Moyes and Horton and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOYES & HORTON & ANOR

[2013] FCCA 461

Catchwords:
FAMILY LAW – Parenting dispute – young child living most recently for some time with paternal grandmother – father and mother both formerly addicted to drugs – whether mother sufficiently reformed to safely resume primary care of child – whether mother’s relationship with maternal grandmother likely to lead to family violence – whether paternal grandmother’s concerns about mother made out – family report writer recommending child’s return to primary care of mother – orders made in accordance with family reporter’s recommendation.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3)(a), 60CC(3)(b), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(K), 60CC(3)(l), 60CC(3)(m)

Goode v Goode [2006] FamCA 1346

Applicant:

MS MOYES

First Respondent:

MS HORTON

Second Respondent:

MR MOYES

File Number:

MLC 8452 of 2011

Judgment of:

Judge Burchardt

Hearing dates:

18, 19, 20, 26 & 27 March 2013 and 5 April 2013

Date of Last Submission:

5 April 2013

Delivered at:

Melbourne

Delivered on:

19 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Jenkinson

Solicitors for the Applicant:

Jane Baldwin

Counsel for the First Respondent:

Mr Allen

Solicitors for the First Respondent:

Oakfair Lawyers

The Second Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Gordon

Solicitors for the Independent Children’s Lawyer:

Reale Lawyers

ORDERS

The mother have sole parental responsibility for the child of the relationship [X] born [in] 2008 (“the child”) save that the mother shall give the father and paternal grandmother reasonable notice, where practicable, of any major decisions the mother is contemplating making concerning the child.
Commencing 2.00 pm on 20 June 2013 the child live with the mother and the maternal grandmother be in substantial attendance until 30 June 2014.
The paternal grandmother spend time and communicate with the child as follows:
(i)In 2013 during the Victorian School term, on the third weekend of each month commencing from 12.00 pm Thursday to 4.00 pm Sunday and, if Monday is a Public Holiday to 4.00 pm Monday;
(ii)Commencing in 2014 during the Victorian School term, on the third weekend of each month from 4.00 pm Friday to 4.00 pm Sunday and, if the Monday is a Public Holiday or a non-school day to 4.00 pm Monday;
(iii)Commencing in 2014 during the Victorian School term, on the first Sunday of each month from 11.00 am to 4.00 pm in the [W] area with the paternal grandmother to contact the mother by the Thursday to confirm her intention to spend time with the child on the Sunday;
(iv)From 2013 for half the gazetted Victorian School term holidays as mutually agreed and failing agreement the second half commencing at 3.00 pm on the Saturday nearest the midpoint of the holiday to 5.00 pm the following Saturday.
Other occasions;
a.In 2013 and each alternate year thereafter from 11.00 am on 27 December 2013 to 4.00 pm 3 January 2014;
b.In 2014 and each alternate year thereafter from 11.00 am Christmas Eve to 4.00 pm 31 December 2014;
c.Unless otherwise mutually agreed in writing each year from 4.00 pm the second Saturday of the year to 4.00 pm the Sunday one week later;
d.In 2014 and each alternate year thereafter from 4.00 pm Thursday to 4.00 pm Easter Monday;
e.From 4.00 pm the Friday before Father’s Day to 4.00 pm Father’s Day;
f.If the child’s birthday falls on a school day for a least two hours as agreed with the mother;
g.If the child’s birthday falls on a non-school day for at least 4 hours as agreed with the mother;
h.By telephone on the child’s birthday, Christmas Day morning, Thursdays and Sundays between the hours of 6.00 pm and 7.00 pm and the mother to ensure that the child is ready to receive the telephone call; and
i.At other times as mutually agreed in writing.
The paternal grandmother’s time with the child under these Orders be suspended as follows:
(a)In 2013 and in each alternate year thereafter from 11.00 am Christmas Eve to 5.00 pm Boxing Day;
(b)In 2015 and in each alternate year thereafter from 4.00 pm Thursdays to 4.00 pm Easter Monday;
(c)From 4.00 pm on the Friday before Mother’s Day and if Mother’s Day falls on a weekend when the paternal grandmother was to spend time with the child under these Orders then the paternal grandmother have that time the following weekend;
(d)If the child’s birthday falls on a school day then for 2 hours as agreed with the paternal grandmother;
(e)If the child’s birthday falls on a non-school day then for at least 4 hours as agreed with the paternal grandmother; and
(f)At other times as mutually agreed by the mother and paternal grandmother.
Unless otherwise mutually agreed by the paternal grandmother and mother, the paternal grandmother shall collect the child from the mother’s home at the commencement of the spend time period pursuant to Orders 3(i) and 3(ii) and the mother or her nominee shall collect the child from the paternal grandmother’s home at the conclusion of the spend time period and otherwise the paternal grandmother shall collect the child and return to the mother’s home for all other spend time periods.
The mother shall continue to attend upon Dr K for treatment as directed by Dr K and shall comply with Dr K’s directions in regard to appointments, treatment and medication.
For twelve months from the date of these Orders the paternal grandmother on four occasions may request the mother in writing to undertake supervised urine drug screening testing at the mother’s expense and the mother provide the test results to the paternal grandmother within one week of the test results becoming available.
The father spend time with the child when the child is in the care of the paternal grandmother in accordance with these Orders for such periods of time as determined by the paternal grandmother with any such time to be supervised by the paternal grandmother until the father has;
(i)attended and undertaken drug counselling until the drug counsellor is of the view the father no longer requires counselling and the counsellor provide a letter/report to the mother and paternal grandmother confirming this. To assist the drug counsellor the father shall provide the counsellor with a copy of Dr D’s psychiatric report, the family reports of Mr H and a copy of this Order;
(ii)provided the mother and the paternal grandmother with a letter/report from Dr K stating that in Dr K’s opinion the father no longer presents as a user of illicit substances.
The mother shall forthwith advise the father and paternal grandmother of the childcare centre/kindergarten that the child has been enrolled in for 2013 and authorise the said childcare centre/kindergarten to provide the father and paternal grandmother with any information he/she may request from the childcare centre/kindergarten about the child’s attendance and progress.
The mother shall forthwith ensure that the father and paternal grandmother’s contact details are recorded in the childcare centre/kindergarten enrolment records for the child.
The mother shall request the primary school the child attends to forward to the father and the paternal grandmother copies of the child’s school reports and any other reports or notices that parents with a child at the school would normally be expected to receive.
Subject to any contrary direction of the childcare/school authorities the father, paternal grandmother and mother be at liberty to attend any childcare, school events, functions, working bees and parent teacher nights that parents with a child at the childcare centre, kindergarten or school would ordinarily be expected to attend.
The father, mother and paternal grandmother keep each other apprised of their residential addresses, telephone numbers (mobile and landline), the email addresses and advise of any change within seven (7) days of any change occurring
The mother, father and paternal grandmother shall advise each other of any medical treatment the child receives while in their care including the name, professional address and telephone number of any treating medical professional.
The mother and father are restrained by injunction from being under the influence or consuming illicit drugs or drugs not prescribed to them when the child is in their care or presence.
The mother, father and paternal grandmother are restrained by injunction from acting in an aggressive, violent or provocative manner in the child’s presence particularly at spend time changeover or at the child’s kindergarten or school.
The mother, father and paternal grandmother are restrained by injunction from denigrating each other in the presence or hearing of the child.
In the event the father commences unsupervised time with the child in accordance with these Orders then the mother, for a period of twelve months after the unsupervised time commences, be at liberty to request on four occasions that the father undertake supervised urine drug screen testing, at the father’s expense, and provide the test results to the mother and paternal grandmother within one week of the test results becoming available.
The mother and child forthwith attend upon Child First [omitted] Family Centre (“Child First”) to seek advice and assistance in regard to the child’s care, welfare and development, in particular the child’s transition to the mother’s full-time care.
To aid Child First in assisting the mother and child, the Independent Children’s Lawyer shall provide Child First with a copy of Dr D’s psychiatric report dated 22 December 2012, the Family Reports of

Mr H dated 9 May 2012 and 20 February 2013 and a copy of these Orders.
The mother shall forthwith provide Dr K with an authority allowing

Dr K to divulge to the paternal grandmother on three occasions per year the following information;
(i)whether the mother has been consulting with the doctor as requested;
(ii)whether the mother has been complying with any recommended treatment regime;
(iii)whether to the best of the doctor’s knowledge the mother has been taking any prescribed medication. This Order does not require the doctor to disclose the nature of the mother’s treatment or medication prescribed.
All previous parenting Orders made under the Family Law Act 1975 (Cth) are discharged.
The appointment of the Independent Children’s Lawyer be discharged on and from 26 June 2013.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 8452 of 2011

MS MOYES

Applicant

And

MS HORTON

First Respondent

MR MOYES

Second Respondent

REASONS FOR JUDGMENT

Introductory

The family report writer, Mr H, wrote at paragraph 29 of his most recent report dated 20 February 2013:
“The themes and recriminations alluded to in the last report remain unchanged and there is a fresh round of allegations and counter allegations with the same narratives and inferences as the previous report. The longer the matter is in dispute, the more labyrinthine the dynamics and recriminations have become …”
That analysis is, I am afraid to say, all too clearly correct.
This case was heard over some six days or parts of days and involves a very substantial amount of both written materials and oral testimony. I should make it clear at the outset that although this is the case, I do not propose to traverse in labyrinthine detail the matters the parties have raised. In the ultimate, the conclusions and the issues can and should be stated both briefly and, if necessary, with a somewhat broad brush.
The applicant paternal grandmother wishes that [X] (“[X]”), born [in] 2008, live with her and spend time with the mother and supervised time with the father.
The mother, who is the first respondent, seeks that the child live with her and her mother in [W] and spend time with the paternal grandmother, and again supervised time with the father.
The father, who is the second respondent and was self-represented throughout the trial, seeks that the child live with his mother and spend unsupervised time with him each alternate weekend.
At the heart of the primary dispute, which is essentially that between the paternal grandmother and the mother, stands the issue of whether or not the mother can be trusted to have [X] in her care or whether her various problems, including most particularly her past drug addiction, mean that [X] will be at an unacceptable level of risk if this were to be the case.
For the reasons that follow, I think that the risks to [X] of living with her mother are not so great as to make this an inappropriate outcome and I propose to make orders as recommended by the Independent Children’s Lawyer whose own submissions are based on the reports of Mr H.

Some uncontroversial facts

Both parents have had their difficulties in life. Neither had what might be thought of as a particularly trouble-free childhood. The difficulties they experienced manifested themselves in problems that they have experienced as adolescents and adults.
The father was born [in] 1982 in Romania and came to Australia with his mother in 1984. His upbringing in Romania was marked by the early loss of his father (his parents separated after six months – see

Dr D’s report) and his mother spent time working in Italy during which he was looked after by his grandparents.
Having come to Australia in 1994, the father’s education proceeded by no means perfectly and it seems clear that by the age of 15 he had started to use heroin. He is now 30 and has never really stopped.
The mother was born [in] 1989 in Holland. She moved with her family to Australia in 2002, but her father returned shortly thereafter to Holland. Her relationship with her mother has been troubled. At school she was bullied and she was raped in Year 8.
The mother commenced to use marijuana at about the age of 16 and that has been, according to her, her biggest drug problem since.
The mother also became a heroin user and she and the father met when they were both in rehabilitation in [omitted] in 2007.
[X] was conceived while they were in the narcotic facility at [omitted] and she was born on [omitted] 2008 as earlier indicated.
The life of this young child thereafter was on any view chaotic. It is not necessary to record the numerous moves that her parents underwent. The father relapsed on at least one occasion and had to be reinstated for treatment. The mother’s capacity to care for the child was regarded as inadequate both by her own mother and by the paternal grandmother.
In March 2009, the paternal grandmother first took possession, so to speak, of [X] but thereafter with her agreement [X] was sent to live with the maternal grandmother in [W]. This development led to a proceeding issued in May 2010 in which the father and mother jointly sought that the child be returned to them.
In that proceeding there was a significant issue as to whether [X] had been given to the grandparents in anticipation of the Naltrexone implant procedure that both of them underwent in April 2010 or not. On any view, the maternal grandmother took out an Intervention Order against both the parents which was made on 14 April 2010. The complaint that gave rise to that application has subsequently been exhibited to an affidavit by the paternal grandmother and alleges an assault by the mother and threats by the father against the maternal grandmother.
The proceeding initiated in May 2010 led to the appointment of an Independent Children’s Lawyer and by consent on 27 October 2010 in the Federal Magistrates Court (as it then was known) at Dandenong it was ordered that the child live with the mother and father and that the maternal grandmother spend time with the child in default of agreement once every month from Friday until Sunday.
That set of orders followed the release of a family report by Ms T which noted that at that time the relationship between the parents and the maternal grandmother had broken down, but the report had recommended that [X] live essentially with her parents.
There the matter stood until the application presently before the Court was issued by the paternal grandmother, Ms Moyes on 19 September 2011. The Affidavit supporting the Initiating Application set out numerous concerns on the part of the applicant relating to [X]’s well-being in the care of her parents. Following a hearing before Federal Magistrate Walters (as his Honour then was) on 28 September 2011, the Court ordered that [X] live with Ms Moyes and provided limited time for the parents.
While the case has wended its way somewhat slowly through the Court system, the primary care of [X] has been with her paternal grandmother until now. The regime in place requires travel by [X] to [W] for two out of every three weekends.

The positions and concerns of the parties – the applicant paternal grandmother

It is the position of Ms Moyes that [X] should continue to live with her. She seeks the orders set out in her application in a case filed on 23 January 2013. These orders would significantly limit both the mother and father’s time.
This position reflects a number of vivid concerns on the part of

Ms Moyes. At the absolute forefront of these concerns is a fear that the mother is not able properly to care for [X] and that [X] would not be safe in her care.
This fear is interrelated with an equally vivid concern that the mother is likely to relapse into heroin use because she is still in fact, contrary to her denials, in an intimate relationship with the father and is in fact not in truth living in [W] but living in Melbourne with the father.
Additionally, Ms Moyes is concerned that the mother has simply insufficient parenting skills because of her various difficulties and that [X] would not in any event be properly cared for were she to live with her mother in [W].
Further, the relationship between Ms Moyes and both the mother and the maternal grandmother is extremely fractured and Ms Moyes is concerned that if the child returns to primary care of her mother, she (Ms Moyes) and her son will effectively be excised from [X]’s life.

The mother, Ms Horton

The mother’s position is that [X] should live primarily with her. She would propose to continue to live in [W] where she says she has lived since early 2012. Initially, she would live with her own mother, Ms C but would in time seek her own accommodation. The mother says she would foment a relationship between the [X] and Ms Moyes.
This would be achieved by one weekend per month in Melbourne and a day in [W] once per month together with half the gazetted term school holidays and for a week in the Christmas holidays together with special days.
The mother proposes that the father spend time when [X] is with

Ms Moyes and supervised by her.
The mother also proposes a comprehensive set of orders designed to continue her alleged abstinence from heroin and drugs generally and to put in place various supports to assist her in that regard.
The mother’s concerns essentially in many ways mirror those of

Ms Moyes.
Ms Horton complains that Ms Moyes is unpleasant to her and is seeking actively to sabotage her relationship with [X]. This condescends to assertions that Ms Moyes is deliberately seeking to ensure that changeover is traumatic and difficult for [X] to put her,

Ms Horton, in a bad light.

Furthermore, the mother is concerned that Ms Moyes effectively gives preferential treatment to her son by allowing him to spend unsupervised time with the child. It should be noted that no one, including the mother, has suggested that Ms Moyes is anything other than a thoroughly competent carer for [X]. It is also conceded by all that Ms Moyes loves [X] dearly. It is the mother’s position, however, that the love Ms Moyes feels for [X] is obsessive. She suggests that Ms Moyes sees [X] as the daughter she never had. It is alleged that

Ms Moyes sought to adopt a Gypsy child, a girl, in the past and that [X] is so to speak the surrogate for that child.
It is the mother’s position that she has lived in [W] since January 2012, that she has been clean from drugs for a considerable period of time, that she has been able to cure herself of hepatitis C, a difficult process during which she admits her temper was at times short and her health poor. She maintains that her relationship with her own mother, previously fractured at least by the Intervention Order taken out in the context of the proceedings in 2010, is now good.
This latter aspect of the matter is a response to concerns of Ms Moyes that the relationship between her and her own mother, Ms C, is characterised by abuse and violence to which Ms Moyes fears [X] will be exposed.
The mother also fears that in the event that [X] is not returned to her, her relationship with [X] will be sundered and that Ms Moyes will continue to make spending time with [X] difficult if not impossible.

The father

The father represented himself in the proceeding and his contributions reflected his understandable lack of forensic skills. It is his position that the child should live with Ms Moyes and that he should spend unsupervised time each alternate weekend effectively for all of Saturday and all of Sunday.
The father’s position throughout the currency of this proceeding has been changeable. He clearly wishes to reconcile with Ms Horton and has at times gone so far even as to suggest that Ms Horton is only living in [W] to obtain Legal Aid and that when the proceedings are over they will reconcile. Ms Horton is adamant that the relationship is at an end.

The evidence given in Court

It will be apparent that I have not traversed in any detail the considerable tranches of affidavit material. In my view, they are adequately summarised above.
Ms Moyes as the applicant gave evidence first.
It became clear when Ms Moyes was cross-examined by counsel for the mother that she simply does not accept that the mother has ceased to use drugs despite the lengthy series of clean drug screens that she has provided.
Ms Moyes confirmed that she had not sought to adopt a Gypsy child. This was something her own mother had done and she denied, in a fashion I found entirely convincing, that her love for [X] is in any fashion obsessive or concerned to treat [X] as her own child. She is simply what she says she is, a devoted and concerned grandmother.
Although Ms Moyes asserted that she wanted the mother and Ms C to have a relationship with [X] provided [X] was safe, she confirmed, albeit that she may not have wished to do so, that in effect there is no chance of her being satisfied that [X] will be safe in Ms Horton’s care in the foreseeable future.
Ms Moyes stuck by her assertion that in fact the mother lives in Melbourne not [W]. She gave details of an incident at the home of

Ms K at changeover which was clearly very upsetting to everybody.
Ms Moyes also gave evidence about an incident in [W] in December 2012 when she spent time at the house of a near neighbour of the mother, Ms C.
Cross-examination by counsel for the mother revealed in a clear way the hostility of the mother to Ms Moyes. The implication that

Ms Moyes might be involved in prostitution arising out of her conduct of a massage business at her home is, perhaps, sufficient to set the scene. I make it clear that I form absolutely no adverse view of

Ms Moyes’ conduct.
I note that Ms Moyes confirmed that it was her view that her son was still using heroin, but it is clear that Ms Moyes has on occasion allowed the father to spend time with the child notwithstanding her concerns about him. I put this down to a mother’s natural love for her own son rather than anything more sinister.
It should be noted that Ms Moyes gave her evidence in a fashion that was straightforward and responsive. Despite being somewhat aggressively cross-examined by counsel for the mother, she was generally clear and direct in her answers. I would characterise her demeanour as being one of weary dignity. Life has not been easy for her and having a son, and only child, with the problems that the father has in this case would not be simple. I formed the clear view that she was an honest witness. I should make it clear that the criticisms put of her are ones which by and large I roundly reject. She has been a bedrock of support for [X] and deserves the greatest of credit for it.

Mr P

Mr P was one of a number of persons called by both sides to buttress their case. These witnesses were in the main unremarkable and, indeed, in the main added very little to the factual network. Mr P was clearly an honest witness but his evidence in my view was of no moment.

Ms K

Ms K is a near neighbour of Ms Moyes and clearly friendly with her. Once again, she was an honest witness, but her evidence was relatively unremarkable also. She gave evidence of a changeover at her home at which [X] became very upset and was allegedly dragged off by the mother. It is sufficient to say of this incident and various accounts given of it by those who were present that it reflects the poor interpersonal dynamic between Ms Moyes and Ms Horton, both of whom are vividly distrustful of the other. The fact that this tension manifests itself in outbursts by [X] is entirely unsurprising.
I do note that Ms K said that [X] was scared before going to her mother but was always relaxed when she returned to the grandmother.
In my view, this is more likely than otherwise to reflect the sort of tensions I have described. The fact that [X] is fine when she returns suggests that she may well settle down with the mother very rapidly as the mother herself asserts.

Ms B

Ms B, once again, is a friend of Ms Moyes. She was clearly an honest witness. She deposed to having seen the father and mother in [E] in mid to late September 2012 and again in October 2012. Essentially her evidence was called to buttress the proposition that the mother is in fact living in Melbourne.
It was Ms B that the father told that Ms Horton was only living in [W] to get Legal Aid and that her mother would not support her if she did not live there. He also told Ms B that if the mother was going to have [X] on a permanent basis, then they would thereafter reconcile. I accept that the father did indeed say that to Ms B and I accept that she may well have seen the parents as she describes. It should be noted, however, that while I accept this evidence, I do not accept that the father’s version of the future is in fact correct. Furthermore, the sightings by Ms B are not inconsistent with the conclusion I have reached about this aspect of the controversy.

Ms S

Ms S is a near neighbour and former friend of Ms C in [W]. She has given substantial support to the mother and Ms C over time. She was clearly involved in the process whereby Ms C took out the Intervention Order in 2010. I see no reason to doubt that she did so for reasons that seemed proper to her at the time.
Ms S deposed to the events on 23 December 2012 when Ms Moyes and [X] came to have lunch with her. Clearly this was not done out of malice.
More particularly, Ms S deposed to the alleged poor relationship between the mother and Ms C. She deposed in particular to an incident in about July 2012 when she described Ms Horton and Ms C as screaming at one another. She further deposed that she heard them arguing in the backyard in December 2012.
When cross-examined, Ms S stuck by these descriptions of events. She was in my view clearly telling the truth as she saw it, but I note that she had a significant falling out with Ms C and was clearly entirely partisan.

Mr Moyes – the father

Mr Moyes said that he wanted the same time with [X] as the mother. He said he did not want [X] to go to [W] because of the difficulties between Ms Horton and Ms C. He asserted that the mother had lived with him for a substantial period of time at [E], including in 2012 long after she had, according to her, returned to [W].
He said that in December 2012 he moved to the home of Mr B and that the mother stayed with him regularly there, sometimes for as long as two to four days. He said he wished to reconcile.
In cross-examination Mr Moyes confirmed that he started taking drugs at 15, but asserted that his last use of illegal drugs was in January 2013. He denied that the mother had moved to [W] in March 2012 and asserted that he would not see [X] if she lived in [W] because of the maternal grandmother and the falsity of her allegations in the 2010 Intervention order proceedings. His hostility to the maternal grandmother was patent.
Mr Moyes confirmed that he visited [C] with the mother in 2011 and had been charged for shoplifting as had the mother. The mother had previously indicated that she was not likely to face more than a Diversion as a result of that episode, of which she had in fact been ignorant. The father confirmed that he had a long criminal history.
Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Moyes was forced to concede that he had failed to undertake the drug test that he had been required to take.
As I have earlier indicated Mr Moyes struggled, understandably enough, to represent himself. He was not an impressive witness and it is clear, for reasons to which I shall come, that his evidence is in some respects completely wrong.

Ms Horton – the mother

Ms Horton asserted that she started TAFE in February 2013. She has undertaken a [qualification omitted].
Ms Horton confirmed that she had undertaken a parenting course in 2012 and referred to exhibit EH-1 to one of her affidavits which proved this. She said this was not Court ordered, but she wanted to prove to the Court how much she would be prepared to do to get [X] back in her care.
The mother confirmed that all her drug tests were supervised and produced exhibit EH-3, a further voluntary drug test.
The mother confirmed she completed drug and alcohol counselling with [name omitted] and had been referred by her for grief counselling to address issues arising out of her fractured relationship with each of her parents. She confirmed that she had undertaken such counselling.
The mother confirmed that she moved to [W] and following further questions, it emerged that she moved to [W] on 16 January 2012, the day after her own mother returned from a visit to Holland.
The mother confirmed that she is now on Suboxone and will withdraw from that drug gently under the control and advice of Dr K. She confirmed that during her hepatitis C treatment, which finished “about six months ago”, she was very fragile. She lost her hair. She cried a lot. She was irritable. She says she now feels infinitely better. She says she wants to be healthy for [X].
The mother confirmed she had spent time with the father more recently on several occasions and for one occasion on three to four days. She shared his bed but maintained that she has not been in a sexual relationship with him for at least two years.
The mother denied having been in [C] since the theft in December 2011.
The mother said that she now has a good relationship with her mother and they are like best friends. She denied misconducting herself with any of the neighbours.
The mother confirmed that her biggest problem with drugs was with marijuana which she started when she was 16 years old. She candidly conceded that her adolescent years had been difficult and troubled and emphasised that she has now put her life back on track. She proposes to continue to have the support of her social worker and that she will be under the care of Dr K on an ongoing basis. Dr K is, so to speak, wired in with her local treating general practitioner.
The mother gave evidence that an incident in July 2012 referred to in the proceedings with her mother was, in fact, misconstrued. She said that she had been asleep and woken up and her mother had scratched her nose.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother gave what I found entirely convincing answers about the adequacy of her drug screens. She was happy to do drug tests for the rest of her life if required.
She confirmed that she started treatment for hepatitis C in [omitted] 2011, one week after [X]’s birthday and that this lasted about six months.
In response to further questions about the extent of her more recent relationship with the father, the mother gave what in my view were in part believable and in part unconvincing answers. In essence, what she said was that the father had blackmailed her to spend time with him by suggesting that if she failed to do so, [X] would not be allowed to come to [W]. I infer that what was put was that the mother would lose

Mr Moyes’ support in this proceeding. That in fact is what has occurred.
Ms Horton is not a woman of outstanding intellect. Indeed, none of the primary witnesses in this proceeding appear to have great intellectual insight. I accept that in the light of her somewhat immature personality the mother would in fact be susceptible to threats from Mr Moyes who, although he is 30 years himself, is immature for his age. I therefore am prepared to accept that the mother was subjected to what would seem objectively to be somewhat trifling threats. However, I think that her relationship with Mr Moyes is probably rather more complex than she would like to paint it. She spent on any view a number of days with him of recent times.
The mother further confirmed that her relationship with Ms Moyes is not good, but did say she would work on it.
In the main the mother was a believable witness. I will set out in my conclusions on the facts below those aspects of her evidence which I found unsatisfactory.

Mr B

Mr B is Mr Moyes’s former landlord from about December 2012, it would seem, to about March of this year. Mr B gave entirely convincing evidence of the frequency of the mother’s visits to his premises and the fact that she stayed with the father for days at a time. Notwithstanding suggestions that Mr B was totally fuddled by drink and otherwise an unsatisfactory character, assertions which may well be correct, his evidence on the central point of the matter was clear and I accept it.

Ms H

Ms H was another of the bystanders called to give evidence. She gave evidence of seeing the father and mother at [C] in late 2012. She was clearly telling the truth, but whether or not she was correct I am unable to say. It is clear that the father and mother were in [C] in about December 2011 when the shoplifting incident occurred and it is possible that she has got the timeline wrong.

Dr D

Dr D had prepared a written report which has been received into evidence. It is not necessary to deal with it in detail given the way the case has preceded. I note that Dr D’s ‘Opinion and Recommendations’ are recorded:
“This case relates to a complex dynamic between Mr Moyes (Mr Moyes), Ms Horton (Ms Horton) and their respective grandparents, Ms Moyes (Ms Moyes) and Ms C (Ms C). The kernel to the dynamic mostly relates to Mr Moyes and Ms Horton’s history of heroin use.”
I agree with the characterisation.
On the final page of the report, Dr D recorded:
“Mr Moyes has had a substantial drug dependency. Ms Horton has a history of poly drug use/abuse and probable heroin dependency. They do not present with features of additional mental disorder. Whilst they are receiving medication such as Suboxone, they will be partly protected from relapse. They both appear to have been more stable over the last year of more, although Mr Moyes has used heroin sporadically. Whilst Ms Horton lives apart from Mr Moyes, and with the support of her mother in [W], she is far less likely to relapse.”
When cross-examined, Dr D confirmed that the father has a long-dependent use of drugs, as is indeed self-evident, and has always been faced with the difficulties arising from that.
Dr D confirmed that the mother had probably been untruthful about the extent of her use of drugs and, in particular, heroin. He did, however, confirm that the mother had presented as living in [W] when he saw her in July 2012.

Ms F

This is another neighbour of Ms C in [W]. She deposed that she hears arguments between Ms Horton and Ms C. Her evidence was given in a convincing believable way and I accept it as far as it goes.

Ms C – the maternal grandmother

Ms C confirmed that the mother moved to [W] in early 2012. She had returned from a holiday in Holland on 15 January 2012 and her daughter arrived the next day.
Ms C said that she had taken out an Intervention Order against her daughter and Mr Moyes because Mr Moyes had threatened to take [X] from her. She sought, (and this being what was obviously a reconstruction), to put the responsibility for the Intervention Order incident on Ms S.
She confirmed that her relationship with her daughter was now much better and that she would act protectively for [X] in the event [X] is to live with her daughter. She said that she would support the mother getting her own accommodation in [W].
It is sufficient to say that while Ms C is clearly a partisan figure and that she obviously loves both her daughter and [X], nonetheless her evidence was given in an unremarkable and responsive way.

Mr A

Mr A’s evidence was significant in the sense that it confirmed beyond doubt that upon one occasion when Mr A was in the car driving with both Ms Horton and [X] to Melbourne at the end of a “spend time episode”, Mr Moyes abused him in the foulest of terms. It is clear that [X] heard some of Mr Moyes’s bad language.

Mr H – the family report writer

Mr H confirmed the accuracy of both of his family reports dated 9 May 2012 and more recently on 20 February 2013.
Under cross-examination by counsel for Ms Moyes, Mr H said that the mother was now clean of drugs. The attachment with [X], which was to an extent fractured and in danger of fracturing finally, was capable of being repaired. Mr H was clear that all children who lose biological parents have problems both in childhood and in adulthood as a result. He referred to some 80 years of research to this effect.
Mr H said that [X] should be kept with her mother because this was her primary attachment and that the mother should have the assistance of a child psychologist and social worker. He suggested that Department of Human Services welfare section might be of assistance. He confirmed that while there would be some adjustment problems if [X] were to be relocated to [W] with her mother, such as bedwetting, these would settle down in time.
Mr H recommended weekly or possibly fortnightly psychological sessions for the mother and emphasised that the time for exercising the option of [X] returning to her mother was closing. He suggested that there should be a review before the end of the year.
Mr H had no concerns about the care that would be provided by the maternal grandmother.
Under cross-examination by counsel for Ms Horton, Mr H concluded that all the parties’ views were entrenched and subjective. He said that if [X] lived with her mother, the paternal grandmother should travel once to [W] in a month and the mother travel once to Melbourne in a month. This would mean that [X] herself was travelling only once per month, this being desirable because travel of this distance would become burdensome for her.

Mr H gave what I considered to be extremely convincing evidence that he found the mother a very different person at the second interview. She was far more mature and was far more impressive by comparison with the first visit.
Mr H confirmed the problems with changeover were being caused by both parties and said words to the effect that the parties need to stop fighting and get out of the court system.
Under cross-examination by counsel for the Independent Children’s Lawyer, Mr H said that if his proposed transfer to [W] did not work out, then [X] should be returned to the paternal grandmother. The effects of failure would be profound but not final. It was his view that the potential benefits for a long-term close relationship with her mother would outweigh the problems of change for [X].
Mr H confirmed that the possible relationship with the father remained the greatest danger for the mother relapsing.

Conclusions on the Facts

The first thing that needs to be said is that Ms Moyes has been a wonderful and supportive grandmother for [X] as I have already indicated. I have already made it clear that I reject the more lurid aspects of the criticisms advanced against her.
Nonetheless, it is clear that Ms Moyes’ distrust of the mother and the mother’s family is such that for the present at least she simply cannot accept that the mother has reformed her life.
I roundly reject the assertion that the mother is in fact living full time in Melbourne with the father. She clearly returned to [W] in early 2012 and has lived there since. The mother has taken a number of entirely commendable steps to improve her circumstances. She has completed her cure for hepatitis C, which must have been difficult and distressing for her.
As I find, during this time it is clear that her relationship with her mother was somewhat tempestuous. That explains the July 2012 incident.
Further, things are not quite as rosy as the mother and Ms C sought to portray them. It is clear that they argue from time to time. Given the somewhat fragile personality of Ms Horton, such outbursts are not surprising. As I find, they are no more than occasional outbreaks and they are not such in my view as to give rise to any serious suggestion that [X] would be likely to be exposed to family violence or other risk of harm were she in her mother’s care.
It is clear that the mother has been more interrelated with the father in 2012 and 2013 than she has been prepared to admit. I do not accept her denials of the amount of time she has spent with Mr Moyes in Melbourne. However, whether this reflects an ongoing need for some sort of emotional or physical relationship, I think that the Court can properly make orders that reduce this risk to an acceptable level. I fully accept that it is the relationship with the father that represents the greatest risk to the mother’s well-being and she simply has to get to grips on a final basis, to the extent that she may not have done so, with the risks that this relationship has for her.
I do not accept the father’s evidence that the mother was living with him in [E] for most of 2012. I do not accept that he is going to reconcile with her or that there is any agreement between them that they do so. Quite the contrary.
Indeed, in relation to this matter of the mother’s visits to Melbourne, I accept that she does not like the big city. This was her evidence and it was given with conviction.
The difficulties that all sides agree occur at changeover reflect the unfortunate history between the parties and a measure of lack of insight on all their parts. The reality is that Mr H is right. The parties should move forward and get out of the court system in [X]’s best interests.

The Statutory Pathway

In Goode v Goode [2006] FamCA 1346 the Full Court of the Family Court set out at [65] a summary of the pathway the Court has to follow. I paraphrase that as follows:
a)Unless the court makes an order changing the statutory conferral of joint parental responsibility, each of the child’s parents has parental responsibility for the child;
b)The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. The presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence;
c)If it is appropriate to apply the presumption, it is to be applied in relation to both interim and final orders;
d)The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility will conflict with the best interests of the child;
e)Where the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable that the child spend equal time with each parent. If equal time is not appropriate, the Court must go on to consider making an order for the child to spend substantial and significant time with each of the parents;
f)Where neither equal nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests which are ascertained by consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC of the Family Law Act 1975;
g)When the presumption of equal shared parental responsibility is not applied, the Court is obliged to consider what arrangements would best promote the child’s best interests;
h)The child’s best interests remain the overriding consideration.
It should be noted that I have not referred to all of the material filed. I have not dealt at all with, for example, the affidavits of Ms Horton’s father and sister. I have obviously read and paid regard to all of the material filed. However, this is a curious case. I have dealt with the evidence in the fashion that I have, which self-evidently is somewhat higgledy-piggledy, because in the ultimate the issue is so refined. As Mr H’s most recent report makes clear, the first question, a most serious question, is whether the mother is indeed at the sort of risk that Ms Moyes contends. If she is not, then Mr H’s report is clearly to the effect that [X] should live with her.

Equal shared parental responsibility

There is no question that the presumption for equal shared parental responsibility is rebutted in this case. That is a responsibility that would fall, of course, not prima facie to Ms Horton and Ms Moyes but, rather, to Ms Horton and Mr Moyes.
It is quite clear that [X] has been exposed to family violence. I have not dwelt at any length at all on the chaotic lifestyle that the parents lived until the 2010 proceeding. Their lives appear to have continued to be chaotic until Ms Horton returned to [W] in early 2012. There has been ongoing drug use by the father which still, in my view, continues.
The description by Mr A of the father’s conduct confirms, were it in any way necessary to do so, the risk of family violence that [X] will receive if in the care of her father. Despite all the qualifications surrounding the circumstances of Ms Horton and her mother in [W], there have been arguments at a level that in my view would arguably constitute family violence in any event.
Furthermore, the relationship between the primary players is completely fractured. At paragraph 36 of his 20 February 2013 report Mr H wrote:
“In conclusion, the conflict between the parties is becoming increasingly entrenched and polarized. This will inevitably lead to a more dysfunctional interpersonal dynamic between the parties as they struggle for initiative and control of the primary parenting role. …”
That observation entirely accords with my appreciation of the evidence. In the event that parental responsibility is not given to the primary carer of [X], the control of the primary relationship will be at risk. In my view, the person with whom [X] predominantly lives clearly must have, at least for the foreseeable future, the sole parental responsibility.
That then leads to consideration of the child’s best interests in the light of the objects in s.60B and the primary and additional considerations in s.60CC of the Act.
The objects in s.60B(1) are all engaged in this case. Clearly it is a matter of ensuring that [X] has a meaningful involvement with both of her parents to the maximum extent consistent with her best interests. It is also necessary to protect her from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence, most particularly in relation to her father.
Equally, however, the principles underlying those objects in s.60B(2) are also relevant, most particularly in relation to not only [X]’s right to know and be cared for by both parents, but to spend time on a regular basis with other people significant to her care, welfare and development. In this instance, of course, this most particularly means the paternal grandmother, albeit Ms C is also important.

The primary considerations in section 60CC

The Court is required to consider the benefit to [X] of having a meaningful relationship with both of her parents and of the need to protect her from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I have already referred to this matter in dealing with the objects above.
I note that the Court is required to give greater weight to the need to protect [X] from the various risks described than to the benefit of the relationship with the parents pursuant to the terms of s.60CC(2).

Section 60CC(3)(a), the additional considerations

[X] has expressed views to Mr H. As Mr H recorded (paragraphs 24 and 25) of his report dated 20 February 2013:
“24. … [X] made some comments about Ms Horton and the paternal grandmother arguing a lot and stated a preference for living with Ms Moyes and a dislike of the constant travel.
25. The writer tried to pursue this questioning but [X] could provide no context or detail and became quickly disinterested. She displayed no change in affect when making the statements which were stated in an offhand manner. [X] is at an age and stage that makes it unlikely she can cognitively comment on the matters at hand in an informed or meaningful way and this will be further exacerbated by her exposure to the difficulties at change over.”
Those observations are entirely conformable with common sense and human experience. [X] is still very young and she has lived for some time with her paternal grandmother who has provided a stable and loving environment. Little can be given to [X]’s expressed views to the extent that they have even been expressed (s.60CC(3)(a)).

Section 60CC(3)(b)

[X] has a good relationship with her paternal grandmother. There is no need to say more than that. The relationship with Ms Horton is in danger of being sundered, according to Mr H, and I accept his professional opinion. I should make it clear that Mr H was an excellent witness who was giving evidence within his area of expertise. He was not effectively challenged under cross-examination and I accept his evidence and opinions.
It is equally clear that the mother dearly loves [X]. She candidly concedes making a number of poor decisions in her life and I accept Mr H’s description of her most recent endeavours. She has made great progress over the last period of time. Mr H recorded in his most recent report (I have referred to his oral evidence above) at paragraph 32:
“In relation to her current rehabilitation Ms Horton has provided ample documentation from the previous report from treating clinicians and other professionals about the bona fides of her rehabilitative process. Further, she has provided a total of 9 clean drug screens between April and November 2012. At interview she presented as more emotionally contained and mature and her overall physical appearance gives the impression of excellent health. These issues taken together are not indicative of a person currently in the throes of opiate addiction. In this context, Ms Horton’s claims concerning her rehabilitation have a strong flavour of authenticity and she is to be commended for her efforts in this regard.”
I entirely agree with those observations which accord with my observation of the demeanour of Ms Horton when she gave evidence.
Thus it is fair to say, and it is clear in any event, that [X] has a satisfactory relationship with her mother, albeit that she has not been in her mother’s primary care for some considerable time. Her mother clearly loves her devotedly.
Mr Moyes also, obviously, loves [X], but he is a more troubling and troubled personality. He was clearly significantly erroneous, at the very least, in some aspects of his evidence (such as his assertion that the mother lived with him in [E] for a protracted period of time) and his desire to reconcile while understandable shows a tendency to fantasize. He obviously loves his child, but it is not possible to say much more about his relationship with her now.
Ms C also loves [X], but once again it is difficult to say more than that because [X] has spent relatively infrequent time with her since the orders made by the court for her to live with Ms Moyes.

Section 60CC(c)

It is perhaps unnecessary to recapitulate under this subsection the various matters I have already set out about the parents’ inadequate performance as parents in [X]’s early years. What one can say, however, is that the mother has taken determined steps to sort out her life and to improve her health of more recent times. That has been in the context of her ongoing desire to have [X] live with her. It is clear she has properly complied with Court orders to spend time with [X] and in a sense her tenacity in taking these proceedings to judgment speaks for itself. With the father the position remains somewhat more opaque for the reasons I have already given.

Section 60CC(3)(ca)

Both parents have had considerable failings in the past and Mr Moyes continues to have his difficulties. For the reasons already given, it is in my opinion clear that Ms Horton has now sorted herself out and has been fulfilling her obligations to maintain the child to the extent that the Court’s orders have enabled her to do so.

Section 60CC(3)(c)(d)

Mr H concedes that if [X] goes to live primarily with her mother, there will be an adjustment process. There will be interim difficulties according to him, but they will be overcome. As Mr H said at paragraph 39 of his most recent report:
“While there would undoubtedly be some adjustment issues for [X] in such a move these could be monitored and advised on by the psychologist. Ms Moyes could have access to this process at the counsellor’s discretion. If a stable, safe, and nurturing environment is provided [X] should be able to make a successful adjustment back to the care of her mother. The benefits of a close and long term relationship with her biological mother as the primary care giver would ultimately outweigh any difficulties associated with her short term adjustment to the new arrangements.”
Once again, that well-expressed passage, in my view, covers the matters required to be considered under s.60CC(3)(d).

Section 60CC(3)(e)

Clearly there are difficulties associated with the spend time regime where one party lives in Melbourne and the other in [W]. I note that Mr H’s report and evidence makes it clear that the travel presently being undertaken is becoming burdensome to [X] and should be reduced. The orders proposed by Mr H address this issue.

Section 60CC(3)(f)

In my view, Ms Horton has improved her circumstances to a point where it is proper to conclude that she is capable of appropriately caring for [X]. Her mother will undoubtedly assist her. The father is not capable in my view of caring for [X] on his own. He is the only person who thinks he is and I note that even his own mother does not agree.
Ms Moyes clearly is a person well able to care for and provide for the needs of [X], although I note Mr H’s evidence that what [X] needs, as all children do, is that her needs be primarily met if possible by a biological parent.

Section 60CC(3)(g)

Although there is much to be said about sex, maturity, lifestyle and background of the child and more particularly of her parents, these matters have already been dealt with under other subheadings.

Section 60CC(3)(h)

Irrelevant.

Section 60CC(3)(i)

Once again, the attitude to [X] and the responsibilities of parenthood demonstrated by each of the parents is clearly relevant but it has already been considered under the other subheadings.

Section 60CC(3)(j)

There has clearly been family violence within the extended definition in the Act in the past, but for the reasons I have given these do not require further consideration. I should make it clear that I do not think that the relationship between Ms Horton and Ms C is such as to give rise to a risk of [X] being exposed to family violence. While they will doubtless have arguments from time to time they are not sufficiently significant to meet this definition. Furthermore, given the increasing maturity of Ms Horton and the solace that having [X] in her care will give to her, I think that this difficulty will dissipate yet further.

Section 60CC(3)(k)

Although there was an Intervention Order in 2010 it appears to have expired.

Section 60CC(3)(l)

This is a matter of some moment. Mr H recommended a review in some six months time. I indicated during the hearing, however, that I did not propose to follow that recommendation. That view was clearly shared by the Independent Children’s Lawyer. Given the dynamic between the two primary players, this matter must in [X]’s interest come to an end now. Mr H is right to say that the parties need to get out of (or be expelled from) the court process. Any interim orders made will just lead to further interim applications and jockeying for position. It must end now.

Section 60CC(3)(m)

It is perhaps appropriate to recapitulate. Ms Horton has got her life sorted out. There must be some risk that she may relapse, but in my view Mr H is right. This risk is sufficiently reduced that it should be taken. [X] ought return to her mother and have the chance of getting the enormous long-term benefit of a good and stable relationship with her mother as her primary carer.
Some of Ms Moyes’s concerns, which are natural enough in the circumstances, are clearly misconceived. The mother is not living in Melbourne. She is not going to reconcile with the father despite the fact that she has not, perhaps, been wholly frank about the extent of her interrelationship with him of more recent times. I accept Mr H’s view that even if this initiative is not successful, the difficulties to which it may give rise are outweighed by the potential benefits if it succeeds.
In the end, that is what this case is really all about and that is the conclusion that I have reached. It is clearly in [X]’s best interests to live predominantly with her mother and spend time with Ms Moyes for two weekends a month, with one in [W] and one in Melbourne.

Conclusion

There will be orders as recommended by Mr H. It is my understanding that these orders are largely reflected in the revised version of orders prepared by counsel for the mother. I have had those orders printed as draft orders to go with these Reasons for Judgment, but I will give the parties an opportunity to study them and advise me whether any further amendments may be necessary.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 19 June 2013

[2013] FCCA 461

19 June 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies