Marsh and Anor and Marsh
[2010] FMCAfam 289
•26 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSH & ANOR & MARSH | [2010] FMCAfam 289 |
| FAMILY LAW – Consent orders that child live with grandparents – parties to have equal shared parental responsibility – mother’s current partner has impulse control behavioural issues – previous incidents of violence by mother’s partner – issues of stability in mother’s household – mother’s rehabilitation regarding drug use – mother’s partner is able to be present when child spends time with mother but restrictions on alcohol and drug use. |
| Family Law Act 1975 (Cth), Part VII Evidence Act 1995 (Cth), s.128 |
| Marsh & Marsh [2008] FMCAfam 149 |
| First Applicant: | MS H MARSH |
| Second Applicant: | MR MARSH |
| Respondent: | MS E MARSH |
| File Number: | SYC 2597 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 2 & 3 March 2010 |
| Date of Last Submission: | 3 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2010 |
REPRESENTATION
| Counsel for the First and Second Applicants: | Mr Sweet |
| Solicitors for the First and Second Applicants: | Stojanovic Solicitors |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Independent Children’s Lawyer: | Mr Hearl |
| Solicitors for the Independent Children’s Lawyer: | Delaney Lawyers |
ORDERS BY CONSENT
All previous Orders be discharged and the following Orders be made on a final basis.
The child [K] (herein after referred to as “the child”) born [in] 2001 live with the Applicant Grandparents.
[DELETED]
The child is to spend time with the Respondent Mother as follows:-
(a)During school terms, each alternate weekend from 10am Saturday until 5pm Sunday;
(b)During school holiday periods for the whole of the April public school holidays.
(c)For half of the Christmas holiday period, the first half in odd numbered years and the second half in even numbered years.
(d)On Christmas Day 4pm to 8pm if the child is not otherwise spending time with the Respondent Mother;
(e)Such other time as may be agreed between the parties.
(f)For the purpose of these Orders the school term and Christmas school holidays are deemed to commence at 9am on the first day after the public school term ceases and changeovers shall occur at 6pm on the day in the middle of the school holiday period.
In the event that the child is not living with the Applicant Grandparents on Christmas Day, the child shall spend time with the Applicant Grandparents on Christmas Day from 4pm to 8pm and the time that the child would otherwise spend time with the Respondent Mother shall be suspended during this period.
That, pursuant to sections 65Z and 65Y of the Family Law Act 1975:
(a)the Applicant Grandparents are permitted to take the child to a place outside Australia, namely, the United Kingdom or South Africa, for the purposes of the child spending time with her father Mr E for a period of not exceeding 5 weeks, such period to include the June/July public school holiday period in each year.
(b)That in the event that the Applicant Grandparents do not take the child out of Australia pursuant to Order 6(a), the child shall spend time with the Respondent Mother for half of the June/July school holiday period in each year, such half to be agreed between the parties and in the absence of agreement for the second half of each of the school holiday periods.
(c)In the event that the Applicant Grandparents intend to take the child outside of Australia pursuant to Order 6(a) the Applicant Grandparents shall give to the Respondent Mother, prior written notice of the intended departure date, the proposed itinerary, including the proposed destination and address and mobile telephone or landline number where the child can be contacted.
If either party intends to take the child on holidays or take the child away from their normal place of residence for a period in excess of
24 hours that party shall give the other party prior written notice of the intended date of departure; the proposed destination and address; and mobile telephone or landline number where the child can be contacted.
That, during the periods that the child spends time with the Respondent Mother, the Respondent Mother:-
(a)must not consume alcohol for twelve (12) hours prior to and during any period while the child is in her care;
(b)must not smoke marijuana for twelve (12) hours prior to and during any period while the child is in her care;
(c)must not use any illicit substances;
(d)[DELETED]
[DELETED]
[DELETED]
Each party is to keep the other informed of all medical, dental and other health-related treatment being undertaken by the child.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
ORDERS
That the Applicant Grandparents, Ms H Marsh and Mr Marsh, and the Respondent, Ms E Marsh, have shared parental responsibility for the child, [K].
In addition to Order (8) above, that during periods the child spends time with the Respondent Mother,
the Applicant Grandparents shall:-
(a)Provide the child with a mobile telephone and install appropriate speed dial numbers for the Applicant Grandparents and at least one other person deemed appropriate by the Applicant Grandparents; and
(b)Ensure the telephone has sufficient credit for the child to make telephone calls at all times;
and
the Respondent Mother:-
(c)Must ensure that the mobile telephone in Order (14)(a) is switched on and available to the child at any time she would like to use it; and
(d)Must ensure that, if Mr F is present then:
(i)Mr F must not have consumed alcohol for twenty-four (24) hours prior to and during any period while the child is in the Respondent Mother’s care;
(ii)Mr F must not have smoked any marijuana for twenty-four (24) hours prior to and during any period while the child is in the Respondent Mother’s care;
(iii)Mr F does not use any illicit substances; and
(iv)That another adult (such as the Respondent Mother) or [T] is present at all times (‘the supervision order’); and
The Respondent Mother must keep the child away from Mr F if she cannot comply with (i) to (iv) above.
(e)Order (14)(d)(iv) (the supervision order) will cease on the first day [K] commences her second year of high school.
The Respondent Mother shall attend an appropriate drug and rehabilitation clinic to be nominated by the Independent Children Lawyer (‘the nominated clinic’), at least every six (6) months from the date of these orders (or such other rehabilitation clinic) and follow all and any directions from the nominated clinic (or such other drug rehabilitation clinic) and receive treatment and counselling for such period as determined by the nominated clinic (or such other drug rehabilitation clinic) and shall forthwith give the Applicant Grandparents a written authority directing the nominated clinic (or such other drug rehabilitation clinic) to forward records of all treatment, to be received now or in the future by the Respondent Mother to the Applicant Grandparents.
That the Respondent Mother attend upon a suitable clinic within 24 hours of being requested to do so by the Applicant Grandparents, and the Respondent Mother shall do all things necessary to undertake supervised urine analysis testing to determine the level, if any, of methadone taken by her and to test for the use of any illegal substances or non-prescription drugs, with such requests to be no more frequent than once every two (2) months until December 2011, and no more frequent than four (4) times a year thereafter. Thereafter the Respondent Mother is to provide to the Applicant Grandparents a copy of the results of such test as soon as practicable after same are available.
The Applicant Grandparents shall meet all costs associated with the testing referred to in Order (16).
THE COURT NOTES
A. When the Respondent Mother is attending a suitable clinic pursuant to Order (16), Mr F is encouraged to attend upon a suitable clinic and do all things necessary to undertake supervised urine analysis testing to determine the level, if any, of suboxone, methadone or alcohol taken by him and to test for the use of any illegal substances or non-prescription drugs. Thereafter Mr F is encouraged to provide to the Applicant Grandparents a copy of the results of such tests undertaken by him as soon as practicable after same are available. The costs of such tests are to be met by the Applicants.
B. The Orders, including the Consent Orders, are predicated on the Respondent Mother continuing to live on the New South Wales Central Coast.
IT IS NOTED that publication of this judgment under the pseudonym Marsh & Anor & Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2597 of 2007
| MS H MARSH |
First Applicant
| MR MARSH |
Second Applicant
And
| MS E MARSH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for final parenting orders by the Applicants in relation to the child, [K] born [in] 2001. The Applicants are the child’s maternal grandparents and the Respondent is the child’s mother.
An initiating application in this matter was filed by the First Applicant in 2007. After extensive hearing between late 2007 and early 2008, I formed the view that it was appropriate to make interim orders for the care of the child because of the uncertainty and fluidity of the Mother’s household and lifestyle, in particular, her capacity to parent whilst on methadone and her progress with further treatment.
The background to this matter and further details of events in 2007 and prior was provided in the interim judgment Marsh & Marsh [2008] FMCAfam 149 (15 July 2008). Relevant to restate here, the child’s father Mr E is in another relationship and lives abroad. He is not a party to these proceedings. The Respondent Mother currently lives with her partner Mr F and they have a son together, [G] who is 2 years old (born [in] 2007) who is a half-brother to [K]. Mr F’s daughter [T] from another relationship and who is 16 years old commenced living with them in 2009. The issues I considered in the interim judgment were, amongst other things, drug abuse by the Mother and Mr F and incidents of violence between the Mother and Mr F.
On 15 July 2008 I made orders that [K] live with the maternal grandparents and spend time with the Mother on a graduated basis initially each Saturday from 9am until 4pm and dependent on drug testing results, overnight alternate Saturdays and Wednesday afternoons. Orders by consent made on 14 July 2009, allowed the child to spend overnight time with her mother on some specified Saturdays.
The orders of 15 July 2008 provided that [K] was not to spend unsupervised time with Mr F. However subsequent to those orders, [K] became distressed after witnessing an argument between Mr F and [T] during September 2009 and both parties agreed that Mr F would not be present on sleepovers.
Final hearing occurred on 2 and 3 March 2010. Although the hearing was listed for 10.00am the Mother did not appear at that time and later contacted the First Applicant to inform her she had fainted on a bus earlier that morning but had continued on to catch a train to the city. The matter was adjourned until 12.45pm by which time the Mother was available in Court. She was self-represented and indicated that she was ready to proceed with the hearing. The matter was adjourned for a short period so the Mother had time to prepare her case and the substantive hearing commenced at 1.30pm.
On the first day of hearing the maternal grandfather sought to be joined as a party to the proceedings and I granted leave for that to occur.
On the second day of hearing I granted a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) to Mr F with respect to evidence relating to an assault charge of 8 November 2008 pending against him.
The Issues
At hearing, Counsel for the Grandparents, Mr Sweet, indicated that negotiations had occurred between the parties and tendered a document headed ‘Terms of Settlement’ (Marked as Exhibit A18) which, he submitted reflected the views of the parties, except with respect Order 8(d) regarding Mr F’s presence during [K]’s time with her mother.
I have looked at the Orders proposed in that document and at hearing I expressed concern over the following proposed orders:
3. The Applicant Grandmother have sole parental responsibility for the child
…
8. That, during the periods that the child spends time with the Respondent Mother, the Respondent Mother: -
…
(d) must not allow Mr F to be present.
9. If Order 8 is breached, the Respondent Mother’s time with the child will be reduced as follows:-
(a) During school terms, for two hours only on 2 days in each week as determined by the Applicant Grandmother;
(b) During school holiday periods for six hours only on 3 days in each week as determined by the Applicant Grandmother.
At hearing Mr Hearl indicated he wanted to further explore the Order relating to shared parental responsibility. He also agreed there might be issues with self-executing orders with respect to who would determine a breach, what constitutes a breach and the potential for further litigation.
Both Mr Hearl and the Mother agreed that the main issues at hearing were Mr F’s time with [K] and the allocation of parental responsibility.
During submissions the Mother raised a complaint regarding the effectiveness of the [W] Clinic to assist her with rehabilitation; I take the complaint to be directed at proposed Order 10 relating to her attendance at [W] Clinic for treatment and counselling. However, I note she also raised this complaint with the family report writer.
In summary, the two main issues in relation to which the parties directly adduced evidence at hearing towards were:
i.The allocation of parental responsibility; and
ii.Whether [K] is to spend with Mr F.
For clarity, I state the other issues which were also apparent at hearing on the materials:
iii.Whether Order 9 or any other order be made with respect to consequences of any breaches of the substantive orders; and
iv.Whether Order 10 or any other order be made with respect to the Mother’s rehabilitation.
The Evidence
All three parties attended the hearing and were cross-examined. Mr F was called as a witness and appeared by telephone on the second day.
A family report was prepared by Dr Janina Szyndler on 19 January 2010. Dr Rikard-Bell had previously prepared an expert’s report on
10 November 2007 and completed an updated report on 10 February 2010. Both expert witnesses gave evidence and were cross-examined by telephone.
Violence
The Applicants submit Mr F should not be present when the Respondent is spending time with [K]. They raised concerns for [K]’s safety because of:
i.Lack of certainty that he has discontinued drug use and the lack of urine testing to ensure this;
ii.Mr F’s lack of anger management, especially when he has been drinking;
iii.Indications that [K] has been traumatised by Mr F’s violence;
iv.Concerns as to whether he would comply with any orders as he did not stay away from [K] previously when Orders suggested he should.
Mr F started using heroin in 2003. After being diagnosed with a stomach ulcer, he now only occasionally drinks beer. He indicated to the family report writer that in December 2008 he ceased all his medications to assist his previous illicit drug use. This was also deposed in his affidavit. The family report writer noted that although there was no verification of him being stable and doing well, it was “hard to envisage him holding down a job and being able to parent two children…in the context of regular illegal drug use of excessive alcohol consumption”. She did however recommend the Court review materials to clarify this position.
There is no current evidence before the Court that Mr F is regularly using illegal drugs or that it is currently affecting his ability to work and parent [G]. I do note that there is concern about any future substance abuse as raised by Dr Szyndler.
However, with respect to violence, I certainly considered in my earlier judgment that Mr F posed a risk to [K], and stated at [188] to [189]:
Although there is no evidence of physical violence directed toward [K] herself, there is little doubt that over the past two and a half years [since 2008] [K] has been exposed to a number of extremely frightening incidents that have taken place between
Mr F and the respondent. The distressing situation that arose in Broome is one example of this.
I accept the evidence that there have been numerous violent outbursts between the respondent and Mr F that have compromised the child’s safety.
The Respondent denies that there has been any violence apart from the incident in Broome in 2006 where the Respondent sought a restraining order against Mr F and which was the subject of much discussion in my earlier judgment Marsh & Marsh [2008] (supra). Her evidence, both at hearing and in affidavits, is that there have not been incidents of domestic violence since the previous Court Orders. She drew the Court’s attention to the fact there have never been any complaints by the neighbours or any intervention by the Department of Community Services (‘DoCS’).
Both the family report writer and the First Applicant refer to a recent incident. On 27 September 2009 [T] accused Mr F of drinking too much and [K] after witnessing the argument between Mr F and [T] became very distressed. The Respondent took [K] and [T] out of the house and planned to stay in a Motel overnight. The First Applicant’s evidence indicated that [K] was worried Mr F would hurt Ms E Marsh when she became involved in the argument. The Respondent looked for a motel room but could not find one and returned. Both the Respondent and [T] indicated to the family report writer that [K] had ‘overreacted’ and that [T] may have further upset her.
The Applicants’ also rely on two incidents from conversations with their son Mr P:
i.
On 27 April 2008 at a barbecue, the Second Respondent’s son
Mr P told him that after he and Mr F had drinks, Mr F ‘went psycho, not at me, but at Ms E Marsh’. That same week the First Applicant had a conversation with Mr P who got into an argument with Mr F who then threatened to kill Mr P and the Second Applicant. She said that Mr P was terrified and this ‘spoke miles’ as she had never seen in such a state.
ii.An incident where Mr P told the Second Applicant that after [K] split a drink on the floor, Mr F raised his voice and [K] ‘began to tremble and crouch down in the foetal position, trembling’. They were concerned that she had witnessed other events which would lead her to react in such a way.
The Second Applicant indicated that for personal reasons, Mr P did not want to be embroiled in the proceedings and therefore declined to give evidence.
The Respondent was cross-examined on the incident where Mr P and Mr F had drinks. She indicated that Mr P and Mr F had drinks at
Mr P’s residence in [omitted], whilst [K] was with the Applicants and the Respondent was attending a ‘hen’s night’. When she returned at around midnight, she noticed the men had been drinking a bottle of bourbon. She rated Mr F as being intoxicated on a level of 7 (with 0 being sober and 10 being highly intoxicated). She indicated that Mr F did not ‘go psycho’ at her but was yelling at Mr P who had been joking around that [G] was not Mr F’s child. The Respondent told Mr F to ‘calm down and go for a walk’.
I indicated at hearing that any reliance on the Applicants’ evidence on this issue would be a question of weight. I note that the Respondent gave evidence on this issue and accept her evidence in relation to it. I am not of the view the hearsay evidence from Mr P adds anything further.
I am not of the view that I can rely on the evidence regarding [K] trembling in the foetal position. It is untested hearsay with very little detail of the surrounding circumstances to give it more probative value. However, given the evidence I have previously accepted it is certainly not beyond probability that the incident occurred.
The Respondent indicated Mr F rarely drinks, may have one after work, but never around her. She would not mind if he had one or two drinks around [K] but not more. She indicated that he did not drink when around the Respondent as “he knows I’ll leave him”. Mr F in cross-examination said he did not drink ‘grog’.
The Respondent’s Counsel tendered as Exhibit A19 a print out of
Mr F’s Facebook page. Facebook, I am informed, is a social networking website on the Internet. Mr Sweet drew the Court’s attention to the words “Piss up and a BBQ” and “deliberately driving slower when being tailgated” as “products” on the page. Although
Dr Rikard-Bell indicated it did not sound positive, he was not able to make an informed comment. I accept Mr F’s evidence that it was likely these were things sent to him by his ‘Facebook friends’ and which he merely accepted on his webpage. In any event I give no weight to this as evidence of his current drinking or driving habits as it has no probative value.
The First Applicant was of the view that Mr F could not change and referred to the fact he had lied to the Family Report Writer when asked about any criminal charges presently against him. In the family report, at [39] it is stated:
Mr F stated that although he has an extensive criminal history he has no violence offences and has never been charged in relation to any assaults. He denied ever having an AVO out against him. Mr F stated that he has also spent time in prison. However, he stated that he has no outstanding charges or been charged or convicted in relating to any offences for a number of years.
I accept that the above paragraph of the Family Report Writer’s report indicates Mr F had lied to her. Tendered as Exhibit A20 are details of a police entry regarding a charge of assault (actual sexual offence) by
Mr F. The circumstances were outlined as follows: on 18 October 2008 Mr F travelled from Darwin to Sydney by aeroplane whilst intoxicated with alcohol and sexually assaulted the female passenger sitting in the adjoining seat. When the plane landed in Sydney he was arrested, cautioned and transported to [B] Police Station and taken into custody. He did not appear at the first Court date because he was in Darwin working, and at the time of this hearing had continued to evade police. At hearing he said he was trying to obtain enough money to appoint a solicitor and made an undertaking to surrender himself to the police. On 10 March 2010 the Independent Children’s Lawyer notified my Chambers that Mr F had surrendered himself to the police at 8.00am that morning.
The Respondent accepted that if such assaults were a regular occurrence, then it would not be good for [K]. However, she indicated that the assault must been seen in context in that Mr F knew that the Respondent was having an affair with another person. She noted the incident did not relate to [K], and that Mr F never drank around her and [K] (as discussed above).
Dr Rikard-Bell said that this assault charge was not brought to his attention. He stated that it probably indicated a behavioural problem, such as antisocial personality, which was inappropriate and exacerbated by alcohol. It raises concerns about Mr F’s ability to care for [K] but the circumstances need to be looked at as a whole within context and Mr F’s functioning in general. He indicated it would be different if it was repetitive as opposed to once-off and a consequence of alcohol, although in general such an offence is serious. However, Dr Rikard-Bell indicated it was “simplistic” to say the assault was a reaction to the affair because not all distressed people who are intoxicated would commit such acts.
When the assault was brought to the attention of Dr Szyndler in cross-examination, she indicated that for her it raised concerns about substance addiction in circumstances where he reported his substance abuse was under control yet he was drinking heavily. Dr Szyndler also was of the view that Mr F had impulse control issues. She was also of the view it went to the credibility of his own evidence that he was clean and stable.
Dr Rikard-Bell restated the same behavioural issues when Mr Sweet brought to his attention that in July 2008 Mr F wanted to hurt someone he thought was having an affair with the Respondent. Dr Rikard-Bell indicated Mr F had poor impulse control.
I accept Mr F has impulse control issues leading to antisocial behaviours and that this is further exacerbated by alcohol consumption. I accept that because of his anti-social behavioural traits he may behave in an unacceptable way when he is not in control of his impulses.
However, these are only one factor in this matter and there are also some more positive factors regarding Mr F’s relationship with [K] that should be considered.
The evidence indicates that the issue of violence is not one of violence directed at [K] but of violence toward others, especially the Respondent, which [K] may witness. The impact on [K] is nevertheless a matter of very serious concern. The assault charge of 2008 highlights some frailty in the relationship between the Respondent and Mr F and any breakdown in their relationship may affect Mr F’s anger management and impulse control.
The Respondent indicated she was aware that Mr F had been drunk on the plane and that he had been charged with assault but did not know specifically that the charge was of sexual assault. She stated that
Mr F’s behaviour was in response to her having an affair with Mr F’s friend at that time.
The Respondent stated she did not discuss her other romantic/sexual relationships with the expert witnesses and assumed they may have been aware of that issue from the evidence provided during interim hearing.
Dr Rikard-Bell stated he was not aware the Respondent had an affair. He said this was significant as it may impact on the child by causing conflict and disruption in the home. However, he indicated the affair would only affect his recommendations if it significantly affected the family unit.
The Respondent gave evidence that at one stage in 2009 she considered separating as it was a difficult time for her when [T] commenced living with them and yet she did not have her own daughter, [K], living with her. However, the Respondent stated that they never separated and that the sexual assault charge was not a factor in her consideration of separating from Mr F. The Respondent gave evidence that she would describe her relationship with Mr F as now “generally stable’”.
Dr Rikard-Bell at hearing indicated that, but for the sexual assault issues, it appeared to him there was ‘a degree of harmony’ between the Respondent and Mr F and there was some progress in their relationship and that it “does seem as though the two of you have made significant gains and created much more stability than there had been previously”. Even after being notified of the assault in 2008, he noted Mr F was working ‘consistently’ and there were no major incidents since November 2008. However, he cautioned against making any presumption that all of their problems had been solved.
I note that there is a possibility that Mr F will be incarcerated if found guilty of the assault (combined with failing to appear in court). The Respondent indicated that if he were convicted it would not impact on her life except financially. She indicated she may ‘enjoy the break’. Dr Rikard-Bell raised a concern that it may place strain on the relationship but this would depend on the length of time of any incarceration. He said that the chances of a relationship surviving a partner being incarcerated for more than 2 years, “is remote”.
I accept that there are periods of stability in the relationship between the Respondent and Mr F but I am of the view that there is still some volatility. Since 2008, on the evidence, there have been concerns about the instability of their relationship each year. The Respondent had an affair in 2008 and in 2009, (for different reasons) she considered separating from Mr F. I also note that Dr Rikard-Bell found the dynamics in their household “complex and challenging”. I am also concerned about the future impact on their household of any consequence of the assault charge against Mr F, including possibility of his having a lengthy period of incarceration.
Parental responsibility
The Applicants sought sole parental responsibility to ‘avoid conflict’. Although they always consulted with the Respondent Mother, they were concerned she would object to some issues and therefore they would need a way of arbitrating any disputes so as to reach finality.
The Applicants stated they find the Saturday regime too restrictive with respect to holiday and travel plans. They also indicated an extreme annoyance regarding negotiations around time they may spend with [K]. They drew attention to an incident where the parties agreed to swap a Saturday for a Friday in January 2009 in order for the Grandparents to take [K] to a relative’s farm. However, as the Mother was unable to spend time with [K] overnight due to issues with urinalysis testing, she then refused to swap at very short notice.
At hearing it appeared that this was the main issue behind the desire for sole parental responsibility. The Grandparents found the Mother’s actions in January 2009 to be ‘spiteful’ and that their daughter could “hold them ransom”.
All the parties at hearing were equivocally clear that there were no disputes with respect to schooling, religion, health and medial treatments. Both Applicants were aware and respected the need to consult the Respondent. The concern was how they would resolve their disputes.
There was also a concern by me that the Second Applicant did not understand the nature of parental responsibility and that it related to major issues and not day-to-day care of the child.
The Second Applicant also agreed to the question by the Independent children’s Lawyer that having sole parental responsibility would not overcome any problems with the Mother changing her mind at short notice to swap days (because any original Court Orders would prevail in the absence of successful negotiation).
Dr Szyndler, after hearing the assault charge and the Respondent’s affairs, said she would not change her recommendations regarding shared responsibility. Her impression was that the Mother did have [K]’s best interests at heart and there were indications she was able to negotiate with the Applicants and shared similar views with them on major issues.
Dr Rikard-Bell implied shared parental responsibility would be appropriate in his report, but at hearing indicated a greater role for the Grandparents maybe appropriate.
Mr Hearl said that none of the witnesses could identify any issue of shared parental responsibility. When the Mother was stable, she was able to prioritise the children, and able to cooperate. Mr Hearl stated there was in fact a ‘surprising level of unanimity’.
Legal principles
The legal principles which govern this case are set out in Part VII of the Family Law Act1975 (Cth) (‘the Act’). Most importantly, s.60CA provides that the best interest of the child is the paramount consideration.
In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters (‘additional considerations’) set out in s.60CC(3). Also of relevance are ss.60CC(4) and (4A) of the Act which I have considered whilst addressing the matters set out in s.60CC(3).
Section 60CC(5) provides that I may consider the above factors when determining whether to make orders by consent. In doing so, I note that the Applicants are not parents for the purposes of the Act but as they are in a similar position, especially where the parties have consented to the child living with the Applicants, I consider it appropriate to seek guidance from all the provisions referred to above.
Application of the law to the facts
The Primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child's parents
[K] would derive a benefit from a meaningful relationship with both her parents. The updated expert’s report indicated that the Respondent was an “important person in [K]’s life”.
The child’s father has not been actively involved in her life and lives overseas. I note that both parties do assist her in continuing a relationship with him and that the Respondents had organised an overseas holiday to facilitate this. As [K]’s biological father resides overseas this highlights the importance of [K]’s on-going relationship with the Respondent as the only parent actively in her life.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Mr F
As discussed above, Mr F has been violent towards the Respondent and this was witnessed by [K] in 2006. He has been charged with sexual assault in 2008. I find Mr F has impulse control issues that are exacerbated by alcohol consumption. I also find that this impulse control leads to antisocial behaviours. I need to consider here whether Mr F poses an unacceptable risk to [K], and if so, whether there are any orders which may minimise the risk such as restrictions on Mr F spending time with [K].
Although there maybe some issues as to the credibility of Mr F’s evidence that he is ‘clean and stable’ (due to his omission about the outstanding assault charge and the statement that he was in full-time employment when he was only casually employed), there is no credible evidence to indicate otherwise than “clean and stable”. Additionally, Dr Rikard-Bell indicated that Mr F has been capable so far with [G] and [T] and was of the view that his ability to care for children could be extended to [K]. He indicated however the issue was one of unacceptable risk. Dr Szyndler also indicated that it was ‘bizarre’ if
Mr F could parent a 2 year old and was considered not suitable to have a role in the life of an 8 year old child.
I therefore find on the available evidence that although Mr F does have issues, there is a high probability he is not regularly consuming alcohol to excess which aggravates his inability to control his impulses or that he is regularly consuming illicit substances.
As discussed above, I accept however that there are concerns regarding the stability of the Respondent’s relationship with Mr F. This increases the risk of Mr F losing control. I am of the view that there is fluctuation in the stability of the relationship between them and in their household (for example the possibility of Mr F’s incarceration, how long [T] will live with them).
Certain past incidents, such as the incident in Broome of 2006 are extremely serious events. Additionally, the charge of 2008 is very serious. I accept that this was unusual and may have been partly driven in response to his relationship with the Respondent. However, it is a remarkable demonstration of lack of self control – both to drink to intoxication when he has substance abuse issues and then his alleged criminal antisocial behaviour when intoxicated.
The Applicants put forward that on the basis of Mr F’s personality, his criminal history and lack of control, the risk of harm to [K] cannot be eliminated. In particular, he has breached Court orders in the past. Mr F agreed in cross-examination that he did not previously follow orders ‘exactly’ with respect to [K].
I accept that his past behaviour does pose a risk to [K]. However, there is no further evidence of violence between Mr F and the Respondent and the experts’ evidence is that Mr F is able to care for both [G] and [T].
I am of the view that Mr F poses a risk to [K] if he were to spend time with [K] without constraints. However, the risk is low and I am of the view that any risk can be minimised.
Dr Rikard-Bell was of the view that if Mr F were sober and drug free it would not eliminate the risk but said it does “diminish the risk significantly”. He was also of the view that it would be ‘sensible’ for another adult to be present. He agreed that an adult such as the Respondent or even [T] would be acceptable.
I am of the view that the risk can be minimised so that it is not unacceptable. This can be partly dealt with by restrictions with respect to the consumption of alcohol or any other illicit substances.
Dr Szyndler and the Respondent Mother agreed that [K] having a mobile phone so she could telephone the Applicants any time she felt threatened could assist with mitigation also. Additionally to assist in enforcing the restrictions, Mr F should not spend any time with [K] without an adult present. This would generally be the Respondent.
Mother’s Illicit Drug Use
I have discussed the Mother’s drug abuse in the interim judgment. Relevantly here, she started using heroin regularly in 2005. In 2006 she went on a methadone programme. She had been attending the
[W] Clinic since May 2007. The Mother has stated she has withdrawn from methadone use. Although the First Applicant stated to
Dr Szyndler that she has concerns about the Respondent’s progress with rehabilitation there is no evidence of any current misuse of illicit substances that affects her parenting.
In December 2008 she went off methadone in order to comply with Dr Rikard-Bell’s recommendations in his first report. The Family report writer spoke with the Mother’s case manager who indicated that the Clinic did not support the recommendation that she cease methadone. She also stated that they did not have concerns about her misuse of any other substances.
The family report writer expressed a view that the Mother can provide the best parenting when she is stable rather than necessarily off methadone. She noted the Mother was at the time of the interviews still using prescribed medication to cope with withdrawal.
The Mother last year filed an affidavit by Dr B. He was not called as a witness. I received it on the basis that it is untested evidence. I note Dr Rikard-Bell has accepted Dr B’s evidence that parents on methadone are capable of satisfactory parenting.
The Mother proposed to stay off methadone. Although she has only recently ceased using methadone and it is too early to draw firm conclusions, I am of the view that the Mother has achieved much in the past two years with respect to rehabilitation.
The Applicants conceded that besides a traffic infringement in July 2009, there were no further issues regarding the police or DoCS with respect to the Mother since my interim judgment.
I am of the view that due to the uncertainties with the Mother’s rehabilitation and to continue the Mother’s progress that she should continue to attend counselling and receive rehabilitation assistance.
I note her concerns that the [W] clinic expressed disapproval of her ceasing methadone. The Mother has also stated she is happy to attend there but suggested an order the doctors at the clinic not refer her to ‘the program’ [which I infer is the methadone program]. I have made an Order the Independent Children’s Lawyer nominate a suitable clinic in consultation with the Mother and any other experts, although I accept the [W] clinic may be the most suitable in the area and may well be the clinic nominated.
I have also made orders allowing the Applicant Grandparents to request random urine testing of the Respondent Mother, although only on a limited basis merely as a precautionary measure.
The Mother submitted that she had no previous problems with alcohol. I note the consent orders indicated the Mother should not consume alcohol 12 hours prior and during time [K] is in her care. I believe that the Mother should be sober during time [K] is in her care. This is so that the Mother can act as a supervisor during Mr F’s presence and does not encourage Mr F to also consume alcohol.
It is in [K]’s best interests that the Mother (and Mr F) are clean and stable. I am of the view that there is no credible evidence before me that indicates otherwise. I accept the Mother does not pose any unacceptable risk to [K] in respect of her rehabilitation now or if she were to recommence methadone use.
Additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
[K] wishes to live with her mother but also to live near her Grandparents and spend ‘a lot’ of time with them. She does not want to move away from the Central Coast area as she indicated a preference for a particularly high school.
I give limited weight to her wishes keeping in mind her young age
(8 years old) and the complex issues in this case. She clearly has a loving relationship with her mother and her grandparents and is stable and progressing well in their care.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
[K] has a close caring relationship with her mother and a close loving relationship with both her grandparents. This is undisputed by the parties and is supported by all the evidence before me, particularly the expert reports. She has a strong bond with her grandmother and recognises her Mother as a significant person in her life.
With respect to [K]’s relationship with other people in her mother’s household, I refer to page 6 of Dr Rikard-Bell’s updated report where he says:
She commented that [T] [sic] was now living with her mother and Mr F and that she got on well with her. She found [G] to be an annoying little brother although she did love him. Mr F was good.
He was of the opinion that [K] wanted to be close to her brother [G]. The Mother’s evidence is also that [K] and [G] got along very well. The First Applicant is of the view that there is some tension between [K] and [G] (e.g. hitting, writing on her toys). At hearing Dr Rikard-Bell indicated that it appeared there was a genuine fondness between [K] and Mr F and no evidence of manipulation.
The Applicant was concerned that [T] maybe a negative influence on [K], such as being a rebellious teenager, but there is no evidence to support that speculation. Further, many children live with older siblings who may be at a rebellious stage.
[K]’s relationship with Mr F was in dispute at hearing. The Applicant’s sought show [K] had an underlying fear of Mr F.
However, at [60] of the family report it was stated:
At the interview [K] did not express any negative emotions about Mr F and there was no obvious change in her behaviour when she was seen with him and her mother than when she was with her grandparents
However, Dr Szyndler was unable state to what extent [K] had been affected by the Broome incident in 2006 or Mr F’s argument with [T] last year.
Dr Rikard-Bell’s opinion in his updated report was that:
I formed the view that [K] had a close relationship with Mr F and saw him as a positive person in their life. Mr F appears to have stabilised his life a great deal. He’s been working full time and has been drug free. The addition of [T] [sic] to the household has been a dramatic change…The dynamics are likely to be extremely complex and challenging for the family.
At hearing he stated he found a fondness between [K] and Mr F and that it was not manipulated.
I note that Counsel for the Applicants sought to challenge the expert evidence – for example the omission of the assault charge in 2008 and the misrepresentation that Mr F was working full-time when he was employed on a casual basis.
On the basis of the expert evidence I accept that [K] has a good relationship with Mr F but find that this evidence maybe slightly open to question due to the limited evidence before the expert witnesses.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
As the applicants are the grandparents, I have discussed the willingness and ability of the parties to facilitate a relationship between the child and each other below.
Both parties have indicated they facilitate the relationship between the child and her biological father.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Orders provide for the child to live with the Grandparents and spend time with the Mother. This has been occurring since 1997 and the family reports both recommend that [K] live with the Grandparents and spend time with the Mother. The Orders also provide for more time with the Mother as they provide overnight time on Saturdays and Sunday day and this additional time is consistent with the report writers’ evidence.
Dr Rikard-Bell was of the view that it would affect [K] if she did not spend time with Mr F. He was of the view there would be a ‘degree of loss’ for [K] if she did not see Mr F. He was also of the view that [K] would feel a sense of loss if she did not see [T].
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The Mother and Grandparents reside on the Central Coast in New South Wales. There are no practical issues in relation to geographic proximity. I note that these Orders are predicated on the Mother living on the Central Coast. The Orders will need to be varied if she decides to move.
The Mother indicated at hearing that she wanted [K] to continue seeing Mr F especially as she said “he’s my partner”.
Dr Rikard-Bell at hearing indicated it would be a difficult situation if [K] could not see Mr F and there should be a balance struck with appropriate safeguards. It was ‘unrealistic’ if he did not have contact with her especially when Mr F was important to the Respondent and [G]. He indicated that the Mother may feel some stress generally, and animosity towards the Grandparents if Mr F could not be present during time with [K].
Mr Hearl submitted that Mr F’s life was ‘part and parcel’ of the mother’s life and therefore he would need to have some involvement with [K]. Mr Hearl submitted there would be an adverse effect on the Mother and [K]’s relationship and [K] and [G]’s relationship if the Applicants’ proposed orders were implemented.
There is also the economic difficulty if Mr F were to find alternative accommodation each time [K] spends overnight time with her mother.
I accept that if Mr F were not allowed to be present when the Mother spends time with [K] then it would negatively impact the relationship between [K] and her mother and brother. It may also have a negative effect on the relationship between the Mother and the Grandparents and the Mother and Mr F.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Grandparents’ capacity to care for [K] has been demonstrated over the past few years with [K] doing well at school, making friends and enjoying other extra-curricular activities. They have also been on various holidays together and provide a stable home environment. She has a close relationship with them and also with her mother. The Second Applicant indicated that he wanted to retire at 55 but is now 57 and still working. He is unsure when he will retire but suggested when [K] commences high school. Although the Applicants are significantly older than the Mother, no evidence was given as to whether their health or age will affect their capacity to care for [K] in the future.
The Mother has worked as an early childhood worker and plans to return to the workforce this year when [G] goes to Family Day Care. She also indicated she would like to work in the Welfare field.
The Mother and Mr F are currently staying at her brother Mr P’s apartment. At hearing she indicated she agreed she was on a prohibited tenants list but stated it related to property in Darwin and was only on the list due to technical reasons. She explained she had sublet a property in Darwin and the sub-lessees had damaged a pool pump. As her name was on the lease she was placed on the prohibited tenants list. She stated that it was harder for her to rent but prospective landlords were able to contact the authorities in Darwin who could explain the situation. I accept her evidence in this regard and do not find her accommodation affects her ability to parent.
Previously, the mother’s capacity to parent was affected by her drug abuse. The Applicant is of the view that the Mother has not achieved her goal of ceasing the methadone programme.
Dr Rikard-Bell accepted that opioid maintenance programmes provide a better alternative to unstable abstinence. However, he noted that there was an unacceptablely high rate of psychiatric disturbance of children of parents on these programs. He still indicated abstinence, combined with other measures, would strengthen the Mother’s capacity to be a better parent.
Dr Rikard-Bell indicated he had some doubts as to whether the Mother had demonstrated enough stability to care for the child in the longer term. He also expressed concern as to the complex dynamics between the persons in the Mother’s household.
However, he has indicated that:
To their credit Mr F and Ms E Marsh have attempted to stabilise their lives by remaining on the Central Coast. Mr F has been working full-time and Ms E Marsh’s been caring for her son [G] and having regular contact with [K]. They’ve also taken [T] [sic] into their home and have been providing care for her.
The Mother suffers from anxiety and has been diagnosed with a sleep disorder. She indicated to the family report writer she found withdrawal from methadone difficult and is still suffering from some of the effects. She is currently attending Narcotics Anonymous meetings.
Additionally, the Applicants are concerned over whether the Respondent is able to provide a stable environment. I have considered this with respect to prospective violence above.
I have also considered the Respondent’s level of honesty and disclosure here and whether it may affect her parenting. The Respondent indicated that if Mr F was incarcerated she would tell [T] he was working in Darwin. If for more than a year, then she would have to explain something to her. The Respondent has indicated [T]’s mother does not know about the assault charge. Dr Rikard-Bell indicated this was a “potential minefield” because although the children may not need to know the specific details it would be too big a deception if they were not told the truth and the children would find out. I am of the view that there is some concern over the way the Respondent may raise complex issues with [K]. However, overall I am of the view the Respondent is capable of caring for [K] for the amount of the time provided.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no relevant additional matters to consider under this factor which are not considered elsewhere.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Respondent did not report the assault charge against Mr F to the expert witnesses and believed she did not need to tell them as the incident had not been resolved. She agreed that the family report writer’s evidence regarding Mr F never being charged was a lie.
Dr Szyndler said she was not surprised about the details of their past history as people are not completely honest at the interviews.
However, Dr Szyndler was concerned about this omission because it showed a loyalty to Mr F and could raise issues about the Mother’s ability to put [K] first. Although there maybe some concerns, I am not of the view that the Respondent’s lack of disclosure indicated she always prioritised Mr F over [K]. The Respondent at hearing expressed a view she did not think the assault charge had anything to do with [K] or affected [K]. Dr Rikard-Bell was of the view that the Respondent has been shown to act appropriate with respect to [K], as illustrated during the argument between Mr F and [T], and that if she were stable she would prioritise [K].
The Applicants draw attention to the incident in January of this year where the Respondent reneged on a negotiated agreement to swap days on short notice and for ‘spiteful’ reasons. The Respondent did not give evidence as to her reasons. There is not enough evidence before me to make a finding as to why she did not swap days, nor do I need to, as this has occurred only once.
Overall the Respondent has shown a positive attitude to the responsibilities of parenthood. This is particularly highlighted by her conviction to cease using methadone so that she can spend more time with her daughter and the improved relationship she has with the Applicants despite all the difficulties.
(j) any family violence involving the child or a member of the child's family;
I have discussed this factor above.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
There are no family violence orders that currently apply.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I have made final orders in these proceedings. All parties sought for such orders and I am of the view that on the evidence before me it is appropriate to make final orders.
There was discussion as to whether the self-executing orders in Exhibit A18 should be made. The First Applicant indicated that the first
3 suborders of Order 8 would be “hard to police”. She indicated that she would certainly obtain a second opinion and would seek legal advice if there were any concerns. The Second Applicant indicated that they had paid $90,000 from an inheritance in legal fees and would not like to come back to Court.
(m) any other fact or circumstance that the court thinks is relevant.
The Applicants’ relationship with the Respondent
[K] has expressed a view that she would like the parties to get along with each other. The parties have come a long way in their ability to facilitate an on-going relationship with each other and with [K]. They have been able to negotiate times during Christmas, overnight time and many of the final orders with respect to [K]. The expert evidence indicates that the parties are supportive of a relationship between [K] and each other.
Some of the affidavit evidence indicates on-going tension between the parties, such as not passing messages or miscommunications regarding [K]’s schooling, and the incident with the swapping of days in January 2009. The Grandparents are of the view the Respondent has frequently lied to them and is unable to remain drug free.
Even with some on-going tensions I am of the view that these parties have clearly demonstrated a capacity to support the relationship between each of them with [K]. I commend the parties for their ability to reconcile their differences in the best interests of the child.
I have also discussed their ability to negotiate issues with respect to parental responsibility above. I find that except for the incident regarding the swapping of days in January 2010 the parties are able to negotiate the major issues regarding the parenting of [K].
The Applicants’ relationship with Mr F
I note the family report indicates the Second Applicant has little contact with the Respondent. The Grandparents have no relationship with
Mr F. The Mother in her affidavit is concerned that the Grandmother is extremely negative about Mr F.
At hearing, the First Applicant indicated her relationship with Mr F was civil but her opinion of him has not changed. The Second Applicant was not of the view that he was working full-time as he might be present during the day with [K], that he ‘did not look drug-free’ and that it would be hard in the environment that he was in. He suggested a hair sample could satisfy him as to whether Mr F was drug free. He was also of the view that Mr F could not change. He agreed he did not know Mr F other than by reputation.
However, the evidence at hearing was that the Grandparents relationship with Mr F remains civil. I am of the view that the lack of relationship between the Grandparents and [G] and Mr F will not significantly affect the relationship between themselves and [K] or impede on the relationship between [K] and her mother. However it would be in [K]’s best interests for the parties to be able to interact freely and civilly and despite the difficulty put the past behind them. [G] is likely to benefit from greater interaction with his maternal grandparents.
Conclusions
Parental Responsibility
The family report writer recommended equal shared parental responsibility. Dr Szyndler did not change her recommendation after being informed of the 2008 assault charge against Mr F. Dr Rikard-Bell has recommended in his report that “the maternal grandparents need to be largely involved in the decision making process for [K]”. At hearing after the further evidence, he stated his view that “under these circumstances it’s probably better for the child to be under the grandparents’ care and responsibility”.
As provided in the interim decision at [191] the issues of violence and drug abuse can rebut the presumption of equal shared parental responsibility between parents. I am of the view that those past incidents continue to be relevant.
I am of the view that it is important the Grandparents have parental responsibility because the child will live predominantly with them. However, it is also important for the Mother to share parental responsibility. The Grandparents have indicated that they would confer with the Mother on any major issues and have sought sole parental responsibility to avoid conflict by having a final arbitrator.
Counsel for the Applicants indicated that the Mother is not able to deal with long-term issues by reason of her drug addiction, and rehabilitation symptoms such as trouble sleeping and being jittery. I do not accept that these factors inhibit the Mother’s ability to share parental responsibility for [K].
Although there was some concern over the Mother’s ability to prioritise [K], the parties indicated that they have already agreed on many issues and the Mother has demonstrated an ability to prioritise [K].
The Independent Children’s Lawyer indicated that the attribution of sole parental responsibility would not solve the problems around negotiating the swapping of times.
I am of the view that equal shared parental responsibility is appropriate in this case. There are no disputes with respect to any issue as to health, religion or schooling. The parties have demonstrated an ability to cooperate on issues with respect to [K] and as described by the Independent Children’s Lawyer a ‘unanimity’ with respect to the major issues.
Time with Mr F
The Grandparents are understandably wary of Mr F. The Mother and Mr F’s past actions have caused the Grandparents great concern about future risks. They do not believe change is possible.
The Court needs to assess whether there is an unacceptable risk of harm. I have found that Mr F has impulse control issues and there are issues of volatility in the relationship between Mr F and the Respondent which increases the likelihood [K] would be witness to further violence.
However, any concerns must be balanced by the evidence that [K] appears to have a positive relationship with Mr F, the fact that he plays a significant role in her mother and brother’s life and the fact that any curtailing of her time with him may negatively impact on her relationship with her mother and brother. The mother has indicated she is in a committed relationship with Mr F, but I note that these considerations may be relevant even if they were to separate as there would be a continuing connection between [K] and Mr F through her brother [G]. There is also the difficulty any restriction on Mr F’s presence may cause to the Mother and consequently increase anxiety in their relationship. The economic feasibility of orders requiring Mr F to find alternative accommodation when [K] is with the Mother cannot be ignored.
I am of the view that the restrictions I have imposed are appropriate if Mr F is to be present when [K] spends time with the Respondent:
i.There is to be an adult present (including the Respondent);
ii.
Non-consumption of alcohol or use of marijuana by Mr F
24 hours prior and during any time [K] is spending time with her mother;
iii.Non-consumption of any illicit drugs;
iv.[K] is to be provided with a mobile telephone which is to be switched on when she is spending time with her mother. The Grandparents are to ensure there is enough credit on the phone during those periods.
I have provided a twenty-four time period to be substance free, instead of the twelve hours for the Mother, as the Independent Children’s Lawyer indicated that period would be appropriate and the Respondent indicated this would be acceptable to her.
Mr Hearl indicated that one must look at the long-term implications of any Orders for [K] especially given her age. He advised that any orders requiring an adult to be present with Mr F and [K] be in place for some period, such as one or two years. I am of the view that such restriction is appropriate now and for some time in the future, keeping in mind the possibility of Mr F’s incarceration. I am of the view that they are appropriate whilst [K] is in primary school, which is for the next two years, plus a further year, with a total of three years. Although there was no evidence on this issue, I am of the view that by the time she has completed a year in high school she will be of an age where the risks will be slightly decreased as she will be more mature and able to assess any risks to her. Additionally this will give time for the Mother and Mr F’s lives and their relationship to further stabilise. The other restrictions will remain in place for the duration of the Orders as there is no evidence Mr F’s impulse control issues and anti-social personality traits will decrease in the future.
There are concerns over whether the Mother (and indirectly Mr F) will abide by the orders. However, in view of all the evidence and the consideration of risk minimisation, I am of the view that the orders are appropriate to minimise the risk so that it is not unacceptable.
I am of the view the orders strike a balance between the risks of violence and [K] being able to continue a meaningful relationship with her mother and brother, and also contribute to the stability of her mother’s household.
I have also made a notation regarding random urine testing of Mr F, as the Court has no power to make direct orders against him as he is not a party to these proceedings for parenting orders. Mr F is encouraged to comply with this notation to assure that he is ‘clean and stable’. They are only of limited extent so as to provide this assurance rather than a strict monitoring of Mr F. I encourage Mr F to assist in easing some of the Applicants’ doubts and improve relations between the Mother and the Applicants. The Applicants are also the grandparents to [G] and it would be highly recommended that their relationship with the Mother’s household is improved.
Remaining Orders
I am not of the view that self-executing orders in the event of a breach would assist in creating finality between the parties. It would be very difficult to determine what constituted a breach and who would determine such. The First Applicant agreed. It would place an additional responsibility on the First Applicant. In my view it is not appropriate for a Court to hand over enforcement of its orders to a litigant. Additionally, Dr Rikard-Bell indicated that any diminution of time with [K] would substantially diminish the relationship between [K] and her mother to [K]’s detriment.
The family report writer recommended random urinalysis test over the next 12 months. I note that the Terms of Settlement do provide some form of follow-up in relation to testing. I accept that they are appropriate as the evidence indicates the Mother is progressing but that her progress requires some monitoring. I have made a minor change to those Orders in that the Independent Children’s Lawyer is to nominate a suitable clinic as the Mother has expressed some reservations about the [W] Clinic due to their views on ceasing methadone. I do note that the Independent Children’s Lawyer may advise the [W] Clinic is the most appropriate clinic in the area. I am of the view that no sunset clause be placed on those Orders as any monitoring would be appropriate until [K] is 18 years of age. The parties in any event can renegotiate if the Mother’s progress reaches a point where she does not need to attend the clinic.
In light of the Mother being self-represented I have considered whether the terms of settlement between the parties are appropriate: see s.60CC(5) of the Act.
Both family report writers recommend that [K] live with the Grandparents. The family report states that “[K] appears to have been spending time with her mother in a positive way in the last few months and has expressed the desire to spend more time with her. This point is conceded by her grandmother”.
I am of the view that the other orders in the Terms of Settlement not discussed in these reasons are consistent with the general nature of the recommendations by both expert witnesses. I will make them as they are appropriate and appear to be in the best interests of [K]. I should note I had some concern about [K] spending long unbroken periods in the Mother’s household during school holiday periods because of the obvious stresses present in that household. However the arrangement proposed does allow [K] to be part of the Mother’s household and the advice from Dr Rikard-Bell was that half the school holidays was appropriate. I also take into account that [K] will have a mobile telephone and can contact her grandparents if for any reason she is uncomfortable in the Mother’s home.
I have stated clearly the Orders I have made in this case, including Orders by Consent, are predicated on the Mother continuing to live on the New South Wales Central Coast. I am of the opinion, given the volatility in the Mother’s household, the communication difficulty between the parties, and the length of time [K] will spend with the Mother during holiday periods, that it is in her best interests to remain in close proximity to her grandparents.
The Terms of Settlement were negotiated prior to joinder of the Second Applicant and I have updated the orders by consent accordingly to include him.
In all the circumstances, I am of the view that the Orders I have made are just and equitable and in [K]’s best interests.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: TH Nguyen
Date: 26 March 2010
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