DOYLE & GALBRAITH
[2015] FCCA 3603
•23 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOYLE & GALBRAITH | [2015] FCCA 3603 |
| Catchwords: FAMILY LAW – Children – With whom a child lives – Best interests of child – Significant risk with both parents – Relocation – In the children’s best interests to relocate back to mothers residence in (omitted) where the children’s maternal and paternal families live – father’s work requires he is away from the home for long periods. FAMILY LAW – Children – Family violence issues – Children have been subjected to significant family violence. |
| Legislation: Family Law Act 1975(Cth), ss.60CC(2)-(3) |
| Applicant: | MS DOYLE |
| Respondent: | MR GALBRAITH |
| File Number: | PAC 3220 of 2011 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 28 September 2015; 26 October 2015; 29-30 October 2015; 21 December 2015 |
| Date of Last Submission: | 21 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Vere |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Mr Rolfe |
ORDERS
That the children of the relationship namely X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2010 shall live with the mother from the commencement of the 2nd half of the April school holidays 2016.
That the parents have equal shared parental responsibility for the children.
The children shall spend time with the father by mutual agreement and failing agreement as follows:
(a)For 10 days in each of the NSW gazetted midterm school holidays being the first half each year.
(b)For one half of the Christmas school holidays alternating each year being the first half in 2017 and each alternate year thereafter and the second half in 2016 and alternating each alternate year thereafter unless otherwise agreed in writing between the parties;
(c)One weekend per month from Friday after school to Monday before school provided the father is living within a 100km radius of (omitted) in the State of New South Wales;
(d)Any such other times as mutually agreed between the parties including the children spending time with the father on any occasion he is in (omitted).
That for the purpose of the children spending time with the father, the father shall collect the children from the mother’s residence at (omitted) at the commencement of the contact period, or as agreed and the mother shall cause the children to be returned to her residence at the conclusion of the contact period.
That the party who does not have the care of the children shall have telephone communication with the children each Monday, Wednesday and Friday between 7:00pm and 8:00pm local time at (omitted), New South Wales.
Both parents are at liberty to attend the children’s school events and to receive copies of their school reports
The mother is to authorise the children’s medical practitioners to speak to the father on any occasion to discuss the children’s health.
The mother and father are restrained from consuming alcohol whilst the children are in their care and ingesting illegal drugs.
IT IS NOTED that publication of this judgment under the pseudonym Doyle & Galbraith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 3220 of 2011
| MS DOYLE |
Applicant
And
| MR GALBRAITH |
Respondent
REASONS FOR JUDGMENT
The matter of Galbraith & Doyle is a parenting application concerning the parents’ three children: X, born (omitted) 2002, Y, born (omitted) 2004, and Z born (omitted) 2010.
The parties’ three children live with their father and his partner, Ms N, in (omitted). There are four other children living with these children. A, a baby, born to the father and Ms N some eight months ago, and Ms N’s three other children, B born (omitted) 2005 aged 11, C born (omitted) 2006 aged 9 and D born (omitted) 2012 aged 3. B and C’s father is a Mr M. D regards Mr Galbraith as his father although he is not his biological father.
Ms N is effectively the full-time parent of seven children, three of whom are the mother and father’s children. The father and Ms N have lived in (omitted) since mid-2014.
The mother remains living in (omitted) where the children had always lived up to 2012.
This is a case that, on reviewing the facts and the evidence and the subpoenaed material, presents a sad and sorry history of drug and alcohol abuse by each of the children’s parents, significant violence perpetrated by each of the children’s parents upon the other in the presence of the children, overlayed with the mothers’ significant mental health problem being schizophrenia. Neither parent has acted at all times in accordance with their children’s best interests. These children have been subjected to poor behaviour and frequent changes of residence by the parents.
The mother seeks that the three children return to live with her in (omitted), and that they spend as much time as they can with their father in school holidays. The father seeks that the children remain living with him in (omitted), where they have now been for some 18 months. These are the only options. The mother will not leave (omitted) and the father states he intends to remain living in (omitted) no matter the order the court makes.
Whichever order the Court makes, there is still a significant risk to the children in either parent’s care.
One of the most significant risks to the children in living with their mother is the potential of deterioration in her mental health, which occurred at minimum in 2008 and 2011/2012. If the mother’s mental health deteriorates in that she no longer is compliant with her medication, she will behave in a violent, angry and aggressive manner as she has previously. The mother has had a serious addiction to cannabis, which is contraindicated to maximising her mental health as a chronic sufferer of schizophrenia. The mother may again refuse the help of her family, as she has done in the past if her mental health deteriorates.
In the father’s care the significant risk is that they may continue to see their father perpetrate violence upon women, as he has done upon their mother and Ms N. Ms N may decide she has had enough and she and the father may separate, as they have previously. The father may, as has happened in the past, secure employment and move the children to wherever the jobs are, his jobs being (occupation omitted). The Court makes no criticism of the father working and providing for his family. The consequence of his work is that the children whilst in his care since 2012 lived in (omitted), (omitted) and currently (omitted).
The evidence was as follows;
a)For the mother:
i)Initiating application, filed 15 November 2015;
ii)Affidavit sworn 11 September 2015;
iii)Affidavit of her mother filed 11 September 2015;
iv)Affidavit of her friend Ms K filed 25 September 2015.
b)For the father:
i)Affidavit filed 15 October 2015;
ii)Affidavit of his partner, Ms N filed 15 October 2015.
I was also referred to previous affidavits filed by all the parties in 2014.
A family report was prepared to Mr B, marked Court exhibit 1.
The mother, her mother and Ms K were cross-examined.
The father and Ms N were cross-examined. Ms N was cross-examined on the telephone.
Exhibits the ICL tendered were 3 separate tender bundles of the mother, father and Ms N.
The matter could not be concluded in (omitted) in October 2015 due to Ms N, to use the colloquial, “doing a runner”. Arrangements had been made for Ms N to attend to give evidence by telephone at either Brisbane or Lismore registry given her commitment to care for 7 children. Ms N did not turn up on the day and could not be located. Ms N did give evidence the next day via telephone and her explanation for failing to attend the day before was “I panicked”.
The matter was adjourned to allow her to be cross-examined before Mr B was cross-examined. There was insufficient time to finish Mr B’s cross-examination on the adjourned day and the matter was stood over part heard before me to 21 December 2015 when the evidence for the parties concluded.
Miss De Vere of Counsel appeared for the mother, Mr Rofe Solicitor for the father and Mr Cairns of Counsel for the ICL.
This is a case where I will balance the least worst option for the children, for whatever decision I make, the children are at risk of being exposed to potentially violent, drug-induced, mental health induced or alcohol induced poor behaviours by the adults in their lives and a possible significant degree of instability
The short and relevant chronology.
The mother was a difficult child to control and she left her parents’ home in 1995, aged 14.
In 1996 she commenced to live with a totally inappropriate man called Mr P who has caused her nothing but grief and who was then aged 40.
The father’s criminal history commences in 1997 when he is charged with driving an unregistered, uninsured, unlicensed vehicle, which such driving behaviour has continued to date. His criminal history also includes drug offences and resisting arrest.
In 1998, the mother was diagnosed with schizophrenia. Despite many florid episodes of schizophrenia in 2008 and 2011, it was not until 2013 that the mother has accepted she has this disease and has been fully compliant with her medication since that time.
These seriously flawed and damaged people, the mother with significant untreated mental health issues and drug addiction, the father with significant drug and alcohol issues commenced co-habitation in 1998. At this time neither accepted that the mother required medication and the mother and father denied her schizophrenia.
The mother was first admitted to (omitted) Hospital in 1999 with her first psychotic episode, and discharged herself against medical advice.
Her daughter X was born (omitted) 2002.
The father was charged with a low-range PCA in 2003.
In 2004 he was charged with possessing a prohibited drug. Y was born on (omitted) 2004.
The father was charged with behaving in an offensive manner near a public place or school in 2005.
The father was charged with resisting arrest, use of offensive language and refusal to comply with direction in 2006.
In 2008 he was charged with possessing a prohibited drug.
In 2008 the mother voluntarily admitted herself to (omitted) Hospital suffering a psychosis and a florid schizophrenic attack.
The parents are arguing in 2008 in the presence of the children. The mother is taken by the police to a women’s refuge because of the nature of the argument.
In September 2008 the mother again voluntarily admits herself to (omitted). At this time Community Mental Health in (omitted) become involved in her care. The mother was discharged some nine days later.
The father was charged with high-range PCA in February 2010.
Z was born in (omitted) 2010.
The parties initially separated in about March 2011. The mother made a complaint the father owned a firearm. The police went to his premises.
The mother’s life began to dissemble. The children are collected from the mother by an Aunt in June 2011 and come into the care of the father.
The children are in the father’s care and he takes them to (omitted) in July 2011.
The mother commences proceedings for the return of the children in July 2011 at Parramatta Federal Magistrates Court as it was then and orders are made in August 2011 for the children to live with their mother.
In August 2011the Department intervened when the mother removed the children from (omitted) to (omitted) to live with Mr P as she was consuming alcohol and drugs to excess.
In September 2011 the police call the father due to children’s living conditions and the mother’s aggressive behaviour.
On 24 September 2011 the mother and Mr P separate and the mother commence to live in (omitted) with the children. The children were not attending school and their life was chaotic so the department again intervenes.
On 10 December 2011 the mother flees (omitted), delivered the children to the father having driven in an unregistered, unlicensed car from (omitted) to (omitted) and then admits herself to hospital.
The parents resume co-habitation or at least some sharing of the care of the children and the children are living with their mother in (omitted).
On 30 May 2012 the parties’ final separation occurs and the father takes the children.
On 27 June 2012 the father harasses the mother on the road, as reported by a third party.
On 6 July 2012 the mother enters the father’s home armed with 2 steak knives. A vicious and serious struggle ensues in front of the children and the father manages to disarm her. Y is sent to get help by his father and the mother is arrested with a final AVO for 2 years taken out against her for protection of the father and children on 11 July 2012.
On 15 August 2012 a final AVO for 12 months was taken out against the father for the protection of the mother in relation to the driving incident.
On 25 December 2012 the mother charged with high range PCA after colliding with a power pole.
On 2 February 2013 the mother was intoxicated and the maternal grandmother calls police to have her removed from her home.
In February 2013 the father and Ms N commence a relationship and the father removes the children to (omitted) while he works in the (employer omitted) in (omitted).
In June/July 2013 Ms N and the children move to (omitted) where the father had been working since late February 2013.
On 13 November 2013 the father was assaulted after leaving a hotel in (omitted) where he was placed for work reasons. His skull is fractured and he was in hospital in a coma for some weeks.
On 13 December 2013 orders are made in the Federal Circuit Court for the children to live with the father and to spend holiday time with mother.
On 28 February 2014 the father fails a second drug test at place of employment and his employment ceases.
In Mid 2014 the father and Ms N move to (omitted).
On 4 June 2014 the father was found guilty of a contravention for not facilitating children time with mother.
On 7 October 2014 the father and Ms N were arguing and the police were called. The father was asked to leave.
On 17 October 2014 Ms N sends a text to the mother saying that she and Mr Galbraith had separated, the children had not been at school for the past week and that the father was off working.
On 22 October 2014 the father advises the mother that he and Ms N have separated for 2 weeks and that he and children were living with the paternal uncle.
In 2015 Z commences school and the father does not consult with the mother.
On 16 March 2015 Ms N complains the father has assaulted her and he is subsequently charged with common assault.
In June 2015 Ms K informs the mother that, at Mr Galbraith’s request, she has driven to (omitted) to care for the children as Ms N had “kicked them out”.
On 20 August the mother hears the father and Ms N arguing whilst speaking to children “These children should be back with their mother I am sick of doing everything for them”.
On 20 August 2015 Ms N says to the mother “why aren’t you doing anything about getting these kids back?”
Despite the mother’s complaints in her affidavit that in some way the father prevented her from having the children in 2011 and that he has stolen them from her, it is clear on the mother’s own evidence that in 2011 and 2012 she was significantly unwell. Her medical problems were schizophrenia, alcohol dependence and significant THC abuse thus her florid and unstable mental health and functioning is hardly surprising.
The mother continues today to say that the father stole her children. The father did not steal her children. In mid-2011 until at least a time in 2013 the mother was unwell. Her co-habitation with Mr P, drug and alcohol abuse only exacerbated her underlying schizophrenia and she was not capable of caring for her children. The mother had no accommodation, no money and three children to care for; her life was a chaotic mess as were the children’s lives and thus living with their father was the least worst option at that time.
The (omitted) Hospital notes talk about her use of THC, heroin and ice and that she was refusing help of her family in 2011. The mother reported her psychosis had come back because she was smoking marijuana. She had voices in her head. It was noted her history of schizophrenia. She had stopped her medication two years ago because, in her opinion, she just did not need them.
In 2011, the father came to (omitted) Hospital to see what was happening with the mother. He was angry. I do not know why. He refuted she had schizophrenia, but he agreed perhaps she should go on the program. Clearly the mother has schizophrenia and needs to be supported at every level to manage it. It is an insidious and pervasive affliction.
However despite the mother functioning poorly at this time, the father continued to work in South Australia and leave the children with the mother throughout much of 2011. The mother moved the children to (omitted) during this time, a decision she now regrets. Things were chaotic for her and the children when living in the caravan at (omitted).
In early 20 February 2012, the mother and children returned to live in (omitted). The father was still working in South Australia. The mother decided she and the father had reached agreement in February 2012 about the children, so the proceedings she commenced were withdrawn. She says she and the father reconciled in early 2012, and they separated again in May 2012.
The father took the children on 30 May 2012.
On 6 July 2012, the mother, in a rage, and clearly suffering from schizophrenia, not on medication, comes to the father’s home where the children are staying and attacks him armed with two steak knives in front of the children. When asked why she took two steak knives, she said:
“Because I knew he would take one of them off me.”
The mother’s charge of a high range PCA in December 2012 was at a time when she was abusing alcohol and not being compliant with her medication. Thus it is clear why the children were placed in the father’s care.
However an injustice has been perpetrated on the mother with the ‘round robin’ of rejections of appeals for Legal Aid and not being able to get to the court to bring her application for a return of her children speedily. The mother was unable to present her evidence to court as she was suffering from the stress of the children being removed from her care, and the father’s harassing and threatening behaviour as described, all added to her problems. Compound these tragedies with the delays in this court for a final hearing and it is clear a significant injustice has been perpetrated on the mother and most relevantly on the children.
The children have been in their father’s care since 30 May 2012. It is now December 2015. That is three years. The mother asks that I return the children to her care, which, for Z, would be a significant change to his usual care arrangements, because he has primarily lived with his father for the majority of his life.
Going to the father’s conduct. The father’s behaviour towards the mother as well as his new partner, Ms N is nothing short of a disgrace.
On 27 June 2012, he saw the mother driving along the road at (omitted), chucked a ‘U-turn’, and then proceeded to travel next to her on the freeway. He frightened her and this was totally unacceptable behaviour, for which the police charged him, and an AVO was taken out for the mother’s protection. A third party reported this reckless act.
The father was very parsimonious with the time he let the mother spend with the children; six hours, for example, on Christmas Day, 25 December 2012.
Early 2013 the father says he is moving to (omitted) for work, and he takes the children with him. The evidence disclosed he took them to (omitted). He enrolled them in a local public school. He would not allow the mother to see the children or them to see her. The father then left (omitted) in about May 2013, relocated to (omitted) with the children for work. He told the mother he was moving to (omitted) in June 2013.
What had actually occurred was that he and Ms N had formed a relationship and commenced co-habitation in February 2013. The father left Ms N in (omitted) with his children and her children, being six children in total, for a couple of months while he went to work in (omitted).
The father left his children with a stranger to them in circumstances where they had been separated from their mother and usual home in (omitted). The mother did not know this lady. This lady did not particularly know the children, yet he went to (omitted) for work and left the children. Not surprisingly, he did not tell the mother until some two months after he had moved that he had actually gone to (omitted).
The father’s employment in (omitted) with (omitted) was lucrative, good employment, provided him with good income and in which he is quite skilled. However it was terminated after some 7 or so months.
In cross examination the father said this was due to a dispute he had with the son of the boss he was employed by. This was a lie. His employment was terminated because of his alcohol and drug use. He came to work drunk. It is clear on the evidence being the subpoenaed material from (employer omitted).
The father did not tell the truth as he was intent on telling me exactly what he thought I needed to hear. The mother, however, was, if anything, blunt in her honesty.
Orders were made that the children live with their father in February 2014. However the father failed to comply with orders that he was to let the mother know when the children were coming to (omitted) to spend time and he made it virtually impossible for the children to maintain their all-important relationship with the one person who had been their primary carer since their birth, up to May 2012.
In June 2014, the father said he was moving from (omitted) to (omitted). He was found guilty of a contravention in not assisting the mother to see the children, and did a post-separation parenting course in June 2014. He failed to ensure the children had telephone communication with their mother.
On 17 October 2014, the evidence is clear that young Ms N, with then six children to care for, sent the mother a text message.
“If you want your kids back, maybe that’s the best place for them at the moment. Mr Galbraith and I have split. They’re not here.”
They were with the father’s brother, where Ms N had delivered them, in a protective way.
“And Mr Galbraith is working and they haven’t been at school for the past week. Someone needs to do better.”
Mr Galbraith was, at that time, working north of (omitted), being away for two weeks solid at a time, leaving the children in the care of Ms N.
Ms N was concerned about the children, concerned about what was happening and concerned for their welfare and that is consistent with the school records, which show 15 days unexplained absence for the children in 2014. The children were living with their paternal uncle, because the father was working and not available.
In March 2015 the father grabbed Ms N around the neck, choked her, overbore, threatened her and stood over her. This is disgraceful behaviour and alcohol was involved.
The father and Ms N had a fight in June 2015. Ms N threw a chair and it hit Y in the chest. This is the behaviour these children have witnessed and had to put up with in the home of the father, whether he lives with their mother or whether he lives with Ms N. He perpetrates violence on women in the presence of children. The mother may have had some excuse with her significant mental health, non-compliance with medication, drug and alcohol use for her previous unacceptable behaviours in attacking the father in front of the children. Fortunately her life has changed since that time.
On 7 October 2014, when Ms N is pregnant, the father and she had a fight. The police were called and the police asked the father to leave. The children witnessed this.
Mr Galbraith rang Ms K in October 2014 and said :
“Mr Galbraith: I’m away for work, and Ms N and I have had a fight. She has kicked the children out. Can you go and look after them so they’ve got somewhere to stay and they can go to school?
Mr S, my brother, went and picked them off the street.”
Ms K gave interesting evidence. This young lady had a six month old baby yet drove all the way to (omitted) to collect the children. It was a 23 hour drive with stops and a nap. She collected the fathers’ children because he was working on the (employer omitted). She stayed at a caravan park at (omitted) with her baby and the father’s and mother’s children. Mr Galbraith paid for these costs, but she cared for the children.
The father rang Ms K and said Ms N had asked him to go back, and he was going to do so, and Ms K said he said to her:
“If I don’t go back to her, she can use this against me, and I won’t keep the kids.”
The one thing that I am certain of, and there are many things I am not so certain of in this matter, is that Ms N cares for the children not the father. Ms K said the children were very quiet when they had to return to their father’s care and that the children complained about Ms N being nasty to them.
There is some jealousy between Ms N and Ms K. Ms N thought the father and Ms K were having a relationship. Ms K has known the mother and the father for seven years, pre and post their separation. She knows the children, X, Y and Z. She says that when the parents were together, Ms Doyle, the mother, was responsible for the children.
That situation remains today that Ms N is responsible for the children, not the father. He is not a father who does the day-to-day care of children. He is a father who goes to work and earns an income. He certainly does the best he can when he is around, but his focus is on income earning, and I make no criticism.
Ms K said:
“I’m aware Mr Galbraith is often away on work, and will leave the children in Ms N’s care.
The kids they will say, “Dad’s always working.”
Ms K was of the opinion that Mr Galbraith and Ms N frequently argue and she is correct.
Ms K said the father has complained that Ms N buys things for her children and not his.
Both the mother and the father have been perpetrators of family violence, have abused drugs and alcohol to excess and may continue in the future to do so.
What I’m tasked to do today is determine whether it is in these children’s best interests to remain with their father, who, I am satisfied, has very little input into their day-to-day care or they return to live with their mother in (omitted), where she has secured appropriate accommodation being a three bedroom cottage and where the children’s extended family, being their paternal and maternal extended family live.
The independent children’s lawyer has put forward that the children should remain with their father because they are progressing quite well. He is providing a stable home for them. Ms N appears to be coping well. They are going to school and they have stability
In Mr B’s report and confirmed under cross-examination he said that after the report interview process, he thought the father was a ‘nose ahead’. However when the significant and recent incidents of violence, poor behaviour and the volatility of the father and Ms N’s relationship and the strides the mother has taken to retrieve her mental health and continue to be compliant with her medication was made known to him, he thought that perhaps the mother was now a ‘nose in front’.
That is it; this is a ‘nose in front’ decision. There is very little in it. The children expressed no particular desire to live with one parent over another. The mother was disengaged with the children during the report writing process, which is most unusual and was reading magazines at one point. The children were engaged with their father. The children reported to Mr B that:
“Ms N is nice. She keeps us healthy. On special nights like birthdays we get fizzy drinks, but mostly drink water.
Ms N tells the children to brush their teeth, or they will get bad teeth like dad. They like living in (omitted) it is fun. That they want their parents to be together again.”
Y said he would like to live with his parents in (omitted) and (omitted), not understanding the distance between them. He enjoys (omitted) Public School, playing with his mates. Y was asked how he would feel if he lived primarily with his mother, and he replied, “I would miss dad.” When asked how he would feel living with his father and not his mother, “I would miss mum. If they were together, I wouldn’t miss them both.”
Y said that Ms N isn’t fair with the kids and prefers her own children to his, but he said she was good. He described Ms N and Dad had had a couple of arguments, which makes him feel sad. C is mean to him, but D is fun. Z was not interviewed due to his young age.
Mr B opines after his interview with the parents as follows:
“During the event, it was found all three children have positive relationship with both of their parents and their step-mother and step-siblings as well.”
He commented the mother appeared to be physically and emotionally disengaged. He found it difficult to know what to make of it and opined it would be unwise to draw inferences.
I found the mother’s oral evidence was given in a somewhat flat effect. She was brutally honest about herself, her view about the father, about the unfairness of what had happened and the processes which had let her and her children down as she saw it. This may well be a consequence of her medication. I was impressed with her oral evidence that she knows and accepts she must take medication for the rest of her life.
I was also impressed by the mother’s now insight into her poor behaviour in the past, her reliance upon and acceptance of assistance from her own mother and family. It is apparent that she and her own mother and father now have a supportive and close relationship, and that this mirrors the close relationship she has always had with her sister.
I accept the mother cannot leave (omitted). (omitted) is her home. To leave (omitted) would be the end of her. She must stay in (omitted) to maintain her supports which are her GP, who prescribes her medication and who she sees regularly, her family and other community support services when she needs them. (omitted) is the only place she wants to live and she cannot leave. Thus the mother moving to (omitted) is not an option, for her own health.
X and Y were interviewed separately, and both expressed a preference for their parents to reconcile, “because if they were together, I wouldn’t miss them both.” Neither child expressed any preference for living with one parent over the other, and seemed concerned not to express a preference. Mr B confirmed that in his oral evidence.
The children were most concerned not to express a preference, and Mr B said that might be understandable, given their topsy-turvy, erratic parenting all their lives, whether at their mother’s home, their mother and father’s home, their father’s home, or their father and Ms N’s home.
Both parents make a range of concerning allegations and claims of poor behaviour and risk to the children against the other. The mothers concerns of the father alcohol abuse and violent behaviours in front of the children and minimising the importance of her role in their life is supported on the evidence.
The father complains and asks why the mother had little or no interaction with the children between mid 2012 and the end of 2013. He says it was because she wanted to get on with her own life. This comment merely demonstrates his total lack of insight and self-absorption. The mother was suffering significant mental health issues of untreated schizophrenia, was abusing drugs and alcohol, and was refused Legal Aid, a situation that I cannot fathom.
The father’s insight into the significant and overwhelming personal and public hurdles the mother was facing at this time is breathtaking.
“She was preoccupied with her own needs and interests during this period.”
The mother was not. The mother was seriously unwell and struggling with her addictions.
The parents allege the other continues to use prohibited drugs and abuse alcohol and that is probably correct. I suspect they do. If the mother uses marijuana then she is running a serious risk of a relapse as this is contra-indicated to her ongoing health.
The mother said she could drink six beers and still care for the children. No, she cannot. I will make an order that neither parent drink while the children are in their care. They both continue to abuse alcohol despite the father telling me how he hardly has anything to drink. I do not accept this evidence. The father has been charged with high range PCA and the mother lost her license with a high range PCA in 2012.
The father failed a drug test in February 2014 with his employer. He says they were prescription drugs. I reject that evidence entirely. Drugs and alcohol were clearly involved in the (employer omitted) material that was subpoenaed and read out and put to the father. He would not admit the accuracy of the business record, yet I am satisfied it and not he is correct.
The mother rejected any assertion she’s mentally unstable or unwell at the present time. She claimed her psychiatric condition is well managed. She is able to identify and manage problems before they become serious. Mr B said, it would have been of assistance if there was some evidence from a suitably qualified medical practitioner on this vital issue however there is not. What the court required was a report from, at minimum her own GP, about her compliance with medication, her conduct and her behaviour. Although she appeared calm and in control her effect was very flat.
The mother told Mr B she took Zyprexa and acknowledged that she suffers from schizophrenia[1].
[1] Family Report prepared by Mr B dated 14 October 2014 at paragraph 21.
In giving a history of her mental health to Mr B she said she had her first schizophrenic episode at age 17. That she has had a couple of recurrences since then, one in 1999, which she attributes to the hormonal imbalance associated with pregnancy, two in 2008, “when I had been on marijuana, but I am not sure if that’s the reason,” and again late 2011 early 2012 after separation and when living in a caravan park at (omitted).
The mother acknowledged she has the potential to suffer from recurrent psychiatric episodes, “I’m pretty responsible with it.” She can read the warning signs and ensures potential problems are managed. The mother has been taking the antipsychotic medication Zyprexa since the latter half of 2012, and the anti-anxiety drug she also takes is to assist with the stress of the present family law disputes. Once it is over, she will go off all anti-anxiety medication.
I dispute the assertion in the Departmental file that the mother can hide serious issues surrounding her mental health that this would increase the opportunity of risk of harm to the children as was recorded in their notes in 2011. There is no way to hide schizophrenia. This departmental report perpetrated a disservice to the mother as the mother voluntarily admitted herself to (omitted) Hospital in 2011 because she knew she was not well and not coping with caring for the children and she placed the children in their father’s care. That comment by whichever departmental officer was incorrect and unfair.
Mr Galbraith’s way of parenting the children was to commence a new relationship with Ms N, leave his children in (omitted) for 3 months with total stranger and move them to (omitted) and latterly to (omitted) where he leaves them in Ms N’s care for weeks at a time when working.
As Mr B says, given the 1,100 kilometres between the parties home, whichever order the court makes, the children’s relationship with the other parent will be less than optimal. It might be also be less than optimal because of their poor treatment of and behaviour in the presence of their children.
In cross examination Mr B was very concerned to hear that the children were present at the altercations with the father and Ms N in October 2014, concerned that the father lost his license in 2014, concerned at the father’s assault of Ms N in March 2015, as none of this was revealed to Mr B, nor in the material filed by the father or from Ms N. It only came out when, as always, subpoenaed records are read and these matters are put to parties. Mr B said he was concerned as to this repetitive history of alcohol, violence against woman, loss of a licence for drunk driving and he opined “one wonders when a collection of events becomes a pattern of behaviour.”
The incident in March 2015 between the father and Ms N is serious. The father assaulted Ms N, who had just given birth to his baby son. He put his hands around her throat causing marking, police were called and an AVO was taken out.
This concerning recent event was not disclosed by Ms N or the father. The father told Mr B he did not have a criminal history. That is a lie. He has quite a criminal history even apart from driving offences. He told Mr B he resigned from the (employer omitted) job because of all the family law proceedings. That was another lie he was sacked because of his drug and alcohol abuse.
He was not honest with Mr B as to the time he spent away from the family, working two weeks at a time out of a month or that Ms N was frequently left to care for seven children on her own for lengthy periods of time.
The father has had three years to get himself organised to care for his children, stabilise his relationship with Ms N and for his life and his children’s life to be organised and well settled. I find today it is not a well settled environment despite the position taken by the ICL. He is still using the care of his children as an excuse for the volatile relationship he and Ms N have and the many changes to the children’s residences.
There are concerns with the mother. The mother now has appropriate secure accommodation. Her consumption of alcohol and perhaps marijuana and a possible relapse in her mental health cannot be discounted. Her flat affect is a concern.
Neither parent has been available to the children in the last three years. The children are being parented by Ms N and I make no criticism of Ms N.
The mother has not been available because she has been in (omitted) and the father has not been available because he has been working, trying to support his family. Given the deficits in the mother’s functioning and risk to her children in 2011/2012 and the fathers need to work perhaps placing the children in his care was the best decision at that time. The question for me today is, is that the best decision today, in 2015?
The mother said in her cross-examination when pressed on why she took the children from their father in 2011.
“He stole them off me, so I stole them back.”
It was put to Mr B that this answer meant that the mother’s needs trumped the children’s. Mr B did not agree with that. He said what the mother was doing was being brutally honest about why she did what she did. This honesty is in stark contrast to the father.
The mother has advised that X suffers from a genetic condition known as 7Q11.23, which requires her heart to be regularly monitored. The father has failed to do that whilst the child has been in his care.
One of the mother’s more startling comments in her cross-examination was when asked why she attacked the father with two steak knives in front of the children in 2012. The mother agreed that although the children would have been scared by the event, but at least they knew she cared for them. Mr B said this was a very perverse attitude to take towards parenting.
Mr B did not see either parent was ahead of the other in promoting the children’s relationship with the other parent. He thought, in 2012, the father was ahead, but after the volatility of the last 18 months of the father and Ms N’s relationship, the father’s continued abuse of drugs and alcohol maybe now the mother is ahead.
The father’s evidence was most unimpressive. He says he does not drink any more and did not have a drinking problem in (omitted). The business records of his employment show on 14 March 2014, he was dismissed from (employer omitted) because he failed his second drug and alcohol test. When pressed he said “Oh, well, I got done. I didn’t really want to go to work that day, but I had to go, and I got done.”
He was asked if it is the employer’s fault he failed a drug test and alcohol test, not his? He was also asked if he would not sign a ban from drinking at (employer omitted)? He replied: “No, I’d refused it to sign it”.
He then said:
“Oh, (omitted) put three warnings against me, and then he terminated me. I think a drinking problem is when you want to drink all the time. Last drink was a Corona three weeks ago. I had two.”
When asked about his involvement with the children’s schooling he said, “When I am at home.” Therein lays the delicious tension. I do not really know when he is at home. Not much, I suspect. The father said, “Ms Doyle is a bit angry because she thinks I’ve taken the kids away, but I haven’t.” He has taken the children away to (omitted) which is far from (omitted). The father believed the mother should be responsible for paying for the children to see her in (omitted). The mother is on an unemployment benefit and cannot work. He is the wage earner.
The father had no insight into the mothers need to remain in (omitted). He said in cross-examination, “She wants to stay in (omitted). There is nothing there for her.” There is everything for the mother in (omitted). It is where her family is. It is where her heart is. Without (omitted), I formed a view she may not survive.
The father said he got together with Ms N after she got out of rehab. The father says how he deals with arguments now, is he walks away and he as Ms N no longer have these volatile arguments.
There were clearly two periods of separation in October 2014 which was a torrid month for Ms N and the father and particularly for the children. The father would not admit to two separations.
Ms N agreed and said “Yep, there was. I remember. Mr Galbraith came back. We had a fight. He had gone off to work for two weeks, and I told Mr S to come and collect the kids.” There was a separation for a weekend in October and another period of about a week or 2 later in October when Ms K became involved.
Ms N was asked do you think the children may have felt rejected by you when you asked their uncle to collect them, she could not understand that this may have been how they felt and answered:
“Oh, the kids were close enough to Mr S. Kids just – like, it was just, like, a play date. They are going to be having a play date with their cousins.”
Further Ms N said she did not think the arguing between her and the father had any impact on the children and they just walk away and do something else. That concerned Mr B. He said if this is the case then the children may well have become desensitised to poor adult behaviour to which they are exposed.
There is very little insight by any of the adults in this matter about the impact of their behaviour on the children.
Mr Galbraith is now trying to start his own business and says he will be home a lot more. I reject that evidence. He will go where the work is as he always has. That is how he supports his family. That is what he considers his primary role to be.
This is not critical rather a statement of fact. He hopes to get contract work with (employer omitted) and if he does so he will be away for 2 weeks at a time in a month leaving the care of seven children to Ms N.
C, Ms N’s child, was hit by a car when she was getting off the school bus. This is most concerning as the children walk to the bus stop at the end of the street to get to school. C recovered.
It was put to Ms N, did she and the father think to change the arrangements for the kids getting to and from school, which is a parent walking them to the school bus? “No” was their separate answers, “they were fine”. The Court does not agree.
Ms N admitted she sent a text message to the mother saying:
“Your kids would be better off with you. Come and get them.”
Ms N confirmed that she cared for six children on her own from March 2013 until May 2013, a period of three months. Children who barely knew her and who she barely knew.
The mother’s assertion in paragraph 129 of her affidavit that Ms N and the father have a volatile relationship is correct, as is the mother’s belief that Ms N cares for her children.
Going, as I must, to address the factors under section 60CC(2) and (3) and the presumption of equal shared parental responsibility.
I will not rebut the presumption of equal shared parental responsibility. These parties are able to communicate about their children. These children are entitled to have each of their parents make these decisions for them, and it should not be rebutted.
There is no possibility of an order for equal time or significant and substantial time, given the distance the parents live from each other and the only time the children can spend with the non- residential parent is in holidays or when the other comes to where the children live.
The children benefit from a meaning relationship with each of their parents. They say so, and they want to be with their mum and dad. They cannot be however. They must be with one or the other.
The children have been exposed to neglect, abuse and violence in both parents’ household, either perpetrated by their father upon their mother, by their mother upon their father, by persons the mother chose to be with, such as Mr P, by the mother’s abuse of marijuana, drugs and alcohol whilst being a diagnosed schizophrenic and failing to take her medication. By the father’s overuse of alcohol and drugs such that he failed a drug test at work and by the abuse and anger and violence and fights they have witnessed in the father’s home with Ms N from at least 2014 and perhaps earlier. Given these events were only gleaned from subpoenaed material of public reporting, not a reporting by them of how things may actually be in their home, it is hard to determine how matters really are.
Neither parent has been able to protect their children from abuse, neglect and violence. The father continues to expose the children to his and Ms N’s volatile relationship and his poor behaviour. The mother may have retrieved her situation.
Wishes of the children. They have expressed no wish. They want to live with both their parents, so I cannot place any weight on this as it is impossibility.
The father has been neglectful in relation to X’s genetic condition and has not had her heart tested. There has been, certainly, proactive steps taken by he and Ms N in 2015 for the children to attend school and it is pleasing to see their school results and the positive comments teachers make, but they have had unexplained absences.
This attendance is far superior to that the mother could achieve in 2011 and 2012.
The impact of change. For the children returning to live in (omitted) is an environment they are familiar with. That is where they always lived up until 2012. Living with their mother full time is, again, something they are used to. They lived with their mother full time effectively up until 2012. They have a large supportive extended family. The children were very positive of the maternal grandmother in Mr B’s report. Mr B’s reports that X said. “I like seeing my cousins in (omitted)”.[2]
[2] Family Report prepared by Mr B dated 14 October 2014 at paragraph 52.
X said she has enjoyed cooking with her mother during the holidays, explaining they made a vanilla cake with purple icing.
“Dad is going to take us to Dreamworld. Mum took us to the museum. We saw our cousins and watched movies. I like spending time with my maternal grandparent. Nan lets me do stuff with her all the time like making cakes and cupcakes, and she lets me drink milk.”
The separation of the parents makes her feel sad. She heard both the parents saying bad things about the other when they were in (omitted). X reported:
“Mum was using swear words. Dad got cranky, and it was scary. Nan said she didn’t want the children spending time with Ms N, but now she seems okay with her.”
Y explained:
“I like living in (omitted). It’s good, but Ms N ain’t fair with us and her kids. B gets to sit in the front seat more. It is unfair, but she’s fair about other things. He would miss Dad if he lived in (omitted). He would miss Mum if he lives in (omitted). If they were together, I wouldn’t miss both of them.”
These are children who have been subjected to change throughout their chaotic life at times since 2011. Their father has affected that change by moving them around the country for his work, for which I do not criticise him, however moving his children around the country, putting them in the full-time care of a woman who, at that stage, was an effective stranger to them may not have been a child-focussed, appropriate decision in hindsight.
However, given the parlous state of the mother’s mental health his options were limited. The result is these are children used to change. They have been to many schools, lived in many towns and appear to cope well.
The children have attachments to Ms N, their brother A and Ms N’s children. They may grieve the loss of this daily contact however these attachments are not as strong as their attachment to their maternal and paternal families in (omitted) or their attachment to their parents.
Change for Z is of concern. He has lived with his father for 3 years of his 5 year life and may have a primary attachment to his father. However he lived with his mother for 2 years and given the length of time his father has been absent from his life he may have a primary attachment to his siblings as well. Z appears to have coped well with major changes in his life even at his young age.
One of the most significant factors for me is that I am certain that if the father obtains work in his area of expertise – which I accept he has some skills in – he will take that work no matter where it is, and the children may well move again. This is the nature of the father’s work. It is, at one level, itinerant and I make no criticism.
I am certain the mother will stay in (omitted) and will never leave (omitted). The mother is compliant with her medication and thus as well as she will ever be. If she continues on this pathway, her mental health will, if not improve at least remain as is, which is more than adequate to enable her to care for her children.
The stability the mother can provide to the children now that she has secure appropriate accommodation together with the supportive maternal and paternal family that surround the children in (omitted) is compelling. The maternal grandmothers’ evidence was compelling, open and honest when re -counting her difficulties with the mother. However her commitment to her daughter and grandchildren and the stability and ongoing support she provides to the mother was clear and certain.
The father and Ms N’s family all live in the (omitted) area as well and will be travelling to (omitted) to spend time with their extended family from time to time and will be able to see the children on those occasions.
Having regard to all the factors, I find favour with this mother’s application that the children should be returned to live with her in (omitted) as soon as is possible commencing the 2nd half of the next term school holiday to enable her to have them ready to attend school for term 2 and find this to be the order in the children’s best interests.
I certify that the preceding one hundred and eighty –two (182) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 29 March 2016
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