Irwin and Irwin and Ors
[2011] FMCAfam 961
•16 September 2011
.FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IRWIN & IRWIN and ORS | [2011] FMCAfam 961 |
| FAMILY LAW – Parenting – dispute between a mother and sister about where a child aged 6 should live – child has lived with the sister since he was 2 – mother seeking that the child live with her – child has a full sibling only one year older who lives with the mother – issues of motivation, attachment, parenting capacity and sibling relationships considered – dispute about whether the child’s father should commence spending time with the child – mother in favour, sister opposed – father has no relationship with the child – issues of parenting capacity and limiting the number of changes imposed on the child all at once considered. |
| Family Law Act 1975, s.60CC, 61DA, 64C, 65DAA |
| Aldridge & Keaton (2009) FLC 93-421 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MS S IRWIN |
| First Respondent: | MS K IRWIN |
| Second Respondent: | MR KENNEDY |
| Third Respondent: | MR WALLACE |
| File Number: | NCC 942 of 2010 |
| Judgment of: | Terry FM |
| Hearing dates: | 12 & 13 May 2011 |
| Date of Last Submission: | 13 May 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Lindeman |
| Solicitors for the Applicant: | Priest McCarron |
| Counsel for the First Respondent: | Mr Weightman |
| Solicitors for the First Respondent: | Walker Legal & Conveyancing |
| Solicitor Advocate for the Second Respondent: | Mr Hamilton |
| Solicitors for the Second respondent: | Flintoff Lawyers |
| The Third Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Mr Davies |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
That the child [X] born [in] 2005 live with the maternal aunt MS K IRWIN.
That subject to Order (3) the maternal aunt have sole parental responsibility for the child.
That the maternal aunt shall not without the consent in writing of the mother MS S IRWIN:
(i)change the child’s name;
(ii)relocate the child’s place of residence from the [W]/[T] area.
That the maternal aunt shall arrange for the child to be referred as soon as practicable to:
(i)a developmental psychologist for formal cognitive development assessment; and
(ii)a child psychiatrist for assessment.
That the maternal aunt shall notify the mother in writing of each specialists appointment made for the child at least fourteen days prior to the date of the appointment and the mother may attend all appointments and obtain from the child’s treating specialist(s) copies of any written reports provided to the maternal aunt or to the referring general practitioner.
That the mother may obtain from the child’s school copies of school reports, order forms for school photographs, newsletters and any other information normally provided to parents and is entitled to attend events at the school such as sports carnivals, assemblies or school concerts whether the child is in her care at the time or not.
That on any occasion that the mother and maternal aunt both attend an event in relation to the child (such as a school event or a specialists appointment) they shall each be of good behaviour toward the other and shall not act in an offensive or provocative manner toward the other.
That the child shall spend time with the mother:
(i)each Sunday from 10.00am to 4.00pm for a period of two months commencing on 17 September 2011;
(ii)thereafter each alternate weekend from 9.00am Saturday until 5.00pm Sunday until the commencement of the first school term in 2012;
(iii)thereafter each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday (or the commencement of school on Tuesday if Monday is a public holiday) commencing on the first Friday of each school term;
(iv)in addition to the time in order 8(iii) commencing on the third Monday of the first school term in 2012 and thereafter commencing on the third Monday of each school term from the conclusion of school on Monday until the commencement of school on Tuesday.
(v)for the first half of each school holiday period in 2012 and each alternate year thereafter and the second half of each school holiday period in 2013 and each alternate year thereafter.
(vi)if the child’s birthday falls on a day when the child is not with the mother from 9.00am to 1.00pm if the birthday falls on a weekend and from 4.00pm to 6.00pm if it falls on a weekday with the child to spend the same time with the maternal aunt if the child is otherwise with the mother on his birthday.
(vii)If Mother’s Day falls on a weekend when the child would otherwise be with the maternal aunt from 1.00pm to 5.00pm on Mother’s Day with the child’s time with the mother to end at 1.00pm on Mother’s Day if Mother’s Day falls on a day when the child is otherwise with the mother.
(viii)Commencing in 2011 and each alternate year thereafter from 3.00pm on 24 December to 3.00pm on 25 December 2011.
(ix)Commencing in 2012 and each alternate year thereafter from 3.00pm on 25 December to 3.00pm on 26 December, with the child to spend from 3.00pm on 24 December to 3.00pm on 25 December in 2012 and each alternate year thereafter with the maternal aunt.
(x)at such additional or alternate times as may be agreed between the parties.
That for the purposes of the child spending time with the mother in accordance with order (8)(i) and (ii) and on any other occasions when collection or return takes place on a non-school day the mother shall collect the child from the maternal aunt at [omitted] Park [W] at the commencement of the time and return the child to the maternal aunt at [omitted] Park [T] at the conclusion of the time.
That the child shall spend time with the second respondent MR KENNEDY as agreed between the maternal aunt and Mr Kennedy.
That the mother is restrained and an injunction is granted restraining her from allowing the child to spend time with or communicate with the father MR WALLACE without the consent in writing of the maternal aunt first having been obtained.
That if at the expiration of twelve months Mr Wallace wishes to pursue spending time with and communicating with [X] he shall attempt to arrange family dispute resolution with the maternal aunt and the mother and Mr Kennedy to discuss the matter before commencing court proceedings and the maternal aunt, the mother and Mr Kennedy shall not unreasonably refuse to take part in family dispute resolution with Mr Wallace.
That the mother is restrained and an injunction is granted restraining her from:
(i)initiating any discussion with the child about where he would like to live;
(ii)correcting the child if he refers to the maternal aunt as “Mummy” or Mr Kennedy as “Daddy”;
(iii)denigrating the maternal aunt or Mr Kennedy to or in the presence of the child or allowing the child to remain in any place where the maternal aunt or Mr Kennedy are being denigrated.
That the maternal aunt and Mr Kennedy are each restrained and an injunction is granted restraining them from:
(i)correcting the child if he refers to the mother as “Mummy” or the father as “Daddy”;
(ii)denigrating the mother or the father to or in the presence of the child or allowing the child to remain in any place where the mother or the father are being denigrated.
That the mother, maternal aunt and father shall each keep the other advised of their residential address and telephone numbers and notify each other of any change to these details within 48 hours of the change occurring.
That the maternal aunt and the mother shall participate in mediation at Interrelate [T] for the purpose of improving their relationship and to this end both the mother and the aunt must:
(i)complete the intake procedures for Interrelate [T] within 1 month of the date of these orders;
(ii)comply with all reasonable requests of Interrelate to attend mediation;
(iii)authorise the mediator to view a copy of the Single Expert’s report and provide the mediator with a copy of these Reasons for Judgment.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Irwin & Irwin and Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 942 of 2010
| MS S IRWIN |
Applicant
And
| MS K IRWIN |
First Respondent
| MR KENNEDY |
Second Respondent
| MR WALLACE |
Third Respondent
REASONS FOR JUDGMENT
Introduction
Ms S Irwin lives in [T] with her older son [Y], aged 7.
Her younger son [X], aged 6, lives in [W] with his maternal aunt Ms K Irwin, and has done since he was 2 years old.
Ms S Irwin seeks an order that [X] live with her. It is her case that she has overcome the depression which led to her asking Ms K Irwin to take [X] in October 2007 and is perfectly capable of parenting him, and that he should be returned to her care and grow up with his sibling.
Ms S Irwin acknowledges that [X] is primarily attached to Ms K Irwin but she is confident that he will manage a transition to her care.
Ms K Irwin seeks an order that [X] remain with her. This is in line with the recommendations in the expert’s report prepared in the proceedings, which emphasised the importance of [X]’s attachment to Ms K Irwin and raised concerns about Ms S Irwin’s capacity to care for him.
Mr Kennedy, the second respondent, is Ms K Irwin’s partner although they do not live together. He supports Ms K Irwin’s proposal but says that he has also been an important figure in [X]’s life for the last four years and that this should be recognised by orders that [X] live with him as well as with Ms K Irwin and that he share parental responsibility for [X].
Mr Wallace, the third respondent, is [Y] and [X]’s father. He and
Ms S Irwin separated when [Y] was a baby and [X] was as yet unborn and he has no relationship with [X].
Mr Wallace would like to develop a relationship with [X] and is confident that he and Ms S Irwin can arrange this if [X] lives with
Ms S Irwin. If an order is made that [X] live with Ms K Irwin however he seeks an order allowing him to spend time with and communicate with [X].
Mr Wallace also seeks an order that members of the paternal extended family be permitted to communicate with [X].
The Evidence
Ms S Irwin relied on her amended initiating application filed on 9 May 2011, her affidavits filed on 16 April 2010 and 20 April 2011 and the affidavit of Ms O, a friend and support person, filed on 27 April 2011.
Ms K Irwin relied on her amended response filed on 27 April 2011 and her affidavits filed on 04 June 2010 and 27 April 2011.
Mr Kennedy relied on his Amended Response filed on 27 April 2011 and his affidavit filed on 4 June 2010.
Mr Wallace relied on his affidavit filed on 23 September 2010 and his Response filed in court on 12 May 2011.
Ms S, a Clinical Psychologist, prepared an experts report and it is attached to her affidavit filed on 16 December 2010.
All of the witnesses were cross-examined.
Background
Ms S Irwin (40) and Ms K Irwin (49) grew up on the Central Coast. They are two of eight children, with Ms S Irwin being the youngest and Ms K Irwin the third youngest.
Ms S detailed in her report the difficult dynamics in the sisters’ family of origin, particularly following the death of their father before
Ms S Irwin was born.
Ms S Irwin and Ms K Irwin have had a problematic relationship since Ms S Irwin entered her teens. They were on speaking terms until 1999 when their brother Mr A committed suicide, but Mr A’s death was followed by tensions between his siblings over the distribution of his estate and in the resulting fall-out Ms S Irwin and Ms K Irwin stopped speaking to each other. They only started talking to each other again after [X] was born.
Ms K Irwin’s history
Ms K Irwin formed a relationship with Mr H in 1989 and they had a son, [Z], born in 1991. Ms K Irwin and Mr H separated in 1992 and [Z] remained living with Ms K Irwin.
In 1996 Ms K Irwin moved to [W] and purchased a home there and in 2000 she married Mr Kennedy, a local [occupation omitted].[1] They lived separately at first but about a year after the marriage commenced living together in Ms K Irwin’s home. Ms K Irwin’s son [Z] then aged 10 and Mr Kennedy’s daughter [R] then aged 11 or 12 became part of the household.
[1] This history is taken from Ms K Irwin’s affidavits. Cf the evidence of Mr Kennedy who says in his affidavit filed 4 June 2010 that he and [Ms K Irwin] married [in] 2002.
Conflict arose, which Ms K Irwin and Mr Kennedy ascribe to the presence of the children, and Mr Kennedy and [R] moved out in 2002. Ms K Irwin had a depressive episode at this time and was prescribed and took anti-depressants, although she has long since stopped taking them.
Ms K Irwin and Mr Kennedy continued their relationship after
Mr Kennedy ceased living in Ms K Irwin’s home but they have never attempted living together again.
In 2006 [Z], by then about 15, went to live with his father on the Central Coast.
Ms S Irwin’s history
Ms S Irwin met Mr Wallace in 1998 when she was about 27 and they married in 2000. They lived primarily in Queensland. Mr Wallace had a serious drug problem throughout the relationship and was a regular user of cannabis and amphetamines, including ice.
Ms S Irwin and Mr Wallace’s first child, [Y], was born in 2004, and
Ms S Irwin suffered from both pre-natal and post-natal depression.
Within a few months of [Y]’s birth Ms S Irwin found that she was pregnant again and she immediately began to worry about how she would cope with the care of two children close in age.
Ms S Irwin and Mr Wallace separated in May 2005 when Ms S Irwin was about seven or eight months pregnant. [X] was born in 2005 and Mr Wallace has at best seen him briefly soon after his birth.
Ms S Irwin on her own admission did not initially bond with [X] and had thoughts of leaving him in the hospital. She said as follows:
My sister in law took [X] after his birth so I could get back on my feet. Just before having him for two weeks she contacted the community health nurse and expressed concerns that I wasn’t seeing [X] often enough. I immediately realised that it was not ideal for [X] to be there as my sister in law did not understand about the depression I was in. So, I brought him home.[2]
[2] [Ms S Irwin]’s affidavit filed 16 April 2010 paragraph 78 top of page 13
In October 2005 Ms S Irwin moved back to the Central Coast with [Y] and [X] while Mr Wallace remained in Queensland. On her own evidence she “started to isolate herself due to depression.”
Ms S Irwin found no support on the Central Coast and after some approaches by Ms K Irwin she rekindled her relationship with
Ms K Irwin. This ultimately led to Ms S Irwin moving with [Y] and [X] to [T] (a town close to [W]) in August 2006.
Events after Ms S Irwin moved to [T]
Ms S Irwin continued to suffer from depression and to be socially isolated after she moved to [T]. She regularly asked Ms K Irwin for help and [Y] sometimes stayed with Ms K Irwin overnight.
In June 2007 Ms S Irwin had a panic attack. Ms K Irwin arrived at
Ms S Irwin’s home to find the ambulance there and she arranged for Ms S Irwin to see a GP who prescribed anti-depressants.
The GP referred Ms S Irwin to Dr J, a psychiatrist and Ms S Irwin produced at the hearing a letter dated 30 July 2007 from Dr J in which Dr J expressed the opinion that Ms S Irwin was suffering from “depression with anxiety”. Dr J outlined the personal antecedents which in her view pre-disposed Ms S Irwin to suffer from this condition and recommended that Ms S Irwin continue to take anti-depressants.[3]
[3] Annexure C [Ms S Irwin]’s affidavit filed 16 April 2010
After the panic attack Ms K Irwin began providing Ms S Irwin with even more assistance. She helped Ms S Irwin transport the children to child care and she began calling in every afternoon after work.
Ms S Irwin struggled to cope with [X] in particular. He was displaying some unusual behaviours and the child care centre queried whether he might be suffering from a form of autism.
In October 2007 Ms S Irwin contacted Mr Wallace, who had no relationship with [X] and had not seen [Y] for two years, and asked him if he would take both children or at the very least [X] to give her a break.
Ms S Irwin’s evidence was that Mr Wallace was receptive to the idea but wanted her to bring the children up to Queensland which she was unable to do. Mr Wallace said that he told Ms S Irwin that he was unable to take the children because he was also suffering from depression and was trying to recover from a drug habit.[4]
[4] Mr Wallace’s affidavit filed 23 September 2010
Wherever the truth lies the upshot was that Mr Wallace did not take the children and Ms S Irwin turned to Ms K Irwin. Ms K Irwin offered to take [X], then 28 months old, and Ms S Irwin said that the following conversation occurred:
Ms K Irwin: How long do you want him to stay with me for?
Ms S Irwin: I don’t know, I really don’t know, I just need to get help.[5]
[5] Ms S Irwin’s affidavit filed 16 April 2010 paragraph 54
Ms S Irwin described the day that she put [X] into Ms K Irwin’s motor vehicle as the worst day of her life but elsewhere in her evidence she described feeling a mixture of regret and relief following [X] going into Ms K Irwin’s care.
Ms K Irwin said that within two weeks Ms S Irwin proposed that she and Mr Kennedy adopt [X]. She said that she was appalled that such a suggestion had been made so quickly.
Ms S Irwin agreed that adoption was discussed but implied in her affidavit that the impetus for the discussion came from Ms K Irwin and told Ms S said that she could not remember who instigated the proposal. I prefer Ms K Irwin’s recollection that Ms S Irwin initiated the proposal.[6] Nothing came of it however.
[6] See Ms S Irwin’s affidavit filed 16 April 2010 paragraph 5 page 13 which makes Ms K Irwin’s evidence the more likely.
Ms S Irwin was clearly accepting at this time of [X] remaining with
Ms K Irwin for a lengthy period. She said as follows:
I do not recall the day or time but [Ms K Irwin] was at my house and we were sitting in the lounge room. [X] had been with [Ms K Irwin] for about 2 to 3 months. I was asking about [X] when [Ms K Irwin] said “I could look after him till he goes to school.” I said “That might be alright, I guess.” I remember feeling relieved that this might give me enough time to get better but I was very sad at the prospect also.[7]
[7] Ms S Irwin’s affidavit filed 16 April 2010 paragraph 59
Ms K Irwin said that when [X] first came to live with her he was aggressive, was scared of water and resisted being bathed, was babbling but not saying any recognisable words, was not toilet trained and could not feed himself with a spoon knife or fork.[8]
[8] Ms K Irwin’s affidavit filed 4 June 2010 paragraphs 109-113
She said that [X] engaged in behaviours such as hand flapping, intense staring and repeated spinning of toy car wheels and said that he had no interest in other children.
Ms K Irwin took on the task of caring for [X] with dedication and enthusiasm. Ms S listed in her report the numerous assessments and interventions Ms K Irwin arranged for him, and one thing she organised was for [X] to be seen by a clinical psychologist from ASPECT (Autism Spectrum Australia).
The clinical psychologist assessed [X] on 2 September 2008 and concluded that he fell within the range of the diagnosis of autism spectrum disorder. She did not consider that he had Autism or Aspergers and diagnosed him as having a Pervasive Developmental Disorder - Not Otherwise Specified or atypical autism. Ms S abbreviated this as PDD(NOS).
Ms K Irwin kept Ms S Irwin updated about [X]’s progress and initially she would take [X] to Ms S Irwin’s house for visits and Ms S Irwin would come to her house. However [X] became extremely upset whenever he saw Ms S Irwin, and wanted to go with her, and in April 2008 Ms S Irwin and Ms K Irwin agreed that it would be best if [X] did not see Ms S Irwin at all for a while to assist him to settle.
Ms K Irwin said as follows:
In or about April 2008, Ms S Irwin and I decided that [X] would live with me for at least 12 months, with minimum contact with Ms S Irwin (this was because [X] would become hysterical if he saw Ms S Irwin and did not get to go home with her).[9]
[9] Ms K Irwin’s affidavit filed 27 April 2011 paragraph 49
In her affidavit filed on 20 April 2011 Ms S Irwin side-stepped responsibility for this decision, saying that she:
took Ms K Irwin at her word and accepted that the time [I] had spent with [X] was stressful for him and had resulted in him exhibiting abnormal behaviours.
However in her affidavit filed on 16 April 2010 she gave the following about what occurred following an incident at a shopping centre when [X] became hysterical when he could not accompany her:
When I got home I left a message on their answering machine: “You’re right, I won’t see him anymore. I’m sorry.” I was gutted again for days I cried and cried.[10]
[10] Ms S Irwin’s affidavit filed 16 April 2010 paragraph 71
I do not accept that somehow Ms K Irwin manoeuvred Ms S Irwin out of [X]’s life and I am satisfied that the sisters were equally responsible for a decision that [X] spend no time with Ms S Irwin.
Ms S commented that it was a most unfortunate decision which showed no consideration for [X]’s needs.
Apart from an accidental encounter at a shopping centre during the winter of 2008 [X] did not see Ms S Irwin between April 2008 and February 2010 and it appears that [Y] did not spend any time with [X] between April 2008 and the second half of 2009.
In late 2008 Ms S Irwin began having regrets about the situation and in 2009 she decided to seek professional advice.
On 25 May 2009 the sisters attended an appointment arranged by
Ms S Irwin with Ms K, psychologist, to discuss matters. Ms S Irwin told Ms K that she had thought about getting [X] back but realised that she simply wanted to start seeing him again, and said that she and
Ms K Irwin were looking for guidance about how this could be achieved without unsettling [X].
Ms K suggested that [Y] be used as a bridge and that as a first step [Y] have some sleepovers at Ms K Irwin’s home
At some point after this meeting however Ms S Irwin changed her mind and decided that she did not just want to start seeing [X] again, she wanted him to come back and live with her.
On 30 July 2009 the sisters and Mr Kennedy attended an appointment organised by Ms S Irwin with a counsellor, Ms F, and at that appointment Ms S Irwin made it clear to Ms K Irwin and Mr Kennedy that she wanted [X] back.
Nothing constructive concerning the re-introduction of [X] to
Ms S Irwin followed from the meeting with Ms F.
Subsequently [Ms S Irwin] made an appointment with a paediatrician, Dr W, to discuss [X]’s issues and she arranged to observe [X] at school through a two way mirror.
The relationship between the sisters deteriorated markedly during 2009 and a level of hostility and distrust sprung up between them.
In the second half of 2009 Ms S Irwin, Ms K Irwin and Mr Kennedy attended a legal aid conference but the only agreement they reached was that they would attend on Ms M of [practice omitted] and seek her advice about the right way to proceed.
At an appointment with Ms M in February 2010 a plan was drawn up for Ms K Irwin, Mr Kennedy and Ms S Irwin, [Y] and [X] to meet up and interact at some outdoor venues.
Three such interactions took place. [Y] and [X] played together and
Ms S Irwin was able to make some fleeting contact with [X], but the meetings were marred by low grade conflict between the sisters.
Ms S Irwin and Ms K Irwin both complained that the other was cold and intimidating. Ms S Irwin was backed up in her view that the fault lay with Ms K Irwin by her friend Ms O and Ms K Irwin was backed up by Mr Kennedy. The meetings cannot have been easy for either
Ms S Irwin or Ms K Irwin and I rather suspect that they were each quick to take offence and pre-disposed to be dissatisfied with the other.
The last planned interaction did not occur for reasons for which
Ms S Irwin and Ms K Irwin each blamed the other, and on 16 April 2010 Ms S Irwin filed an application in the Federal Magistrates Court seeking orders for [X] to live with her.
Ms K Irwin and Mr Kennedy filed separate responses. They each sought the preparation of an experts report and indicated that they would be guided by that report as to what was best for [X].
Events after the court proceedings commenced
On 7 June 2010 interim orders were made by consent which provided for [X] to live with Ms K Irwin and spend time with Ms S Irwin from 10.30pm until 12.30pm each Saturday, supervised by Ms K Irwin.
Ms K Irwin was given the right to terminate the time if Ms S Irwin initiated a discussion with [X] about where he should live.
Time occurred as ordered, but the sisters did not enjoy it.
On 25 August 2010 Ms S Irwin, Ms K Irwin and Mr Kennedy attended an 11F child dispute conference with Ms C, a Family Consultant. After discussion they agreed that Ms S Irwin would commence spending time with [X] at Interrelate, a children’s contact centre in [P].
Interim orders were made to this effect.
It took a little while for the intake interviews at Interrelate to be completed, and Ms S Irwin was unhappy about but eventually complied with a demand by Ms K Irwin that before visits commenced she sign a document agreeing that she would not allow or encourage [X] to call her “Mum” but the Interrelate visits finally commenced on
21 November 2010 and continued until the commencement of the final hearing on 12 May 2011.
Events after the conclusion of the hearing
The hearing was concluded on 13 May 2011 and judgment was reserved. However an interim order was made that pending the handing down of the decision [X] would spend unsupervised time with
Ms S Irwin from 10.am to 2.00pm each Sunday, with Ms S Irwin to collect him from Ms K Irwin at [omitted] Park [W] at the commencement of the visits and Ms K Irwin to collect him from Ms S Irwin at [omitted] Park [T] at the end of the visit.
It was further ordered that a family consultant forthwith explain to [X] that Ms S Irwin was his mother and Mr Wallace his father. This was in accordance with a recommendation of Ms S’s.
On 10 July 2011 Ms K Irwin delivered [X] to Ms S Irwin at 10.00am in accordance with the interim orders but when she went to [omitted] Park to collect him at 2.00pm Ms S Irwin was not there.
Ms K Irwin tried unsuccessfully to ring Ms S Irwin and then went home and found the following message on her answering machine:
[X] has told me about the abuse that has been happening at your place and the lies that you are telling him and I won’t be returning him.
Ms K Irwin contacted her solicitor who in turn contacted Ms S Irwin’s solicitor. Ms S Irwin’s solicitor advised that Ms S Irwin would not be returning [X].
The next day Ms K Irwin and Mr Kennedy went to Ms S Irwin’s house to try to recover [X] themselves but Ms S Irwin refused to open the door and threatened to call the police.
On 12 July 2011 Ms K Irwin filed the application for a Recovery Order.
On 13 July 2011 Ms S Irwin filed an affidavit in which she said that [X] had disclosed two weeks prior to the 10 July 2011 visit that
Ms K Irwin was hitting him on his arm, hand and head. She said that she decided to return [X] after that visit but made a notification to the Department of Human Services. She made no attempt to discuss the matter with Ms K Irwin.
Ms S Irwin said that after she picked [X] up on 10 July 2011 he told her that:
[Ms K Irwin] hits me in the head and my brain goes fuzzy and I cannot think. [Mr Kennedy] smashed my computer and [Ms K Irwin] hits [Mr Kennedy]. When these bad things are happening to me I think about patting puppy.
Ms S Irwin said that after hearing this she decided not to return [X].
On Monday 11 July 2011 Ms S Irwin, accompanied by [Y], took [X] to her GP Dr E. With [X] present she said the following to Dr E:
This is [X], he stays with me on Sundays and he said some things to me over the last couple of weeks that lead me to believe that he has been abused, could you talk to him.
Dr E spoke to [X] while Ms S Irwin and [Y] sat in the corner of the room.
Ms S Irwin attached to her affidavit a copy of Dr E’s progress notes, but it is impossible to discern from them whether they record information given to Dr E by Ms S Irwin or information given to him by [X].
Ms K Irwin filed a further affidavit on 13 July 2011 in which she denied that she had ever hit [X]. She said that [X] did not have a computer apart from a children’s toy computer which was in good condition, and she denied that she had ever hit Mr Kennedy except for a slap on the arm in play.
On 14 July 2011 I heard the application for a recovery order and made an order that [X] be forthwith returned to Ms K Irwin. Ms S Irwin thereupon agreed to facilitate this without the necessity for police intervention.
I invited all of the solicitors, and Mr Wallace who was unrepresented, to consider whether they wished to apply to re-open their case. Ms K Irwin and Mr Kennedy’s solicitors, the Independent Children’s Lawyer, and Mr Wallace, all said at once that they did not.
Ms S Irwin’s solicitor asked for time to consider the matter but later advised the court that Ms S Irwin did not wish to apply to re-open her case.
Current circumstances
Ms S Irwin lives with [Y] in rented accommodation in [T] and is engaged in home duties.
Ms S Irwin has studied to obtain qualifications as a [omitted]. Twelve months ago she was considering moving to [omitted] so that she could commence a [omitted] degree, but she told Ms S that she had put those plans on hold for the time being and that if she decided to pursue them she would look at doing external study.
[Y] attends [C] School. He does not have any health problems or special needs.
It is logical to suppose that if [X] lived with Ms S Irwin then
Ms S Irwin would want him to attend the same primary school as [Y].
Ms K Irwin lives with [X] in the home she owns in [W]. She is not employed outside the home. [X] attends [S] School in [W] and catches the bus to and from school.
Mr Kennedy lives on his [property] in a house he shares with his parents. Ms K Irwin visits the [property] with [X] every weekend during the day and on one or two afternoons each week. [X] has a friendly relationship with Mr Kennedy whom he calls alternatively “Dad” or “[first name omitted].”
Ms K Irwin and Mr Kennedy keep their finances and other dealings separate and neither contributes to the financial support of the other. However Mr Kennedy is building a second house on the [property] and it was his and Ms K Irwin’s evidence that at some stage after the house was completed they intended to live together again.
The second house on the [property] has been under construction for about four years and it is hard to resist the conclusion that Ms K Irwin and Mr Kennedy are in no hurry to resume living together. Whether they ultimately do so and whether they make a go of living together the second time around is not something I can determine with any certainty.
Ms S said that the court “needed to clarify their actual marital situation” but it is difficult for me to make any finding beyond one that they are genuinely in a relationship. I place weight on the following evidence from Ms S:
Mr Kennedy and Ms K Irwin related to each other in a warm manner, with a lot of eye contact. They shared a good sense of humour.
……………
In the interviews, they presented as a united front and very much as a “married couple.”[11]
[11] Ms S’s report page 4, 53
While Ms K Irwin and Mr Kennedy remain in a relationship
Mr Kennedy will continue to have a role in [X]’s life, but it is important to note that neither he nor Ms K Irwin provided evidence which would support a finding that Mr Kennedy had any responsibilities for [X] independently of Ms K Irwin.
Mr Wallace is a [omitted] by occupation and lives in [omitted], Queensland. He is in a relationship with Ms R and they have a son [A], born in 2009 and aged 2 ½.
In the second half of 2009 Mr Wallace began having telephone communication with [Y]. He spent a few days in [T] at Christmas 2009 and spent time with [Y] there, and Ms S Irwin has sent [Y] to Queensland to spend time with Mr Wallace during some school holidays since.
Mr Wallace said that he telephoned Ms K Irwin in December 2009 to ask if he could visit [X] while he was in [T] but was rebuffed.
[X]’s diagnosis
Ms S raised the possibility that [X]’s diagnosis of PDD(NOS) may not be correct.
In June 2009 [X] was seen by Dr W, a paediatrician. Dr W noted various improvements in [X] (then 4), including that [X] was speaking in whole sentences, engaging in parallel play with other children, was able to tolerate loud noises, changes in routine and meeting strangers and had improved eye contact.
On 11 January 2010 Dr R, [X]’s usual paediatrician, saw [X] and noted that his speech was improving, his motor skills were satisfactory, his social interaction had improved and he was making good eye contact.
Ms S saw [X] in November 2010 when he was almost 5 ½. She said as follows:
While [X] did not have the developmental precocity of some 5 year olds, he did not present as being formally developmentally delayed. Nor did he exhibit the usual features of Autism. His capacity to make up a story (imagination); his reasonable eye contact; his understanding of jokes; his adequate language; and generally appropriate interactional style, did not seem typical of Autism, despite his somewhat emotionally aloof manner and his restricted conversation.[12]
[12] Ms S’s report page 23
Ms S went on to say:
If the diagnosis by ASPECT is correct, one would expect a continuance of these symptoms – as by definition, Pervasive Development Disorder does not remit even with intervention.
[X]’s development has not followed this path. He seems to have made huge gains in development and language since he has been in the Aunt and Uncle’s care. While he is still somewhat aloof in social interactions, in my opinion, he does not show the same impairment in social interactions that a PDD (NOS) diagnosis involves, nor does he have the stereotyped behaviours, rituals or preoccupations generally seen in this Disorder.
It could be suggested that he may have met the criteria for the Disorder when he was first diagnosed. This may be because some children who are severely emotionally neglected in their early years can present as developmentally delayed, speech delayed and with quasi-autistic behaviours. In such scenarios, with the introduction of loving and stimulating care, such symptoms remit (unlike the course of true PDD).
It is thus suggested that in the next 12 months, [X] undergoes a developmental assessment as well as an assessment by an independent child psychiatrist to address the PDD issue. It would be most unfortunate if [X] continued to carry this label if it is no longer valid.[13]
[13] Ms S’s report page 56
All parties agreed that [X] needed to be re-assessed and that orders should be made for this to occur.
One of Ms S Irwin’s submissions was that Ms K Irwin was exaggerating the developmental issues [X] suffered from to gain some advantage either in the proceedings or in terms of funding from government bodies. I do not accept this submission. I am satisfied that [X] was genuinely suffering from some serious difficulties in 2007 when he began living with Ms K Irwin, and if he is no longer suffering from them it is very likely because of the care he has received from
Ms K Irwin, aided by Mr Kennedy.
The applicable law
The objects and principals underpinning the parenting provisions of the Family Law Act are contained in s.60B and they overwhelmingly emphasise the importance of children being parented by and having a meaningful relationship with their parents. Two of the principles refer to people other than parents, and only in the context of a child’s right to spend time with or enjoy their culture with other people including grandparents of the child.
However the Act allows a much wider class of people then just parents to bring parenting applications. S.65C provides that:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents;
(b) the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care welfare and development of the child.
S.64C of the Family Law Act 1975 provides that:
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
All of the parties in the matter before me have standing to bring their applications. Ms S Irwin and Mr Wallace are [X]’s parents, and it is beyond doubt that Ms K Irwin and Mr Kennedy are persons concerned with [X]’s care welfare and development.
In the case outline prepared by Ms S Irwin’s solicitor it was submitted that “under the primary considerations in s.60CC of the Family Law Act the relationship between the child and the parent is paramount.”
Insofar as I understand this submission I do not accept it.
The fact of parenthood is important, and the benefit to children of having a meaningful relationship with each of their parents is emphasised in s.60B and s.60CC(2)(a) of the Family Law Act, but the orders I ultimately make must be orders determined by treating [X]’s best interests as the paramount consideration, and not by starting from a position that a placement with a parent is to be preferred over a placement with a non-parent.
In Aldridge & Keaton[14] the Full Court said as follows:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;
·the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.
[14] Aldridge & Keaton (2009) FLC 93-421
The following passage from Rice & Miller[15] (referred to in Aldridge and Keaton) remains apposite:
… We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
[15] Rice & Miller (1993) FLC 92-415
[X]’s best interests
Ss.60CC(2) & (3) of the Family Law Act 1975 contain the primary and additional considerations to which I must have regard in order to determine [X]’s best interests.
The first primary consideration is:
the benefit to the child of having a meaningful relationship with both of the child’s parents
Ms S Irwin and Mr Wallace’s proposals are best designed to ensure that [X] has the opportunity to develop a meaningful relationship with both his parents.
Ms K Irwin and Mr Kennedy’s proposals would give [X] the opportunity to have a meaningful relationship with Ms S Irwin. While she would not be the centrally important mother figure in his life if she only spent time with him on weekends and during school holidays she would have the opportunity to develop a relationship with him which was ‘important, significant and valuable to him.’[16]
[16] Mazorski & Albright (2007) 37 Fam LR 518
Ms K Irwin and Mr Kennedy’s proposal would not create an opportunity for Mr Wallace to have a meaningful relationship with [X], unless Ms K Irwin and Mr Kennedy deemed it appropriate that this commence.
I will discuss later in the judgment some concerns about Mr Wallace, but it is far from being the case that he has nothing to offer his son, and through him [X] would have an opportunity to connect with his extended paternal family.
This consideration therefore slightly favours Ms S Irwin and
Mr Wallace’s proposals, although I do not have to do what Ms K Irwin and Mr Kennedy propose as far as Mr Wallace’s time with [X] is concerned and I could make an order requiring that they together or separately facilitate [X] spending time with Mr Wallace.
The second primary consideration is
the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There were no allegations that [X] was likely to be exposed to abuse (as defined in the Family Law Act) or family violence in Ms S Irwin’s care.
“Neglect” is not defined in the Family Law Act but a dictionary definition of it is “to be remiss in the care for or treatment of.” This implies something more than a patchy capacity to provide for the needs of a child, it implies some pervasive failure either in regard to the general care of a child or in regard to attendance to one aspect of his care such as a medical need.
Ms S, in casting around for an explanation about why [X] did not seem to be following the path of a child who had PDD(NOS), raised the possibility that he had been neglected by Ms S Irwin in the first two years of his life, and that the symptoms he displayed when first assessed after coming into Ms K Irwin’s care could be explained by this neglect.
Ms S’s opinion was that Ms S Irwin had had attachment problems with [X], apparently from his birth. She said as follows:
Ms S Irwin’s poor attachment to [X] over the years has been indicated by:
· Her ceding of him to her sister’s care in 2007, with apparently little ambivalence about this.
· Her own initiatives in seeking to have her sister adopt him in late 2007. This course of action was reportedly stopped on the advice of others, not by a change in Ms S Irwin’s attitude at the time.
· Ms S Irwin’s acceptance of her sister’s advice (whether appropriate or not) that she should stop contact with her toddler son, and did so for a period of 12 months. Even a minimally attached parent would likely be unable to endure such a prolonged separation from one’s toddler, especially given she was still the legal guardian of the child.
There is some force in Ms S’s opinion. She is a very experienced clinical psychologist and I am satisfied that the facts she outlined above as underpinning her opinion are correct.
Two additional facts to which Ms S did not refer and which further support her opinion are that Ms S Irwin left [X] with her sister-in -law in the first two weeks after his birth and only took him back when her sister-in-law contacted a community health nurse, and that in October 2007 she seriously proposed sending him to Queensland for an indefinite period to a father he had never met.
Ms S Irwin on her own admission suffered quite severely from depression in the two years after [X]’s birth, and a combination of this plus a lack of attachment to [X] could have resulted in Ms S Irwin neglecting [X].
However although the theory is plausible, a conclusion that Ms S Irwin neglected [X] and that this led to him displaying symptoms similar to those displayed by children with PDD(NOS) is not open to me on the evidence available. There was no inquiry at the hearing into Ms S Irwin’s care of [X] in his early years, and an essential piece of evidence, namely whether [X] is still considered to be suffering from PDD(NOS), was not available.
Therefore while it is open to me to find that there were problems with Ms S Irwin’s parenting capacity and attachment to [X] during the first two years of [X]’s life, it is not open to me to find that Ms S Irwin neglected [X] during this period and it is not open to me to find that there is an unacceptable risk that she might neglect him in the future.
No allegations were made during the hearing that [X] had been exposed to abuse neglect or family violence by either Ms K Irwin or Mr Kennedy, or was likely to be in the future.
Ms S Irwin made allegations of abuse and family violence in her affidavit filed on 13 July 2011 in response to Ms K Irwin’s application for a recovery order, but she chose not to apply to reopen her case and I can have no regard to this evidence.
There is some foundation for a finding that [X] might be at risk of exposure to abuse or family violence in Mr Wallace’s care.
Police records show that Mr Wallace’s partner Ms R complained to police on 8 January 2010 that Mr Wallace had made threats to kill her, and had pushed her in the chest area three months previously. Ms R is reported as telling the police that Mr Wallace used alcohol to calm himself down, and that he had ceased using cannabis a month previously and had since been drinking more. Ms R also complained about Mr Wallace’s handling of baby [A].
Mr Wallace said in evidence that what happened on 8 January 2010 was all a misunderstanding and he denied that he was a violent person.
Mr Wallace did not call Ms R to give evidence although he claimed that he was still in a relationship with her. The evidence in the police report might not be completely correct, but the existence of that report together with Mr Wallace’s failure to call Ms R leaves me with a concern I cannot resolve about whether [X] (and [Y]) might be exposed to abuse or family violence if they spend unsupervised time with
Mr Wallace.
I must also have regard to the additional considerations in s.60CC(3).
The first of these is any views expressed by the child and any factors (such as the child’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
There was no evidence that [X] had a view about the various parenting options, and it is doubtful he would understand the implications of the options in any event.
I must consider the nature of the relationship of the child with each of the child’s parents and any other persons (including any grandparent of the child).
Ms S observed generally positive interactions between [X] and all of the adults and [Y].
She first referred to an observation of [X] with Ms K Irwin and
Mr Kennedy and said as follows:
Mr Kennedy and Ms K Irwin were very engaged with [X] and attentive to his needs. They seemed very relaxed with him, and related to him with a good sense of humour. They often praised him. It was evident from their interactions that they had put a great deal of effort into his speech and educational needs.
[X] was generally somewhat stilted in manner, but responded well to his carers, although he rarely referred to them by name. He had reasonable eye contact with them, and could share a “joke”. While he conversed appropriately with them, [X]’s conversation was not elaborated.[17]
[17] Ms S’s report page 9
Ms S observed Ms S Irwin, [Y] and [X] together and said as follows:
Ms S Irwin was very effusive and animated with both boys. Her voice and facial expressions were quite exaggerated, but the boys were responsive to this. [X] seemed to enjoy himself and smiled a lot. However he was not as intimate with Ms S Irwin as he had been with Ms K Irwin and Mr Kennedy. He was more focussed on [Y] than on his mother. [X] showed no distress at being separated from his regular carers.
The boys conversed frequently and spontaneously and obviously enjoyed each others’ company. [X]’s conversation while reciprocal was still limited. [X] appreciated Ms S Irwin’s sense of humour and laughed appropriately at her jokes. [18]
[18] Ms S’s report page 46
Time at Interrelate was yet to begin when Ms S conducted her observations on 18 & 19 November 2010 and Ms S Irwin had only spent time with [X] briefly on three occasions in February/March 2010 at group outdoor events and for some short periods supervised by
Ms K Irwin after the interim orders were made on 7 June 2010.
Between 21 November 2010 and April 2011 Ms S Irwin spent time with [X] at Interrelate for two hours each Sunday, subject to several Sundays being missed for a variety of reasons. The notes made by the supervisor(s) of the time record that [X] was quiet during the first visits but from the beginning played well with [Y]. The notes record that as time went by [X] developed a bond with Ms S Irwin and the notes invariably mention that [X] was smiling and happy throughout the visit.
When this was put to Ms S during cross-examination she said that it did not surprise her to hear that time between Ms S Irwin and [X] at Interrelate was going well.
On 28 November 2010 [X] called Ms S Irwin “Mum” unprompted and said “You are my Mum too.”
I am satisfied that [X] has a good relationship with Ms S Irwin, and a warmer relationship with her than was observed by Ms S.
Ms S’s opinion was that [X] had a more intimate relationship with
Ms K Irwin and Mr Kennedy than he did with Ms S Irwin. I place weight on that opinion, given her experience and the thoroughness of her report. It is probable that this distinction still exists despite the increasing warmth exhibited by [X] to Ms S Irwin over the course of the Interrelate visits, simply because he continues to spend the overwhelming majority of his time with Ms K Irwin and Mr Kennedy.
[X] has a very good relationship with [Y], although like all brothers they have their moments. The strength of their relationship was observed by both Ms S and by the Interrelate staff and was tacitly accepted by all the adults.
[X] has no relationship with Mr Wallace or with [A], Mr Wallace’s son and [X]’s brother.
I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
Ms S Irwin and Mr Wallace each have the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the other parent.
I must consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
All proposals in this matter if adopted will lead to change for [X].
Ms S Irwin’s proposal would ultimately result in [X] living primarily with her rather than primarily with Ms K Irwin. Ms S Irwin was confident that [X] would adapt to this change but Ms S did not share this confidence and said as follows:
Removal of any child of 5 from his “psychological parents” to go to someone who is virtually an acquaintance to him would be highly traumatic and would likely result in short-term distress/grief and possible long-term problems, such as attachment insecurity, depression and poor coping mechanisms. The effects of traumatic loss for [X] would likely be exacerbated by:
· The effect of cumulative loss. [X] has already experienced a most traumatic loss (mother and brother) in his early critical years. This increases his vulnerability to the effects of later loss.
· [X] reportedly has Pervasive Development Disorder NOS. if this diagnosis is correct, he is particularly vulnerable to changes in his environment and would have poor mechanisms to cope with such changes. [19]
[19] Ms S’s report page 51
Ms S referred elsewhere in her report to the possibility that the diagnosis of PDD(NOS) was not be correct, and her description of
Ms S Irwin as being “virtually an acquaintance” to [X] no longer holds true but there is still considerable force in Ms S’s opinion about the likely detrimental effect on [X] of a change which involved him being separated from his primary attachment figure.
The orders proposed by Ms K Irwin and Mr Kennedy were that [X] begin spending increasing periods of time with Ms S Irwin leading finally to him spending time with her on alternate weekends, special days and for half of the school holidays.
Ms S felt that such a change ought to be made, because it was important that [X] have a relationship with his mother, but this change could also potentially cause difficulties for him. [X] may be unsettled once he commences spending substantial time in Ms S Irwin’s household and there is a question in my mind about how well
Ms K Irwin will handle this. The solution she proposed (and to which Ms S Irwin agreed) in 2007/8 when [X] was unsettled and distressed was to cut off all contact between [X] and Ms S Irwin.
There is also a concern in my mind about how Ms K Irwin will cope with to some extent sharing the care of [X] with Ms S Irwin, given the historically poor relationship between the sisters.
Interestingly the only critical comments in the Interrelate notes concern Ms K Irwin’s behaviour. On several occasions staff found her abrupt and demanding and on one occasion she made a comment at changeover which upset [X].
The way Ms K Irwin reacts to any changes in [X] or any unsettled behaviour by [X] or any discomfort she may feel at her own changed role will inevitably impact on [X], but this does not mean necessarily point to the desirability of making one set of orders in preference to another, rather it is something Ms K Irwin needs to be alert to so that she can seek help to deal with it if necessary.
The introduction of Mr Wallace into [X]’s life will result in a considerable change for [X], because Mr Wallace is a complete stranger to him.
Mr Wallace may have his failings but he seemed personable enough when giving evidence at the hearing. The evidence such as it is suggests that [Y] coped with a resumption of a relationship with his father. In theory [X] ought to cope with it as well, although it is difficult to be absolute certain about that given [X]’s current diagnosis.
At some point the issue of [X] spending time with Mr Wallace will have to be confronted. [Y] communicates with and spends time with Mr Wallace and there is something artificial about a situation where one brother has a relationship with his father and the other does not, and it might be something [X] himself will question in due course.
However there is some force in Ms S’s opinion that any change which is to occur in relation to Ms S Irwin and [X] should be bedded down before an attempt was made to introduce Mr Wallace to [X].
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This only has potential relevance as far as [X] spending time with
Mr Wallace is concerned and it was not the subject of any evidence at the hearing.
I must consider the capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including his emotional and intellectual needs.
The issue of whether Ms S Irwin has the capacity to provide for [X]’s needs is one of the most important issues in the case.
Ms S Irwin had doubts about this in May 2009. She said as follows to Ms K:
I don’t believe it’s a good idea for [X] to come home in case I don’t cope again, as it would only cause psychological issues for [X].[20]
[20] Ms S Irwin’s affidavit filed 16 April 2010 paragraph 75 top of page 11
However [Ms S Irwin] changed her mind shortly afterwards and by the time of the hearing was expressing absolute confidence that she would be able to capably provide for [X]’s needs if he returned to live with her.
It was submitted on Ms S Irwin’s behalf that depression and anxiety had prevented her from being able to cope with [X] between 2005 and 2007 but she had now mastered her problems and was as capable as any other parent to provide for the needs of her child.
It was also submitted that it was not just the depression and anxiety which threw her off balance in 2007. She also had a cancer scare and was stressed about having to negotiate parenting orders with
Mr Wallace. This combination of factors would never occur again and therefore it was quite unlikely that Ms S Irwin would again be thrown off balance, even if her depression and anxiety did creep back to an extent.
It was further submitted that the Interrelate notes confirmed that
Ms S Irwin had made a success of spending time with [X] between November 2010 and April 2011 and had dealt appropriately with some tricky situations involving the children and that this, together with the fact that she had demonstrably always done a good job parenting [Y], should give the court confidence that she would be able to properly care for [X] in the future.
These things must be kept in perspective however.
Ms S Irwin is 40 and has had intermittent problems with depression since her teenage years. Dr J outlined the matters in Ms S Irwin’s background which pre-disposed her to suffer from depression and anxiety.
I am sceptical about the submission that it was not the depression alone which threw Ms S Irwin off balance in 2007. Ms S Irwin made no mention of a cancer scare in her (lengthy) affidavit filed on 16 April 2010 and the parenting orders made in 2007 were made by consent, and there was no suggestion that there was ever any serious contest between Ms S Irwin and Mr Wallace about parenting arrangements for [Y] and [X].
It is true that the Interrelate notes confirm a positive interaction between Ms S Irwin and [X] and much thoughtful and constructive parenting by Ms S Irwin, but it is one thing to care for a child in a confined area for two hours each fortnight and quite another to care for him day in and day out, when he is being obstinate and difficult as well as when he is being cute and co-operative, and when he is sick and when he is well, and generally dealing with the challenging and boring and not so fun aspects of parenting as well as the fun aspects.
Ms S Irwin may be caring for [Y] well but caring for [Y] never presented her with a problem. Caring for [X] did, throughout the first two years of his life, and while [X] has made great strides since he has been living with Ms K Irwin he still displays some unusual behaviours.
In was Ms S’s opinion that Ms S Irwin had attachment problems with [X] after his birth and Ms S questioned Ms S Irwin’s motives for wanting [X] returned to her care. If Ms S Irwin’s motives are something other than a strong attachment to [X] this increases concern that the difficulties Ms S Irwin had parenting [X] in his first two years could re-surface if he returns to live with her.
Ms S suggested that Ms S Irwin’s change of mind in mid-2009 about wanting [X] returned to her care had more to do with conflict between the sisters than with Ms S Irwin’s attachment to [X].
I am not convinced that this theory is supported by the evidence. There was no evidence of any particular conflict between the sisters immediately preceding Ms S Irwin’s change of mind, rather conflict seems to have erupted once Ms S Irwin decided that she wanted [X] back.
Ms S also expressed the view that Ms S Irwin was a quite self-absorbed person and that her proposal that [X] return to her care had more to do with her own needs than her perception of [X]’s needs. This strikes more of a chord.
Ms S found it hard to get Ms S Irwin to respond to questions about how she thought a change of placement might affect [X], and there is little in Ms S Irwin’s affidavits about [X] as an individual.
Ms S Irwin’s first affidavit contains nothing which makes [X] live as a person and it is focused entirely on Ms S Irwin’s own past difficulties and on the ways in which she considers that Ms K Irwin (and
Mr Kennedy) have slighted and disrespected her.
This could perhaps be explained away on the basis that when this affidavit was filed Ms S Irwin had seen [X] on only a few occasions in two and a half years. However by the time Ms S Irwin filed her second affidavit on 20 April 2011 she had been spending time with [X] regularly at Interrelate in [P] for nearly five months.
The second affidavit is entirely devoted to Ms S Irwin putting her side of the story about her family history, her relationship with Ms K Irwin and how [X] came into Ms K Irwin’s care. There is not a single mention of [X] as an individual and no mention of the visits at Interrelate.
In summary, I cannot conclude with any confidence that Ms S Irwin will definitely be able to properly provide for [X]’s needs if he returns to her care, and from that perspective to make an order that [X] return to live with Ms S Irwin would be to experiment with [X]’s future.
Ms K Irwin’s affidavits in contrast contain a large amount of information about [X], not only about his behaviour but also about his likes and dislikes. [X] lives as a person in Ms K Irwin’s affidavits. She ends her description of him by saying “most of all he is extremely loveable.”
Ms K Irwin has demonstrated a good capacity to provide for [X]’s needs. Ms S summarised the situation as follows:
[Ms K Irwin] and [Mr Kennedy] have provided a loving and cognitively stimulating environment for [X]. Given his documented problems and developmental/speech delays when he came into their care, they have contributed to massive gains with [X]. [Ms K Irwin] in particular has been assiduous in taking him to Early Intervention and to many professionals over the years. She is not only strongly attached to him but very committed to overcoming his unusual problems.[21]
[21] Ms S’s report page 54
Ms S included Mr Kennedy in the above comment and he has been supportive of Ms K Irwin in her care of [X], but there was no evidence of him taking an independent pro-active role in [X]’s upbringing.
My only concern about Ms K Irwin is about how well she will cope if [X] is unsettled by the change of spending more time with Ms S Irwin.
Her solution to [X] being distressed about the separation from his mother in 2007/8 was to propose that Ms S Irwin did not see [X] at all.
It is almost inevitable that [X] will exhibit some unsettled behaviours once he starts seeing Ms S Irwin and [Y] regularly and the poor relationship between the sisters will not make it easy for them to discuss the issue and try to come up with a joint plan to deal with it.
Mr Wallace’s parenting capacity is an unknown. He did not attend the family report interviews, filed only one brief affidavit, and called evidence only from himself at the hearing.
There is reason to be concerned that his parenting capacity might be compromised by drug or alcohol use.
Mr Wallace was using illicit drugs, including cannabis and amphetamines when he and Ms S Irwin were together. This continued after he and Ms S Irwin separated and police records reveal that on
28 November 2008 he was convicted of possessing dangerous drugs and drug taking implements and placed on a good behaviour bond.
Mr Wallace also has convictions for drink driving in July 2006 and on
17 August 2007.
There is also the police report of 8 January 2010 referred to earlier.
Ms S Irwin sent [Y] to spend time with Mr Wallace for almost a week during the 2010/11 Christmas school holidays. When asked if she was satisfied that Mr Wallace had ceased using illicit drugs, she said that the orders made by consent in June 2007 required Mr Wallace to provide a drug test to her before the commencement of any time with the children.[22]
[22] These orders were discharged insofar as [X] was concerned by the interim order made by consent on 7 June 2010
When asked if Mr Wallace had provided a drug test before his Christmas school holiday visit with [Y], [Ms S Irwin] said that he had not, but had promised to provide one while [Y] was with him. When asked if he had done so she responded that he had not. Apparently a clean drug test result was provided prior to the Easter 2011 visit, but whether it was a supervised chain of custody drug test and therefore reliable I do not know.
This evidence not only creates a concern in my mind about whether
Mr Wallace might still be using illicit drugs, it creates a concern in my mind about Ms S Irwin’s capacity to act protectively of her children.
I must consider the maturity sex lifestyle and background of the child (including the lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
This is relevant as a separate consideration in these proceedings.
I must consider the attitude of each parent to the child and to the responsibilities of parenthood.
Ms S Irwin relinquished [X] to Ms K Irwin in October 2007 and spent little time with him between then and early 2010. After late 2008 she was trying to rectify the situation but insofar as the October 2007 to late 2008 period is concerned this might be said to demonstrate a poor attitude to the child and the responsibilities of parenthood. However there were factors such as Ms S Irwin’s depression at work and it would be unhelpful to treat her actions during this period as something reflecting on her attitude to [X].
Ms S Irwin pays no child support to Ms K Irwin, but she has the care of [Y] and is engaged in home duties. There was no evidence that
Ms K Irwin had ever asked Ms S Irwin to pay child support or that
Ms S Irwin had a capacity to pay. This is not something which reflects a poor attitude to [X].
Mr Wallace abandoned contact with his children for more than four years.
He has had his own problems with drug use, alcohol use, criminal behaviour and (on his evidence) depression in the last few years and his abandonment of his children is better treated as evidence of the difficulties under which he labours than as a reflection on his attitude to his children and the duties of parenthood.
I must consider any family violence involving the child or a member of the child’s family.
During the hearing on 12 and 13 May 2011 the only allegations of family violence were in relation to Mr Wallace.
Police records show that Mr Wallace partner Ms R alleged on
8 January 2010 that he had assaulted in late 2009 and threatened to kill her in January 2010.
Mr Wallace made no admissions and he did not call his partner and I cannot resolve the question of whether these events occurred as described in the police report.
In her affidavit filed on 13 July 2011 Ms S Irwin claimed that [X] had told her that Ms K Irwin was in the habit of hitting Mr Kennedy. Ms K Irwin denied this in an answering affidavit and said that all that had occurred was a slap on the arm in play.
None of the parties applied to re-open their case after the interim hearing on 14 July 2011 and I can have no regard to this evidence.
There are no family violence orders in place between any of the parties nor have there ever been.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is an order that [X] live with Ms S Irwin, because it is unlikely that if this order was made that Ms K Irwin would take any further legal action to try to obtain residence of [X].
In the response she filed to Ms S Irwin’s application in 2010
Ms K Irwin sought an order that future arrangements for [X] be as recommended by a court appointed expert and there was no flavour in her evidence of her being determined to keep [X] at all costs.
Further proceedings could still occur of course in this scenario if
Ms S Irwin failed to comply with orders for [X] to spend time with
Ms K Irwin or if Ms K Irwin felt that Ms S Irwin was not coping with [X] although in this latter eventuality it is possible that Ms K Irwin would approach the Department of Families rather than make an application to this court.
The order most likely to lead to further proceedings is an order that [X] live with Ms K Irwin. It is unlikely that Ms S Irwin will give up all hope of having [X] returned to her care if she is unsuccessful this time.
She may well have another tilt at the matter later on, once she felt that she was able to demonstrate that she could cope with [X] as a result of having him in her care for extended periods.
Further proceedings would not be inevitable of course, because if [X] settled and formed a demonstrable bond with Ms S Irwin, Ms K Irwin might ultimately agree to a change to the arrangements, but it is the outcome most likely to lead to further proceedings.
If I decline to make orders about Mr Wallace spending time with [X] he might bring proceedings in the future to try to achieve this but then again he might not. Mr Wallace did not pursue time with either [X] or [Y] between 2005 and 2009, and it is open to question whether he is in the current proceedings simply to support Ms S Irwin and has opportunistically used the occasion to press a claim of his own or whether he has a serious desire to form a relationship with [X] which he might later pursue with a application if he is unsuccessful at this time.
I must also consider any other relevant matter and there are several of these namely:
i)the state of the relationship between the sisters.
ii)Ms K Irwin’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and each of his parents.
iii)Ms S Irwin’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and Ms K Irwin.
Ms S Irwin and Ms K Irwin have had a poor relationship for considerable stretches of their lives.
They hardly spoke to each other between 1998 and 2005 after a falling out over the distribution of their brother Mr A’s estate and Ms S reported that:
Ms K Irwin said she did not attend the trustees meetings after
Mr A’s death, so held up the legal process for her siblings (laughs). This was because she was angry at her siblings.
Ms S Irwin would ring her repeatedly to sign the documents but she would not be hurried.[23]
[23] Ms S’s report page 17
Ms S Irwin said that they began a “friendship of sorts” in 2005 while Ms K Irwin said that her relationship with Ms S Irwin was not good at the time but that she supported Ms S Irwin once she moved to [T].
Ms S Irwin and Ms K Irwin had fairly limited interaction between October 2007 when [X] went into Ms K Irwin’s care and mid-2009 when the mediation process started with Ms K.
Ms K Irwin spoke very harshly of Ms S Irwin to Ms S, telling her that Ms S Irwin “always had a spiteful vicious nature” and was “selfish and spiteful and not a nice person.”[24]
[24] Ms S’s report page 18/19 and page 11
It was Ms S Irwin’s case that Ms K Irwin had embarked on a course of conduct which inevitably led to conflict between the sisters and had done this to gain an advantage in the parenting proceedings. I do not accept that this is the case, rather I consider that when faced with difficulty in 2009 the natural tendency of both sisters to fight and snipe and find fault rather than co-operate re-surfaced.
The extremely poor relationship between the two sisters means that one possible solution to this problem, a slow and co-operative transition of [X] into Ms S Irwin’s care with the sister’s varying the pace as required and both providing support to [X], is not an option.
Although Ms K Irwin has a very poor opinion of Ms S Irwin, I nevertheless consider that she has a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between [X] and Ms S Irwin, and that her reluctance to readily agree in 2009 to [X] returning to Ms S Irwin’s care was because of her genuine concern for [X], not because of her dislike of Ms S Irwin.
Ms K Irwin made it clear at the start of the court proceedings that she was willing to be guided by an experts opinion about what was right for [X], and she was able to acknowledge in her affidavit filed on
27 April 2011 that [X] seemed to enjoy his time with Ms S Irwin and [Y] at Interrelate.
In her 27 April 2011 affidavit she said as follows:
If orders are made for [X] to live with [Ms S Irwin] I will be sad, but I would accept this.
I have always been prepared to accept the advise of professionals as to what is best for [X].
I love him, and would love for him to keep living with me, and I think this would be best for him, but if professionals decide it is not, I will accept what is best for [X].[25]
[25] Ms K Irwin’s affidavit filed 27 April 2011 paragraphs 400-402
I have reservations about Ms S Irwin’s capacity to facilitate and encourage a close and continuing relationship between [X] and
Ms K Irwin, and I note that since the relationship between the sisters deteriorated in 2009 Ms S Irwin has not allowed [Y] to spend any time with Ms K Irwin.
This causes me to be concerned both about whether [X]’s psychological needs will be met by an order that [X] live with
Ms S Irwin, and about potential psychological harm to [X] if orders are made that [X] continue to live with Ms K Irwin and Ms S Irwin subtly or overtly tries to undermine [X]’s placement once she is spending regular time with him.
Parental responsibility
Pursuant to s.61DA(1) of the Family Law Act 1975 I am required to apply a presumption that it is in [X]’s best interests that his parents have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of them has engaged in abuse of the child or family violence.
The presumption is rebutted if the court considers that it would not be in the child’s best interests for it to apply.
The only people to whom s.61DA(1) applies are Ms S Irwin and
Mr Wallace, and it would not be in [X]’s best interests to apply the presumption if for no other reason than that Mr Wallace has no relationship with [X].
The only realistic options for parental responsibility are to order that it be allocated to Ms S Irwin, Ms K Irwin, Ms K Irwin and Ms S Irwin combined or Ms K Irwin and Mr Kennedy combined.
If an order is made that Ms S Irwin and Ms K Irwin share parental responsibility they will be required to discuss and attempt to reach agreement major long terms issues for [X].
The sisters have a frosty, not to say hostile, relationship and there is little prospect of them being able to do this in the immediate future. This is an important matter, because [X] has some special needs and decisions may need to be made about medical or psychiatric issues for him sooner rather than later.
If [X] had no health problems then it might be worth taking a chance and making this order, and leaving it to the parties to deal with any intractable dispute which arose about a discrete issue by way of an application to the court, but [X] does have problems and major decisions may need to be made about him sooner rather than later.
The only workable outcome for [X] is an order that either Ms S Irwin or Ms K Irwin have sole parental responsibility for him or that
Ms K Irwin and Mr Kennedy have equal shared parental responsibility for him, and I will return to this matter after making a decision about where [X] is to live.
Ms S’s recommendations
Ms S is a senior clinical psychologist of considerable experience. She was employed by Department of Health between 1976 and 2006 and was attached to the [omitted] Children’s Hospital (Child Protection Team) between 1991 and 2006. Ms S’s clinical experience and clinical and advisory appointments are outlined in the curriculum vitae attached to her affidavit. She is now in private practice.
Ms S interviewed Ms S Irwin, Ms K Irwin and Mr Kennedy and met [Y] and [X] on 18 and 19 November 2011. Mr Wallace did not attend the interviews.
Ms S’s opinion was that the significant issues in the case were as follows:
1. [X] is strongly attached to his Aunt and Uncle as his psychological parents. He would have no conscious remembrance of life with any other carers. He is only minimally attached to his mother. Any “loss” of the only family he “knows” would be very traumatic for him, as it would be for any child of this age.
2. Ms S Irwin, despite her wishes to have [X] returned to her care, is not strongly attached to him. Her motivation for his return seems primarily linked at this time to her conflict with her sister. On the other hand, the Aunt and Uncle are deeply attached to [X] as indicated by their commitment to him over the last 3 ½ years, especially considering the significant.
Ms S recommended that [X] live with Ms K Irwin and Mr Kennedy but said:
… this should not preclude his mother and brother developing a meaningful and ongoing relationship with [X]. This could be implemented by an initial programme of short visits which can eventually be increased to overnight and holiday stays in his mother’s household. Forging such a relationship, while not being the primary one, will considerably enhance his development and sense of identity. Ms S Irwin, being a competent and intelligent person, has much to offer [X]. As he grows older, Ms S Irwin’s special biological connection to him will become much more important to him. However at his age now, his attachment needs over-ride those of biological identity.[26]
[26] Ms S’s report page 51-52
Ms S said as follows:
If [X] is to have a meaningful relationship with his mother and brother – which he needs for well rounded development – it will be essential that this conflict between the sisters ceases. This will not be an easy task in view of the entrenched family ‘splitting’ dynamics, but one which must be addressed for [X] and [Y]’s sake.
While I am not optimistic about the results of mediation, even with an experienced counsellor, this should at least be attempted. The women need to become aware of how damaging their ongoing conflict is for the boys’ well-being.[27]
[27] Ms S’s report page 58
Ms S also said:
It would be preferable though that the sisters could resolve their difference at a ‘good enough’ level for more relaxed joint visits in each other’s homes. It would also be ideal if [Y] could spend some time in [X]’s home as well.[28]
[28] Ms S’s report page 52
Ms S recommended that [X] be told immediately that Ms S Irwin was his biological mother and it was her view that there was no reason why [X] could not call both women “Mummy.”
Unsurprisingly as Mr Wallace had not at that time filed a response
Ms S made no recommendations about whether Mr Wallace should spend time with [X].
Ms S was asked about this in the witness box and expressed the opinion that it would be preferable for [X]’s relationship with his mother to be stabilised first before an attempt was made to introduce Mr Wallace. She also said that she would not be rushing into phone contact before Mr Wallace had physically met [X].
Conclusion
Counsel for the Independent Children’s Lawyer submitted that Ms S’s recommendations were irresistible. I do not agree. I consider this a most difficult case.
If I do as Ms S recommends I will be leaving [X] in a home where he is receiving good care from the person who has become his primary attachment figure while at the same time creating the opportunity for him to re-form and then maintain a strong bond with Ms S Irwin and [Y].
However [X] lives with Ms K Irwin in a town only twelve kilometres away from the town in which Ms S Irwin and [Y], [X]’s brother close in age, live, and I will be creating a situation where [X] is introduced more and more into that household but stopping short of him returning to live there full time, and I will be depriving him of the opportunity to grow up with his brother in the fullest sense.
A situation where [X] calls two women Mum, where [Y] lives with his natural mother but [X] does not and where [Y] has a relationship with his father but [X] does not, may become more and more puzzling to [X] as he grows older.
The alternative of [X] being slowly transition back to Ms S Irwin’s full time care, so that he and his brother can grow up as equals and rivals within the one household, has considerable attraction.
If such a transition could take place against a background of underlying goodwill between the sisters, then it would be well worth attempting because the sisters could sensitively adjust the pace to meet [X]’s needs and Ms K Irwin would remain a strong and valued presence in the background ready to step in with minimum disruption to [X] and resume a fuller role in his care if Ms S Irwin could not cope.
This cannot occur however because there is no underlying goodwill between the sisters, and it tips the balance in favour of [X] remaining with Ms K Irwin, because I have real concerns about whether
Ms S Irwin will cope with [X] if he lives with her full time.
[X] is not in Ms K Irwin’s care because Ms S Irwin went through a period of physical ill health from which she has now recovered. He is in Ms K Irwin’s care because Ms S Irwin had mental health issues to the point where she was unable to care for him.
Ms S Irwin did not ask Ms K Irwin to take [Y], she asked her to take [X], the child with whom she had difficulty forming a bond after his birth and the child who by the age of two was exhibiting behavioural problems to the point where the supervisor of his child care centre suggested that he might be autistic.
Ms S Irwin is of course not showing any signs of suffering from depression at present, her relationship with [X] has been going from strength to strength since time started at Interrelate, and as a result of the care [X] has received from Ms K Irwin some of his difficult behaviours have abated. Ms S Irwin is supremely confident that things are different now and that if [X] returns to her care she will be able to parent him well but I cannot be so sure.
[X] still exhibits some unusual behaviour, and caring for him for a few hours is very different to caring for him full time and dealing day in and day out with integrating him back into a household in which [Y] has been for years the only child.
Ms S Irwin has a long history of depression dating back to her teenage years, her psychiatrist pointed out that her family history made it unsurprising that she was afflicted by depression and anxiety, and hovering in the background is the difficulty she experienced forming an attachment to [X] in his early years, and a concern I cannot dismiss is that Ms S Irwin’s application for [X] to live with her may have more to do with her needs than [X]’s needs.
[X] suffered a serious upheaval in his life in October 2007. The state of the relationship between Ms S Irwin and Ms K Irwin is such that
Ms S Irwin might not do what would be right for [X] if she found she could not cope and admit it to Ms K Irwin. If I impose a further change on [X] now and Ms S Irwin fails to cope, [X] could find himself in an insidious position.
I therefore accept that the preferable course is to leave [X] in the primary care of Ms K Irwin as Ms S recommended.
This may very well not be the end of this matter however and a great deal depends on how Ms S Irwin handles things from now on.
If Ms S Irwin can bring herself to be patient and to accept the decision and play as big a role in [X]’s life as circumstances allow, and remove all pressure from [X] and refrain from competing with Ms K Irwin to be the preferred mother, then the time may come when [X] can be transitioned back to her full time care.
The relationship between Ms S Irwin and Ms K Irwin is such that this might have to be subject of further court proceedings, but undesirable as repeated court proceedings are there are occasions when this simply cannot be avoided.
If Ms S Irwin is unable to accept the decision and withholds [X] from Ms K Irwin on occasions or destabilises him by putting pressure on him to tell Ms K Irwin that he wants to live with her, then further court proceedings might also occur. In that case the court might be forced, for the sake of [X]’s well being, to limit his time with Ms S Irwin. This would be an extremely sad ending for [X].
I turn to consider the exact orders to be made.
Mr Kennedy sought to be included in the orders equally with
Ms K Irwin and Ms S expressed the view that it would be
very much be in [X]’s interests if he came into [the] joint care [of Ms K Irwin and Mr Kennedy]. [X] certainly views them as a couple – his “Mum” and “Dad”. Having a good male role model will be most important to [X]’s long-term development.[29]
[29] Ms S’s report page 54
I have reservations however about whether it is appropriate to make orders that [X] live with Ms K Irwin and Mr Kennedy rather than just with Ms K Irwin.
Mr Kennedy and Ms K Irwin do not live together and have not done so at any time since [X] came into Ms K Irwin’s care. They may live together in the future but there can be no absolutely certainty about this.
I am satisfied that [X] has a strong bond with Mr Kennedy but there was no evidence that Mr Kennedy had had a major role in [X]’s life independently of Ms K Irwin. Making an order which includes both Ms K Irwin and
Mr Kennedy could cause complications if Ms K Irwin and Mr Kennedy’s relationship was to end. On the other hand failing to include him in the orders will not prevent him, while his relationship with Ms K Irwin continues, from having exactly the same role in [X]’s life as he does now.I therefore intend to make a live with order in favour of Ms K Irwin only and I intend to make an order that Ms K Irwin have sole parental responsibility for [X], but with restrictions on her being able to relocate [X]’s place of residence or change his name and with a requirement that Ms S Irwin be permitted to be involved in all medical appointments and assessments. I do this with regret, but it essential for [X] given his special needs that there be no arguments over such things as choice of specialist or use of medication.
I intend to make orders which will progress [X]’s time with Ms S Irwin more quickly than the Independent Children’s Lawyer proposed, but [X] has now been spending time with Ms S Irwin for nearly a year and has turned 6.
I intend to order that full alternate weekends commence at the beginning of the 2012 school year and I intend to order that [X] have an overnight in the off week with Ms S Irwin once full alternate weekends commence. There is no reason why a fortnight at a time should pass in which he does not see his mother and brother.
It would be ideal if Ms S Irwin and Ms K Irwin’s relationship could improve, and both said that they were willing to take part in mediation to work on this. It is hard to be optimistic about the outcome, given their ages and their family background but the attempt is worth making if the sisters are willing to attempt it and they said that they were. I will make the orders proposed by the Independent Children’s Lawyer for the sisters to attend mediation.
I am not persuaded that it is appropriate to make orders about [X] spending time with Mr Wallace.
Mr Wallace did not take a particularly active part in the proceedings. He filed an affidavit early on but he did not file a response setting out the orders he was seeking until the morning of the hearing. He did not take part in the interviews for the expert’s report and his attendance at the hearing took Ms K Irwin and Mr Kennedy’s counsel and counsel for the Independent Children’s Lawyer by surprise.
Ms S’s opinion was of that it would be better for [X] if the arrangements for him to spend regular time with Ms S Irwin were bedded down before
Mr Wallace was introduced onto the scene and this opinion has merit.In any event, because of the content of the material produced on subpoena considerable unresolved concerns exist about Mr Wallace’s drug use, drinking and whether he has a propensity to commit acts of family violence. Before orders were made these issues really ought to be properly explored and findings of fact made about them and then findings of fact made about the s.60CC(2) and (3) factors in the light of those findings of fact, before consideration of appropriate orders about [X] being re-introduced to Mr Wallace.
This would require a hearing in itself, a hearing in which Mr Wallace filed much more extensive affidavit material and in which Ms R was called, either as Mr Wallace’s witness or as a witness for another party.
I intend to dismiss Mr Wallace’s application, including his application that [X] have telephone communication with the paternal aunt and paternal grandparents, but there is nothing to stop Mr Wallace pursuing the matter in the future, and indeed at some point in the future it will need to be resolved, so that [X] and [Y] are not required to puzzle over why one of them sees and speaks to his Dad and the other does not.
I intend to order that if Mr Wallace does wish to take steps to spend time with [X] that he first try to arrange family dispute resolution with the other parties.
I urge Ms K Irwin (and Mr Kennedy) to accept that that some point in the future it will be right and natural for [X] to get to know his biological father and to co-operate in the process if Mr Wallace commences it. Given Ms S’s opinion it would not be in [X]’s best interests for Mr Wallace to pursue this however for perhaps twelve months.For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding two hundred and ninety two (292) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 16 September 2011
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