. Because I am satisfied that he is a violent man and an inappropriate role model, their relationship must be managed within careful constraints. This is a factor to which I give significant weight.
Since February 2002 the applicants have given T consistent and loving care. They have cared for her day in and day out, meeting her physical, emotional and intellectual needs to a more than adequate level. This is the longest period during which T has enjoyed consistent care and I am satisfied that it is probable that she is now more strongly attached to the applicants than any other person. Her comfortable acceptance of their guidance during the observation session and co-operative behaviour suggests that their relationships are close and secure. The court counsellor observed “When Mr and Mrs V entered the room the child let her mother depart and continued to play with her aunt and uncle in the sand tray. When T asked where her mother was Mrs V reassured the child she was outside. T continued to play happily with Mr and Mrs V. Both adults showed an attentive and loving manner while the child remained comfortable and active and showed attachment to them.”[37] I give this factor significant weight.
[37] Exhibit B paragraph 34
Less significantly she has also established apparently happy relationships with the applicants’ three children. She refers to K as “my K”. During the observation session the court counsellor reported “When her cousins, K, A and E entered, the child enthusiastically accepted their presence and proceeded to participate in play with them”.[38]
[38] Exhibit B paragraph 34
The mother’s cases emphasises that T has three half-siblings, all of whom live in Queensland. There is no real suggestion that T has any meaningful relationship with I. He is much older than she is and has not lived with her for any length of time. Whilst the mother is likely to promote this relationship to a greater extent than any other party, I do not accept that I and T currently have or are likely to develop a strong sibling relationship. This is irrespective of whether she lives with the applicants or the mother. T has spent more time with W and J and is aware that they are her siblings. When together I accept that the children play happily and enjoy each other’s company. T has never lived with her half-siblings for long periods and has probably adapted to the frequency with which they come and go from her life. The children have had no meaningful contact, if any at all, since February 2002. Given T’s age this gap has probably weakened the strength of these relationships. At present I am satisfied that the children are unlikely to have strong relationships and that T does not miss her siblings absence from her life. Should T live with her mother these sibling relationships have the potential to develop so that all three children have closer relationships than is likely if they only see each other during contact periods. I take this into account.
Changing the child’s circumstances
This is an important issue in the matter. I have already made findings about the numerous changes in residence that this child has endured and my comfortable satisfaction that until February 2002 her childhood was unstable. The court counsellor emphasised that these constant changes in accommodation and carers meant that T has a heightened need for stability and security. The gravamen of his evidence was that she had a particular need to be protected from exposure to family violence and unnecessary changes in carer.
The court counsellor accepted that the mother is genuinely motivated to live independently of the father and remain drug free. Unfortunately, the court counsellor did not make any real attempt to appraise himself of the gravity of the mother’s prior drug and alcohol history. Nor of her earlier unstable and violent relationships. In my opinion he over-emphasised her motivation and presentation when they met and did not take the opportunity to fully appreciate her prior history viz violence, substance abuse and lack of attachment to T. As a consequence his cautious optimism that the mother may be able to provide T with secure and consistent parenting into the future must be treated carefully.
The mother has had three substantial relationships each of which was violent, extremely so. During her first marriage she was beaten to the extent that she required hospitalising. The pattern continued during her second relationship. She grew up in a violent family. Other than her sister SM, the mother is alienated from her family and for many years relied on the father’s family for support. At present she resents the applicants and paternal grandmother and is no longer willing to accept their support and guidance. In spite of the very substantial support provided to her by the Department of Community Services, community health agencies and having secure accommodation the mother has never been able to give her children secure and stable care. Although she has secure accommodation she does not intend to remain there. My assessment of the mother is that sadly she does not recognise the desirability that her children have stability in relationships, accommodation and schooling. She has recently established a new relationship with Mr CGJ and he moved into her home shortly prior to the hearing. Although she had only known him a short time and supposedly was trying to establish a settled and secure life for herself and her children the mother had fallen pregnant and apparently planned to establish a new family with Mr CGJ. He has been convicted of four criminal offences, all of which have occurred since 1966. These include assaulting police, drink driving, smashing a window at a nightclub and also damaging property. On each of these occasions he had consumed alcohol to excess. Until March 2002 he used marijuana. Both the mother and Mr CGJ are hopeful that their relationship will last. Because T does not know Mr CGJ should the mother succeed her intention is that Mr CGJ will move into her sister’s home for about six months. There are some signs that lead me to conclude that the future of this relationship is quite uncertain. Mr CGJ confirmed that the mother screams at him and has hit him without provocation.
Although the mother professes to value security, stability and safety I was not persuaded that she was likely to provide an environment which offered this for T in the long term. She has managed to achieve sobriety and to be drug free, but for a few relapses, throughout most of 2002. GW, her drug and alcohol counsellor at ZX, gave evidence by telephone. Her opinion, based upon her observations of the mother and experience as a drug and alcohol counsellor, is that the mother is determined to achieve sobriety and that she is working hard to do so. The mother was 13 years old when she started to use marijuana and 14 when she started to use amphetamines. By her late teens she was an alcoholic. Against a background of almost constant substance abuse throughout the whole of her adult life I am not satisfied that the mother will not revert to drug and/or alcohol use in the future. She would need to demonstrate a much longer period of abstinence before I could be confident that the gains she has made will be long lasting.
Hence, I am not satisfied that the mother will be able to provide T with a stable and settled home life in the long term. Because T has endured such instability and only achieved constancy of care throughout 2002, before I would expose her to further change I would need to be comfortably satisfied that she was moving into an environment that was settled and stable for a long time. As is apparent I am not satisfied that the court should impose further change on this child unless there are good reasons associated with her welfare for doing so. In my opinion removing T from her current carers is likely to be distressing for her and substantially undermine such stability as she has belatedly had. This is a weighty matter indeed.
The applicants recognise T’s sensitivity to change much more than the mother does. This is probably because they are more settled people. They have lived in the same home for many years and provided their children with a secure and stable family life. Both applicants impressed me as personally settled and stable adults, individually and as a couple. Their three children’s achievements are proof of the benefits to children of consistent and reliable care. The applicants’ personal security and stability makes it much more likely that the can offer these values and environment for T to a much greater degree than the mother can. I am satisfied that in the applicants’ care T will have secure and stable accommodation, continuing relations with her prime carers, the children in their home, her parents and paternal relatives. These indicia of security and stability are highly likely to last throughout her childhood should she remain with them. This is a factor to which I attach significant weight.
Practical difficulty and expense of contact
The only viable means of implementing orders for contact is public transport or by borrowing motor vehicles. There is no suggestion by either party that T could manage air travel unaccompanied. It will be a number of years before this could be possible. The cost of implementing contact is reasonably high and for these parties there is little extra money available after essential expenses are met. I have proceeded on the basis that the effort associated with travel would probably be shared. Until now the mother has done all of the travelling. She has come to Sydney by bus and stayed with friends or family while here. On one occasion Mr CGJ drove her down. In the future she will still travel by bus, perhaps sometimes by train. I infer that for so long as she is entitled to a health concession card she will be entitled to some form of concession rate fares, for herself and T. If she is exercising contact in Sydney then the mother will undertake all of the travel. To have her also do all the travel when T is returning to Brisbane is plainly unreasonable. Unreasonable financially and also in terms of the effort associated with contact. If it is too onerous and too expensive the frequency of contact may lessen, an outcome that may undermine the child’s relationship with her mother and half siblings.
Neither of the applicants is in paid employment and are unlikely to look for paid work in the future. Thus, they are available to share the holiday contact travel. They may need to borrow a car in order to drive or they will take a bus or train. There own children are at an age where it is reasonable to leave them for a day at each end of the holidays while they take T for contact. Of course one adult could do the contact changeover and the other could stay at home. There was no evidence that would have assisted me to decide a fair midway point by reference to major transport interchanges. I am aware from other matters that many people use Coffs Harbour as a midway point and also Armidale. The parties will need to decide the most suitable place, if they cannot agree it will be Coffs Harbour.
The distance between Sydney and Brisbane creates difficulties of expense and frequency of contact. Alternate weekend contact is snot feasible and as a consequence longer block periods of contact must be considered. While regular contact in Sydney will be provided for in the orders, the mother’s limited financial position and her responsibilities to W and J make it unlikely that she will be able to take all the contact ordered. Obviously if T lived with her mother the costs of contact generally would fall, as less frequent contact in Sydney would probably follow. However this is not a matter in which those considerations drive the outcome vis where this child should live.
Family violence and protecting the child from harm
I will deal with sub paragraphs s.68F(2)(g)(i) and (j) together. Family violence is a key issue in the proceedings. The hidden nature of family violence means that there is often little objective evidence available to corroborate allegations and denials. That is not the situation in this matter. Both parents agree that theirs was an extremely violent relationship, which violence was often triggered by substance abuse and almost certainly exacerbated by it.
An important aspect of the mother’s case is that she has been driven away from T because of family violence. She says that her decision to flee should not be interpreted as leaving T but rather steps taken to save her own sanity and possibly her life. She says the father is a dangerous man and that he is poor role model. If T lives with the applicants they will give the father free access to the child, irrespective of any limits the court may impose. It is the father’s case that the mother is also violent and that she physically started many of their violent altercations. For similar reasons he claims the mother is a poor role model. The applicants say they will abide any court orders and that only if T continues to live with them will she be protected from exposure to family violence.
The manner in which the court must examine family violence in proceedings for a parenting order is identified in JG and BG[39] and also Patsalou and Patsalou[40]. Evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the interests of the children. The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the court has a responsibility to consider the effect on a child of a violent parental role model.
[39] (1994) FLC 92-515
[40] (1995) FLC 92-580
It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. In M and M[41] the High Court discouraged such findings saying that there are “strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually place unless it is impelled by the particular circumstances of the case to do so”.[42] These statements are equally apposite to the issue of family violence. Before it can make a positive finding the court needs to be satisfied according to the civil standard of proof. (See s.140 Evidence Act 1994 (Cth)). If the court determines that it cannot or should not make a positive finding that there has been abuse, the court must determine whether in all the circumstances there is an unacceptable risk. The manner in which the court conducts an assessment of the risk of future harm is set out in
A and A[43].
[41] (1988) 166 CLR 69
[42] ibid at 77
[43] 1998 FLC 92-800
The level of family violence in the parties’ relationship was well known to their families and friends. I am satisfied that I should make findings about family violence. Were I to fail to so do, the judgment would have little connection to reality. I have already made detailed findings concerning some incidents and do not repeat them. Nor am I able to recite with precision all of the violent altercations that have occurred whilst the parties maintained their relationship. Some key events were recounted in the evidence. This is not however the full extent of the violence. Both parties’ evidence left me in no doubt that there were many, many assaults by the father of the mother. She was assaulted physically, verbally and sexually. The former so often that the details of each assault have started to blur, for both assailant and victim. Whilst many of the assaults occurred when both parties were either drunk or drug-affected, that was not always the case. The mother made it clear that the father also assaulted her when he was sober. Nor was the violence only directed by the father to the mother, she also attacked him; physically and verbally. When she did so she was more likely to be drunk. As far as both parties were concerned it was of no interest to them whether any of the children were present. And they almost invariably were. Because T spent such considerable periods in the care of other people, her exposure to it was less than it was for W and J.
The applicants, RB, SM, J and to a lesser extent MB confirm that they were aware that the father repeatedly assaulted the mother. The paternal relatives tried to intervene but eventually decided that there was little they could do. It appears that the father’s assaults on the mother started when the mother fell pregnant with T. Because they are first cousins both parties thought that there was a high risk that their child may have an inherited defect. The father also thought that the mother had a relationship with P and felt this justified beating her up. He assaulted her again by beating her when he thought that T looked liked P. He beat her again three days later. The mother reported this assault to the police. Although they wanted her to cooperate as a witness and thus charge him, she declined to do so. In August 1999 the father threatened to kill her and her children. He assaulted her so badly on her thirtieth birthday that she was taken to hospital. On another occasion having passed out drunk, she woke to find H on top of her having sexual intercourse with her. This was when she fell pregnant by him a second time.
On other occasions he followed her along the street abusing, pushing and shoving her. Having been locked out of her house, he broke windows in order to gain entry. This happened in Brisbane and in Sydney. He smashed their furniture and punched holes in the walls of their home. After T was born this type of violence was a regular feature of family life. Many of the attacks were preceded by allegations about her drinking and prior sexual history. The father routinely accused her of having a sexual relationship with her stepfather and told other people about it. He did so in order to humiliate her and destroy whatever remained of her self-esteem. It was an effective strategy.
Many people, family and professionals tried to help the mother leave the father. A DOCS worker arranged urgent public housing. No sooner had she moved in than the mother invited the father to join her. Police encouraged her more than once to give evidence so that they could prosecute him for assaulting her. She refused. DOCS insisted that she attend counselling, which she did for over a month. She agreed with the applicants’ counsel that she spent that entire period talking to the counsellor about how she could get the father to come back to her. Not once did she indicate to the counsellor that she wanted T returned to her. Her sister gave her money so that she could return to Brisbane and separate. She moved to Brisbane only to repeatedly reconcile with the father. While I accept that the father forced his way back into her life on some of these occasions I am also comfortably satisfied that the mother invited the father to return on others. She wanted to live with him and gave scant regard to the risks to herself and the children when she did so.
The father’s violence is not limited to the mother. He said that he will not back away from a fight and that although he will hit a man he would not hit a woman. His personal motto is recorded in a tattoo on his arm “No retreat, no surrender”. During cross-examination he did recall head-butting a police officer. He was forced to concede that he had recently seriously assaulted his niece MB. Melissa had stolen jewellery from R B and the father decided to beat her up for doing so. They were both at another relative’s home when he attacked so. He punched MB in her face, punched her to the ground, pulled her hair and kicked her in her stomach while she was on the floor. When MB gave evidence, she attended from Mulawa prison. A few days prior to the start of this hearing she was charged with armed robbery and related offences and refuse bail. MB gave a matter of fact account of the assault and felt she provoked it by being “lippy” to the father. She called the police but when they attended she declined to cooperate any further. Before the police arrived the father telephoned his mother who took him away. I have no doubt that she knew what had occurred but decided not to press the father about it. While I have no doubt that at 18 years Melissa has few fears of being hurt in a fight, the father on this occasion overpowered her and beat her badly.
The mother’s counsel tried to persuade me that the father was involved in a murder as more than a bystander. RB, MB’s father, shot and killed his next door neighbour, in the presence of his neighbours children. The father agreed that he was present and gave evidence about the incident at the criminal hearing. There was no evidence from which I could draw any inference other than the father was in the wrong place at the wrong time.
The mother is also capable of physical and verbal abuse. She tried to attack the father with a knife on 29 December 1999. She said that she was trying to kill him. Although she was drunk her motivation appears to have been that the father said he was going to leave her. When she punched him in the testicles on the occasion already mentioned in these reasons, she was the first person to make the fight physical. When the father attacked her, the mother usually fought back physically as well as verbally. Nonetheless she was hurt more than he was. One of the tragic realities of this case is that the mother had been through it all before. I’s father was extremely violent and violence was a feature of her childhood. The cyclical nature of family violence is well reported in the decided cases. It can be cyclical when analysed from the victim’s perspective. There are obvious features to this case that suggest the mother has been so abused in her life that her capacity to respond safely to violence and the risk of it is severely impaired. Her present partner appears to be the first person with whom she has had a significant relationship without being assaulted.
The other sad reality is that not only does she choose partners who are violent to her, she can be violent too. On 7 October 2002 she overheard neighbours having a drunken fight in their home. Rather than call police or attend in the company of others, she charged in intending to break up the fight. She was punched by Y and left the scene bruised. The father’s counsel submitted that the fight in fact involved Mr CGJ. This was because the counsellor’s notes referred to her partner as the assailant. I accept the mother’s and counsellor’s evidence that the notes wrongly recorded the mother’s oral history and that she told the counsellor a neighbour had assaulted her. She has assaulted Mr CGJ without provocation. She slapped and punched him because she was angry. MB said that she saw the mother hit Jenny with a jug cord. The mother denied this, but it seems to me that the mother was so often drunk it is likely that there are times that she simply can not remember. This may be one of them.
There is an unacceptable risk that when provoked the father will react violently. His self-righteous proclamation that he would not hit a woman is offensive to the mother and MB. My assessment of the father is that he does not respect other people and that where their interests conflict with his, his will prevail. By force if necessary. He does not care who he hurts or if he is hurt in the process. In my opinion he presents a grave risk to almost anybody with whom he comes into contact. When he is drunk or stoned the risk is even greater. In making this finding I am conscious that the applicants say he is always pleasant to them, as does his mother. Thus far they have all done his bidding. The risks to them will arise if they disagree with him, particularly about T. As a role model his largely amoral attitudes make him an unsuitable person to expose children to any degree. They need to be protected from his attitudes as well as his behaviour. T more than most because she has seen his antisocial behaviour first hand. He says he will attend an anger management program, a good first step but he has a long way to go before the court could be satisfied that the risks had abated. He will need to demonstrate a long period of reliable social behaviour before he could expect a court to accept that his attitudes have changed. He said to the court that “it wouldn’t bother me if my contact was supervised”. The risks to T are too high to make the orders that he has unsupervised contact to her. Limiting her contact to him, as well as supervising it, is necessary if the risks identified in this judgment are to be addressed.
The mother impressed me as a woman of quick intelligence who knew that at this hearing she needed to distance herself from her violent past. I have no doubt that she thought it likely that the court would be concerned that living with her may mean T would still be exposed to a violent family life. She has undertaken a course of therapy but not therapy that specifically addressed her violent past. The focus of her last year has been achieving sobriety. Whatever its genesis I am satisfied that there is a reasonable risk that the mother may re-partner with a person who is violent to her. The mother would need to demonstrate that she had undertaken significant targeted therapy and had lived without violence as part of her life for a considerable time before the court could be satisfied that this risk had abated. Her counsel emphasised that she has obtained a Protection Order[44] which he said shows that she is serious about keeping the father away. It can not be ignored that after she obtained this order she reconciled with him.
[44] Exhibit C
Although there are signs that she may be able to live without violence, there are also signs that she may not. She repeatedly failed to protect I, W, J and T from the damaging consequences of exposure to family violence. I left her because he was out of control not to protect him from exposure to violence. Indeed she has sent him to his violent father. She took W and J to Brisbane because she knew she was likely to lose them if she stayed. Her decision was forced by their father’s application for residence and her sister’s support of it. She sent T away for a complex array of reasons, none of which appear to emphasise the need to protect the child from exposure to violence. Time and again she had the opportunity to leave and the full support of family and professional agencies to do so. She did not go and stayed with the father aware that she would probably be assaulted and that her children would be there when it happened. She drank with him and took drugs with him knowing that this increased the risk that one or other would start a fight. Regrettably I saw little from the mother that recognised that she had repeatedly put her children at risk. Provided she maintains sobriety the risk that she will hit the children appears to be reduced. There can have been no justification for hitting J with a jug cord. But this appears to have been an isolated incident and on balance I am satisfied that the mother does not present a risk to T of physical violence, to an unacceptable degree.
There is no violence in the applicants’ family. There is no suggestion that in their home T will be exposed to family violence. Indeed in their home she has the chance to learn that families can function without it. Their home and family offers T a far healthier environment which has a superior capacity when compared with any other option to meet this child’s need for healthy emotional development. Underpinning the legislative emphasis given to issues of family violence is a general recognition that witnessing family violence adversely affects children’s self-worth and self-esteem. The damaging consequences of it can be insidious and subtle and may not become apparent until children are older.
The applicant aunt is currently concerned that T’s imaginary friend is a violent character and has been trying to obtain professional help for herself and the child. She is acutely aware of this child’s difficult life with her parents and will watch for signs that suggest T is suffering from exposure to violence. Out of loyalty to her brother she claimed that she was comfortable with the notion that he could have contact to T unsupervised. Her husband disagrees and in this instance demonstrated a greater understanding of the risk of family violence than the applicant aunt did. I have already made findings concerning the father’s violent nature and the risk to those who disagree with him. The aunt’s focus tended to concern his violence towards the mother. She has experienced him cooperating with her and I accept that he has abided her directions that enabled her to comply with the limited interim contact orders. She underestimates his violent nature in my opinion if she maintains that he is not a risk to T or others. Without the firm support of her husband the applicant aunt may find that long term adherence to limited supervised contact difficult to achieve. However in combination both applicants confidently assert that they can abide the court’s direction. Both satisfied me that they intend to do so. They deeply regret that they did not act sooner by keeping T and applying earlier for residence. They are deeply attached to her and in my opinion will do their best to protect her from exposure to family violence. Living with them is this child’s best chance to recover from her prior life experiences and to develop an understanding of healthy personal relationships. This is a very important factor in this case.
Parental responsibility and meeting the child’s needs
This is an important issue in these proceedings. T is a vulnerable child whose adjustment requires that she is able to predict her environment including her relationships. I have already made findings about the nature of T’s relationship with her parents and the applicants and do not repeat them.
Both parents say that the applicants provide T with good care. The mother said that she is happy with the care provided by the applicants and that she only had a few minor concerns. That is that T appeared thin and had a stutter. She left me with the clear impression that she is satisfied that they will ably meet the child’s physical, intellectual and emotional needs on a long term basis.
I agree. Their commitment to the well being of the children in their care is manifest. All three of their own children are achieving well academically, socially and emotionally. They do not distinguish between their children and T in terms of the effort they make as parents. They support her financially without any assistance from either parent. I am satisfied that throughout her childhood T will have child-focused and loving guidance from both applicants.
The mother challenged their capacity to promote her relationship with T. She says that their insistence that her contact is supervised demonstrates that they are motivated to limit her contact with T. There is no doubt that after she came into their care the applicants changed their telephone number. They gave the new telephone number to SM but asked that she not give it to the mother. The applicant aunt told SM that she did this because she felt caught between the parents and was concerned about I’s conversation with her son E. In doing so they made it difficult for the mother to speak to her daughter. The reality is, however, that she made little attempt to do so. In my opinion it would have been inappropriate for the applicants to concede unsupervised contact prior to the mother exercising regular supervised contact. They had good reason to be concerned that she may take the child, may exercise contact while drunk or drug-affected and also expose the child to violence. On one occasion they refused ordered contact, however I am satisfied that this was because they made a mistake about the dates. Otherwise contact has taken place in accordance with the orders and I am satisfied that they will comply with ordered contact in the future. They are law abiding, reasonable people who understand the child’s need to have a continuing relationship with her mother and half-siblings.
So too they will ensure that T has contact with her father. There will be limits to this and they will need to ensure that the contact he has accords with the limits provided in these orders. These orders otherwise provide for the maximum time the child will spend with her father. If the father completes the anger management program he gave evidence about as well as the perpetrators of violence program he may be included in larger family activities that T attends. Otherwise the limits must be maintained. I accept their evidence that they will do so.
Neither parent has demonstrated a capacity to meet this child’s emotional and physical needs on a long term basis. Both could meet her intellectual needs. In either parent’s care she faces the prospect of regular changes in residence. While she is sober the mother is able to provide a clean home and ensure that the child is well presented. For the reasons previously given I have serious reservations about the mother’s capacity to meet the child’s emotional needs, on a long term basis.
Since final separation the mother has made significant gains in terms of her sobriety and drug usage. The court received a large bundle of test results that show she had weekly urine screening, testing for alcohol and a wide spectrum of common narcotics throughout the second half of 2002. Importantly testing included amphetamines, heroin and cannabis. She returned one positive test in October 2002. It showed that she has taken cannabis in the period prior to 11 October 2002. She denied that she did so and alleges that she drank tea given to her by J which she believes was spiked. Ms J agreed that she had seen the mother the preceding weekend while supervising contact. She denied that she spiked the mother’s tea. I was unable to come to any conclusion about this incident. In my opinion it was given too much emphasis. That is because even if the mother had used cannabis on this occasion she nonetheless is making good progress in addressing her prior drug usage. I accept her evidence that she has not used amphetamines for a very long time, heroin once years ago and that the risk she will do so again is remote. She is more likely to abuse alcohol and cannabis. Her sobriety in respect of both alcohol and cannabis is comparatively recent when analysed by reference to approximately 20 years of abuse. When she left Queensland for Mudgee she was already under investigation by the Queensland child welfare authorities because of concerns about her drug and alcohol abuse. At present her sister’s strong support and guidance and her attendance at relapse counselling are helping her remain sober. While I have no doubt about her sister’s desire to continue her support, I am less certain that the mother will accept it after these proceedings have ended. The mother’s motivation centres upon her desire to have T live with her. Irrespective of whether this is achieved I am concerned that once the court’s scrutiny has ended, the mother’s motivation may wane. Sadly she will need to demonstrate sobriety over a much longer period before the court could be satisfied that the risk she may relapse has significantly moderated.
The risk is not so great that she should have supervised contact. She and T need the chance to have time with each other in the mother’s environment. The constraints to date have meant that contact could not include the child’s half-siblings. If their relationship is to develop strongly, the siblings need to have time together. There is a risk that the mother will relapse but the risks to the child during contact are not as great as if she lived with her mother. I will include an order that should the mother abuse drugs or alcohol then the contact can be suspended. I have no doubt that should SM become aware that the mother is drunk during contact she will advise the applicants of this and intervene if the child is at immediate risk of harm.
The father claimed that he and the mother used amphetamines in October 2001 with Mr CGJ’s. I do not accept his evidence. The father gave three different dates on which he last used amphetamines, mid 2001, October 2001 and late October 2002. His mother corroborated that since his reappearance he had not used drugs or alcohol in her home. The father has not had regular drug screening and his drug and alcohol history is grim. He would need to provide independent evidence that he has been drug-free over a long time before I could be satisfied that the risk of relapse was minimal. My assessment is that there is a high risk he will abuse amphetamines, cannabis and alcohol. The father has only a very limited capacity to provide for this child’s needs on anything other than a rudimentary basis.
Further proceedings
Parenting orders are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospects for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. To the extent possible I am satisfied the court should make orders that will be least likely to involve these parties and child in future litigation.
T is still young. The father will have the opportunity to carefully consider the evidence he has heard during these proceedings, concerning the harmful effects of exposure to family violence upon children. He has the opportunity to undertake therapy and better equip himself to provide an appropriate role model for his daughter. He will be able to make an application to change the contact orders in the future. I take that into account. The mother will be deeply disappointed by the outcome and may be motivated to apply again if she succeeds in remaining drug-free, does not relapse into alcohol abuse and can demonstrate that violence is truly a thing of the past.
I take that into account. However, these considerations must give way to other more relevant matters if the best interests of the child are to be achieved from these proceedings.
Conclusion
This is case where the natural mother and the paternal aunt and uncle of the child are seeking that the court make a residence order in their favour. The child’s father, while being involved in the proceedings is not seeking a residence order in his favour, however, he supports the application for residence that has been made by the child’s aunt and uncle. Depriving a child of the opportunity to live with its parents is a heavy burden and a step that cannot be taken lightly. The Act emphasises a child’s right to know and be cared for by his or her parents. That is because the family unit is the cornerstone of our social order and there is usually a natural affinity between a child and his or her biological parents.
T knows her parents and loves them both. They love her and both want her to do well in life. Their flawed attitudes to violence and substance abuse meant that they both abrogated their parental responsibilities to others. Mostly to the applicants. This child was fortunate that her parents’ extended family were willing to take care of her when they could not. Neither parent protected her from the harmful consequences of exposure to family violence, drug and alcohol abuse. As a consequence by the time the parties separated she had spent valuable time with the applicants and they, more than anybody else, gave her safe and stable care. Neither parent gave this child the chance to attach strongly to her parents. I am satisfied that T is more attached to the applicants than to either of her parents.
The applicants have demonstrated a clear commitment to this child and her well being. They offer secure and safe parenting that stands in clear contrast to the lifestyle that either parent can provide in the long term. T’s early life experience means than she has a heightened need for stability and a family environment that is safe from exposure to family violence. The father agrees that this type of lifestyle is beyond his capacity. Although she is trying hard to offer her children a safe and secure family life, the mother’s prior unstable history makes the prospect that she will do so too uncertain.
My assessment is that the child’s relationship with her mother will be maximised if it is carefully structured. Structured in a way that enables the child’s physical, emotional and intellectual needs to be met to the greatest extent possible intermingled with time with her mother. T’s relationship with her mother is likely to be undermined if she lives with her mother and her mother resumes her erratic, drunken and violent lifestyle. In my opinion their relationship will be stronger and healthier if T has periods of contact with her mother during which the prospect of seeing her mother drunk or involved in violence is reduced. Circumstances where others can intervene and take T out of this type of situation.
As the applicants will have T’s care, they need to have authority to make decisions concerning her day to day care and long term welfare. Both parents wish to maintain their parental authority. To date they have rarely exercised their authority responsibly. Indeed too often they have abused it. The father walks in out of the child’s life as whim takes him. It would potentially compromise the applicants’ capacity to make necessary decisions for T were they to be required to consult him before acting. The probability is too great that they would not even know where to find him. It does not seem that he has contributed in a positive way to the decisions made concerning T since the applicants took her into their care. In my opinion the father’s capacity and willingness to make decisions for T are seriously impaired. Having all but formally relinquished them the court should do so.
The mother has also abrogated responsibility for T time and again. She seemed to have little insight into the effect of her own behaviour on her daughter and the potentially damaging consequences of taking her away from the applicants. When she is drunk her parenting capacity is severely limited. Her propensity for violent life partners demonstrates real lack of regard for her own and her children’s wellbeing. When sober she has a good understanding of her children’s needs and at least some capacity to make appropriate decisions for them. However the extent to which she has promoted secure, safe and stable family violence life to any of her children is too limited. Throughout most of T’s life she gave scant regard to the important decisions that T needed her to make. In my opinion the applicants’ capacity to make decisions for T should not be dependent upon the mother’s sobriety and/or her inclination to give this child’s needs priority. However they should consult her. Her opinions and attitudes must be given real weight before they make any long term decisions about her daughter. If she has good reason to oppose a particular course of action then she can ask the court to intervene. This step should not be lightly taken and before it is, the applicants and mother should seek the assistance of an experienced child and family counsellor to resolve the impasse.
Because of the distances involved contact with the mother will primarily take place during school holidays. As far as possible it should coincide with times that W and J are with her. The applicants and the mother must share the effort associated with contact. Their limited financial resources mean that this will be something of a strain. However ordering one side only to carry this burden is likely to mean that contact may occur less frequently than is necessary to maintain and nurture T’s relationship with her mother and siblings. If the mother is visiting Sydney she can have contact provided she gives the applicants notice that she will be here.
The father’s relationship with his daughter is dependent upon his desire to change his attitudes to violence, drug and alcohol abuse. At best the prospect that his attitudes and behaviour may improve is speculative. He is an inappropriate role model for his daughter and she needs to be protected from the potentially damaging consequences to her of his behaviour. Long term contact in a supervised contact centre is not available. The applicants and Mrs B were clear that they would strictly supervise the father’s contact, and I am satisfied that they will do so. They are well aware of the reasons for supervision and the potential consequences if they fail to abide the court’s orders. I take this into account. One factor that favours their supervision is that when he is with his parents and the applicants, the father seems better behaved than usual. This may result in contact being more pleasurable from the child’s point of view than any other option.
I have included an injunction to ensure that the father does not approach the mother. This is an order for her personal protection. The reasons for the order are obvious. If the father breaches it he is liable to be arrested without warrant.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding on hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 10 July 2003
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