RJK and BRL
[2005] FMCAfam 143
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RJK & BRL | [2005] FMCAfam 143 |
| FAMILY LAW – Children – residence – competing applications – young child – role model – child needs security and stability – where child has lived with mother all his life – primary carer – mother unable to provide child with appropriate care – child developmentally delayed – risk that child’s needs will not be met – father recognises child’s needs and better equipped to provide appropriate environment – change on residence ordered. |
| Family Law Act 1975 (Cth), ss.60, 68 |
| B and B Family Law Reform Act (1997) FLC 92-755 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | R J K |
| Respondent: | B R L |
| File Number: | PAM5407 of 2003 |
| Judgment of: | Ryan FM |
| Hearing dates: | 9 & 10 March 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 15 March 2005 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Child’s Representative: | Ms W. Langley |
| Solicitors for the Child’s Representative: | Adams & Partners |
ORDERS
All prior parenting orders are discharged.
“The child” B L-K born in 2000 reside with the father.
The child shall immediately be released by the child minding room of the Family Court of Australia at Parramatta into the care of R J K.
Contact:
The mother have contact with the child as follows:
(a)
Commencing Saturday 26 March 2005, each Saturday from
10 am until 5 pm. The last occasion of contact pursuant to this order will be 14 May 2005.
(b)Commencing 21 May 2005 from 10 am Saturday until 5 pm Sunday each alternate weekend.
(c)Commencing the first contact weekend after school starts in 2006 alternate weekend contact shall start at 5 pm Friday.
(d)Commencing with the end of term 3 2005 school holidays, for one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number (which shall include years ending in a zero) and the second half in years ending in an odd number. This order does not apply to the Christmas 2005/2006 school holidays.
(e)On an alternating week about basis during the Christmas 2005/2006 school holidays. The mother shall have the child from 10 am the day after school finishes until 5 pm Christmas Eve, then from 10 am New Years Eve until 5 pm 7 January 2006, then from 10 am 14 January 2006 until 5 pm 21 January 2006.
(f)In the years when the child is in its father’s care for the first half of the Christmas Holidays, from 3 pm Christmas Day until 5 pm Boxing Day. This order does not operate during 2005.
(g)For Mother’s Day in each year if it falls on a non-contact weekend from 9 am to 5 pm.
(h)At such other times as agreed between the parties.
For the purpose of day only contact, the father or his nominee shall deliver the child to the mother at Central West Contact Service at the commencement of contact and the mother or her nominee shall return the child to the father at Central West Contact Service at the end of contact.
For the purpose of overnight weekend and school holiday contact, the father or his nominee shall deliver the child to the mother at Central West Contact Service at the start of contact and the mother or her nominee shall return the child to the father at the same place at the end of contact.
In the event that the mother has not arrived to collect the child within one half hour of contact commencing, contact is suspended on that occasion.
Upon Order 4 (d) becoming operative weekend contact is suspended during school holidays.
In the event that contact falls on Father’s Day contact is suspended from 5 pm on the Saturday night immediately preceding Father’s Day.
Commencing 2006 if contact occurs on a weekend adjacent to a public holiday contact is extended to include the public holiday. If the public holiday is a Friday or Thursday it shall start at 5 pm on Thursday. If the public holiday is a Monday it shall end at 5 pm the Monday.
In the event that the father’s employer closes his/her business during the Christmas school holidays and the father is required to take leave the child shall remain in the father’s care. The amount of time that the child is in the father’s care during any Christmas shut down period shall not exceed one month. If the father does not travel away for holidays during this period the mother shall continue to have alternate weekend contact. If this order results in the mother missing out on contact that she would otherwise be entitled to under these orders, she will have make up contact during a subsequent school holiday period. This order is subject to Order 4(f).
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the Sunday immediately before school resumes.
(d)Years ending in a zero are defined as years ending in an even number.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the mother has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the mother has exercised contact during the second half of the holidays.
In the years when the child is in its mother’s care for the first half of the Christmas holidays, the child shall return to the father from 3 pm Christmas Day until 5 pm Boxing Day. This order does not operate during 2005.
During periods when the child is on block holiday contact with the mother the father shall have telephone contact with the child each third day between 6 pm and 7 pm. The mother shall ensure that the child is available for contact during those times.
General Parental Orders:
The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the child whilst he is in their care.
Once the child starts competition sport, both parties are responsible for ensuring that the child attends any sporting commitment whilst he is in their care.
Competition sport is defined as follows:
(a)Does not include practice games.
(b)Does not include pre-season games.
Each of the parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the child including any need for hospitalisation.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the child only.
Both parties are restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.
Counselling and Procedural Orders:
Pursuant to s.62F2 the parties attend a post separation parenting program to facilitate improved communication between them. The parenting program will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court. In the event that the program coordinator requests that the children participate in the program or another associated program the parties shall ensure that the children all appointments made for them.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM5407 of 2003
| R J K |
Applicant
And
| B R L |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Introduction
This is a residence application concerning where the parties' only child B L-K, “the child” shall live. The child was born in 2000. Since his birth, the child has lived with his mother, B R L (“the mother”).
R J K (“the father”) started these proceedings because he believes that the mother’s capacity to meet the child’s needs is limited and in the long term he can take better care of the child. Although the mother says that R J K is a good father, she says that the child is strongly attached to her and believes she provides their son with adequate care.
Chronology
The mother and father started living together at her parent’s home when the mother was 13 and the father 18. When the child was born the mother was 14 and the father 19. At the time of his birth the parties were living as a couple at the mother's parent’s home. When the parties commenced cohabitation the father had, in effect, run away from his parents' home, and with E L's (the maternal grandmother) consent, he moved in to her home so that he could reside with the mother. Although she was only 13, the mother had stopped attending school. None of the L children have attended high school to a stage where they acquire any secondary qualifications.
About four weeks before the child's birth the mother's parents discovered that their daughter was pregnant. When he learned about the pregnancy, the mother's father, S H, contacted the Department of Community Services (“DOCS”). His DOCS notification is to the following effect:
“Mr S H phoned in relation to his daughter B R L. He stated that he recently received information that his 14‑year‑old daughter is pregnant to her 19‑year‑old boyfriend, R J K. Apparently B R L hasn't been to school for the last two years. He was after some information as to what he could do about his daughter. Shane wants her to come and stay with him. He lives with his parents in a two‑bedroom flat. He says he's been off the gear for eight months. He stated that his partner, E L, let this happen. Apparently the Department of Housing has been in touch with E L, and they are going to evict her for rent in arrears. He says that the family are in need of beds and that the washing machine is broken. He suggests that I ring E L and speak to her about B R L.”
Reference in the notification to "gear" is reference to heroin. For as long as she can remember the mother's father has been addicted to heroin.
Immediately after the child's birth DOCS contacted the parties. When they did so the mother and child were still patients at Nepean Hospital. On 23 June 2000 DOCS convened a case conference of relevant agencies at the hospital. The mother attended this meeting. The minutes of the meeting are contained in the DOCS file. The minutes of the meeting record the perceived risks to the child as follows:
“Concerns expressed about the care of the child given the mother's young age and DOCS extensive involvement with the family. Risk issues identified:
(1) Mother's young age;
(2) Mother hid the pregnancy from her family and had no antenatal care;
(3) Mother had not planned for the birth of the child ‑ that is, clothing, nappies;
(4) Mother wanting to return home to her mother's where there are currently about eight other children, including a five‑month‑old.
(5) Maternal grandmother has a lengthy history with the department, including lack of cooperation, neglect, lack of adequate supervision, and non-compliance with informal undertakings.
(6) Current child at risk registered with the area Community Service, relating to the care of the mother and her siblings.
(7) If the mother was to return home, then it would be highly probable that she would be caring for all of the children including her own.
Tasks: mother and father of the child to be admitted to Tresillian for an assessment of their parenting skills upon discharge from the hospital. Given the urgency of the assessment, the referral will be made by maternity. This will mean that the department will not be provided with a report, but only a discharge summary. Also there will be no conference. Parents’ placement will be for five days only.
·A H will be the liaison person for the department.
·K H has undertaken to inform the department of the child's discharge from hospital to Tresillian, and discharge from Tresillian.
·The department to assess the living conditions of the family home prior to the child and the mother's return.
·The department to make inquiries about other alternative accommodation, ie Katherine Villa or Carramar.
·Department to make inquiries about the mother's entitlement to Centrelink payments.
·The department to assist the mother financially with the purchase of baby items for the Tresillian placement.
Tresillian documents show that Tresillian staff felt that the parents managed their baby well. They were satisfied that the mother, in particular, had sufficient child‑care knowledge to take the baby home. It is highly likely that the mother's child-care knowledge was acquired from having previously needed to care for her younger brothers and sisters. This was in circumstances where it is probable that she and her younger siblings received only rudimentary care from their parents. The DOCS file is replete with notifications concerning the unsatisfactory state of the home, reports that the children are often unsupervised and that an older child, probably initially K and later the mother were looking after the younger children. Although still a child herself, by the time she was 14 the mother had considerable child rearing experience.
Upon their discharge from Tresillian the parents resided with the maternal grandmother, E L. By then the maternal grandmother had nine children, at least eight of whom where living in her three bedroom home. The maternal grandmother has since had two more children. I am unsure whether the mother's elder sister, K and her children were also living at the home. K had her first child when only 15 and her second at 18.
The father continued to live with the Ls at their Department of Housing home until some time during 2002. While living there he, the mother's father, and her brother A, were regularly involved in criminal activity. It is plain from the records, the mother's, and maternal grandmother’s evidence that the maternal grandfather is a violent, heroin addicted criminal. He supports his heroin addiction through stealing and intimidation. On 24 February 2004 he held one of the mother’s siblings[1] to ransom for the maternal grandmother's pension money. The Police file shows that the mother and the child were present during this incident. There are numerous examples of the paternal grandfather’s criminal conduct in the NSW Police files. The maternal grandparents have separated seven times and reconciled six times. Given her serious complaints about his violence, it is surprising that the maternal grandmother so frequently reconciles. In doing so she demonstrates that she places her own needs, as she sees them, ahead of her children’s needs for a safe and appropriate home life. Not only has she failed to protect her children from exposure to drugs and criminal milieu, but also to family violence. It is in this chaotic and marginalised family that the mother acquired her child rearing skills. Unfortunately for her, her role models have been considerably lacking in parenting skills and reasonable standards of social behaviour.
[1] Event no E20270404
The father tried to blame his association with the Ls for his own criminal behaviour. However his parents, and NSW Police records[2], tell a different story. When only 16 and still at school the father first came to police notice. This was prior to meeting the Ls. On the first occasion he was apprehended with a number of young males driving a stolen motor vehicle. Not long afterwards the paternal grandfather, W K, reported to police that his son was missing. His was concerned that his son had fallen in with a bad crowd. He was right.
[2] Exhibit F
The father's next offence occurred in 1998. This involved break, enter and stealing in company; with his older brother G K. G K is a drug addict, who it appears has been instrumental in introducing the father to crime. G K, and the father's conduct during this period, is fundamentally inconsistent with the standards by which paternal grandparents reared their children. When the father joined the L household, he joined a family unfortunately already well‑known to police and welfare agencies. His parents did not know where he was living or with whom. Sadly, he embraced the L’s ways and crime became a normal part of his life. While living with the L’s he was charged and convicted of break enter and steal,[3] possess implements, take and drive conveyance. He was involved in ram raids using stolen cars. He has numerous driving offences. Presently he has owes $2,000 in fines for outstanding driving offences. In virtually all of his criminal activities he was accompanied by at least one male L, usually A or the maternal grandfather; sometimes both. As well as serious crime, the father also engaged in petty criminal activity. For example, he was convicted of stealing condoms from a Mt Druitt store one Friday night. When apprehended he was with two young women. At this time he was living with the mother at her mother’s home.
[3] Exhibit F
In May 2000 the father was sentenced to twelve months imprisonment with a nine months non-parole period. On appeal his sentence was reduced to twelve months periodic detention. Part of his sentence was served full time until he was released upon appeal. There are then a series of offences which culminated in consecutive sentences in April 2002 for 12 months home detention to be served at his parents' home. Forcing him to return to his parents' home was fortuitous. The father's parents impressed me greatly. I have no doubt that they have been highly influential from saving the father from a life of crime, and all that entails. They have an innate sense of good citizenship and have drawn the father back into their family's good values. While living with his parents on home detention the father found paid full time work as a picture framer. He has worked full time with the same employer continuously for the last two and a half years. Since returning to his parent’s home the father has not committed any further offences.
The parties stopped living together when the father was sentenced to home detention. When the father returned to his parents, the mother and the child remained living with her mother and siblings. So that the child could see his father, the mother agreed that the child and his father would have alternate weekends together. Thus, not only was the child able to have regular contact with his father, he also had regular contact with his paternal grandparents. Until then, the paternal grandparents had virtually no contact with their grandson. They barely know the mother and during the years that their son lived with the Ls, rarely had contact with him. Indeed, they only found out that their son was to father a child when, after the child was born, one of the mother's sisters informed them that the child had been born.
At some stage during the home detention year G K tried to move back into the paternal grandparent’s home. He was turned away and with police help, admitted to a drug rehabilitation centre. Sadly it appears that he did not remain.
During the father’s home detention year the mother started a relationship with her current partner, Ms M K. M K is nine months younger than the mother. M K’s family is also quite well acquainted with local police. The voluminous police exhibit is replete with their attendances to M K's mother's home. Police records reveal numerous complaints of domestic violence made by M K’s mother against her father. M K’s mother complained to police about her husband’s drunkenness, which on one occasion included driving while drunk with one of her younger siblings. There are other incidents, minor and serious, involving M K and her family. Not always as protagonists. On occasion caught up as victims in potentially dangerous situations. The point of this is that M K’s family appear to live in an environment where aggressive anti-social behaviour is a feature of ordinary life.
Not long after their relationship started, it appears that M K left her mother’s home and moved in with the mother at the maternal grandmother’s home. They have cohabited ever since. Like the mother, M K has never had paid employment. Although she formally left school in year 9, it appears that she also stopped going to school long before. M K is illiterate and innumerate. She recalls being able to read, at least at a rudimentary level when in primary school. Although enrolled in high school, she rarely attended. Basically she has forgotten how to read and write. M K has no plans to try and learn to read. Nor does she have any ambition for paid employment. She has been diagnosed with epilepsy but shows a cavalier attitude to medical advice that she must take her antiepileptic medication as prescribed in order to avoid seizures and brain damage through loss of oxygen. Last year she was hospitalised three times because of seizures after she had stopped her medication.[4] M K is quite comfortable being entirely dependent upon the mother to complete forms, for example at Centrelink, to decide which bus to catch, and any other activity that involves reading. M K is able to catch a train unaided. In much the same way as the mother, on a number of occasions M K is identified as "a person of interest" in the police exhibits. Primarily because of her involvement in unseemly neighbourhood disputes and other petty incidents.
[4] Exhibit B
When the father discovered the mother and M K's relationship he stopped contact. He told the mother that he wanted nothing further to do with her or their son. Contact stopped for about three months. To the mother's credit, she persevered and encouraged the father to resume contact, which he did.
In early 2003, not long after weekly contact resumed, the father met his current partner, P C. When the mother learnt about his relationship, she refused contact. It was the mother’s refusal of contact that was the catalyst for these proceedings.
On 28 March 2003 the father filed a residence and contact application at Liverpool Local Court. On the first court date the mother failed to attend. Thus the matter was adjourned until 6 May 2003. That day the mother arrived 45 minutes late. The matter was adjourned until 24 June 2003. Once again on the adjourned date the mother failed to attend and the matter was adjourned until 30 June 2003.
On 30 June 2003 by consent the parties entered interim parenting orders which relevantly provided that the father have interim contact each alternate weekend, supervised by his mother, H K. Contact commenced at 4 pm Friday and ended at 4 pm Sunday. These orders required the father to collect and return the child from the mother’s home. As the father did not have a drivers licence his parents agreed to collect and return the child. Contact resumed on 4 July 2003 and thereafter occurred in accordance with these orders.
The matter was adjourned to 5 August 2003. On that occasion by consent the supervision order was discharged. The matter was adjourned until 9 September 2003 for hearing. This hearing did not occur because the mother failed to come to court. The court adjourned the hearing to 4 November 2003 and once again the mother failed to attend. Further trial directions were made and the matter was again listed for hearing
Finally, the mother attended court and on 14 November 2003 further interim orders were made by consent. These orders are set out below:
i)That the child be the sole responsibility of the mother and that she have day to day care and welfare and development of the said child.
ii)That the parties share responsibility for the child’s long term care, welfare and development.
iii)That the father have contact each weekend commencing at 4 pm on Friday and returning the child to the mother at 4pm on Sunday.
iv)The father is to collect the said child from the mother’s residence and return to the same address on each occasion.
v)Transferred to Family Court of Australia at Parramatta.
Hence since mid-November 2003, the father has had contact each weekend. This reflects positively on both parties and the paternal grandparents. The paternal grandparents have demonstrated great commitment towards their son and grandson, tirelessly doing all the driving for contact and helping out with constructive advice and care. They have become an important part of the child’s life.
On 18 November 2003 the Family Court transferred the proceedings to the Federal Magistrates Court. On the first two occasions the matter was listed the mother failed to attend. Whilst the matter has been in the Federal Magistrates Court the mother has failed to attend court no less than four times. The first final hearing was scheduled for 10 February 2005. Unfortunately, the mother had failed to keep any of her appointments with Ms Vardenega, the court expert. Even an appointment made specifically to suit the mother's convenience. As the child lives with the mother during the week, this also meant that the court expert had not been able to see him. As the father's application potentially involved changing a life‑long status quo, I thought that an expert's report was essential for the final hearing. On the child’s representative’s application the final hearing was adjourned for one month and the father's interim contact orders extended so that he could take the child to see the court expert. Pending further order, by agreement his contact was extended so that it started at school on Friday afternoons and continued until the start of school Monday morning. Because the father does not hold a drivers licence and works full time, he relies on his parents' assistance collecting and returning the child for contact. Most Friday afternoons the father makes the journey with his father. It is about a half hour drive from the father’s home to the child’s school. Because the father starts work early on Monday morning, his parents collect the child after dinner on Sundays. The child stays overnight and they take him directly to school on Monday morning.
The evidence
At the hearing the father relied on the following:
·His affidavits and oral testimony;
·The affidavit of his partner, P C, and her oral testimony;
·The affidavit of his mother, H K, and her oral testimony;
·The affidavit of his father, W K, and his oral testimony.
The mother relied on the following:
·Her affidavit and her oral testimony;
·The affidavit of her partner, M K, and her oral testimony;
·Her mother, E L's oral testimony.
The children’s representative tendered a vast volume of material; predominantly produced under subpoenas from the Department of Community Service, the New South Wales Police Department and the Department of Corrective Services.
The court has two family reports both prepared by Lucia Vardanega. The first report is dated 7 February 2005, and the second March 2005[5]. Two reports were needed because the mother failed to attend the first two sets of appointments and thus Ms Vardanega was unable to finalise her investigations. After I warned the mother of the serious damage her repeated failure to attend these appointments may cause to her case, she visited the court expert. Ms Vardanega interviewed both parties, P C, M K and the child. She observed the child with both parents, their partners and the father’s new daughter O K. As part of her investigations she reviewed relevant subpoenaed documents and spoke with the principal of the local Public School. Attached to the exhibit is a drawing made by the child during the session with Ms Vardanega, referred to in the report.
[5] Exhibit A
At the end of her second report[6], Ms Vardanega says the following:
The nature of these two options is such that neither provides a clear win/win outcome for the child. This assessment indicates that the child's primary attachment is to his mother, and there would be some grieving and loss for him by being removed from her care. However, unless there are substantial changes in the mother’s lifestyle and commitment to the child, there is the risk that he may eventually suffer from some form of neglect in her care, and that optimum conditions for his development will not be assured. The long‑term implications of this option, particularly given the history of the mother's family of origin, need to be weighed up against the short‑term benefits of a continuation of the status quo.
If this is the option chosen by the court, this assessment signals the need for the mother to be supported by some form of age‑appropriate community support. It would also be advisable for her to secure some assistance with parenting skills to improve her management of the child's behaviour, rather than projecting the problem onto the child, resulting in a potentially damaging label. Given her attitude towards the current proceedings, and her poor attendance at scheduled appointments, her capacity to make a commitment to and follow‑through on such form of assistance is questionable.
Whatever option the court decides, it is imperative that the child continues to have regular contact with the other parent. Currently, this takes the form of weekly weekend contact with his father, which whilst seemingly generous is important considering the particular complications of this matter. On the other hand, should the child be in his father's care, regular contact with the mother would be essential given the nature of the assessed attachment.”
[6] Paragraphs 34-36
Ms Vardanega gave oral evidence. At the end of her oral testimony she recommended that the child should live with his father. She said this was a case where the court should emphasise the long‑term benefits for the child in a change of residence, compared to the short‑term but acute distress that the child would feel at separation from his mother.
The children's representative asked the court to make orders in accordance with the court expert's recommendation.
Ms Vardanega is a very experienced counsellor. She is well‑known to the court and in this instance her work reflects its usual high standard. Her recommendation for a change of residence weighed heavily on her, and she was conscious of the distress a change in residence it would cause the mother and child. Also, she was concerned that the father's parenting capacity has not been tested in the same way that the mother's has. Nonetheless, she said a change in residence was essential in order to place the child in an environment where he has a considerably better chance to thrive.
With respect to Ms Vardanega, I accept her evidence and am satisfied that her opinion warrants real weight. Her reports and oral testimony demonstrated thorough preparation and sound understanding of the difficult issues in the case. During cross-examination she tried to let the mother down kindly, but the import of her evidence was plain. Her evidence withstood cross‑examination, and with respect to her, her observations of the parties, M K and P C accord with my own. It must be apparent that I believe that her final recommendations must be implemented.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interest of the child is the paramount consideration. That is the overriding principle.
Section 60B is important, in that it provides the context within which the relevant s.68F(2) factors are examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
In deciding the residence and contact arrangements that will promote the best interests of a child, the court must consider the various matters set out in s.68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “Any other fact or circumstance that the court thinks is relevant.” This ensures that the infinite variety of individual children's circumstances can be addressed. B and B Family Law Reform Act (1997) FLC 92-755
Determining the child’s best interests
Because the affidavit evidence was brief, most of the relevant evidence fell from the court expert and during the parties' oral testimony.
Presently the mother lives with the child and M K at her father's home near Blacktown. The mother is a fulltime parent. Since the child's birth she has mainly lived at her mother's home. After leaving her mother’s home, she says that she, the child and M K lived with M K’s mother, her partner and siblings for approximately 12 months. However, it appears that for much of the time that the mother said she was living with M K’s mother, she was at her mother’s home at least 2 or 3 days a week. For example, the police records reveal that whenever they have needed to speak to the mother, she was at her mother's home. I am satisfied that the mother and M K lived at the maternal grandmother’s home longer than the mother claimed.
The mother says that she and M K left M K’s mother's home after very serious threats and violent altercations with a next door neighbour. The mother's next door neighbour was running a drug house next door to their home. M K’s mother’s then partner, who was shortly getting out of gaol, was somehow involved with the man operating the drug house. This person threatened her absent partner through M K and her mother. After M K’s mother was assaulted by one of occupiers of the drug house, the mother and M K left. Presently they are living with M K’s father.
I was told that M K’s father was intending to give oral evidence. However, I was told he could not attend because he was at work.
I indicated that he may be able to give his evidence by telephone. However he did not do so. I am satisfied that I should draw a Jones v Dunkel (1959) 101 CLR 298 inference in relation to his failure to give evidence. I am not satisfied that his evidence would have assisted the mother’s case.
The mother told the court expert that she and M K are hoping to rent their own place. During her oral testimony the mother explained how difficult it will be to establish themselves independently of their parents. Both are entirely dependent on social security benefits. Neither has any savings nor any plans for paid employment. The mother explained that their approaches to local real estate agents have been rebuffed because they cannot demonstrate that they have a satisfactory credit rating or a capacity to make rental payments. I infer that both of them are assessed as being high risk tenants, in the sense that they are likely to default on rent payments. The mother has applied for Department of Housing accommodation. It will be about four years before she may be offered a home in Mt Druitt, or seven years for Penrith. I am satisfied that the only way in which the mother and M K will be able to afford to live away from either of their parents home is if they are allocated a Department of Housing home. The earliest at which that will take place is in four years. In the meantime the probability is that they will move between their various parents' homes, staying there until they come into conflict with either their parents or neighbours.
Included in the material produced from the police is a report of a complaint from the maternal grandmother, E L. E L called the police and asked them to ensure that the mother did not return to live at her home. She said there had been an aggressive exchange with the mother and that she wanted the police to speak to the mother and make sure that she knew she was no longer welcome to live in her home. This happened within the last two years. It reinforces how vulnerable the mother is to the influence of others and how, without her own independent means, she is likely to move continually until she can establish her own home. As will become plain, I am satisfied that not returning to her mother's home is in the mother's and the child's best interests.
The mother's family of origin obviously weighed heavily on the court expert, and it does on me. The mother's father, as I have already found, is a heroin addict. Between them the mother's parents have exposed their children to an unsafe, unseemly and sadly inadequate childhood. I will summarise the mother’s evidence concerning her family. She has an elder sister K who is 23 years old. K left school at year 9. The mother knew that K's father is someone named Howard. The maternal grandmother disclosed that his full name. K was 15 years old and still living at home when she had her first child, G. G is 8 years old. K was 18 when she had her second child, M. M is 5 years old. G and M's father is L. K and L are separated. There is no evidence to suggest that K has ever had paid employment. I infer that she has not. The mother's elder brother A is 21 years old. He finished school at about year 7. A is in gaol. His father is C S. There is no evidence that A has ever had any form of paid employment. I infer that he has not.
The mother is 19. Her father is S H. The mother was about five years old when she met S H. The mother left school when she was in year 7. The mother has never had any form of paid employment.
N is next in line, she is 17. N lives with the maternal grandmother. N left school when she was either in year 8 or 9. Her father is S H. There is no evidence that N has ever had paid employment. I infer that she has not. J is 13. He is currently in a juvenile detention facility because of an assault. J's father is J L. Then there is F, who is 12. F also lives with the maternal grandmother. He does not attend school. The Department of Education has commenced court action against the maternal grandmother for her failure to ensure that he does so. F's father is S H.
B and the remaining younger siblings all live with the maternal grandmother. B is 10. Her father is S H. B is attending school at a local public school where she is in year 6. D is 9. His father is S H. D is in year 4 at the same local public school. N is 7. He is in year 2 at the local public school. His father is S H. P is 5. Her father is S H. P attends preschool with the child at the same local public school. Finally there is Z who is eight and a half months old. His father is S H.
I explored with the mother and her mother whether, within their family, including her extended family, anybody had completed secondary school or had paid employment. Sadly nobody has. It appears that features of the mother's family of origin include:
·Family members do not receive encouragement or the opportunity to obtain a basic education;
·That there are no familial role models that demonstrate the value of paid employment;
·That the family is entirely welfare dependent;
·They are socially are deprived and regularly in conflict with police and welfare agencies;
·No one in the family aspires to any other style of living.
One of the remarkable aspects of this case is that given her socially deprived upbringing and, from a child's point of view, unenriching home environment, the mother is kindly disposed towards her mother. She makes no criticism of the lack of opportunities given to her. Rather, she appears to passively accept that this is all life has to offer. The mother is obviously intelligent. Tragically, I was left with a strong sense that had she received support and guidance at home, been encouraged to stay at school and not burdened with responsibility for substantial care of her siblings in a fundamentally chaotic home, that life may have provided better opportunities. It was quite distressing that when she was being asked about her children, the maternal grandmother muttered under her breath, “they’re hopeless.” While the mother may be without hope, she is not hopeless. I believe her home environment has robbed this young woman of her true potential. Sadly, she is unaware of what might have been.
The father lives in private rented accommodation with his partner P C, and their new baby O. They have lived in the Liverpool area for the last eight months. The father is employed as a picture framer situated relatively close by to his home. He rides to work on his pushbike each day. He works five days a week, from 7 am until 4 pm, Mondays to Thursdays, and 7 am until 2 pm on Fridays. The father has no formal trade qualifications, but has been able to find a position which has offered him relevant trade experience, giving him the capacity for reasonably secure paid employment. The father aspires to work as a storeman. In order to do he needs the funds to obtain a forklift licence, and I infer needs a driver’s licence. Not only has he been unable to afford the few thousand dollars needed to obtain a forklift driver's licence, he is presently unable to afford to pay his fines. He is sanguine about this and realises that he needs to work hard in his current job and not leave it unless he has another secure job available. The father earns $430 per week net and pays rent of $200 per week. Hence it is not surprising that he has been unable to pay off his fines or find the money for a forklift driver’s licence.
I asked the father about his criminal antecedents. This is a case where role model issues are critical. I have already said that I do not accept the father's evidence that he fell into crime only when he met the Ls. His parents painted a different picture and where there is a conflict between his evidence and that given by his parents or, indeed, that contained in the exhibits, I prefer the evidence contained in the documents and from his parents. In addition to the matters that I have already referred to, it is important to understand that presently the father is on a two year good behaviour bond which expires in May 2005. This relates to charges laid in March 2002. He was sentenced in May 2003 to a two year suspended sentence, conditional upon entering a bond. In all probability, in addition to his parents’ influence, the settling influence that P C appears to be on him and perhaps a degree of personal maturity coming before it was too late, the good behaviour bond is likely to have contributed to the father's decision to veer away from criminal activity. With his record he must appreciate that should he falter, the prospect of full time gaol looms large.
I am afraid the father was unimpressive when dealing with his payment of child support. Presently he is in arrears of at least $1,000. I felt his evidence in relation to the payment of child support was disingenuous, and where there is a conflict in the evidence given by the mother concerning the payment of child support, and his evidence I prefer the mother’s. Thus, it seems likely that the father has not met his financial responsibility towards his son to the full extent of his capacity to do so. Although his circumstances are modest, his child support has been insufficient and reflects poorly on his parental responsibility.
Having been estranged from his parents for a number of years, the father has strongly reconnected with them. W K is 70 years old. The paternal grandparents live near Cabramatta a 20 minutes drive from the father's home. They own their own home. W K worked for 34 years at a race track as a track worker. I infer that he was a diligent and well‑regarded worker by his employer. His work ethic is a credit to him. H K is 55 years old. She is a fairly unworldly and devoted to her family. However, not so devoted that she was prepared to lie. Her approach as a witness, compared favourably with the maternal grandmother’s. The maternal grandmother, for example, told the court that the police have not been to her home since about 1999. Nothing could be further from the truth. The police records show that they are regular attendees to her home; both in relation to the grandparents and their children. Unfortunately, the view that I formed is that although the maternal grandmother came out of concern for her daughter and grandson she was less than truthful where telling the truth would reflect poorly on her or her daughter. For example the maternal grandmother called the police on 24 February 2004 concerning an incident at the home. At that time the mother and the child were living with her and present when the police arrived. The police report describes the state of her home. It is described below. I accept that the police report accurately describes the conditions in the home not only on that day but generally.
“Police made many observations about the living conditions that the children were subjected to. It was noted that 5 of the 11 windows of the external premises were all smashed in with nil fly screens attached to these windows. Police have noted on their many visits to this address that these windows have been broken for a long period of time and not fixed.
The bedrooms contained mattresses that had holes and were dirty with urine stains evident on the material. These mattresses were on the floor with two mattresses in 2 bedrooms. No mattresses were on a bed frame and none of the beds had any linen, sheets or pillows. In addition there were piles of clothing in the bedrooms and in the laundry that were either dirty or washed but not hung out…In addition Police only observed 2 minute noodles, bread, butter and vegemite in the kitchen are and most of the children were walking around with no shoes on. The weather today required warmer clothing given that the max temperature was only 20 degrees. Further to this was the fact that the carpeted area of the bedrooms and lounge room was very thin and contained numerous stains of a black colour and dirt that had been walked through the premises and never vacuumed.”
W K and H K have played an integral role in settling their son down and facilitating regular contact. Without a glitch, they turn up every week for the child. He is always returned on time. Their commitment to their grandson and son is manifest. I place real weight on the father's support for their role in the child’s life. He at least recognises that he needed their support and willingly accepts their guidance. With their strong support any deficits in his parenting capacity are adequately addressed. Were it not for W K and H K, this case would be a much closer contest than it is.
The father lives with P C. They have been together for about two and a half years. P C had a fairly disrupted upbringing. Her parents separated when she was about 12 years old and upon their separation she moved to live with an aunt. P C has a close relationship with her stepfather who she regards as her real father. They see each other fortnightly. P C has never met her biological father. She attended four different high schools in the Campbelltown district. The Department of Community Services were not involved in her upbringing. P C left school in year 10. Since then she has worked in the hospitality industry as a cleaner and as a barmaid. P C has a comfortable relationship with the paternal grandparents. However, she and the mother have a poor relationship.
P C claims that the mother abused her outside Liverpool Local Court and threatened to harm the baby she carried. In the police records there are numerous instances where police have been called for want of a better phrase, oral neighbourhood altercations involving the mother and members of her family. It appears that the mother is no stranger to aggressive oral altercations, either as the protagonist or being dragged into them. The type of scene’s described in the police records are similar to that outlined by P C. But did the mother threaten to harm PC's baby when she abused her outside Liverpool Local Court? I do not think she did. I accept the mother's evidence that the timing is inconsistent with the mother being aware that P C was pregnant, if, indeed, she was. But that is barely to the point. The real point is that I have no doubt that the mother abused P C outside Liverpool Local Court, simply because she was the father’s new partner. The mother said she was angry about remarks made by W K. However this had nothing to do with P C. P C was a bystander and should not have been dragged into the mother’s dispute with another person.
The effect of this is that the mother and P C are unable to communicate with each other. I postulated that counselling may be in order, something P C refused. Improved communication is critical in this case. I had hoped that P C, who will play a critical role in the child's upbringing, may be able to provide a conduit between the parties. Clearly, she is unwilling to do so.
Both parties desire to be competent parents and are committed to their son’s future. The extent of any deficiencies in their capacity to do so does not need restating. Both parents need to try and recover a relationship that might allow them to trust each other as parents. Were they ever able to do so, they and the child would reap enormous benefits. It is their responsibility as parents to try. Whatever the outcome of these proceedings there is nearly 14 years ahead of co-parenting. At the end of these proceedings, the parties agreed to attend confidential counselling as arranged by the director of PDR Services of this court. This is with a view to laying the ground work to repair their ruptured parenting relationship.
O K was born a few months ago. She is bottle fed and has settled into a good routine. She is a healthy and happy child. O K and “the child” are getting along, in the sense that the child relates well to O K. He understands that she is his sister and enjoys playing with her. He played happily with her during the observation sessions with the court expert. Provided he lives with his father, the child and O K are likely to strongly identify as siblings. Living in separate homes this is more difficult to achieve. When children have had disrupted upbringings the influence of siblings can be important. The child's relationship with his half‑sister has the potential to stand him in good stead in terms of his sense of identity and a close support.
I agree with the child's representative submission that the child's primary attachment is with his mother. Day in, day out, since his birth, she is the person who has been primarily responsible for his care. Although criticisms were made of the mother that at times she has placed other people's needs, particularly M K’s, ahead of the child's, this has been unintentional. I have absolutely no doubt that the mother has done everything within her ability to meet the child's needs to the greatest extent possible. She is aware that the child has emotional and psychological needs and must be fed and cared for. She has done her best. Sadly, she has been unable to meet the child's needs to the extent that he needed. This is not a temporary issue. It is fundamental to the child's future. Already there are signs that the child's needs have not been met. This was apparent in the court expert’s testing of the child's skills. I will return to this issue later in these reasons.
Although the child is primarily attached to his mother, he is also strongly attached to his father. During the report process the child found separating from his mother difficult. When Ms Vardanega forced the issue he cried for about 20 minutes, testing his father with his demands to return to his mother. The father's response is outlined in the family report[7]. Ms Vardanega reported:
“In the initial phase of the observation session with the father, the child refused to play with his father and insisted that he wanted his mother to return to the room. The father attempted to re-assure the child that he would see his mother the following day but the child appeared to secure little comfort from his father’s reassurances. the child paced about the room avoiding attempts his father made to comfort or to engage him and on several occasions made comments such as “I want to go with my Mum” in a demanding tone of voice. The child also grasped a box of tissues that was sitting on the table and threw it across the room. This hostile interaction continued for about 20 minutes. The father was observed to be patient and calm in his response to the child’s rejection.”
[7] Paragraph 16
Eventually the father was able to calm the child down, so that when P C and O K entered the room, the child played in the sandpit with them. Within moments of them joining the room, he was at ease, laughing and conversing with the adults before initiating affectionate contact with O K. This interaction shows that the child responds to his father as an authoritative figure in his life. He regards his father as someone who is important to him to whom he has a strong attachment. Otherwise, I consider it unlikely that the father could have settled the child down or that he would have engaged the rest of his family so happily. Although they do not share the same attachment that the child has to his mother, it is a strong and supportive bond.
This case does not involve the prospect of the child being placed with a person to whom he is not strongly attached. The choice is between his primary attachment figure, and a second, but key attachment figure. I have absolutely no doubt that I should accept the court expert’s evidence that in the short term the child will be distressed at separation from his mother. I do not accept that he will be distressed by separation from M K. Although she is part of his life, theirs is not a close relationship.
The father's sound relationship with the child will enable him to help the child deal with his distress at separation from his mother. Within a reasonable time frame, the child's attachment to his mother will probably lessen, and his attachment to his father and P C strengthen. In the medium term the child's attachment to his father and P C will become his primary attachments. Simply put, he is still young enough to adapt to such a change. His father’s kind approach and awareness that his son will be upset leaving his mother’s care shows that he has the capacity to help the child manage the transition as well as possible. During the recent school holidays the father returned the child to his mother early. He did so because the child was missing his mother and wanted to see her. This demonstrates supportive, not proprietorial parenting. This simple vignette suggests that the father and P C both have the capacity to meet the child’s emotional and psychological needs. It means there is good reason to be cautiously optimistic about these young people’s capacity to care for this boy.
In the family report the court expert describes the child as a happy 4‑year‑old boy. Fortunately, Ms Vardanega tested several of the child's skills in order to assess his developmental levels by reference to his chronological age. I accept her evidence, on this and other matters. She says[8]:
“…it was noted that there are a number of gaps in his developmental level. His language development seem to be delayed, particularly his expressive language which was muffled, difficult to decipher and did not demonstrate the range of vocabulary or sentence structure that would be expected for a child of his age. Children of this age usually are curious and ask questions as part of satisfying their curiosity, but that was not observed with the child. The child's play also tended to be limited and showed little creativity. Of the activities that were available to him, his preference was to play in the sandpit, sifting sand with the range of toys available. He also spent some time playing with the wooden blocks, but simply re-arranged them and demonstrated poor imagination and his ability to create scenarios with the blocks. He seemed to be at a loss in his capacity to engage in any make‑believe play, a skill which would be expected for a child of this age. The final area where this assessment highlights deficiencies is in the child's drawings. When I asked him to draw, he held the pencil clumsily and scribbled on the page. He was unable to tell me what he had drawn. I requested the child to draw me a picture of himself, and he told me "I don't know how to draw that." Finally the child drew an awkward shape and when asked what it was, he replied that it was a car. He invited me to draw windows on the car. Again, this level of drawing suggests a level of immaturity in the child's development. It would be expected that he would be using stick figures in his drawing to represent people in his drawings”.
[8] paragraph 11
The child was unable to discuss his parents' homes. The court expert produced the child’s drawing to which she makes reference. I was startled when I saw it. The drawing itself corroborates in a real way Ms Vardanega’s belief that the constellation of factors to which I have earlier made reference means that, although well intentioned, the level of care that the child has received in his mother's care concerning his educational needs, for stimulation and guidance has been sorely lacking.
The mother says, in effect, that the court should not overemphasise this evidence because within the few weeks that the child has been at school, he has come ahead in leaps and bounds. To an extent her belief is corroborated by the school principal. But the effect of this evidence is that if the child had had even rudimentary parental guidance in the areas of fine motor skills, imaginative play, conversation, reading and drawing it is unlikely that he would have shown any development deficits. If he has done as well at school as the mother suggests, this demonstrates his primary carer has mishandled his social development. Simply put, his needs have been ignored or over looked. This evidence alone corroborates the court expert’s opinion that in his mother’s primary care the child has endured real social neglect.
The mother says that it is not her sole responsibility that the child presents with the paucity of social skills apparent to the court expert. That is because since November 2003, the child has spent each weekend with his father. If his father were concerned about the child's lack of age‑appropriate development surely, the question is asked, he could have addressed the child’s developmental deficits during contact. There is some force in this submission. But the prime responsibility, as she has been the child's primary care giver, and that is a fundamental plank of her case, rests with her. The father tried to persuade the mother to allow the child to attend preschool last year. He raised his concerns about the child's development with her last year. The principal at the local Public School was concerned that this child would have the same problems as his aunts and uncles, and made a position available for the child last year. Notwithstanding the father’s and school principal’s encouragement, the mother did not allow the child to start pre-school last year. Her judgment in this respect was flawed. It is abundantly clear that the child should have started school last year. Had he done so he would be more advanced socially and developmentally. At least the father recognised that there was a problem which he sought to address. His approach was appropriate and gives me greater optimism for the child’s future if he resides with his father. At least the father will recognise when there are problems and seek assistance if he is personally unable to address the difficulty. By comparison, the mother is unlikely to be aware of her sons’ difficulties. This is a weighty consideration.
Knowing how important the assessment with the court expert was, the father attended every appointment. The court had a most difficult time getting the mother to attend. It was only when I explained to the mother that she may lose the child that she kept an appointment with the court expert. I have little faith that if the child has problems in the future, that the mother would obtain necessary assistance in a timely way. This weighs heavily in favour of the father's residence application. Particularly, because it seems likely that he will need professional assistance as he grows up. Educationally, and as most children do, with an occasional health crisis.
Violence and the family environment is an important factor in this case. In the mother's care I do not consider that there is any risk that she, will harm the child. Nor that violence features in her relationship with M K. In their relationship per se there is no risk to the child. The same cannot be said about the mother’s family and social environment. Violence is too often a feature of what is perceived as normal family life. The mother and the maternal grandmother said that S H is violent towards the maternal grandmother. I accept their evidence. The violence described in the various exhibits is at the upper end of seriousness. DOCS and police files reveal that the mother and members of her family are often involved in aggressive altercations. Recently for example, while the maternal grandmother was walking home her young children were cavorting in a neighbour’s property. Teenagers from within that property kicked her to the ground. She was kicked in the stomach, and as a result the child she was carrying was born two and a half months. This is the type of incident that occurs in the mother's and her mother's life. The mother herself has little insight into the need to extricate the child from this environment. If the child lives with his mother this type of incident, although not a daily occurrence would be a regular feature of his life. It provides the poorest of role models and gives him little chance of breaking away from the life of social deprivation that the mother has endured.
During their relationship the father threatened the mother, and on at least one occasion assaulted her. There is no evidence that the mother ever assaulted the father. The father is trying his best to stay away from the mother and from M K. There is no evidence of domestic violence in his relationship with P C. NSW Police records suggest that he has not been involved in the commission of criminal offences for nearly three years. He appears to have been able to extricate himself from a criminal milieu, and a social environment that would be fundamentally inconsistent with his capacity to provide a sound role model for the child. The father’s attitudes and personal values appear to have changed and are slowly becoming closer to those espoused by his parents. He completed his higher school certificate. He was concerned that the child should attend preschool last year. He works full time. He has chosen in P C, a person who compliments his parenting capacity, so that between them they are able to provide a family life which has at least one adult who is in paid employment, and in which the children will have their needs met.
The mother has chosen a life partner who has no ambition for paid employment and virtually no capacity to compliment the mother's parenting skills. Indeed, she probably detracts from the mother's parenting skills. I agree with the child representative's counsel that the party’s choice of partner shows the parties differing ambitions in life, and for their son.
In the long term I have no doubt that the child's best opportunities in life, and for a childhood that will enable his physical needs for security, intellectual needs for education and healthy role models, means that the child must live with his father. This order is effective immediately.
The court expert said that the child must have regular contact with his mother. I agree. Striking a balance between the child's need for contact with his mother and his need to be able to shift his primary attachment from her, to his father is challenging. If frequent contact is ordered the child will need longer to settle into his father’s home. Longer periods, which might otherwise seem appropriate, will also make his transition more difficult. It is important that he has the chance to settle in as soon as possible and that his distress at separation from his mother is minimised. Thus in the short term, the mother will have weekly day‑only contact once a week. After eight weeks, contact shall occur each alternate weekend. I agree with the court expert’s opinion that as the child is at school, contact each weekend inappropriately limits the amount of time that he has with his father. As his father's role is critically important, contact shall occur each alternate weekend.
For the same reasons block periods of contact are delayed somewhat to enable that the child to settle in with his father. If block periods of contact start too soon, the child will find it far too difficult to settle in with his father. Returning to his mother for block periods of time is likely to send a confusing message that he has returned to live with his mother. Where, in the short term, he would prefer to live. The orders provide for special occasions to be shared and eventually school holidays are divided equally. This gives the parties and child the chance to enjoy themselves without the demands of school.
Ideally the mother will try and establish herself away from her present environment. Her current family and social milieu holds her back. If anything good comes from this case, as far as the mother is concerned, it may be that before her youth is over, she sees that she is entitled to expect more from life than life has delivered to her thus far.
The contact arrangements I have made provide for contact changeover in a public place. Having invited the parties to make any further submissions concerning my intended orders the father suggested contact change over occurs at Central West Contact Service. He is worried that the mother may abuse him and that contact changeover, even in a public place may involve unprovoked unpleasantness.
I accept that there is a real risk of such occurrences. Thus, although changeover at Central West Contact Service involves inconvenience to both parties, the potential benefits to the child outweigh the inconvenience to his parents. If there are any costs, the parties shall share these equally.
I am satisfied that these orders are in the child’s best interests. Parenting proceedings are never final in the sense that children and their circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, a court should make parenting orders that minimise prospects of further disputation. Litigation is costly in emotional and financial terms. In this case there is a prospect that there will be further litigation. The mother may not accept the court’s decision and file further applications. However, as best I can I intend these orders to provide finality.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 13 April 2005
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