Glassman and Tetlow and Anor

[2017] FamCA 730

FAMILY COURT OF AUSTRALIA

GLASSMAN & TETLOW AND ANOR [2017] FamCA 730

FAMILY LAW – INTERNATIONAL RELOCATION – Capacity to care for the child – Views of the child

Family Law Act 1975 (Cth)- ss 60B and 60CC
APPLICANT:	Mr Glassman

RESPONDENT: Ms Tetlow

INTERVENOR: Director-General, Community Services Directorate (ACT)

INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

FILE NUMBER: CAC 1734 of 2016

DATE DELIVERED: 6 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 6 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stagg

SOLICITOR FOR THE APPLICANT: Barker & Barker

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Evans Family Lawyers
SOLICITOR FOR THE DIRECTOR GENERAL:	Ms Law-Jamieson

Orders

1. All prior parenting orders be discharged.

2. The child, B, born … 2005, live with the father.

3. The father have sole parental responsibility for the child.

4. The father be permitted to relocate the child’s permanent residence from Australia to the United Kingdom from 15 April 2017.

5. Pending the child’s departure to the United Kingdom, the mother spend time with the child on a supervised basis, twice weekly or at such other frequency as the Community Services Directorate (ACT) or its agent can facilitate.

6. Prior to the child’s departure to the United Kingdom:

   a.The father and the Director-General cause the child to meet with her current case worker and/or counsellor and the Family Consultant to have the judgment and orders of the Court explained to her;

   b.It is noted that the Independent Children’s Lawyer will provide assistance to those explaining the judgment and orders to the child;

   c.The father and the Director-General permit the child to spend time with her maternal grandfather and her half sibling C;

   d.The Director-General (or his agent) arrange for the equivalent United Kingdom authority to be provided with a copy of any final order and judgment made and any other relevant documents from the case file and to facilitate the appointment (wherever possible) of a case worker (or equivalent) in the United Kingdom to support and or supervise the child’s arrangements in the United Kingdom. 

7. The father and the Director-General facilitate the child engaging in therapeutic counselling with her Canberra based counsellor until 15 April 2017.

8. Upon the child living in the United Kingdom the mother may spend time with and communicate with the child as follows:

   a.By Skype once weekly, such calls to be initiated by the child; and

   b.For periods during a block period each calendar year in Australia commencing in 2018, with such time to be supervised by an independent service provider unless otherwise agreed in writing. 

9. For the purposes of Order 8(b) the father will be responsible for the following:

   a.The costs and booking of all flights and accommodation for the child;

   b.Notifying the mother of the child’s travel dates; and

   c.Arrangement of the independent service provider to supervise the mother’s time.

10. Upon the child living in the United Kingdom the father will continue to facilitate the child attending upon her United Kingdom based counsellor for as long as recommended by that counsellor. 

11. The father will keep the mother informed of all long term decisions made in respect to the child’s religion, education and health and will:

    a.Provide to the mother at least annually copies of the child’s school reports and school photographs;

    b.Promptly provide information about any serious medical treatment received by the child.

12. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1734 of 2016

Mr Glassman

Applicant

And

Ms Tetlow

Respondent

And

Director-General, Community Services Directorate (ACT)
Intervenor

REASONS FOR JUDGMENT

1. In this matter, I note in giving reasons the exchanges that occurred with the legal representatives in their final submissions.  The key issues that emerged in this case relate to the capacity of the mother to care for and nurture the child, and the capacity of the father to do the same.  Those capacities were in part linked to the nature of the relationships that each of them has with the child.  The third key issue relates to the views that the child holds.  The fourth relates to giving the child the benefit of a relationship with each of her parents.  That benefit is necessarily limited principally to one parent, because of the geography; that is, the father lives in the United Kingdom and the mother lives in Australia.  It is also related to the capacity that each of the parents has to look after the child.

2. The fifth matter is that these proceedings take place in the context of a single proposal. 

3. The mother has not participated in the proceedings.  Each of the parties who remain in the case seek the same outcome.  The alternative to the single proposal, which is a proposal that the child goes to the United Kingdom to live with her father, is as set out by the Director-General;  that is, if the child is not able to return to the United Kingdom, then there is a likelihood that she will be placed into a house with supervision. 

4. There is a corresponding likelihood that if that occurs, she will be placed in a home with other children who are unable to secure foster care, and who are likely to be suffering from mental health issues and drug issues, but that this is a preferable outcome to placing the child into her mother’s home, where her mother suffers from drug abuse and mental health issues;  that is, the alternative to the single proposal before me is for the Director-General to litigate in the Children’s Court of the Australian Capital Territory in order to supersede whatever orders I might otherwise impose.  Although the law is well established and I am not bound by the proposals of the parties in this case, no other practicable proposal emerges in this case.

5. The case occurs in the context of the mother not attending or participating in the final hearing and of each of the parties seeking the same outcome generally, as set out in the orders sought by the Independent Children's Lawyer at exhibit ICL1, although there is agreement between the parties that there will be some relaxation of the supervision regime that is proposed in order to allow that to be relaxed if supervision is not required.  The orders sought seek that the father will have sole responsibility; that the child will live with her father in the United Kingdom, communicate with her via Skype, and visit her mother once each year. 

6. Each of the parties in their submissions identified the key arguments and matters that were contentious in the case.  Helpful submissions were provided by the Independent Children's Lawyer.  The Independent Children's Lawyer’s position is that the mother is not in a position to exercise parental responsibility, nor in a position to have the child live with her.  That is because she has poor mental health, which is related to her drug use.  Neither her mental health nor her drug use is managed.

7. The Independent Children's Lawyer says of the father that there are problems and tensions in his relationship with the child, but that he presents a much lesser risk than any other option that is currently available.  She says of him that, with supports, he has the capacity to overcome the problems that he currently faces with the child:  that he is a capable parent.  She acknowledges also the child’s views, and accepts that the child is likely to be disappointed, or even distressed, at the prospect of moving to the United Kingdom, but says that that can be managed, with the right support.

8. The Director-General adopted the position taken by the Independent Children's Lawyer on these matters, noting that if the order was not made, it would have the result that I have referred to previously:  a result – that is, being placed in residential care, or a likelihood of that – which the Director-General accepted would be adverse to the child’s welfare. 

9. For the father, he said that this is not a case in which there could be an equal sharing of parental responsibility, partly because of the geography, partly because of the mother’s mental health, the mother’s previous performance in relation to parental responsibility, which has seen the child taken into care, and the mother’s seeming current attitude to the father, which is negative.  I pause at this point to note that if the child is to live in the United Kingdom, then these factors that are pointed to by the father mean that equal shared parental responsibility will not be in the child’s best interests.  It will be necessary that an order be made for sole parental responsibility.

10. The father points to the child’s views.  He says they are not consistent or not consistently expressed.  He says that I should draw an inference that the child is happy in the United Kingdom, and that I should draw that in part because of the evidence that he gave of discussions that he has had with the child where she talks about her future plans on the basis that she will be living in the United Kingdom.  In any event, he says that in the child expressing a view as to a wish to remain in Australia, the child has little understanding about her mother’s mental health problems, nor of her mother’s drug use, nor of what would be involved for her in terms of foster or care arrangements.  It seems highly likely that any foster or care arrangement is quite different to that which the child might expect.

11. He says that he has a developing relationship with the child.  Despite the fact that he moved to the United Kingdom some years ago, which has limited the time that he spent with the child, he has made efforts to maintain that relationship;  and he has now gone above and beyond, once the Director-General became involved.  I pause here to note that the father has turned his life inside out in an attempt to pick up the pieces for the child.

12. There will be significant changes for the child if she moves to the United Kingdom.  But again I pause to note that as was described by counsel for the father, there are stark choices to be faced in this case.  Change is inevitable.  If the child moves to the United Kingdom, clearly that is a source of great change; if she remains in Australia, there will also be great change.  She will not be living with her mother.  She will not be living with her previous foster carers.  She will be living under some sort of other arrangement.  Change is inevitable for the child.

13. In relation to the question of capacity of each of the parents, the father adopts both what the Independent Children's Lawyer and what the Director-General said.  He has, however, noted that the concerns raised about him and the child are not in relation to atypical behaviour:  that is, that what he is experiencing with the child, he says, is the sort of parental conflict that one might expect with an adolescent.  He points to the fact that with him, there is no issue of family violence. 

14. The objects that underpin decision-making about best interests in a child’s life are set out at s 60B of the Act. In short, they look to maximising the meaningful involvement of parents as might fit with the best interests of the child.  They look to protecting children from harm.  And here it would seem that the harm that is most prominent is not because either parent would wish to inflict harm upon the child, but here the issue of neglect with the mother is the most prominent, because of a lack of capacity.  The objects point towards the need for adequate and proper parenting in order to enable a child to reach that child’s full potential, and to ensuring that parents fulfil their responsibilities towards their children. 

15. The key issues that have been identified by the parties in this case relate to those objects, that is, the capacity of the mother and father in the context of their relationship with the child.  Two, the child’s views, and three, the benefits that she can get from a relationship.  The key issues also reflect an examination of the s 60CC considerations:  the pursuit of meaningful relationship, the protection from neglect, the looking at the capacity of each of the parents, the views of the child, the nature of a relationship between the child and each of her parents, the opportunities taken by each of the parents, their attitudes to their responsibilities of parenthood and fulfilling those responsibilities.  They look to the question of the changes that face the child, and the difficulties that will accompany them.  They look also to the question of the maturity and background of the child, and family violence.

16. Turning then to the three most critical matters, I look firstly at the question of the capacity of the mother.  The capacity of the mother turns on issues relating to her mental health and ice consumption.  The report prepared by Dr D for the Director-General has been most helpful in terms of assessing these matters.  At [7] to [12], he sets out a description of the mother’s psychosis, pointing to the fact that her psychosis is without insight, but it is a psychosis.  At [15], he notes her admission to him of ice use.  He notes further the mother’s resistance to treatment and a resistance to medication.

17. At [22], he displays the mother’s insight that E, the subject of the psychosis, impacts upon the child, that is, the mother can see that the child is afraid about E, although the mother does not recognise that E is not real, but the subject of a psychosis.  At [31], he moves to diagnosis.  He assesses the mother as having a psychotic disorder brought on by ice use, of moderate severity, providing a mild impairment to functioning, but not meaning that she is harmful to herself or harmful to others.  The psychosis relates principally, it seems, to E, the thought that he might be living in the roof or the walls of her house and coming and going from her house. 

18. On that initial assessment, that it is of mild impairment in her functioning, which means that she is not harmful to herself or others, the question might arise as to its significance to the child.  At [41], Dr D answers that significance:  that is, despite the mother’s capacity to generally function, her psychosis has a significant impact upon her parenting capacity.  Principally the way this was pointed to was that she and the child have a shared delusional system.  It is a delusional system of intrusion into their lives and homes, a pervasive and not preventable danger:  that is, the child shares the mother’s fears about E, and has taken on aspects of the mother’s delusional system, which mean that she’s not safe or does not feel safe in her mother’s home.

19. With the mother, that is, if the child was to remain living with her mother – then she would continue in these shared delusions.  Dr D’s view was that this would have a significant impact upon her psychological development, and I accept that view.  It seems that it is a circumstance that would be likely to produce continuing and elevated anxiety for the child.

20. Further evidence about the mother came through the Director-General.  Annexure C of the affidavit of Ms F, the case worker, set out a chronology of urinalysis.  This chronology was updated in later tender.  Without going into all the details, the initial chronology showed that between June 2016 and January 2017, there was almost no compliance on the part of the mother with the urinalysis regime.  In January and February of 2017, she was shown in three urinalysis to have consumed methylamphetamine, and from 22 February through to 7 March, to have again become non-compliant with the testing regime. 

21. Accepting what Dr D has to say about diagnosis, that is, that there is a connection between the mother’s psychosis and her consumption of ice – then the pattern of noncompliance, and when compliant, the pattern of positive testing for ice, is indicative of a continued use of ice, particularly when one looks at the admission that she made to Dr D, a limited admission of her use of ice.  This factor, the continued use of ice, means that there is a high risk of continued psychosis, and a negative impact continuing upon her capacity to parent. 

22. The exhibit C3 was the affidavit of Ms G of 5 August 2016.  This document contained a series of anonymous reports.  To the extent that what is contained in those anonymous reports is not within the direct knowledge of the original deponent, to the extent to which they are anonymised, it is difficult to, and I do not, place weight on the anonymous reports.  The examples of the inadequacies of those reports are seen in reports about the psychosis, reporting the mother’s psychosis about a man accessing her roof.  One of the difficulties with looking at that is it was impossible to ascertain whether or not that corroborated the sources that Dr D had relied upon, or whether or not it was the same sources that Dr D had relied upon.  I accept that there are limitations on the part of the Director-General in providing material that is not anonymised, but the anonymisation gives significant limitations in this case as to how it can be used.  The concerns recorded in that material largely replicate those of Dr D. 

23. There was further material recited in that affidavit, which was a recital of events leading to emergency action.  That material was qualitatively different to the anonymised reports, and was helpful.  Although it was still expressed in a hearsay form, and there is an inability in these proceedings to test that as a result of its hearsay form, and noting that although the Rules in relation to hearsay do not apply in this child-related proceeding, but that I should still note the hearsay quality of the material, it is still material which is of value, particularly where the source has been identified. 

24. That material demonstrated the fears held by the child, and helped to demonstrate that she had adopted the same delusional scheme that her mother suffers from.  She is reported as having described that “the man”, presumably E, “comes over to our house, but no one can see him”; that “he has cut through our walls”; and that the child derives some security or safety from the fact that the mother has a friend who is a good fighter.  The descriptions that she gave as recorded in that affidavit material are descriptive of a high level and a pervasive form of fearfulness even in her own home.  Also helpful within that material was a recital of the engagement between the mother and the Director-General’s office, in particular in relation to requests for urinalysis, testing for ice, and the denial of the use of ice. 

25. The conclusion I draw from this material, that is, in particular from Dr D, from the recital of events leading to emergency action and from the engagement with the Department, is that the mother, not through willed neglect but because of her unrecognised psychosis, is causing harm to the child while the child is in her care.  The child is suffering psychological harm, even though the child cannot see that now.  The mother does not have the capacity at present to parent, to nurture the child or to protect her from harm, and unfortunately, constitutes a source of harm.

1. Turning then to the father’s capacity.  The father has some history of prior mental health issues and drug use.  There is, however, evidence that he is now drug-free.  That evidence comes primarily from him:  that he is drug-free after an extensive and lengthy history of the use of drugs.  In his oral testimony, he explained the changes that he has undergone in his thought processes in order to deal with the drug addiction.  I accept, on the basis of his evidence, that he is drug-free.

2. He and the child face a developing relationship in the context of what has been a disrupted relationship.  They have had quite limited time together between August 2011 and January 2016, although that has been supplemented by Skype communication between them.  The relationship became disrupted because the father left Australia, leaving the child with the mother.  The father says, and I accept, that he was unaware of the extent of the mother’s problems.  Certainly at the time he had enough of his own to justify the extreme course of action he took, to move to the United Kingdom to get clean.  It was pointed out to me, and I accept, that if he had not taken the steps that he has to get clean, he would now not be available as a parent to the child.

3. In assessing his capacity, some conflict has been identified between he and the child, in the context of the limited relationship and in the context of what is fairly limited experience for him as a father.  Their interactions have descended into screaming and door-slamming on his part.  If that became entrenched as a pattern, then according to the family consultant, for the child that could lead to poor mental health, psychological problems, and struggling at school but assessing the evidence, I can see that the father demonstrates a reflective capacity.  He has made significant admissions in relation to this conduct, that is, he has made admissions which were not otherwise detectable about his interactions with the child.  That gives credibility to his description of the events and credibility to his description of his engagement with the issue as well. 

4. Accepting that the screaming and door-slamming is a poor pattern of interaction, it should not be measured against an artificial standard of perfection.  Rather it should be considered in the light of the assessment by the family consultant.  It reflects on his current capacity, but it is qualitatively different to any of the deficiencies which flow from the mother and her mental health and drug addiction.  Even if it was at its worst between the father and the child, even if it was entrenched – and I do not accept that it will become an entrenched pattern – then the evidence says it is still not of the width of risk that the child faces with her mother. 

5. It is encouraging that the father is examining himself and seeking change within himself.  And the family consultant also noted that even if it was at its worst, the father also brings positive factors to the relationship with the child, whereas in looking at the mother’s position with the child, unless there is change as to her mental health position or her drug position, things are simply not going to improve for the child. It is a far greater risk of harm for the child to stay with her mother, if indeed she could, than with the father, flowing from the shared delusional system.

6. However, there is a further comparison to be made, that is, if the mother is not available – and she appears unlikely to be available, because of the foreshadowed action by the Director-General – then the most likely option is a residential house, which would consist of other children suffering from mental health and drug issues, or at least likely to be.  The Director-General accepts that that is contrary to the welfare of the child.

7. In circumstances where there are limitations as to what each of the parents can bring brought on by geography, on the concession of the Director-General that it is a poor result to have the child enter into residential care, the difficulties that the child faces remaining in Australia are far greater than if she was to be with her father. 

8. The third matter related to the child’s views.  They were disputed.  The father’s belief is that the child’s underlying view is that she wishes to live in the United Kingdom.  I am not able to draw such a conclusion, given her expression as to not wanting to return to the UK; but given her discussion as to the future in the UK, I accept that she has at least mixed feelings about that.  She has expressed that she wants to live in Australia; that she has a preference for foster care over returning to the UK; that her preference is to be with her mother.  She marked being with her mother as 10 out of 10, being with the paternal grandfather as 10 out of 10, being with her father as a four to five out of 10, and being with Ms H, the father’s partner, as a 10 out of 10.  Significantly, returning to the United Kingdom will see her immediately all but living with Ms H as well as the father, with the intention that that will become a more fulsome arrangement shortly.  She already spends almost every night in Ms H’s household with the father.

9. That expression of views on the part of the child does not reflect the reality of her situation.  If she was to live with her mother, there are strong indications of harm.  There is a strong indication that there will be a likelihood of further intervention by the Director-General.  That would mean that she would not live with her mother, despite her views.  There is no conclusion available as to what particular foster arrangements she will ultimately have.  If she was to remain in Australia, she would have a very limited relationship with her father, an “at risk” relationship with her mother – she would certainly not be able to live with her – and unknown living arrangements.  The child, it seems, does not understand the consequences of remaining in Australia.

10. I accept that there is a likely risk of distress, at least at first, if the child moves to the United Kingdom.  However, although her views are important, they are not dominant in this case.  The harm if she was to live with her mother, due to her mother’s lack of capacity;  the alternative of residential care being contra to her welfare – looking at these as against the developing relationship with her father, a relationship in which he is showing a capacity to increase his capacity to emotionally care for the child, the possibilities that the relationship with her father brings for her development, brings for helping her to reach her potential and brings in protecting her from harm, means that she needs to live with her father.  Her welfare is best met by living with her father, even though that is against her view, even though that will mean that there will be a minimal relationship with her mother.  At present, in any event, her relationship with her mother cannot be one of living together. 

11. Accordingly, the child will live with her father in the United Kingdom.  As indicated earlier, there will be an order that he will have parental responsibility.  But that does not prevent him – and indeed, he will be required to give the mother notice of important decisions being made for the child.  And that is the position despite the fact that the move to the United Kingdom will involve a limited capacity for the child to see her mother, although the father has committed to orders to bring the child back to Australia yearly, he has conceded he might simply be unable to afford it.  It also seems to be the case that if the child is brought back at present, it is likely to be supervised.  Despite these undesirable aspects, which would undermine what is an undeniably important relationship for the child, they are inevitable restraints given the mother’s mental health and drugs, and given that there is no acceptable alternative.  The mother’s relationship with the child can also be supported by Skype calls. 

12. Hence, the child will live in the United Kingdom and will have annual time with her mother along with Skype calls.  I intend to adopt generally the orders proposed by the Independent Children's Lawyer, father and Director-General, in particular as they also promote and support the father in following the recommendations that have been made by the family consultant. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 6 April 2017.

Associate:

Date:  23 August 2017