H and S

[2005] FCWA 127

JURISDICTION: FAMILY COURT OF WESTERN AUSTRALIA

ACT; FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: H and S [2005] FCWA 127

CORAM: PENNY J

HEARD: 22 SEPTEMBER 2005

DELIVERED: 14 DECEMBER 2005

FILE NO/S: PT 895 of 2000

BETWEEN: H

Applic ant/Father

AND LS

First Respondent/Mother

AND CS

Second Respondent /Grandmother

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Catchwords:

Children's issues - residence - contact - maternal grandmother party to proceedings - father and mother both had history of drug abuse - child to reside with maternal grandmother

Legislation:

Family Court Act 1997 - s 66, s 90, s 166(2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant First Respondent: Self Represented Litigant Second Respondent: Self Represented Litigant Child Representative Mr J Pacy

Solicitors:

Applicant: Self Represented Litigant First Respondent: Self Represented Litigant Second Respondent: Self Represented Litigant Child Representative Pacy Solicitors

Case(s) referred to in judgment(s):

Nil

1[JH], now aged almost 7 years, is the child of the applicant father and first respondent mother. Unfortunately, because of their drug dependent lifestyles, they have been unable to care for him on

occasions since his birth, either because of their drug use or because they were in prison.

2The second respondent is the maternal grandmother and has been responsible for [JH]'s care for lengthy periods when his parents have been unavailable. All three have sought orders that [JH] reside primarily with them.

3The father commenced the proceedings in June 2004, shortly after the mother had been arrested on a charge of aiding an escaped prisoner, and held in Bandyup Women's Prison. She was subsequently released on bail. The father refused to return [JH] from a contact period and he remained residing mainly with him up until trial. Prior to that time, [JH] had been residing with the maternal grandmother.

4In February 2005, Dr Phil Watts produced a report for the Court setting out his observations of the parties, the content of his interview with [JH], and his opinion as to where [JH] should reside. In his view, the appropriate carer was the maternal grandmother. He was not satisfied that either the father or mother were drug free and able to take on the responsibility of caring for [JH]. It was his opinion that final orders should not be made for at least 12 months given the extensive history of drug taking of the father and mother.

5The mother has recently given birth to another child, [JOS], born 11 March 2005. [JOS]'s father, [JS], is in gaol, having been sentenced earlier this year to a period of 10 years imprisonment with parole. [JOS] resides with the mother and her parents in their home, and is cared by the mother.

6The father failed to file an affidavit for trial and did not attend the pre-trial conference on 25 August 2005. The matter was subsequently listed for trial. The father did not file any trial documents, but arrived at the hearing expecting to take part. Because of his noncompliance with orders to file affidavits and his non-attendance at the pre-hearing conference without an explanation, I refused the father permission to take part in the proceedings, although he sat in the back of the Court.

7It was the maternal grandmother's case that she should be responsible for the child and that the mother and [JOS] continue to reside with her and [JH]. The mother sought orders that the child reside with her and that she have responsibility for his day-to-day care, welfare and development. It was her proposal that she continue to reside with the maternal grandmother. It is the position

of the child representative that the child should reside with the maternal grandmother and that she should have responsibility for him. The mother will continue to reside with her, as will [JOS].

Brief background and history of the parties and the relationship

8The mother and father are both 27 years of age and commenced their relationship in 1997. At the time they commenced living together both the mother and father were using heroin. The mother commenced a naltrexone tablet treatment programme in April 1998. She became pregnant in May of that year and the parties, having separated previously, moved into a house in [the suburbs] where they resided for approximately one year. [JH] was born in January 1999. In mid -1999 the parties moved to live with the mother's parents. At that time the father was charged with an armed robbery offence. Thereafter the father moved to live with his mother, and the mother continued to reside with her parents with [JH]. In January 2000 the father took possession of [JH] and would not return him. A week later the wife went to the paternal grandmother's home and took [JH].

9 The father was imprisoned for armed robbery in March 2000.

Within a few months of his imprisonment the mother and father's relationship broke down. While the father was in prison, his mother took [JH] to visit him regularly. The father was released from prison on parole in October 2003.

10 In around May 2000 the mother commenced her heroin use again for approximately 12 months. She stopped using heroin in April 2001 when she was fitted with an naltrexone implant. For about six months she did not use any drugs; however, after that time she commenced to use amphetamines. Her drug use continued over the next few years and she engaged in criminal activity during this time. During this period, [JH] was cared for by the maternal grandmother.

11 In early 2003 the mother met [JS], who was imprisoned some time after they met. In June 2004 he escaped from custody. The mother picked him up and was taking him to meet his brother when she was arrested while driving him and was charged with aiding an escaped prisoner. She pleaded guilty and was given a two year suspended sentence with a two year intensive supervision order, which is due to be completed in October 2006. As a condition of that supervision order, she reports to the Department of Justice every month and undergoes drug testing on a regular basis. She is

required to attend at counselling and does so at Esther Elizabeth

House two days a week.

12 In July 2004 the mother voluntarily admitted herself to a drug rehabilitation programme with Esther Elizabeth House, a live-in rehab ilitation centre in South Perth. Not long after her implant was fitted she discovered she was pregnant with [JS]'s child. On 11

March 2005 [JOS] was born. She was a resident at Esther Elizabeth House from July 2004 to February 2005. Since leaving Esther Elizabeth House she has been residing with her parents. She states she has now been drug free for 12 months and has had numerous random tests for drugs while residing at Esther Elizabeth House and while residing with her parents. All drug tests have been negative.

The law

13 When determining an application relating to parenting or contact issues, I must take into account Part 5 of the Family Court Act 1997, which deals with children. S 66 sets out the objects and principles which I need to take into account when determining any matter pursuant to Part 5 of the Act. The objects state that parents should share duties and responsibilities in relation to the care, welfare and development of their children. One of the principles underlying the objects of the Act are that children have a right to know and be cared for by both their parents, and a right of contact on a regular basis with both parents, provided it is not contrary to the children's best interests.

14 S 90 of the Family Court Act 1997 states that in deciding whether to make a particular parenting order in relation to a child, in this case residence or contact, a court must regard the best interests of the children as the paramount consideration. S 166(2) of the Act sets out a number of factors which must be taken into account when determining what is in the children's best interests.

15 I shall consider the issues raised by each of the parties in the context of these factors.

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

16 [JH] is only 6 years of age and was described by Dr Phil Watts, forensic psychologist and single expert, as "a little young". When interviewed by Dr Watts, [JH] spoke favourably of his

father, mother, [CS] (the maternal grandmother) and paternal grandmother. He was said to be ambivalent towards his mother. In discussion, [JH] stated that the father said bad things about his mother and [CS]. He was upset about his father's attitude to his [CS].

17 Dr Watts administered the family relations test. [CS] received

13 responses, 12 positive and one negative. The mother received 4 responses, all positive. The father receiv ed 10 responses, all negative. [JH] was asked with whom he would like to live. His first choice was the maternal grandmother, the next choice was his mother, his paternal grandma and, finally, his father.

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

18 As a result of the family relations test, Dr Watts determined that [JH] showed a strong positive attachment to the maternal grandmother, a weak positive relationship with the mother and a psychologically negative relationship with the father.

19 His observations on the home visit showed that in the company of his mother and maternal grandmother, [JH] was happy, relaxed, energetic to the point of being hyperactive, but generally secure. His general impression of [JH] on the home visit to the father was that he was generally safe, kept clean and neat and that there were physical activities between he and his father.

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person, with whom he or she has been living;

20 Since August 2004 [JH] has resided from Sunday evening to after school on Friday of each week with the father, and each weekend with the mother and maternal grandmother. The parties have shared the care of [JH] over school holidays. The mother's proposal is that [JH] reside with her during the week and have contact with his father for the first two weekends of each three week period, and periods of contact up to three days during school holidays.

21 The maternal grandmother seeks the same orders, except that

[JH] reside with her and have contact with the father on the same

terms. On either the mother or the maternal grandmother's proposal, [JH] will return to live in the home where he has lived most of his life, in the company of his grandmother and be re- enrolled in the [local] Primary School, which he previously attended. He knows many of the children at that school and it is not anticipated he will have any difficulty in settling into that environment.

22 [JH] has been under-achieving at school and was receiving tutoring at the maternal grandparents' residence on weekends. In my view, there is likely to be more emphasis on his education in the mother/maternal grandmother's household than the father's household. Dr Watts described [JH] as being under-stimulated in the father's household.

23 If [JH] resides with the mother or maternal grandmother he will spend a lot of time with his half-brother and be able to build on the relationship he has already established with him.

24 [JH]'s relationship with his father was said to be a psychologically negative one and I do not believe it will be detrimental to him should he see less of him.

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

25 It is not anticipated that there will be any practical difficulty or expense with [JH] having contact with the non-resident parent in either household.

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

26 I have already stated that, in my view, [JH]'s intellectual needs will be met in the maternal grandmother's household.

27 The mother says she has the capacity to care for the child, but given her history of drug addiction since 1997, it is difficult to accept that she is now permanently drug free, although she has made very significant gains in that area. I do have some reservations about her commitment to change, given the relationship she had with [JS], up until he was imprisoned for 10 years in March this year. She has continued to take [JOS] to visit him. The only reason that she gave for the fact that that

relationship has ceased was the fact that he has been imprisoned for a very lengthy period.

28 The evidence of Dr Watts was that the mother would need at least another 12 months drug free before one could confidently say that she was unlikely to fall into the use of drugs again.

29 The father has shown a real commitment to [JH] since taking over his care in June 2004. He has not, however, complied with any of the requests for drug tests and has breached the terms of his parole by using drugs. He has not been shown to have a commitment to change his previous drug taking activities. When interviewed by Dr Watts in January 2005 he was currently taking methadone for his drug addiction and admitted to taking heroin as recently as six months previously. Dr Watts described him as having a major personality disorder known as Anti-social Personality Disorder. He described him as quite distrusting of the world with a strong belief that he is right. He stated that, in his view, he had a longstanding significant personality disturbance.

30 In relation to the father's ability to care for [JH], Dr Watts found him to be extremely caring in his attitude to him; however, he had grave concerns about his extremely negative attitude, self- centred views and drug addiction, which would indicate there were doubts about his ability to provide for [JH]'s emotional, physical and intellectual needs. Dr Watts' view was that if [JH] had prolonged exposure to the father's environment he was likely to turn into someone who had significant anti-social behavioural problems like the father.

31 In relation to the maternal grandmother, she has cared for [JH] for lengthy periods when neither the father nor the mother were capable of doing so. She cared for him from 2000 to 2004. He obviously has a very close relationship with her. She is more than capable of providing for his physical, emotional and intellectual needs. [JH]'s psychological development has been disturbed as a result of his parents' conduct and, particularly, his disturbed attachments when they have been absent for lengthy periods of time. Dr Watts described [JH] as a "fairly full on child whose attention was quite poor and he came across as demanding to get his own needs met". In his view, the lack of concentration and attention was common in children of drug addic ts, especially where attachment had been disturbed. In my view, it is of paramount importance that [JH] can be provided with a stable and predictable environment where the likelihood of change is minimal.

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed towards, or may affect, another person;

32 The mother alleges that [JH]'s physical and psychological welfare is threatened in the father's care. She complains that [JH] is thin and is not given sufficient to eat in the father's household. She also states he has disturbed sleep patterns, including nightmares and sleepwalking. The mother says that the father is also mixing with known drug users and that [JH] is exposed to his father's use of cannabis in his household.

33 I have already stated that, in my view, [JH] is at risk of psychological harm in the father's household because of his negative attitude and his own personality disorder. He has no interest in counselling or any form of therapy to improve his situation. The fact that he has not undergone drug testing indicates to me he may well still be using drugs.

34 The fact that the mother has been drug free for a relatively short time and because of her continued association with Mr [JS] it is possible she will relapse into drug use in the future. [JH] must be protected from this.

35 The maternal grandmother is likely to remain a stable, secure haven for [JH]. I am satisfied that he will not be exposed to abuse, ill-treatment, violence or any type of psychological harm in her care.

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

36 Both the father and mother have been irresponsible in their attitude to their responsibilities of parenthood, at least until 2004. Since that time the father has shown himself to be committed to [JH]'s care, even if the quality of it has not been perfect. The mother has shown herself to be committed to remaining drug free since that time. Both of their attitudes to the responsibilities to parenthood have improved.

37 The maternal grandmother has always acted in a responsible manner and has been available for [JH] when his parents have not been.

(i) any family violence involving the child or a member of the child's family;

38 and

(j) any family violence order that applies to the child or a member of the child's family;

39 The mother says the father was violent to her during the course of their relationship. [JH] has complained to the mother that a friend of the father's was hitting him. I do not know whether [JH] is likely to be exposed to violence in the father's household, although I am satisfied he would not be exposed to any violence from the father himself. I am satisfied that in the maternal grandmother's household he will not be exposed to violence.

(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

40 Dr Watts states there should be no final orders made in relation to this matter for at least another 12 months, to enable the parties to establish they are indeed drug free and capable of caring for [JH]. In the meantime, he says [JH] should reside with the maternal grandmother. The effect of this order will be that he lives in the same house as his mother and half-brother. He will have regular contact with his father and maintain all of the strong relationships he has in his life. In 12 months it may be appropriate to review the situation in relation to the mother's capacity to care for [JH] without the assistance of the maternal grandmother, and the father's capacity to care for him. There is no detriment to [JH], in my view, by making an interim order.

Conclusions

41 It is obvious that the only person at this time who is capable of caring for [JH]'s short-term and long-term care, welfare and development and the person to whom he has the closest attachment is the maternal grandmother. [JH]'s relationship with his mother is still an ambivalent one, but hopefully it will grow closer if they are residing in the same household. [JH] will be able to develop a closer relationship with his half-brother when he resides with his maternal grandmother and mother, which will be in his best

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interests. I am satisfied that the maternal grandmother will ensure that the father has regular contact with [JH].

42 The orders should be made for a period of 12 months. The matter should then be reviewed to consider the position of the mother and father.

43 In the orders made by me on 22 September 2005 I ordered that the mother only have periods of unsupervised contact with [JH] of

24 hours each fortnight. In my view, that period is too short if the

mother continues to remain drug free and reside with her parents. She should be able to have periods of unsupervised contact of up to

48 hours each fortnight provided she complies with the other conditions of the orders made by me on 22 September 2005.

I certify that the preceding [43] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate