Scriven and Scriven and Ors

FAMILY COURT OF AUSTRALIA

SCRIVEN & SCRIVEN & ORS

[2015] FamCA 182

FAMILY LAW – CHILDREN – Best interests – an application brought by the child’s maternal grandmother – where the child currently lives with the maternal grandmother – where the mother was the only active respondent – where the child’s most significant relationship is with the maternal grandmother – children’s views – where the child will be able to maintain relationships with the father and paternal family in New Zealand through the willingness of the maternal grandmother to take the child for visits – where the Chapter 15 Expert suggested that without consistent therapeutic intervention the mother’s capacity to focus on the child’s needs will continue to be limited – where the mother has been unable to give priority to the safety, security and emotional stability of the child – where there is a current apprehended violence order against the mother for the protection of the child and maternal grandmother – where, with the consent of the mother, the child is to continue live with the maternal grandmother – where for a period of not less than 12 months, the child spend supervised time with the mother once per fortnight – where the child’s time with the mother is to progress to unsupervised alternate weekend time after the child commences high school in 2018 – where in the event the mother does not take up the opportunity to see the child, the child spend supervised time with the mother on four occasions per year

FAMILY LAW – CHILDREN – Parental responsibility – maternal grandmother to have sole parental responsibility with reporting of relevant events to the mother

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Ms Scriven

FIRST RESPONDENT:

Ms B Scriven

SECOND RESPONDENT:

THIRD RESPONDENT

Mr C

Ms C

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Gosford

FILE NUMBER:

(P)NCC

2857

2012

DATE DELIVERED:

12 March 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

8 December 2014

REPRESENTATION

APPLICANT:

In person

FIRST RESPONDENT:

In person

SECOND RESPONDENT:	No appearance
THIRD RESPONDENT:	No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Gosford

Orders

The Court acknowledges the Orders of the Family Law Division, District Court of Rotorua, New Zealand made on 19 May 2010 and registered in the Family Court of Australia on 7 November 2012 with respect to the child D (“the child”) born … 2006.
That all previous parenting orders with respect to the child be discharged.

Parental Responsibility

That the Maternal Grandmother have sole parental responsibility for the child.
That the Maternal Grandmother shall notify the Mother of the following information, using the contact details provided to her by the Mother pursuant to Order 12 herein:
(a)Any medical emergency involving the child requiring admission to hospital and/or urgent specialist medical attention;
(b)The school at which the child is enrolled and the High School to which he progresses; and
(c)Overseas travel for the child.
That the Maternal Grandmother shall authorise the school which the child attends to release to the Mother, if she so requests (at the Mother’s cost if any), all copies of all documents relating to the progress and welfare of the child at school, including but not limited to school reports, newsletters and applications for school photographs.
That with the commencement of time outside the Contact Service, the Maternal Grandmother and Mother shall keep the other advised of their current address and contact telephone number (including both landline and mobile telephone number) and advise the other party of any changes to these details within seven (7) days of such change occurring.

Residence

That the child live with the Maternal Grandmother.

Spending Time with Mother

That the child spend time with the Mother as follows:
(a)For a period of 12 months commencing from the first completed visit at the Central Coast Supervised Contact Centre (“the Contact Centre”) (noting that time may be suspended for up to three months for the birth of the Mother’s child, expected in May 2015);
(b)Such visits to take place on each alternate Saturday or Sunday, depending on availability at the centre.
Provided that the Mother takes up the opportunity to spend time with the child at the Contact Centre pursuant to Order 8 above, and advises the Maternal Grandmother in advance of her inability to attend due to illness or accident on any occasion, then contact shall progress to unsupervised time for the child with the mother on each alternate Saturday or Sunday from 10.00 am to5.00 pm; with changeovers to be effected at the Contact Centre, until the end of primary school for the child in 2018.
That thereafter, contact shall progress to alternate weekend contact from 9.00 am Saturday to 5.00 pm Sunday, with changeovers to be as agreed between the parties.
That for the purposes of implementing Order 8 herein, the Maternal Grandmother and the Mother must:
(a)Contact the Contact Centre within seven (7) days to arrange an intake appointment;
(b) Attend the intake;
(c)Comply with any appointments made by the Contact Centre for supervised time and changeovers;
(d)Comply with all reasonable rules of the Contact Centre;
(e)Comply with all reasonable requests or directions for the staff of the Contact Centre; and
(f)Each pay the fees nominated by the Contact Centre for the provision of its services.
That in the event that the Mother fails to take up the time with the child in accordance with Order 8 herein, without explanation, on all or the majority of the occasions it was possible to do so, then thereafter contact shall be four times per year in the Contact Centre and at such other and/or additional times as agreed between the parties.
That if the Contact Centre becomes unable or unwilling to provide changeover services as set out in Order 11, then changeover is to occur at a place as agreed between the parties in writing and failing agreement, out the front of a police station on the Central Coast of New South Wales, with such police station to be nominated by the Maternal Grandmother.

Communication

The Mother shall provide the Maternal Grandmother with:
(a)A contact telephone number on which the Mother is willing to receive telephone calls from the child;
(b)An address for receipt of correspondence from the Maternal Grandmother (which may be a street address; email address or P.O. Box Number);
(c)A contact telephone number on which the Mother is willing to receive telephone calls from the Maternal Grandmother in relation to an emergency involving the child and other matters relating to his welfare.
That the mother have telephone communication with the child by ringing the child on his mobile telephone or the landline in the home of the Maternal Grandmother Noting that the best time to contact the child is between 5:00 pm and 5:45 pm on Sundays, Mondays, Tuesdays, and Fridays.
The Maternal Grandmother shall assist and encourage the child to telephone the Mother each week on the number supplied by the Mother pursuant to Order 14(i) herein.

Overseas Travel for the Child

That the Maternal Grandmother have the sole responsibility for giving consent and making arrangements for the issue of an Australian Passport for the child.
That the Maternal Grandmother have the sole responsibility for decisions relating to the child’s international travel.
That the child be permitted to travel outside of the Commonwealth of Australia.
That the Mother is restrained from obtaining a passport for the child.

Restraints and Obligations

That the Maternal Grandmother shall:
(a)Do all things to encourage a relationship between the child and the Mother, Maternal Step Grandfather, Paternal Grandmother and Father, and shall ensure that no third person discourages such relationship;
(b)Ensure that any letters, cards or presents she receives from the Mother, Maternal Step Grandfather, Paternal Grandmother and Father are given to the child promptly after receipt.
That no party shall denigrate the other party or a member of their family or household in the presence of or hearing of the child and as far as practicable, shall restrain any third person from doing so.
That should the Mother engage with a psychologist, psychotherapist or psychiatrist for therapy, leave is granted to the mother to provide a copy of the Single Expert Report and a copy of these Orders and Reasons for Judgment to such therapist.
That the Independent Children’s Lawyer shall meet with the child to explain these Orders and is thereafter discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scriven & Scriven & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2857 OF 2012

Ms Scriven

Applicant

And

Ms B Scriven

First Respondent

And

Mr C

Second Respondent

And

Ms C

Third Respondent
And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders made by the maternal grandmother in relation to the child, now aged eight years.
The three respondents to the application are the child’s mother, father and paternal grandmother.
The father and paternal grandmother live in New Zealand and were served with the applications, but have chosen not to participate. However, that is not to say they are not interested in maintaining a relationship with the child.
Only the mother is an active respondent to the application.
The child has been living mostly with the maternal grandmother for more than five years, in both New Zealand and Australia. The maternal grandmother’s present household consists of herself, the child and also, very recently, the maternal great-grandmother.
The mother lives alone in a suburb of Sydney. She revealed during her oral evidence that she is expecting another child in May 2015.

History of relevant events

All family members and the child himself were born in New Zealand.
The mother was born in 1985 and four years later, the maternal grandmother remarried. Accordingly, the mother was raised by her mother and step-father, who have only recently separated from each other. The mother’s step father had been a party to the proceedings. He is referred to in these Reasons as the maternal grandfather of the child.
There was evidence before me of a violent relationship for the maternal grandparents. In 2000 the maternal grandfather was convicted and sentenced for an assault on the maternal grandmother.
There is also evidence before me that the mother appeared before a court in New Zealand, at least from 2002, for various offences which could generally be described as anti-social.
In August 2003 the father assaulted the mother.
In April 2004 there was a temporary protection order made in New Zealand protecting the maternal grandmother from the maternal grandfather.
The mother’s relationship with the father was a violent and volatile one. Each of them were involved in violent conduct and anti-social behaviour. New Zealand records indicate the parties came to the attention of police as a result of complaints by the mother of verbal abuse and threatening texts from the father to her, and that both parties were found with cannabis and stolen goods in their apartment in June 2006.[1]
[1] Exhibit 4
The following month, in 2006, the child was born in New Zealand. Soon after his birth, there was a violent incident where the mother was assaulted by the father and a protective order was subsequently made for the protection of the mother and the child.
In approximately 2007 the mother and father separated. A further protective order was made against the father in August 2007. There was a breach, or at least an allegation of breach, later in that year.
In 2008 the mother and child moved to Australia, settling in Brisbane.
In mid-2009 the mother and child returned to New Zealand to have a holiday with the paternal grandmother. During that holiday the two grandmothers agreed that they would take care of the child for six to eight weeks, while the mother relocated to Sydney and settled herself there. The mother did move to Sydney. In New Zealand the child, then aged three, spent part of each week with each grandmother.
In August 2009, when the maternal grandmother was due to take the child back to the mother in Australia, she was advised by the paternal grandmother that the child was with the father. The maternal grandmother initiated proceedings for full custody of the child in the Family Court of New Zealand. Orders were made and accordingly, the child commenced living with the maternal grandmother and spent alternate weekends with the paternal grandmother, who supervised contact between the child and the father.
On 19 May 2010 a Registrar in the District Court of the Family Law Division, made final parenting orders by consent: that the maternal grandmother and the mother have the day to day care of the child and that the child be permitted to relocate to Australia. There was also provision for contact between the child and the father and paternal grandmother.
In August 2010 the maternal grandmother moved to Australia with the child, the maternal grandfather joining them a few months later. Thereafter there was in fact little or no contact between the child and the paternal family. The maternal grandmother and the mother implemented a shared care arrangement for the child, with a changeover each three to four days.
In September 2010 the mother asserts that the child began living more with her and spending a little less time with the maternal grandmother.
On 8 September 2010 the mother came to the attention of police through buying equipment which could be used for making drugs. The mother asserted that it had been purchased for her to make perfume.[2]
[2] Exhibit 5
In April 2011 the mother was charged with threats to police officers and damage to a taxi. At around the same time, the child was sent to New Zealand by the mother with his uncle and the maternal grandfather. He subsequently returned to Australia.
In July 2011 the child started school in a suburb of Sydney, living with the mother and spending weekends and school holidays with the maternal grandparents.
In September 2011 the maternal grandmother returned to New Zealand for a holiday, taking the child to see the paternal family before returning to Australia.
In March 2012 the principal of the child’s school contacted the maternal grandmother with complaints about the mother’s behaviour, such as abusing teachers, parking irresponsibly and not ensuring attendance of the child at school.
In mid-2012 the mother was evicted from two rental properties; on the first occasion due to failure to pay rent and on the second occasion, due to complaints by neighbours about rubbish, domestic disputes and police attendance at the property.
In June 2012 the mother had a brief relationship, for about two months.[3]
[3] Exhibit 2
On 8 August 2012 there was an extremely violent incident in the mother’s home where an unnamed man threatened her with a gun and held scissors to the child’s throat.[4] Police restrained the man and removed the gun. The child was present throughout.
[4] Exhibit 5
After this event the maternal grandmother took the child into her full time care. The child lived with the maternal grandparents thereafter.
On 20 August 2012 the maternal grandmother enrolled the child at the public school which he continues to attend.
On 31 August 2012 there was a violent incident in the home of the maternal grandmother and she was assaulted by the mother. The maternal grandmother and the mother had a verbal argument over property the mother had brought to their home, after she was evicted from her own house.
The maternal grandmother took steps to remove the child from the house for his own safety. The mother shoved the maternal grandmother against the wall and threatened her with injury.[5] The maternal grandfather intervened and thereafter the maternal grandparents and the child moved out of their house due to fear that the mother would make good a threat she made to kill the maternal grandmother.
[5] Exhibit 5
On 7 September 2012 the maternal grandmother reported the incident to the police and also the making of repeated death threats by text message subsequently. A provisional Apprehended Violence Order (“AVO”) for the protection of the child and the maternal grandparents was initiated by police.
On 21 September 2012 the child commenced counselling through Victims Services, due to the incident from August 2012.
On 23 October 2012 the maternal grandparents filed an application in the Family Court for parenting orders, including sole parental responsibility, residence and time by agreement. A Notice of Child Abuse and Family Violence was also filed, providing details of the incident in August 2012.
On 7 November 2012, the New Zealand orders were registered in the Family Court of Australia.
On 4 December 2012 ex parte interim orders were made for the maternal grandparents to have sole parental responsibility and residence with the child. They had been unable to serve their application on the mother and time was provided for that to happen.
On 15 February 2013 the mother filed a response and an affidavit which put in issue many of the allegations made by the maternal grandmother.
On 19 February 2013 an Independent Children’s Lawyer (“ICL”) was appointed and a Children’s and Parent’s Issues Assessment was ordered. A notation to the orders was that the mother had provided her contact details to the Court but was unwilling to disclose them to the maternal grandparents. It was further noted that the maternal grandparents had stated their willingness to have the mother visit the child in their home, but that was not suitable to the mother.
On 4 April 2013 interim orders were made with the consent of the mother that the child live with the maternal grandparents and spend time with the mother each fourth weekend, staying in the home of the maternal grandparents to do so. A family report was ordered.
In April 2013 the ICL began making requests for drug screens by the parties.
On 30 April 2013 the first request was made to the mother; she did not comply.
In May 2013 the mother spent time with the child in the home of the maternal grandparents. There was an extremely violent incident, where the maternal grandmother was injured and had some of the hair on her head pulled out by the mother. Police were called and the maternal grandmother was taken to hospital by ambulance. Police applied for an AVO on behalf of the maternal grandmother and the child. There are photographs of the injuries to the maternal grandmother and a reference to the mother attending at the police station with a swollen eye.
On 24 June 2013 a further drug screen request was made and the mother did not comply.
On 26 July 2013 a final AVO was made against the mother for the protection of the maternal grandmother and the child for a period of two years.[6]
[6] Final Order, Sutherland Local Court
On 17 September 2013 interviews were conducted by a Family Consultant for the preparation of a family report. That report was released on 25 September 2013. The mother, maternal grandmother and child were interviewed and observed. The evaluation of that report was that the child was “currently safe, settled and well cared for by the maternal grandparents”.
The Family Consultant raised inconsistencies in the mother’s versions of events in relation to her drug use history, family violence in her relationship with the father and her own criminal history. The Family Consultant raised the possibility that there was an underlying mental health issue for the mother, which could be impeding her cognitive function and provides some explanation for the inconsistent reports.[7] The Family Consultant recommended that the court consider the appointment of a Chapter 15 Expert to explore any issues in relation to the mother’s mental health.
[7] Family Report, par 126 CHECK

At or around this time, the mother commenced a relationship with the father of the child she is expecting in May 2015.
On 1 November 2013 a further request to the mother for urinalysis was issued by the ICL and the mother did not comply.
On 18 November 2013, by consent, an order was made for the appointment of a child and family psychiatrist, Dr E, to interview and report on the mother’s mental health (“the Expert Report”).
In December 2013 the maternal grandparents separated.
On 27 December 2013 the mother was found at F Bridge. She was taken by ambulance to G Hospital. She remained for a short time as an involuntary patient. The mother began to see Dr H for victims’ counselling.
On 5 February 2014 the mother complied with a request for urinalysis and was found to be positive for drug use. The mother failed to attend on the appointed date for her interview with Dr E.
On 4 March 2014 the matter was adjourned to enable the mother to attend a further appointment with Dr E.
On 2 May 2014 the report of the single expert was released. Dr E identified that the mother had “significant personality vulnerabilities”.[8] He noted that the mother had a history of unstable relationships. She had intense feelings of anger and rejection and her identity was poorly developed. He noted impulsive and violent acts such as attacking a taxi driver and allowing the man with a gun into her house.
[8] Expert Report, page 17
Dr E identified Borderline Personality Traits, but was unclear as to whether or not the mother would satisfy the full criteria of Borderline Personality Disorder. He expressed the view that the personality structure and chronic depression of the mother did impact significantly on her parenting capacity.[9] In particular, she was unable to focus on the child’s needs, such as having a stable home environment and attendance at school; probably also a reduced ability to respond to his emotional needs. Dr E did not consider that the mother represented an unacceptable risk to the child and was satisfied that she cared about him a great deal.
[9] Expert Report, page 17 par 2
Dr E recommended intense psychological therapy for a period of approximately two years (dialectical behavioural therapy). Accordingly, his recommendation was that the child remain in the care of the maternal grandmother if the court considered her suitable.
On 15 May 2014 proceedings were adjourned to enable a legal aid conference to be arranged.
On 17 May 2014 the mother was assaulted by her current partner.
On 24 June 2014 a urinalysis request was made of the mother and she did not comply.
On 28 July 2014 the mother was arrested on a charge of Goods in Custody. She gave evidence that she was defending that charge.
On 14 August 2014 the legal aid conference was due to take place and the mother did not attend.
On 26 August 2014 the matter was listed for final hearing, with a notation that in the event the mother did not participate by filing or attending for the hearing, the matter may proceed undefended. The mother was not present at court on that day. She was however represented by solicitors who advised that they would no longer be appearing on her behalf.
On 1 September 2014 a urinalysis request was made of the mother and she did not comply.
In around September 2014 the mother became pregnant with her current partner’s child.
On 16 September 2014 the maternal grandmother filed an Amended Initiating Application in accordance with directions, requesting sole parental responsibility for the child and residence.
In October 2014 the mother moved into a rental property in Western Sydney.
On 12 November 2014 there was a request of the mother for urinalysis which she did comply with. The screen was negative for drug use.
On 8 December 2014 the matter came before me for hearing and both the mother and maternal grandmother were present at Court; both self-representing. The mother had not filled any material in accordance with directions or at all. The mother was given leave to participate and give oral evidence. It was during the course of that oral evidence that the mother revealed for the first time, so far as the maternal grandmother was concerned, that she was pregnant.

The Evidence

The documents relied on in respect of the application were as follows:
(a)Amended Initiating Application of the maternal grandmother filed 16/09/2014;
(b)Notice of Child Abuse of the maternal grandmother filed 23/10/2012
(c)Affidavit of the maternal grandmother filed 23/10/2014;
(d)Two CAPIAs of the Family Consultant 21/11/2012 and 08/03/2013;
(e)Family Report dated 20/09/2013;
(f)Expert Report dated 28/04/2014; and
(g)Oral evidence of the mother.

The Mother

The mother had recently completed a course at TAFE. Her expectation was that she would go on to complete a Diploma in order to be fully qualified for an administrative position.
In relation to the child she was expecting, the mother said she was not living with the child’s father and was not “too sure” as to whether the relationship would be ongoing. She anticipated moving to a bigger house but was not “too sure… somewhere in Sydney”. Her evidence was that she did not presently hold a driver’s licence due to unpaid fines. She did not have a car.
In relation to the recommendations of Dr E, the mother said she had seen Dr H until mid-2014 when the therapeutic relationship ceased due to Dr H’s death. Her evidence was that she had made an appointment to see somebody else, but did not know the name of the doctor she would be seeing. There was no documentary evidence of past attendance or the future appointment.
The mother had been seeing Dr H for victims’ counselling and confirmed that that counselling was “nothing to do with this family law case”. The mother asserted that she was seeing Dr I in a medical practice in Suburb J in response to the recommendations of Dr E. However, the number of attendances and progress in therapy was not in evidence before the Court.
The ICL asked the mother about events on 27 December 2013, when she had been scheduled at G Hospital. She agreed that she had been in a very distressed state when found at F Bridge. She conceded that she had then absconded from the hospital on the basis that she was “feeling fine, so I just went home”. She felt that she suffered from stress, anxiety and depression.
The mother was no longer pressing for residence. She said “I just want to see my son. I want to ring and see him”. The mother agreed that she had not told Dr E about being taken to hospital.
The mother had chosen not to read the Expert Report.

The Maternal Grandmother

The maternal grandmother has been committed to providing stability for the child, which he certainly needs. She has involved him in enjoyable extra-curricular activities, such as CUBS, martial arts, swimming, surfing, bike riding and skate boarding.
The maternal grandmother holds a drivers’ licence and has a car. She has recently taken on additional responsibility. She has recently arranged for her own mother to live with her and the child in her home.
The maternal grandmother readily conceded that the child missed the mother and was interested to have contact with both the parents. She said he had shown some confusion about why he was not presently seeing the mother and that she had explained that the mother was not well and that “when she’s better she’ll return”.
There had also been the period when the child’s father had rung on five occasions within seven days and then stopped ringing. The maternal grandmother seems able to reassure the child that the erratic contact that both the parents make is not attributable to anything he has done.
The maternal grandmother has also accepted financial responsibility for the child and that neither of the parents are likely to assist in that regard. The maternal grandmother is working in a small business, which she operates herself.

The law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)     Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)     Children are protected from physical and psychological harm;
c)     Children receive adequate and proper parenting to help them achieve their full potential; and
d)     Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Primary Considerations

In determining what is in the child’s best interests, the court must consider the following matters.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

The child does have a meaningful relationship with the mother but presently, his most significant relationship is with the maternal grandmother, who meets all his day to day needs. The child has a relationship with the father and paternal grandmother in New Zealand and has been back to New Zealand to see them and is likely to do so in the future.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

The child has been exposed to family violence in the care of the mother and also in the home of the maternal grandmother, where there have been at least two violent incidents where the mother has assaulted the maternal grandmother. The child needs to be protected from exposure to anymore such incidents and to be able to develop his relationship with the mother in a safe setting.

Additional Considerations

Section 60CC(3)(a) – any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views

In September 2013 the child told the Family Consultant that it was a long time since he had seen the mother and he did not know why he was not seeing her. He referred to the mother having thrown a television remote at him and knew that the mother had pulled the maternal grandmother’s hair and that she had gone to hospital as a result.[10]
[10] Family Report, pars 119-125
The child expressed his unhappiness that the mother and maternal grandmother were not getting on well and that he felt “not good because both were getting hurt. They shouldn’t have done that because they are family. They should have been nice to each other.”[11] The child freely expressed missing the mother and also a preference for continuing to live with the maternal grandparents, with whom he felt the safest. At that time, the child was a little over seven years of age and had been partially or fully cared for by the maternal grandmother for as long as he could remember.

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

[11] Family Report, par 121

It seems likely that the child will be able to maintain relationships with the paternal family in New Zealand through the willingness of the maternal grandmother to take him for holidays and visits in New Zealand from time to time. He presently has an important emotionally stable relationship with the maternal grandmother and sees his great maternal grandmother every day in the home. He has a close loving relationship with the maternal grandfather. He has missed seeing the mother and may benefit from developing a relationship with the child to be born in May 2015.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

The mother has wanted to make the long term decisions about the child, to spend time with him and communicate with him, but the evidence suggests that when there are difficulties in her own life, particularly relationship difficulties, she loses focus on the child’s needs. She does not stop feeling interested and concerned about him, but is unable to give him priority.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

Neither of the child’s parents are presently contributing financially, nor has either parent in the past.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances

The mother, by the time of hearing in December 2014, was no longer seeking residence of the child with her, but certainly wanted to see the child other than during the period of her confinement. Accordingly, the child will remain living with the maternal grandmother and will benefit from the stability of that and her ability to meet his needs, particularly for regular attendance at school and support for other family relationships.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

The mother is likely to have some difficulty attending at a contact centre. She will have to rely on public transport and from May 2015 will have the sole care of a new baby.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

As stated, the mother has some identified limits on her capacity. The evidence of Dr E suggests that without consistent therapeutic intervention, addressing the mother’s personality difficulties, her capacity to focus and meet the child’s needs will continue to be limited.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents

The child is an eight year old boy; he will be nine in July 2015. He was born in New Zealand and both sides of his extended family were likewise born in that country. Even at seven, the child was apparently sufficiently mature enough to understand that the mother and maternal grandmother were at odds with each other and that it was not good.

Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother has been more focused on her parents than on the child. She has, in her material, made allegations that the maternal grandparents subjected her to ongoing emotional abuse and that her own mother gave priority to partners over her. She has been enormously disappointed, angry and resentful that her only child is now being cared for by her mother, with whom she is still very angry.
Unfortunately, the mother has been unable to give priority to safety, security and emotional stability for the child, and has taken the opportunity to physically attack and violently argue with the maternal grandmother in the presence of the child. The fact that she does not acknowledge the time, affection and money which the maternal grandmother has expended in the care of the child reflects on her maturity.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family and section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family

There is a current order for the maternal grandmother and the child, protecting them from the mother. That order expires in July 2015. The evidence does not support an unacceptable risk of the mother abusing or harming the child; however, she has a history of association with violent men and also a history of being physically aggressive herself. It would be the exposure of the child to such situations that requires his protection.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

The mother has formed a new relationship which may or may not continue, but there will be a child of that relationship. She has been erratic in making contact with the child, not because she does not love him, but because of emotional difficulties between herself and her own mother and a lack of focus on the child’s needs.
This may lead to an erratic level of contact, whatever orders are made. However, the child himself was described by the ICL as still “very keen to see his mother. Doesn’t know why he hasn’t been seeing her and is missing her significantly”.
Accordingly, it is about balancing the child’s safety and emotional stability, against his need to maintain his relationship with the mother, and to develop a relationship with a new brother or sister.

Conclusion

The evidence supports the child’s best interests being promoted by continuing to live where he does, with the maternal grandmother. It is a consent position.
An order will be made for residence and sole parental responsibility for the child to the maternal grandmother with reporting of relevant events by the maternal grandmother to the mother.
The proposal of the ICL that there be a period of not less than 12 months of supervised time at a supervised contact centre creates the proper balance between the child’s strong wish to see the mother and the need for safety and regularity.
Provided that the mother takes up the opportunity to see the child, and notifies the maternal grandmother when she is unable to do so, time between the child and the mother should progress after the conclusion of the 12 month period to regular unsupervised daytime contact.
After primary school, unless the parties agree otherwise, alternate weekends from Saturday morning to Sunday evening will commence.
In the event that the mother does not take up the opportunity to see the child in the contact centre during the initial period, then there is an order for supervised visits four times per year and at such other and/or additional times as agreed between the maternal grandmother and the mother.
There is evidence of disappointment for the child when he expects to see the mother and does not. If the mother is unable or unwilling to see him consistently in that first 12 to 15 month period, then limited supervised contact will follow. This should keep the relationship alive for the child until he is old enough to manage the relationship with the mother himself.
Orders are made accordingly.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 12 March 2015.

Associate:

Date: 12 March 2015

[2015] FamCA 182

12 March 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness

Remedies