Rodeo and Pryor and Anor
[2009] FamCA 1166
•23 October 2009
FAMILY COURT OF AUSTRALIA
| RODEO & PRYOR AND ANOR | [2009] FamCA 1166 |
| FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child FAMILY LAW - CHILDREN - With whom a child spends time |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Rodeo |
| RESPONDENT FATHER: | Mr Pryor |
| RESPONDENT MOTHER: | Ms Matthew |
| FILE NUMBER: | PAC | 1201 | of | 2008 |
| DATE DELIVERED: | 23 October 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Waddy J |
| HEARING DATE: | 25-29 May 2009 and 24 -25 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Harris |
| SOLICITOR FOR THE APPLICANT: | Messrs Adams & Partners |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Cook |
SOLICITOR FOR THE FIRST RESPONDENT: | Macarthur Law Group |
| SECOND RESPONDENT MOTHER IN PERSON: | Ms Matthew |
Orders
All previous orders in relation to the children T born … September 2000, A born … October 2002 and E born … June 2006 (“the children”) are discharged.
The father, the mother and the maternal grandmother shall have equal shared parental responsibility for decisions concerning the long term care, welfare and benefit of the children, save that the father shall determine the appropriate school or schools the children shall attend after input from the mother and the maternal grandmother.
The father, the mother or the maternal grandmother shall respectively have responsibility for decisions as to the children’s daily care during periods when one or more of the children is or are living with or spending time with anyone each of them.
The children shall live with the father.
Subject to the orders following, the mother and the maternal grandmother shall share between them, spending time with the children as follows:-
(a)During School Term Time:
(i)On the 1st, 2nd, 4th, 5th, 7th, 8th, 10th and 11th weekends of each term in such manner as they may agree (and failing agreement the maternal grandmother shall have the odd numbered weekends and the mother the even numbered weekends as listed above).
(ii)Such weekend contact shall commence and end as agreed between the parties and failing agreement shall commence at 10.00 a.m. Saturday and conclude at 5.00 p.m. Sunday subject to orders 16 and 17 below, and such changeover point unless otherwise agreed shall be Woolworths C .
(b) School holidays following Terms 1 and 3:
(i)One half of the school holiday periods following terms 1 and 3, which half is to be agreed upon between the mother and the father (and failing agreement, the mother and the maternal grandmother shall share the first half of the school holidays in even years and the second half of the school holidays in the odd years) and changeovers shall occur at noon on the nearest Saturday to half way through each school holiday period at Woolworths C or such other place as may be agreed to by the parties.
(ii)The whole of the school holidays following term 2 as agreed between the mother and the maternal grandmother and failing agreement as to the first half to the mother and as to the second half to the maternal grandmother.
(iii)School holidays shall be deemed to commence at noon on the day following the last day of school and to cease at noon on the day before the first day of the next term and shall include so called pupil free days.
(c) At such other times as agreed between the parties.
Christmas school holidays:
The father, the mother and the maternal grandmother shall each be entitled to spend time with the children in the Christmas school holiday period, as agreed between them or failing agreement then:
(a)The mother shall spend time with the children for the first two weeks of the Christmas school holidays in every odd numbered year and for the second two weeks in every even numbered year.
(b)The father shall spend time with the children for the first two weeks of the Christmas school holidays in every even numbered year and for the second two weeks in every odd numbered year.
(c)The maternal grandmother shall spend time each year with the children commencing at noon on the fifth Saturday of the Christmas school holidays and ending at noon on the last Saturday of the Christmas school holidays.
(d)Christmas holiday periods shall be deemed to commence at noon on the first Saturday of the holidays. The first two week holiday period shall end at noon on the third Saturday of the holidays and the second two week period shall commence at noon on the third Saturday of the holidays and end at noon on the fifth Saturday of the holidays.
Children’s birthdays
The parent who has a child that celebrates a birthday whilst in his or her care and control shall allow the other parent on that child’s birthday, if desired, to deliver presents to that child and spend the hours:
(i)if on a school day from the end of school to 7.00 p.m. with all three children; and
(ii)if on a weekend from noon until 7.00 p.m. on that child’s birthday.
(iii)or, at such other times as agreed between the parents.
Father’s Day & Mother’s Day:
Father’s Day and Mother’s Day are to be spent with the father and the mother respectively and the parent otherwise having care and control of the children shall make the children available to the father for Fathers Day and to the mother for Mother’s Day from 10.00 a.m. for the balance of the day until 7.00 p.m.
Communication – telephone contact
Whilst the children are with the father, each child shall have liberal telephone and email communication with the mother and the maternal grandmother and for such purpose the mother and the maternal grandmother shall telephone the children on a landline or mobile telephone number or email address to be provided by the father.
The father may telephone the children on those occasions when the children are spending school holiday time with the mother and maternal grandmother and for such purpose the father shall telephone the children on a landline or mobile telephone number to be provided by the mother and/or the maternal grandmother.
Mother’s contact:
The children are not to be taken outside the State of New South Wales without the prior agreement in writing of the father or order of the Court.
If the mother is residing in Melbourne:
(a)The mother shall collect the children at Sydney airport from the father or his agent and accompany their travel to and from Melbourne, or
(b)Alternatively, the maternal grandmother may accompany the children to and from Melbourne.
(c)The mother shall pay the costs of interstate travel incurred for the children.
The mother and the maternal grandmother may agree that the maternal grandmother may spend time with the children during any of the times that the mother has contact with the children.
Changeovers
For the purposes of changeovers pursuant these Order the mother and/or the maternal grandmother or their agent or agents shall collect the children from and return the children to a neutral place as agreed from time to time between the relevant parties but failing such agreement then at Woolworths C at the commencement and conclusion of the mother’s and/or the maternal grandmother’s time with the children.
School Reports – Events
Each of the mother and the maternal grandmother shall be permitted to contact any school in which the children or any one of them are or is then currently enrolled and each is authorized to obtain reports, newsletters and any other correspondence from such school in relation to the children or any one of them, together with school photos at the cost of the party requesting them. Both parents, grandparents and other relatives may attend any school functions that parents and or grandparents are invited to attend.
Sport
Subject to Order 17, unless otherwise agreed between the parties, if the children or any of them become engaged in organised sport on Saturday morning then contact shall take place from after the conclusion of that sport until Sunday evening at 5.00 p.m. The father shall give due and timely notice to the mother and the maternal grandmother of the times and location of the sport and the mother and the maternal grandmother are at liberty to attend the sporting event.
The father shall be entitled to nominate one winter sport only for each child of and over the age of seven and consult with the maternal grandmother as to the practicality of any child engaging in winter sport at weekends given the geographic spread of the residence of the parties. Such involvement is not to impose any further kilometres to be travelled by the mother or grandmother without their agreement.
Contact telephone numbers and addresses
Each party is to keep the other parties informed of their residential addresses and current telephone contact numbers.
Medical emergencies
In the event that any of the children suffers an ongoing medical condition or requires medical attention while spending time with or living with any of the parties then that party shall ensure that:
(a) The other parties are notified as soon as practicable.
(b)As soon as practicable the other parties are to be provided with the full details of the practitioner or medical facility that the child attends.
(c)The medical practitioner or medical facility shall be advised that the other parties are to have access to the child’s medical records and the information contained with them upon request by a party.
(d)The father is to nominate a general practitioner for the children and authorise the practitioner to divulge details of the children’s health, illness, treatment or diagnoses to the mother and to the maternal grandmother.
Non Denigration
Each party is restrained from denigrating any other party in the presence or hearing of any of the children and shall not permit any other third person to denigrate any other party, in the hearing of or presence of the children or any of them.
Each party is restrained from the excessive consumption of alcohol for 12 hours prior to and during any period while the children are in their care.
Each party is restrained from themselves consuming or allowing any third persons to consume illegal substances whilst the children are in their respective care.
Each party is restrained from physically chastising or physically disciplining the children in any way.
Each party is restrained from leaving the children or any of them unsupervised at any time.
Within three months of the date of these orders each of the parties is to enrol in a Parenting After Separation course nominated by the Director of Court counselling at the Parramatta Registry of this court, and thereafter complete the course.
That pursuant to s 65DA(2), and s 62B:
(a)The particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and
(b)The legal representatives of the parties are requested to assist in explaining to their clients:
(i)the obligations that the orders create; and
(ii)the consequences that may follow if a person contravenes the order.
That exhibits may be returned after the expiration of 65 days.
Documents on subpoena may be returned after the expiration of 65 days.
The matter is to be removed from the active pending cases list.
These orders are to take effect on and from Saturday 7 November 2009 at noon.
IT IS NOTED that publication of this judgment under the pseudonym Rodeo & Pryor and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1201 of 2008
| MS RODEO |
Applicant Maternal Grandmother
And
| MR PRYOR |
Respondent Father
| MS MATTHEW |
Respondent Mother
REASONS FOR JUDGMENT
In this matter, Ms Harris of counsel appeared for and on behalf of the applicant, maternal grandmother, Ms Rodeo. Mr Cook of counsel appeared on behalf of the respondent father, Mr Pryor, previously known as …. Ms Matthew, the respondent mother, appeared on her own behalf. The matter was heard over seven days commencing 25 May to 29 May, and then again on 24 and 25 August 2009.
The proceedings were commenced by the maternal grandmother of the three subject children, T, born in September 2000, now aged nine years, A, born in October 2002, now aged seven years, and E born in June 2006, now aged three years and four months.
For those who may need to consult it later, I add a very short history.
SHORT HISTORY
The maternal grandmother was born in 1957, and is now 52 years of age.
In 1976, the mother was born. In 1978, the father was born.
In 1998 the father and the mother commenced a de facto relationship, living with the maternal grandmother. In 1999, the mother and the father moved into a property in B.
In September 2000, the first child of the relationship was born.
In October 2002, the second child was born.
In November 2005, the mother and father separated for several weeks.
In 2006, the eldest child, T, commenced school at F Public School.
In June 2006, the mother’s third child, E, was born.
In November 2007, the mother and father finally separated.
APPLICATIONS
The application before the court was that of the maternal grandmother, and she relied upon the orders she then sought, together with affidavits filed 24 March 2009 and 21 May 2009. She later gave some oral evidence in August. Also, she relied upon the affidavits of Mr JK and Mr TM filed 7 April 2009. Both deponents gave evidence and were cross-examined.
The respondent father relied on his response filed 8 May 2008, his affidavit filed on 20 March 2009, and an affidavit of his mother, referred to here as the paternal grandmother, filed 20 March 2009.
The mother, who appeared for herself, relied upon her response filed on 4 August 2008, her affidavits filed on 22 May 2009 and 14 August 2009, and the affidavit of Mr L, the mother’s recent partner, filed on 2 May 2009.
In addition, and most importantly, were the family reports of Mr O, a family consultant, dated respectively 30 June 2008, 1 April 2009 and 18 August 2009.
COMMENTARY
The parents of the children are Ms Matthew and Mr Pryor, who, as I said, was previously known by another name. The mother is 33 years old. The father is 31.
The parents’ relationship commenced in 1998, when they lived with the maternal grandmother, who then lived in Sydney’s south, with a lifelong friend, Mr TM, together with her other two children, Y and X. In 1999, the parents moved to a property at B.
The father described the relationship between himself and the mother as “stormy.” The mother conceded that both she and the father used illegal drugs. He readily admitted to using marijuana with the mother, and she swore she was addicted to it. The mother claims the father also used heroin and gave it to her as well. She swore, and I quote;
I believe it’s the marijuana, heroin and finally the last straw was ice, that made our relationship volatile, nasty and vicious.
Whilst the mother was working, she admitted she was having trouble paying the bills due to the parties’ addictions. She claimed the father had difficulty holding down a full-time job. The parties separated, according to the mother, for a period of five months, from November 2005. Only a week into the separation, the mother discovered she was pregnant with a third child, E. She testified they had recommenced their relationship in April 2006. Towards the final end of their relationship, the mother testified that both she and the father were taking ice at least once a week. There were constant fights.
On 17 October, the mother, who was and remains employed by an events company, travelled to Queensland for a week to work. She left all three children in the father’s care. Several days later, the father suffered a severe migraine headache. He felt he could not adequately care for the children. He wrote a letter to the school clerk at N Primary School, where the eldest child attended, asking that the clerk should contact the paternal grandmother.
Such were the financial difficulties, no matter how caused, that the home phone had been disconnected, and the father’s mobile phone had no money on its pre‑paid account. The school was across the road from the residence. In accordance with the father’s request, the school telephoned the paternal grandmother and she collected the children and took them to her home for the night. Several days later the mother returned from Queensland, having been informed by the father of the incident. It was one of the incidents reported to the Department of Community Services, to which I will make reference later.
In November 2006, the parties separated again. The father went to stay temporarily with his cousin in Queensland and obtained work there. The children were left with the mother. The father claimed he had moved to Queensland to stop his marijuana habit, which he had been unable to do in the former matrimonial residence because of the mother’s continued dependence on the drug.
The father claimed he kept in contact with the children by returning home from Christmas Eve until Boxing Day, 2006. Furthermore, he moved in to look after the children while the mother worked over the Australia Day long weekend. He then returned to his work in Brisbane. Again, at Easter time, the father returned to the mother’s home to care for the children, while the mother worked at a Sydney event.
Whilst in Brisbane, the father claimed he spoke on the telephone to the mother and the children several times a week. The mother’s version was once a fortnight and only if she made the call. On the father’s return to Brisbane he telephoned the mother and she informed him that she had met someone else and she was not getting back together with the father.
In June 2007, the father returned to Sydney to see the children and celebrate the youngest child’s first birthday. He claims that when he visited the mother’s home, it was very untidy, and the mother explained she was being evicted from the house, as she was three months behind in her rent. Moreover, the gas had been cut off because she had not paid the gas bill. The paternal grandmother visited the house at the time and produced photographs of the state of the house and the kitchen, etcetera. They bore out the father’s description. Faced with this evidence the mother claimed that she was in the middle of moving. In April 2007 the mother began dating Mr L, her present partner. By June 2007 she and the children had moved in with Mr L and she swore they “tried to be a family”.
The eldest child, T, attended S Primary School. The second was in local day care. The third child was at home with her. (I refer to the children sometimes by their names and sometimes by their position in the family because eventually, if this judgment is published, all the relevant names will be given pseudonyms. It’s not disrespect.) By June 2007 the father had moved back to Sydney and the mother’s evidence was that in the short time she was living at S the father had taken the children at least four times for the weekend.
THE EVENTS AT THE END OF 2007 AND FOLLOWING
Towards the end of 2007 life for the children was to change drastically. In October 2007 the mother was asked to go to Victoria to work for two weeks and, she added, for a second event. On her own admission she left all three children in the care of her younger sibling, Y. On 8 October 2007 the mother told the maternal grandmother that she was leaving the three children with Y. Late that afternoon the mother informed the maternal grandmother that she had failed to respond to a notice of disconnection concerning the gas supply and did not know what to do.
The next day the maternal grandmother made a small payment to have the gas reconnected. Before the two weeks had ended the maternal grandmother received a call from her son, Y, to the effect that the mother had asked if he could stay and look after the children for an extra two weeks while she went to work in Adelaide. Y told the maternal grandmother “I don’t think I can cope with it for another two weeks”. The maternal grandmother contacted the mother and offered to care for the children if the mother wanted her to. The mother told the maternal grandmother “just give them to [the father] until I get back”.
The eldest child was at that time enrolled at the S Primary School. The father received a telephone call from the mother’s cousin whilst he was at work as a tradesman. It was 10.30 am on 23 October 2007. The mother’s cousin told the father “Your children are being cared for by [Y] and [the mother] has been away for two weeks and she is planning on staying away for longer. You need to contact [J]” - that is a contraction of the name of the maternal grandmother - “as soon as possible because [Y] is returning to [G]”.
The father had lost his licence to drive and had not regained it at the time of the hearing and asked the paternal grandmother to drive him to the mother’s residence at S to collect the children. She agreed. At about 4 pm the father and paternal grandmother arrived at S. Y was there, as were the maternal grandmother and the maternal great-grandmother. The maternal grandmother said, “[the mother] has abandoned the children. The children are too much for me to handle all together and [Y] can’t cope either”.
Later she is reported to have said, “[E]”, the baby, “is a monster. I can’t cope with that. He is forever screaming”. As a result the father became the full-time carer for the children. He had to resign from work. He applied for emergency accommodation and for a supporting parenting benefit and the family tax benefit. On 1 November 2007 he was offered a townhouse of three bedrooms for three months whilst permanent accommodation was sought. The father received a great deal of help from the paternal grandmother in the following week, who drove him to appointments and helped him purchase groceries and other necessities.
On 2 November 2007 the father telephoned the maternal grandmother to inform her of his new temporary accommodation where he could enjoy the support of his mother and brother. The maternal grandmother complained it was too far for her to travel to see the children. Thereafter the maternal grandmother telephoned the father constantly, he said, to check on the children and as he put it “almost to the point of harassment”. On 24 November the father allowed the maternal grandmother to take the children home overnight. She did not take E, the youngest, saying “he’s too much for me to look after along with the two older children”. She returned the other two children to the father the next evening.
The next weekend the father and the three children were taken to the paternal grandmother’s house in regional New South Wales for the weekend. The children also went to a Festival with their cousins. On 2 December the father received a call from the mother asking why the father’s phone had been switched off. He told her there was no reception for the phone at the paternal grandmother’s house. He added he had told the maternal grandmother where he and the children had been. The mother stated to him “I don’t talk to Mum any more. I’m angry at her for not taking care of the kids. I’m back at [S]”. In her affidavit the mother deposed “My mother and I became very distant because I blamed her for me not being able to see my children, although I had no one to blame but myself”.
During some part of November/December 2007 the father and the children resided in a men’s refuge. The maternal grandmother placed this at P, a suburb of Sydney. She said whilst there she had overheard the father’s case worker reprimand him concerning his fathering of E. The maternal grandmother arranged her own direct contact with the father’s case worker who then contacted her when the father had difficulties, such as not having paid his rent. The maternal grandmother then contacted the father about paying his rent.
After Christmas the father and the children returned to P. By arrangement the three children then came into the maternal grandmother’s care. It was agreed they would stay with her until Sunday, 6 January 2008. This was the last time all three children lived together.
On 13 January the maternal grandmother asked if the eldest, T, could spend another week with her. The father agreed. On Saturday, 13 January, the maternal grandmother asked the father if T could stay until Tuesday. It was said her car’s brakes needed repair. The father agreed.
On Tuesday, 16 January 2008, the maternal grandmother telephoned the father and said “My brakes are not properly fixed, so I have to keep [T] until they are fixed properly”. Unhappily and reluctantly the father agreed for the sake of his son’s safety, he said. On Friday, 19 January, the father was asked to leave the accommodation at P. The authorities had gone through the father’s possessions and found a bong there. He claimed it was packed by him in his belongings. He had had it for a long time before and forgotten about it. The paternal grandmother drove to collect him and moved him into a caravan park in D. As his step-father had recently undergone open heart surgery it was not possible to move to the paternal grandmother’s home with three young children.
On 20 January 2008 the father telephoned the maternal grandmother. He told her he was not using drugs now and that he had the children in his care. The maternal grandmother offered to keep T for a few days so the other grandmother could collect him during the week. The father agreed T could stay, but stated he wanted him home by Australia Day to attend his cousin’s birthday.
On Tuesday 22 January 2008 the paternal grandmother complained to the father that the maternal grandmother had been refusing to allow the paternal grandmother to pick T up.
Finally, there was an agreement that he would be picked up on Thursday, 24 January 2008. On that day the father, his brother and his mother drove to the maternal grandmother’s residence, owned by Mr TM. He stated that the maternal grandmother and T had gone shopping. Attempts to telephone the maternal grandmother were unsuccessful. The father, his brother and his mother all drove to the Police Station. A Police Constable tried to telephone the maternal grandmother. Her phone was unanswered.
Shortly afterwards the maternal grandmother phoned the paternal grandmother who complained of the caller’s abuse and handed the phone to the Police officer. That officer advised that T should be returned and that the only way the maternal grandmother could keep T was if a court ordered it. Again, the next day the Police officer told the father that that advice had been repeated to the maternal grandmother. The Police had visited her house, advised the return of T, but could not remove T themselves as there was no custody or enforceable order in place.
On 11 March 2008 the maternal grandmother instituted these proceedings seeking orders that included all three children living with her.
On 23 June 2008 the father and the maternal grandmother entered into interim orders by consent. These interim orders provided for T to spend time with the father and for the two younger children to spend time with the maternal grandmother and the mother. They were to have alternate weekends, so each weekend the children would be together with one carer or other - of the father on the one hand or the mother and maternal grandmother on the other.
Further interim consent orders were made for the Christmas holidays as occurring in New South Wales. Thereafter the earlier interim orders were to be reinstated.
The result has been that the three children have not lived together since, at least, 31 December 2007, but have spent some holidays and alternate weekends together. The maternal grandmother gave evidence that in accordance with the order of 23 June 2008 changeovers were primarily undertaken by the two grandmothers. This ceased after the second set of orders and since 19 December 2008 the maternal grandmother claimed to have undertaken all of the travel for changeovers each weekend.
The trip from her residence to D takes her about an hour each way depending on traffic. The mother had contributed towards the maternal grandmother’s expenses of this travel, some $280. Neither the mother nor the father hold current licences to drive motor vehicles. The paternal grandmother testified that apart from the period between January and Easter when she was not able to do so, she would deliver the children to her counterpart and the maternal grandmother has redelivered the children to her. They have thus been sharing the driving. The paternal grandmother has been transporting A to school each morning and collecting her most afternoons. There is no public transport from the present residence of the father and the children.
The father and the two younger children reside there at present with his mother and his step-father while they are building a new home for themselves on another part of the block. It’s a flat of two storeys built into a very large shed some 120 metres long. That is the shed. The paternal grandmother’s evidence was the father and children can reside in the flat so long as they pay their way. At present the father pays $200 per week which includes rent and a contribution to board and everything else. The premises would be available to the father rent free apart from the fact he would have to support himself and contribute to the electricity.
I want to refer at this point, just briefly, to the evidence of the family consultant. I shall go, in detail, to the opinion and evidence of the family consultant shortly. However, it can be summarised, if rather tragically, from his progressive reports from 30 June 2008 to 31 March 2009, nine months later, to, finally, 14 August 2009. In June 2008 reports, the family consultant wrote:
“[The children] need to live together or they will be significantly affected by their separation and loss. The mother, father and maternal grandmother will have to take responsibility for the consequences for the children’s emotional development. The family conflict has impacted on the older two children. They were outwardly depressed and distressed.
For the health of the children the parties need to resolve this matter as soon as possible.”
The family consultant concluded with three basic statements:
“The three children should all live together as a sibling group; the adults need to consider the best interests of the children or deal with the consequences in the future; the parents need to consider their responsibility to the children, not disruptive conflict.”
In the next report in June 2009, the family consultant remarked on the level of animosity between the father and the maternal grandmother. The “vulnerable” children presented, at that date, as being aware and reactive to the toxic emotional environment they inhabit with their grandfather, father and possibly the mother. T and A consistently demonstrated their close sibling attachment and emotional dependence on each other.
By 14 August this year, the family consultant reported the children presented as more confused and estranged by the continued family hostility and ongoing separation. The children’s emotional and developmental needs continued to be disrupted and marginalised by the ongoing family hostility. The children’s needs were, and are becoming, more complex and problematic as the children were left in their current uncertainty. T and A had both been traumatised by their exposure to the adult hostilities and negativity. It had shaken their trust in family members.
The family consultant’s opinion was that the children need stability, together with a responsible and effective parent (my emphasis) that could meet their emotional attachment and developmental needs.
The children, he said, need to live together in the least harmful and most stable environment with a parent who can facilitate the children to spend more time with the other family members. Whichever parent, the children will need the support of the grandparents.
I do not want to go too deeply into all the details of the evidence because, although I have had a transcript of it all prepared and took notes of every part of it, the evidence, naturally, related to the past. The problem is in the present and, for the children, a deteriorating situation.
I would preface what else I am about to say by this: I have no doubt that to the best of their abilities, their relative abilities, and they vary, each of the parties and their witnesses, that I saw, love the children. I do not believe that anyone has set out to harm the children. I think each of the parties has acted, so far as I can see, in what they considered to be the best interests of the children.
I will go shortly to the Department of Community Services document, which has numerous entries and that, I think, gives a good enough survey from a relatively disinterested, in the legal sense, source of what they were told by informers and the parties and so on. It is not a pretty story.
But I have tried to stress to all the parties, who I am pleased to see here in court, that it is imperative that the children get what the family consultant has so strongly recommended. That is, to be all together in a stable environment without negativity between the parties who all love them. There are various ways of showing the love of children and I will deal with those as I come to the law, (and it is pretty detailed), because love is not just an “oofy” feeling. Love has its practical aspects and that includes, stability, a roof over their head, proper food, proper attention to school and proper clothing, not being put in the middle of disputes between any adults.
I repeat: Not being put in the middle of any disputes between any adults. Now I cannot order you to stop the conflict because it cannot be enforced. You either can or you cannot.
I was going to go to each event, but I do not think it is going to advance matters because the children are now in the circumstance where the sociologist and psychologist say they want to be together, they want to be stable, they ought to be encouraged by each party to see the other parties. The grandmother on the mother’s side is a very important part of their life, the mother is an important part of their life, the father is an important part of their life and their paternal grandmother is an important part of their life.
Both the grandmothers have gone out of their way to support their children: out of their way. There have been arguments in each family: between the mother and the maternal grandmother, and even between the father and the paternal grandmother. The grandparents have stepped into the breach when the parents have been unable to drive the children. The children are now a much greater handful to handle than they were at the start of proceedings. Whoever provides where the children are to live is going to have to take on a Herculean task because A and T have been kept apart so long. A thinks she is the king pin in dad’s household. T has enjoyed being king pin on his own at his maternal grandmother’s home.
I do not doubt that that is very comfortable for you. But they know what has happened, and as the maternal grandmother said so honestly, A had said says to her and many, many times, “You stole [T] away from us.” That is a child’s view. I am of the opinion that the parents have to face the fact that their previous drug abuse has caused enormous anxiety to their parents, and enormous financial cost to their parents, even to the extent of suffering verbal abuse for what they did. And what is so challenging about this case is it is not a question of children not being cared for by anybody. The way love for them is shown, needs some guidance, and the cost of that love to the parties is to give up the fighting and conflict.
I know the orders I am going to make are going to be very unpopular, and I have taken a long while to come to them. But I have come to them on the view that no one can “win” this case. There is no winning or losing. But the children can lose so much more if we do not listen to what the family consultant has said, that they need to be together, they need to be stable and they need to be taken out of conflict, and they need to live with one parent or the other.
THE APPLICANT’S CASE
Now, I will just turn briefly to the applicant grandmother’s affidavit back in March 2009. She set out the time of an earlier separation in 2006, when the parties had separated and the mother had gone to Queensland to work, and that was when, I suppose, a question arose about the father’s migraine. She was aware that later on the father relocated to Queensland for some part of 2006 and early 2007, and that he left the children with the mother. Then the children went to V Primary School.
I have not had time to go through every school they have been taken to, nor am I going to go through every move they have made. I am going to accept that no party would want to keep moving the children around that much, and I am going to accept each party is going to rise to the challenge of these three gorgeous young children, who are such a handful. The three parties must be alert to the fact that children of these ages, possibly even E now, are well able to create stories, see the reaction and repeat them. All must be wary of being manipulated by the children. All have a great challenge, but the rewards will be very great if you can make it work.
There are people who can help make it work. Each of the parents has a wonderful mother, who can help them. They have other responsibilities and they have other lives. The maternal grandmother works prodigious hours, seven in the morning till six at night. The paternal grandmother has had a sick husband, and she works in the business with him. Both grandmothers have other children, possibly other grandchildren. And those are great plusses. It is essential that the parties bury the conflict and work through it.
There are mediations. There are family consultants available for free. There are local mental health people. There is a course I am going to order both the parents to attend: Parenting After Separation. That will help. Fifty thousand couples a year go through family breakdown, and it does not have to be as painful as it has been for the parties. It does not have to be as disastrous for the children. It really does not.
The maternal grandmother rehearses the rest of the history, which I have already set out, and she told the police what was going on. The police came to her in January, did a welfare check, and then left the child with her. She says at paragraph 57:
“[the father] and I do not communicate well.” (She feels that) “he does not wish to discuss with me issues regarding the children. I find when I attempt to discuss issues with [the father], he becomes verbally abusive toward me.”
I would think that he could swear the opposite. That if he is making the call, he finds the maternal grandmother verbally abusive. That is one of the sacrifices the parties must make in foregoing the conflict. Listen to the message, not just rise to the words, if you can. If you want to say something that is not positive, what I suggest is you learn the names of the children: T Pryor, A Pryor, E Pryor – and count the names out on your fingers. Calm down. If you still feel like saying something yourself, count again. Because you must see the world through the eyes and lives of the children. Who really cares who wins an argument when these three little children can have their life wrecked by the conflict.
The maternal grandmother reports bad language used to her by the father. The paternal grandmother reports bad language used by the maternal grandmother. That is sad enough of itself, but tragic where the two grandmothers are the real hope, underneath, to let these children experience being together again and relating to their mother and their father. I do not believe the children need mothering or fathering by the grandmothers. The parents must both come up to their roles, and they may only come up to it with grandparental support. They have done the hard yards. They must be able to instruct the parents and guide them on how to do the hard yards. The mother who has a new partner, who appeared to be a responsible person, and he can assist as well.
The maternal grandmother expressed her concerns concerning the care of the children, which she set out fully. Most of them had been reported previously to the Department of Community Services, and I intend to go through that summary. That will be sufficient. None of the parties gave me a chronology, which has made this matter more difficult.
The orders sought by each party I will come to in more detail later on, but they are this basically; from the father’s point of view, the children live with him; from the maternal grandmother’s point of view, they live with her; and from the mother’s point of view, that they live with her (a position supported by her mother, at least through part of the case, and I think at the end).
The maternal grandmother filed a further affidavit in May, and set out details of the four bedroom house that she shares with her friend and housemate, Mr TM. Currently, she and T and Mr TM each have their own bedrooms, and there is a spare room. The two youngest children could share that bedroom if they came to live with her. She proposed that A transfer to the K Public School, where T is currently attending. He is doing quite well there. E would be enrolled at the local Child Care Centre, where the maternal grandmother works, and could commence immediately. It conducts its business at K Primary School premises and provides before and after school care.
The maternal grandmother presently drops T off at school. T comes to childcare after school and remains there till she finishes. She can assist with the children’s homework. They can also interact with other children at the after school care.
There was a problem about E being immunised. There was a problem about his birth certificate. That was, I think, fixed up at the last hearing. So I have deleted that order that has been sought.
The maternal grandmother gave evidence of the children not wanting to go from where they are to someone else. The parties give the same evidence, the children not wanting to go. I just stop to ponder: I wonder if that is because children do not like being in the middle of an argument, particularly knowing the argument is about them, and whether something cannot be devised by the four or five adults, if we put Mr L in there, as to how that can be made more pleasant for the children. They have lost their brother and they have lost their solid base together, which they deserve.
Mr TM’s affidavit recounted that he had known the maternal grandmother for 35 years, and she had been living in his house for in excess of eight years. They are not romantically involved; have separate bedrooms; he runs a businesses; he has come to know the children; he does not spend a lot of time with T because he works seven days a week, but T does help him with the gardening, and so on. He sees A and E every fortnight when they spend time with the maternal grandmother. A follows him around and appears to enjoy spending time. And he is happy for the children to remain living with him if the children are placed with the maternal grandmother.
The father’s response to the paternal grandmother’s application sought that the three children live with him, together with various subsidiary orders. He set out a history of what had gone on, some of which I read earlier.
At paragraph 62 of his affidavit, the father refers to interim consent orders and contact times. At that time he was living in a three bedroom home at D. He moved there because the other lease expired. Either the mother or the maternal grandmother claimed that there had been about six moves until the father had settled into the house where he lives presently. The father was concerned that sometimes the children are overwhelmed with gifts from their maternal grandmother. It upsets him that he cannot afford to do the same sort of thing for them.
The father does not have a driver’s licence, so his mother takes him to do the shopping each week. He claims that they have a very good relationship, which the paternal grandmother corroborated. Since the father swore to his affidavit in March 2009, he has moved into the premises I described earlier and in which his parents have lived for a long time. Both he and the maternal grandmother talk and disagree about E’s potty training. I do not place any reliance on that disagreement.
The father disclosed that he had been seeing a psychologist weekly, to assist with his depression. He misses his son very much. He is confident he can remain drug-free. He finds the psychologist assists him in many aspects of his life. I am going to come to those reports, although the father was rather outraged that they had been subpoenaed and disclosed to the court and the parties. Part of dealing with problems, is to face them head-on, and get some help for them. This the father has done.
The father lost his licence for a string of driving offences, and it is suspended at the moment until 2014. I could add, although, that has not stopped him driving in the past. However the father is appealing his last suspension and seeking a good behaviour bond, so that he could get his licence back as soon as possible.
The father set out the amount of contact that he had had since the court orders have been in place. He then addresses why the children should be in his care. He points out that E has lived with him since he was aged one year old and they both have a close bond. He worries about the implications that separation from him might have on E, due to his young age.
T is currently at before school and after-school care, between 7 am and 6 p.m. each day. If T were to reside with the father he would be able to attend the same school as the other children, and spend his time with the father after school. Although such time spent with the father would presently be subject to his attendance at TAFE where he is undertaking a course.
The father’s evidence was that he hopes to get work which would fit in with the school hours of the children, by seeking employment at a school. To obtain and keep such employment, he would need to stay completely drug free.
The father’s mother, the paternal grandmother, deposed to the visit she had to the mother’s house, the condition she found it in, the photographs she produced, and the fact that gas had been cut off. Later, in cross-examination, she detailed the large amounts of money she had paid out for the children to the parents and the way that the money had been repeatedly squandered by the parents satisfying their own addiction or craving for drugs, to the great detriment of the children, themselves and their families.
This hearing marks the beginning of adulthood for the parents. Either they are going to be responsible parents now, or it is likely the children will be taken away. DoCS has the file. Either they rise to the challenge, getting the advice and help of the grandparents, or these children will effectively not have a mother and a father. And every child deserves a mother and a father. They also deserve two grandmothers. Part of the worry I have had about the children going to the maternal grandmother, is that she would cease being the grandmother and I find become virtually the mother. I also find with the strained relations between her and the father, which may or may not improve, the children may well lose out on seeing as much as they should of their father.
That is a sufficient recapitulation of the evidence. On the whole, I found each person tried to tell the truth. When they were pressed upon it, the differences seemed to me to be matters of hope, hoping it was different, and the perception that their case was stronger or better than the others.
As far as the drug taking is concerned, as I indicated earlier, both parents have been on drugs. The grandmothers each knew it. The paternal grandmother put it well when she said, (and she could well have, I think, included the other grandmother being in a similar position as herself), “I have the drug problem. I have to pay for it. I gave the parents money for the necessities and they squander it on drugs.”
Exhibit K shows that the paternal grandmother had transferred, in seven years, not including rent or other miscellaneous payments, some $20,322 to the father, and $4488 to the mother. Also through her bank account, records of which she produced, the rent that she paid for them was some $14,860. That is one of the aspects of love - doing the hard miles.
A large file from the Department of Community Services came into evidence. It corroborates a great deal of what the parties claimed.
There is in the file a report history and I believe it is worth going through, as those who read this judgment must know what is as accurate a background as can be obtained. I believe this is the quickest way to do so. I realise not every detail may be accurate because of what the parties have told the reporter, or the reporters themselves has said, but the overall thrust of the reports corroborate a great deal of the claims of the parties and affords a chronological overview of the life of the family. Some of the reports may have been made vindictively or to enhance perceived advantage in the litigation. Little was tested by way of oral evidence or cross examination.
Risk of harm report 1, 20 February 2003:
“The natural mother and natural father were involved in a verbal argument in front of the children. And listed under domestic violence: they feared the safety of the children.”
Risk of harm report number 2, level 3, 13 May 2003:
“Domestic violence. Natural mother and natural father involved in a verbal argument. The police spoke to both the mother and the father who agreed to attend counselling and try and amend their differences. Neither person was assaulted, there were no fears for their safety, no AVO required.”
Risk report 3, 23 January 2004:
“Child exposed to violence. The natural mother states that parent walked out on her today, leaving her with the two subject children. She and her partner constantly argue, and the natural mother hit the father with her fists when he called her names and made her angry. The natural mother stated that she and her partner use marijuana, which she believes is causing some of her problems, smokes two cones a day over the past seven years.”
The matter was closed because of “current competing priorities”.
Risk of harm Report No 4, 8 March 2004:
“Child exposed to violence. Caller states there is ongoing verbal harm, however, no signs of physical harm. The children witnessed a verbal argument. The children were sighted and presented as okay with no problems, the house was nice and tidy.”
Risk Report No 5, 12 June 2004:
“Child exposed to violence. The police attended the family residence in relation to a verbal argument over money, which had escalated due to the natural father losing his job that day.”
The father had been reported saying, ‘I wish you were dead, you have ruined my life, I can’t go out with my friends.’ The mother stated she was on the floor watching TV when the natural father kicked her in the back with his bare foot. When the mother reportedly tried to contact the police, the father grabbed the phone from her and pulled it from the wall. The mother made a statement and an interim AVO was obtained.
Subject child [T] witnessed the incident while [A] was asleep in her bedroom. The children appeared to be happy and healthy. This is the third domestic attendance within six months. The mother said she had had enough of the behaviour but would like to save the relationship, and wanted counselling.”
Risk of harm report 6, 20 July 2004, a month later:
“The father reported financial difficulties at home as a result of ongoing marijuana use. The father stated he spends $20 a day on marijuana, and also occasionally uses speed with friends. The father told the reporter there were frequent domestic disputes between him and the mother. They are believed to be verbal disputes in the presence of children. The reporter advised that the natural father mentioned going to jail. The reason for imprisonment is unknown. The father stated he gets angry easily.
The reporter stated that a service would be involved for the father for treating him for depression. The father indicated as a result of his depression, he could not work. As a result, finance was a problem. The father stated the children suffer as a result of the parents spending money. The father stated he has a poor relationship with his family, and stated that [Pryor] was the name given to him by his family. He has now changed it to […].
The court has said that the father would see another psychiatrist on 26 July ’04. Prior to this date, the service would attend the father to see how he is going.”
Risk of harm report 7, 10 August 2004:
“The reporter stated that police attended the address of the natural mother in response to a verbal domestic between the natural mother and natural father. The incident occurred in both children’s presence in the backyard of the family home. The mother informed the police she had wanted to go to the shops, but that the father did not want the responsibility of looking after children while she went out. Police arrived on the occasion and were informed by the father he had a mental health condition, was currently seeing a counsellor, and being medicated for depression.
The father addressed concerns about the relationship, however, the mother did not appear to support him. There had been previous AVO occasions in the past. However, the mother has withdrawn them in court.
Police conducted a search of the home, found it in disrepair, due to lack of commitment from both parties. Police stated the children had beds, however, clothes were throughout the home. Police sighted both children who appeared to be fine.”
Report number 8, 16 November 2004:
“Reported issue of domestic violence. Police spoke to both the father and the mother, who claim they had a verbal argument, did not want to disclose the nature of the argument, as neither of them contacted the police. Police asked both the mother and the father if there were offences committed, or threats made. Both parents said no. Cause of argument remained unknown, two children present at the time.”
Report number 9, domestic violence, 16 May 2005:
“Reporter heard an adult male screaming at the children and a loud banging. The adult male was yelling, “Get in your fucking room, you fucking bastard.” The adult male had only just returned to the home to live. Prior to this were no disruptions. The reporter stated the yelling is an ongoing thing that can happen any time of the day. The reporter was a neighbour.”
Report of Risk No 10, 28 September 2005:
“On 28 September 2005, the Elimination of Domestic Violence against Women reported that the mother’s next door neighbour had phoned the service and reported the following issues: father is constantly yelling at the mother, concerned the children are so young, father has been seen to return home legless.”
Report of Risk No 11, 24 October 2006, by N Public School:
“Inadequate supervision for the age. [T] arrived at school with a note from the father stating, ‘My daddy is sick. Could you please ring my grandmother.’ The reporter stated she attended the home where the subject child found the father on the lounge conscious but not fully capable of looking after children, obviously unwell. The reporter sighted a bong on the table in clear view, two other children in the house, a four year old and a four month old.
The reporter was unable to state what was wrong with the father. The reporter stated the house was very dirty, with the 4 year old in PJs, had not had any breakfast, the baby had not had her bottle. The reporter took all three children, with the natural father’s consent, and called the paternal grandmother who stated she would take the father to the doctor and then get the children. There was a fresh cut on the baby’s face.”
Report dated 14 November 2006, report number 12:
“[T] not picked up from school. A staff member went to the family home, there was no answer on the phone. The staff member arrived, the door was open, baby crying, no one answered the door. An ex-student riding past stated he knew the family, went inside and woke the father up. The father presented as being under the influence of drugs with dilated pupils and red eyes. The father had his baby in his arms at this stage and was asked why [T] had not been picked up from school. The father said, ‘I thought I had friends that would be able to walk him home.’
The father stated, ‘Obviously I am not in the right state. The baby was screaming and I didn’t wake up.’ The reporter did not sight [A] and has concerns about the father’s capacity to care for the children until the mother returned, date unknown. The reporter further observed small scabby scores all over the father’s face and on his legs and she suggested it may have been due to the effects of something.”
I stress the detail of such reports are untested. However I am bringing to the parties’ attention what is in the files of the Department. Innuendo is not evidence but all parties ought to know what the background is because today is the day of reckoning. Were the Department of Community Services to become involved in the future, this is the basic chronology from which they will be operating.
A secondary assessment was conducted by the CSC. They made a home visit, interviewed the natural father, and conducted a phone call with the mother. The outcome was:
“Child not in need of care. Referrals to be made to the new file as necessary to ascertain. There was a caseworker that has left who was working on these issues. Further follow up required.”
Risk of Harm report number 13 dated 21 March 2007. Reporter: anonymous. I am not going to place great weight on it, but this is what someone was saying:
“Inadequate nutrition. [T] was sent to school by himself with a note saying, ‘Could you ring his mother because I cannot get up because I have a headache,” from the father. The reporter states the house is infested with cockroaches and there is never any food. [A] is offended with boils and the doctor stated if they do not clear up in a couple of days, then he would admit her to hospital. The doctor diagnosed it as a blood disorder, stated she had to eat vegetables. The children were infected with lice that is not being treated.
Concerns about the house; in a disgusting mess. The bathroom smells of urine. The floor was not visible and the laundry was not getting done. The subject child, [A], has run away from home a few times. The police have returned her twice. The natural father no longer living with the mother and subject child, however he has access from time to time. Mother believed to smoke cannabis. Unknown as to how much.”
Report of Harm number 14 dated 19 July 2007. Risk of Psychological Harm. Reporter: Department of Health:
“Mother is due to be evicted due to massive rental arrears of over $3000, not made a payment since 4 December 2006. (Some seven months before hand.)
There have been two tribunal hearings. The mother was not available, refuses to pay rent. The mother has indicated an alternate housing arrangement. They can move in with a family or a friend. The property houses three young children. On several calls to the property the mother has not been there and the children are being cared for by young girls, approximately 16 to 17 years. The property has been kept in a poor state. The mother said she would be out of the property on 19 July ’07.
Secondary assessment: The family had moved to [ST]. No longer in the [local office] COC allocated area. No follow up done.”
I am not making an order for equal shared parental responsibility. I am making a special order. Having not done so, I still have to consider whether it will be in the child’s best interests to spend equal time with each parent. I find that it is not practicable nor possible nor advisable in this case. The children need stability. They must be with one parent and I have chosen the parent, who, on the evidence, will be in the most stable circumstances and whom I find most likely to provide effective parenting for the three children. And so there will not be an order for equal time with each parent.
Next I have to consider whether the children should spend substantial and significant time with each of the parents, and whether that would be in the best interests of the children.
I do not order substantial and significant time because of the spread at the moment of the distances apart where the parties will live. They live miles apart at the moment. What I have provided by way of time spent is Friday night till Sunday night. There will not be school time, due to the distances and uncertainties. I have provided an order for all parents and grandparents to be encouraged to attend all school functions, if they wish. I have also allocated the majority of the holiday time to the non-residential parties in recognition of the benefits to the children likely to flow to them by so doing.
CONCLUSION
I come, then, to the conclusion. I have already found that I believe that all three parties; mother, father and maternal grandmother, love the children and have tried to do the best for them.
I summarise that at the time the maternal grandmother intervened the care of the children by their parents was far from optimal, and that real doubts and worries by the maternal grandmother at that time were well placed, and that the father needed to be brought back to look after the children. I find that at that stage she offered her help and gave her help willingly, and that she was not able to (and stated that she could not) look after the three children at the one time. In a sense she took the easiest to look after, T, leaving the two younger and more vulnerable children in the father’s care.
The maternal grandmother now says that she could look after all three children, and in her evidence she offered to move to Melbourne, if the mother stayed in Melbourne, to do so. I do not believe that that would be in anyone’s best interests. But she did take and keep T with her. I find that that action had unfortunate consequences in that he has been separated from the other children for so long. However, I believe the original intentions were honourable, and that she believes that she would make a much better parent than the father. I do not share her opinion, in relation to her potential parenting of the three subject children.
It is my assessment that if both these parents put their mind to it, and the mother and the father had a bit more belief in themselves, continue to deny themselves the crutches of drugs and devoted themselves to three gorgeous children, they would have the potential to be much better parents. And they ought to be parents. The whole point of these orders is for the children to have a much better relationship with the mother and the father and the grandmothers. Others may not agree with the way I have done it, but that is my intention in making the orders that I shall make.
I am also finding as a major factor contributing to the decision, the children’s need for stability as well as being reunited. I find that the most stable environment they can be in is in the care of the father, in the rent-free accommodation he has from his mother. The paternal family has the substance, if necessary, to ensure that the children will not be wanting in shelter, food or clothing. The paternal grandmother has already outlayed a lot of money to keep the parties afloat (and the maternal grandmother has also contributed), but that is only one aspect of her help. A lot of effort and disruption to her life has contributed to achieving the best option for the children and I am of the opinion that she has the capacity and time to oversee these orders and the firmness of character to ensure the wellbeing of her grandchildren in their parenting by their father.
Having considered all the evidence, implemented the law relevant to this matter and having regard to the submissions by or on behalf of the parties, I make the following orders.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy
Associate:
Date: 1 December 2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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