Hinch & Crane
[2022] FedCFamC1F 258
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hinch & Crane [2022] FedCFamC1F 258
File number(s): NCC 912 of 2014 Judgment of: CLEARY J Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – CHILDREN –– Where final parental orders were made by consent in July 2016 – Where previous orders provided for the father to exercise sole parental responsibility and for the child to live with him and spend time with the mother – Where the father and child began living with the paternal grandmother in early 2018 – Where there was tension in the home of the paternal grandmother due to the mental illness and unpredictability of the father – Where the mother seeks sole parental responsibility and for the child to live with her – Where the paternal grandmother joined as a party to the proceedings in March 2020 – Where the paternal grandmother seeks sole parental responsibility and for the child to live with her – Where the father moved away and supports the orders put forward by the paternal grandmother – Where the court child expert and the single expert came to different conclusions about residence and parental responsibility – Where the mother has experienced unstable mental health – Where the mother conceded at trial that she lied to the single expert about when she ceased using drugs – Where the mother and her younger child of another relationship currently lives with the maternal grandmother – Where the Court must consider a real risk of drug relapse if the mother leaves the household of the maternal grandmother and becomes a sole parent of two children with very different developmental needs – Where the subject child is nearly aged eleven and has not lived full time with the mother since he was a pre-schooler – Ordered that the child live with the paternal grandmother and that she have sole parental responsibility with the mother to spend defined time with the child – Ordered that the father is to spend time with the child as agreed between himself and the paternal grandmother with time longer than four hours to be supervised by the paternal grandmother. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 183 Date of hearing: 8-11 March 2022 Place: Newcastle Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: McNeilly Lawyers The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Blank Solicitor for the Second Respondent: Gus Farland Pty Ltd Solicitor Advocate for the Independent Children’s Lawyer: Ms Blackman Solicitor for the Independent Children’s Lawyer: Legal Aid Family Law ORDERS
NCC 912 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRANE
ApplicantAND: MR HINCH
First Respondent
MS B HINCH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.All prior parenting orders made in relation to X born in 2011 (“the child”) are discharged.
Parental Responsibility
2.That the paternal grandmother shall have sole parental responsibility for the child.
3.The paternal grandmother shall take the following steps:
(a)Notify the mother via text message of any long term decision under consideration for the child and invite the mother to provide any views she may have to the paternal grandmother within a stated time frame;
(b)Take into consideration any views expressed by the mother within the time frame, in respect of any such proposed decision;
(c)Promptly notify the mother by text message of the decision made about the issue.
Residence
4.That the child shall live with the paternal grandmother.
Time and Communication with the Mother
5.During NSW school terms, the child shall spend time with the mother as agreed in writing between the paternal grandmother and the mother and if there is no agreement, then time shall occur as follows:
(a)During school terms, no less than every third weekend of each calendar month from 5.00 pm on Friday until 5.00 pm on Sunday (5.00 pm on Monday if it is a long weekend).
6.During school term holidays Term 1 (Autumn), 2 (Winter) and 3 (Spring), the child shall spend time with the mother as agreed in writing between the paternal grandmother and the mother and if there is no agreement, then time shall occur as follows:
(a)During odd numbered years, from 5.00 pm on the last day of the school term until 5.00 pm on the middle Saturday of holidays;
(b)During even numbered years, from 5.00 pm on the middle Saturday of the holidays, until 5.00 pm on the day before the first day of the new school term.
7.During end of year school holidays Term 4 (Summer), the child shall spend time with the mother as agreed in writing between the paternal grandmother and the mother and if there is no agreement, then time shall occur as follows:
(a)In even numbered years commencing in December 2022 from 5.00 pm on the last day of school Term 4 until 5.00 pm on the middle day of the holidays;
(b)In odd numbered years commencing in December 2023 from 5.00 pm on the middle day of the holidays until 5.00 pm on the last day of the holidays;
(c)If any two days fall in the middle of the end of Term 4 (Summer) school holidays and either of those days may be considered as being the middle day, then changeover shall occur on the first of those two days.
8.If the child is not otherwise with the mother pursuant to these orders, additional time will occur on special occasions as agreed between the mother and paternal grandmother in writing, but failing agreement as follows:
(a)For Mother’s Day each year from 5.00 pm on the evening prior to 5.00 pm on the Sunday.
9.The child shall have Facetime communication with the mother as agreed between the paternal grandmother and mother in writing, but failing agreement as follows:
(a)Each Monday and Thursday with the mother to initiate the call between 5.00 pm and 5.30 pm and the paternal grandmother to ensure the child is available to receive the call; and
(b)Notwithstanding any other order, the child be at liberty to contact the mother by Facetime/telephone at any time he wishes to do so.
Changeovers
10.To facilitate the child’s time with the mother, changeover will occur at Handover Location A at the commencement and conclusion of the time.
Time and Communication with the Father
11.The child shall spend time with the father as agreed between the father and paternal grandmother provided that, if the father is to spend longer than four hours with the child on any one day, such time must be supervised by the paternal grandmother.
12.The paternal grandmother is restrained from permitting the father to spend unsupervised time with the child, for more than four hours on any one day.
13.That upon the child attaining the age of 14 years, Orders 11 and 12 are discharged and thereafter the child will spend time with the father as agreed between the father and paternal grandmother, with the requirement for supervision to be at the discretion of the paternal grandmother.
14.If the child is not otherwise with the paternal grandmother pursuant these orders, time with the mother is suspended as follows:
(a)On Father’s Day, only if the father is available to spend time with the child, from 6.00 pm on the Saturday evening prior for the balance of the weekend period.
15.The child shall have Facetime communication with the father as agreed between the paternal grandmother and the father in writing between them.
16.Notwithstanding any other order, the child is at liberty to contact the father by Facetime/telephone at any reasonable time he wishes to do so.
Specific issues
17.The parties are authorised by each other and by these orders to obtain all information relating to the child from the child’s medical practitioners, psychiatrists, psychologists, counsellors, dentists, schools, sporting and extra-curricular activity providers; and
(a)Within 28 days of the date of these orders the paternal grandmother will provide the mother by text message the name and contact details of the medical practitioners, psychologists, counsellors, dentists, for the child and shall keep the mother advised of relevant attendances;
(b)Within three days of the date of the paternal grandmother enrolling the child in any school, sporting or extra-curricular activity the paternal grandmother will provide the mother by text message the name and contact details for the school, sporting or extra-curricular activity provider.
18.The mother may:
(a)Subject to the direction otherwise of the principal of the child’s school, attend all school events which parents are invited to attend;
(b)Attend all sporting and extra-curricular activities in which the child is involved and to which parents are invited to attend.
19.If the child is in hospital:
(a)The father may visit the child as agreed between the paternal grandmother and father in writing; and
(b)The mother may visit the child at all appropriate times.
20.The mother and paternal grandmother will keep each other advised of their residential address, telephone number and email address and will notify the other of any change to these details within 24 hours of such change.
Restraints
21.All parties are restrained by these orders from using physical discipline on the child or allowing any other person to use physical discipline.
22.Each party shall remove the child from the presence of any person appearing to be adversely affected by drugs.
23.The paternal grandmother is restrained for as long as Orders 10 and 11 are operative from allowing the father to live or stay overnight in her home whilst the child is in her care.
24.The father is restrained by these orders from living, and as long as Orders 10 and 11 are operative from staying overnight, in the home of the paternal grandmother whilst the child is in her care pursuant to these orders.
25.That, otherwise than is provided for in these orders, for the purposes of the parties communicating with each other in relation to matters regarding the child, the parties shall communicate as follows:
(a)Between the paternal grandmother and the father as agreed between them; and
(b)Between the paternal grandmother and the mother as agreed between them, but failing agreement as follows:
(i)By email or text, in case of non-urgent matters; and
(ii)By telephone, in case of an urgent matter, or when the matter requires an immediate response; and
(iii)Between the mother and father as agreed between them, provided it is in writing; and
(iv)Email and text shall be deemed to be communication in writing.
26.The parties shall use their best efforts to communicate with each other in a civil and polite manner.
27.That each of the parties is restrained from criticising or speaking badly of the other parties or members of the other parties’ family, including any parents, partners or the child’s half-siblings, in the presence or hearing of the child; and
(a)The restraint includes any written communication, including but not limited to electronic means of communication.
28.That the parties shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parties or any of the parties’ partner or family, either to or in the presence of the child.
29.That, other than informing the child of these orders, the parties each be restrained from discussing these proceedings with the child, or within his presence or within his hearing, and ensures, as far as possible, that no other person discusses these proceedings with the child, or with in his presence or with in his hearing.
30.That, other than these orders, the parties each be restrained from showing the child any of the affidavits, judgments or interim orders, applications or reports prepared for the purpose of these proceedings, and each be restrained from showing the child any material annexed or exhibited to such documents.
Independent Children’s Lawyer
31.The ICL shall provide a copy of these orders to the principal of B School.
32.That the ICL, together with the Child Court Expert if available, at a time mutually convenient to each of them and the paternal grandmother, shall explain these orders to the child and answer any relevant questions which he may have.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hinch & Crane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
These are competing applications for parenting orders concerning one child, X, a boy aged almost eleven years at date of trial. The relevant parties are the mother and the paternal grandmother.
The parents met in 2009 and began living together in the home of the paternal grandmother in 2010. The mother was 15 years of age and the father was aged 20.
The subject child was born in the following year, in early 2011.
In late 2011, when the parties separated, the child was approximately seven months old. The child lived mainly with the mother for the next two to three years. He also spent time with the father who was in turn assisted and supported by the paternal grandmother in caring for the child.
The child, aged three years, moved to live with the father in mid-2014 pursuant to interim orders of the Court. Final orders for the child to live with the father were made by consent of the parents in July 2016.
In 2017 the paternal grandmother stepped in and put an end to an arrangement of week about care of the child, being trialled by the parents at that time. She did so on the basis that the child had, in her opinion, become despondent, unwell and thin. Her sister, a medical professional, urged her to take protective action for the child.
In early 2018 the father and child began living with the paternal grandmother in her home, full time. The current proceedings were initiated by the mother in August 2018.
In March 2020 the paternal grandmother applied successfully to be joined as a party to the proceedings.
THE PARTIES
The Applicant Mother
The mother is aged 27 years and is not in paid employment. In the ten years since separation of the parents the mother had at least two, but perhaps more, short term relationships at least one of which was characterised by violence. Since late 2019/early 2020 the mother has lived with her own mother in Town C. The mother’s step-father, Mr D, was also a member of the household until his death in mid-2021.
In 2020 the mother gave birth to a child Y who is now 18 months old and a full time member of the household. The father of Y is reported by the mother to be unwilling to be involved in the life of the child.
The First Respondent Father
The father is aged 32 years. The father suffers from severe episodic depression.
Since 26 January 2022 he has lived in Town E, where he works in the agricultural industry.
Until the father moved to live and work in Town E, he lived in the home of the paternal grandmother.
Subsequent to the birth of the subject child, the father had a relationship with Ms F. One child, Z, aged four years was born of that relationship. She lives with her mother and spent regular time with the father until his move to Town E.
The Second Respondent Paternal Grandmother
The paternal grandmother is aged 59 years. She lives in Town G and works in the education sector.
The paternal grandmother had her own experience of family violence during her marriage and separated from the paternal grandfather.
The subject child has had contact with the paternal grandmother throughout his life and has lived full time with her, and until recently with the father, for more than four years.
The paternal grandmother has stayed on good terms with the mother, although she is acutely conscious that the mother wishes to assume full parental responsibility for the child and have him move to live with her.
THE TRIAL
The trial was allocated for four days commencing 8 March 2022.
The mother and second respondent paternal grandmother were represented by solicitor and counsel. The Independent Children’s Lawyer (“ICL”) had briefed a solicitor advocate.
The father attended by telephone from Town E. He was not legally represented. The father did not file a trial affidavit and preferred not to fully participate in the course of the trial. He attended on the fourth day to make short submissions.
The trial concluded within the allocated time.
THE APPLICATIONS
The Applicant Mother
By her Minute of Order[1] the mother confirmed that she proposed the orders in her Amended Application filed 22 July 2021:
·Sole parental responsibility for herself and that the child reside with her;
·That during school terms the child spend each alternate weekend with the paternal grandmother from after school Friday until 5.00 pm on Sunday;
·That the child spend half school holiday time with the paternal grandmother;
·That time and communication between the father and the child occur at times when the child is in the paternal grandmother’s care and that such time and communication be supervised by the paternal grandmother;
·Specific issues and restraints.
[1] Exhibit 2.
The First Respondent Father
On the first day of trial the father expressed his general support for the orders put forward by his mother (the paternal grandmother) and no longer pressed for the orders in his Response.
By his Response filed 5 August 2020 the father had proposed the following orders:
·That he and the paternal grandmother have equal shared paternal responsibility for the child and for the child to live with the father;
·That the child would spend time with the paternal grandmother as agreed between the father and the paternal grandmother;
·That the mother spend time with the child for the first weekend per month from after school Friday until return to school Monday;
·That for a period of three years the mother’s time with the child be conditional on confirmation on a medical report once per year from the mother’s treating psychologist on her mental health and compliance with treatment, and in the event of non-compliance the mother’s time with the child be reduced to the first Saturday of each month from 9.00 am to 5.00 pm until evidence is provided that she has complied;
·Specific issues.
The Second Respondent Paternal Grandmother
By her Amended Response filed 14 July 2021 the paternal grandmother proposed:
·Sole parental responsibility for herself and that the child reside with her;
·That during school terms the child spend each third weekend with the mother from 5.00 pm Friday until 5.00 pm on Sunday;
·That the child spend half school holiday time with the mother;
·Specific issues and restraints.
The Independent Children’s Lawyer
At the commencement of trial the ICL put forward a Minute of Order proposing:
·That the paternal grandmother have sole parental responsibility for the child on condition that she provide information to, and seek out and consider the views of, the mother;
·That the child live with the paternal grandmother;
·That the child spend time with the father as agreed between himself and the paternal grandmother with the paternal grandmother to be present during that time;
·That the child spend time with the mother as agreed or otherwise (in summary) on alternate weekends, half school holidays and other special times;
·Restraints on conduct and other specific issues.
Prior to submissions the ICL put forward a further Minute of Order[2] substantially as initially proposed with some modifications to supervision of the father and also a reduction of weekend time for the mother from alternate weekends to one weekend per month commencing in 2024 (first year of secondary school).
[2] Exhibit 5.
THE ISSUES
Should the child remain living with the paternal grandmother or should he move to live with the mother?
Should the party with residence have sole parental responsibility or should it be shared?
What arrangements for time and communication with the child with each of the parties should be put in place?
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Crane
(a)Amended Initiating Application filed 22/07/2021;
(b)Affidavit of the mother filed 28/01/2022;
(c)Affidavit of Ms M, the maternal grandmother, filed 28/01/2022;
The Respondent Father – Mr Hinch
(d)No trial documents;
The Second Respondent Paternal Grandmother – Ms B Hinch
(e)Amended Response to Initiating Application filed 14/07/2021;
(f)Affidavit of the paternal grandmother filed 28/01/2022;
(g)Notice of Risk filed 2/08/2020;
Reports
(h)Single Expert Report by Dr J dated 28/09/2015;
(i)Single Expert Report by Dr J dated 25/11/2021;
(j)Children and Parents Issues Assessment (“CAPIA”) by Ms K dated 13/06/2014;
(k)Family Report by Ms K dated 16/10/2020;
(l)Supplementary Family Report by Ms K dated 05/02/2021.
ORAL EVIDENCE
The Mother – Ms Crane
The mother was softly spoken. She appeared and sounded much younger than her chronological age of 27 years. She has experienced unstable mental health probably as the result of childhood trauma and abuse. In the opinion of her treating doctor “she has been much more stable in terms of her mental health for the past three or four years.”
The Single Expert Dr J concluded in her first report that the “psycho social function of the mother has significantly improved since 2015”.
The mother conceded without distress that her relationship with Mr L, the father of her younger child Y, had been short. She denied that the relationship had been abusive but offered no real explanation for why they had separated when she was pregnant, nor why he had “chosen not to be part of her [Y’s] life.”
The mother denied that the paternal grandmother had tried to talk to her, between 2014 and 2018, about statements the subject child had made suggestive of sexual abuse, “No, she never has”. The paternal grandmother had set out the attempted conversations in her affidavit. The mother conceded counsel’s description of that evidence as “explicit as to time, place and words” but denied any recollection of events. When counsel pressed her by asking “Did [Ms B Hinch] [the paternal grandmother] make all that up?” The mother simply responded “Yes”.
Inconsistently with that blanket denial the mother gave oral evidence of having questioned the child as to whether anyone had touched him inappropriately or asked him to touch them. She said she had done so in 2015 when he was four and again last year (2021).
It is difficult to understand why the mother would have questioned the child if she, herself, had no concerns and no one else had raised those matters with her.
Overall the mother was inclined both to readily agree and also to wholly deny, propositions put to her. One explanation is that she wanted to say the right things, but was unsure what would be considered “right”.
The Maternal Grandmother – Ms M
The maternal grandmother has been, and continues to be, willing to provide a home for the mother and one or both of her children.
The Court accepts that the maternal grandmother has agreed for the mother to remain in the home for a further twelve months or longer if she wishes. She acknowledged that the mother would like to live independently but cannot afford to do so at present with no income other than Centrelink benefits.
The maternal grandmother presented as a loving, supportive, parent and grandparent. She was however defensive about the mother and her childhood. In particular, she denied having been aware at the time of sexual abuse of the mother as a child by a family member although she now accepts from the mother that there was abuse which went on for nine years. She was clear to say that she picked up nothing in the mother’s behaviour “no inkling”, and had seen nothing of the conduct of the family member in the home.
This was inconsistent with the evidence of the mother that the maternal grandmother had known and on occasions seen the sexual abuse had become “mad and angry” and told the mother “That was only for Mummy and Daddy”.
This conflicting evidence suggests that the maternal grandmother is being self-protective of her parenting. It is of some concern with respect to the subject child being a member of the household.
The Paternal Grandmother – Ms B Hinch
The paternal grandmother presented as reasonable and thoughtful.
She had recently taken the decision to direct the father to leave her home and create an independent life for himself. She did so having read the recommendations of the Single Expert.
The Court infers that she had seen herself as assisting the father with his severe depression by continuing to provide a home for him. The report highlighted the impact on the child of exposure to the father’s mental illness, disappointment over the unemotional unavailability of the father and the erratic nature of engagement when it did occur.
It is a matter of some significance that the paternal grandmother gave priority to the child over the father in that way.
The paternal grandmother readily conceded that she was satisfied with the attempts of the mother “to address her issues”. This was a reference to drug taking and overall stability. Nevertheless, she was unsure whether the child would be safe if he lived full time with the mother nor that his social needs would be a priority for her.
The Court infers that the paternal grandmother considers that the mother can competently meet the child’s day to day needs but does not readily identify possible risk of harm for the child. Further, that the mother is unlikely to alert concerned family members and relevant authorities if she did. In particular the paternal grandmother stated “they [the mother and maternal grandmother] would not recognise sexual abuse risks”.
The paternal grandmother had been worried about the possibility of the child being abused by the maternal step-grandfather, who has since died. Of almost equal concern was the alleged unwillingness of the mother to engage with what she had to say.
THE EXPERTS
Over a seven year period, on five separate occasions, the parents, the child and later the paternal grandmother were variously interviewed, tested and observed by either Ms K a Court Child Expert (formerly known as a Family Consultant) with qualifications in social work and health sciences (drug and alcohol) or by Dr J a Single Expert clinical forensic psychologist.
The experts came to different conclusions about residence and parental responsibility. At trial each had read the reports of the other and held to their respective positions. Both were cross-examined.
Ms K recommended that the child move to live with his mother.
Dr J recommended that the child remain living with the paternal grandmother.
The Court concluded that the key issue for Dr J was maintaining stability for the child. For Ms K it was the benefit to the child of being raised by a parent (his mother) given that her drug use had apparently ceased and her mental health improved.
In those circumstances the evidence of both experts requires careful consideration.
(1) A Children and Parents Issues Assessment (“CAPIA”) was conducted by Ms K in mid 2014 when the subject child was aged three years.
The child had been living mainly with the mother for the two and a half years since separation and spending time with the father.
Interim orders had been made by consent, three weeks prior, providing for the child to live with the mother and spend daytime periods of time with the father. The parties agreed on shared parental responsibility but each parent wanted final orders for residence.
Ms K noted the following accounts:[3]
…according to both parents [X] [the child] is exhibiting violent and abusive behaviour.
Both parents agree that [X] has had little stability in his life and has been exposed to family violence which may well have been exacerbated by the parents’ mental health issues and illicit substance abuse and dependency.
[3] CAPIA dated 13/06/2014, para 16.
Each parent provided an account to Ms K of childhood trauma and impaired mental health for themself. Each asserted having regular counselling:
The mother reported that she was diagnosed with [medical condition N] by her general practitioner [with the expert noting that it was quite possible that this diagnosis is incorrect]. According to the mother after being assessed by her psychologist, in all likelihood she has [medical condition O] and post-traumatic stress disorder relating to significant childhood trauma.”[4]
The father reported that as a child he moved to [a number of] different homes and was exposed to family violence from a father who suffered [medical condition P] and was dependent on [a controlled substance].[5]
He [the father] reported a diagnosis of depression and anxiety.[6]
[4] CAPIA dated 13/06/2014, para 13.
[5] CAPIA dated 13/06/2014, para 19.
[6] CAPIA dated 13/06/2014, para 35.
At the time of assessment the child was living with the mother and maternal grandparents. The mother was looking for a property to move into with her then partner (Mr Q) and the child.
The observation by Ms K of the child was that although the mother reported that the child “suffers from separation anxiety and becomes distressed when she leaves him”[7] this did not, in her view, appear to be the case. The child was not distressed to leave the mother to spend time with the father, nor when the mother left the child to use the toilet.
[7] CAPIA dated 13/06/2014, para 21.
Ms K noted that the child was calm, happy and responsive to affection from the father.
The mother acknowledged current drug use (cannabis) and amphetamine use in the year prior. The father reported having ceased illicit drug use. The expert saw a confirmatory negative drug screen.
There was at this assessment, no objective information about the mental and physical health of the parties and the child. This is always the case for such initial court based meetings. It was all self-reporting.
Notably the mother was assessed by Ms K as having:[8]
… difficulty understanding that her drug use and risk taking-behaviour are significant issues that place [X] at risk of harm. She had not considered that safety is a priority, rather than her identity as a mother, and having the mindset that all children should be with their mothers.
[8] CAPIA dated 13/06/2014, para 39.
Ms K considered that the mother had not been able to cope with caring for the child. She recommended that certain material from named third parties would be helpful, as would a Single Expert Report (psychiatry).[9]
[9] CAPIA dated 13/06/2014, paras 59 & 60.
Orders made for change of residence - 17/07/2014
Shortly after the release of the CAPIA, further interim orders were determined by this Court for the child to move to live with the father and spend defined time with the mother.
The recommendation of Ms K for the appointment of a Single Expert was taken up with Legal Aid. Many months passed before the appointment could be made and the report finalised.
During that time the mother, by voluntary admission, became an inpatient at a psychiatric facility in Town R. She reported daily use of cannabis. She had difficulty sleeping, eating and leaving the home. She attributed her illness and distress to the child moving out of her care.
(2) A report of Single Expert appointed by the Court was delivered by Dr J in September 2015. The child was aged four years.
For this report the applicants were the parents only.
The evaluation in summary of the parents was as follows:[10]
Both have a history of depression and substance abuse, but the father’s current psychosocial adjustment is deemed better than that of the mother, who is psychologically immature and maladjusted. She is at high risk of increasing AOD dependence and/or psychiatric crisis under stress.
[10] Single Expert Report of Dr J dated 28 September 2015, page 4.
The recommendation was that the child should live with the father and he have sole parental responsibility.
Dr J considered that the child should see his mother regularly but transitions should be minimised, two transitions per fortnight being optimal. That was defined as two days/one overnight per fortnight, provided there was satisfaction about risk factors in the home of the mother.
Emphasis was placed on the parents not coming together at handovers which the expert considered contributed to the child being aggressive on return from time with his mother
Orders - 26/07/2016
The parties entered into consent orders on a final basis in mid-2016. The orders were consistent with earlier interim orders that the child live with the father.
(3) A Family Report was provided to the Court by Ms K in October 2020. The child was aged nine years.
The report was ordered after the paternal grandmother was joined as a party to the proceedings in March 2020.
The child was living with his father and paternal grandmother and spending alternate weekends with the mother pursuant to the 2016 orders.
The father was unable to participate. Ms K reported the explanation she was given, that the father was suffering injuries after an accident. He was unable to travel.
Ms K also noted that the paternal grandmother had expressed concerns to her doctor, as she did to the expert during interview, about the behaviour of the father. He was drinking at the level of 12 drinks three days per week, expressing suicidal ideation, low mood and was sleeping on the floor.[11] There was other material which suggested aggressive and erratic behaviour by the father. He had recently been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).
[11] Family Report by Ms K dated 16/10/2020, para 62.
The paternal grandmother expressed her concern that the child may have been sexually abused by the maternal step-grandfather. She stated her belief that the mother had not addressed the trauma of her own childhood experiences and that she and her family “… minimise sexual assault, which then places [X] at risk.”[12] The mother has given evidence that she had experienced prolonged sexual assault as a child by a family member.
[12] Family Report by Ms K dated 16/10/2020, para 76.
The mother told Ms K [in 2020] that she had ceased drug use “three years ago.”[13]
[13] Family Report by Ms K dated 16/10/2020, para 102.
In her oral evidence in this trial the mother conceded that she had lied about that to Ms K. She stated that she had in fact continued to use cannabis, (and MDMA as a one-off), until New Years Eve 2019. That was about nine months before the report interviews.
The Court attributes weight to this evidence in two ways. The mother had learnt after the CAPIA in 2014 that drug use was considered to be a safety risk for children which could influence where a child lived. She had thought that young children always lived with their mothers.
Probably as a result she subsequently lied about drug use in order to avoid doing harm to her residence application.
The second aspect is that the mother gave up drug use throughout her pregnancy with the subject child and the subsequent months of breastfeeding.
Her younger child Y was probably conceived in late 2019. She was a few weeks old when these interviews were conducted. It is likely that the mother again gave up her drug use for that specific reason.
From that perspective the mother has been a consistent user of cannabis since her very early teens with abstinence on two occasions relating to the pregnancy and birth of her two children.
The mother asserts that she is no longer assisted by cannabis which she had previously used. “I thought it was helping me. I felt less anxious and depressed. All my problems disappeared when I used it.”
One thing that the mother could have chosen to do was provide a clean drug screen prior to trial. She did not.
The paternal grandmother confirmed that she had seen no signs of current drug use by the mother. I accept her evidence about that.
It is a positive development for the child if the mother has ceased drug use especially if association with other users has ceased.
The Court must nevertheless consider that when the mother leaves her mother’s household and becomes independent, as she wishes to do, there is a real risk of relapse. She will then be a sole parent of two children with very different developmental needs. The mother has not had the subject child living with her since he was a pre-schooler.
Quite properly Ms K in her evidence at trial agreed that relapse was a possibility for all drug users and that stress could lead to relapse.
The risk cannot be overlooked. The child has had several disruptions to his life and care arrangements. A change of residence as a single factor could undo the benefit of stability for the past five to seven years. A change of residence followed by the mother relapsing into drug use would be disastrous for the child.
Ms K recommended a change of residence to the mother if she was able to provide evidence to show that she was able to adequately care for X.
(4) A Supplementary Family Report was provided to the Court by Ms K in March 2021. The child was aged nine years.
A further report was undertaken by Ms K for observation of the child with the father. The father had overlooked the appointment. He arrived late and only with the assistance of the paternal grandmother.
The position of the father had changed. He was open to the child moving to live with the mother if the Court found that such a change would be in the child’s best interests.
The paternal grandmother considered that the child should continue to live with the father in her household.
Ms K expressed great concern about the father’s “current mental health and his presentation at interview.”[14] He was observed to be anxious and extremely depressed. He was assessed as genuine and heartfelt in his responses and expression of views. At one point the father explained that “his only safe place was sleep”.[15]
[14] Supplementary Family Report by Ms K dated 5/03/2021, para 21.
[15] Supplementary Family Report by Ms K dated 5/03/2021, para 26.
The father clearly appreciated that he was not capable of caring for the child and was “… hopeful that she [the mother] had matured enough to understand the need to protect [X] from further harm.”[16]
[16] Supplementary Family Report by Ms K dated 5/03/2021, para 32.
The child himself described arguments at home with everyone yelling at each other. He wanted to leave the home and live with his mother, although he also wanted to stay at his school.
Ms K firmly recommended a change of residence.
In terms of the respective presentations of the two parents that was certainly the safer course at that time.
Soon after the release of the supplementary report the matter was allocated trial dates.
In June 2021 an application was made, by the paternal grandmother to rely on the 2015 report of Dr J and to adduce evidence from her at trial.
That application was dismissed.
A subsequent application appointing Dr J as a Single expert to prepare a further report was granted.
(5) A Single Expert Report was delivered by Dr J in December 2021. The child was aged 10 years.
The recommendation was as follows:[17]
On the basis of aggregated information, it is my concluded opinion that, in a single parent-headed household, the paternal grandmother is better equipped than either parent to care for [X] consistently and to provide with a stable home base. She does not display the history of mental health and substance abuse problems which have plagued both parents. She has certainly taken more consistent action to honour all [X’s] family ties and to communicate amiably than either parent/ [X] is on the horns of a dilemma. He does not want to upset his mother by expressing a preference for residential stability, yet at the same time he clearly strongly values his long-established friendships and connections with the school and community. Moving schools is always disruptive for children. No need to change schools or residence in terms of intolerable risk of harm in the grandmother’s home emerged during this assessment. However, the current residential situation may not serve [X’s] best interests if he is exposed to his father’s bad moods, or high conflict between his father and grandmother.
[17] Single Expert Report by Dr J dated 25/11/2021, para 97.
There were qualifications to the recommendation. First, that although the least disruptive option for the child would be to “maintain the residential status quo”[18] if there was objective evidence of violence by the father towards the child or the paternal grandmother, and the father was still living in the home, then the child should live with the mother.
[18] Single Expert Report by Dr J dated 25/11/2021, para 99.
If the Court was not satisfied that the father posed no unacceptable risk of harm to the child then the father should find alternate accommodation “so that X can remain in the sole care of his grandmother and visit each parent according to his wishes.”[19]
[19] Single Expert Report by Dr J dated 25/11/2021, para 100.
The Court interprets the recommendations and qualifications as a clear preference by Dr J for the child to remain living with the paternal grandmother in her home, she being “the most reliable and responsible caregiver.” This would maintain stability of home, school and relationships with both parents.
In the event that the evidence supported a finding that the child had already been harmed or safety of the child was put at risk by his father’s conduct then the child would need to move.
The paternal grandmother made a decision that the needs of the father must give way to the needs of the child. She asked her son to leave and he complied.
The objective evidence did not establish harm to the child although he certainly did not enjoy being exposed to adult argument.
Ms K identified that the father was no longer able to meet the child’s needs and recommended that the child go to live with his mother, no doubt taking into account the wishes the child expressed in 2020 to that end.
The Court concludes that despite the mother’s overall improvement in function, the decision about residence must not be based exclusively on that improvement. The future in terms of new partners for the mother, her unproven ability to cope alone with two children in future, her tendency to have the child put his own interests aside in order to take responsibility for her feelings[20] must be balanced against the steady meeting of his needs in predictable fashion by the paternal grandmother.
[20] Single Expert Report by Dr J dated 25/11/2021, para 95.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if the child has been exposed or subjected to family violence. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The mother was 15 years old when she began living with the father in the home of the paternal grandmother. When the subject child was born the mother was 16 years. To an extent the paternal grandmother had parental responsibility for the mother as well as the child. As a result there is an imbalance of power at least from the perspective of the mother between the mother and the paternal grandmother. The mother has found it difficult to communicate with the paternal grandmother “parent to parent”.
The paternal grandmother has a demonstrated capacity to make decisions for the child and to communicate with the mother about those decisions.
The mother wishes to have sole responsibility in order to make her own decisions about the child. In her oral evidence the mother agreed that if she did have sole parental responsibility there would be no consultation with the paternal grandmother.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
There is a benefit to the child having a meaningful relationship with each parent.
The father has suffered with untreated or inadequately treated mental illness in recent years. The father has been unable to focus on the child, or spend time with him in enjoyable activities. The exposure of the child to the father being in the household but sleeping for prolonged periods or being lethargic has left the child disappointed and confused.
The child very much enjoys the activities he does with his father and craves more time with him.
If the father is able to improve his mental health and return to being emotionally accessible to the child, there will be a benefit.
The conduit for such a return will be the paternal grandmother. For the sake of the child she has directed the father to leave her home and live independently. The Court accepts that she will monitor and supervise time in future until the child is old enough and emotionally resilient enough to spend time with his father alone.
The mother was too young to manage by herself the care of the child as an infant. She did not appreciate that cannabis use made her unavailable to the child and put his safety at risk, even if she did not use the drug in his presence. In recent years, at least the last two, the mother has ceased or greatly decreased drug use.
The child has a joyful relationship with his mother. He is described by the paternal grandmother as joking and laughing with the mother during telephone calls. The Court concludes that the paternal grandmother is pleased for the child to have that relationship.
The mother has had a few short lived relationships since separating from the father. The mother did not appear to appreciate that each new relationship and its breakdown brought some stress and uncertainty into the life of the child.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
At present both the household of the mother and of the paternal grandmother are safe for the child.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child has expressed changing views over the years.
As a young child he had complaints to make about the conduct towards him of third parties, including other children, involved with the mother. He did not live with the mother full time after age three to four years.
In 2020 he expressed a strong view to Ms K that he wanted to live with his mother. There is no reason to doubt that he meant what he said. The context was of growing tension at home due to the father’s mental illness and unpredictability. The greater willingness of the mother to negotiate “screen time” with him was also undoubtedly a factor.
Most recently X, in responding to the enquiry of the Single Expert, hesitantly conceded that “the adults” had discussed their ideas with him about how to keep him safe and well.[21] He was able to predict that if the judge made a decision that they [the adults] did not like:[22]
Mum will get upset if the judge says I have to stay with Nan. She might carry on. I will feel bad for her. He thought it would take about a month for his mother to cheer up. It would not last forever.
… [Dad] wouldn’t be as bad as Mum. He’d be upset but he could keep it to himself. He’s confident and a good person.
Nan wouldn’t make a fuss.
[21] Single Expert Report by Dr J dated 25/11/2021, para 69.
[22] Ibid.
These comments appear to be both insightful and affectionate. It is apparent that the child understands “the adults” and can appreciate their different personalities.
Ultimately X spontaneously expressed an opinion about his residence although he was not asked directly; “Either way I’m OK. Either way it’s going to be hard”. He concluded that the decision “was ‘too big’ for him and the judge should decide”.[23]
[23] Single Expert Report by Dr J dated 25/11/2021, para 71.
This opinion reveals maturity and good sense. He did not want to be responsible for hurting or upsetting anyone and since he felt safe with all the adults was content for an external power to decide his fate.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
If there was a change of residence, inevitably the child would have to change schools. The evidence of the mother is that she would enrol him at the school she herself attended, School S. There was no information before the Court about the school. Presuming that the school would be suitable and provide the child with a good education there is some possibility that fees will become a problem for the mother even with the financial support from the school she is anticipating. Another possibility is that after 12 months, or some longer period living with the maternal grandmother, the mother will move to independent accommodation which may or may not prompt a further change of school for the child. His current school provides the child with friendship identity and stability. It would be a big loss for him to leave.
Undoubtedly the child would see the paternal grandmother in accordance with orders to that effect. The mother has been compliant with orders and most probably would continue to be.
Any time with his father would necessarily be in school holidays or a particular weekend. The child loves his father despite clashes arising from the father’s depressive illness. The paternal grandmother can monitor that situation quite readily, and can also accompany the child and the father to the child’s favourite shared activity. The mother cannot and should not take on a supervisory role. The risk is that time with the father would be so limited that the relationship would fall away.
Counselling for X has been arranged through the school. It has taken time for that resource to become available. The child will likely benefit from having that neutral professional input.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother spoke of wanting to pursue a diagnosis of “[medical condition T]” for herself although she had not yet done so. The mother had told Dr J, seven years prior that her father, two of her siblings and herself, had been given that diagnosis at school. She wondered if X too had the condition. [24] The Court infers that the mother looks for explanations about why things are difficult for her but does not pursue outcomes.
[24] Single Expert Report by Dr J dated 28/09/2015, para 41.
The mother is engaged in specialised therapy and has undertaken parenting courses both of which she finds helpful.
The paternal grandmother has consulted a psychologist which she finds helpful.
The practical difficulty and expense of a child spending time with and communicating with a parent
The mother and paternal grandmother live about 90 kilometres apart. The trip by car takes about an hour. The mother is learning to drive. Presently she relies on the maternal grandmother to drive or to be present when the mother is the driver. With both adults in the car the mother’s younger child must also come along.
The mother is hopeful of buying a car but is not in a position to do so yet.
To date the paternal grandmother has undertaken all of the driving for the child to spend time with his mother.
The child will likely benefit from the mid-point changeover agreed on for the future.
If the child is an Aboriginal child or a Torres Strait Islander child
The father identifies as Aboriginal through his own father. The mother gave oral evidence that she too has Aboriginal heritage which she has not yet fully explored. X potentially is connected to two different indigenous lines of heritage and country.
The school the child presently attends has a relationship with aboriginal elders and the local aboriginal community. The paternal grandmother described the child as being aware of his indigenous heritage, interested in it and respectful of it.
He recites “Welcome to Country” in a local Indigenous language at assemblies, an observance reserved for aboriginal children.
The Court takes into account the fact that the child identifies with his aboriginal community though his school. A change of school could undermine that sense of identity.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
In mid-2013 an AVO (12 months) for the protection of the mother from the father was issued in Town C Local Court.
The father reported to Dr J that he had attended a group for perpetrators of domestic violence and the mother had attended the parallel program for partners.[25] He realised that he had often spoken in a dismissive way to the mother and refused to hear out her legitimate concerns. He denied physical attack or aggression.
[25] Single Expert Report by Dr J dated 28/09/2015, para 20.
There are no current concerns.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
To maintain the current residence of the child is to deliver certainty and stability.
The paternal grandmother will likely be open to negotiating changes to orders and flexibility for special events.
SUMMARY
An order is made for the paternal grandmother to have sole parental responsibility for long term decision making.
Long term decision is defined as issues about the long-term care, welfare and development of the child including but not limited to education (current and future), religious and cultural upbringing (connection to country), health, the child’s name, changes to the child’s living arrangements that could make it significantly more difficult for the child to spend time with a parent.
The order provides for the paternal grandmother to advise the mother of a relevant decision to be made and to ask for her views within a reasonable time frame. The mother then has the option of expressing her views. This is a mechanism for giving information and putting forward views. To be clear the order provides for the paternal grandmother to make the ultimate decisions whether or not the mother agrees.
There is an order for the child to remain living with the paternal grandmother.
Orders are made for time and communication by telephone and Facetime with the mother. Provision is also made for time with the father, in terms which the mother through her counsel approved.
The recommendation of the Single Expert was that time with the residential parent, whoever that was, should be for one weekend each month and half school holidays, “Each third weekend is appropriate yes … [X] is always going to say something that pleases a parent not what upsets them. Once a month is enough wherever he lives especially if there are phone calls”.
The expert also said “Children’s lives are bigger than the family. A child shouldn’t be in a position to have to give up things for an adult”. The Court accepts and endorses those remarks in the context of this almost 11 year old child, who is very well loved by his extended family. Because they have competed for him he feels obliged to meet their emotional needs.
The Court has accepted that recommendation about time, which acknowledges the needs of the child to spend time with school friends, play sport and train in a team and manage school work.
The ICL proposed that the recommended change commence when the child starts high school in 2024. The Court has taken the view that the recommendation should be implemented immediately. The child has a strong relationship with the mother which could not be easily diminished by the reduction of face to face time during term.
The fact that the parties live 90 kilometres apart means that there is no prospect for the child to come home for a few hours for a party or sporting event, then returning. It is impracticable.
For that same reason proposals by all parties for orders that the child spend a few hours with the mother or the paternal grandmother on special occasions such as Christmas Day, birthdays of the parties, family members and the child himself are not made. Provision is made for the child to spend the weekend of Mother’s Day and Father’s Day with that parent.
In the 2015 report[26] the Single Expert stressed that the number of handovers should be minimised in order to insulate the child from conflict and tension between the parents. In her oral evidence in this trial the Single Expert again advised “minimise handovers” to reduce the stress for the child passing between households.
[26] Single Expert Report by Dr J dated 28/09/2015, para 120.
There is an order for changeovers at Handover Location A.
There are orders for specific issues such as providing information about health and welfare as well as restraints to encourage respectful behaviour.
Of course the parties can agree on additional time or change of arrangements to allow for special events or for other reasons. If there is no agreement these orders apply.
Orders are made accordingly.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.
Associate:
Dated: 22 April 2022
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