Samuels and Errington

[2007] FamCA 29

FAMILY COURT OF AUSTRALIA

SAMUELS & ERRINGTON   [2007] FamCA 29

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Especially protective needs and emotional welfare

APPLICANT PATERNAL GRANDPARENTS: Mrs Samuels
Mr Samuels

1st  RESPONDENT MOTHER: Ms Errington

2nd RESPONDENT FATHER: Mr Samuels

FILE NUMBER: HBF 974 P of 2006

DATE DELIVERED: 16 January 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Carmody J

HEARING DATE: 15 January 2007

REPRESENTATION

SOLICITOR FOR THE

APPLICANTS

Clerk Walker Lawyers of Hobart

COUNSEL FOR THE APPLICANTS

Mr Mason

FIRST RESPONDENT

In person

Orders

1. That K live with his mother and spend time with the paternal grandparents in Perth or Hobart as agreed, and irrespective of any agreement, for the second half of all school holidays in Hobart at their expense.  This order is conditional upon the mother not residing with Mr B in Perth or anywhere else and the mother will be restrained from allowing K to spend any time with Mr B alone; that is unless she is also present at all times.

2. The father and parental grandparents will have reasonable telephone and electronic communication with K as agreed.

3. I propose to discharge all previous orders except paragraphs 9 and 10 of 4 August.       

It is directed

1. For all publication purposes this case will be reported as Samuels & Errington

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 974 P of 2006

Samuels and Samuels

Applicant Paternal Grandparents

And

Errington

Respondent Mother

And

Samuels

Second Respondent Father

REASONS FOR JUDGMENT

1. This is an interim parenting dispute about whether nine-year-old K should live with his mother in Perth or his parental grandparents outside Hobart pending final orders.

2. All parties seek a variation of earlier consent orders made on 4 August 2006 which provided for K to live with his mother in Melbourne starting from 1 January this year and to have as much regular communication with the other parties as the distance between them permitted.

3. Notably the 4 August order did not specifically provide for K to spend any time with his father or parental grandparents after 1 January 2007. 

4. The operation of that order was suspended on 20 December 2006 and the mother injuncted from relocating with the child outside Tasmania. 

5. The parental grandparents now want new orders for the child to live with them and spend time and communicate with their mother in Perth.

6. The mother proposes orders that would see K live with her in Perth and spend school holidays with the other parties in Tasmania as well as having agreed periods with them whenever they were visiting Perth.

7. The father is a party to the proceedings but has not actively participated in them.  He suffers from schizophrenia and lacks capacity to care for K.  However, he supports the orders sought by his parents.

8. The applicant grandparents contend that if K lives with his mother in Perth, he will be (a) exposed to an unacceptable risk of sexual and/or psychological or developmental abuse; (b)  neglected by the mother because of her work commitments; (c)  exposed to an undesirable lifestyle and (d)  unable to spend as much quality time with them or his other relatives on both sides of the family as he needs to.

9. The mother's partner, Mr B, is said to be a poor role model for the boy because of his admitted interest in child pornography and a related criminal conviction.

10. The mother now prefers living in Perth to Melbourne.  She is settled there and permanently employed.  She works during the night-time till the early hours of the morning as an entertainer.  She proposes that K be looked after by a neighbour while she is at work and tells me that she would rearrange her weekend work schedule to be available for her son.  She claims to be able to meet all the physical, emotional and educational needs of K and to protect him against any actual or perceived risks that Mr B might present.

11. She accepts that Perth is further away from Hobart than Melbourne but denies that the extra distance will necessarily mean that K will see his father, maternal aunt or paternal grandparents any less.  They can fly there, she says, at any time to see him or he can travel to Tasmania in school vacation periods.

12. This she says is not materially different to the sort of contact and communication arrangements of the past, or those envisaged in the orders of 4 August.

13. Her proposal is more than adequate in the circumstances she says to give practical expression to the statutory object of ensuring substantial involvement of both parents and significant others in K's life until a full hearing on the merits can be held.

14. Under both the 20 December and 4 August orders, the mother and paternal grandparents had joint parental responsibility for the child.  It is not clear whether that provision takes away or diminishes any aspect of the father's parental responsibility under section 61C.

15. When the court is making an interim order, the presumption of equal shared parental responsibility applies as between parents, unless it would be inappropriate or is rebutted by the balance of the best interests considerations in 60CC.

16. In view of the specific conferral of parental responsibility on the grandparents and the father's non-participation in the proceedings to date, and having regard to the limited evidence available and to the significantly curtailed scope of the interim inquiry, I do not think it is appropriate to invoke the presumption here.

17. The physical separation between the rival households also means that whatever the outcome a consideration of equal or substantial and significant time is not of major current concern. 

18. The parents separated over nine years ago when K was only two months old.  Since then he has resided principally with the mother in various parts of Australia and maintained regular, but infrequent, contact with the parental grandparents.

19. K went to live with parental grandparents about nine months ago with no firm arrangement being made for his return to the mother.  He subsequently renewed his relationship with his father and had overnight contact with his maternal grandmother who also lives around Hobart.  He is well provided for and enrolled in a local primary school.

20. Six months ago the mother and grandmother began negotiations for K's return.  There is disagreement about the positions taken by the parties but by July 2006, K was in his mother's care in Perth.  They later returned voluntarily to Tasmania and the arrangement embodied in the 4 August orders was reached.

21. In December 2006, the mother informed the grandparents of her decision to relocate back to Perth rather than Melbourne.  Her stated reasons included better weather, feeling more at home there and a belief that is more family friendly.

22. However, the decision seems to have been mainly influenced by her developing relationship with Mr B which appears to have commenced about the time that she started renegotiating for K's return viz, June 2006.

23. The grandparents were informed by the mother's sister that Mr B had been jailed for three years in 2005 for unlawful possession of child pornography.  That information understandably aroused concerns for K's safety in the mother's care and raised doubts in the grandparents' minds about the protective capacities of the mother when confronted with the conflict between her lover's desires and her son's welfare.

24. It is clear from paragraphs 12, 14 and 16 of the grandmother's 14 December affidavit that she assumed Mr B to be a paedophile and automatically a danger to her grandson.  This is obviously why she and the grandfather want the existing interim orders rescinded. 

25. However, the extracted Internet document concerning Mr B's conviction, annexed to the grandparents' affidavit as A and B, do not support this conclusion and exhibit B makes it clear that Mr B's interest is in young girls, not boys.  He had become addicted to looking at pornographic images of girls aged between 12 and 14, but despite subscribing to up to an astounding 350,000 images and 6400 videos, had never personally molested a child, was remorseful and did not consider himself to be a paedophile.

26. It is clear from the mother's affidavit that Mr B acknowledged his criminality to her at the outset of their relationship.  A failure to do so would be more concerning than the making of the admission.

27. In his own affidavit he denies any involvement in paedophilia, claims to have voluntarily ceased accessing offending material even prior to his arrest and deposes to having completed a relapse prevention program in prison.

28. He is employed by an employer who knows about his offending and Mr B offers to live apart from the mother until a final hearing and abide by any other conditions imposed by court orders.

29. The paramount consideration in deciding whether and what interim orders should be made is the child's best interests.  The aim is to maintain and maximise the active and meaningful involvement of both parents and significant others in his life, both as to parental responsibility and time spent, subject to the need to protect him from potential risks of harm, and provided it is reasonably practicable and his overall best interests.

30. The stability derived from a settled status quo is relevant but not determinative.  A proper parenting order depends on a consideration of the relevant section 60CC matters and not popular beliefs or stock standard responses.  The assumed benefits of a settled situation, if there is one, can be displaced by a conclusion that they are outweighed by the disadvantages involved in preserving them.

31. A settled situation of course is not constituted solely by the previous place of residence or education and evidence about the role each party played in caring for the child and providing for his welfare prior to separation and since helps to indicate which parent or party - irrespective of where - the child should live with for the sake of stability. 

32. The weight to be attached to the importance of retaining the child's current living arrangements generally depends on a consideration of the circumstances giving rise to that situation, whether they were unilaterally imposed by one party on the other.  Other relevant matters include the age of the child, his wishes if known, how long he has lived in the current environment, the quality of that arrangement, and the nature of the child-adult relationships that have developed within it.  Educational and other needs are also significant.  So too are the interests of the parents, siblings and family members. 

33. Here the existing situation arose because of the grandparents' safety concerns.  The arrangements during the previous six months were agreed on the basis of a mutual understanding that after August the child would return to live outside Tasmania with his mother by 1 January 2007.

34. I have concluded that the objects in section 60B will be more readily achieved and the best interests of K more likely promoted until final hearing by an order returning him to his mother's care wherever she decides to reside, conditional upon provision being made for adequate time and communication with his father and parental grandparents as often as practicable, and subject to appropriate restrictions on the contact he has with Mr B.

35. The mother has had an unchallenged primary care role in relation to the child for most of his growing years.  Apart from the period of three months from March to July 2006 and the six months since August 2006, the mother has provided for all his physical, emotional, developmental and other relevant needs.  She has shortcomings and her profession raises some questions, but this is not a court of morality. 

36. Her proposal for having K babysat while she works is not ideal, but then again, we do not live in an ideal world and single parents have to do the best they can to generate income within their capacities to support the children in their care.  This, it seems to me from the material, is what the mother intends to do.

37. The grandparents impliedly conceded by the terms of the 4 August order that subject to valid safety and welfare based concerns, the mother is a capable parent who can be trusted to encourage and facilitate an ongoing, meaningful relationship between K and his father and then even if she chose to reside outside the state.

38. The only material change in circumstances since the making of the 4 August order is the discovery of the mother's relationship with Mr B.  However, despite the abhorrent nature of his offending, there is no evidence based justification for a conclusion that the removal of the child from his primary carer on this ground, either alone or in conjunction with any other concerns raised about her by the parental grandparents, is in K's best interests.

39. There is no reasonable basis for believing that Mr B would abuse K or otherwise harm him physically or psychologically.  Nor is there any valid basis for the view that the mother is incapable of protecting her son any less now than she has been able to do in the future.  Nor is there any reason to suppose that Mr B would or could corrupt K morally.

40. There is no reason for me to conclude that the mother’s avowed love for Mr B is so blind that she would leave her son vulnerable to him.

41. I accept the mother's evidence at paragraph 16 of her 15 January affidavit and her assurances about taking appropriate protective measures.  The parties' agreement to share parental responsibility for K and their willingness in August 2006 to trust each other to maintain the relationship he has established with all members of the family suggests that wherever he lives the parties will, despite these proceedings, be able to cooperate with each other enough for his sake to ensure that his attachments are maintained and relationships strengthened as much as the circumstances - including the mother's geographical location - allow.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody

Associate:    

Date:  5^th February 2007