Jerrems and Argyle
[2009] FMCAfam 760
•24 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JERREMS & ARGYLE | [2009] FMCAfam 760 |
| FAMILY LAW – Parenting – live with application – mother has been the primary carer – high risk of exposure to family violence in mother’s home – child ordered to live with father. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4), 65DAA |
| Applicant: | MR JERREMS |
| Respondent: | MS ARGYLE |
| File Number: | AYC 319 of 2008 |
| Judgment of: | Henderson FM |
| Hearing dates: | 16, 17, 18, 19 & 25 June 2009 |
| Date of Last Submission: | 25 June 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 24 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Nevin Lenne & Gross |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | James Mc Dermott Barrister & Solicitor |
| Advocate for the Independent Children’s’ Lawyer: | Ms Wearne |
| Solicitors for the Independent Children’s’ Lawyer: | Legal Aid Commission of NSW |
ORDERS
The child, [X] born in 2005 to be delivered to the care of the Father forthwith.
Thereafter the child live with the Mother, MS ARGYLE (“the Mother”) as follows:
Until [X] commences formal schooling in 2010
(a)Commencing 1 July 2009, from 12 midday on Wednesday in each alternate week until 4 pm on the Sunday immediately following; and each alternate week thereafter.
After [X] commences formal schooling in 2010
During school terms:
(b)From the conclusion of school on Friday until 4 pm on Sunday, and each alternate weekend thereafter.
In school holidays
(c)For half of each of the term 1 (Easter), term 2 (June-July), and term 3 (September-October) school holiday periods, commencing at the conclusion of school on the last day of school term and concluding at 4 pm on the second Sunday thereafter.
(d)For half of the long summer school holidays:
(i) For the first half of the long summer holidays in 2010-2011 and each alternate year thereafter; and
(ii) For the second half of the long summer holidays in 2011-2012 and each alternate year thereafter.
(e)As otherwise agreed between the parties.
The Mother is injuncted and restrained from permitting Mr G to come into contact with the child until Mr G and the Mother make an appointment with a Domestic Violence counsellor and provide details of that appointment to the Father. Once the Mother and Mr G have had their first appointment with the Domestic Violence counsellor and have made a further appointment as recommended by the Domestic Violence counselor this order is discharged.
The Father is at liberty to contact the Domestic Violence counselor to confirm Mr G and the Mother have attended their appointments and to be advised of future appointments.
[X] live with the Father, MR JERREMS (“the Father:) at all other times.
[X]’s living time with the Mother be facilitated as follows:
(a)The Mother will collect [X] from school or the Father’s home at the commencement of her times with the Mother; and
(b)The Father will collect [X] from the Mother’s home at the conclusion of her times with the Mother.
[X]’s weekend time with the Mother pursuant to order 2 (b) above is suspended during school holidays and shall recommence:
(a)When [X] has lived with the Mother during the school holidays pursuant to orders 2(c) and (d) (i), on the first weekend after school term resumes; and
(b)When [X] has lived with the Mother during the summer school holidays pursuant to order 2(d) (ii), on the second weekend after school term resumes.
COMMUNICATION
Each parent facilitate any reasonable request made by [X] for telephone communication with the other party.
Each parent be at liberty to telephone [X] at any reasonable time.
PARENTAL RESPONSIBILITY
The Mother and the Father equally share parental responsibility for [X], subject to orders 11 to 20 below.
The Father arrange with his employer to obtain copies of the results of all urinalysis testing undertaken by him in the course of his employment, and forward same to the Mother within 7 days of receipt of same by him.
The Father may request the Mother to undertake random urinalysis on no more than one occasion per month, and the Mother will provide the Father the urinalysis test results within 7 days of receipt is same by her.
The parents consult one another and endeavour to reach agreement about mailers including:
(a)[X]’s education and choice of school; and
(b)Major medical treatment for [X];
AND in the event that the parents cannot agree upon such mailers, the parents will attempt to resolve their disputes with a Family Dispute Resolution Practitioner.
That each parent notify the other as soon as practicable in the event that [X] requires hospitalisation or medical treatment whilst the children are in their care AND each party shall ensure that the other is advised of any course of medical treatment, including [X]’s need for prescription medication, required to be administered in the other party’s care.
The parents exchange a communication book at changeovers in relation to [X]; covering such issues such as health, behaviour, medical appointments, school activities and other issues relating to [X]’s care, welfare and development.
Both parties do all acts and things to attend and complete a post separation parenting programme such as “Back on Track” as may be recommended to them by the Independent Children’s Lawyer and provide confirmation of. completion of same to the other party and the Independent Children’s Lawyer.
The parents keep each other informed as to their contact details including but not limited to current residential address and a telephone number by which they can be contacted in an emergency.
Each parent notify the other of any change of address or telephone number within 7 days.
The parents be restrained from:
(a)Denigrating or criticising the other parent in the presence and/or hearing of [X].
(b)Allowing any other person to denigrate or criticise the other parent in the presence and/or hearing of [X].
The paternal grandmother has agreed to submit to a program for education in relation to the needs of children after separation of parents as recommended by the Independent Children’s Lawyer or the family consultant, Ms Meredith Deane, and such an order is made.
The Mother is to provide a copy of the Reasons for Judgment to the Domestic Violence counsellor upon such reasons being published.
The Father is at liberty to contact the Domestic Violence counsellor and confirm a copy of the Reasons for Judgment have been provided. In the event they have not, leave is granted to the Father to provide a copy to the counsellor.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Jerrems & Argyle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC 319 of 2008
| MR JERREMS |
Applicant
And
| MS ARGYLE |
Respondent
REASONS FOR JUDGMENT
The matter of Jerrems and Argyle was a parenting application. The hearing commenced in the Albury Registry on 16 June 2009. The matter was adjourned on Friday 19 June 2009 due to the Mother’s ill health. The hearing was completed in Parramatta on Thursday 25 June 2009 by a video link to the parties and Counsel in Melbourne.
The application concerned the living arrangements for the parties’ daughter, [X] born in 2005.
Ms Southey of Counsel represented the Applicant Father, Ms Wheeler of Counsel represented the Respondent Mother and Ms Wearne represented the Independent Children’s Lawyer.
At the conclusion of the hearing on Thursday 25 June 2009,
Ms Wearne submitted on behalf of the child that I make orders that [X] live with her Father forthwith, spend time with her Mother and that I put in place an injunction preventing the child coming into contact with Mr G, the Mother’s partner, until the Mother and he had commenced domestic violence counselling.
The making of such orders resulted in a significant change to [X]’s primary care and usual living arrangements. [X] has, since her birth, primarily lived with her Mother, although she has spent significant and substantial time with her Father.
I agreed with the orders sought by the Independent Children’s Lawyer as the evidence at the hearing was overwhelming that due to the Mother’s lifestyle and choices of partner the Mother has been the victim of violence and instability in housing and that [X] has been exposed to many instances of an unacceptable risk of harm whilst in her Mother’s care.
Evidence
The evidence was as follows:
For the Father I read:
a)Initiating Application filed 21 July 2008.
b)His Affidavit sworn 18 May 2009.
c)Affidavit of his Mother, Ms J, sworn 18 May 2009.
The Father tendered the following exhibits:
a)Father’s Exhibit 1: Letter from his employer, [C], dated 3 June 2009 showing he has negotiated reduced working hours starting at 9am and finishing at 5pm with one rostered day off a month. Mr C, the Father’s employer, gave evidence by telephone at the hearing. He said the Father could finish as early as 4pm if required. I was satisfied that the Father’s employer is agreeable and supportive of reduced and flexible work hours if [X] comes into his care.
For the Mother I read:
a)Response filed 17 November 2008
b)Her affidavits sworn 14 November 2008 and 2 June 2009.
c)Affidavit of the maternal grandmother sworn 10 June 2009.
d)
Handwritten affidavit of Mr G, the Mother’s partner, sworn
16 June 2009.
The Mother tendered the following exhibits:
a)
Mother’s Exhibit 1: Handwritten diary, in the hand of the paternal grandmother, for the period 16 November 2007 to
20 March 2009. Although the notes were written in the grandmother’s hand the information came from the Father.
b)Mother’s Exhibit 2: Letter from Housing Choices dated 27 February 2009 advising that the Mother’s application for housing had been approved. The Mother gave evidence that this should happen in July. The letter makes no mention of when the Mother will have this property available to her.
c)Mother’s Exhibit 3: Confirmation that the Mother was admitted to [omitted] Hospital on 16 January 2007 to 17 January 2007 and again on 7 September 2007.
d)Mother’s Exhibit 4: Copy of a letter from Victorian Legal Aid in relation to the Intervention Order taken out on her behalf by the Police on 19 January 2009 against Mr G, her current partner. The order provided he was restrained from coming within 200 metres of the Mother and [X]. However, Mr G was able to contact and communicate with the Mother and [X]. In any event Mr G and the Mother resumed cohabitation some three weeks after this order was made. The Mother and Mr G continue to be in a de facto relationship as at the date of the hearing and the Mother is expecting his first child.
The Court Exhibits were:
a)Court Exhibit 1: Two Subpoenas directed to the proper officer of the Victorian Police Force.
b)Court Exhibit 2: Family report prepared by Ms Meredith Deane, family consultant at Albury, dated 21 May 2009.
The Independent Children’s Lawyer Exhibits were:
a)Independent Children’s Lawyer Exhibit 1: Victorian Police incidents in relation to family violence involving the Mother and her various partners.
b)Independent Children’s Lawyer Exhibit 2: Department of Human Services file notes in relation to [X] which commence in January 2006 and the last reported incident was 23 January 2009.
c)Independent Children’s Lawyer Exhibit 3: The Mother’s Medicare records showing Doctors, prescriptions and medications she has been prescribed.
d)Independent Children’s Lawyer Exhibit 4: The Father’s Work Options document showing his marijuana use and counselling he has received through his work to assist him in ceasing use of that substance. Those records indicate that for the past 18 months the Father has been clean of marijuana save for two ‘dirty’ uranalysis in February 2009.
e)Independent Children’s Lawyer Exhibit 5: Urinalysis report obtained by the Father on 12 May 2009, again obtained through Work Options, showing the Father was clean of any illicit drugs.
f)Independent Children’s Lawyer Exhibit 6: Document showing [X] has a full time position available at the [W] Childcare Centre, a Centre providing care for children to assist them to transition to school.
g)Independent Children’s Lawyer Exhibit 7: A print out from the travelmate.com internet page showing the distance between [W] and the Mother’s new residence near Melbourne.
h)Independent Children’s Lawyer Exhibit 8: Letters from the Independent Children’s Lawyer to the Mother’s solicitor.
i)Independent Children’s Lawyer Exhibit 9: [O] Health notes which are part of the Work Options counselling program the Father has undergone showing attendance and comments made by him and his counsellor.
j)Independent Children’s Lawyer Exhibit 10: Information from the internet in relation to the effects of the drugs the Mother takes for her alleged bipolar condition.
k)Independent Children’s Lawyer Exhibit 11: Records from [B] Medical Centre in Victoria, the Mother’s medical centre, and notes from her doctor, Dr L.
l)Independent Children’s Lawyer Exhibit 12: Minute of Orders sought by the Independent Children’s Lawyer.
The Father, Mother, both grandmothers, Mr G and Ms Meredith Deane were all examined and cross-examined at the hearing.
Interim proceedings
This matter came before me in October 2008 when I made undefended orders on 13 October 2008 that [X] was to be returned to the care of the Father within twelve (12) hours of the Mother being served with a copy of those orders. I noted that the Father’s affidavit filed 21 July 2008, and upon which I relied upon, had caused me real concern in relation to the child’s care arrangements. I had accepted the Father’s evidence that the Mother had simply left with the child without informing him and that at the time of leaving the Mother and child had been living with him since about March 2008.
As events transpired I reversed that decision on 28 November 2008 upon application by the Mother.
I prepared a written judgment of my decision of 28 November 2008. In that Judgment I was critical of the Father’s conduct towards the Mother after I had made the undefended orders.
It became apparent that the Mother was served with a copy of the Father’s application and affidavit which had a return date of 13 October 2008 stamped on it by the Court. However, the Father’s solicitors had attached a letter to those documents underlining and highlighting in bold that the return date of the application was 23 October 2008.
Thus I was satisfied at the Interim Hearing that the reason the Mother had failed to attend Court on 13 October 2008 was because she, quite understandably, relied upon the return date given in the solicitor’s letter and that she believed the correct Court date was 23 October 2008.
At the Interim Hearing I found that the Mother and Father had been living together since March 2008. The Mother’s case then, as it was at this hearing, was that she and the Father were attempting a reconciliation. The Father denied any reconciliation.
The Father’s affidavit presented a concerning account of the care of the child by the Mother: the Mother was not getting up of a morning, was not cooking, washing, ironing, cleaning or the like. Prior to the parents living together from March to July 2008 the father’s affidavit described an itinerate lifestyle, the Mother and child living in cars, moving from home to home, the Mother not working, not cleaning, screaming at the child, ringing up and telling him to "come and get her I can't cope with her".
I said at that Interim Hearing that the events the Father described would have caused any parent to be concerned. However the Father had taken no action in relation to these alleged concerning events whilst the Mother and child were living with him or previously. I noted it was not until the Mother left the Father’s home with the child that he brought an application. However, the facts were that he served the Mother with the application and then she left his home. So that criticism of the Father was somewhat unfair.
I was most concerned that Father had perpetrated a subterfuge upon the Mother after the child came into his care on what the mother believed was a regular contact period. The Father had the undefended orders served on her at that time. I was very critical of him for this as the Mother did not know the orders had been made at that time.
As I said in paragraph 24 of my previous Judgment: “He conned her”. The Father did not tell the Mother what had transpired in Court. He led her to believe that the orders made at the Magistrates Court of Victoria at Myrtleford which I had discharged were still on foot. The Father set the Mother up on 23 October 2008 as I accept she believed she was meant to come to Court on that day. He told her it was all over and not to worry about Court and then when he picked up his daughter served her with a copy of the orders.
Further, the child did not spend any time with the Mother until the hearing on 28 November 2009 although there was constant telephone contact. All these matters caused me concern at the Interim Hearing in November.
The Mother and Father’s illegal drug use, marijuana for the Father and marijuana and other drugs for the Mother, was also an issue for the Court. In relation to the Father’s use I said at paragraph 48 of the previous Judgment:
His use has been so extensive in the past that he told his work he has a problem with marijuana use and has used a service provided by his employers to address this problem. The report attached to his affidavit says “In May 2008 he had no sign of marijuana use”. This is a positive sign however it is early days in his praiseworthy attempts to deal with his addiction.
The report in the Work Options document where the Father is reported as saying “he was a daily user of cannabis for 20 years" is inconsistent with his affidavit which said he was using the drug at that time once a week.
I was concerned about the Father’s truthfulness in relation to these matters. In the light of all these concerns I ordered [X] be returned to her Mother’s care on 28 November 2008.
However, at the Final Hearing and with the testing of evidence through cross examination, the issues and concerns the Father has had and has raised in his various affidavits were made out.
As the evidence unfolded it became abundantly clear that the Mother had placed the child at significant risk in witnessing domestic violence perpetrated against her by her various partners, the child and Mother’s home being rendered uninhabitable by the violence of at least one if not more of her partners, and as such the child has been exposed to abuse and neglect in her Mother’s care.
Short Chronology
The Father was born in 1969 and the Mother was born in1982.
The parties commenced cohabitation in [W] in about 2003/2004.
In early 2004 a tragic event occurred which has significantly affected the Mother’s mental health and from which she has not recovered. The parties’ son, [Y], was stillborn at 24 weeks. Whilst this evidence was being given the Mother became extremely upset and began crying. Although this sad event is five years old it is current for the Mother.
That sad event has caused both parents to behave in quite an appalling manner towards each other. The Mother said in her oral evidence she really does not have any memory of how she behaved for the three months after [Y]’s death and I accept that evidence.
[X] was born in 2005. A happy, healthy, intelligent, robust child.
The parties separated on 30 January 2006 when [X] was about nine months old. The Mother says she went to live with her Mother in Victoria. The child has always spent time with the Father by agreement.
On 23 February 2007 orders were made at Myrtleford providing that the child live with her Mother and spend time with her Father. That arrangement worked reasonably well.
On 4 January 2008 up until 24 January 2008 the Mother and [X] lived with the Father. An Intervention Order was taken out just prior to
24 January 2008due to a highly charged verbal dispute between the parents which was witnessed by [X]. It was at this time the Mother left the Father’s home.
The Father says he had permitted the Mother to return to live in his home at this time as she told him she had nowhere else to live and thus neither did [X]. The Mother’s case was that she did this to enable the Father to spend time with the child. As the evidence unfolded the Mother did not have anywhere else to live and, as she has done again and again, she sought a place of refuge and safety with [X]’s Father.
The reason the Mother had nowhere to live was that her then partner, Mr M, had smashed up the caravan in which the Mother and [X] had been living. The Mother said they were living in the caravan as they could not live at the maternal grandmother’s due to her ill health.
An Intervention Order was not taken out by the mother but the Police were called. Mr M is referred to as “a mongrel” by the maternal grandmother in the Department of Human Services file.
The Mother left the Father’s home on 24 January 2008 and as the evidence unfolded returned to her relationship with Mr M.
The Mother returned to the Father’s home on 5 May 2008 where she and [X] stayed until 25 July 2008. The Father permitted this because the Mother told him she had nowhere else to live. [X] had been spending quite lengthy periods of time with her Father from March 2008 by agreement. As the evidence unfolded this was the Mother acting to protect her child.
The Mother left on 25 July 2008 after being served with the Father’s Application.
[X] lived with her Father from 23 October 2008 to 28 November 2008 pursuant to the undefended orders I made.
Since 28 November 2008 to date [X] has lived with her Mother.
Ms Deane perceptive, as always, understood the issues in this matter which were that this was an assessment of risk case.
The Father alleges: the Mother has limited capacity to provide the child with a safe, stable and secure home environment; has a history of unstable housing and poor parenting skills; and that she has exposed the child to verbal and physical family violence in her relationships. The Mother refutes these allegations.
Thus it was left to the Court to determine where the truth of this matter lay.
As the evidence unfolded it became clear that the Father’s concerns were justified and made out on the evidence.
Family Report
Ms Deane described [X] as follows:
[X] presented as a very pretty, generally cheerful, bubbly and confident four year old, a delightful child. [X] attends a structured pre-school program, (four year old kindergarten) for three half days each week, at the [G] Kindergarten in [P]. Given her tender years, she was not interviewed but was observed in structured and unstructured settings during the course of the day of the interview.
Ms Deane observed that [X] was attached to her Mother, played happily with Mr G, was very happy and attached to her Father and paternal grandmother.
[X] spoke to both her parents in a cheerful and confident voice. She responded to interactions and she moved willingly and happily from parent to parent.
Ms Deane reports at paragraph 38 that:
Mr Jerrems had a lovely, gentle nature with the child. He was age appropriate in his interactions with her, and he moved down onto the floor and they shared in joint play activities. Overall, the Father and child appeared to have a loving, warm and close relationship.
At paragraph 39 of the report Ms Deane states:
Overall the interactions between [X], Ms Argyle and Mr G were positive and appropriate and they appeared to have warm and comfortable relationships.
Ms Deane reports that:
[X] is a much loved and precious child, she appears to have attached and loving relationships with both her mother and father, and both parents wish to be involved in her parenting.
Ms Deane opined that if the parents lived closer together a form of equal time would have been appropriate but the distance between the parent’s homes militates against such an arrangement.
At paragraph 41:
Therefore the basic issue to be decided is whether [X]’s care should be principally assigned to her mother or father. The mother has been the child’s primary caregiver since infancy and practically is better placed to provide the child’s full time care. In reaching a decision the Court may want to consider which parent could provide the child with the safest, more stable and secure environment over the long term and evidentiary material should be helpful to the Court’s consideration and findings in this matter.
Ms Deane noted that the Father:
would provide good quality attentive parenting to [X], although he would need to rely heavily on the practical support offered by the paternal grandmother. However the father’s work situation could impact upon his practical proposal for the child to live with him, as over the long term it would be exhausting for the child particularly once she commences school, as she would be taken from her bed and driven to the paternal grandmother’s prior to the father’s attendance at work at 7am on weekdays.
When it was put to Ms Deane in cross examination that the Father’s work commitments would be 9am to 5pm, or possibly 4pm, five days a week she became much more comfortable with the child living with the Father. This evidence, together with the evidence that the paternal grandmother lived practically across the road from the school [X] would be attending, that her cousins also attended the school and were cared for by the grandmother, satisfied Ms Deane that the arrangements for [X] in the Father’s care would be appropriate.
Father’s Evidence
The Father was called to give his evidence first.
It is clear from the records of the Work Options that the Father has been free of marijuana for 18 months save for a period in February 2009. The Father gave his explanation that his friend came over to his home, offered him a joint and foolishly he had one. A random urinalysis test was taken at work. The test confirmed what the Father said. He had marijuana in his system for a short period of time but since February 2009 his drug results are clean.
I am satisfied that the Father has been able to kick this addiction and that he has gained insight into the negative impact marijuana has had upon his behaviour in the past. He said to Ms Deane at paragraph 28 of her report:
Mr Jerrems said that he has ceased any consumption of cannabis and consequently he is not experiencing mood swings has more energy and generally feels healthier. Mr Jerrems said that he does not consume alcohol when [X] is with him, that he barely drinks alcohol through the working week, and drinks socially on weekends.
That recognition of the negative impact of cannabis on his health and his capacity to parent [X] is also evident in the Work Options file, Independent Children’s Lawyer Exhibit 9.
On 16 April 2008 the Father reported to the counsellor that he was having some problems with anger management and coming down from his dope use.
On 30 April 2008 he reported he had not had a smoke and that he was feeling much better without it. He was determined to keep his job and gain regular access to his child. His levels were low and he was told he could return to discuss these issues with the counsellor at any time.
The Father was asked about his negative attitude to the Mother. That negative attitude was referred to by Ms Deane in the family report:
Mr Jerrems acknowledged he had spoken in a derogative manner about the mother and her partner with the paternal grandmother and paternal aunt, whilst the child was in close proximity. Although he claimed he had not made negative comments about the mother or her partner directly to [X].
Ms Deane confirmed that the Father and paternal grandmother did not realise the negative impact on [X] of them speaking badly about her Mother. The paternal grandmother submitted to an order to attend counselling as did the Father on this important issue. The Father said to Ms Deane at the family report interview:
he would not derogatively discuss the Mother or her partner with paternal family members whilst the child is in his care.
The Father committed significant acts of violence on the Mother during their relationship and at times this was witnessed by [X].
The parties commenced their relationship in 2003 and in 2004 their first son [Y] was still-born. This caused significant problems for both the Mother and Father. Neither party acted appropriately at that time, but the Father’s anger and violence directed towards the Mother would not have assisted her recovery.
When evidence was given about [Y] and his still-birth the Mother was visibly upset in Court and crying. I formed the view that that very sad incident has had a substantial impact upon the Mother’s emotional health and she has probably not recovered from it to this day.
The first Police record of violence between the parties was in 2004, some short period of time after the still-birth of their son:
The Mother called the Police as the parties had had a verbal dispute. The Mother said that the Father had kicked her out the house; she just wanted her belongings back and wanted her still-born baby’s ashes back. The Father refused.
It is of real concern that the Father could behave in that way towards the Mother when both of them were grieving and suffering.
The paternal grandmother’s evidence caused me concern as well as she showed no sympathy at all for the Mother and seemed to blame this whole incident on the Mother when, in fact, I formed the view the Father’s anger and aggression and lack of understanding about what his partner was going through was the root cause of this difficulty.
Both parties were using marijuana daily at this time.
The Father threatened suicide and repeated this on a couple of occasions to the Police. He was sprayed with capsicum spray.
This would have been a terribly traumatic experience for the Mother and Father. Fortunately [X] was not yet born. However, it shows the type of relationship these parties had, the violence and the poor behaviour directed at each other. However, the Father is a large man and his violence would have been far more dangerous and threatening than violence or physical acts by the Mother.
The most significant violence between the parents was around the time of their final separation on 30 January 2006. The Father describes that incident in his affidavit filed 20 May 2009 at paragraphs 8 and 9 saying that the Mother:
became verbally abusive by yelling and swearing at me…Ms Argyle began to physically assault me. She slapped me and punched me approximately six times, including to my head. During the time that Ms Argyle was assaulting me, she had [X] in her arms.
The Father admitted he punched a pedestal fan which fell to the floor and broke, but he denied hitting the Mother.
The Police description of that incident is rather different. This Police report is contained in Independent Children’s Lawyer Exhibit 1. A neighbour called the Police because they could hear an altercation occurring in the parties’ home. [X] was a baby at this time. The Police report states:
Both parties were visibly upset and very angry. Their 10 month old child was present. The AFM [Aggrieved Family Member - the Mother] stated that an argument had developed that morning and had escalated into physical violence where the defendant [the Father] had smashed a portable table fan over her back smashing same. She states she was also manhandled and pushed around the house. The AFM also stated that the defendant had hold of their daughter wen he hit her with the fan. The AFM also states that the defendant smashed two chairs and a door. Damaged observed by police. Minor red marks also observed on the AFM consistent with her complaint.
When the Father was cross examined on this issue the Father denied he had damaged the door or the chair but admitted he had broken the fan by punching it, not by hitting the Mother on the back with it. I was concerned that the Father did not admit the extent of his violence, thuggery and poor behaviour at that time in the presence of his then ten month old child.
The Police report also states:
The defendant stated that it was the AFM that was the aggressor and that she laid into him slapping him across the chest. The AFM admits doing this in self defence. Red marks also evidence on the defendant consistent with the alleged slapping. Police spoke to a neighbour who had heard the dispute and identified the defendant as the aggressor. Minor injuries to both parties…
This is most telling:
Both parties and neighbours state domestic disputes are ongoing between the two. One previous incident recorded in 2004 where the defendant was damaging property and had to be subdued by police by way of OC spray. AFM and Police concerned violence will continue due to past and present history. Victims’ parents state both parties are prone to anger and both have “fiery” temperaments, and describe a history of disputes.
The Mother did not take the matter any further. The parties physically separated.
Thus the Mother and Father had a history of a relationship marred by domestic violence and for the Mother this type of relationship has continued. The Mother continues in a cycle of violent domestic relationships.
The Father has shown a lack of sensitivity to his daughter a times. On or around 21 May 2009 [X] did not want to spend time with her Father. Much was sought to be made of this. It was around the time the Mother would have received the Father and paternal grandmother’s affidavits. She said the affidavits were full of lies about her, her poor parenting, her itinerant lifestyle and exposure of the child to domestic violence and the like. I accept receiving these affidavits would have been most upsetting for the Mother.
[X] did not want to go with her Father on that occasion. Instead of the Father understanding that as this was just before this hearing and [X] may have picked up on the Mother’s anxiety he said to his daughter “Don’t you love daddy anymore?”
This was an extremely insensitive thing to say to his child. He put the child under pressure created by her parents’ poor behaviour. This demonstrated a lack of insight by the Father into the needs of the child being entirely different to the needs of the parents.
To be fair the Father agreed at the end of that cross examination that the child may have been picking up on the tension in the respective households due to these impending Court proceedings. That is clearly what was happening.
The Father was genuine in his concerns about the welfare of his daughter and that when she was with her Mother he wanted to know she was safe. That is clearly the focus of his questioning of the child and the questioning by the paternal grandmother.
At the time of giving his evidence I was quite critical of the Father’s attitude to the Mother. He had nothing positive to say about her. Nor did the paternal grandmother. However, as the evidence from the Mother unfolded, the Father’s concerns and his worry about keeping his daughter safe were justified.
Had the Mother lived closer to the Father he may well have agreed to an equal time regime. As that is not possible he said his daughter would be better off in his care as she would be safer and he could provide for her far better than her Mother could. The Father accepted she would miss her Mother and would need some assistance to deal with that loss.
The Father agreed that the child may get things muddled up when she has said to him: she hides in the cupboard when mummy and Mr G fight; Mr G grabbed her around the neck; mummy and Mr G yell.
The Father made these concessions but was firm that he believed these things were happening in the Mother’s household. Again, as the evidence unfolded, his belief was justified.
The Father does not like Mr G and [X] knows he does not like Mr G. The Father showed little insight that when [X] speaks positively of Mr G he, just by changing the subject and effectively ignoring it, would hurt [X]. The Father had not realised that this would have such an impact on [X] and he and the paternal grandmother agreed to attend a parenting course so that they understand more completely and fully what [X]’s needs are.
[X] told the Father that Mr G had “guns in his truck”, that the “police had come” and that she drives in his truck without a seatbelt. The Father realised in cross examination that because of his negative attitude towards Mr G and the Mother his daughter would not tell him anything positive and thus that aspect of her life would be cut out. He showed some insight at this time.
The Father said that he had rung the Department of Human Services on many occasions about the Mother’s care of the child because of information the Mother had given him. Most of his complaints related to the Mother telling him she was homeless.
I accept that the maternal grandmother did tell the Father to “go for custody” of [X] because when one looks at the Department of Human Services records, Independent Children’s Lawyer Exhibit 2, there is a conversation with the maternal grandmother and Ms S on 9 May 2008 as follows:
The writer attempted to contact the mother on her mobile, [0], and was advised that his is the number for the MGM, Ms T.
The writer advised that I was attempting to locate her daughter. Ms T said that her daughter is living with a friend after having been kicked out of the house she was living with Mr M [Mr M] who she described as a mongrel. The writer asked if there was domestic violence in the relationship, and Ms T said yes.
The writer asked when the last time she saw [X] was, and the mother said that it was two days ago and she was fine. Ms T advised that if she had any concerns for [X] she would take her, however said that she could not live with her daughter.
The writer asked if [X] was attending Child Care or Kinder and Ms T said that she was not, and that her mother could not afford it.
The writer asked the mother to call the friend and request that her daughter contact the writer.
The maternal grandmother’s affidavit sworn 10 June 2009 says that she told the Father he should “go for custody” of the child because:
I was tired of hearing the applicant father’s complaints and threats and not because I actually thought that he would be able to provide a more loving or secure environment for the child or that she was at any risk of harm in her mother’s care.
Cross examination of the maternal grandmother left me in no doubt that the maternal grandmother had, consistent with what she said to the Father and the Department of Human Services, real concerns about her daughter’s care of [X] because of her relationships and the violence in those relationships and that the maternal grandmother could not live with her daughter.
The Father agreed that when the Mother had somewhere to live she probably did provide a loving home for her daughter and that [X] had a good relationship with her Mother. What troubled the Father was that the Mother did not have a secure home, was itinerant, and the men she associated with were violent towards the Mother in the presence of the child. He agreed he was very critical of her choice of partners. I formed the view that this criticism applies to him also. His behaviour towards the Mother was poor whilst they were together.
The Father was asked to describe the reason why he was critical of her choice of partners he said:
well one of the blokes smashed up the caravan where she was living.
That was Mr M - the person the maternal grandmother referred to as a “mongrel”. That line of cross examination was not taken any further as the Father had evidence to support his concerns.
The last occasion [X] saw her parents fighting was in January 2008 when the Mother returned to the Father’s home yet again as a place of safety.
The Father said that since January 2008 his behaviour has improved and that he is a changed man in his personal interactions. The Mother and paternal grandmother said he was a changed man. That change has come about because of his cessation of the use of marijuana which he has achieved for 18 months save for one set back in February 2009.
Ms Deane did not believe this relapse was of such concern as this is a normal and expected part of recovery from addiction. It is the behaviour and insight shown after the relapse that is most important. The Father has shown insight into his stupidity at that time and has been clean since.
The Father said:
I’m not really a violent person. I used to get upset in them days. Them days are gone. I just think about my daughter now.
Ms Deane’s report of the Father’s interaction with his daughter and his having the child and Mother return to his home again and again supports this statement.
The Father’s evidence was that some months prior to the mother returning to his home on 4 January 2008 the Mother had been ringing him variously saying:
come and get your fucking daughter… if you don’t I’m taking her to my mum to look after… you’ll never see her again…I can’t cope…you haven’t helped me… I need money.
When the Father would call back to arrange to collect [X] the Mother would have changed her mind.
Some of the Father’s complaints to the Department of Human Services in 2007 were that the Mother was unstable mentally, verbally abusive to the child, homeless and living in a car.
The Father’s belief the Mother was homeless and living in a car was the result of conversations the Father had with the Mother. The Mother denied this. However, there is some substance to what the Father says. The Father reported there was a risk of harm to the child living with the Mother.
In May 2007 the Father reported to the Department of Human Services that the grandmother’s partner ‘Mr L’ had sexually abused the child. The Father said he had found this out because of what the Mother had told him. He said the Mother came to his home in about April 2007 and spun him a story about her seeing Mr L and [X] naked on the bed and that the Mother had punched Mr L and left the home. Again the Father allowed the Mother and child come to his home as place of safety and refuge after hearing this tale.
The reason I accept the Father’s version of events, is firstly that I accept he would only have said these things if the Mother told him. It is otherwise an extraordinary story to make up on your own and the Father is not a person who embellishes the truth. He is rather a minimalist in his opinions.
Secondly the Father took appropriate actions when was told of this incident. He contacted his solicitors who told him to report the matter to the relevant authorities which he did.
Thirdly, and most telling, was when the Father asked the Mother attend the relevant authorities and report the matter she refused to do so and left his home. This is a consistent pattern of behaviour by the Mother. When an authority become involved in her life she refuses to
co-operate, take the matter further or accept help when offered.
Fourthly, this is how the Mother manipulates the Father. She has done this time and time again. She tells him she is homeless or there is a danger for [X] and then she is able to return to his home. The Mother uses the Father’s affection and love for his daughter to obtain what she needs at the time being a stable and safe home for herself and her child.
At one level the Mother is acting to protect the child in running to the Father. However the Mother’s actions and choices have placed the child in danger again and again.
I see no evidence to support the child having been sexually abused by Mr L or anyone else. However, I accept that is what the Mother led the Father to believe.
It is true that the Mother invited the Father to attend the child’s current kindergarten for a barbeque this year. That was a positive step. However 2009 is the only year this child has regularly attended kindergarten. She has not been in one place long enough to do so at any other time. The most stable the Mother has been with the child’s kindergarten attendance is this year.
It was hypocritical of the Father to complain bitterly in his affidavit of the Mother’s marijuana habit when he was smoking twenty bongs a week. Although in cross examination he said that he and the Mother were the same he did not say so in his affidavit.
I was impressed with the Father’s financial commitment to his daughter. He has always supported her in accordance with his obligation under the Child Support Act.
The Father agreed that once the Mother had been served with his Application in July 2008 that she would not have stayed at his home. However, I accept his evidence that the Father did not throw her out.
As evidence unfolded from the Mother it is clear she formed the view that the Father no longer wanted her and their daughter at his home. The Mother could not have been further from the truth when it came to [X]. Understandably the Father wanted the Mother to leave. However it was her decision to flee as she did. It was not as a consequence of anything the Father did. This fleeing is also consistent with her prior behaviour in turning up at the Father’s home and when matters do not turn out or she has had sufficient respite she just leaves with the child.
The Father said he does not get angry at the Mother. However on the evidence he does. The Police were called to the Father’s home in January 2008 when the Mother was living with him.
For reasons that Mr G was unable to explain to me he said to Father outside the Court on the street in November 2008:
Don’t try and keep me out of [X]’s life or I will kick your fucking head in.
This outburst of gratuitous aggression was for no reason at all. I accept Mr G has apologised to the Father for his behaviour. I understand how offended and upset the Father would have been.
However, it has been [X] who has actually lost out by this behaviour as exampled below.
On an occasion early this year the Father was speaking to the child on a phone. The child was outside and she fell and dropped the phone.
Mr G picked it up and said something like “hang on a minute”. The Father responded:
Put my fucking daughter on the phone. I rang up to speak to my daughter not to you.
The Father agreed that is what he said to Mr G. This was very poor behaviour by the Father when his daughter was present. It is unnecessary and destructive to his daughter. The Father and not Mr G is at fault on this occasion.
The Independent Children’s Lawyer had the Father agree that these were his concerns:
(1)Exposure to family violence in the Mother’s home which he agreed included him;
(2)The Mother’s drug use which also applied to him;
(3)The Mother’s history of housing instability and the condition of homes she has lived in;
(4)The Mother’s mental health.
The Father agreed that at this point in time the Mother does have a home and stability of housing. He agreed with the Independent Children’s Lawyer that the child is clean and fed by the Mother. His words were:
I believe Ms Argyle would do that for [X].
The Father agreed that the Mother had suffered from depression before the birth of [Y] and that her bipolar was diagnosed after [Y]’s still birth. He agreed she had seen a psychiatrist on a few occasions.
The Father said there was a connection between his marijuana use and his behaviour. That is, if he could not get dope he became angry and aggressive. The Father agreed that smoking marijuana affected his parenting capacity.
The Father confirmed, as did his employer Mr C, that he would continue to have counselling and undertake random urinalysis at his work.
The Father understands [X] will need some transition into his care from her Mother’s care as she has always lived primarily with her Mother and that [X] will miss her Mother.
The Father has organised appropriate day care for the child at [W]. This is day care designed specifically to assist in transition into school. The paternal grandmother is available to assist with the child’s care after school and the Father is able to take [X] to school or day care of a morning.
The Father has already organised for [X] to attend before and after school at [W] Primary School if this is needed as the school is a ten minute walk from the paternal grandmother’s home.
The Father agreed he wants [X] to spend time with her Mother and both parents agree she is ready to commence formal schooling in 2010.
Paternal Grandmother’s Evidence
In cross examination the paternal grandmother could not say anything positive about the Mother. The paternal grandmother has a very negative view of the Mother and this would clearly be expressed to [X].
The paternal grandmother said she could not believe a word the Mother said. That may well be true. However the paternal grandmother only knows about events from what the Father and [X] have told her, not her own observations.
The paternal grandmother said she wrote words in the notebook, being Mother’s Exhibit 1, such as:
You cannot believe a word she says.
She tells you something but means another.
She is too lazy because she cannot look after herself ha ha.
The comments by the paternal grandmother in bold after the notes she wrote in the book do not reflect well on her. For example:
Mr Jerrems picked [X] up on 2-5-08. Then 4-5-08 Sunday after lunch Ms Argyle rang Mr Jerrems telling him she has been kicked out once again and she has no where to live so don’t bring [X] back today. But 1hr later she rings to bring [X] back now (work it out).
Then on 5-5-08 Ms Argyle + [X] arrived at Mr Jerrems’s. Ms Argyle put [X] on the phone crying to her dad we don’t have anywhere to go. So Mr Jerrems told Ms Argyle she could stay here for 1 week. Nothing has changed. Mr Jerrems went home on 7-5-08. both have been in bed all day. The house is a mess. All week Ms Argyle was on the phone ringing WHO!!! On the 10-5-08 at 9pm Ms Argyle tells Mr Jerrems she is going to Melb, so she walks to the tavern to meet the person she went with. She didn’t come back all night. Came back late 12-5-08.
Another event is recorded:
Picked [X] up on 18th Dec 2008. back on 21st Dec 2008. When [X] was here on the 7th Dec 2008 [X] said to me (Nanna). “Nanna I will tell you about mummy and Mr G”. Mr G cut someone with a knife then the Police come. They got through the window looking for guns under the bed. [X] also told Ms J that Mr G had a load of furniture on the truck. [X] had said furniture here and naughty stuff here. Ms J asked what is naughty stuff. [X] replied guns to sell.
On 26 December 2008 the paternal grandmother records:
…on the way home [X] said Mummy+ Mr G had a fight. Mr G grabbed mummy by the throat he had her keys so mummy rang the police then rang Ms U to come and get them.
Then on 6 February 2009 when the Father saw the child the paternal grandmother writes:
[X] said that mummy + Mr G had a fight. Mr G threw a brick at mummy’s car and put a big dint in it. Asked where were you. [X] said she was in the car at the time.
Although the paternal grandmother’s comments are inappropriate the events she has transcribed are supported on the objective evidence. I am certain [X] has seen the Mother and Mr G fight, seen her Mother smoke a bong and that the Mother has been homeless at times.
I was not impressed that the paternal grandmother could not see that her son had behaved badly towards the Mother and in the presence of his child at times in the past. Hopefully counselling will assist the grandmother to realise that her son is at times at fault, as is the Mother, for poor behaviour.
Mother’s evidence
The Mother’s examination in chief was this.
[X] attends Kindergarten for three half days being on Monday mornings, Tuesday afternoons and Wednesday mornings.
The Mother denied Mr G ever grabbed [X] around the throat and she said that she and Mr G never fight when [X] is around.
The Mother agreed that [X] may have seen her and Mr G fighting in January 2009 and that is where [X]’s description to the grandmother of the Mother and Mr G fighting came from. The Mother was adamant that since that time she and Mr G have not had a fight.
In relation to the cupboard issue the Mother said she and [X] play hide and seek with Mr G and that [X] often hides in a cupboard.
The Mother admitted [X] may have seen her smoking a bong.
There was a car accident in 2009 that [X] was involved in and the Father was very critical of the Mother. However, I could find no criticism. The child was in a car accident but was not badly bruised. I am unsure what the Father’s criticism was other than it was a general criticism aimed at the Mother.
The Mother confirmed that in about February/March 2009 when [X] was speaking to her Father on the phone, [X] tripped over and dropped the phone and that Mr G picked up the phone and asked the Father to hang on and that the Father abused Mr G. That was poor behaviour by the Father.
Much was made of an incident at Seymour when the Father pulled in behind the car with the Mother, Mr G and [X] inside. [X] was in the rear seat. The Father said Mr G was aggressive and went to call out to him in an aggressive way. When Mr G realised who it was, he pulled his head back in. Mr G afterwards said something like “you would not want to be in hurry to get a meal at this place”.
When Mr G was cross examined he said of this incident that he was driving the car when someone tooted their horn and he turned. I accept he would have turned out of his window in an angry, aggressive way with his hand up to flip them off. When he realised it was the Father I accept he turned to [X] and said “There’s your dad”.
What this demonstrates is that when confronted Mr G’s initial reaction is aggression. This supports the Father’s position that Mr G reacts aggressively and angrily when he feels he is threatened.
However, I accept Mr G also said “There’s your dad” and was trying to be funny talking about how slow the service was.
The Mother’s residences and where she has lived was extremely difficult for me to follow. Even on her own evidence she has moved to her Mother’s home, a friend’s home, a caravan park, the Father’s home and to other places we know nothing about since [X]’s birth.
The Mother agreed with the paternal grandmother’s evidence that when [X] was born and she lived with the paternal grandmother, the paternal grandmother did all the housework.
The Mother confirmed that she had been on anti-depressants before [Y]’s death and then her bipolar was diagnosed after his death. She agreed the paternal grandmother came over daily to help her. The Mother agreed this was a very bad time in both her and the Father’s lives.
The Mother was living in [P] after separation from the Father in 2006. The Mother said she was living with her Mother at this time.
There was a domestic violence incident on 23 July 2006 between the Mother and a man named Mr A. The Mother denied being in a domestic relationship with Mr A. The Police report of 23 July 2006 says this:
AFM (Ms Argyle) and OP (Mr A) have been in an intimate R’ship for approx 7 months. On this occasion Police called to AFM’s address by AFM after OP refused to leave. Parties live at separate addresses. Parties had had verbal altercation and OP had thrown property around the house…OP had left before the Police arrived. AFM states the relationship is over and is aware of IVO process instructed to call if OP re-attends but this is not likely… this is first domestic incident between parties… verbal only.
The Mother said he was not a boyfriend, he was just a friend. That is not what the Police report states. Again, I do not accept the Mother’s version of events and I prefer what is in the Police records. The Mother said she could not remember telling the Police these things. I have no idea where the Mother was living with [X] at this time either, whether it was with the maternal grandmother, Mr A or somewhere else.
The Mother then said she had asked Mr A to leave as he had an argument with a neighbour. She did not report this to the Police, nor did she put it in her affidavit. The Mother did admit finally that she and Mr A were in a romantic relationship. The Mother did not think [X] was with her at the time. However I do not accept what the Mother says and I am unable to make a finding whether [X] witnessed this violence or not. The mother agreed [X] knows Mr A. The Mother did not obtain an Intervention Order against Mr A either.
The Mother denied that her boyfriend, Mr M the man the maternal grandmother referred to as a “mongrel”, had smashed her caravan on 29 December 2007. However, this is what the Police notes reveal:
The AFM (Mother) and defendant (Mr M) have been involved in a defacto relationship for approximately (1) year – the defendant has abused the AFM on numerous occasions during their relationship which have not been reported to the police – there has been no previous application for an intervention order made by the AFM against the defendant – the AFM has a (2) year old daughter….
The AFM and defendant move to [Q] Caravan Park [H] in late November 2007. On Saturday 29/12/07 at approximately 10.15pm the AFM was awoken by the defendant who started yelling and abusing the AFM for no apparent reason – the child was staying with her Father in [W] on this date. The AFM tried to cal the defendant down at which stage he left the caravan – a short time later the defendant punched the glass sliding door from outside causing it to smash and then entered the caravan. The defendant then pushed the AFM before leaving the caravan…The AFM has since left the caravan park and is residing with her parents in [H]. The AFM is in fear for her safety as she believes the defendant will again assault her and damage property if given the opportunity. The AFM does not want the relationship with the defendant to continue.
The Mother said in her affidavit that she had been living in the caravan since December 2008 as the maternal grandmother was unwell with golden staph and it was better that she and [X] lived there to give the maternal grandmother a break.
The Police notes reveal it was late November when the Mother, [X] and Mr M moved into the caravan. The Mother said in her affidavit and in her oral evidence that she was coming and going from the caravan to her Mother’s home. That is not what the Police report says.
The Mother said Mr M had only been abusive on several occasions before the December incident. She said he abused her for the first time about three months into the relationship by calling her names in a loud angry voice, he was not physically violent just aggressive. She said it happened at their workplace at [omitted]. The Mother said [X] had never seen an argument between she and Mr M and he really only came out to the caravan on weekends.
The Mother said there was no physical abuse, only verbal incidents prior to this time. She did not think [X] would have observed any incidents. I do not accept the Mother’s version of events either orally or in her affidavit. I accept the version in the Police reports and what the maternal grandmother told the Department of Human Services namely that the man was a mongrel and that there was violence in their relationship. The Mother did not obtain an Intervention Order against Mr M.
When it was put to the Mother that she had nowhere to live after Mr M smashed the caravan the Mother said:
No. I always had my mum’s house to go to.
Having the maternal grandmother’s house to go to is not the same as having her own, secure and stable accommodation. This is the reason the Mother went to live at the Father’s home from 4 January 2008 until 24 January 2008. She did not have anywhere to live.
The Mother denied she ever yelled to frighten her daughter or called her a “little bitch”. The Mother denied she let her daughter stay up to 10pm. The Mother said [X] usually went to bed between 7pm and 8pm and that she had an afternoon nap at times.
The Mother denied she never cooked or cleaned the dishes at the house. She denied ringing the Father on 23 February 2008 saying she could not cope with [X]. She denied calling the Father on 26 February 2008 demanding the Father to come and collect [X] and changing her mind on 27 February 2008 and telling him that he could not collect her as they were having a sleep.
The Mother agreed that she has asked the Father to have [X] in his care from after kindergarten on 27 March until April 2008. The child came into her care after this period and she returned to the Father’s home on 5 May 2008.
The Mother agreed that when she left the Father’s home on 25 July 2008 after having received his Court Application she told him she was going to the maternal grandmother’s for a few days, not that she was permanently removing herself and [X]. [X] did not say goodbye to her dad even though she had been living with him since 5 May 2008. The Mother agreed that [X] had become quite used to living with the Father after this period of time.
I accept the Mother’s explanation as to why she did not attend Court on 13October 2008. That was because of the error in the solicitor’s letter.
The Mother’s affidavit evidence was that at the time these papers were being served upon her she was living with the maternal grandmother at [H]. Her oral evidence was that she was staying at a girlfriend’s place in Melbourne on 23 October 2008 and that the Father rang her and told her everything was over and that she need not attend Court. I cannot see how the Mother could have made it to Court in Albury from Melbourne on 23 October 2008 in time for 10am. There is some force in the Father’s case that he did not know where the Mother was living at this time.
The Mother said that her relationship with Mr G commenced in July 2008 and after she had left the Father’s home. The Mother said that she and the Father had been trying to reconcile from May 2008 to July 2008. This is denied by the Father.
The Mother said the reason she believed she and the Father were trying to reconcile was that they would sleep in the same bed and talk about getting back together. The Mother did not put any of this in her affidavit.
From the Department of Human Services records the Father rang the Department on the 12 May 2008 as the Mother had taken off to a party on Friday and had not come home for the whole weekend. The Mother denied this had occurred. The Father reported to the Department of Human Services on 12 May 2008:
The writer received a phone call from the Father Mr Jerrems who advised that Ms Argyle and [X] are living with him as he needs to afford his daughter somewhere to live, however he intends to kick the Mother out tonight, and he has definitely not reunited with her and he never would.
He said on Friday night Ms Argyle took off to Albury to party and she has not returned as yet...
12 May 2008 was a Monday and the Mother “took off” on Friday 9 May 2008:
PGM (paternal grandmother) is minding [X]. He said that he would like Ms Argyle to leave and let [X] stay there... Mr Jerrems said that Ms Argyle is using pills, speed and smoking cannabis… He said that on Friday when he came home Ms Argyle was asleep, and that [X] was playing unsupervised. He said that the mother had not obtained an AVO, nor had she enrolled [X] in child care.
On 9 May 2008 the Department of Human Services had received a call from the Mother who was crying and distressed:
Ms Argyle advised that as of Monday she and her daughter have moved back to [W] to live with the biological Father
Mr Jerrems...
…Ms Argyle said that they are reuniting as a couple rather than she seeking some temporary accommodation there.
Ms Argyle said that she had left a domestically violent relationship with her ex partner Mr M, and that she had attended at the local court house today to seek an Intervention Order.
The Mother’s story was lie. The Mother went on to say:
…Mr M had been harassing her on the phone, and that she is petrified of him as he suffers from ADHD and schizophrenia.
Ms Argyle said she had enrolled her daughter in local crèche, ABC [W], and that she had also enrolled her daughter into kinder, locally… The writer asked if she received support from
Mr Jerrems’ extended family, and she said that she did, and that they visited the PGM two days ago.
The writer asked the mother if she was smoking cannabis and the mother said no.
That story was also a lie. The Mother’s case was that the paternal family had never supported her. Clearly they have.
There was no Intervention Order. The Mother told the Court she had only given up cannabis when she found out she was pregnant early this year. She was smoking cannabis at this time.
What is astonishing is that when the Mother left the Father’s home on 24 January 2008 she resumed her relationship with Mr M and still has contact with him to this day. The Mother said:
We talk. We email. He has moved to the country. I sometimes talk to him and ask him about his niece and nephews.
Yet in May 2008 she was telling the Department of Human Services she was petrified of him, he has ADHD and schizophrenia and was violent.
The Mother was either lying to the Department of Human Services when she said she had left a domestically violent relationship with Mr M, was petrified of him and he suffered from ADHD and schizophrenia or lying to the Court when she said there was only yelling between she and Mr M at work prior to the caravan smashing incident.
I find that [X] has been exposed to domestic violence whilst the Mother lived with Mr M and Mr A. The real level of which I can only guess at. The maternal grandmother is correct; Mr M is a mongrel and I suspect so is Mr A.
The Mother agreed that the Father had made a huge effort in travelling to ensure his time with his daughter when she moved back to the Melbourne area in 2007.
The Mother agreed that she did ask the Father for some motels and accommodation in March 2007, but not because she was homeless but because she was thinking of staying. I have formed a contrary view. The Mother had no where to stay in March 2007.
The Mother denied telling the Father on 31 July 2007 she was living out of her car but she did agree she had a lot of clothes and things in the car at that time as she travelling a lot and could not think why the Father would say that. The Father could have made up something far worse than that she was living in the car. I find the Mother did tell the Father she was living in her car because she had no home for [X] and knew he would invite her back.
I find there is significant force in the Father’s allegation of homelessness.
The evidence from the Father was that the Mother told him in February 2007 she had cancer of the cervix and would need chemotherapy.
The Mother has polycystic lesions on her ovaries. Her evidence on this issue was extremely confusing. The Mother said this:
At that time chemotherapy was an option but I had surgery and had the lesions removed.
The Mother was asked the identity of her gynaecologist however become unwell and the proceedings were adjourned.
On resumption of the hearing the Mother said that there was a possibility she mentioned to the Father she needed chemotherapy, but in the end she had had day surgery and everything was fine.
Subpoenaed material confirmed the Mother’s evidence of her hospitalisation. She attended [omitted] Hospital from 16 to 17 January 2007 and again on the 7 September 2007. She was asked when chemotherapy was mentioned. The Mother said she was told this in hospital. When asked if she had further consultations she said she only went back once and has had no further consultations for this condition which she agreed was ongoing.
The Mother was asked if she had a gynaecologist. She answered “no” and that she has only consulted a general practitioner since [X] was born.
The Mother denied that she exaggerated her condition when she spoke to the Father, but I formed the view that she did so exaggerate her condition. It is consistent with her continued manipulation of the Father’s love and affection for his daughter to give the Mother an advantage as she sees it.
The Mother was asked about her bipolar condition. She had spoken about this with Ms Deane. The Mother agreed Ms Deane had encouraged her to obtain at least a letter from her general practitioner in relation to her treatment for this condition and her ongoing prognosis. No medical evidence concerning the Mother’s reported significant psychiatric history and mental illnesses being depression and bipolar disorder was produced or tendered at the hearing by her.
The Mother did not mention her bipolar diagnosis in her affidavit filed in November 2008 when I reversed the orders made on an undefended basis. The Mother said there was no reason she did not include it, she just forgot.
The Mother knew that her mental health was clearly an issue. It was one of the issues raised in the Father’s his affidavit which led me to make the undefended orders in the first place.
The Mother said she had seen a counsellor. There was no evidence from this counsellor.
The Mother has a significant history of taking prescription drugs. The Mother takes Effexor for depression, Seraquil for bipolar disorder and Diazepam on a needs basis for anxiety. Dr L is her current doctor and has been so for some time. The Mother was changed from Seraquil by Dr L to Zyprexa in 2009. The Mother continues with Effexor and Diazepam.
The first script filled from Dr L by the Mother is on 4 August 2008. The Mother was still seeing a Dr K and had previously seen a Dr P.
Dr L prescribed her with Diazepam on 26 August 2008 and Zyprexa (Olanzapine) on 13 February 2009. The Mother agreed that when Dr L prescribed her Zyprexa in February 2009 she told her to stop taking her Seraquil (Quetiapine).
The Medicare records tell a very different story.
The Mother had scripts filled from Dr L, Dr K and Dr P throughout 2008 and 2009 despite her evidence that from October 2008 Dr L was her General Practitioner
The Mother was obtaining scripts for Diazepam, Effexor and Zyprexa from Dr L in 2008 and 2009 and filling them.
The Mother filled a script for 28 tablets of Zyprexa on 15 February 2009 and 56 tablets of Effexor on 20 February 2009 from prescriptions written by Dr L on 13 February 2009.
On 20 February 2009 the Mother obtained 60 Seraquil tablets from a script dated 25 June 2008 written by Dr P. On 1 March 2009 she obtained 90 Seraquil tablets from a script dated 22 July 2008 written by Dr K.
Thus the Mother obtained 150 tablets of Seraquil and 28 tablets of Zyprexa in the period 15 February 2009 to 1 March 2009 from 3 separate doctors. Furthermore she obtained 150 tablets of Seraquil after 13 February 2009 a date on which Dr L, her General Practitioner, had told her to cease using that drug as she was being prescribed Zyprexa. These tablets were obtained by filling scripts almost six months old.
The Mother had two separate antipsychotic drugs in her possession at the one time and her General Practitioner knew nothing of this.
When this put to the Mother her explanation was this:
I, well I must have been somewhere where I didn’t have the drugs.
The Mother filled the script written by Dr L for Zyprexa on
15 February 2009at the [R] Pharmacy. She filled the script for Seraquil written by Dr P and the script written by Dr L for Effexor at the [R] Pharmacy on 20 February, the same day. She was careful not to have the scripts for her two inconsistent antipsychotic drugs filled at the same time at the same pharmacy as she knew she would have been unable to do so.
She filled the script for Seraquil written by Dr K at [B] Pharmacy on
1 March 2009.
The Mother’s evidence that she needed to fill her script for Seraquil twice within two weeks because she did not have her Zyprexa with her is not accepted by me.
The Mother is either abusing prescribed medication or providing it to someone else. Her General Practitioner is unaware she has filled prescriptions for two inconsistent antipsychotic drugs. The Mother’s belief that she can swap these powerful drugs and not tell her General Practitioner what she is doing is dangerous in the extreme and poses a significant threat to [X]’s wellbeing whilst in her Mother’s care.
Whatever version of events I choose to believe and I do not know what to believe in this case, it is well described by the paternal grandmother in her notebook when she wrote “she will tell you one thing and do another.” The mother does so to her treating General Practitioner.
The Mother had to agree it is very dangerous to take two separate antipsychotic drugs at different times without telling your doctor and is a misuse of prescription drugs. Couple this with the absence of medical evidence from any of the Mother’s treating doctors, the Court’s concern at the Mother’s attitude and behaviour to the use of prescription medication is heightened. The Father’s concern of the Mother’s use of pills and prescription medication is well made out on this evidence.
The Mother had been urged by the Family Consultant to obtain medical evidence, she failed to do this. She did not provide the name of her counsellor to the Court or to the Family Consultant to which she referred in her affidavit of the 14 November 2008. The Mother said in oral evidence that she was getting counselling through her General Practitioner at [H], Dr Z. That is not what the Mother said in her Affidavit of 14 November 2008.
The Mother last saw Dr Z in March 2008.
The Mother has not carried out any urinalysis so that the Court can be satisfied that she is no longer using illegal drugs or misusing prescription drugs. The Mother said she completed a urine test about two months ago in April, but this has not been produced. There is some mention of a urinalysis in the medical notes of Dr L, however the result has not been provided.
The relationship between Mr G and the Mother is a significant issue for the Court.
There was an extremely violent incident between Mr G and the Mother on 18 January 2009. The Police Report states:
Police attended address regarding a domestic dispute between Respondent and Aggrieved Family Member (AFM). AFM located around the corner on [omitted] Road in vehicle with daughter. [X] ([born in 2005]). AFM stated Respondent had been out and returned home where he was aggressive and agitated causing a fight which resulted in her getting punched in the face, her daughters toys being broken and other damage caused to the house.
The AFM then grabbed her daughter and got into car where the Respondent ran outside and began throwing bricks at the vehicle which caused significant damage to the bonnet.
AFM then drove off to a milk bar around the corner where she called police. AFM states that parties have been together for approx 5 months and in the last 2 months things have been getting violent. Daughter is not his daughter and witnessed entire event including being present in the vehicle when the bricks were being thrown.
Daughter as well as AFM were very upset when police attended. Respondent does not always live at address, he has his own home and us an interstate truck driver. When he returns he stay’s at the AFM’s home and has many possessions there…
…Police checked Respondent who has significant numbers of priors for violence related crime as well as warning for his aggression. Police concerned that Respondent may return to the address even if asked to leave by police and cause further harm or damage to AFM or daughter. AFM states she wants the relationship to end now and will attend court tomorrow for a full intervention order against Respondent. AFM further stated she did not want Police to charge Respondent with the assault or damage and just wanted him ‘gone’ from her life.
The Mother’s evidence is that three weeks after that event, they reconciled. A repeat of her relationship with Mr M, the mongrel.
The Mother was then asked if she had taken out an Intervention Order against Mr G for the domestic violence incident. The Mother said yes but did not have it with her. She said:
oh no, I did not think that you guys would want it.
I found that evidence extraordinary given the concerns raised by the Father.
The Intervention Order was taken out on 18 January 2009 and parties went to Court on 19 January 2009.
Victorian Legal Aid wrote to the Mother on 20 January 2009:
I refer to the above matter and to your attendance at our office at the Heidelberg Magistrates Court on 19 January 2009.
I confirm that on that day the police made application for an Intervention Order on your behalf and against Mr G.
As you are aware, Mr G consented to the making of the Order without admitting to any at the allegations. A full Order was made against Mr G except for clause 2 which prohibits contacting or communicating with you and [X]. This means that Mr G is permitted to contact and communicate with both you and [X]. However, he cannot come within 200 metres of you and [X] unless to participate in counselling or mediation by agreement.
I cannot understand how an Intervention Order can allow someone to communicate and contact but not to come within 200 metres of the protected person. The order was not worth the paper it was written on and in any event the Mother completely ignored it when she reconciled after this violent and aggressive incident at the hands of Mr G.
The Mother could not see anything wrong in her choices or behaviour. She was unable to understand that the evidence disclosed a pattern of behaviour that was repeating itself again and again in her life: violence in her domestic relationships and failure to deal with this issue.
Her first violent relationship was with the Father. She then moved to Mr A, then to Mr M and now to Mr G, all of whom have perpetrated acts of violence in varying degrees towards her and in the presence of [X]. [X] has been exposed to poor behaviour by all of these men including her Father.
However, as at the hearing date and for well over 18 months, the Father’s behaviour and lifestyle choices have changed for the better. He has undergone counselling relating to his anger and aggression associated with his chronic marijuana use. He has not used marijuana for 18 months save for one relapse in February 2009.
On the other hand the Mother’s behaviour and lifestyle choices have remained the same. She continues to engage in violent relationships. She tells us she only ceased using marijuana in February 2009 when she discovered she was pregnant with Mr G’s child. There is no independent drug screening to support her evidence unlike the drug screens which support the Father’s abstinence from this drug for over 18 months.
The Mother said that she did not think that having a new baby would have an impact on her capacity to care for [X]. I have formed a completely contrary view. It would have an impact for any Mother particularly one with such fragile mental health as the Mother and inability to follow through with or accept help from authorities.
I have concerns for the new baby as well as [X] in the Mother’s care.
Mr G’s Evidence
Mr G, to his credit, came to Court and gave evidence. He was frank and open. He had not filed an affidavit but had been involved in the Family Report interviews.
Mr G’s version of his aggressive words to the Father in November 2008 outside the Court and on the street was:
Don’t try to keep me out of Ms Argyle’s and [X]’s life or I will kick your fucking head in, cunt.
As far as I can see, there was no provocation for Mr G to say that to the Father. He cannot recall what the Father said or did in reply. He denied security was called to remove him. What is of concern is that this is Mr G’s natural reaction to something that had not gone his way.
Mr G stated that he had since approached the Father and said:
[Mr Jerrems], I am sorry for the way I acted that day. Accept my apologies.
Mr G stated that he then put out his hand and the Father said to Mr G:
It’s all good, it’s all good.
I accept Mr G’s version of events in February/March 2009 when [X] was speaking to the Father on the phone and fell over. The Father behaved badly when he swore at Mr G, who I accept was only picking up the phone to put [X] back on.
I accept Mr G’s evidence that he was aggressively leaning out of his car, ready to yell at whoever it was who had beeped him at the drive-thru at Seymour and when he saw it was the Father, he pulled his head in. Again aggression is his first reaction.
Ms Southey put to Mr G that he and the Mother were in a de facto relationship from 7 July 2008. He disagreed and said that he and the Mother got together after they met through a mutual friend on the weekend of 12 July 2008 at Shepparton at someone’s fiftieth birthday party.
He agreed he had met the Mother earlier at a BP Service Station out of [W]. He said the Mother was at the truck stop to meet a bloke called [nickname omitted]. This was in about May 2008.
[Nickname omitted] turned out to be Mr A. A violent thug of a man with whom the Mother had prior relationship after separating from the Father. Despite his behaviour towards her in [X]’s presence, the Mother still contacts him.
This meeting of the Mother with Mr A in May 2008 at the BP fits in with her disappearing from Friday night to some time the next week on the weekend of 9 to 12 May 2008 as reported to the Department of Human Services by the Father. It is also at the same time the Mother asks the Court to believe she and the Father were attempting to reconcile.
Mr G was asked whether he was aware the Mother was living with the Father up to 25 July 2008. Mr G said he was, but he saw the Mother every weekend. Mr G had his own home at [T] and still does. The Mother would travel from [W] or from Melbourne to meet him.
The Mother did not leave the Father’s home until 25 July 2008 and she maintained in her affidavit and oral evidence that throughout this period he and she were attempting reconciliation. I do not accept the Mother’s evidence of a reconciliation as her conduct is inconsistent with reconciliation. I prefer the Father’s evidence that she was living at his home in order to give his daughter a home as the Mother was unable to do so.
Further the Father’s evidence that the Mother was leaving the child with him every weekend when they were living together from May 2008 to 25 July 2008 has been borne out by Mr G’s evidence. The Mother is poor liar.
Mr G’s evidence which I accept is inconsistent with the Mother’s affidavit of 14 November 2008. The Mother mentions nothing of her relationship with Mr G whilst living at the Father’s home and the thrust is that she met Mr G shortly after she left the Father’s home. Clearly she commenced the relationship well before she left the Father’s home and had been having a relationship with Mr A as well whilst living at the Father’s home.
Mr G confirmed that the Mother had been living with her Mother and [X] at the grandmother’s home when she left the Father’s home and that she and he spent most weekends together.
Mr G said the Mother was living at [V] in December 2008 and in January 2009. He agreed there was a domestic dispute on 18 January 2009 when the Mother called the Police.
His version of this event was as follows. He had been waiting three hours at the Alpine truck wash to wash his truck and got home to have lunch. He was in an aggressive mood, they had an argument, they both shouted, Ms Argyle accused him of having an affair and he said “you have got to stop lying”. He had only been driving interstate for one week at that time; prior to this he had been doing local trips so he could not possibly be having an affair with someone on an interstate truck stop such as the BP at [W]. He agreed that the Mother told the Police he punched her in the face, but he denied he did this.
Mr G said he asked the Mother to stop but she kept screaming and ranting, she got into the car, he lost his temper and threw half a brick at her. When he realised what he had done, he got frightened, he thought he had done something irreversible and he was very sorry for what he had done.
Mr G said he went to his doctors about his behaviour and has had two counselling interventions on the telephone on the advice of his General Practitioner. He denied throwing [X]’s toys around and breaking them but agrees he threw [X]’s Wii onto the ground outside the house. [X] would have seen this happen as she was in the car at the time.
He said he poked the Mother’s forehead three times with his finger but denies punching her. Even so, poking as he described it is very threatening behaviour of a man to a woman in the presence of a young child.
At the hearing we discovered another person was living at the premises at this time with [X] and the Mother. An eighteen year old girl called [Z]. [Z] has not been mentioned in the Mother’s material. Mr G agreed that [X] would have heard the noise of the brick and would have been frightened. Mr G said he, the Mother and [X] were all frightened. He agreed his behaviour was appalling and appalling behaviour for [X] to witness.
It was put to Mr G that this was not the first time he has had a nasty incident with [X]’s mum. He said:
Oh, there may have been one more occasion.
It was put to him that the Mother said there had been pushing and shoving in the months previously. Mr G disagreed but said that three months prior there had been a verbal altercation. [X] was at the Father’s house at that time. Mr G said the argument was over money because he was doing a local truck run which is not as lucrative as the interstate run he is now doing.
Mr G said he had spoken to the Mens Helpline on two occasions since the incident for about thirty minutes. He said it has been hard for him to take time off because of his work commitments, working five days a week and sometimes Saturdays. Mr G said he was happy to go to counselling but the timing was very difficult. He agreed it was important that he did something about it. Mr G said that if the Court made such an Order it would help him get time off work to attend counselling. Mr G’s employers are not as supportive as the Father’s employers.
Mr G was referred to two further incidents of behaviour reported to the Police in the past. On 4 December 2007 he was in Court charged with recklessly causing serious injury and failing to answer bail. He was asked what happened and he said:
I punched a man in the face. He came up to me and said “I have good smack”. I said “I have good smack too” and then I punched him in the face.
When asked why he would do that, Mr G said:
I get defensive. I have seen good friends die from this stuff.
This is no reason to beat up someone. The thing to do is call the Police. This demonstrates again that Mr G’s first reaction is aggression and violence.
He has had a further offence of stealing from a shop in 2003. He accidentally put two cartons of Ski yoghurt in his jacket whilst paying for other goods. He was convicted and given a community based order for 20 hours. He pleaded guilty. He could have paid a fine but because he was unemployed that was not available to him so he did the 20 hours community service.
He denied ever grabbing [X] around the throat. However he agreed [X] may have seen him and her Mother argue before the incident in January 2009. He was adamant there was never a fist thrown in front of [X]. He agreed [X] would be distressed if he and her Mother fought.
Mr G became a somewhat emotional. He said he has changed as he realised things had to change and that he cannot go on as he has. He said before he met the Mother he was told he could not have children:
I wanted a child in my life and so I took [X] on board.
Mr G agreed he had anger issues. He now uses other techniques: he walks away, polishes his truck and thinks about other things. He agreed he was not using that strategy in January 2009.
Mr G said he likes to spend time with [X] and the Mother on weekends. He said that is what couples do.
Mr G is going to try and get a two week roster of three days on and two days off when the baby is born so that he has more time to help the Mother with the baby.
Mr G said that both he and the Mother were responsible for the argument on 18 January 2009, but that the Mother did start it. Mr G said:
I have to now pull my head in. We’ve got to have a better relationship for our baby.
It turns out that Mr G smokes cannabis and continues to smoke despite being a truck driver and knowing he will be subject to random tests. His employer does not have the same excellent employee service that the Father’s employer does with the random urinalysis testing and counselling.
Maternal Grandmother’s Evidence
The maternal grandmother believes that 95% of men are “mongrels” and that is why she called Mr M a mongrel. She has not called Mr G, Mr A or the Father a mongrel and yet they are men. Mr M is a mongrel.
The maternal grandmother had a positive view of Mr G and her daughter’s relationship with him.
It was clear to me that the maternal grandmother had no idea of the serious domestic violence incident at the Mother’s home on 18 January 2009. The maternal grandmother was quite shocked by that evidence. Her words were:
I knew they argued. I did not know of this violence. No.
It was put to the maternal grandmother that the Mother had told the Police that Mr G had punched her in the face. The grandmother said “What?”. The maternal grandmother was then asked:
Are you still confident your daughter provides a safe home for your granddaughter?
The maternal grandmother said these words:
Well having heard that: No, I am not so sure she does.
The maternal grandmother was correct.
Family Consultant’s Evidence
Ms Deane’s oral evidence and family report were of great assistance. She asked this Court to test the veracity of each party’s evidence and that I was to place the child in the most stable environment and ensure the child was protected from the risk of physical and emotional harm in witnessing and or being subjected to violence.
Ms Deane was unaware of the extent of the family violence between the Mother and Mr G in January 2009 at the time of the report interviews. The Mother and Mr G did not raise it with her. She found it out from the subpoenaed material.
Ms Deane was asked about the cycle of domestic violence relationships. She said this:
After a domestic violence incident the parties go into a honeymoon phase. They are sorry about what they’ve done, they promise not to do it again, the victim is hopeful and things proceed well for a time. There is a build up of tension, escalation and further incident and the cycle is repeated.
When a person has a pattern of engaging in a domestic violent relationship then to break this cycle they need some significant intervention: counselling, education, following through with intervention orders, maintaining a separate home to the perpetrator. They would need couples counselling as well as individual counselling to get themselves out of this cycle.
Ms Deane was not concerned about the Father’s relapse in smoking marijuana on one occasion in February 2009, and indeed his random urinalysis tests show that it was one incident.
Ms Deane found that [X] was a child with a close relationship with both her parents and that the strength of this relationship would buffer her if she went to live with one or the other. She believed [X] would manage living with the Father provided she spent regular time with the Mother and that the travel was not too hard on her.
Ms Deane was very impressed with the arrangements the Father had made in relation to his reduced working hours to enable him to take the child to school and that the paternal grandmother lives effectively over the road from the school and would be able to collect [X] after school.
Ms Deane said [X] is a child who is used to separation from her Mother and has been apart from her Mother since a young age for up to a week at a time. [X] would have a strong sense of belonging to her Father’s home because that has been the most stable accommodation she has known in her life. [X] has a bedroom at that home and she would gain comfort and strength from that.
It was put to Ms Deane that the Mother’s evidence was that [X] was a sensitive child who covers her ears when she hears a loud noise. This may well mean the child has been exposed to significant yelling and fighting in the care of her Mother and between her parents as late as January 2009.
Ms Wheeler put to Ms Deane that this was an assessment of risk case. That the Court’s task was to ensure [X]’s meaningful relationship with both her parents was maintained whilst minimising those risks. The risks were:
(1)Exposure to domestic violence of the parents and their partners;
(2)Negative statements made in [X]’s presence about her parents;
(3)Risk of drug use of each parent and its consequences;
(4)Stability for the child and housing;
(5)Mental Health issues.
Ms Deane interrupted and said she had no concerns about the Father’s mental health. That was never an issue in this case.
It was put to Ms Deane that she has concerns about the Father being a primary carer of the child. Ms Deane said:
I have no concerns about his parenting capacity. It was of a very good and competent standard.
Ms Deane said the Father no longer has mood swings as he experienced when using marijuana and there have been positive changes with him since he ceased using cannabis.
Ms Deane’s assessment of the Father was he would provide the child with very attentive and good quality parenting.
Ms Deane was concerned about the negative comments the Father and paternal grandmother make about the Mother and her partners in the presence of the child and also that the Father cannot let the child speak of Mr G. Ms Deane said they would need counselling to address this. Each of them has agreed to do that.
This is the most significant risk of harm to the child in her Father’s care that I have found. That is, that her Father and grandmother would speak negatively of the Mother and her partner. Ms Wheeler tried to have Ms Deane agree that negative comments about a parent are just as damaging to a child as violence. Ms Deane would not agree to that proposition and I would not have accepted it in this matter.
Ms Wheeler asked:
If the Mother ends a domestically violent relationship then your concerns are allayed?
The difficulty with that proposition is that the Mother ends one violent relationship and immediately, if not before it ends, goes into another. That is the cycle of domestic violent relationship. The Mother has not spent any time without a man in her life that I could see.
The Mother did not even tell her own Mother, who is one of her supports, of the level of violence perpetrated against her and [X] by
Mr G in January 2009. The maternal grandmother was shocked when she heard this and changed her affidavit evidence to say that maybe her daughter does not provide a safe and stable home for her granddaughter in those circumstances.
Ms Deane agreed there may well be a disruption to [X]’s attachment if she lived with her Father but that [X] was strongly bonded to both her parents.
I do think she could manage such a move but there may be consequences for [X] of such a move and they need to be managed.
Ms Deane said it would be much better if the parents lived closer. The Mother can move. She has moved all over the place. If the Mother wishes to move closer to her daughter she is able to do so. But the Mother said she could not.
[X] presented to Ms Deane as a happy, pretty, well nurtured, confident, four and a half year old, and that attending kindergarten regularly had been good for her.
Ms Deane was most concerned that the Mother has failed to access any of the services offered to her for women who have suffered domestic violence and for children who have witnessed same.
That is consistent with the Father’s evidence that when he asked the Mother to go with him to the authorities to disclose the sexual abuse allegation she declined to do so and left his home. That is what the Mother does. As soon as services are offered to her, when it is suggested she take out an intervention order, go and seek counselling, bring a matter to authorities, the Mother avoids it and leaves. She does not face up to these issues or carry through. Carrying through is crucial for the Mother if she is to break the cycle of violent relationships she enters into. Ms Deane agreed with this assessment.
I am concerned that the Mother will now become even more reluctant to disclose what has happened as she has seen the consequences of her failure to properly protect her daughter and report matters to the authorities and follow through. The Mother not telling her own Mother, one of her support bases, about the significant domestic violence with Mr G causes this Court real concern about her capacity to protect the child from harm and this would be particularly so after this difficult hearing.
Submissions
Independent Children’s Lawyer
The Independent Children’s Lawyer gave submissions first.
The Independent Children’s Lawyer encapsulated the concerns of the Court:
Which parent can provide the most stable, caring and violent free home.
There is no doubt on the evidence it is the Father. The Mother has failed to carry out her obligation and duties to her daughter under s.60CC (2)(b) of the act which is:
to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother has carried out her obligation and duties to her daughter under s.60CC (2)(a) the act which is to promote:
the benefit to the child of having a meaningful relationship with both of the child's parents.
However one of the reasons this has occurred is that the Mother has fled to the Father’s home as a place of safety which has had the consequence of the child and the Father spending significant periods of time together. Further, the Father travelled a long distances for many years to maintain his relationship with his daughter.
The Mother has failed to protect the child from exposure to family violence and has failed to protect the child from psychological harm from being so exposed.
The Mother went back to Mr G three weeks after a very violent incident where he threw bricks at her car, damaged her daughter’s toys, and I find he punched her, with her daughter witnessing the whole event. The Mother was so terrified at the time she went around the corner to ring the Police. Three weeks later she is back with him in contravention of the first Intervention Order she has ever taken out. They have no counselling about the issue. The Mother sought to minimise this incident at the hearing.
The Mother declined intervention from the Department of Human Services for herself and [X] for counselling having witnessed this event; all she did was accept written information. When pressed in cross examination about what she learnt from that information she was not able to tell the Court a thing. The Intervention Order she took out was meaningless.
The Mother continues to repeat the pattern of behaviour. She pursues relationships with violent men. She continued a relationship with Mr A and was still having some sort of relationship with him at the same time she said she was reconciling with the Father in May/June 2008; she commenced a relationship with Mr G in July 2008 at least two weeks, if not more, before she left the Father’s home, and yet tells the Court and Ms Deane that she was trying to reconcile with the Father. She lied. She goes back to men who have beaten her up.
[X] is completely reliant upon her parents to protect her.
When it was put to the Mother that she had failed to protect her daughter from exposure to family violence she said:
Nobody has hurt my daughter. I wouldn’t let it happen.
I said to the Mother:
Ma’am we are not talking about your child necessarily being hit. But you place her in a situation to be exposed to family violence. You have done that again and again in each relationship you have had.
The Mother did not understand that this is the thrust of the Family Law Act and her obligation as a parent. It is not only to prevent a child being physically injured but to prevent a child from being exposed to violence between others particularly a parent upon whom a child is totally dependent.
[X] is totally reliant upon her parents. She cannot care for herself. If a parent is harmed then [X] is harmed.
Mr A damaged property at the Mother’s home in July 2006 when she had Police to remove him. Yet she continues to have a relationship with Mr A.
Mr M, the mongrel, is a real concern destroying [X]’s home and property. Mr M smashed the caravan – the very place [X] and the Mother lived. Fortunately [X] was not there at that time. The Mother left Mr M and went to the Father on 4 January 2008. When she left on 24 January 2008 she returned, not to her Mother’s home, but to Mr M.
There must have been further incidents between the Mother and Mr M after 24 January 2008 of which we know nothing as the Mother returned to the Father on 5 May 2008 as she was again homeless. She told the Department of Human Services on 9 May 2008 Mr M was schizophrenic, had ADHD and that there was domestic violence in the relationship. She knew that on 4 January 2008 when she left him and came to the Father’s home; yet she returned to him after 24 January 2008 knowing what he was like. The mother exposed her daughter to significant risk of physical and psychological harm is so doing.
Mr G’s manner of dealing with conflict and difficulty is aggression. His conduct towards the Father in November 2008 was completely unprovoked. His beating up someone who offered him drugs in 2007 was unprovoked. It is a bizarre way to behave. It happened at the drive-thru at Seymour when he thought someone had beeped their horn at him, he was ready to turn around and yell at them and flip them off before he saw it was the Father.
The Father has perpetrated acts of violence against the Mother on three occasions. On two of those occasions [X] was present. The latest being in January 2008 where they pushed each other and verbally insulted each other at his home. This is extremely poor behaviour by him.
On the positive side the Father has given up smoking marijuana for
18 months. He, the Mother and the paternal grandmother report his mood has improved, he has more energy, he is happier and he realises that smoking marijuana was having a negative effect upon him.
The Father has been the only parent to provide this child with any security or safety and the Mother has run to him on at least three occasions when she has been evicted from premises because of domestically violent relationships she continues to engage in.
There is a significant nexus between the Father’s drug use and control of his mood. That is evident in his medical records of 3 April 2008. The Father will continue to undergo random urinalysis to retain his employment, he has a supportive employer, he can attend counselling whenever he likes, he has a supportive Mother and he has taken active steps to correct what has been very poor behaviour of his in the past. He understands the nexus between dope and poor behaviour.
In the Mother’s home Mr G still uses marijuana and the Mother tells us she only gave up when she became pregnant. They do not understand the nexus.
The Father is stable in his work life, his home life, and his accommodation. The Father takes responsibility for payment of Child Support.
The Court does not really know where [X] was living after January 2006. She lived with her Mother when they left the Father’s home. They lived at [P] and then later at [H] with the maternal grandmother. She had some sort of relationship with Mr A.
The Mother lived in a caravan with Mr M from November 2007 until he smashed it up and the Mother fled to the Father’s home on
4 January 2008. She went back to Mr M between 24 January 2008 and May 2008, then back to the Father’s home as she had no where to stay.
The child would have no sense of her own bedroom or things whilst living with her Mother. She has only provided stability of accommodation for the child from about August 2008.
The Mother does not have secure accommodation at present despite the fact she said she did. The Exhibit she tendered did not give a date or time for her to take up a two bedroom apartment. When she gives birth she will move again. At the moment she lives in a property with a man named “Mr J” who the Mother agrees drinks too much, but he keeps to himself. [X] has reported an old man called Mr J living with them at their home.
The Mother gave evidence that she had to move from one place because of a damaged roof. I do not accept that evidence. No doubt violence by a boyfriend was the cause. The Mother may have had independent accommodation since October 2008 however, she shares her home with a man who consumes too much alcohol and has not given evidence.
The Mother’s mental health status. What is it? I have no idea. I do not know if she has a bipolar disorder. She has been taking two anti-psychotic medications at the same time, taking which medication she wants when it suits her without letting her General Practitioner know and against her General Practitioner’s advice. There is no expert medical evidence even from her treating General Practitioner.
In a period of two weeks between February 2009 and March 2009 she filled two scripts for Seraquil being 150 tablets and had filled a script of for 60 Zyprexa tablets at about the same time. Whether the Mother self-medicates or sells these drugs I do not know. She misuses prescription medication to a significant degree and her use of diazepam is extremely high.
It is consistent with the Father and paternal grandmother’s evidence of the Mother’s use of prescription drugs being very high.
The Father has had recent urinalysis showing he is clean of all drugs. I have no idea for the Mother.
The risks to the child in the Father’s care pale into insignificance when I look at the risks this child has been exposed to and will continue to be exposed to in the Mother’s care.
Mother’s submissions
Ms Wheeler put her submissions firmly. The evidence is what it was. The Father took little responsibility for his actions when he perpetrated domestic violence on the Mother. That is agreed.
The child must spend significant time with her Mother and this dramatic change in [X]’s care must be carefully managed.
The Law
This is a Final Hearing and I am obliged to look at all the matters that are relevant under ss.60CC(2),(3) and (4) of the Act.
There is no dispute that there ought to be other than an order for equal shared parental responsibility. There is insufficient evidence to rebut this presumption and each parent contends this to be an appropriate order.
Having so ordered I must look at whether an order for equal time, significant and substantial time or some other order is an order in the child’s best interests.
If the parents lived in the same town an equal time order may have been appropriate but the distance between their residence, and my concerns of risk to the child in the Mother’s care at his time, precludes such an order being in the child’s best interests.
The child should spend significant and substantial time with her parents and this can be achieved over distance before she attends formal education. It is an order in her best interests. However, unless the parents live close to each other when she commences school this order will be impossible to maintain.
The overwhelming concern in this matter is that the Mother has no ability at all to protect her child from being exposed to domestic violence. She has exposed the child to domestic violence during her young life at the hands of four different men including the child’s own Father.
The Mother has had four significant relationships and all have been marked by violence.
There is no risk of the child being exposed to violence in the Father’s home provided her parents do not live together. If they do she is at risk. Her parents living together will not happen in the future if the child lives with her Father as the parents only lived together after separation due to the Mother’s homelessness and the Father wanting to provide a home for his daughter.
The Father has moved on. He has changed. He no longer smokes marijuana. He has a supportive employer. He has undergone counselling, random drug urinalysis, he sees a nexus between his poor behaviour and dope, and he has his Mother to assist him. He has a stable home environment and work environment. He is closely attached to the child and Ms Deane was of the view that he would provide good quality and attentive parenting for this child. Ms Deane had no concerns about the child in his care, other than managing her missing her Mother with whom she has always lived. The Father is aware of this and will do what he must to assist [X]. He has a strong and deep love and affection for his daughter. I suspect he is a different man when she is with him.
For the Mother she has exposed this child to domestic violence and on more occasions than this Court knows of. We only know of the events reported to the Police not those that are unreported. She does not follow through with intervention orders, she does not follow through with treatments, therapy or counselling, she provided no medical evidence to this Court as to her mental status, she abuses prescription medication, and she has significant depression. She is due to have another child. She resumed a relationship with Mr G after a significant domestic violence episode in January 2009 after a break of three weeks. They have not undergone counselling or had any intervention to assist them what so ever.
The child cannot live with her Mother on a full time basis. Only her Father can provide the protection and stable environment she needs to maximise her potential. [X] is a bright, confident, and happy child at this stage. Though her reaction to noise by covering her ears shows she has been exposed to yelling and poor behaviour.
Although living with her Father will be a change to [X]’s usual care arrangement any difficulties associated with such a move are far outweighed by the stability and security she will enjoy in living with her Father.
Ms Deane was satisfied [X] would transition to her Father’s care well and that her Father’s parenting capacity was of a high standard.
On the facts of this matter I need traverse no other factors under section 60CC (3) and (4) as I have found that the child living with the Mother primarily will expose her to an unacceptable risk of abuse and harm from being exposed to violence and her mother’s misuse of prescription medication.
Thus I made orders at the conclusion of the hearing, and prior to the delivery of this judgement that [X] was to live with her Father forthwith.
In relation to the time [X] should spend with her Mother I was mindful to balance the need of the child to, at a minimum, spend significant and substantial time with her Mother yet protect her from harm. Ms Wearne submitted that until Mr G and the Mother underwent Domestic Violence counselling Mr G should spend no time with [X]. I accepted that submission as the child has been exposed to violence at the hands of Mr G and this is a primary consideration under the Act.
With that order made in I was satisfied that [X] spending five days and four nights with her Mother each alternate week until she commences school in 2010 balanced all these competing issues.
Once [X] commenced school her time with her Mother would be alternate weekends and school holidays with the Mother to travel to [W] to see the child at other times.
These are the orders the Court believes are in the child’s best interests.
Therefore, orders are made as set out at the commencement of this Judgment.
I certify that the preceding three hundred and sixty-three (363) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 24 July 2009
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