Salway & Hackley & Anor
[2013] FMCAfam 328
•10 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALWAY & HACKLEY & ANOR | [2013] FMCAfam 328 |
| FAMILY LAW – Parenting dispute – earlier orders made to transition child from primary care of grandmother to mother – mother having to leave Australia – child not transitioning to mother – child still primarily attached to grandmother – child’s primary attachment at risk – orders made for child to live with grandmother. |
| Family Law Act 1975, ss.60B, 60CC, 60CC(2)(b), 60CC(3) |
| Aldridge v Keaton (2009) FLC 93-421 Mulvany v Lane (2009) FLC 93-404 Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS SALWAY |
| First Respondent: | MR HACKLEY |
| Second Respondent: | MS HACKLEY |
| File Number: | MLC 5136 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 8 & 9 October 2012 and 21, 22 & 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Phelan |
| Solicitors for the Applicant: | Women’s Legal Service Victoria |
| Counsel for the First Respondent: | Ms Dunlop |
| Solicitors for the First Respondent: | Fiona R. McGregor |
| Counsel for the Second Respondent: | Ms Boymal |
| Solicitors for the Second Respondent: | Lampe Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Dowler |
| Solicitors for the Independent Children’s Lawyer: | Septimus Jones & Lee |
THE COURT ORDERS:
That subject to Order 19 all previous Orders be discharged.
That the paternal grandmother have sole parental responsibility for the child, [X] born [in] 2010.
That the child live with the paternal grandmother.
That the child spend time with the mother as follows:
(a)Until the mother leaves Australia on or before 30 April 2013:
(i)From 10.00 am Tuesday until 10.00 am Friday each week; and
(ii)As otherwise by agreement with the paternal grandmother.
(b)Whilst the mother is living in Bali:
(i)In Bali by agreement with the paternal grandmother;
(ii)In Australia by agreement with the paternal grandmother for at least five hours every second day for the duration of the mother’s visit to Australia, or as otherwise agreed.
(c)In the event the mother returns to Australia to live:
(i)By agreement with the paternal grandmother and the mother have liberty to apply.
Notwithstanding Order 4(a) upon the mother’s departure date being confirmed by supplying the paternal grandmother with a copy of the mother’s flight itinerary the paternal grandmother and the mother shall ensure that the child is in the mother’s care for a 48 hour period immediately preceding her departure from Australia but not including the day of her departure.
That the child spend time with the father by agreement with the paternal grandmother, with such time to be supervised by the paternal grandmother.
That the paternal grandmother and the father encourage and foster the child’s relationship with the mother.
That the paternal grandmother will encourage and facilitate the child having Skype contact with the mother on at least three occasions per week.
That the paternal grandmother inform the mother as soon as practicable if the child suffers any serious illness or injury whilst in her care and provide the mother with details of same, together with the contact details of any of the child’s treating medical professionals and provide authority for those professionals to speak with the mother about the child.
That the paternal grandmother will advise the mother if she intends to change address and will provide her updated address details forthwith, together with any change in contact telephone numbers or email addresses.
That the mother keep the paternal grandmother informed of her address and contact telephone number.
That the paternal grandmother keep the mother informed about the welfare and education of the child on a regular basis.
Once the child is of school age, the paternal grandmother provide to the mother on a regular basis copies of all school reports, any other reports on school progress in relation to the child and school photos of the child as soon as practicable after they are received.
That the mother be at liberty to forward from time-to-time photographs of herself to the child and the paternal grandmother ensure that those photos are displayed in the child’s bedroom.
That the paternal grandmother forward to the mother on a monthly basis by email or Facebook recent photographs of the child.
That the mother be at liberty to send the child cards, letters and gifts and the paternal grandmother ensure that the child receives same.
That the paternal grandmother do all such acts and things as to facilitate the child’s involvement with the Balinese community and join a Balinese community such as Mahindra Balia (Balinese Community of Victoria) and to arrange for the child to attend a Balinese language school once he is of school age.
That at the next changeover the mother provide the paternal grandmother with the child’s passport and citizenship papers and the paternal grandmother provide the mother with the child’s jewellery (being 2 rings, a necklace and bangles).
That the Watch List Order made 14 June 2012 be discharged on the day after the mother’s departure from Australia in April 2013 and the paternal grandmother’s solicitor serve a sealed copy of this Order and the mother’s flight itinerary on the Australian Federal Police.
IT IS NOTED that publication of this judgment under the pseudonym Salway & Hackley & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5136 of 2012
| MS SALWAY |
Applicant
And
| MR HACKLEY |
First Respondent
| MS HACKLEY |
Second Respondent
REASONS FOR JUDGMENT
Introductory
In this matter, I gave Judgment on 13 November 2012. These Reasons for Judgment should be read in conjunction with those then published, although I will recapitulate some of the more important matters in a moment.
Putting the matter broadly, what emerged from the former hearing was that there was an Order made that the applicant mother have sole parental responsibility for the child, [X], born [in] 2010, and that he live with the mother for an introductory period, and then from Tuesday to Saturday each week. The child was to live with Ms Hackley, the paternal grandmother, at all other times, and to spend time with his father, the son of Ms Hackley, supervised by Ms Hackley from time-to-time.
The background to that decision can be gleaned from my earlier Reasons for Judgment, but in essence the matter was attended by a measure of urgency because at the date of Judgment it was anticipated that the mother might have to return to Bali because of visa difficulties in December 2012. As was then foreshadowed, the mother’s visa has been extended, in effect, to 30 April 2013.
As things have now transpired, the critical question in this case is whether [X] should be returned with his mother to Bali before the end of April or whether he should stay in Australia. If he does return to Bali in this way he will largely be excised from not only his paternal grandmother, Ms Hackley, but also from his father and the father’s family. Conversely, if he remains in Australia he will be largely excised from his mother and her family. It is immediately apparent that this is, to use an adjective I used in the earlier decision, a heart-wrenching set of circumstances.
A brief overview of the earlier decision
The following matters are particularly relevant in my earlier decision:
a)The section 11F counsellor who provided a report on 29 June 2012 was clear that there was greater warmth between [X] and his grandmother and that this was absent when [X] was with his mother and indeed with his father (paragraph 22);
b)The mother confirmed that [X]’s primary attachment was with his grandmother (paragraph 53);
c)Following interviews in late August 2012, Ms B prepared a report dated 3 September 2012 in which she recorded:
i)[X] was observed to enjoy a closely attached relationship with his paternal grandmother, Ms Hackley and a familiar relationship with his father (paragraph 67);
ii)[X]’s relationship with his mother was far less developed (paragraph 68);
iii)Ms B set out at paragraphs 45 to 51 a number of reservations about the state of the evidence in the parties’ proposals, concluding at paragraph 51:
“Before any clear recommendations about future living arrangements can be made, the outcome of the mother’s residence application will need to be clarified.”
(paragraph 69);
iv)Ms B confirmed that if the mother stayed in Australia then there should be over time (at least six months) a process whereby [X] would be returned to his mother’s primary care (paragraph 71);
v)The Independent Children’s Lawyer, not without misgivings, adopted the position that [X] should be in the primary care of his mother (paragraph 74).
d)I found that the reason that the mother gave up [X] to the grandmother, at the age of only two months, was:
“It is impossible to avoid the conclusion that the mother’s love for the child was simply not great enough to countervail her desire to improve her visa prospects.”
(paragraph 100);
e)I found that [X]’s primary attachment was to his grandmother, that he had a secure and satisfactory relationship with his father, and a developing relationship with his mother and excellent relations with the father’s extended family (paragraph 106);
f)I found that it appeared to be common cause that [X] ought to be transitioned from the primary care of his grandmother to his mother (paragraph 158);
g)I found that it was in [X]’s best interests to remain with his primary carer and that if this was his grandmother in December 2012, it was not in [X]’s best interests to be removed from the grandmother and taken to Bali (paragraph 163);
h)I further found that if the mother’s visa extension was granted and transition was effected so that he was in the primary care of his mother and had a secure attachment with her, then despite all difficulties he should go with her to Bali (paragraph 164);
i)I found that if the mother had to return to Bali before she became [X]’s primary carer, it was in [X]’s best interests to remain with his primary carer, his grandmother, in Australia (paragraph 167).
No application for leave to appeal that decision was made, and although the parties had liberty to apply, no interim applications were made by any parties arising out of the operation of those Orders.
As foreshadowed, a follow-up family report was prepared by Ms B when the matter returned to Court for final hearing.
In the interim, as is apparent from the above, the mother’s visa had been extended. From exhibited material before the Court, it is clear that she has to depart Australia to arrive in Bali no later than 30 April 2013.
The march of events since last year
Given the time available before the mother’s anticipated departure (although aspects of her visa future remain unclear, it is at least clear that she has to be out of Australia by the end of April), this matter is attended with considerable urgency, as has indeed been the case throughout, notwithstanding that it commenced in the Court in May of last year.
I do not propose to traverse the affidavit material filed by the parties in laborious detail, but to concentrate upon those aspects that are of most significance, although I have of course had regard to all the materials filed and all the evidence given before the Court.
The mother has filed two further affidavits and an affidavit of support from Ms M.
The mother’s first affidavit deposed to the developing relationship between herself and [X] and also deposed to difficulties with changeover. At paragraphs 10 and 11 of the affidavit filed on 8 March 2013, she said:
“10. However, the changeovers have been quite difficult for me. I pick up [X] at 10am at [omitted] Station every Tuesday. [Ms Hackley] sometimes follows me when I picked up [X].
11. [Ms Hackley] collects [X] from me at Mr H’s house at 10am every Saturday. She comes in to the house, and often stays for over an hour before she leaves with [X].”
The mother went on to depose that [X] is often returned to her care with cuts, bruises, and insect bites and the like. She further deposed at paragraph 13:
“I want now to have the full time care of [X]. I am his mother, and I believe he should be living with me full time, and not with his grandmother.”
The mother deposed to the developing relationship she has with Mr H, the time she has spent with Ms M and her visa status. She further deposed that if she returns to Bali, she will live in [K] and will have a measure of family support. She proposed to rent a one-room bedroom unit in [K] for her and her child and that she would expect financial support from Mr H.
The affidavit deposed that the mother would support Ms Hackley spending time with [X] in Bali.
The affidavit of Ms M, sworn 19 March 2013, is essentially supportive of the mother. She was not required for cross-examination. It is not necessary to go into the detail of the affidavit because it generally supports the mother’s proposition that [X]’s relationship with his mother was improving. She confirmed that there were difficulties at changeover on two occasions when Ms Hackley was returning [X] to his mother and that:
“… [Ms Hackley] became very clingy to [X] and did not encourage him to go with Ms Salway. [Ms Hackley] sometimes stays longer than necessary and prolongs the goodbyes.”
Perhaps importantly, bearing in mind that the affidavit was sworn in March when the new arrangements for extended time came into place some months beforehand, Ms M deposed at paragraph 14:
“[X] seems to be becoming better adjusted to change-over’s as they become routine and is happy to be back with his mother.”
The mother’s second affidavit was essentially written to respond to the family report of Ms B. I will return to these matters when I deal with the oral evidence.
The affidavit of the father, sworn 20 March 2013, says little save that he is now back in the [T] Rehabilitation facility.
The affidavit of the Ms Hackley, sworn 19 March 2013, deposed at paragraph 4:
“Since the increase in time with Ms Salway, [X]’s behaviour has changed and progressively become worse.”
She deposed at paragraph 7 that:
“He has become more clingy and on occasions has taken to hitting me and throwing things. He has recently started to spit and bite which is out of character. He refuses to go to bed on his own, even though he has slept on his own since he was four months old.”
Ms Hackley deposed that [X] constantly watches where she was and refused to let her leave a room without him and throws tantrums. She deposed that it takes a long time to settle [X] upon return from his mother. Ms Hackley deposed in detail to the unfortunate changes that have occurred in [X]’s behaviour since time with his mother has increased (and time with his grandmother decreased).
Ms Hackley responded to the criticisms put by the mother of her at changeover and said that she had significant difficulties with trying to make [X] go to his mother. It is fair to characterise the affidavit as containing an element of recrimination for the mother’s behaviour at changeover and more generally, something that is reciprocated in the mother’s affidavit material.
The Mother’s evidence given before the Court
The mother was called first. In evidence-in-chief, she responded to the grandmother’s affidavit. It is not necessary to traverse this material in any detail as it really involved responding in considerable detail to minor criticisms made of her by Ms Hackley, such as the failure to use a dummy, something apparently regarded as culturally inappropriate in Bali.
It is sufficient to say that the mother confirmed her general position which is that any difficulties at changeover arise out of a measure of hostility on the part of Ms Hackley, together with misunderstandings arising from the different perceptions of the parties. It is clear from the mother’s own words that she struggles to cope with her emotions about Ms Hackley. She retains an ambivalence arising out of her perception that Ms Hackley stole her child, the form of words she used on more than one occasion.
Likewise, the mother’s hostility to Ms Hackley is evident in the fact that she said, on I think three occasions, and always unresponsively to the question asked, that Ms Hackley is getting money from the government and spending it on going on a holiday.
Under cross-examination, the mother confirmed that she does not want, really, to be friendly with Ms Hackley. She said that she feels that
Ms Hackley had lied to her in the past and that she did not like her. She does not like Ms Hackley using any terms of affection to her. She confirmed that [X] does have a cry on occasions at changeover, but settles down quickly when it is over.
It should be noted that the mother gave a number of very long answers to what were really short questions not requiring extensive reply. I should record that her hostility to Ms Hackley was all too obvious.
It emerged that the mother has established a Facebook account in the name of Ms S with a fictitious identity suggesting that she was a student at the [omitted] Secondary College. When asked why this was the case, her initial response was to say that this was a private matter which the Court should not hear about. In the ultimate, the best that can be said of this slightly troubling episode is that the mother appears to suggest that she set it up to ensure that the father could not access it. This was apparently because the father had accessed her Facebook account in her own name.
I do not propose to make overmuch of this matter which in the ultimate is a sideshow, but it is concerning that the mother should need to move to such elaborate deceit. If she wished to set up a Facebook account to which the father did not have access, she did not have to go to such lengths. I say this even though it may be that it was Mr H who came up with at least some of the suggestions as to the fictions on the Facebook page.
I should also say, although once again it is not a matter in the ultimate of great moment, that the mother’s answer that she did not want friends to find her on Facebook and that this was why the Ms S account was created had all the appearance of being made up on the run.
The mother was cross-examined about non-attendance at [X]’s birthday party and other family events. I accept that this would be at least as likely to arise out of the difficult interpersonal dynamic with
Ms Hackley and the father as for any other reason. I note, however, that the mother confirmed in terms under cross-examination by Ms Boymal words to the effect that she liked Ms Hackley in the beginning but now knows that she is dishonest.
It is sufficient to say that on her own evidence the mother is bitterly resentful of Ms Hackley for, as she sees it, stealing her child from her, lying to her about her potential visa chances in Australia, and retaining the Centrelink benefits to her own benefit rather than applying them to [X].
The mother confirmed what is otherwise patent, namely that she has to return to Bali by the end of April and does not know how long she will be there. Although she still plans to marry Mr H, she does not propose to do so quickly and wishes to take her time.
The mother confirmed a matter recorded in Ms B’s report at paragraph 10 that she did say “I’m your mother” to [X] on 8 March 2013. “She’s not your mother ... she stole you.” She also complained that Ms B had spent far more time with Ms Hackley than with her on that occasion.
She also confirmed that although she was happy for Ms Hackley to come and see [X] in Bali, she alone would determine the amount of time spent. She confirmed what is also otherwise patent, namely that she does not have the money to contribute to Ms Hackley’s costs of flying to Bali, and that it is her dream to live in Australia.
The mother further confirmed that it was in [X]’s best interests to be with his mother. This was the only reason she put that she should have the primary care of him.
Cross-examination by the counsel for the father in my view added little. The mother said that it was important [X] has a relationship with his father. She also went on to accuse him of lying in his previous affidavit because he is now in rehabilitation, and it is fair to say that her evidence was replete with criticism of the father for the failure to obtain her a spouse visa in the first place.
Cross-examination by the Independent Children’s Lawyer gave interesting details as to [X]’s routine when with his mother, but otherwise, in my view, added nothing of any moment.
There is one final aspect of the evidence concerning the mother I should deal with. Exhibit B1 is a series of extracts from the mother’s Facebook page under the name Ms H. On 14 January 2013, she entered a Facebook remark:
“I love this life, my boyfriend works all day and I get to go shopping all day with his money.”
I have said in my earlier Reasons for Judgment that it is perhaps understandable that a woman as young as the mother may at times find the business of being a mother somewhat difficult. At one level of analysis, this message is an extremely cynical expression of satisfaction by a highly successful gold digger. In the ultimate, however, at most this is a remark expressing the cynical exploitation of her relationship with Mr H. It does not directly touch upon her relationship with her son.
The evidence of the paternal grandmother, Ms Hackley
This evidence can be dealt with somewhat more briefly. The evidence confirmed what is patent already, namely that the relations between
Ms Hackley and the mother have got no better at all since they were last before the Court. It is not necessary to record the various mutual accusations about bruises and so on on the mother’s part, and failure to use a dummy, and a poor response to being hugged and the like on the part of the grandmother. The fact is they do not like each other and their perceptions of events at changeover and the like are entirely influenced by their own perceptions.
I should record that it is quite clear that this holiday which has occasioned the mother so much concern was a cruise proposed out of the blue by Ms Hackley’s other daughter, [name omitted], in January 2013 in the context of a likely outcome perceived at that time that [X] would be leaving Australia with his mother. I accept that it has now been cancelled.
I further accept the failure of the grandmother to do anything about the distress ostensibly felt by [X] at changeover and throughout the intervening period has arisen out of a combination of unexceptionable factors. The mother was not legally represented until very recently, is not of particularly advantaged educational background, and knew the matter would be coming back to Court in any event. I draw no adverse inferences out of the failure of Ms Hackley to bring the matter back to Court earlier. I note that the mother also says there were problems throughout the intervening period and she, being legally represented throughout, likewise did not return to Court prior to trial.
I note that in response to questions from counsel for the father,
Ms Hackley confirmed that there are photographs of the mother in her lounge and hall entrance and one in [X]’s room on his wall. I accept that the grandmother brings these to [X]’s attention and tells him that they are photographs of his mother. She will also continue Skype and Facebook if [X] stays here and his mother returns to Bali.
Despite extensive cross-examination by counsel for the mother, the pattern of the evidence that I have described in the immediately preceding paragraphs remained undisturbed.
The updated report of Ms B
Ms B’s report clearly speaks for itself. I note, inter alia, the following observations. At paragraph 7, Ms B wrote:
“From the outset it was apparent that the mother was angry and frustrated by the assessment procedure. She was antagonistic towards Ms Hackley and abrupt and dismissive throughout the interview process. In contrast Ms Hackley presented as consistently child focussed and respectful towards the mother and at interview.”
At paragraph 8, Ms B recorded:
“Initially the mother arrived alone with [X]. She said her partner Mr H (sic) was working and unable to attend. A subsequent attempt to contact Mr H (sic) by telephone was unsuccessful. [X] seemed happy and content in her company and the mother seemed confident and at ease with [X]. However, she seemed intent on sharing her negative appraisal of Ms Hackley rather than relaxing and settling [X] into the environment of the waiting room.”
Ms B went on to describe [X]’s elevation of mood when Ms Hackley arrived and his reference to her as “mummy”, something that
Ms Hackley corrected by saying, “I’m Nanna”.
At paragraphs 10 and 11, Ms B recorded:
“10. Given the tensions, Ms Hackley was immediately invited into the interview room while [X] remained with his mother. The mother seemed frustrated as she held tightly to the child. Unfortunately [X] became increasingly distressed and began crying out loudly for Ms Hackley referring to her interchangeably as “mummy…(and)…nanna”. [X]’s cries became louder and he became distraught. The mother was unable to soothe [X]. She held him tightly on her hip and told him in a firm and unfriendly way, “she’s not your mother…she stole you.” [X] wriggled and squirmed and tried to disengage from the mother’s embrace still screaming out “mummy (or) nanna.”
11. The mother held onto [X] and took him outside briefly. She soon returned with [X] still screaming and crying. [X] continued to cry and yell in a loud manner for his paternal grandmother. He did not impress as having the capacity to self soothe or respond to his mother’s attempts to calm him down. Nor did the mother appear to sufficiently advance parenting and nurturing skills to soothe and calm [X] or assist him to settle.”
[X] was returned to the room with Ms B and his grandmother and he immediately ceased crying.
“13. … [X] calmed instantly and he became chatty and engaged verbally with his grandmother. [X] presented as calm confident in Ms Hackley’s presence.”
Endeavours to have Ms Hackley leave the room led to [X] becoming extremely upset and it is sufficient to record Ms B’s observation at paragraph 17:
“[X]’s close attachment relationship with Ms Hackley was apparent. He continued to show difficulties and quickly became distressed if he was separated from her. The mother did not seem to accept or respect [X]’s need to be in proximity of Ms Hackley at the assessment.”
Ms B took the parties outside for a walk to see if [X] could be calmed and settled and to play with them in an open environment. Ms B recorded at paragraph 19 that:
“… The mother again became hostile and unfriendly. She grabbed [X], who immediately commenced screaming and crying and trying to disengage from her embrace.”
From paragraph 20 of the updated report, it is apparent that [X] continued to cry and scream and yell in the mother’s arms and that the mother repeatedly informed him in a hostile manner, “she’s not your mummy…she stole you.” The mother refused to cooperate and collaborate in this aspect of the assessment and walked at a fast pace some distance ahead of Ms B and Ms Hackley.
In the ultimate, [X] was returned to Ms Hackley and settled gradually.
When alone with Ms B, the mother relevantly confirmed that it was her view that [X] was well settled in her care and that she would be returning to Bali with [X] immediately following the next Court hearing. She was confident of the Court transitioning [X] to her full-time care on a permanent basis.
The mother confirmed her dislike of Ms Hackley and was highly critical of her for what she perceived as her reluctance to provide the mother with financial assistance. It should be noted that this aspect of her criticism was repeated in the evidence about the CentreCare payments set in Court.
Ms B reported at paragraph 27:
“In summary, the mother was confident that [X] should or would live with her in the upcoming months and they would return to live in Bali indefinitely. She was unsupportive of fostering an ongoing relationship with Ms Hackley.”
Ms Hackley confirmed that the transitional arrangements had been difficult for [X]. She confirmed that she was respectful of the likelihood that [X] would live primarily with his mother at some future stage and was supportive of this, but was worried about when this should occur. She confirmed that [X] has not managed the change of residence well (paragraph 29 of the report).
At paragraph 32, Ms B recorded:
“In summary, ideally Ms Hackley wanted to slow the pace of the transition of [X] to the mother’s care. She was supportive of a more permanent transition in the future when [X] was better able to manage extended time away from her and remain with his mother.”
It is sufficient for these purposes to record the following aspects of
Ms B’s evaluation from paragraph 36 onwards:
“36. The mother and Ms Hackley present as a loving parent and caregiver to [X]. They are both eager to be involved in the child’s future care and upbringing. It remains apparent that [X] enjoys a more closely attached relationship with Ms Hackley than with the mother. [X]’s relationship with his mother will take time to develop and extend.
37. Despite the good intentions of all, it is apparent that [X] has not managed the transition from Ms Hackley’s care to the mother’s care. His presentation about being reunited with
Ms Hackley and distressed behaviour after being separated from her showed evidence of developing anxiety and insecurity in his relationship formations. In addition, the level of mistrust and hostility in the mother’s and paternal grandmother’s relationship has seemingly disrupted the organisation of [X]’s experience of the security and availability of his secure relationship figure,
Ms Hackley. If [X] is to develop optimally and in a normative manner he needs predictability in his life and access to his secure based attachment figure, Ms Hackley.38. If the current arrangement continues or progresses, unfortunately it would not bode well for [X]. The child is assessed as too young and developmentally immature to be separated from the paternal grandmother for extended periods of time at present. [X] needs to return to the predominant care of Ms Hackley as soon as practicable. Ideally [X] would spend regular time with his mother while their relationship develops and extends prior to considering a further transition to the mother’s care. In the current circumstances, given the mother’s unknown visa situation it remains unclear how this can be achieved. When [X] ages and matures somewhat, around three or four years of age, then he may have developed the cognitive skills and abilities to better tolerate separation from Ms Hackley and more time with the mother.
39. While living with Ms Hackley in the absence of the mother, it may be beneficial for [X] to trial a facilitated separation from her with the assistance of the former familiar day care service that [X] previously attended.”
Ms B went on to recommend that [X] return to live with the paternal grandmother wherever the mother lives, noted that time between [X] and his mother was supported and encouraged and made a series of recommendations for time to be spent if the mother remained in Australia. Such time did not include overnight time in the immediate future.
As is obvious, Ms B pointed out that if the mother returns to Bali then alternative arrangements would need to be made.
Cross-examination of Ms B
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms B expanded upon her evidence about the risks to [X]. Her evidence was that a child’s brain forms between the ages from birth to three. In order to develop properly, the brain needs a calm environment, and a secure attachment provides the background for that to occur. Where there is not a secure environment and the child is distressed, the brain releases cortisol which prevents learning. An insecure attachment may occur because the child does not know who the primary carer is or where care is not consistent. The child may become chaotic. A secure attachment is a good indicator of an adjusted adulthood, and an insecure attachment is likely to lead to difficult behaviour from early life onwards. This includes social problems at school and problems of regulating emotions. These problems escalate throughout adolescence and adulthood. A secure attachment is essential.
Ms B confirmed that [X] is more attached to his grandmother than to his mother, and that when she first saw him [X] was clearly attached to his grandmother. She said that when she saw him for the follow-up report, she put in place an attachment assessment. [X]’s distress, according to Ms B, shows a real risk of an insecure attachment if he is not returned to the grandmother. This was something she had observed during the day they were together.
The problem Ms B identified was the level of distress experienced by [X] when he was removed from his grandmother. This was at risk of affecting his brain development. His stress was a level of 10 out of 10.
Ms B said that [X]’s relationship with his mother was not irreparable in the longer term, provided he was able to develop normally and retains a memory of her. The priority for [X] was to consolidate his attachment to his grandmother.
Ms B was concerned that if [X] lived in Bali, his functioning, both short term and long term, would be at risk. This was so even though he would be upset at first but might then settle down. The issue for Ms B was the likely detriment to [X]’s brain functioning if this occurred. [X] needs to be returned to his grandmother now.
There was no prospect of contemplating a change to the full-time care of his mother until he was at least three to four years old, and even this would depend on how the matter was handled. Ms B described [X]’s level of distress as extraordinary. Two visits per year from the grandmother to Bali would just not be enough to retain his relationship with his grandmother.
Under cross-examination by counsel for Ms Hackley, Ms B confirmed that [X]’s secure attachment is to his grandmother. Even if he were to acclimatise to Bali, there would be still be the brain developmental problems to which she had referred. Ms B said that the mother was unpredictable and it was impossible to assess her genuineness.
She further confirmed that any return to day-care would need to be painstakingly slow.
Under cross-examination by counsel for the father, Ms B confirmed that she did not see the father on this occasion and had nothing to add to her earlier report.
Counsel for the mother sought to traverse, in if I may say so a very skilful way, the particular events of the day of the interview with
Ms B. It was a very difficult and hot day.
Ms B confirmed that the mother brought the child and there were no problems. It was put to Ms B that it was scarcely surprising that [X] was very pleased to see his grandmother after spending a number of days away from her, and it was further put that [X] was likely to have been in a difficult mood both because of the hot weather and because he had missed his afternoon nap.
Ms B, nonetheless, confirmed the course of events as she had described them. She confirmed that the mother had been angry and frustrated from the start. She said that she was fine when Ms B first came in, but became upset when Ms B spoke to her as she could not understand why a further interview was necessary. Ms B’s understanding was that the mother thought that [X] was transferring to her and was frustrated by the necessity for a further interview.
Ms B confirmed that she observed [X] with the grandmother for possibly one hour and that [X] calmed down after about 15 minutes. She then asked the grandmother to leave, this being part of the attachment assessment to which she had referred. Even when the grandmother was asked to go to the opposite side of the room, [X] was distressed.
It was clear that [X] would not separate from Ms Hackley, Ms B suggested the parties go for a walk to see how [X] went between the two adults. She did not see a naughty child, but a distressed child, (this remark was made in response to a question that [X] was simply having a tantrum).
Ms B confirmed her description of the walk outside and the difficulties occasioned by the mother walking off quickly and [X] screaming for his grandmother.
In response to the suggestion that the removal of day-care and the removal of the father to [T] (this having taken place in January following 10 days or so of rehabilitation also away from the family home) might have unsettled [X], Ms B replied that it was not the time with the mother that was the problem, but the time away from the grandmother. The grandmother had been the reliable person before the change took place.
It is sufficient to say that Ms B stood by her report and her earlier remarks. Despite the skill of cross-examination, she was not moved, in my view, one inch from the conclusions she had earlier set out.
The issues in the case
It is clear that the mother will be returning to Bali by the end of April. It is not known when she will be able to return or indeed if she will ever be able to do so. Counsel for the mother asserted that the mother cannot hope to return to Australia for at least six months no matter what occurs. Counsel for the grandmother and the father say the matter is more opaque.
While I did canvass with the parties the prospect that I might do my own research into this aspect of the matter, and no counsel appeared vigorously to object, I have decided not to do so. Notwithstanding that I sit in the migration list, my conclusions would not follow a process of open discussion and challenge in Court, and I therefore will do no more for these purposes than conclude, as indeed is obvious and all parties agree, that the mother will unquestionably leave for Bali before the end of April 2013. She will certainly be away from Australia for some period of time and it must be assumed that this will be at least a matter of some months. Whether or not she is able to return to Australia will depend, inter alia, upon the progress of her relationship with Mr H, which she says herself she is not in rush to conclude and certainly not merely to obtain a visa.
It must also be accepted that she may never be able to return to Australia as a permanent resident.
The difficulties the mother has had in getting to Australia to see [X] and indeed to conduct this litigation are such that I conclude that the better view is she will never be able to afford to come to Australia unless she is sponsored by some third party. Such sponsorship is purely conjectural at this stage.
Conversely however, and this is equally clear, Ms Hackley is not rich. She lives on a carer’s pension in difficult circumstances, looking after her own father as well as her son and, dependent upon the outcome of this case, her grandson. At best, she will be able to afford to go to Bali once per year, and I note that Ms B says that this will not be enough to sustain the relationship with [X] in any event.
The central question in this case is a brutal one that can be put shortly. Should [X] be returned as Ms B recommends to the primary care of his grandmother forthwith and remain with her when his mother goes overseas to Bali, or should he go to Bali with her and his relationship with everybody else await the march of events.
The submissions of the parties
The Independent Children’s Lawyer addressed first. Counsel correctly identified the problem as being the mother’s return to Bali. It was submitted that this produces a different position to that which obtained at the last hearing when the report of Ms B led to the changes then made.
Counsel emphasised that the test involves, in the ultimate, the ascertaining of [X]’s best interests. It was submitted that [X] has been in the primary care of his grandmother for some time and that while it is no-ones fault the fact is that he has not transitioned to his mother.
It was submitted that both parties have complied with the Court’s Orders in a fashion which, taken overall, could be described as reasonably civilised.
Counsel pointed to the fact that [X] has a secure attachment to his grandmother and an insecure attachment with his mother. It is noted that Ms B recommends a return to the grandmother.
Submissions made traverse the obvious difficulties experienced by [X] between the last hearing and now and it was submitted that [X] should return to his primary care of Ms Hackley.
Ancillary Orders designed to assist [X] to appreciate his Balinese culture were also proposed.
Counsel for Ms Hackley concentrated submissions on the law. It is not necessary to deal in any detail with the comprehensive and helpful review of authority that counsel put forward as counsel for the mother accepted that it was an accurate recitation of the law.
Counsel traversed the statutory pathway in detail but it is not, in my view, necessary to record those submissions at any length. It is sufficient to say that counsel submitted that a proper consideration of the relevant matters in s.60B and s.60CC of the Family Law Act 1975 (“the Act”) led to the conclusion that it was appropriate that [X] be returned to the primary care of his grandmother as recommended by Ms B.
Counsel for the father supported the Orders sought by the paternal grandmother. Essentially, she adopted submissions made by counsel for the paternal grandmother.
Counsel for the mother referred to Aldridge v Keaton (2009) FLC 93-421 at [65] and [74]. She submitted that unless there was harm proven while in the care of his parents’ then the paternal grandparent simply did not fall to be considered.
Given the pressure of time involved in preparing this Judgment, it is not possible for me to deal at any length with the extensive case law in this area. In my view, it is sufficient to note that s.60CA provides that “a court must regard the best interests of the child as the paramount consideration”.
I note further that the Full Court in Aldridge v Keaton approved the remarks and observations of Finn J in Mulvany v Lane (2009) FLC 93-404 (see Aldridge v Keaton at [65]). That means that in a case such as this the Court can only reach its determination in parenting proceedings on an application of s.60CC(2)(b) and of the additional matters in s.60CC(3) so far as they expressly apply to a person other than a parent.
Accepting as I must the force of that qualification, I note that the Full Court at Aldridge v Keaton at [75] said:
“While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant.”
It is clear in my view that in the circumstances of this case, the paternal grandmother cannot be excluded in some artificial way from the proceeding. In view of the facts that obtain, the submission made by counsel for the mother goes further than in my view the legislation can take it.
For the avoidance of doubt, I point out that to send [X] to Bali and/or to remove him from the care of his primary carer, his grandmother, would be to inflict harm upon the child in any event and I further note that the s.60CC(3) considerations that apply to persons other than the parents (particularly s.60CC(3)(b),(d),(f),(g) and (m)) will clearly apply.
Counsel for the mother also suggested that the difficulties that were manifested by [X] at the assessment with Ms B had arisen out of combination of unfortunate circumstances. Everybody agrees it was a very hot day and it would appear that [X] may not have had his normal afternoon nap. Criticism was advanced of the way in which Ms B dealt with the matter and it was submitted that Ms B should have had properly assessed the child with the mother first and not moved immediately to the grandmother. It was submitted that this was not a proper test of attachment. Ms B had in fact set up a contest of affection between the grandmother and the mother which in the circumstances the grandmother was always going to win.
I should make it clear that I do not accept that submission. Ms B sought to interview the paternal grandmother, a decision in my view wholly unremarkable and clearly not infused with any animus or bias. Ms B’s report accepts that the mother loves the child and it is not in my view, despite the various criticisms she made, unduly critical of the mother.
I have already dealt in a general way with these events and it is not necessary otherwise to repeat the arguments.
Counsel further submitted that it was Ms B’s evidence that the child would acclimatize to Bali and would settle. This submission, in my view, rather misses the point. Ms B accepted that [X] would settle but was adamant that a failure to return [X] to the primary carer, his grandmother, would be very damaging to him.
Counsel concentrated further on the evidence of Ms M but while I accept that Ms M said that everything is going well, Ms M was not at the assessment with Ms B. There is no tension between Ms M’s evidence and that of Ms B in my view.
Counsel further submitted that the mother’s anger at Ms Hackley was entirely understandable. I accept that given her state of mind it is inevitable that the mother is resentful of and angry with Ms Hackley. However, the submission seeking as it were to apportion blame to
Ms Hackley rather misses the point. I have already determined in my earlier Judgment that Ms Hackley took [X] to Australia with full agreement of the mother. While the mother has now reconstructed matters in her own mind the fact is that she has no proper basis upon which to be angry as she is. It should be made clear, however, that while I make this finding the outcome of this case owes nothing to an apportionment of blame for this state of affairs. The reality is that the only importance of the poor and interpersonal dynamic between the mother and grandmother is that it is likely to impact on the extent to which the mother would foment a relationship with [X]’s maternal family.
The statutory pathway
I set out the relevant extracts of Goode v Goode [2006] FamCA 1346 at [109] of my previous Reasons for Decision. It is not necessary to repeat them in these circumstances. The first matter that arises is the question of parental responsibility.
It is plain that whoever has primary care of [X] should have sole parental responsibility. There is no other practical potential outcome in the circumstances of this case.
Equal time and substantial and significant time
Whoever has parental responsibility, the law requires that the Court give consideration to the child spending equal time or alternatively substantial and significant time with the other parent within the meaning of those phrases as defined in the Family Law Act. It is sufficient for these purposes to say that in the circumstances with which we are confronted, neither equal time or substantial and significant time should be ordered. They are utterly impracticable in any event.
The order in [X]’s best interests
It is not necessary to re-traverse the matters set out in paragraphs 125 to 156 of the earlier Judgment. They traverse the statutory background and the section 60CC(2) and section 60CC(3) matters in some detail.
The picture has significantly altered however since I then dealt with the matter. Relevantly, Ms B’s report suggests that [X]’s secure and primary attachment to his grandmother is at risk. If this risk is as it were fulfilled, then Ms B’s evidence is that [X] will suffer very significant and serious harm which needs to be addressed forthwith.
I have perhaps not said so in terms to this point, although it may be implicit. Ms B was an extremely impressive witness who, as I have said, was not moved one inch in cross-examination. Although some of the assumptions underpinning her conclusions (the weather, [X] missing his nap and so on) were put in issue, these did not alter her judgment one iota. Given the nature of the matters Ms B was asserting, this is scarcely surprising. Indeed, Ms B’s distillation of the relevant research, plainly given within her area of expertise and given with considerable and believable confidence, was not itself challenged.
I accept Ms B’s report and her evidence generally.
I regret to say that once that conclusion is reached, the disposition of the matter is all too straightforward. As Ms B has said, despite the best efforts of all, [X] simply has not transitioned into his mother’s care as Ms B had recommended and as all parties had hoped would be the case. To the contrary, his circumstances have deteriorated to a point where not only has he not fully transitioned into his mother’s care, but his relationship with his primary attachment, his grandmother, is at risk with all the attendant and established difficulties.
Conclusion
In these most regrettable circumstances, it is quite clear that it is in [X]’s best interests that he is returned forthwith to his grandmother and that I make the Orders proposed by Ms Hackley, based on the recommendations of Ms B. It is imminently appropriate that the child be returned to his grandmother forthwith.
It should be noted that it necessarily follows from the immediate return of [X] to his grandmother that he simply cannot depart with the mother at the end of April 2013. In making this finding, I am keenly conscious of the very great distress it will cause her and the potential difficulties it may give rise to for [X], both immediately, bearing in mind his developing but unfortunately not yet grounded relationship with his mother, and in the future.
Nonetheless, the force of Ms B’s recommendations is irresistible. It is clear that [X] cannot be transitioned to his mother now. It is not in his best interests for this to be the case. Quite the contrary, it will be damaging for him, both immediately and for his future development for the reasons given by Ms B.
Whether it may be possible to contemplate transitioning [X] to the full-time care of his mother in the future, for example when he turns four or thereabouts, will have to await the march of events. Much will depend upon the way in which [X]’s future development is handled and how successfully he moves forward. Much would also depend in the future upon the attitude of his mother.
I have described this decision as heart-wrenching on more than one occasion. I did so in my first Judgment and have repeated that phrase in this one. It remains so. There is no way round it. [X] must be largely sundered from one of his parents and in the event that he returns to Bali must be sundered from his primary attachment to his grandmother. It is clear that removal from his primary attachment is not in his best interests and it is really for this reason that the case that he remains in Australia with her is so overwhelming.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the Reasons for Judgment of Burchardt FM.
Associate:
Date: 10 April 2013
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