MCCREADIE & ORAM & ANOR (No.2)
[2018] FCCA 1214
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCREADIE & ORAM & ANOR (No.2) | [2018] FCCA 1214 |
| Catchwords: FAMILY LAW – Parenting – order made for children aged 5 & 7 to live with the younger child’s father and the older child’s psychological father – where the mother has been the children’s primary carer for most of their lives but has been using methamphetamine and recently served a prison sentence for dealing cannabis – where the court cannot be satisfied that the mother’s lifestyle has changed - where the children would be at unacceptable risk of harm in the mother’s care – where the maternal grandmother is an apologist for the mother and is not a suitable alternative carer. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Applicant: | MS MCCREADIE |
| First Respondent: | MS ORAM |
| Second Respondent: | MR LAMBERT |
| File Number: | NCC 2354 of 2016 |
| Judgment of: | Judge Terry |
| Hearing date: | 26, 27, 28, 29 March 2018 |
| Date of Last Submission: | 29 March 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Davies |
| Solicitors for the First Respondent: | Birtles Legal |
| Counsel for the Second Respondent: | Mr Bithrey |
| Solicitors for the Second Respondent: | Moin & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Bateman |
| Solicitors for the Independent Children’s Lawyer: | Emalene Gemmell Solicitor |
ORDERS
All previous parenting orders are discharged.
The children [X] born 2012 and [Y] born 2011 (“the children”) shall live with the father.
The father shall have sole parental responsibility for the children.
The mother shall spend time with the children:
(a)Once each month supervised for 2 hours either at the Suburb A Children's Contact Centre for as long as they are able to provide that supervision by some other person or at some other place agreed in writing between the parents.
(b)Unless there is some difficulty with the Suburb A Children's Contact Centre facilitating time on the weekend nominated in these orders and unless otherwise agreed between the parents, the mother’s time with the children shall take place on the last weekend of each month.
The mother may also spend such additional or alternate time with the children as the father may agree in writing NOTING THAT the father’s determination out about whether any additional time occurs or whether it is supervised is final.
The mother may have telephone communication with the children once each fortnight and failing agreement between 6.30pm and 7.30pm on Monday commencing on Monday 30 April 2018 but the father may place the telephone on speaker and may terminate the call if he forms the view that anything inappropriate or unsettling has been said to the children.
The maternal grandmother may spend time with the children by attending supervised visits with the mother once a month if she wishes.
The mother and the maternal grandmother may each send a card and gift to the children at or about the time of each of the children’s birthdays and at Easter and Christmas.
The father shall promptly notify the mother if either of the children are involved in an accident or medical emergency requiring attendance at hospital or are diagnosed as suffering from a serious illness.
The father shall keep the mother advised of the name of the school the children are attending and the mother may obtain from the school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents BUT MAY NOT ATTEND events at the children’s school such as parent teacher interviews, assemblies, sporting events or other events to which parents are invited unless the father consents in writing to that occurring.
Each parent shall inform the other parent as soon as practicable of any change to that parent’s residential address and/or fixed or mobile telephone number.
The father is permitted to travel internationally with the children and apply for a passport for the children notwithstanding the consent of the mother has not been obtained.
The father is hereby restrained from:
(a)Physically disciplining either of the children, or allowing a third party to physically discipline either of the children;
(b)Discussing any aspect of these proceedings with either of the children;
(c)Seeking to elicit views from either of the children about any other party and these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym McCreadie & Oram & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2354 of 2016
| MS MCCREADIE |
Applicant
And
| MS ORAM |
Respondent
And
| MR LAMBERT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings involve two children, [Y] who is seven and [X] who is five. The parties are Ms McCreadie, the maternal grandmother of the children; Ms Oram, the children’s mother; and Mr Lambert who is [X]’s father and [Y]’s psychological father. I will refer to Mr Lambert as the father throughout these reasons.
The children have historically lived primarily with their mother but in July 2016 she was sentenced to a term of twelve months imprisonment with six to serve for the supply of cannabis and the possession of methamphetamine.
Following the mother’s imprisonment, the children lived with the father. However the maternal grandmother wanted the children to live with her until the mother was released and she commenced proceedings in this court in September 2016.
At that time it was common ground between all three parties that the children would resume living with the mother upon her release but the father wanted the children to remain with him until the mother was released and ultimately an interim order was made for this to occur.
The father and the maternal grandmother were both then living in Region 1 which was also the mother’s habitual place of residence.
The mother was released on parole in 2017 and the children resumed living with her. Very shortly afterwards the father moved to Region 2 some distance away and his time with the children became less frequent than it had been when he was living in Region 1.
After the mother was released she moved in with the maternal grandmother but a few months later she moved out and she and the children commenced sharing a house with Mr B.
The father’s concerns about the children’s situation grew during 2017. It was unclear whether the mother was continuing to use drugs, she had moved in with Mr B and she failed to do a hair follicle test which she was ordered to do in July 2017. By the time of the family report interviews in November 2017 the father had shifted his position to one of seeking that the children live with him.
The family report was released in early December 2017 and after the release of the report an interim hearing was conducted and an order was made for the children to live with the father. It was ordered that they spend weekend and holiday time with the mother but following an incident at the end of January 2018, this order was varied to provide that they spend only supervised time with her.
At the time of trial the children were living with the father in Suburb A and were spending supervised time with the mother once per week at Suburb A Children's Contact Centre. The maternal grandmother was seeing the children when she went to Suburb A with the mother for that supervised time to occur.
The proposals at trial
The maternal grandmother is extremely hung up on the issue of the children’s paternity. She strongly dislikes the father and wants the children to live in Region 1. She also, unrealistic though it might be, wishes the children to attend School D in Region 1.
The orders the maternal grandmother proposed in the document she handed up at the end of the trial were that the children live with her, that there be a DNA test for [X], that if [X] was the father’s child then there be three-way parental responsibility and that otherwise the mother and maternal grandmother have parental responsibility for [X]. She proposed that after two years of the mother and father both being drug-free she would no longer keep parental responsibility.
The maternal grandmother proposed that the mother and father both engage in drug counselling for two years, that the father and his partner engage with Dr C, a psychologist in Region 1, for twelve months and that access between the father and his partner and the children be guided by the recommendations of Dr C.
She proposed that if the father was drug-free and the counselling with Dr C was successful, ultimately [X] should spend every second weekend and half school holidays with the father. She made no specific mention of him spending time with [Y].
During final submissions, the maternal grandmother said that if those orders were not considered appropriate by the court then she would support the proposal by the Independent Children’s Lawyer and I will set that out shortly.
The mother’s proposal was that she and the father have equal shared parental responsibility for the children and that the children live with her and spend time with the father every alternate weekend and for half of the school holidays.
The mother said that if the court ordered that the children live with the father, she wanted to spend alternate weekends and half school holidays with them. She said she would continue to attend rehabilitation or counselling at (omitted) until she was discharged.
It was the mother’s case that she was taking positive steps to change her lifestyle and that her role as the children’s historical primary carer should be respected and therefore the children should live with her.
The father lives in Suburb A with his partner Ms M and their son [A] who is a little over two. He sought an order for sole parental responsibility and for the children to live with him and his partner in Suburb A and spend no time with the mother or the maternal grandmother.
The father said that it simply could not be established that the mother had ceased to use drugs and that her drug use and immersion in the drug scene placed the children at risk of harm. He also said that the mother and the maternal grandmother were intent on undermining the children’s relationship with him and that this behaviour would continue in the future.
The Independent Children’s Lawyer proposed that the children live with father and that he have sole parental responsibility. She proposed the mother spend supervised time with the children at Suburb A Children's Contact Centre for six months and that time then become unsupervised during the day for six months and then extend to overnight time each alternate weekend.
Many difficulties can arise with supervision after final orders are made and that is something I will discuss at the conclusion of the judgment, but that was the Independent Children’s Lawyer’s proposal.
The Independent Children’s Lawyer proposed that the maternal grandmother spend time with the children as agreed between her and the father and failing agreement at times when the children were spending time with the mother.
This was the proposal that the maternal grandmother supported if her primary proposal was not accepted.
The evidence
The evidence was given by the maternal grandmother in her case, by the father and his partner Ms M in his case and by the mother in her case.
A family report was prepared by Ms K, a family consultant.
The mother was not a witness of credit. I will discuss particular issues with her evidence during the judgment when it touches on matters I have to make a determination about, but note generally that evidence in her affidavit about her methamphetamine use including why she commenced using it and how long she used it for was inconsistent and there was an inconsistency between what she said about it in her affidavit and what she told the family consultant.
The mother failed to reveal various things to the family consultant, for example her most recent conviction for using methamphetamine, until the family consultant confronted her with subpoena documents.
The mother alleged that the father agreed to her keeping the children for a longer period than they had earlier agreed on between Christmas and early January 2018. That assertion was contrary to the evidence in her own affidavit and those are just some examples of the mother being an unsatisfactory witness.
The maternal grandmother was not always accurate in her recounting of the facts either and a particular example of that was that she insisted in her affidavit that the children had always called the father Mr Lambert rather than Daddy.[1]
[1] Maternal grandmother’s affidavit paragraph 14
That is totally contrary to the mother’s evidence. On numerous occasions in the mother’s affidavit she related things the children have said over the years in first person speech in which the father was referred to as “Daddy” and in respect of [Y] there were repeated references to her affidavit to [Y] calling the father “Daddy”. There are examples of it in paragraphs 67, 73, 90, 116 and 313 and in paragraph 67 the mother referred to the father as “Daddy” in a conversation she related concerning [Y].
The maternal grandmother was very selective in the evidence she gave about her daughter. She referred in her affidavit to her daughter being charged with selling cannabis but nowhere did she refer to the major problem in this matter being the mother’s use of ice.
Sadly the maternal grandmother is a total apologist for her daughter’s behaviour.
The father also had some credit issues. He was not frank about his past drug use.
The mother and the maternal grandmother were highly critical of the family consultant and claimed that she repeatedly misquoted them. I do not accept that.
There are many occasions in the report where the things the parties are reported to have said are in italics which family consultants use when they are recording in first person speech the things that have been said to them and the family consultant checked her notes and confirmed that her reports of those conversations were accurate.
The mother and the maternal grandmother were not witnesses of credit and I do not accept that the family consultant made numerous mistakes in her report about things the mother and maternal grandmother said to her.
Background
The mother grew up in Region 1 and began experiencing problems and using drugs, at that stage cannabis, in her early teens.
The mother gave birth to [Y] when she was sixteen. [Y]’s father has been named as Mr C but he has never had any relationship with [Y].
The mother and father met and commenced a relationship in 2011 when the father was 26 and the mother 17. The mother’s counsel commented on the age difference in submissions. Certainly there is an age difference but I do not consider that it is by itself an issue of concern.
[X] was born on 2012 and the mother and father separated in October 2013 according to the father or perhaps earlier according to what the mother said to the family consultant. On the other hand the mother referred to attending the father’s sister’s wedding in Region 3 in 2014 so I cannot entirely get to the bottom of when the relationship ended.
The relationship, which lasted for about three years, was turbulent. At one point an Apprehended Domestic Violence Order (ADVO) was taken out to protect the mother from the father after the father punched in the front door and the father gave some examples of the mother being aggressive to him and damaging property and I will have to make findings about that later.
The father was also using cannabis for some or all of the relationship.
After the parties separated the father spent time with the children by agreement. The parties disagreed at trial about the extent of the time and I cannot make any findings about that but one very important thing to note is that it is apparent from both the mother’s affidavit and the father’s affidavit that the parties always treated the children as a unit. There was never the smallest suggestion by the mother that the child who was not the father’s biological child should not go and the other one should and I have already made reference to the numerous occasions on which the mother reports [Y] calling the father “Daddy.” .
On 21 July 2015 the police raided the mother’s home in Region 1 because they had come to the view that she was selling cannabis. They searched her home and found cannabis in zip lock bags, air rifle pellets, digital scales, a mobile phone and cannabis leaf. They also found a ladies’ handbag containing an ice pipe, scales and two sachets of ice in the mother’s bedroom.
The mother admitted in cross-examination that the handbag was hers and the bedroom was hers but she denied any knowledge of the content of the handbag. She said at trial it had been given to her by a person called Mr I and she had not looked inside it.
I do not accept that evidence. I am satisfied on the balance of probabilities that the handbag was the mother’s and that the ice and the ice pipe and the scales were hers.
According to the police the messages on the phone confirmed that the mother had supplied cannabis and MDMA on over 150 occasions and the mother was charged with supply and possession of cannabis and possession of methamphetamine.
The charges against the mother ultimately did not go to trial for 12 months but the raid was not the end of the involvement of the police in the mother’s life. In December 2015 police attended at her home and found a cannabis plant and cannabis leaf. I seem to recall from records that Mr B was there at the time. No action was taken regarding the plant because the police could not establish ownership.
In February 2016 or thereabouts the mother was stopped by the police and drug tested. She was found to be driving with methamphetamine in her system and she was charged with drug driving.
In March 2016 there was an incident at the mother’s home where people knocked on the front door and somebody was apparently assaulted. The mother was evasive about this incident in discussion with the family consultant. In the witness box she said that it was nothing to do with her and that she was in the shower and the children were asleep in bed. She seemed emotionally switched off to what that incident said about her lifestyle and potential risk of harm for the children.
In June 2016 the mother was again stopped by police and again charged with drug driving after methamphetamine was detected in her system.
The mother was later convicted of two offences of drug driving.
In due course the mother pleaded guilty to charges arising out of the raid in 2015 and an order was made for the preparation of a pre-sentence report. The mother failed to attend interviews for the report despite being given numerous opportunities to do so.
On the day the mother was due to be sentenced in July 2016 she went to court after leaving the children with the father believing that she would be released but she was sentenced to 12 months imprisonment with six to serve.
The children remained with the father and the maternal grandmother filed her application and I have already set out what happened after that in terms of the children resuming living with the mother in January 2017 and the father moving to Region 2, but it is important to note that in May 2017 the mother was charged for a third time with drug driving with the drug in her system again being methamphetamine. She pleaded not guilty to that charge but was found guilty after a hearing.
In or about June 2017, after having lived with her mother since January, the mother moved out and began sharing a home with Mr B, a known methamphetamine user who has had serious mental health issues.
In June or July 2017 the mother was ordered by this court to do a hair follicle test. She failed to do so alleging that she could not afford it but an interesting aspect of this is that only a month or two previously she had been charged with drug driving with methamphetamine in her system, something she alleged should not have been there or was not there, and the hair follicle test if done in June or July would have covered this earlier period.
The family report writer raised numerous concerns about the mother’s care of the children in her report and in December 2017, I made an order that on an interim basis the children live with the father and spend time with the mother supervised by the maternal grandmother. This time was to occur in Region 1 which gave the mother a certain amount of freedom in terms of spending time with the children.
However in late January 2018 an incident occurred which followed on a discussion the parties had been having about the school the children were to attend.
The father proposed enrolling the children at a public school in Suburb A. He asked the mother to give him the children’s birth certificates to assist in the process of enrolling them. She either would not or could not do that and said that she wanted the father to consider enrolling the children at School E, another fee-paying private school.
In late January 2018 the children went to Region 1 to spend time with the mother for a few days. The mother alleged that while the children were there the father sent her a Facebook message and an email saying that he had changed his mind and that the children could go to school in Region 1. She seized on that and withheld the children.
The father denied sending either the email or the Facebook message. He alleged that they were fabrications.
I do not accept the mother’s evidence about that whole incident. There was no evidence that an email was even sent. There was a copy of a purported email in the mother’s material but no evidence of it being sent.
There was no evidence that the father posted the Facebook message and there is reason to believe that the father’s Facebook page may as the father suggested have been hacked. The profile photo next to the message the father allegedly sent agreeing to the children attending school in Region 1 is different to the profile photo above it and below it and according to the father is an old profile photo.
There is also the sheer improbability of the father changing his mind given the correspondence between the parties throughout January. I do not accept the mother’s evidence about that incident. I am satisfied on the balance of probabilities that she either manufactured the communications or was knowingly concerned in their manufacture.
The father promptly filed an interim application seeking a recovery order. An order was made for the children to be returned to him and for the mother to spend supervised time with the children at Suburb A Children's Contact Centre. The order provided for this to happen once a week if the centre was able to provide that time. It was and the mother has been seeing the children once a week.
The father subsequently enrolled the children at School E.
[X]’s paternity
The father is not on [X]’s birth certificate but I accept his evidence that he was not given the opportunity to be on it. The father seems to be somewhat of a laid back person who if he is confronted with forceful opposition by somebody tends at times to give in to it, although fortunately for the children that has not been the case so recently.
There is not a shred of evidence in the mother’s trial affidavit to suggest that she had a concern about [X]’s paternity prior to these proceedings commencing.
An order was made for DNA testing early in the proceedings, probably because this is an issue of huge significance for the maternal grandmother. I accept that the father’s evidence that he paid his share of the cost but the mother did not.
No test was done and it was common ground between the mother and father that they recently agreed that paternity testing would not be carried out. In the mother’s trial affidavit she said as follows:
It is my understanding that when the matter was before the court on 16 March 2017, it was agreed between the parties that the DNA test was no longer necessary, although this was not included in the consent orders.[2]
[2] Mother’s affidavit paragraph 133
There is also the mother’s conduct. She referred in her affidavit to there being a child support assessment in place in respect of [X] and she complained that she did not get child support from the father until she put the matter in the hands of the Child Support Agency. Pursuant to s. 29 of the Child Support Assessment Act the mother would not have been able to get that assessment unless both parents had told the Child Support Agency that the father was [X]’s father.
There is also evidence of the mother regularly pestering the father about contributing to [X]’s school fees. There is absolutely nothing to suggest that the mother herself has doubt about the child’s paternity.
There is no issue in my mind about the father being [X]’s father.
The father is not [Y]’s father but it is fortunate for [Y] that he is willing to accept her as part of the package with [X] and the fact that he is not [Y]’s biological father, does not mean that he does not have standing to apply for a parenting order in respect of [Y]. S. 65C of the Family Law Act provides as follows:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
There is absolutely no doubt that the father is a person interested in the care, welfare and development of [Y].
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC(2) are:
a) the benefit to the children of having a meaningful relationship with both of the children's parents; and
b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S. 60CC (2A) however requires me to prioritise the children’s safety over the benefit of a meaningful relationship.
There are numerous additional considerations in s. 60CC (3) and there are cases where it is preferable to start by considering the s. 60CC (3) matters. This is such a case and that is what I am going to do.
The first of the s. 60CC (3) matters is any views expressed by the children and any factors such as their maturity or level of understanding which the court thinks are relevant to the weight to be given to their views.
The only reliable evidence about the children’s views is in the family report.
[Y] told the family consultant that she wanted to live with her mother and spend time with her father namely:
I don’t remember. Maybe 10 hours with Daddy.[3]
[3] Family Report paragraph 143
[X] said that she wanted to live with her mother. She said that she was not sure how much time she should spend with her grandmother, responding “I don’t know.” In relation to her father she said:
I want to live with him for a year.[4]
[4] Family Report paragraph 147
I will have to take those views into account. They do not determine the matter given the children’s ages but an interesting aspect of it is that there is no suggestion from the children that they have the slightest issue with spending time with the father.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent or relative of the child.
The mother said in her trial affidavit that the children had a good relationship with the father and missed him but disliked his partner Ms M and what happened at the father’s house. She alleged that they were terrified of Ms M screaming and that [X] had dramatically demonstrated Ms M hitting her on her bare bottom.
The children made some allegations to the family consultant about Ms M’s treatment of them and I will refer to that in the parenting capacity section of the judgment but there were no issues about the children’s interaction with Ms M and the father at the family report interviews. The family consultant said as follows:
I then collected the stepmother and [A] from a different part of Centacare and introduced the stepmother and [A] to the session with the father and the girls. The girls were happily playing with the father on entry. They both greeted [A] happily with lots of hugs. They did not initially display physical affection to the stepmother but there was immediate rapport with lots of direct verbal interaction (including the girls instigating conversation with her), repeated and consistent eye contact and smiles. There was no indication whatsoever that the girls were fearful, or even uncertain in their relationship with the stepmother. The session presented as very warm and comfortable with lots of free flowing conversation between all involved and lots of smiles and giggles from the girls. Both of the adults were very warm and engaging with the children and this was reciprocated by [X] and [Y]. I advised the girls that the stepmother and [A] would be leaving and they immediately without prompting got up to give her and [A] (who was on the father’s lap) big hugs. I escorted the stepmother and [A] out and returned to advise they also needed to say goodbye to the father. Again there were lots of big hugs for the father as he left.[5]
[5] Family Report paragraph 154
I am satisfied that the children have a good relationship with their father and with Ms M. They also have a good relationship with [A]. The mother said in her affidavit that the girls missed [A].[6]
[6] Family Report paragraph 72
The children also have a good relationship with their mother and maternal grandmother. The family consultant said as follows:
The mother and the maternal grandmother were invited into the interview room. The girls were initially colouring (as they had been in the previous observation session) and the maternal grandmother immediately engaged with them in a warm and responsive way. The mother sat around the table but did not verbally or otherwise engage with the children. [X] then approached the mother and whispered in her ear words to the effect “I want to go to Daddy’s without Ms M” with the mother responding “well maybe one day daddy will come to Region 1 without Ms M to see you”. After this the mother then engaged with the children with them all starting a game of Uno. The interaction became very relaxed and comfortable with all present warmly engaging with each other with lots of smiles and laughter.[7]
[7] Family Report paragraph 155
The mother has always been the children’s primary carer which is a significant issue in the case.
I must consider the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making major long-term decisions about them, spending time with them or communicating with them.
Although the father is [Y]’s psychological rather than biological father, in considering the section 60CC (3) matters, I am going to treat both children as being his children for the purpose of making determinations.
On various occasions since the father and mother separated the father has been content to take a back seat with the children. He went off to do training for the (employment omitted) in 2014. He relocated to Region 2, two hours from Region 1, after the mother was released from jail.
Matters such as these limited his time with the children and he has also often been willing to fall in with the mother’s insistence that his time be limited for other reasons, such as while there was some investigation of the children’s complaints about Ms M.
However the father has been reliable in wanting to spend time with the children in a broad general sense since the parents separated and there is no issue there in relation to the mother.
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child or children.
From the mother’s affidavit it appears there has been a child support assessment in place in relation to [X] since 2014.[8] The mother made complaints about the payments which were made in 2017 but the evidence is too general to allow me to make a finding.
[8] Paragraph 26
The father is not assessed to pay child support for [Y] nor could he be. It is unclear if the mother has ever sought child support from Mr C. The father said that he had been making some additional voluntary payments for [Y] but that issue was not explored at trial and I cannot make any findings about it.
The mother complained about the father’s failure to assist her with paying for school fees and for extra-curricular activities provided by School D in Region 1. The father made it very clear that he could not afford the fees and could not afford the extra costs. Neither could the mother come to that and the mother’s wilful refusal to accept that neither she or the father can afford this kind of an education for the children is more of a concern to me than the father’s failure/inability to contribute to the school fees or excursion and extra-curricular activity fees at various times.
In broad general terms, my findings in relation to this section are these: I cannot find that the father has been deliberately difficult about paying child support for [X]. I cannot make a finding about whether he has paid anything for [Y] but the other issue is that there is nothing to suggest that his application to have the children live with him is motivated in any way by child support considerations.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of separation from any person or other child with whom the children have been living.
That is an issue I am going to have to consider at the conclusion of the judgment.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent.
Suburb A and Region 1 are about one and a half hours apart. That sort of a distance does not pose an insurmountable problem to people spending time with children no matter how little they are earning or how poor their motor vehicle is.
The practical difficulty that is going to arise is if I find that only supervised time can occur. The only contact centre in that area is in Suburb A. The maternal grandmother complained about the cost to her and the mother of getting to Suburb A for a short visit. She complained that the train times did not fit in with the contact centre times.
An additional practical issue is that the contact centre may not be willing to continue supervised time once final orders are made unless the parties are people of means who can afford to pay at a higher rate. I have no evidence about that but it is a concern in my mind and to my knowledge there are no people up in that area who offer any other private supervision.
I must consider the capacity of each of the children’s parents and any other person, including a grandparent or relative of the child, to provide for the needs of the children including their emotional and intellectual needs.
I am going to start the consideration in this section with the mother because although the mother and the grandmother refuse to admit it, there are serious concerns about the mother’s parenting capacity both historically and potentially in the future.
The mother left school young and she has had long-standing problems in her life, problems which first manifested themselves when she was 13.
She had involvement with the police in her teens which has led to some minor criminal charges. The maternal grandmother commented in her affidavit that as a teenager the mother was very difficult to parent and would frequently run away. She only completed Year 8 at school and she has no history of adult employment.
Around 2015, although it could have been earlier and I have no means of fixing on when it started, the mother commenced selling cannabis from her home and in July 2015 there was the raid and cannabis and the methamphetamine was seized. I have already set out the other incidents that followed: the police attending in December, the two drug driving charges in 2016 and the home invasion.
The mother’s drug use and immersion in the drug culture exposed the children to risk and it is of considerable concern that the mother and grandmother both refuse to acknowledge that. They both claim that during the time the mother was engaged in selling drugs and was immersed in the drug culture and using methamphetamine the children were somehow happy, healthy and surfing ahead of the wave.
The evidence in the subpoena material indicates to the contrary. For example on 28 March 2016 the children’s school made a notification to the Department of Family & Community Services. There was reference to [Y] soiling herself in class and on one occasion wetting herself in class, a comment that the mother was withdrawn and did not make eye contact and did not remember why the child had been absent on three occasions and a comment that the mother had scabs on her face, arms and legs.
The mother denied in cross-examination that this was her appearance but immediately prior to that and on an occasion after that she was charged with drug driving with methamphetamine in her system.
In June 2016 there was a notification to the Department in which the caller stated that [X], then three, had presented on two occasions smelling strongly of urine but was dry and that she had dirty clothing and was grubby. The Department screened that complaint out saying that there was not enough information to determine that the child was dirty the extent that she might be sick. The caller said that there was a concern about the mother’s drug use. That was screened out because there was not enough information to confirm it.
Concerns were expressed about the child’s lack of eye contact and lack of engagement with other children. They were also screened out but it is interesting to note that it was around this time that the mother repeatedly failed to attend an interview for the preparation of a pre-sentence report and that the people who came around to her home on one occasion to try and get her to come in to be interviewed made a report to the Department because they considered that the mother was drug affected and that her children might be at risk.
The assertion by the mother and the maternal grandmother that somehow the children were not affected by the mother’s behaviour is just totally contrary to the evidence and gravely concerning.
In 2017 after the mother was released she lived for a period of time in the maternal grandmother’s home but then she moved in with Mr B, a known methamphetamine user with serious mental health issues to the point where the hospital was on occasions unable to contain his behaviour. The family consultant set out in her report in some detail what was in the subpoena material about Mr B.
There is evidence that the mother’s methamphetamine use continued in 2017. She was convicted of drug driving after an incident in May. She did not do the hair follicle test she was ordered to do in July. She alleged she could not afford it but I do not accept that.
The mother did a hair follicle test after an interim order was made removing the children from her care in December 2017 but it was positive for amphetamines.
The mother explained this away on the basis that providentially in January 2018 she had been to see a doctor and obtained a prescription for dexamphetamines because she allegedly had ADHD.
The evidence attached to the mother’s affidavit about why the doctor prescribed dexamphetamines is very brief. The letter from the doctor consists of three lines and there is no explanation for why he prescribed the drug. There is nothing to suggest that the doctor made an independent diagnosis of the mother. The evidence in the mother’s affidavit about her ADHD was that she was diagnosed with it when she was in Year 1 or 3 at school and was prescribed Ritalin but there is no mention of her taking it after that time.
The fact that the mother has obtained a prescription for dexamphetamine does not remove a concern from my mind about whether the mother is using illicit drugs or about whether that prescription explains why the mother is testing positive for amphetamines in the drug tests she has done since January 2018.
Three days after the father filed his interim application seeking to have the children live with him the mother enrolled at (omitted), a drug rehabilitation service.
The family consultant had raised with the mother in November 2017 that she had not done any drug rehabilitation after she was released from prison despite it being recommended. The mother said that she intended to enrol and thought maybe she would get something out of it. She did not enrol though until three days after the father filed his interim application.
The mother has since attended at (omitted) and she has done some drug tests while she has been attending. Two of them have been clear for illicit drugs. One was clear but had dilute creatinine, something the maternal grandmother thought significant when it showed up in one of the father’s tests. I cannot be satisfied on the basis of that evidence that the mother has ceased using illicit drugs.
The mother continued her association with Mr B throughout 2017. She only stopped living with him after the children were placed with the father in December 2017 and she said that this was because her solicitor advised her that she should do so.
I cannot be sure whether the mother has turned a corner or even whether she will be able to turn a corner. She is 26 years old. She has been in trouble with the law and with drugs of various kinds since she was 13. There is considerable force in the following observations in the family report:
It is assessed that the children have been directly and repeatedly exposed to the mother and Mr B’s substance abuse for an extended period of time. Given that the mother has been found with methyl-amphetamine in her system whilst driving in May 2017 (which she initially failed to disclose), given that the mother has failed to complete the hair follicle analysis within the requisite time frame, given that the mother minimises and/or lies about her history of drug use, given that the mother continues to associate with people with strong drug use histories, given that the mother has no insight into the impact of her drug use on the children, and given that the mother has not accessed any drug and alcohol counselling or rehabilitation, then it would seem to be a very high likelihood that the children are currently being exposed to substance misuse and the associated impacts of such in the mother’s household. If the mother and Mr B are not currently abusing substances then I would argue that the mother and Mr B present an extremely high risk of relapse and accordingly the children remain at high risk in their care.[9]
[9] Family report paragraph 269
I cannot be satisfied that the mother is drug free. I cannot be satisfied that she has properly engaged with (omitted) and that they are going to be able to help her.
I have a number of other concerns about the mother and one is her sheer inability to see the harm that she has caused her children over the last few years.
Due to the mother’s actions the children did not spend time with her for six months because she was in prison. The mother created that situation. She imposed that loss on the children. She just does not seem to emotionally relate to that at all. She seems to have a skewed belief that somehow if the children are attending a high fee-paying private school that all is well.
The mother exposed the children to harm when she was using and dealing drugs. The family consultant said as follows in her report:
Parental substance misuse has substantial and significant impacts on children’s wellbeing and development. There are specific direct risks to children when their parents are engaging in poly substance use such as potential physical harm due to lack of supervision (potentially fatal for example due to drowning), adults driving whilst intoxicated (potentially fatal car crashes), risk of ingestion (potentially fatal), exposure to related implements (such as syringes) and the involvement of the carer with criminal elements (including a risk of sexual abuse and home invasions). There are also longer term pervasive impacts on children’s development which arise from the emotional and physical neglect children experience due to their caregivers’ lack of focus on meeting their basic developmental needs. In this regard it is noted that the subpoenaed material from a range of different sources supports that the children have been subjected to neglect in the mother’s care. [10]
[10] Family Report paragraph 268
One of the children was in the car when the mother arrived home in 2015 to find the police searching her home. The children were at home when the home invasion occurred. They have been at home when various people such as (omitted) or Mr B or someone called (omitted) were sitting around the mother’s home and all these people are known drug users.
The children have already been exposed to those things and if they continue to live with the mother I cannot be certain that this will not continue to be the case in the future.
An additional issue referred to in the family report was in respect of a man called Mr R who has been charged with child sex offences. Concern has been expressed by others that he has been left alone with the children and bathed the children.
The mother denied those things. She was not a witness of credit and her judgment about other risks to which she has exposed her children was poor and I cannot be certain a) that she is telling me the truth and b) that she is properly able to identify risk.
The information about Mr R adds to my concern about the mother’s capacity to make good decisions for the children and it is of considerable concern that the maternal grandmother described Mr R to the family consultant as “a lovely man”.
The mother’s capacity to provide for the children’s needs is seriously impaired.
I also have grave concerns about the maternal grandmother’s capacity to protect the children. Her answers in cross-examination about the mother’s drug use charges were deeply concerning.
The maternal grandmother said that the mother did not tell her about the 2015 raid at the time. She said she found out about it later that year or at least found out what the mother chose to tell her. When she was questioned she said she did not ask the mother about it because the mother was an adult and had a private life separate to hers.
The maternal grandmother maintained that the drug charges did not adversely reflect on the mother’s parenting because they were two unrelated events. Her final comment about the mother’s drug charges was that:
It was a bad decision and I wish she hadn’t done it.
She also said as follows during cross-examination:
I think you can sell drugs and still be a good parent.
The maternal grandmother is not willing to confront her daughter. Another comment she made in cross-examination was:
I ask her about things which are related to the children and related to our family, but I want to treat her as an adult with her own life.
The maternal grandmother is protective of the mother and incapable of being properly protective of her grandchildren.
The maternal grandmother’s insistence that the father is not [Y]’s father and that this is of some huge significance is deeply concerning because [Y] has no other father. The maternal grandmother is blind to the damage that her actions and beliefs are likely to cause to [Y].
In relation to the father, allegations made that he drank heavily. There was a suggestion that he drank a bottle of Jack Daniels every night or second night, improbable given its alcohol content but the father denied it and I cannot find that is the case.
The father has his own concerning history of drug use and that was brought out in some detail when he was questioned about the material in the (employer omitted) subpoena. He also has a conviction in Queensland in 2006 for possessing cannabis. However there is a stark difference between the father’s history and the mother’s. Although the father was rejected by the (employer omitted) after his initial interview in 2008 because of his frank disclosure about his history of polysubstance use, in 2014 he was accepted into the (employer omitted) and trained for the (employer omitted).
The father’s drug use has not led him into criminality as it has led the mother. It has not led him into associations with people who come round to the house in the middle of the night wearing knuckle dusters. The father has not been charged with drug driving. There have been no reports to the Department about any of the children, including his son [A], in the father’s care.
The father has a drug use history but I am not convinced that it is something which means that at present I should be concerned about his capacity to care for the children.
The father has a good employment history which is to his credit. I want to stress that the fact that people do not work in paid employment is not necessarily a black mark against them. There are a number of reasons why that can be the case and the father is not working at the moment because he is primarily caring for the children. The mother does not have a work history but for a very good part of her life she was caring for young children. I do not intend to convey by that comment that the mother is some sort of an inferior person and the father is not working at the moment either but he has a good work history and in the long term is a good role model for the children in that regard.
It was suggested at trial but not really pursued in final submissions that if the father and Ms M were both employed in the future it might impact on their capacity to care for the children but I do not accept that. That is just most people’s every day experience and people manage.
The children are attending School E Primary School. The father is living in rented two-bedroom accommodation, which is a bit of a squeeze but that is just the reality of the father’s life.
A big issue raised by both the mother and the maternal grandmother was that the children had disclosed that when they lived with the father after the mother’s imprisonment, Ms M physically disciplined them. The mother put this down as being quite severe. She alleged that [X] said she was smacked on her bottom and could not sit down as a result of being smacked and [Y] talked to the family consultant about being smacked by Ms M.
The family consultant did not feel that the children’s allegations as made to her were deeply concerning. She said as follows for example:
[Y]’s demeanour was incongruent with the reportedly distressing information she was conveying. Specifically, she continued to smile and she giggled while relating the information.[11]
[11] Family Report paragraph 141
The interaction the family consultant observed between the children and Ms M at the family report interviews did not raise any concern at all. The family consultant said that the children had immediate rapport with the stepmother and that there was repeated and consistent eye contact and smiles and no indication that they were fearful or even uncertain in their relationship with her.
The stepmother admits that she smacked the children. She has never tried to hide it and I do not accept that she has minimised what happened. There are still people who smack children because they were brought up being smacked and they do not regard it as an inappropriate form on discipline. We are moving into a stage where a lot of people do consider it inappropriate but I do not accept that Ms M physically disciplined the children to an extent where it verged into an assault.
I accept that Ms M has taken on board the concerns raised about what happened and I do not accept the children are at any risk of harm from her. I was impressed by Ms M in the witness box and she supports the father’s application.
The family consultant said as follows in her report about the allegations about Ms M:
Whilst it is ultimately a matter for the Court to determine, I am not convinced on the information available that the children are at unacceptable risk of harm in the father’s household from the stepmother. In the first instance, at its highest, the stepmother has physically disciplined the children by smacking them on the bottom on top of their clothes. Whilst this is clearly different from what the children were used to, it does not equate to the children having been abused by her. I do have some concerns that the children’s reported responses to the stepmother (according to the mother being highly fearful and traumatised by her) are inconsistent with the children’s reporting of her behaviour. The stated fears are also clearly inconsistent with the children’s behaviour in the observation session with the stepmother.[12]
[12] Family Report paragraph 263
The father and Ms M have their hands full with three young children in their household but a lot of people are in the same situation. I am satisfied that they are providing good day to day care for the children and that the children are not at risk of harm in their care.
I must consider the children’s maturity, sex, lifestyle and background but that is not relevant as a separate consideration.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
The father has not always been as proactive as he should have been in spending time with the children although in some respects to be critical of him for that is to use 20/20 hindsight because it is not at all clear, and in fact I consider it unlikely, that the father was aware of the extent of the problems in the mother’s life prior to 2017.
The mother has shown a very poor attitude to the children and the responsibilities of parenthood over and over again in the last few years. Her actions led to the children being exposed to a drug culture, to her sometimes being under the influence of ice and to her serving six months in prison which separated the children from her and there was absolutely nothing in her affidavit to suggest that she recognised the harm she had done. Instead she devoted much of her affidavit to attacking the father over things like not letting her read the children a bedtime story or ensuring that the children cleaned their teeth.
I am also concerned, although this would really normally be under the heading “Any other relevant matter,” about the maternal grandmother’s attitude to the children. She similarly mounted a forceful attack on the father in her affidavit without once acknowledging the harm that her daughter had done to the children and the way she had let them down.
I must consider any family violence involving the children or members of the children’s family.
There was an incident of family violence where the father kicked in the back door after the mother refused him admittance to the house after an argument. He wasn’t charged but a “without admissions” ADVO was made. The father said, and I accept, that he repaired the door.
The mother alleged that there were other occasions of violence. She alleged she was threatened with a knife and pushed. She was not a witness of credit. There was no corroboration. I do not accept that evidence. She also alleged the father held her by the throat. The same comment applies to that evidence.
There is reference in the family report to the father’s claim that on a couple of occasions the mother committed some acts of violence and those allegations were the subject of some cross‑examination.[13] He claimed that the mother parking his car in, stalked him around town and jumped on the bonnet of his car causing a scratch.
[13] Family Report paragraph 28, 129
The mother said that what happened with jumping on the car was really a bit of an accident and that she fell on the bonnet. These incidents happened about five or six years ago. There is some evidence about the incidents in the police reports but there is always a risk that people’s recollections about these events now are not entirely accurate. I cannot make any findings about what happened on the occasions that the father alleged occurred. There is no doubt that there was an incident where the mother landed on the bonnet of the car and there was no doubt the car was scratched. To what extent that was deliberate is just something I cannot say.
The maternal grandmother made an allegation as follows:
More recently, Ms Oram has disclosed to me that the domestic violence between her and Mr B was far worse than I had realised. I am aware that Ms Oram has photographs of her having a black eye and other injuries.[14]
[14] Maternal Grandmother’s affidavit paragraph 52
There is nothing about this in the mother’s material. No photographs were produced to me and I do not accept that evidence.
The maternal grandmother alleged that the father and Ms M fought a lot. I think the mother might have made some mention of that as well and the maternal grandmother was concerned there might be family violence in that relationship. There is no evidence to support those allegations. I do not accept the maternal grandmother’s evidence about what she allegedly witnessed and I do not accept that it is open to me to make a finding that there is violence in the father’s relationship with Ms M.
I must consider whether there are any family violence orders.
An ADVO was made in 2012 after the father kicked in the door. Discussing that further will not help me.
I must consider whether it is preferable to make the order that would be least likely to lead to the institution of further proceedings.
That is an important issue in the case but I will discuss it in the conclusion.
I must consider any other fact or circumstance the Court thinks is relevant.
I have already covered everything in discussing the other particular headings.
I now return to the primary considerations and they are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Section 60CC(2A) says that:
In applying the considerations in sub-section (2), the Court has to give greater weight to the consideration in paragraph (2) (b).
In other words I have to prioritise the need to protect the children over the benefit to them of having a meaningful relationship with both of their parents.
The orders sought by the father would mean that the children would have no relationship with their mother; not only would they not have a meaningful relationship with her they would have no relationship with her at all.
It does not reflect badly on the father that he sought those orders. There is nothing to suggest that he has a history of wanting to take the children away from the mother, in fact the reverse is the case. He probably should have stepped in a little earlier to protect the children. In my view he has made that proposal only because he has become increasingly aware of the issues to do with the mother’s drug use and immersion in the drug culture and because of concerns about her undermining the children’s relationship with him. I consider that he proposed those orders only because he is at the end of his tether.
The father set out in some detail in his affidavit why he had come to the view that the orders he sought were necessary to protect the children. He said as follows:
At that time I was of the opinion that it was in the Children’s best interests to return to live with Ms Oram. Whilst this decision played heavy on my heart, I honestly thought I was doing the right thing. I could see that the Children missed their mother dearly and I believed that Ms Oram was making an effort to sort out her addictions and behaviour. It was only when material was subpoenaed in the course of these proceedings that I became aware that Ms Oram had not been working to deal with these issues, including not completing her post incarceration program. It was at this time that I realised that living with Ms Oram was not safe and in the best interests of the Children. I already held concerns about Mr B’s influence on the children and their environment, and this steeled my resolve to seek that the Children be removed from Ms Oram’s care as I did not believe they were safe. As Ms Oram’s DUI charge had come from a period when she was still living with Ms McCreadie, I am also concerned about Ms McCreadie’s ability to provide for and care for the Children and their safety.
I remained (and continue to remain) concerned as to the potential of Ms Oram relapsing into her previous addictions.[15]
[15] Paragraphs 66 and 67 of the father’s Affidavit filed on 22 February 2018.
The father’s proposal would mean that the children would not have a meaningful relationship with both of their parents, only with him, but s.60CC(2A) says that the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence has to take priority and there is abundant reason to be concerned that the children would not be safe in the mother’s unsupervised care at present.
I cannot be satisfied that she has overcome her drug problem. I cannot be satisfied that she has ceased to be immersed in the drug culture. I cannot be satisfied that she will continue with the rehabilitation she is currently undertaking.
There is nothing to suggest that the children would be at any physical risk of harm in the maternal grandmother’s care. My concern about the maternal grandmother, and it is also a concern about the mother which is relevant to the primary considerations, is that they may undermine the children’s relationship with the father if they spend regular, unsupervised time with the children or even have regular unsupervised telephone communication with them.
I am satisfied that the mother either orchestrated what happened in late January 2018 or was knowingly concerned in it and in doing that she messed with these children’s heads; it was cruel.
The affidavits of both the maternal grandmother and the mother are full of complaints about the father including complaints about his choice of school, the food he gives the children, the children’s health, the children’s alleged loss of weight and the children being unfairly treated vis-à-vis [A]. There are page after page of complaints about the father’s parenting of these children.
I am particularly concerned about several references in the maternal grandmother’s affidavit to [Y] sitting on the father’s lap or to the father being in the bathroom when she is showering. There is not the slightest evidence to suggest that the father has any perverse inclinations and it is deeply and gravely concerning that the maternal grandmother refers to those matters in her affidavit not once but on at least three occasions.
If the children spend regular unsupervised time or have regular unsupervised telephone communication with the mother or maternal grandmother, there is a risk of complaints emerging or the children’s relationship with the father and Ms M being undermined and the children becoming unsettled.
Parental Responsibility
Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them.
That only potentially applies to [X] because she is the only child who is a child of the parties and in relation to her the presumption does not apply because the father undoubtedly committed an act of family violence.
I have as a starting point the mother and father having shared parental responsibility for [X] in the absence of an order and the mother and Mr C (although he does not figure in this at all) having shared parental responsibility for [Y] as they are the parents of that child.
I have to consider whether I should make a different order about parental responsibility.
The mother proposed that she and the father have equal shared parental responsibility for both children and the father proposed that he have sole parental responsibility.
The maternal grandmother said that she wanted to be involved in the mix but I will start by saying that I cannot see how there would be any benefit to the children in the maternal grandmother sharing parental responsibility.
As far as the parents are concerned the mother and father do not have a good relationship. The mother was unable to co-operate with the father about a choice of school for the children in 2018 and she was involved in a serious attempt to deceive him in January 2018. She has unrealistic ideas about the school the children should attend. I commented during submissions that it broke my heart to hear the mother say when she was challenged about whether she could afford to pay school fees that she had some jewellery she could sell.
These parents cannot afford private school fees for the children and the sooner they face up to that reality the better for the children. One of the things the mother is reported to have said to both the family consultant and to somebody from probation and parole was that she commenced selling drugs so that she could pay the children’s school fees.
The parents have no capacity to reach an agreement. The mother has no respect for the father. She has no respect for his choices. Her attitude to the father is very poor and if an order is made for the children to live with the father, the only appropriate order would be that he have sole parental responsibility for them. I do not accept that he is likely to misuse it.
If the children live with the mother, which is her proposal, or with the maternal grandmother, then obviously it would not be appropriate for the father to have sole parental responsibility. In those circumstances I would have to consider some sort of shared parental responsibility because given my grave concerns about the mother and the maternal grandmother I could not consider giving either of them sole parental responsibility for the children and having the father cut out of a say.
Conclusion
The recommendations in the family report are clear. The family report writer said as follows:
If the court finds that the children are not at risk of harm in the care of the father, then it is recommended that he has sole parental responsibility for the children, and that they immediately live with him. It is recommended that if the mother is to spend time with the children, that such time be supervised, and it is recommended that the children spend time with the maternal grandmother on one day per month.
Recommendations in a family report always deserve consideration because family reports are written by skilled people who are not emotionally involved in the matter. However, I always have to make my own decision taking the family report into account as a piece of evidence. Also in this particular case as in other cases, I have to factor in any events which have occurred after the report has been released.
The recommendations in the report deserve considerable weight in this case because the report is extremely thorough. The opinions expressed in it are properly underpinned by evidence and evidence which is congruent with the findings that are open to me and that I have made. Nevertheless I have to make my own decision taking into account the report, the other evidence I have heard and of course the incident that happened at the end of January 2018.
There are some concerns about the father. He has his own history of drug use. He is currently living in a two-bedroom home with three children and two adults. There have been some issues with Ms M disciplining the children and the father was slow to step up to accepting full-time responsibility for the children. It would be a real concern for these children if I made an order that they lived with the father and the father let them down in the future.
However there is no evidence that the father is currently using drugs and no evidence that he has done so for some little while. There is no evidence that he has an alcohol problem and no evidence that there is any family violence in his relationship.
Ms M took on board and was very responsive to the complaints that were made about her smacking the children and she did a course or courses following on that issue being raised.
The father is doing a very good job looking after the children. He does not have involvement with the police and have police calling at his home and conducting raids. He does not have recent criminal convictions and I am satisfied that he is more than capable of providing well for the children and that they will be safe in his care.
The mother has historically been the children’s primary carer and that is a significant factor for the children. The children might have a little bit of difficulty adjusting to a long-term change of their residence no matter how well they get on with the father and how much they love their little brother. It is a big change for them at the age of 7 and 5 to commence living primarily with a different adult and they told the family consultant that their preference was to live primarily with the mother.
However when I have the option of putting the children with the father, I could not possibly consider making an order that the children live with the mother.
The mother’s life has been chaotic since she left school in Year 8. She has a number of criminal convictions. She was using drugs in the 2015/2017 period and I consider it highly probable that she was using ice much more extensively than she is willing to admit.
The mother was dealing cannabis until she was caught in July 2015. She expresses no remorse for that. She has no insight into what that meant for the children and the potential and actual harm that she was exposing the children to in dealing drugs and using ice.
The mother had another conviction for driving with methamphetamine in her system after she was released from prison and she did not commence any counselling in relation to drug use until after an order was made for the children to live with the father.
The mother has her priorities totally skewed in terms of what is important for these children. She seems to think that if she can afford to pay for the School D school fees then it doesn’t matter that the children are exposed to drug use, drug users and people like Mr R.
The mother did not stop associating with Mr B, who has an appalling history, until the Court made an order for the children to live with the father.
In circumstances where there is absolutely no evidence to support a finding that the mother has turned a corner in relation to her lifestyle and drug use or has begun to develop any insight into the harm she has done to her children, I could not possibly consider making an order that the children live with her.
I also could not even remotely consider making an order that they live with the maternal grandmother. She is hostile to the father and would be highly likely to undermine their relationship with him. I will refer in my settled reasons to a passage in the evidence about her being asked about her attitude to the father. She is totally an apologist for the mother; her comment that someone can be a good parent and sell drugs is gravely concerning.
In terms of the three candidates for a “live with” order, the only appropriate order is an order that the children live with the father and I can only hope and pray that no matter what difficulties he faces in the future that he sticks with it and keeps the children with him.
The difficult issue in the case is what order to make about the children spending time with the mother and the maternal grandmother.
One of the additional considerations is whether the Court should make the order least likely to lead to future proceedings and it is always preferable if matters do not have to come back to Court but there is a considerable risk that no matter what order I make that is likely to happen.
If I was going to order that the mother spend time with the children the only order I could consider making would be an order for supervised time. The mother has only recently engaged in drug and alcohol counselling. The dexamphetamine prescription raises a red flag as does the dilute creatinine result. She has no insight into the harm she has caused the children. I have no evidence that she has ceased to associate with the people she was previously associating with.
There is also a serious risk that if the children spent unsupervised time with the mother she would undermine their relationship with the father and unsettle their placement with him. I am concerned about the plethora of allegations about the father in her affidavit. I am very concerned about the incident in late January 2018.
If I was going to order time I could only consider ordering supervised time and there are difficulties with that kind of an order. One is that supervision may not be available for any length of time. I cannot be sure if Suburb A Children's Contact Centre will continue to provide supervised time after final orders are made and if so for how long. If I make an order for supervised time there is a high risk that the matter may come back to Court because no supervision is available and people want the Court consider some other option.
The Independent Children’s Lawyer proposed that I order supervised time for six months, then order unsupervised time during the day and then after six months order unsupervised overnight time.
The problem with that approach is that there is nothing to indicate that after six months the mother’s situation is going to be any different. I could only make that kind of an order if it was hedged in with a whole lot of conditions about things the mother had to do and evidence she had to provide about her counselling and drug use prior to unsupervised time commencing.
It would be difficult to draft such orders and I cannot be sure that the mother is going to arrive at a point where she can satisfy the Court that it is safe for the children to spend unsupervised time with her.
Six months is an arbitrary time period. There is no reason in this particular case to suggest that after six months things are going to be different.
The other problem is that there is nothing to suggest that after six months the mother is going to have a different attitude to the father and that the risk of her undermining the children’s relationship with him will be reduced.
If I order supervised time and the mother wants to move to unsupervised time she will have to bring an application and provide evidence that things are different, but there is a real issue in this case about whether I should even order supervised time or whether I should do what the father suggests and order no time and I am really very conflicted about what to do in that regard.
I indicated during submissions that often the easy part of these cases is making findings about various issues. The difficult part is coming up with appropriate orders and I have reflected long and hard on what I am going to do with the matter.
There is some force in an argument that a “no time” order would be good. It would be a clean break for the father and the children; they would be out of the Court system. There would be nothing to unsettle the children in the immediate future.
The problem is that it would not necessarily be the end of Court proceedings because the mother could still bring the matter back to Court if she felt that she was able to demonstrate that things had changed and she was a different person and had different attitudes. No order I can make is certain to prevent this matter coming back to Court.
I have reflected long and hard on what I should do and although the idea of a “no time” order has some attraction because it would put an end to the father having to deal with the mother and with the complaints she makes about his parenting and with the children being unsettled after a visit or a telephone call; although it would achieve those things it would be very sad for the girls if they had no relationship with their mother. They are seven and five and have lived with her for most of their lives. I am not convinced that bringing an abrupt end to their interaction with their mother today is in their best interests.
I am concerned about whether any order I make is going to stick because the only order I can make is supervised time. I am not going to order that it occur once a week or once a fortnight. What I propose to do is to order that there be supervised time for two hours once a month either at Suburb A Children's Contact Centre or through some other means agreed between the mother and the father.
It is not ideal to make that kind of an order but it is all I can do.
I have reflected on the issue of telephone communication. To date it has been quite disruptive for the children, this having their iPads and taking them to bed and being able to talk to the mother whenever they feel like it on their iPads. It has also led to many complaints being made by the mother.
I am going to take again a little bit of a risk though and order that the mother may have telephone communication with the children once each fortnight and that the father may terminate the call if he feels that anything unsettling or unsuitable is being said to the children.
In summary I do not want to just abruptly end these children’s relationship with their mother tempting though it is to do that because it would remove some conflict and difficulty in people’s lives. I have also heard family consultants say that sometimes it is better to make a “no time” order in these circumstance because it causes the other party to realise that they have to make changes in their lives or they are not going to see their children.
I am not going to make an order that the maternal grandmother have telephone communication with the children. That has the potential to unsettle the children or give rise to the maternal grandmother making complaints. I am going to make an order that she can attend the supervised visits with the mother once a month if she wishes. I am not going to make an order that she can attend at the children’s schools.
The maternal grandmother is not a force for good in these children’s lives at present. She does not support the father’s relationship with the children. She is not able to protect the children from the mother by prioritising the children’s needs over the mother’s and I am not satisfied that she should be given much of a role in the children’s lives at the moment.
The family consultant said these children needed a period of peace given the many upheavals they have faced in the past two years. I agree with that and that is why I have seriously considered making the “no time” order. But making that order will not prevent the matter coming back to Court. An order for long term supervised time may well result in the matter coming back to Court because there may be problems with the supervision or the mother may feel that she is able to demonstrate that things have changed and that the court should consider supervised time but an order for no time could also result in the matter coming back to court and on balance I consider that it is better to make an order for supervised time than to abruptly sever completely the children’s relationship with the mother.
I will come to the orders I am going to make with precision in a moment but in case the matter comes back to Court I want to note that father has gone through these proceedings known as Mr Lambert which is apparently his official name. He was born Mr H. As I understand it from his evidence his mother re-partnered with a man called Lambert and changed her name when he was a child. He grew up as Lambert but he would prefer to be known as Mr H.
He and Ms M have called their son [A] and the father uses Mr H in some of his email communication with the grandmother. He said that he intended to change his name to Mr H in the future.
I want to note that in the judgment in case the father names himself as Mr H in future proceedings and there is some suggestion that there is something untoward or suspicious about it.
I intend to order that the mother’s time with the children be supervised unless otherwise agreed between the parties in writing. I do that with some trepidation given what happened in January 2018 but sometimes people do not need to come back to Court because they agree that something different should happen for their children. The father is not implacably opposed to the children having a relationship with their mother. If a time arrives where she is able to demonstrate that things are different for her I do not believe that he would stand in the way of alternative time occurring. Whether that is ever likely to happen I don’t know but I am going to put that order in there.
I intend to order that the mother not attend the children’s school unless otherwise agreed by the father in writing. Schools are often a safe haven for children. The last thing they want is for their parents to come into conflict there or for somebody to turn up drug-affected or for there to be any difficulty and that is the reason I am going to make that order.
I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 May 2018
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Family Law
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Civil Procedure
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