Grant and Morson and; Wood and Wood and Anor
[2014] FCCA 1772
•20 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANT & MORSON and WOOD & WOOD & ANOR | [2014] FCCA 1772 |
| Catchwords: FAMILY LAW – Parenting – exposure to family violence –unacceptable risk to the children – primary considerations contained in section 60CC confined to a parent. |
| Legislation: Health Records Information Privacy Act 2002 (NSW) |
| Aldridge & Keaton (2009) FLC 93-421 Burton & Churchin and Anor [2013] FamCAFC 180 Johnson & Page [2007] FamCA 1235 Deacon & Castle [2013] FCCA 691 H & W (1995) FLC 92-598 |
| Applicant: | MS GRANT |
| Respondent: | MS MORSON |
| File Number: | PAC 524 of 2014 |
| Applicant: | MR WOOD |
| First Respondent: | MS WOOD |
| Second Respondent: | MS GRANT |
| File Number: | PAC 2279 of 2009 |
| Judgment of: | Judge Harman |
| Hearing date: | 20 June 2014 |
| Date of Last Submission: | 20 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 20 June 2014 |
REPRESENTATION
| File Number: | PAC 524 of 2014 |
| Solicitors for the Applicant: | Claremont Legal |
| Solicitors for the Respondent: | Hassans Solicitors |
| Solicitors for the Independent Children’s Lawyer: | Louise Coady Family Lawyer |
| File Number: | PAC 2279 of 2009 |
| Solicitors for the Applicant: | Jlm Family Lawyers Pty Ltd |
| Solicitors for the First Respondent: | Self-represented |
| Solicitors for the Second Respondent: | Claremont Legal |
| Solicitors for the Independent Children’s Lawyer: | Solicitors for the Independent Children’s Lawyer |
ORDERS
Pending further Order, suspend the operation of Final Parenting Orders made with respect to the children X born (omitted) 2009 and Y born (omitted) 2011.
Discharge all existing interim parenting Orders with respect to X and with respect to Y.
Pending further Order and pursuant to section 61C of the Family Law Act 1975, Ms Morson (the maternal grandmother) and Ms Grant (the mother) shall have parental responsibility for Y at such times as she is in their respective care.
Pending further Order, Y shall live with her mother from 2-3pm Friday until 3-4pm Sunday each weekend.
Pending further Order, Y shall live with her grandmother Ms Morson from 3-4pm Sunday until 2-3pm Friday each week.
IT IS NOTED that the commencement and conclusion times above are set as a range of times rather than a specific time on the basis that the parties live in (omitted) and (omitted) respectively and will be required to travel between each other’s homes by public transport and thus it is intended that the parties will communicate sufficiently with each other to ensure that changeovers occur by reference to the train which each of them is able to catch to meet in (omitted).
For the purpose of Y coming into the care of her mother and returning to the care of her grandmother the parties shall meet at (omitted) Railway Station.
Pending further Order, Ms Grant, Mr Wood and Ms Wood shall have equal shared parental responsibility for X.
Pending further Order, X shall spend time with Mr Wood and Ms Grant (her parents):
(a)Each Wednesday during school terms from the conclusion of school Wednesday until 6pm;
(b)From 11am Saturday until 2pm Sunday each weekend during school terms; and
(c)From the conclusion of school on the last day of school attendance in each school term until 6pm on the middle Saturday of that holiday period.
In the event that Mr Wood and Ms Grant shall separate from each other, then Mr Wood shall spend time with X, each Wednesday from the conclusion of school until 6pm and each alternate weekend during school terms, as above, together with a period from the conclusion of school Friday until 6pm Wednesday following in each school holiday period and Ms Grant shall spend time with X for the remaining period or periods.
The weekend time for Y (pursuant to order 4) will commence on Friday 27 June 2014 and for X (pursuant to order 9. b.) on Saturday 19 July 2014 and the first weekend of each school term.
For the purpose of X passing into the care of Mr Wood and/or Ms Grant they shall be responsible for collecting X from her school or if not a school attendance day from Ms Wood’s home and at the conclusion of each period they shall be responsible for returning her to Ms Wood’s home.
Mr Wood and Ms Grant shall be entitled to telephone and speak with X on any day that she has not been in their care and between 7.00pm and 7.30pm each evening and X shall then be entitled to speak with her parent/parents with privacy and without distraction or interference.
Consolidate the proceedings of Wood & Wood & Anor PAC2279/2009 with the proceedings of Grant & Wood/2014 and all documents shall hereinafter be contained within file number PAC2279/2009.
Mr Wood shall within 21 days of today’s date i.e. by close of business 11 July 2014 file and serve an Amended Application particularising the Orders sought by him on a final basis with respect to the above children or either of them.
Each Respondent shall no later than close 25 July 2014 file and serve an Amended Response particularising the Orders sought by them with respect to the above children or either of them.
Henceforth and pending further Order, the parties shall be as follows:
(a)Mr Wood - the Applicant;
(b)Ms Grant - the First Respondent;
(c)Ms Wood - the Second Respondent; and
(d)Ms Morson - the Third Respondent.
Ms Grant shall on Monday 23 June 2014 attend such appointment as has been arranged for her for the purpose of providing a urine sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, Ms Grant shall cause and ensure that report is provided to the Independent Children’s Lawyer and all other parties.
In the event that the testing report discloses a reportable quantity of any substance, save marijuana then Ms Grant shall continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances and further:
(a)Ms Grant shall then make contact with and enrol in such rehabilitation or detox service as may be nominated by the Independent Children’s Lawyer and attend at such times and places as required to complete that course or program; and
(b)The parties and the Independent Children’s Lawyer shall be at liberty to restore the matter to the list on 14 days’ notice in accordance with the usual Federal Circuit Court Protocol.
Pursuant to s.91B of the Family Law Act1975, the Department of Family and Community Service NSW is requested to intervene in these proceedings and with respect to same:
(a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been grant to the parties, their legal representatives and/or the Independent Children’s Lawyer;
(b)The Department is requested to advise, in writing and within 14 days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:
(i)Formally granting such leave and joining the Department as a party;
(ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;
(iii)Relisting the proceedings on short notice to allow further case management directions to be made.
IT IS NOTED that the child, Y born (omitted) 2011 lives with Ms Morson at (omitted) NSW and the child X born (omitted) 2009 lives predominantly with Ms Wood at (omitted) NSW.
IT IS NOTED that the Independent Children’s Lawyer proposes to seek funding to enable a Report to be prepared in these proceedings by Mr C and the Independent Children’s Lawyer is at liberty to submit a Minute of Order providing for the appointment of Mr C as a Part 15 Expert and for the purpose of Orders being made in chambers.
Adjourn the proceedings for further mention and directions to 29 August 2014 at 11am.
IT IS NOTED that in the event that a report has been prepared by Mr C (or otherwise) sufficient to allow the matter to proceed to final hearing and in the event that all parties and the Independent Children’s Lawyer are in agreement that the matter can proceed to final hearing then dates for hearing will, on the next occasion, be allocated to conclude the matter.
All parties shall do all things and sign all documents necessary to ensure that both parents (i.e. Mr Wood and Ms Grant) and Ms Wood are recorded with any school attended by X, as in the case of Mr Wood and Ms Grant, X’s parents and as regards all as emergency contact persons and so as to ensure that each of those persons are able to obtain directly from the school all and any information they may request with respect to X and any reports (whether oral or written) they may desire and so that each of those persons may attend at any event, function or activity at the school to which parents and carers are invited or encouraged to participate.
Ms Morson and Ms Grant shall forthwith do all things and sign all documents necessary to ensure each that each is recorded as an emergency contact person with any day care or preschool centre attended by Y and further to ensure Ms Grant is recorded as Y’s mother and so as to enable each to obtain directly from the day care centre or preschool all and any information they may request with respect to Y and any reports (whether oral or written) they may desire and so that each of those persons may attend at any event, function or activity at the school to which parents and carers are invited or encouraged to participate.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Pursuant to S.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Grant & Morson and Wood & Wood & Grant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 524 of 2014
| MS GRANT |
Applicant
And
| MS MORSON |
Respondent
PAC 2279 of 2009
| MR WOOD |
Applicant
And
| MS WOOD |
First Respondent
| MS GRANT |
Second Respondent
REASONS FOR JUDGMENT
These proceedings involve the consolidation of two separate files. Each of those files relates to care arrangements for a child.
Proceedings and parties
The first of the proceedings, the matter of Wood & Wood & Anor, relates to future care arrangements for a child, X born (omitted) 2009. She is accordingly five and a half years of age.
The second of the files, Grant & Morson, relates to future care arrangements for a child, Y born (omitted) 2011 and accordingly is, three and a half years of age.
The parties to each of the proceedings comprise:
a)In the case of the matter of Wood & Wood & Anor, the parties are X’s parents being her father Mr Wood, and her mother Ms Grant, the Second Respondent, together with a First Respondent being the paternal grandmother, Ms Wood.
b)In the matter of Grant & Morson, the parties comprise Ms Grant who is Y’s mother and Ms Morson who is Y’s maternal grandmother. For reasons that have previously been addressed in a prior Judgment of the Court, dealing with dispensation with service upon the putative biological father of the child Y, there is no further party. Those reasons need not be repeated.
The proceedings will today be consolidated as:
a)Ms Grant had sought in her Application filed in the matter of Grant & Morson, for such consolidation to occur. On the basis that there is a substantial common substratum of fact between the parties that is entirely appropriate; and
b)Clearly, it is the most appropriate and effective way for both matters to be addressed, there being such a substantial overlap of fact between the two matters and notwithstanding the absence of complete commonality of parties.
Ms Grant and Ms Morson’s relationship
The chronology of events between the parents and the various parties is far from complex.
Ms Grant in the early part of her childhood was the subject of substantial and significant disadvantage. That is not raised to embarrass her but it gives a context to these proceedings, particularly the portion of the proceedings that relate to Y (although as indicated there is substantial overlap in the factual circumstances between each).
What is clear from Ms Grant’s material is that she was at an early age removed from the care of her mother by the Department of Family and Community Services. She was removed with a number of her siblings, one having previously run away and having already come to the attention of the Department.
Ms Grant annexes to her material records that she has obtained through a request under the Health Records Information Privacy Act 2002 (NSW). Those records relate to the presentation of Ms Grant to the (omitted) Hospital when she was six years of age and specifically, on 24 February 1998. The records suggest that she was on that date, examined with respect to significant bruising and other injuries that she had experienced at the hands of her mother’s partner and whilst in the care of her mother and her partner.
Chillingly, annexed to the material and forming part of the records provided are a number of photographs of Ms Grant at that age of six, wearing a school uniform and exposed to the indignity of being asked to lift her clothing so that the bruising to her legs, arms, bottom, chest and face could be photographed.
In one of the photographs she peers towards the camera attempting to smile, no doubt trying to please those who were examining and assisting her. Her presentation recalls the photographs of the young (omitted), so often displayed in the media. She looks fundamentally sad even when smiling.
She is described in those presentation records as being “…a 6 year old girl with in an unkempt appearance”. Following physical examination it is revealed that she has extensive bruising to her thighs and legs generally and other parts of her body, including both of her arms. Those bruises are dark and are in the shape of hands and fingers.
She gives a record to the examiners consistent with her having been, as she describes it, “smacked” by a person then described as her step-father. She would not have been in a position at that age to appropriately describe her injuries as having been occasioned by vicious and unnecessary assaults, which clearly they were.
As a consequence of those assaults, Ms Grant’s childhood was significantly disrupted. She was placed into foster care and she moved about somewhat during her childhood and adolescence.
Ms Grant remained in foster care for four to five years. She was later placed with her maternal grandfather on the (omitted) but at the age of 11 returned to New South Wales and then lived with a great aunt, Ms H and stayed there until she was 14. Ms Grant had been moved from Queensland to New South Wales at the age of 11, as she had “gotten into some trouble shoplifting.”
Ms Grant deposes that her three sisters were also removed. Her older brother had previously run away and was already in foster care.
Ms Morson confirms a number of those allegations (as raised by Ms Grant and the Departmental records) although, suggesting that Ms Grant returned to her care approximately four or five years after removal and that Ms Grant then lived with her until her late adolescence or majority.
Ms Morson concedes in relation to Ms Grant’s childhood, that Ms Grant was exposed to disadvantage. Ms Morson confirms that the young Ms Grant was physically assaulted by Ms Morson’s then partner and concedes that at the time of the assault that both she and her partner were involved in significant use of drugs.
Ms Morson suggests (paragraph 10 and 11 of the first of her two Affidavits) that her partner responsible for the assaults on the young Ms Grant, is no longer her partner. Further, she deposes that in December 2009 she moved from her then accommodation at (omitted) to live at (omitted), where she continues to live and following that, managed to “kick off my substance abuse, put on some weight and now live a normal life”.
Drug use
The drug history of Ms Morson is alleged to extend to supply, not only possession and personal use. There is no evidence upon which a finding in that regard can be made.
The factual history as between Ms Grant and her mother is not otherwise of any great relevance or assistance other than to note that Ms Grant was not assisted significantly by her mother in her early childhood.
To the extent that there are significant issues in these proceedings as to the ability of the various adults to act protectively and ensure the protection of one or both of the children the subject of these proceedings, it is clear and one can readily find, as the learned Children’s Court Magistrate must have, that in Ms Grant’s early life she was not protected in any fashion. That is so, even if Ms Morson was not the perpetrator of the physical assaults upon Ms Grant and her siblings. She was most assuredly present and on her own evidence, drug affected.
The Child Dispute Conference Memorandum, undertaken between Ms Morson and Ms Grant in April 2014 returns to those themes. It is suggested therein that a number of significant difficulties have arisen in the relationship between Ms Grant and Ms Morson.
Notwithstanding the difficulties, which are clearly apparent and the disruption in care of Ms Grant at an early stage in her life, Ms Morson suggests that she and Ms Grant are “probably the closest mother and daughter you’ll ever meet”. There is some real concern as to whether that could possibly be so, in light of the litigation in which these parties are participating and the allegations they make each of the other.
Ms Grant indicates that she does not refer to her mother Ms Morson, as her mother but by her first name. She has been consistent in doing so throughout these proceedings.
Ms Grant has indicated directly to the Court, through her sworn evidence, through the Child Dispute Conference Memorandum and through a number of documents that are annexed to her material, that she continues to suffer and experience significant psychological and emotional difficulties as a consequence of her childhood experiences instigated by her mother, her mother’s drug use and/or her mother’s lack of protectiveness.
Ms Grant describes for instance, that she is revisited on a daily or near daily basis with the trauma that she experienced and it is the basis upon which she describes that she experiences significant anxiety at this time in her life.
Ms Grant asserts that as a consequence of both those childhood experiences (that cause her to be anxious) as well as nightmares and night terrors that wake her of an evening (and which in turn relate to those same childhood experiences), that she uses marijuana and has done so since the age of 13 or 14. Ms Grant deposes and reports to others (as noted in records annexed to her material) that this marijuana use is “self-medication”.
One can have some real sympathy for why that might be so in light of what Ms Grant has experienced. Ms Grant has not received the benefit of that to which she was entitled as a child living in a civilised first world nation. She was not kept safe. She was not well parented. She received the best she could through State welfare services, but that she was ever exposed to those services clearly has had a flow on effect in her life, not only regarding the self-medicating behaviours referred to, but also in all probability:
a)Her propensity, it would seem, to have engaged in relationships with partners who act violently towards her; and
b)The deficits that are alleged with respect to her parenting and her response psychically and emotionally to her two children. That is not to suggest that I necessarily accept the allegations or existence of those deficits. But even if there were truth to the allegations, one would not expect to find anything other, in light of the significant shortcomings and failings that have been circumjacent to Ms Grant’s youth.
Ms Grant reports that she was a ward of the State, in the old terminology, until she was 18 years of age. She concedes readily, both in her Affidavit material and she states to the Family Consultant conducting the Child Dispute Conferences in each of the two matters, that she has a longstanding issue with use of marijuana. Indeed, she frankly concedes to the Family Consultant at the first of two Child Dispute Conferences in February 2014 (the second occurring 30 April 2014) that if she were to undertake a drug test on the date of the Conference that she would fail. That is on the basis that she indicated on each of the occasions she attended upon a Family Consultant, that she used cannabis regularly, if not daily and that she had on several occasions – including approximately one month prior to the 30 April 2014 Conference – used ice and had used it “a couple of times in the past”.
Similar allegations regarding drug use are raised with respect to Mr Wood. I will turn to those shortly.
Ms Grant indicates that she is now prepared to do drug testing. Whilst an Order was made on the last occasion that the matter was before the Court, which required testing and commissioned drug testing reports, such tests have not occurred. Ms Grant indicates through her counsel that this is on the basis that she simply has not been able to arrange and/or afford that testing. There is likely some genuine basis to that. I note in any event, that the importance of that testing was made clear.
The Orders that were previously made by me made clear that X would spend time with her mother once Ms Grant had completed testing and subject to it being negative for any substance other than cannabis. Clearly, if she engaged in a longstanding use of cannabis it would be in her system for many months after ceasing use, if she had in fact ceased use. In any event, the use of cannabis, whilst not condoned, (its use being illegal and injurious to one’s health, physically and psychologically) is potentially one of the lesser issues in these proceedings.
As reported in the Child Dispute Conference, Ms Morson concedes that she has in the past used amphetamines and that she commenced doing so when she was in Year 7 or 8 (coincidentally, at about the same age Ms Grant concedes she commenced using marijuana). Ms Morson suggests that she ceased using amphetamines shortly after Y was born that being in 2011. That is somewhat inconsistent with her sworn evidence wherein she asserts that she ceased using any drugs after she left (omitted) in 2009, some two years earlier.
In any event, Ms Morson asserts that she has attended to provide three samples for urinalysis all of which have been tested. Each testing report suggests no reportable quantity of any drug. Those testing reports are not in evidence but neither party seeks to cavil with the accuracy of that assertion.
Ms Grant asserts that her mother Ms Morson, together with the person she describes as Ms Morson’s partner (a Mr F), together with Ms Grant’s brother Mr L (who lives with Ms Morson), all smoke cannabis and possibly use other drugs. Ms Morson denies that Mr F is presently her partner although he has been in the past. Ms Morson asserts that she and Mr F continue to maintain a friendship. That denial sits uncomfortably with that asserted in the balance of Ms Morson’s evidence.
Ms Grant raised a number of concerns with respect to Mr F. However, there is little, if any, evidence before the Court that could be relied upon regarding Mr F or which could be the basis of a finding. Ms Grant asserts that the connection between Ms Morson’s move from (omitted) to (omitted) is Mr F. Contemporaneous with the move it is alleged by Ms Grant that Mr F was stabbed. Ms Grant assumes this was in relation to drugs. Ms Morson and Mr F were certainly living together at the time of the move. Those events would appear to be one of the bases for her concerns that Mr F and Ms Morson use or continue to use cannabis and amphetamines.
I make clear at this point and as will be apparent from the balance of discussion of the evidence that the Court proceeds on the basis of admissible and probative evidence.
Division 12A of Part VII of the Family Law Act 1975 (Cth) does not provide a “free for all” to introduce gossip, rumour and innuendo. The Court cannot place any weight upon any material introduced by a party unless it has some support as to its probative value by reference to the rules of evidence. Indeed, section 135 of the Evidence Act 1995 (Cth) would exclude or section 136 would limit the use of that “evidence” in such circumstances where it cannot be tested, it is not reliable or is not first hand.
This is a Court. It proceeds on evidence. This is not a scene from Arthur Miller’s “The Crucible” where a party can allege “I saw her sign the devil’s book” and expect that to be treated seriously or as evidence.
In any event, they are the allegations with respect to each of Ms Grant and Ms Morson and save where concessions are made or corroboration is available, allegation is perhaps the highest at which it can be put.
Mental health
There are also concerns raised in the evidence, although they are raised as “concerns” rather than presented as evidence, that Ms Grant has some associated or separate “mental health issues”. Ms Grant concedes that she presented to (omitted) Hospital in or around August 2013, a date of some relevance in the matter, because she had experienced “a mental breakdown” and had threatened suicide. Ms Grant concedes that she had sent a number of text messages or emails to her mother, Ms Morson including pictures of nooses and the like, which pictures she had found on the internet and on the basis of seeking to cause some distress to her mother. It may have also been in reaction to circumstances at the time connected with the relationship between her and Mr Wood.
Ms Grant concedes that she has been diagnosed and treated in the past and at present with respect to depression and anxiety. It is difficult to comprehend how it would not be so in light of the traumatic experiences she suffered as a child whilst in the care of her mother. In any event, Ms Grant indicates that she has demonstrated some insight and engaged with some active address of those problems, having:
a)Attended appointments with Headspace;
b)Presented herself to (omitted) Hospital;
c)Engaged regularly with her general practitioner who has completed a mental health care plan (which is annexed to her material);
d)Been prescribed and regularly taken medication; and
e)Been engaged in counselling processes through Unifam (omitted), which she attends jointly with Mr Wood.
To the extent that evidence is led with respect to Ms Grant’s “mental health issues”, it is typified by the mere allegation being placed before the Court and an invitation then presented to react thereto as though the suggested diagnosis (professional or lay) has relevance by and of itself. What is absent is any evidence of:
a)Present (or recent) symptomology;
b)Any behaviour arising from or connected with any diagnosis to which the child or children have been exposed or which would impact upon them;
c)Lack of insight into her health or need for treatment;
d)Lack of compliance with any diagnosis or treatment suggested or recommended;
e)Any suggestion that Ms Grant has been less than frank and candid in addressing the issue in her evidence (indeed her evidence is abundant and is the only real evidence on the point); and
f)Any nexus between the suggested diagnosis of depression and her self-care or her capacity to care for and her actual care of either child.
The relationship between Ms Grant and Mr Wood
I turn then to Ms Grant’s relationship with Mr Wood and Mr Wood’s evidence and the issues and concerns suggested with respect to him.
These parties are both relatively young parents. I do not observe that for any purpose other than to chronologically identify them. Ms Grant will shortly turn 23 years of age. Mr Wood is 28 years of age. Based on their evidence, their relationship would appear to have commenced some time in or about 2006. They were not at that time living together. They ultimately commenced cohabitation in 2007.
The relationship has not been steady or stable. That is, again, not a criticism of either of them but simply a reflection of their evidence. They were certainly in a relationship together from May 2006 until May 2008. For a significant portion of that period they cohabited.
They resumed a relationship and cohabited initially part-time (or “on and off”), then full-time and from October/November 2012 until either May or July of 2013. Not a great deal turns upon which of those dates is the relevant termination.
What is important to note with respect to the resumption of cohabitation in 2012 is that the parties were, at that time, involved in proceedings before this Court which proceedings had been commenced by an Application filed by Mr Wood in May 2009. Those proceedings concluded with Orders made by the Court on 28 August 2012.
On that date Mr Wood and his mother, Ms Wood with whom Mr Wood was then living, attended Court. Ms Wood had been joined as a party to the proceedings shortly prior to the matter having been listed for hearing. Ms Grant did not attend the hearing. She was contacted by telephone and indicated her consent to certain Orders that were being sought.
As a consequence, Orders were made for X to live with her father subject to a number of terms and conditions. Those terms and conditions were principally that until X attained the age of six years, (which will happen shortly) that she was to live with her father at the home of his mother, Ms Wood or within close proximity thereto. There was also provision that Mr Wood was at all times whilst X was in his care to refrain from consuming illicit drugs. An Order was made for Mr Wood and his mother to have equal shared parental responsibility of X.
Orders were made for X to spend time with her mother at such times and upon such terms and conditions as were agreed between Ms Grant, Mr Wood and Ms Wood.
Difficulties commenced shortly after the making of those Orders. They are well documented in the evidence of the parties.
Within two months of the Orders being made, Mr Wood and Ms Grant reconciled their relationship. That is not to suggest for one moment that there was any motivation in doing so, save a desire by Mr Wood and Ms Grant and each of them to, as it were, “give it a go” and to seek to establish, maintain or re-establish a family unit which then comprised two parents and both of the children, Y having been born during the course of the past proceedings relating to X.
Mr Wood’s evidence is that at or around the time that the Orders were made, that he had begun to discuss with his mother his desire to move out of her home, as one might expect would be his desire at 26 years of age and to live independently with X and obtain employment. He suggests that once he raised the concept of resuming his relationship with Ms Grant, that the arguments and difficulties between he and his mother particularly relating to X’s care arrangements, intensified and increased to such an extent that upon his having moved out, the relationship between he and his mother deteriorated significantly. The relationship between Ms Wood and Ms Grant would not appear to have been particularly strong at any time.
By Christmas 2012 difficulties were becoming far more manifest. On that date, Ms Grant indicates that she had desired that she, Mr Wood and both children would spend the day together as a family for the first time. Irrespective of that desire, Mr Wood was of the view and appropriately so, that Ms Wood, X’s grandmother was of significance to her and that he and she should spend some time with his family on that day, participating in the household that X had lived in for a significant period of her life and since coming into Mr Wood’s care at a very early age. That did not go well, it would seem.
Mr Wood returned from his mother’s where it is suggested that he had been told by his mother that he had “spoilt Christmas”. There was then apparently some arrangement for Ms Wood, her husband and Mr Wood’s brother Mr N, to come to Ms Grant’s flat. Mr Wood and Ms Grant were living together there.
It would appear, by reference to Exhibit ICL1 and the COPS event recording that a car was to be exchanged. What is clear is that there was then some form of kafuffle or brouhaha between Mr Wood, his father and his brother Mr N, during which certainly a child (although the COPS event entry does not specify which child) was present as was the partner or girlfriend of Mr N.
The COPS event entry suggests that Mr Wood threw a number of punches, grabbed his brother in a headlock, pushed various people and made certain statements.
Mr Wood was arrested, bail refused overnight and not released until Boxing Day. It would seem that from that time, X was then in the care of Ms Wood.
Mr Wood has subsequently dealt with those matters by entering a plea of guilty and he has been dealt with under sections 9 and 10 of the Crimes (Sentencing Procedure) Act1999 (NSW). An Apprehended Domestic Violence Order was also put into force imposing prohibitions upon Mr Wood and providing protection for Ms Wood. The Domestic Violence Order that was ultimately made would appear to impose the statutory provisions as well as more extended Orders. There is no suggestion that the Order has been breached.
Following those events, further difficulties occurred in the relationship between Mr Wood and Ms Grant. They began to argue more frequently. Mr Wood’s anger and impulse control was suggested to have gotten worse and such that there was throwing of items and on one occasion, it is suggested that Y was thrown into her high chair by Mr Wood. Whether that is so or not cannot be determined at this point. What is clear is that as a consequence of those difficulties, Ms Grant contacted her mother who, after pausing to update her Facebook status with respect to the event, then travelled to (omitted). It would seem the Police were called.
The Police obtained, on behalf of Ms Grant, an Apprehended Domestic Violence Order imposing prohibitions upon Mr Wood. That Order being made on a final basis by the Local Court at Mount Druitt, 11 April 2014. An earlier Order had been in force and the Order now in force was made on a variation Application. It would seem Mr Wood was also charged on two occasions with a breach of the then Order in force and those matters have been finalised before the Local Court also.
At the time that these proceedings were commenced, Mr Wood and Ms Grant were separated. The first set of proceedings, those in the matter of Wood & Wood & Anor, was commenced by Mr Wood by an Application filed 8 November 2013.
The proceedings of Grant & Morson were commenced by Ms Grant by an Application filed 7 February 2014. The two have to a large extent, been dealt with on the same day and concurrently and will henceforth be consolidated and all issues dealt with together.
The care arrangements for Y are difficult to fully comprehend. What is clear is that at the time of her birth and as Ms Grant concedes, Y remained in hospital for a little time – a week or so – as she was born premature, underweight and with THC in her system as a consequence of the mother’s use of marijuana. The Department was made aware of those matters but did not intervene or take action at that time. They did however seek to engage with Ms Grant by requesting that she participate in the Brighter Futures program.
Ms Grant followed up the referral and it took some two years before she was able to fully engage with that service and through no fault of her own. During that period, Ms Grant suggests that she would from time to time call upon her mother Ms Morson, to provide her with some assistance and to have Y for a day or so at a time.
Ms Grant complains that eventually the time periods Y spent with Ms Morson grew longer and longer and that despite requests by her, Y would not be returned to her care when she was expected to be returned. That included to the extent whereby Ms Grant complains that she had made arrangements with assistance through the Department of Family and Community Services for Y to attend day care or pre-school and that she was not able to keep her place, because she was not returned when she was meant to be on such a frequent basis, that the place was lost.
Ms Morson suggests in her evidence that Ms Grant was experiencing difficulties in caring for Y and thus either at her request or upon the basis of her own concerns with respect to Ms Grant, including but not limited to the suggested concern with respect to marijuana use and violence in the relationship between she and Mr Wood, that the child was retained.
Ms Morson ultimately alleges, although there is no particularisation to the allegation, that Y’s care had, prior to coming into her fulltime care in mid-2013, been shared between Ms Grant and Ms Morson.
Ms Grant complains in her initial Affidavit filed at commencement of these proceedings that once Y went into the fulltime care of Ms Morson, that Y did not spend any significant time or have any real communication with her mother. Ms Morson suggests the mother was not diligent in pursuing that relationship. Ms Grant suggests that she was impeded by a number of circumstances including Ms Morson’s actions.
What appears clear from the material annexed to Ms Grant’s material and corroborating her evidence, is that at July 2013 Y was in her mother’s care. What one can make from that evidence is that Y has had an incredibly disrupted set of care arrangements. She has spent significant periods in Ms Grant’s care, significant periods out of Ms Grant’s care and when out of her care, Ms Grant has had for whatever reason, grave difficulty in maintaining any consistent pattern of time with her. Those difficulties are at least attributed to both Ms Grant and Ms Morson being dependent upon public transport and living over 2 hours apart.
X’s past care arrangements are more readily ascertained.
From very early in her life and until effectively the present, X has lived substantially at the home of Ms Wood. That description is used to avoid the delineation of who attended to her care whilst both Ms Wood and Mr Wood were both living in the same home. It is to be noted that the final parenting Orders made with Ms Wood’s consent, provide that X will live with Mr Wood. That Order may be subject to terms and conditions but it is an Order in his favour and it is an Order which remains in force.
At the time the final Order was made and noting that there were at that time concerns with respect to Mr Wood’s anger and impulse control as well as drug use, they were matters which were well known to all parties and for that matter, to the Court. They were also matters, it would seem, that were well known to the Department of Family and Community Services at least through the Brighter Futures Program.
The significant concern with respect to both children, but particularly X is that she has clearly been exposed to significant family violence. It is suggested in the evidence of Ms Wood that this exposure to family violence has been such that she expresses opposition to returning to “the unit”, being Ms Grant’s home and now also that of Mr Wood.
It is also to be noted that the relationship between Mr Wood and Ms Grant has been, as Ms Grant and Mr Wood both describe it in their Affidavit material, “on and off”. At present, it would seem it is “on”.
This is not a criticism of Mr Wood and Ms Grant. They have not had particularly stable parenting arrangements modelled for them in their childhood, particularly in the case of Ms Grant. One would hope that they are able to make a fist of their relationship and with the assistance of the counselling programs they are participating in, explore to the full potential of their relationship and to a logical conclusion. Mr Wood indicates that he has engaged with a number of services. Indeed, one of those is the Department of Probation and Parole who provide regular supervision and monitoring including of his participation in courses and programs.
Mr Wood sets out in his Affidavit material that he has participated in a Domestic Abuse Program which involved 20 sessions between February to April 2014. That program was provided, arranged and monitored by Probation and Parole. He has also completed earlier courses through Relationships Australia including a Parenting after Separation course, a STEP 1-2-3 Magic course, and an Ups and Downs of Parenting Program. Both he and Ms Grant as indicated are attending counselling together at present.
The future care arrangements for these two children will need determination as soon as practicable and appropriate. The changing landscape of arrangements is such that it may mean that some delay is desirable. However, that will be assessed on the next occasion the matter is before the Court in about eight to nine weeks and one is hopeful with the benefit of a report completed by an external expert. That is not to suggest that the report will determine any issue in the proceedings but it may provide some clarity and certainty for these parties in understanding what issues they need to litigate, what matters need not be addressed by the Court and how matters might best be resolved for the future.
Parties proposals
Ms Grant proposes that Y would, on both a final and interim basis, live with her and would spend time with her mother as arranged and agreed between the two. Ms Grant speaks in her Affidavit material to a desirability of there being regular, at least fortnight time so that Y can maintain that relationship.
Ms Morson, for her part, proposes that the child would live both finally and on an interim basis, with her and would spend time with the mother such as the Court Orders. That has been spoken to and submissions made today to suggest that the time should be for limited day periods on a weekly basis.
When the matter was last before the Court, Orders were made after some significant consideration of logistics. Those considerations rather than matters specifically relating to the utility of overnight or non-overnight time, informed the Orders made.
Five of the six or four of the five occasions, which are to have occurred between those Orders and now have in fact occurred. That in itself is remarkable. Ms Grant is entirely dependent upon public transport as is Ms Morson. Ms Morson lives in (omitted), Ms Grant near (omitted). They are accordingly, about two and a half hours apart from each other by public transport and as was determined on the last occasion by reference to train timetables, there is a small window of 10 to 15 minutes when a train from each arrives at (omitted) and thus a changeover can be affected.
The Orders that were made on the last occasion involved significant travel by each parent and importantly, Y. But for the fact that X has not spent time with her mother during the adjourned period, the interim arrangements would have also involved substantial travel for X.
The period of time that Y was to spend with her mother was expressed as “from 10:20am approximately until 4:15pm approximately”, or six hours. Ms Grant proposes and seeks today to move upon her Application that would see Y move to her fulltime care forthwith. That is steadfastly opposed by Ms Morson who seeks a continuation of the interim Order made on the last occasion.
As regards X’s arrangements, the proposals of the parties are somewhat more difficult to ascertain and for a variety of reasons including, the recent change in circumstances with Mr Wood and Ms Grant resuming their relationship, one would hope successfully.
By his Amended Application, Mr Wood seeks that X would live with his mother and spend time with him on a regular basis. It is made abundantly clear, both through the Child Dispute Conference Memorandum to which I have already referred and submissions on Mr Wood’s behalf today, that he seeks an Order that X live with him and at this point, with him and Ms Grant jointly.
Ms Grant for her part in relation to X proposes by her Response filed 11 April 2014, that X live with her paternal grandmother and spend time with her for a period of a few hours at a time each alternate weekend. What is abundantly clear is that this is not in any way reflective of what Ms Grant actually seeks for X. She seeks that X live with her and preferably, as is presently the case, with she and with Mr Wood jointly.
Ms Wood, by her Response filed 31 January 2014, proposes that X live with her and that both the mother and father spend time with X “as agreed between the parties”. In submissions, Ms Wood has indicated today, she appearing in person, that she would not oppose time occurring on a more abundant and unsupervised basis once each of the parents has demonstrated that they are drug free, able to remain drug free and able to ensure that X is not exposed to family violence and possibly over the passage of time, if those matters can be sustained, X passing to live with her father or her father and Ms Grant jointly if they are still together (as one gathers they hope they will be and as one would hope that they will in fact be).
Thus the dispute is broad.
Terms of Settlement have been tendered marked Exhibit A and signed certainly by the father and which propose a number of minor changes to interim Orders that are presently in force with respect to X.
The Orders which presently operate with respect to X are Orders that were made on 30 April 2014. They provide that X would spend time with her father for a period from the conclusion of school until 6:00pm each week i.e. a period of three hours and by telephone each evening that she is not or has not been in her father’s care.
It is proposed by this document Exhibit A, that the mother’s time would remain as ordered on the last occasion, being from 9:15am until 5:45pm each Saturday, together with communication by telephone. Face to face time is expressed as being subject to and conditional upon the mother completing a urinalysis testing report which is clear of any substance, save marijuana. Clearly, on Ms Grant’s evidence, marijuana would be detected if testing were undertaken now. Through the assistance of the Independent Children’s Lawyer, the difficulties which Ms Grant has faced would now appear to be overcome and an appointment has been made for a sample to be provided by Ms Grant, Monday next 23 June 2014.
I have declined to make Orders in accordance with Exhibit A.
Material considered
I have read each of the documents that have been filed by the parties. That comprises in addition to the Exhibits already identified – being the two Child Dispute Conference Memorandum’s, proposed Terms of Settlement and a COPS event entry in relation to events on Christmas Day 2012, the following documents:
a)I have read an Affidavit by Ms Grant filed 11 April 2014;
b)I have read two Affidavits by Ms Morson, filed 21 March and 29 April 2014 respectively;
c)I have read an Affidavit by Mr Wood filed 30 April 2014;
d)I have read two Affidavits by Ms Wood filed 31 January and 17 June 2014 respectively;
e)In addition, I have read each of the Applications and Responses.
Legislative pathway
In dealing with the proceedings, I am obliged to follow the legislative pathway as set out in Part VII of the legislation.
I must commence with the objects and principles set out in section 60B of the Family Law Act. The objects and principles do not form part of the substantive law but guide the interpretation and application of the relevant provisions and set a framework within which decision making should occur. Subsection (1) sets out the objects and mandates that the Court do all within its power to:
…ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest’s of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must also ensure that children receive adequate and proper parenting which clearly could not occur if they were exposed to abuse, neglect or family violence, and that parents fulfil their duties.
There is some commonality between the objects and the primary considerations in section 60CC(2) of the Act. They are almost identical. Thus, I will deal with those aspects shortly.
There is also a significant tension in the application and interpretation of the legislative provisions, the objects referring primarily to “parents”. The Full Court has been clear in decisions such as Aldridge & Keaton (2009) FLC 93-421 that one can and should apply the objects and other provisions of the legislation to all parties to proceedings whether they fall within what would be considered as the definition of a “parent” or not. That decision is potentially at odds with the Full Court’s subsequent decision in Burton & Churchin and Anor [2013] FamCAFC 180 which confines the application of section 60CC(2)(a), the primary consideration of the benefit of the child having a meaningful relationship with both parents, solely to “parents” and no one else.
The Full Court has also observed in Burton & Churchin [2013] that “parent” is clearly intended by Parliament to include only biological and adoptive parents. Clearly, section 60H also expands the persons who would be considered as a “parent” beyond biological or adoptive parents. However, I am bound by the Full Court’s decision in Burton & Churchin [2013] and thus the primary consideration in section 60CC(2)(a) shall apply only as regards Mr Wood and Ms Grant. That would in all probability also extend to the first of the objects above but nothing turns upon that.
That does not mean that other relationships are not important. They can and will be dealt with additionally.
Section 60B(2) creates a number of rights for these children, X and Y. Those rights are all subject to the caveat that they apply only when they are not contrary to the child’s best interests but otherwise provide that children have a right to know and be cared for by both of their parents and a right to spend time and communicate on a regular basis with both of their parents.
Rights of culture are also created but no party in these proceedings and thus neither child, are identified as Aboriginal or Torres Strait Islander.
I must then turn to section 60CA of the Act, which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and if it does apply, determine whether it is rebutted or in interim proceedings such as these, determine whether it might not be applied on the basis that it is inappropriate.
The presumption of equal shared parental responsibility, again consistent with Burton & Churchin [2013], applies only between parents. Thus, the presumption applies as between Mr Wood and Ms Grant in relation to X. Ms Grant is the only person who can be identified as receiving the benefit of the presumption as regards Y, Y’s father being not known. The presumption does not apply to a more expanded class of persons (although the Court clearly has the power to make an Order in favour of a non-parent, however that may be defined, by reference to section 65C).
I have no issue, nor is any taken by any party, that all of the adults engaged in the proceedings have standing to bring and prosecute an Application.
The presumption cannot apply as between Mr Wood and Ms Grant in relation to X as there is a concession of family violence. However, the application or non-application of the presumption does not determine the Order that is to be made with respect to parental responsibility.
The same circumstance arises with respect to Y, as Ms Grant is the only parent as such.
As the presumption does not apply I am not obliged to consider equal or substantial and significant time before considering any other time arrangement. In any event, I propose to consider all time arrangements at large and by reference to section 60CC of the Act to which I now turn.
In dealing with the primary considerations and as observed, I must commence with the benefit to the child or children of having a meaningful relationship with both parents, confined, in the case of X, to the benefit of a relationship with each of Mr Wood and Ms Grant and as regards Y, Ms Grant alone.
I must also have regard to the need to protect each of the children from physical or psychological harm through exposure to abuse, neglect or family violence. Section 60CC(2A) prioritises the latter over the former.
I am left with the conundrum that the primary consideration as regards meaningful relationships, particularly in relation to Y, suggests that I must, absent of finding of unacceptable risk, prioritise Y’s meaningful relationship with her mother above other considerations or at least potentially so.
That is in the context of significant suggested harm to Y. It is not suggested that Y would be subjected to physical or psychological harm through exposure to abuse, neglect or family violence in seeing or spending time with her mother for a period of six hours per day on a weekend. The issue really is whether overnight time can occur safely.
As regards the unacceptable risk test, as discussed in Johnson & Page [2007] FamCA 1235 and a number of other authorities and extrajudicial writings, I incorporate the relevant portions of my prior decision in Deacon & Castle [2013] FCCA 691 to ensure both consistency of discussion with respect to those matters and to avoid repetition, namely:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In Summury, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his Summury of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the Summury”
By reference to that test and the evidence available, I am not satisfied that there is an unacceptable risk to Y of spending unsupervised or overnight time with her mother Ms Grant.
Certainly, there are allegations that Ms Grant uses illicit drugs principally marijuana but not solely confined thereto. Certainly, there is an allegation that Y and for that matter, X have been exposed to family violence as a consequence of disputes between Ms Grant and Mr Wood. However, Ms Grant has not been the perpetrator of family violence at any time nor is it suggested that she has been.
I am conscious, in the language of the child welfare jurisdiction, that a parent permitting a child’s exposure to family violence is “unprotective”. To that end, what is abundantly clear is Ms Grant has been the victim of significant family violence directed at her, towards her, perpetrated upon her, and to which she has been exposed in her childhood and whilst in the care of her own mother Ms Morson, the very person who opposes Ms Grant, her daughter, having overnight time with her own daughter, Y. There is some irony in that proposition.
However, they are different children and they are different circumstances.
“Abuse” is defined in section 4 of the Act and I incorporate that definition herein:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
“Family violence” is defined in section 4AB of the Act and I incorporate that definition herein:
Definition of family violence
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The two overlap in that abuse is made out if a child is exposed to family violence and including exposure to family violence is in a broad sense not purely through direct perpetration of physical violence upon them or in their immediate sight or hearing.
I am satisfied certainly that Y has been exposed to family violence whilst in her mother’s care. There is a suggestion on Ms Grant’s evidence that Y may have been exposed to family violence whilst in Ms Morson’s care. However, there is no evidence upon which a finding could be made. Clearly, there is evidence upon which a finding of exposure to family violence can be made in Ms Grant’s care as a consequence of the offences for which Mr Wood has been charged and the Domestic Violence Order that has been put into place.
It is also to be noted that a Family Violence Order has been obtained by Ms Morson against Ms Grant. That Order names both Ms Morson and Y as a protected person. The Orders obtained in that regard are annexed to Ms Morson’s material. The complaint or provisional Order setting out the circumstances in which the Order is sought is attached to Ms Grant’s material.
What is clear from the facts relied upon in seeking that Order is that there was no suggestion that Y was directly exposed to any family violence or threat by Ms Grant. Indeed, what is alleged is that Ms Grant had made a number of threats of a broad and general nature, including to harm herself, and that these threats were communicated to Ms Morson. There is nothing to suggest anything beyond that.
What is also clearly related to the domestic violence complaint are the care arrangements for Y, principally issues relating to the apportionment of family tax benefit between Ms Grant and Ms Morson. As a consequence of certain actions with respect to family tax benefit, it is then suggested in broad and general terms that Ms Grant had made:
…constant threats to the victim, stating that she is coming to deal with her as she is sending other people down to take care of her.
On that basis, I am not satisfied that those behaviours would substantiate an allegation that Y has been exposed to family violence by Ms Grant herself. Y has, by concession, been present when incidents have occurred between Ms Grant and Mr Wood and they are of themselves concerning. However, I am not satisfied that they would represent, at this time or into the immediate future, the eight to nine week adjournment of the matter, and some short period thereafter if the matter is then ready to be listed for hearing, an unacceptable risk to Y.
Accordingly, and to the extent that section 60CC(2A) of the Act requires that I prioritise the need to protect a child from physical or psychological harm over and beyond the child’s right to a meaningful relationship with both parents, in this case parent singular, I am left with some difficulty.
The meaningful relationship can be continued and in circumstances whereby I am not satisfied that there is a risk or at least a risk that is unacceptable.
What is clear from the evidence, however, even Ms Grant’s, is that Y has had a very fractured and disrupted arrangement. Accordingly, I am satisfied, as I will make clear shortly if I have not already, that there is a real benefit to Y in now having a stable, regular, settled arrangement that allows her to develop, continue and maintain a meaningful relationship with her mother and with her sister.
If Ms Grant and Mr Wood are to remain a family unit, there would also be benefit in that relationship being extended and continued, Y having no other person to look to as a parent figure, at least not paternal.
In relation to X and the primary considerations, the issues are similar. The benefit to the child having a meaningful relationship with both parents must be set against the need to protect her from physical or psychological harm.
As regards Ms Grant, the risks are alleged to be the same. I am not satisfied for the same reasons as above, that it is an unacceptable risk that would warrant supervision, delay or significant limitation of that time, including such as would obviate against overnight time.
The purpose and intention of time being spent by a child with a parent is to enable that parent and child to develop a meaningful relationship with each other. To develop a meaningful relationship the parent must be able to “parent” the child. It is impossible for Ms Grant or Mr Wood to “parent” X without their having the ability to participate in the very types of time and care of the child that section 65DAA, defining “substantial and significant time” envisages i.e. sharing in different types of time, sharing in the child’s daily routine, events and occasions of significance to the child and allowing the child to be involved in occasions of significance to the parent and to be part of the household.
I am conscious that it is suggested by Ms Wood that X is oppositional to returning to Ms Grant’s unit or spending overnight time. However, whilst that evidence is before the Court, it is untested and cannot be challenged by Mr Wood or Ms Grant. It is set against the reality that Ms Grant is presently living with Mr Wood. That has strengths and weaknesses. The real strength is that Mr Wood did, until fairly recently in X’s life, have her fulltime care. He may well have been present in Ms Wood’s household and other adults were also present who may have provided assistance, but Mr Wood cared for and parented X and has an Order to that effect in his favour.
Ms Grant has had a far more disrupted relationship with X and for a variety of reasons, some of which are well beyond her control. However, there is clearly a relationship established.
What is proposed is that she would spend the best part of a full day each week with her mother. I am not satisfied that this is the best arrangement that can occur. I am satisfied there could be greater benefit to X, particularly the benefit of X then having the opportunity to have, develop, express and practise, a meaningful relationship with her mother and her father by spending overnight periods of time with them.
In turning to the additional considerations.
Views
There is no evidence as to any view expressed by Y.
To the extent that there is evidence of views expressed by X, it is suggested that she is oppositional to spending overnight time with or returning to Ms Grant’s flat. I have addressed that above.
Whilst children should, as the International Convention on the Rights of the Child and section 60B require, have a voice in proceedings they do not have a choice. It is not a matter of tailoring Orders to that which children at the age of six or thereabouts dictates to the Court what should occur.
In this case, by reference to Re R Children’s Wishes [2000] FamCA 43, H & W (1995) FLC 92-598 and the line of authorities arising therefore, there would be some real reason to place some weight upon X’s views. She has been exposed in Ms Grant and Mr Wood’s present home to family violence. However, whether it has caused her trauma to the extent that is suggested – and it is only suggested rather than the subject of probative evidence – cannot be determined. Accordingly, I am satisfied that there is such vigilance occurring at this point in time through both sets of grandparents that any issue that arose would very quickly be responded to by them (and on past experience in the case of Ms Morson posted to her Facebook page).
That is not to suggest an experiment with respect to X’s relationships or safety.
X has a clear and well settled relationship with her father. She has lived with him for most of her life, whether he has lived with others or not. He has been the person invested with an Order made by this Court by consent of all presently relevant parties to have her care.
I am not satisfied that X’s views are oppositional to an extension of time beyond that which is proposed in Exhibit A and so as to effectively link together the periods of time that each of these parents would have enjoyed jointly or individually under the present and augmented Orders.
If I were to make Orders in accordance with Exhibit A, it would have the consequence of ignoring the reality that Mr Wood and Ms Grant, as the parents of X, are presently living together. It would ignore the reality that Mr Wood would have a period of time each Sunday and each Wednesday and Ms Grant a period of time each Saturday.
The present interim Order provides that during his time Mr Wood is not to bring X into the presence of Ms Grant. Why that Order should continue is simply not supported on the evidence. Ms Grant does not represent some necessary and unacceptable risk to either child and there is no basis to thus interfere in the relationship between Mr Wood and Ms Grant, the parents of X, to spend time together with X when she is with either of them.
Accordingly, if the Orders are fused together, there is no basis upon which X could not spend time from Saturday through to Sunday. I am satisfied she would benefit from that and benefit more from that than the arrangement proposed in the alternative.
The nature of the relationship of the child and each parent and other persons
Clearly, both X and Y have had the active involvement of their grandparents in their care and upbringing perhaps more so in the case of Y. They are both people of real significance to this little girl. However, by reference to the legislation that which Parliament has enacted as the law of this Commonwealth, I am obliged to consider the benefit to both children of a meaningful relationship with each parent and to prioritise that beyond other relationships.
Lest I am wrong in that regard, I am satisfied in any event that there is a real benefit to each of these children of having a far more abundant relationship with each of their parents than they are presently permitted to have or as is proposed by each set of grandparents.
I am satisfied that X enjoys an excellent relationship with her father.
I am satisfied X enjoys an excellent relationship with Ms Wood.
I am satisfied that X’s relationship with Ms Grant is not as strong but it is an important relationship and a relationship with meaning.
I am satisfied that the children, notwithstanding the disruptions in their time together, enjoy a good relationship with each other.
I am satisfied that Y enjoys a good relationship with each of Ms Morson and Ms Grant.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time with or communicate with the child
It is suggested by Ms Morson that Ms Grant has been less than diligent in pursuing a relationship with Y whilst Y has been in Ms Morson’s care. However, that ignores a number of essential realities. It ignores the very real practical and logistical difficulties of Ms Grant travelling two and a half hours to (omitted) by train and the same back to be able to spend time.
It ignores the suggestion of Ms Grant that Ms Morson has withheld the child from her at different times and when fully aware of the difficulties in cost and travel. Indeed, Ms Morson suggests that she has experienced similar difficulties at different times and that there have been times when she has not been able to bring the child to Ms Grant because she could not afford it. It also ignores the reality of the dynamic between Ms Morson and her daughter Ms Grant and the real concerns that arise in relation to Ms Grant’s childhood traumas.
I cannot accept on its face and certainly Ms Grant denies that it is so that there is “probably the closest mother and daughter you’ll ever meet”. The relationship is troubled at best and whilst there is certainly love and affection as one might expect between a child and a parent even when there has been trauma, to suggest that it is close and as close as any relationship could be between a mother and a daughter is bordering upon the fantastic. That is especially so when they sit on each end of the bar table with their respective lawyers.
I am not satisfied that I could find that either parent, Ms Grant or Mr Wood has failed to participate in spending time or communicating with either child or in decision-making relating to them.
Prior to the 2012 amendments, subsection (c) had been contained within subsection (4) of section 60CC which also included the countervailing proposition of the extent to which the other parent or person had interfered in the other parent or person’s ability to spend time or communicate. That is a criticism I am far more ready to accept.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
In relation to Y, the issue regarding apportionment of family tax benefit and the impact that has had upon each parent is raised by Ms Morson as corroborative of her level of involvement and care for Y. It is raised by Ms Grant as a motivation for Ms Morson’s suggested desire to keep or retain the child and an ignorance of the impact it has upon Ms Grant’s day to day functioning and ability to support herself and the child. In any event, nothing of great substance could turn on it at an interim level.
Likely effect of change including separation from either parent or other persons
Clearly, Y has a strong relationship with her grandmother and mother. However, as the Full Court makes clear in Burton & Churchin and Anor [2013], the primary consideration that I must focus upon is the benefit of the child of a meaningful relationship with a “parent”.
The relationship that would occur on the basis of a continuation of the interim Orders made as a stopgap measure on 30 April 2014 will not be meaningful. It will involve as much if not more travel to facilitate the time that the child would actually spend with her mother. It will not allow Ms Grant to be involved in “parenting” her daughter. It will allow her to spend some few hours as a “plaything” with her daughter rather than to be a parent and develop a relationship. I am satisfied that far more abundant periods of time are necessary.
I am conscious that Ms Grant moves upon her Application for Y to live in her fulltime care forthwith. I am not prepared to accede to that Application at this point, noting that there is some real agreement as to the significant periods that she has spent out of her mother’s care and there is a great deal more to be done to forensically explore and examine each party’s evidence. However, I have no concern that Y would not benefit from spending abundant overnight weekly time with her mother and with her sibling and that this would be achieved by time being spent each and every weekend overnight from Friday to Sunday.
The time arrangements are not in response to the logistical difficulties but they will assist in ameliorating them. It will allow X and Y to spend a portion of each and every weekend together in a fashion that they have never been able to do in their lives to date and in a fashion which the Act requires that they be given the opportunity to do and should have been given the opportunity to do.
Sibling relationships are fundamentally important. Indeed, one has clear concrete demonstration of their importance from Ms Grant’s own childhood and her removal and separation from her siblings and the impact that has had upon her. One would not wish that upon either of these two children.
I make clear that I do not make any decision with respect to these children today in sympathy to Ms Grant’s most unfortunate childhood. It was not her fault that things played out as they did. She was the victim of abuse. Abuse which her mother was aware of, tolerated and permitted. That is somewhat historical but its effects continue to today. Those effects are not something which Ms Grant has shaken off. They are things that revisit her every day and one can understand how they might in light of the graphic demonstration of the trauma she was put through as shown in the records she has annexed.
In those circumstances, I make clear that whilst the decision is not made by reference to sympathy for Ms Grant she most assuredly has this Court’s sympathy for the experiences she has had to endure and should not have. That evidence reflects the strengths which Ms Grant has developed and shown her “resilience”, in still being with us after those traumas. It is a strength that she can potentially bring to bear upon her daughter’s upbringing and protecting her from those behaviours herself.
There is nothing to suggest that to the extent that either child has been present during the conflicts, however they may have played out between Ms Grant and Ms Wood or others that Ms Grant has ever acted other than protectively. I am impressed with her ability to do so.
The concerns with respect to Ms Grant’s drug use are real. However, the candour with which she addresses those matters, not just to the Court through her Affidavits, but in dealing with Brighter Futures, her general practitioner and upon presentation to hospitals, gives me some satisfaction that she has real insight into those things. It may be beyond the norm for Ms Grant and for that matter, Mr Wood to refer to smoking marijuana as “just like having a cigarette”. However, it is the lives they have led and the lives that have come into being as a response to and consequence of their childhood experiences.
There is nothing to suggest that their parenting is adversely affected by those behaviours simply that they are engaged in them.
It is a very different kettle of fish when it comes to the allegations of more serious drug use such as “ice” or in the case of Ms Morson, “gas”. In any event, they are matters that can and should be in the past and the testing in which Ms Grant will now participate in and that Mr Wood may well participate in, should he choose to do so with a desire to disprove the allegations against him, give me some confidence that I can proceed as I propose.
I am satisfied there would be a detrimental effect upon both children of ongoing and enduring separation from either of their parents, Mr Wood and Ms Grant in the case of X, or Ms Grant in the case of Y, or from a further unnecessary limitation or imposition of terms and conditions upon their time with these children. I am satisfied absent unacceptable risk, that there is a real benefit to these children of spending more fulsome time although, no doubt less than either of these parents would seek at this time.
Practical difficulty and expense
I incorporate herein section 65DAA(5) of the Act:
Reasonable practicality
(5) In determining for the purposes of subsection (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
And subsection 6(b):
(b) the order provides (or is to provide) that a childs’ parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
Ms Morson and Ms Grant live a significant distance apart, hampered by their relatively parlous financial circumstances and their dependence each upon public transport which is less than regular and frequent on weekends. On that basis, I propose to make Orders that will provide for a changeover on a Friday when travel by public transport between (omitted) and (omitted) will be far easier and on Sunday within a time range that will permit the parties to hopefully meet at a midway point and exchange this child.
The parties, in relation to X, do not live any significant distance apart. Indeed they live very close together.
Current and future capacity to implement a time arrangement is again particularly problematic for Y. The amount of effort that was devoted to calculating the logistics of a changeover by public transport on a Sunday at (omitted) Railway Station occupied more time than a consideration of the child’s needs and interests.
In relation to X there is far less difficulty.
Communication is problematic although not completely broken down.
The impact of the arrangement upon each of the children, I am satisfied is positive if their time with their respective parents is increased.
Capacity
There are issues with respect to the capacity of all adults involved in these proceedings. The least criticisms are raised with respect to Ms Wood. However, I am satisfied that the Orders I propose to make will be reflective of the capacity that all adults have to meet the children’s needs physically, emotionally, and intellectually.
Maturity, sex, lifestyle and background of the children and the parents
Both children are very young and require protection from conflict and family violence. They require sober and committed parenting. They have not always had those things provided for them and for a variety of reasons.
In relation to Y, her arrangements have been anything but settled since shortly after her birth. For whatever reason that has come to be. I need not be particularly concerned as to cause but rather consequence.
I do propose to provide a stable, regular arrangement to try and avoid the disadvantage that will follow to her if it is not addressed.
In relation to X, it is suggested that she is already beginning to act out and respond to the family violence to which she has been exposed. The extent of family violence is unclear. It is suggested to be significant.
In the case of Ms Wood, the objective material before the Court would suggest that whilst it has certainly been unpleasant and should not have occurred and should not occur in the future, that it has perhaps not been as highly problematic as suggested.
There is some real benefit in considering what is actually alleged to have occurred as opposed to the bold allegation.
As regards the background of the parents, I have already dwelled upon that. In this case, as in many before this Court, Ms Grant and Mr Wood as young parents are criticised by their own parents for their perceived shortcomings as parents. If Mr Wood and Ms Grant are the products of their childhood then there is some culpability attributable to their parents for any deficiencies.
I do not wish to be particularly critical or pejorative of either grandparent but they need to reflect upon their behaviours towards their children and that which they have permitted to occur and the impact that this has now had upon their children in turn.
For Ms Morson to pontificate on the shortcomings of Ms Grant when the biggest criticism raised with respect to Ms Grant is her use of marijuana, (as she suggests to address her sleep, relaxation and anxiety in light of her past experiences) when Ms Morson has been the conduit instrument for that damage caused to her own daughter by her then partner and whilst she was drug effected, is simply repugnant.
Similarly, Mr Wood suggests that he has had a less than complete assistance in being a person who can in his adult life manage his anger and behaviour. The extent to which it is a problem is unclear. It clearly has been a problem at some level.
The childhood experiences of each of these young parents would appear to be impacting upon their functioning as members of civil society and upon the parenting of their children. The aetiology of those difficulties might be traced in a critical fashion rather than each grandparent simply pointing a finger of blame.
It often happens in the care and protection jurisdiction that a young parent in a similar position to Ms Grant, has deficiencies as a parent. They arise perhaps because she experienced deficiencies in her parenting as a child and did not have a role model to teach her how to parent well. In Ms Grant’s case she was not parented well by Ms Morson. She was removed and placed in a series of foster homes which provided less than ideal care.
In the above circumstances, Ms Grant is then the subject of criticism as a parent. These proceedings, whilst not commenced by the Secretary of the Department of Family and Community Services are in effect proceedings for removal of the child. In care and protection proceedings that might ironically see the child placed in the care of the very grandparent who inflicted the damage and contributed to the deficiencies. I do not propose to follow that ludicrous path.
Aboriginality
No party and thus, the children, identify as Aboriginal or Torres Strait Islanders.
The attitude to the child and responsibilities of parenthood
There are criticisms with respect to all of the adults. I need not try and determine them at this time nor could I, based on the evidence.
Family violence
It would seem that there is a risk in any household. Though not unacceptable on the basis of the presently available and acceptable evidence there are risks nonetheless, of exposure to family violence in each household.
Family violence orders
Ms Grant has a Family Violence Order against Mr Wood.
Ms Wood has a Family Violence Order against Mr Wood.
Ms Morson has a Family Violence Order against Ms Grant.
I am satisfied that none of those Orders, to the extent that the facts and circumstances relied upon in seeking them are before the Court, are such as would obviate against the Orders I propose to make nor suggest or create an unacceptable risk.
The facts and circumstances by and large have been addressed by Local Courts through the actions they have taken and appropriately so. I am not satisfied, by reference to section 69ZX(3) that I can draw any inference whatsoever from the existence of those Orders or even the address of criminal proceedings in relation to Mr Wood.
I must also have regard to the nature of the Order, the circumstances in which it was made, the evidence admitted, findings made by the Court, and other relevant matters. There is no evidence before the Court as to findings made and as indicated, section 69ZX(3) does not permit me to rely upon those findings even if they have been made.
The evidence, to the extent that it is before me, does not suggest an unacceptable risk.
I am satisfied that the various Family Violence Orders presently in force are not inconsistent with any Order I propose to make.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I must make Orders if at all possible that will function and function appropriately, for the child’s best interests, and without the generation of future conflict, dispute, or uncertainty. To that end, I am satisfied that the imposition of terms and conditions that allow or at least infer that a party might interfere with, whether time occurs or does not occur, would be both mischievous and inappropriate, and potentially maximise the prospect of future proceedings.
I propose to make Orders that will accept and acknowledge the agreed evidence. That includes the fact that Ms Grant uses marijuana. Again, I acknowledge that marijuana use is a criminal offence in New South Wales. I acknowledge that there is an adequate body of research that suggests that it is potentially injurious to Ms Grant’s emotional and psychological health if not her physiological health. However, whether Ms Grant smokes marijuana or not is not the biggest or most significant issue in these proceedings.
Ms Grant describes that she is self-medicating with marijuana to address her anxiety. She makes that frank concession. She would be better served to engage in an appropriate rehabilitation service. She is fortunate to live in the (omitted) region, where there is an excellent drug and alcohol clinic available through the (omitted) Hospital. It can provide her with that assistance and I propose to make an Order that she seek a referral from her general practitioner to that or a similar service so that she can receive some assistance. It need not be a residential program, but some other strategy to address it, as part of the mental health plan she has already discussed with her general practitioner. That is the preferable course rather than making her time with the children, or either of them, conditional upon her taking certain actions including urinalysis, although an Order will continue requiring that she do so.
For all of those reasons, I am satisfied that the children’s time with their parents can and should occur on an overnight basis and for both children.
I need to make a number of procedural Orders to guide the conduct of the proceedings. I am invited to make an Order for the Department of Family and Community Services to intervene. That will regrettably require that I provide them with a copy of these reasons so that they can assess whether that is an appropriate course or not. However, if that is the burden required, so it will be.
Whether the Department intervenes or not is perhaps not fundamental to the continuation or conclusion of the proceedings. However, in light of the matters relating to Y and the parties involved in these proceedings in particular, the request is entirely appropriate.
If the request for intervention is refused, I will not be surprised nor will I be particularly concerned as the parties can continue their litigation between themselves. Each is in a position to obtain appropriate evidence.
The same Independent Children’s Lawyer now represents the interests of both children (regrettably the Legal Aid Commission had previously appointed separate lawyers even though the two matters have always been heard together and will now be consolidated).
The Independent Children’s Lawyer will ensure that all relevant evidence is not only before the Court, but tested. The Independent Children’s Lawyer will ensure that the matter is appropriately case managed and that appropriate sources of assistance for the parties, both Family Counselling and Family Dispute Resolution are accessed. The Independent Children’s Lawyer will also ensure that the matter is viewed through an appropriately objective lens or prism rather than seeking to apply some Anglo-Normative middle class standard to the parenting provided by each of these persons.
In all of those circumstances, I must make Orders as follows.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 19. August 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
4
6