Potts & Bims
[2007] FamCA 394
•4 May 2007
FAMILY COURT OF AUSTRALIA
| POTTS & BIMS AND ORS | [2007] FamCA 394 |
| FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Parenting proceedings between maternal grandparents and parents – Substance abuse and violence alleged against parents - Children’s views |
| Family Law Act 1975 (Cth) |
| APPLICANTS: | Mr and Mrs Potts |
| 1st RESPONDENT: | Mrs Bims |
| 2nd RESPONDENT: | Mr Bims |
| FILE NUMBER: | BRF | 1181 | of | 2005 |
| DATE DELIVERED: | 4 May 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 2, 3, 4 & 5 April 2007 |
REPRESENTATION
| THE APPLICANTS: | Appeared on their own behalf |
| THE 1ST RESPONDENT: | Appeared on her own behalf |
| THE 2ND RESPONDENT: | Appeared on his own behalf |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms J. Hogan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
1. The mother and the father are to have equal shared parental responsibility for the children the elder daughter born in June 1993, the son born in June 1995 and the younger daughter born in September 1999.
2. The children are to live with the mother and the father at all times agreed between them but absent agreement as follows:
a. during school term, with the mother from after school Friday in one week to before school on Friday the next week, and alternate weeks thereafter;
b. during school term, with the father from after school Friday in one week to before school on Friday the next week, and alternate weeks thereafter;
c. during school holidays, with the mother for the first half of all school holiday periods in even numbered years and with the father for the first half of all school holiday periods in odd numbered years;
d.the children communicate with each parent when they are in the care of the other at all reasonable times;
3. The children spend time with and communicate with their maternal grandparents at such times as may be agreed between the maternal grandparents and the parent in whose care the children are at the relevant time.
4. The parents and maternal grandparents are to keep each other informed of their address at which mail can be received and of their telephone number.
5. Neither the parents nor the maternal grandparents are to criticise, denigrate, or demean or ridicule the others directly to the children or in the presence or hearing of the children.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF1181 of 2005
| Mr and Mrs Potts |
Applicants
And
| Mrs Bims |
1st Respondent Mother
And
| Mr Bims |
2nd Respondent Father
REASONS FOR JUDGMENT
[To assist with editing to provide for anonymity, the parties will be referred to at times by their status vis-a-vis the children or by name, as may be convenient]
Proceedings
The decisions this Court is asked to make relate to the future arrangements for three children: the elder daughter who is almost 14 years of age [dob. [June 1993]]; the son who is almost 12 years of age [dob. [June 1995]]; and the younger daughter who is 7½ [dob. [December 1999]].
Their parents, the mother [34] and father [37], are the respondents to the proceedings instituted by their maternal grandparents, the maternal grandfather [56] and maternal grandmother [53].
The grandparents appeared on their own behalf and presented their case in unison. The parents also appeared on their own behalf and, being aligned about the children’s interests, they presented a united case. Appointed early in the proceedings, an independent children’s lawyer (ICL) was represented at the hearing by counsel.
Parties’ background
The grandparents began living together when the mother was a young child and married at a later time. The maternal grandfather has two children from a previous relationship; the mother is the maternal grandmother’s only child. They live at M and the grandfather works in the Commonwealth public service.
The parties began living together around June 1993, they married in April 1994, and they separated in August 2003. They were divorced in 2004. The mother had previously lived at M near to her parents but recently she moved to live at R in close proximity to the father’s residence at V. He lives there with his partner, Ms H [35], and together they had purchased the home in early 2006. They knew each other when they were much younger but their current relationship began in 2005 and they have lived together since June 2005. The father is a motor mechanic by occupation in full time work, Mr H works full time as a consultant, and the mother works for the Government full time in a clerical position.
Evidence
The grandparents rely on several affidavits sworn by each over time. There is an affidavit from each of the parents and there is also an affidavit from Ms H. All gave further evidence under cross-examination at the hearing. Two Family Reports have been prepared by a social worker, Ms L, who also gave further evidence at the hearing. Evidence was taken by telephone from Dr A, psychiatrist, following up a report annexed by the maternal grandfather to his affidavit concerning Dr A’s treatment of the maternal grandmother over many years until November 2005. Evidence was also taken by telephone from Dr G, a forensic toxicologist from a Forensic Medicine Unit, who assisted with the interpretation of pathology results arising from tests undertaken by all parties for various substances.
There are deep divisions between the grandparents and the parents, and their quite different versions of a shared history reveals dispute about what happened on many occasions. In some instances those differences need only be noted rather than explored here in any detail or a finding made about one version or the other. Their significance is not so much that they are central to the decision required as indicative of the level of conflict that has surrounded these children for a long time now. In as much as it is necessary to make findings, they will relate to the core issues. Obviously those findings will do nothing to bridge the deep rift in the family but, absent consent about the children’s arrangements, it is an unavoidable function of the litigation process. In the record of the background to follow, statements of fact are to be construed as findings of fact unless the context indicates otherwise and findings will be addressed as they arise for discussion.
Legal principles
The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘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)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
In this case the parents agree about the outcome as between themselves and oppose the outcome sought by the grandparents. It follows that the determination of the grandparents application against their united opposition will fall to be evaluated by the fewer provisions just mentioned.
Background
Taking first the evidence up to the point when proceedings were instituted, perhaps others would express it differently or select other developments, but in my view what follows indicates sufficiently the background and issues affecting the children’s arrangements in that earlier period:
(a)The children had a close association with their grandparents from birth. Before the parents’ separation, the children spent time with them regularly: after school, at weekends and during school holidays.
(b)In so far as it relates to the pre-separation period, there are indicators that the grandparents were supportive of the parents; for example, not only did they care for the children on a regular basis but they provided the parents with accommodation at their home when they were between houses. Yet there are also indicators of discord and differences; for example, the mother says her relationship with her mother was always difficult for reasons she outlines in her affidavit. Whether or not her mother agrees with that assessment is not apparent, but certainly it is at least her perspective and aspects of the history make it very likely to be so. Another indicator of relationships being fractured even before the separation is an allegation which arose some years ago of possible sexual abuse of the elder daughter and son by the maternal grandfather. What appears to be common ground, at least from Ms L’s report, is that authorities were involved when the matter was put in the hands of the relevant State Department, the JAB of the Queensland police and the SCAN team at a major hospital. No abuse was substantiated. Ms L’s report documents the grandparents’ dismissal of the issue and they underscore the complete absence of any need for concern by pointing out they were given permission at the time to take the children to their appointments at the hospital. Ms L goes on to report them speaking openly of the maternal grandmother having made allegations of a sexual nature in more than one direction when she was ill some time ago and of the damage that caused to some family relationships, particularly with the maternal grandfather’s daughter. In referring to this earlier history, it should be said that it is not intended to suggest for a moment there is anything giving rise to concerns along those lines here. It is merely to note there were developments well before the parents’ separation of relationship difficulties within the family and this undoubtedly was one source of difficulty at an earlier time.
(c)The parents’ relationship before their separation was fraught with conflict, they were users of illegal drugs, alcohol was consumed to excess regularly, the father was violent and that conduct escalated in the period leading to their separation in August 2003. Drug and alcohol use as well as violence features prominently in the grandparents’ case, amongst other concerns, and will be addressed more directly in due course.
(d)The mother obtained a temporary protection order against the father in August 2003. There were breaches of the order, in circumstances to be mentioned later, and in early September the father gave undertakings as to bail before being placed on a good behaviour bond for 2 years in early December and a protection order issued on 4 December 2003 for a period of two years.
(e)It is the grandparents’ case that after an initial period following the separation, the children went into their care and they took responsibility for them for a period of 20 months until the events just preceding their instigation of these proceedings. In that period they allege the children’s mother was absent for much of the time, taking them only occasionally overnight as she pursued her own social agenda, she remained involved in illegal drugs, and she continued to associate with drug users. The children only had ‘spasmodic’ contact with their father.
(f)The grandparents allege the children, more particularly the two older children, suffered emotional difficulties to one extent or another, arising in part from parental neglect and exposure to their father’s abusive and violent behaviour, to the parents’ volatile relationship, and to their parents’ drug usage and associates in that milieu. The son’s behaviour deteriorated considerably following the separation and schooling became problematic. He was seen by a school counsellor for a time and ultimately the grandparents arranged for him to see Dr C, child psychiatrist. The elder daughter later also consulted with Dr C and both children attended regularly. The grandparents say the school performance of both children improved while they were in their care and, while she was at pre-school in that time, the younger daughter was settled and happy with them. Indeed on their case the general behaviour of the children improved considerably under their care and guidance.
(g)The mother gives a different account of things in this earlier period. She concedes the violence in her relationship with the father which she nominates as a reason for the separation, and she concedes drug usage though she maintains this ceased some months after separation with occasional ongoing usage of marijuana. She alleges her mother has a long history of alcoholism and violent, abusive behaviour along with unpredictable mood swings and a history of mental instability. Her own upbringing was marked by difficulties and their relationship had always been problematic as a result.
(h)She acknowledges her parents’ support with the children post-separation though she does not concede they were in their care to the extent they allege during that 20 month period. She maintains they were initially with her and she had informal arrangements with the father who saw the children, at the start intermittently during the day, at her home. But her mother/parents increasingly took responsibility for the children as she increased her hours to full time work which involved significant travel getting to and from work. Over time she and the father addressed issues in their relationship as parents and developed co-operative and mutually agreeable arrangements between themselves about the children when they were not with their grandparents. However, as she relates it, probably accurately, her parents maintained a negative view of the father and were critical of her allowing the children to spend time with him.
(i)As her mother took increasing control over decisions related to the children, she discouraged the mother from participating in steps related to their care; for example, her mother enrolled the elder daughter at a high school without consulting her and her mother discouraged her interest in having the sessions with Dr C scheduled to accommodate her availability. She relates the children increasingly complaining of difficulties with their grandparents’ attitudes and aspects of their care, including their grandmother’s anger and fighting with their grandfather as well as both making derogatory remarks about their parents.
(j)Things came to a head in early April 2005 when the mother told her mother she was resuming control of the children’s care, that her mother could have them before and after school and sometimes of the weekend, but otherwise all of the major decisions would be made by her and the father. She says her mother reacted poorly to her decision and it appears there was an altercation, with police involvement, in mid-April. However, the upshot was that within the next couple of days all three children had left their grandparents home and gone to their mother’s place.
(k)Not long after this the grandparents made a notification about the children’s circumstances to the Department of Child Safety where their daughter worked at the time.
(l)It was in those circumstances they instituted these proceedings.
Their application was filed in April 2005. They sought interim and final orders for the children to live with them and have supervised contact with each parent at times the Court deems appropriate and for each parent to be restrained from consuming illicit drugs or alcohol to excess. The parents’ formal responses differed somewhat, but essentially they were on common ground in proposing that the children to live with their mother and have regular contact with their father and contact with their grandparents to occur once per week as well as regular communication by telephone.
On 10 May 2005, in the necessarily limited ambit of interim proceedings, the first of the interim orders was made by a Registrar. They provided for the children to live with their mother at certain specified times, limited to one day a week with the younger daughter and alternate weeks and one afternoon a week with the elder daughter and son, plus some other special occasions. They would live with their grandparents at all other times. Their contact with their father was to be as arranged with the grandparents but to be at least on alternate weekends and on special occasions. Otherwise the parents were directed to attend random drug testing at the request of the children’s representative who was appointed. Other orders related to non-denigration as well as responsibility for collection and return of the children as they made their way between households. The case was adjourned to 1 July 2005.
There followed arrangements with Ms L to prepare a Family Report and interviews occurred on 22 June followed by her report dated 8 July. In that, she identified the presenting issues as relating to -
‘1.The strong attachments and relationships of the children with both parents and the maternal grandparents.
2.The wishes and views of the children and ability to appreciate the implications of same.
3.The significant involvement of the maternal grandparents in the children's care between October 2003 and March 2004 [this was in error and should be May 2005] and again since the Court Orders dated 14.05.05.
4.The history of conflict and domestic violence between the parents and implications for their future communication and cooperation with respect to the children
5.The fractured relationships between [the mother] and father and the maternal grandparents and implications for moving the children between them in a manner conducive to their emotional and psychological wellbeing.
6.The importance of the parents addressing historical issues that have compromised their ability to consistently care for the children. Such that, the children can be reunited with one parent as primary carer and exercise meaningful contact with the other.
7.The importance of the maternal grandparents being significantly involved with the children but eventually in the capacity of grandparents.
8.The personal functioning and parenting capacities of all parties.
9.Significant concerns as to the historical functioning of the parties, in particular, substance abuse by the parents, domestic violence between them and psychiatric illness suffered by [the maternal grandmother]..
10.The history of child protection concerns and involvement of welfare and police authorities in this regard.
The substance of her lengthy report is summarised in her conclusions and recommendations where she acknowledged the complexity of the matter and said many factors needed to be considered. She noted that while authorities such as welfare and police had intervened in the family, there were no substantiated concerns about the care offered to the children by anyone involved. As she saw it, the significant issues raised by the grandparents included substance abuse and domestic violence and she noted the parents had both conceded they had a dysfunctional relationship characterised by domestic violence and substance abuse but they had since addressed these matters as well as their own relationship as parents. On their account of it, the mother had taken longer to address her drug use, but the reporter noted she had agreed to random drug testing and assessed her as presenting as capable, that she had maintained her household and held a steady job, albeit with support from her parents with the children, and that she has support networks. The reporter observed the parents to relate in a positive and supportive manner, particularly in relation to the children, they were open about their backgrounds, functioning and relationship, and there was some cause for confidence they would maintain stability and respect for the other as a parent. She thought the father may benefit from some counselling about past issues of substance abuse and domestic violence to minimise the risk of regression. She thought his relationship with Ms H presented as stable, though new at the time, and there were indications they would develop a functional relationship and be appropriate carers for the children. The mother was not in a committed relationship and Ms L thought the boarder who lived with her presented as stable and open, with no indication she posed any risk to the children.
In their interviews, the grandparents discussed issues related to their backgrounds, in particular what was called the maternal grandmother’s ‘compromised psychiatric health’. The report continues:
‘She has suffered obviously from a major psychotic breakdown which has required drug treatment including anti-psychotic medication. They may have minimised the depth of her illness though and not appreciate risks for regression. They appear to have minimised issues involving [the maternal grandmother] being dependent upon alcohol and implications for the family functioning.’
The reporter went on to suggest it may be useful for a psychiatric assessment to be obtained, with all parties participating given the complexity of the issues. That did not occur. Nonetheless, the reporter expressed the view that the mother is capable of resuming the role of primary carer of the children, there appeared to be no reason why the father could not have at least ‘routine’ contact with them or his partner not to be involved in that contact. The parents were reported as appreciating the importance of the children not being exposed to conflict between them and they indicated they could move the children between them consistent with the children’s well-being.
Given the indications of the significant involvement of the grandparents in the children’s care, the reporter considered they needed to remain involved in their care as grandparents. The reporter acknowledged the disappointment and concern they would have if the parents assume the roles of primary carers for the children, but she said it is important the children live with their parents if possible and they should be assisted to address any impediments to that. The grandparents are reported as indicating support for that as an ‘ideal’, but they maintained grave concerns about the parents’ ability to take on those roles and the maternal grandmother especially was considered to be particularly resistant to any such proposal.
Ms L concluded that the grandparents should have contact with the children such as an overnight visit each week and there should also be some holiday contact such as a two week period, particularly if the parents are working full time. She recommended that the maternal grandmother ‘should ensure that she embraces her psychiatric treatment and address issues pertaining to alcohol dependence’ and the children continue to consult with Dr C to the extent directed by him under the responsibility of the parents. She concluded her summary by reference to the children’s wishes, which she saw as significant, and said they wanted to be together and with their mother. She concluded:
‘7.20.…[The elder daughter] in particular needs to have her wishes respected, particularly given her age and expressed distress in the context of the report process. The children should be together as a sibling group though clearly they have individual needs. [The son] in particular indicates close attachments to the grandparents and may from time to time benefit from additional contact with them.’
Against that further background, on 11 July 2005 other interim orders were made by the Judicial Registrar subject to a variety of undertakings given by each party:
‘…AND UPON the undertakings of the MOTHER without admission:
i.not to use illicit substances whilst the children, [the elder daughter] born [in] June 1993, [the son] born [in] June 1995 and [the younger daughter] born [in] December 1999, are in her care;
ii.to attend some counselling with regard to illicit substance abuse;
iii.to facilitate the children’s attendances on [Dr C] at all such times as required by [Dr C];
iv.to facilitate the children’s attendance at all extra curricular activities, including training and games;
v.not to use physical discipline on the children at any time; and
vi.not to consume alcohol above the legal driving limit whilst the children are in her care
AND UPON the undertakings of the FATHER:
i.to ensure that the children, [the elder daughter] born [in] June 1993, [the son] born [in] June 1995 and [the younger daughter] born [in] December 1999, are not left unsupervised at any time in the care of the paternal grandparents;
ii.not to use physical discipline on the children at any time; and
iii.not to consume alcohol over the legal limit for driving a motor vehicle whilst the children are in his care
AND UPON the undertakings of the MATERNAL GRANDFATHER without admission:
i.not to physically discipline the children, [the elder daughter] born [in] June 1993, [the son] born [in] June 1995 and [the younger daughter] born [in] December 1999; and
ii.not to consume alcohol over the legal limit for driving a motor vehicle whilst the children are in his care
AND UPON the undertakings of the MATERNAL GRANDMOTHER without admission:
i.not to physically discipline the children, [the elder daughter] born [in] June 1993, [the son] born [in] June 1995 and [the younger daughter] born [in] December 1999; and
ii.not to consume alcohol over the legal limit for driving a motor vehicle whilst the children are in her care
On the basis of those undertakings, orders were made by consent providing for the children to live with their mother and have contact with their father as agreed between the parents but in particular for three weekends in a seven week cycle from Friday after school until before school on Monday as well as on special occasions and for block periods during Easter and Christmas school holidays. Provision was also made for telephone contact at reasonable times. The orders also provided for the children to have contact with their grandparents at times agreed by the mother and father, but in particular with the elder daughter and son from after school each Tuesday to before school Wednesday and until the younger daughter commences her first year at school from 9am each Tuesday to 8.30am Wednesday [collection and return to be shared between mother and grandparents]. There was also provision for the children to spend every 7th weekend with their grandparents [again the collection and return to be shared between the mother and grandparents] and there was further provision for the children to spend two weeks during the Christmas school holidays with their grandparents as well as telephone contact at all reasonable times. The orders provided for the father and grandparents to attend the children’s sporting and school events, and the non-denigration restraint was continued.
The maternal grandparents, legally represented at the time these orders were made, are critical of the process by which their consent was given, more particularly of the representation of their solicitor. However, whether or not there is any substance to their grievance is not something about which a view could be expressed here because basic principles of natural justice would require the solicitor’s version of events to be heard and this is not the forum for that.
The evidence canvassing developments since these orders is rather extensive and, again, while others might express it differently and in more detail, in my view the following summary is sufficient to indicate the path of subsequent developments:
(a)The grandparents have remained living in their home at M. The maternal grandfather’s work has stabilised in that he will not be required to travel as much as he earlier anticipated as part of his employment responsibilities. The maternal grandmother suffered a minor stroke towards the end of last year and she was hospitalised for a time. Unbeknown to her, a JEO had been obtained at the time and she was assessed by a psychiatrist while in hospital. It is apparent she and the maternal grandfather suspect their daughter or the parents were responsible for this but they deny that.
(b)The mother has recently moved from M to R and now lives proximate to the father and Ms H. The relationship between the father and Ms H was new at the time the proceedings were instituted and interim orders made and she has become more involved with the children since those early stages. One consequence of the mother’s move has been that the children’s school has been changed and they are now attending schools in the local area. Over time the parents have developed a shared care arrangement for the children whereby they spend substantial time with each of them. This involves, as I apprehend it, the son spending a bit more of his time with his father and the elder daughter spending more time with her mother; nonetheless, the arrangements are designed to ensure the children are together on the weekends.
(c)It is part of the parents’ case that Ms H and the mother have established a good rapport, all three have a united front and work co-operatively together about the children’s care, involvement in their activities and schooling, and there is a mutual respect about the role of the others. They refute claims by the grandparents that the children are compromised in their care and the children’s schooling is being neglected. They consider the grandparents’ pursuit of residence and their criticisms of them as parents and people to be debilitating and stressful, and they assert an adverse impact on the emotional well-being of the children from the actions and attitudes of their grandparents.
(d)As the parents see it, the children have had experienced difficulties when visiting the grandparents and have become increasingly resistant to going, particularly the two older children. The son refused to go some time ago now and the elder daughter has been even more resistant since problems arose during the holiday to Y earlier in the year. They say they are concerned at the grandmother’s mental state and what they allege to be the grandparents’ interrogation of the children about their circumstances with their parents, which the children resent. They say they are frustrated by the grandparents’ allegations and by their inability to accept either their position or that of the children.
(e)By no means exhaustive, examples of events underlying these issues include difficulties that developed during the children’s camping holiday to Y with their grandparents over the Christmas holidays which brought about their early return to their mother in unpleasant circumstances. There are different perspectives about why things developed as they did [the grandparents support theirs with photographs depicting a happy holiday]. Dispute also developed about whether their grandfather had called the elder daughter a ‘Hollywood slut’ when referring to her swimming costume [which the grandparents deny and say there was only a comment made on her fashion]. There was an occasion when the maternal grandmother collected the younger daughter from school after receiving a call from a parent advising the daughter had not been collected from school and was waiting alone. The grandmother went and got her. On the walk home the mother pulled up in the car and there was an unpleasant scene in front of the younger daughter before the mother left with her.
(e)For their part, the grandparents do not consider the children’s wishes are a true reflection of their views but more the result of the influence exerted by their parents who have involved them in the dispute and made them overly aware of the issues in the court proceedings. This is supported by concern over the elder daughter downloading an affidavit from her grandparents’ computer during a visit. They relate an increasingly disrespectful attitude by the children towards them, more particularly the two older children, and deterioration in their behaviour generally. The elder daughter has called her grandfather ‘cockhead’ and there have been other unacceptable things said. They relate an incident in January 2006 when the elder daughter lunged at the son at the dinner table with a steak knife in her hand. They allege the children’s behaviour has deteriorated to what it was when they first took over their care and the time they have with them under the interim orders is insufficient to remedy it.
(f)Even that limited time, which is insufficient to allow them any meaningful input into the children’s upbringing, is not happening according to the interim orders. The son’s refusal to visit represents a significant change from his positive attitude towards them at an earlier time. They have tried not to pressure him into coming but to reassure him of their love. However, the parents say they tried to ‘bribe’ him with excessive money for tuck shop and gave him treats. There were also many times when the son was visiting overnight that he would be ill the next morning. Rather than attend school, the grandparents would arrange for him to see Dr R and this became a source of dispute. The grandparents attribute his state to the parents’ neglect, his mother in particular, whereas the parents say he was not ill, it was manipulation, and he should be at school. On one occasion disagreement about whether he should go to the doctor or go to school led to the police being called. The grandparents also allege telephone contact with the children is unsatisfactory; their conversations with the children take place by speaker phone and their mother censors and controls the children’s conversations.
(g)As they see it, they have been increasingly cut out of the children’s lives. As they also see it, the parents are unable to function properly and care appropriately for the children. They remain convinced of the parents’ drug usage and dependency and of the father’s alcohol consumption and his violent behaviour. They allege the children are being moved from one house to the other without any routine or stability. They see the children’s well-being as considerably compromised by the present arrangements, they see themselves as the children’s protectors, and the children in need of the quality care they can provide.
(f)They have pursued their concerns about the welfare of the children in directions other than this litigation with relevant authorities [including, for example, the knife incident involving the elder daughter in January 2006] but the response has been unacceptable and led to other concerns. They are completely dissatisfied with the response of the Department of Child Safety, which they regard as having a conflict of interest, and believe their notification has not received proper attention by officers of the Department because it is the mother’s place of employment and she has had access to the files [which she denies]. They are also concerned to identify who had caused the JEO to issue during the maternal grandmother’s recent hospitalisation. As I apprehend it, they are still pursuing these issues.
(g)All parties have undergone urine testing at the request of the independent child lawyer. The results and findings on the topic will be discussed shortly.
Issues
It will be convenient now to canvas the evidence about the central issues which are identified, in no particular order of priority.
·The maternal grandmother’s mental health
One of the submissions by the grandparents is to the effect that Ms L was in error in what she said of the maternal grandmother’s mental health and psychiatric history. The grandfather annexed to one of his affidavits a letter dated 16 February 2006 to her general medical practitioner from Dr A, her former treating psychiatrist, to demonstrate the error. Given the importance of the issue for the grandparents, it is not proposed to summarise what Dr A said in that report but to allow the document to speak for itself by including the whole of it in a schedule to this judgment. It will be seen from Dr A’s report that the maternal grandmother had been quite ill at the time of her hospitalisation, where the discharge summary noted her diagnosis to be ‘Alcoholic Hallucinosis’ and her first consultation with him was in December 1996. It will also be seen that in her final sessions with him in November 2005, apart from mild anxiety and tearfulness related to concerns about her grandchildren, he identified no evidence of active psychiatric illness and nor was she taking any psychiatric medication.
Given the time frame involved, at my request Dr A made himself available by telephone to give evidence of any further consultations with the maternal grandmother since his report. He explained that their sessions concluded when he moved from private practice to the public sector at which time he referred her back to her general practitioner. He had not been involved in any treatment of the grandmother since that time. As he no longer had her records, he was unable to comment on the frequency of her attendance at consultations with him prior to that time or on other matters related to her earlier treatment.
This means it can be said unequivocally that there is no evidence of the maternal grandmother suffering any active psychiatric illness, it is accepted she is not taking any psychiatric medication, and nor does she see the need to consult with a psychiatrist about her mental health.
·drug and alcohol use
The history of the parents’ use of illegal drugs and alcohol abuse prior to separation is not in doubt. What is squarely up for consideration, however, is whether this has been put behind them.
Taking the father’s position first of all, he maintains he gave up drugs around the time of the separation, a decision that involved a commitment and a short period of withdrawal, and he takes no drugs now. Results of two urine tests are available. The first was sought by the ICL to be undertaken within a short period after the receipt of a letter dated 5 January this year. A sample was provided on 10 January and none of the substances for which testing was carried out were detected. But the protocols for chain of custody had not been adhered to and so he volunteered for another on 24 January when, again, no substances were detected but on this occasion the chain of custody had been maintained. His evidence about abstinence from drugs receives some support from these results and it is also support by his partner. As for the allegation he consumes alcohol to excess, he denies it and says he has 2 to 6 beers at night for half the week and a few at the weekend.
As for the mother’s position about use of drugs, that is more complicated. She has undergone three pathology tests. The first in March 2006 indicated the chain of custody had been maintained and no substances tested were detected. On 10 January this year, after receiving the letter from the ICL, she undertook a second test. She rejects suspicions about the lapse between the date of the letter and the day she presented for testing [10 January] and says she did comply within the time requested. Like the father’s test on this occasion, the chain of custody had not been maintained but on this occasion the results detected the presence of opiates and sympathomimetic amines. She explains this by reference to two features of the evidence. First, she says she had been ill and taking cold tablets. To support that, she tendered a bundle of documents which included two medical certificates from Dr R dated 4 and 18 December about her unfitness for work. There is also a note from Dr R dated 15 January confirming he saw her on 18 December and she was suffering from tonsillitis. There are also two receipts from a pharmacy for the sale of Codral day and night tablets on 19 December and also on 28 December. Finally, there is a certificate from Dr K from Dr R’s practice advising that the tablets she had been taking would give the positive results detected. In the face of the positive results, the laboratory conducted thin layer chromatography so as to detect the underlying substances and that indicated the presence of ephedrine/pseudoephedrine and codeine, both to be found in the medication she had been taking for her illness. She also presented for another test on 24 January where the chain of custody protocols were maintained and on this occasion the results detected positive for benzodiazepine and cannabinoids. The latter she explained by having had marijuana at a party, ingested by mistake after she had run out of cigarettes. Other evidence related to this topic is that there had been a raid by police on her home towards the end of last year and a small amount of marijuana or an implement had been found. On her account of it, that had been left over from her much earlier usage. She was charged with possession but a conviction was not recorded she entered into a recognizance to be of good behaviour for 4 months. There was a further raid on her new premises earlier this year but nothing was found. She suspects her parents instigated the police raids, but they deny any knowledge of it.
It remains to consider what conclusions can be drawn from this evidence. So far as the father is concerned, I am comfortably satisfied his evidence can be relied upon and I find, therefore, that he does not now use illegal drugs and it is extremely unlikely that he will revert to drug usage in the future. The pathology results point in this direction, though they are by no means conclusive, but I also rely on my assessment of the evidence he gave. I found his account of his involvement and withdrawal from drugs to be plausible and there is nothing about his personal presentation to indicate that he takes drugs. I am also satisfied that what he says about his consumption of alcohol can be relied on. The other more objective contra-indicators to support these findings are that he is in full time employment, he has day to day commitments to the children which he fulfils, and the children’s relationship with him is indicative of a parent who is involved and available rather than absent and pre-occupied with drugs and alcohol. Also, it is my assessment that he is in a stable relationship with a partner who, I am satisfied, would not condone drugs or excessive consumption of alcohol as part of their life or lifestyle. In coming to that last assessment, it is recognised that she experimented with ‘pot’ and ‘speed’ when younger, as she related to Ms L in interview, but did not take them up. It is also recognised that she lost her drivers licence at one point for 13 months after being charged with being in possession of a motor vehicle under the influence of alcohol, the circumstances she describes as sitting in her vehicle with her car keys in her possession.
So far as the mother is concerned, the first of the three tests was clear, but the detection of substances in the last two conducted in January requires anxious attention. The upshot of Dr G’s evidence is that little weight could be placed on thin layer chromatography as a process for concluding codeine and ephedrine or pseudoephedrine were the chemicals underlying the presence of opiates and sympathomimetic amines detected on 10 January. On the other hand, it has been satisfactorily established that the mother was ill during December and she had purchased from a pharmacy medication containing those substances as late as 28 December. It is also accepted that the chemicals in that medication could give those results. So the results of 10 January, and the detection of benzodiazepine on 24 January, do not inexorably lead to the conclusion that the mother had taken illegal drugs because it is equally likely that the medication she had been taking did produce those results. As for the cannabinoids detected in the last test, that is the result of having smoked marijuana at a party.
The inconclusive nature of the pathology results require the mother’s denial of drug use to be considered carefully. As I assess the situation, she did smoke marijuana at the party and her evidence about running out of cigarettes and not realising it was marijuana and so on was an attempt to avoid admitting to that fact. It suggests to my mind she is vulnerable to the use of marijuana, most probably in a social setting. But as I also assess the situation, it is unlikely her usage is of such significance or frequency as to represent a factor of profound concern and, as I also assess it, she is unlikely to smoke marijuana in the presence of the children. One indicator of occasional rather than continual usage, albeit small, is that the recent unexpected police raid produced no supplies secreted on hand in her home. There is no sufficient evidence to support a finding that she continues to use any other drug. As for alcohol, she reported to Ms L that she had been convicted of drink driving and fined $350 and lost her licence for 3 months about 12 months before the interviews for the second report, placing it in early 2006. The conviction does not appear on documents produced by Queensland Police [exhibit 2] but in volunteering it to Ms L she explained she had been ‘stupid’ for having a couple of drinks with dinner and then having a port with friends before to driving home.
Of course by not squarely confronting the issue of smoking marijuana at the party, she leaves herself open to the suspicion that she is not being frank about other things, more particularly about no longer using other drugs. But, as I assess it, to reject her denial for that reason would be unjust to her because it would disregard a range of factors indicating what she says can be relied on and that she should be believed. For example, she has maintained and continues to maintain regular employment, she also has the day to day commitment of responsibilities for the children which she fulfils, the nature of her relationship with the children as described in the reports is not one that reflects a troubled, unavailable pre-occupied parent, as might be expected by a user of drugs as alleged. Nor, I should add, do I think the father or Ms H would cover up for her or condone ongoing drug usage in the fairly closely entwined arrangements and responsibilities they have between them about the children’s day to day arrangements. Indeed, none of those involved are living in an aimless and unplanned environment without settled purpose or stability pursuing life around substance addiction, which might be expected if there were substance to the allegations.
·violence
Discussion of this topic can begin from the accepted standpoint that there was violence in the parents’ relationship and, by all accounts, it was not what some might call ‘low level’ violence. The question is whether, as the parents say, they have put that behind them and forged a co-operative and respectful relationship together as parents and, in the father’s case, he has rejected violence as a means of expression in his relationships with others.
There is, of course, the protection order against him put in place initially around the time of their separation which undoubtedly was the result of violent conduct on his part. There is also the conviction for the breach of the interim order and the continuation of the protection order for a period of two years from December 2003. As he explained it, the breaches related to his driving past the house and sending a text message to the mother, both being contrary to the terms of the orders. On the other hand, not from any legal obligation but on the suggestion of his solicitor at the time and because he thought it would be helpful, he undertook a course with Centrecare on anger management which he attended for 3 hours one night a week for a period of 6 to 8 weeks. He says he developed insights into his behaviour and change was the result.
Whether that can be believed depends on the assessment to be made of his surrounding circumstances over these past few years and of his reliability generally. Certainly there is no evidence of any incident between the parents since prior to and at the time of their separation in August 2003. By the time these proceedings were instigated in April 2005, they had forged a co-operative relationship, assessed in positive terms by Ms L when she later prepared her first report. Nor is there any evidence of violence in the relationship between the father and Ms H. As they each described it, the way in which they deal with differences or disagreements are by open discussion. When she was taken to the issue in cross-examination, the effect of Ms H’s evidence is that she would not be in the relationship with the father if there were any violence. This brought to the fore Ms L’s account in her initial report of Ms H’s earlier relationships, including her marriage of some six years’ duration which ended for reasons attributed, amongst other things, to occasional violence towards her. The effect of the reference to this history by the grandparents was to infer that Ms H has a history of tolerance of this kind of behaviour and her evidence that she would not accept it in her relationship with the father should be weighed accordingly. But, as Ms H explained it in cross-examination, the behaviour of her former husband changed as a result of an acquired brain injury from an accident and the consequent breakdown of the marriage had been particularly difficult for her. Being plausible and given in a credible manner, her evidence about that is accepted and it is accepted, therefore, that she would not tolerate violence in her current relationship. Nor, it can be said, is there any evidence of the mother having any relationship in the period since separation that has involved violent behaviour. Nor is there any evidence the children have been exposed to any violence while in the care of their parents these past several years. They were interviewed by Ms L for two reports and in the course of those interviews nothing was said by any of them to suggest they have witnessed or been exposed to violence or even any uproar of some kind either between their parents or between one parent and any other person. As I find, violence is not a factor warranting concern in the household of either parent.
·alleged bias by reporter
Before moving to evaluate best interest considerations in light of the history and these findings, it is necessary to address a submission made by the grandparents in their closing address about Ms L’s reports; namely, they should be read in the context of what is alleged to be her biased attitude towards the grandparents. The maternal grandfather extrapolated only briefly on this submission by adding that Ms L insulted the maternal grandmother, her non-professional attitude rendered both reports [in effect] worthless as evidence, he described her as threatening and aggressive in her manner under cross-examination by the grandmother, and he described her as using a ‘hateful’ tone. While he did not develop the submission beyond this, there are other aspects of their evidence and questioning pursued with Ms L to suggest the allegation of bias is somewhat wider and that should be squarely addressed.
There are pitfalls in trying to give a summary account of what seems to arise from the presentation of their case, but I think it fair to say they are dissatisfied not only with her manner and attitude but with aspects of the process she undertook. Apart from what has been said already, they allege her report contains omissions and she was wrong to believe what the parents told her over what they had said; she had an established agenda to return the children to the parents; she overreached her authority on occasions; she made unqualified and unwarranted remarks about the maternal grandmother’s psychiatric diagnosis and treatment; and she wrongly permitted the children to leave the report interview to go to lunch with their parents without consulting them, at a time of operation of the first interim orders of May 2005 placing the children in their care, and by so doing she possibly breached the orders and disregarded the existence at the time of a protection order against the father.
But in my assessment the allegation of bias has not been made out in that it has not been satisfactorily established that she undertook a process that was unfair or prejudicial to them or that in her dealings with them she had prejudged the opinions she was asked to form. It may well have been that she might have gone about things differently; for example, during the first interviews she might have been more explicit and told them the children were going to leave the building and accompany their parents to lunch. On the other hand, in large part the interview process is a matter for her professional assessment and while the maternal grandparents are obviously aggrieved about the children’s departure, nothing arises from the fact that occurred to diminish or undermine the weight of her opinion. As for her manner and tone, there is no way of assessing the grievance as it related to the report interviews. But certainly the content of her reports do not reflect an uneven hand being applied in the process she undertook, in her record of assessments, or by any prejudgment of an issue. As for her acceptance of what she was told by the parents, it is part of a reporter’s responsibility to evaluate what they are told and it is part of their training and expertise to form professional judgments about matters relevant to the opinion they are asked to present. As far as I can tell, Ms L in her reports did no more than that, albeit her evaluation was contrary in various respects to the position put by the maternal grandparents. As for her manner and tone, I was in a position to assess this under cross-examination and that showed her to hold quite firm views contrary to the grandparents’ case and to be quite spirited in pressing those views. Though the maternal grandfather’s description overstates the position somewhat, a more detached attitude may have avoided the criticism levelled at her. Nonetheless, that still does not establish bias and I am not persuaded the weight of her opinions as an expert should be diminished.
As I see it, the importance of Ms L’s evidence is not so much her recommendations about the outcome – deciding that is the function and responsibility of the court having regard to all of the evidence, including the expert’s – but more in her assessments of the relevant considerations she was asked to address, such as the children’s views and the nature of their relationships and the like. From an adjudication perspective, her record of those matters and her opinions about them can be accepted and will be taken into account in discussing those various considerations shortly.
Orders sought
The orders sought by the grandparents are set out in their amended application filed on 28 July 2006. They are quite detailed and as they form part of the court record need not be repeated here. Generally, it is proposed the children live with them and they would have joint responsibility for the children’s long term care, welfare and development with the parents. Subject to restraints on the parents’ consumption of alcohol and illegal drugs and other matters, they propose a different regime for the children to spend time with each parent. They would be with their mother one afternoon after school a week and every third weekend as well as longer periods during school holidays. They would be with their father every third weekend but not overnight and there would be other day time visits during school holidays. There is also provision for special occasions and regulation of a number of issues is proposed to be the subject of orders.
The parents each filed amended responses – the father’s on 18 August 2006 and the mother’s on 30 August 2006 – but the orders they sought by the end of the hearing are consistent with the outcome proposed by counsel for the independent children’s lawyer which is to be found in exhibit 10 and is in these terms:
1. That the mother and father have equal shared parental responsibility for the children [the elder daughter] born [in] June 1993, [the son] born [in] June 1995 and [the younger daughter] born [in] September 1999.
2. That the children live with the Mother and Father at all times as agreed between them but in particular as follows:
a. During school term, with the Mother from after school Friday in one week to before school on Friday the next week, and alternate weeks thereafter commencing Friday …………….2007.
b. During school term, with the Father from after school Friday in one week to before school on Friday the next week, and alternate weeks thereafter commencing Friday …………… 2007.
c. During school holidays, with the Mother for the first half of all school holiday periods, excluding the Christmas School Holidays in 2006 (2nd half in 2007) and alternate years, and with the Father for the first half of all school holiday periods, excluding the Christmas School Holidays in 2007 (2nd half in 2006) and alternate years.
d. That the children communicate with each parent when they a e in the care of the other at all reasonable times as agreed.
3. That the children spend time with the Maternal Grandparents at such times as may be agreed, between and the Maternal Grandparents, the parent in whose care the children are from time to time.
4. That the Mother and Father and Maternal Grandparents keep each other advised of a reliable address at which they can receive mail and telephone number, including any mobile number and advise within 48 hours of any change to those details.
5. That the mother and father advise each other as soon as practicable following any emergency, hospitalisation, illness, injury of the children, including the name and contact details (if known) of the treating hospital or medical practitioner.
6. That the mother and father keep each other advised as to the children’s school, medical practitioners.
7. That these orders operate as an authority for each parent to obtain information, results and reports from the children’s school and general medical practitioners of the children, at the expense (if any) of the party requesting the information, result or report about the children.
8. That no party criticise, denigrate, demean or ridicule each other or any member of the person’s family or household in the presence of or hearing of the children and will remove the children immediately from the presence of persons who are doing so.
9. That no party discuss with, or in the presence of, or hearing of, the children any matter which is the subject of, or relates to, Family Law proceedings or other proceedings involving the adults, whether past, present or future and will remove the child immediately from the presence of persons who are doing so, subject to any discussion which occurs in the presence of and at the direction of a social worker or psychologist engaged in therapy or counselling with the children or in the presence of and direction of a person undertaking statutory duties in relation to the children.
10. That no party use illicit drugs during the time the children are in their care, nor use any illicit drugs for 24 hours prior to the children being in their care.
Best interests
I turn now to record in a summary way the effect of findings discussed so far and to record other assessments relevant to the children’s best interests before considering the options and determining the outcome.
Primary considerations
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is an important consideration in this case. There is always risk of harm when the history has been as recounted already, but I am satisfied that there is not an unacceptable level of risk to these children from being in the care of either of their parents.
Additional considerations
(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
Evidence about the views of the children is to be found in the affidavits and oral evidence of the parties but Ms L’s record of what they had to say, more particularly in their recent interviews, is accepted and relied upon.
In the most recent report, Ms L [6.3] described the children, individually and as a group, to be resistant to spending time with their grandparents. As for the elder daughter, Ms L said it is important to the elder daughter that her views be heard and understood, she feels settled in her home life with her mother and brother and sister, and she likes to see her father and stepmother as well. The elder daughter appreciated the choice her parents had given her of moving between their households and she is happy everyone gets on well. She expressed a number of grievances about her grandparents’ behaviour towards her, and she made it clear that she does not want to live with them. She appears to be frustrated that they do not listen to her point of view:
‘6.14 [The elder daughter] said her grandparents constantly say to her and her siblings that they want the children to live with them and that her parents “will never win and that they will try harder.” She said they say things like “you have really blown it now and stuff and it's pretty annoying.”
6.15 [The elder daughter] said she has made it very clear to her grandparents that she does not want to live with them and she understood that her brother and sister had said the same. She said they say “they don't care” and they insist on pursuing that the children live with them. She said she has told the grandparents “it’s just hurting me and I don’t want to go through this and they don't listen.” She said she has “tried to understand why they are doing this and granddad tried to say something and Nana said “shut up […]”. I think it's crazy what they're doing.”’
Given two wishes, the elder daughter identified ‘to be with my mum and to see my dad often and [Ms H] and to live life without hassling from them, granddad and nana about mum and dad and [Ms H].’
In his recent interview, the son said he does not like the fact that his grandparents want ‘custody and I want to live with my parents.’ He identified his home life as ‘good’, he likes how it is, and he raised no concerns about his arrangements. He is unhappy about spending time with his grandparents, complaining about the Tuesdays because it is ‘too difficult’ to move between the households during the school week. As for spending time with his grandparents during holidays, he said ‘I guess, they are my grandparents so I have to see them sometimes’ but he is reported as saying he did not want to seem them again, including in the context of the report process, and he had no idea when he would see them in the future [6.30]. As for what he would like passed on to the judge, he said ‘that I want to be able to choose when I go’ and he was clear that he wants to live with his parents.
When asked about where she lives, the younger daughter identified living with her mother and her father and Ms H which she called ‘good’ and she identified no problems with that arrangement. She said she does not want to live with her grandparents – ‘I just don’t want to’ – and when asked how she felt about seeing her grandparents she said ‘not really’ though she could not articulate any concerns. She re-iterated [6.43] ‘I don’t want to live there and she [grandmother] keeps asking’ which she says is upsetting for her. As for what she wanted passed to the judge, she said ‘I don’t want to live there, I want to live (sic) my mum’s and my dad’s.’
There is nothing equivocal or unclear about the children’s views but the maternal grandparents maintain they are the product of influence by their mother or parents and, I think it fair to say, they find it difficult to comprehend otherwise how the children could genuinely be of this mind when their relationships with the children were so much better at an earlier time. But while children’s views are influenced by things around them, Ms L’s assessment is that they do hold the views they expressed and she rejects coaching or undue influences as an explanation for them.
The children are united and unwavering in their views, therefore, that they wish to remain living with their parents and continue the arrangements their parents and Ms H have put in place, and they do not wish to live with their grandparents. Nor by inference is there any enthusiasm for a regime of regular set visits to their grandparents. None of the children raise any concern about the standard of care or the environment around them in either parent’s household; to the contrary, they speak positively about it. They do raise a concern about not being listened to and it appears this is making the elder daughter and son angry [7.4]. In the circumstances, it has to be seen as highly unlikely any of the children would respond positively to an order that they live with their grandparents and, more particularly the two older children, it is difficult to see how an outcome contrary to their views could be implemented without putting them at some risk. Given their ages and stage of development, again more particularly of the two older children, this is an important factor and deserves considerable weight amongst other considerations.
(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)
I am satisfied the children have close relationships with both of their parents and with Ms H. This is borne out not only by the views the children express about their circumstances in interview with Ms L, but also by her observations of the interactions between the children and their parents and Ms H. Going to her more recent assessment [6.1], in her opinion they ‘related in a positive and consistently functional and respectful manner…there was apparent cohesion between the three adults and the children responded well to this, feeling secure with both sets of parents and with the parents being together.’
As for their relationship with their grandparents, there can be little doubt that at an earlier time when they were younger, there were no difficulties. But it is apparent from the evidence that real difficulties now exist. The nature of those difficulties is canvassed at some length in Ms L’s reports, but an indication of the present state of relationships can be seen from her recently reported description of observations of the children with their grandparents [6.49 and following]. In particular, the children were reluctant to spend time with them and they were unresponsive to their grandparents’ efforts to engage them. After production of photographs of the Y holiday, they relaxed, the younger daughter in particular, but the son complained of being bored and wanted to leave before later confronting them about their push to have the children live with them. The elder daughter also confronted her grandmother about being ‘mean’ to her on the telephone and about other issues. Ms L reports the children were not affectionate towards their grandparents when they left the observation to return to their parents.
Restoration of positive and happy relationships with their grandparents obviously will be a complex endeavour requiring considerable sensitivity and commitment from all concerned. But the indicators that will be universally forthcoming are not encouraging.
(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
If orders were made for the children to live with their grandparents, thus bringing about a significant change to their arrangements in place now for going on two years, there has to be real concern about the adverse impact that would have on them. Quite apart from the consideration that it would be undoubtedly interpreted as not having been listened to, which may have longer term implications for their approach to issues of trust, it also raises the spectre of them either not complying or not staying with their grandparents, thus possibly posing a situation of some risk to their well-being in either event.
(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
This is another important consideration in this case and addressing it requires reference back to the earlier discussion of the issues of substance abuse and violence. It is appreciated that the findings made on those issues are inconsistent with the obviously steadfast belief of the grandparents to the contrary that the children’s safety and well-being is compromised by what they believe surrounds the parents’ lives. Even by the end of the hearing there had been no revision of their attitudes, apparent from the submissions made by the paternal grandfather in closing address. As said in those submissions, all three adults [by which it is obviously meant to include Ms H] are still acting like children who do not run their lives in a functional way and they make bad decisions about indulging in drugs and alcohol on a regular basis. Drugs, it is said, play a major part in the mother’s life and the children are secondary. She needs rigid control over the children [a recurring allegation about her character] to facilitate her need to obtain the drugs which initiate mood swings, paranoia, delusions, aggression, and the need to dominate. The submission was made that the parents are both habitual alcohol and drug addicts, the father is a ‘well known alcoholic’ and has always been a heavy drinker, his evidence at the hearing of his alcohol consumption demonstrates he has not changed, and his current consumption is excessive. The submission was also made that his partner, Ms H, has regained her ‘lost sweetheart’ and is ‘desperate to please him’, the inference being that she could not be relied on to expose any untoward behaviour by him. The submission also said that the days of the hearing had been the only opportunity they had to see their daughter for the past two years and her appearance and mannerisms have shocked them, causing them to be terribly worried about the ramifications for her life.
But, contrary to this, I found their daughter to be an impressive young woman. Whatever her childhood experiences and the course her own upbringing took, it is likely that she has not been unaffected by her mother’s earlier illness and the repercussions of that for her own life. Yet while she did not address the topic in any direct way, she demonstrates nonetheless by her presentation some understanding of the dynamics involved in her relationship with her mother whom, she volunteered in cross-examination, she still loves and she also demonstrates some resilience in the face of obvious difficulties. There is no doubt she has been placed under considerable stress in having to deal with these proceedings and address the issues raised [obviously that is true for all involved] as well as deal with what her parents have said of her history, character and personality. She has done so not in an angry, defensive way, or in a self pitying fashion, but with dignity. In my view, she displays strength of personality and character in the way she has coped with her parents’ views about her, expressing that as they do with such impenetrable conviction. Her history reveals clearly that she has not always done the right thing, either by herself or by the children, and her parents were there at those times to take up the shortcomings. But she overcame the underlying dependence and addressed with resolve what she saw as the undermining of her role with the children and the role of their father. Overall, she presents as a person with capability as a parent, living a purposeful life directed to the children’s needs in co-operation with their father and his partner, with an aptitude for flexibility and thoughtfulness about the children’s needs, with insight into the damaging aspects of the kind of care they offered as parents in the past, and committed to ensuring that is not part of their future. It is acknowledged there are indicators she does still need to be vigilant about maintaining abstinence from substances abused in the past – the drink driving conviction and the marijuana consumption – but I am left, nonetheless, with confidence that her life choices for the future will be sound ones.
Finally, having regard to the submission that her parents were shocked at her appearance and mannerism at the hearing, some observation should be made about that lest the impression be left on the record there is something unusual or worrying about her physical presentation. Of course there is no way of knowing what her appearance or manner has been at any time other than the days of the hearing, but certainly she presented during that time as neat, clean, appropriately dressed, an attractive young woman who, though slim, is of a weight that is seemingly proportionate to her height. She had no mannerisms worthy of remark and certainly none to otherwise undermine confidence in her presentation. Her speech was normal, she was capable of expressing herself in an articulate way, she was able to maintain eye contact when addressed and overall she was responsive and composed in her manner, though there were brief teary interludes at understandable points. Therefore it is difficult to comprehend what is meant by this observation.
The father’s past plainly involves unacceptable behaviour by his involvement in substance abuse and violence. But he is assessed as having the maturity and insight to make the changes so obviously necessary, not only for the quality of his own life but importantly for his children’s upbringing, and all of the indicators are that his commitment to putting that kind of behaviour and lifestyle behind him has been successful. He impresses as a sensible person, capable as a parent, as having much to offer the children. He also impresses as having the capacity to work with their mother in a constructive and co-operative way to address their needs and in the organisation of their activities and arrangements. His partner, Ms H, is also an impressive person. This family’s dynamics seem to be unfamiliar and therefore challenging for her, but all of the indicators are that she has taken an appropriate rather than over-involved role in the family dynamics. She presents as mature and thoughtful and capable of addressing any difficulties in a constructive and composed way. That she is a person of quality with much to offer the children is evident from their views about her and the relationships she and the children have established, as well as their mother’s view of her and the co-operative, respectful relationship they have developed. Together, she and their father have established a settled and stable environment for the children and, with their mother, they have all three established an untroubled and co-operative approach to the children’s arrangements.
The damaging impact on children of being exposed to conflict and discord between important people in their lives is well documented, as is the benefit for children seeing those close to them get on and co-operate. I am satisfied the parents have achieved this, to their credit, and I am also satisfied that can be relied on to continue into the future. Their clear insight into the need for it attests to that, as does the fact that they have established and maintained this much improved relationship for at least the past two years or so the children have been in their care.
I am also satisfied both parents have the capacity to see to the children’s other needs. In making her brief closing submissions on behalf of both parents, the mother spoke of the commitment she and their father and Ms H have to giving the children the opportunity to develop healthy, normal relationships and attitudes by encouraging trust, respect, acceptance, love, support and understanding. Given the changes they have brought about to their lives and the mutual support in place between the three adults concerned, there is cause for confidence they will succeed in that endeavour.
Of course these findings and assessments are completely contrary to the views of the grandparents. There is no reason to see those views or the concerns they express as anything other than genuine and, being of the utmost importance to the safety and well-being of children, I have borne their views and concerns in mind and given them careful consideration in coming to these conclusions. Plainly the grandparents have played an important, even indispensable, role in the lives of all three children from the time of their birth, including at crucial times when their parents were not providing for their needs. It is regrettable, therefore, but nonetheless necessary to say some difficult things now.
While accepting they are motivated by a desire to protect the children for reasons they presented, they impress as lacking a necessary degree of balance in their approach to matters relevant to the children’s care and they do not exhibit the degree of tolerance, insight, sensitivity or flexibility of thought required to consider any alternative to the way they see and assess things. There may be individual differences between them about this, but their united approach does not allow any discernment. There were opportunities in the course of the hearing to take stock and allow at least a glimpse of the prospect that things may no longer be as they believe them to be, but they would not or could not take them up. They maintained to the end an unbending attitude and fixed belief in their own rightness about the state of the parents’ lives and their manipulation of the children away from their earlier good relationships with them. They appear unable to conceive they had made any contribution to the state of affairs that has developed with the children or to the ongoing conflict with their daughter and the children’s father. They maintain vigorous opposition to the children being brought up by their parents, they dismiss as ‘shunting’ the shared care arrangements in place between the parents, and they remain extremely unreceptive to any possibility that the children’s resistance [at least the older two] to seeing them or visiting them can be attributed to anything other than their daughter’s controlling nature or like explanations, unrelated to their own attitudes and conduct.
While ever the grandparents maintain their beliefs about the parents’ lifestyle and their views about them as people, despite the more objective indicators and assessments to the contrary, it is unlikely the conflict between the parents and grandparents will lessen. The debilitating impact on children of exposure to prolonged contact is an important consideration relevant to their future well-being and so it is necessary to question whether these beliefs and views are likely to change. Regrettably, there is no indication of that. They appear unable to accept any explanation for things other than their own beliefs, even if as equally likely, and nor do they appear able to change their attitude about the earlier unacceptable state of the parents’ functioning or even the possibility the parents may have addressed and dealt with those issues. Certainly they appear unable to depart from the view that the children need to be rescued by them from their parents.
In the circumstances, it is difficult to see how there can be any progress from positions now fixed. Yet more of the same will continue to place the children in an impossible position where they are simply unable to convince their grandparents they are happy and well cared for between their parents. If that were to prevail into the future, it must have a debilitating impact on their functioning and thus undermine their opportunity for a healthy happy development.
(j) any family violence involving the child or a member of the child's family
This has been discussed already and findings made.
(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
This is a consideration of some importance. This litigation, there can be little doubt, has been stressful for all concerned, including the children, and it could not be consistent with their interests to expose them to the prospect of further dispute and disagreement requiring court adjudication.
Conclusion/options
As set out earlier, the independent children’s lawyer proposes orders that would see the children remain with their parents in the shared care arrangement they have implemented by agreement. I am satisfied the children’s best interests would be served by adopting that submission. This is borne out by what has been said earlier of the children’s views, their relationships with their parents and stepmother, their settled and stable current circumstances, and by the capacities of their parents and stepmother to provide for their needs. They have started at a new school recently following the move closer to their father’s home and any disruption to that is unwarranted. The children have been in the care of their parents since the making of the orders by consent in July 2005 and while their time between households as changed and adapted, the parents are best able to assess what is best for them as they develop.
That said, there remains the question of what, if any, orders should be made about the children spending time with their grandparents. Ideally, of course, the children should have an active relationship with their grandparents without any need for the intervention of court orders. It would certainly set a positive example to these children if the rifts could be healed, but that is not the case at this point and so alternatives for them have to be considered. One option is to make an order prohibiting time with the grandparents. However, that tends to shut out opportunities to improve relationships as time goes on. It would be just too pessimistic to conclude there will never, never be any change in attitude and so this option can be discarded with relative ease. Another option is to make an order for the children to spend time with their grandparents if they wish to do so. But in my view that sort of arrangement has the potential to burden children and may cause children to experience feelings of guilt and responsibility for disappointments about decisions they make whenever the occasion arises. It too can be discarded. A further option is to make an order for periodic visits, such as those contemplated by the parents in their initial application. Yet this has difficulties which are presently seemingly insurmountable – namely, their grandparents fixed views about their need to be rescued - and that is likely to expose the children to more of what have been their experiences to date, as set out in the recent report. A continuation of that is contrary to their best interests, as noted earlier. The remaining option is the one proposed by the independent children’s lawyer; namely, to give to each parent the responsibility for the decision about what time, if any, the children spend with their grandparents and what communication there is between the children and their grandparents. This would require liaison between the grandparents and the parent in whose care the child would be at the given time, and quite possibly both parents having regard to the children’s flexible arrangements. The absence of a specific order runs the risk this will not come about, but it is the least detrimental option for the children of others proposed and considered. Orders will be made accordingly.
Form of orders
The orders implementing these decisions are relatively uncomplicated. For the most part, the proposals of the independent children’s lawyer are adopted. Of course all manner of arrangements and decisions can find their way into proposals for court orders, but often they are unrelated to the case or unnecessary given findings, and making them can only serve to provide fertile ground for further litigation about some perceived breach or other reason. Here the orders should set that prospect at a minimum. Those adopted about the regulation of the children’s future arrangements are those regarded as consistent with and necessary for their best interests.
Schedule
Letter from Dr A to Dr R dated 16 February 2006
‘Re: [The maternal grandmother] – DOB: 27/05/1953
[The maternal grandmother] was discharged from my practice on 18/11/2005.
[The maternal grandmother] was previously admitted to [P Hospital]. She first presented to me on 10 December 1996, on referral from you. Her diagnosis on the hospital’s discharge summary was “Alcoholic Hallucinosis”. The hospital noted that she had “unshakeable conviction, unpleasant, distressing belief that her husband and stepchildren are engaging in incestuous relationships”.
In view of her inpatient diagnosis, [the maternal grandmother] was treated with the antipsychotic medication risperidone and the antidepressants Aropax and Prothiaden. The regular ingestion of risperidone and Aropax was ceased within four months of referral as her symptoms and ideation settled.
[The maternal grandmother] also attended to her past excess alcohol use problems, including attending two Alcoholics Anonymous meetings.
[The maternal grandmother] worked hard on acquiring cognitive-behavioural skills to deal with intrusive, distressing ideas. From time to time she took risperidone as required, although this was infrequent. By late 1997 her diagnosis concerning the prior symptoms had been changed to one of Delusional Disorder. She was carefully monitored for features of other possible diagnoses.
She did experience a relapse in November 1997, requiring recommencement of regular risperidone. This occurred in the context of dysphoric mood and some family pressures. Once again, she re-applied herself to cognitive behavioural techniques. She required cogentin medication for some akathisia.
I wrote to you on 9 April 1998 updating her clinical progress. She was referred to psychiatrist [Dr J] on 7 August 1998 regarding her complaints of diminished libido. She discontinued attendance on [Dr J] for treatment of that problem after visits on 19 August and 30 September 1998.
[The maternal grandmother] continued to take regular risperidone in the remainder of 1998. I wrote to you on 31 March 1999 updating you with her progress. At that time, it appeared that regular risperidone would be necessary in view of the relapsing nature of her illness when that medication was withdrawn.
Throughout 1999 [the maternal grandmother] continue to take risperidone. She dealt with a range of family pressure and reported that she and her husband were providing extensive social and other support to members of their extended family.
These events and pressures imposed some strain on [the maternal grandmother’s] relationship with her husband and these were discussed in the course of 2000 during visits every two or three months. It should be noted that at that time [the maternal grandmother] did not describe recommencement of excess alcohol use, despite those pressures.
She did have the antidepressant Cipramil added in 2001 after a relapse of her dysphoric mood with tearfulness, sleep disturbance, and overeating. She also noticed that her alcohol use began to increase. After the antidepressant was commenced, this problem again resolved. There were also family pressures in relation to her parents’ possessions when her father was moved into a nursing home in 2001.
In 2002 she continued to suffer episodes of depressed mood and her Cipramil was eventually increased to a maximum of four tablets per day alternating with three tablets per day. Her support of her grandchildren was maintained despite these difficulties.
Her antidepressant was slowly reduced in 2002. A diagnosis of schizo-affective disorder was briefly made as an alternative to the Delusional Disorder diagnosis in that year. (Her subsequent longitudinal course negated the schizoaffective disorder diagnosis).
She attempted to cease smoking in 2003. At that time she continued to take regular, low-dose Risperdal and moderate to high dose Cipramil antidepressant. She continued to provide extensive support to her three grandchildren who would stay overnight on Friday and Saturday nights (August 2003), with this care later increasing.
She subsequently reported major problems in her daughter’s [the mother’s] marriage in 2003, with the children later coming to live with [the maternal grandmother] and her husband. There were considerable financial stressors and discord with other family members in relation to those events. She reported that her grandchildren required psychiatric treatment. She was distressed at her daughter’s [the mother’s] attitude, she reported. At that time, she was on no regular psychiatric medication.
I updated you concerning her progress in a brief note dated 11 October 2004.
In 2005 there were considerable pressures with ongoing family court litigation. Despite these stressors, [the maternal grandmother’s] mood was reasonably well-maintained with no ongoing requirement for psychiatric medication. She clearly articulated her perception of her grandchildren’s needs and actions required of her and her husband to meet their needs.
[The maternal grandmother] was distressed on reading an adverse Family Court social worker report concerning her, in August 2005. She was also upset with her legal adviser concerning the conduct of her matter. An antidepressant was discussed, but [the maternal grandmother] chose not to return to regular medication use.
[The maternal grandmother] attended family court mediation sessions but remained very concerned about the welfare of her grandchildren after she learnt of a residency order inconsistent with her perceptions of the children’s best interests. Nevertheless, in her final sessions in November 2005, apart from her being mildly anxious and tearful solely in relation to those matters, there was no evidence of active psychiatric illness. She was taking no psychiatric medication.
I hope this discharge summary is of assistance to you in your ongoing care of [the maternal grandmother].’
I certify that the preceding Seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date: 4 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as POTTS & BIMS
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