Dives & Anor and Mantle & Anor

FAMILY COURT OF AUSTRALIA

DIVES AND ANOR & MANTLE AND ANOR

[2020] FamCA 786

FAMILY LAW – CHILDREN – application for change of residence – where the maternal uncle and aunt seek the child live with them – where the mother seeks the child remain living with her – change of residence ordered.

Family Law Act 1975 (Cth) ss60B, 60CC

Goode & Goode (2006) FLC 93-286
Jones v Dunkel (1959) 101 CLR 298

FIRST APPLICANT:

Mr Dives

SECOND APPLICANT:

Ms Sales

FIRST RESPONDENT:

Ms Mantle

SECOND RESPONDENT:

Mr Keele

FILE NUMBER:

BRC

3955

2019

DATE DELIVERED:

24 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

14 & 15 September 2020

REPRESENTATION

THE FIRST APPLICANT:

Self-represented

THE SECOND APPLICANT:

Self-represented

COUNSEL FOR THE FIRST RESPONDENT:

Mr J Cahill

SOLICITOR FOR THE FIRST

RESPONDENT:

Legal Aid Queensland

THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Murphy

THE INDEPENDENT CHILDREN’S LAWYER:

Ms K Cherry
Cherry Family Lawyers

Orders

Parental responsibility

That the Applicant maternal great aunt and uncle and the mother shall have equal shared parental responsibility for the long-term care, welfare and development of the child, Y born … 2010 (“the child”).
That if it is necessary for a decision to be made in relation to a long-term issue in relation to the child, the party wishing for a particular decision to be made shall communicate that to the other parties in the following manner:
(a)Indicate in writing the nature of the decision to be made presenting a draft proposal;
(b)The party receiving the request and draft proposal shall respond to the request and the draft proposal in writing;
(c)The parties shall give consideration to the matters raised by the other part/parties in their proposals and/or response to their proposals, and shall provide the other party/parties with their responses thereto; and
(d)The parties shall make a genuine effort to come to a joint decision about the matter.

Living arrangements

That the child live with the maternal great aunt and uncle by Sunday, 4 October 2020.
That the child spend time and communicate with the mother at all times as agreed upon between the mother and the maternal great aunt and uncle, and in the absence of agreement, as a minimum, as follows:
(a)For two (2) weekends in each school term from 5.00pm on Friday until 5.00pm Sunday, or until 5.00pm Monday should Monday fall on a public holiday, and in the absence of agreement to the contrary, such weekends shall follow the third and seventh weeks of each school term;
(b)On Mother’s Day weekend, from 5.00pm on Friday before Mother’s Day until 5.00pm Mother’s Day;
(c)For one (1) half of each term one (1), two (2) and three (3) Queensland gazetted school holiday period, commencing the first Saturday of such school holiday period and concluding on the following Saturday of such period;
(d)For two (2) weeks in the Christmas School holiday period each year commencing on the first Saturday of such period in even numbered years and on Boxing Day in odd numbered years; and
(e)On the child’s birthday at all such times as can be agreed or facilitated between the parties.

Changeovers

That unless otherwise agreed, all changeovers are to occur at the Suburb Q Train Station.

Communication

That the child shall communicate with the mother each Saturday and Wednesday that he is in the care of the maternal great aunt and uncle between 5.30pm and 6.00pm, with the mother to initiate the telephone call for the child and the maternal great aunt and uncle to ensure that the child is available to receive same.
That the child shall communicate with the maternal great aunt and uncle each Saturday and Wednesday that he is in the care of the mother between 5.30pm and 6.00pm, with the maternal great aunt and uncle to initiate the telephone call for the child and the mother to ensure that the child is available to receive same.
That the maternal great aunt and uncle and the mother shall facilitate telephone communication between the child and the other party at all other reasonable times as may be requested by the child.

Exchange of information

That the mother and the maternal great aunt and uncle will:
(a)keep each other informed at all times of their residential address, email address and mobile contact telephone number, and advise of any changes thereto within twenty four (24) hours of the change;
(b)keep each other informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child; and
(c)inform each other as soon as reasonably practicable via text message or email of any medical condition, significant health issue or illness suffered by the child.

Non-denigration and restraints

That during their time with the child, the parties shall:
(a)respect the privacy of the other party/parties and not question the child about the personal life of the other party/parties;
(b)speak of the other party/parties respectfully;
(c)not expose the child to discussion in relation to family law matters, domestic violence matters or adult issues between the parties; and
(d)not denigrate or insult the other parties in the presence or hearing of the child and will use their best endeavours to ensure that others do not denigrate or insult the other parties in the presence or hearing of the child.
That none of the parties shall use or be under the influence of illegal drugs or alcohol beyond the legal limit for driving when the child is in their care.

Authorities

That the maternal great aunt and uncle and the mother are hereby authorised to obtain (at their own cost) any information sought from the school at which the child may attend from time to time including but not limited to school reports, photographs, certificates and awards obtained the child, and further, that the maternal great aunt and uncle and the mother be able to attend any events at the child’s school to which family would ordinarily be invited, including but not limited to presentation days, concerts, assemblies, fetes, dance performances and sporting events.
That this order is sufficient authority for any medical, dental or health professional who treats the child to release information to the mother or the maternal great aunt and uncle in relation to the child at the requesting party’s expense.

Time with the father

That the maternal great aunt and uncle shall be at liberty to facilitate supervised time between the child and the father at times as agreed between them and the father provided such time remains supervised by either the maternal great aunt or the maternal great uncle.

Other

That all outstanding Applications be dismissed.
That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dives and Anor & Mantle and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3955 of 2019

Mr Dives

First Applicant

And

Ms Sales

Second Applicant

And

Ms Mantle

First Respondent

And

Mr Keele

Second Respondent

REASONS FOR JUDGMENT

Introduction

In 2010 when the mother was 16 years of age she gave birth to Y and in the 10 years that have progressed since that time the mother has faced many challenges. These reasons identify some of the history but importantly focus on how the best interests of Y may be served in the future knowing that, as in the past, the future may also involve many challenges for both the mother and Y.
The current Applicants Mr Dives and his wife of many years Ms Sales (who in these reasons I call the “Applicants”) are known by Y as and described by him as “Poppy and Nannie”. That he sees the Applicants who are biologically his maternal great aunt and maternal great uncle, is not to the point. The history indicates why Y sees the applicants as effectively his grandparents.
This is a case where the Court has considered the tension between seeking to support and provide some hope to the mother as she moves through her parenting role of Y whilst at the same time ensuring that the statutory obligations of making orders in the best interests of the child are maintained. It has not been an easy case and, as the reasons further set out, when the parties entered into final consent orders just over two years ago on 13 June 2018, I have no doubt that the parties hoped that would be the end of further litigation. Sadly, it has not been and thankfully it has been possible for the matter to be reheard, in a sense, at a full trial within almost two years of those earlier final orders.

Principles

In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

The Independent Children’s Lawyer, Ms Cherry, briefed Ms Murphy as Counsel. I wish to pay tribute to the sensitive way in which this case was managed by the Independent Children’s Lawyer and the selected Counsel. At many times during the course of this litigation the mother has been unrepresented and, in fact, only secured representation through a grant of legal aid weeks before the adjourned trial was to be held before me.
In a case outline filed on 10 September 2020, the Independent Children’s Lawyer not only provided a very detailed chronology but also set out the minute of order that the Independent Children’s Lawyer contended for at that time. It provided for the Applicants and the mother to have equal shared parental responsibility for Y; for the child to live with the Applicants; and for the mother to spend time with her son for two weekends each school term; the Mother’s Day weekend; half of the end of terms one, two and three school holidays; two weeks in the Christmas school holidays and around the child’s birthday. Sensibly, the proposed orders identified that there ought to be some flexibility in that the parties could make other arrangements from time to time, but in the absence of agreement and as a minimum, those arrangements should apply.
The Independent Children’s Lawyer asked the Court to order that the Applicants be at liberty to facilitate supervised time between the child and the biological father, Mr Keele. It should be noted that Mr Keele has spent little time with the child since his birth. He has not participated in these proceedings, although I am satisfied has been aware of them. In one short Affidavit he filed in the proceedings, he indicated he supported the application now made by the Applicants that Y live with them. Other than that he has not participated in these proceedings.
The Applicants represented themselves. With the current COVID-19 restrictions it caused the trial to be conducted by Microsoft Teams. Although the Applicants at different stages during the proceedings did file separate Affidavits, the trial Affidavit relied upon was sworn only by Mr Dives, although he said, and I accept, that his wife Ms Sales agreed with its contents. Whilst Mrs Sales participated in a sense by observing all proceedings during the Microsoft Teams trial, she did not address the Court and all advocacy was undertaken by Mr Dives who was cross-examined.
The position of the Applicants, as set out in their case outline filed 29 August 2020, effectively mirrored the ultimate orders sought by the Independent Children’s Lawyer save that the Applicants seek that they (and to the exclusion of the mother) have parental responsibility for Y for major long term decisions, and that, rather than two weekends a term, the child spend one weekend a term with the mother, with the mother to be responsible for arranging appropriate transport for the child to and from her residence.
Whilst the Applicants at proposed order 5 indicated that they would agree to continue to facilitate contact between the child and the child’s father, their order did not provide for the time to be supervised, but in submissions it was clear that Mr Dives agreed that supervision was required at least because of the lack of any relationship between Y and the father having been created.
The mother’s primary position as articulated in her case outline filed at 11.34pm on the Sunday before the trial reflected some changes in schooling. I identify when the case outline was filed not to make the point that it was late, but really to make the point that the solicitors retained by the mother from Legal Aid were working right up until the trial to try to get her Affidavit material filed and her case outline lodged.
No criticism of the preparation for the hearing could be properly launched against the lawyers for the mother and the solicitor for the mother having retained Mr Cahill who did his best to get on top of these very complex issues quickly and provided competent representation to the mother for the trial. There is nothing more that Mr Cahill could have done on the evidence presented by the mother to further her position as to why she felt it was in the best interest of Y that he continue to live with her.
The mother’s position, essentially, was that the current final orders made in June 2018 continue. As required by directions made by the Court, the mother’s alternative to her primary position was that she would seek to have the same time with Y that she was proposing the Applicants had with Y if he continued to live with her. A significant change in the mother’s case is reflected by her proposal at proposed order 10 that the child continue to be enrolled in Suburb P State School. That was a different proposition to that articulated by the mother in her Affidavit sworn just three days earlier, where at paragraph 40(c) she proposed that Y’s school be changed to Suburb N State School. The mother in cross-examination explained her position which, as I understand it, was shaped by legal advice she obtained.
It is important in this matter that a history of the proceedings and the relevant issues be identified. Before doing so I observe that, of course, there is no presumption under the law that a child should be with a biological parent primarily as opposed to any other person who comes to the Court although, as the authorities make clear, it is generally and often the case that the paternity of the child is a highly relevant consideration.

Contextual history

Statements of fact which now appear should be regarded as findings of fact. In making these findings, I observe that I did not regard any of the parties as other than attempting to be truthful and honest. The mother, however, at times was vague in terms of her recollection of events. But when confronted with some of her past behaviours, which are referred to hereafter, she was able to concede the error of her conduct. I could not regard all of her recollection of history, however, as reliable and therefore the documents tendered during the course of the trial that form part of a group of documents the Independent Children’s Lawyer had prepared for the trial has added some accuracy to the context which now follows.
As earlier indicated, the mother was born in 1994. Tragically, when she was about five years of age, her mother passed away. She had a younger sister, B. After the death of her mother, the mother began living with the Applicants. As I have already indicated, Ms Sales was the mother’s maternal aunty. It would not have been an easy exercise for the Applicants to manage the care of the mother and her sister in such tragic circumstances. To be fair to the mother in this case, she does not make significant criticisms of the Applicants’ care of her.
The mother was schooled locally in the C Town area, however, at the age of about 14, she chose to live independently and, it seems, when she was approximately 15 years of age formed a relationship with Y’s father who I will described as Mr Keele. She gave birth to Y when she was 16 years of age on 19 September 2010. The relationship between the mother and Mr Keele was short-lived, shaped, the mother says and I accept, by domestic violence perpetrated by Mr Keele upon her. It also seems clear from the material that at the time this young couple were regular drug users; that alcohol was consumed in an abundance and the immature relationship, not surprisingly, failed.
Thereafter between approximately October 2011 and January 2017, the mother and Y either exclusively or for periods of time maintained a relationship with the Applicants. For example, between October 2011 and August 2014, the child lived exclusively with the Applicants. When the mother had turned 20 years of age the child began living with her away from that home, although by January 2015, the mother and child had returned to the home of the Applicants where they continued to live until July 2016.
In or about July 2016, the mother moved from Northern New South Wales to South East Queensland. Often her moves were associated with new relationships. The Applicants continued to maintain contact with Y. When the application of the Applicants on 28 March 2017 was first filed, it was done in circumstances where they were concerned about the safety of the child. Their application at that stage identified that they wanted the child to remain in the care of the mother if she was capable of caring for him.
The parties went through the process, including a family report by Ms A. As the case outline of the Independent Children’s Lawyer makes clear, Ms A, in her report that was prepared from interviews conducted on 11 and 12 October 2017, identified the following concerns with respect to the mother’s care of Y at that time, namely, transience; Y has been to four to five schools and he is only in grade 1; the mother’s poor judgment with relationships; the mother has poor impulse control and “goes off”; Y was showing similar behaviours at school.

The mother reported to Ms A at that time that she had had a “near death experience with Mr D” which was a wake-up call. Sadly, it is apparent from the history that it was not a wake-up call.
The mother at the time reported to Ms A that she was a drug user and at times had consumed up to 30 cones per day. It seems to me in a triumph of hope over reality, consent Orders (“the said final consent Orders”) were made by a Registrar of this Court on 11 June 2018 (noting that the same Independent Children’s Lawyer was engaged in the proceedings at that stage) whereby the mother had sole parental responsibility for Y with the child living with her and the Applicants spending time, two weekends in each school term and effectively half of the school holidays. As I have indicated earlier, it was to be hoped that the final Orders bought the proceedings and conflict between these parties to an end. I have formed the view that the issues identified by Ms A, at least shortly after those final Orders were made, continued.
The best way in of understanding the history after the said final consent Orders is to consider the statement which the mother gave to police on 16 October 2018, which is marked Exhibit 1 in these proceedings. Before moving to that horrendous and very troubling history, it has to be acknowledged that it is most telling, in my view, that although the mother acknowledged the concerns in her previous relationship with Mr D, that within weeks of the final Orders having been made, without the knowledge of the Applicants the mother returned to her destructive relationship with Mr D.
As was proper, Ms Murphy took the mother to many of the significant events set out in her statement to police. She did not at any stage indicate that her statement was inaccurate and I regard the statement, at the time, as an accurate statement of the events. To the extent that the mother’s vagueness now has meant some of those events have blurred, that is more the effect of time if not in some ways the sadness she has in recalling such events. The statement reflects that:
a)she “reached” out and initiated contact with Mr D who had physically abused her significantly in 2017 and previously. She reached out in July 2018 only weeks after the said final consent Orders were made, saying that she had a “soft spot for him”;
b)on her birthday on 14 September 2018 when Mr D was living with her (it seems as a result of bail conditions imposed upon him) which reflects she was prepared to support him at that stage, a significant incident occurred. Y was in the house on the lounge at the time and the mother concedes that he was very distressed by either what he saw or what he heard. The mother says that on her birthday she had consumed “a big bottle of Bundaberg Rum over about an hour”. Mr D had smoked marijuana. A very aggressive violent outburst was perpetrated upon her. He hit her over a period of one hour repeatedly with his fists;
c)the mother remained in the relationship and continued to maintain both an intimate relationship with Mr D and allowed him to continue to reside with her. About five days later on Y’s eighth birthday, the mother, Mr D and Y were, it seems, at the home of one of Mr D’s family members. The mother in her statement again concedes that she consumed excessive alcohol and marijuana. On this occasion Mr D again viciously assaulted her. She was so traumatised that she self-harmed herself by hitting her head twice on a wall and sustained a large eight centimetre long gash to her forehead. The statement says, and the mother confirmed, that she could hear Y “calling for me”;
d)on or about 3 October 2018, some two weeks later, the mother attended a doctor at the Aboriginal and Torres Strait Islander Community Health Service. She was accompanied by Mr D, I infer because of his coercive and dominating behaviour and to ensure that she did not say something he did not want her to say. The note of that consultation (see Exhibit 2) reflects, and the mother confirms, that she identified Mr D as “her nephew”. She lied to the doctor about how the injuries had occurred and said that she had been involved in a fight while coming home from the pub. I note that by 25 October 2018, when the mother had by this stage given her statement to the police (having fled the relationship), she acknowledged to the doctor that she had lied to him and that the person who had accompanied her on 3 October was the “assailant” who had perpetrated the violence upon her and that she had reported his conduct to police; and
e)the mother fled the relationship on or about 17 October with Y. Mr D was subsequently charged and incarcerated on conviction for a period of two years.
Clearly, when the mother finally was able to remove herself and Y from the relationship she had to seek support from somewhere. She had not fully revealed to the Applicants the extent of this further violence upon her by the same person who had perpetrated violence upon her before the final consent Orders had been made. In fact, she did not inform the report writer Ms E in interviews in July 2019 about the level and extent of the abuse she had faced in October 2018. I can accept that she was probably ashamed by her conduct and how she had exposed Y and herself to such terrible outcomes.
What is clear is that, in or about October 2019, the mother discussed with the Applicants that she was not coping (although full details were not, in my view, provided by the mother to the Applicants at the time) and she, it is suggested, at least acquiesced to Y living with the Applicants at that stage. This is apparent from the conduct and evidence of the Applicants who started making inquiries about the child attending the local primary school – F Public School. This is the primary school that the mother had herself attended as a child.
However, it seems within days of having the insight to seek to remove, perhaps even temporarily, Y from her chaotic lifestyle, the mother changed her position and would not support the change of residence even temporarily at that stage. Not surprisingly, by the start and during the 2019 school year Y’s behaviour at school became hugely problematic. During 2019 he was suspended from school for approximately 35 days; there were numerous absences from school not otherwise explained and his conduct against other students was both violent and inappropriate. Sadly, as the reports of the school principal, Ms G, identified (they having been tendered and marked Exhibit 10) the child was becoming isolated socially within his school environment. The mother had some insight into the struggle she was facing, most of which it has to be said, were a result of her poor choices in the relationship she was choosing to engage in. Around October 2019 she began counselling with an Ms H, a psychologist.
The notes of counselling appointments with Ms H are Exhibit 4, but what is clear is that she disengaged regularly from those opportunities and, in fact, has not had any therapeutic support of a significant professional nature that I can see since the start of this year. The notes of Ms H (who was not available or presented for cross-examination) show a litany of outpourings by the mother as to issues in her life both in the past and at the time and the struggles she has having managing Y’s behaviour.
It seems that by at least April 2019, the Applicants formed the view that Y’s best interests required him to change residence from the mother (under the final consent Orders) to themselves and launched proceedings again. Thankfully, Ms Cherry, the Independent Children’s Lawyer in this matter was reappointed and a family report by Ms E, to which I refer shortly, had been prepared with interviews in July 2019. Whilst the period from October 2018 when she left the relationship with Mr D may have provided a sanctuary for the mother to get on top of her chaotic life, sadly, as the material tendered to the Court and put to the mother revealed, there are examples of antisocial behaviour which came to the attention of the police since then.
A number of events have been set out at Exhibits 3, 5, 6, 7 and 8 – the last incident, which is still before the criminal Courts, occurred, as the police brief identifies, on or about 1 June 2020, when the mother is said to have unlawfully assaulted a bus driver by spitting on him. The mother, who is entitled to the presumption of innocence, indicated that she was upset by the way the bus driver managed what she regarded as racially discriminatory behaviour to which she and Y were exposed. The mother confirmed Y was present. Sadly, the other Exhibits identify events, some of which appear to have been fuelled by alcohol and some of which the child would have been present and aware.
In that respect, perhaps not surprisingly, the evidence is that the mother in June this year got a prescription for a further mental health plan. However, sadly, the mother has not activated that plan and could not identify for the Court the person to whom the mental health plan was directed – again, another sad and unexplained example of the mother’s lack of attention to her needs and the improvement of her parenting capacity.
After the proceedings were recommenced and when the Independent Children’s Lawyer conducted further investigation into some of the past history of events to which these Reasons have now referred became apparent. The mother sought out a person she referred to as “Aunty K” as a support. It appears that she lived with Aunty K from between September 2019 until an aggressive confrontation between the two ladies occurred on 23 December 2019, which caused her to leave the home.
Ms J (Aunty K) claimed to be a supporter of both the mother and the Applicants. On 21 November 2019 when the matter was before Senior Registrar Spink, he accepted that she had the potential to provide a stabilising and supportive environment in Queensland for the mother and Y. There is some evidence that at times she may have done so. However, what is apparent is that “Aunty K”, to some degree, developed an intimate relationship with the mother. Aunty K then became a witness in this case, firstly, for the Applicants (where she was critical of the mother), and then sought to retract her evidence by providing an Affidavit in support for the mother. Aunty K is alleged to have psychiatric issues, allegedly “bipolar affective disorder” and although relied upon by the mother in this case to give evidence, effectively, she refused to appear. I would regard her evidence as highly unreliable and not worthy of any credit whatsoever and I give it no weight. Sadly, I am not satisfied she was an enduring positive influence on the mother at all and, sadly again, Y having had some significant instability in his life, was subjected to a lifestyle with Aunty K (who the mother acknowledges was an ice user at times) which could not have assisted his level of stability.
Senior Registrar Spink on 21 November 2019 made Orders supported by the Applicants at the time that the child continue to reside with the mother provided she resided in the home of Ms J. When the change of living arrangements for the mother and Y became apparent to the Applicants, they caused an urgent application to be bought to the Court which I dealt with on 6 March 2020. At that stage, the Applicants and the Independent Children’s Lawyer sought an immediate change of residence. For the reasons which I gave orally at the time, I did not accede to that application, but to try and to protect at least some stability in the child’s lifestyle ordered that the child continue at the Suburb P State School, whilst remaining to live with the mother.
On 6 March I ordered that the trial commence on 1 July. It is troubling, of course, that at a time when the matter was again in the shadow of Court proceedings, that the mother’s anti-social conduct on 14, 15 and 22 January 2020 came to the attention of Queensland Police, as the Exhibits set out. The trial that was scheduled to commence on 1 July was adjourned in the hope that when the matter was then to be heard on 14 September, the COVID-19 restrictions will have ceased such that all parties could appear in person in Court. If the Applicants, who are self-represented, were not living in New South Wales but in Queensland, they could have appeared before the Court personally. However, the border restrictions currently in place have prevented that occurring. I was also concerned when the matter was set down for trial that the mother did not have legal representation and expecting her to be the advocate for her case by Microsoft Teams was less than ideal. However, as I say and thankfully Legal Aid provided the mother with a grant of aid so that a competent lawyer at Legal Aid retained Counsel to represent her at the trial. It is for these reasons that the trial proceeded as it did by Microsoft Teams on 14 and 15 September 2020.

Family report

Ms E, an experienced social worker and family consultant attached to the Brisbane registry conducted interviews on 9 and 10 July 2019 resulting in her report dated 30 July 2019 (marked Exhibit 12). The Independent Children’s Lawyer, considering the period between when the interviews took place and the trial was approaching 14 months provided the family consultant with additional subpoena material and additional trial affidavit evidence of the parties for the trial. Ms E indicated that she had read the subpoenaed material, but my impression was she had not fully read all of the parties’ Affidavits. No criticism of Ms E in not so doing should be attributed to her.
Ms E was the last witness in the case and was cross-examined. Arising from her report and her cross-examination, the following significant matters arise:
a)the history of the chaotic lifestyle the mother had undertaken (absent any knowledge by Ms E of the events of October 2018) as I already indicated is accurately set out in and founds the report;
b)Ms E interviewed the child and, at paragraphs 78 to 90, the nature of that discussion with Y is set out. It was not suggested in any way that she had inaccurately set out what she had heard from Y or the observations she had made. Y seemed to have an understanding of why he had been suspended during 2019 on a number of occasions from school, describing it as “because of his anger and frustration”. He said he felt these emotions at home sometimes. Y reflected on the different disciplining styles between the mother and the persons he described as Nannie and Poppy. At paragraphs 89 and 90 Ms E records that:
“89.Y said he had an idea how he wanted parenting arrangements to be. He said he would like to go to two schools, attending one school in C Town for the holidays when he stayed with Nannie and Poppy and remaining at his current school where he lived primarily with his mother.
90.Additionally, Y proposed having every Friday off for working hard where he would go and spend the day with Nannie and Poppy.”
The observations formally made by Ms E of Y with the mother and the Applicants were unremarkable, warm and appropriate;
c)In the evaluation by Ms E commencing at paragraph 101, she analyses the data then available to her before making the recommendations at paragraph 130 which were bifurcated, namely:
i)if the Court is positively assured about the mother’s parenting capacity and ability to manage and adequately address Y’s needs, then the child should live with her; and
ii)if the Court determines Y’s needs would be best met by living with the Applicants, then she had a proposal that he live with them and set out details for how time should be managed.
d)Ms E indicated that the material that she had been provided by the Independent Children’s Lawyer did not cause her to change any of her recommendations but were concerning, particularly, as she identified that the mother had not been truthful to her during the interviews about the extent of the violence perpetrated by Mr D against her and in the presence or hearing of Y. In particular, I draw from the report and her evidence the following opinions expressed:
i)At paragraph 108, Ms E says that because of her view that “Y’s behavioural difficulties at school and home are likely to be a representation of emotional difficulties with dysregulated emotional and psychological functioning, arising from adverse childhood experiences, rather than reflective of purposeful misbehaviour”, “that Y requires emotionally responsive caregivers who address his behavioural and emotional needs concurrently. Additionally, it would be important for Y’s caregivers to work very closely and collaboratively with the school for on-going monitoring of his learning development, particularly if alternate options need to be considered to prevent further delays”;
ii)At paragraph 111, the report writer expressed a view that the Applicants “appear to recognise that Y’s behavioural needs are likely to be an indication of emotional difficulties, a resulting impact from his childhood experiences. Consequently, they both seem to adopt more of a relationship-based approach with a focus on Y’s emotional needs, using their guidance and support to manage his behaviour and support his development of skills”. I agree that on all the evidence this is a correct assessment of the Applicants; and
iii)At paragraph 112, reflecting on the mother’s concerns of the Applicants’ style of parenting, Ms E said inter alia, “[i]n my view, the mother’s concerns are likely to be a misunderstanding about the type of support and parenting style that is being applied”. I agree with this observation and, further, the assessment of the mother set out at paragraph 114 that:
“[t]he mother’s information was mixed, in parts, presenting insightful where she recognised Y’s experiences had been emotionally difficult. She highlighted child-appropriate and emotionally responsive methods such as the emotional literacy and regulation work suggested by the counsellor and spoke of the importance of investing one on one time with Y. However, additionally she lacked insight when she described Y’s behaviour as an individualistic problem with a focus on punishing his misbehaviour. In my view, this could represent limited insight in to how her parental responses might affect Y and indicate reduced reflective functioning. Further, the mother may have an understanding of the theoretical knowledge relating to best practice however, the application to her every day to day parenting practices is in infancy.”
I agree with this opinion, and not only that, the mother’s parenting practices are “in infancy”, but have not been consistent or properly developed at this stage. Ms E opined the mother’s parenting approach was more authoritarian, where “she focused on Y’s behavioural needs and used behaviourist methods, such as standing at the wall, to try to modify his behaviour”. Ms E indicated that this approach is not likely to address Y’s emotional needs and that there is a risk that his confidence, self-esteem and self‑worth would be further compounded. This resulted in her conclusion that (at paragraph 117):
“focusing on Y’s behaviour in the absence of emotional support is not likely to be beneficial and it would be important for the mother to continue building her emotional responsive skills and awareness to support Y].”
Again, referring to how the mother presented, namely with openness and insight into these emotional views and maladaptive behaviour, whilst that was a positive, Ms E, at that time (bearing in mind that these observations and interviews were conducted in July 2019) opined that:
“The concern would be whether the mother is able to remain conscious and aware during her day‑to‑day parental responses so she can act on strategies to remain present and emotionally responsive. It would appear based on her information on Y’s ongoing presentation that this is an area of vulnerability for the mother.”

In my view, the mother’s conduct, as set out in the history since the final Orders suggest that she is still vulnerable in this way, and as a result I agree, as Ms E further says, that there is a question about “whether the mother is going to be able to develop the skills and capabilities Y requires in the timeframe he needs”. This is a very important factor which weighs heavily in the Court’s mind when considering what to do for the future from this point in time.
Ms E, in cross-examination, identified the continuity of current schooling is a factor that weighs in favour of the child remaining in the care of the mother, and was pleased to hear, as it was put to her, that the reports of the Principal Ms G about the improvement in Y’s behaviour at school was good news. Ms G, who again appeared by Microsoft Teams, and was cross-examined, identified Y as “a beautiful little boy whose social skills have developed and has now developed some age-appropriate relationships with peers”.
She was clearly happy with the way the team of support at her school had helped Y in difficult circumstances to improve both his behaviour (there having been no suspensions during the 2020 school year) and his educational development. She was entitled to be proud of her team’s improvements and I have no doubt that the efforts of the school have helped Y develop some social inclusiveness and confidence.
Ms E expressed her concern about the mother’s failure to continue to maintain a therapeutic relationship. Ms E opined that the mother presented to her, at the time, as feeling she was loved by the Applicants, but also spoke to her about the difficulties of her own loss of her mother and the desire to be a mother to Y. Although the mother felt somewhat supported in July 2019 by the Applicants, she could understand why the mother feels that she is being criticised by the Applicants (in their pursuit of the order that Y live with them) and that this has caused the mother to feel that she is being undermined by the Applicants.
In my view, on all the evidence, I do not accept, notwithstanding the strong and strenuous submission of Mr Cahill on behalf of the mother, that the Applicants have, in any way, undermined the mother. Rather, they have sought to support her in very difficult circumstances and, through her, Y. It is sad but perhaps understandable that the mother has found it difficult to accept the genuine, loving, caring and empathetic support the Applicants have sought to provide her, and therefore Y.
Finally, Ms E was invited to speculate as to whether, if there was to be a change of residence, it ought to occur at the end of this school year or at the end of this school term. To be frank, Ms E was somewhat ambivalent. She merely indicated that it would be better if the change occurred at the end of a school term or year so that the child can move on to the next school at the start of a new phase of that school year. She did indicate that in so doing she was not ignoring the benefits of the continuity of schooling which Y has experienced at Suburb P State School
It is part of the jurisprudence in this jurisdiction that the Court is not bound by the views expressed by a report writer. However, in this case, the well-founded opinions expressed by Ms E are given some significant weight by the Court, and as she identified, the issue that needed to be considered in a significant way is the quality and stability of parenting that the mother can provide as compared to that provided by or to be provided by the Applicants.
I will now move to that topic within the matrix of the relevant primary and additional considerations identified by the Act.

Primary considerations

As authorities make clear, s 60CC(2)(a) specifically refers to the benefit to the child of having a meaningful relationship with “both of the child’s parents”. Although the Applicants have been in a parenting role at different stages of Y’s development, they have generally been in the role of grandparents, but nonetheless I do take into account the benefit to Y of having a meaningful relationship with his mother, which is of great importance to him. It is not possible to assess whether it is of any benefit to Y to have a meaningful relationship with his father.
Section 60CC(2)(b) requires the Court to examine “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence”. This does arise in this case. Sadly, the history of this matter identifies, in my view, that although the mother may not be in a relationship now, her past behaviour identifies a vulnerability to forming poor relationships and renewing those relationships that are physically and emotionally destructive of her.
Whilst I can accept that at the times it is very difficult for a young woman in her situation to escape these relationships, the nature of her conduct, in my view, is a very real risk to this child. The fact that, for example, she would allow someone she met on the internet and knew very little about to live in her home with her for a short period of time (before that person became verbally abusive) is just a further example of her poor choices.
There is little evidence about the extent to which the mother’s previous excessive use of alcohol and/or marijuana is still an issue now. Part of that is because there is no evidence at all to corroborate the lifestyle the mother undertakes now. She provided no evidence (other than from Aunty K, which has been discredited, in my view) from anyone. She appears to be socially isolated in Queensland, although she says she has a number of supports, none of whom gave evidence to the Court.
The extent to which the therapeutic support she has been obtaining from various organisations (including those with a focus on Aboriginal and Indigenous clients) is very uncertain because, again, no evidence from either those persons or notes from those organisations have been provided.
None of these concerns, which go very much to the exercise of stability and role-playing in a consistent way to a child of this age, present as any concern in the household of the Applicants. The mother did not make criticisms of the Applicants other than her concern that they might be “undermining” her. That is a concern which I completely reject as unfounded.
The concerns about the mother’s inability at times to control and regulate her emotions are, in my view, a most significant factor in this case and further supports the proposal of the Independent Children’s Lawyer and the Applicants for change of residence.

Additional considerations

I have identified, as Ms E does in her report, the fact that this child is unable, nor should he be required to, make a choice as between his mother and people he regards as his Nannie and Poppy. He is clearly comfortable with all of them and has experienced living for a significant part of his life either in the home of the Applicants exclusively or whilst they were supporting the mother over his life and she lived in that area.
In terms of the nature of the relationships the child has, there is no doubt that he has a warm and close relationship with his mother and the Applicants. The mother, of course, is some years younger than the Applicants, but she has no other outside interests that have been identified to the Court, for example, study; getting a licence; improving her financial independence; or otherwise engaging in activities that might give her some balance in her life. In fact, it is a little uncertain what this mother, who relies totally on government support, does when the child is at school. In these circumstances, in many ways, Y is the focus of her life.
I do not ignore the fact that this child Y has a brother, Z. Z is three years younger than Y and lives with his biological father (who happens to be a relation of Mr D, who violently assaulted the mother, as previously mentioned). Z lives just over the border in L Town.
The father of Z is apparently sufficiently comfortable with the mother to allow the child to spend unsupervised time on a regular basis with the mother. He gave no evidence in support of the mother’s case and about her parenting of Z when that child is with her. I do not make an inference within Jones v Dunkel (1959) 101 CLR 298 about that failure, but it may have been helpful if I had had some evidence from him. Nonetheless, it seems that through Z spending time with the mother, that Z and Y have developed a relationship and that is a good thing for him.
As I soon observe, if Y was to live in C Town, then the opportunity for Z and Y to regularly spend time together at least might be easier to achieve than is currently the case. The Applicants, on their evidence, support opportunities for interaction. I have no reason to suspect that Z’s father would not further support the brothers spending time together. As earlier indicated, the biological father of Y does not have a relationship with him.
It has been very difficult for these parties, where communication has, since the final Orders were made in June 2018, deteriorated, to be fully engaged in the decision-making processes for Y. I do note, however, and again reflective of the support the Applicants provide for Y and, through him, the mother, that they have been responsible for facilitating and paying for his therapy at “[M Centre]”. A limited amount of information in respect of that therapy has been provided to the Court through Exhibit 13, which I have read and considered. It is clear that Y benefits from a range of therapeutic interventions at M Centre.
At the conclusion of these Reasons I deal with the factors set out in s 60CC(3) of the Act, namely, “the likely effect of any changes to the child’s circumstances” as it is particularly relevant in this case.
There are some practical difficulties in the child moving between New South Wales and Queensland. At the current time with the COVID-19 restrictions it has not been possible for Y to spend time with his Nannie and Poppy in Queensland because they cannot enter the State from where they live, and where the child spending time with them in New South Wales might mean quarantining requirements upon his return.
In the hope that these restrictions in time will be reduced, the practical difficulties are more about resources than distance. In this respect, as earlier indicated, the mother does not have a car licence or a car. She did not give evidence of any plan at the age of 26 to achieve that, seemingly comfortable with using public transport. Notwithstanding that for Y that involves (from her current home in Suburb N to his school in Suburb P) upwards of two and a half hours travel every day on public transport – a mixture of trains and buses and no doubt walking.
The Court put to the mother what her position would be if there was a change of residence and Y was living with the Applicants and whether that would be a catalyst for her to consider moving to Northern New South Wales where she would be closer to both Y and Z. Her answer reflected that she had not even considered that possibility, really, but in a moment of self-reflection, thought that she might do that. How that could be achieved is not known and I am conscious of the fact that there is a risk that if the mother moved to Northern New South Wales she could come into contact with Mr D, who is the relation of Z’s father. That would, of course, be a real concern for her.
I regard the mother’s current functioning, shaped by a sad history; parenting when ill-prepared to begin it at the age of 16; and being subjected to continual domestic violence, of which she has been a most unfortunate victim, have all affected the capacity for the mother to parent consistently and, in my view, her decision-making and the way in which she parents has reflected in the past these difficulties. No such concerns arise from the parenting style, attitude, behaviour or emphasis of the Applicants.
Section 60CC(3)(h) requires the Court to consider the child’s right to enjoy his Aboriginal culture. In this regard, Mr Dives is not Indigenous. The mother and her maternal aunt are Indigenous. I am satisfied by the evidence they gave, mostly in cross-examination and mostly by the Court’s questioning, that this child is aware of his Aboriginality and that in either household he will be given a reasonable opportunity to engage in it, even though the “mob” from which his mother and/or the maternal aunt are connected are not in either South East Queensland or the C Town area.
I have already dealt with the impact on this child of the family violence that the child has witnessed or been exposed to in the care of the mother. There is no evidence that the child has ever been exposed to family violence in the care of the Applicants.
During the course of submissions I raised with Counsel the concern that the Court must make an order which is “least likely to lead to the institution of further proceedings in relation to the child”. In this respect, I clearly turn my mind to the fact that this will be the second set of final Orders for this child in just over two years. He needs stability. In my view, because of the uncertainties of the mother’s capacity to continue to grow independently and strongly (a result which she desperately seeks and which I believe she wants) if she again was unable to maintain her behaviour in a way that was appropriate whilst the child lived with her, it would be inevitable that future proceedings would be instigated.
In my view, an order for the child to live with the Applicants is an order least likely to lead to further proceedings, and in that regard, on all the evidence, I am satisfied that the Applicants – who regard the mother as their daughter – would want nothing more than to see the mother functioning well, consistently, drug and alcohol free and making good choices about relationships, career, study and her financial independence. In my view, if the mother can consistently demonstrate that improvement (which sadly on the evidence she has not done to date) I hold every confidence that the Applicants would be very keen to normalise Y’s relationship with the mother.

Parental responsibility

In my view, the mother as the primary carer of Y over most of his life (although with significant assistance from the Applicants) can add value to any major long-term decisions in respect of the child. Whilst I understand the Applicants in seeking parental responsibility are concerned that they are not able to get agreement from the mother in respect of some issues like schooling or counselling, I am not satisfied on the evidence that that is likely to be an issue if Y lives with them, sufficient to exclude the mother from a role to be consulted in major long-term decisions. I support the Independent Children’s Lawyer’s proposal for the Applicants and the mother having equal shared parental responsibility.
If this case was only about trying to provide the mother with some hope into the future, then the Court, if that were the test, might be persuaded that the child remain with her in the “hope” that she will improve her behaviour. One can only have empathy for the mother, whose life from the age of five has been so significantly challenged through the death of her own mother and the decisions, many of which she made poorly, but events which have otherwise shaped her life to this point. It is to be remembered that she is but 26 years of age.
However, I was struck by the lack of any real evidence before the Court of the mother’s plans for her future. There is nothing in the evidence before the Court about how the mother might and is prepared to actually engage, for example, in further education so as to improve her skills; to improve her availability for work and, therefore, her financial independence. Her lack of focus on getting any form of licence in the absence of any other reason shows a degree of lethargy which I think is a poor example to Y.
I acknowledge, as Mr Cahill in his submissions valiantly and consistently asserted, that the improvement in the child’s behaviour at Suburb P State School should be seen as a reflection on the mother’s support. I am prepared to accept to some degree it is. I do not ignore the practical challenges she faces in using public transport to get the child to and from school consistently.
The school principal identified a good relationship with the mother and a commitment by the mother. Similarly, it is clear that the Applicants, notwithstanding they live in the C Town area, many kilometres away from Suburb P State School, have maintained the connection with the school and Y’s support, including at times paying for him to have tuck shop.
In my view, a change of schooling, as would occur with a change of residence, is not ideal. The perfect environment, in my view, for this child would be if I could move Suburb P State School to C Town, have the child live primarily with the Applicants, and with the mother choosing to live in Northern New South Wales; taking steps to gain financial and educational independence and quality of life; and that she had regular time with Y, Z, and that those two boys spend time with each other.
However, I cannot make orders of that coercive nature. Whilst Mr Cahill says that there has been a lack of evidence given by the Applicants relating to the support that Y will receive (hopefully similar to that now being received at school and in the community organisations he engages with in South East Queensland) I accept that C Town, whilst a regional area, is a reasonable sized town and likely to have services of a similar nature. I cannot know and do not find necessarily that a student like Y at F Public School will get exactly the same type of support he gets at Suburb P State School.
However, as the Principal Ms G indicated, there is a national curriculum and, further, that she, on behalf of Y, would provide any school with as much information about the support they provided to him and the benefits of that support to any new school. I do not have any lack of confidence that the New South Wales public school system will be any less responsive to Y’s needs than has been the Queensland public school system.
Clearly the most significant impact upon Y of a change in residence is to not spend as much time with his mother but to spend more time with the Applicants. I accept, and Mr Dives acknowledged, that this is likely to create some level of initial distress for Y, not because he is unfamiliar with living in the C Town area or with the Applicants, but rather that he has started to develop friendships and connections, both at the Suburb P State School and the wider community, all school-based, it seems. More importantly, when the mother functions well, cares, loves and plays with her son, he will not have the day-to-day comfort of her affection and attention.
However, at this critical stage of his development the risks of maintaining the child residing with the mother to his long-term capacity to reach his potential, both socially, educationally and developmentally, are such that the time has regrettably now come where a change of residence must be ordered. I propose to do so.
As to when that should occur, whilst I was initially attracted to the proposition that the child continue at Suburb P State Primary School to the end of the 2020 school year, on the balance of all the evidence, the environmental factors surrounding Y, apart from his school, are such that the change should occur before the commencement of term four, 2020 (New South Wales). With the relaxation of the Queensland/New South Wales borders restrictions (so as to allow persons in C Town from 1 October 2020 to travel to Queensland without the need to quarantine), I will order that the change of residence occur by Sunday, 4 October 2020. As the New South Wales school holidays do not complete until Sunday, 11 October 2020, if changeover occurs as ordered this will allow the child Y a week before the New South Wales final school term commences, to prepare for his new school. It also allows him to enjoy full end of term three Queensland school holidays in the care of his mother.

To this extent, it is to be hoped that whatever adjustments Y needs to transition through can be managed through the balance of the 2020 school year living with the Applicants so that he can commence the equivalent of grade five at his new school in 2021 with the renewed confidence and support. He will, by that time, have spent some time with the mother for a period of two weeks over the Christmas school holidays.
I otherwise make Orders as appear at the commencement of these Reasons, which are, in my view, in the child’s best interests.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 September 2020.

Associate:

Date: 24 September 2020

[2020] FamCA 786

24 September 2020

Key Legal Topics

Areas of Law

Family Law