Marsh and Marsh
[2008] FMCAfam 149
•15 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSH & MARSH | [2008] FMCAfam 149 |
| FAMILY LAW – Application for parenting orders by maternal grandmother – drug and alcohol use by mother and her partner – family violence – criminal history of respondent and her partner – child has strong attachment to mother – child’s wishes – whether appropriate to make final or interim orders – child’s best interests – child to have relationship with her sibling – graduated time regime if prerequisites are met – appropriateness for child to spend time with mother’s partner – evidence of expert without all the relevant evidence before him. |
| Family Law Act 1975, ss.60B, 66C, 60CA, 60CC, 65C, 13C(3), 13C(1)(B) |
| In the Marriage of Archbold (1984) 9 Fam LR 798 CDJ v VAJ (No.1) (1998) 197 CLR 172 In the Marriage of Rice and Asplund (1979) 6 Fam LR 570 R v R: Children’s Wishes (2000) 25 Fam LR 712 |
| Applicant: | MS H MARSH |
| Respondent: | MS E MARSH |
| File Number: | SYC 2597 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 10 & 11 December 2007, 24 & 25 January 2008 & 19 May 2008 |
| Date of Last Submission: | 19 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sweet |
| Solicitors for the Applicant: | Stajanovic Solicitors |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Graeme J Peters Solicitors |
| Independent Children’s Lawyer: | Mr Hearl |
| Solicitors appearing as the Independent Children’s Lawyer: | Delaney Lawyers |
ORDERS
All previous parenting Orders be discharged and the following Orders be made on an interim basis.
The child [K] born in 2001 live with the applicant grandmother.
The applicant grandmother is to have the sole parental responsibility for the child.
From 22 July 2008, when the child returns from the United Kingdom, the child is to spend time with the respondent mother on a graduated basis as follows:
(a)From 9am to 4pm every Saturday
(b)Any other time the parties agree is appropriate.
From the date of these orders the respondent mother continue to attend the [L] Clinic on one (1) occasion in each one (1) week period for the purposes of undertaking 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. Such tests are to be verified by a certificate to include a temperature endorsement thereon, with a copy of the certificates so obtained to be handed to the applicant grandmother at changeover.
The respondent’s de facto partner, Mr F, is encouraged to do the same as set out above at Order 5 on two (2) occasions in each one (1) calendar month period and the respondent mother is encouraged to provide the maternal grandmother copies of the verified certificate pertaining to such testing at changeover.
The applicant grandmother may if she has reasonable grounds for concern, request through her solicitor that the respondent mother undergo further supervised urine analysis testing as set out above at Order 5, such requests are to be no greater than one (1) test per week and are to be completed by the respondent within 48 hours of notification.
The applicant grandmother shall meet all costs associated with the additional drug test requests.
The applicant grandmother be granted liberty to apply to the Court on two (2) days notice in the event that the respondent mother or Mr F return a positive drug test result.
In the event of a positive drug test result the respondent mother’s time with the child will be reduced to two hours only between 9am and 6pm on Saturday or Sunday as determined by the applicant.
If after three (3) months from the commencement of the respondent mother’s drug testing pursuant to Order 5, the respondent mother provides the applicant grandmother with twelve (12) urine analysis tests showing only the prescribed level of methadone as advised by the [L] Clinic or less the respondent mother’s time with the child will increase as follows:
(a)From midday Saturday to midday Sunday each alternate weekend
(b)From 9am to 6pm Saturday on the alternate weekend and 4pm to 6pm on that following Wednesday
(c)Any other time the parties agree is appropriate.
Other than for the purpose of buying food or drink for personal consumption the mother is not to take the child into any retail outlet.
The respondent mother is further restrained from:
(a)Allowing Mr F to attend at changeover
(b)Consuming alcohol for 12 hours prior to and during any period while the said child is in her care
(c)Smoking marijuana for 12 hours prior to and during any period while the said child is in her care
(d)Using illicit substances, with the exception of methadone.
If Orders 12 or 13 are breached, the respondent mother’s time with the child will be reduced to that specified in Order 10.
Pursuant to section 13C(3) of the Family Law Act 1975 (Cth) the Court encourages by 1 September 2008 that Mr F attend assessment for parenting programs specifically related to anger management at a date and time organised by a dispute resolution co-ordinator at the Federal Magistrates Court.
On the date Mr F completes the assigned parenting course he is encouraged to provide the applicant grandmother with a certificate from the dispute resolution co-ordinator to this effect.
Subject to Order 18 the mother is to ensure that [K] does not spend unsupervised time with Mr F and that contact occurs for no more than two hours in any period where the mother has care of [K] pursuant to these Orders.
Provided Mr F has met the requirements in these Orders, completed the assigned parenting course and the relevant certificate is provided to the applicant grandmother the time the child spends with the respondent mother may include time with Mr F. This time with Mr F is to be introduced on a graduated basis. Such contact will terminate immediately if the child is witness to any incident of violence, criminal activity, drug-taking or alcohol abuse involving Mr F.
If after six (6) months from the commencement of Order 11 the respondent mother successfully provides the applicant grandmother with medical certificates indicating she has withdrawn from methadone and is otherwise drug-free the respondent mother’s time with the child will increase as follows:
(a)From 9am Saturday to before school Monday each alternate weekend
(b)From 9am to 5pm Sunday on the other weekend and from 4pm to 6pm Wednesday of that week.
Pursuant to ss.13C(1)(b) and 13C(3) of the Family Law Act 1975 (Cth) the child’s maternal grandparents, mother and Mr F are encouraged to participate in family dispute resolution to improve the current relationships that exist between the parties.
For the purpose of changeover the applicant grandmother or her husband shall deliver the child to the respondent mother at her home at the commencement of each period and the respondent mother shall return the child to the applicant grandmother at her home at the end of each period.
The applicant grandmother do all things necessary to ensure that the child communicates with her mother by telephone at least once per day after school, and on the weekends where the mother does not have care of the child.
The mother do all things necessary to ensure the child is able to communicate with the applicant grandmother at all reasonable times.
The applicant grandmother is to inform the respondent mother of any decision concerning the long-term care, welfare and development of the said child.
Each party to keep the other informed of all medical, dental and other health-related treatment being undertaken by the child.
If either party intends to take the said 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.
Both parties to give each other not less than 21 days notice in writing of their intention to change address.
Both parties are hereby restrained from:
(a)Speaking or permitting any other person to speak to or about the other party or their family in a negative, offensive or unpleasant fashion in the child’s hearing
(b)Discussing any proceedings between the parties in the presence or hearing of the child or permitting any other person to do so
The matter will be re-listed for mention before me at 10:00am on Tuesday 14 July 2009.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marsh & 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 |
Applicant
And
| MS E MARSH |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings involve competing applications between Ms H Marsh (the applicant) and Ms E Marsh (the respondent) in relation to [K] born in 2001. The applicant is [K]’s maternal grandmother and the respondent is [K]’s mother.
The applicant was represented by her Counsel, Mr Sweet. The respondent was represented by her Counsel, Mr Cook, and Mr Hearl appeared as the Independent Children’s Lawyer.
On 13 April 2007 when the matter came before the Court for hearing, on short notice, Federal Magistrate Sexton made orders providing for [K]’s return to the respondent subject to a number of conditions and listed the matter for further mention on 18 April 2007.
On 18 April 2007 when the matter came before Altobelli FM his Honour adjourned the application to an interim hearing before himself on 19 April 2007 and on 24 April 2007 his Honour made orders providing that [K] live with the applicant. His Honour further ordered that the respondent not bring [K] into contact with the respondent’s partner, Mr F, while in her care, and further, an order that the respondent be restrained from exposing [K] to anyone using illicit drugs or alcohol.
Relevant background
The applicant was born in 1954. She is aged 53 years. The respondent was born in 1977. She is aged 30 years.
The applicant and her husband Mr M were married in August 1974. He was born in 1953 and is aged 55 years. The applicant grandmother is retired and her husband works full time. They have two other adult children born in 1979 and 1983.
The applicant resides at [S] with her husband and [K]. The respondent resides at [T] with her partner, Mr F and their son, [G] born in 2007. Mr F was born in 1971. He is aged 36 years and has two other children from two previous relationships, [T] born in 1993 and [L] born in 2002. He has no contact with [T] but has maintained a relationship with [L]. Since December 2007 he has been in full time employment.
The respondent separated from [K]’s father, Mr E shortly after [K]’s birth. He resides in London and has since married. He has regular telephone contact with [K]. He is not involved in these proceedings.
The evidence
At the hearing the applicant relied upon the following material:
a)Her affidavits sworn 12 April, 29 June and 9 November 2007;
b)The affidavit of Mr M sworn 19 April 2007; and
c)The affidavit of Mr N affirmed 17 July 2007.
The respondent relied upon the following material:
a)Her affidavits sworn 18 April and 21 November 2007;
b)The affidavit of Mr F sworn 21 November 2007;
c)The affidavit of Ms P S sworn 21 November 2007; and
d)The affidavit of Ms C S sworn 21 November 2007.
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 interests of the child are the paramount consideration. Also of importance is s.65C which recognises other significant persons, including a grandparent to apply for a parenting order.
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 set out in s.60CC(3).
Clearly, the primary considerations are of greater importance than the additional considerations in determining the best interests of the child. However, I must consider all the factors before coming to a conclusion as to the best interests of the child. Most relevantly, in this case, I must also ensure that any orders made are consistent with any family violence order and do not expose any person to an unacceptable risk of family violence, to the extent that it is possible to do so consistent with ensuring that the child’s best interests remain the overriding consideration.
The primary considerations are firstly, the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence. These are very important considerations in this case and I give them much weight because they are primary considerations and reflect the objects of the Act as set out in s.60B.
The objects are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Ms H Marsh
The applicant’s case is that [K] is at risk of harm in the respondent mother’s care. Her concerns relate to [K] witnessing the respondent engaging in criminal activity and having been exposed to drug and alcohol use by the respondent and her partner, Mr F. The applicant further states that the history of violence between the respondent and Mr F is such that it is not in [K]’s best interests to live with the respondent mother and seeks final orders that [K] remain living with her and her husband until she is satisfied the respondent and Mr F are fit to parent the child appropriately.
The applicant says that she was very close to the respondent before the respondent started using heroin and seeing Mr F, and that she would love the relationship between them to be restored.
The applicant further maintains that she has a close relationship with her granddaughter. The applicant says that after [K] was born she cared for the child at various times both before and after the respondent and Mr E separated including periods when the respondent was undergoing drug rehabilitation. She says that when [K] was about
six months old she looked after [K] each Friday while the respondent worked. This continued until the second part of 2004 when the respondent and child moved to Darwin. The applicant and her husband visited the respondent and the child in Darwin around July/August 2004. The applicant says the respondent appeared to be fine during this time.
In about October or November 2004 the respondent and [K] returned from Darwin. The respondent moved into a house owned by the applicant and her husband in Property E. The respondent’s brother and his friend were also living at the property at the time. The applicant says she often stayed at the property three days per week and when the respondent attended University she cared for [K] and spent weekends with her at [S]. I am satisfied that a close relationship between [K] and her grandmother was established before these proceedings were brought.
In about April 2005 the applicant says that the respondent told her that she had been using heroin. Being concerned, the applicant stayed at Property E to keep an eye on the respondent. During this time the respondent spent a week at the [X] Drug Rehabilitation Clinic and told the applicant that she wanted to stop using heroin. The applicant says that after the respondent was asked to leave the Clinic for ‘breaking the rules’ she returned to Property E.
In late December 2005 the applicant and the respondent had what the applicant describes as a ‘heated argument’ about the respondent’s drug use. The applicant says that following this argument the respondent left Property E and moved in with Mr F at his unit located in the grounds of the [R] Rehabilitation Hospital.
Not long after leaving Property E and on or about the evening of
23 December 2005the applicant spoke with the respondent over the telephone. The respondent told the applicant that she had a severe headache. The applicant says that she asked the respondent to tell her where she was but the call was terminated because the respondent was irrational. The applicant was concerned for the respondent’s well-being so she telephoned her again. The respondent told her mother that she was staying at the Rehabilitation Hospital in [R]. The applicant and her son and his friend went to collect the respondent and met Mr F at a nearby shop for directions.
The applicant says that when she arrived at Mr F’s unit the respondent was incapable of walking. The applicant and her son assisted the respondent to the car and took her to the hospital where she remained until the following day. The respondent told the doctor that she had injected herself with methadone. [K] was cared for by her maternal grandmother until the respondent left the hospital.
Around December 2005 and a few days after leaving the hospital the applicant, with the respondent and [K], travelled to Darwin. It was during this time the respondent paid a deposit for a property in Darwin and expressed a desire to leave Mr F.
In about mid-February the purchase of the respondent’s property in Darwin was completed. During this time the applicant says that Mr F was frequently calling the respondent. The applicant says that the respondent had told her that she was not seeing Mr F anymore but when the applicant visited the respondent in March 2006 she saw Mr F at the respondent’s unit.
The applicant says that in about May or June 2006 the respondent telephoned her asking her mother to help her leave Darwin to get away from Mr F. The applicant booked airline tickets for the respondent and [K] and when she arrived in Sydney the respondent checked herself into a Drug Rehabilitation Clinic at [W] for a brief period. The applicant says the respondent went missing after checking herself out of the clinic after only one day and was not contactable. The applicant’s attempts to locate the respondent failed. The applicant eventually filed a missing persons report with the [T] Police Station. The applicant later received a call from the respondent telling the applicant that she was with Mr F and that she was trying to withdraw from drugs. About a day later the respondent arrived at the applicant’s home to collect [K] but was arrested by police pursuant to a warrant for a shoplifting offence alleged to have been committed on 22 January 2006 in the presence of [K]. The respondent appeared before the [W] Local Court on 14 June 2006 and was placed on a good behaviour bond for 18 months and thereafter placed under the supervision of the
New South Wales Probation and Parol Service and when the respondent relocated to Darwin with [K] she was placed under the Probation and Parol Service of Northern Territory.
The respondent eventually went back to Darwin and the maternal grandparents travelled with her. During this time the applicant remained in Darwin for six weeks.
The applicant claims she has come into contact with drugs while in the respondent’s house in Darwin and subsequently on the Central Coast. She says she has seen crushed tablets in the respondents unit, track marks on the respondent’s arms and other items such as small beads that looked like ‘ice’ in tin foil on the respondent’s kitchen bench. The applicant says that as recently as June 2007 she noticed track marks on the respondent’s arms that still had scabs on them. She says that she did not believe the respondent had stopped using drugs and that the respondent frequently tells her lies.
In late January 2007 the applicant and her husband again travelled to Darwin and spent some time with [K]. The applicant says that [K] told her that her mother was not using syringes anymore but Mr F continued to use them and that when he gets sick the respondent mixes medicine for him. [K] told the applicant that Mr F was hurting her mother and that she was assisting her mother get away from him by opening the door for her and that when she goes to the shopping centre the respondent and Mr F were stealing things.
The applicant left Darwin in early February 2007. As she was concerned about [K]’s welfare she visited the Northern territory Department of Family and Community Services and provided them a history of the respondent’s drug and criminal history.
In about early March 2007 the applicant telephoned the respondent in the morning and says that the respondent was yawning and had not taken [K] to school. The applicant says that during the Easter school holiday period [K] told her that there are times where the respondent leaves [K] at home unsupervised often for long periods.
Arrangements were made that during the 2007 Easter school holiday period [K] would spend time with the maternal grandparents in New South Wales. The child arrived on 29 March 2007 and was to return to her mother in Darwin on 12 April 2007. The applicants case contained in her affidavit filed 13 April 2007 explains at paragraph 71-76 her concerns which led her to initiate these proceedings. Further concerns were also highlighted in her affidavit filed in Court 19 April 2007 at paragraph 6-7.
The respondent and Mr F travelled to Sydney soon after to recover the child. The applicant says she received an SMS message from the respondent that read: “You are one sad, sick, obsessed person and u need serious help. All this will do is waste $1500 of mine and ensure that when u lose this stupid case you’ll lose K forever because I swear on my life I will completely disown you and have nothing at all to do with u again. Nor will K”.
By travelling to Sydney to recover her daughter, the respondent breached her good behaviour bond as she had not obtained permission from the Northern Territory Probation and Parole Officer to leave the Territory. The respondent was due to provide a drug test at [D] Hospital the following day. A new bond was issued on 20 April 2007 by the [W] Local Court. A case note report from the NSW Department of Corrective Services outlining this breach was tendered into evidence and marked exhibit (A6).
Following the orders of Altobelli FM on 24 April 2007 the applicant says she had serious doubts as to whether the respondent would comply with orders relating to drug and alcohol consumption and also the child coming into contact with Mr F.
In light of the applicant’s concerns, she engaged the services of a private investigator, Mr N of [N] Investigations. An affidavit of Mr N, sworn on 17 July 2007, was filed on 9 November 2007 and annexed to the affidavit were reports prepared by Mr N following surveillance carried out on the respondent and Mr F. The role of the private investigator was to ensure the respondent complied with Court orders. Surveillance was carried out by Mr N on the respondent and Mr F on or about 25 May 2007 and again on 9 June 2007. Video tapes of the surveillance carried out by Mr N were viewed in Court and tendered into evidence and marked exhibit (A7) and (A13). The surveillance shows Mr F travelling with [K] on both dates, in direct contravention of Court orders.
On 10 July 2007 the matter came back before the Court. The applicant sought orders that a previous order allowing the mother to spend time with the child be suspended until such time as a supervisor was appointed. Accordingly, Altobelli FM suspended orders 6(i) and 6(ii) of his orders dated 24 April 2007 and ordered that the child be returned to the grandmother no later than 6pm that evening. The applicant says the child was returned to her at 6:30pm that evening.
The applicant has enrolled the child at [S] School. The applicant and her husband pay for the child’s school fees. The applicant has also enrolled the child in tap dancing classes and swimming lessons. The applicant says the child has made a number of friends at school and during her extra-curricular activities.
The applicant says the child has telephone contact with the respondent each evening. The telephone contact usually takes place around 8pm. The applicant says that on at least three occasions during these telephone conversations she has heard the child say to the respondent ‘wake up mum’.
The child has also had the benefit of travelling with her grandparents. On 22 September 2007, [K] and her grandparents went to Hawaii on holiday. The child is currently abroad in the United Kingdom with the applicant since 18 June 2008 and is due to return on 22 July 2008. The child will spend this time with her biological father during this period.
I do not doubt that the child and her grandmother have a close relationship. The applicant grandmother has demonstrated considerable concern and a high degree of devotion to [K]. The same can also be said for the child’s grandfather, Mr M. I accept the evidence that [K] has settled in her new home and that she receives close care and attention from the applicant and her husband.
Mr M
Mr M is [K]’s maternal grandfather. He says that his relationship with his wife is close and that they get along very well together.
Mr M clearly has deep concerns about Mr F’s involvement in his daughter’s and granddaughter’s lives. He says that he has never spoken to Mr F directly and that what he knows about Mr F has largely been learnt from other people and from reading parts of the respondent’s diary.
In February 2006, Mr M travelled to Darwin to spend time with the respondent in Darwin. He says that he saw a ‘sharps container’ with syringes and a tied balloon in the respondent’s bedroom. When Mr M returned to the respondent’s home he noticed that the container and balloon were missing. After asking the respondent about it she told him that she had received it as a house warming gift and that she injected herself with it stating that she would never waste a hit.
In July 2006 Mr M visited the respondent where he noticed a spoon in the clothes dryer with a white ‘paste like’ substance on it. The applicant’s husband concedes that his frequent visits to Darwin were to visit his daughter who he was wholeheartedly concerned for.
In September that same year the applicant’s husband went back to Darwin. In that time he recalls a male, aged approximately 30 years preparing for a hit in the respondent’s kitchen.
Mr M states he now refuses to have his daughter in his house. He says that she has failed to honour a number of promises about her drug problem and her relationship with Mr F. Despite this he clearly understands the importance of [K]’s relationship with her mother and does not want to jeopardise this in any way.
Ms E Marsh
The respondent’s case is essentially that her long history of drug use, criminal activity and violence in her relationship with Mr F is now behind her. She has worked hard in reducing her methadone intake and her relationship with Mr F appears to have strengthened considerably since the birth of their child, [G]. There appears to be no evidence of violence between them since [G] was born.
The respondent’s relationship with her family appears to have been significantly damaged as a result of her drug dependency and her relationship with Mr F. She says that the current proceedings started as a result of the applicant realising that [K]’s relationship with Mr F was improving. She says that as long as she is in a relationship with Mr F the applicant will not be satisfied that [K] should be returned to her care. The respondent further states that the applicant gives her no credit as a person, a mother or as a daughter
The respondent says that her relationship with the applicant is getting worse and that although she tries to be nice for [K]’s benefit she feels extremely hurt by the applicant’s actions both before and during these proceedings.
The respondent says her relationship with her father is almost non-existent and that he ignores her when she is in his presence. She says that her father reacts the same way to her second child, [G], because Mr F is the child’s father. The respondent does not see her relationship with her father improving any time soon.
The fact that Mr F and the respondent are now in a de facto relationship and plan on getting married clearly exacerbates tensions between the parties. The respondent believes that [K] is sensing this tension and wants the dispute to be resolved. [K] often pushes for the respondent and the applicant to speak on the phone to organise the respondent’s time with the child.
The respondent says there has been little interaction between the grandparents and their grandson. The respondent also says that she is not really comfortable with them having much to do with her son after what has happened with [K].
The respondent claims that she has a really good relationship with her younger brother and that he has put in an effort to maintain a relationship with the respondent despite all that has happened. The respondent says her relationship with her sister is ‘so so’.
The respondent says she met [K]’s father, Mr E, after she moved to London in 1999. The couple returned to Australia in February 2001. The respondent says she had no involvement with drugs while she was overseas.
[K] was born in 2001. The respondent’s relationship with the child’s father broke down soon after. Mr E left Australia on 6 April 2003 after giving the respondent an ultimatum ‘marry me or I will leave’. The respondent states that her mother and father have always sought to have control over her and her relationships. The respondent says that the applicant told her that [K]’s father was not good enough for her and that she should not marry him.
The child appears to still feel closely connected with her biological father despite living on opposite sides of the world. The respondent says that while the child was in her care they would speak every two to three weeks on the telephone and exchange gifts and presents at Christmas and birthdays.
The respondent acknowledged the fact [K]’s father has not travelled to Australia to see the child. She says that he only gets four weeks holiday a year and takes them with his wife to see his extended family in South Africa. Although there was issues regarding the grandparents taking the child to Hawaii in 2007 when it was anticipated that the child would see her biological father in South Africa, the child is current abroad with the applicant grandmother in the United Kingdom visiting her biological father and is due to return on 22 July 2008.
The respondent’s second child [G] was born in 2007. The respondent’s de facto partner Mr F is the father. [G] was born drug dependant on methadone.
Before the respondent’s second child was born the mother indicated that the grandparents flew to Darwin and offered to pay for her to have an abortion. The respondent says she felt pressured under the weight of her parents’ unwillingness to accept Mr F in her life. She says that because of this she represented to her parents that her relationship with Mr F was over.
The respondent says that [K] is very excited about having a baby brother. She has written numerous letters to her family since being in the care of the applicant to express how much she loves and misses them all. Her relationship with her mother is especially close and there is no denying the love and devotion they share.
Drugs
The respondent concedes that she was using heroin when she was nineteen although these were isolated instances. At the age of 25 the respondent was prescribed Zoloft to cope with depression and spent a short period in cognitive behavioural therapy to assist her cope with anxiety.
The respondent says her addiction to heroin started in 2005 following the break down of her relation from her boyfriend at the time, Mr B. The respondent found the separation difficult and started using heroin on a regular basis following their separation.
Within the same year, on or about September 2005, the respondent met Mr F and they commenced living together in Darwin in about January 2006. They have been together for the most part of two and a half years.
The respondent says that she was not addicted to heroin when she arrived in Darwin at the beginning of 2006. She says that the drug was inaccessible and instead was addicted to methadone.
During the earlier part of 2006 the respondent was seeing Dr O who prescribed the respondent medication to deal with her drug dependency. The respondent would tell lies to the doctor to be prescribed Kapanol, a morphine sulphate during this time. She was also prescribed Stilnox.
On 15 March 2006 the respondent went to the Emergency Department at the [D] Hospital. She had headaches, fevers, and had also been vomiting. The respondent does not clearly recall visiting the hospital. She was trying to withdraw from drugs and says that she does not disagree that she was there, but just cannot remember it. The document from the [C] Medical Centre/[D] Hospital was tendered into evidence and marked exhibit (A4).
Around this time the respondent was prescribed medication to deal with the withdrawal symptoms of drug addiction. It was revealed in cross-examination that she had told another doctor, Dr G, she had been in a car accident and was prescribed MS Contin, another morphine sulphate. She says that it is common knowledge in Darwin that doctors prescribe MS Contin and Morphine very easily. Throughout the later months of 2006 both the respondent and Mr F went to the same doctor and told lies to be prescribed medication. The respondent and Mr F were also prescribed Tramal and Diazepam and Seropax. Medical records from the [F] Medical Centre were tendered into evidence and marked exhibit (A3).
There was evidence before the Court that the respondent was seeing a man by the name of [R] in August 2006. The respondent and Mr F were separated during this time. [R] had moved from [M] to Darwin to sell drugs and the respondent says because no one was selling in Darwin at the time, [R] saw it as an opportunity.
Despite the respondent claiming she had not used heroin in Darwin, she did concede in cross-examination that she had used the drug whilst [R] was living with her. The child was also living in Darwin with the respondent at this time. The respondent’s diary was tendered into evidence and marked exhibit (A9) and states, “As for my life in general…I feel quite happy at the moment. That probably relates a lot to [R] and the free gear I’m now getting...I just hope he doesn’t ever get paranoid that I’m using him at all”. More particularly, the diary goes on to state that: “[K] gets fairly jealous. I think it is because he’s been staying over a fair bit”.
It was also put to the respondent in cross-examination that a man by the name of [H] was staying over with the respondent around August 2006. The issue in this regard concerns a later instalment in the diary where the respondent recalls [H] ‘hanging out’. In cross-examination the respondent verified ‘hanging out’ to mean not having had any drugs or not having access to drugs. She said the symptoms of not using drugs involved sweating, shaking and becoming short tempered. Although she denied [H] being in the house while [K] was there, the respondent clearly put the child at risk of coming into contact with drug use.
The respondent was also asked in cross-examination about an incident involving Mr F during the break in their relationship. The respondent recalled Mr F’s admission into hospital on 16 May 2006 following an acute psychiatric episode. Material produced by the [D] Hospital and marked exhibit (A14) reads: “Police states he had a syringe full of bleach and Domestos. Not injected. States will kill himself as soon as he can’. It goes on ‘Recently moved up to Darwin from New South Wales…Girlfriend doing a lot of opioids [sic] IV… Relationship has deteriorated recently due to drugs…Argument this morning.” The respondent says she was using 100 milligrams of MS Contin and Kapanol per day exactly during this time.
Around 11 August 2006 the respondent notes in her diary that she “wouldn’t be much use anyway as he has put me on strong medication for anxiety so I’m like a walking zombie at the moment”.
Around October 2006 the respondent says she entered into an opiate maintenance program for five days arranged by the [D] Hospital. The respondent says she was put on the methadone program in November 2006. Since May 2007 the respondent has been on a similar program at the [L] Clinic at the [W] Hospital in Sydney. Pathology reports from the clinic were tendered into evidence and marked exhibit (A12).
The respondent’s dose of methadone has decreased to 25 milligrams a day. The respondent says that her doctor is responsible for the amount of methadone she is taking each week and that at this stage she drops by 2.5 milligrams a week.
She said in evidence that she reduced her dose dramatically in Darwin over a three week period in early 2008 after the [L] clinic refused to endorse a rapid detox program. The respondent says that while she was in Darwin she reduced from 70 milligrams down to 45 milligrams over this period.
The respondent commenced a drug urine testing regime at the [L] Clinic on the Central Coast on or about 10 May 2007 on recommendations by the Department of Corrective Services. The respondent attends the clinic and is administered her prescribed dose of methadone and Mr F is administered Siboxin. The Department directed that urine testing be carried out twice weekly so as to maintain up to date information on the types and levels of drugs the respondent was using. At the same time as receiving her dose of methadone the Clinic would carry out random urine testing on the respondent.
The respondent claims that through no fault of her own the urine testing was never carried out twice a week. The respondent says this only occurred about once a week. I do no doubt that because of the protocols regarding random testing that the urine testing was not on average carried out more than once a week.
On 24 August 2007 the respondent tested positive to opiates. The only reasonable explanation provided to the Court in cross-examination was that the respondent had thrown up after her birthday and was provided with Oxicontin from somebody she knew at the clinic.
On 12 September 2007, the New South Wales Department of Corrective Services reported that the respondent indicated to a member of their staff that she had tasted the morphine which was prescribed to her child, [G]. The respondent says that [G] had vomited his prescribed dose three months after being prescribed the drug and that the respondent had tasted it to see if there was anything wrong.
The respondent also tested positive to cannabis in October 2007.
Criminal Activity
The respondent has a long history of criminal activity dating back to 1996 for malicious damage. Since then she has primarily been charged for shoplifting offences.
Her most recent episode of shoplifting was on 4 July 2007 in which she breached her good behaviour bond dated 20 April 2007. The good behaviour bond was tendered into evidence and marked exhibit (A5). [K] was in the respondent’s care during this offence. The respondent was apprehended by a security officer before two uniformed police arrived. The respondent pleaded guilty to the offence but was not taken into custody.
The respondent claims the incident occurred because she was stressed after finding out the applicant had instructed a private investigator to carry out video surveillance on herself and Mr F. Knowing that the video surveillance captured the respondent contravening Court orders led her to believe there was a strong possibility that [K] would be placed in the applicant’s long term-care. I can understand the stress the mother must have felt after realising this information. However, despite the shock she might have felt regarding the applicant’s actions, this incident goes to show the vulnerability of the respondent’s state of mind.
In cross-examination the respondent says she understood that breaking her good behaviour bond could lead to a custodial sentence. On
24 September 2007the respondent signed a periodic detention undertaking in relation to this breach and was sentenced at [W] Local Court on 8 February 2008 to community service.
The respondent says that she no longer has a problem with shoplifting as Mr F does the shopping for her. She still goes to the shopping centre three times a week to pick up her methadone.
The Relationship with Mr F
The respondent and Mr F’s relationship is significant to these proceedings. The applicant grandmother considers Mr F’s involvement in her daughter’s and granddaughter’s lives as entirely destructive.
The respondent’s relationship with Mr F has dissolved numerous times since they started seeing each other in September 2005.
There have been numerous allegations of violence in the relationship. Most of these allegations of violence were made by the respondent as evidenced in her diary which was tendered and marked exhibit (A9). Additional entries were also made and tendered under exhibit (A11). The entries relate to incidents during the large part of 2006. The respondent says that the contents of the diary was at times exaggerated and written for the simple purpose of making her parents and Mr F aware of her thoughts. She would write the entries with the knowledge that they would see them.
Although it was noted by Counsel for the respondent that the most recent entry was well over a year ago, some weight must be given to these diary entries in determining the dynamics of the relationship between Mr F and the respondent and the impact it has had on the child.
There was an allegation that Mr F had punched the respondent in the face during 2006. Her diary entry of 23 October 2006 states: “I got mad at him for taking my car without asking. He, in turn has called me a morphine junkie (actually he shouted it out to me on the front veranda [sic] in front of many) and when I slapped his face in anger he has [sic] then said it several more times to taunt me then punched me in the face.” The respondent said in cross-examination that this was an exaggeration and that Mr F had simply retaliated by slapping her in the face after she had slapped him. The inconsistencies in her evidence pose particular problems, but at the heart of this issue is the fact that [K] was living with the respondent at the time and was privy to this altercation and to similar altercations.
The couple again separated following an altercation that occurred while on holiday in Broome during the later part of 2006. The respondent’s diary contains the following: “If you are at all sorry for what you put [K] & I through on what was meant to be our dream vacation, you will just stay right away from me.” It is hard to decipher exactly what events transpired in Broome given the respondent concedes that both Mr F and herself were under the influence of Xanax throughout this time and cannot remember exactly what occurred. Her diary reads: “I got pretty fucked up on the drugs and as I was so xanexed…[sic]” The respondent does not deny that the altercation occurred, but simply states that she cannot remember. More importantly, I am satisfied that [K] was present at the incident and the fact the respondent and Mr F cannot remember is evidence of their inability to care for [K] around this time.
The details of the altercation are contained in the respondent’s diary. The respondent writes: “He did this by beating me up and trying to choke me. I begged him to calm down…The next day…he has [sic] grabbed my credit card trying to stop K & I from being able to stay at [C] Resort…He didn’t care that he was absolutely devestating [sic] [K]”. The respondent reported the matter to police and an Apprehended Violence Order (AVO) was issued against Mr F so that he was not able to communicate by whatever means with the respondent, enter or remain upon the [C] Club or approach within 50 metres of the respondent. The Police Order was tendered into evidence and marked exhibit (A10).
The respondent knew at the time she was in Broome with Mr F that she was pregnant with their child. The respondent claims she intended telling Mr F that she was pregnant while they were there. She says in cross-examination that she would have probably not resumed the relationship with Mr F had she not fallen pregnant.
The respondent’s diary also contained a quote to the following effect: “[W]henever I close my eyes and think of you, I see that look of rage in your face that you get when your [sic] losing control and I remember your hands choking me and hitting me with [K] screaming hysterically in the background”. The respondent in cross-examination said that she broke up with Mr F following the incident in Broome and further that the couple probably would not have resumed their relationship had she not fallen pregnant with [G], which highlights the severity of this incident. Following on from the above diary entry, the respondent wrote: “The last time you hit me you swore to me on your kids [sic] life you’d never lay a hand on me again. You have & did it for very little reason at all. I don’t want [K] to grow up & think this behaviour is forgivable…” .
The fact these diary entries appear to have been written soon after the incident lends credence to their accuracy. The fact it was fresh in the respondent’s memory at the time of writing in her diary leads me to believe that an incident of a violent nature took place that night even if it is somewhat exaggerated in the diary.
The respondent concedes that there was a great deal of turmoil in her life at the end of 2006. Instead of terminating the pregnancy, which was in her contemplation at the time, she flew to Sydney to inform
Mr F that she was pregnant with their child. It was at this stage the respondent decided not to terminate her pregnancy and returned to Darwin with Mr F to start their lives afresh.
In response to a diary entry stating, “He is a controlling, self-centred cunt who has done far too many cruel things to me to possibly be forgiven…” the respondent insists that if she had not fallen pregnant with her second child her relationship with Mr F would be over. The prospect of having a child together has been instrumental in the rebuilding of the respondent and Mr F’s relationship. The respondent says that they have not fought since they found out the news of her pregnancy and have worked hard at stabilising their relationship since.
The respondent says that no further altercations have taken place between Mr F and herself since then and that they have learnt to walk away from each other in the event that an altercation arises. The respondent stated in cross-examination that since Broome Mr F and herself have gotten along fantastically.
At the beginning of the four day hearing the respondent initially stated that she wished to return to Darwin following these proceedings. The respondent felt the support up there was better and says that Mr F, the children and herself were comfortable. They had a normal, everyday life.
The respondent says that she would move to the Central Coast if it meant seeing her daughter, and showed real commitment in this regard. She says that she has always been committed to cultivating [K]’s extra-curricular activities and schooling. Later when the possibility of the [K] spending more time with the applicant became more realisable, the respondent and Mr F returned to Sydney to be close to the child. They have since established a life here for themselves and appear content in their current living arrangements.
In order to support [K] the mother relies on child support from [K]’s father and now also has the assistance of Mr F’s full-time employment. She says that Mr F has agreed to financially assist her and assist in helping to bring up the child.
The respondent and Mr F currently reside in [T], on the Central Coast. The applicant expressed concern in relation to the respondent’s current living arrangements claiming that the shared housing arrangement was not a safe environment for [K]. The respondent states that Mr F and herself moved into shared accommodation when they first arrived in Sydney for financial reasons but that has since changed.
Mr F’s relationship with [K], according to the respondent was strained when they were in Sydney. The respondent says that now she loves him to bits and that [K] enjoys Mr F’s company because he is the one that chases her around the house and lets her play. The respondent says they have a lot of fun together. A proper assessment of this relationship was not formed however, as Mr F was not present at the follow up appointment arranged by Dr Rikard-Bell on 30 October 2007.
I found the respondent not an entirely reliable witness. At times her answers were evasive or at the least not wholly truthful; for example her evidence as to the reason for visiting Darwin in January this year.
Mr F
Mr F is the respondent’s de facto partner and currently resides with the respondent at [T] on the Central Coast, New South Wales.
Mr F left school in year 11 to work on a family friend’s farm.
He stayed working there for a year before beginning work for a larger company. When he was 20 years of age, Mr F broke his humerus bone and was not able to work for 18 months. It was during this time that he met his first partner, Ms R. Ms R fell pregnant not long into their relationship and Mr F subsequently moved into her home. Their child [T] was born in 1993. They separated 12 months later.
In about 2001 Mr F commenced a relationship with Ms C. In 2002 his daughter [L] was born. Mr F’s relationship with Ms C lasted just over two years. [L] now lives in Tasmania with her mother and was at the time of the hearing aged five. Mr F remains in contact with his daughter usually every week/fortnight. Mr F is still in contact with her. Mr F also pays child support for [L].
After his separation from Ms C, Mr F completed a separation course, the certificate of which is attached to his affidavit filed 23 November 2007.
Oral evidence provided by Mr F referred to an association with drugs starting in 1990. He was convicted for possession amongst other things as early as 1994. He states that he was using heroin on a frequent basis in between 1995 and 2006, though there had been a lot of clean time in amongst those years.
In his affidavit filed 23 November 2007 Mr F claims he began using drugs, due to curiosity and peer pressure. He stated that his relationship with Ms W, a previous girlfriend, was the catalyst in this decline. Six months into their relationship Mr F realised that Ms W was a heroin addict and so were her parents.
Mr F claims he last used heroin in December 2006 following a falling out with the respondent in Broome.
Mr F has attempted rehabilitation a number of times. His first attempt at detoxification rehabilitation was around 2002 at a place in Orange, New South Wales called [Z]. He was in rehabilitation for a total of
10 days although he entered the program hoping to last the four week period.
Following this, Mr F attempted detoxification again in 2003 at a place in Canberra. The help Mr F received whilst in detoxification extended to an anger management program. He states that he stayed in the hospital for seven months and came out of there drug free. He then moved to Tasmania to be with Ms C who had moved back to Tasmania with her parents. He says in his affidavit that he stayed clean from drugs until his mother’s accident where she fell off a horse and sustained a brain stem injury, in 2005. She was admitted and remained in intensive care at [B] Hospital until about March/April 2005.
Mr F entered into a rapid detoxification program in Darwin in March 2006 for about seven days. The respondent once again found himself on drugs following this.
While in Darwin Mr. F would consult various doctors telling them untruths so that they would prescribe morphine sulphate; this behaviour was described by Mr Sweet, Counsel for the applicant, as ‘doctor shopping’. In cross-examination, Mr F gave evidence that he approached Dr O in order to obtain the morphine based drug, Kapanol and would tell the doctor he had problems with his arm as means of securing the prescription (as a result of his accident as a teenager Mr. F was left with one arm shorter than the other). He would also tell Dr O other untruths relating to his health to satisfy his addiction to Kapanol. It appears to have been a common activity in Darwin.
Mr F is currently taking Suboxone on prescription. It is similar to methadone but in a tablet form.
Since arriving in Sydney Mr F has been attending the [L] Clinic on the Central Coast and remains on the Suboxone program. Mr F started at the [L] Clinic around June 2007. On 5 June 2007 Mr F told the [L] clinic that he used opiates one month ago.
Mr F states the reason for this admission was that he needed to transfer from his existing clinic in Sydney because of convenience. His partner, the respondent, had already been approved due to the fact she was pregnant at the time. In order for his own transfer to be approved Mr F needed to provide a serious or pressing reason in order to be transferred to the [L] Clinic on the Central Coast. He understood that there were no positions available so he told a lie to make his situation sound worse.
I take this to be a valid reason and without any other evidence to suggest that Mr F was using drugs one month prior to his meeting with the [L] Clinic, I accept Mr F’s evidence in this regard.
Mr F has tested positive to Hepatitis C. He believes he contracted the virus through a tattoo or his long history of drug use. Mr F was first diagnosed with Hepatitis C in 2000 or 2001. Mr F stated in cross-examination that he does not want to be treated for the virus as he knows it is an arduous 12 month process that requires regular counselling and also places limits on his ability to work. He also stated that he wants his life to be stable to carry out the treatment effectively.
Mr F demonstrated that he understands the ways in which Hepatitis C is contracted. He further stated that the child knows not to touch his toothbrush, razor or anything up high. He is currently seeing his case worker at the [W] Hospital in regard to Hepatitis C.
In April 2006, at the height of Mr F’s addiction to heroin he smashed a window at the respondent’s house in Darwin claiming he was knocking on the window to wake the respondent. He was drunk at the time.
Mr F was aware he had Hepatitis C when he smashed the window and also knew that the child was inside the house with the respondent. It was conceded that there was blood on Mr F’s arms during this incident.
On 15 May 2006 Mr F was involuntarily admitted into the [D] Hospital after what appeared to be a mental breakdown. It was stated that he had taken 90mg of Zolpiden and Tartrate. He also had in his possession a syringe full of bleach that had not been injected. He stated that he would kill himself as soon as he could. This appears to be an isolated instance in which Mr F tried to commit suicide. The hospital certificate reads ‘girlfriend doing a lot of opioids I V’, meaning intravenous. Mr F reported to the hospital at the time that his relationship with the respondent had deteriorated due to drugs.
Mr F claims he had little recall of what transpired that night. He recalls the police being called after a fight broke out between the respondent and Mr F in respect of the amount of pills (including Rhohepnol and Valium) the respondent was consuming. He stated that after the respondent left the house he found the pills and consumed the bottle. The respondent returned to find Mr F passed out on the floor.
Mr F understandably has very little recollection of what transpired whilst at the hospital. He states he told the respondent at the hospital he was about to inject himself with a syringe full of bleach. He states he made this up and that it was not bleach nor was it a suicide attempt.
In relation to the incident at Broome, Mr F recalls himself and the respondent having the biggest argument they have had. The police were contacted by the respondent following this incident although
Mr F recalled some altercation between himself and the respondent in which he claims his shirt was ripped and the child was screaming in the background. Mr F returned to Sydney after the altercation. He later claims that the respondent arrived in Sydney not long after to tell him that she was pregnant with [G] and asked him to return to Darwin to be with her.
There is no doubting that the respondent and Mr F fought quite regularly during that stage of their relationship. There are a number of instalments in the respondent’s diary that allude to a very unsteady and dysfunctional relationship. Although Mr F denies the recorded entries in the respondent’s diary, he does concede that the respondent has told him he pulled her by the hair and grabbed her around the throat and that he does believe the respondent though he does not recall the violence himself.
Mr F claims the main reason for the arguments between himself and the respondent were drugs. He also referred to his jealousy and the respondent’s flirtation with other men. Mr F further states that he has never been a violent or angry person and that he gets frustrated more than angry. He believes drugs are predominantly to blame for this.
The incidents that have transpired in front of [K] are relevant in determining whether Mr F should spend time with the respondent’s child. The fact that these claims of violence are based on events in 2006 and that there is evidence of rehabilitation and change in behaviour since then is important in assessing the weight to be given to these incidents.
In her interview with Dr Rikard-Bell the respondent stated that both the respondent and Mr F had been off drugs for 12 months. Mr F confirmed this in cross-examination stating that he had been off heroin for 12 months. He also stated that he had been off morphine for about 10 months.
He further noted that he had used marijuana every day before he moved to Sydney in May 2007. There was evidence to suggest that
Mr F was still using marijuana before his appointment with the [L] health clinic in June 2007. Mr F believes the last time he used drugs intravenously was in February/March 2007.
The reason Mr F gave as to why he has turned his drug dependency around is that he is at an age where he does not want to be involved anymore. He referred to his new family and his mother. Mr F gave evidence of three friends from rehabilitation who have now passed away as a result of drugs. Mr F believes he will be a recovering addict for the rest of his life but he has no desire to pick up again.
Mr F states that he has been to gaol four or five times. He has served a sentence for more than a month at [omitted] Remand Centres. The majority of offences have been for breaking and entering, shoplifting and drug-related crimes. There is also evidence of an offence relating to a knife that was found in Mr F’s possession.
Mr F’s last arrest was in March 2005. He is not currently on any probation or subject to any parole conditions.
Interim orders were made by Altobelli FM on 24 April 2007 that the respondent was not to bring [K] into contact with Mr F. The Independent Children’s Lawyer, Mr Hearl informed Mr F of this order. It is unclear whether Mr Hearl instructed the respondent or Mr F of any other orders made on that day.
The arrangement was that when Mr F moved to Sydney he would spend Mondays and Thursdays with the respondent. The weekend was the respondent’s time to spend with the child. There was evidence before the Court that as recently as 20 January 2008 the respondent allowed Mr F to come in contact with the child. This could have been easily prevented.
The fact the respondent and Mr F were again in direct contravention of Altobelli FM’s orders of 24 April 2007 is noteworthy. The ongoing disregard the respondent and Mr F have shown toward the orders of Altobelli FM is unacceptable, although I note that the situation does seem to have stabilised since orders made in January this year.
Mr F claimed that he had taken [G] to the hospital the night before his second consultation with Dr Rikard-Bell and had fallen sick while sitting in the waiting room. He claimed he had spent the night throwing up. There was no medical certificate to excuse him from this consultation nor did he arrange an alternative time to see Dr Rikard-Bell.
There is no compelling evidence before the Court, independently assessed, indicating what Mr F’s relationship with [K] is really like. On that basis, and given the history of violence that [K] has witnessed between Mr F and the respondent it is difficult to conclude that the child’s best interests would be served if time with her mother should also include time with Mr F.
The difficulty is that if orders are made preventing the mother from bringing the child into contact with Mr F then the burden of the mother trying to integrate her family as one is greatly increased.
Mr F describes himself as a playful parent. He states that he is now
36 years old and had had enough of the ‘ups and downs’. In cross-examination, Mr F indicated he had various reasons for wanting to change his lifestyle in relation to criminal activity and drugs, one of which was that he would, “prefer living out here, going to work, come home, than go to jail or the cemetery, you know, like, I prefer to be out here. I know that using heroin or drugs, like, it gives you two paths, either cemetery or jail. There's not too many that get to stay out here. I don't know, I've just had enough of it.” In answer to the question put by Counsel for the Respondent that, “they say that either you get sick and tired of using it or you die, is that pretty much your attitude towards it?” Mr F answered: “Yes”.
He further notes that he loves the child as much as he does his own son. He stated [K] refers to him as [first name omitted] 95 per cent of the time and Dad five per cent of the time. [K] asked whether she could call him Dad. Mr F describes his relationship with [K] as one of mutual affection. He described a time where [K] dressed him up and put make-up on him, putting [K] to bed and cooking for [K] especially while the respondent was pregnant with [G].
Mr F states that he has never spent time with the applicant in these proceedings. He stated that the applicant has caught him in the respondent’s bedroom a few times but they never said hello to each other. Nor, has Mr F met the applicant’s husband. Mr F stated that within the first three to four months of returning to Sydney he sought to organise mediation with the applicant’s husband, however, the applicants husband was not willing to mediate. Mr F feels that neither the applicant nor her husband have given Mr F a chance. Although there is ample evidence before this Court to understand why
Mr and Mrs H Marsh would be unwilling to meet and talk with Mr F this must be put behind them. They need to facilitate healthy relationships with the respondent and especially their grandchildren.
Mr F understands that the applicant and her husband have a jaundiced view of him and he understands that it is a reasonable point of view granted all that has transpired over the past two and a half years. Mr F stated it would be nice if his relationship with the applicant and her husband could change but believes that the relationship is over.
He stated that despite this a miracle might happen.
Mr F has re-built a relationship with his own father. He also appears to have a strong relationship with his sister. These are important relationships in his life and represent a transformation to some degree.
Generally, I found Mr F a reliable witness, although he clearly suffered from significant memory loss.
Dr Christopher Rikard-Bell – the family report
Dr Rikard-Bell is a professor and consultant child and family psychiatrist. He prepared a report dated 10 November 2007 in relation to these proceedings following interviews with the respondent and Mr F and their son [G] on 30 October 2007 and an interview with the applicant grandparents, the respondent and the two children on
30 October 2007.Dr Rikard-Bell recommended in his report that an 18 month process be implemented. The difficulty that arose in this case concerning
Dr Rikard-Bells evidence related to the delay between when he saw the respondent and the date final submissions were heard. Final submissions were heard on 19 May 2008 which means that the first staged implementation of Dr Rikard-Bell’s recommendations had already elapsed. His first recommendation stated that the child should remain in the care of the maternal grandparents for the first six months and during this time he recommended that the child have regular weekend contact with the mother. He said that in this time the respondent and Mr F should withdraw from methadone completely.
There was discussion concerning Dr Rikard-Bell’s recommendations on the date of final submissions and I will refer to this later when I discuss the issue of whether final or interim orders should be made in this matter.
Dr Rikard-Bell’s second recommendation was that the respondent and Mr F continue to have regular drug and alcohol counselling, even when they have withdrawn from opiate use. Mr F was recommended to undergo further anger management courses and counselling in order to try and deal with his emotional issues. Dr Rikard-Bell says that these counsellors could report to the Court supervisor on a regular basis to ensure compliance. I agree with these recommendations of Dr Rikard-Bell and have made orders accordingly.
Following this, and when the respondent and Mr F no longer require methadone or equivalent substances, Dr Rikard-Bell recommended that the third phase be implemented whereby the respondent and Mr F continue to reside on the Central Coast, close to the maternal grandparents and gradually over the next six months take over the primary care of [K].
If at the end of 12 months the respondent and Mr F still have a stable relationship and are drug free, supporting themselves and caring for the children as well as continuing with their counselling, at that point
Dr Rikard-Bell recommends that the respondent and Mr F take over the full care of the child with the grandparents having weekend contact for the next six months.
If the respondent and Mr F are drug free at the end of an 18 month period, Dr Rikard-Bell suggests the respondent and Mr F can then consider returning to Darwin.
Counsel for the applicant was concerned that at the time of preparing the report Dr Rikard-Bell was not aware of a number of important factors relevant to these proceedings. Dr Rikard-Bell was not in receipt of affidavits sworn by the respondent and Mr F on 21 November 2007. Nor did he have a copy of the respondent’s diary which highlighted the extent of violence in the relationship between the respondent and Mr F.
It was further raised by Counsel for the applicant that Dr Rikard-Bell never had an opportunity to observe Mr F and the child together in interview due to Mr F’s failure to attend their scheduled appointment.
I take this into account in determining the weight to be given to the evidence provided by Dr Rikard-Bell as to the relationship between
Mr F and [K].
During cross-examination Counsel for the applicant also drew attention to a number of omissions in the respondent’s recollection of events whilst being interviewed by Dr Rikard-Bell on 30 October 2007. In particular, Dr Rikard-Bell was not aware of the respondent’s most recent conviction for shoplifting on 4 July 2007.
In this regard, Dr Rikard-Bell stated that a child who sees her mother being apprehended by police will be negatively affected by such an incident. He stated that although children do not have a complex moral concept at the child’s age, the child could develop fear and anxiety relating to police and fear that something might happen to the respondent. Dr Rikard-Bell further stated that it was hugely concerning that the respondent was heavily pregnant and was with her daughter during the shoplifting incident on 4 July 2007.
The respondent had also told Dr Rikard-Bell that she had been off non-prescribed drugs for over a year. Dr Rikard-Bell was aware at the time of the interview that the respondent was on the methadone program and was using 70 milligrams per day. When Counsel for the applicant raised with Dr Rikard-Bell that the respondent was also taking valium, oxycontin and other oral opiates Dr Rikard-Bell was not alarmed and stated that these drugs were simply used to supplement methadone.
Dr Rikard-Bell said in cross-examination that despite the respondent not disclosing to him to a number of matters relevant to her criminal and drug history during their interview and the fact that he did not have all the relevant evidence before writing his report, there was nothing new put before him that would change his recommendations as set out in his report 10 November 2007.
In relation to the respondent and Mr F’s drug use Dr Rikard-Bell stated that abstinence is a treatment of choice for those recovering from opiate addiction. He stated that methadone was not a long-term solution to opiate addiction but rather a stepping stone in eventually becoming abstinent. He stated that if the respondent and Mr F want to be able to parent their children effectively, then they would need to rehabilitate fully, to achieve abstinence. He stated that the respondent does need to recover fully from her opiate addiction before she can take effective care of her children. Dr Rikard-Bell clearly had a number of reservations about treatment by methadone and stated that it was only part of the answer for a recovering addict.
Dr Rikard-Bell gave evidence that there were many types of methadone users. Ultimately he stated that the methadone maintenance program is a step in the way of beating addiction and if the drug user remains on methadone long-term, then the life of that person is partially disabled. This disability spreads to their ability to re-locate because they are linked to a particular clinic or pharmacy, they are challenged emotionally and impaired in their ability to function to a full level.
Further, Dr Rikard-Bell stated that the respondent and Mr F are trying to deal with establishing a stable relationship, re-establish their careers, and housing arrangements. They also have a new baby and are involved in on-going litigation concerning [K]. Unless they are able to turn their back on drugs and move forward there is a very high risk that the situation will become unstable again. Dr Rikard-Bell stated that the respondent and Mr F need to get off methadone to get well, as they are much more likely to be stable parents if they are not reliant on the drug, though he concedes that is not the view of everyone in the profession.
Dr Rikard-Bell held that whilst the respondent or Mr F were still on the methadone program or other illicit substances, there would be doubt in the situation and believes the child would be more safely cared for by the maternal grandparents. Dr Rikard-Bell proposed the child’s relationship with Mr F develop after he has achieved this goal in the long term. The problem that Dr Rikard-Bell acknowledges is that it is going to be very difficult for Mr F and the respondent and [G] to split up the family unit every weekend that [K] comes to visit. The family undeniably needs as much support as possible and splitting them up is not going to help this process.
Dr Rikard-Bell’s evidence that those addicted to heroin have a greater propensity to be untruthful brings in to question a number of issues in this case. As Dr Rikard-Bell stated, he is not surprised that there are inconsistencies in diaries and urine-analysis that are inconsistent with what he was told by the respondent.
Dr Rikard-Bell stated that persistence on part on Mr F is a big factor in his rehabilitation process. He stated that Mr F has had some partial success in his rehabilitation process, but still has a long way to go. The longer the dependency on drugs the harder it is to change a drug dependent life into a non-drug dependent life. However, the doctor agreed with Counsel for the respondent that the birth of the child and the relationship with the respondent and his mother being injured in a horse riding incident all culminated in his determination to eliminate his dependency on drugs.
Dr Rikard-Bell further noted that there was a degree of denial by the respondent about the seriousness of drug addiction in her life.
It was also Dr Rikard-Bell’s evidence that if the child lived with the grandmother long-term there would be no potential threats to the child of any significant psychiatric nature. He stated that if the child was exposed to shoplifting, violence and drug taking then there would be a risk of such harm.
Dr Rikard-Bell also expressed concern about the relationship history of both the respondent and Mr F. The ability of both the respondent and Mr F to maintain long-term fulfilling relationships has been a challenge for both of them. This also becomes relevant as far as Mr F’s relationship with the child is concerned. Dr Rikard-Bell stated that the child could begin to relate to Mr F as a father figure and if the child becomes attached to Mr F then the loss of Mr F in her life could be significant if the relationship breaks down.
Dr Rikard-Bell stated that it is most important for the child to have regular contact with the respondent, and although the grandparents have a great deal of suspicion and perhaps despair about the respondent being in a relationship with Mr F, this should not be the determining factor.
When it was put to Dr Rikard-Bell by Counsel for the applicant that he was unable to make firm recommendations as to when Mr F should be seeing the child because Mr F did not turn up to their follow-up appointment, Dr Rikard-Bell stated that Mr F’s non-attendance was not the whole of the issue. He stated that what is important is maintaining the link between the respondent and her daughter so the child does not become excessively distressed. The absence or otherwise of Mr F is not going to have a long-term adverse effect on the chid. In this regard, I agree with Dr Rikard-Bell.
The doctor stated that if the grandparents and the respondent were able to foster a relationship themselves then this would have a big impact on the child in a positive way. Alternatively, it was stated that if the child becomes aware of animosity between her mother and grandparents then this could lead to her becoming very distressed and anxious including difficulty at school and relating to her friends.
The doctor also recommended that the grandparents try and keep their antipathy toward Mr F away from [K]. In the event that they do not, the child is placed in an even more difficult situation. The problem becomes even more complicated because Mr F will always be part of the applicant grandparents’ life now as they have a grandson [G] of whom he is the father and [G] is a half-brother to [K].
Dr Rikard-Bell believes that a review at 12 months could be beneficial because all the issues around the second child will soon arise and that in the future he hopes there be a possibility that the parties can attend reconciliation or cooperation.
In respect of the violence that is alleged to have occurred between the respondent and Mr F in front of the child, Dr Rikard-Bell stated that the potential effects on a child viewing incidents of violence such as choking and being dragged by the hair can be very frightening and is a very significant event. However, the doctor indicated that the long-term effects were dependent on whether it was an isolated incident.
He noted that if it was an isolated incident that was managed and the child was reassured, then the impact could be minimal to the child. However he stated that repeated episodes of violence with great a deal of fear could have a greater impact on a child’s stability.
Interim or Final Orders
Section 60CA of the Act states that 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. The guiding principles on what is in the child’s best interests are governed by s.60CC of the Act. Relevant to this consideration of what orders would best serve the interests of [K] I must take into account s.60CC(3)(l); whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. In this case as Mr Hearl the Independent Children’s Lawyer put to the Court, further litigation is almost inevitable whether final orders are made or not.
In particular, I note that if on the basis of the evidence presented, especially the recommendations of Dr Rikard-Bell, I were to make final orders for [K] to live with the applicant grandmother it is almost certain that the mother would bring further proceedings. This is so even if I were to provide a graduated increase in the time [K] spends with her mother based on the mother meeting certain pre-conditions. As Dr Rikard-Bell so clearly stated it is impossible to be certain about the future where the situation is so fluid and where there are concerns as to the capacity of the mother to parent whilst on methadone. At best, progress on drug rehabilitation is uncertain and timetables are unhelpful. There is also uncertainty in relation to Mr F both in relation to his rehabilitation and the longevity of the relationship between him and the respondent. Put simply there are too many variables to make final orders at this time which would serve to avoid further litigation between parties who are clearly ill-disposed to each other. The risks to [K] are minimised by interim orders which allow the parties time to adjust and do not promote further conflict between them whilst allowing the situation to stabilise.
In the Marriage of Archbold (1984) 9 Fam LR 798, Evatt CJ and Forgarty J of the Full Court said that finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children of a final decision. The risk factors in this case are considerable and it is important to address them in more detail.
[K] is clearly very close to her mother and has expressed a wish, to which I attach some weight, to live with her mother. She is also clearly fond of her half‑brother [G] and it is important that she is able to form a relationship with him. It would be strange public policy indeed if the law were to work against a child having the opportunity to live with its natural mother once circumstances are such as to ensure the child is in no danger of physical or psychological harm and there is capacity for a positive on-going relationship. However whilst the mother’s situation is unstable and may result in her being exposed to physical or psychological harm it is appropriate she live elsewhere.
Another unknown factor at this stage is the capacity of Mr F to improve both in terms of his continued withdrawal from drug use and the capacity to deal with anger. On the evidence put before me I am of the opinion that he has come a long way towards being drug free and having a positive influence in the lives of the applicant mother, [K] and [G]. Given the animosity between the applicant grandmother and Mr F this is an important issue. There is a lack of evidence upon which final orders relating to the extent to which Mr F’s relationship with the mother should affect the time [K] spends with the mother, with or without Mr F present could properly be based. Much of the conduct which would mitigate against Mr F having contact with [K] occurred a long time ago and in recent times the interaction appears positive. Again further litigation with the attendant rancour and disruption to all parties which must affect [K], is almost inevitable.
During the course of the hearing Mr Cook for the mother put to me that after final submissions I should hear further evidence as to the mother’s drug rehabilitation in the context of Dr Rikard-Bell’s recommendations. I declined to do so, on the basis that the interests of justice and [K]’s best interests would not be served by my prolonging these proceedings which need to be concluded. It did however highlight the fluidity of the mother’s current situation where so many factors might affect her future ability to spend more time with [K] or take over the primary parenting role. Again this was clearly outlined by Dr Rikard-Bell.
There are many authorities relating to the protection of children from involvement in on-going or unnecessary litigation. The High Court decision in CDJ v VAJ (No. 1) (1998) 197 CLR 172 considered the extent to which the Full Court must regard the best interests of the child as the paramount consideration in determining the admissibility of further evidence in an appeal involving a parenting order. McHugh, Gummow and Callinan JJ said:
In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacement of them and the uncertainty of prolonged and repetitive proceedings.
In this case, the inevitability of further proceedings referred to by Mr Hearl to some extent displaces the weight given to the finality of litigation. If the Court were to require, in the future, the respondent mother to overcome the test stated in the matter In the Marriage of Rice and Asplund (1979) 6 Fam LR 570; [1979] FLC 90 -725 it would be an unnecessary burden to place on her when the option of monitoring her progress over a designated time can be easily achieved by the Court. In short there are too many variables including future progress in drug rehabilitation for both the mother and Mr F, the durability of the relationship between Mr F and the mother and the on-going relationship between all of the parties. Final Orders at this stage are unlikely to result in a saving of Court time and are likely to exacerbate and entrench conflict between the parties and are thus clearly contrary to the child’s best interests.
Accordingly, in all the circumstances I am of the view that the interests of justice would not be served by making final orders in this case. Almost certainly it would not be the end of the matter and may lead to even more litigation than interim orders. More importantly it is clearly not in [K]’s best interest for her to believe there is no prospect of her living with her mother in the future without a whole new series of proceedings. Her interests are best served by interim orders which clearly hold out the prospect of increasing time with her mother if the relationship remains positive and the mother continues to deal with her addiction, to parent [K] effectively and if the relationship with Mr F does not have an adverse effect on [K]’s welfare. This is one of few rare cases where it is not possible to come to a final conclusion, and the matter ought to be adjourned for a period and then called back for review; In the Marriage of Archbold (1984) 9 Fam LR 798.
Accordingly I propose to proceed with this matter on the basis of interim orders.
Determining the children’s best interests – the Court’s two tiered evaluation
Subject to sub-s.5, in determining what is the child’s best interests, the Court must have regard to the matters set out in ss.60CC(2) and (3). Section 60CC(2)(a) provides that the Court must consider the benefit to the child of having a meaningful relationship with both parents. Section 60CC(2)(b) requires that the Court ensure the child is protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In deciding what is in the best interests of the child the Court must take into account the primary and additional considerations by virtue of ss.60CC(2) and (3) of the Act. Notably, these primary considerations are consistent with the objects set out in ss.60B(1)(a) and (b) of the Act.
The question of [K] being exposed to physical and psychological harm while in the respondent’s care is the main issue in this case. Given the importance of these issues in these proceedings, I will proceed in some detail to consider the evidence before the Court.
The three main issues that are of concern to me in this regard are the respondent’s criminal record, her involvement and dependency on drugs and the propensity of her relationship with Mr F to turn abusive and at times violent. All three of these factors are of importance in determining the harm to which the child may be exposed to whilst in the respondent’s care.
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 [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. In particular, Mr F breaking into the respondent’s house in Darwin placed the child in significant physical danger, especially as at the time he was Hepatitis C positive and had blood streaming from his arm while near [K].
It is also of concern that the mother took [K] with her whilst shoplifting and willingly exposed her to the shock and distress of seeing her mother arrested.
Clearly these incidents, although not recent, are sufficiently proximate to rebut the presumption of equal shared parenting. This is particularly so in light of Dr Rikard-Bell’s evidence that the situation with the mother remains very unstable. The applicant should have sole parental responsibility for [K] until the mother demonstrates clearly that she is capable of ensuring that [K] is not exposed to harm. In the meantime it is important that the child spend a reasonable amount of time with the mother and her step-brother subject to her being safe.
Additional considerations
I now propose to have regard to the additional considerations insofar as they are relevant by virtue of s.60CC(3).
Subsection (a) provides that the Court may consider 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. It should be noted however that whilst children’s views are important considerations they are not the only factors the Court must take into account regarding a child’s best interests (R v R: Children’s Wishes (2000) 25 Fam LR 712; (2000) FLC 93-000 at (87,073), per Nicholson CJ, Finn and Guest JJ).
The evidence before the Court was that [K] expressed the wish to live with her mother. This evidence is of limited weight given [K]'s age and the very difficult circumstances of the case. I take this expression of [K]'s wishes to be more a wish for the future, than an immediate desire, especially in light of the issues still to be dealt with in the mother's household.
Subsection (b) requires the Court to consider the nature of the relationship of the child with each of her parents and other significant persons (such as grandparents or other relatives of the child).
I have no doubt from the evidence that [K] has a positive relationship with the applicant grandmother and with her grandfather and the extended family generally. There does not appear to be any doubt that the applicant is capable of caring for [K] very well and that there is a close relationship between them.
[K] also clearly has a close relationship with the respondent mother and there is to my mind no doubt as to the mother's love for [K] and commitment to her. In cross-examination by Mr Cook, counsel for the respondent, Dr Rikard-Bell indicated that if the child were not living with her mother over a lengthy period of time she would become distressed, although the damage to the child will depend on how she is cared for and how the association between the adults is managed.
[K] also seems to care for her half-brother [G], and it is important that this relationship be developed. I note that [K] has maintained contact with her father, Mr E, and that the applicant grandmother is currently in the UK with [K] so that she can spend some time with him. It is important that this relationship be maintained and developed.
The question of the relationship with Mr F is more perplexing. It does appear that [K]'s relationship with him is a positive one and at least since the respondent and Mr F have moved back to the Central Coast it seems that Mr F has been careful to ensure that any interaction he has with [K] is of a positive nature. I note that Mr F looked after [K] and [G] for some hours when the mother attended a wedding and the respondent’s brother who was babysitting did not turn up.
Subsection (c) requires the Court to consider 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.
I have no doubt that the applicant is willing to ensure ongoing contact between [K] and the mother and her extended family. The applicant has also shown a willingness to facilitate [K]'s relationship with her biological father. The mother also seems willing to facilitate that relationship.
The mother may be less committed to ensure an ongoing relationship between [K] and the applicant given her evidence to the effect that the applicant has played a negative role in her life. This view may however change over time as the mother perhaps comes to appreciate the very grave concerns her parents have properly, in my view, had for [K]’s welfare.
Clearly the mother will facilitate the relationship between [K] and [G], and between [K] and Mr F, who can not be excluded from any relationship with [K] given that he is the father of her half-brother and remains in an ongoing relationship with the mother.
Subsection (d) requires the Court to consider any likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
It is clear from the evidence and particularly the evidence of Dr Rikard-Bell that the current living arrangements for [K] are in her best interests given the instability in the mother's household and the ongoing drug rehabilitation being undertaken by both the mother and Mr F. Dr Rikard-Bell made it quite clear that [K]’s psychological health was best dealt with by living with the applicant.
Clearly it would not be in [K]'s best interests if her contact with her mother were not to be facilitated and, subject to the mother's progress, extended over time.
Given Mr F’s efforts at rehabilitation and the lack of any evidence as to violent or aggressive behaviour in [K]'s presence since the mother has moved back to the Central Coast I think it is in [K]'s best interests for her contact with Mr F to be gradually increased subject to his continuing to make progress with his drug rehabilitation and anger management.
Clearly, the applicant grandmother has been a significant stable factor in [K]'s life and in my opinion it is important that she remain in such a position for at least the foreseeable future.
Subsection (e) requires the Court to consider 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.
Whilst the mother and Mr F continue to reside on the Central Coast I do not think there is any practical difficulty or financial expense in the child maintaining relationships with the applicant and her extended family and with the respondent and her half-brother [G].
Subsection (f) requires the Court to consider the capacity of each of the child’s parents; and 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 evidence, particularly that of Dr Rikard-Bell, makes it quite clear that the mother is not in the position to take over the primary care of [K]. The mother is still grappling with drug rehabilitation and attempting to establish a stable family relationship with Mr F. There is clear evidence that drug rehabilitation is difficult, takes a long time, and may involve several relapses before success is achieved.
The applicant has demonstrated clearly that she is in a position to provide for [K] and [K] has thrived in her care. It would appear that the applicant is in an excellent position to provide [K] with a stable home, and to provide her with all of her physical, emotional, and intellectual needs.
Subsection (g) requires the Court to consider 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.
To the extent that these considerations are relevant they have been dealt with elsewhere.
Subsection (i) requires the Court to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. It is quite clear from the evidence that although the respondent quite clearly loves [K], her attitude to the responsibilities of parenthood have been somewhat unsatisfactory no doubt due to the influence of drugs. [K] has been exposed to violence and criminal behaviour whilst in her care. On the other hand, the evidence demonstrates that the applicant grandmother has cared for [K] very well and appears to have taken all reasonable steps to ensure her physical and psychological welfare.
Subsection (j) requires the Court to consider any family violence involving the child or a member of the child’s family. There was significant evidence of [K] having been exposed to violence between the respondent and Mr F on a number of occasions, both in Darwin and when the mother and [K] were in Broome.
Dr Rikard-Bell’s evidence is that there remains a risk to [K] of further exposure to violence until the respondent and Mr F are free of their drug dependence.
Subsection (k) requires the Court to consider any family violence order that applies to the child or member of the child’s family, if: the order is a final order or the making of the order was contested by a person. This is not relevant.
Subsection (l) requires the Court to consider 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 dealt with this issue at some length elsewhere in this judgment.
Section 60CC(4) provides that without limiting paragraphs (3)(c) and (i) the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. In particular, these considerations include the extent to which each of the child’s parents: has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child; has facilitated, or failed to facilitate, the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
It is quite clear that the respondent mother has failed to fulfil her responsibilities as a parent as outlined above. However, she has quite clearly facilitated a relationship between [K] and her natural father and between [K] and her half-brother [G].
In this case the relationship between [K] and the applicant grandmother is clearly important and there must be doubt, given the mother’s evidence, whether the respondent mother would facilitate [K] spending appropriate time with the grandmother if she were to have sole responsibility for [K].
On the other hand, the grandmother has clearly demonstrated that she is willing to facilitate a relationship between [K] and the respondent mother and to keep the mother informed about major decisions in relation to the child.
Subsection (4A) provides that if the parents have separated, the Court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred. In making these orders I have had regard to the events which have occurred since [K] has lived with the applicant grandmother and in particular the changes to the mother’s circumstances.
I am satisfied that the maternal grandparents have various concerns regarding their daughter and her relationship with Mr F. They have endured a long period of instability and unhappiness in their daughter’s life, and to a large extent, blame Mr F for the state she has found herself in. It is imperative however that they attempt to build some relationship with the respondent and Mr F if for no other reason than for their grandchildren. It is important for a child to have a sense of harmony between all the major people in his or her life and to see them cooperate and get along well.
For the reasons outlined I am satisfied that the orders I have made are in the best interests of the child.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Senior Associate: Steven Taylor
Date: