Dalton and Elwes and Anor

[2017] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALTON & ELWES & ANOR [2017] FCCA 1535

Catchwords:
FAMILY LAW – Interim arrangements for child aged 6 – child currently lives in [Town B] with paternal grandmother – mother seeks child live with her – parties competing applications fixed for final hearing in November 2017 – mother lives in (omitted) – mother seeks to spend time with child pending final hearing – paternal grandmother alleges mother has drug dependency and requires supervision – mother seeks unsupervised time – nature of interim hearing – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4

Applicant: MS DALTON

First Respondent: MR ELWES

Second Respondent: MS NAGEL

File Number: ADC 1985 of 2016

Judgment of: Judge Brown

Hearing date: 29 June 2017

Date of Last Submission: 29 June 2017

Delivered at: Adelaide

Delivered on: 5 July 2017

REPRESENTATION

Counsel for the Applicant: Ms Herber

Solicitors for the Applicant: Far West Community Legal Centre

Counsel for the First Respondent: Mr Craney

Solicitors for the First Respondent: Doyle Kingston Swift

Counsel for the Second Respondent: Mr Pigott

Solicitors for the Second Respondent: Mark Whelan Lawyers

Counsel for the Independent Children's Lawyer: Ms Hayward

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. The listing of this matter for final hearing before Judge Brown on 1 & 2 November 2017 at 10.00am in [Town B] is confirmed.

2. The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 4 October 2017.

3. The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 October 2017

4. On or before 18 October 2017 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

5. The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

UNTIL FURTHER OR OTHER ORDER

1. The child [X] born (omitted) 2011 “the child” live with the paternal grandmother. 

2. The child spend time with the mother from 2:00pm on Saturday, 8 July 2017 until 2:00pm on Saturday 15 July 2017 and between 2:00pm on Saturday, 23 September and 2:00pm on 30 September 2017 subject to the following conditions:

   (a)The mother be restrained and an injunction issue restraining her from consuming any illicit drugs during the periods the child is in her care;

   (b)The time take place substantially at the home of Ms K located at (omitted), in the State of New South Wales;

3. In order to give effect to order (7) above the parties are to exchange the child at the McDonald’s Restaurant, at (town omitted), or such other location as is agreed between them.

4. The father spend time with the child at such times and on such conditions as may be agreed between him and the paternal grandmother from time to time.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1985 of 2016

MS DALTON

Applicant

And

MR ELWES

First Respondent

MS NAGEL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns appropriate arrangements for a young child to spend time with her parents, in difficult circumstances, which are made more difficult by the practicalities of geography. 

2. The child concerned is [X] born (omitted) 2011.  Presently, [X] lives in [Town B], with her paternal grandmother, Ms Dalton.  [X]’s mother is Ms Nagel. 

3. Ms Nagel lives in [Town A], near (omitted).  It is over 1,000 kilometres by road, between [Town B] and [Town A].  Ms Nagel has recently given birth to another child.  She is [Y], born (omitted) 2017.   [Y] is currently in the care of her mother.

4. [X]’s father is Ms Elwes.  Mr Elwes lives in [Town B].  He and Ms Dalton do not always have the easiest relationship, with one another, because of Mr Elwes’ drug use and past episodes of criminal offending, which have apparently involved members of Ms Dalton’s family. 

5. Ms Dalton is currently significantly involved in caring for another of Mr Elwes’ children, from a different relationship.  She is [Z] born (omitted) 2014.  She has been the subject of other proceedings in this court, involving Ms Dalton, Mr Elwes and [Z]’s mother.

6. Ms Dalton “the paternal grandmother” commenced proceedings, in respect of [X], in the Local Court, at [Town B], on 16 May 2016.  She sought urgent orders that [X] live with her.  At the time, she asserted that [X] was at serious risk, if she was not placed in her care. 

7. At the time, Ms Dalton asserted that Mr Elwes “the father” was addicted to ice; whilst Ms Nagel “the mother” was addicted to cannabis, which prevented her from being both emotionally and physically available to provide an appropriate level of care for [X].

8. It was the paternal grandmother’s position that [X]’s parenting, up to that stage, had been extremely problematic and these circumstances justified her in unilaterally assuming the care of the child because of the severely compromised parenting capabilities of both the mother and the father.

Background

1. The mother was born on (omitted) 1994 in (town omitted)(town omitted).  She is a (omitted).  She and Mr Elwes met in (town omitted)(town omitted), where Ms Nagel’s family mostly live.  From time to time she and Mr Elwes have lived in Ms Dalton’s home with [X], in [Town B].  It is the paternal grandmother’s position that the mother and father did not respect her house rules, particularly in respect of their drug use.

2. Ms Nagel concedes that both before and after [X] was born she has lived in various locations in Western New South Wales, which include [Town B], (town omitted)(town omitted) and (town omitted).  In May of 2016, Ms Nagel was living in (town omitted). 

3. It is the mother’s case that she agreed to the father spending time with the father around this time in [Town B].  It was whilst [X] was in [Town B] that Ms Dalton assumed responsibility for her care.  She believed that it was inappropriate for her son to have the care of [X] because of his ice addiction and because of her concerns about the mother. 

4. At the time of her application to the Local Court, Ms Dalton deposed as follows:

   “I accept the need for [X] to maintain a strong bond with and spend meaningful time with her parents, but not if the time they spend face to face places her at risk of harm.

   I am happy to encourage and maintain these relationships, but I am concerned about the lack of stability in [X]’s [sic] life at the moment, and believe that as both Ms Nagel and Ms Elwes appear to be serious drug users, they cannot at the present time have a positive effect on [X]’s life.”[1]

   [1]  See affidavit of Ms Dalton filed 31 May 2016

5. Ms Dalton further asserted that Ms Nagel was only capable of caring for [X] for short periods of time and only when she had the assistance of some other responsible adult.  Essentially, Ms Dalton alleged that the mother struggled in situations where she was the sole carer for [X].  It was her position that [X] was largely cared for by Ms Nagel’s family, when she was in (town omitted)(omitted). 

6. On 20 May 2016, the Local Court ordered, on an interim basis, that [X] live with the paternal grandmother.  The proceedings were transferred to this court.  On 24 June 2016, Judge Heffernan ordered both the father and mother to undergo a series of random drug screen tests. 

7. The father was born on (omitted) 1993.  He also identifies as an Indigenous person.  His father is a (omitted) man, who has ties to the country around [Town B].  Ms Dalton has lived in [Town B] for around eight years.  Currently, she is the manager of the (omitted).  She does not know the current whereabouts of Mr Elwes, the father’s father.

8. It is the father’s position that he has had an extensive prior level of involvement in [X]’s care.  He alleges that [X] has been exposed to family violence, whilst in her mother’s care in the past.  On both an interim and a final basis, he sought orders that [X] live with him. 

9. When the mother responded to the paternal grandmother’s application, on 31 May 2016, it was her position that a recovery order should issue in respect of [X] and the child be delivered up to her at her then address in (town omitted).  She also sought that there be a parenting test conducted in respect of [X], as she asserted that she had some uncertainty whether Mr Elwes was in fact the child’s father. 

10. Since August of 2016, the case has been managed in the court’s regular circuit to [Town B].  Firstly by Judge Kelly and then more recently by me.  On 18 August 2016, the parties agreed that [X] should remain in Ms Dalton’s care for the time being.  It was further agreed that [X] would spend time with each of her parents, at times to be negotiated.  The parties were referred to a Legal Aid Commission Litigation Intervention Conference.

11. On 14 November 2016, Judge Kelly noted that the litigation conference had not as yet occurred.  In these circumstances, the case was further adjourned and the existing interim orders continued.  At the time, the paternal grandmother deposed as to her on-going concerns that the father was continuing to abuse drugs to a significant degree.  She also deposed that he had been recently charged with criminal damage offences in respect of his conduct at her home, when she declined to allow him to have contact with [X] because she believed him to be drug affected. 

12. She further deposed that the mother had not interacted with [X] physically since the last court appearance, in August, and had failed to come to [Town B] for the recently concluded school holidays, notwithstanding that she (Ms Nagel) had told [X] that she would.

13. The matter first came before me, in [Town B], on 22 February 2017.  It seemed to me that it was likely to be useful that a family report be commissioned sooner rather than later.  I ordered that such a report be prepared no later than 5 May 2017.  I also fixed the parties competing applications for final hearing, in [Town B], in early November of 2017.

The family report

1. The family report was released to the parties in early May of 2017.  It was prepared by Mr S, a social worker by profession and a family consultant by occupation.  The father did not take part in the report compilation process. 

2. In the report, Mr S outlined a significant change in the mother’s circumstances.  Since February 2013, she has been living with her current partner, Mr C and their newly born child, [Y] in [Town A], with Mr C’ mother, Ms K and her husband Mr J, together with the Mr J’s three children aged 21, 18 and 17 respectively.  Also living in the Mr J household is a foster child, [B], aged 8.

3. Mr S noted the travel time between [Town A] and [Town B] to be around 13 hours by motor vehicle.  He had calculated the distance between the two locations to be 1,200 kilometres. 

4. Mr S also summarised, in his report, the paternal grandmother and mother’s positions in respect of the forthcoming trial, in the following terms:

   ·The paternal grandmother proposed that [X] live with her and she have sole parental responsibility for the child.  She envisaged [X] spending supervised time with the father until such time as he was able to persuade her that he had stable housing and had been drug free for six months.  In respect of [X]’s time with her mother, she proposed half of each short school holiday and two weeks over the end of year school holiday, again subject to the proviso that Ms Nagel established that she was drug free and her living arrangements were stable. 

   ·The mother proposed that [X] live with her and she have sole parental responsibility for the child.  She proposed the child spend regular holiday periods with her paternal grandmother, with the child to be exchanged at a midway location between [Town A] and [Town B].  In respect of the child’s time with her father, Ms Nagel proposed some form of supervised time, oscillating between [Town B] and [Town A]. 

5. Mr S described the paternal grandmother as engaged and child focussed.  Ms Dalton described her son as being currently, as far as she was concerned, lost to drug abuse.  She also described her concern that Ms Nagel had not complied with directions to undergo random drug screen tests during the period of the litigation to date. 

6. Mr S summarised the paternal grandmother’s case as follows:

   “Ms Dalton believed that it was too early for [X]’s care to transition to Ms Nagel, especially as her relationship with Mr C is embryonic and not without conflict as they had separated and only reconciled due to the pregnancy of [Y]. Ms Dalton considered Ms Nagel to have low maternal instincts by virtue of having a disrupted childhood, characterised by exposure to alcohol abuse and domestic violence, as well as being a young mother.”[2]

   [2]  See family report dated 7 May 2017 at paragraph [34]

7. To Mr S, the mother conceded that she had used cannabis from the age of 13 onwards, which had precipitated episodes of paranoia.  She also accepted that her relationship with the father had been unstable and marked by incidents of family violence. 

8. Child welfare authorities had been involved with Ms Nagel during her pregnancy with [Y].  This was because of her ongoing cannabis use.  The relevant authorities had funded 4 to 5 drug tests, which indicated lowering THC levels.  It is Ms Dalton’s position that the authorities are no longer involved in her care of [Y] because of these results, which are viewed as being satisfactory. 

9. [X] was described as being a pleasant child, by Mr S, who demonstrated no signs of anxiety during the observed interactions session.  [X] was described as being confident, cheerful and excited, whilst observed with her paternal grandmother. 

10. [X] apparently candidly stated that she enjoyed residing with Ms Dalton and had no care concerns about her home there. The child was less interactive with her mother than with her grandmother, which Mr S considered might be attributable to Ms Nagel’s recent confinement and a lack of mobility on her part. 

11. Significantly, in my view, Mr S said as follows of his interview with [X]:

    “[X] missed Ms Nagel very much and wanted to reside with her again. This was dependent on Ms Dalton saying that everything was okay, as well as in a vague matter, the outcome of the Court. She was aware that residing with her mother entailed living far away and that she would not see friends and family in [Town B] very often. With surprising maturity she said that this was okay as she would have her mother and brother, [Y].”[3]

    [3] Ibid at paragraph [57]

12. Mr S described his observation of the mother’s interaction with [X], in the following terms:

    “Ms Nagel did not demonstrate any overt signs of physical affection towards the child to any significant degree. She maintained good eye contact but with minimal tonal variations, as in having a flat affect.

    When Ms Dalton came to collect the child Ms Nagel became significantly depowered and took a secondary role in the handover. The child stated ‘I love you’ to Ms Nagel and gave her a warm hearted hug on departure.”[4]

    [4]  Ibid at paragraphs [60] & [61]

13. In the evaluation section of his report, Mr S wrote as follows:

    “It is assessed that Ms Nagel is well-intentioned but that questions remain main in regards to her parenting capacity. If/when she shows stability and ongoing drug free status then arrangements should be reviewed by way of an updated Family Report. In the interim, it is assessed that the child’s needs are adequately being met by ongoing care from Ms Dalton and that there is no compelling reason to have primary care shift to Ms Nagel at this point in time.

    In summary, it is assessed that a cautionary approach is warranted and on the balance of probabilities the child’s best interests are served by a favourable consideration of Ms Dalton’s proposal over that of Ms Nagel’s.”[5]

    [5]  Ibid at paragraphs [80] & [81]

14. In summary, Mr S recommended as follows:

    ·In the meantime, [X] continue to live with her paternal grandmother; 

    ·The child’s cultural orientation be supported by regular contact with her maternal family;

    ·His report be updated prior to any transition of [X]’s care from her paternal grandmother to mother being considered;

    ·If the child was to transition to Ms Nagel, Ms Dalton have a 7-10 day period with the child, over the long school holiday period.

The parties’ current positions

1. On 7 June 2017, given the complexities surrounding [X]’s care, including issues to do with her Indigenous background, I ordered that she be independently represented in these proceedings.  [X]’s representative is Ms Skye Hayward.  Ms Hayward is not in a position to make any submissions to the court, at this stage, given her recent appointment.  In particular, she has not been able to view the subpoenaed documents.

2. Given the date of the impending trial and the fact that pending the trial [X] will be living in [Town B], whilst her mother lives in [Town A], it is necessary for the court to consider what arrangements should be put in place for [X] to spend time with her mother and father. 

3. On this basis, on 7 June 2017, the following order was made:

   The mother file any application and affidavit in support in relation to her spending time with the child during school holiday time by no later than 12 June 2017.

   Each of the respondents file a response and affidavit in support of that application no later than 19 June 2017.

4. In addition, in early June, it was apparent that Mr Elwes had reconnected with his solicitor and wished to take part in the proceedings.  In these circumstances, on 7 June, it was ordered that Mr S update the family report to include him and some observation of the nature of his relationship with [X]. 

5. At the present time, neither the updated family report nor the litigation intervention conference, earlier ordered to take place, have occurred.  Each of the parties has, however, filed updating material in respect of their respective proposals for [X] to spend time with her parents, pending trial. 

6. The paternal grandmother proposes that she would rent a cabin, at a caravan park, in (town omitted), which she, the mother and [X] could occupy for a period of around about a week, during the forthcoming mid-year school holiday and the end of term three holiday.  As a consequence of this proposal, she would be able to provide some form of supervision of [X]’s time with her mother. 

7. The mother’s proposal is that [X] should spend approximately a week of each of the school holidays falling between now and the trial at the Mr J’s home in [Town A].  She proposes that she and the paternal grandmother each travel to a convenient mid-way point, such as (Town omitted), where [X] could be exchanged between them. 

8. During the course of the interim hearing of 29 June 2017, I was provided with a copy of the paternal grandmother’s current amended initiating application.  This was said to have been filed electronically but could not be found on the court’s portal and has since not come to light.

9. On a final basis, she proposes that the father spend alternate Saturdays, from 10:00am to 4:30pm, with [X].  However, she reserves the right to refuse to deliver the child to him, if she believes that Mr Elwes is under the influence of drugs.  Her application is silent in respect of interim arrangements for the father to spend time with [X]. 

10. In her application, the paternal grandmother has provided the following specific proposals, as to how [X]’s time with her mother, would occur, in the forthcoming school holiday period:

    “3.    The Respondent Mother spend time and communicate with the child as agreed by the parties, or as follows:

    a)  the July school holidays starting on 1 July 2017 to 16 July 2017 as follows:

    i)      the Mother’s time with the child be supervised by the Maternal Grandmother;

    ii)     starting on Saturday 1 July 2017 at 2pm to conclude on Saturday 8 July 2017 at 2pm;

    iii)     the Mother will meet the child at (Town omitted) at the Maternal Grandmother’s house;

    iv)         the Mother’s time will be limited to day time only, starting from 9am to 5pm for all consecutive six days;

    v)     the child will spend each overnight time with the Paternal Grandmother, subject to order 4;

    vi)     the child’s time with the Mother is to be spend in (Town omitted); and

    vii)    the Mother is not to remove the child out of (Town omitted) without a written consent from the Paternal Grandmother.

    4.  The Paternal Grandmother will provide accommodation in the form of a second bedroom in a cabin at (omitted) Caravan Park should the Mother wish to spend evenings with the child, provided that the Mother not take the child outside the cabin during this time.”

1. From the mother’s perspective, this proposal is unduly restrictive and will not allow her to have a comfortable period of time with [X].  In addition, she does not believe that a cabin, in the middle of winter, will provide comfortable accommodation for her and [X].  Her counsel, Mr Craney, bluntly asserts that there will be nothing for [X] to do and as such, the proposal will be counter-productive in terms of the development of a meaningful level of relationship between mother and child.

2. Ms Dalton has indicated that Ms Nagel stayed in her home, in mid-November 2016, in order to spend time with [X].  Ms Dalton is critical that the mother did not tend to [X]’s needs, during this period and she suspects that Ms Nagel consumed marijuana, during the visit. 

3. Ms Nagel has provided two drug screen test results.  The first taken in mid-July 2016 is positive for THC.  Two more recent tests, taken on 29 March 2017 and 25 May 2017 are negative for all illicit drugs. 

4. The mother deposes that she cannot afford to travel to [Town B] by air.  It is also her position that her current partner is unable to take time off work to drive her to [Town B].  However, Mr J is available to drive her to (Town omitted). 

5. Ms Nagel was able to spend a period of time, with [X], around the time the family report was prepared.  It is her evidence that this time went well and [X] interacted with her as if the two had never been apart.  Mr J paid for Ms Nagel and [Y] to travel to [Town B] for the report. 

6. Mr J, in a recent affidavit deposed by her, indicates that she first met the mother in April of 2016, when her son brought her to [Town A] to meet his family.  [Y] was apparently born in (town omitted).  Mr C was present at the birth. 

7. In mid-February, Mr C and the mother decided to move in with the Mr J family, at their home in [Town A].  Mr C is employed as a (occupation omitted).  Mr J is a registered foster carer.  Her husband is an (occupation omitted) with the local Shire Council. 

8. It is Mr J’s evidence that her home provides extensive and comfortable accommodation for Ms Nagel and potentially [X].  She deposes as follows:

   “Our home is a six (6) bedroom property with all the usual facilities.

   At this moment, Mr C, Ms Nagel and [Y] are living in a wing of the house.  This area consists of three bedrooms and a bathroom and toilet.  We all dine together in the main area of the house.”[6]

   [6]  See affidavit of Ms K filed 9 June 2017 at paragraphs [15] & [16]

9. The father has filed a brief affidavit in the proceedings.  He is open to his mother’s proposal, so far as his time with [X] is concerned.  He is also supportive of [X] spending time with her mother.  However, he has not delineated any view as to how this should occur, in practical terms. 

The legal principles applicable

1. The hearing before me on 29 June 2017 took place via a four-way tele conference.  Necessarily, the hearing concerned took place in a truncated form, with no opportunity for any of the parties concerned to give oral evidence or for that evidence to be tested through cross-examination. 

2. Essentially, the court is presented with a binary decision – either the time takes place in [Town A], at Mr J’s home; or it takes place in a caravan park, in (town omitted), subject to the paternal grandmother’s supervision. 

3. Both options, in my view, have their pros and cons.  Regrettably, the parties themselves are not able to find any compromised outcome, which would satisfy each of their respective concerns. 

4. In particular, I broached with Mr Craney, the mother’s solicitor, the prospect of [X] spending time with her mother, at the maternal grandmother’s home in (town omitted).  This was not acceptable to Ms Nagel, who through her solicitor candidly indicated that her mother’s home was small and over-crowded and, from time to time, was subject to excessive alcohol consumption. 

5. The difficulty with a binary decision is that inevitably one party’s position will be accepted and the other’s rejected.  This, in turn, will lead to one particular party feeling vindicated and the other feeling hard done by and unheard. 

6. Such outcomes have the obvious potential to lead to the hardening rather than the softening of conflict between the individuals concerned and so not helpful to the interests of the child who is the subject of the conflict arising.   It is for this reason, that those who are concerned with the care, welfare and development of children are encouraged to reach joint solutions to parenting problems arising between them.

7. At the interim hearing stage, the court is not in a position to resolve factual disputes between the parties concerned or accurately assess their overall credibility or respective levels of parental insight.

The legal principles to be applied

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

5. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

9. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[7] 

    [7]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9] 

    [8]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [9]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. The legislature has detailed the philosophical underpinning and ethos of Part VII of the Act, which is the part dealing with children, in section 60B. Some of the principles contained in this section, have particular relevance to [X], given her Aboriginal background.

13. The relevant principles [section 60B(1)] include ensuring that children have the benefit of both their parents having a meaningful level of involvement in their children’s lives; whilst ensuring that parents fulfil their duties and responsibilities towards their children.  Parents are encouraged and supported to make parenting decisions consensually.

14. Section 60B(3) recognises the right of Aboriginal children to enjoy their culture and maintain a connection with it, including interacting with individuals who share that culture with them.  In this particular case, Ms Nagel is clearly a person who shares a common cultural background with [X].

15. The main emphasis of the mother’s case, at this stage, is that [X] will benefit from having as extensive relationship as possible with her mother, so that the two can maintain a meaningful level of relationship with one another.  From Ms Nagel’s perspective, [X] is likely to benefit from such a level of relationship because of the maternal relationship between the two and their shared cultural background. 

16. On the other hand, the paternal grandmother approaches the case from her protective concerns for [X].  As I understand her position, these concerns relate to Ms Nagel’s drug use; the alleged lack of emotional warmth in the relationship between [X] and her mother; Ms Nagel’s prior psychological illness; and her lack of parenting capacity. 

17. It is Ms Dalton’s case, I think, that her concerns are supported by the family report of Mr S.  For her part, Ms Nagel asserts that there are risks, for [X]’s long-term wellbeing and sense of identity, if she is prevented from having a proper level of relationship with her mother.  

18. From Ms Nagel’s perspective, the best location for her to interact with [X] is in an environment in which she (the mother) feels comfortable and supported.  It is her case that she will not feel comfortable, in a caravan park in (town omitted), with Ms Dalton in attendance, because she does not trust her, particularly given the circumstances in which [X] came into the paternal grandmother’s care in mid-2016.

19. On the other hand, it is the paternal grandmother’s position that there remain significant risks in the mother interacting with [X], at this stage.  These risks turn on issues relating to the child potentially suffering some form of psychological harm, as a consequence of being exposed to abuse or neglect, either emotional or actual.

20. Essentially, in the current case, the court is required to assess the risks arising for [X] in light of the parties’ competing proposals.  From the mother’s perspective, there is a risk of the child interacting with her in a stilted and artificial fashion, at the (town omitted) Caravan Park.  From the paternal grandmother’s perspective, there is a risk of the child interacts with her mother away from her (Ms Dalton’s) direct supervision.

21. In Deiter & Deiter[10], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [10]  See Deiter & Deiter [2011] FamCAFC 82

22. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[11]

    [11]  Slater & Light [2013] FamCAFC 4 at [37]

23. The court is frequently called upon to assess all manner of potential risks to children, at both the interim and final hearing stage.  Essentially, the court is required to assess the risk arising in the particular case concerned and put in place a proportionate response to the degree of risk involved.  There may also be risks arising of either artificially truncating a potentially worthwhile relationship for a child or, in extreme cases, severing that relationship. 

Discussion

1. During the course of the interim hearing, I inquired of Ms Herber, counsel for the paternal grandmother, what her clients attitude was towards Mr J.  From her response, it appears to be the case that the two women have not met or, if they have, it has only been cursorily. 

2. It is the mother’s case that, if she and [X] are interacting with one another, in the comfortable circumstances of the Mr J family home, subject to the weather eye of Mr J, this will be a proportionate response to the degree of risk, arising to [X], of interacting with her mother, away from the direct supervision of Ms Dalton.  I agree.

3. I acknowledge that Ms Nagel has a significant and longstanding history of cannabis abuse.  This drug use must represent a significant threat to [X]’s wellbeing.  For obvious reasons, a drug affected parent is not likely to be an attentive parent, either in an emotional or practical sense. 

4. However, in this context, I take some comfort from the two recent negative drug screen tests.  I also note that the child welfare authorities, in New South Wales, have elected not to remain involved in respect of Ms Nagel’s care of [Y].  This would appear to be because the Department has been satisfied that Ms Nagel’s cannabis dependency is currently in remission. 

5. In my view, it is a proportionate response to the degree of risk, which Ms Nagel potentially deposes to [X], if the two are able to interact with one another, at Mr J’s home in [Town A].  Although Ms K’s evidence has not been subject to any extensive scrutiny, to my mind, it is a significant factor that she is an experienced parent and has been assessed as a suitable foster parent by the relevant authorities in New South Wales.

6. In these circumstances, I consider it improbable that she would countenance Ms Nagel being neglectful of [X].  In addition, in my view, it is significant that Mr J is supportive of the mother being the primary carer of [Y], albeit in her (Mr J’s) household, and therefore subject to some level of oversight from her.

7. In objective terms, I accept that [X] will be safe from harm, if the forthcoming school holiday time takes place, as proposed by Ms Dalton, in the (town omitted) Caravan Park.  However, I would be naïve, I think, to consider that there is an easy relationship between Ms Nagel and Ms Dalton.  In these circumstances, it is my view that for the two to share a small cabin, for up to a period of a week in duration, is an outcome fraught with all manner of potential difficulties.

8. One of the telling aspects of Mr S’s report is the dynamic observed by him in the relationship between the mother and paternal grandmother.  Mr S wrote of Ms Nagel becoming depowered.  In this context, I have concerns that the grandmother’s proposal is not likely to be conducive to mother and child being able to interact with one another in a warm and intimate way, which will facilitate the development of a meaningful level of relationship between the two. 

9. The potential relationship between [X] and [Y] is also significant in this case.  They are half-siblings.  However, up to this point, they have spent very little time together.  The relationship between siblings is an extremely important one.  I acknowledge that there is a significant age gap between the two children concerned.  However, in my view, it is likely to be of benefit to [X], if she is able to interact with her baby sister in a comfortable environment. 

10. [X] clearly has a very close and loving relationship with her paternal grandmother.  This is implicit from how she was observed to interact with Ms Dalton by Mr S and what she said to him during interview.  However, it remains a significant matter, bearing in mind the principles and objects of the Act (contained in section 60B) for a child to be cared for by a person other than his or her parents.

11. It is also clear from what [X] said to Mr S that she has a close relationship with her mother.  In the longer term, it seems to be the case that although she feels comfortable living with her paternal grandmother, she sees her long term future as being in the care of her mother, whilst living with [Y].  I note however that she is to be regarded, at this stage, as a child of tender years and, as such, her views cannot be regarded as decisive.

12. Accordingly, in this case, notwithstanding the concerns of Ms Dalton, I consider that the benefits of [X] having a meaningful level of relationship with her mother are to be given greater weight than the protective concerns of Ms Dalton, particularly in respect of her preferred response to those concerns. 

13. I acknowledge that the relationship between Mr C and Ms Nagel is a comparatively recent one.  However, I do not consider that Mr J is likely to countenance any discord between Mr C and Ms Nagel under her roof.  In addition, in my assessment, she will be watchful for the safety of not only [X], but also [Y], who is her grandchild.

14. I also acknowledge that, at this stage, there remain unanswered questions regarding Ms Nagel’s level of insight into the responsibilities of being a parent and her capacity to meet [X]’s emotional needs.  However, in my view, these considerations must be viewed in the context of the benefits [X] is likely to derive from knowing her mother and being able to interact directly with her in a comfortable domestic setting. 

15. For the reasons outlined above, I am not persuaded that a caravan park cabin, shared with Ms Dalton, provides such a conducive atmosphere.  That is not to say that I am being critical of Ms Dalton’s concern for [X] or her love for the child.  I accept that she is a well-meaning individual.  However, in my view, the potential for friction to arise between mother and paternal grandmother must be regarded as being extreme.

16. For all these reasons, I have come to the conclusion that the mother’s proposal is the one to be preferred, at this stage.  I am satisfied that it represents the best outcome for [X], in the difficult circumstances, which currently prevail in the case.

17. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     5 July 2017