Gosper & Anor & Noles-Thompson & Anor

FAMILY COURT OF AUSTRALIA

GOSPER AND ANOR & NOLES-THOMPSON & ANOR

[2015] FamCA 748

FAMILY LAW – PRACTICE & PROCEDURE – Where the applicants are the subject child’s maternal great aunt and great uncle – Where the mother is the first respondent and the father is the second respondent – Where the father has not participated to any extent in the proceedings and has not seen the child since 2011 – Where the hearing was conducted with the applicants in Court and the mother attending by telephone from New Zealand

FAMILY LAW – CHILDREN – Best Interests – Where the child has lived with the applicants since the end of 2012 – Where the child has a meaningful relationship with the mother – Where there is a need to protect the child from physical or psychological harm in the mother’s household – Where the mother has an acquired brain injury – Where this injury has impacted upon the mother’s parenting capacity but there is no medical or neuro-psychological evidence about the extent to which her parenting capacity is affected – Where the mother does not have the ability to be focused on the needs of the child and to give them priority over her own needs – Where the child’s most important relationship is now with the applicants – Where the child has formed a secure attachment to the applicants which would be greatly disrupted by her removal from their care – Child to live with the applicants – Child to spend supervised time with the mother each year either in New Zealand or Australia – Child to have weekly Skype or telephone contact with the mother

FAMILY LAW – CHILDREN – Parental Responsibility – Applicants to have sole parental responsibility for the child, with provision for information and exchange of ideas with the mother regarding long term issues and for additional time and communication

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANTS:

Ms Gosper & Mr Gosper

FIRST RESPONDENT:

Ms Noles-Thompson

SECOND RESPONDENT:

Mr Lauder

FILE NUMBER:

NCC

600

2014

DATE DELIVERED:

10 September 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

24-26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Duane

SOLICITOR FOR THE APPLICANTS:

Attwaters Solicitors

FIRST RESPONDENT:

In Person

SECOND RESPONDENT:

Not Applicable

Orders

That all prior parenting Orders in relation to B born … 2009 (“the child”) are discharged.

Residence

That the child live with the maternal great aunt and the maternal great uncle (“the applicants”).

Parental Responsibility

That the applicants have parental responsibility for the child.
That on each occasion a long term issue (including but not limited to education, health and religious instructions) arises for the child, the applicants, or either one of them, shall take the following steps:
(a) Notify the mother in writing of the issue for determination;
(b) Advise the mother of the course proposed by the applicants;
(c)Invite the mother to provide a response and any alternate proposal within a nominated period of time;
(d)Give proper consideration to any response of the mother received within the nominated time; and
(e)Promptly advise the mother of the decision taken about the relevant issue.
That the applicants shall provide a copy of these Orders to the principal of the school which the child attends (“the school”).
That the applicants shall authorise the school to provide to the mother, at her own expense, if any, all information (of the type usually provided to parents and guardians) relating to the progress and welfare of the child at school, including, but not limited to, school reports, school newsletters and applications for school photographs.

Communication

That the child communicate with the mother as agreed between the applicants and the mother, but failing agreement, not less often than as follows:
(a)By Skype, or if Skype is unavailable by telephone, on one occasion each week at 9.00 am on Saturday; AND
(b)On the following occasions each year, at 8.00 am, unless otherwise agreed:
i.26 April;
ii.Mother’s Day;
iii.1 December; and
iv.Christmas Day.
The mother and the applicants shall keep each other advised of their current contact details including residential address, telephone number, email address and Skype details.

Spending Time

That the child shall spend time with the mother as agreed between the applicants and the mother, but failing agreement, not less often than as follows:
(a)In New Zealand each year with the applicants, or either of them, to travel to New Zealand with the child for a period of not less than 7 days, commencing in the first half of 2016, with time to be spent between the mother and the child on four occasions during that period:
i.At a Contact Centre in the area of C Town, New Zealand; or
ii.Facilitated by an agreed supervision service in the C Town area; or
iii.In the presence of an agreed family member or friend.
(b)In Australia on any occasion that the mother is able to travel to Australia, provided she gives as much notice of the proposed dates in Australia (and in any event not less than seven days notice), with time to be:
i.At a Contact Centre in the Newcastle area; or
ii.Facilitated by any agreed supervision service in the Newcastle area; or
iii.In the presence of an agreed family member or friend.

Restraints

That other than in accordance with these Orders, the mother is restrained from removing and attempting to remove the child from:
(a)       The applicants;
(b)       The home of the applicants;
(c)       The school which the child attends; and
(d)       The Commonwealth of Australia;

IT IS NOTED that publication of this judgment under the pseudonym Gosper & Noles-Thompson & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 600 of 2014

Ms Gosper & Mr Gosper

Applicants

And

Ms Noles-Thompson

First Respondent

And

Mr Lauder

Second Respondent

REASONS FOR JUDGMENT

introduction

These are contested proceedings over parenting arrangements for one child, a girl, aged almost six.
The applicants are the maternal great aunt and maternal great uncle of the child (hereafter known as the “maternal great aunt” and “maternal great uncle”).
The mother is the first respondent and lives in New Zealand.
The father is the second respondent. The father has not participated to any extent in the proceedings and was unable to be served despite extensive efforts to locate him. He has not had any contact with the child since 2011. The father probably lives in New Zealand.
The hearing was conducted with the applicants and their legal representatives present in Court, and the mother attending by telephone from New Zealand, representing herself. The maternal grandmother was also present by telephone and was assisting and supporting the mother.

Short History of Relevant Events

The child and all parties, other than the maternal great uncle, were born in New Zealand. The maternal great aunt moved to Australia in 1984 and was married to the maternal great uncle in 1989.
The father was born in 1989 and is now 26 years old.
The mother was born in 1990 and is now 25 years old.

The mother and her brothers, as children, stay with the applicants in Australia

In 1999 the mother, aged 9, and her two brothers, Mr D aged 12 and Mr E aged 4, moved from New Zealand to live with the applicants in Australia. Their own parents were at that time unavailable and/or unable to provide care for them.
In 2000 the mother and her two brothers moved back to live with the maternal grandmother in New Zealand.
Three months later, Mr D returned to live with the applicants in Australia for a further period of two or three years before again returning to New Zealand to live.

The mother, aged 15, is injured in car accident

In November 2005 the mother was involved in a serious motor vehicle accident. She suffered severe physical injuries and was initially in a coma.
The main long term injury consequence for the mother has been an acquired brain injury, which sees her continuing to receive payments from the National Compensation Corporation in New Zealand.
For the two or three years prior to the accident, the mother had been uncontrollable, regularly running away from home and living on the streets. Just as regularly, the maternal grandmother found her and brought her home. There was high level conflict, including physical assaults, between the mother and the maternal grandmother.

Mr E moves to live with applicants

In 2007 Mr E moved back to Australia to live with the applicants. He was then aged 12. He has remained living with them since that time and is now 20 years of age.

The parties begin a relationship

Also in 2007, the mother, then aged 17, began a relationship with the father, which proved to be violent and unstable.
In 2009 the child was born.
The mother was assisted with the care of the child by her grandmother, the maternal great grandmother of the child. The maternal great grandmother visited the mother and the father, not less than weekly, bringing food, doing cleaning and assisting with the care of the child.
The maternal great grandmother was a witness in these proceedings. She reports that the mother was initially determined to ensure that her household would be drug free for the benefit of the child but lapsed in that determination, at least in relation to marijuana.
In early 2010, when the child was about three or four months old, the relationship between the parents broke down. The mother asserts that the father assaulted her. The mother and child moved to live with the maternal grandmother.
In mid-2010 the maternal great aunt travelled to New Zealand, and stayed with the maternal great grandmother. Police attended at the home of the maternal grandmother because she and the mother were fighting. The child was moved to the home of the maternal great grandmother at police direction. The mother went to live with the maternal great grandmother and the child for a period of time.
There was then a period of the mother intermittently living with the maternal great grandmother and with a new partner in independent premises. The maternal grandmother, whose evidence was unchallenged, cared for the child most weeks from Thursday to Monday.
In late 2010 the parents reconciled for a period of three or four months, until a violent attack on the mother by the father. The mother’s older brother Mr D, as retribution, physically assaulted the father and was gaoled as a consequence.

Family Law proceedings in New Zealand

In about April 2011 the father commenced Family Law proceedings in

New Zealand.
On 13 May 2011 an interim parenting Order was made for a period of

12 months. The matter did not proceed to final hearing and the 12 month Order lapsed in May 2012. That Order provided for the mother to have sole parental responsibility, for the child to live with her, and to spend supervised time with the father, fortnightly, for up to three hours.
The father ceased taking advantage of those Orders after two or three visits.
Towards the end of 2011 and into early 2012, Community Services in

New Zealand received reports about the mother and her level of functioning and parenting capacity. In particular, there were reports relating to the condition of the mother’s home and the extent to which the child was being cared for by family members.
By October 2012 the mother had formed a relationship with a new partner, Mr F. He attacked her and she defended herself with an axe. There was an interim Apprehended Violence Order put in place for the protection of the mother.
Community Services in New Zealand identified that the mother was intending to move to Australia towards the end of 2012. The child had already travelled there with the maternal great aunt and uncle. The notes indicate the following:[1]
[The mother] continues to have difficulties with her family in New Zealand hence the reason why she wishes to live in Australia - I am currently supporting [the mother] to access counselling with [another person]. I have introduced a coping strategy for [the mother] to use to manage some of her family relationships.
The professionals involved have been really firm with [the mother] regarding domestic violence and this does not seem to be an issue any longer.
[The mother] has demonstrated she is child centred and can provide care and protection for [the child].
[1] Exhibit 4
In the view of Community Services, the mother:[2]
… has a warm nature and is personable. [She] is a good mother. [She] identified in August 2012 that building a garden and being self sufficient would boost her confidence.
[2] Exhibit 4
Plans were made for that to happen, however the child became unwell, the mother required surgery and thereafter the plan to move to Australia solidified.
On 22 November 2012 the Community Services case in New Zealand was closed on the basis of the mother leaving New Zealand.
On 23 November 2012 the child travelled from New Zealand to Australia with the applicants. The mother said, and I accept, that she signed an Authority for the applicants to be responsible for the medical treatment of the child, but otherwise intended to be responsible for the child.
On 6 December 2012 the mother flew to Australia and stayed with the applicants for approximately a month before returning to New Zealand, leaving the child with them.
The expectation of all parties was that the mother’s period away in New Zealand was to be a short one and that she would then return to Australia to continue to care for the child. The mother said this:[3]
I had to come back to New Zealand to sort my flat out, arrange accident compensation payments and get some hearing aids fitted. This all took a lot longer than I initially thought.
The mother goes on to explain that she was also experiencing anxiety, low mood and poor sleep.
[3] Affidavit of the mother filed 26/05/2014, par 9
The mother was referred by the Accident Compensation Corporation (“ACC”) to a senior consultant clinical psychologist. She was medically reviewed by her rehabilitation specialist.[4] The mother also obtained her driving licence at this time.
[4] Affidavit of the mother filed 26/05/2014, annexure C
The applicants continued to care and provide for the child.
In November 2013, at the end of the HSC year for Mr E, the maternal great aunt took Mr E and the child to Country G for a holiday.

The mother returns to Australia

On 6 December 2013 the mother returned to Australia and commenced residing in the applicants’ home with them and the child. She had been absent from the life of the child for about 11 months.
The applicants assert that the mother went out socialising very regularly and continued to leave the care of the child to them. The mother asserted that she was prevented from mothering the child by the maternal great aunt.
The mother did not appear to understand the significance for the child of her extended absence, irrespective of adequate reasons for that absence. I conclude that the child had become used to being cared for by the maternal great aunt, and to a lesser extent the maternal great uncle, and looked to them for her needs to be met.
There was increasing conflict between the applicants and the mother over the following three months.
In March 2014 the mother left the applicant’s house and asserted she was going to the police as she wished to return to New Zealand with the child. The applicants did not agree to the mother travelling back to New Zealand with the child. In that same month the mother left Australia alone and returned to New Zealand where she has lived since.

Litigation in Australia begins

On 13 March 2014, immediately after the mother left Australia, the applicants filed an Initiating Application in the Federal Circuit Court seeking orders for residence and parental responsibility for the child.
On 27 March 2014 interim Orders and directions were made in this Court for the child to live with the applicants, for them to have sole parental responsibility and for the child to spend time and communicate with the mother as arranged between the applicants and the mother.
On 26 May 2014 the mother filed a Response seeking orders for sole parental responsibility, that the child live with her in New Zealand and spend defined periods of time with the applicants. The mother also filed affidavits by herself and the maternal grandmother.
On 11 July 2014 a Family Report was ordered. All parties were interviewed.
On 8 August 2014 there were interim Orders made by consent, defining time between the child and the mother, with such time to be supervised by a nominated supervisor. There was also provision for telephone communication three times a week. The child spent time with the mother in accordance with the consent Orders.
On 16 September 2014 the Family Report was released. The recommendation of the Family Consultant was that the child remain living with the applicants.
On 10 October 2014 the matter was listed for final hearing for four days commencing 4 May 2015. Directions were made for preparation for hearing.
On 9 March 2015 the hearing was adjourned to 24 August 2015, with consequential variations made to the directions for filing material.
At some stage between the release of the Family Report in September 2014 and May 2015 the mother’s grant of Legal Aid was withdrawn. On 20 May 2015 the mother’s solicitors filed a Notice of Ceasing to Act for her.
The applicants’ affidavit material was filed in July 2015. No material was filed by the mother.
On 29 July 2015 solicitors for the applicants made a request to the Court for the matter to be relisted for further case management in view of the mother failing to file any material. The matter was listed for mention on 11 August 2015. Leave was granted to the mother to appear by way of telephone from New Zealand if she wished.
On 11 August 2015 the mother did attend by telephone, represented by a solicitor who was providing pro bono advice to her. The mother confirmed receipt of the material filed by the applicants.
Through her solicitor the mother requested vacation of the hearing dates and an extension of time to file affidavit material by herself and the maternal grandmother. The request to vacate the dates was refused.
By consent, the time for the mother to file her material was extended to the Thursday before the hearing, that is, by close of business on 20 August 2015. The mother did not file any further material.

The mother and maternal grandmother are involved in a car accident in New Zealand

On 19 August 2015 the mother and the maternal grandmother were passengers in a motor vehicle which had a head on collision. The accident took place in a township about two or three hours drive south of City H. The mother and the maternal grandmother were travelling from C Town to City H with a view to the mother collecting a motor vehicle which had been given to her by her father. The intention was to then remain overnight in City H and travel home to C Town the following day. After observation in hospital the mother and the maternal grandmother returned home.
On 21 August 2015 the mother swore an affidavit foreshadowing an application for an adjournment of the final hearing due to start on the following Monday. Included as annexures was email evidence of efforts by the solicitor assisting the mother to obtain counsel to represent her in Australia.
A medical certificate was annexed in relation to the accident which included information supplied by the mother and/or the maternal grandmother to a doctor, which was subsequently revealed to be incorrect. That information was that the mother and the maternal grandmother had been intending to travel to Australia at the time of the accident.

Application for adjournment of the final hearing

On 24 August 2015 the application for adjournment was formally made. It was opposed by the applicants. The application was heard over the course of the first day of the final hearing and oral reasons were delivered ex tempore by me in the afternoon.
Leave was granted to the mother to participate in the hearing by telephone from New Zealand, to cross-examine and to make submissions. The mother’s solicitor made a room in his offices available to the mother for that to happen. That solicitor has been providing pro bono advice and assistance to the mother for some weeks and was instrumental in assisting the mother to engage with these proceedings.
On 25 August 2015 the hearing commenced.

Evidence

The documents relied on in respect of the application were as follows:
(a)Affidavit of the maternal great aunt filed 10/07/2015;
(b)Affidavit of the maternal great uncle filed 10/07/2015;
(c)Affidavit of the maternal great grandmother filed 10/07/2015 (but not required for cross-examination);
(d)Affidavit of Mr E Noles filed 10/07/2015;
(e)Affidavit of the mother filed 26/05/2014;
(f)Affidavit of the maternal grandmother filed 26/05/2014; and
(g)Family Report dated 12/09/2014.

Oral Evidence

The Maternal Great Aunt

The maternal great aunt is 56 years old and is not in the paid workforce. She is at home, running the household for the benefit of the maternal great uncle, Mr E, and the child.
At one point in her cross examination by the mother she declared with evident sincerity that she loved the mother. This was in the context of the mother putting the proposition that she had offered to obtain marijuana for the mother; hence the statement, “I love you … I would not supply drugs to you”. The response from the mother was, “If you loved me, you wouldn’t take my daughter”.
I conclude that the mother takes no responsibility for her own painful situation of not raising the child. She blames the applicants, particularly the maternal great aunt, for having taken the child away from her. There was no acknowledgment through her questioning of the love and assistance provided over the years, although the mother may have felt it.
Communication between the mother and the child has clearly been difficult for the household, partly because the mother does not always ring when she is entitled to and that has to be managed in terms of the child’s expectation and possible disappointment.
It also became clear that the mother did not speak to whoever answers the telephone in the applicants’ household. She put this question to the maternal great aunt, “Why do you say ‘who is it?’ when I ring when you know my voice”. The maternal great aunt replied, “I’d like you to say hello and to try to build a bridge”.
It painted a picture of the mother being quite immature in focusing on her resentment towards the maternal great aunt rather than doing everything she could to make the situation positive and easy for the child.
Very few of the questions asked by the mother were related directly to the child but were about incidents in the recent and far past. The mother also asked defensive questions about the maternal grandmother and her older brother Mr D who spent a period of time in prison in New Zealand before more recently stabilising his life to some extent.
In response to a question of mine, the maternal great aunt said it was her intention to take the child to New Zealand. I accept her further evidence, in response to a question from the mother about such travel not having happened to date, that the only reason preventing her from doing so was the uncertainty of the legal position in relation to the child, “When we are free to travel to New Zealand, we will do so”.
At one point the maternal great aunt suggested to the mother that she needed to stop the anger for the sake of the child. This prompted an extremely angry response along these lines, “I need my daughter home with me, I will not rest until it has happened, I will go to the media, I will not stop”.
I conclude that the maternal great aunt has been devoted to her family and in particular, her younger sister’s three children. It has been emotionally challenging and has caused deep divisions between herself, her sister and the maternal great grandmother.
I came to the conclusion that the maternal great aunt has had an unwavering focus on the needs of the child but continues to be concerned for the welfare and progress of the mother as a young adult.

The Maternal Great Uncle

The maternal great uncle is 56 years of age. He is a self-employed businessman.
There was a degree of frustration evident in his responses.
Over the 25 years of his marriage he has shown a considerable commitment, both financially and emotionally, to his wife’s family. This included providing a home for his wife’s niece and two nephews for varying periods of up to three and a half years, between 1999 and 2002. The youngest of the three children, Mr E, has lived with them for the past eight years. Most recently the subject child joined the household, at the end of 2012. He has also of course had the considerable cost of this litigation.
However he responded to the questions and criticisms of the mother in a straight forward, rather stoical way.
The difficulties experienced by the applicants when the mother stayed with them in late 2012 to early 2013, and again from December 2013 to March 2014, became clearer through the questioning of him by the mother.
When she arrived in Australia in December 2012, about a fortnight after the child had travelled there with the applicants, the mother regularly went out in a social way. The maternal great uncle in particular had no authority, due to the mother’s age and because she was his wife’s niece, to tell her that she should be at home with the child, although it appears that that was his view, at least at that time.
On one occasion the mother accompanied him to a local hotel where he was in the habit of having a drink with friends two or three times a week. The mother remained, talking to a group of young men, and although he repeatedly asked her to come home with him, she indicated she had other plans. He returned home without her.
The maternal great uncle refused to be drawn in to the resentment that the mother so obviously feels, and openly expressed, about her role as mother no longer being available to her.
He politely but firmly disagreed with the proposition put by the mother that she had been “kicked out of the house” whilst conceding that a decision had been taken by them not to provide the mother with a key, “You were never kicked out and you were never refused entry”.
I conclude that the maternal great uncle did not approve of the mother’s conduct at times when she was living in his household and has been disappointed by her unwillingness to communicate with him and the maternal great aunt about the child since they commenced the litigation.
The mother asked in quite a forceful and confronting way why they had not helped her, “Why didn’t you help me at all, why? Why?” At the same time the mother put the proposition that maternal great uncle knew that because she was on ACC (the benefit for the acquired brain injury) that he must know that she was unable to work. He did not agree.
I conclude that the maternal great uncle has wondered whether the mother has some capacity for work but does not have access to medical information about her restrictions, and that has been a further source of frustration.
Overall I had the impression that the maternal great uncle was enduring the hearing at some emotional cost to himself.

Mr E Noles

Mr E is 20 years old. He finished high school with his Higher School Certificate in 2013 and is now in full time work.
Involvement in this hearing was very obviously painful and upsetting to him.
The questions asked of him by the mother were mostly directed at matters of historical family conflict between the applicants, the mother and maternal grandmother. Several questions by the mother were defensive of the maternal grandmother’s conduct when they were children. Some of the questions were very clearly intended to punish Mr E.
In his affidavit, Mr E referred to having received a number of text messages from the maternal grandmother which had been upsetting to him. He is regarded by the mother and the maternal grandmother as having taken sides with the applicants, which has led to their expressions of offence and disappointment with him.
In the Family Report the Family Consultant made this comment about him:[5]
He spoke very articulately and with great emotion about his positive regard for the Applicants and his description of his experiences both in their household and in New Zealand tended to support the Applicants’ version of events as opposed to the mother’s version of events.
[5] Family Report dated 12/09/2014, par 79
Mr E knew that the maternal grandmother was present in the room with the mother in New Zealand during the course of his questioning.
I conclude that his commitment and gratitude to the applicants for the last eight years of stable and happy life in their household and his affection for the child, whom he described to the Family Consultant as “a happy, loving child”[6], were the bases for his exposing himself to such an emotionally painful situation.
[6] Family Report dated 12/09/2014, par 80

The Mother

The mother is aged 25 years.
It is now 10 years since the accident which left her with an acquired brain injury and other injuries. There is no medical evidence for me to conclude what the restrictions are on the mother’s capacity for caring for her child, for work and for general functioning. The mother apparently received lump sum compensation and has an ongoing payment from the National Compensation Corporation in New Zealand.
She was not attending school and not consistently living at home when she had the accident when she was 15 years old. Her life has apparently been on hold since, in terms of rehabilitation, training and independence.
The lack of medical evidence is a matter of considerable frustration. In her final submission the mother referred to her health. She described weakness on her left side and limited use of her left hand, “I tire easily it would be overwhelming to work”.
It was a glimpse of the consequences for the mother of her accident but could hardly rectify the absence of current information on her level of function and extent of impairment. In the Family Report the Family Consultant had laid out in detail the information which could assist the Court, including neuro-psychological assessments.[7]
[7] Family Report dated 12/09/2014, pars 130-131
The mother had chosen not to read the Family Report because it would be too upsetting, “I would have had a heart attack if I had read it. It would be too stressful. My mother told me bits about it.” It was an opportunity missed for feedback and future direction.
This is a revelation in my view of the mother’s immaturity and her inability to come to grips with difficult matters. It is consistent with her failure to give priority to preparing an affidavit for these proceedings even after she had been granted an extension of time. She chose instead a long trip to collect a car from her father.
The mother was not inclined to make obvious concessions:
Question:You were 19 when [the child] was born, you had been in a bad car accident and you were in a bad relationship. Not a good position to provide for needs of a little baby?
Answer: No, I disagree.
The mother was also reluctant to concede the significance of the care given and help provided by the maternal great grandmother in New Zealand. She discounted the applicants’ travel to New Zealand on two occasions to assist with the care of the child. The mother denied that motivation, “She came for holidays”.
Such an answer is entirely inconsistent with an aunt who had provided a home for her niece and nephews for a period of years when their parents were unable to provide full time care.
The mother has had a series of violent relationships with partners who have threatened and hurt her. The father abused alcohol and the mother herself and some of her partners have been drug users.
The mother, in my view, minimised the conduct of violent men such as the child’s father, her subsequent partners and her own older brother Mr D. She was quite warmly positive about the fact that Mr D had violently attacked the child’s father, “because he loves his sister”. There was violence inflicted on her mother by her father, “He monstered her”.
The mother agreed that she had told many people that one of her partners, Mr F, was “p-fried”, a reference to his using Methamphetamine/Ice but denied that he was affected by the drug because she had “never seen him smoke it”. In describing his attack on her which had prompted her to grab an axe for her defence, she laughed briefly and went on to deny that her life had been chaotic.
Her final area of minimisation was that the child, as a toddler, had picked up a small marijuana cigarette and handed it to the maternal great grandmother. The mother referred to this as “a little tiny roach on the ground, she picked it up, yes”. When pressed as to whether the mother had any responsibility for that having happened she said, “It was to do with me, it came from the house but that was in the past”.
The mother did concede that things had been so bad in her life that she planned to move country to Australia with the assistance of the applicants who had cared for the child whilst she packed up in New Zealand.
During the 11 months of her absence, the applicants sent information about the child to the mother. At first the mother denied regular messages. Having heard some of them read out in Court, she agreed that the maternal great aunt had sent texts and information but said she had not responded because she had no money, “I had my own house, I had a car, I had lots of bills to pay.” She went on to say that she was also in that year “in a bad relationship and not in a good headspace”. She then made a rare concession, “Probably I didn’t contact [the child] as much as I should have”.
The reference to a “bad relationship” accords with the Family Consultant’s observation that the mother does not appear to have a capacity to develop a stronger child focus. She had intended to move to Australia to put some distance between herself and a bad relationship but during the course of 2013 in New Zealand, she clearly entered another one.
There is no evidence before me to suggest that the mother has had any kind of therapeutic intervention which would allow her to identify potentially destructive relationships and stay away from them or extract herself from them early.
The mother was pressed about her unwillingness to communicate with the child because she found it upsetting. The prospect of communicating in future with the applicants provoked another outburst of emotional distress and resentment, “Yes, I want my daughter, this is not right, this is not fair, this is so messed up”.
I conclude that the mother’s own emotional pain, at not being with the child and not raising her, was the main reason for lack of contact. That pain and distress overwhelmed any knowledge she had about the need of the child to have regular reassuring communication with her mother.
I note that in the mother’s affidavit, she referred to the effects she had experienced from age 15 after her car accident, including “a racing heart, hearing loss, headaches, joint pain, fatigue and for some years after the accident what I believe was post-traumatic stress syndrome”.[8]
[8] Affidavit of the mother filed 26/05/2014, par 3
The mother also acknowledged regular marijuana use since age 15, which she said assisted with pain relief and comforted her after the trauma of the car accident. The mother acknowledged that she had formed a habit but had made a decision to stop by the time of swearing her affidavit in May 2014.
At that point the mother asserted that she had not smoked marijuana for two months. The annexed drug screens supported that assertion, although I note that the drugs screens produced from Youth One Stop Shop were not expressed to be in compliance with chain of custody testing.[9]
[9] Affidavit of the mother filed 26/05/2014, annexure A
However the more significant matter is that no affidavit material or evidence of any kind about the mother’s present level of drug use and present level of psychological and behavioural functions have been provided to the court.
Despite the importance of drug use, especially to the applicants if not the Court, the mother chose to present no further evidence about drug use. She was offended by a past reference in Court to the doubt created by drug tests which did not refer to compliance with protocols such as supervision of provision of sample and chain of custody handling. She protested this perceived slight on the screens she had provided by doing nothing more for a final hearing. This was a startling example of self-defeating immaturity.

The Maternal Grandmother

The maternal grandmother described the childhood of the mother as “idyllic”.
It may well have been a happy one in her early years but by the time she was nine her father had been gaoled for drug dealing. The maternal grandmother agreed that in the 12 months between being arrested and tried, her husband was violent towards her. By 1999 her three children were in Australia with the applicants, so those events adversely affected the family in a profound way.
The maternal grandmother spoke in a hostile, resentful way about the assistance provided by the maternal great aunt and uncle. She was asked whether she had sent any money for support for the three children. Her answer was given in an emphatic word by word way, “NO I did not. They told me not to”.
Unfortunately the maternal grandmother has supported the mother in taking an angry stance against the applicants, impugning their motives and thereby keeping an intergenerational conflict alive.
Later in her evidence, the maternal grandmother made concessions that both her sons have benefited from the stable loving care of the maternal great aunt and uncle in Australia. The mother heard those concessions and could reconsider her attitude to the role of the applicants in her life and the life of the child.

The Family Consultant

The evaluation of the Family Consultant was that the child appeared to be “flourishing in the care of [the applicants]” and that she appeared to have a very secure attachment relationship with both of them.[10] For their part, they were considered to be “very attuned to her needs and appear committed to caring for her on a long-term basis”.
[10] Family Report dated 12/09/2014, par 124
In relation to the mother, the child was evaluated as not appearing to have a secure attachment to her. The capacity of the mother to provide for the child was assessed to be limited.
A report from the mother’s treating psychologist dated 8 May 2014[11] noted that the mother had improved in her ability to manage her anxiety, felt less stressed and irritable and was able to resolve some family issues; however, there is no evidence before me of continuing, or any, psychological treatment.
[11] Affidavit of the mother filed 26/05/2014, annexure C
The mother does not work and strongly asserted that she does not have the capacity to work as a result of her acquired brain injury. There is no evidence which allows me to understand the extent of the damage or if it is the case that the acquired brain injury prevents the mother from working, what the reason for that inability is, and is it the brain injury itself or consequential psychological or physical injury.
The Family Consultant also provided specific comments on the impact of the acquired brain injury on the mother’s parenting capacity.[12]
[12] Family Report dated 12/09/2014, par 66
The Family Consultant noted that subpoenaed material provided little in the way of information with regard to the mother’s current level of functioning. There were no results for any neuro-psych assessments or psychometric testing. The Family Consultant had discerned that the mother’s behaviour patterns had been in place prior to her catastrophic accident.

In her oral evidence the mother confirmed that she had been, prior to the accident, a runaway, living with her friends on the streets and returning home to live with the maternal grandmother from time to time.
The Family Consultant also noted the chronic use of marijuana which was likely to have “impeded any progress with regards to emotional maturation and her academic progress appears to have stalled in much the same way”.[13]
[13] Family Report dated 12/09/2014, par 66
The Family Consultant noted that acquired brain injuries are by definition permanent and not going to resolve over time. The implications for the mother’s parenting capacity were to diminish that capacity. In the view of the Family Consultant the mother appeared ill equipped to meet the needs of the child and could pose an ongoing risk of harm to the child.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

The child does not have a meaningful relationship with the father. She has not seen him for four years and she is only five years old. There was some limited evidence of the father having been in criminal trouble in New Zealand and the oral evidence of the mother that it was her wish that the child not be brought in contact with the father. That relationship may have to wait until the child is a young adult and can make decisions herself about the father.
The child does have a meaningful relationship with the mother. She knows who her mother is and has had inconsistent time and communication with her but enough for the knowledge to be fully formed.
I am satisfied that that knowledge has been provided and supported by the applicants who regularly talk to the child about her family in New Zealand, in particular the mother.

The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

There is a need to protect the child from physical or psychological harm. She has been exposed to family violence in her early years in the mother’s care and to some extent, neglect. The mother was not always an attentive custodian and gave priority to relationships with violent men who represented a risk to the child, including the child’s own father.
The mother herself, whilst undoubtedly loving the child, behaves in an erratic and impulsive way and has limits on her capacity, which have been identified by the Family Consultant but about which there is no medical or neuro-psychological evidence.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The child was observed by the Family Consultant in September 2014, aged four years and nine months. She is described as a happy, confident child, and on track developmentally.[14]
[14] Family Report dated 12/09/2014, pars 105-120
She was asked to choose ‘bear cards’ representing her family. She was able to choose bears representing herself, both of the applicants and Mr E. All those cards were described as very positive but she declined to choose cards representing the mother and the maternal grandmother, although she was subsequently pleased to see them and enjoyed engaging in activities with them during observations.
I take into account the strength of the relationship revealed through the observations in the Family Report and in particular this aspect of the report, about the child’s maturity and level of understanding.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The child now has her most important relationship with the maternal great aunt and uncle. She also has a loving and affectionate bond with Mr E, a member of that household.
She is described by the Family Consultant as having been happy to see the mother and the maternal grandmother, relaxed and comfortable in their company. She protested when she was about to be separated from them, but farewelled them affectionately with a hug and a kiss.
This interaction reflects the love that all members of the maternal family feel for the child. It is a positive reflection on how carefully the applicants have preserved the relationship between such a young child and the mother who lives outside Australia, over the past almost three years that she has lived in their household.
The child also has a loving and affectionate relationship with the maternal great grandmother in New Zealand.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

This section is significant for the child.
The mother made a positive decision to move with the child from New Zealand to Australia at the end of 2012. She understood that a history of violent relationships and violent conflict with the maternal grandmother, in addition to drug use and ongoing consequences of her acquired brain injury, meant that she needed help and support. It was a good decision for the child.
Unfortunately the mother was not committed to providing full time day to day care in that early period in Australia and took the opportunity while the child was being cared for by the applicants to socialise and also to smoke marijuana. That led to conflict, but nevertheless a decision was taken for the mother to return home, pack up her life in New Zealand and come back to Australia to engage in caring for the child.
For 11 months the mother remained in New Zealand. Her explanation was that her head was in a bad place. She was in a bad relationship. She had no money.
There were also some positive things happening for the mother in terms of assessment by the ACC, the obtaining of a driver’s licence and some psychological intervention for depression. However, it was her choice not only to stay away for 11 months but to communicate rarely because it was too painful to do so.
The mother then returned to Australia at the end of 2013, remaining for two or three months which proved to be even more conflicted than the earlier period, before leaving again and returning to full time residence in New Zealand.
In a sense this was again a good decision by the mother, who must have recognised at some level that the child had done very well in the care of the applicants and would be safe if she continued to live with them.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The mother has not contributed to the financial upkeep of the child. She has not been pressed to do so by the applicants.
The evidence about her capacity to work is simply her own statement that it would be overwhelming for her to do so because she suffers from fatigue as a result of her brain injury, however, there was no evidence at all before me about the actual financial circumstances of the mother, or her capacity to contribute to the child’s needs over the next 14 years of her infancy.
There is no evidence of any financial contribution by the father to her upkeep.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

The expert evidence is that the child has formed a secure attachment to the applicants and would be greatly disrupted by removal from their care. Further, the evidence is that the mother does not have the ability to be focused on the needs of the child and to give them priority over her own needs.
I conclude that the child would be profoundly adversely affected by a change of circumstances at this time, out of the care of the applicants and their home in the company of Mr E, and into the care of the mother who has not yet achieved stability in any area of life.

The practical difficulty and expense of a child spending time with and communicating with a parent

This is a significant consideration. It is important for the child to maintain a relationship particularly with the mother, but also the maternal grandmother and maternal great grandmother in New Zealand.
Flights are not inexpensive on a regular basis and arrangements for travel and accommodation amount to a considerable expense.
At this time the mother does not have the capacity to travel to Australia and obtain accommodation for herself and she may never do so.
The applicants do have the financial capacity to travel to New Zealand and have been in the habit of doing so since the maternal great aunt first moved to live permanently in Australia in the 1980s.
Accordingly it is appropriate that provision be made for annual travel by the applicants to New Zealand to promote that relationship between the mother and the child and also to the provision for time to take place in Australia whenever the mother is able to undertake that exercise provided she gives notice.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Capacity is a significant issue here.
During the time that the child lived with the mother, she was unable to consistently provide care for her and exposed her to domestic violence in more than one short term relationship. The mother used drugs, and to a lesser extent alcohol, when the child was a very young infant.
Fortunately the mother recognised that the maternal great grandmother was a person who would provide good care for the child. She took the opportunity to have that care provided on a substantial basis rather than provide it herself.
It may be that the mother simply does not have the capacity to do so; that has remained untested.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

The child will be six years old later this year. She was born in New Zealand and has extensive family there.
She is a bright child, with an interest in singing and dancing. She has a well-developed sense of humour and is doing well at school. She is described as having lovely manners. All of this supports the observation of the Family Consultant that she is thriving in the care of the applicants.
It also has to be said that she is very much loved by the mother, despite deficiencies in her ability to care for the child.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother presented as immature and defiant. She focused more on the perceived unfairness of the child not being in her care than on the need to support the child the best way she could by regular contact and communication and by modification of her own conduct.

Any family violence involving the child or a member of the child’s family and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

There has been extensive family violence in the maternal family. It affected the mother as a young child, her father, having been arrested for drug related matters and gaoled, became violent, if he had not been so before, in the period after arrest and before trial.
Such was the situation in the mother’s family home that she and her brothers travelled to Australia to live for a year or so in the loving and stable care of the applicants. Both the mother’s brothers returned to that care; Mr D for about three to three and a half years; and Mr E for the past eight years.
The mother herself has always turned to her extended maternal family for help when she has been in conflict with the maternal grandmother or when she needed assistance with the child.
That early exposure to domestic violence may have contributed to the mother’s relationships with violent and abusive men. She herself has an impulse to violence and was warmly supportive of Mr D punishing the father by assaulting him after he had assaulted her.
There is a great need to protect the child from violence and retribution of that kind.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

Based on the evidence before me, the best interests of the child long-term are for her to remain living with the applicants, whether or not there is a variation of time spent between herself and the mother as the years go by.
There is no doubt the mother would like to have the child in her care in

New Zealand or if not for the child to spend substantial unsupervised time with her.
In the event that she is able to stabilise her life and change her circumstances the mother may be able to negotiate different arrangements for time and communication with the child. I am satisfied that the applicants would be positively responsive to, and pleased, by such a change.
In the event that the mother is able to satisfy the applicants that she is drug free, stable in her relationships and in a positive psychological state for meeting the needs of the child, I have no doubt that additional time and communication will be facilitated for the benefit of the child without further involvement of the Court.

Any other fact or circumstance that the court thinks is relevant

The maternal great aunt and uncle are aged in their mid-fifties. They are both committed and willing to raise the child at their own expense and to protect and promote her relationships with the mother and other members of the maternal family.
They have expressed a willingness to travel annually to allow the child to see the mother in safe and appropriate circumstances.
They have both demonstrated a commitment to the mother herself and her two brothers, which conclusively outweighs the mother’s proposition that the motivation of the applicants is in any way selfish or done as compensation to themselves for not having had their own children.
They have provided, and continue to provide, tremendous benefit to the child and to the maintenance of the child of a loving relationship with the mother.

Conclusion

For those reasons Orders are made that the applicants have sole parental responsibility for the child, with provision for information and exchange of ideas for long term issues and for time and communication as discussed in these reasons.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 10 September 2015.

Associate:

Date: 10 September 2015

[2015] FamCA 748

10 September 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness