Lenox and Mottola and Anor
[2013] FamCA 904
•22 November 2013
FAMILY COURT OF AUSTRALIA
| LENOX & MOTTOLA & ANOR | [2013] FamCA 904 |
| FAMILY LAW – CHILDREN - Where there are two subject children of the same mother but of different fathers – Where the father of the younger child has not participated in the proceedings – Where the mother did not participate in majority of the hearing – Where the maternal grandmother has had the primary care of the children for several years – Where there is evidence that the half-sisters have a strong bond – Where the father of the elder child seeks that his daughter live with him and that the half-sisters be separated – Whether there should be sole parental responsibility to the live with party or equal shared parental responsibility for the elder child between the father and the maternal grandmother – Whether there should be a positive order for the mother to spend time with the children in light of her history of drug and alcohol use |
| Family Law Act 1975 (Cth) |
| Donnell & Dovey [2010] FAMCAFC 15 |
| APPLICANT: | Mr Lenox |
| 1st RESPONDENT: | Ms Mottola |
| 2nd RESPONDENT: | Ms Riga-Giordano |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Batey |
| FILE NUMBER: | SYC | 6958 | of | 2007 |
| DATE DELIVERED: | 22 November 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 9. 23 - 27 September and 21 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cairns |
| SOLICITOR FOR THE 1ST RESPONDENT: | Self-represented Litigant (no appearance 24 -27 September 2013) |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE 2ND RESPONDENT: | Ms Gray of KBD Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hill |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Batey of Batey's Family Lawyers |
Orders
All previous Orders in respect of B born … 2004 (“B”) and C born … 2008 (“C”) are discharged.
As to the child B:
The Second Respondent Maternal Grandmother is to have sole parental responsibility for B.
The Maternal Grandmother is to notify the Father of decisions made in respect of B’s long-term care, welfare and development.
B is to live with the Maternal Grandmother.
B is to spend time with the Father as follows:-
(a)Commencing Friday 22 November 2013 and continuing each alternate weekend thereafter from the conclusion of school Friday to the commencement of school Monday.
(b)In the event that the Friday in Order 5(a) above is a non-school day then the Father’s time shall commence at the conclusion of school Thursday in that week.
(c)In the event that the Monday in Order 5(a) above is a non-school day then the Father’s time shall conclude at the commencement of school Tuesday in that week.
(d)For half of all school holiday periods:-
(i)In the Autumn, Winter and Spring school holiday periods for the first week from the conclusion of school on the last day of the school term until 5.00 pm on the middle Saturday of the school holiday period or for another one week period as agreed between the father and the maternal grandmother; and
(ii)In the Summer school holidays for alternate week long blocks, subject to the provisions for Christmas below, commencing the conclusion of school on the last day of the school term and concluding at 5.00 pm on the last Sunday before school commences, or as otherwise agreed between the Father and the Maternal Grandmother.
(e)At Christmas from 10.00 am Christmas Day until 6.00 pm Boxing Day in each year.
(f) At Easter:-
(i)In even numbered years from 5.00 pm Easter Saturday until 5.00 pm Easter Monday;
(ii)In odd numbered years from 9.00 am Good Friday until 5.00 pm Easter Saturday.
(g)In the event that Father’s Day falls on a weekend that the Father would not otherwise be spending with B, from the conclusion of school Friday until the commencement of school Monday on that weekend.
(h) On the Father’s birthday:-
(i)Where that birthday falls on a school day from the conclusion of school until 7.30 pm;
(ii)Where that birthday falls on a non-school day from 9.00 am that day until 7.30 pm.
(i) On B’s birthday:-
(i)Where that birthday falls on a school day from the conclusion of school until 5.30 pm;
(ii)Where that birthday falls on a non-school day from 9.00 am until 2.00 pm.
For the purposes of changeovers, where those changeovers cannot occur at school, they are to occur at the Maternal Grandmother’s residence.
The Father is at liberty to communicate with B each Monday and Thursday between 7.00 pm and 7.30 pm. The Father is to initiate the call to the Maternal Grandmother’s residence.
The Father’s time is suspended as follows:-
(a) On Mother’s Day weekend;
(b) On C’s birthday; and
(c) On the Maternal Grandmother’s birthday.
The Father and the Maternal Grandmother are to ensure B continues to attend upon the psychologist Ms D and to follow all reasonable recommendations made by Ms D until such time as Ms D reports that B no longer needs her services. Such counselling shall address:-
(a)The separation issues for B including separation from her sister and other significant people in her life; and
(b)Any other issues that Ms D, the Father or Maternal Grandmother consider necessary.
The Father is authorised to attend all school activities, sporting and extra-curricular activities where it would be usual for parents to attend.
The Father is at liberty to contact the school that B attends to obtain school reports, school photographs, updates on her progress, newsletters and the like.
The Father is authorised to contact B’s general practitioner and other medical and dental providers that B may attend from time to time to obtain information on any diagnosis, updates on her progress and details of any treatment or results.
Both the Father and the Maternal Grandmother are to advise the other of any medical or other emergency involving B as soon as practical after such emergency occurring. Such notice to provide details of the emergency, the location of B and details of any treating medical practitioner.
Both the Father and the Maternal Grandmother are restrained by injunction from bringing B into contact with the Respondent Mother, except in accordance with these Orders.
In the event that either the Maternal Grandmother or the Father seek to travel outside the Commonwealth of Australia with B:-
(a)The travelling party is to provide not less than forty-two (42) days written notice of the intended travel. Such notice is to include:-
(i)The date of departure and date of return of the travel;
(ii)Copy of the travel documents including tickets and itinerary for the travel; and
(iii)Details of a contact telephone number for the period of travel.
As to the child C:
The Second Respondent Maternal Grandmother is to have sole parental responsibility for C.
C is to live with the Maternal Grandmother.
The Maternal Grandmother is to ensure C continues to attend upon the psychologist Ms D and to follow all reasonable recommendations made by Ms D until such time as Ms D reports C no longer needs her services. Such counselling is to address:-
(a)The separation issues for C including separation from her sister and other significant people in her life; and
(b)Any other issues that Ms D or the Maternal Grandmother consider necessary.
The Maternal Grandmother is restrained by injunction from bringing C into contact with the Respondent Mother, except in accordance with these Orders.
As to both B and C (“the children”):
The children are to spend time with the Mother each alternate Thursday commencing 12 December 2013 from 3.30 pm to 5.30 pm, supervised by Ms E (“Ms E”), or at such other time and day for a two hour period each fortnight as arranged between the Mother and Ms E.
(a)The Mother is to notify Ms E by text message no less than twenty-four (24) hours prior to the commencement of such time to confirm she will be in attendance.
(b)The Mother is restrained from being under the influence of alcohol or any illicit substance when spending time with the children, and in the event of Ms E forming the opinion that the Mother is intoxicated or under the influence of an illicit substance, the Mother’s time on this occasion is to be immediately suspended.
(c)The Mother is restrained from permitting any other person to attend with her during the time she spends with the children.
(d)In the event of the Mother not attending on three (3) consecutive occasions, irrespective of whether she has confirmed her attendance or not, her time with B and C is to be suspended.
Notwithstanding the above Order, Ms E is at liberty to suspend the Mother’s time with the children on up to three (3) occasions per year, and is to provide fourteen (14) days’ notice to the Mother of her intention to do so.
The children B, a female, born … 2004, and C, a female, born … 2008, are to be removed from the Airport Watch List and that the Australian Federal Police are to give effect to this order.
The Independent Children’s Lawyer is discharged.
Pursuant to sections 65DA(2) and 62B 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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications and cross-applications in respect of B and C are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenox & Mottola 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 PARRAMATTA |
FILE NUMBER: SYC 6958 of 2010
| Mr Lenox |
Applicant
And
| Ms Mottola |
First Respondent
And
Ms Riga-Giordano
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction and background
B, who is 9, and C, who is 5, (“the children”) are the children of Ms Mottola (“the mother”). B’s father, Mr Lenox, (“B’s father”) was in a relationship with the mother from early 2002 until October 2004 and they lived together for most of that time. The mother subsequently had a relationship and lived with C’s father, Mr F, (“C’s father”) from November 2006 to July 2008. The mother is currently in a relationship with (“the mother’s partner”).
For various reasons, and in particular because she has had a long-standing struggle with substance abuse, the mother has not been able to care for the children. Since about June 2010, the children have been living with their maternal grandmother, Ms Riga-Giordano, (“the maternal grandmother”) in various arrangements.
From at least February 2006, B’s father has been spending time with B, mostly in accordance with Court orders. C spends little time with her father, though she does spend regular time with her paternal family.
The orders sought
B’s father asks the Court to order that he have sole parental responsibility for her, that she live with him and spend time with the maternal grandmother each alternate weekend, half of school holidays and on other special days, and to make other orders in relation to B spending time with C, and under certain circumstances, with the mother.
The father seeks, in the alternative, in the event that orders are made for B to live with her maternal grandmother, that he and the maternal grandmother have equal shared parental responsibility for B, that he spend every alternate weekend with her during school term, two hours every alternate Sunday, two hours after school on a weekday and for half of the school holidays.
Although the proceedings have been on foot since 2010, the orders sought by the mother are unclear. At the commencement of this hearing, the mother had prepared an Amended Response to B’s father’s application and affidavit, which were handed up in Court but had not been previously filed. In this Response, the mother sought orders that the children live with the maternal grandmother, and that in each case the maternal grandmother, the mother and the respective fathers have equal shared parental responsibility for the children. The mother also sought an order that the children spend time with her each alternate Friday from 3.30 pm until 7.30 pm under supervision and that there be telephone communication between her and the children. In relation to time with the fathers, the mother sought an order that B spend time with her father each alternate weekend from 10.00 am Saturday to before school Monday and half the school holidays, and that C spend time with her father as agreed between the maternal grandmother and C’s father.
Although the mother appeared and participated in the proceedings on the morning of the first day of the hearing, she subsequently became visibly upset and left the courtroom. Although text message contact by the mother’s partner to the maternal grandmother initially indicated that the mother was unwell and may seek to adjourn the proceedings, it subsequently became clear, through text messages from the mother’s partner (Exhibit 9), that the mother was not going to further participate in the hearing or seek to have it adjourned and the hearing proceeded in her absence.
The maternal grandmother’s position has changed during the course of the proceedings. She now consents, with one minor exception, to the orders proposed by the Independent Children’s Lawyer. These orders are that the maternal grandmother have sole parental responsibility for both children, that the children live with the maternal grandmother and that B spend time with her father each alternate weekend from Friday afternoon to Monday morning, half the holidays and on particular special days. The Independent Children’s Lawyer’s proposed orders also provide that the children spend supervised time with their mother.
C’s father has not participated in these proceedings.
The Uncontested Facts
In 2002, the mother and B’s father, who were in a relationship, started living together with the paternal grandparents at their home.
In 2004, B was born.
On 11 September 2004, an incident occurred resulting in two Apprehended Domestic Violence Orders (“ADVOs”) being made against B’s father for the protection of the mother and the paternal grandmother respectively.
On 16 September 2004, the father was charged with two counts of common assault (of the mother and paternal grandmother), damage to property and contravening the ADVOs (“the charges”).
In October 2004, the mother and B’s father separated.
The father was convicted of the charges on 12 December 2004 and placed on a two year supervised good behaviour bond. The Presentence Report prepared in connection with the charges indicated that, as at the date of sentence, the father had used marijuana on a daily basis and had had what is described as an “unabated gambling addiction for the last 8 years”.
In late 2004, the mother commenced Court proceedings.
On 6 May 2005, B’s father was charged with assaulting the mother and contravening the Apprehended Violence Order protecting her. He was convicted in November 2005 and sentenced to 8 months periodic detention with a non-parole period of 6 months. In October 2005, he sought interim orders in respect of B.
On 16 February 2006, Orders were made by consent for B to live with her mother and spend time with her father commencing with seven hours supervised by the paternal grandmother each Sunday for three months, followed by unsupervised contact for the same period and for two hours on a weekday each alternate week as agreed, and on special days.
In March 2006, the mother was arrested in relation to being an accessory after the fact to robbery and entered a 10 month drug rehabilitation program prior to being sentenced. B, at this time, lived with the maternal grandfather and his wife, and the maternal great aunt Ms H (“Ms H”) and her partner Ms I (“Ms I”) were also significantly involved in her care.
In around August 2006, the mother commenced a relationship with C’s father, Mr F, who was also undergoing rehabilitation, and after completing rehabilitation, the mother and B moved in with Mr F.
Under the consent Orders of February 2006, B’s contact with her father from 20 August 2006 was increased to each alternate weekend from 11.00 am Saturday to 6.00 pm Sunday and was unsupervised.
In 2008 C was born, and although the parents had separated two months earlier, they reconciled and lived together for a short time.
In July 2008, the mother and C’s father finally separated.
Over the next two years, the mother, who continued to struggle with her addiction, and the children lived together at various addresses, including at one time with another of the mother’s partners. Various maternal family members supported the mother and children practically and at times the children were in the care of the maternal grandmother. B regularly spent time with her father pursuant to the Orders. On the alternate weekends that B spent time with her father, C spent time with her paternal family.
In June 2010, the mother relinquished the care of the children to the maternal grandmother, who became the primary carer for the children at her home. In the ensuing months, the children had very little contact with their mother.
On 4 November 2010, B’s father filed an Initiating Application for interim and final parenting orders, to which these proceedings relate. The maternal grandmother was not served with the application.
In December 2010, there was a dispute between the maternal grandmother and B’s father in relation to the father spending time with B during the December/January holidays. B did ultimately spend time with her father in January 2011.
Between 2011 and March 2012, B attended upon a clinical psychologist, Ms D, to assist her with anxiety, emotional and behavioural matters.
In January 2011, the mother voluntarily commenced a residential program in relation to her addiction to marijuana and abuse of alcohol. At this program, the mother met her current partner, who was also undergoing rehabilitation.
On 31 January 2011, the maternal grandmother was joined as a party to the proceedings.
In May 2011, an Independent Children’s Lawyer was appointed for B.
On 23 June 2011, interim Orders were made by consent providing for B’s mother, father and maternal grandmother to equally share parental responsibility for her, for B to live with her maternal grandmother, and spend time with her father on alternate weekends from 10.00 am Saturday to 6.00 pm Sunday and Wednesday afternoons, and for the mother to spend supervised time with B. The Orders also required the mother to complete a rehabilitation program, regularly attend Narcotics Anonymous or Alcoholics Anonymous, provide chain of custody urinalysis results each month and required both parents to submit to random urinalysis testing as directed by the Independent Children’s Lawyer. C continued regular alternate weekend time with her father and his family.
On 5 July 2011, the mother tested positive through urinalysis testing, indicating the presence of cannabis.
The mother and her partner commenced a de facto relationship sometime after August 2011.
In August and October 2011, the mother did not provide urinalysis testing results in accordance with the interim Orders.
In May, June, September and October 2012, the mother did not provide a urine sample for testing in accordance with interim Orders.
On 19 June 2012, the parties attended a dispute resolution conference and came to an agreement for the mother to spend some unsupervised time with B, and for the mother and father to have equal shared parental responsibility for B.
In September 2012, the mother moved in with the maternal grandmother, the maternal grandmother’s partner Mr J (“Mr J”) and the children, and the mother’s partner moved in with them in November.
On 30 November 2012, following the first day of the Less Adversarial Trial, interim Orders were made reflecting in part the agreement that the parties had reached at the June conference.
On 25 February 2013, there was an incident at the home of the maternal grandmother involving all the adults at the home, to which the police were called. The maternal grandmother believed that the mother’s partner was hiding drugs in a safe at the home. Mr J asked the mother’s partner to leave the home and police were contacted. Whilst waiting for police, the mother alleged that Mr J had sexually assaulted her around 18 months previously. Mr J disputed this and in the presence of the police assaulted the mother.
Mr J was charged with assaulting the mother and left the home. The relationship between the maternal grandmother and Mr J ended as a result of this incident.
On 1 March 2013, previous Orders were discharged and interim Orders were made for B to live with the maternal grandmother and for the mother to spend supervised time with B. For a short time following this incident the mother remained living with the maternal grandmother and the children, but on 4 March 2013 she left the home and has not lived there since.
On 6 March 2013, the maternal grandmother and the children moved to Suburb K. At this time, the mother did not provide a urine sample for the results to the tests as requested by the Independent Children’s Lawyer.
Since March 2013, B recommenced seeing the psychologist Ms D and C commenced seeing her, to assist them with understanding and managing grief relating to their changed family circumstances.
On 17 April 2013, the proceedings were extended to include C. At the interim hearing, the Court ordered that the mother was not to spend time with the children until after the release of the Family Report and only then upon application to the Court. The mother was also to provide clear urinalysis results.
On 21 July, 1 August and 27 August 2013, the Independent Children’s Lawyer requested urinalysis testing from the mother. The mother did not, on any occasion, comply with the request.
B’s father’s urinalysis results have consistently indicated that he is not using illicit substances.
B’s father has at all times lived with his parents at their home in Bossley Park, a distance of 42 kilometres (or 40 minutes by car) from B’s current home with the maternal grandmother in Suburb K, and about 34 kilometres from her current school (over 40 minutes by car). B’s father has not worked at all since the end of 2011 and last worked full time in 2010.
The Family Consultant’s Evidence
The Family Consultant prepared two reports in relation to B and one report in relation to C. She was cross-examined at the commencement of the hearing.
The first report in relation to B and her family was prepared in May 2011 on the basis of the affidavits that had been filed at that stage, other written material provided by the maternal grandmother and the father, and interviews and formal and informal observations of B with family members.
The Family Consultant made recommendations and conclusions about four particular matters of significance.
B’s relationship with her father
The Family Consultant concluded that B’s father was clearly very attached to B and intensely focused on her. She described the father as very emotional, often teary during the interview, and at that time, he was very distressed that he was restricted by Court orders in relation to communication with B.
In observations, the Family Consultant said that B seemed to distance herself from her father despite his intensive efforts to engage her and follow her around the playroom. The Family Consultant also observed that B showed no response to her father and paternal grandmother in the waiting area and ignored them when walking past them on more than one occasion.
The Family Consultant described the father as presenting with an emotional intensity, which may be somewhat overwhelming for a young child and noted that he could benefit from a parenting program or a counsellor to help him with parent/child boundary issues. She said consideration should be given to B spending increased time with her father on alternate weekend days if she felt more settled, and B’s feelings be assessed by the school counsellor, an external counsellor and in consultation with the maternal grandmother on a regular basis.
The mother
The Family Consultant was concerned that the mother had not clearly repudiated her drug use, which was extensive, having used cannabis regularly as a young teenager and by 17 years smoking it every second day, and also having regularly used heroin for a period of her teenage years. At the time of the interview, the mother had recently left the L Rehab Unit after two and a half months. The consultant was concerned that the mother described herself as having been “clean” of alcohol and drugs, other than having had a few “joints” since leaving rehabilitation. At that stage, the mother accepted that she was not yet able to have the children back with her on a full time basis, but said that was her aim.
The Family Consultant described it as quite clear in both formal and informal observations that B is attached to her mother. The Family Consultant felt that as a result of the unsettled time when living with her mother, the loss of her mother’s care over the past year, and the likelihood that there was anxiety associated with that attachment relationship, B longed for her mother and this did not seem to have lessened over time. The Family Consultant was concerned that the longing, and subsequent disappointment when she did not have contact with her mother, would have an impact on her if it could not be rectified by regular, consistent contact.
The Family Consultant said it was important for B’s emotional security for her to spend time with her mother on a regular and consistent basis to bring predictability into the relationship, and that B needed to know when she would see her mother and for how long. She also noted the comments of psychologist Ms D that it is very hard for B to be separated from her mother and that she needs to see her mother.
The sibling relationship
The third significant issue in the first report was the relationship between B and C, which was described as a critical link to the mother and an important sibling relationship. The Family Consultant felt that B’s father did not appear to give much weight to the closeness of this relationship. At that time, as is still the case, the father proposed that B would have time with C during the grandmother’s time with B. The Family Consultant suggested that this amount of time was insufficient to maintain the close sibling relationship, especially as B and C had always lived together and this factor had no doubt provided some security for both of them.
The maternal grandmother
The Family Consultant’s observations of B with her maternal grandmother showed a secure attachment and a comfortable relationship. At the time of the first report, the Family Consultant recommended that B live with her maternal grandmother until it became clear if it would be safe and possible for her to return to live with her mother. The Family Consultant recommended regular, consistent time with the mother in a supervised context, with the aim of assessing the possibility of B being restored to her mother’s care.
The second report
The second report was prepared in August 2013 and was based on documents filed up until May 2013, interviews and observations in April and July 2013 and various telephone calls.
At the time of the interviews for the second reports, the scenario envisaged under the orders then sought was in one significant way different to that which was sought at the hearing. At that stage the mother was seeking that the children live with her following a gradual transition over an extensive period from the grandmother’s care to her own. Otherwise, the second report was prepared in the context of the orders as sought by the father and maternal grandmother during the hearing.
Many of the matters raised in the first report remained pertinent in the second report.
According to the report, B described feeling “so so” about the current arrangements of spending time with her father and the paternal family. B said that she does not like going to her father because she misses her grandmother and her sister when she is with her father. B said that she gets on best with her paternal grandfather and her uncle Mr M. She said that she is not sure how she feels about her father, but that she misses him sometimes and sometimes feels happy to see him. She stated very emphatically that she definitely did not want to live with her father and would feel sad if she spent more time with him. B also told the Family Consultant that she feels saddest because she misses her mother and wishes she could live with her and Mr G, but wants to stay with her grandmother if she cannot live with her mother.
The observations of B with her father were similar to the initial observations in 2011, but more marked. B is described as being mostly polite, but occasionally looking irritated or annoyed and avoided responding to her father who attempted, largely unsuccessfully, to engage with her in the playroom. B was observed as not allowing any physical contact with her father and did not respond when he said goodbye and kissed her on the head.
Observations of B with the extended paternal family were described as comparatively subdued, but with B described as very responsive towards her paternal grandfather and her uncle Mr M, but distant from her father during this short observation.
The Family Consultant described the father as presenting as intense, but slightly less so than in the first report. The father still said he wanted to be with B every day of her life, that he was focused on B and her needs and organised his whole life around her. The Family Consultant felt that B’s apparent avoidance and lack of warmth towards her father during observation (which is likely to be impacting negatively upon her long term relationship with him) may be related to B’s awareness that her father wants her to live with him. The Family Consultant said that if the father were able to reassure B that he will not change her living arrangements, it is likely that B would allow herself to relax in her relationship with him.
The Family Consultant recommended that B’s time with her father be reduced by removing the Wednesday afternoon time. In forming this recommendation, the Family Consultant placed reliance upon B’s reports to psychologist Ms D that she did not want her time with her father to be extended and her stated reluctance to spend time with him on Wednesday afternoons.
B was described as relaxed and responsive with her maternal grandmother, who was seen to be affectionate towards both children. When observed with the maternal grandmother, C was affectionate and cooperative.
Observations of the children with the mother were very emotional for all. B ran to her mother and burst into tears whilst hugging her, and C was seen to comfort B. The mother was described as very affectionate towards the girls and they were very responsive towards her, indicating a very close relationship and also the level of distress at not having seen their mother for some months.
The Family Consultant described B’s relationship with her mother as one of longing and closeness, and said it appears to be critical to B’s long term emotional stability. Despite being concerned that the mother appears unable to prioritise her parental role, the Family Consultant still felt that B should spend time with her mother on a regular basis. In the second report, drug use was still a very real concern with the mother having missed many urine tests and there being indications that the mother was using ‘ice’. The Family Consultant’s recommendation at this time was that if the mother completes an initial clear chain-of-custody drug and alcohol screen the children should begin to spend time with her on a regular, unsupervised basis.
Observations of C and B together according to the Family Consultant indicated a close and happy relationship with B playing a protective and caring role towards C and C looking out for B.
The Family Consultant felt that the father’s proposal for B to live with him and have much reduced time with C is of concern. She described the sibling relationship as very close and that it has been a protective and stable buffer for both children for the many losses they have experienced. The Family Consultant said that it would be to B’s psychological and emotional detriment if she were not to remain living with C, and similarly for C.
So far as sole parental responsibility to any one adult is concerned, the Family Consultant felt that this would not be beneficial to B as it would most likely exclude the important involvement of other key people in her life.
The Family Consultant recommended that the time B spends with her father on Wednesday afternoon be reduced but that the time spent on each alternate weekend could continue, with the changeovers occurring at school on Friday afternoons. Under cross-examination, the Family Consultant explained that having changeovers at school would “quarantine” B by reducing the contact between her father and grandmother.
So far as living arrangements are concerned, the Family Consultant felt that remaining with the maternal grandmother appears to be the most stable option for B overall.
At the time of the interview, the maternal grandmother told the Family Consultant that she would like to play the role of a grandmother who can spoil the children and take them out, rather than being in the parent role, if possible. However, the maternal grandmother expressed her concern that the mother had walked out on the children in early March 2013, had not contacted them and had told her that she (the mother) loves the children but cannot be their mother. She said that both children were crying and very distressed for a long time after their mother left and that they had been referred by their General Practitioner to a psychologist for counselling and support.
C’s father, who did not participate in these proceedings, told the Family Consultant that he wants the arrangements to remain as they are currently organised with C continuing to spend time with him and his family each fortnight, with C being picked up and dropped off by his mother. He describes C’s relationship with him and his family as “happy”. His family are of Country N cultural background and involved in the Christian church and they expose C to their cultural and religious life when she is with them.
C’s father said that his parents, knowing how C misses her sister when away from her, have also invited B to come with C for an occasional visit, but this has not happened to date. C’s father described the maternal grandmother as “beautiful” for both children and very welcoming towards him.
From observations and interviews, C appeared to the Family Consultant to be deeply attached to her mother and experienced a sudden inexplicable and difficult loss when her mother left in March 2013. The Family Consultant said that it is of concern that the mother, although apparently deeply attached to the children, has appeared unable to prioritise her parental role. However, the consultant said it is “critically important” for the children’s emotional and psychological well-being that their mother be part of their lives.
The Family Consultant was cross-examined extensively, particularly in relation to the relationship between the children and their mother, which is curious given there is no application before the Court for the children to live their mother. She remained unshaken in her views, however, that the relationship between the children and their mother is very significant and that it was very important for their wellbeing and development that she be a part of their lives, albeit on a limited and strictly supervised basis given the impact of her addiction on her parenting capacity and indications that the mother was still using drugs. The Family Consultant said that if the children see their mother regularly, they will more likely have a realistic view of her and would be able to protect themselves by informing someone if the mother’s conduct became inappropriate.
The Family Consultant was also unshaken as to the importance of the relationship between the two children and her concern as to the impact that separating them from each other would have on their psychological and emotional wellbeing.
I accept and attach significant weight to the Family Consultant’s evidence in relation to the sibling relationship. The Family Consultant was unshaken in relation to this evidence and it is supported by the observations of all members of both families, except B’s father.
I also accept and attach weight to the Family Consultant’s observations and assessment of the nature of B’s relationship with her father and the maternal grandmother. Her assessment is, in my view, more objective than the parties own assessment of their relationships, which appear to be clouded by the emotions associated with the children’s circumstances and each parties’ perception of themselves and the other associated with those circumstances.
I do, however, not attach as much weight to the Family Consultant’s views on shared parental responsibility as it appears that she may not have been aware of the practical difficulties that have been encountered when the parties have exercised parental responsibility jointly according to the uncontested facts.
The Areas of Dispute
Central to B’s father’s application are his assertions that the maternal grandmother has been unwilling to promote B’s relationship with him, that the maternal grandmother’s parenting capacity is compromised by her health and other circumstances, that there has been instability in the children’s lives under the care of the maternal grandmother and that B’s alleged level of resistance to spending time with him is either not as significant as has been alleged, or has been influenced by the maternal family.
What has been the quality of care provided by the maternal grandmother?
B’s father asserts that whilst in the maternal grandmother’s care, B has suffered from instability in her home and at school, that the maternal grandmother has not supervised the time the children have spent with their mother as required under Court Orders and that B’s wellbeing has been compromised.
In relation to the issue of stability, the father says that B has had up to 18 changes of residence and three changes in schools.
Whilst there is no doubt that the children were the subject of enormous instability prior to their mother effectively relinquishing their care in June 2010 and virtually all changes in residence relate to this period, since that time, according to the undisputed facts, their lives have been quite different.
Since June 2010, the children have consistently resided with the maternal grandmother, and for the majority of that time in the same home in Suburb O, very near to close members of the extended maternal family and the school that B has attended for some time.
There has been one change in residence since moving to the Suburb O house as a result of it appearing in early 2013 that the mother was progressing well in her rehabilitation and hoping to be in a position to resume care of the children. The maternal grandmother at that stage was planning to live a separate life with Mr J if the mother did resume care of the children and had arranged to lease premises in Suburb K for that purpose. After the events of February 2013 when it had already been decided that they were to leave Suburb O, the home that the maternal grandmother and Mr J were to move to was then available for the maternal grandmother and the children.
It is common ground that the incident at the Suburb O home in February 2013 was devastating for everyone. In my view, moving the children to their current home, under the sole care of the maternal grandmother, provided a great deal of stability for the children in the circumstances. It is also noted that the maternal grandmother did not move the children from their school at this stage and is committed to keeping them at their current school, even though it involves some inconvenience to her. It is also not disputed that she arranged a psychologist to assist the children with their emotional difficulties.
Under cross examination, the father said that he did believe that the maternal grandmother had done a good job with B, “to a certain extent”, and described her having taken care of B since mid-2010 as a “blessing”. He reiterated that from his perspective the difficulties he had experienced had started since he had commenced the proceedings.
Although he referred to difficulties between himself and the maternal grandmother since that date, B’s father has not identified any ways in which it is said that the maternal grandmother has not kept B safe since then, except for the incident in February 2013. He conceded under cross-examination, somewhat grudgingly in my view, that the grandmother had kept B safe “to a certain extent” and ultimately agreed that the maternal grandmother is looking after B well.
In my view, the maternal grandmother has a very keen appreciation of the need for stability in these children’s lives and has provided it through her consistent care, maintaining them at their school and continuing their relationships with many people of importance to them, through extremely difficult times. I do not find that she has failed to provide them with stability.
So far as alleged violence in the maternal grandmother’s home is concerned, the only instance alleged by B’s father, which may have occurred in the children’s presence, was the event in February 2013 when the police were called to the home and the mother was assaulted by Mr J. I am unable to determine whether the children were in the home when the assault occurred. However, even if the violence did occur while the children were in the home, in my view, it is unreasonable to hold the maternal grandmother responsible for the actions of her then partner.
The grandmother did not diminish the seriousness of the February 2013 incident in any way under cross-examination. She described it as tragic and said she was the person who called the police. The uncontradicted evidence of the maternal grandmother is that she took immediate appropriate steps to protect the children to the greatest extent possible during and immediately following this incident and had them taken to the maternal great aunt Ms H’s house within a very short time after the event. The maternal grandmother separated from Mr J as a result of the incident.
Compliance with Court orders
B’s father asserts that the maternal grandmother has not followed Orders in relation to the supervision of the mother’s time spent with B, and that this has also been unsettling and negatively impacted on B.
Firstly, B’s father asserts that in around December 2010, B was living with her mother and then partner for two and a half weeks unsupervised. The father’s belief that this occurred is said to be based on a text message sent to him on 27 March 2013 by the mother.
I am not satisfied that the mother and her partner had the care of the children unsupervised at this time for a number of reasons. In the mother’s affidavit, she said that at the time it is asserted the text was sent (March 2013), she was “very depressed and very angry” and “distracted and disorganised due to [her] emotional state”. This, in my view, affects the reliability of the text.
Further, other uncontested evidence of events around December 2010, such as the conversations between the maternal grandmother and the father concerning the school holidays indicates that the maternal grandmother was particularly vigilant and protective of the children at this stage. I find it inherently unbelievable that she would allow unsupervised time to be spent with the mother at this stage, and I attach very little weight to the evidence of the mother said to be contained in a text message, a copy of which has not been produced to the Court.
The father also asserts that on an unspecified occasion, the maternal grandmother did not supervise the children in accordance with the Orders on a day when she was in Region P. The maternal grandmother readily conceded under cross-examination that she had not returned from a day trip to Region P in time to pick the children up from school due to traffic. However, her evidence, which was not contradicted and which was supported by her sister Ms H, was that she had made arrangements for the children’s mother to collect them after school and take them to Ms H’s house, which was very close to the school and remain there until the maternal grandmother arrived home. The maternal grandmother also readily conceded under cross-examination that her sister Ms H had been unhappy with her over this incident.
The father also asserts that when the maternal grandmother went to Bali for a holiday in 2012 he concluded that the Orders in relation to the supervision of the mother were not being complied with on the basis that the mother on two occasions came out to the car alone following time spent with B. Under cross-examination, the maternal grandmother denied leaving the children with their mother unsupervised and said her then partner Mr J took holidays at the time to stay home and look after the children. I am not satisfied that the maternal grandmother failed to supervise the mother’s time with the children.
For the reasons given, I find that the maternal grandmother has provided a stable and safe environment for the children since they came into her care from mid-2010 and that she complied with the supervision requirements of the mother with the children under the Court Orders.
Has the maternal grandmother been unwilling to promote the relationship between B and her father?
Broadly, it is the position of B’s father that difficulties commenced with him initiating proceedings in relation to B and since this date there has been a general unwillingness by the maternal grandmother to promote his relationship with B.
Firstly, it is asserted that the maternal grandmother prevented the father from spending time with B in the Christmas holidays December 2010 to January 2011 in accordance with the Court Orders.
According to the father, in December 2010, the maternal grandmother told him that she had consulted with B and she and Mr J had decided that he (the father) would not see B at all during the holidays. The father said that the maternal grandmother refused to facilitate this time until his solicitor forwarded a letter to her solicitor.
Thereafter B’s father says there were ongoing difficulties in relation to spending time with B. He asserts in his affidavit that there have been numerous occasions where the maternal grandmother has prevented him from seeing B without good reason.
B’s father also asserts that the maternal grandmother’s unwillingness to promote his relationship with B is demonstrated in difficulties at changeover and gives details in his affidavit of a number of instances of these difficulties, particularly from February to mid-2011.
Some of these instances in fact allege aggression by the maternal grandmother’s previous partner Mr J, though in one instance B’s father alleges that on 11 May 2011 the maternal grandmother pushed his mother. The paternal grandmother supports the father’s version of this event and says she was pushed during an incident when the maternal grandmother would not let B go to her father at changeover. The father said that following this event it was agreed between the respective solicitors that changeover would take place at Suburb O police station.
There was significant detail given about an incident on 25 June 2011 when B’s father says he was 10 to 15 minutes late in returning B to the maternal grandmother. The father says that when he telephoned her, the grandmother said as a result of his delay he would not be picking B up from school the following Wednesday. When the father arrived at the drop off location, he described the maternal grandmother as aggressive and demanding and that he reported the behaviour of the maternal grandmother to the police. The paternal grandmother and grandfather also gave similar evidence about this incident and the tenor of each version was that the maternal grandmother was the aggressor and that their son was at no time aggressive or abusive.
According to B’s father’s evidence, the difficulties escalated after this incident and on the following Wednesday, when B’s father was due to spend time with her after school, B was not at school. The father said that when he contacted the maternal grandmother to make alternative arrangements to pick up B, she refused and told him to contact his solicitor.
On 2 July 2011 B’s father says that in a text message the maternal grandmother refused to allow him to take B for the upcoming school holidays and on 8 July, when the school holidays were occurring, he says that the maternal grandmother still refused to let him see B and told him to discuss it with his solicitor.
On Saturday 9 July 2011, the father says that he went to the pickup location and waited for the maternal grandmother to drop B off in accordance with the Orders, and when she did not arrive, he made a complaint to the police. He said that he was present when the police officer rang the maternal grandmother and heard the officer say words to the effect of “excuse me, calm down, lower your voice, don’t scream at me”. The affidavit does not detail what happened next, but it does not appear to be alleged that this time with B’s father during these holidays did not in fact occur.
There was also considerable detail in B’s father’s affidavit about an incident which occurred at the school on 20 July 2011. The father says that on this date he attended at the school to collect B. The maternal grandmother, mother and great maternal aunt Ms H were at the school and he overheard them being spoken to in the Principal’s office. He says he saw the three of them come out of the Principal’s office angrily and head towards B’s classroom. He was informed the teacher had locked the classroom door, and says the Principal called the police because of the maternal grandmother’s behaviour. He saw the police speaking with the maternal grandmother, telling her to leave and not make a scene at the school again.
The maternal grandmother says that the first difficulties between her and B’s father arose in relation to the Christmas holiday period in 2010 when B’s father made a threat that he would take B and she would never see B again. The maternal grandmother says that after that B’s father called her more than 10 times a day saying things like “give her to me or I’ll come and destroy the house” and “you’ll be sorry”. She says that up until the father commenced proceedings, the mother had dealt with B’s father in relation to the time that B spent with him and that it was not until January 2011 that she (the maternal grandmother) was joined as a party to these proceedings.
So far as the instances of difficulty surrounding changeover and time spent together in 2011 are concerned, the maternal grandmother readily conceded that there were often difficulties with changeover but said that on many occasions B was reluctant to go with her father to the point of begging for her not to be taken.
The maternal grandmother said that while she always encouraged B to go with her father, there may have been an occasion where she may have said words such as “get off my property” if the father’s behaviour was aggressive.
The maternal grandmother said that the change of location for changeover to the police station may have been a suggestion made by both her and B’s father, but if he alone made the suggestion, she would have welcomed it because she found it very hard to deal with the father when he was aggressive.
In relation to the incident on 25 June 2011 when B’s father says he was 10 to 15 minutes late to return B, the maternal grandmother said he was an hour and twenty minutes late. The maternal grandmother agreed that the father sent her a communication that arrived at about the time he was due to bring B back and she said words to the effect of “if you can’t comply on a Sunday how will I trust you on a Wednesday”. The maternal grandmother said that the father kept sending messages and saying he was around the corner, without arriving, and she was very concerned for B. The maternal grandmother denied that she had dealt with the situation poorly, and said she was very concerned for her grandchild.
The maternal grandmother agreed that in late June 2011 when B’s father contacted her about the midyear holiday, she did refuse to let him see B due to the threat that he had previously made, his aggressive behaviour and due to what she called “the incident” on 25 June 2011.
The maternal grandmother also said that the father made another threat in late July 2011. She recalled being at the school with her sister Ms H and speaking to the Principal in an effort to prevent B’s father spending time with B. The maternal grandmother said that the police were sympathetic to her saying words to the effect of “I’m sorry, we have to comply with the Order”. She did not recollect being hostile to the police in any way, or the police saying that B had to be locked into the classroom because of her behaviour.
Despite the father’s position as to the maternal grandmother’s behaviour, under cross-examination he did agree that since B has been in her maternal grandmother’s care (mid-2010), the maternal grandmother has facilitated his time with B on all occasions other than those outlined. He agreed that without including the Wednesdays there were at least 87 occasions on which the maternal grandmother had facilitated his contact with B. He also agreed that of the three occasions where he said that he was not able to see B at all, one of them was Christmas 2010, were before the maternal grandmother was even a party to the proceedings.
There is no doubt, in my view, that over the years since mid-2010 whilst the children have been in the maternal grandmother’s care, there have been some occasions of considerable tension between the maternal grandmother and B’s father concerning his time with B. These difficulties appear to have commenced in late 2010 and intensified, in particular in 2011, with virtually all of the incidents arising at changeover between the maternal grandmother’s care and the father’s time with B occurring in 2011.
It is not possible for me to make a determination about which version of each of the individual incidents to accept. However, I am satisfied as to some aspects of the maternal grandmother and B’s father’s behaviour at this time.
So far as allegations of the father’s aggression is concerned, I am satisfied that he has been verbally aggressive towards the maternal grandmother. There is some support for this evidence from the maternal great aunt Ms H who said that in every interaction with B’s father he has been aggressive, violent and disrespectful. However, I do not attach significant weight to her evidence as it is clear that she has a particularly poor relationship with the father and was not prepared to make any concessions in circumstances where they would be accepted.
More compelling is that in relation to the dispute over the December 2010 holidays, the father, in his affidavit, agrees that he did get angry with the maternal grandmother and swore once or twice due to his level of anguish and distress. There is also significant evidence of B’s father’s past aggressive and violent behaviour in 2004 and 2005 resulting in numerous convictions.
I am also of the view that B’s father’s and paternal grandmother’s own assessments of the father’s aggression are not reliable. For example, the father’s and paternal grandmother’s versions of the events in September 2004, which led to the father being convicted of two assaults, damage to property and contravening the ADVO, and in May 2005 in relation to the assault and contravention of ADVO, significantly downplay the level of violence of the father compared to the version of the facts upon which the father was sentenced and the police records.
On the other hand, the maternal grandmother’s version of her reaction towards the father’s aggression is, in my view, also unreliable, and her attempts to thwart the Court Orders in mid-2011 do not reflect well on her. In particular, the police records of the events at the school in July 2011 are much more consistent with the father’s version than the maternal grandmother’s.
I am satisfied that B’s father was verbally aggressive towards the maternal grandmother in late 2010 – 2011, which affected the way the maternal grandmother reacted to him, resulting in her being quite uncooperative and obstructive at around this time. This, at times, has impacted upon the time spent between B and her father to the detriment of B.
I do not find, however, that there has been a general reluctance by the maternal grandmother to facilitate the relationship between B and her father, as the evidence appears to be confined to this period. Over all the years that B has been in the care of the maternal grandmother, the maternal grandmother has facilitated the time between B and her father on the vast majority of occasions and promoted the relationship.
B’s wellbeing and reluctance or resistance to spending time with her father
On the maternal grandmother’s version of events, there has been reluctance by B at times when leaving to spend time with her father, either at the commencement of the weekend time or on Wednesday afternoons. The father, on the other hand, asserts that the reluctance is exaggerated by the grandmother, or influenced by her.
In her affidavit, the maternal grandmother says that she first sought counselling for B in around October 2010 as she was concerned about B crying a lot and having tantrums, particularly when she was going to spend time with her father. B apparently saw this counsellor weekly for a period in late 2010.
The maternal grandmother also says in her affidavit that B has expressed her dissatisfaction with the frequency of her father’s telephone calls and relayed instances in 2013 when B has refused to speak to her father or hung up on him, including an occasion when the father telephoned three times in one afternoon.
Under cross-examination, when asked about occasions when B’s father came to collect her for the purpose of them spending time together, the maternal grandmother agreed that she, on occasions, said to him “just leave her”. She said this was because there were many times when B’s reluctance was to such a degree that she was begging for her father not to take her.
Under cross-examination, the maternal grandmother said she also remembered B telling her in around June 2012 that she did not want to spend time with her father on Wednesdays. There is also support for B’s reluctance, especially in relation to Wednesdays from the maternal great aunt who said that B has made it very clear it is not what she wants.
The Family Consultant, in making her recommendations to reduce B’s time with her father and suspend the Wednesday afternoon time, relied upon the evidence of the psychologist Ms D. B had reported to Ms D that she liked spending time with her father but did not want to live or spend more time with him. B reported to Ms D that she did not like the mid-week afternoon with her father and got upset when weekend time was extended (to start on a Friday afternoon rather than Saturday morning) because she missed C and the maternal grandmother.
The maternal grandmother maintained that recently on Wednesdays when B spends time with her father, B’s crying has minimised and the time together is more enjoyable when the father arranges for one of B’s friends to come along. The maternal grandmother, very reasonably in my view, conceded that B’s father was very smart in making these arrangements.
B’s father refutes B’s reluctance to spending time with him, though he accepts that it may be apparent to others as it is said to occur when he is not around. If this is the case, it is his position that B has been influenced by the maternal grandmother or family members, though he does not adduce any specific evidence other than relate one incident when he says that the maternal grandmother and other members of the maternal family were present at the same location where he was spending time with B to celebrate her birthday, which caused B to become restless and leave early.
I am satisfied that B has shown some reluctance in spending time with her father and in this regard place particular weight on the undisputed and independent evidence of B’s views given to the Family Consultant. B’s views are reinforced by her consistent reports to the clinical psychologist that she enjoys time with her father but does not want to spend more time, and does not like the mid-week afternoons or extended weekends.
I find that B does enjoy her time with her father, as there is much evidence to support that, but she clearly finds the point of separation from her maternal family and C, in particular, difficult. The Family Consultant felt, and I accept this is the case, that B is aware of the Court proceedings and is concerned that she may be required to spend more time away from her maternal grandmother and C, and that if the proceedings are resolved in a way that does not increase the time with her father, she will relax into this relationship. In other words, the reluctance upon separation when B spends time with her father is anticipated to dissipate if she is not required to spend more time with her father.
The maternal grandmother’s health and financial state
Although B’s father does not identify in his affidavit his concerns about the maternal grandmother’s health or financial status, or give any instances of the impact of these matters upon the maternal grandmother’s capacity to meet the children’s needs, it is clear that he has previously suggested and was asserted in submissions that the maternal grandmother may have mental health problems.
It is apparent from the maternal grandmother’s affidavit that B’s father has previously suggested that she has mental health problems, as in it, she specifically refutes that she suffers from schizophrenia. The maternal grandmother says that she has in the past been diagnosed with depression, is being properly treated, sees a psychologist every fortnight and her General Practitioner every week, takes a prescribed antidepressant daily and as a result does not currently suffer with any symptoms of depression.
Under cross-examination, the maternal grandmother said she was in good health, but readily conceded that she has arthritis and depression. The maternal grandmother maintained that her arthritis did not limit her physical activity and that her depression was under control as it had been treated. The maternal grandmother also readily conceded that she had seen a psychologist as the care of the children, care of her elderly mother and problems with her then relationship were placing significant stress on her.
Although it appears that B’s father has at some stage raised the maternal grandmother’s mental health as an issue, it was not raised with the Family Consultant in the assessment for either report (regarding B) by him or any other person.
Although B’s father was aware of the maternal grandmother’s depression through her affidavit, no questions were put to the Family Consultant about the impact this diagnosis may have upon the maternal grandmother’s capacity to care for the children. Further, in answer to a question by the mother, the Family Consultant said that no one suggested to her that the maternal grandmother was mentally unstable, and that she did not appear to her to be mentally unstable.
Ultimately, there is no evidence before the Court that the maternal grandmother suffers from any medical condition which affects her capacity to meet the needs of the children or her responsibilities in parenting them.
Although it was also submitted by B’s father that the maternal grandmother suffers from financial stress and that her caring responsibilities for her own mother also limit her ability to care for the children, there is, in my view, no evidence to support these submissions. B’s father has not brought before the Court any evidence concerning the maternal grandmother’s financial position, nor does he identify how her financial position or her caring responsibilities for her own mother in any way affects her capacity to care for these children.
The maternal grandmother was cross-examined on these topics and, in my view, her evidence about the way in which she manages, in particular to facilitate the children having access to a range of enriching extra-curricular activities on a limited income, was most impressive.
The maternal grandmother also gave evidence of a very supportive extended family, in particular her sister Ms H and Ms H’s partner Ms I. In this regard, I also was impressed by the maternal grandmother’s evidence, which was to the effect that whilst family members may, for example, pay for a meal at a restaurant, the maternal grandmother uses the money she receives from the government to support herself and the children, rather than receive it from family members, to maintain her dignity.
The evidence concerning financial resources also was to the effect that B’s father has only supported B financially to a limited extent.
The maternal grandmother has not had her own mother living with her for some time, is no longer in the relationship which caused her stress and in any event was, in my view, well treated for these difficulties.
I am satisfied that the maternal grandmother does not suffer from any health problem, other caring responsibility or financial pressure that did or does limit her capacity to care for the children.
Submissions
B’s father submits that his proposed orders are in B’s best interests and are most consistent with the principles and objects underlying the parenting provisions in the Family Law Act 1975 (Cth) (“the Act”). Submissions are also made by B’s father assessing the maternal grandmother’s proposal as against the “best interests” factors.
It is submitted by the father that very little weight should be attached to the Family Report regarding B as the recommendations are mainly concerned with the time spent between B and her mother, that the regime envisaged has been not stable and consistent, and also because it contemplates a family unit which no longer exists.
So far as the section 60CC factors of the Act are concerned, it is accepted by the father that the greatest difficulty with his proposition arises in relation to the likely effect of any changes in B’s circumstances, under his proposed orders, including the likely effect on B of any separation from C. In this regard, it is submitted that the separation from C is not as drastic as it may seem at first, considering the number of days B and C are apart per fortnight currently, and that under the father’s proposal, B will remain at the same school and the sisters will spend time together there and at activities. It is submitted that the separation is a matter of hours per week, rather than days.
In relation to the nature of the relationship between B and her maternal grandmother, the likely effect of separation from her, and the capacity of the maternal grandmother, the father says that the maternal grandmother wants to play the role of a grandmother, rather than a mother, that she is stressed by the circumstances in caring for the children and that there has been a degree of instability in her care.
It is submitted that on the other hand at all times the father has been consistently available for B.
So far as the alternative proposal of the father is concerned, that is in the event that B lives with the maternal grandmother, the father proposes that he have equal shared parental responsibility for B with the maternal grandmother (and no longer together with the mother). Sole parental responsibility for B with the maternal grandmother is opposed. The father did not want the maternal grandmother to have the ultimate and only say in decisions regarding B.
It is also submitted that under this proposal it is appropriate and in B’s best interest for the time spent between the father and B to continue to commence on Friday afternoon and conclude on Monday morning, as that will give the father an opportunity to participate in school activities and attend extra-curricular activities.
B’s father also seeks a half school holidays regime, that time each Wednesday afternoon continue and that he spend a two hour period each alternate Sunday night on alternate weekends when he is not spending time with B. The father submits that the Court should be cautious of the evidence of the maternal grandmother and maternal great aunt Ms H as to the level of resistance that B shows in relation to Wednesday afternoons.
As to the additional Sunday night time in the alternate week, B’s father’s counsel made no submissions why there should be this increase. When the matter was re-mentioned to clarify some of the parties submissions, shortly before Judgment was delivered, the father submitted that he sought this additional time so his strong relationship with B would not just be maintained but would “flourish”.
Further, the father proposes time with B every Christmas Day from 10.00 am to Boxing Day at 6.00 pm.
Finally, it is submitted by B’s father that the Court should order that the maternal grandmother be prohibited from travelling to a non-Hague Convention country with B and that B be maintained on the Airport Watch List. It is submitted that this is required because the maternal grandmother has been inaccurate and bordering on misleading in relation to her connections overseas, and that as there has been a significant collapse of the family unit for the maternal grandmother, there is a realistic risk that she may remove the children to a non-Hague Convention country.
As indicated, the maternal grandmother now adopts the Independent Children’s Lawyer’s proposed minute of order with one exception relating to Christmas Day.
On her behalf in relation to parental responsibility, it is submitted that the presumption contained in section 61DA of the Act, that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, is directed to parents and there is no provision for a presumption that applies to the maternal grandmother and B’s father.
In support of the Independent Children’s Lawyer’s proposed orders, the maternal grandmother submits that all of the evidence in this case focuses on the children’s experience in her home, that she has taken on the role of the mother and that the Court would have confidence she would continue to act in the best interests of the children.
It is submitted by the maternal grandmother that B is strongly negative about the Wednesday time with her father and that the Wednesday time should not continue.
The maternal grandmother says that in relation to the s 60 CC factors applied to the respective proposals for B, significant weight should be attached to B’s views as she is forthright and well-spoken.
In relation to the significant relationships in B’s life, the maternal grandmother submits that while B’s primary attachment is with her mother, there is good relationship with the maternal grandmother, less of a relationship with her father and a very strong and close relationship with C. It is submitted that B’s father is unwilling or blind to the closeness of the relationship with C.
It is the maternal grandmother’s position that the Court should take into account the practical difficulties and expense associated with the father’s plan, which he cannot afford. It is submitted that the father’s application is fantastical and involves no actual plan.
The maternal grandmother also says that the father shows little capacity to meet B’s emotional needs as he has shown limited insight into her relationships with the maternal family. There are also concerns about the capacity for the father to provide for B financially as he was prepared to be unemployed to afford himself legal aid, has not really supported his daughter financially and has presented contradictory and unacceptable evidence about his employment capacity.
It is also submitted that sole parental responsibility for B being placed with the maternal grandmother is the most likely to result in less disputes and therefore least likely to lead to the necessity of further Court intervention.
In the Independent Children’s Lawyer’s submission, little weight should be attached to the Family Consultant’s report in its totality though there seemed to be particular concern with her recommendations about time with the mother in light of the Family Consultant’s lack of expertise in the area of substance abuse.
The Independent Children’s Lawyer also says little weight should be given to the views of each of the children in light of their age, the problems that adults in their lives have had in facilitating time with others and the possibility of the views being influenced.
The Independent Children’s Lawyer was particularly concerned with the impact that the change of circumstances involved in B’s father’s proposal would have upon her. The Independent Children’s Lawyer’s position is that there is ample evidence that B has suffered from anxiety over recent changes in her life, which would be exacerbated by a further significant change. The Independent Children’s Lawyer was also concerned that given the distance between the father’s residence and B’s school (which the father has indicated he will not change) a lot of travel each day will be required.
The Independent Children’s Lawyer was also concerned about the practical difficulties and expense involved in B’s father’s plan and noted that he had no concrete proposals for practical matters such as after school care and the like.
As to Christmas time, it was the Independent Children’s Lawyer’s proposal that the children spend alternate Christmases with the maternal grandmother and their paternal families. However, in light of the maternal grandmother and B’s father’s respective positions being complimentary (the maternal grandmother spending Christmas Eve and B’s father spending Christmas Day and Boxing Day with B), this proposal in this regard was not pressed.
C’s family did not participate in the proceedings. There was agreement by the maternal grandmother that the Independent Children’s Lawyer’s proposed orders in relation to C were in C’s best interests.
At the time of submissions, the father, the maternal grandmother and the Independent Children’s Lawyer all indicated that they supported a positive order for the mother to spend time with the children but no concrete proposal was put forward in any of the proposed orders. At that time the Independent Children’s Lawyer had referred to the Family Consultant’s evidence that if the children did not maintain a relationship which involved spending time with their mother, there would be the risk of idealisation.
I recalled the parties to hear briefly their respective proposals in respect of a positive order for the mother’s time with the children. The mother was in attendance on this occasion. B’s father submitted it would be in B’s best interests for her to have regular, consistent time with her mother. He agreed to Ms I being the supervisor, but offered to supervise if Ms I was not available. He sought that the mother’s time commence with a three and a half hour period each alternate week, but then gradually increase in duration. He agreed that there should be some flexibility in the event the time was not suitable to the mother and/or Ms I was not available.
Whilst the maternal grandmother’s primary position was that there should be no time between the mother and the children until the mother had rehabilitated herself, demonstrated by her providing a series of clean urinalysis test results, she conceded that the Court may find on the evidence that there should be a positive order. She was amenable to such an order provided the mother’s time was supervised by Ms I. She sought that the mother be restrained from being under the influence of alcohol or illicit substances at the time of contact and that she not bring anyone with her to contact.
The Independent Children’s Lawyer advised of Ms I’s availability being on a Thursday afternoon for a two hour period, and that she was happy to supervise the time as a long term commitment. She sought there be a self-executing order in the event that the mother did not attend to spend time with the children on three consecutive occasions. She also submitted that the time together not be restricted to attending a particular activity such as swimming, which is seasonal.
The mother agreed to all proposals put forward by the other parties.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
In this matter, when applying the primary and additional considerations to the proposals of B’s father and her maternal grandmother, the Court must not treat those considerations which specifically relate to parents as if they must equally apply to a non-parent party, in this case the maternal grandmother.
In Donnell & Dovey[1], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under section 60CC is also relevant to a non-parent, this should be addressed under section 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the maternal grandmother, I will do so by application of s 60CC(3)(m).
[1] [2010] FamCAFC 15
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The main matters of harm of the type referred to in s 60CC(2)(b) in this case arise from the circumstances when the children were in the care of their mother, prior to her relinquishing them to the maternal grandmother. None of the proposed orders entail the children being cared for by their mother and all proposals will protect the children from the physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in this regard.
B has, however, also been exposed to conflict and abuse between her father and maternal grandmother. I accept the submission of B’s father that the proposed set of orders, having weekend time with the non-residential parent commencing on Friday afternoon, will reduce the level of contact and thus conflict between the two.
All proposed orders in this matter would ensure each of the children having a “meaningful relationship” with their respective fathers, in the sense given to that phrase by the Full Court.
The meaning of the phrase “meaningful relationship” is not defined in the Act itself. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
So far as the mother is concerned, all parties’ proposed minutes of order include a positive order for the children to spend time, albeit limited, with their mother on the proviso that it is supervised and is not to occur if the mother is obviously under the influence of drugs or alcohol. This condition is necessary because there is no doubt that the mother has had a longstanding struggle with addiction to illicit drugs and alcohol and there is no evidence before the Court that she has been rehabilitated or that she is in a position to or currently wants to resume care of the children.
There is also uncontradicted evidence that the children still have a strong bond and attachment to their mother, notwithstanding all of her difficulties, and the Family Consultant recommends that they spend time with her to ensure their psychological and emotional wellbeing and development.
Fortunately, there is a family member, Ms I (or Ms E), the partner of the maternal great aunt who has been closely involved in caring for the children throughout their lives and is trusted by all adults involved in their lives. Ms I gave very impressive evidence of a commitment to the children as far into the future as is required to supervise any time they may spend with their mother in order to facilitate that relationship. Whilst initially the father proposed himself as the supervisor, later all parties, including the mother, agreed to Ms I supervising any time between the mother and the children.
Section 60CC(3) then sets out additional considerations the Court must consider when determining the child’s best interests and I will refer to those which are relevant in this case.
Firstly, I must consider the views expressed by the children and any factors underlying their views (subparagraph (a)). In my opinion, significant weight should be attached to B’s views. Although she is only 9 years old, she has held strongly articulated views for a number of years and her observed behaviour is consistent with those views. The Family Consultant felt that they were genuine but that the reluctance associated with B spending time with her father may be associated with her understanding of the Court proceedings. C has not really expressed particular views but she is too young in my view for any such expression to be given any weight.
As to the nature of the relationship of the children with parents and other significant persons (subparagraph (b)), there is no doubt that these children both have the advantage of well-developed and loving relationships with many maternal and paternal relatives. All of B’s relatives, including her paternal relatives, with the exception of her mother, have been consistently available to her and the evidence supports the strong bonds between them.
C’s paternal relatives have played no part in these proceedings, though there appears to be strong connections with them.
The maternal grandmother is particularly significant for both children and the children’s relationship with each other appears to be particularly strong and significant.
The children’s relationships with their own mother, despite her inadequacies as a parent, appear to remain important. However, the Family Consultant is concerned that there is a risk of idealisation by the children of their mother, which may problematic in the long term if they do not spend regular time in their mother’s presence.
Subparagraph (c) concerns the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. As I regard this factor to be equally relevant in relation to the maternal grandmother, I will consider it here, although it arises under section 60CC(3)(m).
Unfortunately both the maternal grandmother and B’s father have demonstrated some concerning matters, which reflect upon their respective willingness and ability to facilitate and encourage a close and continuing relationship between B and the other adult.
On B’s father’s part, it did not assist the relationship between B and her maternal grandmother for him to adopt a threatening and aggressive stance towards the grandmother when she first assumed B’s full time care. In my view, the maternal grandmother then overreacted and could be quite obstructive herself. The approach taken by both parties from the time the grandmother assumed the children’s care set the tone for difficulties in the relationship between themselves, which subtly affected the encouragement of a close and continuing relationship with the other family.
Further, in my view, there is evidence that B’s father maintains an entirely separate life for B when she spends time at the paternal home. For example, he insists that B shower and change her clothes after she arrives at the father’s home and before she returns to the maternal grandmother which promotes the idea of there being a distinct separation between the maternal and paternal side of the family, which may not ultimately be in B’s best interest.
The likely effect of any change in the children’s circumstances (subparagraph (d)), including the likely effect of separation from the maternal grandmother and C under B’s father’s proposal, in my view, is the most salient of all of the section 60CC(3) factors in this case.
Firstly, under the father’s plan, there are practical difficulties, such as increased travel time, increased use of after school care and concerns about whether it will be sustainable in the long term for the father to maintain B at the school she currently attends and current extra-curricular activities.
A greater concern, however, is that B’s father’s plan involves separating B from her maternal grandmother and C. I do not accept the submission that the change only involves a reduction of a matter of hours per week with C, and it reinforces, in my view, the lack of understanding by B’s father as to the way in which relationships are formed and sustained and the significance of this sibling relationship for B’s wellbeing and development in light of the significant losses she has had in her life.
The proposal supported by both the Independent Children’s Lawyer and the maternal grandmother will lead to a small reduction in B’s father’s time with her on a Wednesday afternoon. However, according to the evidence, which I accept, Wednesday afternoon has involved some stress for B and this reduction may be positive for her if the stress is reduced.
Under the Independent Children’s Lawyer’s proposed order there shall also be an increase in the telephone contact between B and her father each week.
Under either of the proposed suite of orders in relation to where B lives, there is no practical difficulty or significant expense in her spending time with and communicating with the other proposed carer (subparagraph (e)).
The maternal grandmother has demonstrated that she has provided for all of the children’s needs over the last three and a half years when they have been in her full time care (subparagraph (f)). C’s father and paternal family acknowledge the maternal grandmother’s capacity in supporting her remaining in the maternal grandmother’s care.
B’s father, although wanting B to live with him, has acknowledged that the maternal grandmother has cared for B well. As indicated, I do not accept his submission that the maternal grandmother’s capacity is in any way impaired by her financial state, health, caring responsibilities for her own mother, or any other factor.
I have real concerns that in pursuing an order which would have B live with him, especially in light of the Family Consultant’s evidence as to the effect this proposal has on B’s attitude and interaction with him, B’s father has not understood B’s emotional needs to remain living with C and her grandmother. I also have some concerns about his ability to meet B’s physical needs arising from the evidence about him choosing to remain unemployed to retain a legal aid entitlement, contradictory evidence about future work intentions, lack of plans and experience in obtaining any independent accommodation and inexperience in caring for a child full time.
Each of the children is fortunate enough to have a lifestyle and background enriched by culture and traditions followed at each of the homes with which they are connected (subparagraph (g)). B’s Country Q cultural tradition within her paternal family and her Country R culture from the maternal home would continue to be met under either of the principal suite of orders proposed.
C is of a Country N Christian heritage on her paternal side and participation in those cultural traditions are ensured by the paternal family under the existing arrangement which will continue in the orders consented to for her.
I have some concerns about B’s father’s sense of responsibility to parenthood arising from his evidence about his employment and financial position, particularly as he submits by way of criticism of the maternal grandmother that she has some financial constraints which affect her capacity to care for B (subparagraph (i)). B’s father gave, in my view, unsatisfactory and conflicting evidence about steps taken to find employment and his future intentions and admitted that he has not worked for the past three years for the purpose of continuing to qualify for legal aid. According to the evidence, he has provided little financial support to the maternal grandmother, who has managed to support both children on a limited income.
Although B’s father is an adult of 33 years, he still resides in his parent’s home and much, but not all, of the caring for B whilst she is spending time with him, in fact, is done by the paternal grandparents, especially the paternal grandmother.
On the other hand, B’s father has shown a persistent and longstanding commitment towards her. I have no doubt that he loves her very much, even though, in my view, he does not appear to have fully grasped all that is entailed in caring for a child full time.
Although B’s father was violent to the mother in 2004 and 2005, there is no evidence that B was exposed to it or that there are any current concerns in that regard in relation to him. The only instance of violence to which the children may have been exposed whilst in the care of the maternal grandmother was the incident in February 2013. In my view, the maternal grandmother acted appropriately, immediately removing the children to a place of safety, has ended her relationship with the perpetrator and the children have been provided with psychological support. I am satisfied that there is no risk to the children in either of the homes of exposure to family violence (subparagraph (j)).
In relation to the issue of the Court considering whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings (subparagraph (l)), I do take this matter into account in relation to parental responsibility for the children.
Parental responsibility
Under section 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or when the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for them (subsection 61DA(4)).
So far as the mother is concerned, no party other than her is now seeking that she has parental responsibility for the children, even on a shared basis. Although at the commencement of the proceedings the maternal grandmother sought equal parental responsibility for each child to be shared between her and each of the respective parents, she now seeks sole parental responsibility for each of them.
B’s father seeks sole parental responsibility if B is living with him or shared parental responsibility for B with the maternal grandmother if she lives with her.
I am satisfied that it is not in the best interests of either of these children for an order to be made giving either set of parents equal shared parental responsibility.
The mother effectively relinquished the children’s care to her mother in mid-2010 and has virtually abandoned them since March 2013. The mother has only seen her children once since that date during the Family Consultant’s assessment. The mother did not participate in these proceedings beyond the first morning and when recalled for very short additional submissions and has, from time to time, acted in an inconsistent way with respect to the children and the orders she has sought. For example, the mother wants the children to continue living with the maternal grandmother, but suggested to the Family Consultant under cross-examination that the maternal grandmother was mentally unstable. The mother also provided information to the father critical of the maternal grandmother, telling him that the maternal grandmother had not, on occasions, supervised her time with the children, whilst still seeking an order that the children live with the grandmother.
At times, B’s father has suggested that he has a reasonable relationship with the mother and, although he criticises the maternal grandmother for allowing contact between B and her mother other than in accordance with Court Orders, it appears that he may have allowed telephone or text message contact between B and her mother when she is spending time with him. In other words, it appears to me that, at times, B’s mother and father have acted in ways which undermine the maternal grandmother, even though she has the care of the children.
There have also been difficulties in the parties cooperating in having a passport issued for B and for arrangements to be made to allow the maternal grandmother to take the children on a cruise. On occasions, B’s father has also criticised the maternal grandmother’s decisions such as changing B’s school and residence and has suggested that these decisions have not been in B’s best interests.
In summary, it appears that there has been, over many years, inconsistency in the capacity of all three adults in B’s life to cooperate with one another. On this basis, I have little confidence that they could do so in the future and, in my view, parental responsibility shared between them would be practicably unworkable and would inevitably lead to further proceedings between the parties.
The Orders
Having regard to all of the factors in relation to the best interests of the child, and as there is no dispute in relation to C, I make orders in accordance with the Independent Children’s Lawyer’s proposed minute of order in relation to her.
So far as B is concerned, as I have indicated, the presumption of shared parental responsibility between the parents is not in B’s best interests. Shared parental responsibility between the maternal grandmother and B’s father is practicably unworkable and, in my view, an order should be made for sole parental responsibility in favour of the party with whom B lives. I will also make an order that that party with whom sole parental responsibility is assigned is to notify the other party of important decisions made in respect of B as both adults have a clear desire to be involved to the greatest degree possible in decisions about B, which is in her best interests.
So far as B’s living arrangements and spending time arrangements are concerned, I have regard to the strong views expressed by B that she does not want to live with her father. I have also considered the nature of B’s relationships with all of her family, particularly the important relationship with C, the likely effect that a change in residence will have upon B, and the capacity the maternal grandmother has demonstrated in the last three and a half years to provide for her needs.
Whilst B’s father is clearly committed to her and loves her, I have found some lack of capacity in him to provide for her emotional and physical needs and have some concerns about his attitude to the responsibilities of parenthood.
Taking all of these matters into account, I am of the view that B’s best interests are met by making the orders largely in accordance with those as sought by the Independent Children’s Lawyer, which were predominantly agreed to by the maternal grandmother.
I do not propose making the order sought by B’s father in respect of preventing the maternal grandmother travelling to a non-Hague convention country or maintaining B’s name on the Airport Watch List. I do not accept the submission of B’s father that the maternal grandmother has been inaccurate or misleading in relation to her connections overseas. In light of the evidence of her extensive and entrenched connections to her extended family in Sydney, to the part of Sydney in which she lives and most importantly to maintaining her grandchildren in a settled and stable environment, I find there is no risk that she will remove either of the children from Australia.
The only order proposed by the Independent Children’s Lawyer not agreed to by the maternal grandmother is order 3(e) relating to Christmas. The maternal grandmother proposes that B spend Christmas Eve each year with her and B’s father proposes that Christmas Day and Boxing Day each year be spent with him. The Independent Children’s Lawyer later withdrew this proposed order.
Christmas is an important cultural event and B has a right to enjoy the expression of that culture around Christmas time with others from the Country Q culture of her father’s family and those of the Country R culture in her mother’s family. I am of the view that B’s best interests would be met by her experiencing the traditions associated with Christmas with each of those who have been principally involved in her care, that is, her maternal grandmother and her father.
Accordingly, as the maternal grandmother and the father each propose orders which are in harmony with the other, I make their orders as proposed rather than those proposed by the Independent Children’s Lawyer.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 November 2013.
Associate:
Date: 22 November 2013
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