Samuels and Errington (No. 2)
[2007] FamCA 507
•5 June 2007
FAMILY COURT OF AUSTRALIA
| SAMUELS & ERRINGTON (NO. 2) | [2007] FamCA 507 |
| FAMILY LAW - CHILDREN – Best interests of child - With whom a child lives – Protective needs and emotional welfare – Family Violence – Risk of mother’s physical and emotional abuse - Risk posed by mother’s partner – Risk posed by media attention – Child’s views – Relocation – Hobart or Perth - Determination of whether the child should live with his paternal grandparents and, as a result, also spend time with his father and maternal grandmother, or whether he should live with his mother. |
| Family Law Act 1975 (Cth) |
1st APPLICANT PATERNAL GRANDFATHER: | MR SAMUELS |
2nd APPLICANT PATERNAL GRANDMOTHER: | MRS SAMUELS |
| 1st RESPONDENT FATHER: | MR SAMUELS |
| 2nd RESPONDENT MOTHER: | MS ERRINGTON |
| FILE NUMBER: | HBF | 974 | of | 2006 |
| DATE DELIVERED: | 5 June 2007 |
| PLACE DELIVERED: | Hobart |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 7-11 and 14 May 2007 |
REPRESENTATION
| SOLICITOR FOR THE 1ST APPLICANT: SOLICITOR FOR THE 2ND APPLICANT: | In person In person |
| SOLICITOR FOR THE 1ST RESPONDENT: COUNSEL FOR THE 1ST RESPONDENT: SOLICITOR FOR THE 2ND RESPONDENT | Ogilvie Jennings Mr Turnbull In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K Mooney |
Orders
It is ordered that
All previous parenting orders with regard to the child K born on … June 1997 be and are hereby discharged.
The child live with the applicant grandparents (‘the grandparents’) in Hobart.
The mother, the father and the grandparents share parental responsibility for making all decisions with respect to all major long-term issues regarding the child.
For the purpose of giving effect to paragraph 2 hereof, the grandmother collect the child from the mother’s residence in Perth at a time to be agreed between the mother and the grandmother but in any event no later than 10:00 a.m. on Thursday, 14 June 2007 (West Australian time).
The grandparents pay all of the costs of and incidental to the child’s move to Hobart.
The mother have the responsibility of making all decisions with respect to the child’s day-to-day care, welfare and development during periods when he is in her care pursuant and subject to these orders, and the grandparents have that shared responsibility at all other times.
The child spend time and communicate with the mother as follows:
(a)for the entirety of the Tasmanian May/June school term holidays commencing in 2008;
(b)for the first half of the Tasmanian December/January school holidays in each odd numbered year commencing in 2007;
(c)for the second half of the Tasmanian December/January school holidays in each even numbered year commencing in 2008;
(d)reasonable telephone communication to be initiated by the mother;
(e)email or webcam communications should the mother so elect, and for that purpose the grandparents shall make the child available for such communication not less than once each fortnight;
(f)should the mother travel to Hobart, for up to seven consecutive nights not more than twice in each calendar year on condition that:
(i)the child not be absent from any required school attendance; and
(ii)the grandparents are given not less than two weeks notice of the mother’s intention to spend such time; and
(g)such further or other times and communication as agreed between the parties from time to time.
Paragraph 7 hereof is conditional upon the mother not bringing the child into contact with Mr B.
All costs of and incidental to compliance with:
(a)sub-paragraph 7(a) be borne by the grandparents; and
(b)sub-paragraphs 7(b) and 7(c) be borne by the mother.
10.The father spend such time and otherwise communicate with the child as is agreed between him and the grandparents.
11.The grandparents shall facilitate the child spending regular time with the maternal grandmother, should she so request, including but not limited to one weekend each month, together with reasonable telephone communication and otherwise as may be agreed.
12.The grandparents authorise the school at which the child attends to permit the mother and the father if they so wish, at their own expense, to -
(a)receive copies of school reports, newsletters and photographs; and
(b)attend or be otherwise informed of parent/teacher interviews.
13.The grandparents ensure that the child undertakes a course of protective behaviours counselling or therapy at their expense.
14.The mother undertake and make all endeavours to satisfactorily complete a parenting course as nominated by the Independent Children’s Lawyer.
15.All applications be otherwise dismissed and removed from the pending cases list.
16.General liberty be reserved to all parties to apply.
IT IS CERTIFIED
17.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED IN CONNECTION WITH THESE ORDERS THAT
18.The judgment of the Honourable Justice Mushin delivered this day will for all publication and reporting purposes be referred to as Samuels and Errington (No 2).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 974 of 2006
| Mr & Mrs SAMUELS |
Applicant Paternal Grandparents
And
| MR SAMUELS |
Respondent Father
And
| MS ERRINGTON |
Respondent Mother
REASONS FOR JUDGMENT
INTRODUCTION
1.These proceedings concern the best interests of K, a boy aged nearly ten years. The most important issue is whether he should live with his paternal grandparents (the grandparents) in Hobart or with his mother in Perth. The applicants are the grandparents. They are supported in their application by the father. The primary respondent is K’s mother.
2.For other than the period between March 2006 and January 2007 when he lived with the grandparents in Hobart, K has lived in the primary care of his mother. Most recently, and since his return to her in January 2007, that has been in Perth. While living with his grandparents, he lived in Hobart.
3.The three most important points in the grandparents’ case have been first, alleged abuse of K by his mother resulting in her having a flawed bond, secondly, the status quo of ten months in Hobart referred to above and thirdly, the role of the mother’s partner.
4.The mother admits many incidents of inappropriate parenting and that, as a result, her relationship with K is flawed. However, she asserts that in approximately the last 8 months she has become aware of her inadequacies and now seeks the opportunity to improve her relationship with K She also asserts that it is important that K be with his mother rather than his grandparents. Further, the mother criticises the grandparents for what she alleges is a breach of an agreement between them for the voluntary return of K to her in the latter part of 2006.
THE PARTIES
5.The grandfather is aged 59 years and is a qualified teacher in Hobart. The grandmother is aged 57 years and also works in the Tasmanian education system as a Laboratory Assistant. They are both in good health.
6.The father is aged 33 years and is unemployed. He has suffered from schizophrenia for a substantial part of his life. He concedes that his health prevents him parenting K but seeks to spend time and communicate with him, at times and on conditions to be negotiated with his parents. The father lives with and cares for his grandmother.
7.The mother is aged 26 years and is presently employed in Perth in a sales position. She is in good health. She is in a relationship with Mr B who is presently aged 39 years and is employed in the computer industry. They do not live together but he is part of her proposal to care for K to which I will refer in due course. Mr B has been in prison for possession of vast amounts of child pornography. That is a major issue in these proceedings.
CREDIBILITY
8.It is not necessary to make a general finding with respect to credibility. As individual incidents of disagreement arise, I will make the necessary specific finding. However I am satisfied that each of the witnesses made every effort to give a truthful account of his or her version of the facts. At times, differences between them were more of perception than anything else.
BACKGROUND FACTS
9.The parents met in Hobart in 1996 and commenced a de facto relationship at the beginning of 1998. K was born in the middle of 1998. The parties separated in October 1998. K remained living in the primary care of the mother following that separation. At approximately the time of the separation the mother went to live in a women’s shelter.
10.On all of the evidence, I am satisfied that the relationship between the mother and the father was dysfunctional, probably from its outset. The father concedes that his illness, which had been diagnosed approximately three years prior to his having met the mother, was at least a major contributing factor to the breakdown of the relationship. Since his diagnosis, the father has required constant, high levels of medication which presently includes a fortnightly injection.
11.I am also satisfied that the mother’s behaviour was dysfunctional. In a letter written by the mother’s mother (maternal grandmother) to an Officer of the Department of Human Services of the State of Victoria (DHS) on 27 November 2001, the maternal grandmother referred to herself, the mother and the mother’s sister as having been -
subjected to 14 years of stalking, harassment, abuse, cruelty and much more by their father after I separated from him….I am not talking about just being annoying to me, I am talking about serious threats, intimidation, poisoning of food, abuse and constant stalking, sneaky things and sending anonymous things through the mail or delivered.
12.The maternal grandmother asserted that the mother had suffered more than her sister -
…as he picked on [the mother] and displayed cruelty and abuse more often; abuse that could be hidden.
13.In 1998, shortly after the birth of K, the mother was convicted of shoplifting. During her evidence she admitted to having used her small baby in the pram, both as a distraction and for the purpose of concealing illegally obtained goods.
14.In 1999, a State of Tasmania child protection file recorded an observation from an unidentified notifier that K had been observed wandering unsupervised in the middle of the road on three occasions. The mother denies that this occurred. For some inexplicable reason, the Tasmanian authorities do not appear to have investigated this matter but simply noted that police would be informed if there were a further notification. On the one hand, this allegation is consistent with a large body of evidence in these proceedings suggesting poor parenting of K by the mother. However, I also note the mother’s denial which, together with the failure of the Department to do more than make a note on the file, causes me to simply record these facts.
15.In approximately July 1999, while living in Tasmania, the mother started working as a stripper in a men’s club. In February 2000 the mother moved to Melbourne with K and lived in rented premises. She continued to work as a stripper.
16.Shortly after her move to Melbourne, the mother was driving a car which was pulled over by police. She was unlicensed. More importantly, K was unrestrained in the car. The mother admitted both those allegations. However, the mother sought to explain K’s not having been restrained by the suggestion that he was able to undo the child restraint. I do not accept that evidence. On the contrary, the DHS records note the mother’s response to the allegation that K was unrestrained as being that she -
“does not have the balls” to make him sit in the car seat. When police discussed the safety issues, mother’s response was that she would pay for the medical and funeral expenses. Police followed mother and she proceeded towards the shopping centre and left the child in the car while she went into the shop.
The mother sought to explain her having left K in the car as not being -
a normal occurrence, however she had left him for 2 minutes because she knew the police were in the car park watching her and she trusted that he would be alright in their presence.
Also during this incident, the mother alleged to the DHS protective workers that she was “having difficulties with K and is willing to work with” another agency to overcome them. DHS decided not to take any further action as it was more appropriately handled by that other agency.
17.One of the significant witnesses in these proceedings was the mother’s sister (the sister). She swore an affidavit supporting the grandparents’ application and was extensively cross-examined. The sister gave evidence of a number of matters relevant to K’s best interests but in particular, of events concerning the mother’s parenting in Melbourne and also an incident in Perth involving Mr B in November 2006. The mother has a different version of the facts to the sister in relation to both areas of the evidence. Likewise, Mr B has a different version to the sister with regard to the latter incident. Both the mother and Mr B respectively corroborate parts of the sister’s evidence in very important respects. On the basis of that corroboration and my observation of all three witnesses, at any point at which the evidence of the sister differs from that of either the mother or Mr B, I prefer the evidence of the sister.
18.Following the mother’s move to Melbourne with K, the sister had a reasonable amount of contact with both of them. The sister’s evidence in relation to the mother’s parenting of K causes me a very high degree of concern. From both her observations of the mother’s relationship with K and her own discussions with him, the sister was able to swear to many details of the mother’s parenting. She observed the mother to chase K around the house on a number of occasions, smacking him on any part of his body with what she described as a “medium sort of smack” and punishing K for anything he would not do.
19.The sister also swore that for several years the mother insulted K by calling him “idiot”, “moron”, “useless” and “slug”. When K was approximately 5 years of age, he objected to his mother calling him “slug” and asked her to stop doing so.
20.During her cross-examination, the mother accepted that she had called K a “slug” but claimed it was said in a light-hearted manner rather than as an insult. She did not accept calling K by the other names. The way in which the mother denied calling K by those other names caused me concern with regard to her credibility but it is not necessary to make any finding on it. The mother also confirmed that K had asked her not to call him “slug” when he was about five years of age and that she had accepted that. While the mother may have belatedly come to understand the damage that might be done to K by calling him derogatory names, her lack of appreciation of the consequences of her actions at the time is concerning. In my view, it is one of many examples of the mother’s conduct which, as a consequence, has damaged her relationship with K
21.K complained to the sister that at times his mother held him down on the couch and placed a pillow over his face. K was very frightened by that conduct which left him gasping for air. K made similar contemporaneous disclosures to a school principal and a police officer in Darwin detailed below.
22.The mother accepted that, commencing in approximately 2004, on four occasions during which she and K had lived in Melbourne and on a further two occasions when they lived in Darwin, she had held K down on his bed or a couch, pinned his arms and put a pillow over his face. She swore that each of these occasions had lasted for about thirty seconds. She later reduced that to twenty seconds. The mother swore that K would say: “Mummy stop”.
23.I accept the mother’s evidence that she did not intend to kill K by these actions. However, I find that K was terrified by his mother’s conduct. That conduct was extremely negative parenting by the mother and was a major contributor to the significantly damaged relationship between herself and K which I will discuss below.
24.As a result of the sister’s criticisms of the mother and her parenting of K, the relationship between the sisters became very strained. I accept the sister’s evidence that by way of punishment of her, the mother denied her contact with K at times. I express admiration for the sister’s conduct. In very difficult circumstances, she has acted protectively towards K at the expense of her relationship with her sister.
25.The DHS file contains an extensive record relating to the mother on 7 November 2001. At that time, Mr F, a former partner of the maternal grandmother, had been living in the same premises as the mother and K for several months. While others appear to be sceptical, there is no evidence to suggest that the relationship between the mother and Mr F was other than one of friendship. Mr F is very substantially older than the mother. He does not have any relevant criminal history.
26.Mr F informed the protective workers that on the previous day he and K had been in the bungalow at the back of the mother’s premises where Mr F lived. Mr F said that he spent a considerable amount of time looking after K because the mother worked at night and slept for most of the day. Mr F alleged that K had told him that he, K, had wanted to have a sleep. K said that he wanted to take “clothes off”. Mr F interpreted that as K wanting Mr F to take his own clothes off as well. In the same incident, K was asserted to have referred to his mother as playing a game called “humping”. Mr F said that he had ignored K’s request to remove his clothing.
27.However, the next day K was again in Mr F’s bungalow and again stated “clothes off”. Mr F said that “I decided to go along with him, I took my clothes off and K took his off”. Both K and Mr F were lying on the bed naked when K climbed onto Mr F’s head from behind. Mr F said that K had then started “humping him on the face and that K’s penis nearly went into his mouth”. Mr F told DHS that that action went on for approximately two seconds before Mr F had stopped it. Mr F alleged that he had informed the mother about the incident and her response had been that she had laughed and said that K had done this because he loved him.
28.Mr F asserted to the workers that the incident described in the previous paragraph occurred approximately 3 weeks prior to the interview. When asked why he had not informed the workers prior to this interview, he had stated that his reason for calling DHS that day “was in regards to neglect issues and that the rest of the information (sexualised behaviour) was more of an afterthought”. He then said that “the child could have been….well, lets say, something could have happened to K in the past for him to behave this way”.
29.Not surprisingly, the DHS protective workers were concerned by Mr F’s account. They interviewed the mother and, as a result, early on the morning of 8 November 2001 the mother signed an undertaking to DHS pursuant to which she agreed-
…to undertake to ensure that [Mr F] leave (sic) my property as agreed with after hours child protection service at 6am on 8-11-01. I also agree that I will contact [DHS] should [Mr F] not leave my property and that I will also contact the police in order to request that they attend my property for the purpose of removing [Mr F]. Further I agree that I will contact [DHS] to advise this service….that [Mr F] has left my property.
The document is dated 8 November 2001.
30.Despite that undertaking, at approximately 8:20am on 8 November 2001 Mr F delivered K to his pre-school centre. When cross-examined about that, the mother stated that she had been asleep because she had been working late and had not woken up in time to take K to the pre-school centre. As a result, Mr F had done so. As a consequence of the mother’s breach of that undertaking, DHS removed K from her care for approximately 8-9 days and placed him in foster care. The Department’s main concern was the continuing involvement of Mr F in the mother’s life.
31.I am satisfied on all the evidence that within a few hours of signing the undertaking with DHS, the mother breached it, in particular by allowing a situation to occur in which K was in the care of Mr F.
32.A little less than three weeks after the incidents described above, the maternal grandmother wrote to DHS as already referred to. In that letter she referred to unacceptable behaviour of the mother which I summarise as follows:
·pursuing a “career as a stripper”;
·being convicted “at least four times on charges of shoplifting” and that she “uses K as a cover” for that purpose;
·“long hours of daytime neglect”;
·“verbal abuse and overt sexual behaviour in front of” K;
·calling K by “terrible names”; and
·“behaving in an overt (sic) sexual way in front of K and saying offensive sexual things to him”.
33.In the same letter the maternal grandmother described the mother as being:
[A] person who has no sense of reality… I don’t believe she is capable of listening and understanding how her behaviour is impacting on [K] and everyone around her. I have been told that after separating from her partner for a short while, he is now back in the home during this last week. Please do not believe that this will solve the problems for the neglect and abuse was happening during the whole time they were together and he also seemed to ‘put up’ with her abuse of him at the moment. She will use her charm to get him back but this ‘nice’ behaviour won’t last long….I feel he needs to be fostered out to save him from destruction.
In recent times the maternal grandmother has changed her view about the mother. She swore an affidavit in support of the mother’s application and also gave viva voce evidence on her behalf.
34.The mother moved with K to Darwin in January 2005 and lived there for a little over one year. During that time, she was employed in child care, assisted in K’s after school care and was then employed in a sales position. She did not work as a stripper while living in Darwin.
35.As referred to above, there were a further two instances of the mother pinning K down and holding a pillow over his face while they lived in Darwin. The file of the Department of Health and Community Services of the Northern Territory is evidence in these proceedings. On 23 June 2005 that file refers to a disclosure having been made by K to the Principal at his school, who was present with a police officer. The file states that his -
…mother tried to suffocate him. The child stated that the mother has tried to suffocate the child by placing a pillow over the child’s head on a number of previous occasions. The child stated that he feels frightened. The child said similar incidents have happened to him about 10 times previously. The first time this happened was in Melbourne. The child said that the mother places a pillow over the boy’s mouth and he found it difficult to breathe. The boy told the Constable and the Principal that he was not laughing at the time and said that the actions of the mother were not a game. The child also said that sometimes his mother gets very angry and she comes into his room in the middle of the night.
36.Both the Constable and the Principal believed “that the child’s story is plausible”. They decided that they would “talk further to the mother concerning these allegations”. That discussion did take place, as a result of which the Department protective worker recorded the view of the Principal as being –
that the mother seemed to indicate that she had no idea of what the child was talking about. The mother seemed a little shocked and did not overtly over react.
37.During cross-examination, the mother admitted that she had denied attempting to suffocate K to the Department. She also admitted that in making that denial, she had lied.
38.All of the evidence satisfies me that during 2005 while the mother lived with K in Darwin, she was experiencing increasing difficulties in parenting. That period was a continuation of the events which occurred in Melbourne with regard to parenting and which, in my view, amount to a very high degree of neglect and maltreatment of K From the point of view of the grandparents and the sister, that all came to a head during Christmas 2005 when K visited the grandparents in Hobart. The sister swore that during that period K told everyone about the abuse that had been going on. She said that he had “told us about strangling, suffocating”.
39.The grandparents and the sister were most concerned about K’s welfare as a result of his visit to Hobart. In January 2006, K having returned to the mother’s care in Darwin, the grandparents formed the view that K needed to be removed from the mother’s care and they determined that they would seek to care for him themselves. It would appear that during this period the mother had recognised that she was having difficulties in parenting K In my view quite incredibly, she turned to Mr F who had offered to assist. The mother also said that she had considered moving with K to Perth.
40.On 25 March 2006 the grandparents collected K from the mother in Darwin and took him back to Hobart where they cared for him as referred to below. There is considerable conflict in the evidence of the various adults with regard to the circumstances in which that was brought about. The mother asserts that she asked the grandparents for help in caring for K. The grandmother asserts that she was contacted by the maternal grandmother saying that there was a problem in the mother’s care of K The maternal grandmother informed the grandmother that the mother had said that she had made a mistake in requiring K to go back to the mother after being with the grandparents for several weeks at Christmas. The maternal grandmother reported the mother as having said: “K and I don’t get on”.
41.The maternal grandmother supported the mother’s version of these events to the extent that she was aware of them. She specifically denied having cooperated with the grandmother in creating a situation in which K would live with the grandparents. Ultimately, I do not find it necessary to make any detailed determinations of these disputes. It is sufficient to find that in late 2005 and early 2006 the mother recognised that she was having difficulties in parenting K and required assistance. That recognition resulted in K living with the grandparents in Hobart between March 2006 and January 2007.
42.A further area of disagreement on the facts concerning this period related to the question of whether, and if so when, K was to be returned to the mother’s care. The grandmother asserts that she had no idea of any timeframe for the return of K to the mother. The mother asserts that she had told the grandmother that it would be acceptable for K to be returned to her at the end of the year unless the grandmother wanted to return him earlier. Again, I do not find it necessary to determine that issue as subsequent events overtook any previous agreement which the parties may have reached.
43.From the time that K commenced living with the grandparents in Hobart, he appears to have thrived. No complaint is made about the quality of the grandparents’ parenting of him. He went to a local school and appears to have developed appropriate social contacts.
44.In March 2006 following the change of K’s care to the grandparents in Hobart, the mother moved to Perth. She resumed work as a stripper.
45.The mother asserts that on Mothers’ Day 2006, the grandparents proposed to her that they adopt K The grandparents deny any suggestion of a formal adoption but rather, that they were seeking to care for K on a long-term basis. Again, in the circumstances it is unnecessary to decide that dispute.
46.On 31 May 2006, while she was at work as a stripper, the mother met Mr B. Mr B is the subject of one of the most contentious issues in these proceedings and the one which has received most publicity. On 12 April 2005 Mr B was convicted of two counts of possession of child pornography and sentenced to three years imprisonment concurrent on each charge. The volume of the child pornography, 350,000 still images and 6400 videos, is said to constitute an Australian record for the greatest amount of child pornography collected. Mr B had been released from prison on parole on 12 April 2006. That parole finishes in October 2007.
47.Shortly after their meeting, the mother and Mr B commenced a relationship. The mother swore that Mr B had disclosed his convictions prior to their first date. They have continued their relationship to the present time although they do not live together.
48.The sister became aware of the mother’s relationship with Mr B in approximately June 2006. The mother had told the sister his name and she had looked him up on the Google search engine. The sister and the mother discussed the relationship at about this time.
49.On 22 July 2006, while K was living with the grandparents, K went to visit the maternal grandmother who also lives in Hobart. It was understood by both the grandparents and K that this was only a visit. However, as a result of a subterfuge in which the mother and the maternal grandmother conspired, K was placed on an aeroplane to Perth with the intention that he would resume living with his mother. On his arrival in Perth, K met Mr B for the first time.
50.The grandparents were both terrified and outraged by the actions of the mother and the maternal grandmother and correctly believed that they were contrary to K’s best interests. As a result, they brought proceedings in the Hobart Registry of the Court on the 31 July 2006 on which date an order was made that the mother forthwith return K to the grandparents care in Hobart. The mother and K arrived in Hobart on 2 August 2006.
51.The proceedings filed on behalf of the grandparents referred to in the last paragraph included an application for final orders for K to live with them on a permanent basis. That, together with an application in response by the mother seeking K live with her, have been the primary applications before me.
52.On 4 August 2006 the applications came before Benjamin J in the Hobart Registry. His Honour ordered by consent that the paternal grandparents and the mother have the joint parental responsibility of K It was further ordered, not by consent, that K was to live with the mother “as and from the first day of the Christmas/New Year Tasmanian school holiday period”. The order also provided for all parties, including the father and the maternal grandmother, to “arrange between themselves” the time which K would spend with each of them over the September school holidays as well as Christmas Day and Boxing Day.
53.It was a vital part of the order referred to above that the mother was “permitted to relocate the place of residence of the child to Melbourne on or after 1 January 2007”. The mother was required to attend a parenting course and a usual non-denigration injunction was ordered.
54.In September 2006, shortly after the making of the above orders, K told the grandmother that he had tried to kill himself by swallowing toothpaste and the mother’s “creams”. It was understood that by “creams” K meant the mother’s makeup. That conversation took place shortly after K was informed that he was expected to return to the mother’s care at the end of the year.
55.In November 2006 the sister visited the mother in Perth. She stayed at the mother’s home for three days and two nights. I have already referred to a factual dispute between the sister on the one hand and the mother and Mr B on the other. That dispute is over the events which I am about to relate. It is common ground that during this visit there was an extremely heated argument between the sister on the one hand and the mother and Mr B on the other. The sister described it as “a fight”. The mother and Mr B referred to it as “an argument”. The basis of the dispute was the sister having expressed to the mother her concerns with regard to the mother’s relationship with Mr B, particularly given Mr B’s convictions and the expectation that K would be returning to the mother’s care in the near future. The mother alleged that the sister had called her derogatory names and referred to her as a “prostitute”. During the argument, Mr B, who took exception to the way the sister had spoken to the mother, held the sister against the wall and referred to her and her family as being “fucked up”. He said that the sister was lucky that he wasn’t going to hit her. She asked him to remove himself from her “personal space” which he refused to do. The mother said to the sister “you’re going to end up very lonely”. I particularly note evidence of the sister, accepted by Mr B, that during this argument Mr B said to the sister “you’re lucky I don’t hit women”.
56.The sister asserted that there were other indications of Mr B’s temper. In particular, the sister alleged that Mr B had dragged the mother off the couch into the bedroom and in doing so, had given her carpet burns. Both Mr B and the mother dispute that assertion and claim that it was part of play rather than a fight between them. I prefer the sister’s evidence on that matter.
57.The sister asserts that, by her observation of Mr B, he is short tempered. During cross-examination, Mr B denied that he had a bad temper. I do not accept his evidence. At least inferentially, his statement that “… I don’t hit women” suggests that he does not eschew all physical violence. His conduct during the fight with the sister portrays him as a threatening and intimidating person. I am far from persuaded that in a similar situation in the future, he would be beyond physical violence.
58.On 7 November 2006 the mother and Mr B commenced living together. At about this time Mr B applied to change his parole conditions to enable him to live in Victoria. That application was refused.
59.On 8 December 2006 the sister telephoned the grandparents and informed them about the mother’s relationship with Mr B and of Mr B’s background. That information was received with horror by the grandparents who commenced further proceedings in the Court.
60.On 23 December 2006 the mother ceased work as a stripper. She arrived in Hobart two days later. She and Mr B ceased living together at that time. On 26 December 2006, the mother and the sister had a physical fight and have not been on speaking terms since that time.
61.Interim proceedings came on before Carmody J in the Hobart Registry of the Court on 16 January 2007. The principal issue was whether K should return to the care of his mother in Perth or remain with the grandparents in Hobart. The role of Mr B in the mother’s life was a major issue before his Honour. Carmody J discharged all relevant orders previously made in August 2006 and ordered that K live with the mother. The whole context of his Honour’s order was that the mother would live with K in Perth but as a condition of that, she was not permitted to live -
with [Mr B] or allow him to stay overnight in her household or elsewhere when [K] is present.
An order was made for the grandparents to spend time with K in either Hobart or Perth as may be agreed and irrespective of agreement, for the second half of all school holidays in Hobart, at the expense of the grandparents. The mother returned to Perth with K shortly after the making of those orders.
62.Paragraph 4 of his Honour’s order was particularly important. It was in the following terms:
The mother be restrained from allowing the child to spend any time with [Mr B] unless she is personally present in the same room.
63.Carmody J’s orders were extremely controversial from the point of view of the grandparents and the sister. A publicity campaign was embarked upon, particularly by the grandfather. The grandfather wrote to the child welfare workers of the relevant Department in Perth to alert them to what he regarded as being a risk to K He also wrote to the principal of K’s school. Of greater importance in the context of K’s best interests was the fact that the grandfather embarked on a media campaign. He wrote about Carmody J’s decision and his dissatisfaction with it to several organisations and identified by name the parties involved, including K. At least two of his writings have found their way onto the internet. During the hearing, I was very critical of the grandfather for some of those actions. He and his then counsel also went on national radio to talk about the decision.
64.In accordance with Carmody J’s orders, K went to Hobart in April 2007 during his school holidays and stayed with the grandparents. The sister also visited during that time. During a discussion between the sister and K, K alleged a suffocating incident by the mother in Perth in the last few months. The sister swore K had told her that he was now “stronger” and was able to get away from the mother when she behaved in that way. The sister also swore that K had told her that the mother had been hurting him by hitting his head into a wall and hitting him in the stomach. I find it extremely concerning that those allegations continued to be made by K after his return to Perth following the making of the orders by Carmody J.
65.Mr B gave evidence in these proceedings by video link from Perth. During that evidence he spoke glowingly of K and very positively of his relationship with him. He gave a number of instances of activities which the two of them pursued. One of those instances was going sailing together without anyone else being present. When asked, Mr B swore that there had been another person sailing nearby. The mother asserted that the sailing had been close to the shore. In my view the sailing activity of Mr B and K unaccompanied by any other person, in particular the mother, amounts to a breach of at least the intent of paragraph 4 of Carmody J’s orders. The orders clearly stated that Mr B not be permitted to be in the same room as K without the mother being present. I do not accept that sailing in these circumstances is any different.
THE PARTIES’ PROPOSALS
66.The first issue concerns the question of parental responsibility for the long-term decisions concerning K’s upbringing. It is common ground amongst all four parties that parental responsibility for those matters should be at least with the grandmother and the mother. There was discussion during the hearing as to whether the grandfather or the father, or both, should also be included. The competing views are not put with any great fervour. It is common ground that in any event, the parties are going to be able to consult sufficiently no matter what the formal provisions of the order might be.
67.The fundamental issue in these proceedings is the question of whether K should live with the mother in Perth or the grandparents in Hobart. The father and the Independent Children’s Lawyer support the grandparents’ position.
68.It is common ground that in the event that K lives with the mother in Perth, she should have the parental responsibility for making day-to-day decisions with regard to his upbringing. However, the grandparents, supported by the father, asserted that in that event, K should not be brought into any contact whatsoever with Mr B. That is opposed by the mother.
69.In the event that K lives with the grandparents in Hobart, there is a question of whether parental responsibility for day-to-day decision-making should be with both grandparents or with only the grandmother. The mother states a preference for only the grandmother to have that responsibility as the relationship between those two women is remarkably good. Conversely, the relationship between the mother and the grandfather is at best strained.
70.The question of time to be spent and communication to be had with all the parties with whom K does not live is essentially agreed. K will travel between Perth and Hobart for two of the four school holidays with the expense to be shared. In this regard the only major question is whether, if K lives with the grandparents in Hobart, he should spend any time with Mr B, and if so how much time. The grandparents, supported by the father, asserted that there should be no such order for K to spend time or communicate with Mr B. The Independent Children’s Lawyer did not seek any order relevant to that issue.
71.The father’s position is quite limited. He accepts that by virtue of his health he is unable to care for K His essential proposition is that he seeks to spend time and communicate with K while K is in the care of his grandparents. All parties expressed confidence that the grandparents and the father will be able to negotiate that matter entirely satisfactorily and in K’s best interests. Accordingly, it is not an issue before me.
THE EXPERT EVIDENCE
72.Two experts gave evidence in these proceedings. The first of those is Ms S, the Family Consultant who interviewed all relevant parties, including K, for the purpose of assisting the Court in determining K’s best interests. The second expert witness, Dr A, was called by the Independent Children’s Lawyer on the issue of what risk, if any, might be posed to K by his having contact with Mr B.
The Family Consultant
73.Ms S is employed in the Court’s Mediation Section. No issue was taken with regard to her qualifications to conduct the relevant interviews and write the report which is evidence before me. Ms S first interviewed the mother by telephone from Hobart to Perth. She then conducted interviews with the grandparents together and then with the father. Ms S then conducted a further telephone interview with the mother. She travelled to Perth and interviewed both the mother and Mr B separately. She observed K with both the mother and Mr B and then interviewed K
74.Ms S returned to Hobart where she observed K, who had arrived in Hobart to spend time with the paternal grandparents for the school holidays referred to above. She observed K with the grandparents and the father and also interviewed him. She had a brief interview with the grandmother followed by further observation of K, this time with the maternal grandmother and her present partner. She then interviewed the maternal grandmother and her partner. In addition to the interviews referred to above, Ms S read all the relevant documents.
75.I was most impressed with both the written report and viva voce evidence of Ms S. It was thorough and entirely consistent. I accept her evidence in its entirety. In certain respects Ms S swore to matters which were contrary to other evidence in the proceedings. To the extent of any conflict, I prefer the evidence of Ms S.
76.Ms S described what she regarded as being the parameters of the report as follows:
This assessment is most useful as an indication about child welfare issues and K’s views. It also explores the reasons for K’s placement with his paternal grandparents and the relationships between the maternal and paternal families.
This assessment is not appropriate as an assessment of risk factors relating to K’s relationship with Mr B.
The last sentence in the above quote was the basis of the decision by the Independent Children’s Lawyer to call Dr A.
77.Ms S recorded the paternal grandparents as follows:
“They communicate respectfully with each other and are prepared to differ in their opinions. They also listened appropriately. They present as united in their application in relation to [K]. However, it appeared that [the paternal grandfather] has a greater focus on protecting K from any risk, while the [paternal grandmother] prevaricates more about a best possible solution for everyone as she has a greater focus on retaining a good long term relationship with [the mother]. Both [the paternal grandparents] spoke warmly and positively about the mother as a person and express good hopes for the future. They both express empathy with [the mother’s] feelings… regarding the disruptions in her relationship with [K]. Their preferred outcome would appear to be a shared parenting arrangement in Hobart where in [K’s] best interests would be met by [the mother] having more support in her parenting and [K] being protected by seeing other family members more frequently.”
78.Ms S emphasised the wish of the paternal grandparents to be able to cooperate with the mother in parenting K in accordance with his best interests. Ms S wrote:
[The paternal grandparents] wish to retain a good relationship with the mother for the sake of [K]. They are unhappy that the Court dispute has become the focus between them rather than [K’s] best interests.
79.I agree with the views expressed by Ms S in relation to the paternal grandparents. I accept that they are at pains to maintain their relationship with the mother which they correctly see as being in K’s best interests. I accept that, at least at the time that Ms S conducted her interviews for the report, the paternal grandparents may well have accepted sharing time with the mother in caring for K provided that the mother lived in Hobart. As a result of the evidence during this hearing, I do not believe that that position was maintained. In any event, it is only hypothetical as the mother is not prepared to live in Hobart.
80.Ms S also expressed positive views about the father. She noted him as feeling “rather burdened by his illness and limitations that this imposes on him. He speaks about feeling responsible to help K and feeling frustrated by the difficulties this poses for him.” Ms S notes the father as being “very happy” that he has “some bond or relationship still, as parent to [K]” with the mother. According to Ms S, the father –
“expresses lots of fears and worries about [K’s] welfare. He says he just has to ‘shut it out sometimes’ as he just does not know what to do to help [K]. The father expressed the view that his parents provided ‘a good environment’ for [K] and that his behaviour improved during the time he lived there. He believed that [K] had been ‘told off a lot’ by his mother as he had been ‘a bit of a handful’.”
81.In her written report, Ms S gave a description of her interview with the mother. She wrote:
[The mother] says that [K] wants to go back to Tasmania and live there. She says this ‘feels pretty bad, he doesn’t seem to recognise who cared for him for 7½ years’. She says ‘but I want him to live with me, he will realise I am his direct family’. [The mother] says the hardest part for [K] in adapting to living back with her is ‘he got used to seeing his dad’ and he will ‘miss his family there’. She fears that the longer [K] lives in Hobart, the more he would want to stay and ‘I’d see him but we’d meet up when he is 12 and find I’d lost my son … in the long-run he wouldn’t have a mother there in the normal sense’. She believes that even if their relationship was poor, not living with his mother ‘would lead to problems for the child, (he would ask) what have I done, what has my mother done’. She believes that [K] will value hearing about their shared memories of his baby years and their past and also sharing the ‘heart to heart, we’ve always been together, we’re alike’. She does not want to live in Hobart or Melbourne herself, although she considered moving to Hobart to be near [K] during 2006. [The mother] thinks [K] will adapt to living with her again.
82.In her report, Ms S recorded the maternal grandmother as follows:
[The maternal grandmother] acknowledges that she has held concerns for a long time about [the mother’s] behaviour towards [K], saying ‘I’ve said all along, you can’t yell and scream, you can’t treat children that way’. She described this as an ‘automatic response’ from [the mother]. She believes this to be due to the mother having been abused, verbally and physically, by her own father and never having dealt with this. However, she believes that [the mother] is trying to get her life together and that ‘she has learnt to discipline [K] in a calm way’.
83.The maternal grandmother told Ms S that prior to K moving to Perth she told him “if [the mother or Mr B] hurt or touch you, phone me or go to a teacher”. The maternal grandmother also said she had been monitoring K’s welfare by telephone while he was in Perth. “I have asked him specifically, is mummy hurting you?” Nevertheless, the maternal grandmother declined to suggest that K live with anyone other than his mother.
84.In a further interview, Ms S noted the maternal grandmother was very complimentary about aspects of both the mother’s treatment of K and the nature of her relationship with the father. I will return to that matter in due course.
85.With respect to K, Ms S wrote as follows:
[K], in his individual interview, was readily forthcoming about his experiences. In summary:
· He really likes living in Tasmania and wants to return there
· He expresses fears about his mother’s behaviour towards him
· Most of his fears are based on past experiences but some are more recent
· He loves spending time with his father
· He really misses his father and grandparents
· He loves having the company of extended family
· He loves celebrating special occasions with lots of family
86.In particular reference to the third bullet point and specifically to “more recent” experiences, Ms S wrote as follows:
[K] said he had gone to live with his grandparents because his Aunt… had ‘told them that my mum suffocates me’. He said this had started when he was five. He described being suffocated by a pillow placed over his head, by a coat being tightened around his neck and his mother ‘put her hand over me so I couldn’t breathe’. He told his Aunt… about the pillows, ‘then some people came over, I told them’. He also told [a former partner of the mother] ‘but he didn’t believe me’. [K] said that his mother still tries sometimes but ‘I’m stronger now’. Since he has been in Perth, [K] says it has happened ‘only once, it wasn’t that bad, I got out straightaway and threw the pillow away’. He said the pillow came from the couch and said ‘she stops it but she still hurts me’. K was asked to demonstrate what had happened, with pillows from the couch in the interview room. He indicated that the pillows that his mother used were smaller than the pillows in the room and showed how he would be lying on the floor with his mother putting a pillow over his face and pressing down. Asked again if this had happened in Perth, K said ‘she tried but I got out’. K also volunteered that his mother ‘swears at me and says she hates me sometimes … she swears a lot, the F word and the B word’. He said that since he has been in Perth, ‘she still hurts me, (she will) smack me, kick me or make me go in my room for no reason’.
87.Ms S asked K how much he missed his mother while he was in Hobart and how much he missed his grandparents and father while he was in Perth. In accordance with Ms S’s request, K held up different numbers of fingers to indicate his preferences. Those preferences very greatly favoured the position of missing his grandparents and father while he was in Perth.
88.Ms S again interviewed K in Hobart. He said that the choice of where he wanted to live was “a little bit hard” for him. However he said that –
he did not miss his mum very much … but said that he missed his grandparents very much when he was in Perth… Asked what [he and his mother] argue about, [K] described how his mother ‘starts grumbling about my tidying up, I get frustrated … if I’ve forgotten to fold my clothes from the washing, she’d get angry, if I don’t put clothes away or my pyjamas are on the floor, she yells and screams’. [K] said ‘she kicks me sometimes, on purpose, 4 or 5 times in the belly’. Asked whether she pinched him, [K] said ‘sometimes - on my arm mostly’. Asked about having his hair pulled, [K] said ‘she does it a lot’ and demonstrated by tugging his hair. He said ‘two weeks ago, I got really frustrated, she bashed my head against a wall, about 10 times, she just went out of the bedroom and I was crying in my bed’. He said ‘she probably forgets all about it and I forget about it’. (emphasis added)
89.Ms S also spoke to K about his relationship with Mr B. K said that he enjoyed when Mr B came to their home because the mother “acts nicer, when [Mr B] goes, she acts mean, I get really scared, she acts really nice to everyone but she isn’t around me”. K told Ms S that the mother had “started acting mean” in Darwin. Ms S reported:
[K] said he had gone to live with his grandparents because his mother had to get a new job because she did not have enough money to look after him. He did not know if it was meant to be forever but he ‘thought I was going to stay’.
90.K spoke well of his maternal grandmother and enjoyed being with his Aunt, the sister. Ms S states:
He spoke of seeing his mother and [the sister] having a ‘massive argument’ last time he saw his Aunt. He has talked to her on the telephone and says ‘she always cries because I probably have to live in Perth’. He appears to have felt protected by [the sister] listening to his concerns in the past.
91.In a further testing of K’s feelings towards the relevant adults, K was asked to choose from a range of bears expressing different emotions. K chose:
extremely happy expressions to represent his feelings in relation to being and staying in Hobart. He chose a bear showing anger and another looking upset and holding his paws out front in a resistant manner for his feelings about going back to Perth. He said that the hands were saying ‘no’.
92.In her evaluation of K’s relevant relationships Ms S wrote that prior to moving to Hobart, K’s contact with extended family “was limited to infrequent visits and telephone calls”. Ms S praised the mother for enabling “the development of a positive relationship between [K] and his father and grandparents”. In relation to the mother’s history of maintaining positive contact with those who have been close to her, Ms S noted that:
This appears to reflect her own emotional need to have a ‘family network’, perhaps resulting from her own experience of a dysfunctional family background.
93.Ms S emphasised that:
There are significant questions about the risks for [K] associated with being in his mother’s care.
In the concluding evaluation of her report Ms S wrote:
The next five years of [K]’s life will determine whether he grows into a well adjusted happy teenager who will fulfil his academic and life potential. If there is any risk of abusive parenting during the next five years, [K] will be at risk of developing into an angry, acting out teenage boy who will be unlikely to fulfil his potential. The unacceptable parenting behaviour of the mother towards [K] appears to have been ongoing for some time and according to [K], has not stopped. The abusive behaviour occurs privately and will not be observed by outsiders. The disclosures by [K] have been the main source of knowledge of the problems. Although [K] is very young, he needs to be assured that he will get help if he makes disclosures about his fear and safety. [K] says his mother’s behaviour is worst when they are alone. [The mother] minimised the extent of the behaviour during interview. For [K]’s safety, he would need a close, face-to-face relationship with extended family. This would also provide the mother with support if she felt overwhelmed with the demands of parenting. This would not be possible if he lived in Perth, where he and his mother are isolated from extended family.
…
[K] has been consistent in expressing a wish to live in Tasmania. He freely stated this both in Perth and in Hobart. All the adults interviewed are aware of his strongly held wish. The mother’s family dismiss [K]’s views as resulting from his being spoilt with material possessions and junk foods by the father’s family. [K] did not speak very much about these aspects of his care by his paternal grandparents, although he does talk about the books that he buys with his grandfather. Rather [K] talks about the enjoyment he gets from the activities he does with his father, and his love for his father and grandparents, especially his grandmother. He talks about enjoying celebratory family events. … It seems more likely that [K] prefers the love and attention and activities of being with extended family in Tasmania to that of feeling isolated living interstate with his mother. It was also evident that [K] is primarily interested in his relationship with his father and he greatly misses his father when they are not seeing each other.
It is unusual for an only child of a single mother not to have developed a strong, somewhat exclusive, even protective, relationship with that parent. It may suggest that [K]’s fears about his mother’s behaviour towards him are disrupting his primary bonding with her. It may be indicative that there have been problems in the development of their primary bond. It is protective for [K] to have developed strong alternative or additional attachments, to his Aunt, his father and all his grandparents. It is imperative that these positive protective attachments are not disrupted by future parenting arrangements. Until [K] and his mother are able to repair their relationship, [K] will need the security of frequent contact with his other attachment figures. The extended family would be best placed to assist [K] and his mother if they are living in close proximity to each other.
K’s disclosures
94.No challenge has been made to any witness with regard to the veracity of the evidence of K’s disclosures regarding the mother’s parenting. The question still remains as to whether the disclosures themselves are the truth. In the first place, K has made disclosures to a number of people. Secondly, those disclosures are consistent. Thirdly, they appear to be age-appropriate and there is nothing fanciful in them. Fourthly and most importantly, the mother has admitted to at least some of the disclosures, particularly with regard to the allegations of suffocating. Accordingly, I find that K’s disclosures are truthful and the events related by him have actually occurred.
The Child Psychiatrist
95.Dr A, a clinical and forensic child and adolescent psychiatrist gave evidence as an expert witness on behalf of the Independent Children’s Lawyer. Dr A was provided with the family report prepared by Ms S and subpoenaed documents regarding Mr B’s treatment, particularly counselling records, during his imprisonment. Dr A had not met or assessed any of the parties and his evidence was accordingly limited. I intend no criticism by the previous sentence.
96.Dr A stated that there is limited research – and indeed “some diversity of opinion” - into whether there is any causal link between possessing child pornography and committing acts of child abuse, sexual or otherwise. He noted that whilst the evidence clearly indicates that “those who are subsequently found to have engaged in child molestation or paedophilia are more likely to also have a considerable interest in child pornography”, there is no conclusive evidence that the reverse is true.
97.In relation to Mr B specifically, Dr A stated:
I think that what I would have to say is the evidence is inconclusive and that while one may have concern, I don’t think there is any positive evidence to lead one to the view, given as far as the material I was provided, no previous history of child sexual abuse in a non-pornographic sense of the word, no conviction in that regard have been provided, and what appears to have been a positive and active participation in a treatment program. I think all of those give some comfort in reducing the risk of such events occurring.
However, he went on to say:
If you were to ask me as a child psychiatrist what do I think whether someone with that history of collecting pornographic material is at greater risk of sexually abusing a child regardless of gender, than whatever the average man in the street might be, then I would have to say I think the answer is yes, although it’s based on clinical impression rather than some form of firm scientific knowledge.
98.Dr A was asked whether it was relevant that the pornography which Mr B collected was only of girls and not of boys. Mr A replied that this was a “partially relevant fact” and that whilst it was of “some comfort” it was “by no means total comfort”.
99.Dr A also indicated that the magnitude of the pornographic material collected by Mr B did not necessarily mean that he posed an increased risk of sexually abusing and may be more related to obsessive behaviour.
100.Whilst Dr A had not met Mr B and therefore could not comment on the opinions of his treating clinicians about his proposed reform, he did state that the evidence indicated Mr B had a “significant degree of insight into his behaviour” and into his “distorted thinking patterns” which was positive. He noted, however, that on several occasions there was some divergence between Mr B’s assertions about his offending in his treatment report and what apparently occurred. Mr B had told Ms S that none of the girls were younger than 12 years and that they were not engaged in sexual acts. In fact, some of the girls were as young as 6 or 8 years and some were depicted as being involved in sex acts. Dr A found that to be concerning.
101.Dr A noted that the 5% risk of recidivism which was identified in Mr B’s treatment records was a low risk and indicated that Mr B “may have learnt to turn off those [sexual] interests”. Dr A noted with concern, however, that Mr B had met the mother in a strip club. He stated that such behaviour was “risky” and could signal the “beginning of a relapse” since:
one of the things in relapse prevention that most offender treatment programs refer to is looking at contexts which stimulate the sorts of arousal stimuli.
102.Dr A also expressed concerns about the kind of role model Mr B would be to K. Dr A stated that Mr B’s potentially negative role-modelling posed several developmental risks to K:
a)If Mr B relapses, child pornography may be accessible to K; and
b)K may adopt the negative attitudes towards women and children, sexuality and pornography that are reflected in child pornography, as well as “attitudes to relationships and the way people conduct themselves in relationships”.
103.Dr A stated that the literature about child pornography demonstrates that one of the key problems with it is that those using it see it as “victimless crime”, that is they use the child as an object for sexual gratification without acknowledging that the child could not possibly have been consensual or informed. Dr A stated that in this way, the use of child pornography itself is an abusive act.
104.The mother put to Dr A in cross-examination that it was a condition of Mr B’s parole that there be no child pornographic material in his home and that therefore the risks to K were reduced. Dr A acknowledged that if this were so it would reduce the risks in that K would not be able to directly access pornographic material, but the risks in terms of the attitudes that Mr B may still possess and may convey to K were not so easily assessed.
105.The question was also raised about whether, if Mr B’s history became known – and it appears that since this case has received considerable publicity this may be so – K may face emotional and physical risks in relation to his peers and their parents. Dr A speculated that K may be subjected to ridicule by his peers, that he may be excluded from social outings or not invited to other children’s homes and that if K invited other children to his home their parents may not allow them to come if Mr B were part of the family. Dr A also mentioned that it was conceivable K may be physically beaten up by his peers. Whilst he stated that he could not quantify such risks, he did draw attention to the practice of certain groups in tracking down and publicizing the whereabouts of sex offenders and the natural responses of heightened caution and protectionist behaviour that parents may have in learning of Mr B’s history.
DISCUSSION
In my consideration of these applications, I must take into account the various provisions of Part VII of the Family Law Act 1975. The primary provision of the legislation is that K’s best interests are the paramount consideration in these proceedings. “Paramount” does not mean “sole”; it means “most important”.
I must then consider the various objects and principles which underlie Part VII governing applications for parenting orders which includes these applications. For the benefit of the parties I set out those objects and principles as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child‘s or Torres Strait Islander child‘s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child‘s age and developmental level and the child‘s views; and
(ii) to develop a positive appreciation of that culture.
108.The provisions of the objects and principles quoted above are clearly very important in applications which will result in the subject child living a vast distance from one or other side of his family in circumstances which will make a promotion of the relationship with the other somewhat difficult. The reality of these applications is that that will be the result. Despite my attempts during the hearing to invite alternative proposals, particularly from the mother, resulting in the parties living in the same city, none have been made. The decision which I am required to make as to where K is to live will inevitably result in a separation between Perth and Hobart.
109.The Act provides that in proceedings for parenting orders --
… the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
110.The presumption quoted in the last paragraph applies to K’s parents. As I have already noted, all parties are agreed that at least the mother and the grandmother should share parental responsibility for K’s long-term care welfare and development. The presumption therefore would apply to the mother and the father.
111.The presumption does not apply in circumstances in which there has been child abuse or family violence. The only allegations of child abuse affecting K are made against the mother. If I find that the mother has abused K, while the presumption would not apply, that would not prevent me from making an order pursuant to which she shared parental responsibility for K I will return to that question in due course.
112.In the event that I order shared parental responsibility to the parents pursuant to the presumption, I must then consider the issue of whether they should equally share the time of caring for K By virtue of the proposals put by all parties in these proceedings, that is not relevant.
113.Likewise, the next statutory requirement of considering substantial and significant time for the non-resident parent is irrelevant. Again, that is because of the nature of the proposals being put by all parties.
114.I now consider the various factors which I must take into account in determining what is in K’s best interests. The first of those is the benefit to K of having a meaningful relationship with both his parents. I have already given consideration to this matter in my discussion of the objects and principles quoted above. Clearly, it is very much in K’s interests that he has such a relationship with both his parents. However, the basis on which this matter has been litigated prevents my making orders which might be considered as being optimally in K’s best interests. The necessary consequence of the orders which I will make will be that K will be deprived of frequent contact with one or other side of his family.
115.I must then ensure that K is protected “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. In my view, this is the fundamental issue in these applications.
116.I regret to have to find that were K to live with the mother in Perth, he would be exposed to a very high risk of physical harm by being subject to abusive behaviour by his mother. I arrive at that view as a result of extensive evidence of the mother’s history of parenting K detailed above, some of which is corroborated by her. In particular –
·the six instances of suffocating K over a period of 18 months in Melbourne and in Darwin;
·the further attempted suffocating of K in Perth between January and April 2007;
·leaving him unattended;
·placing him in the care of at least one inappropriate person, namely Mr F;
·travelling with him in a car while he was unrestrained; and
·leaving him in the car on his own in a shopping centre car park while assuming that he was being supervised by police who had only very recently pulled her over because K was unrestrained –
are specific instances of the mother’s physical abuse of K
117.The evidence satisfies me that K is also at risk of emotional and psychological abuse by the mother. The evidence of the names which the mother used to call K and K’s having expressed the wish that she not call him “slug” is concerning. Other evidence detailed above by the sister together with the maternal grandmother’s letter to the Victorian Department of Human Services in November 2001 are equally troubling.
118.K’s statement to Ms S that he feels safer with his mother if Mr B is present rather than when he is on his own with her supports the proposition that K fears his mother, at least at times. It is concerning that his fear of his mother has continued until at least very recently. That is derived from the fact that other than a few days in late July 2006, K has only known Mr B since his return to Perth in January 2007.
119.On the basis of Dr A’s evidence, the risk to K of being sexually abused by Mr B is higher than the risk posed to him by another male who does not have Mr B’s criminal record. While Dr A’s evidence establishes that this risk is relatively low, that evidence nevertheless indicates that environmental factors such as Mr B’s access to computers, particularly with his work in the computer industry, may affect the level of risk.
120.I am concerned by Mr B’s statements to Ms S with regard to the nature of the child pornography which was the subject of his conviction. Mr B told Ms S that the material related to “teenage girls, not below 12” and it was “not sexual content, just nude pictures”. In fact, the material did relate to girls under the age of 12 years, some as young as 6-8 years, and also included depictions of sexual acts.
121.I am also concerned by what appears to be a breach of at least the spirit of Carmody J’s orders of 16 January 2007 in that the mother permitted Mr B to go sailing with K with neither herself nor anyone else present. It is clear from his Honour’s orders that whenever Mr B was present with K, the mother was also required to be present. I do not accept that either someone else sailing “nearby” or sailing “close to the shore” is a satisfactory explanation for this incident. The fact that this incident, together with the mother’s further suffocating attempt, has occurred since the mother was granted the care of K in January 2007, suggests that the mother has not understood the seriousness of the situation.
122.There is no allegation that either of the grandparents or the father is abusive or violent towards K
123.The next matter which I am required to consider in determining K’s best interests is any wish expressed by him. In that consideration, I must take into account his age and state of maturity, together with any other relevant factor. The evidence satisfies me that all the relevant adults, and in particular the mother, acknowledge that K has expressed consistent and strong wishes to live with his grandparents in Hobart. Even more importantly, K consistently expressed that wish to Ms S, both in Hobart and in Perth.
124.However, the question still remains as to the weight which I should give those wishes. The consistency of the wishes together with the fact that they had been expressed to many people including the mother, who has the least interest in hearing them, is persuasive. Further, the evidence on which it must be inferred that those wishes are based gives them greater credibility. However, K is relatively young and there are numerous other factors to be considered. Accordingly, I regard K’s wishes as being no more than a factor to be taken into account in determining his best interests.
125.I must now consider the relationship which K has with his parents, grandparents and any other relevant person. I find that K has a very close and nurturing relationship with both of the grandparents and particularly the grandmother. He has always enjoyed spending time with them and regards them as being protective of his best interests.
126.K has a remarkably good relationship with the father, particularly considering the father’s health problems and the relatively small amount of time which they have spent together throughout K’s life. K regards his father as being good company and nurturing, albeit that neither K nor his father sees their relationship as being K’s primary one.
127.I regret to find that the relationship between K and the mother is seriously flawed. During the hearing of this matter, the mother admitted that on a number of occasions. However, the evidence in support of that proposition is more extensive. During her evidence, Ms S made several references to the unsatisfactory nature of that relationship. In her written report quoted above, Ms S referred to K’s expressions of “fears about his mother’s behaviour towards him”. The evidence of Ms S in evaluating K’s wishes, particularly with regard to the issue of the relationship between him and his mother, strongly supported the position of the relationship being damaged. Again, I have quoted a number of passages from Ms S’s report emphasising the point.
128.The evidence of the sister also corroborates the view of the maternal relationship being flawed. The maternal grandmother’s view, maintained until relatively recently, and particularly her letter to the Department referred to above, also substantiates the finding.
129.I now consider the question of the willingness and ability of each of the parties to facilitate K’s relationship with each of the other parties. I repeat the proposition which I stated during the hearing of this matter that I was most impressed with the ongoing relationship between the mother and the grandmother, despite the significant pressures and tensions which must result from these proceedings. I am entirely confident that they will facilitate the mutual relationship to the highest degree. The mother supports K’s relationship with the father and I do not see any difficulty with that. While there is some antipathy between the mother and the grandfather, I am equally confident that they will both facilitate K’s various relationships. Accordingly, I am not concerned that K will not have ongoing relationships with both sides of his family, including the maternal grandmother, no matter what I decide as to with whom he should live.
130.I now consider the potential effect on K of any change in his present circumstances including the effect of the separation from any relevant person. K lived in the primary care of the mother from the time of his birth until March 2006. They lived in various places. He then lived with the grandparents in Hobart between March 2006 and January 2007 with the exception of a few days in July 2006. Accordingly, K has spent most of his life in the care of the mother. However, the period which he spent living with the grandparents was significant, particularly at a time when the mother was unable to cope with his care. While this consideration, which is often referred to as “the status quo”, is significant, in my view in this matter there are other factors which are of greater importance.
131.I now consider the expense and practical difficulty of K spending time and communicating with the relevant adults. As previously noted, on the basis of the proposals which have been put by each party for determination of this matter, K will be required to travel between Perth and Hobart no matter what I decide on the primary question. Obviously, that has significant practical difficulty and expense. However, the parties are agreed on those matters and while they cannot be considered to be optimum, they constitute the best available arrangements.
132.I now consider the capacity of each of the parents and the grandparents to provide for K’s needs, including his emotional and intellectual needs. I find that this consideration is very strongly in favour of the grandparents. The grandparents are loving, nurturing and protective of all aspects of K’s upbringing. In March 2006, they undertook the care of K in very difficult circumstances for which they have been strongly criticised, at least recently, by both the mother and the maternal grandmother. Particularly in the circumstances in which they were required to intervene, their parenting of K was exemplary. K was very fortunate to have such an opportunity.
133.Having made the findings in the previous paragraph, I nevertheless must refer to two matters raised during this hearing. The first of those concerns the grandfather’s alcoholism and previous drug addiction. The grandfather readily admitted both of those matters. I was impressed by the grandfather’s reaction to those allegations. The way in which he has dealt with both of those afflictions does him considerable credit. I do not regard either of those matters as being negative in the grandparents’ application.
134.On a number of occasions during this hearing, the grandfather in particular was extremely critical of the orders made on 16 January 2007. As I pointed out to him, if he and the grandmother were as dissatisfied as they stated, it is puzzling that an appeal was not pursued. Instead, the grandfather embarked on publicising the result, thereby creating a situation in which many of the relevant people in these proceedings, and particularly K, were identified by name. I will not detail the precise nature of the identification here as that would simply compound the problem. While I accept that the grandfather embarked on that process with what he considered to be the best of motives, he also must accept, as he did, that his campaign may have been significantly contrary to K’s best interests in both the short and longer terms. However, having made this criticism of the grandfather, I am satisfied that he fully understands the potential consequences of his actions and will not conduct himself in that way in the future.
135.Despite his illness, the father has a considerable amount to contribute to K’s upbringing. As already noted, K feels close to his father. In my view, that is a significant benefit to K.
136.I now consider the mother’s parenting capacities. As already noted, the mother acknowledges difficulties in her relationship with K and recognises the need for her to improve her parenting of him. Her basic assertion, supported by the maternal grandmother, is that while she has had considerable difficulties which have adversely impacted on K, she is a changed person who is now able to parent K within his best interests. She strenuously asserts that I should give her the opportunity to demonstrate that proposition.
137.I deeply regret having to disagree with the mother’s assertion. While I acknowledge the mother’s realisation that her relationship with K is flawed, the entirety of the evidence and my observations of her lead me to the view that she does not appreciate the extent of the damage to that relationship. The fact that the abuse has been perpetrated again in the last few months in Perth is further cause for concern about her ability to control herself in disciplining K
138.There is no issue of culture, including aboriginality, relevant to these proceedings.
139.The legislation requires me to consider the demonstrated attitudes of each of K’s parents, as well as the paternal grandparents. My findings in relation to this factor are the same as those already detailed above. Otherwise, there is no need to elaborate.
140.I must take into account any family violence involving K or a member of his family. I have already made findings with respect to the mother’s violence towards K and again, there is no need to repeat them. There is no present family violence order.
141.All parties have conducted these applications on the basis that I should make final, rather than interim orders. Interim orders were made in January 2007. Of necessity, the Court’s consideration of interim matters is very different to that of final applications. I have had much more comprehensive material available to me than is ever presented to the Court on the hearing of interim applications. The manner of presentation of the interim applications may well have been quite different to that before me. I have had the advantage of observing all the relevant witnesses and hearing their cross-examination. This hearing has therefore been very different to the interim hearing and has enabled the Court to consider all relevant issues.
142.The parties seek final orders and I regard myself as being in a position to make them. Above all, it is strongly in K’s best interests that these proceedings should be brought to an end to enable him and all those around him to focus on his future.
CONCLUSIONS
143.I now consider the merits of the various proposals put by each of the parties for the determination of this matter. In doing so, I again note that the parties only put to proposals before me. They are for K to live with the grandparents in Hobart or with the mother in Perth.
144.During the hearing, I raised the prospect of alternative proposals with the parties. In particular, I was, and remain, of the view that were the mother to agree to live in Hobart, a proposal which enabled K to have approximately shared time with both the mother and the grandparents may well be very much within his best interests. In particular, other than her relationship with Mr B, there did not appear to be any evidence to suggest another factor which might cause her to want to remain living in Perth. However, on a number of occasions the mother told me that she was not prepared to accept that alternative proposal.
145.Also during the hearing there was some exploration of the possibility of the mother living in Melbourne. Again, the mother was not prepared to entertain the possibility.
146.The evidence satisfies me that it is not realistic to expect the grandparents to move to Perth. They have lived in Hobart throughout their lives and have extensive employment, family and social ties to that city. A move to Perth would require them to make a completely new beginning which is neither desirable nor practical.
147.There was no other proposal which appeared realistic in these applications.
148.In my consideration of the two competing proposals, I conclude that it is in K’s best interests that I grant the grandparents’ application that K live with them. There are a number of reasons for that conclusion. They are positive in relation to the grandparents and positive and negative in relation to the mother.
149.The factors favouring the grandparents are as follows:
· they are very caring, loving and compassionate;
· they are very competent and protective parents who very well understand and are able to act in K’s best interests;
· they have a very close relationship with K and have experience of very ably caring for him during 2006 and early 2007;
· K wants to live with them;
· if K lives with them he will also be able to further his relationship with his father and his maternal grandmother; and
· they will promote K’s relationship with the mother and the father.
150.The positive factors in relation to the mother are as follows:
· she has cared for K for most of his life;
· she loves him dearly and wishes to continue to care for him;
· while acknowledging her difficulties with parenting in the past and the fact that her relationship with K is damaged, she asserts that she has changed and would like the opportunity to demonstrate that to K; and
· she will promote the relationship between K and the grandparents and father, as well as his maternal grandmother.
151.The negative factors in relation to the mother are as follows:
· the relationship between the mother and K is seriously damaged as a result of the mother’s previous parenting;
· in particular, the mother has been physically and emotionally abusive of K;
· arising out of K’s further disclosures of suffocation and having his head bashed against a wall between January and April 2007, the abuse referred to in the last bullet point has not stopped;
· accordingly, the mother’s assertion that she recognises the negative aspects of her parenting in the past and has changed cannot be accepted;
· the mother’s relationship with Mr B is significant. I develop that proposition below; and
· K does not wish to live with his mother. He wishes to live with his grandparents.
152.Accordingly, there will be an order that K live with the grandparents in Hobart.
153.I now return to the question of parental responsibility. It is common ground that both the grandmother and the mother should share the responsibility for all major long-term issues regarding K’s upbringing. In particular, with respect to the mother the presumption referred to above is rebuttable because of my findings of violence by her towards K. However, in the circumstances of this matter, I accept that it is in K’s best interests that the mother continue to be involved in making those long-term decisions.
154.In my view, it is also in K’s best interests that the father participate in making long-term decisions with regard to his upbringing. I do not regard his health as being a disqualifying factor in relation to that and there is no other evidence to support the contrary view.
155.While my observations of the grandparents persuade me that the grandmother is more likely to have a greater role in K’s day-to-day care, I have no doubt that the grandfather will also be actively involved in his upbringing. While there has been some discussion about only the grandmother having the parental responsibility of making decisions for K’s day-to-day care, I have formed the view that his best interests would be served by both the grandparents having that responsibility. Those best interests include practical problems which might arise if the grandfather did not share that responsibility with the grandmother.
156.The experience of K’s move from the mother’s household to the grandparents’ household may well be a traumatic one, particularly for K. While I expect that for the purpose of spending time with the mother pursuant to my orders he may well travel by aeroplane unaccompanied, the move between Perth and Hobart will probably be very different for him. In my view, it is essential that he be accompanied during that trip and the obvious person for that task is the grandmother. There is no restriction on the grandfather also being present. The handover should be at the mother’s residence in Perth to ensure that K will be with a close adult at all times.
157.The next school term commences in Tasmania on 18 June 2007. It is in his best interests that he start at his new school at that time and that he have at least a few days to settle in to the grandparents’ home in Hobart. While he is very familiar with that home, the concept of his going to live with them on a long-term basis is something to which he will need to adapt. Conversely, he will need a little time in Perth to understand the decision which I have made. I have balanced those factors by requiring a handover no later than 14 June 2007.
158.There is no dispute with regard to the terms on which K should spend time and communicate with the mother, save for the issue of whether he be brought into any, and if so what, contact with Mr B. I have already noted the submissions by both the grandparents and counsel for the father that there should be no such contact and the fact that the Independent Children’s Lawyer made no submission on that point. Even if I were to decide against those submissions, it would still be open to me to place one or more conditions on the mother with respect to that issue.
159.There are competing factors to be considered in deciding whether it is in K’s best interests that he have contact with Mr B, whether with or without conditions. The positive factors are -
·the evidence of both the mother and Mr B that K and Mr B have a close relationship;
·the evidence of Ms S. that K “appeared to be relaxed” around Mr B and all three were observed to smile and mostly enjoyed their game together; and
·the evidence of Ms S. that K feels safer when Mr B is present at times that K and the mother are together.
160.The negative factors which cause me concern with regard to Mr B are as follows:
·whether Mr B has the ability to control his temper. While there is no evidence of any punishment, let alone physical punishment, by Mr B of K, Mr B’s behaviour with the sister was quite inappropriate;
·while there is only a small prospect of Mr B’s recidivism relating to collection of child pornography, the risk is greater than it is with a male who does not have Mr B’s criminal history. Such recidivism will place K at risk of being exposed to child pornography, particularly in circumstances where Mr B is involved in the computer industry and would appear to have a high degree of technical understanding of computers and their operation;
·the evidence of Ms S that Mr B inadequately and incorrectly described the nature of the child pornography which was the subject of his convictions;
·there is a significant risk of K being subjected to teasing from other children, and even exclusion by their parents, if knowledge of Mr B’s criminal history becomes generally known as is highly possible and K is known to be in the company of Mr B;
·I do not regard the mother as having sufficiently demonstrated an understanding of the negative factors which Mr B poses to K to be confident that she will recognise any behaviour which might be a risk and act appropriately. One illustration of that proposition is her allowing Mr B to go sailing on his own with K which, in my view, constitutes at least a breach of the intent of Carmody J’s orders. More generally, there is a large body of evidence, including some in the last few months, to establish that the mother often has great difficulty in acting protectively towards K.
161.In my view, the negative factors listed above significantly outweigh the positive factors. The mother’s difficulty in acting protectively and questions as to whether Mr B is an appropriate role model for K lead me to find that Mr B constitutes an unacceptable risk to K and it is contrary to K’s best interests that he be brought into unsupervised contact with Mr B Further, in my view the degree of that risk is not capable of sufficient protection by supervision, particularly by the mother in circumstances in which I lack confidence in her ability to act protectively towards K.
162.I must also consider the question of whether a restraint against the mother would impose an unduly onerous burden on her relationship with Mr B. I have already found that the mother’s relationship with Mr B is a negative factor in her application for K to live with her. The orders by which K will spend time with the mother in Perth involve a period of only approximately five weeks each year. The mother and Mr B are not living together and the evidence does not establish that they have any present intention to do so. While, if they had an immediate intention to commence living together I would nevertheless maintain my decision with regard to the risk to K, the fact that they do not appear to have that present intention diminishes the burden.
163.Accordingly, it is in K’s best interests that he not be brought into contact at all with Mr B.
164.There is no other controversial aspect of the orders set out at the beginning of these reasons for judgement.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.
Associate:
Date: 5 June 2007
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