Embry and Stratton and Anor
[2009] FMCAfam 1389
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EMBRY & STRATTON & ANOR | [2009] FMCAfam 1389 |
| FAMILY LAW – Parenting – limited supervised visits with the Child’s grandmother required – indefinite supervision order appropriate in all the circumstances. |
| Family Law Act 1975, ss.60B, 60CC(b), (f), (h) |
| Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MS EMBRY |
| First Respondent: | MS STRATTON |
| Second Respondent: | MR MORRIS |
| File Number: | PAC 2622 of 2008 |
| Judgment of: | Dunkley FM |
| Hearing date: | 22 October 2009 |
| Date of Last Submission: | 23 October 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Counsel for the first Respondent: | Mr Maddox |
| Solicitors for the first Respondent: | Marsdens Law Group |
| Counsel for the second Respondent: | Ms Friedlander |
| Solicitors for the second Respondent: | Stanfords Solicitors |
ORDERS
All previous parenting orders are discharged.
Ms Stratton and Mr Morris shall have equal shared parental responsibility for [X] born [in] 2007.
The Child shall live with his Mother and Father in such arrangement as they agree.
The Child shall spend supervised time with his Maternal Grandmother at the [T] Aboriginal Cooperation at [address omitted] on the first Friday in March, June, September and December of each year between the hours of 1:00pm to 5:00pm.
The Child shall spend such other time with the Maternal Grandmother as is agreed to between Ms Stratton and Mr Morris.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Magistrates Court Rules (2001) to amend the supervised time spent with the Maternal Grandmother to read the first Friday in March, June, September and December of each year between the hours of 1:00pm to 5:00pm.
IT IS NOTED that publication of this judgment under the pseudonym Embry & Stratton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2622 of 2008
| MS EMBRY |
Applicant
And
| MS STRATTON |
First Respondent
| MR MORRIS |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by the Maternal Grandmother
Ms Embry. Ultimately she seeks orders that she spend unsupervised time with her grandson, [X] who is aged 2.
[X]’s parents Ms Stratton and Mr Morris are respectively aged 18 and 17.
[X]’s parents do not live together although they spend significant time in each other’s company.
Ms Stratton lives in public housing/refuge at [M]. Mr Morris lives with his mother in [A]. Ms Embry lives in [A].
Ms Stratton has been estranged from her mother since her pregnancy both because of that pregnancy and because of the way she was raised by her mother.
Ms Stratton says that [X] should spend only supervised time with
Ms Embry because of the way Ms Embry raised her and because
Ms Embry will seek to negatively influence [X] about his mother.
Mr Morris is supportive of Ms Stratton’s application.
The issues to be determined are:
·What if any time [X] should spend with his maternal grandmother.
·If that time is to occur should it be supervised.
It is agreed by all of the parties that [X] should live with his mother, Ms Stratton. It is also agreed by all parties that Ms Stratton and
Mr Morris should have equal shared parental responsibility for [X].
Ms Stratton and Mr Morris are not in dispute between themselves as to the parenting arrangements that should exist between themselves relating to [X]. Neither Ms Stratton nor Mr Morris seeks any parenting orders for themselves only that [X] should live with Ms Stratton and that Mr Morris and Ms Stratton should have equal shared parental responsibility for [X].
Background
| 1956 | Maternal Grandmother born |
| 1991 | Mother born |
| 1992 | Father born |
| 1994 | Grandmother’s son [Y] born |
| 2007 | [X] born |
| January 2007 | Mother and father commenced living together but never marry |
| March 2008 | Mother and father temporarily separate |
| 24 June 2008 | Mother and father reconcile |
| September 2008 | Apprehended violence order granted for 1 year to protect father from mother |
| 6 February 2009 | Interim orders made providing for [X] to live with his mother and father and spend time with his grandmother at Centacare [C] in a supervised setting |
| March 2009 | Mother, father and [X] move from the paternal grandmother’s home |
| Late 2009 | Father returns to live with paternal grandmother. Mother and child move to [M] |
The Evidence
The family report was prepared by Dr Vardanega. No party wished to cross examine Dr Vardanega. Her report was admitted into evidence as Exhibit B.
The grandmother is a woman with a long history of health problems and issues relating to her mental health. Each of these impacts her ability to care for [X]. Her lack of mobility and agility restrict her care of [X] in the event he was to run from her.
She gave evidence that her first contact with the Department of Community Services regarding her care of her children occurred in 1996. She (Ms Stratton) conceded that she had problems coping with both her daughter and her son ([Y]) and thereafter there were many occasions when the children were placed in foster care.
She agrees that in or about September 2001 she became very depressed. She would not agree that at this time she was suicidal.
She concedes that her ill health means she was a poor housekeeper.
She concedes that to discipline her children (the mother and [Y]) when they were young she would hit them with a wooden spoon. She recognises that such discipline today would not be appropriate and is contrary to law. She says if she had the need to discipline [X] she would do so by tapping him on the hand.
Ms Embry had the unfortunate experience of having her oldest son [Z] drown in 1981 in a swimming pool when he was being supervised by his father.
She gave evidence that her health problems would not inhibit her spending unsupervised time with [X]. I do not accept this and find to the contrary. She has osteoarthritis in her back. Her movements are slow. She has cataracts and glaucoma. Her eyesight is poor. She had difficulty reading in Court. She suffers from migraines which require bed rest, quiet and medication. Her many conditions mean she requires and receives home care assistance. She suffers from diabetes and high blood pressure. She takes medication for a heart condition and aspirin as a blood thinner.
She asserts that since about 2000 she has identified as an aboriginal. She is in process of finding out more about her heritage. That she wishes to use some of the time she spends with [X] to introduce him to his aboriginal culture.
She is aware that her daughter, [X]’s mother does not identify as an aboriginal.
Ms Embry conceded whilst she was bringing up her children she had limited resources and limited coping capacity and frequently needed respite help.
She was aware that Ms Stratton has facilitated members of her family to spend time with [X] including the maternal grandfather about whom she was extremely scathing.
Throughout her cross examination Ms Embry had periods of volatility and anger. She spoke loudly. She spoke even more loudly when she was angry or when she considered there question to be accusatory.
Ms Embry is aware that her relationship with Ms Stratton is “broken”. She is unable to put the breakdown of that relationship behind her. She is unable to suggest any ways that the relationship can be repaired.
She is dependent upon public transport, she has never driven. She has limited income.
She is of view that Ms Embry is continuing with the proceedings simply to hurt her. She said that if she has to continue to pay for supervised visits then she would prefer not to see [X].
She obtained a letter from the [T] Aboriginal Corporation to the effect that they would provide unlimited free supervision at their centre of any visits that were ordered to occur between [X] and Ms Embry.[1]
[1] Exhibit C
She considered that since [X]’s birth she has spent not much more than 20 hours with him.
She says that her mental health is much improved, that her past history of being unable to cope with her children would not be replicated with [X]. There is no evidence that would safely allow me to accept this. She has had recent trouble in parenting [Y]. He recently left her home one night. She did not know where he was. He took himself to school the next day.
She considered that her relationship with Ms Stratton was hostile but only on Ms Stratton’s behalf.
Ms Stratton relied on her Affidavit sworn 30 September 2009. The evidence in that affidavit was not contradicted by Ms Embry. She did not cross examine Ms Stratton relating to her affidavit.
It is clear from Ms Stratton’s affidavit that she believed and gave examples of Ms Embry being extremely aggrieved at the breakdown of their relationship. Ms Embry was so aggrieved that she sought to disrupt her daughter’s high school education.
Ms Stratton gave evidence that to get to the supervised contact centre she has to travel from [M] on a Saturday night and back again usually on a Monday morning so that the visit on Sunday can occur. It costs her about $50 in transport. She usually stays overnight with Mr Morris’ mother. Mr Morris often travels with her to assist her in the care of [X].
Ms Embry sought to obtain from Ms Stratton confirmation that the letter that formed part of Exhibit D had been written by Ms Stratton. Ms Stratton’s denial as being the author of that letter were not believable. I accept that she did write that letter and that she did put it in her mother’s letterbox. The letter is confirmation of the bad relationship that now exists between them.
Mr Morris’ evidence was entirely corroborative of the mother. He spoke of visiting Ms Embry’s home when the mother lived there and of seeing the Mother being forced to clean the home by Ms Embry and of being disciplined by Ms Embry by being hit with a variety of objects including a red plastic cricket stump, even though the Mother was then in late adolescence.
Dr Vardanega in her family report evaluates the family as having complex family dynamics which very possibly are intergenerational and have a past that predates [X]’s birth.[2]
[2] Family Report, para.41
Dr Vardanega is of the opinion that it is likely that [X] would become a pawn in the middle of the unresolved dispute between Ms Embry and Ms Stratton. During the interview process she saw “a high level of antipathy and animosity between them that was palpable”.[3]
[3] Family Report, para.42
Dr Vardanega’s concerns regarding Ms Embry were that she had poor insight and self awareness, that she had a low capacity to take responsibility for her actions. She was concerned that she had limited capacity to care for [X] given his age and her physical limitations. She was concerned that she would undermine [X] by being negative with respect to the mother and the father and the father’s extended family.[4]
[4] Family Report, para.44
Dr Vardanega noted that although the mother was young, she was highly motivated to create a safe and secure base for [X] and ensure that his needs are met.[5]
[5] Family Report, para.46
Dr Vardanega was of the opinion that [X] needs to be shielded from exposure to the high level of acrimony which exists between
Ms Stratton and Ms Embry.[6] She referred to the negative effect that this would have on [X] and sighted numerous studies in support of this opinion.
[6] Family Report, para.49
Dr Vardanega concluded her report by recommending that [X] continue with supervised visits at a contact centre and that Ms Embry undertake counselling.
The subpoenaed material from the Department of Community Services is confirmatory of the evidence given by Ms Stratton and was confirmatory of the long history of support that the Department had given to Ms Embry in raising her children including significant periods of respite care. Recently there was a period when [Y] left Ms Embry’s care without her knowledge and police assistance was sought to locate him.
This incident is confirmatory of the fact that Ms Embry has a continuing limited parenting capacity.
What time should [X] spend with his grandmother?
Her recent inappropriate physical disciplining of her son and daughter as recently as 2006 and 2007 indicates that she does not have the insights into parenthood that she now asserts she has.
I find her application to spend time with her grandson is a continuation of her failed attempts at control of her daughter.
Her physical incapacities mean that she would not be able to adequately supervise [X] if he were to spend time with her unsupervised and she would be dependent upon [Y], her son, to give her assistance.
Unsupervised time between Ms Embry and [X] will also serve to increase Ms Stratton’s anxiety for [X]. Given her age and her upbringing, Ms Stratton needs as little distraction as possible in her parenting of [X].
Ms Embry’s recent acknowledgment of her aboriginal heritage is not of itself sufficient reason for her time with [X] to be unsupervised. Her connection with her aboriginal heritage is tenuous. The supervised visits at the Aboriginal corporation will be sufficient to enable [X] to explore and understand his heritage.
Regular but not frequent visits of a supervised nature will enable [X] to have a relationship with his grandmother that will not expose him to risk or abuse or neglect.
By reducing the frequency of the supervised visit it will relieve some of the financial burden on Ms Stratton. It will also relieve the emotional burden that she feels thereby enabling her to focus more of her energies on parenting [X]. This will be to [X]’s significant benefit.
[X] will not be detrimentally affected by the reduction in the frequencies of his visits with his grandmother. He has had little time with her.
Should the visits be supervised?
Those visits will be able to occur at the [T] Aboriginal Corporation. I am satisfied that they take the supervision requirements seriously. It will relieve the parties of the expense of those visits. It will free up a place at Centacare for other parents.
It is not appropriate for the maternal grandmother to spend significant and substantial time with the child. It is appropriate that she spend some time with the child but that time is to be supervised. Ms Embry has never been a person who has been significant to the care of [X] nor a person who has been significant to his welfare and development. She has never played that role. The limited time that [X] will spend with her is sufficient for his right to spend time with her. As the time will be spent at the [T] Aboriginal Cooperation it will enable him to developed a positive appreciation of his aboriginal culture and to maintain a connection with that culture. It will be sufficient to enable him to explore his culture and grow to understand it.
The supervised nature of the visits will serve to protect [X] from the possibility for psychological harm or of being exposed to neglect or abuse whilst he is in his grandmother’s care. The four visits a year will enable him to maintain the relationship that he has with his grandmother. At this point in time, [X]’s relationship with his mother and his father is of much more crucial importance to him than his relationship with his grandmother. By reducing the frequency of the visits to what he has experience recently it will free the financial resources of the mother so that she can devote them to [X]’s. It will enable her to focus her emotional resources on [X]’s parenting. It will minimise the practical difficulty for her. The supervision will ensure that Ms Embry’s lack of capacity will not impact on [X]. It will limit his exposure to family violence.
Conclusion
I have considered the objects set out in Section 60 of the Family Law Act1975 (Cth). I have considered the limited number of relevant facts in Section 60CC. The time ordered is not significant and substantial. The time is, however, all that is practically possible in the circumstances of this case.
It would not normally benefit a child to have indefinite supervision. This case is, however, an exception having regard to the long history of the grandmother’s inappropriate parenting. It will also enable [X] to have an appreciation of his Aboriginal heritage whilst being protected from exposure to risk whilst in his grandmother’s care. The limited frequency of visits should ensure that [X] does not experience any negative psychological consequences form the visits being supervised indefinitely. His young age at this time is also relevant to concluding that he will suffer no adverse psychological consequences. He has only ever experienced supervision of his time with his grandmother. A continuation of the supervision requirement will not be unusual for [X]. It is impossible to foresee, at this time, a time when supervision will not be required. That consideration will be dependent on [X]’s development, the circumstances of Ms Stratton and any change in
Ms Embry. The removal of supervision is not an imminent prospect. Finalising the case rather than a further review in 12 months time is more beneficial to [X], in that it allows Ms Stratton to concentrate on parenting [X]. In deciding this aspect of the case consideration has been given to the decision of the Full Court in Champness & Hanson [2009] FamCAFC 96 and the other cases cited in paragraphs 215 and 216 of that judgment.
Regular but not frequent supervised visits between [X] and his grandmother and in [X]’s best interest will best serve [X]’s development.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Associate: L. Campbell
Date: 23 December 2009
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