Heath & Hemming (No 2)
[2011] FamCA 749
•27 September 2011
FAMILY COURT OF AUSTRALIA
| HEATH & HEMMING (NO 2) | [2011] FamCA 749 |
| FAMILY LAW – CHILDREN – Principles to be applied to parenting matters including proposed relocation – Review of recent Full Court decisions in relocation cases – Application where the child’s paternal grandmother returning to New Zealand – Where no meaningful relationship established between mother and child |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407` Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) Cowley & Mendoza (2010) 43 Fam LR 436 Edelman & Ziu (No 2) [2010] FamCAFC 236 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Hepburn v Noble (2010) FLC 93-438 M & S (2007) FLC 93-313 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Marvel & Marvel (2010) 43 Fam LR 348 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Sigley & Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Heath |
| RESPONDENT: | Mr Hemming |
| FILE NUMBER: | BRC | 11091 | of | 2008 |
| DATE DELIVERED: | 27 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 15-16 August 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele of Counsel |
| SOLICITOR FOR THE APPLICANT: | DK Law |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Wrightway Legal |
Orders
Interpretation
Subject to paragraphs 2 and 3, for the purpose of these Orders “the conditions” means:
(a)The Mother providing to the Father a written report of Dr W in which Dr W expresses the opinion that the Mother’s depression has resolved; and
(b)The Mother providing to the Father written confirmation from Clinic 1 Alcohol Tobacco and Other Drugs Service (ATODS) that the Mother:
(i)Has, for a period of not less than six (6) months, remained on the Suboxone program under the auspices of the Clinic 1 ATODS and complied in every respect with the requirements of that program; and
(ii)Has returned, over a continuous period of six (6) months, a clear result from random monthly urine screens; and
(c)The Mother providing to the Father written confirmation from Clinic 1 ATODS that the entity has been authorised by the Mother to, and is prepared to and will, advise the Father of any of the following events which are within the means of knowledge of Clinic 1 ATODS:
(i)The Mother suffering a relapse of her depression; or
(ii)The Mother failing to comply in any material respect with the treatment prescribed for her by Dr L; or
(iii)The Mother returning an unclear result on any urine drug screen; or
(iv)The Mother failing to comply in any material respect with the Suboxone program under the auspices of Clinic 1 ATODS; and
(d)The Mother providing to the Father written confirmation from Dr L that Dr L has been authorised by the Mother to, and is prepared to and will, advise the Father of any of the following events which are within the means of knowledge of Dr L:
(i)The Mother suffering a relapse of her depression; or
(ii)The Mother failing to comply in any material respect with the treatment prescribed for her by Dr L; or
(iii)The Mother returning an unclear result on any urine drug screen; or
(iv)The Mother failing to comply in any material respect with the Suboxone program under the auspices of Clinic 1 ATODS; and
(e)The Mother providing to the Father written confirmation from Dr L of the monthly appointments scheduled by the Mother with Dr L over the following six (6) months; and
(f)The Mother being free of depression and remaining compliant with her Suboxone program under the auspices of Clinic 1 ATODS.
(a)In the event that Dr W is unable or unwilling to be involved in this matter at any time in the future, then the Mother shall provide the Father with the names of three (3) independent practicing psychiatrists and the Father shall forthwith nominate to the Mother in writing one of them, and for the purpose of interpreting and applying these Orders the name of that nominee is to be read in lieu of “[Dr W]” wherever “[Dr W]” appears in these Orders.
(b)In the event that the Mother undertakes treatment for her opioid dependence from a facility or service other than Clinic 1 ATODS then, provided that such other treatment provider is an equivalent service to Clinic 1 AROD then, for the purpose of interpreting and applying these Orders, the name of that other provider is to be read in lieu of “[Clinic 1 ATODS]” wherever “[Clinic 1 ATODS]” appears in these Orders.
(c)In the event that the Mother commences to consult a treating psychiatrist other than Dr L, then the Mother shall notify that in writing to the Father and for the purpose of interpreting and applying these Orders the name of that other treating psychiatrist is to be read in lieu of “[Dr L]” wherever “[Dr L]” appears in these Orders.
If the Mother commences to permanently reside in City 1, New Zealand, on or after 1 August 2012, then:
(a)The Mother shall forthwith give the Father notice of that fact; and
(b)The Father shall nominate a Contact Centre in City 1, New Zealand; and
(c)The Father shall forthwith, after being given such notice, provide to the Mother a panel of three names of independent psychiatrists practicing in City 1, New Zealand, from which the Mother will nominate a psychiatrist to act in lieu of Dr W; and
(d)The Mother shall forthwith nominate to the Father the name of a provider of a program in City 1, New Zealand which is the equivalent of the Suboxone program conducted by Clinic 1 ATODS that the Mother proposes to attend; and
(e)The Mother shall nominate to the Father the name of her treating psychiatrist in lieu of Dr L; and
(f)The nominees referred to respectively will thereafter be substituted for the names appearing in paragraph 1 respectively and “the conditions” where referred to will be read, interpreted and applied accordingly.
For the purpose of interpreting and applying these Orders, if at any time the Mother, having fulfilled all of the conditions, subsequently fails to fulfil any of them, the Mother must again fulfil each and every of the conditions set out in paragraph 1 for the purpose of “fulfilling the conditions” within the meaning of that expression, wherever it appears in these Orders.
Parental Responsibility
The Father and Mother shall have equal shared parental responsibility for the child of the marriage, J Hemming, born … July 2004 (“[J]”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
The parents shall each have, during all such time that J is in their respective care, sole parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
J shall live with the Father.
Subject to subparagraph (d) hereof, in the period until 1 August 2012, the Father shall not relocate J’s place of residence away from the Gold Coast, Queensland, and J shall spend time and communicate with the Mother as follows:
(a)Pending the Mother fulfilling the conditions, and in respect of any period where any of the conditions is unfulfilled:
(i)For a period of two (2) hours each alternate Saturday at Contact Centre 1 to be supervised;
(ii)For a period of four (4) hours on Easter Sunday 2012, to commence at 9.00am, with the parties to meet at Food Outlet 1 in Gold Coast Suburb 1, such time to be in the general presence of the Father and the parties are at liberty to spend some or all of the time at the Gold Coast Suburb 2 Park;
(iii)For a period of four (4) hours on … July 2012 for J’s birthday, with the parties to meet at Food Outlet 2, Gold Coast Suburb 3, at 12.00pm midday, such time to be in the general presence of the Father and the parties are at liberty to spend some or all of the time at the Gold Coast Suburb 2 Park.
(b)By telephone each Wednesday at 6.00pm, with the Father to supply the Mother and keep her supplied with a landline and mobile telephone number that she may call J on.
(c)The costs associated with the Contact Centre shall be borne equally between the parties.
(d)Between the date of these Orders and 1 August 2012, the Father shall be permitted to take J to New Zealand for a visit of not more than twenty-one (21) days’ duration, including the day of departure and day of return and the Father shall give the Mother not less than one (1) month’s notice in advance of such a proposed visit.
Upon the Mother fulfilling the conditions, and in respect of any period in which the conditions are fulfilled, J shall spend unsupervised time and communicate with the Mother each alternate weekend as follows:
(a)On the first two such weekends, from 9.00am to midday on each of the Saturday and Sunday;
(b)On the next two such weekends, from 9.00am to 1.00pm on each of the Saturday and Sunday;
(c)On the next two such weekends, from 9.00am to 5.00pm on each of the Saturday and Sunday;
(d)Thereafter, from 9.00am Saturday to 5.00pm Sunday on such weekends;
with all changeovers to occur at Contact Centre 1 unless otherwise agreed in writing between the parties.
From 1 August 2012, the Father, on providing the bond referred to in paragraph 11, shall be permitted to relocate J to live in City 1, New Zealand.
As and by way of security for the funding by the Father of the Mother’s international travel and accommodation expenses as provided for in these Orders, the Father shall deposit the sum of $10,000.00 to the trust account of his solicitors, such sum to be invested in an interest bearing deposit by those solicitors on trust for the parties, and:
(a)The Father shall ensure such deposit is maintained in a sum not less than $10,000.00 at all times that the Father is liable for the Mother’s said expenses under the terms of these Orders; and
(b)The Father shall provide an irrevocable authority to the said solicitors, authorising the solicitors to withdraw from the fund and pay any amount required to meet the Mother’s said expenses which the Father fails to pay; and
(c)The Father will be entitled to reimbursement of the capital of the fund and interest accrued thereon as at 4 July 2016 when the child turns 12 years of age or, in the event paragraph 14 operates, upon that event, whichever first occurs.
For any period that J is residing in City 1, New Zealand, and the Mother is likewise residing in City 1, New Zealand, then J shall spend time and communicate with the Mother in accordance with paragraphs 1, 8 and 9 hereof in the same manner as those paragraphs would apply if both J and the Mother had remained in Australia, with the amendments identified in paragraph 3 hereof applying as necessary to give effect to those paragraphs.
For any period that J is residing in City 1, New Zealand, and the Mother is continuing to reside permanently in Australia or otherwise outside of New Zealand:
(a)Provided the Mother has fulfilled or is fulfilling the conditions, the Father will pay the cost of the Mother travelling from the east coast of Australia to City 1, New Zealand, (including economy flights and reasonable accommodation for two nights) for J to spend time with the Mother during eight (8) weekends in each year from 9.00am Saturday to 5.00pm Sunday on such weekends, and for this purpose:
(i)The Mother is to provide the Father with written notice of each proposed weekend visit to New Zealand of at least one (1) month, including travel dates and proposed times, and in the event that the parents are unable to agree on the Mother’s travel dates, such weekends shall be the last weekend in February, April, May, July, August, September, October and November in each year;
(ii)The Father shall book and pay for the Mother’s flights and accommodation for such visits upon the parties agreeing on the travel dates, or in accordance with (i) above, and the Father shall provide the Mother with flight and accommodation details within seven (7) days of making any booking.
(b)If the Mother has fulfilled, and is fulfilling, the conditions, and if the Mother is able to fund her own travel and accommodation to City 1, New Zealand, for further weekends during the year, then J shall spend time with the Mother on such further weekends from 9.00am Saturday to 5.00pm Sunday, provided the Mother gives not less than fourteen (14) days’ notice of her intention to travel to City 1, New Zealand, for such weekends and provided that, in any calendar month, there be a maximum of two such weekends, inclusive of the weekend time provided for in paragraph 12 above.
(c)If the Mother does not fulfil any of the conditions, or in respect of any period in which any of the conditions are not fulfilled, then J’s time with the Mother shall be supervised, and for that purpose:
(i)J shall spend time with the Mother for two (2) hours on each of the Saturday and Sunday of the eight weekends referred to in paragraph 13(a) above at a Contact Centre in City 1, New Zealand, which provides for supervision and the Father shall, subject to paragraph 14, be responsible for the Mother’s costs of travel and accommodation in the same manner as is provided for in paragraph 13;
(ii)The Father and the Mother shall forthwith do all acts and things necessary to make arrangements in advance for the facility of such a Contact Centre to be made available to them in the event that supervision is required.
If, by 1 August 2012, the Mother has not fulfilled all of the conditions, or if thereafter the Mother fails to keep all of the conditions fulfilled and that failure persists for a continuous period of not less than six (6) months, then the Father’s obligations to fund airfares and accommodation of the Mother, as set out above, will cease and the Mother will be solely responsible for funding her airfares and accommodation for the purpose of J spending time with her on the weekends provided for as above and if the Mother funds such expenses then J shall spend time with the Mother as provided for in paragraph 13(c) above.
On and from 1 August 2012 the Father be at liberty to travel both domestically and internationally with J provided that:
(a)The Father is to provide the Mother with at least one month’s notice of the Father’s intention to travel including itinerary, flight details and telephone contact details for J at all times during travel;
(b)Any travel proposed by the Father does not prevent or interfere with any pre-arranged travel or time the Mother spends with J in accordance with these Orders;
(c)If the Father proposes travel for a period exceeding one (1) month, and there are no pre-arranged bookings or arrangements for the Mother to spend time with J during that period, the Father be at liberty to provide the Mother with two (2) months’ notice of his intention to travel with the child, including itinerary, flight details, telephone contact details for J at all times during travel and a reasonable proposal (including at least two (2) proposals for the Mother to select from) detailing how any time the Mother would otherwise have spent with J during that period (if applicable) can be facilitated either prior to or after the proposed travel dates.
The Mother be permitted to telephone or Skype J on one occasion per week at a regular time nominated by the Mother and any other times J is willing to speak to the Mother on the telephone or via Skype.
The Mother and Father keep the other parent informed in writing of the names and addresses of any treating medical or other health practitioners that treat the child and this Order is authority for any treating medical or other health practitioner to release J’s medical information to the other parent at the expense of the parent requesting such information.
This Order is authority for J’s school to give each parent any information about the progress of J’s education and other related activities at the expense of the parent requesting such information. However, if the school is unable to issue more than one copy of any such information, the father undertakes to provide electronic copies of that information to the Mother within seven (7) days of receiving it from the school.
During the time J is to spend with each parent, that parent shall:
(a)Respect the other parent’s privacy; and
(b)Not denigrate or insult the other parent, or their partner or family members in the presence or hearing of the child.
If, after relocating to New Zealand, J is visiting the Gold Coast with the Father or the Paternal Grandmother in any period coinciding with time J is due to spend with the Mother, then the Father may elect to have that time spent on the Gold Coast in lieu of in New Zealand by giving the Mother one (1) month’s advance notice.
Pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth), the Court approves the provision, by the parties, of:
(a)These Orders; and
(b)The Reasons for Judgment; and
(c)The report of Dr W filed herein; and
(d)The report of Mr P filed herein;
to each of:
(e)Dr L or any treating psychiatrist of the Mother from time to time; and
(f)Clinic 1 ATODS (or any alternate referred to in paragraph 2); and
(g)Dr W (or any alternate referred to in paragraph 2); and
(h)Mr P; and
(i)Any counsellor providing counselling to J from time to time.
That in the event that after J is living in New Zealand but is travelling to Queensland at any time, the Father shall:
(a)Advise the Mother at least seven (7) days prior to the travel as to the arrival and departure times for J; and
(b)Ensure that J is made available to spend time with the Mother at all reasonable times the Mother nominates in respect of J being in Australia consistent with the following, including:
(i)For at least two (2) nights in each fourteen (14) night period;
(ii)In the event that the period is between seven (7) and fourteen (14) nights, for at least one (1) night;
(iii)In the event that the period is less than three (3) nights, then for at least half a day;
provided that the Mother has fulfilled and is fulfilling the conditions at the time of such visits.
That the Mother be at liberty to communicate with the child by e-mail and mail at all times. For the purpose of e-mail communication, the Father shall establish an e-mail account for J and teach her how to manage the account and the Father shall be responsible for establishing and maintaining such e-mail account at his cost.
That from the time J commences to live in New Zealand the Father shall make J available to communicate with the Mother by Skype at least once each week (such Skype call to occur between 5.00 pm and 6.00 pm New Zealand time) and on special days, including the Mother’s birthday, the child’s birthday, Mother’s Day and Christmas Day, when the child is not otherwise with the Mother.
That the Mother be at liberty to communicate with J by Skype at all other reasonable times at J’s request.
That neither parent denigrate, nor allow any third parties to denigrate, the other parent to, or in the presence or hearing of the child.
That both parents do all acts and things reasonably necessary to promote the relationship between J and both parents and the Paternal Grandmother.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Pursuant to s 65L of the Family Law Act 1975 (Cth), the Family Consultant, Mr P, is requested to provide to the Mother such assistance as is reasonably requested by the Mother in relation to compliance with, and the carrying out of, these Orders.
The Father shall ensure that the Mother is requested to be involved in any counselling that is undertaken of J by a qualified counsellor to the extent that such involvement is deemed necessary or helpful by such counsellor.
Each party have liberty to apply on the carrying into effect of these Orders, and specifically each party have liberty to apply within fourteen (14) days to seek to be heard further solely on the question of the financial bond to be provided by the Father as provided for above.
IT IS NOTED that publication of this judgment under the pseudonym Heath & Hemming (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11091 of 2008
| Ms Heath |
Applicant
And
| Mr Hemming |
Respondent
REASONS FOR JUDGMENT
By her application filed in the Federal Magistrates Court on 22 December 2009, Ms Heath (“the Mother”) sought interim and final Orders with respect to J, born in July 2004, who is the child the subject of these proceedings. The Mother sought, inter alia, Orders for the parents to have equal shared parental responsibility for J; for J to live with the Father; and Orders for graduated time and communication on a staged process, culminating with the time J would spend with the Mother to be alternate weekends from after school Friday to 4.00pm Sunday, and from after school Wednesday to before school Thursday in the alternate week and for one half of all Queensland gazetted school holiday periods. The Mother’s application is against the background of an extensive drug addiction and substance abuse history of the Mother as well as a history of psychiatric issues of the Mother outlined in further detail below.
By his response filed on 10 March 2010, Mr Hemming (“the Father”), sought interim and final Orders for J to live with him. As to time and communication with the Mother, the Father sought Orders for, inter alia, supervised time “until such time as the Applicant Mother provides a Medical Report from a jointly appointed single expert psychiatrist, or failing agreement about such expert, then by [Dr V], confirming that the child would be exposed to no harm or risk in spending unsupervised time with the Applicant Mother…”. The Father also sought an interim Order that the Mother attend upon a jointly appointed single expert psychiatrist, “…for the purpose of obtaining a report as to the Applicant Mother’s suitability to spend unsupervised time with the child.” As to final Orders, the Father sought that the Mother’s time with J be in such manner (supervised or unsupervised) and at such venue or venues as the parties could agree between themselves or, failing agreement, in accordance with the recommendations made by a single expert psychiatrist.
On 11 March 2010, the Federal Magistrates Court made various interim Orders by consent. These included an Order for J to live with the Father; and that J’s time with the Mother be supervised and be, in the main, for periods of two hours each fortnight at Contact Centre 1. Provision was made for periods of four hours on two occasions, for Easter Sunday 2010 and for J’s birthday, with such time to be supervised by the Father. There was also provision for telephone communication each Monday, Wednesday and Friday.
The interim Orders also provided for the Mother to provide copies of weekly drug screens via the Alcohol, Tobacco and Other Drugs Service at Clinic 1 and the Orders also provided for psychiatric assessment of the Mother, and in particular, an assessment of her capacity to have unsupervised time with J.
The interim Orders of 11 March 2010 made by consent nominated Dr V as the psychiatrist to perform the investigations and reports referred to in the Orders. In the result, further Orders were made by consent on 13 August 2010 for Dr W to examine and report upon the Mother, and the earlier Orders concerning Dr V were discharged by consent.
On 16 December 2010, the Federal Magistrates Court made an Order transferring these proceedings to the Family Court of Australia and thereafter, Orders and directions were made to facilitate the trial of these proceedings in this Court on 15 and 16 August 2011. Subsequent to the transfer of the proceedings to this Court, the Father filed an Amended Response on 19 April 2011, seeking an Order:
“That the Applicant Father be permitted to relocate the child, [J] (born [in] July 2004) to live at [City 1], New Zealand.”
It seems the catalyst for that change in the Father’s position was the decision of his mother, (“the Paternal Grandmother”), to return to her homeland in New Zealand.
No other specific Orders as to time or communication or other parenting orders were specified in that Amended Response. However, for the purposes of trial, the Father provided proposed Orders which will be discussed further below.
Thus, the fundamental and competing proposals raised by the parties for trial were, for the Mother’s part, that her time and communication with J should be expanded beyond supervised time, whereas on the part of the Father, there was the introduction of his proposal that he and J be permitted to relocate to live in City 1, New Zealand.
Brief Background Facts
The Father was born in 1966, and thus, as at trial, was forty-five years of age. The Mother was born in 1967, and was aged forty-four years at trial.
The parties met and commenced a relationship in 1986. The Mother deposes to it being a “on again-off again” relationship. They differ as to the date when they commenced cohabitation. The Mother asserts that the parties commenced living together from 2002, whereas the Father deposes that cohabitation commenced in September 2004. There is no forensic need for me to determine when cohabitation actually commenced.
As already noted, J was born in July 2004. The parties married on the Gold Coast in September 2004 and both parties agree that they finally separated in December 2007.
Central to the issues in this case is the Mother’s extensive history of drug use and dependency and her psychological health issues, which are dealt with in further detail below. Suffice to note here, that whatever be the true period of the parties’ cohabitation, it is clear that it was interrupted by a number of admissions the Mother had to clinics to undergo treatment for her drug addiction.
Following the parties’ separation in December 2007, J has remained living with the Father and being financially supported by him and by, in particular, her Paternal Grandmother, who has also played a significant part in J’s care.
Conversely, since separation, the time the Mother has spent with J has been limited, both in terms of time and the setting, namely supervision, and there have been some periods when the Mother has had little or no time with J.
Mother’s History
The sources of evidence concerning the Mother’s psychiatric history and use of drugs emanating from the Mother herself include:
·The Mother’s affidavit evidence in these proceedings;
·Medical records of the Mother subpoenaed in these proceedings recording the substance of the Mother’s presenting complaints from time to time;
·History provided by the Mother to Mr P, the Family Consultant;
·History provided by the Mother to Dr W, the single expert psychiatrist.
At the outset, I note that Mr P made the following observations of the Mother at paragraph 17 of his report:
“…she is a poor historian and I felt the extent of her memory recall difficulties are quite remarkable. [The mother] recognises her memory difficulties and told me she attributes them to her past illicit drug use, although she noted more recent incidents (head injury and illness) that she thinks might have affected her memory as well. [The Mother’s] information processing skills were notably slow.”
Having seen and heard the Mother give oral evidence in the proceedings before me, I accept Mr P’s assessment of her in this respect as described.
Taken from the Mother’s affidavit filed 27 May 2011, the Mother deposes that in approximately 1994, she commenced using heroin and, “…from that time, became addicted to the drug.” The Mother further deposes to the fact that in order to pay for her drug addiction, she commenced working as a prostitute in Town 1 and began living at a brothel. I note that in 1994, the Mother turned twenty-seven years of age. In that early period, the Mother deposes that she received convictions for drug possession and prostitution offences.
Taken from paragraphs 5 and 6 of the Mother’s affidavit referred to, it seems that after this first descent into drug addiction, the Mother sought her own mother’s assistance in order to “detox” over a three week period. The Mother says that she successfully detoxed and commenced working in her family’s business.
The Mother deposes that in 1999, her own mother suffered a nervous breakdown and had a number of attempts at committing suicide. The Mother found her mother in the process of an attempt at suicide, following which the Mother’s mother spent three weeks in the Mental Health Unit at Hospital 1. At this time, that is, at the time of her own mother’s suicide attempt, the Mother deposes that she “relapsed” and “used for approximately two months” before she commenced the methadone program.
The Mother deposes (paragraph [14]) that in September 2004, her own mother suffered a major heart attack and died. The Mother deposes:
“[14] Her death hit me extremely hard. I had been very close to her and had cared for her in the years following her breakdown. The pressure of looking after a premature baby and my mother’s death took an immense toll on my health, and I was unable to cope. I had a total breakdown.
[15] As a result, I relapsed and used heroin in late 2004. I used heroin every day for the next three (3) months. I hid my use from [the Father]. I would pick up the heroin each day before returning home, and it was there that I would inject it. I continued to function on a daily basis.”
I note that in the period referred to J was less than six (6) months old. The Mother deposes that after the three month period of heroin use, the Father took her to Clinic 2 where she, “…detoxed over a two and a half week period.” After that period of detoxification, the Mother took “Subutex” for a twelve month period.
The Mother says that in late 2005, her relationship with the Father became difficult in that they would argue and, she says, the Father would verbally abuse her and “put me down”. In 2007, by her account, the Mother was diagnosed with Major Depression and she again relapsed, using heroin and speed. J turned three (3) years of age in July 2007.
Again, on her own account, on 12 December 2007, the Mother was taken by the Father to Clinic 3 to undertake a detoxification program. By her own account the Mother spent seven days there and a further three and a half weeks at Clinic 2.
Paragraph 37 of the Mother’s affidavit filed 27 May 2011 contains the following:
“I do not deny that I have had a history of drug abuse. I became an intravenous drug user from an early age and I have become addicted. I have had admissions to [Clinic 2] for drug rehabilitation in 2000, 2003, 2005 and 2007/2008. The last admission was just prior to separation…”
Thus the findings I make on the Mother’s affidavit evidence are:
a)Commencing from about 1994, or when the Mother was approximately in her mid-twenties, the Mother has been addicted to heroin;
b)The Mother has undertaken many attempts to “detox” and permanently free herself of her addiction to drugs, including heroin and amphetamines, including in or about 1994/5; 1999/2000; 2003; 2005 and 2007; including formal programs such as those conducted by Clinic 2;
c)As is evident from the above, the Mother has repeatedly relapsed into drug use despite the interventions referred to;
d)In 2007, the Mother was diagnosed with Major Depression, and she again relapsed, using heroin and speed. The Mother also deposes in her affidavit filed 29 December 2009, and I accept, that in 2007 she was diagnosed as “Bi-polar”.
There is evidence before me, which I accept, which establishes that there have been periods when it may have appeared that the Mother may have conquered her addiction to drugs or the adverse consequences of her psychiatric health only for the Mother to find herself again subject to the consequences of either or both. For example, the Mother’s affidavit filed 29 December 2009, sworn by her on 18 December 2009, contains the following:
“My Recovery
25. I have now been clean for two (2) years. I have undergone random UT’s at the request of [the Father], all of which have been clear of illicit substances.
26. My recovery is ongoing.
27. I have completed numerous courses over the last two (2) years, including the Lifeline [parenting course] as well as ATODS [relapse prevention] program. Annexed hereto and marked EH3 are a copy of certificates pertaining to those courses.
28. I attend upon my psychiatrist, [Dr L], each fortnight, and will continue to do so indefinitely. Annexed hereto and marked EH4 is a copy of correspondence from [Dr L]. [Dr L] has also agreed to prepare a detailed report on my treatment and diagnosis.
29. In 2007, I was diagnosed as being Bi-polar. I am under the care of [Dr L], and see him each fortnight. It has taken a considerable amount of time, however my current medication has stabilised my moods considerably. I have been prescribed Cymbata 30mg for my Bi-polar and will continue to take it as prescribed. Apart from medication for my blood pressure, this is the only medication I now take.
30. My primary focus is to be much more involved in [J’s] life.”
The clinical notes of Dr L, dated 10 December 2009, record that the Mother had come off Subutex but was still taking Duloxetine and Seroquel and that her Obsessive Compulsive Disorder had worsened with increased checking, counting, washing hands and repetitive thoughts. On 23 December 2009, Dr L stated that when Seroquel was decreased, the Mother had trouble sleeping and was irritable during the day, so he increased her Seroquel back to 900mg at night. In February 2010, Dr L noted that the Mother’s sleep was not much better, and that she felt negative about the court case, her moods were flat, she had self-destructive impulses and wanted to use heroin again. He stated that she had no goals in life and spent her days smoking and thinking. Dr L referred the Mother to hospital and suggested that she get back on Suboxone. A letter from Dr L on 22 February 2010 to the psychiatric team at Hospital 1 states that the Mother has been having suicidal ideations which had been worsening. He asked for an assessment and an admission.
The Mother attempted suicide in March 2010. The discharge summary from Hospital 1 showed that the Mother was admitted after an overdose of 25 Duloxetine, 50 Seroquel and 50 Valium tablets and a number of other medications. Her urine drug screen at admission was positive for Benzodiazepines and opiates. In his evidence before me, Dr W expressed the opinion that this was an attempt at suicide and I accept that opinion.
Thus, within about three months of deposing to the matters referred to above, the Mother found herself in the position described.
The Mother’s case before me was essentially that Dr L has been her treating psychiatrist for about the last fifteen years. To the extent that this would suggest that the Mother has regularly consulted Dr L throughout the last fifteen years, Dr L’s records, which were admitted into evidence before me (Exhibits F2 and F3), indicate otherwise. A letter from Dr L dated 10 March 2008 is in the following terms:
“This is to confirm that [the mother] has returned to therapy and treatment after an absence of six years…”
The records of Dr L confirm that the Mother has been diagnosed with Bi-polar Disorder, Polysubstance Abuse Disorder and Obsessive Compulsive Disorder. They reflect the history that, from time to time, the Mother has had suicidal ideations and the Mother has made suicide attempts.
As already noted, Dr W was appointed as the single expert to provide a psychiatric assessment and report on the Mother. Before dealing with the content of Dr W’s report in more detail, there is a matter that I address arising out of submissions made by Mr Linklater-Steel of Counsel on behalf of the Mother at the conclusion of the trial before me.
In the “Opinion” section of his report, Dr W records, in two separate paragraphs under that heading, to the effect that historically, the Mother has engaged in “suicide attempts” (plural). In the second paragraph, under the heading “Opinion”, Dr W records:
“[The Mother] has a lengthy psychiatric history with substance abuse, mood disorders, anxiety and suicide attempts…”
(emphasis added)
In the third paragraph under that heading, Dr W records:
“Given [the Mother’s] unstable relationship history, use of drugs, alcohol and gambling, employment in prostitution, suicide attempts…”
(emphasis added)
When Mr Selfridge of Counsel for the Father was making submissions as to the Mother having made multiple attempts at suicide, some debate ensued when Mr Linklater-Steel took objection or exception on the basis of a submission by him that the evidence establishes that March 2010 is the one and only occasion upon which the Mother had ever attempted suicide. That submission was made notwithstanding that Dr W had been called to give evidence before me, and Mr Linklater-Steel did not put to Dr W that his references to multiple suicide attempts were in error.
That presented the Court with something of a dilemma in that Dr W’s overall conclusions may have been open to doubt if the factual foundations for those conclusions were not established (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305). However, Mr Linklater-Steel’s submission in this respect lacked accuracy. There is evidence establishing that the Mother attempted suicide other than in March 2010, and that evidence is supplied by the Mother herself in the history she supplied to Dr W. The history he obtained from the Mother, as recorded in his report, includes the following:
“She denied feeling suicidal however, but when she had been younger, she had had overdoses of heroin and varying other prescribed medication. She stated that she had had a five week admission to the [Hospital 1] Psychiatric Unit when she was younger, but her last suicide attempt was at the age of twenty-seven.”
(emphasis added)
Whilst it may well be that Dr W reasonably inferred that the Mother’s own history of “overdoses” referred to above were suicide attempts, the Mother herself acknowledged making her “last” suicide attempt (i.e. before March 2010) at the age of 27.
I note in passing that the Family Consultant, Mr P, also refers in his report to multiple suicide attempts and had Mr Linklater-Steel’s submission been accurate, that would likewise have cast doubt for that reason over the opinions of Mr P. Based on the Mother’s own history I find that the Mother has attempted suicide on more than one occasion.
Evidence of Dr W Re: Mother’s History
Dr W, psychiatrist, as the single expert appointed for the purpose, interviewed the Mother on 3 November 2010 and reviewed the material set out in his report dated 7 March 2011, which is attached to his affidavit filed 14 April 2011 in these proceedings.
Whilst the Mother sought to advance a case to the effect that she has not used “illicit” substances since the end of 2007, and she told Dr W the same thing, she also told Dr W that in relation to her admission earlier referred to in March 2010, she “can’t remember” if she was using heroin and/or speed at that time. Also, Dr W provides evidence from his review of the medical records for Clinic 4 to the effect that urine drug screens from April to June 2008 all show benzodiazepines and opiates present. Dr W also notes that the discharge summary from Hospital 1 from March 2010 discloses that the Mother’s urine drug screen at admission was positive for benzodiazepines and opiates. I accept Dr W’s evidence and find that the Mother’s version that she has not used illicit drugs since the end of 2007 is unreliable.
Dr W assessed the Mother to be “vague” and to be a poor historian. I accept Dr W’s evidence in this respect which obviously presents difficulties for the Mother in convincing the Court as to her version of facts or events where they conflict with those of the Father or other evidence.
It appears that since the Mother’s admission to hospital in March 2010, urine drug screens taken have all been negative for opioids, and only positive for her prescribed benzodiazepines (Valium).
It seems to me that Dr W has undertaken a careful review of relevant material including subpoenaed clinical notes of the Mother’s treating psychiatrist, Dr L; urine drug screening results for the Mother from the Clinic 1 Alcohol, Tobacco and Other Drugs Service as well as undertaking a careful interview of the Mother. There is no expert evidence before me which competes with the views expressed by Dr W. Dr W was cross-examined before me.
I accept the opinions expressed by Dr W in his report as follows:
“This 43 year old woman has used and abused both illicit and prescribed substances for the last 20 years. During that period she has had periods of abstinence interspersed with periods of heavy daily use of intravenous heroin and speed. She has worked in prostitution to support her habit. She has been on varying treatment programs including methadone, Subutex and Suboxone which she takes for approximately a year. When she ceases these programs she usually relapses into opioid abuse fairly rapidly. From the collateral history she appears to have ceased the Subutex program in December 2009 and was testing positive for opioids when she was admitted following a serious overdose in March 2010. She is currently on the Suboxone program and has not tested positive for opioids, as far as I can tell, in the last year since her overdose.
[The Mother] has a lengthy psychiatric history with substance abuse, mood disorders, anxiety and suicide attempts. She has been trialled on a variety of anti depressant and antipsychotic medication over the years to little avail. When seen in November 2010 she was on a small, obviously sub-therapeutic, dose of the antidepressant Clomipramine (50mg). She remained significantly depressed with a full hand of Neuro-vegetative symptoms with this diagnosis. She also presented with significant features of Obsessive Compulsive Disorder.
Given [the Mother’s] unstable relationship history, use of drugs, alcohol and gambling, employment in prostitution, suicide attempts and alleged unstable affect and aggression this suggest personality disorder traits in keeping with a diagnosis of Borderline Personality Disorder. This is a far more likely explanation for her alleged mood swings and unstable behaviour than the postulated Bipolar Affective Disorder given that there is no convincing history of sustained elevated moods in the absence of illicit substance use.
[The Mother] has applied to have increasing unsupervised contact with her six year old daughter [J]. There are a number of significant concerns about this taking place. Firstly she has a long standing Substance Abuse/Dependence Disorder. Whilst this is currently in early remission this has only been made possible because she is on an Opioid treatment program through ATODS at [Clinic 1]. Her history is littered with episodes when she has ceased her multiple attempts at Opioid dependence programs only to have come unstuck months later and started to use again. If [the Mother] is to be allowed unsupervised access with her daughter it must be under the strict condition that she remain on the Suboxone program under the auspices of the [Clinic 1] ATODS and that she demonstrates her abstinence with, at least, monthly random clear urine drug screens. Her case managers at ATODS need to be given written permission to inform [the Father] of his lawyers of her non compliance with the program or positive urine drug screens. If she stops the program or tests positive all unsupervised access should cease.
The other main concern is [the Mother’s] mental state. She has both a Major Depressive Disorder and, most likely, a Borderline Personality Disorder. When reviewed in November 2010 [the Mother] was significantly depressed and was being treated with a sub-therapeutic dose of antidepressant medication. Hopefully this situation will have changed in the last four months and her treating Psychiatrist will have increased her medication into the therapeutic range to the point that [the Mother] has the opportunity to be euthymic. Given her past history of significant life threatening overdoses, including one in March 2010, I would be reluctant to support unsupervised access between [the Mother] and her daughter should she remain significantly depressed. She should only be allowed unsupervised access with her daughter when her depression has resolved, she is continuing to see her psychiatrist on a regular (at least monthly) basis and is compliant with his or her treatment. Dr L or any future psychiatrist should also be given written permission to contact [the Father] or his lawyers should [the Mother] become either significantly depressed or noncompliant with psychiatric treatment. If either of these situations should occur than (sic) her unsupervised contact with [J] should cease immediately.
If the above conditions have been met than (sic) it would be reasonable to attempt to re-establish the relationship between [the Mother] and her daughter [J]. I would suggest that this could commence with half day access with the hand overs occurring at the Contact Centre that they have become familiar with. After a number of successful half day weekly access sessions this could expand to a day a week and then both days on a weekend every second fortnight. If these progress smoothly and [the Mother] continues to meet the above Psychiatric conditions then it would be reasonable to look at overnight access towards the end of the year.”
I accept the validity of Dr W’s opinions as being soundly based factually which reflect the well-reasoned views of an expert psychiatrist. Dr W did not alter his opinions in cross-examination. Those opinions must therefore be given close consideration when dealing with the particular statutory considerations I must apply in determining J’s best interests.
Evidence of Mr P, Family Consultant Re: Mother’s History
Mr P’s curriculum vitae discloses that he attained a Bachelor of Arts degree with a double major in psychology in 1997, as well as a Graduate Bachelor of Social Work in 1980. Prior to commencing employment with the Family Court of Australia in 2008 as a Family Consultant, Mr P has a twenty year history in employment, working extensively as a psychologist.
For the purpose of his report dated 3 May 2011, attached to his affidavit filed on 5 May 2011, Mr P interviewed the Mother and at paragraph 18 of his report, summarised the Mother’s history as follows:
“18. [The Mother] was not at all evasive or defensive about her personal and social history. As she said “it is all there for everyone to see.” [The Mother] has a long psychiatric history which includes hospital admissions, suicidal ideation and attempts, and a varied but complex constellation of diagnoses. She has been, for many years now, under the care of a treating psychiatrist. She also presents with a history of illicit substance use that dates back over twenty years. By her own admission, the extent of her drug use (Heroin and Amphetamines) has been at times, frequent and very heavy. Her drug use has had direct, negative ramifications for her social, physical and emotional life. [the Mother], to her credit, has on many occasions over the past twenty years, sought treatment for her problematic drug use, but sadly her history also illustrates a strong pattern of relapsing.”
The Mother reported to Mr P that in July 2010 she was arrested for shoplifting and also stealing from a friend. The Mother told Mr P that she has no recollection of either incident. She reported to him experiencing sudden and unpredictable blackouts, which she attributed to her long-term drug use.
I interpolate here that the evidence establishes that the Mother was convicted on … September 2010 in the local Magistrates Court with four offences of unauthorised dealing with shop goods on … August 2010 and on … October 2010, she was convicted in the local Magistrates Court of two counts of stealing on … and … August 2010 respectively. The evidence before me is that the stealing offences relate to the Mother making use of a friend’s credit card and withdrawing funds on that credit card for her own use.
In her evidence before me, the Mother was vague about the circumstances in which these offences occurred, and as with Mr P, referred to problems with her “blackouts” in relating anything about these events.
In canvassing in interview with the Mother J’s reactions to the Mother, Mr P records the following in paragraph 25 of his report:
“Regarding the suggestion that [J’s] reactions to her might be as a consequence of [J’s] actual experiences with her, [the Mother] said, “It could very well be but she was only very little when all that occurred. I hope she hasn’t seen things that I did and that are not appropriate but I don’t remember. I mean, God forbid, maybe I did do something to her.””
Further, at paragraph 26, Mr P records:
“26. I asked [the Mother] if she can recall specific incidents which she thinks might have caused [J] to feel worried. She told me she has thought about this but admits she cannot remember most of her life when she was using drugs. She stated, “I know she did see me using (injecting perhaps heroin). I thought she was in bed and I think she saw too much but I can’t actually say. She saw me cry a lot and being physically ill after using and she saw the arguments between her father and me and I remember hitting her hard on the bottom twice.””
(emphasis added)
Whilst the above passages include portions that the Mother denied in cross-examination as having been relayed by her, I accept Mr P’s evidence that the Mother did say to him the things he has recorded in his report and that where direct speech is quoted in his report, it accurately records what the Mother said to Mr P. I find that Mr P’s summary, recorded at paragraph 18 and referred to above, accurately reflects the Mother’s history and its consequences and I find that the Mother’s statements referred to and recorded by Mr P are accurately recorded.
Father’s Evidence re Mother’s Drug Abuse and Mental Health Issues
Given the nature of the Mother’s substance abuse disorder and her mental health issues; her own admissions to the effect that she cannot remember most of her life when she was using drugs; her admissions that the extent of her drugs use has been at times, frequent and very heavy; and my assessment of the Father as a credible witness; I accept the Father’s evidence as to the following effects upon the Mother of her drug use and/or mental health problems:
a)That the Mother has suffered from mood swings which at times manifested themselves in very aggressive and even violent behaviour or in the inability to think and reason rationally without a capacity to make decisions or exercise judgment in her own interests;
b)That at times the Mother has not been able to care for herself;
c)That when using heroin, the Mother’s ability to function shuts down such that she is not able to look after herself, let alone J;
d)That at times the Mother has been completely unable to care for herself; to eat properly; to care for her personal appearance; to care for J and to be unable to make decisions and exercise clear judgment;
e)That, when using heroin, the Mother has been prone to aggressive behaviour, both verbally and physically towards both J and the Father.
Proposals
At the outset of the trial, the Mother sought an adjournment of the trial for six months. The basis of the Mother’s application and my reasons for refusing it are contained in ex tempore reasons I delivered at the outset of the trial.
It was the Mother’s proposal at the conclusion of the trial, by reference to a proposal the Court put before the parties which I will refer to, that the Court ought not make final parenting orders, but ought make interim orders which did not include provision for J relocating such that the matter be reviewed prior to determining final parenting orders. In essence, the Mother sought the opportunity to pursue the steps identified in Dr W’s conclusions in his report, allied with a progression to unsupervised and expanded time with J, so as to better establish her relationship with J prior to the determination of final parenting orders.
For his part, the Father at the outset of the trial provided, by his Counsel, a detailed set of Orders in two parts. Part A addressed “if the Father is permitted to relocate to City 1, New Zealand” and Part B addressed “if the Father is not permitted to relocate to City 1, New Zealand”. For ease of reference, the Father’s proposed Orders are admitted and marked Exhibit F10. Exhibit F11 is a subsequent and altered version of the Father’s proposed Orders. I will not here repeat the detailed Orders which run for some pages, but suffice to note that on either scenario, the Father proposed Orders in the form of “conditions” consistent with the opinions of Dr W’s conclusions set out in his report, and if those conditions were satisfied, an expansion of the Mother’s time with J to be on an unsupervised basis. If not, and the Father is permitted to relocate to New Zealand, time would be spent at a contact centre in New Zealand on the Father’s proposal, with other forms of communication such as Skype detailed in the proposed Orders. In general terms, subject to the conditions referred to being satisfied, the Father proposed funding the Mother’s travel to New Zealand for six weekend visits per year, with the prospect of additional time or extensions of those periods being provided for on the basis that the Mother funded her own travel and accommodation. The “Part B” Orders included provision for the Mother satisfying the “conditions” set out in the proposal, as earlier referred to, for a period of twelve months, with the Mother then being at liberty to obtain a further report from Dr W or another psychiatrist (confirming that the child would be exposed to no harm or risk in spending unsupervised time with the Mother and that any further time the child spends with the Mother be in accordance with the psychiatrist’s recommendations in that report). Significantly more detail is contained in the Father’s prospective proposals as set out in Exhibits F10 and F11.
In circumstances where the Court had the report of Dr W as a single expert on the relevant psychiatric issues, and no evidence was being called in the trial to advance opinions different to those of Dr W and the Court had the benefit of the report of Mr P as the Family Consultant, the Court formulated a document loosely described as a “proposal” which is Exhibit C1. At an early stage of the trial, the parties were each provided with Exhibit C1 with the explanation that by no means could it be assumed that the Court had formulated any concluded view about any of the issues in the case, but undertook this process simply so as to ensure that any alternate proposals that might be considered by the Court were notified well in advance to the parties in the interests of affording them natural justice.
In the result, as earlier referred to, the Mother’s position at the conclusion of the trial was essentially to express agreement with Exhibit C1, save and except for the fundamental qualification that the Mother sought that only interim Orders be made in such terms, with the determination of final parenting Orders to be made prior to any final decision about whether or not permission would be given for J to be relocated to reside in New Zealand.
For his part, Exhibit F12 is the Father’s proposal by way of final Orders by reference to Exhibit C1, but with three amendments to C1.
As will be understood, the essence of C1 was to contemplate a period to allow for the Mother’s relationship with J to develop (discussed further below), assuming that possibility ought be allowed to happen, and thereby delaying any relocation of J to New Zealand for such a period.
It will also be understood that the Father sought that in any event, and the Mother did not oppose in any event, an Order that J would continue living with the Father. As to parental responsibility, neither party advanced a case other than that there should be an Order for equal shared parental responsibility.
Statutory Framework
Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
“65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.”
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
“(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
“(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(a)days that fall on weekends and holidays; and
(b)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(a)the child’s daily routine; and
(b)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):
“[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.”
At [13], the High Court held:
“[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
Further, of particular significance to a case such as this, where there is the prospect of international relocation of a child, I note that at paragraph [15] of the judgment, the High Court held:
“[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At paragraph 140 of their reasons, the Full Court said:
“…however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.”
At paragraphs 334 and 335, the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:
“Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations, and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).”
After considering the requirements in section 65DAA, at paragraph 374 of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
“As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.”
At paragraph 375 of their reasons, the Full Court said:
“Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.”
The Full Court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.
In Cowley & Mendoza (2010) 43 Fam LR 436; [2010] Fam CA 597, Murphy J, in a parenting case involving the mother’s proposed relocation to live in Brazil with the children undertook an analysis of authorities emanating from the Full Court of this Court as to the preferred legislative pathway that ought be followed by a trial judge and reviewed those authorities in light of the decision of the High Court in MRR v GR (2010) 240 CLR 461. At paragraph 41 of the judgment, Murphy J set out an approach to the legislative pathway. I do not, in setting out below a somewhat different approach, purport to conclude either expressly or by inference that the approach identified in that case by Murphy J is not legitimate. For the reasons set out below I propose to undertake consideration of the s 60CC considerations before dealing with s 61DA.
In Edelman & Ziu (No 2) [2010] FamCAFC 236 the Full Court reviewed the decision of a Federal Magistrate in a case involving a proposed relocation by a mother with the child two hours away to B from the father’s place of residence at L. The father had sought that the child remain living at L and if the mother also lived there that there be equal shared care and if the mother moved to B, for the child to live with him. Some grounds of appeal agitated that the Federal Magistrate had failed to follow the legislative pathways under s 65DAA.
The approach taken by the Federal Magistrate (in reasons delivered prior to the High Court’s decision in MRR v GR) was to:
(a)set out each parties’ respective proposals;
(b)set out his conclusions in relation to the primary considerations (s 60CC(2)) including findings that it was important that the child had a meaningful relationship with both parents and that there was no need to protect the child from being exposed to the risk of family violence, abuse or neglect;
(c)then considered and weighed each of the relevant additional considerations (s 60CC(3));
(d)then considered s 61DA (the presumption of equal shared parental responsibility). The Federal Magistrate found the presumption applied (there was no abuse or family violence) and that the presumption was not rebutted on best interests considerations. The Federal Magistrate indicated that he proposed to make an order for equal shared parental responsibility;
(e)then considered s 65DAA and whether to make orders that the child spend equal time or substantial and significant time, with each parent. The Federal Magistrate was not satisfied that the mother would be prepared to live in L and consequently concluded that it was not “practicably possible for a week about arrangement to continue”. The Federal Magistrate found that it was in the child’s best interests to live predominately with the mother. The Federal Magistrate therefore rejected an equal shared parenting time order.
The Full Court found that the Federal Magistrate had adequately explained why he had reached the conclusion that it was in the child’s best interests to live predominately with the mother. The Full Court found that the Federal Magistrate had carefully weighed and balanced each of the s 60CC(2) and (3) considerations. The Full Court was satisfied that the Federal Magistrate (in the words of the High Court) had looked at the reality of the situation and concluded that it was in the child’s best interests to be with the mother and not reasonably practicable for the mother to live in L.
The Full Court concluded (at 40 and 41):
“40. The Federal Magistrate’s discussion on whether substantial and significant time was in the child’s best interests and was reasonably practicable can be found in paragraph 98 of his Honour’s reasons. It is clear that as the travelling distance between the two households was of approximately two hours duration, it was not reasonably practicable to make an order for mid-week time and the Federal Magistrate, given the child’s relatively young age, he should spend two weekends out of three with the father.
41. We take this opportunity to note that the Federal Magistrate’s reasons were delivered prior to the High Court decision in MRR v GR. Having had the benefit of the High Court’s explanation of the requirements of s 65DAA it may be noted that the structure of his Honour’s reasons in respect of this section could, in hindsight, have been set out with greater clarity if drafted with the benefit of the High Court’s reasons for judgments.”
In the event, the appeal was dismissed.
Approach to Parenting Cases
Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a) Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b) Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
I note that by the express terms of s 65DAA that section is only “triggered” if a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child. In circumstances where s 61 of the Act provides that each of the parents has parental responsibility for a child, which has effect subject to any order of the court, the question arises that if no order for equal shared parental responsibility is sought or made whether s 65DAA is rendered unnecessary to consider. That question was considered by the Full Court in Marvel & Marvel (2010) 43 Fam LR 348 at paragraphs [88] to [104] and at paragraph [104] the Full Court said:
“As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue. It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of ss 61C, 61D, 61DA, 65D(1) and 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA…)
So far as I am aware, no subsequent Full Court has considered the matter further but having regard to Marvel & Marvel (supra) it seems to me that a trial judge should take the approach of making an order for equal shared parental responsibility when the presumption in s 61DAA applies.
In outlining the approach identified in paragraph 87 above I am mindful that in Goode & Goode (2006) FLC 93-286 the Full Court observed at paragraph [56]:
“In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).”(my emphasis)
Read literally and in isolation it might be thought that on one interpretation the Full Court was directing or guiding a trial judge to approach the findings to be made in a parenting case with the s 61DA presumption applying at the outset before any other statutory imperative has been fulfilled.
In my view, read in context, Goode (supra) does not dictate that approach for a number of reasons.
First, s 60CA is expressed:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
(emphasis added)
Section 60CC sets the considerations the Court must consider in making the determination of a child’s best interests.
In contrast, ss 61DA(1) and (3) commence with “when making a parenting order…” and “when the court is making an interim order…” respectively. That difference would seem to reflect some distinction between, first, determining best interests and, second, making orders. It is at the making of orders stage that s 61DA applies.
It is unsurprising that, in those circumstances, the Family Consultant assessed that, “J’s primary identity and sense of belonging is strongly linked with living with her father.” (paragraph 46 of Family Report). I accept that assessment and there can be no doubt that J enjoys a meaningful relationship with the Father, being one which is important, significant and valuable to J.
Likewise, with respect to J’s Paternal Grandmother, the evidence before me establishes that J enjoys a secure, stable and loving relationship with her maternal grandmother who, on the evidence, has played a very significant role in J’s life, particularly in circumstances where the Mother has had the difficulties referred to. At paragraph 7 of his affidavit filed 25 November 2010, the Father deposes:
“From the day [J] was born, I have been her primary homemaker and care provider. [The Mother] was incapable of looking after [J]. For the entirety of [J’s] 6 ½ years, my mother, [the Paternal Grandmother], has fulfilled the role of surrogate mother for [J]. My mother would spend time with [J] at least five days each week in that either my mother would come to my home to visit [J] and me or we would visit her.”
Whilst there is some challenge to the extent to which the Mother played some caring role with J prior to the parties’ separation, there is no challenge to the essential contention that, since the parties’ separation, the Paternal Grandmother has played a very significant role in the manner described, and I accept that this is so. Moreover, the Paternal Grandmother, who is a person of comfortable financial means, has displayed a very significant commitment in terms of her financial support of the Father’s household and of J. I accept the Paternal Grandmother’s evidence that for a number of years she has provided financially for the Father and J; she wholly finances the house in which they live; she meets their weekly financial needs; and she pays all of J’s school fees and related expenses (paragraph 8 of the Paternal Grandmother’s affidavit filed 25 November 2010).
It is perhaps unfortunate that the Family Consultant did not formally interview the Paternal Grandmother, nor explore in greater detail the nature of J’s relationship with her Paternal Grandmother. Nevertheless, at paragraphs 29 and 30 of his report, Mr P does record observations regarding J’s interactions with her Paternal Grandmother, including some in the presence of the Mother, and it can be seen from those observations that J obviously responds well to her Paternal Grandmother, as would be expected given what has already been noted.
I do note that when J was interviewed by the Family Consultant, she said, “I live with my dad and my nanna. Well actually my nanna lives in her house but I see her lots.” It would seem that from that spontaneous comment, J identifies her Paternal Grandmother as integral to her living circumstances with the Father.
The Paternal Grandmother provided an affidavit which was filed on 6 April 2011 and she was not required for cross-examination. Her unchallenged evidence is that she shares a close and loving relationship with J, and she deposes, “Although I live separately from them, I see them most days when they visit me at my unit or I visit them at their home.” The Paternal Grandmother’s affidavit filed 25 November 2010 provides detail of the extent of her involvement in J’s life and the nature of her relationship with J and I accept the Paternal Grandmother’s unchallenged evidence.
In his affidavit filed 25 November 2010, the Father deposes, “My mother is as much a part of J’s life as I am,” (paragraph 8) and where at paragraph 12 the Father lists his reasons for wishing to relocate J to City 1, New Zealand, includes as the first reason:
“My mother is such an integral part of the lives of both [J] and me. It would be devastating to both of us to lose her day to day involvement in our lives.”
I accept that the potential loss to J of the day to day involvement of the Paternal Grandmother in her life that has been J’s experience would represent a significant change for J in her circumstances if the Paternal Grandmother relocates to New Zealand, as is her plan, and J remains here.
It is a sad feature of this case that J’s relationship with the Mother stands in stark contrast to her relationships with the Father and the Paternal Grandmother as described.
The Mother herself acknowledges significant difficulties in her relationship with J. For example, when interviewed by Mr P, the Mother apparently recognised and accepted that, “[J] is currently resistant to spending time with her and talking with her on the telephone.” (paragraph 22). The Mother related that J is aloof towards her at the Contact Centre, and that J has told the staff that she does not wish to see her mother. The Mother confirmed that when she telephones J, she is often reluctant to talk to her mother and will often walk away from the phone or hand it to the Father. Mr P records at paragraph 23 of his report:
“[The Mother] told me she is unsure why [J] is behaving this way towards her. She said, “She ([J]) doesn’t really understand what’s going on. I’m no longer there living with her and her father. We have two hours every fortnight and she doesn’t know how to react. She won’t let me get close to her. She won’t let me know her. When I call, she says she doesn’t want to talk to me. I don’t understand why she pushes me away.””
At paragraph 28 of his report, Mr P records:
“I asked [the Mother] what she believes would need to occur in order for [J] to have a meaningful relationship with her. She replied, “Well [the Father] needs to live here then firstly, I need to sort out why [J] feels the way she does about me. Until this happens, there will be no progress. She needs to be asked so she can get on with her life.” I invited the mother to imagine that she has already asked [J] this question. I asked her what she thinks would then need to happen. She said, “Well I hope we could rectify things, but if she’s permanently scared of me, that’s it. It’s finished.””
The suggestion that J is scared of her mother as referred to by the Mother in the paragraph just referred to is repeated in the Family Report at paragraph 42, being the interaction between J and her mother observed by Mr P. Aside from the fact that J refers to the Mother hurting her, “…when I was a baby,” there is a reference by J, “…and you dropped me off at the scary man’s house and you left me there and I hid under the table.” The Father also gave oral evidence about a recurring nightmare which J experiences with the same subject matter, as reported by J, that is, that she dreams about being dropped off at the “scary man’s” house by the Mother and having to hide under a table. Given J’s age at the time of the parties’ separation, there has to be some doubt as to whether J is recounting an actual experience or whether the nightmare as described has transformed into “truth” for J. The other alternative is that such a nightmare may be a symptom of J feeling some fear towards the Mother, and it can be seen in paragraph 42 that J declined the proposition of spending time with the Mother, involving them going, “…somewhere and do something.” Aside from that, it is plain on Mr P’s assessment, that the Mother has limited insight into the way she ought interact with J, and that theme is explored to a significant extent in the Family Report. Likewise, it is clear from the Family Report that J can become frustrated with her Mother, including with telephone contact when it seems, at least to J, that the Mother obstinately maintains views or facts which J knows to be untrue (see paragraph 34 of Family Report).
Mr P described J as being easy to engage and presenting as a confident, social child with a pleasant manner about her. Consistent with the Mother’s own observations about J’s reticence in her relationship with the Mother, each of the Father and the Paternal Grandmother have provided particulars, which I accept, as to J demonstrating through her behaviour some very real problems for J in dealing with her experiences of the Mother. Quite apart from the Father and the Paternal Grandmother, there is in the records of Contact Centre 1 notes (Exhibit F4) a similar theme. Whilst these reflect occasions when J appears to be happy to engage in play activities with the Mother during contact, there is also a clear boundary evident in J’s consistent refusals to expand the interaction with the Mother and times when it appears she is reluctant to spend time with the Mother.
A concerning piece of evidence in this context is the letter from J’s school, S School, dated 14 September last year and addressed to the Father, which contained a recommendation that J see a psychologist, “for support for her social emotional development and anxiety management.” This letter appears as “Exhibit JH3” to the affidavit of the Father filed 6 April 2011. The letter reads in part:
“Of greatest concern are the increasingly frequent signs of her anxiety (twigling and sucking hair, red faced, struggling to get words out even in routine situations). [J] prefers to share with adults, and frequently comments to her peers, “I don’t have a mother” “my mum has problems”. These comments elicit questions from peers that [J] struggles to respond to. …”
Mr P assessed that J’s attachment with her mother, “hangs in the balance” (paragraph 46) and at paragraph 50, Mr P opines:
“I do not believe that [J’s] current relationship with her mother could be classified as meaningful. It is not a relationship that consistently brings [J] pleasure, excitement, anticipation or fulfilment. This does not mean that it is not possible for this status to change, and neither does it suggest that [J] does not desire a more satisfying and meaningful relationship with her mother. Indeed, I believe she does. I do, however, also believe that [J] does not know, and neither should she be expected to know, how to manage and cope with her relationship with her mother so that it does become a more enjoyable one for her. Like most children of her age, [J] has formed a sense of her mother and the connection she has with her mother (attachment) on the basis of her actual experiences of the mother (both relational and emotional).”
Taking into account Mr P’s assessment, including his discussion about the interactions he observed between the Mother and J, I find that J does not have a secure attachment to the Mother, nor could J’s relationship with the Mother be described as “meaningful” within the meaning described in Sigley’s case under the “present relationship approach”.
The question of whether there is a prospect of a meaningful relationship between J and the Mother on “the prospective approach” referred to in Sigley lies at the heart of this matter and will be discussed further after I have undertaken consideration of the balance of the statutory imperatives I am obliged to consider.
I find that J has a meaningful relationship with the Father and is primarily attached to the Father. I find that J identifies the Paternal Grandmother as a central figure in her living with the Father and J has a strong attachment to the Paternal Grandmother, and the prospect that the Paternal Grandmother’s day to day involvement in J’s life would end if J is not permitted to relocate to New Zealand, and the Paternal Grandmother pursues her plan to so do, would not be in J’s best interests.
I find that, whilst at seven years of age, J’s expressed views must be approached with some caution given the age-related limits to her maturity and level of understanding, her expressed views (as recorded in Exhibit F4 and referred to by the Mother herself; and also, for example, in paragraph 42 of the Family Report) reflect considerable caution and uncertainty on the part of J about her mother and her relationship with the Mother.
I find that the Mother’s history of substance abuse problems interacting with serious mental health problems have produced the cyclical dynamic where deterioration in one aspect of the Mother’s functioning has caused a relapse in the other. This cycle has resulted, and continues to result, in deleterious effects on the relationship between the Mother and J, and produces the need to protect J from potential physical and psychological harm from being subjected to, or exposed to, abuse and family violence.
I accept Mr P’s assessment that J desires a meaningful relationship with the Mother, and that it is likely that if J has the right type of relational experiences with her mother that are consistent and predictable, J will internalise a healthier and more secure representation of her mother than that which she currently has. However, taking into account Dr W’s evidence, which I accept, this means the Mother must free herself of the chronic depression she presented with to Dr W and must remain diligent with her compliance with her current program at Clinic 1 ATODS. As Mr P observes, and I accept, long term supervision of time is contra-indicated from a developmental point of view, and there will be reached a “trigger point” as referred to by Mr P in his oral evidence, when continued supervised time, as currently occurs, will probably do more harm than good in terms of J establishing any meaningful relationship with the Mother.
I accept Mr P’s assessment that if J were to immediately relocate to live in New Zealand, there is a significantly lower likelihood of achieving progress in the relationship between J and the Mother. It is in J’s best interests, and in the interests of her healthy development, for her to achieve a meaningful relationship with the Mother, if that is possible.
It is convenient to deal with the following s 60CC considerations together (to the extent they have not already been dealt with by necessary implication in the above):
a)The willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between J and the other parent (s 60CC(3)(c);
b)The attitude to J, and to the responsibilities of parenthood, demonstrated by each of J’s parents (s 60CC(3)(i));
c)The extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent, including in particular since separation (s 60CC(4) and (4A);
d)The maturity, sex, lifestyle and background of J and of her parents (s 60CC(3)(g));
e)Any family violence involving J or a member of J’s family (s 60CC(3)(j)).
At paragraph 47 of his report, Mr P observed of the Mother:
“She presents as having poor impulse control, dysregulated affect, a dominance of self-oriented thinking and an inclination towards attributing blame and responsibility onto others.”
Having seen and observed the Mother give evidence, I accept Mr P’s observations of her.
The Mother was keen to present a case before me that J’s reluctance towards having a relationship with the Mother was driven by active steps by the Father and the Paternal Grandmother to alienate J from the Mother. It was, to say the least, curious that in her efforts to discredit the Father, the Mother gave evidence to the effect that the Father had inappropriately touched J in the genital area when she was an infant. Whilst the Mother was clear that she was not making an allegation against the Father of sexual abuse, it did the Mother little credit, when she was cross-examined about that issue, and the circumstances the Mother herself referred to, for her to attempt to make anything of such an alleged event.
Mr P tested in interviews with the Mother the theory of alienation. In this context, paragraph 25 of his report is a critical piece of evidence and it records the following:
“Regarding the suggestion that [J] might somehow be influenced, the Mother said, “I don’t want to say but I think it might be the case.” Interestingly, when asked to elaborate, [the Mother] appeared to convey a sense that she probably does not truly believe [J] is being influenced by anyone. She said, “I think [the Father] and his mother have tried, in a humane and caring way, to explain to [J] that her mother was sick, but she can’t understand that. I feel that she’s detached herself from me.” Regarding the suggestion that [J’s] reactions to her might be as a consequence of [J’s] actual experiences with her, [the Mother] said, “It could very well be but she was only very little when all that occurred. I hope she hasn’t seen things that I did and that are not appropriate but I don’t remember. I mean, God forbid, maybe I did do something to her.””
In cross-examination, the Mother rejected the accuracy of paragraph 25, but I do not accept her evidence and I accept that Mr P has accurately recorded what transpired in the interview.
Whilst, as already noted, Mr P did not undertake a formal interview of the Paternal Grandmother, Mr P does record at paragraph 30 of his report the observations and interactions between the Paternal Grandmother, J and the Mother. Those observations are contrary to the proposition of any active alienation being attempted by the Paternal Grandmother.
I note that at paragraph 20 of his report, Mr P records:
“[The Mother] told me she would like to be able to resolve the dispute between her and the father. She said, “I have nothing against [the Father] and the [Paternal Grandmother]. They are only looking out for [J’s] well-being. There is a lot of anger and resentment between us. I wish we could work things out for [J’s] sake.””
I find that there is no substance to the Mother’s case that the Father and/or the Paternal Grandmother have actively sought to alienate J from the Mother. To the contrary, it seems to me that their efforts over the lengthy period since separation to maintain J’s relationship with her Mother against the background of the need to protect J are deserving of credit.
A simple example of the Father’s efforts in this respect relate to Mother’s Day in 2010. Outside the requirements of the then operative Order for time, the Father made arrangements via his legal representatives with the Mother’s legal representatives for the Mother to spend time with J on Mother’s Day in 2010. Through no fault of the Father, that time did not eventuate. In the event, the Mother did not arrive at the scheduled time for J to spend time with her, and no doubt from J’s point of view, she was expecting to see her mother. Not only did the Mother not arrive, but there was a considerable delay before she made any contact with the Father to explain her absence. It is clear enough, from other evidence already referred to, that the Mother’s functioning in the early part of last year was not good and the Mother sought to explain in evidence that it was difficulty with changes in medication which was responsible for her failure to spend time with J on this arranged occasion. Be that as it may, the relevant event shows that the Father has demonstrated over a significant period a commitment to J’s relationship with the Mother, and that the main impediment has always been the Mother’s own level of dysfunction for the reasons already referred to.
It follows, on my findings, that the Father has demonstrated a commendable attitude to J and to the responsibilities of parenthood. He has demonstrated his capacity to provide for J’s needs, and likewise the Paternal Grandmother has demonstrated her capacity, as well as a commitment to provide for J’s needs given that the Father and J have essentially been heavily reliant upon the financial support of the Paternal Grandmother throughout the period since separation.
Conversely, for the reasons already discussed and which do not bear repeating, the Mother has demonstrated a very limited capacity to provide for J or to fulfil responsibilities as a parent.
As to family violence (which is defined in s 4 of the Act), I have already observed that I am satisfied as to the Father’s evidence in this respect. I find that, when under the influence of her drug addiction and/or when demonstrating floridly the symptoms of her mental health issues, the Mother has been prone to conduct amounting to family violence within the meaning of the Act.
The Father sought to advance a case that his financial capacity to provide for J would be enhanced if he (and J) reside in New Zealand. The essence of the Father’s case is that there is little work available to him as a technician in his field locally, and the Father seeks to undertake training to become qualified as a tradesman in his field. The Father’s case was that in Queensland he would be unable to obtain qualification as a tradesman in his field unless he undertook a rigorous program of study, testing and apprenticeship over a period of some four years. He deposes in his affidavit to being able to work in City 1 as a technician in his field and that he can study, train and become qualified as a tradesman in his field in New Zealand within a time frame of 1.5 years compared to four years in Australia. However, cross-examination of the Father demonstrated to my satisfaction that I could not be at all comfortable with the proposition that the Father in fact has better prospects of qualifying as a tradesman in his field sooner in New Zealand than he would in Queensland. On the state of the evidence, including Exhibit M1, about which the Father was cross-examined, I am not persuaded that the Father establishes on the evidence before me any enhanced prospect of qualification or employment in City 1 as compared to his position if he remains here.
s 60CC(3)(e) requires that I consider the practical difficulty and expense of J spending time with, and communicating with, her mother, and whether that difficulty or expense will substantially affect J’s right to maintain personal relations and direct contact with her mother on a regular basis.
As Mr P observed at paragraph 51 of his report, if the current mother-daughter relationship is indicative of, “…as good as it’s going to get,” then, “It could well be argued that this type of bond could be maintained with very little effort from either side.” In other words, in circumstances where the Mother has, for a considerable period, been spending time with J at a contact centre on a supervised basis for two hours per fortnight, it might readily be concluded that even if J is living in New Zealand, it would not be too difficult to formulate arrangements which achieve a similar quantitative amount of time between J and the Mother over the course of a given period.
It seems to me that the only realistic way in which J’s relationship with the Mother is likely to be established and promoted, and for a meaningful relationship to be formed and continued, is if the time between J and her mother moves to being on an unsupervised basis with enhanced opportunity for extended periods leading ultimately to overnight periods. However, the competing considerations already referred to mean that conditions along the lines prescribed by Dr W in the conclusion of his report would have to be fulfilled by the Mother before such a progression could be contemplated in J’s best interests.
Obviously, if those conditions can be fulfilled, there are greater practical difficulties and expenses associated with the Mother spending such time with J in New Zealand than would be the case if J remains living here. Thus, if it could be concluded that there is no realistic prospect of the Mother advancing her position with respect to her mental health issues and substance abuse disorder, there would be little practical difficulty or expense involved in formulating arrangements even if J was living in New Zealand. On the converse side, if there is a prospect of time being expanded along the lines discussed, there are greater practical difficulties and expenses if J is living in New Zealand, although given the Father’s proposals, these are not insurmountable in meeting J’s best interests.
I am required to consider Orders that would be least likely to lead to the institution of further proceedings in relation to J (s 60CC(3)(m)). It is axiomatic that if I accede to the Mother’s request to make only interim Orders at this stage, it is almost inevitable that there will be further proceedings prior to resolution in the form of final parenting Orders. It seems to me that there are a number of factors militating against that approach which are in J’s best interests. First, it is now almost four years since the parties finally separated and further proceedings which would probably involve J in further rounds of interviews ought to be avoided if J’s best interests overall are served by that outcome. Second, it is plain on all the evidence before me that J is well aware of these proceedings and the fact that it is her father’s desire to relocate to New Zealand and, rightly or wrongly, J currently sees her mother as the impediment to that occurring. For example, at paragraph 33 of his report, Mr P records J stating, “Well I like my dad the way he is but I would like to change my mother so that she could be nice and let go (sic) to New Zealand and see […] the cow.” (a cow that apparently belongs to one of her paternal aunties). I am concerned that if the outcome of these proceedings is the making of interim Orders without any end point, then this in and of itself may damage the prospects of J’s relationship with the Mother being improved given J’s apparent awareness.
Balancing the Central “Best Interests” Considerations
It is not in issue that it is in J’s best interests that she live with the Father.
At the heart of this matter is that the need to protect J, via the imposition of supervision of the Mother’s time, over the period now approaching four years since the parties separated, is probably a significant contributor to J not having a meaningful relationship with her mother currently.
The conundrum for the Court is that whilst it can be concluded that it would be in J’s best interests developmentally that she have a meaningful relationship with the Mother if that can be achieved; is giving too much emphasis to that prospect now, some four (4) years after the parties separated, indulging in a triumph of hope over expectation?
As already noted, it is approaching four years since the parties finally separated and still it is the position that J does not have a meaningful relationship with the Mother. There is evidence from the Father, the Paternal Grandmother and even the Mother herself which establishes that J is becoming increasingly resistant to spending time with the Mother. The school recommendation that J have counselling for anxiety related to her perception of the Mother is deeply troubling. I accept Mr P’s assessment that a tipping point will be reached if no better than the current form of time can be contemplated, and when that tipping point is reached, a continuation of the current arrangements is likely to be contrary to J’s best interests and contrary to the prospect of her ever developing a meaningful relationship with the Mother. No change to supervised time can be contemplated in the interests of protecting J, on Dr W’s assessment, which I accept, unless and until the Mother can meet conditions along the lines outlined by Dr W.
Each of the Father, the Mother and the Paternal Grandmother were born in New Zealand. The Paternal Grandmother and the Father have lived in Australia for approximately the last thirty years, albeit that they have apparently visited or stayed in New Zealand sufficiently to maintain relationships with the bulk of their relatives, who reside in New Zealand.
Last year, the Paternal Grandmother, who is seventy years of age, resolved that she would return to live in New Zealand where she has many relatives and friends, on her unchallenged evidence which I accept. She plans to maintain a residence at Gold Coast Suburb 1 and would, “…return to Australia on a fairly regular basis,”, but nevertheless, her departure, given the history referred to would, as the Paternal Grandmother puts it, “…leave a very significant void in both [the Father] and [J’s] lives.” Whilst Skype and other forms of electronic communication, as well as regular visits, would likely maintain J’s relationship with her Paternal Grandmother, it is an important fact in this case that since she was about three years of age (if not before), J has had the input of the Paternal Grandmother as a central nurturing figure in her day to day life. The place of a grandparent has some emphasis in a number of provisions in Part VII of the Act, and in this case, given the role the Paternal Grandmother has played in J’s life to date, I give substantial weight to the change in J’s circumstances that will be produced if J remains living here while the Paternal Grandmother relocates to New Zealand.
Whilst the Mother was born in New Zealand, I was informed from the bar table that the Mother is an Australian citizen, and that as she is currently serving probation, she could not relocate to New Zealand. There is no evidence to suggest that the Mother has renounced her New Zealand citizenship and I take judicial notice of the fact that immigration procedures applied by each of Australia and New Zealand make travel between these countries relatively unrestricted. As to the medium and long term future, it is difficult to see what would preclude the Mother from returning to New Zealand. No evidence was put before me to demonstrate in any convincing way that the Mother would be precluded from returning to the country of her birth. She is not employed here, and receives the modest income of a disability support pension. To Mr P, the Mother described leading, “…a largely isolated and lonely existence. She listed no interests, and described feeling stuck and alone,” (paragraph 19 of the Family Report). On the evidence before me, I do not consider that I can readily dismiss the prospect, if J is living in New Zealand, of the Mother returning to New Zealand in the medium or long term if she overcomes her difficulties, but in the short term, I could not assume the Mother can or will relocate to New Zealand if J is permitted to relocate. Of course, if the Mother does not overcome her difficulties such as to allow expansion of the time she spends with J to be unsupervised and more “normalised”, the “tipping point” referred to by Mr P will be reached (on his oral evidence in much less than eighteen months) and I infer on all the evidence that the point will be reached where J will probably become completely resistant to any relationship with the Mother.
In his oral evidence, Dr W expressed the view that the medical prognosis for the Mother is “guarded” and given the history of the cyclical nature of the Mother’s deterioration in her functioning with respect to either or both of her mental health issues and her substance abuse, it cannot be concluded that it is more likely than not that the Mother will fulfil the conditions described by Dr W, or that she will remain for any consistent period capable of functioning without those difficulties.
Balancing these central competing considerations, I conclude that it is in J’s best interests that in the short to medium term there be the opportunity for J to establish and develop a meaningful relationship with the Mother, but that J’s long term best interests lie in being permitted to live in New Zealand with the Father, including as that scenario does, the close involvement of the Paternal Grandmother in J’s life. J is only seven years of age, and she has much to gain, on my findings, from the participation of the Paternal Grandmother in her life as has been her experience to date.
Resolution and Orders
I propose to make Orders which strike some balance between the Father’s ambition to relocate to New Zealand immediately or as soon as possible against the prospect of the Mother being able to establish a meaningful relationship with J.
It is reasonable, that in that period, the Father and J have the opportunity to make visits to New Zealand and I will incorporate provision for that in the Orders.
The Mother seeks, and the Father did not oppose, the making of an Order for the parents to have equal shared parenting responsibility. I am satisfied that such an Order is in J’s best interests as it enhances the prospect of the mother’s relationship with J being promoted if the Mother is involved in major long term issues concerning J. Whilst the presumption of equal shared parental responsibility addressed in s 61DA of the Act does not apply in this case given my findings of abuse and family violence (s 61DA(2)), because I propose to make an Order for equal shared parental responsibility, s 65DAA applies and requires the Court to consider whether an equal time Order would be in the best interests of J and whether an equal time Order is reasonably practicable, or alternatively, whether a substantial and significant time Order would be in J’s best interests and reasonably practicable.
Given the findings I have made with respect to J’s best interests, I am satisfied that an Order for equal time is neither in J’s best interests nor is it reasonably practicable.
As to substantial and significant time (within the meaning of s 65DAA(3)), I do not consider that it is in J’s best interests for Orders to now be made, even having regard to the long term, for J to spend substantial and significant time with the Mother. In my view, the risks to J’s welfare posed by the Mother’s difficulties render it unreasonable to formulate Orders which can be concluded to be in J’s best interests involving substantial and significant time with the Mother at this stage. If, in the long term, the Mother is able to demonstrate that she has conquered her difficulties, then if she is unable to persuade the Father to agree to some expansion of time beyond overnight weekend time, she may need to bring further proceedings to achieve Orders to that effect.
To the extent that allowing the Father’s proposed relocation of J to occur from 1 August 2012 may appear arbitrary, I have in mind Mr P’s oral evidence concerning the period which Mr P thought to be the outer limit of the Mother being able to establish a meaningful relationship with J. Indeed, on Mr P’s oral evidence, it appeared that Mr P was of the view that if it took anything like a further eighteen months, the “tipping point” to which he referred would be reached well prior to then, and allowing the relocation to occur in August 2012 allows a further ten months from now for the objective to be achieved, if it can be achieved and J will have turned 8 years of age.
In circumstances where the Mother will likely be dependant upon the Father providing the financial means for her to travel to New Zealand in the future, it seems to me to be reasonable to impose a financial bond as a condition of the relocation so as to ensure that at least for some years after the relocation occurs, the time the Mother will spend with J in fact occurs. However, I incorporate a liberty to apply provision in the Orders so that the parties have an opportunity to make further submissions on the amount of the bond, as the imposition of a bond and its amount was not a matter addressed in the hearing before me.
I propose to make an Order pursuant to s 65L(b) of the Act so that Mr P might assist the Mother in interacting with J and dealing with the deficiencies in that interaction that Mr P has identified in his report and evidence.
I also propose to make an Order that will facilitate the Mother in being involved in any counselling of J, as it seems to me that if the counselling is to be directed towards any anxiety J feels about the Mother, then the Mother ought be involved in the counselling process if that is deemed necessary by the relevant counsellor.
I order in accordance with the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 September 2011.
Associate:
Date: 27 September 2011
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