Haddock and Anor and Haddock and Anor

[2013] FCCA 936

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADDOCK & ANOR & HADDOCK & ANOR [2013] FCCA 936

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged five years – applicants paternal grandparents – applicants allege mother is an alcoholic – applicants failed to return child to mother following pre-arranged holiday period – assessment of risk – best interests.

Legislation:

Family Law Act 1975, s.60CC

Applicants: MR R HADDOCK &
MS H HADDOCK

First Respondent: MS L HADDOCK

Second Respondent: MR S HADDOCK

File Number: ADC 1509 of 2013

Judgment of: Judge Brown

Hearing date: 20 May 2013

Date of Last Submission: 20 May 2013

Delivered at: Adelaide

Delivered on: 20 May 2013

REPRESENTATION

Counsel for the Applicant: Ms Bosko

Solicitors for the Applicant: All Family Law

Counsel for the Respondents: Ms Black

Solicitors for the Respondents: Alderman Redman

ORDERS

1. Leave is granted to all parties and their legal representatives to inspect the documents produced in answer to subpoena to the [S] Medical Centre, pursuant to subpoena filed 13 May 2013 subject to any privilege claimed.  Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses.  Leave is granted on the condition that all copies are destroyed at the conclusion of the matter.

2. The child [X] born [in] 2008 be returned to the mother no later than 5:00pm this day at such location as the parties agree and failing agreement to be in the foyer of the [omitted] Police Station in Adelaide.

3. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to

   
   

   Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

4. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child [X] live with the mother

2. The mother is restrained and an injunction issue restraining her from bringing the child into contact with the maternal grandmother.

3. The mother is restrained and an injunction issue restraining her from consuming any alcohol whatsoever when the child is in her care and for the period of 12 hours beforehand.

4. The child spend time with the paternal grandparents from 10:00am on Saturday until 4pm the following Sunday commencing on 8 June 2013 with the grandparents to collect and return the child from the mother’s residence at [K] unless the parties agree otherwise.

5. Further consideration of the matter is adjourned to 10 July 2013 at 10:00am to enable the independent children’s lawyer to become engaged.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1509 of 2013

MR R HADDOCK & MS H HADDOCK

Applicants

And

MS L HADDOCK

First Respondent

MR S HADDOCK

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgement were delivered immediately following the interim hearing concerned, the circumstances surrounding which are highly controversial.  As an independent children’s lawyer has been appointed in the case and the controversy between the parties likely to remain, it is appropriate that the reasons be transcribed.

2. This afternoon, I have to deal with the matter of Haddock. The applicants in the proceedings are Mr R Haddock and Ms H Haddock.  I will refer to them as “the grandparents” in these orally delivered reasons for judgment. 

3. The first respondent is Ms L Haddock.  I will refer to her as “the mother”.  Finally, the second respondent is Mr S Haddock.  I will refer to him as “the father”.

4. The proceedings concern [X], who was born [in] 2008. The grandparents are the paternal grandparents of [X]. The mother and father are her parents. 

5. The grandparents commenced these proceedings on 1 May 2013, and, on their application, the first hearing of the matter was expedited to today because of circumstances of urgency.  On an interim basis, the grandparents seek orders that would see [X] living with them. 

6. They propose that the mother spends supervised time for two hours on one occasion per week at a location in North Adelaide to be agreed between them and the mother.  In addition, they seek orders that would prevent the mother removing [X] from a kindergarten, which she is apparently attending in [S], and from consuming alcohol for 12 hours prior to any time the child is in her care. 

7. The grandparents also wish the mother to undergo a liver function test to determine the damage, if any, to her liver, occasioned by what they allege is her excessive consumption of alcohol.  As I understand it, neither of the applicant grandparents is medically qualified.

8. Since filing their application, the grandparents had filed a number of affidavits.  They include the following:

   i)an affidavit of the grandfather; 

   ii)an affidavit of the grandmother; 

   iii)an affidavit of Ms P, who is [X]’s maternal aunt; 

   iv)a second affidavit of Mr Haddock Senior, which was filed on 15 May 2013, to which is annexed correspondence passing between solicitors for the parties concerned.

   v)an affidavit of Mr S, who is the partner of Ms P;

   vi)finally, there is an affidavit of Mr C, who describes himself as a previous partner of the mother.

9. The mother has filed a response.  She did so on 16 May 2013.  The mother has filed a lengthy affidavit in support of her position.  She seeks the urgent return of [X] to her care.  As a corollary of such an order she seeks that [X] should be the subject of a recovery order.  A recovery order is a direction to the Australian Federal Police requiring them to go and collect a child and deliver the child to a person designated in the order. 

10. It is a significant thing to involve the Police in care arrangements for a child, not least because of the potential for emotional trauma to be occasioned to the child concerned.  It is significant, because the Police are, in effect, being directed, if necessary by force, to remove a child from his or her current situation.  It is an order which is ordinarily made only in extreme circumstances.

11. From the mother’s perspective, such an order is justified because of what she characterises as the unilateral removal of [X] from her care by the grandparents.  It is her case that a proper consideration of [X]’s best interests dictates that she should be returned to her care as soon as possible, even if that requires the involvement of the Police.    

12. The father lives in the Gold Coast area of Queensland. He has instructed Ms Hollidge of Wiltshire Lawyers of the Gold Coast.  They have filed an address for service, but have not filed any material, in a formal sense, on behalf of their client. 

13. Earlier today, I telephoned Ms Hollidge.  She is not going to make any formal submissions in these proceedings, other than her client supports his parents.  I will return to the father’s position in a short time. 

14. Accordingly, I note that Mr Haddock Junior supports his parents’ position, but has filed no material in the proceedings.  That being the case and with Ms Hollidge’s acquiescence, I formed the view that, there was no useful purpose in him, through his solicitor, taking part in the hearing today, which is essentially centred on whether [X] should live with her mother in the short-term or continue to live in the care of her paternal grandparents.

15. The positions of the parties are polarised in the extreme.  Essentially, it is the grandparents’ position that there are serious deficits in the mother’s household, which are likely to place [X] at significant risk of coming to harm, if she returns to her mother’s care. 

16. Not to put to fine a point on it, it is the grandparents’ position that the mother is a serious alcoholic, who is in the thralls of a very serious alcohol addiction, and therefore is unable to properly parent [X], a child obviously of tender years who is, by reason of her age, extremely vulnerable to any mistreatment occasioned by an alcohol impaired parent.

17. The mother’s position is that she is not an alcoholic.  It is her position that she has never been an alcoholic.  As such, there is no degree of risk whatsoever, to the child, if she comes back to her mother’s care.  Concurrently with that submission, it is the mother’s case that, throughout [X]’s life to date, she has been [X]’s main provider of care. Accordingly for that central relationship to be interrupted, for any extended period of time, is likely to have serious psychological implications for [X].  It is common ground that [X] has not interacted with her mother for a period in excess of a month or so. 

18. The grandfather has set out the history of the parents’ relationship with one another.  They apparently met one another at some time around 2005.  [X] is their only child.  As I say, she was born [in] 2008.  The parents lived in Alice Springs for a period of time, and then moved to Queensland in 2010. 

19. The grandparents visited the family in Queensland on two or three occasions.  The grandparents retired from the workforce in 2011 and have moved to live in [S] in their retirement where they have a comfortable four-bedroom home with all the necessary appurtenances.  Mr Haddock has a lengthy and honourable career as [omitted] near Alice Springs.

20. Over the New Year period of 2012-2013, the parents and [X] were visiting the grandparents in [S].  From the mother’s perspective, this coincided with a time when she was deciding to separate from the father, which necessarily was a difficult and stressful time for her. 

21. The grandparents’ perspective is that the mother was drinking very, very heavily indeed, during this period.  More importantly, they assert that the mother was drinking secretively – that is she was purloining bottles of wine from the refrigerator in the garage of their home and was secretly drinking it.  It is also the grandfather’s evidence that when he went to bed he could hear the mother drinking downstairs.  The implication being that secretive and excessive drinking are the hallmarks of an alcoholic.

22. The grandfather also asserts that the mother is a person who continually tells lies and is out of touch with reality because of her drinking. It is his evidence that she is – and this is a quote from his affidavit:

    “…so often under the influence of alcohol that she truly believes her distorted version of events.”

23. At any event, this holiday in January, with the paternal grandparents, marked the separation of the parents.  They apparently returned to Queensland, where they normally lived up to that stage.  It is the mother’s evidence that thereafter she decided that she would come and live in [K] with [X].

24. She and [X] moved to South Australia, with the acquiescence of the father. It is not asserted that this is what lawyers categorise as a unilateral relocation. In [K], the mother has the support of her maternal uncle, a gentleman by the name of Mr A.  He lives at [omitted], which is 15 kilometres away from [K].

25. The mother, [X] and the father left the maternal grandparents home in early January, as I say.  But the mother apparently returned to [S] and stayed with the grandparents from mid-January onwards – 12 January to be precise. 

26. On this date, the mother and the paternal grandfather attended on a doctor in [S].  The notes of the consultation have been subpoenaed by the grandparents. In these notes, taken on 12 January 2013, the mother is described by the doctor concerned as a 29 year old woman with a four year old daughter, who presented with her father-in-law asking for help for her ethyl-alcohol dependence. 

27. She is further described as having problem with alcohol abuse for about a year, which is progressively getting worse.  She is said to be currently drinking about two to three litres of wine daily and to suffer from depression and anxiety.  She is identified as coming from Queensland, where she had managed to see a psychologist twice. 

28. Her marriage is said to be falling apart due to her drinking.  Currently staying with in-laws for support.  She is currently on antidepressant and is said to be very keen to stop drinking alcohol.  Her mood was described as low.  No suicidal ideation was noted.  She had poor energy level and concentration, and poor appetite.  She was prescribed Antabuse tablets daily.

29. Concurrently with this medical consultation, the mother was referred for counselling with a person called Ms C, who seems related to the medical practice.  Again I have Ms C’s notes.  The notes begin with an alert for the medical staff that indicates the mother did not want her father-in-law to take part in the appointment. 

30. In this context, I should say that it is the mother’s position that both her former husband and his father-in-law are controlling of her.  That is an assertion noted in the counselling records, which go on to say that, from the mother’s perspective, she is not allowed to go out because of what are described as her alcohol problems. 

31. The mother described to the counsellor feeling like she and [X] are hostages in the grandparents’ home.  The mother is also reported as having support through Alcoholics Anonymous, where she has two sponsors. 

32. The counsellor notes that at this stage, which is 16 January 2013, the mother has not had alcohol for five days.  She has been apparently treated with medication to assist for anxiety and depression.  She is advised to get some advice from the Women’s Legal Service regarding custody issues with [X].  The counsellor concerned also advised the mother to contact the police at [K]. 

33. Ms C reports that there is no actual physical violence, just power and control issues with both Mr S Haddock (the father) and father-in-law.  Thereafter, an appointment is arranged for the 22^nd at 12.30, with Ms C, who describes herself as a mental health social worker.

34. There is another medical consultation, again on 16 January, where it is noted that the mother has stopped drinking for five days.  There are apparently some issues in respect of withdrawal, but nothing further is noted. 

35. So the grandfather’s position is that he and his wife were concerned about the mother’s behaviour over the Christmas-New Year period, particularly her drinking.  This coincided with the separation of the parents, which I would expect to be a difficult and stressful time. 

36. The mother now raises some issues as to why the paternal grandfather attended the medical appointment with her.  The implication being that he orchestrated the appointment and its outcome.  But regardless of this allegation, he did attend the appointment concerned, and there is some independent corroboration of significant levels of drinking in the medical material produced.  But there are also indications, in the social worker’s notes, that the mother was in a situation of some stress, and significantly, the doctor’s notes indicated a period of five days abstinence.

37. It is also to my mind, significant, that the grandparents allowed the mother and [X] to leave and go and live in [K], as had previously been arranged, which they did later in January. 

38. It seems to be the case that the grandparents visited [X] thereafter, from time to time.  In this context, arrangements were made, from 12 April 2013 onwards, for [X] to spend two weeks of the school holiday, with the grandparents, in [S], which coincided with the father travelling from Queensland to spend time with her. 

39. The mother’s perspective was that she was apprehensive about this trip, particularly as [X] had never been away from her for such a long period of time – 14 consecutive nights. 

40. Notwithstanding those reservations, she was anxious that the child spend time with her father and paternal grandparents. [X] was due to return on Sunday 28 April 2013.  It is common ground between all concerned that she was not returned as scheduled.  

41. The day before she was due to return to her mother, Mr Haddock Senior sent a text message to the mother, which reads as follows:

    “Ms L Haddock, on Monday you will receive a letter from our solicitor advising you of what is in process.  We have gone away with [X] for a while, but can be reached on our mobiles if you want to talk to [X].  I have advised the [K] Police that we have [X] and that she is safe.  We are really sorry it came to this, but you did not leave us any choice.”

42. The mother’s perspective is that she was alarmed at this message, which I readily accept would be the case.  She made contact with the police and complained.  There was some talk of there being charges laid.  Although the police ultimately decided that they would not become involved in the matter, in a criminal sense, as they regarded the matter as being essentially a Family Law dispute.

43. Two days after this decision was apparently made, these proceedings were lodged.  Thereafter, there was some communications between the parties’ solicitors in which the mother was told that she could spend some unspecified time with [X], but only if she signed an undertaking to return the child to the grandparents. 

44. The position of the grandparents was that they were justified in doing what they did because of their personal exposure to the mother’s behaviour in January and no doubt because of their understanding of what had been said, by the mother, at the consultation with the doctor at [S]. 

45. More recently again, the grandparents assert that, when they arrived to collect [X], in early April, they were concerned at the mother’s presentation to them.  Essentially, the grandfather asserts that when they arrived at the mother’s home, she appeared hung-over.  She was lethargic and quiet and looked dishevelled. 

46. The grandfather also has concerns about the mother’s own mother.  She is also described as being an alcoholic.  In this context, it is asserted that she has been so drunk that she has fallen down the stairs on occasions.  The grandfather is concerned that this person has been spending time with the mother in [K]. 

47. As well as being described as being an alcoholic, she – that is the maternal grandmother – is alleged to have long-term mental health issues; to have hepatitis C; and whist living in Queensland, which is when she fell down the stairs, to have been so drunk as to be oblivious to the fact that she was bleeding on the walls.

48. So, since 28 April, the child has not been returned to the mother, as was previously agreed.  As a consequence the mother has not interacted with [X] since early April.  In this context the grandfather deposes his position as follows:

    “We do not intend on returning [X] due to the mother’s drinking and the presence of her mother in her home.” 

49. There is no evidence available to me to indicate that [X] has been specifically neglected or abused by the mother, due to her alleged alcoholism.  There is no evidence to indicate there have been any notifications made by any other persons, other the grandparents, to authorities, such as Families SA.  There is no evidence to indicate that the child has been noted to have come to any harm by reference to her kindergarten or preschool teacher.

50. The mother’s case is that her relationship with the father was a difficult one. She says that the father is a person who has a history of convictions for violent crimes, which have resulted in him being sentenced to a period of community service. She has many other criticisms of the father, but essentially, she says that he is controlling person. 

1. She alleges that he assaulted her in December and January of this recently concluded Christmas period.  In support of this allegation, she has enclosed with her affidavit material, black and white photographs which she says support her assertion that the father seriously assaulted her.  She asserts that she complained to the paternal grandmother of this serious conduct, but it is her evidence that the maternal grandmother was somewhat dismissive of these concerns and by necessary implication condones the father’s behaviour.

2. The mother asserts that, in January of 2013, she was depressed and anxious as a result of the end of her marriage to the father.  In addition, she alleges she was suffering some degree of trauma, as a result of his violent behaviour towards her.  It is her case, as I have already indicated, that the grandfather is a controlling person.  In these difficult circumstances, the mother concedes that she has drunk alcohol, in the past, to help her relax.

3. I have been provided with some Facebook evidence, in which the mother does in fact describe herself as an alcoholic.  This material is attached to the grandfather’s affidavit.  But the mother’s position today is that she is not an alcoholic.  She concedes that she has attended some Alcoholics Anonymous meetings, but it is her evidence that she does not feel that she is a person, who has things in common with people who attend Alcoholics Anonymous. 

4. It is her case that, if she was a person who had serious alcohol issues, she is hardly likely to have agreed to [X] spending a fortnight in her paternal grandparents’ care, particularly as she has separated from their son in difficult and somewhat traumatic circumstances.

5. It is her case that she did not fully understand why she was consulting the doctor at the [S] Medical Centre.  Certainly she did not want to be prescribed Antabuse and she has not used that drug.  It is her case that what she described to Ms C is more congruent with her current circumstances and how she feels about the matter. 

6. The essential factual issue, therefore, what is the truth or otherwise of the grandparents’ allegation in regards to mother’s alcoholism, which the mother denies?  The evidence on which the grandparents rely is contained in their description of the mother’s behaviour and also in the more recent affidavits obtained from Mr C, Mr S and Ms P. 

7. Ms P has deposed a fairly short affidavit which is centred on the maternal grandmother, Ms A.  Ms P clearly does not have much of a regard for Ms A, but she says very little about the mother.  I should say that the mother has indicated to me that she is willing to abide by an injunction that she not bring the child into contact with her mother. 

8. Mr S is Ms P’s partner.  He has raised concerns about the mother’s behaviour at New Year in [K].  He asserts that, whilst the mother was staying with him and Ms P, she purloined six bottles of wine from their wine rack.  The mother was described by Mr S as being very, very drunk on occasion, but Mr S does not assert that the mother has neglected [X] in any way.  The criticism he makes is that when the mother is angry, she shouts at [X]. 

9. Mr C describes himself as a previous partner of the mother.  He apparently knew both the mother and father in Alice Springs.  They caught up, that is the mother and Mr C, caught up with one another.  The mother refutes any suggestion that the two were ever in a relationship.  Mr C has gone back to Alice Springs and he describes that in February the mother was drinking alcohol as a coping mechanism. 

10. In this case I have to make some sort of assessment of the risk which the mother represents to this child.  I must also make some sort of assessment of the risk, to [X], of a previously important and central relationship in her life being either severed or significantly curtailed.  As a consequence of the serious allegations made against the mother, I have taken the unusual step of having her sworn to give additional oral evidence in the case. She has answered questions which I have asked her. 

11. I concede that the mother may be lying through her teeth about her past and current level of drinking.  But, regardless of that, what is clear from her evidence is that she has been [X]’s primary carer for the majority, if not all of her life to date.  She certainly did not consent to [X] remaining in the care of her grandparents. 

12. Her evidence is that she had an alcoholic drink in January in [S].  She went to AA twice.  She has no convictions for drink-driving.  She is in receipt of social security as her main source of income.  She has a rental commitment of $500 per fortnight, which leaves her with available funds of about $600 per fortnight.  The major expense from that is her food for herself and [X] of $200. 

13. [X] has apparently been going to pre-school in [K].  I have no evidence to indicate, as I say, that there are any concerns, originating with the pre-school at [K], about the mother and her care of [X].  She has provided, that is, the mother has provided some photographs of her home in [K] which present the home as comfortable, clean and unexceptional.  I appreciate that a photograph cannot necessarily be indicative of the situation, all the time, in the house.  But there is nothing untoward contained in these photographs. 

14. I have been given [X]’s pre-school health check which indicates that she is of normal development.  She has some issues with one of her eyes, I think, but there is nothing else unusual about her.  There is a report from the [omitted] Swimming Centre, where [X] goes, which is unexceptional.  There is a reference from Ms S, which speaks strongly of Ms Haddock as a mother.  What is the relationship between Mr S and Ms S, if any, is not clear to me. 

15. So in this case it is clear, I think, that many people have aligned themselves on one or other side of this dispute, and, at this stage, from my perspective there is little compelling evidence to indicate that the mother is the alcoholic person described.  I have heard some evidence from her.  She was able to give her evidence clearly and she certainly was not under the influence of alcohol this afternoon. 

16. The mother’s evidence is that recently she has received what she regards as unsavoury text messages from the father in about February. The father has apparently, in response to a dispute about some items of property, threatened that he will be ringing Children’s Services and getting them to breath test the mother every week and has threatened  “Or [X]’s going to my Mum and Dad.” So, there is, I think, some corroborative evidence regarding the view that I have formed that the various people, who are involved in the case are becoming polarised in their views.

17. I turn now briefly to the legal matters I must consider in this matter. In this, as in all cases to do with children, whatever order I make, I must be satisfied that it is in the best interest of the child concerned. In determining how the court is to serve a child’s best interests, I must consider a long list of matters contained in section 60CC of the Family Law Act. There are two categories of consideration: primary considerations and additional considerations.

18. There are two primary considerations.  Firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

19. Until comparatively recently the two primary considerations were of equal importance, but as a consequence of a recent amendment to the Act, I am now directed to give more weight to the need to protect a child from physical or psychological harm as a result of exposure to abuse, neglect or family violence.  But, in my view, that does not mean that I should ignore the benefits a child is likely to derive from having a meaningful level of relationship with his or her parents. 

20. In terms of the additional considerations, amongst other things, I have to consider the nature of the relationship the child has with parents and other people, including grandparents; the likely effect of any changes in the child’s circumstances; and the capacity of each of the child’s parents and, indeed, any other person, including grandparents, to provide for the needs of the child concerned, including the child’s emotional and intellectual needs. 

21. As I say, this is a case about the assessment of risk.  It is the grandparents’ perspective that the mother represents a risk that no court should take in respect of a child of [X]’s age.  Essentially, the grandparents say that it would expose [X] to an unacceptable degree of risk, if she is returned to the care of her mother, that [X] will come to harm as a result of being neglected in some way, particularly whilst the mother is intoxicated. 

22. I must assess that risk, on the basis of the evidence available to me.  I, at this stage, have come to the view that the mother does not represent an unacceptable risk to this child.  I reach that conclusion for the following reasons. 

23. Firstly, the grandparents allowed the child to go with the mother in January.  In my view, this undercuts the strength of their current assertion that the mother’s drinking was out of control. 

24. Secondly, much of the grandparents’ concerns are anecdotal, that is, they rely on their own assessment of the mother’s drinking, not on some objective or independent assessment. 

25. Thirdly, there is some evidence, in the medical records, that the mother is capable of being abstinent.  Although, as I have already observed, the mother may be lying, her evidence on oath to me today is that she is not drinking. 

26. Fourthly, the rationale for the grandparents retaining the child occurred when the dispute between the parents was intensifying in its terms.  The father supports the position which his parents currently advocate in respect of on-going arrangements for [X]’s care.  As such, they cannot be regarded as entirely impartial in the case.

27. The grandparents retained the child on the basis of a suspicion – their impression of the mother that she was dishevelled or hung-over, when they collected [X] from her.  There is no coherent evidence to support their assessment of the mother at that stage or that [X] herself has come to any measurable degree of harm.  The grandparents acted pre-emptively.  Further, I am concerned that the evidence of Mr S, Ms P and Mr C may be lacking in objectivity. 

28. But most significantly, in my view, it is clear that the actions of the grandparents were essentially unilateral in nature.  They did not discuss their concerns with the mother.  Rather, they presented her with a fait accompli in respect of [X]’s care. 

29. Certainly they gave no consideration to the significant level of the relationship between the mother and the child and how it could be maintained.  On any view, the mother has been a very significant influence in [X]’s life to date.  The grandparents are not in a position to refute her evidence that she has been [X]’s primary carer. 

30. It is their evidence, indeed, that the mother is an excellent parent provided she is not drinking.  The grandparents seemed to have given little thought to the consequences for [X] of not spending time with her mother whatsoever and perhaps not knowing when she would see her mother again. 

31. [X] is five years of age. Her mother must be a very significant feature of her life. It seems more likely than not that [X] derives a significant component of emotional support from her mother. She was expecting to go back to her mother at the end of a holiday. This did not happen.

32. In this case the court needs to consider the benefits [X] is likely to derive from having a meaningful level of relationship with her mother.  There is, at this stage, no involvement of the mother in [X]’s care, as a result of the unilateral actions of the grandparents.

33. The principles underlying the part of the Family Law Act 1975, dealing with children emphasise the right the children have to know and be cared for by parents and those who are significant to their care. At this stage, it is clear to me that [X] is not being cared for her mother at all, as a result of the decisions made by the grandparents. It would seem to me that, in assessing her best interests, I must have regard to the fact that up until April of this year, the most significant person in [X]’s life was her mother.

34. The person one would expect to know most about the mother’s drinking is the father.  He has not filed any affidavit material, as yet.  I am just told by his lawyer that he supports his parents.  It seems to be the case that Mr S Haddock was agreeable to the mother and [X] leaving Queensland and moving to South Australia.  That, in my view, provides collateral evidence that he is of the view that the mother is capable of parenting [X]. 

35. So for those reasons, I have come to the conclusion that [X] should be returned to the mother’s care and that should happen today.  I am also – given the polarised nature of the parties in this matter – going to order that [X] be independently represented in these proceedings. 

36. It is also, I think, an appropriate response to the issues raised by the parents, that I make an injunction restraining the mother from bringing [X] into contact with the maternal grandmother and from consuming alcohol when the child is in her care. 

37. The mother’s preference is that the child should not spend any time with the grandparents for at least six months. It is also the mother’s position that I should summarily dismiss the grandparents’ application. I am not prepared to summarily dismiss the application. The fact remains that at this stage I am not in a position to determine conclusively, on the balance of probabilities, whether the mother is drinking or is not drinking. As I say, I am well aware that alcoholics can be manipulative people, who are skilled at concealing their drinking.

38. Certainly that is the grandparents’ position. These are unconcluded proceedings.  There has been no extensive testing of the evidence likely to be available in the case at the final hearing stage.  In addition there has, as yet, been no independent assessment of how [X] is travelling emotionally in terms of a family report.

39. However, I accept that the grandparents have a close and loving relationship with [X] and are, of course, significantly interested in these proceedings, so it would be inappropriate to summarily dismiss their application. 

40. The grandparents are entitled to bring these proceedings because of their interest in [X].  What I have to do in difficult circumstances is to make some sort of assessment of the risk the mother represents and also what are the risks of [X] of not interacting with the person who, up until this stage, is the most significant person in her care. 

41. I have concluded that the balance falls in favour of the mother, after having taken some sworn evidence, from her, and having considered that the grandparents behaved precipitately and unilaterally. 

42. But, in my view, it is likely to be in [X]’s best interests to spend time with the grandparents, but as a consequence of what has happened of late, there are difficulties with that.  In these circumstances, the orders for the child to spend time with her grandparents must be cautious in their extent.

43. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  20 May 2013