Rice and Robb (No.2)
[2007] FMCAfam 1045
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICE & ROBB (No.2) | [2007] FMCAfam 1045 |
| FAMILY LAW – Children aged 9, 6 & 4 – children’s father deceased – application by children’s paternal grandmother for children to live with her – application opposed by children’s mother who seeks orders that the children live with her – high level of conflict between parties – order in favour of a non-parent – application of presumption of equal shared parental responsibility – best interests and considerations of reasonable practicality – mother lives in Adelaide – grandmother lives in P – children resident with grandmother since father’s death – considerations of stability in arrangements for ongoing care of children – weighing of need for children to have meaningful relationship with both parties against need to safeguard them from neglect – weight to be given to views expressed to independent expert by oldest child. |
| Family Law Act 1975 (Cth) ss.60CA; 60CC; 61D; 61DA; 64B; 65DAA; 65DAE; 68L; 68LA Evidence Act 1995 (Cth) s.140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 B and R and the Separate Representative (1995) FLC 92-636 |
| Applicant: | MS RICE |
| Respondent: | MS ROBB |
| File number: | ADC1649 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 8 & 9 October 2007 & 2 November 2007 |
| Date of last submission: | 28 November 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Vicki Lehman & Associates |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Women’s Legal Service Incorporated |
| Counsel for the Independent Children’s Lawyer: | Ms Du Barry |
| Solicitors for the Independent Children’s Lawyer: | Richard J Croft |
ORDERS
The paternal grandmother and the mother share equally the parental responsibility for the children M born in December 1998, L born in December 2000 and T born in March 2003.
The children live with the paternal grandmother.
The children spend time with the mother as follows:
(a)each alternate weekend during school term time from 5:30pm Friday until 5:30pm Sunday extending to 5:30pm Monday in the event that Monday is a public holiday PROVIDED THAT:
(i)in the event that Mother’s Day falls on a weekend during which the children would not be spending time with the mother pursuant to paragraph 3(a) herein then the children spend time with the mother on the Mother’s Day weekend instead of the following weekend;
(ii)in the event that Father’s Day falls on a weekend during which the children would be spending time with the mother pursuant to paragraph 3(a) herein then instead of the Father’s Day weekend the children spend time with the mother on weekend following the Father’s Day weekend;
(iii)in the event that the paternal grandmother’s Church Camp falls on a weekend during which the children would be spending time with the mother pursuant to paragraph 2(a) herein then instead of the Church Camp weekend the children spend time with the mother on the weekend following the Church Camp weekend AND the paternal grandmother do give the mother at least 28 days notice of the date of the Church Camp weekend;
(b)during the June/July and September/October school holidays from 10:00am on the first Monday after the conclusion of the school term until 10:00am on the last Thursday before the commencement of school term;
(c)during the April school holidays from 10:00am on the first Monday after the conclusion of the school term until 10:00am on the last Thursday before the commencement of school term PROVIDED THAT the children spend 6 hours with the paternal grandmother on Easter Sunday, at times to be agreed, in the event that the paternal grandmother is in the vicinity of the mother’s residence;
(d)during the December/January school holidays from 10:00am on the first Sunday in January after New Years Day, or in the event New Years Day falls on a Sunday then from the second Sunday in January, until 10:00am on the last Thursday before the commencement of the school year (noting that the paternal grandmother’s workplace closes for Christmas Holidays each year for two weeks in the last week of December and the first week of January);
(e)each Christmas from 4:00pm on 25th December until 4:00pm 26th December.
(f)such further or other times as the parties may agree from time to time.
The children communicate with the mother by telephone each Tuesday and Thursday at 6:00pm and on each of the children’s birthdays and the mother’s birthday each year, PROVIDED THAT in the event the children are in the mother’s care on the children’s birthdays or the paternal grandmother’s birthday each year then the paternal grandmother be at liberty to telephone the children on these days, with the paternal grandmother to make the necessary call to the mother’s landline telephone number.
The mother travel to P for the purpose of spending time with the children pursuant to paragraphs 3(a) and 3(e) of these orders and bear the costs of such travel, with handover to occur at the home of the paternal grandmother.
The paternal grandmother deliver the children to the mother in Adelaide at the commencement of the mother’s time and collect the children from the mother in Adelaide at the conclusion of the mother’s time pursuant to paragraphs 3(b), 3(c) and 3(d) of these orders and bear the costs of such travel, with handover to occur at the mother’s residence in Adelaide.
In the event the mother is in P on the occasion of any handover during school holidays as set out in paragraphs 3(b), 3(c) or 3(d) herein then the mother is to collect the children from and return the children to the P Police Station.
The mother and the paternal grandmother are to forthwith notify the other in the event that the children require medical attention, and the parties shall advise each other of the names of any treating medical practitioners, and their location, and each party shall be at liberty to contact the children’s treating doctors, from time to time, to receive information about the children’s health.
The mother be at liberty to make arrangements with the children’s kindergarten and school to receive copies of the children’s school reports, newsletters and school photographs, at the mother’s expense.
The paternal grandmother forward to the mother copies of any reports or assessments relating to the children’s general health, welfare or education, and the mother be at liberty to contact any agency, professional or government department engaged in providing assessments, reports or treatments to any of the children.
The mother and the paternal grandmother are restrained and an injunction is granted restraining each of them from denigrating the other or permitting any other person so to do in the presence of or in the hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Rice & Robb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1649 of 2007
| MS RICE |
Applicant
And
| MS ROBB |
Respondent
REASONS FOR JUDGMENT
Introduction
M, L and T Rice are now aged 8, 6 and 4 years respectively. They lost their father, Mr Rice, in tragic circumstances, in January of this year. Mr Rice took his own life. These proceedings are about future arrangements for the care of these three children.
Since Mr Rice’s death, the children have lived with their paternal grandmother, Ms Rice at her home in P. P is about 240 kilometres north of Adelaide. This situation came about as a result of a decision I made on 27 April 2007.[1] The decision was controversial so far as the parties were concerned and remains so.
[1] See Rice & Robb [2007] FMCAfam 265
Ms Rice wishes the children to continue living with her in P. The children’s mother, Ms Robb wants the children to live with her in Adelaide. Neither Ms Rice nor Ms Robb is well off financially. Whatever is the outcome, it will be difficult for the children to travel backwards and forwards between P and Adelaide. Everyone concerned in the case agrees that it is important for M, L and T to stay in touch with both the paternal and maternal sides of their family.
The circumstances surrounding Mr Rice's death are painful and recent for both Ms Rice and Ms Robb. The pain for both of them will probably never fully go away. As a result of Mr Rice's death, a chasm has opened up between these two relatives who are the closest to the children and who should so be the most involved in their care.
The two women neither like nor trust one another. Again this situation is unlikely to change in the foreseeable future. The children will have to negotiate the rift between the two halves of their family. The difficulties are compounded by the distance between P and Adelaide and the resulting financial and practical concerns.
Ms Rice believes that Ms Robb is a poor and neglectful parent, who has serious problems relating to drug and alcohol use and gambling. As a result, Ms Rice asserts that Ms Robb has difficulty managing money and cannot provide properly for the children.
Prior to Mr Rice's death, it is agreed between the parties that the children lived with their parents in various locations in Queensland and rural South Australia. At times the late Mr Rice and Ms Robb shared accommodation with Ms Rice, particularly in Hxxx and more recently in P.
It is Ms Rice’s position that she provided a “safety net” for the children, assisting their parents financially and stepping in to care for the children regularly. As a result, she says she has both a close relationship with M, L and T and first hand knowledge of Ms Robb’s parenting skills.
Ms Robb denies that she is a poor parent. Rather it is her position that she has been the children’s primary carer for the vast majority of their lives and has successfully raised them without a great deal of assistance from Ms Rice. She also alleges that Ms Rice has her own issues to do with drug use and her health, which preclude her from being primarily responsible for caring for children of the ages of M, L and T.
However, Ms Robb’s objections to the continuation of the current arrangements are more fundamental. She believes that Ms Rice wishes to undermine her relationship with each of the children to satisfy her (Ms Rice’s) own emotional needs arising from the death of her son.
Because of the serious allegations each party makes regarding the failings of the other to care for the children properly, it has been ordered that M, L and T’s interests should be represented separately from those of their mother and grandmother. The children’s independent lawyer is Mr Croft. [2] Mr Croft has briefed a barrister, Ms DuBarry to represent the children’s interests.
[2] See Family Law Act at section 68L
The law requires Mr Croft and Ms DuBarry to formulate a position, based on the evidence available to them, which they think will be in the children’s best interests.[3] In order to assist him to reach a view about the best outcome for the children in the case, Mr Croft commissioned Mr M, an experienced social worker, to visit P and speak with both Ms Rice and Ms Robb and more importantly observe each of them with the children and then report back to him.
[3] See Family Law Act at section 68LA
Mr M interviewed the parties in early September. He also spoke with the two older children about their preferred outcome in the case. M was clear about what she wanted. She told Mr M she wanted to continue living with her grandmother because Ms Rice “makes us good food, we have good clothes, we have lots of toys, we live in a nice house and she looks after us good”.[4]
[4] See Family Report dated 26 September 2007 at page 9
L was more ambivalent about her preferences, initially telling
Mr M that she wanted to stay where she was and then apparently changing her mind after she had spend some time with her mother. T was not asked about the issue because of his tender years.
Mr M did not form a favourable impression of the past parenting of M, L and T by the late Mr Rice and Ms Robb, believing their life together was “chaotic and muddled” resulting in the children having little stability in their lives. Given the recent trauma occasioned to the children by their father’s death, Mr M believes that currently their greatest need is to lead settled and stable lives and for them to have a sense of continuity in their care. Accordingly he was not in favour of their being a change in their care arrangements at the present time.
No doubt Mr M’s report was influential in shaping Mr Croft and Ms DuBarry’s position. In her submissions, Ms DuBarry advocates that the children should continue to live with their grandmother and spend regular periods of time with their mother during school holidays and on weekends.
M, L and T are heirs to a rich cultural tradition on both sides of their family. Ms Robb has an Aboriginal background. She has connections with the Aboriginal people of Central Australia and South Australia. Ms Rice is a descendant of the Pacific Islanders, particularly from Vanuatu, who were brought to Australia as indentured labourers in the late nineteenth and early twentieth century. She also has familial connections to Aboriginal people in Queensland and the Torres Strait.
These proceedings are directed to resolving this complex dispute between the parties. In deciding what is the right outcome in the case, I must remember that the best interests of M, L and T are the paramount or most important consideration. [5]
[5] See Family Law Act at section 60CA
I must balance the entitlement of the children to have a meaningful with their mother with the need, if necessary, to protect them from any harm which may arise to them if they are subject to neglect.[6] The court must decide which of the parties’ competing proposals, including those of the independent children’s lawyer, is most likely to advance the best interests of the child concerned.
[6] See Family Law Act at section 60CC(2)
The Issues
Having provided this introduction, it is useful for me to set out the issues which I must determine, before turning to the evidence and applicable legal principles in more detail.
·Should the parties have equal shared parental responsibility for M, L and T [Family Law Act section 61DA]? This will involve an investigation of the nature of their relationship with one another and their ability to communicate and cooperate together.
·What was the nature of Ms Robb and the late Mr Rice's parenting of M, L and T? Was it chaotic and unstable? Were the children neglected as a result [Family Law Act section 60CC(2)(b)]?
·Will it be detrimental to the children if they do not live with their mother? Particularly will it result in the children not having a sufficiently meaningful relationship with her [Family Law Act section 60CC(2)(a)]?
·What was Ms Rice’s role in caring for the children prior to the later Mr Rice's death? Was she some form of safety net for the children?
·Did Ms Robb have problems with alcohol and drug use and gambling? If so, are these problems likely to be resolved now and remains resolved?
·What was Ms Rice’s past use of cannabis? What is her current use, if any? Was she complicit in the past in the commercial growing of cannabis and the trafficking of amphetamines?
·Does Mr Rice’s age (she is 51) and her health preclude her from caring for children of the ages of M, L and T?
·What are the children’s views, particularly M’s, about future arrangements for their care? What is shaping those views? Is M old enough and insightful enough to be able to express a clear wish about what she wants [Family Law Act section 60CC(3)(a)]?
·What is the nature of the relationships between the children and each of the parties? Is the relationship the children have with the mother a more tender and intimate one because she was more involved in their care in their formative years as their primary carer [Family Law Act section 60CC(3)(b)]?
·Given the tensions between the parties, who of them is likely to be more capable of supporting the relationships between the children and the other, particularly given the geographical, financial and logistical difficulties which prevail [Family Law Act section 60CC(3)(c) & (e)]?
·What will be the consequences for the children if there is change in the arrangements for their care at this stage? Are the children settled in P [Family Law Act section 60CC(3)(d)]?
·Who of the parties is better placed to provide for the children’s emotional and intellectual needs [Family Law Act section 60CC(3)(f)]? In particular, does Ms Robb wish the children to return to her care to satisfy her own emotional needs and as such is there a risk the children may become her emotional care-takers, as Mr M fears? On the other hand, does Ms Rice wish the children to remain with her to punish Ms Robb for her son’s death?
·What is the relevance of the children’s Aboriginal and Torres Strait Islander heritage? Who of the parties is better placed to foster the children’s sense of identity [Family Law Act section 60CC(3)(h)]?
·Are there reasonable grounds for the court to conclude that the mother has a poor level of insight into the responsibilities of being a parent because of the state of M and T’s infant teeth [Family Law Act section 60CC(3)(i)]? Is there any evidence to support the grandmother’s assertion that the diet provided by Ms Robb to the children was inadequate and her home environment at times unsanitary?
·Finally and most importantly, what is the best outcome for the children and the one most calculated not to lead to the institution of further proceedings [Family Law Act section 60CC(3)(l)]?
The Evidence
The parties each gave evidence[7] and each was extensively cross-examined. Ms DuBarry was very active in the proceedings. The only other witness who gave evidence was Mr M.[8] Again he was extensively cross-examined by counsel for each of the parties and by Ms DuBarry.
[7] The grandmother relies on her affidavit filed on 25 September 2007. The mother on her three affidavits filed on 2 & 5 October and 2 November 2007.
[8] Mr M’s family assessment dated 26 September 2007 was annexed to his affidavit filed on 2 October 2007.
Mr M is a social worker and mediator by profession. In 1990 he began working at the Family Court at Adelaide as a child and family counsellor. He held this position until 2001. In 2001, he commenced his own practice as a child and family mediator. A large component of his work in both positions was the preparation of family assessments.
Accordingly Mr M has many years experience in assessing the relationships between children and their parents and other carers in the context of court centred disputes. As such, he is able to assess the views of children and pass comment on the factors likely to be at play in shaping such views.
Mr M had a fundamental advantage over me in this case. He was able to see and hear the children in their home setting. He visited Ms Rice in her home at P. Obviously this was a comfortable and natural environment for the children and one likely to be conducive to Mr M being able to form an accurate assessment of the level of care being provided to the children and their current state of emotional well being.
Mr M’s visit to P coincided with one of Ms Robb’s periodic visits to the town to spend time with M, L and T. Mr M spent time with the children and their mother in a park in P. I accept that this was not the optimal setting for him to observe the children with their mother but it was adequate. Certainly I do not think I should disregard Mr M’s view because he was not able to see the children with their mother in her own domestic setting.
Accordingly Mr M was able to see the parties interacting with the children and form impressions of the nature of her relationship with them in a first-hand setting. As such, Mr M is likely to be the most reliable conduit of the older children’s views, particularly M [Family Law Act s.60CD(2)].
Mr M seemed to me to be a sensible and avuncular person, who was likely to have an easy rapport with children. I found Mr M’s report to be thorough and well considered. He was not shaken in his opinion in the face of cross-examination. Overall, I accept his evidence and recommendations.
In the course of his professional career Mr M has observed countless children, no doubt from all manner of homes and social backgrounds. In his report in this case, Mr M described some of T’s teeth as being completely rotten stumps. He was obviously shocked at the appearance of the teeth and regarded the dental damage as the most severe he had ever seen.
Ms Robb acknowledged that prior to developing her adult teeth, M too had similarly damaged infant teeth, which in each case she attributed to the children drinking milo from bottles which she had given them.
The state of T’s teeth, following a similar experience with her teeth by M, was categorised by Mr M as being atrocious parenting on Ms Robb’s part and prima facie proof of the children’s neglect by their parents.[9] Mr M conceded that he had no specific expertise in dentistry himself and was not qualified to express an opinion whether the level of decay was likely to cause T a significant level of pain and more importantly what had caused the decay and how it could have been prevented.
[9] See Family Report at page 17
Ms Robb was concerned that Mr M had responded emotionally to the disturbing sight of T’s teeth and this had caused him to loose objectivity about her level of parental competency and to be biased against her. Unfortunately Mr M’s report was released to the parties only shortly before the time scheduled for the final hearing. Up to that stage neither party had raised specific concerns regarding the dental hygiene of the children although it was the tenor of Ms Rice’s case that Ms Robb had subjected the children to a significant degree of neglect.
In these circumstances, Ms Robb wished to call expert evidence from a paediatric dentist to refute any suggestion that the decay caused to M and T’s teeth was evidence of specific neglect on her part. This evidence was not able to be gathered prior to the conclusion of the hearing on 2 November 2007.
Ms Robb is critical of Ms Rice for not being cooperative with the process of obtaining the necessary referral from the children’s general medical practitioner in P to allow the necessary examination to take place at the Paediatric Dental Unit of the Wxxx Hospital in Adelaide.
I do not accept that Ms Rice actively conspired to prevent the production of the report in question. However, regardless of that finding, the fact remains the report is not to hand and I have no way of knowing the specific cause of either M or T’s dental decay, specifically whether the children have a natural predisposition to such decay or whether it is truly caused by parental neglect or disregard.
Should this cause me to be cautious about Mr M’s report and conclusions? I do not think so. I think Mr M was entitled to comment on the state of T’s teeth in the context of his assessment of this family. I accept that the presence of excessive dental decay in children is prima facie evidence of some degree of parental neglect. Teeth decay because of an inattention to dental hygiene, which children are unable to provide for themselves alone. I do not think that this should be a topic which can only be canvassed by dental experts.
In any event, Mr M deposed that the state of T’s teeth was not instrumental in him providing the recommendations for the court which he did. Rather he was opposed to their being a further change in the care arrangements for the children at this stage because he believed that the children’s greatest need was for stability and predictability, which Ms Rice had provided and was able to continue to provide. Accordingly, I do not believe that Mr M lost objectivity in the provision of his report or was unduly swayed by what he observed of T’s teeth.
For obvious reasons, given their subject matter, the proceedings in this case were difficult and emotionally fraught for all concerned, myself included. At the outset, I wish to point out that I have no doubt that both of the parties love M, L and T very much indeed and each wants the best for them now and for the rest of their lives.
Certainly, although I have no doubt that Ms Rice is personally not well disposed towards Ms Robb for many complicated and emotional reasons, I do not believe that she is pursuing her application in regards to the children out of spite for Ms Robb or to punish her. Rather she believes she has more to offer the children than Ms Robb, particularly in the stability of her home. In my assessment she has reached this conclusion with a high degree of sadness. I do not believe that she is possessive of the children nor that she has a desire to prevent the children having a proper relationship with their mother in future.
However the extreme emotions unlocked by Mr Rice's death colour this complicated case. Ms Rice holds Ms Robb responsible – at least in part – for Mr Rice's death. She also blames herself. Ms Rice is a Christian woman. However, at this stage of her life she is not able “to walk the extra mile” so far as Ms Robb is concerned. At best the future relationship between the two women will be workmanlike rather than warm.
Ordinarily, a court such as this one, should refrain from making adverse comments about a parent or a party to proceedings, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful but gratuitous findings of fact.
It is becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years in a family, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the person the parties to them hold most dear – their children or grandchildren – blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness, so this adjudication can occur.
The evidence canvassed in this case covers a period of around ten years – from 1997 when Ms Robb began her relationship with Mr Rice in Cxxx, far north South Australia until now. In respect of this lengthy period both parties make many stinging criticisms of the other. However neither is in a position to call any independent evidence to support her respective allegations about the failings of the other, either as a person or a parent.
In particular Ms Robb points to the fact that Child Protection Authorities in both South Australia and Queensland have never been actively involved in the children when they have been in her care, which has been for the majority of their lives to date. By implication, she argues that this suggests her parenting is not as incompetent as Ms Rice portrays it.
I am not persuaded that the absence of the Child Protection Authorities from Ms Robb and Mr Rice's previous care of the children is necessarily evidence from which I can conclude that their parenting of the children has always been appropriate. To my mind this would be a simplistic analysis. The facilities of Child Protection Agencies in Australia are frequently stretched and for that reason not all cases of child neglect or abuse come to formal notice.
In my assessment the person best placed to assess what was going on in respect of Mr Rice and Ms Robb’s parenting of M, L and T was Ms Rice. Mr Rice, Ms Robb and the children lived with her both in Queensland and South Australia. Throughout the ten year period,
Ms Rice remained an interested grandmother who was always prepared to provide financial assistance to Mr Rice and Ms Robb whenever assistance was requested.
True it is that Ms Rice, prior to her son’s death, never sought to become involved formally in providing for the children’s care because of any concerns that she had or which she was prepared to raise with the Authorities. Again however, I do not think that this can be said to amount to a tacit approval by her of Mr Rice and Ms Robb’s parenting of the children. In addition, I suspect that she turned a blind and indulgent eye to her son’s failings from time to time. At this stage, she is likely to find it difficult to confront his past difficulties as a parent.
Rather, in my view, Ms Rice saw her role as providing a safety net for the children when required, which she did, very often at the request of the children’s parents. Ms Robb acknowledges that Ms Rice provided her and Mr Rice with financial assistance and accommodation from time to time. Accordingly, I do not think that Ms Rice can be categorised as a hyper-critical or meddling grandmother, who is incapable of providing a balanced view about the past parenting of the children, although her objectivity so far as Mr Rice's behaviour is concerned may be open to question.
Ms Rice presented in the witness box as a quiet and dignified person. I do not question her truthfulness or motives in this case. In particular she seemed to me to be honest about her own prior drug use. She admitted regular use of cannabis whilst the parties lived together in Hxxx but deposed that she stopped smoking the drug in 1999 after she suffered heart troubles. She admitted starting smoking again in 2006, when Mr Rice and Ms Robb began to live with her in P. She attributes her relapse to the emotional stress occasioned by the tension between her and Ms Robb. I accept this is so. The two women have never seen eye to eye, particularly in regards to the care of the children. I also accept that she has once again stopped using cannabis. In my assessment she is unlikely ever to use drugs again.
It is difficult for me to assess the allegations raised by Ms Robb regarding Ms Rice’s state of health. Ms Rice acknowledged that she had suffered angina in the past and has had stents inserted in her heart as a result. This operation took place in Brisbane in 2000. Ms Rice’s health problems have resulted in her qualifying for the disability pension.
However she continues to work on a part time basis as a laundress at P. She has provided a very short medical report from her general medical practitioner supporting her assertion that she is fit enough to care for children of the ages of M, L and T. Her appearance in the witness box did nothing to dispel her corroborating evidence that she is fit and well. Accordingly, at this point, I do not think that this is a significant issue so far as the welfare of the children is concerned.
Ms Robb seemed to me to be a vulnerable person. She also seemed to me to be a person who was basically truthful. To her credit, she admitted prior difficulties with alcohol and drug use, as well as with gambling. However it is my assessment that she has underestimated her past use of alcohol and drugs and her level of gambling and the consequences of these things on her life and parenting. It is an old saw, but true nonetheless, that patients habitually under report their level of drinking and drug use to their doctors. In my experience the same is usually true of witnesses in proceedings such as these.
It is impossible for me to reconstruct accurately in these court proceedings what Ms Robb’s use of alcohol and drugs was over the ten years in question. Ms Robb categorises Mr Rice as being an alcoholic for much of the period. I accept that he was. Undoubtedly the relationship between the two was a turbulent one beset by all sorts of difficulties. But their greatest difficulty seems to have been a perennial shortage of money occasioned by substance abuse of one sort or another. I do not think that the substance abuse can be sheeted home to Mr Rice alone.
The most reliable indicator of excessive substance abuse in a family is likely to be recurrent financial problems. Ms Robb acknowledges that she and Mr Rice were always short of money. This led to arguments between them and calls for financial assistance from Ms Rice, which she regularly answered. The family also experienced eviction from time to time. Overall, I accept Mr M’s assessment, which accords with my own, that Ms Robb and Mr Rice had a “chaotic and muddled life together.” [10]
[10] See Family Report at page 15
Ms Robb and Mr Rice's lifestyle was not conducive to providing stability and consistency of care for the children. In one particularly telling and poignant passage of evidence, Ms Robb acknowledged that on one occasion she had had an argument with Mr Rice about the fact that the children had gone hungry because there was no money in the house and at the end of the argument they had resolved “to do better for the kids” in future. I suspect that this was not an isolated occurrence.
One of the important questions in this case is whether Ms Robb’s difficulties are behind her, particularly given the end of her turbulent relationship with Mr Rice and the fact that she proposes to parent the children alone in future. In essence it is Ms Robb’s case that any past difficulties that she had in parenting M, L and T were occasioned by the instability created by Mr Rice and she was otherwise a good and competent parent, apart from some occasional lapses, particularly in regards to her gambling.
On the other hand, it is Ms Rice’s case that her son injected stability into the lives of the children and he was frequently their primary carer because of Ms Robb’s failings as a parent, an assertion Ms Robb vigorously refutes. Because of her confidence in her son, Ms Rice says she did not become more involved in the care of the family in the past, other than what was asked of her. In such circumstances, Ms Rice asserts that she now has no alternative, in order to safeguard the children’s best interests, other than to instigate these proceedings, given the loss of Mr Rice from the children’s lives and care.
At this juncture it is impossible to ascertain definitively who out of Ms Robb and Mr Rice was more responsible for the children’s care in the past. As Mr Rice was engaged in full time work for much of the time, it seems improbable that he was responsible for everything to do with their care, during the time of his relationship with Ms Robb. As I have already indicated, I consider it probable that Ms Rice has followed the natural tendency of a parent to overlook the failings of her offspring and has perhaps exaggerated the failings of her daughter-in-law in lieu thereof.
However, at this point, the allocation of responsibility for past parental failings between Mr Rice and Ms Robb is largely irrelevant. I agree with Mr M’s assessment that when together Mr Rice and Ms Robb’s parenting of M, L and T was “probably marginal at best.” [11]
[11] See Family Report at page 16
What is important now is my assessment of Ms Robb’s future capability as a parent and how she sees herself in this regard. To Mr M, Ms Robb said she needed “to be back with the kids, I haven’t been doing well without them, I suppose I need their help.” [12] She expressed similar sentiments in her evidence to me. Overall, from her evidence in the witness box, I have no reason to doubt Mr M’s view that Ms Robb continues to lead a some what haphazard life and wishes the children to be in her care to satisfy some of her own emotional needs. Mr M wrote as follows:
“The writer is not confident that the mother has her life under control. She appears to be attempting to meet her own emotional needs in having the children returned to her care. There was a strong sense in her comments that she needs the children’s emotional support. It is unclear what emotional support she is able to offer the children.” [13]
[12] ibid at page 12
[13] ibid at page 17
My impression of Ms Robb is that she is a reactive and somewhat needy person. She has a tendency to blame others for her problems rather than assume responsibility for them herself. On the other hand, Ms Rice struck me as a doer. She is purchasing her own home and although not in ideal health, she supplements her pension with part time work. In my assessment, she has done well in assuming the mantle of responsibility for caring for M, L and T.
In my assessment, Ms Rice is likely to be the more reliable witness of the two parties and the one more able to identify the needs of the children. Where there is an evidentiary dispute between the parties, I consider that Ms Rice is likely to be the more reliable witness.
In these reasons for judgment, findings of fact are made on the balance of probabilities. In what follows, statements of fact constitute findings of fact.
a) Chronology and findings of fact
Ms Rice was born in Queensland in March 1956. She has close connections within North Queensland. The late Mr Rice, her second son, was born in March 1975. She has another son G, who is involved in a long-term relationship with Ms Robb’s twin sister K. G and K have three children. This adds another layer of complexity to the case. Besides K, Ms Robb has two younger sisters B and Y.
Ms Rice separated from her first husband at sometime around 1980. She subsequently re-partnered but this relationship has also ended. She is currently single and has no current plans to re-marry.
Ms Robb was born in north-west South Australia in February 1977. Her mother is an Aboriginal woman who was born in South Australia. However her family are descendants from Central Australia. Ms Robb’s father is not Aboriginal. Ms Robb moved with her family to Cxxx when she was aged about one.
Sadly Ms Robb has lost contact with her father. Her mother experienced difficulty in caring for four young children and Ms Robb and K were fostered to a Mission at Uxxx. Ms Robb lived at Uxxx until she was aged around seventeen. In 1995, she moved to live in Cxxx and reunited with her mother and B.
In June 1996, Ms Robb’s first child I was born at the Oxxx Hospital. I’s father is Mr J. I has lived with Mr J and his paternal grandparents in Cxxx since he was aged around eight months. This situation came about as a result of proceedings commenced by Mr J in the Family Court at Adelaide. Ms Robb does not appear to have taken an active role in the proceedings. She acknowledges that there were difficulties in her household at the time because both her mother and B were drinking to excess. Sadly, Ms Robb has had little involvement with I’s care over very many years.
Ms Robb met the late Mr Rice in Cxxx in 1997. At the time he was living with Ms Rice and was undertaking an apprenticeship. In 1998 Ms Rice decided to move to Hxxx, Queensland to live. Mr Rice and Ms Robb elected to move with her. M was born in Hxxx in December 1998.
Mr Rice was working as an apprentice at the Hxxx Hospital. Ms Rice and Ms Robb were engaged in a CDEP program administered by an Aboriginal organization in Hxxx. Ms Robb was a child care worker. It is agreed by all concerned that whilst the family was living together in Hxxx they each regularly used cannabis. Ms Robb gave up alcohol for the duration of her pregnancy with M.
In the latter part of 1999, Ms Rice and her then partner decided to move to P to live. Ms Robb, Mr Rice and M remained behind in Hxxx. They remained living in the house they had previously shared with Ms Rice. Before she left, Ms Rice ensured that the house was properly furnished and equipped.
Ms Rice visited Hxxx from time to time. It is her position that after she left Hxxx, the drug and alcohol use of Ms Robb and Mr Rice escalated. As a result, she says the couple argued frequently.
Ms Robb does not agree about these allegations, describing herself as a social drinker. Her preferred drink is pre-mixed cans of bourbon and coke. She says at most she would drink two six packs of bourbon and coke on weekends only. It is her evidence that this level of drinking cannot be regarded as “heavy drinking”. In my view, it is significant, particularly given my view that it is likely Ms Robb has under-estimated her level of drinking for the sake of these proceedings.
Clearly Ms Rice was not in a position to observe Ms Robb’s behaviour at close quarters once she had left Hxxx. She did however have first hand knowledge of Ms Robb’s drinking habits whilst she was living with her in Cxxx and during the period the two were sharing a house in Hxxx. More importantly it is uncontested that on at least six occasions over a three year period Ms Rice provided financial support of up to $500.00 to her son and Ms Robb. These were considerable sums so far as Ms Rice was concerned.
Given this level of financial support provided to the family by Ms Rice, it remains my view that Ms Robb and Mr Rice were most probably expending significant sums on the purchase of alcohol and marijuana for themselves. I accept that Ms Rice did what she could to assist the family from a distance but remained concerned about what was happening. It is her evidence, which I accept, that she felt it was impossible for her to become more involved as it was not her place.
L was born at the Hxxx Hospital in December 2000. Ms Robb’s sister K also came to Hxxx to live with the family. It is Ms Rice’s position that K was significantly involved with caring for M and L, particularly whilst their parents were drinking at licensed premises. Ms Robb refutes this assertion. In the absence of evidence from K, it is difficult to resolve this issue.
Mr Rice's contract with the Hxxx Hospital came to an end in 2002. He and Ms Robb decided to visit their family in South Australia. Ultimately they elected to remain permanently in South Australia. They left behind in Hxxx the furniture and whitegoods purchased by Ms Rice. This remains a considerable source of grievance so far as Ms Rice is concerned and evidence of the feckless nature of her son and Ms Robb in particular.
Ms Robb, Mr Rice and the children moved into rented accommodation arranged by Ms Rice in Bxxx. I accept that Ms Rice arranged for the property to be furnished at her expense. It is Ms Robb’s position that Ms Rice arranged this accommodation out of nefarious self-interest. She alleges Ms Rice wanted her son to use the property to grow hydroponic marijuana secretly. Ms Rice denies this allegation.
It is Ms Robb’s case that she begged Mr Rice not to be involved in the affair. At the time Ms Rice and her then partner, a man identified in these proceedings only as Mr A, were working at a Roadhouse. It is her position that she regularly visited the family at Bxxx and was shocked at the condition of their home, which she says was unclean and unsanitary and reeking of “rotting food and stale cigarette and marijuana smoke.” [14] These are strong words.
[14] See Ms Rice’s affidavit at paragraph 45
T was born at Gxxx Hospital in March 2003. Ms Rice deposes that Ms Robb and Mr Rice were without sufficient funds to provide him with necessary nursery equipment and clothes following his birth. As a result she spent over $5000.00 to buy a pram and other items for T. It is also her position that she regularly assisted Mr Rice and Ms Robb with recurrent expenses, such as the electricity bill, relating to the rented home at Bxxx.
Neither Ms Robb nor Mr Rice was in the paid workforce whilst they lived in Bxxx, which was for a period of about three years. It is Ms Robb’s evidence that she and Mr Rice were not required to pay rent in exchange for growing marijuana. It is also Ms Robb’s evidence that she and Mr Rice utilised portions of the crop for their own use.
However she refutes any suggestion that her use of the drug was excessive or that the children were exposed to the cultivation of the drug. The scheme for cultivating the drug seems to have been quite sophisticated, involving the use of sealed rooms, artificial lighting and extractor fans to remove the odour of the plants. In such circumstances it seems difficult to accept that the children were completely isolated from the cultivation of the drugs.
In addition, Ms Rice’s continued financial involvement with the family seems to belay the suggestion that Ms Robb and Mr Rice's drug and alcohol use was not problematic for the family, although I accept that their income in this period was limited to social security payments. In these circumstances I am not prepared to discount the gravamen of
Ms Rice’s allegations that the parents were not coping with caring for M, L and T whilst the family lived at Bxxx.
Ms Rice acknowledges that she was aware her son was cultivating marijuana but denies she was the instigator of the scheme. It her position that “Mr A led Mr Rice astray” in respect of the cultivation. She also denies a further allegation made by Ms Robb that she was trafficking amphetamines, whilst working at the roadhouse and that she in fact introduced Mr Rice to the drug.
These are serious allegations, which are vigorously refuted by Ms Rice, who asserts that she had ceased her personal use of cannabis in 1996 and has never had anything to do with the production and distribution of illegal drugs. Ms Robb is not able to call any evidence to support her allegations.
Given the seriousness of the allegations and the lack of corroborating evidence, I am unable to resolve this issue definitively, certainly not in Ms Robb’s favour.[15] In any event given my overall findings regarding Ms Rice’s credibility, I find myself unable to disbelieve her denials in regards to the issue. Certainly I find it difficult to accept that she would sell amphetamines to her son.
[15] See Evidence Act 1995 (Cwlth) section 140 and Briginshaw vBriginshaw (1938) 60 CLR 336 at 362
Mr Rice's activities came to the notice of the police and he was charged with cultivating marijuana. He was convicted and fined, escaping a more serious penalty on the basis of his assertion that the drugs were for his own use. The charge and conviction resulted in the eviction of the family from the property. Ms Rice’s evidence is that she cleaned up the property following the eviction and that it was in a filthy state.
On Ms Robb’s own case, the period whilst the family was living in Bxxx was a difficult one. Mr Rice was drinking heavily and was using drugs – both cannabis and amphetamines (although Ms Rice does not accept that he was using this latter drug). Finances were difficult and there were frequent fights between her and Mr Rice, at least one of which involved violence. In such circumstances, again it is difficult for me to discount the concerns raised by Ms Rice in her evidence regarding the care of the children during this period.
Mr M’s impression was that Ms Robb blamed Mr Rice combined with the overweening intrusions of his mother for all the difficulties that arose in the family at this stage and subsequently.[16] It seems clear that Mr Rice did have serious problems – all agree he was an alcoholic. However, to my mind Ms Robb must also assume some responsibility for the difficulties which arose. In addition, she was willing to accept Ms Rice’s assistance on a regular basis. As such, I find it hard to accept that Ms Rice can be characterised as an interfering busybody. I accept that she did what she could for the family but was worried about incurring the wrath of either her son or Ms Robb and felt that she could not go further than she did.
[16] See Family Report at page 16
In early 2005 Mr Rice accepted a position at Rxxx, in northern South Australia. Ms Robb asserts that he took the job to escape from drug use. This may be so. After about three months Ms Robb and the children joined him in Rxxx. Mr Rice was provided with subsidised accommodation in connection with his position at Rxxx. Ms Robb also asserts that she was glad to leave Bxxx to escape from the attention of Ms Rice. Again this may be so.
Mr Rice maintained his employment at Rxxx for a period of around eleven months. The circumstances surrounding his dismissal from his position are a source of controversy between the parties. It is not necessary to resolve this controversy in these proceedings other than it is my view that the dysfunctional relationship between Ms Robb and Mr Rice most probably contributed to Mr Rice being found wanting in the job.
Again it is my finding that the time the family spent in Rxxx was an unhappy and unsettled one. Ms Robb concedes that she contracted a severe addiction to poker machines during the period. She acknowledges that she was capable of loosing up to $300.00 in a session with the poker machines and on what she describes as a “few occasions [she] spend all the money and was left with nothing.”
Ms Robb also says she was drinking at the time and smoking cannabis but not heavily.It seems that Mr Rice also continued to drink and although he was earning between $600 and $700 per week, the family were perennially short of money and again relied on Ms Rice for financial assistance. Ms Rice found it difficult to travel to Rxxx regularly because of the distance involved. She visited the family there on only one occasion. Again it is her evidence that she found the family’s home in “a dreadful state”. Ms Rice also deposes that she felt “powerless” to help more other than offering financial help, which was frequently request by Mr Rice.
To Mr M, Ms Rice raised a concern that Ms Robb’s care of the children had come to the notice of a welfare worker in Rxxx, particularly that there had been a complaint that she had left the children alone at home. Ms Robb did not know who had made the complaint but confirmed that she had had some involvement with the Child Welfare Authorities when she had visited them to obtain food voucher.[17]
[17] See Family Report at page 11
The family were forced to leave Rxxx in August of 2005, after Mr Rice lost his job there. Ms Rice travelled to Rxxx with some friends who had trailers to assist with the move. Due to damage occasioned to the house, Mr Rice and Ms Robb lost their security deposit. Due to their situation, Mr Rice and Ms Robb had no alternative other than to accept Ms Rice’s offer of accommodation for the family at her home in P. This was not a prospect either Ms Rice or Ms Robb greeted with enthusiasm.
Ms Robb states that her pokies addiction, although severe, was brief in duration lasting only some three months. It is her case that she conquered her addiction by banning herself from the Rxxx Hotel. On the other hand it is Ms Rice’s case that Ms Robb’s addiction is more long standing, having manifested itself first in Cxxx and continued on in Hxxx.
How Ms Robb behaved upon her arrival in P persuades me that her conviction her pokies addiction was short standing is one likely to be misplaced. Ms Robb acknowledges that when she and Mr Rice arrived in P at around 11.00 am, after travelling overnight from Rxxx, they “found [themselves] in the pub”. They spent much of the day drinking and playing the pokies. Ms Robb won $600, at least half of which she fed back into the machines. From Ms Rice’s perspective it was not a good way for the couple to start their time living with her.
Ms Rice arranged a job for her son at the P Abattoirs. However both parties agree that Mr Rice was drinking heavily and regularly. From Ms Rice’s perspective both her son and daughter-in-law were also continuing to use cannabis. Both parties agree that Ms Robb and Mr Rice were arguing often, although Ms Robb also says that Ms Rice would join in on her son’s side and abuse her.
My impression is that life at Ms Rice’s home during this period was like being in a pressure cooker waiting for it to explode. It is during this period Ms Rice admits she began to re-use cannabis. Ms Rice also acknowledges that she abused Ms Robb from time to time, in response, she says to significant provocation. She also alleges that Ms Robb threw a can of bourbon and coke at her; punched her; and kicked her; in separate incidents.
Ms Rice’s evidence is that Ms Robb was smoking marijuana daily during this period and drinking heavily to the extent that she was paralytic. As a result she was unable to attend properly to the children and increasingly Ms Rice tended to their needs. She says during this period she bonded closely to M, L and T.
Ms Robb acknowledges some drug and alcohol use on her part but asserts her use was moderate. She says it was a six pack only on weekends. For the reasons already provided, I believe this is likely to be a gross under-estimation. I appreciate Ms Robb was unhappy at the time and no doubt used alcohol and cannabis as a source of solace. As a result she spent much of the money available to her and Mr Rice. Otherwise I do not think Ms Robb would have remained living with Ms Rice a minute longer than she had to.
Ms Robb and Mr Rice separated at sometime in September of 2006. The circumstances surrounding this separation are highly controversial so far as the parties are concerned. Ms Rice asserts that there was a violent altercation between her and Ms Robb, during which Ms Robb slammed a door on her face. Ms Robb says Ms Rice initiated the violence by hitting her. At any rate, around this time, Ms Robb and the children moved to rental accommodation in P, after spending some time in emergency accommodation.
It is Ms Rice’s evidence that Ms Robb took the children away from her home over her objections, made on her behalf as well as her son’s. I have no doubt that this was the case and that this was the cause of the unfortunate argument between the parties. At this stage I can see little benefit in attributing fault for it other than to say that both parties probably behaved badly.
The removal of the children from Ms Rice’s home seems to have ushered in a new phase of volatility in the lives of all concerned, including the children. Mr Rice regularly visited the children in the mother’s new home. However Ms Robb alleges that following drinking bouts he assaulted her on a number of occasions. She successfully sought a domestic violence restraining order against him and Mr Rice was also charged with assaulting her, following an incident in late September. However Ms Robb subsequently petitioned the police a few weeks later to withdraw the assault charge against
Mr Rice.
Notwithstanding the existence of the domestic violence restraining order and a condition on his bail that he not approach Ms Robb,
Mr Rice continued to visit her and the children. I have no doubt that this was a tempestuous period for the children. How could it not be? Their parents were separated and both were drinking heavily and using cannabis.
During this period, I accept that Ms Rice acted as a safety net for the children. I accept that she regularly cooked stews for the children, which she would take over to Ms Robb’s home and also did their laundry whilst she was at her work. She also bought groceries for the children and other items, including baby things for T.
This was notwithstanding the fact that she herself was hospitalised briefly on three separate occasions as a result of the stress she was feeling at the time. In these circumstances I do not think that
Ms Rice’s continuing involvement with the children can be ascribed to a desire to meddle in Ms Robb’s affairs, rather it stemmed from her concern for the children’s welfare.
On 22 December 2006 Ms Robb was evicted from her rented accommodation as a result of a failure to pay the necessary rent, which was $130 per week. In answer to cross-examination by Ms DuBarry, she acknowledged that she did not pay any rent in October; one fortnightly payment in November; and nothing again in December. At the same time Ms Robb acknowledges that she was smoking cannabis two to three times per day and spending at least $100 per week on the drug as well as buying at least two six packs of bourbon and coke a week. She also indicated in cross-examination that she was playing the pokies a couple of times a week, spending up to $60 each time.
In my view her failure to safeguard her children’s accommodation is indicative of a life out of control. Although I accept that it is likely that she also gave money to Mr Rice from time to time and bought cannabis and alcohol for him, I do not think that this is a satisfactory explanation of her conduct. Certainly it is unsatisfactory from the point of view of the children.
At around the time of her eviction, there was a further incident between Ms Robb and Ms Rice. Ms Robb alleges that she was choked by Mr Rice. She admitted herself to the P Hospital following it. I have not been provided with any medical evidence in respect of this admission. As a result of Ms Robb’s admission to hospital the children came into Mr Rice and Ms Rice’s care. Mr Rice was also charged with assaulting Ms Robb.
Ms Rice gave evidence as to how she found the property after Ms Robb had been evicted from it. She was at the home to collect some items of clothing for the children. She was acutely embarrassed at its unsanitary condition and felt compelled to assist in cleaning it up, when two women associated with its owner arrived.
Ms Robb was discharged from hospital shortly after Christmas. She decided that she would visit friends in Lxxx for a few days before going on to Adelaide to spend time with her family. Initially Ms Rice thought that she would want to take T with her but she went alone.
Mr Rice was bailed to appear before the P Magistrates Court on 24 January 2007. Ms Robb returned to P on 19 January and stayed with friends. She met with Mr Rice and it is her case that the two decided to reconcile. On that basis Ms Robb agreed once again to withdraw the assault charge against Mr Rice. However it seems to be the case that the police required Ms Robb to indicate that to the presiding magistrate concerned.
Ms Robb and Mr Rice apparently met again on the evening of
23 January. Ms Robb states that the two argued once again. Mr Rice was drinking. This was the background to Mr Rice taking his life at his mother’s home on the morning of the 24 of January. I am unable to determine precisely why Mr Rice took his life and it is not my responsibility to do. That is the responsibility of the coroner. I can only conjecture what was going through his mind at the time.
In the period immediately following the discovery of Mr Rice's death there was an unfortunate incident between the two women. Ms Rice acknowledges that she struck Ms Robb. In the circumstances, I do not consider that a high degree of culpability attaches to her actions.
Due to the necessity for an inquest, Mr Rice's funeral was delayed until 10 February 2007. Between 30 January and 7 February 2007,
Ms Robb took the children with her to Adelaide but returned them to Ms Rice upon her return to P. The children have been in Ms Rice’s care more or less in the period since.
The funeral and wake were traumatic for all concerned. From
Ms Robb’s point of view she felt that she was ostracised by members of the Rice Family who held her responsible for the death and threatened her in respect of it. It was difficult for her to be in P.
Ms Rice was bereft at the loss of her son in such tragic circumstances. Ms Robb left P following the funeral. She went to a suburb of Adelaide, where her sister B lives. The children remained in P with their grandmother.
This was the background to Ms Rice commencing these proceedings on 27 March 2007 and the interim orders made by myself on 27 April 2007.[18] As the parties will be aware I decided that the children should remain living with Ms Rice in P. At the time I was well aware of the difficulties which would inevitably arise in respect of the children maintaining their relationship with their mother given the bad blood between the parties and the distance between Adelaide and P. However, at the time, I considered that this was the most stable outcome for the children.
b) Events since the interim hearing
[18] See Rice & Robb [2007] FMCAfam 265
The difficulties I feared in April have eventuated. There has been no diminution of the ill will between the parties. It would be unrealistic and naïve to think there could be in such a comparatively short period. As a result communication between Ms Rice and Ms Robb has been haphazard. The difficulties have been compounded by uncertainty regarding Ms Robb’s accommodation.
The cost of a return bus ticket for an adult between Adelaide and P is $36 if the passenger has a concession card. Ms Robb does not have a concession card as she is not a pensioner, being in receipt of a newstart allowance. However it seems she uses her sister’s concession to get the cheaper fare. Her newsart allowance is $420 per fortnight. I accept that she is not in a strong financial position.
Ms Robb relies on friends in P for her accommodation in the town when she visits the children. It is common ground between the parties that she has missed some of her weekends with the children because she has missed the bus.
Ms Rice owns a motor car. It is an old ford manufactured in the mid 1980’s. It is not in a good state of repair and Ms Rice does not trust it on the route between P and Adelaide, although she has recently used it to drive the distance. It is common ground between the parties that they would not be comfortable sharing the same vehicle for any extended period of time.
Ms Rice continues to be critical of the standard of care provided to the children when they are in Ms Robb’s care. For example Ms Robb acknowledges that she has been compelled to borrow food and blankets from Ms Rice for the children when they are in her care. She explains these requests by the fact that the friends with whom she usually stays had other guests that weekend and as a result there was a shortage of bedding.
Ms Robb complains that Ms Rice is not facilitating her relationship with the children, particularly in terms of telephone communications. She also complains that Ms Rice is denigrating her to the children. For her part Ms Rice asserts that it is expensive to contact Ms Robb on her mobile telephone and she is difficult to contact on landline telephones because her home address has been unstable.
The children are exchanged between the parties at the P Police Station. When the two women meet there, they do not speak. On at least one occasion, Ms Rice has attended at the police station in vain waiting for Ms Robb to arrive. On another occasion Ms Robb sent Ms Rice a text message indicating that she had missed the bus. These matters reinforce Ms Rice’s perception that Ms Robb is unreliable.
Orders were made on 19 June 2007 which allowed for the children to spend time with their mother for just over a week in each of the
mid year and September/October school holiday. These holiday visits passed without apparent difficulty. The children travelled from P to Adelaide by bus and stayed with their mother at her sister B’s house.
Although Ms Rice has concerns about the level of care the children are likely to receive in their mother’s household, she acknowledges that a proper consideration of their best interests dictates that they should spend some holiday periods with their mother.
In April Ms Robb deposed that she was shortly awaiting allocation of a three bedroom home to her in Nxxx by Housing SA. The house has not as yet eventuated. There have been delays which are not attributable to Ms Robb. She will receive the house whether or not the children live with her.
M and L are attending P Primary School – M is in Grade 2 and L is in Grade 1. Both children missed a lot of school in the first half of this year. I accept that this was due to them needing to settle down after the death of their father. I also accept that their attendance has been more regularly in the second half of the year. Both M and L’s reports indicate that they are progressing normally at school.
Ms Rice continues to work on a part time basis at the P Abattoirs. She also receives a disability support pension. Her income is around $980 per fortnight. She is purchasing her home and has been doing so for around three years. Her monthly mortgage payment is currently $310. She has purchased a pony for the children.
At least to Mr M, Ms Robb indicated that she was considering moving back to P to live. Ms Robb no-longer thinks this is a workable proposal because she will have no family support. However it does seem to be the case that her sister K and her partner G are planning to move back to P. G remains ill-disposed towards Ms Robb. In these circumstances, Ms Robb does not think she will be able to get much support from K.
c) The family report and the evidence of Mr M
Mr M found the children had a close and comfortable relationship with their grandmother, with whom they interacted in an intimate manner. Mr M described Ms Rice’s home as neat and tidy. His overall impression of Ms Rice was that she was “fit and capable” and was able to move around and do things for the children.
M was interviewed by Mr M twice – before and after spending time with her mother. Mr M adopted this approach to see what sort of factors were impacting on her professed views. In his experience it is a common phenomenon for children of M’s age to express a different view after spending time with a parent.
On both occasions, M indicated a clear preference to remain living in P with her grandmother. At this stage it bears repeating the reason M gave for expressing this preference –
“She makes us good food, we have good clothes, we have lots of toys, we live in a nice house and she looks after us good.”
I was struck by the fact that M expressed her preference in such material terms relating to her care. Mr M agreed it was telling that M raised her preference in this way, particularly given the concerns raised by Ms Rice regarding the quality of the care previously provided to M by her mother and father. Mr M was also struck by the fact that M maintained her view after she had spent time with her mother.
Mr M also questioned M about her attitude towards her mother. She indicated that it was “good” living with her mother. She provided no elaboration on this comment and broke eye contact with Mr M and looked at the floor. By implication, it seems to be the case that M wished to avoid any further discussion about the issue, which discomforted her.
Mr M’s impression was that M was very careful in her discussions with him. This care arose from her loyalty to her mother and desire to avoid causing her hurt. Nonetheless Mr M considered that M was expressing a clear and considered preference, which was informed by “bread and butter” issues. Quite simply M thought she would be better off and better cared for at her grandmother’s. Mr M believed that M was mature enough to express such an opinion and had not been subjected to any coercion, undue influence or inducement.
L was described by Mr M as being confident and outgoing. After being observed in her grandmother’s home, she indicated that she wanted to continue living with her grandmother but wanted to be able to visit her mother. When asked why she wanted to live with her grandmother, she said “because it is good here and she is kind to do us”. When asked to expand about what was good about
Ms Rice’s home, she said “everything”.
After observing L with her mother, Mr M interviewed L about the residence issue. L changed her preference but did not proffer a reason for her change of heart, merely shrugging and indicating that she did not know why. The change of mind did not surprise Mr M. Again he thought it likely to be indicative of L not wishing to disappoint her mother. In addition he thought that L was probably insufficiently mature to be able to separate her own needs from those of her mother. On the other hand, he believed that M, being more mature, was able to identify her own needs.
Mr M did not interview T, due to his tender years. He was described as a boisterous little boy by Mr M, inclined to push limits. However he found all of the children responded to their grandmother’s direction.
Mr M did not question the love of the children for their mother and the value of their maternal relationship to them. He was also impressed from his observations of Ms Robb’s management of them in somewhat difficult circumstances in a park in P. He described Ms Robb as being imaginative and creative in refocusing the energies of the children and of being appropriate and confident in her interactions with the children. The relationship between the children and their mother was described as being warm and comfortable.
Mr M was well aware of the extreme level of disruption the children had suffered over the previous twelve months or so, since their move from Rxxx to P. In his view, at this stage, the children’s fundamental need was to “have their lives settled and stabilised”. [19] This was the view I took following the interim hearing. The evidence led before me at the final hearing has not caused me to change my mind.
[19] See Family Report at page 16
Mr M’s impression of Ms Rice was that her lifestyle and accommodation were stable and she had a high degree of support in P. He believed that the children were well settled in
Ms Rice’s care. On the other hand, he was concerned that Ms Robb’s proposals envisaged the children undergoing a considerable process of change and adaptation, which he did not believe would be in their best interests at this stage.
Mr M was concerned that some time had passed since
Ms Robb had left P and she had not as yet obtained secure accommodation for herself. Above all he lacked confidence that she was in control of her life too such a degree that she would be able to adequately parent three children of the ages of M, L and T.
Although Mr M believed the children wanted to see their mother (as both M and L clearly indicated to him), his impression was that both the older children, particularly M, were uncomfortable with the lifestyle they had previously led whilst living with their mother.
Contrasting the parenting styles of the two parties, Mr M found the grandmother more organised and more under control. He characterised her household as more stable and more predictable than Ms Robb’s. He was uncomfortable, as am I, with Ms Robb’s assertion that all previous difficulties in her parenting of the children were largely attributable to the late Mr Rice.
It is my impression that Mr M found Ms Robb to be emotionally vulnerable. Certainly that is my view of her at this stage. As such he was concerned at the possibility of the children assuming emotional responsibility for her. In essence feeling that they were responsible for making mummy happy. Mr M considered it would be an overwhelming burden for the children if they felt they had to take care of their mother in this way.
When Mr M spoke with Ms Robb, there was the possibility that she would return to live in P and accordingly that there could be a shared care regime in respect of the children. Mr M considered that such an arrangement was neither practical nor workable. He described the relationship between the two women as “atrocious” and they themselves as “incapable of working together co-operatively”. [20]
[20] ibid at page 18
As a result of his observations and interviews with the parties, Mr M recommended that the three children continue to live with Ms Rice and the current visiting regime be maintained. In making this recommendation, Mr M was well aware of the practical difficulties which prevail. In reaching this view Mr M was highly influenced by his view that the children were currently well settled in their grandmother’s care, where they led “structured, organised and predictable lives with routines and clear expectations”.[21] He could see no significant benefit to the children being removed from Ms Rice’s care.
[21] ibid at page 19
The legal principles applicable
The service of M, L and T’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents (and those who are significant to their care, such as grandparents) being as closely involved as possible in their children’s lives, both in terms of the exercise of parental responsibility and the time they each spend with their children, commensurate with the need to protect the children concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parties concerned should have equal shared parental responsibility for their child [section 61DA].
Parental responsibility means all the duties, powers, responsibilities and authorities which parents have in respect of their children as a result of the operation of the common law [section 61B]. For obvious reasons, parents have a special position of authority and responsibility over their children, which is greater than other individuals.
Ms Rice is not a parent of any of the children. That does not preclude the court conferring on her parental responsibility for the children. The court has authority to make a parenting order in favour of any person [section 61D]. Accordingly it seems clear that the court may make an order for equal shared parental responsibility in favour of a parent and non parent of a child.
The Family Law Act specifically authorises a grandparent to apply to the court for a parenting order [section 65C]. A parenting order is an order which determines the allocation of parental responsibility for a child; where and with whom a child will live; and how a child communicates and spends time with those who are likely to be significant to the child [section 64B].
Accordinglly Ms Robb is not in a superior position to Ms Rice merely because she is the children’s sole surviving parent. Ms Rice is entitled to be a party in the proceedings and apply for any parenting order in respect of M, L and T.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the children’s parents has abused or neglected one of the child concerned or otherwise exposed them to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the children’s interests for their parents or other significant individuals to have such equal shared parental responsibility for them [section 61DA(4)].
The presumption itself does not determine the extent of time the children concerned spends with each of their parents or other persons significant to them. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with the parties concerned for equal periods of time and if this is not considered to be either to be likely to be in the children’s best interest or reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents (and other significant individuals) being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents (and other significant individuals) is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
Determining M, L and T’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the children concerned from harm as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with both parents.
In this case Ms Robb places significant emphasis on the desirability of the children having a meaningful relationship with her, their sole surviving parent. Whilst Ms Rice places emphasis on the importance of the children not being subject to neglect in future.
The concept of neglect is not specifically defined in the Family Law Act. In ordinary English usage it means, when used as a noun “lack of caring” and when used as a verb “to fail to care for or to do; be remiss about.”[22] In this case I am satisfied that Ms Robb has been seriously remiss regarding the care of the children from time to time. They have not been fed and the homes in which they have lived have not always been clean. I am satisfied that these problems have come about primarily because of the mother’s drug and alcohol use and gambling. Responsibility for these past difficulties cannot be sheeted home to the late Mr Rice alone.
[22] See The Australian Oxford Dictionary
Although Ms Robb is on the verge of obtaining accommodation for herself in Adelaide, I am not convinced that she has as yet established a stable way of life for herself. In the past, she and Mr Rice used
Ms Rice and her home as a safety net during periods of crisis in their care of the children. In doing so they demonstrated problems with financial management. Again I do not think these problems can solely be blamed on Mr Rice. I agree with Mr M’s assessment that the past parenting of the children was at best marginal.
As it is my view that Ms Robb is not well established in Adelaide and remains a vulnerable person in regards to drug and alcohol use and the temptation of the pokies, I believe that there is a very real potential for the children to be subject to neglect, if they are returned to their mother’s care. I do not think it likely that her past problems with money are resolved. Accordingly I think the issue of the children being protected from neglect in future assumes priority in this case.
Ms Rice has shown that she is more than capable of providing for the children, who are well cared for in her home. Her accommodation is secure. She is well settled in P where she has friends and employment. In Mr M’s assessment the most decisive factor in this case was the children’s need to live in a stable and secure environment. Ms Rice can provide such an environment. I am not convinced that Ms Robb is able to.
I appreciate that if the children live in P with their grandmother and Ms Robb continues to live in Adelaide it will be impossible for the children to have the most optimally meaningful relationship with their mother. Certainly the relationship will not be as close and intimate as if they were all living in the same household.
However the children’s relationship with their mother will not be robbed of all meaning if they continue to remain living with Ms Rice. Their relationship with her will remain significant and enduring no matter what is the outcome of these proceedings. I do not accept the mother’s submission that, if the children continue to live with Ms Rice, it is inevitable that the children will loose their maternal relationship because of Ms Rice’s antipathy for Ms Robb.
I appreciate that it will be difficult but the children will be able to spend time at weekends and during school holidays with their mother. Ms Rice acknowledges that the children need to spend regular periods of time with their mother. She has extended the proposal she originally made in this regard. In my view her proposal strikes an appropriate balance between the need for the children to be protected from harm and their need to have a meaningful relationship with their mother.
The additional considerations
(a)The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[23]
[23] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[24]
[24] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[25]
[25] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
M is nearly nine years of age. She has extensive experience of living both with her grandmother and her mother. I have no doubt she was fully aware of the significance of her conversations with Mr M. In both of her conversations she expressed a desire to remain living with her grandmother. She expressed her desire in material terms. Her preference for Ms Rice’s household related to superiority of food; clothes; toys; care; and accommodation.
What M left unsaid and was uncomfortable about expressing was her view about the care she had previously received whilst living with her late father and mother. It seems clear that M was protective of her mother and wished to avoid causing her intentional heart ache. But, by necessary implication, M’s experience of living with her mother has in the past been found wanting. M put the issue in “bread and butter” terms but also wanted to express her love for her mother.
In my view, this case is largely about the standard of care the children have received in the past and whether or not that care has been satisfactory. The way in which M expressed her view confirms my opinion about the nature of this case. I am satisfied that M has not been inappropriately influenced in any way. I am also satisfied that she is reaching a stage of maturity where she is able to express a view which is concomitant with her own self interest. M sees that she will be materially better off if she continues to live with her grandmother. Presumably she thinks the same in respect of the two younger children.
L does not have the same level of maturity and insight as M does, particularly in being able to identify her own best interests and wants. Initially L expressed a view to remain living with Ms Rice. After spending time with her mother, she changed this view. She did not indicate why she had changed her mind. It is however significant that L’s views about Ms Rice’s household are positive. It does not seem to be beyond the bounds of possibility that L changed her mind because of a wish not to publicly disappoint her mother.
T, at not yet five years of age, is too young to be able to express any view to which weight should be expressed. Mr M did not formally interview him.
b) The nature of the children’s relationship with their mother and other significant persons
This is one of the most significant planks of the mother’s case. She points to the fact that she has been in the same household with the children for the vast majority of their lives and it is only fairly recently that Ms Rice has assumed primary responsibility for their care. Clearly this is so. In the early years of life of each of the children, particularly L and T, Ms Rice was a distant figure, dropping into their lives irregularly. It is immaterial to the children that Ms Rice provided regular financial support to their parent.
The relationship between a parent and child is the most central human relationship. It is Ms Robb’s case that such parental bonds assume greater significance in this case given the death of the children’s father. In such circumstances she submits that it is essential that the court acts quickly to restore the children to the care of the parent, who has previously been the children’s undisputed principle provider of care.
Too a large extent I have dealt with this submission in my discussion under the primary consideration. Mr M was asked if it was preferable that a child be cared for by a parent rather than a non-parent. It is a very wide question, the answer to which must depend on the circumstances. Mr M’s response to the question was that the person “best placed to care for the children should care for them”. It is clearly Mr M’s position that in this particular case Ms Rice is the best placed person to care for M, L and T and this factor is more significant than the maternal relationship between the children and Ms Robb. In the overall circumstances of this case, this is my assessment also.
That is not to say that Ms Rice is a stranger to the children. She knows and loves them well. The children have come into her care and household at significant points of tumult in their lives. As a result she and they share a close emotional bond. I accept Mr M’s assessment that the children have a close and comfortable relationship with their grandmother. As I have already indicated, the strength and significance of the relationship between the children and their grandmother is reflected in the views expressed by both M and L.
The children also have a very close and loving relationship with their mother. I do not wish in any way to discount the significance of this relationship for each of M, L and T. However it also seems to be the case that the two older children are somewhat wary and guarded around their mother, particularly in terms of how they perceive she is coping emotionally. It was also Mr M’s perception that M especially was uncomfortable with a number of aspects of Ms Robb’s lifestyle as she had previously known it.
Mr M noted that the mother expressed to him a need to have the children returned to her care so she could do better herself.
Mr M was concerned that this was a reversal of a healthy parental relationship in the sense that the children were seen as providing the emotional security in the parent/child relationship rather than vice versa. He was gravely concerned at the prospect of any of the children attempting to assume responsibility for maintaining their mother’s emotional well being.
c) The willingness and ability Ms Rice and Ms Robb respectively to facilitate and encourage a close and continuing relationship between the children and the other
The disastrous emotional topography between Ms Rice and Ms Robb make this a most problematic case and one which is unlikely to have anything other than an imperfect outcome. The children’s family is fractured as a result of their father’s death and the extreme emotions it precipitated.
Ms Rice is not well disposed towards Ms Robb and can barely speak to her. It is not practicable for the two women to travel in the same car between Adelaide and P. In such circumstances any mutual planning between Ms Rice and Ms Robb, centred on the children’s best interests is going to very difficult to achieve.
However, in my estimation the antipathy and hostility is not a one way street. Ms Robb is not well disposed towards Ms Rice either. If the children do move into her care, I think I would be naïve to consider that she would be more facultative of the children maintaining their relationship with their grandmother than if the boot was on the other foot. In fact, in my estimation, Ms Rice is likely to have a greater facility than Ms Robb to distinguish between her feelings and the needs of the children.
Ms Rice is unlikely to ever put herself out for Ms Robb but I do not consider that she would prevent the children maintaining their relationship with their mother. It is the case that she has ensured that the children have spent time with their mother in the past difficult year. There is no evidence to indicate that Ms Rice has actively conspired to undermine the nature of the relationship the children have with their mother whilst they have been living in her household. I do not regard the grandmother’s proposal to increase the holiday time the children spend with their mother as self-serving. Rather I think it reflects her acceptance of the importance for the children of their maternal relationship.
d) The likely effect on the children of any change in their circumstances
I regard M, L and T as vulnerable children. How could they not be given what has occurred over the last twelve months in particular? In these circumstances the pros and cons of any change for the children must be closely considered. At present I consider that the children are living stable and well ordered lives with their grandmother in P. They are doing well. Both the children and Ms Rice enjoy a high degree of support in P.
From Mr M’s perspective, the most importance consideration, from the point of view of the children’s best interests, was that they lead stabilised and settled lives in future. He was not convinced that they had led such lives in the past when they had been in the care of Mr Rice and Ms Robb. I share Mr M’s lack of conviction in this regard.
In such circumstances I have grave reservations that any change in the children’s current living arrangements would be in their best interests. Certainly I do not think Ms Robb is well placed to provide stability and security to the children, notwithstanding that she is shortly due to receive her new home. For the reasons already provided I am not convinced that her life is on track and she has fully overcome her difficulties relating to drugs, alcohol and gambling. I am fearful that her financial ineptitude will return.
If there is a change in the children’s living arrangements, the children would have to accommodate a significant change of circumstances. M and L would have to change schools; T would have to start at a new kindergarten. All the children would loose friends and would have to start afresh in a new environment. In my view it is difficult to justify these changes given the children’s current well settled environment and my concerns about what the mother is able to offer them.
e) The practical difficulties and expense of the children spending time and communicating with their mother and grandmother
There are no easy answers to the problems created by the distance between Adelaide and P; the parties’ mutual lack of funds; their mutual antipathy; and the resulting communication difficulties.
The best outcome for the children, in terms of them maintaining personal contact and personal relations with the family members closes to them, is if the mother moves back to P. At one stage she was considering this but has rejected the possibility because of her lack of familial support in the town. I am not critical of her for this decision. In any event, having Ms Rice and Ms Robb both living in P may have created as many problems for the children as it solved, particularly in terms of them being exposed to on-going conflict.
Ms Robb did not strike me as being either particularly well organised or self-reliant. Her financial position is unlikely to change in the foreseeable future. It is unlikely that she will move into the paid workforce. Accordingly finding the return bus fare between Adelaide and P is likely to be a considerable impediment to her spending time with the children, if they continue to live with Ms Rice.
In addition it will be difficult for Ms Robb to find accommodation for herself in P in order to spend weekend time with the children during school terms. Up to this stage, she has been reliant on friends for accommodation in P. This accommodation may not always be available to her.
Ms Robb does not have clear proposals for the mechanics of the children spending time with their grandmother, in the event of a change in their living arrangements other than that the children be exchanged at the H Police Station. Presumably this means that she envisages that Ms Rice would have to bear all the expenses of the children travelling between Adelaide/P and return.
Ms Rice is better off financially than Ms Robb but she is not wealthy or even financially comfortable. Her car is an old one in poor mechanical condition. Accordingly I am of the view that Ms Robb’s proposal would place too much burden on Ms Rice and may impact upon the children’s entitlement to maintaining personal relations with their grandmother.
Ms Rice proposes that the children should continue to spend alternate weekends with their mother, as well as for the greater proportion of each school holiday. She further proposes that Ms Robb travel to P for each period of weekend time (and at Christmas time) and bear all the costs associated with it, collecting and returning the children at her (Ms Rice’s) home. However in respect of the periods of holiday time, she proposes that she (Ms Rice) should bear all the costs of the children travel involved and be responsible for delivering and collecting the children at the mother’s place of residence.
In my view, Ms Rice’s proposal is concrete evidence of her professed commitment to the children maintaining their relationship with their mother. It constitutes an acknowledgement that the best means for this to occur, given the circumstances which currently prevail, is through extended block periods of time in school holidays. Her commitment is fortified by her willingness to bear the travel costs involved. Of the parties’ two proposals, I consider that Ms Rice’s constitutes the most workable one and the one most likely to assist the children having a perception that they are and will continue to be able to spend reasonable periods of time with both their mother and grandmother.
The proposal that Ms Robb come to P on weekend during school terms is not unworkable but it will be very difficult to put into practice on each alternate weekend which will be available. In the past Ms Robb has not always been able to get to P. It would be unreasonable to expect Ms Rice to deliver the children in Adelaide on each alternate weekend. The success of this proposal must depend on Ms Robb’s level of commitment. In such circumstances it seems appropriate that she should bear the costs of travel involved.
f) The capacity of the parties to provide for the children’s emotional and intellectual needs
The first part of M and L’s schooling, on coming into their grandmother’s care, was extremely disrupted. The two children missed much school. Ms Rice attributes this to the children’s emotional distress at the loss of their father. Since that time the children’s attendance at school has settled down and both girls seem to be doing well at school. I have no reason to think anything other than that Ms Rice wishes all three children to do as well as possible at school. However neither of the parties struck me as being particularly academically orientated.
Given Ms Robb’s emotional vulnerability and the concern that she may turn to the children for emotion support, it seems to be likely that Ms Rice is the better placed to provide for the children emotional needs.
Ms Robb places particular emphasis on Ms Rice’s age and state of health as being barriers to her being able to provide for the children in future. Obviously I do not have a crystal ball in regards to the future but I do not think these concerns are sufficiently well founded to show that Ms Robb has a clear advantage in this area. I accept that Ms Rice is currently physically capable of providing for these three young children.
g) The children’s maturity, sex, lifestyle and background
I do not think that there is anything in any of the children’s ages, sex, lifestyle or background which is particularly relevant for consideration under this criterion.
h) Aboriginality
The children are heirs to a rich cultural tradition on both the paternal and maternal aspects of their family. Both parties identify themselves as persons of Aboriginal descent, although Ms Rice also describes herself as being a Torres Strait Islander and Pacific Islander. As such both parties are able to provide the children with appropriate role models and protect them from the corrosive consequences of racism.[26] Wherever they live, M, L and T will be conscious that they are Indigenous children and will be proud of it.
[26] See B and R and the Separate Representative (1995) FLC 92-636 at 82,398
i) The attitude that each party has demonstrated to the responsibilities of being a parent
Necessarily there is some overlap with the matters which fall for consideration under this sub-heading with matters that have been discussed under preceding sub-headings. It is clear to me that both parties dearly love M, L and T and want the best for them in the future. In this sense, they are both committed to the responsibilities inherent in being a parent.
However sadly, it is my finding that the mother in the past has been remiss in how she has responded to the responsibilities of being a parent. She acknowledges that the children have not always been fed. She has had to have recourse to food vouchers in the past. I do not think that these are necessarily isolated incidents which can be overlooked. Rather I consider them to be systematic of the mother’s lack of insight into the responsibilities of being a parent.
I do not find Ms Rice to be an overweening or domineering grandparent, who is pursuing her own emotional agenda in this case. I am satisfied that she assumed responsibility for the children only because she thought it was in their best interests for her to do so. Since the children came into her care and she has become nominally at least their parent, I am satisfied that she has shown an appropriate level of insight into the responsibilities of being a parent M, L and T are well fed, well housed and well care for. They are much loved children.
j) Family violence
The relationship between Ms Robb and Mr Rice was marked by serious and protracted family violence. I am also satisfied that there has been violence between Ms Rice and Ms Robb in the past on at least two occasions. These occasions occurred at time of great emotional stress for all concerned. I do not think at this stage of the children’s lives considerations of family violence should be determinative of the outcome of the case.
k) Any Family Violence Orders
This is not a relevant consideration. There are no such orders at present.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expenses in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. It is also likely that the parties’ parenting relationship with one another will remain poor for the foreseeable future. These are not happy indictors, so far as the likelihood of there being no further proceedings between the parties is concerned.
However, on balance, I have reached the conclusion that Ms Rice’s proposals are the ones most likely not to lead to the institution of more proceedings. I reach this conclusion because her living arrangements are the more stable and long lasting. The only threat to the children’s stability, whilst living with their grandmother, is Ms Rice’s health. I regard this as largely conjectural at this stage. My concerns about lack of stability in the mother’s lifestyle seem to me to be far more concrete.
Conclusions
I have come to the conclusion that M, L and T’s interests will be best served by an order being made that they continue to live predominantly with their grandmother, Ms Rice. I reach this conclusion having considered all the relevant section 60CC factors, particularly the need to protect the children from potential neglect and also to avoid them being subject to further upset and upheaval in respect of arrangements for their care.
I have also been highly influenced by the views expressed by M to
Mr M. In the overall context of this case, I regard those views as insightful. M sees herself as being better of materially if she remains living with her grandmother. M has had experience of living with both her mother and her grandmother. Given the findings I have made in this case, I have no reason to believe anything other than that M views have a solid grounding in her own experience.
In addition, notwithstanding the great significance to them of their relationship with their mother, which is a close and loving one, I have come to the view that the children will be better parented by Ms Rice. Notwithstanding the geographical and logistical difficulties which will arise, I am also satisfied that the children will be able to maintain a meaningful relationship with their mother in future despite the fact that they will not be living with her predominantly.
Before making any parenting order I am required to consider whether the parties concerned should have equal shared parental responsibility for M, L and T. An order which provides for shared parental responsibility requires that parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Given my conclusion that the children’s interest will be best served by them continuing to live with Ms Rice, is it feasible for there to be an order for equal shared parental responsibility between Ms Rice and Ms Robb, given the long-standing and deep-seated animosity between them? In terms of the distribution of parental responsibility between Ms Rice and Ms Robb, what is the best outcome for the children?
Ms Rice advocates that she and Ms Robb should have equal shared parental responsibility for the children. A position also advocated by the Independent Children’s Lawyer. Ms Robb advocates that she alone should have parental responsibility for M, L and T. No doubt her position was predicated on the basis that the children should predominantly live with her. I suspect her view will different given the decision I have made that the children should continue to live with their grandmother.
In all the circumstances of this case, I have come to the conclusion that the presumption of equal shared parental responsibility created by section 61DA should not be rebutted. I think it is likely to be in the children’s interests that those who are most interested in their well being should have parental responsibility for them. I reach this view particularly because I have concluded that the children should continue to live in P away from their mother.
In these circumstances, I think it is appropriate that the parties be required to consult with one another about significant issues to do with the children’s long term development, particularly their education. I appreciate it may be difficult for them to reach a consensus about such issues.
Pursuant to the provisions of section 65DAE, the parties do not have to consult about issues that are not major long term ones and accordingly it is not necessary for the court to make orders in respect of R and E’s care, welfare and development, which arise on a day to day basis.
Having determined that the presumption applies, I am then required to consider whether the children should spend equal periods of time and then substantial and significant time with each of the parties. For the reasons already provided I am satisfied that neither outcome is either likely to be in the best interest of the children concerned or reasonably practicable, particularly whilst the mother lives in Adelaide, which is the basis on which she has predicated her case.
For all these reasons, I propose to make orders in line with the orders sought by the paternal grandmother.
I certify that the preceding two hundred and thirty-three (233) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 14 December 2007
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