Monroe and Gordon and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONROE & GORDON & ANOR

[2014] FCCA 1003

Catchwords:
FAMILY LAW – Parenting – Consideration of unacceptable risk.

Legislation:

Crimes (Sentencing Procedure) Act 1999, s.9

Family Law Act 1975, ss.60B, 60CC, 62G, 65C

M & M (1988) FLC 91-979

Applicant:

MR MONROE

First Respondent:

MS GORDON

Second Respondent:

MS WILLDER

File Number:

PAC 2666 of 2012

Judgment of:

Judge Dunkley

Hearing dates:

11, 12, 13 and 14 June 2013, 28 November 2013, 16 and 17 December 2013 and 10 and 12 March 2014

Date of Last Submission:

12 March 2014

Delivered at:

Parramatta

Delivered on:

6 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

Parks Coady Family Lawyers

Counsel for the First Respondent:

Mr Ginges

Solicitors for the First Respondent:

JR Lawyers

Solicitor Advocate for the Second Respondent:

Mr MacDiarmid

Solicitors for the Second Respondent:

Mark MacDiarmid Family Law Specialist

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Solicitors for the Independent Children’s Lawyer:

Sarah Bevan Family Lawyers

ORDERS

The maternal grandmother Ms Willder shall have sole parental responsibility for the child Z born (omitted) 2009 (“the child”) provided that:
(a)The maternal grandmother shall keep the Applicant father and the First Respondent mother advised of the matters relating to the child’s long term care, welfare and development;
(b)Each of the Applicant father and the First Respondent mother shall be entitled to communicate with the maternal grandmother any views in relation to matters relating to the child’s long term care, welfare and development; and
(c)The maternal grandmother shall give due regard to such views but, in the event that no agreement is reached, then the maternal grandmother shall be the person to make any final decision.
The Applicant father shall have parental responsibility for making decisions in respect of the child that are not major long term issues whilst the child is in his care, including but not limited to, the child’s attendance during periods she is in his care at extra-curricular activities and social functions.
The child shall live with the maternal grandmother.
The child spend such time with the First Respondent mother as follows and with the following conditions:
(a)For a period of two (2) years from the date hereof, for a minimum of four hours per fortnight each alternate Saturday between 12pm and 4pm or at such other times and location to be determined by the maternal grandmother and conditional upon such time being supervised;
(b)After two (2) years from the date hereof, at times, location and level of supervision to be determined by the maternal grandmother;
(c)The mother’s time, where it is to be supervised, shall be supervised by either of the mother’s sisters or some other person agreed to by the maternal grandmother;
(d)The maternal grandmother shall not be the supervisor of the mother’s time with the child;
(e)The mother shall comply with any reasonable direction provided by the supervisor who shall be at liberty to terminate the mother’s time in the event the supervisor becomes concerned of any risk to the child, including but not limited to the mother appearing drug affected;
(f)Any unsupervised and/or overnight time between the mother and the children be subject to the mother’s successfully completing a residential drug rehabilitation program and having attended ongoing drug counselling and providing confirmation to the maternal grandmother and the Independent Children’s Lawyer of same;
(g)All parties shall endeavour to arrange Z’s time with the mother to occur at the same time as the mother is spending time with her other children, but is not to conflict with time she spends with the father as provided for herein.
The child shall spend time with the Applicant father as follows:
(a)Each alternate weekend from Saturday at 10am until the next following Sunday at 4pm commencing 14 June 2014 unless otherwise agreed in writing between the maternal grandmother and the Applicant father;
(b)From 3pm Christmas Eve until 3pm Christmas Day in 2015 and each alternate year thereafter;
(c)From 3pm Christmas Day until 3pm Boxing Day in 2014 and each alternate year thereafter;
(d)From 10am until 7.30pm on Father’s Day in each year that the child is not ordinarily in the Father’s care pursuant to these orders;
(e)For a period of five (5) hours on the child’s birthday in each alternate year starting in 2014 as agreed between the parties, and failing agreement from 2pm until 7pm or in the event of the birthday falling on a day the child attends school from after school until 7pm; and
(f)As otherwise agreed between the father and the maternal grandmother.
The father’s time with the child be conditional upon the following:
(a)The father shall reside at the home of the paternal grandparents during all periods in which he spends time with the child;
(b)A written undertaking to be provided to the Independent Children’s Lawyer within 7 days of the orders by the paternal grandmother and/or the paternal grandfather that one or both of them shall be available to monitor the father’s time with the child;
(c)The child not to sleep in any residence other than that of the paternal grandparents unless it is at a location where either of the paternal grandparents will also spend overnight, without the written consent of the maternal grandmother;
(d)The father shall advise the maternal grandmother in advance if the paternal grandparents shall not be available to monitor the father’s time.
The father’s time with the child shall be suspended on the following times:
(a)From 3pm Christmas Eve until 3pm Christmas Day in 2014 and each alternate year thereafter;
(b)From 10am until 7.30pm on Mother’s Day in each year that the child is ordinarily in the father’s care pursuant to these orders;
(c)For a period of five (5) hours on the child’s birthday in each alternate year starting in 2015 as agreed between the parties, and failing agreement from 2pm until 7.30pm.
The father collect the child from the maternal grandmother’s home at the commencement of the child’s time with him and return the child to the maternal grandmother’s home at the end of such time.
When the child is spending time with either the mother or the father and for a period of 24 hours prior to such time taking place such party be and is hereby restrained from consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales.
Each of the mother and father be and is hereby restrained from consuming illicit substances while spending time with the child and for a period of 48 hours prior to such time taking place.
Each party be and is hereby restrained from denigrating (which word is taken to include, without limitation, making any negative comment or gesture) the other party or any member of the other party’s family or permitting any other person to denigrate the other in the presence of or in the hearing of the child.
Each of the parties shall keep each of the others advised of the health of the child including any serious illness, medication or hospitalisation of the children as soon as reasonably practicable.
The child shall communicate with each of the parties by telephone at any reasonable time when she is in another party’s care and each party shall do all things necessary to facilitate the children communicating with the other parties by telephone on a regular basis.
The appointment of the Independent Children’s Lawyer is extended with respect to the child Z for a twelve (12) month period from the date of the making of these orders.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Monroe & Gordon & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2666 of 2012

MR MONROE

Applicant

And

MS GORDON

First Respondent

MS WILLDER

Second Respondent

REASONS FOR JUDGMENT

These are final parenting proceedings between Mr Monroe (hereinafter the father), Ms Gordon (hereinafter the mother) and Ms Willder (hereinafter the maternal grandmother) relating to the child Z born (omitted) 2009.
The mother has two older children X born (omitted) 1999 and Y born (omitted) 2003.
X’s biological father is Mr G although she regards Mr Clarke as her psychological father and only learnt that Mr Clarke was not her biological father recently. Mr Clarke is the biological father of Y.
For reasons delivered concurrently with this judgment in proceedings PAC2690 of 2012 X and Y are to live with the maternal grandmother who is to have sole parental responsibility for them. For the next two years the mother is to have supervised time with the children X and Y. Mr Clarke is to have time with X and Y by arrangement with Ms Willder
N.M.G. nor Mr Clarke participated at the final hearing.
Mr G has never been involved in X’s life.
Notwithstanding Mr Clarke was not involved at the final hearing X and Y have continued to spend time with him by agreement between he and Ms Willder.
Proceedings number PAC2690/2012 regarding X and Y was heard concurrently with the proceedings relating to Z.
During the course of these proceedings the mother abandoned her application to have Z live with her.
She agreed with the final submissions made by the Independent Children’s Lawyer and supported the final orders as sought by the Independent Children’s Lawyer.
The minute of order sought by the Independent Children’s Lawyer was as follows:
1. The maternal grandmother Ms Willder shall have sole parental responsibility for the child Z born (omitted) 2009 (“the child”) and that:
1.1 The maternal grandmother shall keep the Applicant father and the First Respondent mother advised of the matters relating to the child’s long term care, welfare and development;
1.2 Each of the Applicant father and the First Respondent mother shall be entitled to communicate with the maternal grandmother any views in relation to matters relating to the child’s long term care, welfare and development; and
1.3 The maternal grandmother shall give due regard to such views but, in the event that no agreement is reached, then the maternal grandmother shall be the person to make any final decision.
2. The Applicant father shall have parental responsibility for making decisions in respect of the child that are not major long term issues whilst the child is in his care, including but not limited to, the child’s attendance at extra-curricular activities and social functions.
3. The child shall live with the maternal grandmother.
4. The child spend such time with the First Respondent mother as follows and with the following conditions:
i. For a period of two (2) years, for a minimum of four hours per fortnight each alternate Saturday between 12pm and 4pm or at such other times and location to be determined by the maternal grandmother and conditional upon such time being supervised;
ii. After two (2) years, at times, location and level of supervision to be determined by the maternal grandmother;
iii. The mother’s time, where it is to be supervised, shall be supervised by either of the mother’s sisters or some other person agreed to by the maternal grandmother;
iv. The maternal grandmother shall not be the supervisor of the mother’s time with the child;
v. The mother shall comply with any reasonable direction provided by the supervisor who shall be at liberty to terminate the mother’s time in the event the supervisor becomes concerned of any risk to the child, including but not limited to the mother appearing drug affected;
vi. Any unsupervised and/or overnight time between the mother and the children be subject to the mother’s successfully completing residential drug rehabilitation program and ongoing drug counselling and providing confirmation to the maternal grandmother and the Independent Children’s Lawyer of same;
vii. All parties shall endeavour to arrange Z’s time with the mother to occur at the same time as the mother in spending time with her other children.
5. The child shall spend time with the Applicant father as follows:
5.1 Each alternate weekend from Saturday at 10am until the next following Sunday at 4pm;
5.2 From 3pm Christmas Eve until 3pm Christmas Day in 2013 and each alternate year thereafter;
5.3 From 3pm Christmas Day until 3pm Boxing Day in 2014 and each alternate year thereafter;
5.4 From 10am until 7.30pm on Father’s Day in each year that the child is not ordinarily in the Father’s care pursuant to these orders;
5.5 For a period of five (5) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 2pm until 7pm in each year that the child is not ordinarily with the father pursuant to these orders or in the event of the birthday falling on a school day from after school until 7pm; and
5.6 As otherwise agreed between the father and the maternal grandmother.
6. The father’s time with the child be conditional upon the following:
i. The father shall reside at the home of the paternal grandparents during all periods in which he spends time with the child;
ii. An undertaking to be filed within 48 hours of the orders by the paternal grandmother and/or the paternal grandfather that one or both of them shall be available to monitor the father’s time with the child;
iii. The child not to sleep in any residence other than that of the paternal grandparents unless it is at a location where either of the paternal grandparents will also spend overnight
iv. The father shall advise the maternal grandmother in advance if the paternal grandparents shall not be available to monitor the father’s time.
7. The father’s time with the child shall be suspended on the following times:
7.1 From 3pm Christmas Eve until 3pm Christmas Day in 2014 and each alternate year thereafter;
7.2 From 10am until 7.30pm on Mother’s Day in each year that the child is ordinarily in the father’s care pursuant to these orders;
7.3 For a period of five (5) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 2pm until 7.30pm in each year that the child is not ordinarily with the maternal grandmother pursuant to these Orders; and
7.4 The father collect the child from the maternal grandmother’s home at the commencement of the child’s time with him and return the child to the maternal grandmother’s home at the end of such time.
8. When the child is spending time with each party and for a period of 24 hours prior to such time taking place such party be and is restrained from consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales.
9. Each party be and is hereby restrained from consuming illicit substances while spending time with the child and for a period of 48 hours prior to such time taking place.
10. Each party be and is hereby restrained from denigrating (which word is taken to include, without limitation, making any negative comment or gesture) the other party or any member of the other party’s family or permitting any other person to denigrate the other in the presence of or in the hearing of the child.
11. Each of the parties shall keep each of the others advised of the health of the child including any serious illness, medication or hospitalisation of the children as soon as reasonably practicable.
12. The child shall communicate with each of the parties by telephone at any reasonable time when they are in another party’s care and each party shall do all things necessary to facilitate the children communicating with the other parties by telephone on a regular basis.
The maternal grandmother largely adopted the submissions of the Independent Children’s Lawyer and agreed that orders should be made as sought by the Independent Children’s Lawyer.
During final submissions it was argued on the father’s behalf that final orders be made in the terms of his Amended Initiating Application filed 3 June 2013. That Amended Initiating Application sought the following final parenting orders:
1. That the father have sole parental responsibility for the child Z born (omitted) 2009 (“Z”).
2. That Z lives with the father.
3. That Z spends time with the mother as agreed between the parties.
4. That Z spends time with Ms Willder as follows:
a. Each alternate weekend from 6pm Friday until 6pm Sunday; and
b. Other times as agreed.
5. That the parties refrain from consuming excessive alcohol whilst Z is in their care and for 12 hours prior to Z coming into their care.
6. That neither party denigrate or speak badly about each other in the presence or hearing of the child.

Issues to be determined

Is the maternal grandmother or the father to have sole parental responsibility for the child Z?
Is Z to live with the maternal grandmother or the father?
What time is Z to spend with the parties with whom she does not live?

Documents

The documents relied on in the father’s case were as follows:
a)Amended Initiating Application filed 3 June 2013;
b)Affidavit of Mr Monroe sworn 24 August 2012;
c)Affidavit of Mr Monroe sworn 10 December 2012;
d)Affidavit of Mr Monroe sworn 3 June 2013;
e)Affidavit of Mr Monroe affirmed 28 October 2013;
f)Affidavit of Ms M sworn 22 June 2012;
The documents relied on by the mother at the final hearing were as follows:
a)Response filed 14 November 2012;
b)Affidavit of Ms Gordon sworn 12 November 2012
c)Affidavit of Ms Gordon sworn 7 June 2013.
The documents relied on at final hearing by the Second Respondent, the maternal grandmother were as follows:
a)Response filed 23 July 2012;
b)Affidavit of Ms Willder sworn 20 July 2012;
c)Affidavit of Ms Willder sworn 19 November 2012;
d)Affidavit of Ms Willder sworn 11 February 2014;
e)Affidavit of Ms P sworn 20 July 2012.
A number of documents became Exhibits during the course of the final hearing including a Family Report prepared by Family Consultant Ms D dated 6 May 2013 which became Exhibit ‘H’.
Paragraphs 2, 3, 4, 5, and 6 of the Family Report set out a summary of the history of the children that is uncontentious, and those paragraphs are for reason of the history set out adopted for this judgment.
During the course of the final hearing the mother sensibly abandoned her live with application given her drug addiction, her recent incarceration, her inability to provide for the physical needs for the children by way of accommodation and income and by reason of the need for her to focus her attention on getting her life “back into order”.
She conceded in her oral evidence that she had not been truthful in her Affidavit evidence about the extent of her drug taking.
On 14 June 2013 during the course of the final hearing orders were made that left open the possibility of the father’s parents, that is the paternal grandparents of Z, intervening into the proceedings. They did not do so.
The father commenced these proceedings by filing an Initiating Application on 22 June 2012 which was listed for a first directions hearing on 10 July 2012. At or about that time the mother was an inpatient in an intensive care unit of a Sydney hospital suffering from renal failure. For many months her prognosis was grim and it was not until late 2012 that she was able to give instructions and be represented.

On 11 December 2012, being the first time that an appearance was entered for the mother, the following orders were made by consent:
1. That all previous orders in relation to the child Z are discharged.
2. That Z live with the father as follows:
a. Each weekday between 8am and 6pm;
b. From 8am on Friday 21 December 2012 until 6pm on Monday 24 December 2012 and each alternate weekend thereafter, subject to order 2(c);
c. During the period of 24 December 2012 until 6 January 2013 the father’s time with Z pursuant to order 2(a) and (b) shall commence at 10am and conclude at 4pm.
3. That Z live with the maternal grandmother at all other times that she does not live with the father and in addition as follows (and where there is any inconsistency between this order and order 2, this or has precedence):
a. At 6pm on Thursday 13 December 2012 until 8am Monday 17 December 2012 and each alternate weekend thereafter (and the father’s time with Z is suspended during this period).
4. That Z spend time with the mother as agreed with the maternal grandmother and mother but this must not occur at times that Z spends time with the father pursuant to order 2.
5. That the mother is to be supervised at all times that she spends time with Z by any of the maternal grandmother Ms Willder, the maternal aunt Ms P, Mr R or the maternal aunt Ms B. For this purpose the supervisors shall provide the Court with an undertaking as to the supervision within 7 days of the date of these orders.
6. That for the purpose of the father spending time with Z pursuant to order 2:
a. The maternal grandmother will deliver Z to the father at the residence of the paternal grandmother at the commencement of the father’s care period;
b. The maternal grandmother will collect Z from the father at the McDonalds Restaurant located at (omitted);
c. The mother is restrained from attending changeover.
7. That without admissions the mother and father are restrained from drinking alcohol to an excess and/or using illicit substances for 24 hours prior to and during any period that Z is in their care.
8. That the mother and the father must do all things necessary to undergo a urinalysis screen for drugs of abuse (“the test”) with an organisation of the respective party’s nomination, and for this purpose the mother and father must:
a. Undertake all reasonable enquiries to ensure that the procedures for the test are in accordance with Australian Standard AS/NZS 4308:2008, prior to using any organisation for the screen;
b. Provide a urine specimen supervised in accordance with the specimen collection procedures set out in Australian Standard AS/NZS 4308:2008;
c. Provide all reports from the test to the Independent Children’s Lawyer within 24 hours of receipt of each such report;
d. Forthwith direct the organisation undertaking the test to do a confirmatory test in accordance with Australian Standard AS/NZS 4308:2008 in the event that the test reports the need for further testing;
e. Pay all costs associated with the test, including any confirmatory testing of the test if required;
f. Undertake the test within 24 hours of the Independent Children’s Lawyer providing the mother and father with a direction in writing to undertake such a test, but the Independent Children’s Lawyer is limited to making this direction no more than once a fortnight.
9. That each party has liberty to restore the matter to the list on 7 days’ notice in the event that the mother and/or the father fail to comply with order 8.
On 19 June 2013 the final hearing having commenced and being adjourned part heard the following orders were made:
1. The parenting orders relating to the child Z (“Z”) born (omitted) 2009, as made on 11 December 2012 are to continue.
2. To facilitate compliance with the orders today, and to enable continuing compliance with the orders of 11 December 2012, Mr Monroe is to deliver Z to the care of the maternal grandmother, Ms Willder at 6pm today at the home of Ms Willder.
On 5 September 2013 again whilst the case was adjourned part heard the following orders were made:
1. The Orders made on 11 December 2012 are suspended forthwith until 8.00am on 23 September 2013.
2. During the period of suspension, the child, Z born (omitted) 2009, shall live with the Maternal Aunt, Ms P.
3. The child, Z, shall spend such time with each of her father and mother upon such conditions as are agreed between Ms P, Mr Monroe and Ms Gordon subject to the condition that Ms P shall always be present during any period of time that Z spends by agreement with Mr Monroe and/or Ms Gordon.
4. As and from 8.00am on 23 September 2013, the Orders made on 11 December 2012 shall recommence pending further Order of this Court.
5. 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 is set out in Attachment A and these particulars are included in these orders.
6. Each of the Applicant and First Respondent shall file and serve by 4.00pm on 1 November 2013 one further Affidavit with respect to the issues raised in the Affidavit of the Second Respondent sworn 30 August 2013 and e-filed on 4 September 2013.
THE COURT NOTES THAT:
The case is to otherwise continue Part Heard at 10.00am on 28 November 2013.
The basis of the making of the orders on 5 September 2013 was principally that the maternal grandmother and the paternal grandparents were both spending time overseas on holidays.
The latter stages of the final hearing were interrupted by the mother being jailed. Two scheduled days for final hearing were lost.
By the conclusion of the final hearing the mother had had a severity appeal determined by the New South Wales District Court and was released having been essentially sentenced by that Court to the time served. Legally the sentence for imprisonment was overturned and replaced by a bond pursuant to s.9 of the Crimes (Sentencing Procedure) Act (NSW). The terms of the bond included a number of ongoing conditions for supervision by the New South Wales Department of Probation and Parole.

Evidence

Mr Monroe

He lives with his parents at (omitted) a suburb of (omitted).
During the course of the hearing he was not fit for work having been diagnosed with MS.
He was born on (omitted) 1982.
He says that he commenced a relationship with the mother in March 2008. He says they started to live together in early 2009. His first Affidavit says that they separated on or about 28 January 2012.
As a consequence of his oral evidence he conceded that after 28 January 2012 he and the mother from time to time spent considerable periods of time in each other’s company often living together, and at those times maintaining a sexual relationship.
On 16 December 2013 Mr Monroe gave further oral evidence to the effect that his relationship with the mother was now indeed finally over. He conceded that he had said this before in his oral evidence, and it had not subsequently turned out that way.
The father said that he has an older child from a relationship with a Ms W. That child is A born (omitted) 2006. He also has another older child B, but has no relationship with B.
He says that A lives with her mother and spends time with him each alternate weekend from Friday night through to Sunday night. In the intervening week he spends time with A one evening a week. He also spends time with A for half of each school holiday period.
He says that early in his relationship with the mother he was employed fulltime, and the mother was at home caring for the children initially X and Y and then after Z’s birth also Z. He said that he assisted with the care of all the children often taking responsibility for meal preparation but also undertaking many other parenting and household tasks when not at work. He was critical of the mothers capacity as both a homemaker and as a parent.
He says that towards the end of 2011 he saw the mother begin to smoke methamphetamine or ‘ice’. By late January 2012 it was his observation that she was smoking ‘ice’ once a day or once every second day. He says that she would also over-consume Nurofen Plus. He took no steps to remove the children from her care, until after she was hospitalised.
Arising from an incident with the mother he agreed he was arrested, charged and convicted of assault with indecency, common assault and damage to property. He was placed on a good behaviour bond and subjected to the terms of an apprehended violence order to protect the mother.
He said that he and the mother later reconciled their relationship.
On 6 July 2012 he says that he received a telephone call from a person at the Emergency Department of (omitted) Hospital and learnt that the mother was then an inpatient at that hospital.
He described his parents’ home at (omitted) as a four bedroom home. His mother and father sleep in one bedroom. He sleeps in another bedroom. The third bedroom is available for Z’s use. He says that the home has a large backyard with a swimming pool.
He describes Z as being affectionate with him saying to him “I love you daddy”.
In paragraph 68 of his Affidavit sworn 24 August 2012 he says:
I have used drugs in the past but I have not consumed any illicit drugs or other substances in over a year. I consume alcohol socially.
He says that he received his MS diagnosis on 14 August 2012.
In paragraph 20 of his Affidavit sworn 3 June 2013 he says:
I deny physical violence in our relationship. I recall sometimes when Ms Gordon and I would push past each other after an argument. I do remember that when Ms Gordon and I argued I would get angry and frustrated and there were times when I shouted at Ms Gordon and I remember that Ms Gordon would scream back at me. The girls were often around when we were fighting. I often left the home after arguments and went for a drive so things could cool down.
He agrees that on 12 November 2012 he withheld Z. He deals with this incident in paragraph 46 of his Affidavit sworn 3 June 2013 and says:
On 12 November 2012 I spoke to Ms Willder and told her words to the affect “I won’t be returning Z… and it will need to be taken back to Court”. I did this because I was concerned about more allegations made to the police about me. I knew that if I was charged with any criminal offence I would be incarcerated because of my parole conditions.
Further in his Affidavit of 3 June 2013 he says that after having separated from the mother in late January 2012 he later resumed a casual sexual relationship with the mother and in January 2013 they went away for a holiday, to (omitted).
In late March 2013/early April 2013 he says that by agreement with the maternal grandmother he retained Z’s care.
In paragraph 52 of his Affidavit sworn 3 June 2013 he says:
From about late March 2013 Z has been living with me and Ms Willder and I have been arranging between ourselves time for Z to see Ms Willder and Z’s sisters.
Beginning at paragraph 53 of his Affidavit sworn 3 June 2013 he discloses his criminal history.
On 16 December 2013 when he was giving further oral evidence Mr Monroe said:
In June I was apprehended by police in (omitted). I’m on bail for this. I was charged with being in possession of body armour. I have entered a plea of not guilty. The proceedings are still ongoing.
In answer to a question as to why he had not disclosed this in any of his Affidavits he answered:
I didn’t think it was relevant to include it as the proceedings hadn’t been finalised.
He agrees that he has failed to report on two occasions to police in compliance with his bail conditions because he has been too ill.
During cross examination on 16 December 2013 he further disclosed that on 19 June 2013 he was charged with the offence of obtaining money from an ATM by deception. He entered a plea of guilty to that charge.
He further said that since being charged with the offences relating to the body armour he is regularly stopped by police and searched. He could recall six occasions when this occurred.
On 10 March 2013 a call was made by Counsel for the mother to the father to produce at 10am on 12 March 2014 copies of all Court Attendance Notices, Police FACTS sheets, and Police Charge sheets for all charges faced by the father not yet finalised.
On 12 March 2013 the father’s Counsel on his behalf answered the call by saying there were no documents produced.
During his cross examination the father was asked questions about paragraph 103 of the Family Report which says:
X indicated that she had witnessed Mr Monroe be physically violent towards Ms Gordon on several occasions. She gave a disturbing account of one occasion, which she said had occurred during a period when Mr Monroe had moved out. X said that Ms Gordon had been asleep in the lounge room and that she had been lying in the kid’s room. She said that she got a message from Mr Monroe asking her to open the back door to let him in and claiming that Ms Gordon had requested that he attend upon the home. X said that Mr Monroe was at the back door and had a face on him like “hurry up”. She said she reluctantly let him in and he ran straight in and started to yell at her [Ms Gordon] and say “get up, get up”. X said that Mr Monroe had accused Ms Gordon of seeing other guys and he grabbed his hand around her throat and was “like tugging her back and forth and then he was like pushing her against the floor”. X said that she had wanted to go into help Ms Gordon but Mr Monroe would not allow it. She said “I was like crying and shaking and I was scared for her”. X indicated she thought it was her fault that Ms Gordon had been hurt because she had let Mr Monroe in. X went on to describe how she had witnessed “Mum in a corner rocking herself and Mr Monroe standing over Ms Gordon”. She said Ms Gordon was telling X to give him your phone. X said later that night Ms Gordon was “being all nice all of a sudden to Mr Monroe and that Mr Monroe slept over”. X stated that “they were like the happiest couple again; like, it was crazy”.
Mr Monroe agrees he was at the back door on this occasion and did send a text to X to let him in. He said “there was no violence by me at all that night”.
During his cross examination Mr Monroe said that he receives a Newstart allowance. He hopes to get work after the court case. He said that if Z is by order to live with him then he will live at his mum and dad’s home.
Mr Monroe said that his MS is managed by a weekly injection given by his General Practitioner. He says after the injection I get a head ache and body aches and tiredness and this lasts for about a day and he treats these symptoms by taking Nurofen.
During his cross examination Mr Monroe agreed that during a brief adjournment early in the proceedings he did make gestures to the mother mimicking the putting of a syringe into an arm. He said that it was his belief that the mother was trying to wind him up and that is why he made the gesture. He was asked “Can the mother wind you up by just a look” he replied “yes I guess so”.
Mr Monroe denied using drugs apart from a small period of use when he was younger. He denied supplying drugs. He was asked a number of questions during cross examination about text messages between he and the mother which seemed on their ordinary meaning to relate to drug use and drug paraphernalia. He denied this was their meaning.
In his Affidavit sworn 28 October 2013 Mr Monroe says that he was arrested in September 2013 for breach of bail. At that time the police also arrested the mother. He later learnt that she was charged with offences relating to counterfeit money. The money having been counterfeited on a photocopier in the home office of his parents’ home, whilst the mother was staying with him, without the knowledge of his parents.

Ms M – Paternal Grandmother

In her Affidavit sworn 22 June 2012 she said that she was aged 49. She was then working as a (occupation omitted). In her oral evidence she said “I am at home every day. I am a fulltime house wife”.
She is supportive of the father and Z living at her home.
In her oral evidence she described the mother and the father when together “as being like a bad cocktail”.
She expressed disappointment that the father had let Ms Gordon come to her home whilst she was away in September 2013.
She thought that she had a workable relationship with Ms Willder. In answering questions during cross examination she said that she did not know of the charge relating to the body armour faced by her son until she saw court papers in his bedroom. She said that she read the FACTS sheet. She said that she spoke to her son about it and he said to her “it wasn’t his”.
She said that her son did not tell her how the body armour got into his car.
In answering questions put to her by Counsel for the Independent Children’s Lawyer she said:
When Mr Monroe and Ms Gordon are together there is always a risk for Z.
She says that she helps her son with Z’s care but described it as being his prime responsibility to look after Z.

Ms Gordon

At the time that she first gave her oral evidence she was an inmate at (omitted) Correctional Facility. In her evidence in chief she said:
I propose that my three daughters live with my mother and that she have sole parental responsibility subject to seeking my opinion first and taking my opinion into consideration.
She also said that she wanted to spend time with her daughters and would agree to a period of supervision for six months. She admitted to being a user of ‘ice’. On 17 December 2013 when she was giving her evidence she said that she was awaiting a bed at Jarrah House in a residential rehabilitation drug program.
In answering questions put to her in cross examination by Counsel for the father she said “in May 2013 I was injecting ‘ice’”.
She also said “I agree I purposefully mislead the Court about my drug use in my Affidavit”.
She said she would accept supervision of any time she has with Z by her sister.
She said that a lot of the time that she got back with Mr Monroe was because of drugs. She said that the most recent occasion in September 2013 she got back with Mr Monroe so that they could engage in criminal activity regarding counterfeiting money. She agreed that she had been charged but he had not.
When cross examined she said “I used drugs during the period after the June hearing dates until I was arrested in November 2013”.
In her oral evidence she said that she had been back in a relationship with Mr Monroe from about mid August 2013 until 17 September 2013 when they were arrested.
She said that on the day of their arrest on 17 September 2013 that Mr Monroe had “been up all night strung out from drugs”.
She said that she was given a jail sentence for the charges of counterfeiting and commenced serving jail time on either the 5^th or 6^th November 2013.
During her oral evidence on 10 March 2014 she said that she had been released from prison on or about 10 February 2014 as a result of a severity appeal being heard in the District Court. As a result of the District Court Judge’s decision she was placed on a bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months to be supervised by the New South Wales Department of Probation and Parole to undertake drug rehabilitation and to submit to random urinalyses as required. By the time of her release she had served some four months in prison.
She agreed that she had had no drug rehabilitation treatment or counselling since her release from prison. She said that she had not undertaken urinalyses to detect drugs since her release from prison.
By 10 March she was living in the home of her sister. She said her mother had facilitated her spending time with all the children after her release from prison.

Ms Willder

She lives at (omitted) near (omitted).
She works fulltime.
In her oral evidence she said that she collected her daughter from the jail on 12 February 2014 when she was released as a result of her District Court severity appeal. She said that she brought her home to have a shower and then took her to her daughter Ms P’s home so that she could live there.

Ms Willder said she lives in a three bedroom home with her partner. She said that X has her own bedroom She said that Z and Y share a former lounger room as their bedroom.
She said that her partner is self-employed and has flexible working hours and undertakes in addition some part-time (omitted) work for another company.
She said that X is enrolled at and attends (omitted) High School.
She said that Y is enrolled at and attends (omitted) Primary School.
She said that if Z is to live with her she will commence Z at school in 2015 at (omitted) Primary School.
She agreed that she had facilitated time between the mother and the children post the mother’s release from prison. In hindsight on reflection she conceded not having through all the risks raised by this decision.
In her oral evidence she agreed that she and the mother don’t always agree and argue if there is a disagreement.
In answering questions during cross examination she said:
If Mr Monroe is living with his mother I think overnight time for he and Z would be ok.
In answer to another question she said:
I have complied with orders for Z to spend time with Mr Monroe but as the evidence in the hearing has come out I have grown increasingly disquiet about time happening between Mr Monroe and Z.
She also said:
I won’t permit Ms Gordon to live again at my home no matter what.
She agreed that there had been two physical altercations between her and the mother the first in March 2013 and the second in May 2013. She agreed that all the children had seen the second altercation.
She said during her oral evidence that she thought that the Family Consultants assessment in paragraph 56 of the Family Report was probably correct. She said that she now saw it as a priority to look after the children and now recognised that she may have to prioritise the children’s needs over Ms Gordon’s needs.
She described X and Y as having most recently spent time with Mr Clarke just prior to Christmas 2013 and having weekly telephone contact with him. She says that she facilitates time for Y and X with him if ever he is in Sydney.

Ms P

She was not cross examined.

Ms D – Family Consultant

She prepared a Family Report pursuant to a section 62G order. That report is dated 6 May 2013 and became Exhibit ‘H’.
Paragraph 18 of the Family Report records:
Mr Monroe…presented as hostile towards Ms Gordon. He appeared somewhat evasive at times, particularly with regard to questions put to him about his conviction of violence towards Ms Gordon. At times, his responses indicated a tendency to minimise his own part in events so as to portray Ms Gordon as the wholly responsible party.
Paragraph 26 of the Family Report, Ms D records Mr Monroe as saying:
He had tried illegal drugs in the past, being cannabis and ecstasy. He stated that he not used cannabis in the last nine years and had not used ecstasy in the last five years. He denied that he had ever used cocaine or ‘ice’ as alleged by Ms Gordon. He denied ever having used an illegal drug during his relationship with Ms Gordon.
At paragraph 50 of the Family Report, Ms D records:
Ms Gordon said that her drug use commenced in around November 2011.
In paragraph 56 of the Family Report Ms D recorded:
Ms Willder the maternal grandmother presented as genuinely caring about the wellbeing of the children but experiencing conflicted loyalties. At times Ms Willder presented as somewhat naive about the behaviour of Mr [sic] Gordon and possibly of Mr Monroe.
In paragraph 59 of the Family Report Ms D records:
Ms Willder confirmed that she had struck Ms Gordon in frustration on one occasion when Ms Gordon had punched her.
Ms D had interviewed Mr R, Ms Willder’s partner and he told her as recorded in paragraph 74 of the Family Report:
He had a good relationship with the children and was willing to support Ms Willder in caring for them if the Court thought it was in their best interest to live with Ms Willder.
Ms M was interviewed by Ms D and in paragraph 87 of the Family Report it is recorded:
Ms M… supported Mr Monroe’s application that Z live with him and was happy to assist him with Z’s care, stating, “That’s why I came back from (omitted); so I can give 100% to Mr Monroe and Z”. Ms M also said she supported Z spending time with Ms Willder and the maternal family stating “we understand she has another family”.
In paragraph 96 of the Family Report Ms D describes the child X as follows:
She appeared to understand all the questions put to her and the implications of her responses. X appeared to have a well-developed moral code and an ability to understand complexity. She presented as sad about her living situation and the paternal and wider family conflict. The Court should place significant weight on her stated wishes and views.
In paragraph 97 of the Family Report it is recorded:
X thought that the arrangement that she, Y and Z live with Ms Willder and that Z spend time with Mr Monroe during the day had been working well. She indicated, given the situation, this would be her preferred arrangement.
Later in the same paragraph it is recorded:
X admitted that she felt like she had to live with Ms Gordon to keep her on the straight and narrow but stated “I’m going to be honest I don’t want to live with her”. X indicated that it was important to her not to change schools declaring “we have changed schools like a million times”.
In paragraph 98 of the Family Report it is recorded:
X stated “I really don’t want to live by myself [meaning without another adult] with mum. I don’t think it’s safe”.
Later in the same paragraph of the Family Report it is recorded:
In addition X reported that she had experienced and incident with Ms Gordon the Saturday evening prior to the Family Report interview which she believed the Family Consultant should know about. X reported that Ms Gordon had taken her and Y to a restaurant for dinner with a plan to go the cinema afterwards. She said that, after they had eaten, Ms Gordon had instructed the children to go and stand outside. X said that she had become suspicious because of the manner in which Ms Gordon had said this and questioned Ms Gordon about whether she was intending to pay the bill. X said that Ms Gordon insisted that she go outside and wait for her. X claimed that Ms Gordon told the waiter that the children had gone to the toilet and that she was going outside for a cigarette and then left without paying. X said that when all three were outside, Ms Gordon had instructed them to run to the cinema. X declared “I was telling her how bad it was and had been thinking this is wrong and I should tell someone, I should go back there and tell them.” She said that she was fearful that all three of them would be arrested.
In paragraph 103 of the Family Report it is recorded:
X indicated that she had witnessed Mr Monroe be physically violent towards Ms Gordon on several occasions.
In paragraph 108 of the Family Report Ms D describes Y as follows:
Y presented as somewhat less mature than average for a child of her age and stage of development; although, she appeared to have met all other milestones for her age and stage of development and appeared to understand the questions put to her.
In paragraph 111 of the Family Report it is recorded:
Y declared “I want to live with mum not my nan” stating this was because “I can talk with her”.
In paragraph 113 of the Family Report it is recorded:
Y thought that Mr Monroe was mean. She indicated that she had witnessed significant conflict between Mr Monroe and Ms Gordon, including physical fights and shouting. She said there had been shouting nearly every day and that both Mr Monroe and Ms Gordon had engaged in this. She said that, on several occasions, she “saw mum being hurt”.
In paragraph 115 of the Family Report Y is recorded as saying “Z likes Mr Monroe”.
The Family Consultant observed both Mr Monroe and Ms M with Z and in paragraph 116 of the Family Report described “Z went happily with Mr Monroe to the playroom” and later in that same paragraph it is recorded “Z appeared comfortable with Mr Monroe throughout”.
A similar level of comfort was observed in Z’s interactions with Ms M. This is recorded in paragraph 117 of the Family Report.
At the commencement of the observation involving X, Y, Z and Ms Gordon the Family Consultant records in paragraph 118 of the Family Report:
Upon commencement of the observation Z was observed to run to Ms Gordon calling out “mumma, mumma, mumma” she appeared excited to see Ms Gordon and hugged and kissed her.
Similar observations were conducted with Mr R and Ms Willder and Ms B and are recorded in paragraph 121 of the Family Report. Z was reported as being excited to see Ms Willder.
In paragraph 132 of the Report in her evaluation Ms D wrote:
Z presented as having met all her milestones for her age and stage of development. She was too young to be meaningfully interviewed but the observation session showed very positive relationships with Mr Monroe and Ms M, Ms Willder and her household and with Ms Gordon. She was particularly excited to see Ms Gordon. It could not be determined if this was because Ms Gordon was her primary attachment figure or because she had not seen her for some time.
Later in the same paragraph it is recorded:
It was assessed that Z could in terms of her attached relationships live with Mr Monroe, Ms Gordon or Ms Willder as long as she had the opportunity to spend regular time with the others.
Paragraph 139 of the Family Report Ms D records:
Chronic exposure to family violence has been demonstrated to have a detrimental impact on children’s developments. If the Court found that Mr Monroe has perpetrated violence consistent with the allegations made about him and/or had abused illicit drugs, it is of concern that he would deny doing so. Such denial elevates the risk to any child in his care because it demonstrates unwillingness to take responsibility for his action and for the impact on the child of such actions. In addition, without an admission that one has a problem managing anger and other negative emotions, one cannot utilise therapeutic interventions effectively.
In paragraph 146 of the Family Report it is recorded:
Ms Willder presented as a warm, genuinely child focused person who was assessed as a competent day to day carer for the children. It appeared she could provide a calm, routine environment for the children as long as Ms Gordon was living with her. Ms Willder appeared to appreciate the children’s emotional needs as well as their need to have a relationship with their parents.
In paragraph 148 of the Family Report Ms D records:
It would be important for all three children, particularly Z, who is very young to be provided with routine, consistent care, free from conflict, physical violence and parental neglect.
In paragraph 149 of the Family Report it is recorded:
The children appeared to have a well-developed bond between them and ideally they should live together.
And later it is recorded:
If the children were to live separately they should spend time together regularly.
In paragraph 151 of the Family Report Ms D writes:
If the Court determined that Mr Monroe posed an unacceptable risk of harm to Z as a primary carer, she should spend time with him supervised by Ms M and should live with Ms Willder.
In paragraph 153 of the Report Ms D writes:
It was assessed that if the Court determined that there was no suitable parent to care for Y, X or Z, Ms Willder would be able to provide good quality care to them and would likely ensure that the children’s relationships with their parents would be facilitated.
Ms D was cross examined. In answering questions put to her by Counsel for the Independent Children’s Lawyer she said that:
X was distressed by running away from the restaurant it violated her moral code. Her behaviour represented a reversal of the usual parental role.
Ms D said that she considered that the risk of harm to the children to be real and significant and should cause the children to be placed with the maternal grandmother. She described the risk to the children as being the mother’s drug use, the mother and father’s family violence. The mother’s neglect of the children and the continuation of the mother and father’s relationship.
In answer to the further questions put by Counsel for the Independent Children’s Lawyer Ms D said:
Persons using methamphetamine should spend no time with the children whilst using due to a risk of exposure to violence.
Ms D described children of X’s age as not being perfect recollectors of events but you need to have an overall look at what they are saying. Sometimes in their narrative and particularly for events some time ago they telescope the events into one event. She said that X needed little prompting to give her narrative. She said that her age, her intelligence and her articulateness were important factors in accepting her narrative.
Expanding upon paragraph 139 of the Family Report she said:
Chronic exposure to violence affects children’s own development. Long term exposure to family violence can cause children to experience heightened anxiety and depression later in life.
She thought that X’s hyper vigilance was probably as a result of exposure to family violence.
In answering a question as to what time the children should spend with the mother if they were to live with the maternal grandmother Ms D said their time with the mother should be supervised at least fortnightly so as not to disrupt the routine and home life they have with the maternal grandmother. She further said that the children should have no overnight time with the mother until she has completed a residential drug and alcohol rehabilitation program. Ms D was of the view that there should be a two year period of no drug use demonstrated by the mother before it could be considered that her risk of drug use would have abated.
With respect to the father she thought that the risk that he presented to the children arose from his acts of violence and from his continued relationship with the mother. In answer to further questions she said that the father’s time should be undertaken with Z at the home of the paternal grandparents so that they can at least monitor this time. Such monitoring Ms D thought would reduce the risk for the children.
She described the three children as being close and ideally they should live together but they have experienced living apart. Ms D said that if they lived separately they should see each other at least weekly.
In answer to a question put by Counsel for Mr Monroe, Ms D said that she had not been able to assess Z’s relationship with her sibling A. She thought this relationship would be important for Z.
Ms D was prepared to concede that Z might not be at risk of family violence from the father if the father is not in a relationship with the mother.
Ms D agreed with the proposition if there was not risk for Z then she could live with the father. She described Z as having a warm, loving relationship with each of the father, maternal grandmother and paternal grandmother seeming to get on equally as well with all of them.
In answer to a question put to her by Counsel for the mother Ms D said if the father is not being transparent in his evidence then it raises concern that there may be current behaviour in which he is involved which could place the children at risk of emotional harm or of being exposed to poor role modelling.

Determination

Parenting orders made in this case are to be informed by the objects set out in s.60B of the Family Law Act1975.
Parenting orders must have as their paramount consideration be in the best interests of Z. Section 60CC sets out the factors the Court must consider in deciding what is in Z’s best interest.
In addition to orders being in Z’s best interest they must also be reasonably practicable.
In deciding whether there is an unacceptable risk faced by a child the High Court decision M & M (1988) FLC 91-979 is to be applied.
There is little to no benefit for Z in spending unsupervised time with her mother whilstever her mother remains addicted to drugs. What time she does spend with her mother must be supervised so as to protect Z. Unsupervised time should not occur until after the mother’s drug addiction has been treated in a residential rehabilitation program. Thereafter, 2 years of demonstrated abstinence would mean the risk of relapse was sufficiently reduced to make unsupervised time possible and for such time not to have the likelihood of exposing Z to risk of neglect be it either emotional or physical arising from the mother’s drug use.
It would appear from her oral evidence in March 2014 the mother now recognises her drug addiction. She conceded lying about that drug addiction in her Affidavit material.
Having read the mothers Affidavit evidence and having heard her oral evidence I cannot be satisfied that the mother is a truthful witness absent some form of corroboration, even now.
I have similar concerns about Mr Monroe’s evidence but for other reasons. Those being that he minimises the extent of the family violence that occurred in his relationship with the mother. It would seem that their time together was punctuated by periods of extreme volatility, raised voices and shouting and periods of actual physical violence. He did nothing to protect the children from exposure to the mother’s drug use.
I accept without reservation X’s narrative to Ms D and find Mr Monroe physically assaulted the mother in the way X described.
The father’s denial of physically taking the mother by the throat on this occasion is not believable.
Similarly he minimises the violence that occurred when he was charged for assault on the mother.
He also has not made full and frank disclosure regarding all of his involvement with the New South Wales Police Force. This does not mean that he is guilty of the offences with which he has been charged. It does mean that because he has hidden the charges I cannot be certain that he is not hiding other evidence that might be construed adversely against him.
His explanation as to the meaning of the text messages between he and the mother were implausible on the ordinary meaning of the words.
All of these factors cause me to conclude that he is not a witness of truth.
His propensity to continue his relationship with the mother even during the course of the final hearing causes me to conclude that he will resume that relationship with the mother at some stage in the future despite his protestations to the contrary.
That would mean that if Z were living with him it would expose Z to the risk that is inherent on occasions in that relationship of extreme volatility and some violence, and would not provide Z with the calm routine of family life that is available to her if she lives with Ms Willder, X and Y.
I am satisfied neither Ms Willder nor her partner have been abusive of the children. The assertions they have been are unsubstantiated. Even if true they are not serious enough to conclude an ongoing risk to Z that would overwhelm all the other relevant factors, considered herein.
I accept Ms D’s evidence that exposure of children to family violence runs the risk of compromising their mental health in later life in that such children have a greater risk of developing anxiety and depression. Such a risk is possible given the real possibility of the mother and father reuniting. If Z were then living with the father she would again become exposed to the volatility that characterises the mother and father’s relationship when they are together.
Z has not expressed any views as to her preferred parenting arrangement.
She expressed excitement during the Family Report observations in seeing her mother and her grandmother. She was very comfortable in the time that she spent with the father and Ms M.
I accept the evidence of Ms D that Z has a comfortable and important relationship with each of Ms Willder, Mr Monroe, Ms Gordon, Ms M and her sisters X and Y. I think it is very likely that she also has a good relationship with A given the time that they have spent together.

On one occasion Mr Monroe retained Z’s care because he was fearful that he might be going to be imprisoned. That action reflects very poorly on Mr Monroe. It demonstrates that at that time he was focussed more on his own needs than on Z’s needs.
Ms Gordon’s drug addictions mean that her decision making as a parent is compromised. Such compromised decision making does not lend itself to the sharing of parental responsibility.
Question marks arise regarding Mr Monroe’s capacity as a decision maker because he minimises the family violence that he has perpetrated and because he is unable to successfully separate himself from Ms Gordon. Even his own mother can recognise the damage that their relationship with each other brings. That he cannot is of significant concern. It creates a real risk that their relationship will resume. Whilst that is a matter for them as adults, it would not be in Z’s best interest if she were living with the father and his relationship with the mother resumed as it is likely too.
For a long period Ms Gordon has been unable to manage her finances so as to properly maintain the children. The burden of maintaining Z has largely fallen in recent times on Ms Willder.
For most of her life Z has lived with X and Y. For much but not all of the last two years she has lived with Ms Willder and spent time with Mr Monroe. Z would cope with a change in these circumstances and be able to live with Mr Monroe if it were overall in her best interest to do so.
Currently Ms Willder, Ms Gordon and Mr Monroe live within close proximity of each other.
Ms Gordon lacks the capacity by virtue of her drug addiction to be an effective parent. Her drug addiction means that she is unable to focus on providing for the needs of Z either physically or emotionally.
Ms Willder is very focused on meeting Z’s needs.
Ms M too is ready and willing to devote herself to assist her son in caring for Z.
Mr Monroe’s capacity to meet Z’s needs is compromised whenever he is in a relationship with Ms Gordon. As I have said there is a real risk that that relationship will continue.
Ms Gordon has demonstrated a continuing poor attitude to the responsibilities of parenthood. Mr Monroe by his involvement in family violence and by the adverse notice that he attracts from the New South Wales Police also displays an attitude that is demonstrably poor as to the responsibilities of parenthood. By his admitted criminal behaviour he is not a good role model for Z.
Ms Willder is reflective of her short comings acknowledging that she has been naive with respect to Ms Gordon but is otherwise appropriately and properly exercising and demonstrating a responsible attitude with respect to parenthood of Z.
Mr Monroe has been subject to family violence orders to protect Ms Gordon.
In analysing the above evidence relevant to the factors in s.60CC, I have included Ms Willder in that analysis. Clearly, on the face of some of the subsections she is not a parent but rather a grandparent. Not all of the subsections in s.60CC to be consideration in light of evidence are directed to grandparents. The Full Court of the Family Court has however held in a number of decisions that the analyses of the evidence as it relates to grandparents with respect to all of the factors in s.60CC is made relevant by s.60CC(3)(m) and it is on this basis that I have analysed the evidence on all factors with respect to Ms Willder. She is seeking an order that Z live with her. To not have considered all of the s.60CC factors as applicable through s.60CC(3)(m) to her might cause the overlooking of relevant evidence.
In balancing all of the above factors it is clearly and overwhelmingly in Z’s best interest that she live with Ms Willder.
There is no doubt that s.65C(ba) enables Ms Willder to apply for a parenting order.
There is no demonstrated history of her, Ms Gordon and Mr Monroe making joint decisions of a parenting nature.
Ms Gordon’s drug addiction inhibits her making such decisions.
Mr Monroe and Ms Willder have, apart from isolated incidents not really attempted to do so on any ongoing long term basis.
Because there will be an order that Z live with Ms Willder, it is Ms Willder who will have responsibility solely for making decisions; of a parental responsibility nature for Z.
She should consider the viewpoints of Ms Gordon and Mr Monroe but should not implement them if they conflict with her decisions with respect to Ms Gordon as a result of her lack of capacity as a decision maker and with respect to Mr Monroe because I cannot be certain that he is always focused on Z’s best needs.
An equal time arrangement is not something that Z has ever experienced.
If Z were to live in an equal time arrangement between Ms Willder and Mr Monroe there is a risk because of the frequency at which Mr Monroe comes under adverse notice of the Police that Z might be with him at such a time. That would not be in her interest especially if he were to be arrested. Also the need for Mr Monroe’s time with Z to be monitored to ensure he does not take up again with Ms Gordon precludes an equal time order.
The lack of history of Mr Monroe and Ms Willder co-operatively co-parenting mitigates against an equal time order. It is an untested regime.
Z’s relationship with Mr Monroe is more than strong enough to cope with longer alternate weekend periods provided he is living in the home of his mother so that his time with Z can be monitored. That time needs to be monitored to ensure that he does not resume a relationship with Ms Gordon thereby exposing Z to the risks of family violence. Such monitoring might also usefully moderate the behaviour of Mr Monroe which seems to so attract the attention of the New South Wales Police.
Periods of time with Mr Monroe that correspond with the time that he has with A will also facilitate the continuation of Z’s relationship with A. That time absent her other sisters is unlikely to affect that sibling relationship nor will it undermine her relationship with Ms Willder.
The supervised time proposed by the Independent Children’s Lawyer for Z with the mother is necessary to ensure Z’s protection given Ms Gordon’s deficits as a parent. That time should not occur at times that she is spending with Mr Monroe. That would result in occasions during holiday periods of Z not spending time with Ms Gordon when she is on holiday with Mr Monroe.
Z’s holiday periods with Mr Monroe must also be monitored by his mother.
Monitoring is not full supervision. Monitoring will be sufficient if Z is sleeping at the home of Ms M. Monitoring does not require Ms M to be at all daytime activities involving Z and Mr Monroe, but it does require her knowing of their whereabouts.
Ms M has said that she is willing to devote herself to assisting her son with Z.
Such monitoring by Ms M reduces to an acceptable level the risk that spending time with Mr Monroe occasions for Z as it will ensure that during those times he is not with Ms Gordon and less likely to engage in activities that might attract the adverse attention of New South Wales Police.
The definition that the orders will provide, coupled with the fact that the parties’ homes are in close proximity of each other and also because Ms M is not in paid employment and thereby available to monitor means that the orders are reasonably practicable in addition to being in Z’s best interest.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate:

Date: 6 June 2014

[2014] FCCA 1003

6 June 2014

Key Legal Topics

Areas of Law

Family Law