Murray and Bussell
[2010] FMCAfam 407
•12 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURRAY & BUSSELL | [2010] FMCAfam 407 |
| FAMILY LAW – Parenting – living arrangements for two year old child where both parents have long history of drug usage – mother living in Queensland and father living in Victoria. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60R, 61DA, 65DAA Queensland Domestic and Family Violence Act 1989 |
| MRR v GR (2010) HCA 4 |
| Applicant: | MR MURRAY |
| Respondent: | MS BUSSELL |
| File Number: | MLC 11348 of 2009 |
| Judgment of: | Bender FM |
| Hearing dates: | 22 & 23 April 2010 |
| Date of Last Submission: | 23 April 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr McLeod |
| Solicitors for the Applicant: | Coleman Lawyers |
| Solicitors for the Respondent: | Mr Weerappah - Bayside Solicitors |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for their son [X] born [in] 2007 (“[X]”).
[X] live with the mother and she be permitted to remain living in Queensland.
In the event the father is residing in Melbourne, [X] spend time and communicate with the father as follows:
(a)until [X] turns four years of age, on four occasions each year in Melbourne for a period of no less than four nights on each occasion at times agreed between the parties and failing agreement during the first week of the Queensland school holidays;
(b)until [X] turns 6 years of age, on four occasions each year in Melbourne for a period of no less than seven nights on each occasion at times agreed between the parties and failing agreement during the first week of the Queensland school holidays;
(c)following [X] turning six years of age, for ten days in Melbourne in each of the Queensland term holidays commencing the first Saturday of the holidays and for three weeks in each of the long summer vacation to commence as agreed between the parties and failing agreement, commencing 2 January each year;
(d)upon the father giving the mother 14 days notice in writing by email or text message of his intention to travel to Queensland, and subject to the father having suitable accommodation, in Queensland:
(i)until [X] turns four years of age for no more than two nights and no more than seven day time periods;
(ii)until [X] turns six years of age for up to four nights and seven day time periods; and
(iii)thereafter for such times as the parties agree between them but such time to be no more than seven days;
(e)by telephone and SKYPE at all reasonable times; and
(f)as otherwise agreed between the parties.
Until [X] turns four years of age, all time spent by him with the father in Melbourne pursuant to order 4 herein shall take place at the home of the paternal grandmother.
Upon the father residing within 100 kilometres of [X], [X] spend time and communicate with the father as follows:
(a)for a period of two months, each Saturday and Wednesday from 10.00 am until 5.00 pm;
(b)thereafter and until [X] turns four years of age:
(i)each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
(ii)each Tuesday from 5.00 pm until 5.00 pm Wednesday;
(iii)for four days in each of the Queensland school term holidays as agreed between the parties and failing agreement from 10.00 am on the first Saturday of the holidays;
(iv)for one week in the long summer vacation as agreed between the parties and failing agreement, from 10.00 am on 2 January; and
(v)as otherwise agreed between the parties;
(c)upon [X] turning four years of age:
(i)each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
(ii)each Tuesday from 5.00 pm until 5.00 pm Wednesday;
(iii)for one week in each of the Queensland school term holidays as agreed between the parties and failing agreement from 10.00 am on the first Saturday of the holidays;
(iv)for three weeks in the long summer vacation as agreed between the parties and failing agreement, from 10.00 am on 2 January; and
(v)as otherwise agreed between the parties;
For the purposes of [X] spending time with his father pursuant to order 4 herein, the father shall be responsible for paying the costs associated with [X] and his mother travelling to Melbourne and the mother shall be responsible for paying the costs associated with she and [X] returning to Queensland.
In the event the father relocates to Queensland and resides within
100 kilometres of the mother and [X], the mother is restrained from moving to a place that is more than 100 kilometres from the father’s residence without his written consent or order of this court.
Both parties are restrained from consuming illicit substances 12 hours prior to or whilst [X] is in their care.
Each party shall undergo a supervised drug screen each month by the 19th day of each month for a period of 12 months, commencing
19 May 2010 and provide the results of same to the other parties’ solicitor no later than the last day of each month.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person so to do.
Each party shall advise the other of any serious illness or injury suffered by either of [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the kindergarten and school lives of [X], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall keep the other appraised at all times of their current residential address and telephone contact details.
Each of the mother and the father:
(a)attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the program") at an organisation or organisations as nominated by the Regional Co-Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
The mother shall forthwith consult with her local Maternal Child and Health Care Nurse to seek assistance in relation to herself and [X], including linking her to appropriate drug, alcohol and domestic violence counselling, as well as Mother’s playgroups and other activities and supports for [X].
The mother do all things necessary to attend upon her treating General Practitioner to obtain a referral to a paediatrician to enable a full paediatric assessment for [X] and follow any recommendations made by the paediatrician in relation to treatment for [X]. The mother shall inform the father of all appointments and the names of any practitioner engaged in any remedial measures undertaken for [X].
In the event either party fails to comply with order 10 herein or provides a drug screen that is positive for illicit substances without a medical certificate from a treating practitioner confirming the positive reading arises from properly prescribed medication, the complying party shall have leave to contact the Chambers of Federal Magistrate Bender to have the matter listed as a matter of urgency to enable a review of the living arrangements for [X].
In the event the mother fails to comply with order 4 herein and make [X] available to spend time with his father in Melbourne, the father shall have leave to contact the Chambers of Federal Magistrate Bender to have the matter listed as a matter of urgency to enable a review of the living arrangements for [X].
IT IS NOTED that publication of this judgment under the pseudonym Murray & Bussell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11348 of 2009
| MR MURRAY |
Applicant
And
| MS BUSSELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue to be determined in this matter is with whom and where the parties’ son [X] born [in] 2007 (“[X]”) is to live.
The father is seeking orders that [X] live with him in Melbourne and spend such time with his mother as the court determines.
The mother is seeking orders that [X] live with her in Queensland and if the father remains living in Melbourne that [X] spend time with the father during school holidays. In the event the father lives in Queensland, the mother proposes [X] spend time with him on a regular basis.
Background
The father was born [in] 1970 and is 39 years of age. He lives with his mother in her home in [L], Victoria. He is unemployed. He has not
re-partnered.
The mother was born [in] 1985 and is 24 years of age. She lives in [S] in Queensland. She is currently unemployed. She too has not
re-partnered.
The parties entered into a relationship in March 2006. Very shortly thereafter the mother moved to live with the father at his mother’s home in [L].
The mother’s life to that time had been very troubled. From the age of 13 she used drugs and worked as a prostitute to support her habit. Her two eldest children [A] and [B] were placed into the permanent care of foster parents pursuant to orders of the Children’s Court because of her then inability to care for them arising from her drug addiction and transient lifestyle. She has a lengthy criminal history for dishonesty, assault, drug use and prostitution.
Shortly prior to commencing her relationship with the father, the mother completed four months of drug rehabilitation to address her addiction to amphetamines.
Both parties admit that from the commencement of their relationship they were heavy users of marijuana.
[X] was born [in] 2007. After his birth, he and the parties continued to live in the home of the paternal grandmother.
Because of their ongoing heavy marijuana usage at this time, the primary care for [X] was undertaken by the paternal grandmother. The mother, in her evidence, conceded that 60 to 70 per cent of [X]’s care was undertaken by the paternal grandmother whilst they lived with her.
Whilst the father had very occasional periods of employment, both parties were on the whole unemployed whilst living together.
The mother’s relationship with her family has been fractured since her teenage years. With the encouragement of the father, the mother reconnected with her mother and sister who live in Queensland.
In June 2009 the parties decided to move to Queensland. This was motivated by the desire for the mother to make a ‘fresh start’ away from Melbourne and her history in that city, to be closer to her mother and because her sister was diagnosed with cancer.
In Queensland, the parties and [X] lived in a two bedroom cabin in the [H] Caravan Park.
Other than two weeks when the father worked for a [omitted], neither party was engaged in employment in Queensland.
On 5 October 2009 the parties argued. The mother and [X] moved out of the caravan and went to live with her mother. The father returned to Melbourne in late October 2009.
On 12 November 2009 the mother obtained a Temporary Protection Order under the Queensland Domestic and Family Violence Act 1989 on the basis of her allegations that the father was abusing and threatening her in relation to [X]’s care. When the father did not appear on the final hearing of the matter on 17 December 2009, a Protection Order was made in the mother’s favour to remain in force until 16 November 2011.
On 18 December 2009 the father filed an Application with this court seeking orders that the mother return [X] to Melbourne and that [X] reside with him.
On 14 January 2010 orders were made adjourning the matter to
12 February 2010 and requiring the respondent, who appeared by telephone, to file her answering material.
When the matter returned to court on 12 February 2010, the mother, who was represented, was in Melbourne. The mother advised the court she wished to continue to reside in Queensland with [X]. Having indicated the court would accommodate a final hearing of the matter in April 2010, the mother consented to orders that she and [X] would come to Melbourne from 1 March 2010 until the final hearing of the matter.
On this basis, orders were made by consent that [X] live with the father between 1 and 20 March 2010 each Monday, Wednesday and Saturday from 10.00 am until 4.00 pm and thereafter each Tuesday from midday until 5.00 pm on Wednesday and each Friday from midday until
5.00 pm and otherwise that [X] live with the mother.
The orders also made provision for both parties to undergo fortnightly supervised drug screens.
The mother and [X] did not arrive in Melbourne on 1 March 2010 and the matter was further listed before the court on 16 March 2010.
On 16 March 2010 it was the mother’s evidence that she had been unable to obtain any accommodation in Melbourne despite her best efforts to do so. Because of her responsibility to pay rental on her accommodation in Queensland, she did not have the financial resources to pay rental in both Queensland and Melbourne.
Orders were made on 16 March 2010 that the mother was to return to Melbourne with [X] on or before 26 March 2010 and that the father pay the mother spousal maintenance of $50.00 per week, commencing 23 March 2010.
The mother and [X] returned to Melbourne on 26 March 2010 and by agreement stayed with the father at his mother’s home.
On 4 April 2010 the parties had an altercation. The mother alleges the father was verbally and physically abusive to her. The father denies these allegations and alleges the mother “flipped” for no reason.
The mother called the Police and left the paternal grandmother’s home with [X]. She contacted her mother who was in Melbourne with her partner and she and [X] moved to stay with them in [suburb omitted].
On 8 April 2010 the mother obtained an ex parte Interim Intervention Order in which she and [X] were named as the affected parties. That order suspended the orders of this court for [X] to spend time with the father pursuant to section 60R of the Family Law Act 1975 (“the Act”).
On 20 April 2010, the Interim Intervention Order was further extended to 15 June 2010 and the orders of this court were further suspended to 23 April 2010. The father was present at court on this occasion and did not consent to the orders being made.
The father did not spend time with [X] from 4 April 2010 to the final hearing of the matter.
At the conclusion of the hearing of the matter, it was ordered that the mother remain in Melbourne with [X] until the delivery of this judgment and that the father spend time with [X] pursuant to the orders of 12 February 2010.
The Evidence
The father’s proposal
The father seeks final orders in the following terms:
1.That the child [X] born [in] 2007 reside with the father;
2.Subject to paragraph 3 hereof that the time the child spends with the mother each alternate weekend from 5.00 pm Saturday to be as determined by the court;
3.That the mother before spending time with the child provide evidence that the child has his own room and bed in the accommodation of the mother;
4.That the mother provide monthly supervised drug screens for a period of six months; and
5.That the mother complete an anger management course.
The mother in her evidence was clear that whatever the outcome of the case, she intended to continue to live in Queensland. The father put forward no proposals as to what time [X] would spend with the mother if she remained in Queensland and he was successful in his application for [X] to live with him in Victoria.
The father’s evidence
It is the father’s evidence that he met the mother at a bar in [suburb omitted] in February 2006. He denied the mother’s evidence that he was known to her as he had previously been a client of hers when she was working as a prostitute.
In March 2006, the mother moved in with the father at his mother’s home where he was living.
The father conceded that both he and the mother were heavily using marijuana and that after [X]’s birth, [X] was primarily cared for by his mother because he and the mother were heavily drug-affected.
It was the father’s evidence that the mother did almost none of the parenting of [X] during this period and that she was either at the gym or out the back of the house smoking.
It was also the father’s evidence that the mother was prone to angry outbursts and had altercations with his mother, their neighbours and with her own family.
The father confirmed that in June 2009 the parties decided that they would move to Queensland. It was his evidence that this was in part for the mother to embark on a fresh start but predominantly because her sister allegedly had cancer and they were moving to offer support to the family.
It was the father’s evidence that it was his understanding that when they moved to Queensland they would move in with the maternal grandmother but that on arrival they moved into a two bedroom cabin in the [H] Caravan Park.
The father gave evidence that he worked for some two weeks in a [business omitted], but was fired because of constant telephone calls from the mother and because he argued with an employee who he alleges was a friend of the maternal grandmother.
Other than this period, neither party was in employment throughout the time they lived in Queensland. The father confirmed that he and the mother continued to use marijuana, though he said his consumption reduced to “only two or three cones per day” as he was primarily caring for [X].
The father agreed that the parties had an argument in October 2009 and that the mother and [X] went to live at the maternal grandmother’s home.
When cross-examined as to the cause of the altercation with the mother, it was the father’s evidence that he was watching television in the cabin, the mother came in having been socialising with other people in the caravan park and “flipped it” for no reason.
The father returned to Melbourne at the end of October 2009. When cross-examined as to why he did not remain in Queensland in order to be near his son, it was his evidence that he had no accommodation, that he didn’t know anyone in Queensland and that the maternal grandmother had “all these people in her house, like truck drivers”, and that he was too scared to stay there.
In relation to the Protection Order that was taken out against him by the mother in Queensland, it was the father’s evidence that he did consult a lawyer in Victoria who he understood was going to assist him in defending the application. It was his evidence that ultimately this did not occur and the order was made in his absence.
It was the father’s evidence that he thought that the Protection Order related to both the mother and [X]. It should be noted that perusal of that document makes it quite clear that it relates to the mother only.
It was the father’s evidence that when it became apparent that the mother was having difficulty in obtaining accommodation in Melbourne in order to comply with the court’s orders that she come to Melbourne with [X] pending the final hearing of the matter, he offered for her and [X] to live with him and his mother.
It was the father’s evidence that upon arrival in Melbourne on
26 March 2010, the mother did nothing but sit on the couch using her computer and that he and his mother attended to all of [X]’s needs.
In relation to the incident on 4 April 2010, the father was adamant that he did not abuse or assault the mother or [X] in any way. It was his evidence that he was intending to take [X] to the park and that for no reason the mother “flipped it” and started screaming and yelling at him, grabbed [X] from his arms and then rang the Police alleging that he was hitting her.
It was the father’s evidence that the mother then took [X] from the home. When the Police first arrived at the paternal grandmother’s home, the father explained to the Police what had occurred. They subsequently returned to the home and collected the mother’s and [X]’s belongings.
It was the father’s evidence that other than for the preparation of the Family Report, he had not seen [X] since that day.
It was the father’s evidence that since returning to Melbourne he has ceased all marijuana usage. Pursuant to the orders made by the court in February 2010, he has regularly completed supervised urine drug screens and, other than the first screen which was positive for cannabinoids, all subsequent drug screens have been clear of illicit substances.
It was the father’s evidence that he did not believe the mother was capable of caring for [X], that she would revert to her previous lifestyle of excessive drug usage and prostitution and would be as incapable of caring for [X] as she had been for her two eldest sons.
It was the father’s evidence that he intends to continue to live with his mother and that she would have an active and prominent role in [X]’s care.
The father was cross-examined in relation to whether he would be prepared to move back to Queensland if orders were made by the court that [X] live with the mother in Queensland. The father indicated that he might consider doing that but he believed that if he was to do so then the mother would deliberately move away in order to frustrate his time with [X]. It was his evidence that this was:
“a trick that [Ms Bussell] and her mum play to people. Her grandmother told me that.”
In the event orders were made for the mother and [X] to reside in Queensland, the father gave no evidence as to his willingness to travel to Queensland to see [X] in the event that he decided to remain in Melbourne.
Ms M
Ms M is the paternal grandmother. Ms M swore an affidavit which was filed with the court on 8 April 2010 and she also gave evidence at the final hearing of the matter.
Ms M confirmed that both the mother and father were heavily using marijuana whilst they were living with her and that she was primarily responsible for the care of [X].
It was her evidence that the mother rarely did anything for [X], that she went out to pubs and clubs, went to the gym or smoked marijuana out the back of the house.
The paternal grandmother described the mother as angry and volatile. It was her evidence the mother had on occasions sworn at her and physically threatened her. She claimed that the mother was argumentative and would get into altercations with their neighbours.
It was her evidence that since the father had returned from Queensland, he had stopped using drugs.
It was the paternal grandmother’s evidence that when the mother and [X] resided in their home between 26 March 2010 and 4 April 2010, the mother had done nothing but play on her computer and the care of [X] had been left solely to herself and her son.
It was the paternal grandmother’s evidence that she and [X] are very close.
The paternal grandmother confirmed that the father and [X] are more than welcome to continue to reside in her home which has three bedrooms and all necessary facilities for [X]’s proper care. She confirmed that she would continue to assist the father in [X]’s care.
In relation to the incident on 4 April 2010, it was the paternal grandmother’s evidence that the mother was on her computer when the argument broke out and she could see no cause for it. She was adamant that the father did not hit the mother and that it was the mother who was screaming and yelling.
It is noted that an interpreter was requested to assist the paternal grandmother in the giving of her evidence at the final hearing of this matter. The interpreter had not arrived when the paternal grandmother was to give her evidence. Whilst her English was “fractured”, it was apparent she understood the questions being asked of her and her answers were clear. Subsequent to her evidence concluding, the interpreter arrived. The court was advised that the paternal grandmother spoke with the interpreter and that she confirmed she had understood all questions put to her and that her evidence had been properly put before the court.
Ms L
Ms L is the maternal grandmother’s sister and therefore the mother’s aunt. She gave evidence on behalf of the father.
Ms L swore an affidavit in this matter which was filed on
10 February 2010 and also gave evidence at the final hearing of the matter.
Ms L spoke negatively of her sister as a parent and of her concerns as to what, if any, support her sister would be able to offer the mother in these proceedings.
She did have to concede however in cross-examination that she had not seen her sister for some 15 years, had only seen the mother seven or eight times since she was a toddler and last saw the mother over two years ago at a family funeral.
Ms L’s evidence was of little assistance to the court.
Leading Senior Constable G
Senior Constable G was subpoenaed to give evidence on behalf of the father. Senior Constable G attended the paternal grandmother’s home on 4 April 2010 following the telephone call to the Police made by the mother.
It was Senior Constable G’s evidence that the Police attended at the paternal grandmother’s home in [L] on 4 April 2010. He spoke to the father who told him that he and the mother had had a verbal argument, that he had chased her down the street but only because he wanted to see his son and that he denied that there had been any physical violence.
It was his evidence that he then located the mother at the [L] train station and she told him she and the father had had a verbal argument and that she just wanted to be able to go home to Queensland.
Senior Constable G indicated that the mother asked him if he was able to see any red marks on her neck, that he looked at her neck and told her that he could not.
Senior Constable G was certain that at no time did the mother allege that she had been physically assaulted by the father.
The mother’s proposal
At the conclusion of evidence, the mother’s Counsel handed up a document that set out the final orders that she was seeking in the matter in the following terms:
1. That the child [X] born [in] 2007 live with the mother.
2. The mother be permitted to continue her residence in Queensland.
3. That the mother have sole parental responsibility.
4. [X] spend time and communicate with the father as follows where the father lives within 50 kilometres of the mother’s residence:
(a)For a period of two months from 10.00am to 6.00pm each Saturday;
(b) After two months as follows:
(i) Each alternate weekend from 5.00pm on a Friday until 5.00pm the following Sunday;
(ii) each Tuesday from 5.00pm until 5.00pm the following Wednesday
(c)and whether or not the father lives within 50 kilometres of the mother’s residence:
(i) by telephone twice a week with the father initiating the call from 5.00pm to 5.30pm Queensland time;
(ii) such further or other times as agreed.
5. Each of the parties shall be free from the consumption of illicit drugs when the child is in their care.
6. Each of the parties shall for the next 6 months provide to their respective solicitors urine sample supervised drug screens once a month by the 12th day of each month commencing on
12 May 2010 for a period of six months.
7. That each of the parties and their agents are restrained from denigrating the other in the sight or hearing of the child.
8. That each of the parties shall as soon as practicable notify the other of any serious illness or injury that may befall the child and the name of any relevant treating medical practitioner who in turn is at liberty to disclose to each of the parties the usual information pertaining to a child patient.
9. That each of the parties are at liberty to obtain from the child’s kindergarten/school the usual information provided to a parent.
10.That for the purposes of exchange such exchange to occur at McDonald’s [address omitted] or such other place as agreed.
11.Each of the parties shall forthwith undertake and complete a post-separation parenting course and provide the other party’s solicitor a certificate of completion of the said course.
12.The mother shall forthwith consult with her local Maternal Health Care Nurse to obtain information of Support Networks to be engaged by the mother with such networks that deal with drug and alcohol abuse and rehabilitation and domestic violence.
13.That the mother forthwith undertake a paediatric assessment of the child and follow the recommendations made and inform the father of all appointments and the names of any practitioner engaged in any paediatric remedial measures undertaken for the child.
14. Certify for advocacy.
15. S.62B + 65DA(2) Apply.
The mother’s evidence
The mother was totally frank and open in conceding her very difficult teenage hood and early adulthood. She conceded serious drug addiction to amphetamines, prostitution to support that habit, as well as convictions for dishonesty, violence, drugs and prostitution.
She agreed that in this period her two eldest sons [A] and [B] were placed into the permanent care of a foster family because she was not able at that time to properly care for them.
The mother also conceded that for the entirety of her relationship with the father they both heavily used marijuana and that because of that the paternal grandmother was effectively [X]’s primary carer. Her estimation was that 60 to 70 per cent of the time [X] was cared for by the paternal grandmother and he was otherwise cared for equally between herself and the father.
It was the mother’s evidence that since separating from the father she too has ceased the use of illicit substances. The mother produced the results of supervised urine drug testing that she had done on 13 January 2010, 5 February 2010, 8 February 2010, 23 March 2010 and 9 April 2010. This represents about half of the tests that she should have undertaken in this period pursuant to the orders of the court and she did not offer an explanation for the missed screens.
The first of the mother’s screens did test positive for cannabinoids and thereafter were clear of those drugs.
The subsequent screens did test positive for opiates and this was explained by the mother as reflecting the usage by her of Nurofen Plus and Panadeine Forte which had been prescribed to her by her treating doctor because of migraine and tooth pain. There was also a positive result for Benzodiazepines and the mother explained that this was attributable to the sleeping tablets she had been prescribed by her treating practitioner.
The mother described a volatile relationship with the father and it was her evidence that he was abusive, both verbally and physically, towards her throughout the relationship.
The mother also conceded there had been occasions when she had been abusive towards the father and his mother who she felt had never liked her and who she felt was always trying to push her out of [X]’s life and assume his primary care.
However, to her credit, the mother was most complimentary of the paternal grandmother’s care of [X] in the circumstances where she and the father were drug-affected whilst they lived with her. She was able to acknowledge that absent of that care, there was a real risk that [X] would not have been properly looked after.
It was the mother’s evidence that since separating from the father, she has worked hard to achieve her own independence. It was her evidence that since January 2010 she had been living on her own with [X] in a one bedroom apartment in [S]. It was her evidence that she intends to remain living in Queensland as she can not return to Melbourne as she gets flashbacks to her former life in that city before she met the father.
The mother spoke of having a “five year plan” which involved her returning to study on a part-time basis to become a [omitted], as well as putting in place arrangements for [X] to start three year old kinder next year, swimming lessons and other activities.
It was her evidence that her mother and sister live approximately an hour and a half away from [S], and that her mother is available to her for assistance if called upon. She conceded that in the last six months her mother has been spending considerable time in Melbourne as that is where her mother’s partner has been residing. However the maternal grandmother’s partner is planning to move permanently to Queensland. At the time of the final hearing of this matter and the maternal grandmother was in Melbourne helping her partner to make arrangements for that move.
The mother spoke positively of the father in the context of his relationship with [X], but expressed concerns about his ability to be able to care for [X] on a full-time basis, absent of the assistance of his mother.
It was the mother’s evidence that when she came to Melbourne with [X] in accordance with the orders of this court, she was encouraged to stay with the father at his mother’s house by the father’s positive assurances that this would be without incident.
It was her evidence that she did pull back from caring for [X] with a view to affording the father and his mother an opportunity to spend as much time as possible with [X].
It was the mother’s evidence that on 4 April 2010, she was communicating on the computer with a male friend of hers and that the father became enraged when he saw what he thought was a sexually provocative exchange between them. It was her evidence that he became incredibly angry with her and started yelling. The mother indicated that she asked him to leave the room so that the altercation was not taking place in front of [X], that things deteriorated from there and that she took [X] into her arms with a view to leaving the property. It was her evidence that the father aggressively tried to take [X] from her and in so doing, his nails scratched the back of her neck and that he then squeezed her neck because she refused to hand [X] to him. It was her evidence that she then called the Police and left the premises.
The mother was challenged in relation to her evidence regarding this incident and in particular that her subsequent action in obtaining Intervention Orders that suspended [X]’s time was done for no other reason than to prevent [X] from spending time with his father and to bolster her case to be able to remain in Queensland with [X].
The mother was adamant that her only motivation in obtaining an Intervention Order was for her and [X]’s protection.
It was the mother’s evidence that it was the father’s choice to return to Melbourne after the breakdown of their relationship. It was her evidence that he had been offered ongoing accommodation at the [H] Caravan Park for only $110.00 per week but he had chosen to move back to Melbourne rather than to put in place arrangements for him to spend time with his son.
The mother was very vague about what arrangements could be put in place for [X] to see his father in the event she was allowed to remain living in Queensland with him and the father chose to live in Melbourne. She raised the possibility of [X] spending school holiday periods with his father from 2011, but was unable to indicate how this could be funded in circumstances where both parties are currently unemployed and have been for many years.
When asked as to what support services the mother had linked up with in Queensland, it was her evidence that she had not linked into any services to date. Her reluctance in this regard was understandable in the circumstances of her previous involvement with any form of Child Authorities which had resulted in her eldest two children being taken from her.
Joy Slattery
Ms Slattery is a Regulation 7 Family Consultant with the Federal Magistrates Court of Australia and she prepared a Family Report in this matter dated 14 April 2010. Ms Slattery also gave evidence at the final hearing of the matter.
In her Family Report, Ms Slattery made the following recommendations:
62.It is recommended at this time that Mr Murray and
Ms Bussell share parental responsibilities for [X].
63.It is recommended at this time that [X] lives with Ms Bussell on the condition that she remains illicit drug free for at least the next six months.
64.It is recommended that [X] spend time with Mr Murray as much as is possible given the financial and geographical constraints. A suggestion as a starting point is made in paragraph fifty nine.
65.It is recommended that Mr Murray and Ms Bussell undergo supervised urine drug screens for the next six months but no more than one each month and there results are provided to the solicitor acting for the other party. If either Mr Murray or Ms Bussell relapses then it is recommended that the other party be at liberty to apply to Court for a further Hearing.
66.It is recommended that Mr Murray and Ms Bussell attend a post separation parenting course.
67.It is recommended that [X] be referred by his general doctor to a paediatrician for assessment.
68.It is recommended that if possible there be an Order made for the appointment of an Independent Children's Lawyer.
Ms Slattery confirmed these recommendations when giving her evidence.
In her Report, Ms Slattery confirmed that she had formed the view that when the parties were living together with the paternal grandmother, because of their heavy substance abuse and own emotional neediness, it was likely that the paternal grandmother was the adult ensuring that [X]’s emotional and practical needs were being met. It was this care that enabled [X] to develop a secure and lasting relationship with her. Ms Slattery was of the view that this enabled [X] to develop significant relationships with the mother and the father.
Ms Slattery gave evidence however that it was her view that since the separation of the parties, [X]’s primary relationship is now with his mother.
It was Ms Slattery’s evidence that it would be very difficult for [X] if he were to be taken from his primary attachment with the mother and placed in the primary care of his father and grandmother.
Ms Slattery also had concerns as to the capacity of the father to care for [X] absent of the assistance of his mother.
Whilst Ms Slattery observed the mother is
“now working hard to provide [X] with appropriate parenting”
Ms Slattery made the very sensible observation that the mother’s commitment to that care will be very much dependent upon the mother avoiding a relapse into her previous drug and substance abuse lifestyle.
Ms Slattery noted that there is a real risk for long-term drug users to relapse into their previous behaviours, particularly if they do not develop the necessary insight into what triggers them to revert to those behaviours.
Because of this, Ms Slattery was seriously concerned that any orders made by the court needed to contain, if possible, some form of monitoring of the parents, and particularly the mother if she were to continue to be the primary carer of [X], to ensure that their current commitment to a drug-free lifestyle was continuing.
It was Ms Slattery’s observation that neither the mother nor the father evidenced any real commitment to ensuring that [X] maintained a relationship with the other.
In relation to the mother, she reported in paragraph 53 of her Report:
“It does appear that Ms Bussell does not see it as her responsibility to ensure that [X] is able to spend time with
Mr Murray.”
When cross-examined in relation to this observation, Ms Slattery indicated that she did not believe that the mother was being malicious, but rather that it was indicative of a lack of understanding of the importance for [X] of having a relationship with both his parents and also the mother acting out of fear given her background.
In relation to the father, Ms Slattery reports that when she asked how he would encourage [X] to maintain his relationship with his mother in the event that [X] was living with him, she indicates in paragraph 30 of her Report as follows:
“Mr Murray said that he would educate [X], ‘That your mother wasn’t as bad’.”
When asked what Ms Slattery understood the father to be indicating here, she confirmed that she understood the father to have meant that he would tell [X] of his mother’s background in relation to drug use and prostitution and the loss of her two earlier sons to alternate care because of that lifestyle.
When questioned further, it was Ms Slattery’s evidence in relation to the father as follows:
“I didn’t get any great sense from Mr Murray that he would be positive about facilitating that relationship.”
Ms Slattery identified [X] as a dear little boy with a sweet smile who appeared to be developing at an age-appropriate level at this time.
Ms Slattery observed [X] to have a warm and close relationship with both the father and the mother, as well as with the paternal grandmother.
Ms Slattery, in paragraph 57 of her Report, confirmed her view that [X] appears to be developing appropriately, but did not believe him to be in the top bracket of development for his age. Given her observation of his difficulty in focussing for any length of time on an activity,
Ms Slattery suggested that it would be timely for [X] to have a paediatric assessment.
Ms Slattery, as noted previously in this judgment, strongly recommended that [X] continue to reside with the mother and accepted that that would be in Queensland. This of course was very much subject to the necessity that there be some form of monitoring of the mother’s continued drug-free status.
Ms Slattery gave evidence that ideally, and particularly given [X]’s age and developmental stage, he should be spending regular frequent time with his father and if possible with his paternal grandmother.
If the parties continued to live in Queensland and Victoria respectively, Ms Slattery suggested that this time take place at least every three weeks. She was realistic enough to acknowledge that given the financial constraints for these parties, such an arrangement would be very difficult to facilitate.
Ms Slattery was questioned as to her recommendations for [X]’s living arrangements in the event that the father made a decision to live in Queensland to be in closer proximity to his son.
It was Ms Slattery’s recommendation that given the father had not cared for [X] on his own before, such time start as one day a week and gradually build up to alternate weekends with some time in between each fortnight. This would mean that [X] would be spending time with his father on a weekly basis. Ms Slattery also indicated that there would be no reason why it would not be appropriate for orders to be made that enabled [X] to spend time with his father more than once a week for short periods of time and Ms Slattery was in agreement with that proposal as well.
Ms Slattery expressed the view that it would be of real assistance for the mother to link into support services in Queensland and suggested that a very good starting point would be the Maternal Child and Health Nurse, as they are very good at linking mothers into different services and Mother’s Groups. She also observed, quite sensibly, that the mother would have more trust in starting with this service rather than more formal Government Agencies where her experiences to date have been less than reassuring for her.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1, 2 and 4 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
4. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this matter both parents are seeking that they have sole parental responsibility for [X].
In support of the father’s application for sole parental responsibility, in the written submissions filed on his behalf, it was argued that such an order would be appropriate because the mother had fabricated claims of domestic violence.
In the mother’s written submissions it was argued that the presumption set out in section 61da of the Act is rebutted in the best interests of the child due to the violence that has been exhibited by the father towards the mother and the impracticality of the presumption applying in the particular circumstances of this case.
No further submissions were made on behalf of either party that expanded upon these written submissions.
Ms Slattery recommended that the parties share equal responsibility for [X]. Her Report does not explain why she formed this view and she was not cross-examined on this issue.
Both parties make allegations against the other that during their relationship there were instances of aggression and violence by each other. In her Family Report at paragraph 52, Ms Slattery makes the following observation:
“It is my view that generally when there is heavy marijuana use then there are more than likely issues about aggression and violence.”
I am satisfied that the relationship was one in which there was ongoing aggression, verbal arguments and in all probability physical altercations as well.
In relation to the incident on 4 April 2010, I do not accept the father’s evidence that the mother just “flipped it”. I accept the mother’s evidence that he became angry as a result of the mother’s computer communications and that a heated argument followed. However, I do not accept that he physically assaulted her, but rather he did come in contact with her when trying to remove [X] from the mother’s arms when she was threatening to leave the premises.
The reality is that neither party holds the other in any high esteem or any esteem at all. The father is completely dismissive of the mother’s efforts to get her life back on track and believes that she will return to a life of drugs, prostitution and transience.
The mother expresses real concerns as to the father’s capacity to care for [X] in the absence of his mother’s assistance and is very conscious of the real low esteem in which he and his mother hold her.
The parties have exhibited a very limited capacity to communicate with each other in relation to [X] and their one effort to put in place some kind of arrangements for [X] to spend time with his father, albeit in very difficult circumstances of the parties trying to live under the one roof, ended in a serious altercation between them.
Having said that, it will be important for [X] that both his mother and his father remain an active and integral part of his life, subject of course to them remaining drug-free and being in a position to properly parent him.
If both parents continue to remain as geographically distant as they currently are, their ability to communicate in relation to the day to day matters for [X] will be very difficult. However, from [X]’s perspective it will be important that both his parents have an involvement in the major long-term issues that are going to arise as his life progresses. Accordingly I am of the same view as Ms Slattery that at this time orders should be made for the parties to have equal shared parental responsibility for [X].
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Both parties are seeking orders that [X] live with them and neither is putting forward a proposal for equal time or significant and substantial time with the other parent. In the circumstances where both parents at this time are proposing to live in different States, any order for equal time or significant and substantial time is not practical.
In the recent High Court decision of MRR v GR (2010) HCA 4, the High Court held in paragraph 13 as follows:
“Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.”
While the parties live in different States, it is quite apparent that such an order for equal time or significant and substantial time would not be practical and therefore no such order can be made.
In the event that either of the parties made a decision to move more geographically closer to where [X] is residing, then the court must consider orders for equal time or significant and substantial time but in the context of whether they would be in [X]’s best interests.
When determining what arrangements should be put in place for a child, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court has to consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act are to be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision then made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As noted earlier in this judgment, Ms Slattery observed [X] to have a warm and close relationship with both the mother and father, as well as a warm and close relationship with the paternal grandmother.
The major difficulty in this matter however is because of the geographical distance between the parties, because of the lack of insight of the parents as to the importance of [X] being able to maintain a relationship with both his parents, because of their impecunity and their mutual antipathy, the court must have real concerns as to [X]’s ability to retain and maintain such a meaningful relationship with the parent with whom he is not living into the future.
Ms Slattery emphasised the importance for young children to spend frequent and consistent time with the parent with whom they are not living and accordingly made recommendations that [X] should ideally live with his mother and see his father every three weeks. This would involve the mother bringing [X] to Melbourne every six weeks and the father travelling to Queensland every six weeks. Even with the best intentions in the world, the realities are that these parties do not have the financial resources or the emotional commitment to ensuring that that occurs.
The reality is that [X]’s relationship with the parent with whom he does not live will only be guaranteed and be meaningful if the other parent is prepared to relocate to ensure that they are living more geographically proximate to [X].
There has to be a real concern as to the capacity of either of the parents to protect [X] from physical or psychological harm or from being subjected to abuse and neglect.
The mother’s troubled life has been well documented in this judgment. To her credit, she is endeavouring to put her life on track and to forge a positive future for herself and [X]. However, the mother has remained drug-free for only a very short period of time and there must be concerns as to her capacity and ability to achieve her goals and desires.
It is the mother’s evidence that the parties’ move to Queensland in 2009 was primarily to give her have a fresh start and that she has genuine fears and concerns of the impact on her and her ability to get on with her life if forced to return to Melbourne. Her evidence in this regard was clearly genuine and the court accepts that her statement that she will remain in Queensland whatever orders the court makes is based on her genuine belief that to do otherwise will not enable her to best move forward in life in a positive fashion.
The father too has only been drug-free for a relatively short period of time. His capacity to remain drug-free has to be of the same concern to the court as that of the mother.
The father has never cared for [X] on his own and there has to be serious concerns in relation to his capacity to care for [X] on his own without the assistance of his mother with whom he appears to have lived for most of his life.
The father in the giving of his evidence presented as a fairly unsophisticated individual with a very limited employment history. The court does have concerns as to whether he has the requisite skills to be able to provide the primary care for a young two year old child in the absence of support.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each of these will be considered in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
As [X] is only two years of age, he is not in a position to express any views in relation to the arrangements that work best for him.
It was noted however that he was observed to interact positively and happily with both of the parties and his grandmother.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted earlier in this judgment, prior to the parties moving to Queensland, the paternal grandmother was [X]’s primary carer and in all probability it was initially to her that he had his primary attachment because of the parties’ heavy drug usage.
After the parties’ move to Queensland and particularly since the parties’ separation in October 2009, [X]’s primary carer and the person to whom he now has his primary attachment is the mother.
In her Family Report at paragraph 57, Ms Slattery deposes:
“It is my view that if [X] were to be separated from Ms Bussell at this time that he may find such a major change emotionally difficult to adjust to as he has been in the primary care of
Ms Bussell for the last ten months.”
Ms Slattery was cross-examined as to what impact it would have on [X] to be taken away from his mother and placed in his father and paternal grandmother’s care, particularly in circumstances where, on her own evidence, the paternal grandmother had initially been his primary carer. Ms Slattery indicated that the difficulty for [X] is that after the lengthy period of time where he has just been with the mother, he has become attached and secure in that relationship. She confirmed that that’s what she had observed. It was her evidence that to take [X] away and place him in the care of the two other people in his life could affect him adversely, both in the context of his inability to express the grief about the loss of that relationship and also in relation to long-term and emotional development.
Ms Slattery did not support such a move and recommended [X] remain living with his mother. This recommendation is subject to there being in place a monitoring of the mother’s drug-free status and capacity to continue to care for [X].
Ms Slattery also noted that [X] has a warm and close relationship with his father and his paternal grandmother, and ideally would like to see arrangements put in place for him that would continue to support those relationships into the future.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
As has been clearly set out in this judgment previously, both parties struggle in supporting [X]’s relationship with the other.
Since the parties separated, the mother has made no effort to bring [X] to Melbourne to see his father, other than when she and [X] were required to come to Melbourne in March/April 2010 pursuant to orders of the court.
Conversely, the father has made no effort to go to Queensland to see [X] although it must be pointed out that his application, brought relatively quickly after separation, was for [X] to be returned to Melbourne.
Orders were made by me for the mother to bring [X] to Melbourne in February 2010 and she failed to comply with those orders. It was argued on the father’s behalf that this was a deliberate breach of my orders and was indicative of the mother’s failure to support [X]’s relationship with his father. I don’t necessarily accept that submission as I am satisfied that the mother did make efforts to find accommodation in Melbourne and that her lack of financial resources was a major factor in her initial inability to comply with my orders.
Having said that however, there is no doubt in my mind that neither of these parties place a great deal of importance in [X] having a relationship with the other.
Ms Slattery was of the view that, from the mother’s perspective, this was in part because of her previous experiences with her elder children and her fear that [X] may be taken from her. Ms Slattery posited that the mother might be more encouraged to ensure and support [X]’s ongoing relationship with his father in circumstances where final orders were in place and she was confident and secure in her belief that [X] would remain living with her.
In relation to the father, Ms Slattery’s views were that the father and the paternal grandmother could see no benefit in [X] having a relationship with the mother because of the low esteem in which they hold her and their beliefs that she will return to her previous drug affected lifestyle.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
As set out in the previous section, [X]’s primary attachment is now with his mother and to sever that attachment would have a deleterious effect on him.
[X] has now been living in Queensland with his mother since last year and is reported to be developing appropriately.
If [X] were to move to Melbourne it is the mother’s evidence, which I accept, that she cannot see herself living in this city because of its’ historical and very negative associations for her. This would mean that [X] would, to all extents and purposes, have to spend limited time with his mother because of the practical constraints on her ability to come to Melbourne arising from her lack of finances.
Similarly, if [X] remains living in Queensland with the mother, his ability to maintain his relationship with his father and paternal grandmother is significantly hindered unless the father makes a decision that he will move to Queensland in order to be closer to his son.
If [X] lives with the mother in Queensland, it is unlikely that the paternal grandmother would move to Queensland and [X]’s relationship with her will suffer.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As discussed at some length in this judgment already, the geographical distance between the parties creates real practical difficulties for [X] in maintaining a relationship with both of his parents.
Unless one or other of them is prepared to move, this practical difficulty is going to be very difficult to overcome.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
As well documented in this judgment, the parents’ heavy usage of marijuana whilst living together and the resultant lack of emotional availability to [X] meant that they were unable to meet [X]’s emotional or intellectual or fundamental caring needs during the initial years of his life. [X]’s needs during this time were met by the paternal grandmother.
Since separation, the mother has had the primary and sole care of [X] and Ms Slattery reports from her observations that he is meeting his appropriate developmental milestones.
The father has never cared for [X] on his own and in light of
Ms Slattery’s evidence and from my own observations, there does have to be concerns as to his capacity to care for [X] on his own without the assistance of his mother at this time.
The real factor hanging over these parties however is the question as to whether they are able to maintain a drug-free lifestyle and therefore remain available to properly attend to [X]’s emotional and intellectual needs. I agree with Ms Slattery that this will need to be monitored and appropriate interventions taken in the event that either of the parties, and in particular [X]’s primary carer, should relapse into previous behaviours.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The parents’ previous drug lifestyle has already been commented on at length in this judgment.
The father and paternal grandmother are of a Macedonian background and ideally [X] should have an opportunity to explore this part of his heritage.
It was the parties’ evidence that the father and paternal grandmother speak Macedonian with and to [X], and it could be anticipated that in the event they were able to have a meaningful involvement in his life, he would have an opportunity to continue to be exposed to this aspect of his heritage.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The drug-affected lifestyle of the parents in [X]’s early years prior to the parties’ separation does not reflect well on either of them. It was fortunate for them, and more importantly for [X], that the paternal grandmother was there to ensure that [X] was properly cared for and nurtured during that time.
It is the mother’s evidence that her move to Queensland was motivated by a wish to make a new start in life. It is her evidence that she has remained drug-free and has moved into accommodation on her own in which she is happy and thriving. She has ambitions to return to study and to continue to make positive steps in her life.
Similarly, since returning to Melbourne the father has remained drug-free. He makes claims to be looking for employment although that does not seem to have been successful to date.
Both parents can only be encouraged to continue with the positive steps they are attempting to make in turning their lives around.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The allegations of violence in this case have been documented previously in this judgment.
As noted, I am satisfied that the parties’ relationship was one in which aggression and violence was present and that the parties’ most recent interactions resulted in yet again another aggressive exchange between them.
[X] was present on the most recent occasion and it is incumbent on both parties to ensure that they take steps to minimise their conflict when interacting with each other, particularly in the presence of [X].
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is an existing Protection Order taken out by the mother against the father in Queensland, which remains current until 16 November 2011.
There is also an Interim Intervention Order taken out by the mother for her and [X]’s protection against the father that remains current until June 2010.
The circumstances giving rise to both of those orders have been set out previously in this judgment.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is very difficult in any matter to have complete confidence that the orders made will lessen the possibility of further proceedings between the parties. This is particularly so in this case because of the current geographical distances between the parties, the lack of commitment they have shown to date in supporting [X] having a relationship with the other parent and their ongoing level of conflict and antipathy.
There also has to be concerns about the capacity of the parties to maintain their current drug-free lifestyle and the orders that I intend to make in this matter are such that in the event that either party, and in particular [X]’s primary carer, should fail to meet the safeguards that will be put in place, the matter is to be immediately returned to the court for further adjudication.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
Ms Slattery in her Family Report recommended that there be a paediatric assessment of [X] because even though he is developing appropriately, she observed him to not be in the top bracket for his age, and observed his difficulty in focussing for any length of time on an activity.
Ms Slattery also recommended that it is important that the mother link into support services in Queensland and suggested that a very good starting point for her would be the Maternal Child and Health Nurse in her area because of their capacity to link mothers into services and Mother’s Groups. This was also recommended as being a referral that the mother would feel more comfortable engaging with as her history is such that she is understandably wary of some of the more formal Government Agencies.
As part of the care arrangements for the mother’s two eldest sons, she is able to visit them in Melbourne up to four times per year. She has visited only twice since moving to Queensland, but I accept her evidence that the current proceedings have been preoccupying her time. It is to be hoped that with the resolution of these proceedings, she will be looking to visit her eldest sons and that when this occurs it will afford an opportunity for [X] to spend time with his father and grandmother in the event that they are residing in Melbourne.
Conclusion
The real difficulty in this matter is that whatever orders are made, there is a real potential for [X]’s relationship with the parent that he is not living with to become distant and fractured, particularly if the parties both choose to continue to live in different States.
The reality is that for the first two years of his young life, [X]’s parents’ drug-affected lifestyle resulted in him being primarily cared for by his paternal grandmother with whom the parties were living.
In June 2009 the parties moved to Queensland where their drug lifestyle continued.
In October 2009 the parties separated following an altercation. [X] remained living with his mother in Queensland and his father returned to Melbourne and resumed living with his mother.
The mother’s life has been a difficult one and has involved a lifestyle of drug abuse, dishonesty and prostitution.
The father has been a very heavy user of marijuana from the age of 27 up until approximately three months ago.
The father is seeking that the court make orders for [X] to move to Melbourne to live with him and his mother as he is strongly of the view that the mother will not be able to maintain a drug-free or crime-free lifestyle and that this exposes [X] to an unacceptable risk as he believes she will be unable to care for him as was the case with her two eldest children who are permanently in the care of foster parents in Melbourne.
The parties’ move to Queensland was, for the most part, prompted by the desire of the mother to make a fresh start away from her memories, associations and associates in Melbourne. She argues that she wishes to be able to remain drug-free, commence studying and parent her youngest son, something she acknowledges she wasn’t previously able to do because of her former behaviours.
The mother has only just started on this process and, whilst wishing her all the very best, the court must have concerns as to just how successful those ambitions will be.
Since October 2009, the mother has been [X]’s primary carer and she has looked after him properly and well. He is observed to be developing appropriately and to be a well looked after and well loved little boy.
The father has never had the sole care of [X] and his capacity to care for [X] on his own is very much in issue. Any orders for [X] to live with the father would have to be conditional upon him continuing to reside with his mother, at least in the short to medium term.
At no time has the paternal grandmother independently sought orders about [X] being placed in her care.
Ms Slattery observed [X]’s primary attachment to be with his mother and was conditionally supportive of orders being made for [X] to live with her, subject to there being some capacity to monitor her ongoing drug-free status.
The difficulty of course is whoever [X] is ordered to live with, his time with the other parent will be limited unless that parent is prepared to move geographically closer to where he is residing.
Having looked at all the relevant factors in this matter, I have formed the view that it is in [X]’s best interests that he continue to live in the primary care of his mother and that she and [X] continue to live in Queensland.
The difficulty of course is what orders can be made to try and ensure that [X] is given every possibility to spend meaningful time with his father, and ideally his paternal grandmother, so that his relationships with them can continue to solidify and grow.
It is my intention to make orders for [X] to spend time with his father that encompass either of the father living in Melbourne or living in Queensland.
The orders made in the event the father remains in Melbourne will have to be shaped by the current financial constraints of both parties, both in terms of the cost of travelling and the cost of accommodation in the alternate location.
If the father does move to Queensland, orders will be made that will provide for him to spend increasing graduated time with his son.
Like Ms Slattery, the court has to be concerned about these parties’ ability to remain drug-free and provide [X] with the level of care that he both needs and deserves. Orders will be made for ongoing regular drug screens by both parties for the next twelve months. In the event that there is a failure to comply with the provision of those drug screens, or those drug screens are positive for illegal substances, then the parties and/or the paternal grandmother will have leave to approach my Chambers to have the matter listed urgently so that [X]’s living arrangements are such that he is not at risk.
Orders will also be made that if there is non-compliance by the mother in facilitating [X]’s relationship with his father and paternal grandmother, that either or both of them may also approach my Chambers to seek immediate enforcement of the orders that have been made.
Finally it will be vitally important that the mother does link to the appropriate support services to enable her to continue on her path to a new life and orders will be made requiring her to engage in those services forthwith.
I certify that the preceding two-hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 12 May 2010
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