Katt and Marsden - [2012] FMCAfam 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KATT & MARSDEN

[2012] FMCAfam 422

FAMILY LAW – Whether child should live with mother or father – mother’s lifestyle unstable and irresponsible – relevance of child’s primary attachment to mother – relevance of child’s relationship with siblings and grandparents – relevance of each parent’s ability to provide care.

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60D, 61DA, 65DAA

Applicant:

MS KATT

Respondent:

MR MARSDEN

File Number:

DGC 3111 of 2010

Judgment of:

Phipps FM

Hearing dates:

13 & 14 February 2012

Date of Last Submission:

14 February 2012

Delivered at:

Dandenong

Delivered on:

16 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Taghdir

Solicitors for the Applicant:

Taft Lawyers

Counsel for the Respondent:

Mr Stanley

Solicitors for the Respondent:

Waters Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Dowler

Solicitors for the Independent Children’s Lawyer:

Taylor Splatt & Partners

ORDERS

That all previous orders are discharged.
That the parties have equal shared parental responsibility for the child, X, born (omitted) 2010.
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)Each Tuesday from 9.00am until 4.30pm Wednesday commencing 17 February 2012;
(b)Each alternate weekend from 9.00am Friday until 4.30pm Sunday;
(c)Such other times as agreed between the parties.
That the parties are each restrained from using corporal punishment on the child.
The father is restrained from consumption of alcohol in the presence or within 24 hours of the child being in his care.
The parties engage with family support services, including but not limited to Anglicare, (omitted) or similar support organisations.
That the order made 20 September 2010 in the Federal Magistrates Court of Australia appointing the Independent Children’s Lawyer be discharged.
That pursuant to ss.65DA(2) and 62 of the Family Law Act 1975 (Cth) 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 Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 3111 of 2010

MS KATT

Applicant

And

MR MARSDEN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Ms Katt, the mother, and Mr Marsden, the father have the one child, X, born on (omitted) 2010. She is aged 19 months. The mother was born on (omitted) 1987 and is nearly 25; the father was born on (omitted) 1978 and has just turned 34. The parties commenced living together in August 2009 and separated in December 2009 when the mother was three months pregnant.
The mother has four other children: A, born on (omitted) 2004, aged seven; B, born on (omitted) 2006, aged five and a half; C, born on (omitted) 2008, who is aged three; and D, born on (omitted) 2007, who is aged four. A, B, C and X live with the mother. D is disabled. She has spina bifida and some other complications. She is in foster care as a result of Department of Human Services intervention. The Department of Human Services has made application for a permanent guardianship order in relation to D which is to be heard in two or three weeks’ time.
At separation, the parties were living in (omitted). The father moved out and went to live with his mother and his sister in (omitted). In March 2010, the mother moved. She says the lease expired, the father says that she did not pay the rent. Whatever happened, she moved out of (omitted) to a friend’s house for about six weeks, then she moved to another friend’s house for three weeks, and then to the father’s residence for 10 days, because she had nowhere else to go.
On 11 September 2007, the mother moved to her mother’s home, and X stayed with the father. There was a dispute about X remaining with the father. The father retained X because he was concerned about her welfare in her mother’s care. The mother commenced proceedings on 13 October 2010. Consent orders made on 5 November 2010 provide for X to live with her mother, subject to the mother residing with her mother, that is, the maternal grandmother.
The child spent time with the father from 11.00am to 4.00pm on Tuesday and Thursday each week, and 4.30pm Friday to 4.30pm Sunday on alternate weekends. The maternal grandmother has lived with the mother and the children since, but in about September or October of 2010, the mother resumed a relationship with Mr B, who is the father of D and C. That lasted until late 2011 and came to an end in circumstances which I will describe a little later.
The father has a child by another relationship, E aged 10, who spends time with him every second weekend. That coincides with the weekends that X is with him. The mother is reliant on social services income and some small amount of child support that she receives from time to time for each of the children. The father is not employed. He has not been employed since prior to the parties commencing their relationship. He does not have a drivers licence. His father died when he was 20, and the father says he was an alcoholic for two years. He used ecstasy and cannabis.
He lost his driving licence for drink driving offences four or five times, and in March 2006, he was jailed for three months for a driving offence or offences. The father lives with his mother, who is 74 and has some health problems. He also lives with his sister Ms J, who is aged 48. She has a mild intellectual disability. The father sees his sister Ms K, who helps him with the driving in relation to X. The father has missed about nine occasions of time, he says, since August 2011. He missed Tuesday and Thursday of last week because he was sick.
He has been looking for work and has had interviews, but he says it is difficult when he is spending Tuesdays and Thursdays with the child X, and he does not have a licence. The father’s proposal is that X live with him. He proposes equal shared parental responsibility. He then says she would spend Monday, Tuesday and Wednesday in childcare, and then Thursday morning to Friday afternoon in one week with the mother, and Thursday morning to Sunday afternoon with the mother in the other week, that is alternate extended weekends, Thursday morning to Sunday afternoon, and in the intermediate week, Thursday morning to Friday afternoon.
The mother’s initial proposal was to keep the current arrangements but at the conclusion of the hearing she adopted the Independent Children’s Lawyer’s proposal, which is that the parties have equal shared parental responsibility, that X live with the mother and that X spend time and communicate with the father each Tuesday from 9.00am until 4.30pm Wednesday, each alternate weekend from 9.00am Friday until 4.30pm Sunday, at such at times as agreed between the parties.
The Independent Children’s Lawyer proposes an order that the parties each be restrained from using corporal punishment on the child, the father be restrained from consumption of alcohol in the presence of or within 24 hours of the child being in his care, and that the parties engage with family support services, including but not limited to: Anglicare, (omitted), or similar support organisations. A is in year two at a primary school at (omitted). B commenced four year old kindergarten this year, and C three year old kindergarten two mornings a week.
The mother’s relationship with Mr B ended late last year. The mother says that that happened when he smashed her car windscreen. She then commenced a relationship with Mr G on or about Christmas Day. She says he is an old friend but she has ended that relationship. She has moved again to premises in (omitted) on 15 or 16 January 2012.
That occurred because she was living in (omitted). Her mother was living with her because the orders required that. Her mother works as a (occupation omitted) in (omitted) and the expense of petrol was too much for her mother. The maternal grandmother is 45. The interim orders required the mother to live with the grandmother. This was because the material raised doubts about the mother’s ability to cope in the meeting of the basic needs of X and, for that matter, all of her children. There is also evidence that the mother went out nightclubbing or otherwise socialising on a fairly regular basis.
Both the mother and the maternal grandmother now say that she has not been out nightclubbing or socialising for quite some time. While I might have some hesitation about accepting the mother’s evidence, I have no hesitation about accepting the grandmother’s evidence. She is a very impressive person.
The grandmother has lived with the mother and the children at considerable personal cost. She has moved out of her own home and it has damaged her relationship with her husband. She has a son, J, 17, who is doing the Victorian Certificate of Education this year. She wishes to return home to care for him and attempt to repair her relationship with her husband. Clearly, the current arrangements where the grandmother is living with the mother cannot continue. Whatever other orders are made in this case it will not contain an order that the mother live with the grandmother. In recent times the maternal grandmother has done much of the caring for the children and works as a (omitted) from 3 pm to 6 or 6.30 pm during (omitted) periods.
The mother, when asked about daily routine, said that she gets the children’s breakfast, that includes X. She says she takes A to school and she says she does the cooking and cleaning with the grandmother. The grandmother says that she got breakfasts and took A to school. As I have already said, I accept the maternal grandmother’s evidence. It would seem, therefore, that the tasks were shared. But the evidence does suggest that much of the care of the children was done by the grandmother.
The paternal grandmother gave evidence. Both grandmothers have a very good relationship with the child X. The maternal grandmother has a very good relationship and a strong affection for her grandchildren. She has a particularly close relationship with the seven year old girl, A.
Both parties attended upon Dr K, a psychiatrist, and he prepared reports in relation to each parent. He concluded that the mother did not have a discernable psychiatric illness. He said:
“She presents really quite well in interview, insists that the claims that are made about her inability to care for the children satisfactorily are not true. But what does stand out with this young lady is that she’s only 24, has five children by four different fathers, she only lived with them for very short periods of time but had intermittent on-again off-again relationships and acknowledges she had many other casual relationships in between and during. All her five children have been unplanned, and one has to say she has demonstrated extraordinary irresponsibility in terms of her relationships. I understand she has moved around in accommodation for quite a long period of time, and I have to say that I am inclined to accept that there would have been periods when she was unable to look after the children.”
He notes one child in foster care and then says:
“But the thing that does stand out with this lady is her irresponsibility in terms of relationships, unstable lifestyle. And that, of course, is some concern.”
Dr K was reasonably impressed with the father. And insofar as he was able to express a view, he thought that X would have a more stable lifestyle living with her father. What Dr K says encapsulates one of the significant issues that is the instability in the mother’s background and lifestyle and how that might affect her ability to care for X.
Two family reports have been prepared: one by Ms T, which is dated 6 July 2011; and the other by Ms R, which is dated 20 January 2012.
When this matter was fixed for final hearing on 30 November 2011 the mother, who had been previously represented, appeared unrepresented. Her lawyers had withdrawn. Her Legal Aid had, for some reason, ceased. It was a little difficult to discover from her why that had happened, but she said she had in train a process of obtaining Legal Aid again. She has been represented today at this hearing. I adjourned the hearing on that day in part because there was a significant issue about change of residence for a young child and separation of siblings. Counsel for the Independent Children’s Lawyer expressed his concern about the mother’s ability to represent herself in those circumstances. He told me that when he said to the mother that she might have to appear representing herself, she burst into tears. I adjourned the application until further hearing this week and made an order for an updated report. The mother’s circumstances had changed and have changed since. The further report was prepared by Ms R.
Ms T, in her report in July, observed a good relationship between the father and the child. She particularly observed the father as responsive to the child’s needs, as responsive to the child’s cues and the mother as not so responsive. She recommended that the child should live primarily with the father, and primarily she did so because she considered he would provide stability, whereas the mother’s history shows she was unlikely to.
Ms R, in January this year, concluded that the child’s primary attachment is to the mother, although there was some insecurity in the attachment. Ms R observed a very good relationship with the father. So far as siblings are concerned Ms R observed that X is particularly close to C, the next sibling in age. Ms R considered that because the primary attachment is with the mother, X should live with her. The recommendation for time with the father was that it should largely remain as is, but that the time, the Tuesdays and Thursdays in the middle of the week, should be consolidated.
Ms R noted and commented on the instability in the mother’s living. Ms R says X’s current situation remains complex. Concerns have been raised in relation to the quality of X’s emotional attachment with both her mother and father. X appears to cope with her present circumstances with little voiced distress. Both parties reported that she appears content and settled in their respective care. Both parties also reported that X is willing to return to the other parent at time of changeover with little fuss, appearing happy to see both her mother and her father.
Ms R says that it appears that, due to her past experiences, X is comfortable in the care of both her mother and father, with parental recognition developed. She says that it is now part of X’s established routine to live primarily with her mother and spend regular time with her father.
Ms R says:
“It appears highly likely that X’s primary emotional attachment at this time in her life is with Ms Katt, largely due to her spending the majority of her life in the care of her mother. It is also considered that has a developed and significant bond with her older siblings. However, her relationship and bond with Mr Marsden is also recognised as significant and important to her. It is that X remains emotionally vulnerable, impacted by changes that have occurred in her life, and the quality of parenting response that she has received.”
She then recommends that the parties attend forums that will enhance their understanding of the parenting. In her recommendations, she says:
“…acknowledging the challenges and complexities in this matter, it is considered that in this point in X’s life that it may be in her best interests to remain in the care of her mother, given her strengthening primary attachment to Ms Katt. It is considered essential that Ms Katt remain in stable accommodation and that the maternal grandmother, Ms W, continue to play an active role in both providing support to her daughter and monitoring the care of grandchildren.”
This paragraph again shows the competing issues in this case. On the one side there is X’s primary attachment with her mother and her bond with her siblings. On the other hand is the mother’s instability in the mother’s living arrangements, both in the physical living arrangements where she has her home, and in the changing relationships she has with men.
It is a matter, as I look at the requirements of the Family Law Act1975 (Cth), largely of balancing out those considerations. So far as the law is concerned, provisions concerning children are contained in part VII of the Family Law Act 1975 (Cth). The objects of part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives; protecting children from harm; ensuring that children receive adequate and proper parenting; and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
The last of those two objects or principles are relevant to the mother’s situation and the instability in her life. S.60CA provides that the best interest of the child is the paramount consideration in making parenting orders, and considerations for determining a child’s best interests are contained in s.60CC. In this case both parties and the Independent Children’s Lawyer propose there be an order for equal shared parental responsibility. There is no evidence to rebut the presumption contained in ss.60D & 61DA on the grounds that there has been family violence or abuse of the child as those two matters are defined in s.4 of the Family Law Act1975 (Cth).
So far as best interest considerations are concerned, one optimistic sign in this case is that the parents are able to cooperate and changeovers are achieved without difficulty. There have been some occasions when X has missed her time with her father, but that has not interrupted the flow of her relationship with her father. So it is in X’s best interests that the parents have equal shared parental responsibility and so share the responsibility for making long term decisions.
That means that s.65DAA requires first that I must consider whether equal time with each parent would be in the child’s best interests and reasonably practicable. That is not proposed by either party. Neither party nor the Independent Children’s Lawyer nor either of the consultants see this as a matter for equal time. I must consider the substantial and significant considerations. I must consider whether substantial and significant time would be in the child’s best interests and reasonably practicable. Section 65DAA(3) contains the definition of “substantial and significant time”.
I turn to the best interests considerations contained in s.60CC of the Family Law Act 1975 (Cth). The first is the benefit to the child of a meaningful relationship with each parent, the first of the primary considerations. I have read the section from Ms R’s report where she describes the child’s relationship with each parent. Both grandmothers gave evidence and both parents described X as a happy child, a child who brings much joy to all who are involved with her. X has a meaningful relationship with each parent and that will continue what ever proposal is adopted. There is no evidence relevant to the second of the primary considerations, that is, the need to protect the child from harm.
The first additional consideration is any views expressed by the child. She is too young to have expressed any views.
The next is the relationship of the child with each parent and with other persons, including grandparents or others significant to the child. In this case there are the siblings and both grandparents. On the father’s side there is an aunt and an uncle who see much of X. I accept Ms R’s evidence that X’s primary attachment is with her mother. Ms T, I think, in the end did not dispute that, although she was concerned to describe the importance of the quality of an attachment to a parent and to other people as opposed to length of time.

I do accept that X’s primary attachment is to her mother. She has a close and strong relationship with her father. She has a strong and developing relationship with her three siblings who are living with her, particularly C. She has a strong grandparent-grandchild relationship with each of her grandmothers, but more so with the maternal grandmother because of the amount of time she has spent with the maternal grandmother. The maternal grandmother has had much of her care. X has spent all but about two months in the principal care of her mother.
For about two months she was with her father when the mother came back to live with the father for a short period after leaving the third of her residences.
The next of the considerations is the willingness to promote a relationship with the other party. Both parties have shown that they understand the importance and need for X to have a strong relationship with the other parent and the evidence shows that X does have a strong relationship with each parent. I am satisfied that what ever proposal is put in place that will continue.
The next consideration is the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other child or other person, including a grandparent with whom she has been living. If X went to live principally with her father, she would no longer be spending the majority of time with the person to whom she has her primary attachment; she would no longer be spending the majority of time with her three siblings; and she would have less contact with her maternal grandmother.
She is accepted as being a happy child, well-adjusted although there was some insecurity about attachments. I consider there is a significant risk that if there is a change that the father proposes that might affect her happy disposition, might affect her generally secure primary attachment with her mother and her relationship with her siblings.
The next consideration is the capacity of each of the child’s parents and any other person, including grandparents, to provide for the needs of the child including emotional and intellectual needs. This is a significant consideration in this case. The mother has had seven changes of residence since X was born. She has been in her current residence for just on a month. She has had two partners in that time. She has been living in her mother’s house or with her mother for well over a year. The maternal grandmother’s evidence shows that the maternal grandmother has undertaken many of the day‑to‑day tasks in caring for the children, including X. The grandmother will no longer be there, however, she will be living a five‑minute drive away. She says she will attend virtually daily and her attachment and affection for the grandchildren means that she will do as she intends to do. She will attend at the mother’s house on a regular basis. The mother says she will have a key. I am confident the grandmother will ensure that she has a key and that she has access at any time.
There is a real concern about the mother’s ability to deal with the children’s physical needs, getting all three children up, breakfasted, dressed, and bathed and the older children off to school and kindergarten. There is a real concern about her capacity to do the same with X and to respond to X’s emotional and intellectual needs. The history of instability in the mother’s background shows that that is the case.
As far as the father’s ability and capacity to care for the child is concerned, he does not have a driver’s licence. He has a learner’s permit. Not having a driver’s licence is part of his difficulty in obtaining employment. He does not intend obtaining a driver’s licence until he has a motor car, and to obtain a motor car he has to have money and so he needs a job not only to purchase and pay for the car. Because of his history of drink driving offences, when he again receives a driver’s licence a condition of it will be that he has an alcohol interlock device. He will have to purchase it and he will have to pay the monthly service fee. Whether he will obtain a car and a driver’s licence and so cease his dependence on others for whatever driving he needs to do with X is problematic.
He proposes placing X in childcare for three days each week. He said this will cost $75 to $100 a day. He will receive some government assistance, but if the out‑of‑pocket cost is, say, $50 each day, that is still $150 a week. His income at the moment is a Newstart allowance of about $250 a week. If the child lives with him, he will qualify for additional benefits. He lives with his mother and, at the moment, his finances are such that he does need to have the pooling of family finances between him, his mother and his sister so that they can pay the rent and living expenses. The current house has three bedrooms. The grandmother is looking for a four‑bedroom house. She has inspected one in (omitted) which she can afford and which she sees as suitable.
The evidence shows difficulties with the capacity of each party in caring for the child, X. So far as the mother is concerned, they are very significant. The evidence shows very significant difficulties in her ability to care for the child’s basic needs, physical, emotional and intellectual. However, the bright light in the whole case are the grandmothers, and particularly the maternal grandmother. She will, I am satisfied, remain significantly involved in the children’s lives. She will act as a check on the mother and she will act as assistance to the mother.
The next of the considerations, the maturity, sex, lifestyle and background of the child is relevant. I have described X’s age, lifestyle and the background that X has had during the 19 months of her life.
There is evidence relevant to the consideration of the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. So far as the mother is concerned, Dr K’s forthright comments about her irresponsibility are correct. Whether that will continue into the future is problematic. Regrettably, it may well do so. Otherwise, none of the other considerations are relevant. Subsection (4)(a) concerns events which have happened since separation. Insofar as that is relevant, I have already dealt with the evidence.
Insofar as the reasonably practicable provisions are concerned, they are contained in s.65DAA(5). The parents live close enough together that whichever arrangement is put in place will be feasible. Despite the other problems, they have managed the current living arrangements and the changeovers without difficulty. They do have an ability to cooperate. They can cooperate in the making of decisions and dealing with difficulties which might arise satisfactorily, and so the reasonable practicable considerations, insofar as they apply to the substantial and significant time consideration, do not affect the determination one way or the other.
There are competing considerations. The child’s primary attachment is with her mother and she is part of a sibling group. On the other hand, the mother has had very erratic living arrangements, both in the physical arrangements and in her relationships with men. Although she claims she now has a stable residence and has no partner, the only conclusion that can be reached is that the instability is likely to continue. Notwithstanding that instability, the child is a happy and contented child, although with some insecurity in the relationship with her father. The one definite positive in the child’s life is the maternal grandmother. She will be a constant in the child’s life and give some hope that the mother’s household will stabilise.
There is potential detriment to the child if there is a change as the father proposes. The child’s relationship with her mother and siblings and the risks there are in a potential change outweighs the potential greater stability that living with the father might bring. The balance of the best interests and reasonable practicability considerations favours the mother’s and the Independent Children’s Lawyer’s proposal.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 11 May 2012