Grills & Mildon
[2022] FedCFamC1F 9
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Grills & Mildon [2022] FedCFamC1F 9
File number(s): NCC 1740 of 2020 Judgment of: CLEARY J Date of judgment: 19 January 2022 Catchwords: FAMILY LAW – CHILDREN – Where there are competing applications for parenting orders for one child aged 3 years – Where both parents have limits to their parenting capacity – Where the distance between the parties is approximately 350 kms – Where the child has lived with the mother and 2 of his half-siblings all his life – Where the child lost contact with the father following separation until orders were made by consent for the father to have supervised time with the child – Where allegations were raised by the mother of misconduct by the father with 2 of her older children who were members of the household and of sexual assault of the mother by the father – Where the evidence does not support such findings – Where there will be a benefit to the child of maintaining a meaningful relationship with both parents – Where a change of residence for the child would require a big adjustment – Where such a change could only be justified if there was an unacceptable risk of harm in the mother’s household which required abrupt removal – Where the risk of harm to the child in the mother’s household does not outweigh the emotional harm resulting from the removal from her care into a household in which all but the father are strangers to the child – Where the parents’ relationship has improved – Ordered that the child remain living with the mother and spend regular time with the father and for equal shared parental responsibility. Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 110 Date of hearing: 10-13 October 2021 Place: Newcastle Counsel for the Applicant: Mr Mooney Solicitor for the Applicant: Stacks Law Firm Counsel for the Respondent: Mr Mueller Solicitor for the Respondent: A W Simpson & Co Counsel for the Independent Children’s Lawyer: Ms Carty Solicitor for the Independent Children’s Lawyer: Legal Aid ORDERS
NCC 1740 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1
BETWEEN: MS GRILLS
ApplicantAND: MR MILDON
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
19 JANUARY 2022
THE COURT ORDERS THAT:
All previous parenting orders for the child X born in 2018 (“the child”) are discharged.
Parental responsibility
That the parents shall have equal shared parental responsibility for the child.
Both parents shall keep the other informed of any major medical or educational issues which affect the child.
Each parent or their nominee shall contact the other parent as soon as practicable upon the happening of any of the following:
4.1The child becoming seriously ill;
4.2The child becoming hospitalised;
4.3The child being involved in an accident;
4.4The child becoming involved in any event to which police or any other emergency services are called.
Both parents are authorised (and a copy of these orders shall be sufficient authority):
5.1To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the child may attend from time to time;
5.2To attend all functions to which parents are normally invited by any school which the child may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent/teacher evenings;
5.3To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the child may attend from time to time.
The parents, or either of them, may provide a copy of these orders to the director of the pre-school, and in due course to the principal of the school, which the child attends.
Residence
The child shall live with the mother.
The mother shall maintain a residence for the child in the Suburb C/D City area unless the father consents in writing to a change of residence.
Time and Communication
IN THE EVENT THAT the father lives further than 200 km away from the child’s home, the child will spend time with the father as agreed, but failing agreement not less than:
9.1From the date of these orders for a period of 6 weeks, on two consecutive days each fortnight for not less than 6 hours on each consecutive day. Such time is to occur in the D City area and failing agreement will occur from 11.00 am until 5.00 pm on Saturday and Sunday;
9.2Thereafter for a period of 6 weeks, on two consecutive days and including one overnight each fortnight. Such time is to occur in the D City area and failing agreement will occur from 11.00 am Saturday until 5.00 pm Sunday;
9.3Thereafter and until the child turns 4 years of age, on three consecutive days and including two overnights each fortnight. Such time is to occur in the D City area and failing agreement will occur from 11.00 am Friday until 5.00 pm on the following Sunday;
9.4Thereafter and until the child commences school, on one occasion each month for a period of four consecutive days and including three overnights. Failing agreement such time will commence on the first Friday of each month at 11.00 am and conclude at 5.00 pm on the following Monday;
9.5In addition to the time in 9.4 hereto, on one further occasion in each two month period and provided that such time is to occur in D City, for a period of four consecutive days and including 3 overnights. Such additional time shall not be consecutive with time in 9.4 hereto and there shall be a period of not less than 5 days between the period of additional time and the time provided for in 9.4 hereto. The father shall provide the mother with not less than 10 days notice of his intention to spend the additional time with the child;
9.6Upon the child commencing school and thereafter:
9.6.1On one occasion each month from 5.00 pm on Friday until 5.00 pm on the following Sunday, and failing agreement to commence on the first Friday of the month;
9.6.2In addition to the time in 9.6.1 hereto, on one further occasion in each two month period and provided that such time is to occur in D City, from after school or 5.00 pm on Friday until 5.00 pm on Sunday, or in the event that the father is able to remain in the D City area and deliver the child to school, until school time the following Monday. The father shall provide the mother with not less than 10 days notice of his intention to spend the additional time with the child;
9.6.3For one half each NSW school holiday period, such half to be agreed between the parties and in the absence of agreement for the first half in even numbered years and the second half in odd numbered years.
Changeover
9.7 When the father is spending time with the child in D City changeover shall occur at the mother’s home, and for all other purposes shall occur by the parents (or their nominee who is known to the child), meeting at N Town NSW, or such other place as agreed to in writing (including text or other communication in writing) between the parents.
IN THE EVENT THAT the father lives within 200 km of the child’s home, the child will spend time with the father as agreed, but failing agreement not less than:
10.1From the date of these orders for a period of 6 weeks, on two consecutive days each fortnight for not less than 6 hours on each consecutive day. Such time is to occur in the D City area and failing agreement will occur from 11.00 am until 5.00 pm on Saturday and Sunday;
10.2Thereafter for a period of 6 weeks, on two consecutive days and including one overnight each fortnight. Such time is to occur in the D City area and failing agreement will occur from 11.00 am Saturday until 5.00 pm Sunday;
10.3Thereafter and until the child turns 4 years of age, on three consecutive days and including two overnights each fortnight. Such time is to occur in the D City area and failing agreement will occur from 11.00 am Friday until 5.00 pm on the following Sunday;
10.4Thereafter and until the child commences school, on one occasion each fortnight for a period of four consecutive days and including three overnights. Failing agreement otherwise such time shall commence on the first Friday of each month at 11.00 am and conclude at 5.00 pm on the following Monday;
10.5Thereafter once the child commences school:
10.5.1Each fortnight from after school or 5.00 pm on Friday until 5.00 pm on the Sunday; unless the father is living within 100 km of D City and is able to deliver the child to school, then the time is extended until commencement of school or 9.00 am Monday;
10.5.2For one half of the NSW school holiday periods, such half to be agreed between the parties and in the absence of agreement for the first half in even numbered years and the second half in odd numbered years;
10.5.3All other times as may be agreed between the parents.
10.6Any changeover not occurring at the child’s school shall occur by the parents or their nominees meeting at a location that is halfway between each of their respective residences.
The parents will communicate with the child by FaceTime (or similar video conference software) as agreed between the parties but if not agreed then at a time between 5.30 pm - 6.30 pm on Monday and Wednesday.
Should Father's Day fall on a weekend when the child is in the mother's care then the mother’s time is suspended, and the child shall spend that weekend with the father.
Should Mother's Day fall on a day when the child is in the father's care then the father’s time is suspended, and the child shall spend that weekend with the mother.
Restraints
Each party is restrained from:
14.1Denigrating the other parent or any member of their family in front of or in the presence of the child, or permitting any other person to do so;
14.2From permitting the child to remain in the presence of any other person who is intoxicated from consuming alcohol and/or any illicit substance.
Specific Issue
The mother shall, within 28 days of the date of these orders, attend with the child on a general practitioner to arrange for a referral from the general practitioner to a paediatrician for assessment of the child and shall:
(i)Advise the father of the date of the referral and the name of the paediatrician;
(ii)Attend with the child on the first available appointment date which the paediatrician can offer;
(iii)Advise the father of the date of the appointment as soon as a date has been confirmed to enable the father to also attend if he so wishes;
NOTING that in the event that the mother does not advise the father in accordance with sub-paragraph (i):
(iv)The father may obtain a referral for the child and advise the mother of the date of appointment in the same terms and the mother shall attend with the child on the relevant date.
The parties or either of them may provide a copy of these orders and reasons to the paediatrician who assesses the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grills & Mildon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
INTRODUCTION
These are competing applications for parenting orders concerning one child, X, a boy aged three years at date of trial.
The parties met in B Town in the M Region of NSW in August 2017. At the time of meeting, the Respondent father was just turning 17 years of age and was effectively homeless.
Soon after, the father moved to live in the home of the mother as a boarder and to help her with the care of the children. The mother was aged 31 years. She had three children from two prior relationships.
Very soon after the father moved into the mother’s home an intimate relationship began between them and just as quickly the mother became pregnant with the subject child.
In February 2020 the mother was offered a bigger house in D City and the parties and children moved to live there.
The relationship ended in March 2020 when the father moved out of the home. The child was by then almost two years. The father was nineteen.
The mental health of the mother sharply declined after separation which put the safety of the subject child and his siblings at risk. Allegations of misconduct by the father with her older children were raised by the mother, and investigated by authorities. The children were cared for by the paternal aunt for three weeks.
In May 2020 the mother commenced these proceedings and which were allocated to the Magellan protocol.
The parties were fearful and hostile towards each other. The life of the subject child was adversely affected. He lost contact with his father. His mother had unstable mental health and was relying randomly on the assistance of people who were strangers to the child.
Towards the end of 2020 the life of each of the parents had begun to stabilise. The father had moved from the M Region to the P Area and had met his current partner. The mother had established a connection with D City Family Support Services and had been greatly assisted by the case worker who gave evidence in these proceedings. The mother had also found a new boarder to help her in the house.
In December 2020 orders were made by consent for the father to have supervised time with the child. That time took place and enabled the child to reconnect with the father in a safe setting.
By mid-2021 the relationship between the parties had improved to the extent that a family event for the child’s birthday and overnight time in the home of the paternal aunt was agreed on and well managed by both parents.
To some extent the parties had moved beyond what was reflected in their Court documents to the benefit of the child.
THE PARTIES
The distance between the households of the parties is approximately 300 kilometres; a four hour journey by car.
The Applicant Mother
The mother is aged 35 years. She lives in Suburb C with the subject child and two children, aged 13 and nine years, from a prior relationship. Her eldest son aged 15 years had left home and been boarding in B Town for about seven months by date of trial.
The mother is not in paid employment. She is engaged in the care of her children. She is supported by Commonwealth benefits.
The mother has been diagnosed with anxiety, severe depression and a personality disorder. She presently consults a psychologist and takes medication which she finds helpful. The mother has a history of alcohol dependence.
The mother has been in the habit of having a boarder who helps her with the children and domestic work. The most recent person in that role, Ms F a young woman aged 22 years, had moved out of the home a few weeks before trial. The father had initially joined the household in that role.
The Respondent Father
The father is aged 21 years. He now lives in G City in the P Area of New South Wales.
The father lives with his new partner Ms H aged 26 years. They have a child together Y aged six months and his partner has a child, Z, aged four years, from a prior relationship.
The father completed Year 11 at high school but when the subject child was born the father left school, so did not finish Year 12.
The father was diagnosed in childhood with conduct disorders. He described taking prescription Ritalin from age eight years. He acknowledged having been addicted to cannabis in his early teens and going through a rehabilitation program. There are incidents of impulsive, defiant and anti-social behaviour in his criminal record.
The father has had some paid work and is hoping to start his own business.
THE TRIAL
The trial had been allocated for three days commencing 4 August 2021. On the first day of trial the matter was adjourned by consent to the following morning. This was to enable the mother, who had arrived at Court unwell, to undertake Covid-19 testing.
The trial was adjourned, relisted for the three days commencing 10 October 2021 and concluded within the allocated time.
The parties were all legally represented and had instructed counsel.
THE APPLICATIONS
The Applicant Mother
By her Amended Application filed 1 April 2021 the mother proposed:
Sole parental responsibility for herself and that the child continue to reside with her;
An order restraining the father from removing the child from the mother’s care;
If the Court found that the father was not a risk to the child, then supervised contact leading to unsupervised time; and
FaceTime contact every day.
On the first day of trial the mother tendered into evidence a Minute of Order[1] proposing a defined method for parental communication about long term issues plus expansive orders for time and communication by the father with the child in the event that the Court “does not find that the child is at an unacceptable risk of harm in the care of the father”.
[1] Exhibit 4.
The Respondent Father
By his Response filed 17 August 2020 the father proposed:
Sole parental responsibility for himself and that the child move to live with the father;
Time for the mother with the child on one weekend per calendar month, changeover at the home of the father;
Certain specific orders.
The Independent Children’s Lawyer
At commencement of trial the Independent Children’s Lawyer (“ICL”) was not committed to a final position, noting the polarized positions of the parties and various risks of harm identified in the Family Report.
At the conclusion of the evidence and prior to submissions, the ICL tendered a Minute of Order[2] reflecting a clear view as follows:
[2] Exhibit 17.
Equal shared parental responsibility between the parents;
That the child live with the mother;
A dual proposal depending on how far apart the parties were (the father possibly moving closer) of expending time for the father with the child including holidays and communication.
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Grills
(a)Amended Initiating Application filed 1/04/2021; superseded by a Minute of Order[3];
[3] Exhibit 4.
(b)Affidavit of the mother filed 23/07/2021;
(c)Affidavit of Ms K, case worker, filed 28/06/2021;
The Respondent Father – Mr Mildon
(d)Response to Initiating Applicant filed 17/08/2020;
(e)Affidavit of the father filed 20/07/2021;
(f)Affidavit of Ms H, the father’s partner, filed 20/04/2021;
(g)Affidavit of Ms E Mildon, the paternal grandmother, filed 20/07/2021;
(h)Affidavit of Ms J, the paternal aunt, filed 2/11/2020;
Reports
(i)Magellan Report dated 21/09/2020;
(j)Family Report by Dr L dated 28/01/2021.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act.
Allocation of parental responsibility
When making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in:
(a)Abuse of the child or another child who at the time was a member of the parent’s family; or
(b)Family violence.
Allegations were raised by the mother that the father had abused two of her three older children who were members of the household.
The mother alleged sexual abuse of her older children by the father, that he rubbed his genitals on their faces and squeezed their genitals.
The allegation of the mother is based on statements she says were made by her two elder children to her. Reports were made to the Department of Communities and Justice soon after the father left the home. The mother also posted information on Facebook about the father having sexually assaulted the two older boys.
The evidence does not support such a finding. The father conceded that on occasion he physically restrained the oldest boy W when he was violent towards the father; “laid him down, put him on his back, arms on each side.”
The father also readily conceded that his actions were confronting for the boy who resented the father’s presence in the house and by implication his intimacy with the mother.
The father’s opinion was that W tried to make trouble for him and would have said and done anything to get rid of him. It is credible in the circumstances where the eldest boy, only six years younger than the father, was bullied and teased at school about his “stepfather”.
The father conceded friendly sparring with all three boys when they were all getting on.
The two older boys were interviewed by the Child Abuse Unit in March 2020. There was no substantiation of abuse or further action taken.
The mother referred to “things unravelling for me when Mr Mildon [the father] finally left”. There is evidence of a suicide attempt by the mother soon after.
The evidence does not support a finding of abusive conduct by the father towards the elder children of the mother.
Did the father repeatedly sexually assault the mother including while she was sleeping?[4]
[4] Affidavit of the mother filed 23/07/2021, paras 36-38.
The mother raised the allegations and the father denied them. With complete candour he said: “I’d ask her, if no, I’d duck off to the bathroom/bedroom”.
The evidence of the mother was “as we continued to sleep in the same bed this continued up until we separated”. The period referred to was two years. The mother did not raise any contemporaneous complaint with the father, police or any other third party. When the mother did ultimately tell the father to leave her home, the father did so readily without incident. On balance it seems more likely that the mother was contented for the relationship to continue, but in retrospect, regarded the relationship as harmful to her.
The evidence does not support a finding by this Court of sexual assault of the mother by the father.
The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
The evidence supports a finding that both parents have limits to their parenting capacity.
The mother has been dependent on alcohol, the father on cannabis. Both have experienced financial constraints.
The Child Court Expert (previously known as a Family Consultant) (“CCE”) was clear to say that she had concerns about the quality of attachment of the subject child to the mother, possibly due to the mother depending on other adults to provide care for him and the other children.
The father was a teenager when he became a father and struggled in roles which he was not old enough or mature enough to take on, namely as partner to the mother and “father” to the older children.
Fortunately for the child there is evidence that the two parents have recently begun to communicate and cooperate in a way which promotes his interests.
The child will benefit by the decision making and discussion between his two parents. The combined wish of the parents to do so should be supported by an order in circumstances where neither can be solely responsible.
The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The child will benefit from continuing to restore what had been a close and affectionate relationship with his father during the parties’ relationship.
The child does have a loving bond with the mother with some uncertainty about the quality of his attachment to her.
There will be a benefit to the child of maintaining a meaningful relationship with both parents. The continuity of connection and certainty around his identity is important for this child whose siblings do not have the same father as he does.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The mother did not allege any sexual misconduct by the father towards the subject child.
There have been a number of adults in the household of the mother who have had a relationship with the child for short periods which ended abruptly.
In order to meet her own vengeful needs at the time the mother taught the child to say abusive words such as “crack whore” on the telephone to the father’s partner and to make pig noises. It is probable that the child heard the mother referring to that young woman’s four year old daughter as a “retard”.
This was abusive conduct by the mother towards the child as well as the father’s partner for which she has since apologised.
Additional Considerations
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child has a close dependent relationship with his mother. For the first two years of his life the child lived in a household with both his parents. The father willingly provided day to day care for the child until he was about two years. The child would have felt the loss of his relationship with the father after he left the home. This loss was aggravated by the decline in the mental health of the mother which led to periods of separation from her.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
This is a significant factor. The child has lived with his mother and two of his older brothers, R aged 13 and Q aged nine years all his life.
The Court accepts the evidence of the CCE that a change of residence for the child would require a big adjustment. He would lose daily contact with his mother and brothers. Although he has met the father’s partner, her five year old daughter Z and his infant half-sister Y, he has not yet established relationships with them.
Such a change would mean an emotional setback for the child which could only be justified if there was an unacceptable risk of harm to him in the mother’s household which required abrupt removal.
I accept the opinion of the CCE that the mother’s behaviour arising from her personality disorder does represent a risk of harm to the child. I further accept that the risk does not outweigh the emotional harm resulting from a removal from her care into a household in which all but the father are strangers to him.
The practical difficulty and expense of a child spending time with and communicating with a parent
Travel is a difficult issue in this matter. Presently the mother lives in D City and the father 350 km away in G City. The trip one way would take up to four hours by car, without breaks.
Both parties drive and have a vehicle.
The mother would probably need to travel with her two younger children. She does not have any connection with her family of origin and her two older children do not spend time with their own father.
The father has a learner’s permit only, not a full driver’s licence. His partner has a green provisional licence so is unable to supervise the father’s driving. She would have to be the driver, which would necessitate always travelling with the two other children in the father’s family.
Both parties rely on Centrelink benefits. The cost of travel in terms of accommodation and petrol would be burdensome.
The paternal aunt presently lives in the M Region and would likely agree to the father and his family staying with her to spend time with the child.
The child will be able to travel longer distances when he is older, but in the foreseeable future the obligation to travel will fall more on the father.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother had her first child when she was 18 years. Her adult life to date has been taken up with bearing and raising children.
There are limits on the capacity of the mother to meet the needs of the child. She has been diagnosed with Borderline Personality Disorder (“BPD”). She has a tendency to overreact to events, make hyperbolic statements, to act vengefully and manipulatively at times and to become dependent on others during intense but short lived relationships/friendships.
The mother was untruthful about her relapse into alcohol abuse in early 2021.
The judgment of the mother is impaired. She introduced the father, a young person less than six years older than her eldest child, into the household, and expected her three children to relate to him as a stepfather. She had not anticipated that her children, especially the eldest boy, would feel embarrassed, would be teased at school, and would be angrily competitive with the father.
The father appears to have matured rapidly, especially after he became a father himself.
His conduct as a teenager was uncontained. He smoked cannabis at a high level of use. He experienced suicidal thoughts and rages. His language was threatening and provocative. His mother was unable to manage him. His father was not always available to him. He was mostly a risk to himself although his language and threats affected others.
The father presented in these proceedings as thoughtful and restrained. He would likely benefit from some information about child development in order to develop his parenting skills further.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The subject child is a three year old boy. The child was observed by the CCE to be passive and compliant. His language was mostly one word utterances. He did not easily make eye contact. He willingly allowed himself to be hugged by the father and smiled at the father’s activities. He was able to be distracted by the mother from crying, after the mother’s friends left the room.
Both his parents and many members of both sides of his extended family, have been diagnosed with mental illness and/or disorders.
The Court accepts the evidence of the CCE that the subject child is a vulnerable child on that account and should be assessed by a paediatrician and monitored. This is especially urgent in circumstances where the CCE was concerned about, although not in a position to diagnose, the possibility of the child being on the autism spectrum.
The mother has not followed up the recommendation about a paediatrician. When taken to the views and observations of the CCE, the mother became defensive of the child. She interpreted the recommendation for paediatric assessment of the child[5] as criticism of the child himself. It was not. The Court concludes that the CCE considered that the physical health of the child, including his hearing, should be fully explored before consideration of other explanations for his speech, unusual failure to respond to his name, and general quiet reserve.
[5] Family Report dated 28/01/2021, page 58, recommendation no. 4.
In the observation sessions of the child with both parents, the CCE noted the following about the child then aged two years seven months:[6]
194.… [X] was noted to have limited eye contact with people around him and was primarily silent with little speech. When he spoke, the majority of his speech was unintelligible. This appears consistent with day-care notes which state; ‘[X] is a quiet child who has only just started to use single words as a form of communication’...
195.When the Family Consultant called [X’s] name, he did not respond, nor turn his head to the Family Consultant. His name was repeated on two further occasions, with again, no response by [X]. This response appeared unusual for a young child, who are usually hyperaware of strangers and may present as anxious or fearful around strangers.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
[6] Family Report dated 28/01/2021, paras 194-195.
There is no reason to doubt that the both parents love the child. The child undoubtedly loves both parents.
One of the responsibilities of parenthood is to support the relationship of the child with the other parent. When parents separate this responsibility can become onerous. A parent may have lost affection and respect for the other parent but a child has an independent relationship with both for which the child needs parental help to maintain.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
When the parties met, the mother was aged 30 and the father 16 years. This age gap between the parties, and the fact that the father was homeless had in practice meant that the mother had considerable control over him, both emotionally and financially. He had to comply with what the mother wanted him to do day to day to maintain a place in the household.
The CCE considered that the subject child and the other children in the household had undoubtedly been exposed to family violence during the relationship between the parents causing them psychological harm.[7] The evidence suggests that there was conflict between the parties; loud arguments about money, threats and shouting.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
[7] Family Report dated 28/01/2021, para 351.
During the course of this trial the Court heard evidence from the mother and her case worker of positive steps being taken by the mother to address her mental and physical functioning.
The mother agreed that she has been diagnosed with BPD and that she suffers from anxiety and depression. Her evidence was that she now takes medication for anxiety which makes her life more tolerable.
Reduction in anxiety has the potential to reduce the tendency of the mother to exaggerate the significance of normal events. She could instead use her own judgment about the likelihood of an event having happened rather than simply accepting what third parties say. For instance in the “near drowning” incident for X the mother stepped back from the child emotionally, by letting someone else take him to hospital, accepted all she was told, and repeated the story as if she personally could say it was true.
The mother has also begun to address her dependence on alcohol at least in part because in 2017 she developed related medical issues.
What the mother has not done is take up the recommendation for Dialectical Behaviour Therapy (“DBT”). Through her counsel the mother indicated that she would submit to an order of the Court to do so.
The Court has the power to order a party to attend on a psychiatrist and undergo treatment, as a condition of contact or residence that would benefit the child. The Court does not consider that such an order should be made in this matter despite the likely benefits such therapy could deliver.
The evidence is that the therapy could assist the mother to address the historical matters which contributed to the disorder, and could ultimately make her life easier and more enjoyable. It would be a big commitment by the mother but with a potentially life changing outcome.
Nevertheless unless the mother herself chooses to undertake that therapy there is no basis for the Court to be certain that the mother would engage with the therapist, stay the course which may take up to two years, nor that she would benefit from it.
In the event that the mother does nothing to improve her level of functioning and/or these orders are not fully complied with, then it is likely that the matter would come back at the instigation of the father. If the mother has chosen not to undertake the therapy that will be a factor for the Court to take into account in considering change to parenting arrangements. If by then the father has continued to stabilise his life and overcome his dependence on cannabis, residence for the child with him could be reconsidered.
The father was much more open to the child maintaining a relationship with the mother and the maternal family than the mother was to the child further developing his relationship with the father. Had the child been older the risk of a change of residence would have been less.
CONCLUSION
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent, as well as any other specific issues.
I have considered the mandatory factors and concluded that the parents should share parental responsibility and that the child should remain living with his mother.
I have accepted the evidence of the CCE that a change of residence would be too big a change for the child. He would be confronted by new relationships with the father’s partner, her daughter and the new baby born to the father’s current relationship.
No matter how welcoming and affectionate his reception might be in the home of the father it would be a shock for the child. He would be separated from his mother and brothers. It would be very difficult for him to understand.
By these orders the child will remain living with the mother and spend regular time with the father.
The orders for time are in the alternative to accommodate the expressed intention of the father to move closer to the area where the mother lives, if and when he can afford to do so.
Orders are made accordingly.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 19 January 2022
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