Dutton and Dutton and Anor
[2016] FCCA 2036
•10 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUTTON & DUTTON & ANOR | [2016] FCCA 2036 |
| Catchwords: | |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 64C, 65C, 65DAA | |
| Aldridge & Keaton (2009) FLC 93-421 D & F [2001] FamCAFC 382 Mazorski & Albright (2007) 37FamLR 518 |
| Applicant: | MS DUTTON |
| First Respondent: | MS I DUTTON |
| Second Respondent: | MR DANIELS |
| File Number: | NCC 1594 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 30 September, 1 & 2 October and 19 November 2015 and 3 February 2016 |
| Date of Last Submission: | 2 March 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 10 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilkinson |
| Solicitors for the Applicant: | Hadden Kemp Solicitors |
| Counsel for the First Respondent: | Mr Brakell |
| Solicitors for the First Respondent: | Borthwick & Butler Solicitors Inverell |
The Second Respondent: | In person by telephone on 30 September, 1 October and 2 October 2015; no appearance on 19 November 2015, 3 February 2016 and 2 March 2016 |
ORDERS
MS I DUTTON shall have sole parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.
MS I DUTTON shall promptly advise the mother MS DUTTON and the father MR DANIELS in writing of any decision she makes about any major long term issue for the children including but not limited to choice of school, engagement in counselling or assessment by a paediatrician or other health professional.
The children shall live with MS I DUTTON.
The children shall spend time with the mother as follows:
(a)Each alternate weekend from 9.00am on Saturday until the 4.00pm on Sunday.
(b)On the Mother’s Day weekend each year and if Mother’s Day falls on a weekend the children would otherwise be spending with MS I DUTTON the weekends shall be swapped so that the children spend the Mother’s Day weekend with the mother and the following weekend with MS I DUTTON.
(c)For one week of the Term 1, 2 & 3 school holidays each year being the first half in even numbered years and the second half in odd numbered years to commence at 9.00am on the first or second Saturday of the holidays and end at 9.00am on the second or third Saturday of the holidays as the case may be.
(d)Each alternate week during the Christmas School holidays each year being the first and each alternate week when the holidays commence in even numbered years and the second and each alternate week when the holidays commence in odd numbered years with the time to commence at 9.00am on Saturday and end at 9.00am on the following Saturday.
(e)From 4.00pm on 24 December until 12 noon on Christmas Day in even numbered years and from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years.
(f)At such additional or alternate times as may be agreed between the parties.
The mother shall not leave the children alone with MR D and if she is unable to be personally present when the children are at her home on a weekend and the children would otherwise be left with MR D, the mother shall return the children to MS I DUTTON.
The father shall spend time with the children as follows:
(a)Once each four weeks in (omitted) at times agreed between the father and MS I DUTTON being on a weekend when the children would otherwise be in the care of MS I DUTTON.
(b)During school holidays as agreed between the father and MS I DUTTON and subject to any time the children are spending with the mother pursuant to these orders.
(c)Each Father’s Day from 9.00am to 5.30pm and if Father’s Day falls on a weekend when the children would otherwise be with the mother the weekends shall be swapped so that the children spend the Father’s Day weekend with MS I DUTTON (for the purposes of her facilitating time with the father) and the following weekend with the mother.
(d)Each Christmas Day falling on even numbered years from 1.00pm on Christmas Eve to 5.30pm Boxing Day.
(e)At such additional or alternate times as may be agreed between the father and MS I DUTTON subject to the orders for the children to spend time with the mother.
Each party is entitled to attend all events involving the children including but not limited to:
(a)Sporting fixtures.
(b)Extra-curricular activities that allow for parental attendance.
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
Each party will ensure that the other parties are kept informed of:
(a)Any medical problems or illnesses suffered by the children while in their care.
(b)Any medical treatment of a significant nature given to the children.
(c)Any medication that has been prescribed for the children and which is required to be taken when the children are with one of the other parties.
(d)Any social, school, extra-curricular activities or religious functions which the children are to attend.
(e)Their residential address and telephone contact details.
Each party may obtain from the children’s school copies of newsletters, school reports, order forms for school photographs and other documents normally provided to parents.
Each party shall refrain from making critical or derogatory remakes about any other party or any other party’s partner or family in the presence or hearing of the children’s or on social media and each party shall do all things necessary to ensure that no third party makes critical comments about the other party or the parties partner or family in the presence or hearing of the children or on social media.
Each party is restrained and an injunction is granted restraining them from using illicit drugs at their property when the children are also at the property (whether asleep or in a different part of the house or otherwise) and shall use their best endeavours to ensure that no other person uses illicit drugs when the children are at their property or in their care and each party shall ensure that the children are not exposed to illicit drugs or drug paraphernalia.
IT IS NOTED that publication of this judgment under the pseudonym Dutton & Dutton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1594 of 2014
| MS DUTTON |
Applicant
And
| MS I DUTTON |
First Respondent
And
| MR DANIELS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for X, 10, and Y, 7 and in particular whether they should live with the Applicant Ms Dutton or the First Respondent Ms I Dutton.
Ms Dutton is the children’s mother. Ms I Dutton is their great great aunt but she was the mother’s “Mum” throughout her childhood and the children call her “Nan” or “Nanna.”
I intend to refer to Ms Dutton as the mother in these reasons and to Ms I Dutton as the maternal great aunt. Technically she should be called the maternal great great aunt but that is too cumbersome.
The mother and maternal great aunt live in (omitted) and pursuant to orders made in 2014, the children live with the maternal great aunt and spend frequent time with the mother.
The mother sought orders that she have sole parental responsibility for the children and that they live with her and spend regular time with the maternal great aunt. In the witness box she expressed a wish to relocate from (omitted) to either (omitted) or the (omitted) but during final submissions her counsel said that this was not pursued.
The problems confronting the mother in terms of succeeding with her application are the children’s wishes and their stated dislike of her partner Mr D who the family report writer found dominant and overbearing.
The maternal great aunt proposed that she should have sole parental responsibility for the children and that they should live with her and spend time with the mother each Monday, Wednesday and Friday from after school until 5.30 pm and on one day each weekend from 11.00 am till 3.00 pm. She sought an order that the mother not leave the children alone with alone with Mr D.
The problems confronting the maternal great aunt in terms of succeeding with her application are that she uses cannabis, her two youngest daughters Ms T and Ms K commenced using cannabis in their teens, one quickly graduated to ice use and both formed relationships with violent drug users who subsequently went to jail for assaulting them and there is a risk that the children might follow in same path if they continue to live in the maternal great aunt’s household.
The mother also alleged that the children were at risk of exposure to domestic violence and sexual abuse in the maternal great aunt’s home, a claim I will have to carefully assess.
The children’s father Mr Daniels lives in (omitted). He has a good relationship with the maternal great aunt and comes to (omitted) about once every three weeks and spends time with them there and he has also had some school holiday time with them.
The father took a very limited part in the proceedings. His position was that the children should continue to live with the maternal great aunt and that he should continue to spend time with them as he does now.
The maternal great aunt proposed orders which would facilitate this. The mother has had no communication with the father for years and proposed no orders about him spending time with the children and this is a negative for her case. The father may not wish to have an extensive role in the children’s lives but nothing adverse is known about him and the children have a good relationship with him and it is important that they continue to spend time with him.
The evidence
The mother relied on her amended initiating application filed on 22 September 2015 and the affidavits of herself, her partner Mr D and her friend Ms P all filed on 22 September 2015.
The maternal great aunt relied on her affidavit filed on 11September 2015, the affidavits of her daughter Ms K filed on 4 September 2015 and her daughter Ms T filed on 1 September 2015 and the affidavit of her former partner Mr I filed on 27 August 2015.
The father has never filed any documents in the proceedings but he attended the family report interviews and was permitted to take part in the hearing when he chose to attend.
A Family Report was prepared by Ms A, a Regulation 7 Family Consultant.
Ms P was not required but all of the other witnesses were cross-examined.
I have some concerns about the reliability of the evidence of the mother and the maternal great aunt. The words “I believe” occurred frequently in the maternal great aunt’s affidavit and the mother made sweeping allegations about the maternal great aunt such as about her consumption of alcohol but there were some signs that the mother was prone to exaggerate or misrepresent matters such as these to suit her purposes. She told police in December 2013 during an altercation with the maternal great aunt that the maternal great aunt was intoxicated but when the police attended at the maternal great aunt’s home they found otherwise.
I have a considerable suspicion that the mother, Mr D and possibly but less probably the maternal great aunt and Mr I are being untruthful with Centrelink about their living circumstances and if they are willing to be untruthful in this regard then it is open to question whether other evidence they give should be readily accepted.
The maternal great aunt was not truthful with the family report writer about her cannabis use and the mother and maternal great aunt have both been willing to be untruthful with Centrelink about the children’s living arrangements when applying for Centrelink benefits.
The evidence of Ms K and Ms T was colourful and not necessarily reliable.
My concern that all of the witnesses have at different times and in different circumstances not been completely truthful makes it very difficult for me to make findings about issues in dispute. I have a sense of unease about whether certain allegations about drug use and violence may be true or at least whether there may be more to them than people are willing to admit but the state of the evidence does not allow me to make findings and I refer in particular to allegations about drug use by the mother, family violence and drug use by Mr D and historic family violence in the maternal aunt’s household.
Delay in delivery of this decision
The hearing commenced in Moree on 30 September 2015 and it continued on 1 October & 2 October 2015.
It could not be concluded in the time available in Moree and further evidence was taken in Tamworth on 19 November 2015. However there was no time to do submissions that day and finding a date on which all counsel were available to make submissions proved difficult.
Submissions were finally made on 3 February 2016 but the parties advised that they wished to hand up a tender bundle and that was not made available to the court until 2 March 2016.
Judgment was then reserved and I apologise to the parties for the delay in completing the judgment.
I was advised during the mention of the matter on 2 March 2016 when the tender bundle was handed up that there had been a change in living arrangements in that the maternal great aunt had moved from (omitted) (two doors from the mother’s home) to an address elsewhere in (omitted).
No party has sought to re-open the matter since the mention on 2 March 2016 and I am entitled to assume that no other significant changes or critical events have occurred during the period when the judgment was reserved.
Background
The maternal great aunt (born on (omitted) 1958) and the mother (born on (omitted) 1986) are both Aboriginal and have both lived in (omitted) for the majority of their lives.
The mother was given to the maternal great aunt by her mother when she was two days old, apparently because her mother believed that the great aunt’s husband Mr C was the child’s father. The maternal great aunt and Ms Dutton had four older children and the mother was from then on brought up as another of the maternal great aunt’s children and in happier times called her “Mum”.
The maternal great aunt and Mr C separated when the mother was still a baby. The maternal great aunt then commenced living with Mr I and they went on to have two children, Ms K born on (omitted) 1993 and Ms T born on (omitted) 1995.
The maternal great aunt and Mr I both said in evidence that they separated in about 2002 although they remain on good terms and still spend time together. The mother alleged that they had never separated and maintained separate addresses for Centrelink purposes. On the state of the evidence I cannot make a finding about this one way or the other.
The mother moved to Sydney in 2002 or 2003 when she was 16 and lived and worked there for several years.
When the mother was about 19 she returned to (omitted) where she met and formed a relationship with the father who is not aboriginal and they had two children, X (called X) born on (omitted) 2005 and Y (called Y) born on (omitted) 2008.
The mother and the maternal great aunt told different stories about the care arrangements for X and Y after their birth.
It was common ground that while the mother and father were together the maternal great aunt helped out with the care of the children when was the mother was working.
The mother said that this did not mean that she ceded care of the children to the maternal great aunt. She said that this was what Aboriginal families did and said that in addition, the children attended day care and that the father was not employed until right toward the end of the relationship and also helped care for the children.
The maternal great aunt suggested that she had a much more substantial role in the children’s lives than just being their carer when the mother was working.
It was not in dispute that the mother and the maternal great aunt shared the Centrelink benefits for the children, with the mother receiving the benefits for X and the maternal great aunt receiving the benefits for Y. The family report writer, who has considerable experience interviewing aboriginal families, saw nothing unusual about the adults agreeing to share the benefits in this way and recognised that when such family arrangements fall apart this monetary arrangement can lead to conflict. She said as follows:
Some mothers who are having difficulty managing their families will ‘sign over’ [that is transferring Centrelink payments to the family member caring for the child]. The author of this report has observed and assessed many situations where perceived financial gain can create considerable and long term conflict.
In the circumstances of this case, the party’s agreement to share the Centrelink payments does not necessarily tell me anything about the children’s care arrangements. The best I can say is that it was not in dispute that the maternal great aunt played a significant role in the care of the children while the mother and father were together.
The mother and father separated in 2009 at which time the father moved to (omitted). The mother applied for an Apprehended Domestic Violence Order to protect her from the father but I was not provided with any information which would allow me to make findings about why she did this and what if anything it means for these proceedings.
In March or April 2010 the mother formed a relationship with Mr B and in October 2010 she moved with him to (omitted). She took X with her and a few weeks later Y joined them. The maternal great aunt did not seek to prevent this which suggests that up to that point of time the mother was in charge of making decisions for X and Y and the maternal great aunt was in the background providing help and assistance (albeit perhaps substantial assistance).
X was enrolled in (omitted) Public School at the beginning of 2011 and she attended there until mid-2011. There was no dispute that this occurred because the maternal great aunt’s counsel questioned the mother about the number of school absences the child had in that six months and blamed her for it and documents subsequently tendered established that X was enrolled in that school.
In mid-2011 however the maternal great aunt collected the children from (omitted) and took them back to (omitted) and they lived with her there for several months before the mother also returned to (omitted).
The mother said that this came about because she contracted swine flu and was very ill for several months. She said that she asked the maternal great aunt to help out and the maternal great aunt told her that she would “come and grab the kids.”
The maternal great aunt said that the mother rang her and said that she was not coping. She said that she went to (omitted) to collect the children and found the house filthy and the children unkempt.
I cannot determine where the truth lies about this. It is possible that each party is now selectively reporting events from the past in a way which fits with their case. However it was not in dispute that from mid-2011 until September 2011 the children lived with the maternal great aunt in (omitted) and the mother lived in (omitted).
In September 2011 the mother returned to (omitted) and obtained a job at (employer omitted). She alleged that the children returned to live with her and that she enrolled them in school and day care and that the maternal great aunt helped out by minding them during the day when required.
The maternal great aunt alleged that after the mother returned to (omitted), the children continued to live primarily with her at her home at (omitted).
I cannot be certain where the truth lies about this either but whichever version is correct, the maternal great aunt continued to have a significant role in caring for the children and it would also appear that the parties continued to share the Centrelink benefits for the children.
In March 2013 the mother was involved in a serious motor cycle accident in (omitted) and was air lifted to (omitted) Hospital in (omitted). She was in a coma for nine days and was in hospital in (omitted) and later (omitted) for about a month. During this period the children lived with the maternal great aunt.
After the mother was released from hospital she initially moved into the maternal great aunt’s home but in August 2013 she moved out to live with her friend Ms P and after spending a short time there she rented premises at (omitted), two doors from the maternal great aunt’s home.
The mother and the maternal great aunt both alleged that after this the children lived primarily with them.
I cannot be absolutely sure what was going on at this time but there was certainly conflict between the parties over the children on and off after the mother returned to (omitted) in August 2013. The police were called twice to altercations between the parties over the children on 27 and 28 December 2013 and there was further conflict in 2014.
In June 2014 the mother went to Centrelink and told them that the children were both living with her and that they should cease paying any benefits for X to the maternal great aunt.
The maternal great aunt alleged that the mother wanted “the money” for X so that she could buy a new car and that when the maternal great aunt would not agree to this the mother tried to take the children from her, at first by force or enlisting the support of a local agency and when that failed by commencing court proceedings.
The mother agreed that she told the maternal great aunt in or about June 2014 that she wanted to receive X’s payment and told her that she would give her a few weeks to get her bills in order before implementing the change through Centrelink. It was implicit in the mother’s case however that she did this because the children were either primarily living with her and or ought to have been primarily living with her and not because she simply wanted the money.
On 5 June 2014 the parties got into a heated dispute about the children inside (omitted) Police Station. The children were present and police records suggest that the mother was yelling in the maternal great aunt face. The police asked the children who they wanted to go with and they said that they wanted to go with the maternal great aunt and the police facilitated that occurring.
The mother was incensed; she considered that because she was the children’s biological mother there should not be any argument about where the children lived if she wanted them to live with her and on 11 June 2014 she filed an application in Moree Local Court for a Recovery Order. The Magistrate made an ex-parte Order and the police were obliged to carry it out and went to the maternal great aunt’s home to collect the children.
The maternal great aunt came out with the children but they cried and clung to her and X ran back to her after going part way down to the gate where the mother was waiting. One of the children yelled out that they did not want to see Mr D because he pulled her hair. However in the end the Recovery Order was executed and the children left reasonably peacefully with the mother.
The maternal great aunt immediately took the matter back to Court and on 17 June 2014 an order was made for the children live with the maternal great aunt and the proceedings were transferred to the Federal Circuit Court.
The mother was by this time pregnant to Mr D and shortly after 17 June 2014 orders were made she suffered complications with her pregnancy and was admitted to (omitted) Hospital in (omitted) where she remained for two months. Her daughter Z was born on (omitted) 2014 and the mother returned home to (omitted) shortly afterwards.
On 19 August 2014 interim orders were made in this Court for X and Y to live with the maternal great aunt and spend time with the mother supervised by the maternal great aunt’s adult daughter Ms K. The supervision ended after about two months by agreement between the parties and the children began to spend time with the mother quite frequently, noting of course that the parties were living two doors apart.
In due course a family report was prepared. The report writer recommended that the children remain living with the maternal great aunt. The mother vigorously opposed this and the matter was listed for hearing
The parties’ current circumstances
The mother lives at (omitted) with Z. She continues to be in a relationship with Mr D but she and Mr D both said that they did not live together. The mother said that Mr D had a home elsewhere in (omitted) but spent many overnights at her home and Mr D said during cross-examination:
I’m there nearly every day but I don’t sleep there every night.
The mother and Mr D said that they might live together in the future.
Mr D is a (occupation omitted) by trade. He has the care of P who was aged 13 at the time of the trial and he said that P also spent some nights at the mother’s home.
The mother was not working at the time of trial but she has a solid working history and said during cross-examination that she wanted to get back into the work force as a (occupation omitted).
Until at least the second part of the hearing in November 2015 the maternal great aunt was living with X and Y at (omitted) and living with them was H aged 2. The maternal great aunt said that H’s mother had asked her to watch him for a while until she worked herself out.
Ms T and her infant son I were living with the maternal great aunt when the family report was prepared but by the time Ms T gave evidence in November 2015 she was living in (omitted) with I. The maternal great aunt’s granddaughter K aged 15 was also living with her when the family report was prepared but her living arrangements were not the subject of inquiry during the trial.
Ms K aged 22 lives independently in (omitted).
Mr I said that he had his own place in (omitted) but occasionally went to the maternal great aunt’s home to watch Foxtel.
I was advised on 2 March 2016 that the maternal great aunt had moved to another address in (omitted) but the address was not supplied.
The children attend (omitted) Public School.
The father lives in (omitted). He has married and he spends time with the children about every third weekend in (omitted) and also during the school holidays. It was suggested that the children did not get on with his wife but this issue was not explored at the hearing.
Nothing adverse was alleged against the father but it is apparent that for whatever reason he has no desire to have a greater role in the children’s lives than he has at present.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine the children’s best interests I must have regard to the matters in s. 60CC(2) and (3) of the Family Law Act.
It is important to note that although some of the s. 60CC(2) & (3) considerations refer only to parents and although almost all of the objects and principals in s.60B of the Family Law Act refer only to parents and children, ultimately the court must make the orders which it considers to be in the children’s best interests and the mere fact of parenthood does not mean that a parent has primacy over other applicants for children’s care
In Aldridge & Keaton the Full Court put it this way:
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders. [1]
[1] Aldridge & Keaton (2009) FLC 93-421
Pursuant to s.65C of the Family Law Act the maternal great aunt has the standing to apply for parenting orders in respect of the children; she is a person interested in his care welfare and development, and s.64C of the Family Law Act permits the court to make parenting orders in favour of a parent of a child or some other person.
However while parenthood does not give primacy it is a factor I must take into account. In D & F the court expressed it this way:
There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child. [2]
[2] D & F [2001] FamCAFC 382
The primary considerations in s. 60CC(2) are the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is important for a number of reasons that the mother has the opportunity to have a meaningful relationship with the children.
We live in a society in which children are usually brought up by their parents and the principals and objects in S 60B of the Family Law Act are focussed on the benefits to children of their parents being involved in their lives to the maximum extent consistent with the children’s best interests.
The mother has much to offer the children. She has a history of paid employment and in this she is a good role model for her children. She does not have a criminal record save for the conviction following the road side drug test several years ago and there was no evidence of any recent drug use by the mother. The children have a sibling who lives with the mother.
However the mother can potentially have a meaningful relationship in with her children in other words a relationship which is significant important and valuable to them[3] whether they live with her or with their maternal great aunt. She can see them regularly, provide them with nurture and guidance when they are with her and connect with their school.
[3] Mazorski & Albright (2007) 37FamLR 518
The father has chosen his role in the children’s life and it is not an especially meaningful one. He comes to (omitted) every third weekend to spend time with them and spends some time with them during school holidays but there was no evidence that he had any interest in or involvement in their education or health.
However the children relate well to him and it is important that the children continue to have a relationship with him and a notable absence from the mother’s proposal for parenting orders was any proposal about the father spending time with the children. The maternal great aunt in contrast sought orders that the father continue to see the children as he currently does.
The second primary consideration (the need to protect the children from physical or psychological harm from being exposed to abuse neglect or family violence) is an important one in this case but I cannot deal with it until I make findings about the additional considerations in s.60CC (3).
The first of the additional considerations is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's view.
The family report writer interviewed the children and said as follows:
X would like to live with Ms I Dutton and see Mum. She liked having time with Dad. Y would like to live with Nan and have time with Dad. Y clearly stated that she did not like Mr D, did not like to see him because he scared her because he yelled all the time and yelled at Mum. Both girls reported that they did not like yelling.[4]
[4] Family Report dated 9 April 2015, paragraph 86.
During final submissions the mother’s counsel said that the court should not place weight on this evidence because the children may have been coached. However the family report writer made very clear when asked during cross-examination she did not believe that they had been coached or primed before the interview to give these answers. She also said as follows in the report:
Aboriginal children tend have to have good visual skills and when asked to draw their families they drew each other, ‘Dad and Nan’ referring to Ms I Dutton. These drawings were completed independently.[5]
[5] Family report paragraph 84
The views the children expressed to the family consultant are consistent with their stated wishes in the police station in (omitted) in 2014 and their behaviour when the police had to execute the Recovery Order in June 2014. I do not accept that the children have been coached, but of course their views are only one matter I must take into account.
I must consider the nature of the children’s relationship with each of their parents and any other persons including any grandparent or other relative of the child.
The family report writer said that it was apparent that the children had a strong attachment to the maternal great aunt and were relaxed and comfortable with her and I place weight on this evidence.
At the time of the family report interviews the children were seeing their mother nearly every day, living as they did two doors from her and the family report writer said as follows about the interaction she observed.
The girls did not show any fear of their mother, wanted to spend time with their half sibling Z and then wanted to draw. The mother commented that the girls liked participating in craft based activities and she really encouraged this. The girls showed no emotion when saying good bye to their mother but it is noted that they see her each day after school.[6]
[6] Family Report dated 9 April 2015, paragraph 82.
It was the maternal great aunt’s case that the children were fearful of Mr D and did not like spending time with him. The mother and Mr D both strongly disputed this and gave evidence of things that Mr D and the children did together.
The children made negative comments about Mr D during disputes between the parties in June 2014 and on the day of the report interviews Y did not wish to be observed with Mr D and X supported this. I therefore have no independent information about the way the children interact with Mr D and I need to be cautious about the weight I place on the assertions of the mother and Mr D about this issue. The mother is keen to obtain an outcome and may be making a selective report about the situation, emphasising positive things which have occurred and not being attuned to the children’s dislike of being growled at by Mr D.
The independent evidence available suggests that the children do not have a good relationship with Mr D and have considerable reservations about him.
There was little evidence addressing the relationship between the children and Z but there was nothing to suggest it was not a satisfactory one.
The family report writer said as follows about the children’s interaction with their father:
The girls greeted their father with considerable warmth and discussed what they could do with him at their next visit. Their father responded with warmth and empathy. The girls left the interview with the father without any apparent distress.[7]
[7] Family Report dated 9 April 2015, paragraph 82.
An unknown in the case is the children’s relationship with P, the child in Mr D’s care.
I must consider the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children or to communicate with the children.
The father has clearly elected to take a back seat in the children’s lives and leave important decision making about them to others but he is not a main player in this case.
Although I cannot make findings about the exact care arrangements for the children between their births and the second half of 2013 when the current conflict between the mother and maternal great aunt erupted, I do not accept that the mother has ever stepped out of the children’s lives because of lack of interest in them. The mother has had issues during her life with ill-health, a serious accident and a high risk pregnancy and she had also been in paid employment at times and in happier times she no doubt felt it quite natural to ask her “Mum” to help with the children. This case involves Aboriginal children and as the family consultant pointed out:
It is important to note in some Aboriginal families ‘grannies’ are often cared for by grandparents, extended family or a significant other in the child’s life without formal orders being in place.
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the children.
The father is not paying child support for the children but that might be because the maternal great aunt has not sought it.
There was no evidence that the maternal great aunt had sought a child support from the mother but given that the mother is currently not working and has the care of another young child it is extremely unlikely that she would be assessed to pay anything other the minimum amount if an application was made.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child or other person including any grandparent or relative of the child with whom he or she has been living.
This is an important consideration in this case.
The maternal great aunt has always played a significant role in the care of the children and they have if nothing else been living primarily with her since mid-2014 and very likely have been living primarily with her continuously since March 2013 when the mother had her serious motor cycle accident.
There was a period of some months in 2013 the mother was unable to properly care for them when because of the accident and in 2014 she was again away from (omitted) for two months because of circumstances to do with her pregnancy with Z.
The children have a strong attachment to the maternal great aunt and have exhibited resistance to spending time with Mr D. It might well be very difficult for them to accept a sudden and extensive change in their care arrangements.
That is not to say that they would not settle if given appropriate support because children do adapt to change but it would be a significant change for them and there are a number of reasons to be concerned about whether they would settle. These include their dislike of Mr D who is part of the mother’s household, unknowns about their relationship with P who is also regularly in that household and whether the mother has any health or mental health issues which might make it difficult for her to ride out any adjustment difficulties and assist the children to settle.
If I come to the view that issues of drug use and family violence in the maternal aunt’s home mean that the children are at either short or long term risk if they remain there then a change to the children’s living arrangements might be beneficial for them in the longer term provided that there were not similar problems in the mother’s home but I have no doubt that in the short term the children would have some adjustment difficulties.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not an issue in this case. The mother lives in (omitted) and the father in (omitted) but the father is choosing his role in the children’s lives and it is not distance which prevents him seeing more of the children than he does at present.
I must consider the capacity of each parent and any other person including any grandparent or other relative of the child) to provide for the needs of the children including their intellectual and emotional needs.
The mother appears at present to have the capacity to provide for the children’s day to day needs in terms of feeding and clothing them and taking them to school or perhaps to put it rather differently there does not seem to be any reason why she should not have that capacity. She is not working at present and the family report writer commented that Z appeared well cared for and that the mother responded appropriately to her during the family report interviews.
The maternal great aunt’s counsel submitted that the court should be concerned because X missed a large amount of school in (omitted). The mother said that this was because of her illness and some illnesses for the children and it was five years ago when the mother was in a different situation in life. I cannot conclude from that that the mother lacks the capacity to attend to the children’s education.
An issue was raised about whether the mother was using drugs.
The father alleged that when he and the mother lived together the mother used cannabis (yandi). However absent one matter in 2013 she does not have any history of police involvement in connection with drugs and there was no evidence other than speculation by the father and the maternal great aunt that she was currently using drugs.
Police records produced on subpoena established that on 7 December 2013 the mother was stopped while driving a motor vehicle near (omitted) and tested for illicit drugs and she tested positive to methamphetamines. This test was repeated at the Police Station and the mother again tested positive for methamphetamines. The mother was convicted of driving with an illicit drug in her blood and was fined $400.00 and disqualified from driving for six months.
The mother denied that she had used methamphetamines and told the police at the time and told the court during the hearing in 2015 that she could not explain the test results. During cross-examination she said:
I must have drunk the wrong drink or someone gave it to me without me knowing.
It is difficult to know what to do with this conviction. It is hard to believe that the most obvious explanation should not be accepted, i.e. that the mother tested positive for methamphetamines because she had used them. On the other hand there was no evidence which would establish any drug use by the mother since that time. There are no subsequent police records which raise a concern.
The maternal great aunt alleged that Mr D was using ice. There was no evidence to support this allegation and this court can only act on evidence.
Records produced on subpoena suggest that the mother has struggled with anxiety and depression over the years and since her motor vehicle accident she has been suffering from chronic pain. At the time of the Family Report interviews in April 2015 she was not taking pain medication because she was breastfeeding Z and she admitted to the family consultant that she was in constant pain.
There was nothing to suggest that the mother was not coping perfectly well with parenting Z but she has not had X and Y in her full time care since her accident three years ago and her medical history raises a small level of concern about how she would cope if the transition of the children into her care proved stressful (for example because one or both of them resisted Mr D). She may cope perfectly well and ride out any stressors as parents have to do but I could not be absolutely confident of that.
Another issue of concern about the mother’s proposal is the presence of Mr D in her household.
The family report writer was concerned about Mr D’s presentation at the report interviews. She said that when the mother was on her own she was able to describe how she would parent the girls if they lived with her but when Mr D was present he was “dominating, aggressive and had to be asked to allow the mother to speak.” [8]
[8] Family Report dated 9 April 2015.
The family report writer also noted that Mr D minimised his prior contact with the justice system and that the mother did not appear to be aware of the extent of his criminal history. She was also concerned that Mr D had four children whom he did not spend any time with.
The mother denied that Mr D was an aggressive man or that she sometimes yelled at the children. However there was evidence in the subpoena material of both the mother and Mr D behaving aggressively when dealing with issues associated with the mother’s pregnancy. The concerns about Mr D are not easy to dismiss when there is independent evidence that they both have a propensity to behave in this way.
Police records of the incident at (omitted) Police Station on 5 June 2014 report the mother standing right out against the maternal great aunt and yelling in her face with the children present which caused the children to become very upset.
On 17 April 2014 the mother and Mr D met with doctors concerning the progress of the mother’s pregnancy. The hospital notes record them both becoming verbally aggressive and walking out of the meeting. Records of another meeting while the mother was pregnant contain the note that Mr D and the mother had stormed out of the meeting.
The children told the family report writer that they did not like it when Mr D yelled at them.
I am concerned about Mr D but note that the issue of his criminal record remains a mystery to me. No criminal record was tendered in the end and during submissions the mother’s counsel asserted and the maternal great aunt’s counsel did not contradict, that Mr D’s last criminal conviction was in 2008. I therefore cannot draw any conclusion about Mr D’s suitability as a person to be in the children’s lives based on his criminal record.
The maternal great aunt has been doing a satisfactory job of feeding and clothing the children and ensuring that they attended school. It is in my view significant that the mother did not raise any issues about the children’s school attendance or school achievement in the last few years.
The family report writer recommended that the maternal great aunt commence involving the children in some extra-curricular activities/sport and recommended that the father contribute to the cost of that. There was no evidence at the hearing that this had commenced and it is difficult to be optimistic that it will commence.
That alone is not a serious indictment of the maternal great aunt’s parenting. However the issue of drug use by the maternal great aunt and her youngest two children raises significant concerns about whether the maternal great-aunt’s household is a safe and satisfactory place for the children to be.
The mother told the family report writer that she was concerned about drug use and domestic violence in the maternal great aunt’s home. The maternal great aunt conveyed to the family report writer that neither of these were issues of concern but the subpoena material and what emerged in cross-examination indicates that this is far from being the case.
The maternal great aunt told the family report writer that she did not use illicit substances and this was untrue. She admitted during the hearing that she was a habitual cannabis user and that she used cannabis whenever X and Y were not in her home.
She said that she kept the cannabis at a friend’s house and never used it when the children were there but I only have her word for the that and her word does not carry much weight when she was not honest with the family consultant about her cannabis use. I agree with the mother’s counsel that it is hard not to be sceptical about the maternal great aunt’s claim that she only uses cannabis when X and Y are not in the home and there are other concerns such as the smell lingering even if she uses when they are away.
The evidence about the maternal great aunt’s drug use is extremely concerning because of the evidence about the drug use of Ms K and Ms T.
Ms K and Ms T both started using cannabis when they were in teens and it is hard not to believe that this was easy for them to do because the maternal aunt herself uses cannabis.
During the hearing there was a colourful description of an incident where a cannabis plant was found in the back yard of the maternal great aunt’s home and about the police attending and the plant being thrown over a fence.
Ms T and Ms K partnered in their teens with men who were not only drug users but were extremely violent. One of these men was an ice user and both men were sentenced to terms of imprisonment for perpetrating very serious assaults on their respective partners.
Ms T graduated to ice use. She is now living in Sydney with her son I. She gave evidence at the trial but it is hard not to be concerned about her future.
The situation of the maternal great aunt’s four children with Mr C also raises a concern about outcomes for children brought up in the maternal great aunt’s home. Mr A is serving a long prison sentence for rape and Ms C who is also serving a lengthy prison sentence. There was no evidence that R or C currently had any contact with the maternal great aunt and I cannot make any findings about their situation.
Of course the mother was also brought up in the maternal great aunt’s home and it was her case that she did not use drugs, so if the mother’s case is accepted the outcome for the children if they remain with the maternal great aunt will not automatically be poor.
The mother alleged that Mr I, who is a regular visitor to the maternal great aunt’s home if nothing else, had been violent in the past both to the maternal great aunt and to herself, Ms T and Ms K.
The maternal great aunt said that Mr I had been violent to her 20 years ago and had been charged with assault but that there had been nothing since and I cannot on the state of the evidence make a finding that there is any likelihood of Mr I being violent in the maternal great aunt’s home. Mr I does have a recent conviction for an offence of violence and an ADVO was taken out against him but the incident involved a neighbour and was not at the top of the range of seriousness.
It was not in dispute that Ms T’s partner Mr G had stayed with Ms T at (omitted) on occasions nor was it in dispute that he had seriously physically assaulted her but there was no evidence that he had been violent to her at (omitted).
The mother alleged that she was sexually abused by a cousin as a child and that Ms C was also sexually abused as a child. The mother’s counsel submitted that this gave rise to a concern that the children might be at risk of sexual abuse in the maternal great aunt’s care but such a conclusion is not open to me. There was no evidence that the perpetrator or perpetrators of those offences was still around or that the maternal great aunt had been careless of these children’s safety or had let sexual abuse happen to them and done nothing.
In considering the weight to be given to the criticisms the mother now makes of the maternal great aunt, it also needs to be kept in mind that the mother was content for the maternal great aunt to care for the children until 2013 despite knowledge of her cannabis use and despite having been sexually abused as a child and I do have to ask myself in light of this how seriously concerned the mother is about these issues.
The father has the capacity to provide for the needs of the children when he spends time with them. Nobody suggested otherwise at trial.
I must consider the maturity sex and background including lifestyle, culture and conditions of the children and of either of the children’s parents and any other characteristics that the court thinks are relevant.
There is nothing in this consideration which assists me.
I must consider if the children are Aboriginal children, their right to enjoy their Aboriginal culture, including with people who share that culture and the likely impact of any Order made under this part on that right.
The mother and maternal great aunt are both Aboriginal and the children are Aboriginal children. They will enjoy their culture with people who share that culture regardless of whether they live primarily with the mother or primarily with the maternal great aunt.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
The mother was historically happy for the maternal great aunt to assist her with the care of the children on occasions and this is not a reason to be critical of her. The family report writer said as follows:
Like many children in Aboriginal culture X and Y have spent considerable time with extended family, in this instance their maternal great aunt Ms I Dutton.[9]
[9] Family Report dated 9 April 2015, paragraph 88.
The father has accepted a limited role in the children’s lives since separation. From his perspective he has kept a watching eye on the situation and considers that the children are being adequately cared for in (omitted) at present but he has certainly not gone out of his way to fulfil the duties of parenthood in respect of his children.
I must consider any family violence involving the children or a member of the children’s family.
I have referred to issues of family violence raised by the mother in respect of the maternal great aunt’s household when discussing parenting capacity earlier.
I must consider any family violence orders.
There are no family violence orders currently in existence. As previously noted I cannot draw any conclusion from the fact that seven years ago the mother obtained an ADVO to protect her from the father.
I must consider whether to make the orders least likely to lead to further proceedings.
There is a risk of further proceedings in this matter regardless of the orders I make.
If I make orders that the children live with the maternal great aunt further proceedings could occur if there is some change of circumstances, for example the mother separating from Mr D. There may also be further incidents in the maternal great aunt’s home if the children remain living with her which could lead the mother to try again.
If the children are placed with the mother there could be incidents involving the children and Mr D or other incidents which lead to the matter coming back to Court. Alternatively the children may not settle with the mother and could vote with their feet and go back to the maternal great aunt.
I must consider any other fact or circumstance which the Court considers relevant.
Although it is not really an additional matter, I will now return to the second primary consideration, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
It was the mother’s case that “violence was the norm” in the maternal great aunt’s household when she was growing up but it is not open to me on the evidence provided during the hearing to make a finding that there was historically extensive family violence perpetrated by Mr I, and absent Mr I, there are no other visitors to the maternal great aunt’s home currently who might perpetrate family violence. There was not the slightest suggestion that the maternal great aunt was violent and the children made no mention to the report writer of seeing any violence in her home.
I cannot be satisfied at present that the children are likely to be exposed to violence in the maternal great aunt’s home.
I also cannot be satisfied that they are likely to be exposed to abuse, sexual or physical, or that they are likely to be neglected.
The maternal great aunt made allegations about observed family violence perpetrated by Mr D but I have reservations about the extent to which I can accept that evidence. It may be true and it causes me unease but my concern about the reliability of the evidence of all of the witnesses means that I am not willing to conclude that there has been family violence between the mother and Mr D.
The family report writer was concerned about Mr D’s domineering and aggressive behaviour in the context of the interview and he has behaved in a confrontational and verbally aggressive way to medical staff but I cannot on the state of the evidence find that the children are likely to be exposed to family violence (as opposed perhaps to unpleasant and overbearing behaviour which the children might find difficult to accept) as a result of his presence in the mother’s home, or to abuse or neglect in her home.
Parental Responsibility
Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them absent a finding that a parent or someone living with a parent has engaged in abuse of the children or family violence.
The presumption may also be rebutted by evidence that it would not be in the children’s best interests for the presumption to apply.
The presumption applies because I cannot make a finding that the father committed acts of family violence during or after his relationship with the mother, the mother has not committed acts of family violence, it is not open to me on the state of the evidence to find that Mr D has and neither parent has abused the children.
However it would not be in the children’s best interest for the mother and father to have equal shared parental responsibility even if the children lived primarily with the mother. For some reason not explored at the hearing the mother and father have no communication at all. Neither made any proposal to remedy this and the father has shown no interest in the last seven years in being involved in decision about the children’s health or education.
If the children were to live with the mother an order for sole parental responsibility in her favour or alternatively an order that she share parental responsibility with the maternal great aunt would be necessary.
If the children live with the maternal great aunt however an order that she have parental responsibility either on her own or shared with the mother would be appropriate. It would not make sense to give the mother sole parental responsibility for the children if they lived with the maternal great aunt.
Although neither the mother nor the maternal great aunt sought an order that they share parental responsibility for the children it is something which I need to seriously consider.
At present their relationship is very poor and conflicted but this has not always been the case and the family report writer said as follows:
Ms I Dutton and the mother have a somewhat volatile but close relationship and both despite their state differences want to have a close relationship. Ms I Dutton in particular wants to support the mother.[10]
[10] Family Report paragraph 22.
The mother and the maternal great aunt told the family consultant in April 2015 that their capacity to get along with each other had been better recently.
X and Y are healthy children are healthy children and they have both commenced school at the nearest local primary school in (omitted). It is unlikely that any major longer term decisions about them will be required in the immediate future so the risks of the mother and the maternal great aunt coming into contact over issues of parental responsibility seem fairly remote at present.
On balance however in my view the only appropriate order for parental responsibility is that it rest with the person the children primarily live with and I say that for the following reasons.
If an order is made for the children to live with the mother it will be important that orders are made for the children to spend time with their maternal great aunt but there is no obvious reason (such as lack of capacity to make decisions) which suggests that in these circumstances the mother should be required to share parental responsibility with the maternal great aunt.
If the children live with the maternal great aunt then she should be given parental responsibility for them, either shared or sole but while there is something to recommend an ordered for shared parental responsibility, I am concerned that the mother will be resentful about such a decision and in those circumstances could use an order for sole parental responsibility to harass the maternal great aunt. On balance in these circumstances it would be better for the children if the maternal great aunt had sole parental responsibility.
The family report writers recommendations
The family report writer’s opinion was that none of the parties presented an ideal situation for the children despite being well intentioned. She referred to the fact that the father was not in a position to provide full time care for the girls, the maternal great aunt provided a positive role model for the girls but some of her family did not and the mother presented as warm and empathic with the girls but she appeared to be under the thumb of Mr D who presented as a dominating individual with little respect for the legal system.
The family report writer felt that the children’s views should be given weight and recommended that the children live with the maternal great aunt and spend time with the mother. She recommended that the time be more extensive than the maternal great aunt proposed but did not recommend the children spending overnight time in her home because of her concerns about Mr D.
The family report writer recommended that Mr D not have unsupervised time with the children.
She also recommended that:
Ms I Dutton and Ms Dutton to attend parent teacher nights, school functions and ensure that the girls are enrolled in sporting based activities particularly athletics. Ms I Dutton and the father to be responsible for the cost of this.[11]
[11] Family Report dated 9 April 2015, paragraph 107.
She recommended that the children continue to spend time with their father in a similar way to what had been occurring to date.
The family report writer is an experienced report writer who has a Master’s Degree in Social Work and who has extensive experience also writing reports for the Children’s Court and extensive experience in preparing reports involving Aboriginal families. Her recommendations were carefully reasoned and soundly based on the evidence available to her and they deserve respect. However evidence emerged at the hearing which was not available to the family report writer. The maternal great aunt admitted during cross-examination that she used cannabis regularly whereas she told the family report writer that she did not use illicit drugs and the evidence about the extensive involvement of her teenage children in cannabis and ice use and partnering with violent partners was not available to the family report writer.
During cross-examination the family report writer was asked to consider her recommendations in light of the evidence about the maternal great aunt’s cannabis use. She said:
I don’t support cannabis use in any way but if the children are not there that’s her choice.
The family report writer maintained her concerns about Mr D, stating that:
I don’t think putting them in a situation with the mother’s current partner is ideal and I could not recommend it.
I must have regard to the family report writer’s recommendations but her report is a piece of evidence in the case and to arrive at a decision, I must take into account not just the content of the report and the recommendations in the report but all of the other evidence available to me.
Conclusion
Each of the proposals in this matter has its attractions but each also has its drawbacks.
The attractions of the maternal great aunt’s proposal are that it is in accordance with the children’s wishes, she is providing them with good day to day care and she, unlike the mother, can be relied on to foster the relationship between the children and their father.
If the children live with maternal great aunt they can still spend plentiful time with their mother and maintain a bond with her and with their sister Z.
A major draw back of the maternal great aunt’s proposal however is the risk that the children will be exposed to drug use in her care and where that may lead.
The maternal great aunt was not honest with the family report writer about her cannabis use and I do not accept her assertion that she only uses cannabis when the children are not there and does not keep a supply of cannabis at the house; only a few years ago the police found a cannabis plant growing in the back yard at (omitted).
The maternal great aunt’s two youngest daughters followed in her footsteps and began using cannabis in their teens. Ms T agreed that she had used cannabis at (omitted) and that she began using ice (although not at (omitted)) at about the age of 16. Ms T and Ms K formed relationships with extremely violent illicit drug users and they were both seriously assaulted and physically injured by their partners who were sentenced to terms of imprisonment as a result.
There is evidence in the subpoena material that the maternal great aunt insisted that one of her daughters report abuse by her partner to the police notwithstanding that daughter’s reluctance to do so but the question which needs to be asked is why the daughter found herself in that situation in the first place. Of course any child can use drugs and it is not always a parent or guardian’s fault that they do but the risk is high that if children have this behaviour modelled to them they will copy it.
Ms T and Ms K also have some minor criminal convictions and two of the maternal great aunt’s children with Mr C are serving lengthy prison sentences for very serious offences.
Mr I, who goes around to the maternal great aunt’s house to watch Foxtel if for no other reason, is also a cannabis user,
The mother was of course also brought up in the maternal great aunt’s home and if she is to be believed, she has emerged relatively unscathed (in that she is not a drug user) which I suppose indicates that it is possible to emerge relatively unscathed. The mother’s conviction for having methamphetamines in her system in 2013 is concerning but there was no other evidence that the mother was using drugs and she has no other criminal convictions.
However I can understand why the mother genuinely fears for her daughters’ futures if they remain with the maternal great aunt and why (even absent her strong belief that because she is the children’s biological mother nobody should oppose the children living with her if she is willing and able to take them) she is strongly pressing for orders that the children live with her.
A change of residence would be difficult for the children but if all the stars aligned it would not be doomed to fail, especially if the children were able to spend plentiful time with their maternal great aunt. The mother is parenting Z well and the family report writer noted that she had well thought out plans for caring for the children.
However I cannot be certain that all the stars would align and that the children would settle in the mother’s full time care and that the orders would stick.
The mother could well be underestimating the difficulties she would face if the children came to live with her.
The children have spent a significant part of their lives living with their maternal great aunt and until 2014 it was with the mother’s consent despite her knowledge of the issues she now heavily relies on. There have been three occasions when the mother’s health meant that the children needed to be in their Nan’s care for a lengthy period (when the mother became ill in (omitted) in 2011, when she had her motor bike accident in 2013 and when she had complications with her pregnancy in 2014) and of course they have been living with her by court order since June 2014.
An impediment to the children settling with the mother is that they have a problem with Mr D; they told the police that in 2014 and one of the children did not want to see him on the day of the report interviews and they both expressed some dislike of him to the family report writer.
The mother maintained that the children had been coached but records of interactions between Mr D and others, including at the hospital and with the family report writer, suggests that he is domineering and can become angry and confrontational and it is quite possible that he has done something to upset the children.
The mother has had issues with anxiety and depression on a number of occasions during her adult life and she is in chronic pain as a result of her motor bike accident in 2013. There has to be concern in light of this as to whether she has the capacity to weather any difficulties which might follow a change of residence, such as the children running away, being defiant or expressing a wish to return to live with their Nan. The mother, like Mr D, has displayed temper and acting out behaviour in the past when things have not gone her way (at the police station in (omitted) in June 2014 and with hospital staff in (omitted) later that year).
I have concerns about what the future might hold for the children if they remain with the maternal great aunt but given Mr D’s presence in the mother’s life, the children’s currently expressed wishes, the vulnerabilities of the mother and the fact that the mother does not support the children’s relationship with their father, I consider that the least worst option for the children is an order that they continue to live with the maternal great aunt.
If I make the orders the mother seeks and the mother is unable to successfully integrate the children into her household, they could end up back with the maternal great aunt anyway and with their relationship with their mother damaged. If they live with the maternal great aunt on the other hand, their relationship with their mother should not be at risk and if she maintains a good strong relationship with them that will give them some protection for the future.
I intend to order that the children spend alternate weekends with the mother rather than the more restricted time proposed by the maternal great aunt and that they also spend a reasonable amount of time during the school holidays.
It is very important that the children maintain a strong bond with their mother. She may ultimately become their primary carer. This is the kind of case which might quite legitimately come back before the court in the medium to long term because the circumstances of one or more of the adults change or the children’s views change.
The family report writer suggested that the children not have overnight stays with the mother, arising out of her concerns about Mr D but in my view it is desirable that the children spend some overnights with the mother so that she has a chance to demonstrate that she can care for them for an extended period. If there turn out to be problems with this the matter may end up back in court but if it works, it will increase the children’s confidence in their mother and although I have concerns I consider it a chance worth taking.
If the father’s time has to slightly give way to accommodate their time with their mother, then so be it but it need not. The effect of the orders will be that the children spend every alternate weekend with the maternal great aunt and while the children are in her care the father can have extra time with them if he wishes and reaches an agreement with her. Otherwise his time will be once each fourth weekend rather than about once each third weekend as it is at present.
It would be unrealistic and unworkable to order that the mother not bring the children into contact with Mr D but in light of the children’s views about Mr D, I intend to order that the mother not leave the children alone with him.
With considerable reluctance I intend to order that the maternal great aunt have sole parental responsibility for the children but there will be orders which provide for the mother to attend school events and extra curricular activities if they are organised and I strongly hope that she takes the opportunity to do so and to form as strong a bond with the children and be as involved as she can be with them not only so that if a change of residence occurs in the future, it will be as easy as possible for the children but so that the children benefit from the example she sets for them.
I intend to order that the each party be restrained from using illicit drugs at their property if the children are there or allowing any other person to do so and that she ensure that the children are not exposed to illicit drugs or drug paraphernalia.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and twenty seven (227) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 10 August 2016
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