Robertson and Parnell and Anor

[2016] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBERTSON & PARNELL & ANOR [2016] FCCA 789

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the child – one child aged 10 years – parental responsibility- sole parental responsibility – application by paternal grandmother – mental health issues – where mother left court before her evidence was completed – where mother did not attend court on final hearing day.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Applicant: MS ROBERTSON

First Respondent: MS PARNELL

Second Respondent: MR ROBERTSON

File Number: SYC 290 of 2007

Judgment of: Judge Scarlett

Hearing dates: 17-19 February, 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Sydney

Delivered on: 31 March 2016

REPRESENTATION

Counsel for the Applicant: Mrs Conte-Mills

Solicitors for the Applicant: Aboriginal Legal Service

Counsel for the First Respondent: Mr Alexander (withdrew on 24 March 2016)

Solicitors for the First Respondent: Gergis Solicitors

Counsel for the Second Respondent: Ms Cantrall

Solicitors for the Second Respondent: Legal Aid NSW

Counsel for the Independent Children's Lawyer: Ms Falloon

Independent Children's Lawyer: Jennifer Weate

ORDERS

1. All previous Parenting Orders with respect to the child X born (omitted) 2006 are discharged.

2. The Applicant paternal grandmother is to have sole parental responsibility for the child X.

3. The child X is to live with the paternal grandmother.

4. The child is to spend time with the Second Respondent Father by agreement between the father and the paternal grandmother.

5. The paternal grandmother is to use her best endeavours to make arrangements with the First Respondent Mother for X to spend time with her on up to four (4) occasions each year including, if possible:

   (a)On X’s birthday, or on a day close to his birthday;

   (b)During or on a day close to the Easter weekend;

   (c)On Mothers’ Day; and

   (d)During or close to the Christmas-Boxing Day public holiday period;

   And the paternal grandmother must, as far as is reasonably possible, respect any express wish of X to spend time with the mother or communicate with her by telephone.

6. In exercising her discretion as the person having sole parental responsibility for X, the paternal grandmother may remain present on any occasion when X is spending time with the Mother in accordance with Order (5) above.

7. The paternal grandmother is to provide to the Mother:

   (a)Copies of X’s school reports and any school publication in which X is named;

   (b)Copies of X’s school photographs; and

   (c)Information about any illness or injury suffered by the child requiring admission to a hospital.

8. The paternal grandmother is to use her best endeavours to advise both the Mother and the Father about any decision she proposes to make in exercising parental responsibility for X with respect to:

   (a)The child’s education;

   (b)Any elective medical procedure that would require a general anaesthetic;

   (c)Any proposal to change the child’s residential address; or

   (d)Any proposal for the child to travel outside Australia.

9. The paternal grandmother is to use her best endeavours to ensure that X attends school regularly. 

10. Any obligation on the paternal grandmother created by these Orders with respect to X’s time with the Mother, or his communication with the Mother, or the provision of information to the Mother, is conditional upon the Mother advising the paternal grandmother of any change to her residential address or her telephone number.

11. The Mother must not attend at X’s school except with the express consent of the paternal grandmother that has been provided both to the Mother and the school.

12. The Mother is restrained from telephoning the child.

13. The Mother is permitted to send the child cards, gifts and letters via the address of the paternal grandmother and the paternal grandmother is to retain discretion as to whether the child is to receive the card, letter or gift.

14. No party is to use physical means to discipline the child.

15. No party is to speak critically or in an insulting manner to or about another party in the presence or hearing of the child or permit any other person to do so.

16. The Independent Children’s Lawyer is to provide a copy of these Orders to the Principal of (omitted) Primary School (omitted) within fourteen (14) days of receipt of a sealed copy of these Orders.

17. Upon compliance with Order (16) above the Independent Children’s Lawyer is discharged.

18. No order for costs.    

IT IS NOTED that publication of this judgment under the pseudonym Robertson & Parnell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 290 of 2007

MS ROBERTSON

Applicant

And

MS PARNELL

First Respondent

MR ROBERTSON

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the paternal grandmother of a boy called X who is ten years old. The Application is supported by the child’s father, who is the Second Respondent, but opposed by the child’s mother, who is the First Respondent.

2. X was born on (omitted) 2006 and is currently living with his grandmother.

3. The proceedings were held over a period of four days in total, from 17^th to 19^th February and then on 24^th March 2016. The Mother did not attend Court on the afternoon of 19^th February or at all on 24^th March. Her Counsel, bereft of instructions, was given leave to withdraw on the morning of 24^th March.

4. The Mother left the Court premises abruptly on 19^th February. Her cross-examination had ended just before the lunch adjournment and her re-examination would have commenced immediately after lunch, had she remained.

5. The Mother did not give her legal advisers any warning that she was not going to attend Court on 24^th March and her solicitor was unable to contact her. There is no explanation for the Mother’s failure to appear on that day. I decided that the matter should continue in her absence.

Background

1. The Applicant grandmother was born on (omitted) 1953. She is currently 62 years of age.

2. The Mother was born on (omitted) 1978. She is currently 37 years of age.

3. The Father was born on (omitted) 1980. He is now 36 years old.

4. The Father and mother commenced their relationship in 1995. They started living together in 1997.

5. The Mother gave birth to a daughter, W, on (omitted) 1995.

6. In 2001 the Father noticed that the Mother’s mental health was beginning to deteriorate. She would say that she could “see shadows” and she became deeply religious. The Mother’s mental health declined to the extent that in 2003 she was scheduled and admitted to a mental hospital. She was diagnosed with schizophrenia.

7. In 2004 the Mother gave birth to a child V. This child was removed from the Mother and placed in the care of a maternal aunt, by order of the Children’s Court. The older child W was also removed from the Mother’s care. The Mother was subjected to a Community Treatment Order in 2005.

8. The Father was imprisoned in 2005 and was incarcerated when the child X was born on (omitted) 2006. He was released later in 2006 and commenced living with the Mother and the child at a home unit in (omitted).

9. The parties separated in March 2006. The Mother left suddenly with the child. The Father discovered her whereabouts after about four days. He retained the child in his care.

10. In November 2006 the Mother claimed that the Father had sexually assaulted her. He was charged and refused bail. He remained in custody for 12 months.

11. On 4^th September 2007, whilst the Father was still in custody, the parties entered into Final Parenting Orders by consent in the Federal Magistrates Court. Those Orders provided:

    1. That the parties have equal shared parental responsibility for the child X born (omitted) 2006 (“X”).

    2. That X live with the mother every Wednesday from 10:00 am to 6:00 pm Saturday each week.

    3. That X live with the paternal grandmother (2^nd Respondent) from 6.00 pm Saturday until 10.00 am Wednesday each week.

    4. X shall spend time with the father (1^st Respondent) as agreed between the paternal grandmother and the father.

12. The Father was granted bail in November 2007.

13. The Father commenced a relationship with his current wife, Ms L, in 2010. They were married in 2011.

14. The child Z, the daughter of the Father and Ms L, was born on (omitted) 2011.

15. The Father and Ms L moved to (omitted) to live. X lived with them in (omitted).

16. The Father, Ms L and X moved back to Sydney from (omitted) in 2012.

17. The Father’s second daughter with Ms L, A, was born on (omitted) 2012.

18. On Christmas Day 2012 the Mother was admitted to (omitted) Hospital, suffering from the side effects of medication.

19. The child X went into the care of the grandmother on (omitted) 2013 and has mostly remained in the grandmother’s care since that date.

20. The Father moved back to (omitted) with the child in 2014. The child was later returned to the care of the grandmother.

21. On 17^th April 2014 the Mother commenced proceedings by filing a Contravention Application against the Father and the paternal grandmother as First and Second Respondents.

22. On (omitted) 2014, Y, the third daughter of the Father and Ms L, was born.

23. On 16^th September 2014 the grandmother filed the current application, seeking orders that the child should live with her and spend time with the Father as agreed.

24. On 3^rd November 2014 the Court ordered that the child’s interests should be independently represented by a lawyer in accordance with s.68L of the Family Law Act 1975 (Cth).

25. On 1^st December 2014 I made Orders by consent until further Order  providing that:

    a)The Orders of 4^th September 2007 were suspended.

    b)The child X was to live with the Applicant Paternal Grandmother; and

    c)The Mother was injuncted and restrained from removing the child from (omitted) Primary School.

26. The Court also noted that the paternal grandmother and the Father were to do all acts and things necessary to complete the intake procedure at the Sydney Children’s Contact Service so the Mother could start spending time with X at that service.

27. On 4^th February 2015, Orders were made that:

    a)The Contravention Application filed on 17 April 2014 was withdrawn;

    b)By consent, the Mother and Father were to undertake supervised urinalysis to detect the presence of illicit drugs;

    c)The Mother was to do all things to complete all intake procedures for supervised time with the child at Sydney Contact Centre;

    d)The Independent Children’s Lawyer was to apply for funding for appointment of a Court Expert;

    e)The paternal grandmother’s Application was listed for Final Hearing on 17^th February 2016 to continue until 19^th February 2016; and

    f)The application was listed for Interim Hearing on 13^th May 2015.

28. There was no Interim Hearing on 13^th May 2015, but a further date of 18^th August 2015 was set for an Interim Hearing.

29. On 28^th August 2015 Ms A, Clinical Psychologist, was appointed as Court Expert to prepare a Report.

30. The Report was released to the parties on 25^th January 2016.     

Final Hearing

1. The Final Hearing commenced on Wednesday 17^th February 2016 and continued until Friday 19^th February. The commencement of the hearing was delayed, due to the late arrival of the Mother. The Applicant paternal grandmother gave oral evidence on that day and was cross-examined by Mr Alexander of Counsel for the Mother and Ms Falloon of Counsel, for the Independent Children’s Lawyer.

2. On Tuesday 18^th February the Father gave oral evidence. He was cross-examined by Counsel for the grandmother, for the Mother and for the Independent Children’s Lawyer.

3. The Mother’s cross-examination commenced that same day and continued on the following morning. The Mother’s cross-examination continued until the lunch adjournment. She was to be re-examined after the adjournment but left the Court and took no further part in the proceedings.

4. The Applicant paternal grandmother gave evidence that her son buys things for X but there is no Child Support Assessment. She is currently on a Newstart allowance through Centrelink.

5. She expressed the view that X has stability and security living with her. She said that the child was far too frequently absent from school. She believed that the child should spend time with his mother on special days such as his birthday and at Christmas and Easter.

6. The grandmother was critical of the Mother for not spending time with the child when she had the opportunity. She said that the Mother had been able to see him since December 2014 but she had only seen him four times.

7. The Mother is an Aboriginal woman of the (omitted) Nation and deposed that it is important for her to teach X about his Aboriginality.[1]

   [1] Affidavit of Ms Robertson 2.2.2016 at paragraph [36]

8. The Father was a confident and assertive witness. He was frank in admitting his previous involvement with illicit drugs and was firm in his view that he had acquired a responsibility to care for his current wife and their three children.

9. The Mother’s evidence, by comparison, was concerning.

10. In cross-examination by Mrs Conte-Mills for the grandmother, she proposed that X should live with her and spend weekends and half the school holidays with the Father. She said that she had come to Court “for the protection of X” and that she wanted “full custody” of him. She expressed a fear of physical assault on the child or sexual abuse from other children.

11. Despite the fact that her children W and V had been removed from her care by the Department of Family and Community Services, she said that there was nothing she would do better as a parent. In fact, the Mother went to say that she was suing the Department for the wrongful removal of her children. Those proposed proceedings are yet to commence, she said.

12. The Mother said that she was currently on anti-psychotic medication which is injected, because she is subject to a Community Treatment Order.

13. The Mother admitted that she tried marijuana but, surprisingly and contra to other evidence, she said that she had not used any other illicit drugs since.

14. The Mother went on to say that her source of income was a disability support pension on the basis of a diagnosis of schizophrenia. Her explanation for this was that she had an “induced psychosis”. She said that she was put into a psychosis at (omitted) Hospital as a result of some medication she was given.

15. In cross-examination by Ms Falloon of Counsel, the Mother agreed that she was “an organised person”. Ms Falloon then asked her why she was late for court on the first day of the hearing, and her reply was that her boyfriend was working, had come home really late, or early in the morning, and had trouble waking up in time:

    He only got an hour’s sleep after working all night, and we had trouble getting ready on time for that reason.[2]

    [2] Transcript 19.2.2016 page 213 at lines 16-17

16. The Mother said that the man concerned had been her boyfriend for about a month. He did not live with her but had stayed with her the night before so that he could come with her to court. He was in fact present in court when the Mother was giving evidence.

17. The Mother was adamant that she would get the child to and from school on time. She said that she could pick up the routine that they had in 2012.

18. When the Mother did not return to Court after the lunch adjournment, I made the decision that the proceedings should be adjourned, as the Mother’s evidence was incomplete.

19. The proceedings were adjourned until Thursday 24^th March 2016 and the Court Expert, Ms A, gave oral evidence. She was cross-examined by Ms Falloon and then by Mrs Conte-Mills of Counsel. Ms Cantrall of Counsel, for the Father, elected not to cross-examine Ms A.

20. In the course of her evidence, Ms A affirmed her view of the Mother expressed in paragraph [101] of her Report that:

    It is also evident that she has consistently lacked insight into her own mental health symptoms, been non-compliant with medication, and that she continues to believe that she is the victim of a conspiracy and mismanagement by mental health professionals.

21. If anything, the positive view of the grandmother that Ms A expressed in her Report was strengthened by her oral evidence.

The Chapter 15 Report

1. The Report in this matter was prepared by Ms A, a Clinical Psychologist. It was completed on 18^th January 2016 and released to the parties on 25^th January.

2. For the purpose of her Report, Ms A interviewed the following people on 24^th November 2015:

   a)The Applicant paternal grandmother;

   b)The Applicant’s granddaughter, Ms R (aged 20);

   c)The Second Respondent father;

   d)The Father’s wife Ms L;

   e)The child X;

   f)The Applicant’s grandson B (aged 12).

3. The Mother was unable to attend that day and was interviewed on 10^th December 2015.

4. The Report is most comprehensive, extending to some 234 paragraphs over 53 pages.

5. In her Report, Ms A said the grandmother had reported to her about the Mother:

   Because Ms Parnell has allegedly suffered with serious mental health issues and has been using several drugs, Ms Robertson has reportedly withheld X at times due to her concerns that Ms Parnell was not capable of caring for him…

   …Additionally, Ms Robertson claimed that Ms Parnell has had the opportunity to spend time with X every Monday and Thursday after school since December 2014 but that she has only taken advantage of this on three occasions, one of which reportedly only occurred because Ms Robertson ran into Ms Parnell at (omitted) and suggested that Ms Parnell spend time with X then. Similarly, she claimed that Ms Parnell has been able to call him three times a week for the past 12 months but she has only called him four or five times.[3]

   [3] Report 18.1.2016 page 6 at [15]

6. Ms A described her interview with the Mother, saying:

   During the initial stage of the interview, Ms Parnell was defensive and she refused to answer any questions about her recent involvement with the criminal court or her mental health issues. Instead, she claimed that these issues did not have any relevance to the court proceedings regarding X….

   Nevertheless, she remained quite defensive throughout the interview, and she provided answers that were either vague or minimal and she lacked insight.[4]

   [4] Ibid page 13 at [52]

7. Ms A referred in some detail to what she described as the Mother’s “longstanding mental health problems”[5].

   [5] Ibid page 15 at [64]

8. The Mother denied that she had either substance abuse issues or mental health issues, although Ms A had access to the subpoenaed material, which contradicted the Mother’s assertions:

   According to self-report, Ms Parnell has only been intoxicated with alcohol once or twice over her life, which apparently occurred in her twenties. Similarly, she claimed to have only experimented with cannabis on a few occasions during her adolescence and not since. I note that the documentation indicated heavy cannabis use and recent admissions to the police.[6]… 

   Interestingly, Ms Parnell also denied that she has ever been asked by FACS to engage in drug testing or that the Department have ever had concerns about her using substances or the impact that may have on her parenting capacity. I note that this is not consistent with the records perused.[7]…

   In sum, Ms Parnell denied any drug use at interview but this is not consistent with the collateral documentation, which suggests a lengthy history of polysubstance abuse, with recent use of crystal methamphetamine and cannabis. Given the addictive nature of crystal methamphetamine, it seems likely that the use is ongoing, especially in the absence of any formal intervention[8]…

   At interview, Ms Parnell declined to answer any questions about her criminal history despite acknowledging that she was unable to attend the first interview because she had to appear in Court regarding a criminal conviction[9]…

   Ms Parnell disclosed that she does not want to be on injections, that she does not feel that she has any mental health problems and that she would prefer to reduce her dose of medication and cease medication entirely.

   In sum, it seems that Ms Parnell has had a serious and enduring mental illness, namely psychotic disturbance, and that her lack of insight and poor compliance with treatment has necessitated a CTO[10] for injections of an antipsychotic medication. She remains of the view that she does not need medication.[11]

   …Curiously, in the current assessment, Ms Parnell denied having any mental health problems over the course of her life. She claimed that her mental health team have told her only mentally ill people do not see their mental illness, but she is of the view that her mental health problems have been fabricated. Although she is aware that she has been diagnosed with Schizophrenia, she claimed that other mental health practitioners have suggested that she might have Bipolar Disorder or a Personality Disorder, which she opined supports her view that they do not know what they are talking about, that they make up excuses, that she has not had any mental illness and that medication does not do anything.[12]

   [6] Ibid at [65]

   [7] Report 18.1.2016 page 15 at [66]

   [8] Ibid pages15-16 at [67]

   [9] Ibid page 16 at [68]

   [10] Community Treatment Order

   [11] Ibid page 17 at [69]-[70]

   [12] Ibid at [70]

1. Ms A went on to state:

   In sum, it is evident that Ms Parnell has experienced longstanding problems indicative of a psychotic illness, namely severe delusions, hallucinations, erratic behaviour and disorganised thinking. Although one psychiatrist made a provisional diagnosis of schizotypal personality disorder (SPD), all other health professionals have diagnosed Schizophrenia. I concur with their diagnosis of chronic Schizophrenia (DSM V; 295.90) as Ms Parnell has experienced recurrent episodes of florid psychotic disturbance, with both hallucinations and delusions that by definition exclude the diagnosis of SPD…It is also evident that she has consistently lacked insight into her own mental health symptoms, been non-compliant with medication, and that she continues to believe that she is the victim of a conspiracy and mismanagement by mental health professionals. At present, she is still of the view that she has no mental health problems at all, that she should not be on any medication, and that she is simply being misunderstood.[13]

   [13] Report 18.1.206 page 22 at [101]

2. Ms A described the Father as responsive, seemingly open to questioning, a reliable historian, compassionate and showing no indication of malice. She went on to say:

   Moreover, he was well-able to reflect on his own faults. Mr Robertson was both oriented and alert and he did not demonstrate any overt evidence of significant psychopathological symptomatology that would have interfered in the assessment process.[14]

   [14] Ibid page 28 at [128]

3. Further, Ms A stated:

   …it seems that Mr Robertson had a somewhat difficult childhood as a result of his father’s alcohol abuse and aggression, though he was reticent to focus on the negative aspects. It seems likely that his parents’ reduced capacity to guide him has affected the course of his life.[15]

   …Mr Robertson had a lengthy period of polysubstance use, commencing in adolescence, which included cannabis, amphetamine, cocaine and heroin, Notwithstanding occasional cannabis use, Mr Robertson has allegedly been abstinent from all other drugs for the past 11 years. He has not engaged in any formal rehabilitation but his difficult experience of withdrawal has seemingly been a powerful deterrent. If the length of abstinence is accurate, he would be considered at low risk of relapse.[16]

   In sum, Mr Robertson does not appear to have any entrenched mental illness, although he likely has dysfunctional personality traits, including antisocial features.[17]

   [15] Ibid page 29 at [133]

   [16] Report 18.1.2016 page 31 at [141]

   [17] Ibid at [145]

4. The Father said of his relationship with the Mother:

   …Mr Robertson described a longstanding dysfunctional and conflictual relationship with Ms Parnell but he denied being the perpetrator of family violence. Rather, he claimed that he ended the relationship after she had him assaulted and that they no longer communicate. He described a close and supportive relationship with Ms L.[18]…

   Mr Robertson described himself as an engaged and caring father to X who engages in appropriate discipline and child-focused routines. While he acknowledged that he has not been in a position to provide stability for X, he expressed sadness about that, and claimed that they have managed to develop a close relationship regardless of the living arrangements. Given that he is of the view X is stable and happy with Ms Robertson, he is of the view that he should remain living with her and spending time with both he[19] and Ms Parnell.[20]

   In sum, Mr Robertson expressed serious concern about Ms Parnell’s capacity to care for X as a result of her mental health issues, substances use, instability, unreliability, the people she associates with and her proclivity to aggressive incidents with others.[21]

   [18] Ibid page 31 at [149]

   [19] sic

   [20] Ibid page 33 at [157]

   [21] Ibid page 34 at [163]

5. Ms A interviewed the child X, who was open to being interviewed alone. She described the child in this way:

   There were no obvious problems with concentration or sustained attention, nor were there any problems with receptive or expressive language. His activity level appeared to be within the normal range. X seemed well able to articulate his thoughts and opinions and he was seemingly open in his response style. There was no indication of coaching, although he seemed cautious about saying anything negative about either parent.[22]

   [22] Report 18.1.2016 page 36 at [176]

6. Ms A noted that the child said that he felt emotionally closest to his grandmother, followed by his father and then by his mother, but he was reluctant to rank them 1, 2 and 3, choosing instead to label them as 1a, 1b and 1c.

7. X described his grandmother, Father and Mother in this way:

   Interestingly, X claimed that he lives with Ms Robertson because her home is the closest to the school. He described his grandmother as being ‘awesome’, because she lets them play games, watch TV sometimes, and she cooks and cleans and takes care of all the children. If he gets into trouble from his grandmother, he is reportedly sometimes put into the corner but he denied being smacked by her. Ms Robertson apparently sometimes shouts but he denied ever being scared of her.

   Mr Robertson was described by X as being awesome as a father. He said that Mr Robertson takes them camping, to parks, and that he enjoys spending time with his father each weekend and during part of holiday. If he gets into trouble from Mr Robertson, he is reportedly not allowed to play games and he occasionally gets a smack on the bottom. He said that Mr Robertson is not strict and that he has never been scared of him. X described Ms L in similarly positive terms.[23]

   [23] Ibid pager 37 at [180]-[181]

8. When asked about his experience of his mother, X said that he had been scared at her home because the Mother’s (then) friend “looks weird”.

9. Further:

   X claimed that he does not see his mother often but that it is only sometimes that she comes. He said that he only sees his mother a couple of times a year and that she has telephoned him, but he said that every time she calls him there are other people at her house but he did not know who they are. He said that she does not call very often at all. Furthermore, he opined that Ms Parnell only sometimes does what she says she will and that he feels somewhat sad when she does not.

   …X said that he feels safer when Ms Robertson was there and that he said that he would feel unsafe if Ms Robertson was not there with him in Ms Parnell’s company. He pointed out that he particularly fees unsafe when Ms Parnell has friends over that he does not know.

   When X was asked who he considers to be reliable and safe and who he can count on, he said his father and grandmother to every question and not his mother. When he was asked who he feels relaxed with and happy with, he said his grandmother and his father. When he was asked who would help him get ready for school and get him to school reliably, he said his grandmother and Ms L, and Ms Parnell sometimes but that sometimes she tells him to stay home but he did not know why…

   With regard to his expressed wishes around parenting arrangements, X said that he wants the arrangement to remain as it is now, so that he lives with his grandmother and spends time with his father. When he was asked whether he would like to see his mother more, less or the same as he does now, he said that he would like to have ‘no time’ with her and that he would not like to spend any overnight time with her. X said that he would not feel as happy or safe with his mother as he does with his grandmother or father. He claimed that he would feel safe if his grandmother, father or Ms L was present but not at a contact centre where he did not know the people who were supposed to be looking out for him. He understood that Ms Parnell wanted to see him more but he said that the reality is that she does not really. Upon further exploration, X said that her words do not really match her actions whereas his grandmother’s and father’s words do match their actions.[24]

   [24] Report 18.1.2016 page 38 at [182]-[187]

10. Ms A went on to consider the child’s maturity and level of understanding[25] and said at paragraph [188] of the Report:

    In sum, X impressed as being quite a mature boy who was able to articulate his opinions. There was no evidence of coaching, nor was there any indication that he was influenced by Ms Robertson or Mr Robertson to hold negative views of his mother. Indeed, he seemed keen to present a positive view of his mother and their relationship. However, as the interview continued and he became more relaxed, X disclosed feeling unsafe with his mother and he indicated that he was not able to depend on her.[26]

    [25] Family Law Act 1975, s.60CC(3)(a)

    [26] Report 18.1.2016 pages 38-39 at [188]

11. Ms A interviewed Ms M, the Assistant Principal of the child’s school, over the telephone. Ms M gave a very positive view of the grandmother’s care of the child:

    Ms M described X as being happy when he is at school. She said that she has known him for four years, that he seems to absolutely his grandmother and that he talks mostly about her at school. Ms M said that she has absolutely no concerns about X’s presentation or safety or wellbeing, and that she has not had any cause to make a notification to the FaCS…She said that he is provided with a very healthy lunch, that he is always clean and well presented in his uniform and that she has never observed him to have any signs of abuse or neglect.[27]

    [27] Ibid page 39 at [189

12. It was Ms A’s opinion that it would be in X’s best interest to remain living primarily and permanently with his grandmother, to spend time with his father and not to spend any time with his mother. Her assessment of the Mother’s capacity to care for the child was not positive:

    Unfortunately, Ms Parnell’s chronic schizophrenia, her ongoing substance abuse, poor insight in to her mental condition and her lack of compliance with medication are serious impairments to her capacity to provide assiduous care for X. It seems inevitable that Ms Parnell will continue to have poor insight and be non-compliant with medication, to have further episodes of florid symptoms, continue to use drugs and to be involved in a criminal lifestyle, thereby placing herself and others in her care at significant risk of harm.[28]

    [28] Ibid page 47 at [232]

13. The Court Expert made eleven recommendations, which are reproduced in full:

    1.  That X live primarily and permanently with Ms Robertson;

    2.  That Ms Robertson have sole parental responsibility for X;

    3. That X spend time with Mr Robertson on weekends or during school holidays only, as and when approved by Ms Robertson;

    4. That X not spend any time with Ms Parnell until the age of 18 when he can then decide.

    5. That if Court decides that X should spend time with Ms Parnell, that the time be supervised by (omitted) Contact Centre, and that the frequency be limited to twice per year;

    6.  That Ms Parnell be restrained from telephoning X;

    7. That Ms Parnell be permitted to send letters or photos to X via mail that are vetted by Ms Robertson for appropriateness;

    8. That Ms Parnell and Mr Robertson be allowed access to X’s school reports, should they desire them;

    9. That Ms Robertson work with the school and abide by any suggestions they have to improve X’s attendance;

    10.That the parties be restrained from discussing the legal proceedings with X;

    11.That (the) parties be restrained from denigrating the other parent or any member of the family.[29]

    [29] Report 18.1.2016 pages 52-53 at [234]

Submissions

1. The Independent Children’s Lawyer had submitted a Minute of Proposed Orders, but Counsel for the ICL submitted a revised Minute on the afternoon of 24^th March. Ms Falloon conceded that the Minute had been revised after consideration of the oral evidence of the Court Expert.

2. It was submitted that the Court could be in no doubt that the paternal grandmother was the appropriate person in the particular family constellation to have parental responsibility for the child X. She has been the one to take parental responsibility for the child very seriously.

3. The Assistant School Principal, Ms M, told the Court Expert that she had no concerns about the child’s presentation or safety or wellbeing in the care of the grandmother, whom she saw as completely dedicated to the child.

4. Ms Falloon submitted that there should be no doubt that the grandmother should have sole parental responsibility for the child and that the child should live with her and spend time with the Father on a regular basis.

5. It was submitted on behalf of the ICL that there might be four occasions each year, in the light of the oral evidence of Ms A, that the grandmother might arrange for the child to spend some time with his mother, although not a contact centre. The evidence is that the Mother does not have the capacity to care for the child whilst the grandmother clearly does.

6. Ms Cantrall of Counsel who appeared for the Father submitted that her client was in a position to support the orders as sought by the Independent Children’s Lawyer, but sought two further orders. She submitted that the matter had become an undefended hearing after three days of fully defended hearing before the Court.

7. The additional orders sought by the Father were that the Mother should refrain from telephoning the child but should be permitted to send the child cards, gifts and letters. Otherwise, the Father supported the Orders sought by the Independent Children’s Lawyer.

8. Ms Cantrall submitted that the orders proposed provide the best balance between meaningful relationship and risk that is achievable in the difficult circumstances in this case. It was the Father’s case that essentially unsupervised time between X and his mother would expose X to unacceptable risk.

9. The unacceptable risk, she said, is built on three factual issues:

   a)The Mother’s mental health;

   b)The Mother’s drug use and antisocial behaviour; and

   c)The Mother’s parenting capacity.

10. Ms Cantrall stressed that the Mother showed a lack of insight into the present situation, including the Mother’s history of having her two elder children (from a different father) removed from her by the Department of Family and Community Services.

11. It was also submitted that the Court should give weight to the views expressed by the child himself. It is clear that the child’s relationship with his grandmother is a close and nurturing one, and the Father does not wish to disturb that relationship. The Father asserts that he has a close relationship with X, which he has been able to experience more in recent years now that he is not in custody.

12. Ms Cantrall said that those relationships could be contrasted with the relationship that X has with his mother. The Mother has been unavailable or unable to be there for the child.

13. It was further submitted that it would be a major change to remove the child from the care of his grandmother. He is settled with her, he has expressed a view that he wishes to stay living with his grandmother and there is no real evidence in opposition to that position. To change X’s position at this point in time would lead to great uncertainty for him and would not be in his best interests.

14. Mrs Conte-Mills of Counsel submitted on behalf of the grandmother that she had no quibble with either of the submissions on behalf of the Father and the Independent Children’s Lawyer. The grandmother agreed with an order suggested by the Bench that the parties should ensure that the child attends school regularly.

15. It was further submitted that it was not ever the position of the grandmother that the child would not have a relationship with his mother, and she had gone out of her way in many respects to try to contact the Mother to arrange for her to spend time with the child. It was the evidence of Ms A that the grandmother has the capacity to be protective of the child, even if he were in the care of his father.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, so far as they are relevant.

Conclusions

1. This is a matter where there is almost unanimity between the positions taken by the Applicant grandmother, the Second Respondent Father and the Independent Children’s Lawyer. It is only the Mother who has taken a different view, namely that the child should live with her.

2. The Mother’s abrupt and unexplained departure from the Court premises on the third day of the hearing is perplexing. It is not clear whether she decided not to pursue her claim or to withdraw altogether. In any event, her evidence was largely complete, save for re-examination by her Counsel.

3. The Mother’s evidence was unsatisfactory in many respects and at times unbelievable. Her oral evidence bore out the views of the Court Expert that the Mother lacked insight into her mental health issues. Her history of drug use and antisocial behaviour raise serious questions about her parenting capacity, and her denial of any responsibility in the removal of her two elder children by the Department of Family and Community Services is hard to accept.

4. The Mother’s claim that she had an “induced psychosis” is hard to accept, and her claimed intention to sue the Department of Family and Community Services appears to be no more than a fantasy.

5. It is significant that the Mother has spent very little time with the child in recent years. I accept the evidence of the grandmother that approaches have been made to the Mother to spend time with the child but she has, for the most part, not availed herself of the opportunities offered.

6. The paternal grandmother’s evidence supports her claim that she has the child’s best interests at heart and that she provides the child with stability and security. She appears cognisant of the need for the child to have a meaningful relationship with each of his parents. I am satisfied that there is no risk of harm to the child if he remains living with her.

7. The Father’s evidence was frank and confident. He now has a young family by his wife Ms L and he is committed to those young children. He is also committed to spending regular time with X. I am also satisfied that there is no risk of harm to the child at the times that he will be in his father’s care.

8. The Court Expert Report prepared by Ms A is a detailed and comprehensive document. I found it to be very helpful, and Ms A’s oral evidence only strengthened the conclusions she reached in her Report.

9. The views of the child emerge clearly from the Report. He is happy where he is, living with his grandmother, and he feels safe and secure with her. He also feels safe and secure in the care of his father. He clearly has a warm and nurturing relationship with both his father and his grandmother.

10. The same cannot be said for the child’s views about his mother. It is clear that he does not feel happy and safe in his mother’s care and he has no wish to live with her. It is sad that he has formed the view that he cannot believe what his mother says, as her words do not match her actions. The evidence from the Report is that the child has reached a state of maturity and understanding that would allow the Court to have confidence to give considerable weight to his expressed views.

1. The grandmother is a (omitted) woman and has taken steps to teach the child about his indigenous heritage. This would appear to be a further way for the child to bond with her and must surely be in his best interests.

2. The evidence to my mind is overwhelming that the best interests of this child lie with his living with his grandmother, as he has been doing, and spending time with his father on weekends and during school holidays, again as he has been doing. The grandmother should have sole parental responsibility for X.

3. I am satisfied that it is in X’s best interests for the Court to make the orders proposed by the Independent Children’s Lawyer, together with the two additional orders proposed by the father.

4. I will also make an order requiring the paternal grandmother to use her best endeavours to ensure that X attends school regularly. The evidence from Ms A about her interview with Ms M, the Assistant Principal of the child’s school makes it clear that the grandmother is taking a responsible attitude to the child’s education.

5. To my mind, there can be only one answer. This child will live primarily with his paternal grandmother. He will spend time with his father by arrangement with his grandmother. The Mother will be able to spend time with the child on up to four occasions each year, being on or about:

   a)the child’s birthday;

   b)Easter;

   c)Mothers’ Day; and

   d)Christmas.

6. The arrangements for the mother to spend time with the child are to be made by the grandmother, at her discretion.   

7. I order accordingly.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 13 April 2016