Reilly and Drummond
[2015] FCCA 2904
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REILLY & DRUMMOND | [2015] FCCA 2904 |
| Catchwords: FAMILY LAW – Parenting – dispute between Mother and Maternal Grandmother – complex, dysfunctional family history – where on balance child should remain living with the Maternal Grandmother. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS REILLY |
| Respondent: | MS DRUMMOND |
| File Number: | WOC 775 of 2009 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 29-30 January 2015 and 6-7 October 2015 |
| Date of Last Submission: | 7 October 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Humphreys |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Macarthur Law Group |
| Counsel for the Independent Children’s Lawyer: | Mr Alexander |
| Solicitors for the Independent Children’s Lawyer: | Verekers Lawyers |
ORDERS
The Mother and the Maternal Grandmother have equal shared parental responsibility for the Child X, born (omitted) 2008.
The Child live with the Maternal Grandmother.
The Child spend time with the Mother as follows:
(a)Commencing on the first of the New South Wales School term then each alternate week, from the conclusion of school on Friday until the commencement of school on the immediately following Monday.
(b)Commencing on the second week of the New South Wales School term then each alternate week, from the commencement of school on Monday until the commencement of school on the immediately following Wednesday.
(c)On the first week on the New South Wales school holidays from 12:00 noon Saturday until 12:00 noon on the immediately following Saturday, and each alternate week thereafter from 12:00 noon Saturday until 12:00 noon on the immediately following Saturday.
(d)On Mother's Day weekend from 9:00am to 5:00pm on Mother's day, unless agreed between the parties.
(e)On the Mother's Birthday if the Mother's Birthday falls on a weekend from 9:00am until 5:00pm that day, unless agreed between the parties.
(f)On the birthday of the Child’s siblings from 4:00pm until 7:00pm that day.
(g)Any other time as agreed between the parties.
(h)The Child’s time with the Mother is suspended to facilitate the Child spending time with the Maternal Grandmother as follows:
(i)From 8:30am until 5:30pm on (religion omitted) Convention.
(ii)Any other time as agreed between the parties.
For the purpose of collection and drop off, should the Child's time with the Mother not commence and conclude at the Child's school, then the Mother is to collect and drop of the Child at the Maternal Grandmother’s residence.
On collection and drop off at the Maternal Grandmother’s residence, the Mother is to ensure that Mr S is not present.
The parties are restrained from contacting each other by any means, except via text message and only in relation to scheduled time occurring between the Child and the Mother for the purposes of confirming time is to occur, or otherwise in relation to any concerns regarding the Child's wellbeing.
The parties are restrained from communicating with each other in regards to any other matters.
The parties are restrained from verbally communicating during delivery of the Child at both the commencement and conclusion of the Mother's time with the Child except in relation to any concerns regarding the Child's wellbeing or to confirm arrangements regarding delivery of the Child at the conclusion of the Child’s time with the Mother.
Each party is hereby restrained from denigrating, belittling, insulting the other party, persons who the other party is in a domestic relationship with, or members of the other party's family in the presence or hearing of the Child and each party must use their best endeavours to ensure that no other person denigrates or insults the other party, persons who the other party is in a domestic relationship with or members of the other party's family in the presence hearing of the Child.
The Child is to have telephone communication between the hours of 6:00pm and 7:00pm on each Monday, Thursday and Saturday when the child is spending overnight time with the other party.
Notwithstanding any other Order, the party who does not have care of the Child is to initiate phone contact with the other party for the Child.
Each party is to keep the other party informed of a contact telephone number for the Child whilst the Child is in the party’s care, and notify the other party of any change to the contact telephone number within forty-eight (48) hours of the change occurring.
Each party is authorised by this Order to receive directly from the Child's school or place of education a copy of all reports for the Child, photos for the Child (at the cost of the party requesting the photos), newsletters, and other documents normally provided to parents.
Each party is to keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treats the child and authorise each treating medical practitioner and health professionals treating the Child to provide the other party with information that they are lawfully able to provide about the Child and communicate with the other party in relation to the treatment of the Child and/or the Child's requirements.
Each party is to inform the other party as soon as reasonably practicable if the child is hospitalised at any time or are required to attend with a medical professional to seek emergency treatment.
The parties are restrained from consuming alcohol or illicit drugs in the presence of the Child.
THE COURT NOTES THAT:
A.Notwithstanding Order 1 above, should it become necessary to give consent to the Child having a blood transfusion, the Maternal Grandmother agrees that she will abide by the decision made by the Mother in this regard.
IT IS NOTED that publication of this judgment under the pseudonym Reilly & Drummond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 775 of 2009
| MS REILLY |
Applicant
And
| MS DRUMMOND |
Respondent
REASONS FOR JUDGMENT
Introduction
This case about X, born (omitted) 2008. X is 7 years old. Since before his first birthday he has been living with his grandmother, who is 51 years old. X’s mother is 27 years old. X’s mother would like X to come and live with her, but to spend time with his grandmother. The Maternal Grandmother believes that it is best for X that he continues to live with her, but spend time with his mother. These reasons for judgment explain the Orders that the Court has determined to be in the best interests of X.
Background
X came into his grandmother’s care in 2009. Initially, the Maternal Grandmother’s care of X appeared to be temporary and to assist the Mother to gain accommodation for both herself and her partner, Mr S. The Maternal Grandmother’s concern, with hindsight, appears to have run far deeper than just concerns about the Mother’s accommodation. She was concerned about the Mother’s chaotic life and her inability to prioritise X’s needs. It was a tumultuous period for both the Maternal Grandmother and the Mother. The present litigation, in fact, commenced in 2009, when X was only 1 year old. The Mother and Maternal Grandmother entered into Consent Orders for X to live with his grandmother, but to spend supervised time with his mother during day times only. This progressed to unsupervised time.
The Mother is one of five children to the Maternal Grandmother. Her other children are U 32, Ms T 30, Y 19, and Z 17. The Maternal Grandmother’s relationships with her other children have waxed and waned over the years. The Mother had two subsequent children to her partner, Mr S. V, is six years old, and W, who will be nearly five by the time these reasons for judgment are published. Both V and W have remained in the Mother’s care.
It is relatively uncontentious that X enjoys a good relationship with V, W, Y and Z.
It is clear that the Maternal Grandmother and Mother’s relationship is problematic, but in some respects, it is also clear that the Maternal Grandmother’s strongest relationship with her children is, in fact, with the Mother in these proceedings.
This is a case where the family dynamics are less than ideal, the parenting less than optimal, and where the personalities of each the Mother and Maternal Grandmother is far from perfect. The Court cannot rewrite the history of X’s life, but must work within its parameters. In many respects, the same can be said of both the Maternal Grandmother and the Mother’s lives.
Everyone means well in this case. The proposals advanced by both the Maternal Grandmother and the Mother are made bona fide and represent what they believe to be in X’s best interests.
V has special needs as a result of severe brain damage suffered in 2010 involving an assault. This has greatly added to the Mother’s parenting responsibilities.
Apart from a significant period in 2012/2013, the Mother has always been in X’s life. In January 2012, the Mother and her partner relocated to Queensland and did not return until April 2013. The Mother kept in touch by Skype. She travelled down from Queensland three or four times throughout 2012, and X travelled up to Queensland three or four times in the period the Mother was away.
After the Mother and her partner, Mr S, had returned from Queensland, and obtained permanent accommodation, the Mother and Maternal Grandmother entered into Consent Orders for X to spend each alternate weekend with the Mother, including overnights.
Since then, there have been disputes between the Mother and Maternal Grandmother about a number of things relating to X’s life. There was an issue about where he would go to school. There was, and continues to be, an issue about X being exposed to his Grandmother’s faith as a (religion omitted). There were issues about Mr S, and about X’s extracurricular activities. There were issues about what, precisely, X’s views were about where he wanted to live and how much time he wanted to spend with his mother and grandmother.
Each party to this litigation has concerns about the others’ parenting capacity. For example, the Maternal Grandmother was concerned about what she considered to be her daughter’s violent relationship with her partner, Mr S. The Mother was concerned about the Maternal Grandmother’s poor track record in terms of parenting her own children and the risk that this would be replicated in X’s life, particularly once he enters into adolescence. An Independent Children’s Lawyer had been appointed for X.
The Mother, Maternal Grandmother and Independent Children’s Lawyer were all represented by Counsel at the final hearing. The matter ran for two days commencing 29 January 2015, but then went over part-heard to 6 and 7 October 2015.
Proposals
The order sought by the Mother was that she have sole parental responsibility for X in relation to matters of religion and medical procedures. In relation to other matters, there be equal shared parental responsibility, but X live with her from the end of the 2015 school year. X would then spend time with his grandmother each alternate weekend from after school Friday to before school on Tuesday, and each alternate Monday from after school to before school on Wednesday. The Mother also proposed Orders for school holidays and special days. In effect, the Mother was proposing that X live with her, but spend 5 out of each 14 nights during the school term with his grandmother.
The Maternal Grandmother proposed that she have sole parental responsibility for X and that he live with her. X would spend time with his mother each alternate weekend from after school on Friday, until the beginning of school on Monday, together with each alternate Monday from after school to before school on Tuesday. She also proposed orders on special days and school holidays.
The Independent Children’s Lawyer’s proposal formulated immediately before closing submissions on day 4 of the hearing was that there be equal shared parental responsibility, that X live with his mother, and spend time with his grandmother along the same lines as that proposed by his mother. A special notation was sought to the effect that if it ever became necessary to decide whether X should have a blood transfusion, that would be a matter to be decided solely by the Mother.
The Evidence
The Independent Children’s Lawyer’s case depended largely on the two Family Reports prepared by Family Consultant Ms O dated 14 October 2013 and 1 September 2015. Ms O was cross-examined. The Independent Children’s Lawyer also relied on a Report prepared by a forensic psychiatrist, Dr R, dated 20 October 2010. Dr R was not required for cross-examination.
In the Mother’s case, reliance was placed on her Affidavits filed 22 January 2015 and 28 September 2015. She also relied on Affidavits from her partner, Mr S, and her sister Ms T. Ms T is the second oldest of the children of the Grandmother. All of the deponents of the Affidavits relied on in the Mother’s case were cross-examined.
In the Maternal Grandmother’s case, she relied on her five Affidavits filed 10 June 2014, 4 September 2014, 23 December 2014, 27 January 2015 and 25 September 2015. The Maternal Grandmother was extensively cross-examined.
By way of outline of these reasons for judgment, after stating the applicable law the Court will first consider the expert evidence led in this case both from Dr R and Family Consultant Ms O. The evidence given by these witnesses has the benefit of both being independent and expert. The Court will then briefly consider the evidence given by the other witnesses in the case including, where it is necessary, making observations about credit. All of the evidence will then be considered by reference to the primary and additional considerations set out in s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining what Orders are in the best interests of X, other provisions of the Act may be taken into account.
The applicable law
In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Expert evidence
Dr R’s report is dated 20 October 2010. Its recommendations, which will be discussed below, are dated. The real value of Dr R is to provide a deeper understanding of the background of the family dysfunction that exists in this case. For example, he believed that both the Maternal Grandmother and the Mother would probably qualify for a diagnosis of borderline and dependent personality disorder. With respect to the Maternal Grandmother, he observed that she had formed destructive dependent relationships and had repeatedly been subject to violence and abuse by her partners. She had abused alcohol in the past, and attempted self-harm in the past. She had neglected her older three children, and her relationship with her children Ms T and U had broken down completely, but her relationship with her daughter, the Mother in these proceedings, was still viable. In relation to the Mother, she demonstrated poor relationships, unstable life choices, previous acts of self-harm and a limited work history.
Dr R summarised the family into which X had been born at page 17-18, as follows:
The allegations of violence and summary.
In essence, X has been born into an extended family with enormous problems. Ms Drummond had a traumatic childhood and was severely abused. Ms Drummond has five children from 4 different fathers. She didn’t complete her education. She has abused alcohol in the past. She never underwent any extensive rehabilitation. Ms Drummond’s self harm occurred in the context of her destructive relationship with the (nationality omitted) man. There has been a lot of family violence and disruption between Ms Drummond and her children. There have been AVO’s between Ms Drummond, Ms T and Ms Reilly. Ms Drummond doesn’t have any extensive drug or criminal history.
To Ms Drummond’s credit she has ceased having destructive relationships with men. She now appears to have a stable home environment for her two younger children and X who appear to be progressing satisfactorily at school and day care. She’s now been in stable accommodation for a significant period of time. Over the past five years she’s stopped having destructive relationships with men and stopped abusing alcohol. It does appear that she has made some substantial progress in her overall functioning and coping.
Ms Drummond does appear to have some insight into her issues as she regrets she wasn’t able to care for U for the first 6 years of his life and also taking him back when he was 6 or 7 years old. Ms T was probably sexually abused when she was a child and so Ms Drummond wasn’t able to protect her.
There doesn’t appear to be any significant abuse of Ms Reilly. Ms Reilly appears to be more stable than U and Ms T. Each of the children that she’s had appeared to be progressively functioning better than the older child under Ms Drummond’s care.
Ms Reilly’s background was extremely disrupted. Her mother’s relationships were very destructive and she witnessed a lot of violence and alcohol abuse. Like Ms Drummond she has had suicide attempts on two occasions and spent time in hospital when she was 18. She hasn’t had any suicidal behaviour since that time. Ms Reilly doesn’t seem to have any drug or alcohol abuse.
Ms Reilly moved to live with her father from year 7 at school. However, her father was an alcoholic. She did appear to develop a strong bond with him and is now currently still living with him. Like her mother Ms Reilly made very erratic decisions in her life. She forms inappropriate and destructive relationships. She was very dependent on Mr R which then broke down and she then became pregnant to Mr C. Soon after giving birth to X she formed another dependent relationship with Mr S and lived with Mr S’s mother. She wasn’t able to protect V who was brain damaged. Perhaps in a time of lucidity she relinquished the care of X. It is commendable that Mr S is attempting a year 10 certificate at the age of 20 however he is yet to provide any stability in his life. He and his family have an extensive criminal history.
Dr R noted that X was strongly attached to the Maternal Grandmother, who was providing adequately for him. He was also attached to his Mother. At page 18 he did express this concern:
I do have major concerns about Ms Drummond being able to provide adequately for the children when they enter their teenage years, even if she remains stable, as the children will be more sophisticated and more challenging.
He had concerns about the Mother’s ability to provide for X, at that time in her life. She was caring for a brain-damaged child, V. She was pregnant with W. Dr R was concerned about how stable Mr S was in the Mother’s life.
Dr R concluded that the Maternal Grandmother was the least detrimental alternative who probably offered the most stable home environment at the time. He made a number of recommendations about contact.
Dr R was not required for cross-examination.
Family Consultant Ms O’s first Report is dated 14 October 2013.
The Mother’s concerns expressed to the Family Consultant are recorded at paragraph 15 of her Report:
While she acknowledges that X is most attached to the maternal grandmother given the history of caregiving, she was critical of Ms Drummond's parenting approach and capacity. She spoke of her own difficult childhood living with her mother and stated that this was characterised by her mother's heavy drinking, abusive relationships and emotional abuse and neglect of both herself and her elder siblings. Ms Reilly reported that her mother was physically and mentally abusive to her elder children, Ms T and U, and has not maintained close relationships with either of them. She reported that home life with Ms Drummond was chaotic with she herself attending 11 different schools. The outcome of this disruption, Ms Reilly argued, was that all five of Ms Drummond's children have serious emotional and behavioural difficulties. She remains concerned that, should X remain in her mother's care, he would likely experience similar difficulties.
These concerns remained at the final hearing.
At paragraph 23, the Family Consultant summarises the Maternal Grandmother’s concerns about the Mother:-
Ms Drummond stated that she has concerns about how X would cope were he ordered to live with his mother and how Ms Reilly would coordinate caring for X with her other responsibilities. She reported that X has experienced disruptions to his time with his mother, which has created some anxiety for him. Like Ms Reilly, she reported that X exhibits anxiety at times, chewing his nails and suffering with psychosomatic complaints. She said that she has sought advice from a local paediatrician, Dr F, regarding these behaviours.
The Family Consultant records the Maternal Grandmother’s concerns about the multiple changes in the Mother’s life, the move to Queensland, her partner, Mr S, having been in and out of jail, and the struggle to meet the needs of three younger children in that context. The Maternal Grandmother acknowledged her own poor parenting decisions in the past, but pointed to the positive changes in her life and all that she had been able to offer X.
In her first Family Report, Ms O described X as a “much loved child” but who was part of “an extended family which has experienced significant and ongoing trauma, disadvantage and disruption”. His grandmother was his main attachment figure. The Mother’s circumstances had changed a lot in her life. The Mother was strongly committed to having X as part of her life. The complex dynamic at play is recorded at paragraph 44 as follows:
Ms Reilly conveys a sense of indignation that her mother, having done, in her mind, a poor job raising her, should care for X and that Ms Reilly should be denied the opportunity to care for her own son. There is also a sense that Ms Drummond taking on this caring role for X has created strain on her ability to be a parent to Ms Reilly and have a traditional grand-parenting role with Ms Reilly's other children. The changed family roles and relationships are complicated, especially as they are in addition to possible unresolved issues from Ms Reilly's own childhood experiences.
At paragraph 47, the Family Consultant records:
If X were to be moved from his current situation, the other alternative would need to be clearly beneficial and demonstrably preferable. At present he is in a situation where he is cared for, given attention, affection and stability. Ms Drummond appears to have facilitated X’s relationship with his mother and siblings and to have made it clear to him who Ms Reilly is and how important she is in his life. X is attached to his grandmother and she is the carer and the home base he has always known.
She goes on to observe that if X were to live with his mother he would be moving to a home with different dynamics and structure, compared to his home at the time. He would be competing to have his needs met with his three younger siblings, including V with his complex needs. It would be imposing significant stress on the Mother and her partner. Her concern was that a “move for X would potentially be destabilising for him and place additional responsibility and stress on the situation” (paragraph 48). The Family Consultant did observe at paragraph 49 that, probably around the time of adolescence when X would be exploring his identity, he would probably gravitate to, and seek out more involvement, with his mother. She thus foreshadowed that parenting arrangements at that time may well need to be different or would certainly change as a matter of fact.
On balance, however, she thought there were more benefits for X remaining with his grandmother, than transitioning into his mother’s care.
By the time of the final Report interviews which took place on 23 July 2015, the Family Consultant noted that both the Maternal Grandmother and Mother and her partner were living geographically proximate to each other in (omitted) Sydney. The child, V, had his special needs diagnosed as autism spectrum disorder. X continued to live with his maternal grandmother but spend regular time with his mother. X was attending the local public school and was in year 1.
The Mother continued to be critical about the Maternal Grandmother’s parenting. She expressed concern about both Z and Y and their mental health in the Maternal Grandmother’s care. She believed that the Maternal Grandmother was overly permissive in her parenting and was not rigorous enough in ensuring school attendance or attendance at counselling sessions.
In response to concerns about her own parenting capacity, particularly about the possibility of family violence and her relationship with Mr S, the Mother reported that they had engaged with support services and “now rarely argue” (paragraph 13). She did admit to previous difficulties and acknowledged Mr S’s past illicit drug use and aggressive behaviour. In relation to his alcohol consumption:
She reported that he now drinks alcohol only on weekends and has significantly reduced his use.
The Mother was concerned about what she perceived to be the Maternal Grandmother’s unreasonable limits and controls on X’s time with her.
The Maternal Grandmother was resistant to any change in the existing arrangements because X was so settled in her care, was doing well at school and engaged in extracurricular activities. She linked X’s bad behaviour to spending time with his mother. She acknowledged the challenges that she herself had faced in parenting Z and Y, and even accepted that her parenting approach was somewhat permissive.
In relation to Mr S, the Family Consultant records at paragraph 26:
Mr S stated that he has addressed his own difficulties, has not used crystal methamphetamine since 2011 and curbed his alcohol use. He said that he now consumes a carton of beer over a weekend, with perhaps 6-10 beers on a Saturday afternoon, saying that he no longer drinks to excess. He reported that he has distanced himself from negative associations and has completed a 13 week course on Men’s health, which he found helpful and chose to participate in on two further occasions. Mr S stated that his relationship with Ms Reilly is improved in that the couple rarely argue and that he now removes himself from situations of conflict.
The Family Consultant, of course, observed X interact with the members of his family around him. At paragraph 28-31 she records:
When asked to draw a picture of his family X drew himself with his grandmother, Y and Z. He explained that he feels close to his grandmother and to his mother and described the two women as friends. He appears aware that Ms Drummond does not like Mr S. He is aware that both his mother and grandmother want X to live with them. He said that his mother would take him to the zoo and dirt bike track were he to live with her. X stated that he enjoys playing with his siblings when he is at his mother’s home and that he plays with V the most. X explained that sometimes V can throw things and hit his siblings. X spoke fondly of spending time with his cousins when he is in his mother’s care.
X did not express any clear wish regarding where he would like to live. He stated that he would like some more time with his mother so that he could play with his brothers and sister, and with his cousins. X identified his siblings as an important part of his life.
X was observed to behave in an affectionate manner with his grandmother and, in the waiting room, was observed to sit on her lap. He also spent time playing with Y. In observation with his mother and members of her household, X appeared to gravitate around Mr S. He was somewhat independent and contained in his play and much quieter than his younger siblings who appeared to compete for the adults attention. Ms Reilly was encouraging of the children and she and Mr S were good humoured during the observation. X and W were loud and boisterous in the observation, repeatedly drawing their mother’s attention to their activity. V moved between the two play areas of his father and X, and his mother, X and W.
The pace of the observation between X, Ms Drummond, Y and Z was slow and relaxed. X drew his grandmother into play and led the activity, calling Z to join the activity as well. X was more talkative than in the observation with his mother and her household
The Maternal Grandmother’s child, Z, was interviewed. He is in the unique position of having lived with both the Maternal Grandmother (his mother) and the Mother (his sister). At paragraphs 34-37, the Family Consultant records:
Z (17 years and 4 months) presented as a quiet young person. He spoke of a close relationship with his mother and stated that he is also close to Ms Reilly, with whom he lived for a period last year. Z explained that, recently, he has had less involvement with X than in the past.
Z appeared to speak openly in his interview and it was apparent by some of his comments that he may feel torn between his mother and sister. Z explained that his mother parents X in a different way to how she may have parented himself and his elder siblings. He rejected the idea that his anxiety was caused or exacerbated by his mother, stating that other experiences had contributed to this.
Z reported that X appears to behave differently in the two households, in that he can be quite naughty with Ms Drummond but is well behaved and quieter in Ms Reilly’s home. Z suggested that Ms Drummond “babies” X and avoids disciplining him. He believes that X may prefer living with Ms Drummond as he is allowed more freedom in her care.
In interview, Z conveyed a belief that X should be raised with his younger siblings and live primarily with Ms Reilly. He described Ms Reilly as a good parent but expressed some concern about Mr S’s behaviour. Some of Z’s comments suggest that Mr S continues to drink alcohol to excess and have issues with anger. Such comments included that Mr S is always angry, yells, swears and “punches stuff”. Z explained that he left Ms Reilly’s home following conflict with Mr S (reportedly including Z being dragged on the ground by Mr S) and acknowledged that he would have some concerns about X being raised in an environment with exposure to Mr S’s anger/ aggression. He indicated that the children have been present when Mr S has lost his temper.
Y, the Maternal Grandmother’s other child, was also interviewed. She too had spent time in the Mother’s (that is, her sister’s) household. At paragraphs 39-40 the Family Consultant records:
Like Z, Y dismissed the idea that her mother had contributed to her anxiety and selective mutism. She explained that her emotional difficulties stemmed from her parents’ separation when she was younger. Y spoke of a close and supportive relationship with Ms Drummond.
Y expressed a view that X is happy and settled living with Ms Drummond. She reported that, in her view, the home environment is “definitely” more stable than at Ms Reilly’s. Y explained that the continuing dispute about where X will live has caused tensions in her own relationship with Ms Reilly. Y reported that she has spent time in Ms Reilly’s home and believes that Mr S continues to drink alcohol to excess and behave in an aggressive manner. She reported that she has felt uncomfortable/unsafe in the home and has observed that X is much quieter in that environment than he is usually. Y explained that she has also noticed a change in X’s behaviour when he returns from spending time in his mother’s care, in that he is more angry and aggressive. While Y reported that she is increasingly busy with her own interests, she spoke of spending time with X, playing the play-station or minding him if Ms Drummond takes Z for driving lessons. She shares Z’s view that Ms Drummond should discipline X more.
Ms O’s evaluation commences from paragraph 41 of her Report. She described the dispute between the Mother and the Maternal Grandmother as longstanding, and she described a sense in which the conflict over X would continue to be a feature of this family’s experience, regardless of where X lives. The Family Consultant acknowledged that, ideally, X would be raised by his mother and grow up with his siblings. The fact was that X had now lived most of his life with his grandmother, and she was his main attachment figure. At paragraph 44 the Family Consultant notes:
A difficulty in this matter is that Ms Drummond is unable to support X moving to live with his mother. Ms Drummond lacks confidence that Ms Reilly can care for X and she believes that such a move would not be in X’s best interests, especially in light of her concerns about Mr S. She argues that, if such a move were to occur, it should take place when X is at an age whereby it is something that he actively wants and requests. X is not assessed as having strong views and, at his age, is unable to take a longer term view of his situation. It does appear that he identifies Ms Drummond as the main support for him which is to be expected given his history of care.
There were both advantages and disadvantages of remaining in his grandmother’s care. He has settled there and has a close and affectionate relationship with his grandmother. However, it is possible that the Maternal Grandmother’s parenting style was permissive and possibly indulgent, which was potentially problematic for a primary carer, with issues manifesting as the child matured and entered adolescence. If X remained in his grandmother’s care, she would benefit from parenting courses that focused on developing confident and resilient children, as well as engaging in her own therapeutic counselling to assist her in these areas (paragraph 46):
One of the concerns with X remaining in Ms Drummond’s care is that her parenting style appears to be permissive and possibly indulgent. Such an approach as a grandparent may not be problematic, but as a primary carer may create issues in terms of boundaries and self management, which may manifest especially as children mature and enter adolescence. Ms Drummond appears a somewhat passive person and Ms Reilly argues that she fosters insecurity and dysfunction. The example of co-sleeping issues could possibly reflect an inability to set a routine which encourages independence and self-soothing, and fosters reliance on Ms Drummond as an external comfort. If X does remain in Ms Drummond’s care she could possibly benefit from undertaking a parenting course focused on developing confident and resilient children. She could also engage in therapeutic counselling to assist her in these areas.
The other obvious disadvantage of X remaining with his grandmother was that it separates him from his siblings.
The obvious advantage of X returning to live with his mother is that he is raised by her, along with siblings of similar age. She is committed. There would be continuity with his school. The Mother is already involved in X’s life and activities. The Mother is well-engaged with services. However, the disadvantage would be that such a move could be destabilising for X, and potentially expose him to the volatility in the Mother’s relationship with Mr S. The Family Consultant noted that this relationship has involved family violence in the past, and that comments by both Y and Z suggested that Mr S may continue to drink to excess and behave in an aggressive manner (paragraph 50). A move by X into his mother’s care involves negotiating a very different environmental for X, where he would have to compete with his siblings in terms of having needs met.
At paragraph 52 the Family Consultant states:
To warrant a significant change to X’s living arrangements, there would need to be confidence that the alternative was absolutely a better situation for him. At this stage, it is still not clear that that is the case. In Ms Drummond’s care X’s needs are being met. He appears healthy, connected and stimulated with activities. Ms Drummond does appear conscientious and devoted to X.
Ms O’s evaluation continues at paragraphs 53-56 as follows:
Ms Reilly has, over the years, clearly demonstrated a strong commitment to X. She has not given up on having X come into her fulltime care and it would be emotionally healing and positive for her to have this happen. If the Court were to move X into her care, it is suggested that there would need to be reassurance about the risk issues, especially exposure to family violence. Some further information from Brighter Futures may assist the court. It is acknowledged that possible exposure to family violence may be a concern whether X is living fulltime or continuing to spend regular time in Ms Reilly’s home. Family violence concerns may also be an issue for Ms Reilly’s other children.
There may be potential risks to X in both environments and both Ms Drummond and Ms Reilly have parenting strengths and weaknesses. This is a finely balanced matter. At this stage of X’s development, however, it is suggested that there may be more risk to X in a move to Ms Reilly’s care than X remaining with Ms Drummond.
While joint parental responsibility may be challenging (given the tension in the co-parenting relationship) it is still considered important that both women have input into decision making for X. In the area of religion, it is acknowledged that this may not be feasible given the women’s opposing views. Considering this, it may be preferable for X to not have any particular religious affiliation until he is much older and at an age where he can himself have input into this decision. It is acknowledged that Ms Drummond receives strong support from participating in the (religion omitted) meetings but it is suggested that X should not participate against his mother’s wishes.
It may be beneficial for X to have some extension of time with his mother and an arrangement whereby he spent alternate weekend time and a regular overnight, for example a Wednesday would allow him extra time with his siblings. A suggestion for an increase in time is dependent however on the court being reassured regarding any risk in the mother’s household.
As the Family Consultant herself recognised, this is a finely-balanced matter. Ultimately she recommended that X continue to live with his grandmother and spend substantial and significant time with his mother during the school term, as well as during school holidays.
The Family Consultant was extensively cross-examined. Before she gave her evidence, she had the advantage of having regard to documents that had been filed by the parties since the Family Report interviews. In addition, the cross-examination of Ms O took place after all of the witnesses had given their evidence (with the exception of the Maternal Grandmother, who had given almost all of her evidence).
Counsel for the Independent Children’s Lawyer cross-examined Ms O in relation to the Mother’s contention that the Maternal Grandmother’s dysfunctional parenting and background had contributed to the parenting difficulties experienced by her other children, Y and Z. The Family Consultant pointed out that both children had firmly rejected this proposition. In any event, whilst the children do experience mental health issues, mental health generally has multiple contributing factors which include genetic predisposition, as well as environmental factors. She was not able to say, therefore, that the Maternal Grandmother’s parenting was the cause, or the sole cause, of the anxieties experienced by both Y and Z.
She was cross-examined about the significance of X being separated from his siblings. The Family Consultant explained that, normally, this was a very important and protective relationship. However, on the facts of this case, X’s lived experience was apart from his siblings, and this mitigated the significance that might otherwise be placed on the sibling relationship. Even with the sibling relationship, she predicted that if X were placed back in the care of his mother, there would be a transition period as he adjusted to living with his siblings.
In terms of adjustment issues, should X transition back into his mother’s care, the Family Consultant believed that it would be beneficial for him for the transition to be implemented progressively.
Counsel for the Independent Children’s Lawyer asked about the Mother’s partner’s drinking habits. The evidence before the Court suggested that between 4:00pm on Friday and 7:30pm on Sunday he would drink a case of beer consisting of 24 stubbies. The Family Consultant explained that to the extent that this was intended to reassure the Court about his drinking, it failed to do so. The focus was not so much on the quantity (although significant) but on the fact that alcohol has been a problem in his life in the past, and yet he persists in drinking. In the past, even Mr S had conceded the link between drinking to excess and his aggressive behaviour. The Family Consultant appeared somewhat surprised by the level of continued consumption of alcohol.
Turning to the question of Mr S’s aggression in his relationship with the Mother, Counsel explained to the Family Consultant that the Mother’s evidence is that she is able to identify in her partner the signs of his aggression, and remove herself. One of the leading indicators was, for example, verbal abuse. The Family Consultant pointed out, however, that verbal abuse was still family violence and that, even if she recognised escalation in the behaviour, the Court would be concerned about the atmosphere in the home and the effect of verbal abuse not just on the Mother, but on the children. She pointed out that both Y and Z reported issues of aggression. The Family Consultant was concerned that the Mother might be minimising these issues. If she were so doing, it would reflect poorly on her capacity to act protectively so far as the children were concerned.
The Family Consultant acknowledged that previous failures in parenting was potentially an indicator of the future. The Maternal Grandmother’s dysfunctional relationship with her oldest son, U, and her daughter, T, was not promising. However, the evidence suggested that the Maternal Grandmother had changed significantly, that is, no longer drinking, not in an abusive relationship, undertaken parental education, and is surrounded by a good support system.
The concerns about parenting X as an adolescent were acknowledged by the Family Consultant. Indeed, the Family Consultant acknowledged that the Grandmother had struggled to parent both Y and Z in adolescence. She did make recommendations about education and counselling in this regard.
The Family Consultant was questioned about the issue of parental responsibility in a situation where the parties are so far apart on the question of X’s involvement in the Mother’s faith as a (religion omitted). The Family Consultant acknowledged that the religion issue was complicated. She favoured equal shared parental responsibility, as the alternative would minimise the other parent’s input. She urged the Mother and Maternal Grandmother to respect each other’s views in this regard.
Counsel for the Mother initially focused on the question of X’s attachment to his grandmother. She described features of a secure attachment. X was much more confident in approaching his grandmother and appeared to be able to rely on her and see her as someone who can reassure him, who is constantly there, and at a consistent intensity. X would not necessarily experience any sense of abandonment by his mother if he were raised by his grandmother.
She was asked questions about X experiencing anxiety issues, but the Family Consultant pointed out that X’s school records and childcare centre records did not support any contention that he was an anxious child.
The Family Consultant thought that there were alternatives to the proposals before the Court that was contraindicated. For example, shared care was contraindicated because of the nature of the relationship between the Mother and Maternal Grandmother. Even longer periods of X in his mother’s home would be contraindicated if the Court found there to be family violence there.
When cross-examined by Counsel for the Maternal Grandmother, the Family Consultant agreed that she would be quite concerned if the Court in fact found that the Mother was minimising the family violence in her household, or if it were found that the Mother had been untruthful in giving evidence before the Court. She was concerned about the level of Mr S’s consumption of alcohol on the weekends, and the issue of role-modelling for X. She was concerned if the Mother did not consider that level of alcohol consumption to be abuse of alcohol. She would be concerned if it were the case that the children in the Mother’s household were to witness, or experience, Mr S’s aggression towards her.
As it turns out, by the end of the evidence, the Independent Children’s Lawyer’s proposal was contrary to that of the Family Consultant. There was nothing exceptional about that, but it does need to be recorded that nothing that the Family Consultant said in cross-examination detracted from the conclusions and recommendations set out in her Report.
The evidence of the Applicant Mother
The evidence relied on by the Mother has been referred to above. She was extensively cross-examined by Counsel for the Maternal Grandmother and Counsel for the Independent Children’s Lawyer. The Mother tried her best to convey that her household was a stable, happy and functional one and that any problems that may have existed in the past have been satisfactorily dealt with. There are a number of aspects of the Mother’s evidence, however, that was unsatisfactory.
For example, whilst there was a veneer of civility in the communication between the Mother and Maternal Grandmother, in reality the Mother holds very negative feelings towards the Maternal Grandmother. As recently as November 2014, the Mother, in effect, wished that the Maternal Grandmother were dead. The Court formed the strong impression that matters from the past continue to dictate the Mother’s view of the Maternal Grandmother. There was intense hurt and an ongoing feeling of aggrievement, distrust and anger. That this is masked by a veneer of civility is of concern to the Court. One of the Maternal Grandmother’s concerns is that both she personally, and the role that she plays in parenting X, is both denigrated and undermined in the Mother’s household. As will be seen, the Mother’s partner shares the same negative feelings about the Maternal Grandmother as the Mother does.
There is every reason to be concerned about the matters the Maternal Grandmother raises. The Mother’s deeply held feelings about her own mother are also relevant to the parental responsibility issue. A thin veneer of civility is hardly a stable foundation for future communication. By contrast, the Maternal Grandmother’s evidence did not suggest that she harbours any anger or resentment towards the Mother. Her concerns seem to be genuinely based on the Mother’s capacity to parent X. Indeed, the Maternal Grandmother’s attitude towards the Mother seemed to reflect a profound sense of sorrow and disappointment at her own failings as a parent to the Mother.
The Mother minimised the issues that she was confronting in her life at the time that she gave X into the Maternal Grandmother’s care. She was struggling in her relationship with her partner. She had health issues including scoliosis, borderline personality disorder and severe anxiety. When she sought to recover X into her own care without the intervention of the Court, she was charged and convicted of break and enter. She seemed to minimise the significance of the incident in which V was injured, even though the Court readily accepts that this must have been an enormous emotional burden for her. She seemed to minimise the significant burden that V’s special needs places on her and her partner.
Of deep concern to the Court was what appeared to be her systematic minimisation of the nature and extent of her partner’s drinking problems in the past, as well as his current consumption of alcohol. She minimised what appears to have been the reality, and that is that when her partner consumed alcohol to excess, certainly in the past, it almost invariably led to family violence, even if it wasn’t physical violence. She agreed that he yelled at her, threw things about the house, etc. She accepted that the children were present in the house, but maintained they did not physically witness these events.
The risks in the Mother’s household are exacerbated by the Mother’s seeming failure to understand how these issues impact on her and the children, particularly in the context of a family that includes a special needs child, V, and in the context of a history where the Mother has not been able to prioritise X, perhaps in understandable circumstances.
The Court accepts, therefore, that there is a need to protect X from the risk of both physical or psychological harm in the Mother’s household as a result of being exposed to abuse, neglect or family violence. It is simply not possible to somehow say that this risk is equivalent to any similar risk in the Maternal Grandmother’s household. The evidence does not support that contention.
Any views expressed by X
To the extent that any party in this litigation has suggested that X has expressed a view that is somehow relevant to the Court’s determination of this case, the Court rejects the same. The only independent evidence comes from the Family Consultant, who indicated in her Report that X wanted to spend more time with his mother. This is not consistent with any contention that he wants to live with his mother. X’s views are not, in any event, determinative in this matter.
X’s relationships
There is no question that X has a strong relationship with both his mother and grandmother. The Family Consultant assessed his relationship with his grandmother to be stronger than that of his mother. Notwithstanding this, there are strong bonds all around. It is possible that X’s relationship with his grandmother could be described as a dependent one. Even if that were the case, there is no evidence before the Court to suggest that it is somehow an unhealthy relationship.
In his grandmother’s home, X enjoys the almost exclusive care and attention of his grandmother. The Family Consultant acknowledged that to transition to his mother’s home, he would have to compete for attention and care with the other children, especially in circumstances where V is particularly needy and the Mother struggles with issues in her relationship with her partner. It would otherwise seem that V’s relationships with the other adults in his life, and indeed the other children, are all satisfactory.
Participating in decision-making
Despite the dysfunctional nature of the relationship between the Maternal Grandmother and the Mother, somehow the thin veneer of civility that exists between them has minimised the opportunities for there to be problems in relation to decision-making. Each criticises the other for not involving or consulting the other. The fact is that X has been in his grandmother’s primary care for most of his life. The Mother chose to absent herself from X’s life for 15 months when she and her family moved to Queensland. This consideration is not a determinative one in this case.
Fulfilling obligations to maintain
This is not an issue in this case.
The likely effect of changes in the child’s circumstances
By far the greatest change in X’s life would come about if the Court made the Orders proposed by the Mother. If there were benefit in making such a change then, of course, the Court would consider it. On an objective view of the evidence, however, an analysis of what is in the best interests of X overall suggests that change is contraindicated. This is what the Family Consultant suggested at paragraph 52 of her second Report. The Court does not accept the Counsel for the Independent Children’s Lawyer’s submission to the effect that the Family Consultant acted on the false premise that there was an onus of proof on the Mother before a change could be made to X’s living arrangements.
Whilst it is unquestionably correct there is no onus of proof on either party, all that the Family Consultant is pointing out at paragraph 52 is that, before the Court would make a change, it needs to consider the likely effect of any changes in X’s circumstances, including the effect of separating him from his grandmother. If to do so, the Family Consultant suggests, is better for him, then of course the Court should consider it. The Family Consultant points out at paragraph 52 that in his grandmother’s care, X’s needs are being met.
The evidence questions his mother’s capacity to meet his needs. The evidence suggests that there would be risks in his mother’s household that are not present in his grandmother’s household. When the evidence is viewed objectively, there is no benefit to X in making the very significant change to his circumstance that is inherent in the Mother’s proposal. It must be remembered he is a vulnerable, anxious child. Why would the Court make unnecessary changes in his life?
Issues of practical difficulty and expense
There are no such issues in this case.
Issues of parental capacity to meet the needs of the child
This is a case where the lives of all of the principal actors (Grandmother, Mother, her partner, the Grandmother’s children and the Mother’s children) are all lived out in the shadow of historical dysfunction. It is clear that the parenting capacity of both the Maternal Grandmother and the Mother has been compromised by their own life experiences.
What is impressive is the way in which so many of them have sought to improve their lives. There is evidence of this as regards the Maternal Grandmother, the Mother and her partner. They are different to the people they were, for example, five years ago. The Maternal Grandmother is seeking to parent X in a way different to the way she parented her other children. Her other children still hurt from their mother’s parenting of them. Each has moved on. The shadow of their past, however, is cast over their future. There are risks all around. At a basic level both the Mother and Maternal Grandmother can meet X’s physical needs. The Maternal Grandmother can do so without the (appropriate) distraction of other children in her care. The Mother has other commitments. Either way, the Court is satisfied that X’s physical needs will be met.
In the context of a dysfunctional family matrix, they can both provide for X’s emotional needs, but both the Maternal Grandmother and Mother are limited in this regard because of their own dysfunctional past. The concerns that each brings to the table, so to speak, are bona fide. The Mother cannot see how the Maternal Grandmother’s parenting of X (in this regard, the meeting of his emotional needs) can be any better than her own experience as a child where, from her perspective, her mother (the Maternal Grandmother) failed to meet her emotional needs.
She cannot contemplate that her mother (the Maternal Grandmother) has changed. In many respects, the Maternal Grandmother feels much the same – she cannot consider the possibility that the dysfunction and chaos that existed in the Mother’s life and household when X first came into her care many years ago has indeed changed. The reality is that there has been change on both fronts, but the past often hinders one’s ability to meet the emotional needs of a dependent child.
In a case where there is no ideal outcome and where there are parenting deficits in both camps, the Court believes that, on balance, the Maternal Grandmother’s ability to meet X’s emotional needs has been tried and tested by experience, is a known quantity, compared to the Mother’s which is unknown. At a critical time in X’s life, in fact at two critical times in his life, his Mother demonstrated a singular inability to meet his needs, that is, when first she allowed X to go into his grandmother’s care, and secondly when she moved to Queensland.
The strong inference to be drawn at the time is that she did not doubt her mother’s (the Maternal Grandmother’s) capacity to meet all of X’s needs at the time. It is hard to see what has changed. Some of the clouds that existed over her own parenting capacity have dissipated with the effluxion of time, but they still exist.
Parental attitudes
It is possible to be critical of both the Mother and the Maternal Grandmother about the attitudes that they hold towards each other. At the very least, it is clear that the Maternal Grandmother does not have the same feelings of resentment towards the Mother as the Mother towards her. There is no question as to the Maternal Grandmother’s capacity to encourage X’s relationship with his mother, but there is a question about the reverse situation. Both the Mother and her partner harbour deep-seated anger and resentment about the Maternal Grandmother.
It must be hard to forgive, let alone forget, past traumatic events and experiences. However, the needs of children need to be prioritised. The Maternal Grandmother is deeply remorseful about the past, and wants to do better at parenting X than she did at parenting her daughter, the Mother in this case. By contrast, the Mother harbours anger about her past experiences and about the Maternal Grandmother’s intrusion in her life. But this ignores the reality that at a critical time in X’s life when the Mother was not there for him, the Maternal Grandmother was.
Whilst the Mother has matured in so many respects from the parent she was at the time that X went into the Maternal Grandmother’s care, there is scope for more maturity to come in the future. At times, the Mother’s evidence suggests that she prioritises her needs in her relationship with Mr S, than of her children’s needs, including that of X. There is irony in the Mother’s criticism of the Maternal Grandmother in failing to protect her as a child; there are aspects of the Mother’s own relationship where the same might be being played out.
Family violence
This has been discussed elsewhere in the reasons. There has been family violence in the Mother’s household in the past. Bearing in mind the wide definition of family violence contained in the Act (s.4AB), there is reason to believe that violence continues, albeit not of the physical kind. No such issues exist in the Maternal Grandmother’s home.
Order that is least likely to lead to the institution of further proceedings
The Court cannot rule out the possibility of further proceedings in relation to X. As he enters adolescence there is the risk, acknowledged by the Family Consultant, that any combination of factors, including the Maternal Grandmother’s permissive parenting style, may well result in X deciding for himself where he is going to live. That is a reality that cannot be somehow regulated by Court order. One suspects that all parties to this litigation were aware of this.
Indeed, one argument advanced on behalf of the Mother, supported by the Independent Children’s Lawyer as least tacitly, is that the risk to X is accentuated on his attaining adolescence, in the same way as the Maternal Grandmother’s past issues with her children seemed to crystallise at their adolescence. Even if that were the case, and even if it were the case that the Grandmother simply could not change enough to avoid that happening as regards her grandson, even that would not be grounds for putting X in his mother’s care at age 7. For the reasons previously set out above, it is still in X’s best interests that he continues to live with his grandmother.
Parental responsibility
The Maternal Grandmother proposed sole parental responsibility. The Mother proposed sole parental responsibility in relation to matters of religion and medical procedures, then otherwise equal shared parental responsibility. The Independent Children’s Lawyer proposed equal shared parental responsibility, but a formal notation to the effect that both the Maternal Grandmother and Mother agree that the issue of whether X should have a blood transfusion is a decision to be taken solely by the Mother. The Family Consultant proposed joint parental responsibility, noting that it might be challenging having regard to the tension in the relationship between the Mother and the Maternal Grandmother.
The Court concludes that it is in the best interests of X that both his mother and grandmother have equal shared parental responsibility but that any decision about a blood transfusion is a decision to be taken solely by the Mother. The Maternal Grandmother conceded this issue in her evidence. The Court is satisfied that this can be dealt with by way of notation to the Orders. Whilst the Court is concerned about aspects of the Mother’s parenting and of risks in her household, the Court does not believe that the statutory presumption has been rebutted or negated.
There is acknowledged tension in the relationship between X’s mother and grandmother, but not, the Court believes, sufficient to impede the making of necessary decisions in relation to him. For example, if sole parental responsibility to the Maternal Grandmother were ordered it would mean that the Mother would have no input into X’s religious upbringing as a (religion omitted), a matter that is of significant concern to her. An order for equal shared parental responsibility is considered appropriate and in X’s best interests.
The Court is required to consider equal time or substantial and significant time. Neither party proposed equal time and it is, in any event, neither in X’s best interests nor reasonably practicable, having regard to the evidence before the Court.
The “spends time with” Orders proposed by the Maternal Grandmother, Mother, and Independent Children’s Lawyer, all amount to substantial and significant time. Implicit in these proposals is the recognition, which the Court accepts, that such is both reasonably practicable and in the best interests of X.
The Order in X’s best interests
The Independent Children’s Lawyer proposed that X live with his mother. The Mother likewise proposed that. For reasons set out above, the Court does not accept that this is in X’s best interests.
The Maternal Grandmother proposed that X spend time with his mother each alternate week from after school on Friday until the commencement of school on Monday, and each alternate Monday overnight to Tuesday. In effect, she also proposed equal time during school holidays and on special days.
The evidence is, however, that X wants to spend more time with his mother. There is, therefore, an arguable case for X to spend another night per fortnight with his mother by, for example, extending the alternate weekend time to Tuesday mornings, instead of Monday mornings. It is hard to argue against that on the evidence before the Court. He could certainly cope with this change. Despite the concerns about the Mother’s household, both X and she should be able to adjust to extra time. That, therefore, appears to be in X’s best interests.
The Maternal Grandmother proposed specific Orders in relation to Mr S, the Mother’s partner. She proposed that he not be present at changeovers. Given the obvious tensions between them, and the need to protect X from unfortunate manifestations of this, the restriction proposed is in his best interests. The Maternal Grandmother also proposed an order that X not be left alone with Mr S. The evidence does not justify this restriction. Whilst Mr S’s role in the Mother’s relationship may well affect her ability to effectively parent X, no independent risk of harm to X has been established emanating from Mr S.
The Maternal Grandmother proposed a number of other specific Orders, e.g. that X at all times reside within the city of Sydney. Quite apart from uncertainty as to meaning, no evidence justifies such a restriction. She proposed also that X not be brought into contact with Ms W and Ms C. No submission was made about this, and the Court could find no evidence to justify the making of such an order.
The remaining Orders proposed by the Maternal Grandmother in her Minute proposed on day 3 of the hearing appear appropriate. Indeed, most seem to reflect existing arrangements for X.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 21 December 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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