McLeod and Needham and Anor
[2015] FCCA 2808
•1 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCLEOD & NEEDHAM & ANOR | [2015] FCCA 2808 |
| Catchwords: FAMILY LAW – Parenting – child aged 8 living with her paternal grandmother in (omitted) – mother seeking an order that the child live with her in (omitted) – where the father took the child away from the mother when the child was a baby and subsequently ceded care of her to the paternal grandparents – where the child spent no time with the mother from soon after her birth until she was five years of age – where the mother has slowly built a relationship with the child since the proceedings commenced – intergenerational transmission of violence in the paternal family – order made that the child live with the mother. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA |
| Applicant: | MS MCLEOD |
| First Respondent: | MR NEEDHAM |
| Second Respondent: | MS E NEEDHAM |
| File Number: | NCC 2880 of 2012 |
| Judgment of: | Judge Terry |
| Hearing dates: | 28, 29, 30 September & 1 October 2015 |
| Date of Last Submission: | 1 October 2015 |
| Delivered at: | Moree |
| Delivered on: | 1 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smith |
| Solicitors for the Applicant: | Women’s Legal Service NSW |
| The First Respondent: | In person on Day 1 thereafter no appearance |
| Counsel for the Second Respondent: | Mr Wilkinson |
| Solicitors for the Second Respondent: | Haddon Kemp Solicitors |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting Orders are discharged.
The child X born (omitted) 2007 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
For a period of twelve (12) months the child shall spend supervised time with the paternal grandmother at Interrelate Children's Contact Service (omitted) (“Interrelate”) on dates and at times to be agreed between the mother, the paternal grandmother and Interrelate and failing agreement as directed by Interrelate as follows:
(a)on one occasion in each of the Term 1, 2 and 3 New South Wales public school holiday periods on weekends to be agreed between the mother, the paternal grandmother and Interrelate;
(b)on two (2) occasions during the Christmas school holidays being the first and fifth weekends.
The paternal grandmother is to confirm with Interrelate no later than fourteen (14) days prior to each scheduled visit whether she intends to attend the visit and if Interrelate does not confirm to the mother that this notice has been given the mother will not be required to travel to (omitted).
Following the end of supervised time pursuant to Order 4 the child shall spend time with the paternal grandmother in (omitted) for the next twelve (12) months on two (2) consecutive days in the Term 1, 2 and 3 New South Wales public school holidays and on two (2) consecutive days on two occasions during the Christmas school holidays from 10:00am until 4:00pm each day and failing agreement these times shall occur on the first weekend of the Term 1, 2 and 3 New South Wales public school holidays and the first weekend and the fifth weekend of the Christmas school holidays PROVIDED THAT the time shall only occur if the paternal grandmother gives the mother fourteen (14) days notice by telephone of her intention to exercise the time.
At the expiration of 24 months from the date of these Orders the paternal grandmother may spend unsupervised time with the child in (omitted) for two (2) consecutive days in each of the Term 1, 2 and 3 New South Wales public school holidays and on two (2) consecutive days in the Christmas school holidays being from 10.00am on first day until 4.00pm on second day and at such additional and alternate times as is agreed between the mother and the paternal grandmother PROVIDED THAT the time shall only occur if the paternal grandmother gives the mother fourteen (14) days notice by telephone of her intention to exercise the time.
NOTING THAT the paternal grandmother is restrained in general from allowing the father to have contact with the child the paternal grandmother is to particularly note that she is not permitted to allow to the father to spend any time with the child on any occasion when she is spending unsupervised time with the child in (omitted).
To implement the child’s time with the paternal grandmother referred to in Order 4 herein, the mother or her nominee will deliver the child to Interrelate at the commencement of the time and the mother or her nominee will collect the child from the same location at the conclusion of the time AND both the mother and the paternal grandmother must:
(a)contact Interrelate within fourteen (14) days of the date of these Orders to arrange an appointment for assessment for suitability;
(b)attend the assessment;
(c)comply with any appointment made by Interrelate;
(d)comply with all reasonable rules of Interrelate;
(e)comply with all reasonable requests or directions of the staff of Interrelate.
In the event that Interrelate is only able to offer supervised time at a frequency that differs to what is proposed in Order 4 above, then the time under supervision shall occur at the frequency which can be provided by Interrelate.
The mother will be responsible for any fees nominated by Interrelate for the provision of its service during school holiday periods.
If at any time after the parties complying with its intake procedure Interrelate is unable or unwilling to provide supervision, then the child will spend supervised time with the paternal grandmother as determined by the mother.
The paternal grandmother may have telephone communication with the child each Thursday between 6.00pm and 7.00pm and for that purpose the mother is to facilitate the child telephoning the paternal grandmother’s mobile telephone at the commencement of the telephone time.
The paternal grandmother is at liberty to communicate with the child by sending letters, cards and gifts to the mother’s postal address and the mother must ensure that any communication from the paternal grandmother is provided to the child.
The child shall spend no time with and have no communication with the father.
The paternal grandmother is hereby restrained and an injunction is granted restraining her from bringing the child into any form of contact with the father or allowing any other third person to do so.
Each party is restrained and an injunction is granted restraining them from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The mother is restrained and an injunction is granted restraining her from consuming illegal drugs or prescription medications not as prescribed, during any period that the child is in her care.
The mother is restrained and an injunction is granted restraining her from causing or allowing the child to come into contact with any third persons whom she believes to be under the influence of illegal drugs.
The mother must as soon as reasonably practicable notify the paternal grandmother of any medical emergency, serious illness or serious injury suffered by the child warranting treatment by a third party.
In the event that the paternal grandmother requests copies of any of the child’s medical and/or school reports from her school or treating medical practitioners, then the mother must provide a signed authority to those service providers for the provision of the same and any further reports which are subsequently produced.
The mother and paternal grandmother must keep each other informed of their postal address and any available telephone numbers and will advise the other in writing of any change thereto within seven (7) days of such change occurring.
The Independent Children’s Lawyer is to forthwith explain these Orders to the child and if appropriate, the reasons for the making of these Orders.
Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these Orders.
THE COURT NOTES THAT:
A.The parties agree that the child’s paternal aunts, Ms S (Ms S), Ms M and Ms A as well as X’s cousin A are permitted to attend the child’s visits with the paternal grandmother referred to in Order 4 herein.
B.The parties agree that the child’s paternal aunts, Ms S (Ms S), Ms M and Ms A as well as the child’s cousin A are permitted to speak on the telephone with the child during the child’s telephone contact with the paternal grandmother referred to in Order 13 herein.
C.The mother intends to facilitate the child attending upon a general practitioner for the purposes of obtaining a referral to a Child and Adolescent Psychologist (or another suitably qualified mental health practitioner) at the Child and Adolescent Mental Health Service (omitted) (‘CAMHS’).
D.Upon the mother obtaining the referral the mother agrees that she will:
a.Contact CAMHS and arrange an appointment for the child;
b.Provide CAMHS with a copy of the Family Report of Ms K dated 5 May 2015;
c.Facilitate the child commencing therapy in accordance with the directions of CAMHS including arranging attendance of the child as directed by CAMHS and until CAMHS recommends in writing that the child’s engagement in therapy is no longer required.
E.The mother agrees that she will provide a sealed copy of these Orders to the child’s general practitioner to assist in obtaining the referral.
F.The mother agrees that she will attend with the child upon a general practitioner for the purposes of obtaining a referral to an orthopaedic specialist and that upon the mother obtaining that referral the mother will:
a.Contact the orthopaedic specialist and arrange an appointment for the child; and
b.Follow all directions of the specialist, including treatment recommendations and the child’s attendance, as directed by the specialist until the specialist recommends in writing that the child’s attendance is no longer required.
G.The mother intends to arrange for the child to have a dental check and thereafter follow any treatment recommendations made by the dentist.
H.The mother intends to attend upon (omitted) Health at (omitted) for the purposes of obtaining a referral to a psychiatrist for assessment of her mental health and will comply with any treatment recommendations made in relation to any diagnosed mental illness and will continue to attend for treatment until such time as the psychiatrist recommends in writing that the mother’s attendance is no longer required.
IT IS NOTED that publication of this judgment under the pseudonym McLeod & Needham & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2880 of 2012
| MS MCLEOD |
Applicant
And
| MR NEEDHAM |
First Respondent
| MS E NEEDHAM |
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.
The proceedings I have heard over the last four days involve a child X who is eight years old. The issue in dispute is where X should live and the dispute is between the mother, who lives in (omitted), and the paternal grandmother, who lives in (omitted).
The father is a party to these proceedings but he does not live with the paternal grandmother and the child and he did not file any documents for the trial. He turned up on the first day and was told that he was allowed to take part despite not having filed any documents. He stayed for that day and told me that he supported his mother’s application but he did not return after the first day.
The family situation in this matter is complicated.
The mother and father formed a relationship when the mother was 17 and the father 20. They met in (omitted) and lived mainly in (omitted) during the first part of their relationship.
The mother said that the relationship was characterised by some physical violence and by coercive and controlling behaviour by the father. She described it as mental abuse. For reasons which I will give in more detail later, I am satisfied that her allegations are true.
The mother fell pregnant to the father. Just before she was due to give birth she returned to (omitted) where her family live and the mother and father’s first child, Y, was born in (omitted) on (omitted) 2004.
The mother took Y to (omitted) and to (omitted) on three occasions to see the father and paternal grandparents. The visits were brief and were marked by some domestic violence perpetrated by the father.
In 2006 the father travelled to (omitted) and the parents rekindled their relationship. When the mother was asked in cross-examination why she allowed this to occur and why she continued a relationship with someone who treated her the way the father did, she said that he was her first boyfriend and she loved him. This is entirely credible; people make these kinds of decisions.
The mother fell pregnant again and she was very conflicted about this second pregnancy. She said in cross-examination that she was happy she was having a girl but was very unhappy in her relationship with the father and as a result felt quite conflicted about giving birth to the child.
X was born on (omitted) 2007 and there is no dispute that the mother did not cope very well after X was born.
X had to be airlifted to Adelaide for treatment soon after she was born. The paternal grandmother is of the belief that the mother did not go to Adelaide to be with her but this is not correct. The father went on the plane with X and the mother went down by road.
When X came back to (omitted) the mother was still not coping and when X was about three or four months old, although it is difficult now to put an exact date on it, the father took X with the mother’s agreement and left (omitted).
The paternal grandmother holds to the belief to this very day that the mother gave X up to the father permanently. However the paternal grandmother was not present during any conversations between the father and the mother and the father did not give evidence.
I am concerned about the subsequent actions of the father and paternal grandparents. They took X to Queensland, to places where the paternal grandmother conceded during cross-examination the mother could not have found them. It gives rise in my mind to a concern that what happened was that the father in fact stole X away, because the mother’s evidence was – and I have no reason to doubt it – that she thought that the father was just taking X for a little while to give her some respite.
Y remained in (omitted) with the mother. The mother said that the father was good with Y in (omitted) but the father did not offer to take Y when he took X and since the day he left (omitted) he has not seen Y. At the family report interviews he made it clear that he had no interest in seeing him and Y made it clear that he did not want to see the father.
The paternal family have never expressed any interest in seeing Y either and when pressed about this in the witness box the paternal grandmother said that it was because the paternal family were not sure if Mr Needham – that is what they call the father – owned Y; in other words, were not sure if he was Y’s father.
So Y remained with the mother in (omitted) and X went with the father and five years passed during which the mother did not see X.
For four of those years the paternal grandparents and the father were in Queensland, first in (omitted) and then in (omitted). At some point – it seems to have been in about 2011 – they returned to (omitted) and they have lived there ever since. Also at some point, and it is unclear exactly when this occurred, the paternal grandparents became X’s primary carers, although the father was always around.
It is highly regrettable that five years passed in which the mother spent no time with X. The paternal grandmother conceded that as X became older and began to talk and as all children do started to want to call someone Mum, the person she chose to call Mum was the paternal aunt, Ms M. Nobody told X about the existence of Ms McLeod and prior to the commencement of these proceedings X would not have recognised her mother if she had seen her.
The mother made some desultory attempts to find out where X was during that five year period but she did not make very strenuous efforts and at least in the early part of those five years she was struggling with her own issues. She was drinking too much, and there was a period when the maternal grandmother and step-grandfather took over the care of Y. The mother was struggling with alcohol abuse and she began using cannabis. She made some desultory attempts to try to find X but they certainly were not strenuous attempts and they went nowhere.
There was even an occasion when the mother came to (omitted) for a funeral but did not make contact with X. She said that she was unable to and given what the paternal grandmother said in the witness box about being in Queensland for several years, perhaps the father and paternal grandparents were not in (omitted) at the time.
In any event the mother was struggling with her own demons. She did not see the child. However gradually over time the mother got her life back on track. She sought assistance for her depression and anxiety, she obtained a job and in due course she bought a house in (omitted) subject to a mortgage and re-partnered with Mr C.
In mid-2012 the mother discovered that the father was in jail and that came about because the Child Support Agency contacted her and told her that she did not need to pay child support any more.
Upon receiving this news the mother applied to the Local Court in Broken Hill for a recovery order, naming the father as the other party. The Local Court made the order ex parte.
Armed with the recovery order the mother went to (omitted) to collect X. The police contacted the paternal grandparents who agreed to bring the child to the police station but they did not do so, rather the paternal grandmother took the child to (omitted) and hid her.
The paternal family sought legal advice and not very long afterward the recovery order was discharged and an order was made in the Local Court at Wentworth for the mother to spend time with X during the day in (omitted).
The mother came to (omitted) in September 2012 to spend time with X in accordance with this order. It was her evidence that the visits went well and she conceded during cross-examination that this approach of X being slowly re-introduced to her had been an appropriate way to proceed. However matters ran off the rails at the end of the court ordered time because on the last day, instead of returning X to the paternal grandparents, the mother took her back to (omitted).
The mother said that she was encouraged to do this by the police who insisted that the recovery order was still in force. I have no particular reason to doubt her evidence but it was an ill-advised action. It was swiftly followed by the paternal grandparents applying to be joined to the proceedings and applying for orders that X be returned to (omitted) and those orders were made.
An order was also made transferring the matter to the Federal Circuit Court at Newcastle and subsequently orders were made with a view to progressing X’s reintroduction to the mother.
Regrettably three years have passed since that reintroduction process commenced and the process has not always run smoothly. Visits have been difficult to arrange because of distance. The parties live, as the paternal grandmother’s counsel pointed out this morning and as I checked myself last night, 1000 kilometres apart and none of them are in a particularly strong financial position.
There was a period in late 2013 when the mother appeared to the court to lose interest in the proceedings, although I now accept that things were not as they seemed and from February 2014 onwards the mother has been consistently pursuing orders for X to live with her.
X has seen the mother on a number of occasions during school holidays since 2012. She has formed a bond with her and I rely on the family report as evidence for that. She has also been reintroduced to her brother Y, and has met her younger brother, Z, who is 18 months old and she has also met the maternal grandmother and step-grandfather who live in (omitted).
The parties’ applications
The mother sought an order that X live with her in (omitted) and become part of a family unit with her, Mr C her partner of seven years, Y and Z. X would in these circumstances also have the opportunity to spend regular time with extended members of the maternal family.
The mother is 30. She is in a good place in her life. She is employed, she is studying and she has no issues with drugs and alcohol. It was her case that it was far preferable for X to be with her given that there were concerns about what was happening in (omitted); the paternal grandmother was ill and frail and, on the mother’s case, may be relying on X as a crutch.
The mother’s proposal at the commencement of the hearing was that X should spend time with the paternal grandmother in (omitted) during school holidays. However her position had changed by the end of the trial after she heard all the evidence which emerged and in the end she sought the same orders as were proposed by the Independent Children's Lawyer, namely that the child should spend supervised time with the paternal grandmother in (omitted) for the first 12 months. What was to happen after that was a bit of an issue.
The paternal grandmother, who is now the only respondent other than the father because the paternal grandfather sadly died in (omitted) 2015, sought orders that X live with her. She remains adamant that the mother did not bond with X as a baby and did not want her because she was too white. It was her case that X was embedded in (omitted) and was very attached to her Nan and that it would be a huge wrench for X if she was taken away and put with her mother.
The paternal grandmother agreed that she was not entirely well but said that she had the support of her daughter Ms S who lived with her and it was her view that if anything happened to her there were other family members who could take over the care of X, including Ms S. It was her case that X was closer to Ms S’s daughter A who is two years apart from her in age than she was to Y.
The paternal grandmother pointed out too that while all sorts of negative things could be said about the father, her son, the mother’s partner also had criminal convictions. He is a cannabis user who has had regular brushes with the law and it was in effect the paternal grandmother’s case that to use the vernacular if the child was taken from the paternal grandmother and put with the mother it would be out of the frying pan into the fire as far as having a male role model who had criminal convictions and used drugs was concerned.
Even though the paternal grandmother is aware that the father is currently on charges of assaulting his domestic partner and even though the paternal grandmother believes that the father is using ice, she has been allowing him to spend time with the child whenever he wants. The paternal grandmother and Ms S both indicated that they were either supportive of this continuing or powerless to stop it or both. The paternal grandmother did not propose that there be any restraint on the father spending time with the child in the future.
At the end of the trial the paternal grandmother’s counsel said that while the paternal grandmother did not consent to the child living with the mother she realistically accepted that a change of residence might be ordered. He said that if this did happen the paternal grandmother sought an order that the child spend time with her for one week during each school holiday period with changeover in (omitted) and with no restraint on the child being brought back to (omitted) and obviously with no supervision.
The Independent Children’s Lawyer’s proposal at the end of the hearing was that the child should live with the mother, the mother should have sole parental responsibility for her and the child should spend no time with the father and should spend time with the paternal grandmother supervised at (omitted) Children's Contact Centre for one year.
The Independent Children’s Lawyer said that it was difficult to be sure what time with the paternal grandmother might be appropriate time after that year but it was her position that if an order was made for unsupervised time it should be for unsupervised time during the day and that the time should only take place in (omitted).
Documents relied on
The mother relied on her affidavit filed on 9 September 2015 and the affidavits of the maternal grandmother Ms F, the maternal step-grandfather Mr D and her partner Mr C all filed on 4 September 2015.
The paternal grandmother relied on her affidavit filed on 24 September 2015 and the affidavits of her daughters Ms S and Ms A filed on 25 September 2015.
A Family Report was prepared by Ms K, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined except for Ms A. She was not required and her affidavit was admitted unchallenged but whether I can give weight to its contents will depend on other findings I make in the matter.
I want to comment briefly on the witnesses.
There were some issues with the mother’s evidence. It was a little bit concerning that she had no memory of some quite significant things which occurred between 2005 and 2010. Whether that is due to stress or alcohol consumption at the time I cannot be sure, but I did not form the view that the mother was saying that she could not remember things because she did not want to admit to bad things that had happened rather I formed the view that she genuinely could not remember. She said that she did not remember some things which would actually have helped her case, things relating to family violence mentioned in police records.
Apart from this the mother was a generally satisfactory witness.
Mr C did not attend the family report interviews but he gave evidence before me. He was pleasant enough in the witness box. He appeared reasonably frank but I am a little bit concerned that he may have minimised the extent of his cannabis use.
The maternal grandmother and maternal step-grandfather were very good witnesses and they were the same in witness box as they were with the Family Report writer who said as follows in her report:
The maternal grandparents, Ms F and Mr D, were quietly spoken and congruent with the issues that had been raised by the Court and the reasons for this report. They focussed on these issues and were not focussed on the side issues. They demonstrated that they were child and family focussed and supported the mother’s decision to have X returned to her care. They demonstrated empathy towards Y, X and their half sibling Z. They also demonstrated that they supported all members of their family.[1]
[1] Family Report, paragraph 63.
I cannot place weight on a good deal of the evidence in the affidavits of the paternal grandmother and Ms S.
The paternal grandmother signed her affidavit with initials but there was no jurat indicating that she had not read it. At the beginning of her cross-examination she was asked about her reading ability by the mother’s counsel and she did not admit that she had a problem. During cross-examination she said that she was reading the child’s school reports.
However when the paternal grandmother was asked later on by me, because of increasing concern about conflicts between what was in her affidavit and the answers she was giving during cross-examination whether she could read she admitted that she could not.
The matter was stood down so that the issue could be considered. Subsequently the paternal grandmother’s solicitor went into the witness box and gave evidence that she had prepared the affidavit and had spoken to the paternal grandmother on the telephone and read the affidavit to her and made changes. She said that she then faxed the affidavit to her firm’s (omitted) office and the paternal grandmother signed it there.
I was satisfied after hearing this evidence that it was appropriate to allow the paternal grandmother to rely on the affidavit, but my misgivings about the literacy issue are such that I do not intend to draw adverse conclusions against the paternal grandmother simply because her answers in cross-examination differed from what was in her affidavit.
However there were numerous contradictions between the paternal grandmother’s oral evidence and what was in documents tendered during the hearing. For example, the paternal grandmother was adamant during cross-examination that X was doing all right at school and I took some quite extensive notes of what she said about that. She was adamant about that even though she said she was not sure how X was doing in English and Maths, but the documents confirm otherwise about X’s educational achievement.
The fact that there were many contradictions between the paternal grandmother’s oral evidence and the contents of tendered documents is to me a bigger concern than contradictions between her oral evidence and the contents of her affidavit.
Ms S also said in her affidavit that X was doing well socially and academically at school but she admitted that she had not read the child’s school reports. When I asked her why she had not read them she said that she did not even read her own daughter’s school reports. She could not explain why she did not do so and she admitted that she was aware of at least one incident of X being bullied at school recently.
So again there were conflicts between what Ms S said in the witness box and what the documents showed and obviously also between what she said during cross-examination and what was in her affidavit.
I have not read any of the documents filed in this matter by the father. I might have done if he had continued in attendance but he did not come back after Day 1. He did not comply with an order to file a trial affidavit and I have not read his earlier material.
The criminal records of the father and others
An issue which looms large in this case is the fact that apart from the maternal grandmother and the mother, all of the parties and extended family in this matter that I have had any dealings with have criminal convictions, and I think it is important to set out what they are.
The mother does not have any criminal convictions. She has had some involvement with the police, but it has mainly been as a victim. For example the mother and maternal grandmother called the police on one occasion when the mother was imprisoned in a motel during a visit with the father. There was evidence of the mother seeking help from the police when she was in (omitted) and of her being taken to a refuge but the mother does not have any criminal convictions.
The same cannot be said of Mr C, the mother’s partner. He has a number of convictions for break, enter and steal, a number of convictions for possession of prohibited drugs, a conviction for destroy and damage property and convictions for behaving in an offensive manner, goods in custody and having no driver’s licence.
Mr C’s last conviction was in 2008, seven years ago. However the last time he came to the attention of the police was in 2014 when he was stopped in a car with a group of friends at 3.45am and someone in the car, according to the police report, apparently had a syringe.
Mr C was cross-examined about that. He said that he and some of his friends were simply told to go home and that he knew nothing about the syringe. He was not charged with anything on that occasion.
There is a reference in the material to – now I am just going by memory here – to an AVO, I think being taken out for the protection of Mr C’s partner before he partnered with the mother.
However what is significant about Mr C’s criminal record is the absence of convictions for assaults or anything like it and in the context of this particular matter that is relevant. Mr C showed no sign of aggression in the witness box. He was a very calm witness.
The maternal grandmother has no criminal record.
The maternal step grandfather has some convictions mainly between 1988 when he was 19 and 1997 when he was 28. He has convictions for a number assaults and one assault occasioning actual bodily harm. However he has had no convictions for nearly 20 years save possibly for one for not quitting licensed premises in 2002 but it is hard to be sure if that incident actually resulted in a conviction. He is employed by (employer omitted) as an (occupation omitted).
The maternal step grandfather has some concerning convictions but they are nearly 20 years old as far as anything to do with assault is concerned.
An issue was raised at the trial about the mother’s brother Mr M having threatened the mother with a knife. It does not appear that this resulted in a charge or a conviction. The mother and the maternal grandmother frankly admitted that it occurred. They both said that Mr M was a different person now. I have no means of assessing that but there was certainly no evidence that it was anything other than a one off incident. Serious enough, I might add, but one off.
So that is the situation on the mother’s side, and in my view it is significant that the mother has no criminal convictions, the maternal grandmother has no criminal convictions, all of Mr D’s criminal convictions are old and while Mr C has criminal convictions there is nothing in there of a violent nature.
The father has a lengthy criminal record and it is a very concerning one. It dates back to 1999 when he was 17, and he is currently on charges – if he has not been convicted – of domestic violence offences against a partner.
Commencing in 1999 the father has convictions for break and enter, behaving in an offensive manner, offensive language, assaulting police, and breach of recognizance and destroying and damaging property. There is a mid-range PCA offence, more destroy and damage property, more assaults, more destroy and damage property, intimidate a police officer, fail to leave licensed premises, more destroy and damage property, stalk, intimidate, harass, assault occasioning actual bodily harm in May 2012 in which case the victim was the paternal grandmother and on that occasion also contravening an ADVO. The father was sentenced to 12 months imprisonment for the 2012 offences.
The father has a very lengthy criminal record and it is not a situation where he has offended and then turned over a new leaf and is now a different person.
There are also numerous issues of concern in the subpoena material about the father; there are many occasions when the father has come to the attention of the police but it has not resulted in any charges.
On a couple of occasions this year for example there have been other issues with his domestic partner. On one occasion he was being verbally abusive to her in the street. She ran away. He chased her and luckily for her she ran into the police station. However the domestic partner did not want to press charges against him. So it is not just a case of the father having those convictions. He has also come to the attention of the police on many other occasions.
When the father was jailed in 2012, a report referred to him as “using heroin and oxycontin”; I think injecting both of those and using other drugs. The paternal grandmother believes that he is currently using ice, as does his sister Ms S. They both said that in the witness box.
The father also has a lengthy history of abusing alcohol. In some of his early convictions which resulted in release on a bond there is a requirement that he do drug and alcohol counselling.
The mother made many references in her evidence to the father’s abuse of alcohol while he was with her and there are many references in the subpoena material to him being drunk while X was in his care which if it has not resulted in actual harm to her has exposed her to risk of harm and it is simply exceptionally lucky that she has not been harmed.
On one of those occasions X was found outside a unit sitting on the floor holding a knife and the father was found intoxicated next door.
There was an occasion in (omitted) which the Independent Children's Lawyer referred to in submissions where the father was in a bar. I think X was three. He was holding the child. He was drinking, and the police, when they were called, had to prise the child out of his arms.
If the child has not been injured in the father’s care as a result of his alcohol consumption, drug use and violent criminal behaviour it is more the result of good luck than good management in my view.
The mother’s counsel made reference to an intergenerational cycle of violence and that is a highly relevant issue in this case, because the paternal grandfather Mr Needham senior also had a lengthy criminal record which commenced when he was 21.
The paternal grandfather had numerous convictions for offences of dishonesty, some break and enters, driving offences including drink driving offences, assaulting a female in breach of ADVO in 1988, also malicious damage at that time, breach of ADVO and assault in 1999, common assault and breach of ADVO in 2001, and on the last occasion at least, and possibly the one before that, the paternal grandmother was the victim. He had a conviction for assault police and resist arrest in 2001 and for assault occasioning actual bodily harm in 2004.
There is a little oddity in the paternal grandfather’s record because it is alleged he had a conviction for drink driving in (omitted) in January 2007. I suspect that might be his son, because if you have a look at the paternal grandfather’s list of aliases and dates of birth, two of the aliases and dates of birth are, in fact, Mr Needham and then his son’s date of birth, so it could be that the offence in (omitted) was not his. Leaving that aside, he had a history of committing offences including serious offences of violence and domestic violence offences against women.
The paternal grandmother has a few convictions, mainly for dishonesty or driving. There is one resist or hinder police in 2001, but no recent convictions.
Ms S has convictions for common assault in 1999, using offensive language in 2002 and resist police and assault police in 2003.
X’s best interests
Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and as the paternal grandmother’s counsel pointed out, in order to determine X’s best interests I must consider the matters in s.60CC(2) and (3) of the Family Law Act 1975.
I intend to deal with the s.60CC (3) considerations – the additional considerations – first. It is sometimes necessary to do that to inform consideration of the primary considerations.
The first of the additional considerations is any views of the child and the weight that can be given to those views.
X told the Family Report writer that she wanted to stay with the paternal grandmother. She said that the paternal grandmother needed her because the paternal grandfather had died.
Ms K’s view was that the child had been coached to say that. The paternal grandmother’s counsel submitted to me this morning that I should not find the child had been coached and that it might be just a natural expression of the child’s wishes arising out of her attachment to her grandmother.
I cannot be absolutely certain that the child was coached, obviously, but the Family Report writer is a very experienced family consultant and I am also mindful of the fact that there was other evidence of the paternal grandmother doing things which seem designed to ensure that the child said things or did not say things, as the case may be, to certain people about her views.
The paternal grandmother admitted that when she and the paternal grandfather took the child to (omitted) to meet the Independent Children's Lawyer, they would not let the child see the Independent Children's Lawyer alone.
The paternal grandmother also admitted that when she took the child to (omitted) to see the Independent Children's Lawyer and the Independent Children's Lawyer went into a room with the child to talk to her alone, the paternal grandmother commenced banging on the walls saying, “She’s telling lies.”
I cannot be absolutely certain that the paternal grandmother has not taken steps to impress on the child that she should say certain things to the Family Report writer.
However wherever the truth lies about that, given the child’s circumstances, I cannot place weight on what she said to the Family Report writer about where she wanted to live. She has insufficient experience of the alternative offered by the mother. She has lived with her paternal grandmother most of her life. I take into account what the child said to the Family Report writer but it is not something I can place weight on.
The paternal grandmother was of the view the child was not particularly happy to spend time with the mother. Ms S however said that the child was happy to see the mother in the school holidays. I consider that a relevant piece of evidence because Ms S did not otherwise show much willingness or ability to value the child’s relationship with the mother.
I must consider the nature of the child’s relationship with each of her parents and any other persons, including grandparents or other relatives of the child.
X was very happy to see the mother and maternal family at the family report interviews. The Family Report writer said as follows in her report:
The consultant told X she would need to talk with her on her own and X agreed to this. However when seeing her mother in the waiting room [separate to the paternal family] she ran to the mother, maternal grandparents and her brother Y and greeted them warmly. X was given some time with the maternal family prior to having her interview. She reported that she was pleased to see the mother whom she had not seen for some time. X was observed playing with the family and at no time showed any fear of them and sat close to her mother, brother and maternal grandparents. She became somewhat tearful when leaving the maternal family.[2]
[2] Family Report paragraph 117
The Family Report writer expanded on this in oral evidence this morning and said that the child spent about two hours with the maternal family during the report process.
This is certainly evidence that the child is happy enough to see the mother and Ms S agreed that the child was happy to go on school holiday visits.
The child also obviously has a very good relationship with her Nan (the paternal grandmother) and the Family Report writer repeatedly said this morning that her Nan was the person the child was primarily attached to. That is absolutely credible given that her Nan is the person that she has spent most of her time with during her short life and probably, in my view, the person who has provided nurturing because I doubt that the father – from the little I saw of him on the first day of the trial and from what I know about his criminal convictions and his exposing the child to drinking and violence – is particularly capable of nurturing a child.
The paternal grandmother is the child’s primary attachment figure, and she has been the constant presence in the child’s life.
I have limited evidence about some of the child’s other relationships but the Family Report writer said as follows in her report about the child’s interactions with the paternal family:
X, 8 came to the interview with the paternal grandmother, the father and her paternal aunt. She is a well proportioned child who showed no fear of the consultant. X appeared to relate well to the paternal family and showed no fear of them. She related well to her cousin A[sic] who was in the waiting room with the paternal family.[3]
[3]Family Report paragraph 118
As I think I commented during submissions though, both in relation to the above and in relation to the above and in relation to what was said by the Family Report writer about the maternal family, that is all very well, but I cannot draw too many conclusions from those observations about the quality of the child’s relationships with various adults.
The paternal family maintained that A and X had a good relationship. I have no particular reason to doubt that. They are two years apart in age and it would be fairly natural if they did.
There was some dispute about the nature of the child’s relationship with her brother Y who is almost three years older than her. I cannot make any particular findings about that relationship.
The next consideration is the extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about the child, spending time with or communicating with the child.
A big plank of the paternal grandmother’s case was that the mother had abandoned the child, almost pushed her away; let her go.
The mother did let the child go in 2007 but I accept her evidence that she thought that it was simply a respite, a temporary arrangement and that in due course she would be able to reconnect with her daughter. I accept the mother’s evidence that she did not intend to part with X permanently.
However the reality sadly was that when it became obvious that the father was not going to encourage the relationship the mother made only desultory efforts to put that situation right and too much time passed when nothing happened about her seeing X.
I take into account that the mother handed X to the father in 2007 and I take into account that five years passed when the mother did not see the child, but that is not the be all and end all of the case. It does not create a bridgehead which means that the paternal grandmother is somehow ahead in terms of being able to retain care of the child. It is simply one matter I have to take into account.
I must take into account the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
Going into this will not assist me to resolve the dispute in this matter so I am not going to spend time on it.
I must take account of the likely effect of any change in the child’s circumstances, including the likely effect of any separation from either of her parents or any other child or person with whom she has been living.
This is a very important issue in the case but I cannot make findings about it until I make findings about the rest of the s.60CC (2) and (3) matters. I intend to come back to this issue and incorporate a consideration of it into my conclusion at the end of the judgment.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that practical difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with a parent on a regular basis.
This refers to parents but I will consider it from the aspect of the paternal grandmother as well.
There has been to date and there will be in the future considerable difficulty in X maintaining contact and maintaining a relationship with the party she does not live with. The parties live 1000 kilometres apart. Neither is particularly well off. At present the paternal grandmother cannot drive; she has cataracts, and even absent that there may be some other reasons why she could not drive any distance like that.
Issues may arise about whether people have licences or reliable cars. The paternal grandmother said that she could not get the child to (omitted) for an orthopaedic appointment in (omitted) 2015 because of the distance between (omitted) and (omitted) and because she did not have transport.
I cannot do anything about where the parties live. I cannot ask either of them to move from where they are, and it means that if the child remains with one of them the other one is not going to be able to see the child very often. Only time during school holidays will be practical in my view and the Family Report writer took a similar view.
I must consider the capacity of each of the child’s parents and any other person including grandparents of the child to provide for the needs of the child, including her emotional and intellectual needs.
This is another very important issue in this case.
The mother is employed and is studying which is a plus for her. She is a very good role model for her daughter. It does not mean that people who are on benefits are less valuable human beings, but most adults in our society are expected when they grow up to get employment if they can absent a need to care for children, which is a legitimate reason to be out of the workforce, or illness, which is another legitimate reason to be out of the workforce. Someone who successfully makes that transition into adulthood and employment is a valuable role model for the next generation coming up behind and the mother is that valuable role model.
I have some concerns about Mr C. His reason for not being in the workforce at present is his care of Z, but he was not in the workforce before Z came along. He has little employment history, he has historically used cannabis heavily and is still using it occasionally and I have some reservations I must admit about Mr C. However it is good that he is productively involved at the moment in the care of Z. That is no doubt a very valuable support for the mother while she forges ahead with her study and being in the workforce and you cannot have everything.
An issue of concern about the mother’s parenting capacity is Y’s school attendance which is not brilliant and the fact that it appears that he does not do his homework regularly; there is reference in a school report to his grades perhaps improving if he did. That might be something the mother needs to have a look at and if she has an additional child in the household that might put an extra strain on her capacity to deal with that. Y’s school attendance record and the issue of him not doing his homework are negatives for the mother. She gave some excuses during cross-examination for why these things were occurring but I do not know that she convincingly made them out.
However what important however is that there was no evidence of any family violence in the mother’s home. Mr C does not have convictions for offences of violence. There was no evidence of police call-outs to that home to deal with any domestics. That is a real positive in terms of what the mother and Mr C can offer X.
Overall the mother has a reasonable parenting capacity and the Family Report writer came to the same conclusion, in my view validly.
I have a number of concerns about the capacity of the paternal grandmother to provide for the needs of the child.
I took issue with Mr Wilkinson’s use of the word “love” during submissions. It is a word which is often misused and the Family Report writer insistence that it was preferable to talk about X being attached to the paternal grandmother rather than loving her strikes a chord with me. However in my view it is open to me to find that the paternal grandmother loves X; I am sure she does. Unfortunately however there are limits to what she can offer to X.
The paternal grandmother cannot read. That is not her fault; it might be that she was let down by adults in her life when she was a child and that can happen to people. However it is a drawback for X because it means that she cannot read X’s school reports and cannot see whether X is doing well or badly at school.
It was clear from the paternal grandmother’s answers in cross-examination that she was not really aware of what was happening for X in terms of how she was doing at school or whether she was having any social problems.
X missed a considerable amount of school in 2014 and 2015 and that might well be part of the reason that she is having some problems at school.
Part of the reason X missed school in 2014 in particular was that the paternal grandmother took X with her when she went to be near the paternal grandfather when he was in hospital in places away from (omitted). In hindsight it is regrettable that this occurred and that some other arrangements were not made so that X did not miss school.
The paternal grandmother said that Ms S dealt with the school but that does not make the situation any better. Ms S frankly admitted she did not read the child’s school reports or even her own daughter’s school reports and if she does not do that there is no hope that anyone is going to be aware if anything is going wrong for the child or be in a position to correct it.
Ms S did not admit in her affidavit that the child had social problems at school but she clearly does and Ms S witnessed an occasion of that. Unfortunately Ms S’s response to what she witnessed was aggressive and what does that teach X? It is simply modelling poor behaviour to X. It is not going to improve her situation at school.
It is also concerning that not only did X miss the orthopaedic appointment in (omitted), the paternal grandmother did not seek to re-schedule it, and she did not seem, to be frank, to be very concerned about that when asked about it during cross-examination.
The paternal grandmother has a blind spot in terms of the child’s needs for a connection with her mother and her maternal family. She kept her from the mother for five years, presumably because that was what pleased her son. She allowed X to believe that Ms M was her mother, which was simply not true. The paternal grandmother is not particularly conscious, I do not think, of the damage this has done for the child.
The impression I gained – and I really do not want to be hard or cruel because I go back to what I say, I am sure the paternal grandmother loves the child – is that the paternal family just has so many problems. Dealing with the behaviour of the father alone must simply wear people out. This family has so many problems and it is as if X is just trailing along in the wake of the family and in the wake of the problems and nobody is really focusing on her and her needs.
Another problem is that the paternal grandmother is unwell. She had a stroke a few years ago and as a result there are limitations to what she can do around the house, she is an insulin dependent diabetic and she has been struggling emotionally since her husband died in (omitted) 2015. A recent doctor’s opinion was that the paternal grandmother was depressed.
Ms S is receiving a Centrelink benefit for being the paternal grandmother’s carer; the paternal grandmother’s physical capacity to care for the child is very, very limited.
I cannot make too many positive findings about the capacity of the paternal grandmother to provide for X’s needs.
The father has absolutely no capacity to provide for X’s needs. He abuses alcohol and it sounds as if he is an alcoholic. He uses drugs, and we are not talking about just a bit of cannabis; we are talking about really serious drugs like ice, heroin or injecting OxyContin, which he can only be obtaining illegally one would have thought although it is a prescription drug.
The father has a serious drug problem and has had for a long time. He is an extremely violent man. He is not only violent to domestic partners; he is violent to members of his own family. He has been violent to his sisters. He has had no compunction about exposing X or A to his violent outbursts. He is simply a violent man. Regrettably, and perhaps it is not possible for them to do so in light of the father’s lawlessness, the other members of the Needham family seem incapable of protecting themselves, let alone X, from exposure to this violent behaviour.
The other point I want to make here, and it goes back to something the mother’s counsel was saying about intergenerational cycles, is that the paternal grandmother is illiterate, which is sad for her, but the father, the next generation down, told the Family Report writer that he only attended school to year 6 and he gave numerous excuses about why he had not attended after that. We now have X not achieving very well at school and unless something is done and there is some change for X’s generation where is she headed? That is a serious concern.
So those are the findings I can make about parenting capacity. The father has none. The paternal grandmother, although she loves X, I am sure, has limited capacity to provide for the child’s needs, among other things because of illness and prioritising other problems in her family over X. The mother is the person among the available alternatives who has the greatest capacity to provide for X’s needs.
The next consideration is the child’s maturity, sex, lifestyle and background but this is not relevant as a separate consideration.
I must have regard to the child’s right as an Aboriginal child to enjoy her culture with people of her culture.
This is not an issue in this case because all of the parties are Aboriginal and X will remain connected with her Aboriginality no matter where she lives.
I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The father’s attitude to the child is exceptionally poor. I will not go over again the issues of his drinking, drug use and violence but his attitude was also poor when he took X away from the mother and kept her from the mother for five years.
The mother has to take some responsibility for what happened, but if the father had not walked out with that little baby in a blanket and taken her away and gone to Queensland for four years to places where the paternal grandmother admitted the mother would not have known to look for her and had made no attempt to contact the mother at any time after he took the child – if he had not done those things, then the gap when the child had no connection with the mother would not have happened either.
The father’s attitude to his other child Y is appalling. He called him a vile name when he spoke to the family consultant. He apparently does not accept him as his child; it’s cruel. However Y appears to be taking that in his stride and he does not want anything to do with the father either.
I must have regard to any family violence involving the child or a member of the child’s family.
I am satisfied that the mother’s description of what she suffered at the father’s hands is accurate. She was very young when she took up with the father. He was her first serious relationship. She put up with his abusive behaviour including taking her key card, emptying her bank accounts, keeping her locked in a motel room and some slapping.
An issue of concern for me, and it is only perhaps a little thing and I am conscious of the fact that Ms M is sitting here in court, an issue of concern to me because of what is happening in the Needham family as a whole is that the mother described an incident where she was bashed by Ms M when she was 17 or 18 years old.
I accept the mother’s evidence because Ms M knows that the allegation has been made. She could have given evidence to refute it and she didn’t.
The father has been violent to his own siblings, he has been violent to his own mother as well as to others and he is violent to his current domestic partner. He is in many respects a dangerous man. His current partner suffered an injury recently as a result of an assault by the father, a four centimetre gash to her head and dark bruising. The father is not just a poor role model for X as a result of his violence; he is violent to the point of being dangerous.
There is considerable merit in the submission by the mother’s counsel that the cycle of violence needs to be broken or it is just going to continue down into another generation.
The paternal grandmother and Ms S, who is the backup carer in (omitted), are sadly just not capable of protecting X from exposure to this violence. They either cannot stand up to their son or they will not stand up to him because he is the child’s father. The paternal grandmother repeatedly made that last point clear during cross-examination.
One excuse Ms S gave for why she and the paternal grandmother let the child go with the father was that X wanted to go and they could not stop her but X is eight years old and she is not beyond anyone’s control. She might walk out of classrooms but parents have a little bit more power than teachers to make sure children don’t wander off. Teachers have all sorts of restrictions on them nowadays as to what they can do. Not that I’m suggesting for a single moment that anyone should physically discipline a child; I’m not suggesting that. But parents can do things to make sure that children obey family rules.
The paternal grandmother and Ms S have no capacity to protect X from exposure to violence.
I must consider, if any family violence order applies or has applied to the child or a member of the child’s family, any relevant inference which can be drawn from the order.
There are no family violence orders between the parents nor have there ever been. The paternal grandmother applied for an ADVO against the mother but that application was dismissed. Historically there were ADVO’s between the paternal grandfather and paternal grandmother and I will refer to that later.
I must consider any other relevant fact or circumstance.
There are three matters which need to be mentioned here.
First there is the issue of the paternal grandmother’s name. She was named Ms E Needham after her birth. She married Mr Needham and became Ms E Needham. At some point she has changed her name to Ms E Needham. She said that this was because she liked that name and that is the name that I am going to primarily put on the court documents.
Second, the father has two older children who live in (omitted) and who he does not see and he also has Y who he has rejected and who refuses to see him.
Third, it emerged during the evidence that X’s birth has not been registered. The mother will have to do something about that fairly speedily. She is the only person who can.
I will return at this point to the primary considerations in s.60CC(2) and they are (a) the benefit to the child of having a meaningful relationship with both of her parents and (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S.60CC(2A) provides that:
In applying the considerations in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).
I cannot create a situation where X can have a meaningful relationship with one of her parents, namely her father. It would place her at unacceptable risk of harm risk to spend time with him.
The child’s other parent, of course, is her mother, and in circumstances where she cannot have a relationship of any value with her father it is exceptionally important that she has a relationship with her mother. The mother is keenly interested for this to occur. I do not consider that she is trying to remove X from the Needham family for any ulterior motive.
The mother is not a perfect parent, obviously; I have been critical of her in relation to Y’s school attendance and completion of homework and there are some issues with Mr C that I can do little about and probably neither can the mother. However there is no family violence in the mother’s home and no drug use in her home. She is employed. Her mother and step-father are supportive of her. It is very important that the child’s relationship with the mother is promoted and that the mother becomes a valuable, central part of the child’s life.
The Family Report writer was of the view that the paternal grandmother did not support that relationship and I consider that there is some merit in that opinion.
I am not critical of the paternal grandmother over what happened when the recovery order was made in 2012; it should not have been made. However there are other little things, for example the fact that time did not take place between the child and the mother on the occasion when the paternal family went to (omitted) instead of (omitted), the incident in June 2014 which was created by the father but then used as an excuse to stop the mother spending some time with the child and the banging on the wall in the (omitted) Legal Aid office and saying the child was lying which must have been very intimidating for the child.
The paternal grandmother’s fixed belief is that the mother abandoned the child in 2007 and underlying that is perhaps a fixed belief that the mother does not really deserve to have this child. I consider that there is merit in the Family Report writer’s opinion that the paternal grandmother and probably other members of the paternal family do not really support the child having a relationship with her mother.
If I make orders for the child to remain with the paternal grandmother and spend time with the mother I cannot be 100 % certain that the time with the mother will necessarily occur uneventfully. If people do not support a relationship they can sometimes use any little excuse, such as the car having broken down or not having enough money, to not take the child to the visits. I have concerns about the attitude of the paternal family to the mother and the impact this might have on the child’s relationship with her mother if the child remains with the paternal grandmother.
The only way, in my view, to ensure a strong relationship between the child and the mother is to put the child with the mother.
In relation to the second primary consideration, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, the child has repeatedly been exposed to both neglect and family violence since she came into the father’s care. There is a plethora of evidence about that in the subpoena material that was tendered. I have referred to some of it in these reasons and I am not going to go over it again.
The father presents a real ongoing present risk to this child. The only way that risk will be removed is if he goes to jail, but even if he goes to jail he is going to come out of jail again and the paternal grandmother and the paternal aunt are powerless to prevent him spending time with the child.
Even though the paternal grandmother and paternal aunt believe that the father is using ice and even though they know he is violent, they had been allowing the child to go with him to wherever that may be because the paternal grandmother said she did not know where the father took her. They have even allowed the father to take the child away overnight. They have repeatedly placed the child at risk.
The paternal grandmother’s counsel said that I should place weight on the fact that the child had not in fact been injured. However while it is true that she has not been physically injured but she has undoubtedly been psychologically and emotionally harmed by exposure to the father’s violence and lifestyle. It is inevitable; it must be the case.
If the child remains with the paternal grandmother it is difficult to see how the court can do anything to prevent the child continuing to be exposed to the father, because the paternal grandmother and Ms S have both been subjected to violence by the father, they both believe that because he is the father he has rights and Ms S in addition said that the child went with the father because that was what the child wanted and Ms S seemed to think she was powerless to stop her.
If the child remains in (omitted) the inevitability is, absent the father being in jail, and that will not be forever, that she will be exposed to family violence and to neglect arising out of drug use and alcohol abuse in the father’s care.
Parental responsibility
S.61DA of the Family Law Act provides that the parents of a child should have equal parental responsibility for the child absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the child or family violence.
The father has been violent to a number of family members including the mother. The presumption does not apply, and as between the parents the only person who could have parental responsibility for this child would be the mother.
The paternal grandmother proposed that she and the mother share parental responsibility and in theory I could make such an order. However the Independent Children’s Lawyer rightly pointed out that they do not have the kind of respectful relationship and capacity to communicate that could possibly make that work or make it productive. It seems to me the only outcome in this case is that whoever the child lives with is given sole parental responsibility for her.
The Family Report writer’s recommendations
The Family Report writer recommended that X live with the mother. She said as follows in her report:
Ms McLeod is relatively young and child focussed and it was apparent that X living with her would be a better option in the short, medium and long term. However this transition would be difficult as the paternal family have demonstrated in the past they have hidden X. It is within the realms of possibility that a similar tactic would be used again given the acrimony between the families and given the lack of compliance with court orders in the past. It is strongly recommended that the Court consider the logistics of this with a focus on X’s safety and emotional well-being.
X needs to live in an environment where she is safe, nurtured, free from exposure to aspects of unregulated adult behaviour, live with siblings and where educational, social, emotional and identity outcomes are maximised for her. It was not apparent that this was happening in her current environment and it strongly recommended that she return to her mother’s care as soon as is practicable.[4]
[4] Family Report paragraphs 141 & 142
The Family Report writer recommended that X spend supervised time with the paternal grandmother in (omitted) where there is a contact centre which can provide supervision.
The Family Report writer’s rationale for recommending supervised time was that if there was to be a change of residence the child needed to be given time to settle into the change without having too much unsupervised time with a person who may not support the change. However there are also significant safety concerns which mean that I would have to be very concerned about the child spending time in (omitted).
The paternal grandmother’s counsel challenged the Family Report writer this morning. He put a number of questions to her. He suggested to her that she was wrong to believe that the paternal grandmother had coached the child to express a wish. He put to her that she was wrong to downplay the seriousness of Mr C’s convictions. He did not however get the Family Report writer to change her mind about either of those things or about her recommendations.
I do not accept that there is merit in the criticisms that the paternal grandmother’s counsel made of the Family Report writer’s assessment of various things. She is a social worker of considerable experience. She has prepared many reports for this court and for the Department of Family & Community Services. She is also independent and impartial in this matter. She has no axe to grind and she is not on any person’s side.
The Family Report writer demonstrated considerable compassion for the paternal grandmother and was respectful of her Aboriginality. She said that her own grandmother was a member of the stolen generation. She was compassionate toward the paternal grandmother but commented that she needed to focus on the child’s needs.
In my view the Family Report writer’s recommendations deserve weight because it was not demonstrated that she made errors of fact. It was not demonstrated to my satisfaction that she was wrong in her assessment of the nature of Mr C’s convictions and wrong in her assessment of whether X might have been coached. Her recommendations were logically based on the information she had which is similar to the information that has emerged during the trial.
However the Family Report writer is not the judge in this matter. She does not decide the outcome. Her recommendations are just part of the evidence and the decision in the matter is mine.
Conclusion
This case is quite heartbreaking.
It is heartbreaking that the paternal grandmother and the paternal family have been either unable or unwilling to protect this child from the father and have allowed her to be exposed to family violence and to the father’s alcoholism and drug use for the last eight years.
It is heartbreaking that this matter has taken three years to reach a final hearing.
This court is quite hamstrung in what it can do in the early stages of a case like this. When the case first came before me the mother had let five years pass in which she made very limited efforts to find the child. When the case began I had a little girl who scarcely knew her mother; the mother was estranged from the child. Some effort had to be made before anything significant could be done to have the mother and child get to know each other and that was very difficult to arrange because of distance and it took a while to get anything happening in that regard.
There were allegations and counter-allegations of violence and drug use but they were allegations at that stage and a court is not aware of what is in subpoena material unless it is tendered. There can be boxes of subpoena material sitting down there containing extremely important information but in the court does not go and have a look through it, it only has a look at what is tendered. Sometimes until I am sitting here on the bench conducting a trial I have no idea how serious the issues in a matter are and that has certainly been the case in this particular matter.
So the case took its time. It took time to get something happening to introduce the child to the mother. The court had no means of knowing, and I think some of the parties had no means of knowing until the case was run, what was sitting there in the subpoena material and how serious the issues with the father were, and it has broken my heart to sit here and listen for three days to some of this evidence and to think what this child has been exposed to since she was taken away from (omitted) as a little baby.
Due to the availability of resources and due to the difficulties the Family Report writer had in contacting the parties and also due to the need to be respectful of the fact that the paternal grandfather had died in (omitted) 2015, six months elapsed between when I ordered the family report and when I received it and 10 months elapsed between when I ordered the report and when I was able to hear the matter. Once the matter came back for mention after the report was released I prioritised this hearing. I set the matter down for hearing as soon after I received the report as I possibly could and queue-jumped it over other matters awaiting hearing.
It has taken three years for the matter to get to the point where a decision can be made about X based on all of the available evidence. I have to make that decision and in some ways it is not a difficult one to make, because while, like the Family Report writer, I feel sympathy for the paternal grandmother, there is no good outcome for X if she remains with the paternal family.
The paternal grandmother is unwell. She cannot care for X on her own. Her daughter Ms S is the paternal grandmother’s carer. Ms S is not a party to the proceedings, and even if she was, she does not stack up as an appropriate alternative carer for X. She has some convictions for offences of violence, she has had some fights with her brother and she is the subject of some COPS events that did not result in any charges. She was aggressive at the school recently. She does not read the child’s school reports. She says that she is powerless to stop the child spending time with the father. She is simply not an acceptable alternative carer for the child if anything were to happen to the paternal grandmother.
There is a very high risk that if X remains with the paternal family her relationship with her mother will fail to thrive due to the antagonism the paternal family feel for the mother and the mistaken beliefs they hold about her which could in turn lead to a failure to take X to changeovers and a failure to facilitate telephone communication.
My major concern is that nobody in the Needham family is capable of protecting X from exposure to the father’s drinking, drug use and violence. Not only are they not protecting her from that at the moment, they are actually putting her in harm’s way. When asked “why are you letting the father see this child” they continually said “He is her father.”
The mother’s counsel in her submissions talked about the intergenerational cycle of violence in this family and it is the greatest overarching concern I have in this matter.
The father is a violent man. He has been violent to domestic partners. He has been violent to the paternal grandmother and has cut her and been charged with assaulting her. He has been violent to his sisters and he has behaved in a lewd fashion around one of them. Ms S also has some convictions for assault. That is what is happening in the father’s generation.
The paternal grandfather was also a violent man. He had convictions for assaulting the paternal grandmother and ADVO’s were made against him for her protection.
On the paternal grandparent’s level I have violence concerns. On the level of the father and his sisters I have violence concerns and X is the third generation. She has been exposed to family violence her entire life and she is hitting other children at school. What chance does she have if she continues to live where she is? She has none.
I cannot guarantee that moving X to (omitted) to live with the mother is going to change things for her but her chances of something being different for her, the third generation, if she stays in (omitted) with the paternal grandmother are absolutely zero.
X has a chance if she moves to (omitted). The mother is a good role model for her. She does not use drugs or abuse alcohol. Mr C is somewhat concerning but he does not present the same level of concern as the father, nowhere near it, and there are no police callouts to the mother’s home or family violence there and the mother and Mr C have been in a relationship for seven years.
The situation in that home, even given Mr C’s convictions, is vastly different to the situation in the paternal grandmother’s home.
There is risk that X will not settle if I order that she lives with the mother. She may behave in ways that the mother and her family do not like very much because she has had certain behaviours modelled to her. She may be a challenge for the mother. She may not, you cannot be sure how things are going to go, but she may be a challenge. She may have behavioural problems and the mother may find that she gets calls from the school. She is going to require some intervention in terms of taking her to dentists and doctors. She is going to be time consuming. She will have to jockey with her older and younger brother for a place in the household. There could be a bit of a challenge there.
However the plus in the mother’s situation is that the maternal grandmother and step-grandfather are in (omitted). They are gentle and kind people from everything that I have seen and from what the Family Report writer saw. They have helped out before when the mother was not coping very well and taken Y on. There is back-up there for the mother if the situation gets a bit difficult for her. She will not have to cope on her own.
However no matter what the risks are of X not settling easily with the mother, or proving a challenge for the mother, no matter what those risks are, X cannot remain where she is. I have to change her residence. At least I will be giving her a chance and she will not have a chance if she stays where she is.
I am going to make an order that X live with the mother and that order will take effect immediately. It will not take effect next week or next term. That means that X will not be able to say goodbye to school friends, but there is no benefit to X overall in putting the change of residence off. Sad as I am for the paternal grandmother, the change needs to happen immediately.
The problem then is what to do about the child’s time with the paternal grandmother.
I cannot make an order at present that the child come back to (omitted) for holidays, for the simple reason that the paternal grandmother is incapable of stopping the father from seeing this child whenever he is out of prison, and the sad outcome of that is that X’s time with her paternal grandmother in the immediate future is going to be quite limited.
I am going to make orders as proposed by the Independent Children’s Lawyer about the paternal grandmother spending time with X in (omitted) supervised during school holidays. I am not going to make the proposed order about time during school terms. The distance is such that it is simply impracticable to make that order, desirable as it would be for the child to see the paternal grandmother more often.
I do that with regret because it will mean a very substantial change and break for the child who is attached to her paternal grandmother but I have no option.
The real difficulty is what to do after the 12 months when the contact centre will no longer provide the supervision.
The paternal grandmother would like to be able to bring the child back to (omitted) but I cannot agree to that happening.
If the father receives a lengthy prison sentence the mother might be willing to consider bringing the child back to (omitted) or allowing the child to come back, but it is important that the time is supervised for the 12 months, both to allow the child to settle and to protect her. After the 12 months it is really difficult to know what to do as everybody recognised during submissions.
We cannot be sure how the supervised time will go. We cannot be sure if the paternal grandmother will attend every time that she is entitled to time in (omitted). We cannot be sure whether her attitude to the mother is going to change.
My view is that absent any concerns arising at the supervised visits at the contact centre it would be appropriate for the child to spend time with the paternal grandmother during the day in (omitted) for no less than two consecutive days being day time only for the first twelve months and thereafter including an overnight.
I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 30 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Jurisdiction
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