Kent and Kent and Anor

[2012] FamCA 103

FAMILY COURT OF AUSTRALIA

KENT & KENT AND ANOR [2012] FamCA 103

FAMILY LAW – CHILDREN – Magellan matter – with whom a child lives; with whom a child spends time – where there is evidence relating to child abuse or family violence – where it is in the best interests of the children to reside with the maternal aunt.

Family Law Act 1975 (Cth)

MRR v GR (2010) 263 ALR 368
Cowley v Mendoza [2010] Fam CA 597
Goode and Goode (2006) FLC 93-286

APPLICANT: Ms M Kent

FIRST RESPONDENT: Ms B Kent

SECOND RESPONDENT: Mr Arkwright

INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg Pty Ltd

FILE NUMBER: PAC 2082 of 2009

DATE DELIVERED: 1 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 13, 14 and 15 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ladopoulos

SOLICITOR FOR THE APPLICANT: Sarah Bevan Family Lawyers

COUNSEL FOR THE  FIRST RESPONDENT: Ms Conti-Mills

SOLICITOR FOR THE FIRST

RESPONDENT

Parks Coady Family Lawyers

COUNSEL FOR THE SECOND

RESPONDENT

Ms Snelling

SOLICITOR FOR THE SECOND

RESPONDENT

White & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Matthews Folbigg Pty Ltd

Orders

1. That the paternal grandmother, Ms Arkwright (‘the paternal grandmother’) is joined as a party to the proceedings.

2. That all existing orders in relation to the children K, born on … June 2001, and C, born on … October 2007, (‘the children’) are discharged.

3. That the maternal aunt, Ms M Kent (‘the maternal aunt’) has sole parental responsibility for the children.

4. That the children live with the maternal aunt.

5. That the children spend time with the mother, Ms B Kent (‘the mother’)

   (a)On five (5) consecutive occasion at the B Contact Centre or the P Contact Centre on dates and at times to be nominated by the               Co-ordinator of the Centre and

   (b)       Thereafter, each alternate Saturday from 10.00am until 2.00pm and

   (c)On any additional or alternate occasion upon which the mother and the maternal aunt agree from time to time.

6. That the child C spend time with the paternal grandmother

   (a)Each alternate Sunday from 10.00am until 5.00pm for a period of two (2) calendar months and each other Thursday form 10.00am until 5.00pm from the date of these orders and

   (i)Each alternate weekend from 9.00am on Saturday until 6.00pm on Sunday and

   (ii)In each July school holiday for a block period of six (6) days from 9.00am on the first Saturday until 9.00am on the following Friday and

   (iii)On any alternate or additional occasion upon which the paternal grandmother and the maternal aunt may agree from time to time.

7. That the paternal grandmother in restrained from:

   (a)Leaving C in the unsupervised care of the father Mr Arkwright and

   (b)Permitting C to come into contact with the paternal uncle Mr D.

8. That K spend time with the paternal grandmother in accordance with her (K’s) wishes and subject to the restraints prescribed by order 7.

9. That the parties do all things necessary to ensure that the children’s time with the mother, as prescribed by order 5, and C’s time with the paternal grandmother, as prescribed by order 6, occur on consecutive and not concurrent weekends.

10. That, notwithstanding the provisions of any other order:

    (a)C will spend time with the paternal grandmother from 7.00pm on 25 December until 7.00pm on 26 December in each year and

    (b)C will spend time with the paternal grandmother on her (C’s) birthday in each year from 3.00pm or the conclusion of school until 7.00pm

    (c)The maternal aunt may suspend time with the mother and the paternal grandmother upon the provision of 21 days written notice for the purpose only of taking the children on a holiday out of the Sydney metropolitan area.

11. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Kent and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2082 of 2009

Ms M Kent

Applicant

And

Ms B Kent

First Respondent

And

Mr Arkwright

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. These proceedings are competing applications for parenting orders in respect of two children:

   K born in June 2001 (10) and

   C born in October 2007 (4).

   The mother of the children is Ms B Kent, who was born in 1976 and is now thirty six years of age. 

2. K’s father, Mr B, unfortunately died by his own hand in 2004.  The mother discovered the late Mr B after he had hanged himself. It was evident that this tragic event has had serious ramifications for her mental health. 

3. C’s father, Mr Arkwright, was born in 1976 and is now thirty five years old.  Mr Arkwright suffers from paranoid schizophrenia but seems to have insight into his condition and appreciates that he needs to take his prescribed medication regularly.

4. The other party to the proceedings is the mother’s sister, Ms M Kent.  She has had the care of the children since June 2009, when the mother was scheduled and placed in a psychiatric hospital.

5. At the end of the trial the Independent Children’s Lawyer (“ICL”) proposed that the maternal aunt have sole parental responsibility for the children.  A Minute of Proposed Orders submitted by Counsel for the ICL contained no provision as to the party with whom the children should live but the obvious intention was that the maternal aunt should have primary residence.

6. The ICL proposed that Ms Arkwright, the paternal grandmother of C, (‘the paternal grandmother’), be joined as a party to the proceedings and that there be an order that this child spend time with her rather than the father.  It was suggested that C spend time with the maternal grandmother each Thursday and Saturday for two months and thereafter every alternate weekend from 9am on Saturday until 6pm on Sunday, together with a block period of six days during the July school holidays.  The maternal grandmother would be restrained from leaving C in the unsupervised care of the father or in the presence of the paternal uncle, Mr D.  The ICL proposed that K spend time with the Arkwright family in accordance with her wishes.  The paternal grandmother consented to being joined as a respondent to the proceedings and agreed with the orders proposed by the ICL. 

7. The maternal aunt consented in principle to the proposal of the ICL. She proposed a reorganisation of time with the mother and the paternal grandmother so that the children would spend one full weekend in her household.

8. The mother sought orders that she have sole parental responsibility and that the children live with her.  She proposed that K spend time with the maternal aunt as agreed or on the first Saturday of each month from 10am until 4pm.  She proposed that C spend time with the father in the presence of the paternal grandparents or their delegate, as agreed or from 10am until 4pm each alternate Saturday.  A Minute submitted on behalf of the mother contained no proposal for C to spend time with the maternal aunt. 

Evidence and Witnesses

1. The Applicant maternal aunt relied on the following affidavits:

   1.      Affidavit of Ms M Kent (the maternal aunt) sworn on 3 February 2012.

   2.      Affidavit of Mr O (husband of the maternal aunt) sworn on 2 February 2012.

   3.      Affidavit of Mr J (the mother’s son) sworn on 2 February 2012.

   All of these witnesses were required for cross-examination.

2. The respondent mother relied on her affidavit sworn on 8 February 2012.  She gave oral evidence in response to questions put in cross-examination.

3. The respondent father relied on the following affidavits:

   1.Affidavit of Mr Arkwright (the father) sworn on 31 January 2012.

   2.      Affidavit of Ms Arkwright (the paternal grandmother) sworn on 7 February 2012.

   The father and the paternal grandmother were both required for cross-examination.

4. I have the benefit of a Magellan Report dated 4 August 2011 and a Family Report dated 18 November 2011.  The author of the Family Report, Mr P, gave oral evidence by video link. 

Background

1. The maternal aunt commenced a relationship with Mr O in approximately 1994.  They married in November 2011, after a period of instability in their relationship around 2006 or at an earlier time.  They have one child, V who was born in October 2001 and is now ten years old.  The maternal aunt has two children of a previous relationship, Ms L and Mr L who are aged twenty two and twenty years respectively.  Ms L and Mr L live in the household of the maternal aunt.

2. Mr O has five adult children from a previous relationship.  They live in Darwin, Adelaide and Queensland.  He has at least one grandchild who lives in Darwin.

3. The mother began a relationship with Mr W when she was approximately seventeen years old.  Their son, Mr J, was born in March 1990 and is now twenty one years old.  The mother and Mr W separated in about September 1990.  Mr W had no involvement in Mr J’s life and they presently have no relationship.

4. After her separation from Mr W, the mother and Mr J moved to Melbourne and lived with the maternal grandmother.  In about 1992 the mother commenced a relationship with Mr Z and their daughter, Ms Y, was born in November 1994.  They separated around 1995. 

5. The mother and Mr Z entered into an informal arrangement for both Mr J and Ms Y to spend time with him following the separation.  It seems that Mr Z lived in Melbourne and the mother and children in Sydney after the breakdown of their relationship.

6. The mother began a relationship with Mr B shortly after her separation from Mr Z.  Their daughter, K, was born in June 2001.  They lived together, although separated for several periods, until his death in 2004. 

7. The mother admitted that she drank alcohol excessively and used drugs after the death of Mr B.  Her current level of substance abuse and psychiatric condition were significant issues in the proceedings. 

8. In 2004 the mother commenced a relationship with Mr Arkwright and their daughter, C, was born in October 2007.  They separated on a final basis in April/May 2009. 

9. In about 2005 Mr Z telephoned the mother and informed her that one Mr S had sexually abused both Ms Y and K.  At the time K was in the care of Mr Z in Melbourne.  JIRT investigated the allegation in relation to K but no further action was taken.

10. During the mother’s relationship with Mr Arkwright, Ms Y went to live with her father in Melbourne. In June 2007, when Ms Y was twelve years old, she was sexually assaulted by the father’s brother Mr D who was then twenty years old.  At this time Ms Y lived in Melbourne with her father but was spending time with the mother in Sydney. 

11. Mr D was charged with various offences arising from this incident.  According to Ms Arkwright he pleaded guilty on … February 2012 and was placed on a three year good behaviour bond.  She said that he was assessed by four psychiatrists in the course of these criminal proceedings and was found to have the intellectual functioning of a sixteen year old.  She said that the court ordered him to take medication to deal with a psychiatric condition.

12. When Ms Y was about thirteen years old a JIRT officer told the mother that there was an ongoing investigation in Melbourne into an allegation that she was sexually abused by her father, Mr Z.  According to the mother he was charged, convicted and sentenced to a term of imprisonment.  Ms Y then returned to Sydney and lived with her.

13. When the mother and father separated in May 2009 he took C without her consent.  She commenced proceedings in the Federal Magistrates Court and obtained an order that the father return the child to her. 

14. In June 2009 police officers informed the mother that the father had threatened to harm her.  She took K and C to the home of the maternal aunt, where they apparently spent a few days. 

15. The mother’s mental health deteriorated in July 2009.  She was found by police wandering near a busy road, suffering from suicidal ideation. She was scheduled to a psychiatric facility where she spent approximately one week.  During this admission the maternal aunt collected the children from the mother’s home with her consent.  They were being cared for by Ms Y, who was then only fifteen years old. 

16. On 29 July 2009 the Federal Magistrates Court ordered that the maternal aunt and the paternal grandmother be joined as parties to the proceedings.  Interim orders were then made to the effect that the children live with the maternal aunt and spend time with the paternal grandmother, on an overnight basis, each alternate weekend.

17. Between July 2009 and December 2010 the mother spent time with the children on a sporadic basis, with the assistance of the maternal aunt.  During this period she drove the mother to appointments at a mental health service and generally offered her assistance in coping with life.

18. On 1 December 2010 there was an incident between Mr J and Ms Y at the home of the mother.  According to Mr J the altercation was the culmination of a number of disputes between them, with the final provocation being an allegation that he sexually abused Ms Y when she was six years old.

19. The maternal aunt informed Mr J of this allegation when he arrived at her home to visit his sisters on 1 December 2010.  He immediately returned to the mother’s home and confronted Ms Y.  He later admitted to police that he assaulted Ms Y and they obtained an urgent AVO for her protection.  Mr J left the mother’s home after this incident and has since lived with the maternal aunt.

20. Later on the night of 1 December 2010 the mother, Ms Y and other people drove past the maternal aunt’s house and shouted abuse in foul language.  The mother allegedly made threats to burn down the maternal aunt’s house.  The mother denied that she made any such threat but failed to appear in Local Court 1 to defend an AVO application, arising from this incident.

21. The mother’s denial that she made any threat to burn down the maternal aunt’s house sits uncomfortably with the relevant COPS entry (exhibit 4) and the contents of the mother’s mental health service file (exhibit 5).  The COPS entry indicated that the mother shouted a threat to burn down the house in the hearing of the maternal aunt, her daughter Ms L, K and C.  Ms L’s police statement in respect of this incident was annexed to the affidavit of the maternal aunt.  Although this evidence was untested, the statement indicated clearly that the mother did make this threat.  Similarly, the maternal aunt made a statement to police in which she described the mother’s threat to burn down her home. 

22. The mother’s mental health service file contained progress notes covering the period 17 July 2009 to 16 January 2012.  The note for 2 December 2010 contained a report from the maternal aunt that the mother came to her home on the previous evening and threatened to burn down the premises.  At this time the maternal aunt was supporting the mother’s treatment at the service.  It seems highly unlikely, in those circumstances, that she would make this report unless there was substance to her complaint.

23. The mother maintained that she failed to appear at Local Court 1 in relation to the AVO application because she was before Local Court 2 in relation to a traffic charge.  It may well be the case that she was involved in proceedings before two Local Courts on the same day.  In any event, on 13 December 2010, the court made an apprehended violence order for the protection of the maternal aunt and both children.  The mother has not seen the children since 1 December 2010, other than in the presence of the Family Consultant.

24. The father and paternal grandmother saw C regularly, in accordance with the interim orders, until early in 2011.  On 4 February 2011 the maternal aunt telephoned the home of the paternal grandparents and said to the father:  “[C] has told me that [Mr D] molested her”.  “[Mr D]” is the father’s brother.  On 2 March 2011 the maternal aunt made a unilateral decision to suspend C’s time with the father and paternal grandmother.  It seems that there was one further overnight stay, on 7 April 2011, and then C stopped spending time with her paternal family. I will consider later in these reasons the evidence relevant to the allegation of sexual abuse.

APPROACH TO THESE PROCEEDINGS

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.

2. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.

3. The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.

4. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

5. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

6. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   “[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…

43.      In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR.  I extend my gratitude to his Honour for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.

44.      When a court makes or contemplates making a parenting order, it must:

·apply the presumption of equal shared parental responsibility

·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

·if the presumption applies:

¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent

¨   make findings as to the matters set out in section 65DAA(5) which are:

Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable

¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests

The Presumption of Equal Shared Parental Responsibility

1. As K’s father is deceased, there can be no presumption of equal shared parental responsibility.  The competing claimants for parenting orders in relation to K are the mother and maternal aunt.  It is possible that there be an order for the mother and maternal aunt to share parental responsibility, if such an outcome would be in K’s best interests.

2. An issue arises as to whether the mother and father should have equal shared parental responsibility for C.  There is also an issue as to whether the maternal aunt should share parental responsibility for C with either or both of the mother and father. 

3. In reality, the capacity of both the mother and father to care for the children and ensure their safety is a pivotal issue in relation to both the allocation of parental responsibility and primary residence.  Ultimately the father elected to consent to the orders proposed by the ICL, to the effect that the paternal grandmother will spend time with C and that he be present under her supervision.  In these circumstances it might reasonably be inferred that the father abandoned his application that he and the maternal aunt share parental responsibility for C.

4. The psychiatric condition of both the mother and the father is a critical issue as to their capacity to exercise parental responsibility and provide for C’s needs.  The mother’s mental health is pivotal to her capacity to exercise parental responsibility and provide for K’s needs. 

The Health of the Mother

1. In her affidavit the mother deposed that she was diagnosed with post traumatic stress disorder while an involuntary patient in 2009 and prescribed anti-depressant medication.  She further deposed that she was diagnosed with bipolar disorder in 2010 and prescribed medication for that condition.  She annexed to her affidavit a certificate dated 1 September 2011 from her GP, Dr N, which stated that she suffers from “bipolar affective disorder and PTSD”.  The certificate listed four medications which were then prescribed for the mother. 

2. In her oral evidence the mother said that she stopped taking anti-depressants late in 2011, with the knowledge of her general practitioner.  Currently she takes Catapres and Seroquel, an anti-psychotic medication, each day.  She said that she has taken up running and has drunk scarcely any alcohol for approximately one year.

3. The file of the mental health service contained an assessment carried out at the time of the mother’s involuntary admission in July 2009.  She was assessed as “still somewhat intoxicated” and “actively suicidal”.  She gave a history of previous attempts at suicide and expressed considerable animosity toward the father.  She was assessed as “not a good candidate for therapy due to her withholding behaviour and anti-social/violent acting out”.

4. On 14 September 2009 the mother gave a history to Dr I, a psychologist, of multiple instances of sexual assault both in childhood and as an adult.  She described a pattern of involvement in violent relationships and protracted substance abuse.  It would be of no assistance to anyone if I were to detail the mother’s very sad history in these Reasons.

5. The mental health service progress notes contain several references to outbursts of anger on the part of the mother.  For example, the notes for 3 February 2011 read in part “would become angry in the sessions and made recurrent threats to hurt ex-partner [Mr Arkwright] when angry.  Also disclosed assaulting different people in context of fights or sorting out threats”. 

6. On 13 September 2010 Dr I wrote a report which included the following:

   “[The mother] has attended treatment with our services periodically since July 2009.  She has attended her scheduled medical review and has commenced counselling sessions with me.  In counselling [the mother] has begun addressing a number of problem areas of her life with the main focus being anger management, increasing her physical health and maintaining an absence from drugs and alcohol. 

   Additionally, in every counselling session, [the mother] has discussed her efforts to be a more effective parent and her concerns  that she will lose her attachment with her younger children the longer they are not in her care, and at the same time [the mother] also expressed the view that her daughters are being well cared for in her sister [Ms M Kent’s] care.

   I plan to continue counselling sessions with [the mother] to further develop the above areas.”

7. There was no evidence that the mother currently drinks alcohol to excess or uses drugs.  I see no reason to doubt her evidence that she has achieved a much healthier lifestyle by the elimination of substance abuse and the introduction of regular exercise.

8. I accept the mother’s evidence that she has taken steps to address her physical health issues of internal bleeding and “dizzy spells and blackouts”.  She said that she is scheduled for a colonoscopy in March 2012 and that her “blackouts” have been cured by medication to treat an iron deficiency.

9. The mother claimed that her medication has been of considerable assistance in addressing her anger management problem.  She said “nothing really phases me since I have been on my medication.  I no longer get angry like I did before.”  The last instance of an angry outburst on the part of the mother appears to be the incident in December 2010, when she allegedly threatened to burn down the maternal aunt’s house.

10. The mother’s daughter Ms Y has received a Centrelink benefit as her carer since early 2011.  Ms Y told the Family Consultant that she “goes shopping, pays bills and gets medication” for the mother.  In oral evidence the mother said “[Ms Y] is always checking on me, making sure I am not crying and upset.”

11. On 3 February 2011 Dr I noted that the mother “was not actively engaged in therapy – would turn up and discuss her desire to have contact with her younger children and would deny alcohol and prescribed drug abuse.”  On 18 February 2011 Dr I noted “formulated that has not been able to meaningfully engage in [therapy] and that her current difficulties appear to stem from drug and alcohol issues.”

12. The last entry in the progress notes, dated 16 January 2012, read “client last seen Feb 11 and was not engaging in therapy.  Attended for doctor’s appointment, however, left building prior to being seen.  Plan close file.”  In oral evidence the mother said that she had not attended the mental health service in 2011, which is consistent with the fact that the file contained no progress notes after 18 February 2011. 

13. The mother maintained that she did not attend the mental health service in January 2012 because she “did not receive a letter”.  The note of 16 January 2012 would indicate that she did attend but I will afford her the benefit of the doubt.  Certainly it is the case that she has received no counselling since February 2011, at which time she was assessed as not engaging effectively in therapy.

14. In summary, it seems to me that the mother may well have overcome her problem with substance abuse but there was no independent evidence to corroborate this claim.  I accept that she understands that she needs to take medication regularly.  It may be that she has made some progress in addressing the emotional difficulties under which she has laboured for a number of years.  On the other hand, she requires assistance from her daughter Ms Y who has received Centrelink approval as her carer. Unfortunately, there was no expert evidence as to the mother’s correct psychiatric condition.

15. Ms Y gave no evidence in the mother’s case.  I thus have no knowledge as to her preparedness to continue to fulfil a role as the mother’s carer.  I had no opportunity to formulate any view as to her ability or willingness to take on a significant responsibility in the care of the mother, K and C if the children were placed in her primary care.

The Health of the Father

1. When the father was sixteen years old he was diagnosed with paranoid schizophrenia.  He takes anti-psychotic medication and sees his general practitioner twice per month for review.  He consults a case worker at a mental health service every three months and “gets checked by mental health every fortnight”. 

2. In oral evidence the father said that he has been on medication since 2006, when he was ordered to consult a mental health team in the course of a prosecution for supply prohibited drugs.  He said that “sometimes got angry and lashed out at people before 2006.”

3. The paternal grandmother gave evidence that she speaks to mental health workers regularly and monitors the father’s condition on a daily basis.  She said that he “gets very agitated” if he fails to take his medication and that he tells her if he feels unwell.  She said that she would continue to monitor his condition if he obtains independent accommodation. 

4. The father conceded that he “accidently ran out of tablets” on at least one occasion.  The paternal grandmother said that she was not aware of any situation when the father “ran out of medication”.  She said “I get his medication to make sure.”

5. In summary, it seemed to me that the father’s psychiatric condition is well controlled and that he understands that he needs to take medication regularly.  He appreciates that he needs professional input to maintain his current level of stability.

6. In circumstances where the mother requires assistance from Ms Y to cope with everyday life and has undertaken no therapy to address her psychological problems since 2010, I have very real concerns as to her capacity to meet the needs of K and C.  I am left with very serious reservations that she could properly and effectively make decisions concerning their long term care, welfare and development if sole parental responsibility were vested in her.

7. At the present time there obviously exists a substantial level of conflict between the mother and the maternal aunt.  The mother is subject to an apprehended violence order for the protection of the maternal aunt until December 2012.  The mother said in oral evidence “I agree our relationship at present is virtually non-existent”.  The maternal aunt said:  “[The mother] is my sister, she can come to my place any time.”  She then said, however, “I have always supported my sister but not at present, no.” and “Our relationship is not a happy one at all at the moment.” 

8. In these circumstances it is virtually impossible to contemplate that the mother and maternal aunt could successfully share parental responsibility.  They have no communication at present and I have little reason to suppose that this situation will improve in the near future.

9. For these reasons it seems to me that the only viable outcome is that the maternal aunt have sole parental responsibility for both K and C. Realistically the only viable outcome is that they continue to live with her, for reasons which I will now address in the context of the primary and additional considerations set out in section 60CC of the Family Law Act.

The Primary and Additional Considerations

1. K and C have now lived continuously with the maternal aunt and her family for two years and seven months.  C was aged only twenty one months when she was placed in the care of the maternal aunt and K was approximately eight years of age.  Before July 2009 the children undoubtedly lived a chaotic life, as the mother laboured under her problems of substance abuse and untreated mental illness.

2. The maternal aunt and her husband have provided stability and security to the children.  It seems to me that there is no doubt that they currently enjoy a meaningful relationship with the maternal aunt and her husband, from which they have and will continue to derive great benefit.

3. K had not seen the mother for almost one year prior to the interviews with the Family Consultant in November 2011.  Their time together had been erratic between July 2009 and December 2010.  K responded positively to the mother during the family report observation session and the Family Consultant formed the view that she “has established relationships with the significant adults in this matter”.  However, the Family Consultant expressed concern that “[K] indicated some confusion regarding important family relationships”.   He opined that “the children’s presentation in this assessment raised concerns regarding [the maternal aunt’s]  capacity appropriately to support [K] and[C] to maintain clear understandings about their important family relationships.”

4. The Family Consultant made similar observations and offered the same opinions in relation to C.  At the end of the observation session C called the mother “Aunty [the mother’s first name]” to which the mother replied “it’s Mum”.  C seems to be more confused about her family relationships than is the case with K. 

5. In my view the children need to have a clear perception as to their parentage and place in both their maternal and paternal families.  They will be denied the opportunity to develop this understanding if they continue to have no contact with their mother, and in C’s case, her father and paternal family.

6. It thus seems to me that the children need to have meaningful relationships with the mother and paternal families.  At the same time, steps must be taken to safeguard their physical and emotional well being when spending time with the mother and the paternal family. 

7. The proposal that the father spend time with C only in the presence of the paternal grandmother impresses me as a very effective means of protecting her from the impact of his mental illness.  The only real safety issue in the paternal family is any risk that C may be exposed to sexual assault by the paternal uncle Mr D.

8. There is no doubt that Mr D engaged in sexual activity with Ms Y when she was twelve years old, as is evident from a COPS entry dated 14 October 2009 (exhibit 4).  According to the paternal grandmother he pleaded guilty to “two counts of consensual sex with a minor” and was sentenced to three years probation in February 2012.  The paternal grandmother deposed that Ms Y was fourteen and her son nineteen of age at the time of the offences.  In fact Ms Y was twelve years and seven months of age at the relevant time.

9. The maternal aunt alleged that on 4 February 2011 C returned from time with her paternal family and complained that she had been inappropriately touched by Mr D.  Referring to C, K said “She pinched me on the flossie and said fuck you”.  The maternal aunt deposed that she and C had the following conversation:

   “Me:  You don’t touch your sister’s flossie, no one is allowed to touch flossie, that’s rude, no one is allowed to touch your flossie, not even [me]”.

   C:  “He does, he touches my flossie”.

   Me:  Who is “he?”

   C:  Uncle [Mr D’s first name] touches my flossie, sore, red.”

   The maternal aunt maintained that C repeated this statement to her husband and her brother. 

10. The maternal aunt maintained that she telephoned the paternal grandmother and the following conversation occurred:

    “Me:  [K] is here, she will tell you what she told me (I put speaker phone on)

    [K]:  [C] pinched me on the flossie and told me fuck you twice.

    Me:  Now you will hear what [C] told me. (The speaker phone was still on.)

    [C]:  Uncle [Mr D’s first name] touched me on the flossie. It’s sore and red.  [Paternal grandmother]:  Stop lying and causing trouble. 

    [C]:  Uncle [Mr D’s first name] did touch my flossie.

    Me:  Did you hear her?  Can you hear what she is saying? 

    [Paternal grandmother]:  Yes but I swear to you [maternal aunt’s first name],[C] is never left alone with [Mr D], she is always supervised.  Besides, she has been acting strange for some time now.

    Me:  What do you mean?  

    [Paternal grandmother]:  Well, I have seen her fiddle with herself a couple of times on the toilet.  The other day she pinched [T] on the doodle and she said “Nuna got a doodle like uncle”.

    Me:  Why didn’t you tell me anything about this before? Don’t you think it’s strange behaviour for a three year old?

    [The paternal grandmother] then gave the phone to [Mr Arkwright].

    [Mr Arkwright]:  I want to talk to you about what you said to [U] this afternoon.

    Me:  I don’t want to talk about that, did your Mum tell you what she just heard from [C]? 

    [Mr Arkwright]:  No, I just want to know why you said …

    Me:  I have more important things to worry about at the moment (I then hung up the call).”

11. The maternal aunt then telephoned a hospital and later spoke to a member of staff of the Department of Family and Community Services.  She then spoke to an officer at a police station.  Approximately one hour later two police officers came to her home and collected C’s clothes. 

12. The maternal aunt then made an appointment for an examination of C at a hospital, which was carried out on 5 February 2011.  There was no evidence of the result of this examination.

13. The maternal aunt then telephoned an officer of Family and Community Services. This person advised her to refuse time with the paternal grandmother on the following day.

14. On 8 February 2011 C was interviewed by JIRT officers.  There was no evidence as to the contents of this interview.  There was no evidence of the outcome of the JIRT investigation.  It would have been of considerable assistance if the contents of the JIRT file had been available as evidence.  As it is, the only evidence that C made a complaint of sexual abuse by Mr D came from the maternal aunt.

15. The paternal grandmother alleged that the maternal aunt said to her on 3 February 2011 “all it will take is an allegation by me against [Mr D] and you will never see your granddaughter again.”  According to the paternal grandmother, only a few hours later the maternal aunt phoned and said “[C] said she has been molested by [Mr D].”  The maternal aunt denied that she made this statement.

1. There was an issue as to whether the paternal grandmother allowed Mr D to be present at her home with C after these events.  The maternal aunt alleged that C told her that he was present at the paternal grandmother’s home on 7 April 2011 and that she repeated this statement during a change-over at a police station on 8 April 2011.  The maternal aunt maintained that the paternal grandmother said to her “you have someone like that at your house too”.

2. According to the father, Mr D moved out of the home of the paternal grandparents on the day of the allegation of sexual abuse.  He and his partner and children went to live with her parents.  Both the father and the paternal grandmother gave evidence that he has told them, in the clearest possible terms, that he never wants to see C again because of the allegation.

3. On the basis of the evidence before me, I cannot find on the balance of probabilities that C was sexually abused by Mr D. It may be that the maternal aunt concocted the complaint as alleged by the paternal grandmother.  In the absence of the proper evidence such as the JIRT file, I am left in the dark to a very large extent as to the circumstances surrounding the allegation.

4. As indicated, I am of the view that C needs to have a meaningful relationship with the father and her paternal family. In my opinion, any risk of sexual abuse by Mr D can be satisfactorily addressed by way of injunctive orders.

5. It seems to me that I should make orders to restrain the paternal grandmother from bringing C into contact with Mr D.  Such an order is in somewhat stronger terms than that proposed by the ICL. 

6. K expressed conflicting views to the Family Consultant as to with whom she wishes to live and what time she would like to spend with the mother.  The Family Consultant spoke to K alone and reported:

   “My aunt wants to adopt me” and “My mum’s not been really well”.

7. K told the Family Consultant that she would feel “pretty ok” if it were determined that she would continue to live with her aunt.  She added “I would be so upset” if it were decided that she were to live with her mother but she stated that she would like to see her “once”.

8. The Family Consultant reported:

   “[K] said that she calls [the maternal aunt] “aunty or mum” and then said “she is going to adopt me soon”.  She said of this “she decided, we both decided, I should be her daughter”.  [K] said that she felt “happy” about this and said “I don’t want to live with my Mum”.  [K] said “one time on last year” her mother said “I’m going to burn our house down”.  [K] said of this that [C] was “terrified” and “I hid under the bed” and “[V] hid” in “[the maternal aunt’s] room”.  [K] said that she thought her mother “meant it” and explained because we were all “terrified”.  [K] said that she had not seen her mother since that time.”

9. The Family Consultant observed K in the company of the mother and Ms Y. K said:

   “I wish I could see you all the time”.  She also said “I just really miss you guys.  I just wish I could come back home.” 

   She hugged the mother after she made these comments.

10. The Family Consultant spoke with K again after this observation session and asked her about the difference between her earlier statements and what she said directly to the mother.  Initially K responded “I don’t know” and then she said “I’d like to see Mum once every week or two weeks”.  He reported that K told him that it was difficult to tell her mother that she wanted to remain with her aunt.

11. K is ten years old but she is obviously confused about her relationships with her mother and maternal aunt.  These considerations lead to the conclusion that no significance weight should be attached to her stated views regarding arrangements for her care.   C’s very young age means that her views can carry little or no weight.

12. In recent times the maternal aunt has initiated contact between K and her paternal family.  During the 2011/2012 Christmas school holidays she spent one week with her paternal grandfather and his wife in Queensland.  In my view, the maternal aunt deserves considerable credit for initiating this contact and fostering a relationship between the paternal grandfather and K. 

13. Some criticism can legitimately be levelled at the maternal aunt for her failure to facilitate an ongoing relationship between the children and the mother and between C and the father.  The children last spoke to the mother on the telephone on 2 November 2010 and they have not seen her since December 2010.  The maternal aunt did not arrange for them to acknowledge the mother’s birthday or Christmas.  She agreed that she has done “nothing” since late February 2011 to encourage the children to have a relationship with their mother.  Similarly, the maternal aunt seemed unconcerned that C has had no contact with the father and paternal family since 2 March 2011.

14. I have referred above to the real concerns as to the capacity of the mother to provide for the needs of the children and the issues in this regard as to the father and C.  As indicated, some concern arises as to the maternal aunt’s preparedness to facilitate relationships between the children and the mother and C and the father. Ultimately, however, she consented to the proposal of the ICL that there be an order that C spend time with the paternal grandmother in the presence of the father.

15. The paternal aunt seemed more reluctant to facilitate a relationship between the children and the mother but ultimately consented to the ICL’s proposal for time in a contact centre, followed by day periods contingent upon the mother’s provision to her of a favourable psychiatric report.  I would note that she said in her oral evidence:

    “I would agree to [K] spending days with [the mother]”.

16. The maternal aunt’s husband has several criminal convictions for drug related matters and possession of a prohibited weapon.  He admitted to use of marijuana, and probably used speed, but there was no evidence as to any current use of illicit substances.  It is probably the case that the maternal aunt used illegal drugs in the past as well.

17. A change in primary residence from the maternal aunt and her husband to the mother would deprive the children of the security and stability which they have enjoyed for the past two and a half years.  As noted, there was no evidence that Ms Y would be prepared to remain in the mother’s household and take on extra responsibility for the children. In my view, such a change in primary residence would expose the children to a significant risk of destabilisation. 

18. The parties’ homes are apart by approximately twenty minutes driving time.  The mother is disqualified from driving until 2015 but the father has assistance with transport from members of his family.  No party made a proposal as to a handover point or means of transport, I can only leave the mother, the father and maternal aunt to make these arrangements.

19. Numerous allegations of violence were directed at the father, the mother and Mr J.  In 2007 the father was convicted of an assault on the mother and placed on a good behaviour bond, due to his mental health.  The mother made several further allegations that the father directed violence at her but these matters were not explored during the trial.  It may well be that the father has achieved much greater control over his behaviour since he commenced taking medication in 2006. 

20. As noted, the mother is currently the subject of an apprehended violence order for the protection of the maternal aunt, K and C.  Although she denied that she threatened to burn down the maternal aunt’s house, I am satisfied and find that she did so.  I am satisfied and find that both K and C were in the premises on that occasion and that they were extremely frightened by the mother’s behaviour. 

21. As noted Mr J readily admitted to an assault of Ms Y in 2010.  The mother alleged that he uses illicit drugs and drinks alcohol to excess but offered no evidence other than hearsay to support these criticisms.  Mr J said that he undergoes random drug testing in the course of his employment and I have no reason to doubt this evidence. 

Conclusion

1. The reality for K and C is that there is no viable option other than they remain in the care of the maternal aunt and her husband.  The father did not seek primary residence of C and, in my view, he deserves credit for this recognition of the limitations on his capacity to care for her and otherwise meet her needs.

2. Conversely, the mother sought primary residence of the children and did not seem to be aware of the difficulties which this major change would present for them and the risk of destabilisation.  I appreciate that she misses the children very much and that their absence from her day to day life saddens her but it did not seem to me that she had given proper consideration to this proposal. 

3. There will be orders as proposed by the ICL, and to which the maternal aunt consented, to regulate the children’s time with the father and paternal family.  I will not accede to the proposal of the ICL in relation to time for the children with the mother.  I cannot assume that she would be in a position to obtain a psychiatric report.  There was no evidence that the mother has now or has ever had a “treating psychiatrist”.  I note that Dr I is a psychologist.  Further, the proposal of the ICL did not specify the use which the maternal aunt would be expected to make of such a medical report.

4. I will order that the children spend time with the mother initially at a contact centre.  That arrangement cannot continue indefinitely and will be limited to five occasions.  Thereafter, the children will spend time with the mother for relatively short day periods on an unsupervised basis.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 1 March 2012.

Associate: 

Date:  1 March 2012