Penrose and Kendal

[2012] FamCA 283

FAMILY COURT OF AUSTRALIA

PENROSE & KENDAL [2012] FamCA 283

FAMILY LAW – CHILDREN – where the father has had primary responsibility for the parties’ three year old child – where the mother has two older children – where those children have been removed from the mother’s care and are subject to long-term guardianship orders – where the mother’s contact with those children is limited – where the father seeks to move interstate with the parties’ child – whether it is in the child’s best interests to move to Sydney with his father – where orders made allowing the father to move interstate with the child – where orders made to facilitate time between the child and his mother.

Family Law Act 1975 (Cth)

C & J  (1996) FLC 92-697
Carlson and Ors & Bowden [2010] FamCA 432
Cotton & Cotton (1983) FLC 91-330
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
MRR v GR (2010) 240 CLR 461
RG & JR [2006] FamCA 293
W & W [2004] FamCA 1167

APPLICANT: Ms Penrose

RESPONDENT: Mr Kendal

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 8511 of 2009

DATE DELIVERED: 03 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 March 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Fox of Barbara Fox Solicitor

ORDERS

IT IS ORDERED THAT:

Parental Responsibility

1. It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of R born … January 2009 (“the child”).

2. The father shall have, to the exclusion of the mother, parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:

   (a)Use his best endeavours to advise the mother in writing of the decision intended to be made;

   (b)Seek the mother’s written response in relation thereto;

   (c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;

   (d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

Live With

1. The child live with the father and the child be permitted to do so in the Sydney metropolitan area.

Time and Communication

1. The father notify the mother and keep her notified of a postal address at which the child can be contacted.

2. The mother be at liberty to send cards, letters and gifts to that postal address.

3. The father be at liberty to open and read all such communications for a period of not less than five (5) years.

4. The father shall collect, retain and keep safe all such cards, letters and gifts.

5. Until the child commences year one of his schooling, the father shall, not less than once each month:

   (a)Write via email or, failing provision of an email address, by pre-paid post, a letter to the mother outlining R’s activities, interests, friends, schooling or kindergarten;

   (b)Write via email or, failing provision of an email address, by pre-paid post, a letter to Ms W of the Department of Communities (Child Safety Services) (“the Department”) with a request that Ms W (or such other Departmental officer authorised by her) forward, if considered appropriate, a copy of the letter referred to in (a) above to each of the child’s siblings, V and B;

   (c)Forward to each of the persons referred to in (a) and (b) above, a drawing done by R.

6. Upon the child commencing year one of his schooling and thereafter, the father shall, within twenty-one (21) days of receipt, provide to the mother a copy of:

   (a)All school reports;

   (b)All certificates of merit, achievement awards, or any similar such document pertaining to any academic, sporting or cultural achievements by the child;

   (c)Any school photographs or any photograph taken of the child participating in any community sporting, cultural or other activities.

10.The mother shall do all such things and sign all such documents so as to enrol at a Contact Centre suitable to the Independent Children’s Lawyer.

11.The mother shall:

(a)Notify the father in writing at the postal address provided by him in accordance with these Orders of the fact of that enrolment at a Contact Centre; and

(b)In that same correspondence nominate a date within four weeks upon which she will spend time with the child, with such time being suitable to the mother and the Contact Centre at which the mother will exercise time.

12.The father shall do all such things and pay all such amounts as are necessary to facilitate time between the mother and child on a date nominated in accordance with the previous paragraph of these Orders.

13.Thereafter the mother, in conjunction with the Director of the said Contact Centre, shall:

(a)Agree upon five (5) occasions in the ensuing 12 months on either a Saturday or Sunday (with not more than one occasion each month) and each year thereafter, until the child commences school, for the mother to spend time with the child at the said Contact Centre; and

(b)Reduce that agreement as to dates to writing; and

(c)Forward same forthwith to the father.

14.The father shall do all such things and pay all such amounts as are necessary to facilitate time on the occasions notified to him pursuant to the previous paragraph of these Orders if, but only if, the mother confirms in writing not less than twenty-one (21) days prior to each such date that she is ready, willing and able to participate in the time at the time and on the date nominated.

15.Upon the child commencing school, the mother is to spend supervised time with the child on three separate one-day occasions during one nominated week in each of the school holiday periods and on two further occasions on either a Saturday or Sunday during the year, with such occasions to be agreed to by the Director of the said Contact Centre and thereafter communicated to the father in writing.

Failure to Spend Time

16.In the event that the father has complied with his obligations pursuant to these Orders and the mother fails or refuses to:

(a)Comply with paragraphs 10 and 11 of these Orders; or

(b)Avail herself of the time provided for in paragraph 12 of these Orders; or

(c)Avail herself, within a period of 18 months from the date of these Orders, of any period of time provided for in paragraph 13 of these Orders;

(d)Avail herself of the time provided for in paragraph 15 of these Orders,

without first giving written reasons for not complying at least twenty-one (21) days prior to any such time, the periods of time provided for in these Orders shall be suspended until the mother satisfies this Court that good reason exists in R’s best interests for time to occur.

Miscellaneous

17.To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish a copy of these Reasons and Orders to the Director of the relevant Contact Centre, the Director-General of the Department and Ms W, or such other agent authorised by the Director-General.

IT IS FURTHER ORDERED THAT

18.All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

19.Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

20.The Independent Children’s Lawyer is discharged upon the later of the mother’s compliance with Order 10, the expiration of the appeal period in respect of these Orders or the hearing of any appeal.

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penrose & Kendal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC8511 of 2009

Ms Penrose

Applicant

And

Mr Kendal

Respondent

REASONS FOR JUDGMENT

1. R (born in January 2009) is just three years old, yet his life has already been full of challenges. I suspect strongly that there are many challenges yet to come.

2. R is the subject of parenting proceedings instituted by his mother nearly three years ago. He has two siblings, V (12 years of age) and B (13½ years of age), who are the children of his mother but not his father. Each of those two children is the subject of a long-term guardianship order, as a result of actions taken by the Department of Communities (Child Safety Services) (“the Department”) in this State.

3. V is living in accommodation run by the Department, his prior foster-care having been subject to significant difficulties. B lives with the maternal grandmother. There has, in the past, been significant issues of conflict between the maternal grandmother and the mother.

4. The current proceedings concern, in essence, the father’s desire to have R live predominantly with him and move with him to Sydney and the ramifications that might have on the relationship between R and his mother.

The Nature of the Proceedings

1. These proceedings started life in the Federal Magistrates Court two-and-a-half years ago. A location order was made at that time, consequent upon the father taking R to Sydney. Subsequently, the father returned and proceedings were transferred by Federal Magistrate Burnett to this Court.

2. Early in 2010, upon completion of the Child Response Program within this Court, the matter came before Filippello PR who ordered that R be independently represented and that reports be prepared by a Family Consultant and made interim parenting orders that R live with his father with what might be described as graduated time with the mother. A report was subsequently prepared by Family Consultant, Mr P, and released on 18 March 2010.

3. On 26 March 2010 – that is two years ago – consent orders were made that R live with his father, that the father remain in the Gold Coast area and that the child spend time with the mother “at all times as agreed between the parties, but failing agreement, at least each Monday from 9.00am to 4.00pm” together with other orders including an order directing each party to comply with requests by the Independent Children's Lawyer for random drug testing including follicle testing.

4. Barry J made orders on 28 October 2010; 11 November 2010 and 19 April 2011. A number of orders were subsequently made by a Registrar, designed to effect the filing of material so as to allow a trial to proceed. Orders were made on 19 July 2011, 6 September 2011, 28 November 2011 and, finally, on 29 November 2011. At that later time, it was plain that neither party had filed substantive material in respect of parenting orders for almost 12 months.

5. Mr P had, in the meantime, prepared a subsequent Family Report. In that report (annexed to an affidavit filed 28 November 2011) Mr P reports that the mother did not attend the scheduled interview before him. He reports that she was “expected at 9.00am” and that he “telephoned her at approximately 10.30am and she informed me that there was a problem with her car (alternator problem) and that her back was too sore and painful for her to take a bus to the train station to come to Brisbane…”

6. There were (and are) no prospects of this matter resolving by negotiation or agreement. As will be clear from the history just recited, the progress of the matter to trial had stalled. It is plain (as will emerge) that finality is needed in the best interests of this young child. That this is so is, in my view, self-evident, but to the extent that authority is needed for that proposition, it can be found in the legislative mandate provided in s 69ZN of the Family Law Act 1975 (Cth) (“the Act”).

7. The Act also casts mandatory duties upon the Court in order to give effect to those principles (s 69ZQ). The provisions of Division 12A of the Act can, more generally, be seen to have application to the circumstances of this case. R plainly and unequivocally needs to have the conflict between his parents resolved in his best interests. That is all the more so as a result of the fractured and dysfunctional broader family within which he finds himself. Further reference will be made to this below.

8. Bearing all of those matters in mind, I determined to hear and determine this matter in which each of the parties represented themselves, by:

   a)Having Mr P, the Family Consultant, present during the course of the proceedings;

   b)Allowing each of the parties to tell me, in their own words, precisely what they considered the issues to be;

   c)Similarly seeking from the parties, in their own words, the orders that they each seek and the reasons advanced by each of them as to why those orders are said to be in R’s best interests;

   d)To receive from Ms W – a Child Care Officer attached to the Department who has had extensive involvement with the mother and her two older children – input by telephone with respect to the Department’s current attitude and involvement;

   e)To have Mr P remain in the witness box whilst that information was received from Ms W.

9. In conducting the proceedings in that manner, I very much had in mind the provisions of s 69ZT(1) together with the mandatory principle that the proceedings were to be conducted without undue delay and with as little formality and legal technicality in form as possible (s 69ZN(7)) and R’s needs as being the predominant consideration in the conduct of those proceedings (s 69ZN(3)).

10. With that in mind, I determined to actively control, direct and manage the conduct of the proceedings (s 69ZN(4)) in the manner in which I have just outlined. As will emerge below, a primary concern in doing so was to allow the Court to hear and determine issues that directly relate to any risk to R posed by the proposed parenting arrangements (s 69ZN(5)).

11. I record that the Court greatly appreciates Ms W making herself available by telephone so as to provide valuable information to the Court. So, too, I record the assistance provided to the Court through evidence given by the Family Consultant, Mr P, who has plainly agonised about orders that might best meet the needs of this, as yet, very young child.

Parenting Arrangements – the Broader Context

1. As will already, I think, be apparent, the circumstances in which R unfortunately finds himself are preceded by a lengthy and tawdry history involving the mother’s two older children. Exhibit ICL2 comprises an email and report from the Department (s 69ZW) in respect of the Department’s involvement with those two older children and R.

2. Insofar as R is concerned, the Department’s position is contained in a summary under the hand of Mr D, Acting Court Co-Ordinator, … Child Safety Service Centre, dated 23 March 2011. The summary records:

   The majority of the concerns received by the department in relation to [R] have not met the threshold for further departmental intervention, with two (2) Child Concern Reports and 1 Intake Enquiry being recorded. The last direct departmental contact with this family was on 30 September 2009, in relation to an investigation that was recorded regarding allegations of domestic violence. This outcome was recorded as substantiated, with [the mother] recorded as the person responsible for causing harm to [R]. It was assessed that [R] had suffered emotional harm as a result of being exposed to domestic violence between [the mother] and [the father] during which [the mother] threatened to harm [the father] with a full wine bottle. Given [the mother] had previously been assessed as a parent not willing and able to meet the care and protective needs of her children, Child A and Child B, and that case planning goals in relation to these children remained unmet at that time, [the mother] was assessed as a parent not willing and able to meet [R’s] care and protective needs. No concerns were raised in relation to [the father’s] willingness and ability to care for [R] at that time and he was assessed as a parent willing and able to meet [R’s] ongoing care and protective needs. Following this substantiated outcome, [R] went to reside with [the father] interstate.

3. It will be appreciated that the reference there to the move interstate with the father was the catalyst for proceedings brought initially in the Federal Magistrates Court which saw the father and R returning to Queensland. It is not known whether the Federal Magistrates Court had before it any information from the Department at the time that the consent order was made.

4. The same Departmental report records serious and profound concerns relating to the mother over a nine year period from August 2001 until November 2010. On that last date an application was made by the Department for a “long-term guardianship” order of both V and B. That order was made on 7 December 2010.

5. A summary of notifications, and issues with which those notifications were concerned, give some flavour of the context for the current parenting dispute:

   01.08.2001Mother … using speed … has no finances to provide for children – children present dirty and are not fed … physical assaults on both children by mother;

   16.08.2004Children exposed to mother’s drug misuse and playing with syringes … mother failing to collect children from school … children exposed to mother physically assaulting maternal grandmother … children soiling themselves for no medical reason;

   09.11.2004Mother calls children “fucking cunts” and “dickheads”;

   16.11.2005Marijuana located by police [at mother’s home] … mother verbally aggressive to police … child A disclosed that “mummy smokes stuff out of bottle” … children have not been attending school as their mother does not wake them up in the morning … family home identified as being a “pig sty”;

   29.01.2007Mother presented at the school in an agitated and apparent drug-induced state.

6. Despite the fact that V has not yet reached his teens he is currently facing a plethora of serious criminal charges. A significant measure of the Department’s concern with respect to his best interests, and the mother’s capacity to parent, can be gleaned from the fact that, after an extensive involvement with this family, V lives in accommodation which has attached to it full-time youth workers employed by the Department, and the Department has intentionally imposed a restriction on V’s time with his mother.

7. Currently, contact between V and the mother occurs only by telephone, and that telephone contact is supervised by a Departmental officer. Ms W indicated that there would be an attempt in a month or so, to introduce face-to-face time, but that time too, would be supervised.

8. B, who is a teenager and at an age where her views ought be, and apparently are, given significant consideration by the Department, has, according to Ms W, chosen not to spend any time at all with her mother.

9. The mother indicated that during the last six months or so, she has been seeing V and B at her mother’s home. Ms W said that this was “news to the Department” and if true would be a matter of concern to the Department. The seriousness of that position cannot of course be under-rated.

Issues and Considerations

1. Comprehensive reports prepared by Mr P, and his oral evidence, have been of great assistance to the Court. It is important to refer in some detail to aspects of each.

2. One of the important features which emerge from both is that the mother’s lack of insight into the issues confronting her children, and the needs of those children, is just as troubling as the history of parental dysfunction earlier summarised.

3. Mr P first saw the family in 2010 (in circumstances where, it will be recalled, the father had removed R to Sydney and was ordered to return). In his 2011 Report, Mr P said:

   7.   [The mother] advised me she is waiting judgment in the court proceedings relating to her older two children, [B] and [V].  She said she has no idea what the outcome might be.  She said “I think they will see that [V’s] very complex behaviours are the problem but those kids need to be with me. They need constant love.”  As I have said in my previous report, I find [the mother’s] comments in respect to the removal of her older children from her care quite astounding and alarming.  Despite long-standing involvement by DOCS and proceedings in the Children’s Courts, she maintains a firm belief that she has done nothing wrong and that she has not contributed in any way to the problems.  [The mother] told me [B] continues to live with her mother (Maternal grandmother) and that [V] is currently in high support individual accommodation somewhere in [Queensland]. 

   [Italics in original]

4. At that time, the mother said she was seeking “50:50 orders”. She told Mr P “I want my family back together again even if it’s just a few days together and we’ll work from there”. In respect of this suggestion, Mr P opined:

   24.It is difficult for me to foresee how [the mother], someone who presents as being disorganised (mentally and socially) could accommodate a dependent child such as [R] into her current life to the extent that she proposes in the orders she seeks.  Her attributional style whereby she externalises responsibility for her problems to anyone and everyone other than herself (e.g., medication, the father, her mother, DOCS, the courts) is, in my view, not a parenting characteristic that lends itself to sensitive, empathic, and attuned parenting.  I note that for quite some time now she has argued that the reason why [V] is not in her care is because he has a reactive attachment disorder (RAD).  She appears to make this claim without any concession or recognition at all that RAD is commonly associated with early prejudicial childhood experiences often stemming from inadequate and/or neglectful parenting.  Sadly, for [V], it appears that like many children diagnosed with RAD he has now progressed along a pathway to having a serious conduct disorder. 

5. That assessment (and the reference to RAD being responsible for V’s behaviour) is entirely consistent with the presentation of the mother in the proceedings before me. As has been said, whilst self-representation can frequently be a disadvantage, it can also provide insights into a parent who is placed in the position of having to conduct their own case. It allows the Court to see the parents, “unprotected”, as it were, by their legal representation. Such is the case here. I was troubled by the mother’s attitudes to the responsibilities of parenting and her tendency (plainly evident before me) to lay blame on others with little insight into her own behaviours as contributory causes of the current predicament of her children.

6. The disruptions to the early attachment relationships experienced by R, which are of great significance to his future development, were addressed by Mr P in his report in March 2010.

7. Plainly those matters are directly relevant to any risk that full-time parenting by either parent and, in particular the mother, presents to R (s 60CC(2)(b)). At the same time, Mr P recognises the (all-too-often “competing”) consideration that with a child as young as R there is potential future benefit in having a meaningful relationship with both of his parents.

8. But, as has frequently been said by this Court, the relationship referred to in s 60CC(2)(a) is one that is “meaningful”. As Nygh J said more than 20 years prior to the introduction of this concept into the legislation “that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child” Cotton & Cotton (1983) FLC 91-330 at 78,252.

9. It is apparent from the quoted passages from Mr P’s reports, and also from a more complete reading of his Family Reports, that the nature of the relationship that R has with each of his parents is a profoundly important consideration, as is the ability of each of those parents to provide for R’s nurture and the capacity of each of the parents to provide for his needs (including his emotional and intellectual needs).

10. The “responsibilities of parenthood” will also, as is manifestly obvious, be directly relevant to a decision about R’s best interests. So, too, the extent to which each of the parents has failed to fulfil parental responsibilities before and after separation (s 60CC(4) and (4A)).

11. Each and all of those matters are directly relevant to specific considerations which the Act mandates must be taken into account in arriving at R’s best interests. I have considered each and all of those matters (as has Mr P) and thought hard about how they might be a pointer to a decision about R’s best interests in the particular circumstances of this case.

12. An additional, and important, consideration is the impact of any change that might be effected to the relationship between R and each of his parents (but more particularly the mother) and also with other members of R’s extended family if he is to move to Sydney.

13. Those considerations come to a focal point which, I think, is neatly encapsulated by Mr P in his November 2011 report:

    26.It is my opinion that [R] should have the opportunity to develop a relationship with his mother and that in order to do this he should spend time with her.  As is almost always the case, this important developmental need has to be balanced or considered alongside another equally important need, that being to ensure that such ‘contact’ does not hamper or disadvantage [R’s] development by placing him at risk of harm or maltreatment whilst in his mother’s care.  My recommendations have been formulated in the spirit of acknowledging these two intersecting and competing considerations.  In my view, the level of risk associated with increasing the time [R] spends with his mother is unacceptably high.  The same applies to the issue of overnight time. 

    27.At this stage, with one eye on [R’s] age and the other eye on the mother’s readiness to assume the increased responsibility that increased time would bring, I believe two days each week is probably the right balance for [R] to consolidate a sense of connection with his mother whilst not over-taxing the mother and therefore exposing her underlying vulnerabilities which would then increase the likelihood of risk.

14. It can be seen, then, that this central dilemma, common to many so-called “relocation cases” is a crucially important matter in this case. That is all the more so because of R’s age (and developmental stage) and the written recommendation of Mr P that, as a result, an order for time that is relatively regular should be carefully considered by the Court.

The Oral Evidence of Mr P and Ms W

1. As I have earlier indicated, Mr P was in Court so as to hear the evidence from Ms W. I accept Ms W’s evidence as I do Mr P’s evidence. Each was honest, careful and measured.

2. Ms W indicated that a primary concern of the Department was to ensure the siblings maintained contact. However, profound difficulties attend that occurring not least by reason of the behaviour of V in particular. I have already referred to the fact that B expresses no desire to have contact with her mother.

3. The current contact between R and V is that they sometimes see each other with the maternal grandmother, with whom V apparently spends every weekend. R and V, according to Ms W, have “a reasonable attachment”, and he has an attachment with B.

4. B is doing well at school, has a good social network, and is, according to Ms W “going quite well”. In respect of V, Ms W was, unsurprisingly, significantly more guarded. To use her words, he has “an awful long way to go”. I could not agree more.

5. Having heard the evidence of Ms W, but also having been given a broader picture of the context within which the Department has been involved with this family over a long period of time, Mr P was obviously very troubled and in some distress at attempting to arrive at a recommendation as to what was best for R.

6. He indicated that R would likely experience a sense of loss if he was to live in Sydney with his father and, as a result, see little of his mother. In that regard, I should refer to the fact that the father proposed that there be monthly time between R and the mother facilitated by him flying R to Queensland and the parents sharing equally the costs. I described this during the course of discussion between the parties bearing no relationship to reality given the financial circumstances of each of the parties and given what Mr P says about the capacity of the mother to organise herself socially and mentally. The father readily agreed.

7. The stark reality is that if R moved to Sydney with his father, there would not be regular time as might be expected between a child of this age and the other parent. As a matter of reasonable practicability it would be difficult in the best of circumstances. In the circumstances here, it simply would not occur.

8. Mr P was acutely aware of this and obviously troubled by it, as am I.

9. However, a number of other circumstances suggest that such an order might not be in R’s best interests.

10. The first is the fractured nature of the relationship between R and his mother and what I consider to be a very significantly impaired parental capacity on the part of the mother. I consider that she has failed significantly in emphasising the responsibilities of parenthood and that, in her case, the past is a good indicator of the likely future – principally because she exhibits very little insight and there is no evidence of a capacity to change.

11. The father, too, has had his difficulties. However, as emerges from the reports of Mr P, and as emerged from my own observations and reading of the evidence, I consider that he has made significant advances. The evidence points to a greater acceptance of, and insight into, the responsibilities of parenthood and greater capacity to parent than the mother. Importantly, the evidence points to a significant improvement in that respect.

12. I also noted with interest a comment by Ms W that the future paths for both V and B were so challenged by other aspects of their erstwhile nurturing that Ms W was of the view that R’s best interests did not “hang on the relationship with his siblings”.

13. It was perfectly obvious that Mr P was agonising about this issue during the course of his oral evidence in the witness box. He was plainly troubled by what he had heard from Ms W. As an example, the mother had said that she was spending time with V while he was at his grandmother’s home. Ms W said quite clearly that this was “news to her”. Not only was it news to her, but it was plainly contrary to that which the Department considered to be in V’s best interests, and a matter which, clearly enough, the Department proposed to take up with the mother.

14. In my view, there is a significant potential for harm to R resulting from the mother’s unrestrained behaviour in and about the care of her children. Examples of that during her appearance before me were manifest. I needed to tell her on many occasions not to interrupt or make comments during the currency of other evidence.

15. The mother appeared to have very little, if any, understanding of the centrally important issues which Mr P was trying to enunciate while in the witness box. A good example occurred during an exchange when Mr P was in the witness box. Mr P said to the mother, “in your heart, you want to be a good Mum”. The mother interrupted to say “I am a good mother”. With the very greatest of respect to the mother, her erstwhile record plainly indicates otherwise.

16. I consider that there is a significant benefit for R in being allowed to establish stability with the person solely responsible for his care. I consider it likely that there will be an attenuated and interrupted relationship with his mother that is not at all reliable wherever he lives. I consider that is, unfortunately, indicated by her “track record” with her other two children and the evidence of the fractured and attenuated relationship with those other children. I consider the unreliability of that relationship to be important in seeking to establish for R stability and a continuity of care, particularly in these early developmental years.

Parental Responsibility

1. It will be plain from all that I have said, that I cannot countenance the mother having “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. That responsibility has been involuntarily abdicated in respect of her two older children by order of a State Court. On the evidence before me, such a decision was, with great respect, plainly correct.

2. The presumption of equal shared parental responsibility is rebutted in R’s best interests. I will order that the father assume all the duties, powers, responsibilities and authority in respect of “major long-term issues” as that expression is defined in the Act.

3. I will, however, for the reasons I set out in Carlson and Ors & Bowden [2010] FamCA 432, make orders in the form made in that case.

4. The issue as to what time R should spend with either of his parents is, then, “at large” (see Goode & Goode (2006) FLC 93-286, MRR v GR (2010) 240 CLR 461).

5. Despite the fact that the preconditions for the application of s 65DAC are not met by reason of the parties not sharing parental responsibility, I nevertheless record that I do not consider it in R’s best interests to spend equal time with his mother and father or for the mother to have “substantial and significant time” as that expression is defined in the Act. The reasons already given and the findings already made inform that decision.

What Orders Best Meet R’s Best Interests?

1. I consider that the mother’s capacity to sustain a relationship that is appropriately nurturing for a child of R’s age is significantly impaired. As a result, the benefit that might otherwise be gained from a meaningful relationship with her is curtailed.

2. I consider that R is at some risk in his mother’s care by reason of the extent to which she has fallen below what I regard as an appropriate standard in exercising parental responsibility both prior and subsequent to separation from the father. I consider the father has, at times in the past, also fallen below that standard, but I consider that he has taken positive steps in order to meet and address what might have then been his deficiencies.

3. R is of course, as Mr P recognises, too young to express any views.

4. I consider that the nature of the relationship between R and his mother is fractured and attended by a plethora of personal, emotional and psychological issues from which she suffers and which have manifested themselves in the sort of behaviour to which reference has earlier been made, including drug taking and grossly inappropriate comments being made to, or in the presence of, her children.

5. I consider the fact that long-term intervention by the Department has resulted in the only current time between the mother and her twelve year old son being via telephone and even that being supervised, is a telling factor in that respect. So, too, is the fact that her teenage daughter, who, fortunately, is otherwise doing well, has expressed a view that she does not wish to see her own mother.

6. I consider that the mother has very little ability or willingness to facilitate and encourage a close and continuing relationship between R and his father. I consider the father’s attitude in that respect is marked by a genuine concern for R’s well-being while in the mother’s care. However, I consider that, if R is safe, he will facilitate a relationship within the bounds of his practical capacity.

7. I am suspicious that the father considers that there is, at a deep or emotional level, little real benefit in the relationship between R and his mother, but I consider that he would comply with any Court orders in that respect.

8. I have already indicated that I consider the mother has a significantly impaired capacity to parent and have explained my reasons for so concluding. The father’s capacity to parent might be described as less than ideal, but I consider that he will approach the task with sincerity and application. I also consider that he will seek further assistance as and when might be required.

9. I have also earlier referred to the responsibilities of parenthood demonstrated by each of the parents both before their separation and after. Again, it will be plain from all I have said that I consider that the mother’s responsibilities towards parenting her children, including R, has fallen below a standard that can be described as “good enough”.

10. There is considerable practical difficulty and expense associated with R spending time with his mother and I consider this to be a very important matter in arriving at orders that are in R’s best interests if he was to reside with his father in Sydney. There are, however, practical difficulties in maintaining a relationship, even if R remains here, emanating from the mother’s emotional and other difficulties and the unreliability these create.

11. I am very concerned that if I put the father to the difficulties of facilitating time between R and his mother (which I think is the only realistic way it will occur) that the mother will, in any event, let R down by not doing her part in facilitating that time. The same factors that influence the Department and B’s views about time with the mother persuade me that any time between the mother and R should be supervised.

12. I am, of course, mindful of what has been said by Full Courts in respect of supervision and the desirability of a “sunset clause”. I bear in mind, for example, what the Full Court said in C & J  (1996) FLC 92-697 and, in particular what was said (per Fogarty & May JJ) at 83,341-342:

    We do not consider that His Honour is correct in saying that supervised access is “never an appropriate measure in relation to final access orders”. It is unduly restrictive of his discretion in relation to children to approach the matter in that way.

    The Court is given a wide range of powers in relation to children both under the previous legislation and the Reform Act. Ultimately, the determinant is the best interest of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt His Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time for orders which provide a graduated process and the potential for review depending on developments. This is especially so in the case of this sort.

    …

    The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.

13. The Full Court has also held that “… the open-ended nature of the supervision order was somewhat unsatisfactory” (H & K [2001] FamCA 687). In W & W [2004] FamCA 1167, Dessau J ordered supervised time but inserted a review mechanism, rather than order that supervised time occur indefinitely. Similarly, in RG & JR [2006] FamCA 293 the Full Court emphasised (at [107]) the value of inserting a review mechanism or “sunset clause” in orders:

    We accept that in many cases the effect on children of indefinite, long-term, supervised contact, particularly if such contact is to continuously occur in the children’s contact centre, may not be in a child’s best interests.

1. Despite the changes to the Act since those decisions were handed down, I respectfully consider that, provided supervision is in the particular child’s best interests as determined by reference to the statutory provisions, the statements of the Full Court remain the law.

2. In saying that, I do not suggest that the requirements to consider, for example, “a meaningful relationship” or the requirement to consider the willingness and ability to promote a “close and continuing relationship between the child and the other parent” or “direct contact on a regular basis” do not impact upon the consideration of whether supervised time is appropriate and, if so, for how long and in what circumstances. Obviously those considerations are relevant.

3. R’s age, the supervision exercised by the Department over time between the mother and her other son, and, in particular, concerns about the mother’s adherence to any ordered supervised time lead to a conclusion that any “sunset clause” would be entirely arbitrary. So, too, where, in my view, a real change in circumstances is only realistically likely either when R is of sufficient maturity to properly comprehend and “filter” his mother’s behaviour and attitudes or when the mother receives expert assistance (or both), the arbitrariness of any “sunset clause” is underlined.

4. I decline to include any “sunset clause” in the order for supervision

5. I will also make orders which put some onus on the mother to undertake some basic tasks so as to ensure for R (and the father) that time will in fact occur given the somewhat difficult practical arrangements that will need to be put in place in an attempt to have the father facilitate time.

6. The period of time must take account of the distance between the father and the mother and practical difficulties. The father hopes to obtain work; the mother has no realistic prospects of having the financial wherewithal to facilitate time. Yet, if R is to have any sort of relationship with his mother, time should occur within those practical difficulties.

7. I can see no reason why the mother should not send cards, letters and gifts as she desires but, again for reasons that mirror the Department’s concerns, I consider the father should be at liberty to open them so as to ensure their suitability. He should keep them for future reference by R when a sufficient level of maturity permits.

Proposals Compared

1. Given all that I have said and the findings I have made, it will be plain that I could not countenance an order for “50:50 time” or an order that would see the mother as primary carer as being in R’s best interests.

2. In my judgment, R should live with his father.

3. The question then turns to orders for time that best promote R’s best interests and the dilemma earlier referred to posited by Mr P in his report. Having heard the evidence of Ms W, Mr P was much more circumspect in suggesting regularity of time between R and his mother.

4. I can see no reliable evidence which points to the mother being likely to provide a continuity of beneficial input to R. Indeed, I think there is a risk of the sort of behaviour that marked the relationship between the mother and her elder children, some of which has earlier been set out. That standard of care is antithetical to R’s needs. At this stage of his development he needs stability and a continuity of a predictable level of care.

5. A move to Sydney with his father will, in my view, maximise the prospects of that occurring.

6. But, that comes at some potential cost; principally the capacity for R to develop a relationship on his own terms with his mother, including making his own assessment (as has B) of what she has to offer him. It will involve a denial of both parents playing a significant role in R’s life – at least in the immediate future.

7. Yet, that principle (and ideal) must give way when the evidence points to a different conclusion in R’s best interests.

8. I accept that, if the father lives in Sydney, time between R and his mother will be significantly curtailed. I am also aware that electronic substitution for face-to-face time, such as Skype or similar are, in light of the financial circumstances of the parties and the other issues earlier discussed, unlikely to occur. Those same considerations point to face-to-face time not occurring with the frequency that the father suggested.

9. Yet, despite those “costs” to R, I am unable to persuade myself that the benefits of a move with his father – with all of its attendant issues – is not the better outcome for him. I consider that such a move provides R with the best chance of the stability and continuity of predictable care that he so plainly needs. While he might miss the relationship with his mother (and siblings), he will be free of the chaotic nature of the relationship with his mother and with a brother who has a plethora of issues and who, tragically, can be seen as not being a good “role model”.

10. On balance, I consider it in R’s best interests for him to live in Sydney with the father.

11. I propose to make a series of orders designed to facilitate time and communication between R and his mother as his maturity befits and as are constrained by the practical and other difficulties to which I have referred. I will also make an order facilitating communication between R and his siblings however, given the circumstances of this case, such communication will occur via the Department.

12. If “fairness” to parents was the criterion, the father might legitimately complain that he should not have to shoulder the burden of ensuring time shall occur. Yet, the criterion is R’s best interests and, in my view, despite all the difficulties he needs at least the opportunity to develop his own relationship with his mother. That can only occur, should the father move to Sydney, if the father assumes that burden – difficult though that will undoubtedly be.

13. Equally, however, R’s best interests need predictability and continuity. If the mother is unwilling or unable to play her part so that time does not occur with predictability or not at all, the consequent confusion created by expectation and disappointment should be brought to an end as soon as possible. Orders will be made to that effect.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 3 May 2012.

Associate: 

Date:  3 May 2012