Shacklebolt and Thicknesse
[2010] FMCAfam 779
•1 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHACKLEBOLT & THICKNESSE | [2010] FMCAfam 779 |
| FAMILY LAW – Parenting – application of paternal grandmother to spend regular unsupervised time with five year old child – allegations of drug use, criminal behaviour and violence in relation to the father – found child would be at unacceptable risk of exposure to violence and unacceptable behaviour if she spent time with the father and that the paternal grandmother would not prevent the child seeing him if she spent unsupervised time with the child – supervised time with the paternal grandmother ordered. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 62G(2), 65DAA |
| M and M (1987) FLC 91-830 M and M (1988) FLC 91-979 B and B (1993) FLC 92-357 A v A [1998] FamCA 25 Potter v Potter [2007] FamCA 350 Lindsay & Baxter [2007] FamCA 1273 |
| Applicant: | MS SHACKLEBOLT |
| Respondent: | MS THICKNESSE |
| File Number: | MLC 8774 of 2008 |
| Judgment of: | Bender FM |
| Hearing date: | 26 July 2010 |
| Date of Last Submission: | 26 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 1 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
ORDERS
The paternal grandmother spend time with her granddaughter [X] born in 2005 (“[X]”) as follows:
(a)for a minimum of three hours each fortnight on days and times as agreed between the parties and failing agreement each alternate Saturday from 2.00 pm to 5.00 pm, commencing 2 October 2010;
(b)for a period of two hours on [X]’s birthday and the paternal grandmother’s birthday at times as agreed between the parties and failing agreement from 3.30 pm to 5.30 pm;
(c)for a period of three hours in the week prior to Christmas on a day and at times agreed between the parties and failing agreement on 23 December each year between 2.00 pm and 5.00 pm;
(d)by telephone each Tuesday and Thursday between 5.00 pm and 5.30 pm or such other days or times as agreed between the parties with the paternal grandmother to telephone [X] on the mother’s mobile telephone and the mother shall ensure her mobile telephone is charged and switched on, and allow [X] privacy to speak with her grandmother; and
(e)at such other times as agreed between the parties.
[X]’s time with her paternal grandmother pursuant to orders 1(a), (b) and (c) herein shall be supervised by the maternal grandmother or such other person as agreed to between the parties.
For the purposes of the paternal grandmother’s time with [X], the mother shall take [X] to the maternal grandmother’s home at the commencement of such time or to such other place from time to time as is agreed between the parties and collect her at the conclusion of such time.
The paternal grandmother is restrained from bringing [X] into contact with or allowing [X] to have any communication with Mr Shacklebolt.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and from permitting any other person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Shacklebolt & Thicknesse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8774 of 2008
| MS SHACKLEBOLT |
Applicant
And
| MS THICKNESSE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter relates to [X] born in 2005 (“[X]”) who is the child of
Mr Shacklebolt and Ms Thicknesse.
The matter for determination before the court relates to the Application by [X]’s paternal grandmother to spend regular unsupervised time with her granddaughter.
The mother does not oppose [X] spending regular time with her paternal grandmother but seeks such time be supervised because of her fears that the paternal grandmother will facilitate time between [X] and [X]’s father.
To better understand the context of this dispute, its’ history before the court needs to be briefly set out.
In September 2008, Mr Shacklebolt filed an Application in which he sought orders be made that would allow him to spend time with his daughter. He had not spent any time with [X] since July 2008.
[X]’s parents were in an “on and off” relationship between 2005 and 2008 though they never co-habitated. The mother makes serious allegations of ongoing domestic violence perpetrated against her by the father, of heavy drug use by the father, of the father’s involvement in the illicit drug trade and of threats by Mr Shacklebolt to harm or abduct [X]. She expressed a genuine fear of the father and for [X]’s safety if she were to spend unsupervised time with him.
Because of the history of the parental relationship as described by the mother, she strongly opposed the father’s Application and sought orders that any time between [X] and her father be supervised.
Interim orders made by Hughes FM on 3 November 2008 provided that [X] live with her mother, spend supervised time with her father at a contact service centre, that each parent undergo supervised drug screens within 48 hours of the date of the orders and otherwise within 36 hours of a written request to do so, listed the matter for final hearing on 11 June 2009 and made provision for a section 62G(2) Family Report to be prepared.
Pursuant to the orders of Hughes FM a Family Report was prepared by Ms L, Family Consultant, and released on 27 February 2009. In her Report Ms L, noted that the father had not completed the application processes for supervised time at the contact service centre or undergone the supervised drug screens as ordered. Ms L reported that [X] revealed during the interview process that she had witnessed the father’s violent behaviour towards the mother. Ms L further reported that the mother had a genuine fear of the father which she did not shield [X] from and that both parents were emotionally immature with an inability to prioritise [X]’s needs over their own.
Ms L concluded that in light of the serious nature of the allegations made, the length of time since [X] had spent time with her father, the mother’s high level of anxiety around [X]’s time with her father and [X]’s own comments as to her own fears, any time between [X] and her father would need to be supervised at a contact service.
Ms L also stated that if Mr Shacklebolt was unable to commit to spending time with [X] prior to the next court date, consideration would need to be given as to whether it was the right time for [X] to be reintroduced to her father.
The matter returned to court on 16 March 2009. On that date it was noted that the father had continued to not comply with orders to undertake drug screens. A letter was produced from a community contact centre which indicated they had at that time closed their file because of the father’s failure to respond to efforts to contact him. Further orders were made for [X] to spend supervised time with her father at a community contact centre. The June 2009 hearing date was vacated and the matter relisted to 24 August 2009.
On 24 August 2009 the matter was again before the court. No supervised time had taken place and the father had not undergone supervised drug screens as ordered. The court was advised that a community contact centre had a vacancy for time to commence between [X] and her father as from 20 September 2009. Accordingly, the matter was again adjourned to 19 February 2010 and again, further orders made for supervised time to commence from September 2009 at a community contact centre.
The paternal grandmother filed an Application in a Case on
24 December 2009 seeking leave to intervene in the proceedings and seeking orders that [X] spend time with her each alternate weekend from Friday evening to Sunday evening.
On 19 February 2010 the father did not appear at court for the final hearing of the matter. The court was advised the father had not spent any time with [X]. Orders were made dismissing his Application. Orders were also made that the mother have sole parental responsibility for [X] and that [X] live with her mother.
In relation to the paternal grandmother’s Application which was also listed on 19 February 2010, the paternal grandmother was given leave to intervene in the proceedings and interim consent orders were made that provided for [X] to spend time with the paternal grandmother each Tuesday for two hours, such time to be supervised by the mother’s friend Ms C or such other supervisor as nominated by the mother.
The orders injuncted the paternal grandmother from permitting the father to have any contact with [X] during any time she spent with her.
The matter was listed for final hearing as between the paternal grandmother and the mother. The latter was ordered to file a Response and answering affidavit.
The mother, in her Response to the paternal grandmother’s Application, sought orders that [X] spend time with the paternal grandmother each alternate Sunday between 10.00 am and 5.00 pm, with such time to be supervised and that it be subject to an order that the paternal grandmother not allow any contact between [X] and the father during her time with the paternal grandmother.
Accordingly the issue for determination when the matter proceeded to final hearing was what time the paternal grandmother should spend time with [X] and whether such time should be supervised.
The paternal grandmother is 57 years of age. She is employed as a part-time labourer. She lives in her own home in Victoria with her eldest son Mr A and de facto partner.
The mother is aged 27 years. She has four children, [V] aged 12 years, [Y] aged 7 years, [X] aged 5 years and [Z] aged not quite 2 years. [V] and [Y] have different fathers and do not spend time with them. [V] spends time with his paternal grandparents.
The mother’s evidence is that Mr Shacklebolt is also [Z]’s father. Mr Shacklebolt denied paternity and did not ever seek orders in relation to [Z] when he filed his Application. The paternal grandmother does not believe [Z] is her grandson and does not seek any orders in relation to him. No party has sought orders to establish [Z]’s paternity.
The evidence
The paternal grandmother
The paternal grandmother is seeking orders that [X] spend alternate weekends with her from after school Friday until midday Monday until the child commences school and thereafter until before school Monday. She is also seeking orders that [X] spend time with her in the off week overnight for two nights.
It is the paternal grandmother’s evidence that prior to the breakup of the relationship between her son and the mother, she spent considerable time with [X], up to two or three times per week.
With the breakdown of the relationship between her son and
Ms Thicknesse, the paternal grandmother did not see [X] for some
19 months until interim orders providing for her to spend time with [X] were made by this court.
The paternal grandmother was quite critical of the mother, expressing concerns about her parenting capacity and the quality of the care that she provided to her four children. She expressed concerns about the mother’s ongoing marijuana usage and her ability to manage all four of her children.
It was the paternal grandmother’s evidence that she wanted an opportunity for [X] to get to know her paternal family and in particular her many great aunts, cousins and other relatives.
It was the paternal grandmother’s evidence that her son Mr Shacklebolt lived with her until late 2009 when he moved in with her mother, his grandmother, in order to be his grandmother’s carer while she recovered from surgery. It was the paternal grandmother’s evidence that Mr Shacklebolt moved out of his grandmother’s home in or about February 2010 and that she had had no contact with him since that time.
Her explanation for the breakdown in the relationship was
Mr Shacklebolt’s opposition to her pursuing an Application to spend time with [X].
It was her evidence that other than seeing him in a shop in May 2010, the paternal grandmother had had no contact with the father since February 2010 and did not know where he was currently living.
It was the paternal grandmother’s evidence that it was not necessary for her time with [X] to be supervised as she would abide by any order of the court that required her not to allow [X] to have any kind of contact or communication with her son.
The paternal grandmother was specifically asked as to whether she accepted there was a need for such an order to be made. It was her evidence that she did not believe that such an order was necessary as she did not accept that there had been violence perpetrated by her son towards the mother in the presence of [X] or otherwise during the course of the relationship. Further, she denied that her son was engaged in any criminal activity, including drug dealing or that he had a drug problem.
When further questioned as to what her response would be if her son were to contact her, it was the paternal grandmother’s evidence that she would speak to him, wish to spend time with him, but would tell him that he could not do so when [X] was with her.
It was the paternal grandmother’s evidence that her supervised time with [X] had not been progressing satisfactorily. It was her evidence that the mother was often late in bringing [X] to the shopping centre, that the mother’s friend Ms C who supervised [X]’s time would insist on carrying [X] around instead of letting them spend time together, that on one occasion when she had tried to take [X] to see a movie, the mother had taken [X] away after only 15 minutes saying that [X] did not like the movie and that as the mother and Ms C were both smokers, they both insisted on going outside the shopping centre with [X] at regular intervals in order to have a cigarette.
When challenged, the paternal grandmother conceded that in addition to the shopping centre they had also gone to a Fun Park which [X] had enjoyed.
It was the paternal grandmother’s evidence that in recent times she had spent time with [X] at the maternal grandmother’s home and that this time had proceeded more satisfactorily. It was her evidence that she and the maternal grandmother communicate reasonably well, though her time there had been limited to one hour.
The mother
The mother’s participation in these proceedings can best be described as haphazard.
The court made very specific arrangements to enable the Family Report to be prepared that accommodated the mother’s commitments. However, the mother failed to attend at the interviews and had it not been for the much appreciated cooperation of the Family Report Writer, who actually went to the local shopping plaza when the paternal grandmother was spending time with [X] and conducted interviews for his Report there, the Family Report would not have been able to be prepared in time for the matter to proceed to final hearing.
The matter was initially listed for final hearing on Friday 23 July 2010. On that day the mother did not appear and was contacted by telephone. She apologised profusely to the court, indicated that she had incorrectly diarised the matter and thought it was proceeding the following Monday 26 July 2010. Fortunately, the court was able to accommodate the matter on that day and the mother attended proffering appropriate apologies to the court and to some extent to the paternal grandmother.
The mother’s evidence is that she does not oppose [X] spending regular time with the paternal grandmother but seeks that such time be supervised as she does not believe that the paternal grandmother is able to, nor would she, prevent [X] from spending time and communicating with her father in the event that Mr Shacklebolt demanded same of his mother.
It was the mother’s evidence that throughout the relationship with the father she was subject to domestic violence at the hands of the father and that [X] was a witness to this. It was her evidence that the father used illicit substances and was engaged in drug-related criminal activities throughout the course of the relationship and that she believes he continues to be so involved.
It was the mother’s evidence that during the relationship, the paternal grandmother was a witness to violence perpetrated by her son against her and that the paternal grandmother did nothing to intervene and was powerless to do so.
It was her evidence that when the parties separated, the father threatened to take [X] from her and that she genuinely believes him capable of following through on these threats.
The mother conceded that she has had no contact with Mr Shacklebolt since shortly after their separation in 2008. However, she genuinely fears that if [X] was spending unsupervised time with the paternal grandmother, the father would be appraised of this fact and would follow through on his threats to remove [X] from her care.
I accept that the mother’s concerns in relation to these matters are genuinely held and have a basis in her experience of her relationship with Mr Shacklebolt.
The mother conceded that she does use marijuana as it helps her to relax and to sleep.
The mother currently lives in rental accommodation in Victoria with her four children who she cares for on her own. It was her evidence that ultimately she would like to obtain accommodation in the country working in the agricultural industry, as such accommodation would be much cheaper and would provide a healthy lifestyle for the children. The mother’s evidence in this regard was vague and clearly was a pipedream rather than a specific plan.
The mother indicated that her mother, the maternal grandmother, would be prepared to supervise the paternal grandmother’s time with [X] and that her friend Ms C was also prepared to continue to do so.
The mother denied the paternal grandmother’s allegations about interfering with [X]’s supervised time.
Both parties in the matter were self-represented and often started arguing and bickering with each other in court during the hearing of the matter. It was very apparent that theirs is an unhappy relationship with little trust or mutual regard held by either party for the other.
The maternal grandmother Ms V
Whilst not formally a witness called on behalf of the mother,
Ms V, the maternal grandmother, was in court supporting her daughter.
Ms V indicated in open court that she was more than happy to supervise the paternal grandmother’s time with [X] at her home and that she had done so on three occasions to date.
She indicated to the court that that time had been for an hour only but this was because the paternal grandmother had not asked for any additional time.
When questioned as to whether she would be able to take [X] to visit the paternal grandmother in her own home, Ms V indicated that she suffers from a chronic back condition and that her home has been specially modified to accommodate her back injury. Accordingly she indicated that it would be preferable if such supervised time took place in her home.
Both grandmothers indicated a capacity to communicate reasonably well with each other and it was agreed by both that most arrangements for supervised time since the interim orders were made had been organised between the two grandmothers.
Dr H
Dr H is a Clinical Psychologist and a Regulation 7 Family Consultant who prepared a Family Report in this matter dated 27 May 2010. Dr H also provided oral evidence at the final hearing of this matter.
In his Report at page 15, Dr H made the following recommendations:
35.Unless the evidentiary material should indicate otherwise the following are respectfully recommended:
36.That [X] reside with her mother and spend time with the paternal grandmother for two hours each week at a Children’s Contact Centre or, in the alternative, two or three hours each week with a professional supervisor.
37.That Mr. Shacklebolt not be present at anytime [X] is with Ms. Shacklebolt.
Dr H observed [X] to have a positive relationship with her paternal grandmother. However he noted quite appropriately that:
“The crucial aspect of this case is the role or possible role to be played in [X]’s life by her father Mr Shacklebolt should there be unrestricted times for [X] to spend with the paternal grandmother.”
In paragraph 31 of his Report, Dr H made the following observation:
“The writer has no concerns whatever that the maternal (sic paternal) grandmother cares for [X] or wants the best for her but her descriptions of her son in the light of the numerous allegations of domestic violence and the Police records of his earlier assault, suggests that in talking with the writer she minimized or glowed over aspects of his history that do not show him in good light and instead put all the blame for the incidents on Ms. Thicknesse.”
In paragraph 32 of his Report, Dr H further noted that the father’s Police record, the DHS report which expressed the Department’s concerns about the father having unsupervised time with [X], his refusals to undergo supervised drug testing have to give cause whether:
“his unbridled access to [X] would be in her best interests.”
Dr H further notes in paragraph 32:
“Allied to these concerns are the expressions of belief that Ms. Shacklebolt will not be able to protect her granddaughter if the father should decide to get involved in her life. The writer is also concerned that Ms. Shacklebolt’s descriptions of her son do not match the picture that emerges from the Victoria Police records and respectfully recommends that such an imbalance does not inspire confidence that [X]’s interests will be served if Mr. Shacklebolt is able, via his mother, to circumvent the Orders of 16 March and 24 August 2009.”
Dr H further sets out in his Report the following in paragraph 34:
“The question of whether the paternal grandmother is willing to ensure that her son does not involve himself with [X] in ways that will not serve the child’s best interests is the crucial aspect of this case. In the absence of clear indications that the paternal grandmother can prevent interactions between the father and child as discussed above the writer is of the opinion that supervised times are required, not to check on the grandmother’s handling of or relationship with [X], but to ensure that the father does not interfere with the allocated times.”
When giving his oral evidence, Dr H was asked why his Report had recommended supervised time. It was his evidence as follows:
“The reason I came to that conclusion is that the whole position of the father and the grandmother and the relationship there was absolutely uncertain to me. I wasn’t in a position to know whether the grandmother’s assertions and affirmation that she would allow no contact between the father and child to take place… There was too much doubt in my mind. It’s really for the safety of the child that I was recommending supervision.”
Dr H gave evidence that if the court were to determine that the uncertainty about the relationship between the paternal grandmother and the father was no longer in issue or it could be satisfied that the paternal grandmother would be able to abide by any orders that she not allow the father to have any contact with or communicate with [X], there would be no need for supervision.
Dr H confirmed that he accepted the mother was genuine in her fears of the father and her belief that the paternal grandmother would not be able to protect [X] from him.
Dr H emphasised that it would be important for [X] to have a relationship with her paternal grandmother, but that [X]’s safety was paramount.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is not a matter in which the presumption of shared parental responsibility is applicable. Final orders have been made that the mother have sole parental responsibility for [X] and therefore the presumptions under section 65daa of the Act do not apply.
The time that [X] spends with her paternal grandmother and the circumstances under which that time occurs, and in particular whether it should be supervised or not, must be determined in accordance with [X]’s best interests.
When determining what is in [X]’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act. Each of the matters that are set out in those subsections, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of the parties’ proposals, or such other arrangement as the court may determine, will be in [X]’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] was observed by Dr H to have a close and loving relationship with her mother and to clearly enjoy the company of her paternal grandmother.
Whilst the paternal grandmother raised concerns about the quality of [X]’s care by her mother, Dr H described [X] as a confident and slightly wilful child who was meeting all her appropriate developmental milestones.
It was with some concern the court noted that [X] was not attending kindergarten this year despite now being five years of age. The reason for this given by the mother was that she had left it too late to enrol [X] in kindergarten and there were no places left for her. This means that [X] will be starting school next year absent the benefits that a year in kindergarten would have afforded her. It was the mother’s evidence however that [X] is attending dance classes and other activities that enable her to socialise with children of her own age.
The mother also conceded she regularly uses marijuana. She denied it impacted on her parenting as she only used it to help her relax and to sleep. The court cannot agree that the use of illicit substances by any parent is acceptable. Within the constraints of these concerns, I accept that at this time [X] is satisfactorily cared for by her mother.
No issues were raised in relation to the paternal grandmother’s personal capacity to care for [X]. The issue is the paternal grandmother’s capacity to protect [X] from the concerns that exist in relation to her son Mr Shacklebolt.
Before the court are allegations of violence perpetrated by Mr Shacklebolt during his relationship with the mother which were observed by [X] and to which she was exposed. The father’s Police records indicate a history of violence and subpoenaed material from the Department of Human Services also raised concerns as to his exposing [X] to violence.
Additionally, the mother raised concerns in relation to drug-related criminal activities as well as drug use by the father. These concerns must remain as the father refused to undergo supervised drug screens when ordered to do so, despite his denials of drug usage.
If the court is satisfied that [X] spending time with Mr Shacklebolt would pose an unacceptable risk of exposing her to violence and inappropriate behaviour in accordance with the test laid down by the High Court in M and M (1988) FLC 91-979 and by many subsequent authorities including B and B (1993) FLC 92-357, A v A [1998] FamCA 25, Potter v Potter [2007] FamCA 350 and Lindsay & Baxter [2007] FamCA 1273, then any orders it makes must protect her from that risk.
The failure of Mr Shacklebolt to participate in these proceedings means the court has not been able to make any findings of fact in relation to the allegations of violence and inappropriate behaviour made against him. The Full Court in M and M (1987) FLC 91-830 held it was not necessary to make a positive finding of fact in relation to the allegations (in that matter, of sexual abuse) in order to determine the issue of what orders should be made. In this matter, there is a sufficient level of concern as to the father’s violence and inappropriate behaviours, coupled with his failure to seek to be actively involved in [X]’s life for it to be satisfied that at this time there is an unacceptable risk if [X] were to have anything other than time with her father in a very controlled setting such as a contact centre.
Having determined that unsupervised time with her father poses an unacceptable risk for [X], the question to be determined by this court is whether the paternal grandmother will prevent [X] from spending time with Mr Shacklebolt whilst in her unsupervised care and/or comply with any orders that restrain her from so doing.
It was the paternal grandmother’s evidence that she would not bring [X] into contact with Mr Shacklebolt, would resist his requests for her to do so and would comply with orders in those terms. Her evidence in this regard was not convincing.
Up until earlier this year, the paternal grandmother and her son had a close relationship. The paternal grandmother attended court with her son on each occasion he participated in proceedings before this court and was seen to actively support the father’s Application to spend time with [X]. The father lived with her, until moving out to care for his grandmother. He has apparently had no further contact with the paternal grandmother since that time allegedly because of her Application to this court. However, the paternal grandmother’s Application was filed in December 2009 and on her own evidence she was still communicating with Mr Shacklebolt some three months later.
Of further concern was the paternal grandmother’s denial of the necessity for there being any orders preventing her son from seeing [X]. She denied her son was ever violent to the mother or that [X] had seen such behaviour in the face of clear evidence to the contrary, being [X]’s revelations to Ms L of the violence she had witnessed perpetrated by her father against her mother.
It was the paternal grandmother’s evidence that if her son contacted her, she would welcome such contact and a resumption of their previous close relationship. From this the court concludes the paternal grandmother would be agreeable to the father returning to live with her if he asked to do so.
In these circumstances I find that whilst the paternal grandmother’s evidence was that she would prevent [X] from seeing her father and/or comply with orders restraining her from doing so, if her son were to find out [X] was with the paternal grandmother and asked to visit or contact her, the paternal grandmother would have real difficulty resisting him so doing.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each will be considered in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] is only just five years of age and accordingly her views were appropriately not sought or canvassed.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As set out earlier in this judgment, [X] has a good relationship with her mother who has been her primary carer since birth.
[X] was observed to interact positively with her paternal grandmother and enjoy her time with her.
As a result of the father’s lack of involvement in [X]’s life since he and the mother separated, [X] does not have a relationship with her father at this time.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The relationship between the mother and the paternal grandmother, as observed earlier in this judgment, is not good. They argued with each other in the courtroom and it was quite apparent that neither held any degree of respect or affection for the other.
Having said that, the paternal grandmother supported the mother as [X]’s primary carer and was not challenging her role in that regard in these proceedings. Similarly, the mother indicated a willingness for [X] to see her paternal grandmother, albeit that such time be in supervised circumstances where she felt [X] would not be at risk of being seen by her father.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Whilst the mother spoke vaguely of wanting to move to the country and work in the agricultural industry, I formed the view that this was more a pipedream than a realistic option for her.
The parties’ circumstances are such that any orders for the paternal grandmother to spend time with [X] on a regular basis, whether it be supervised or otherwise, will not be difficult to put in place.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted in the previous paragraph, there is no practical difficulty for [X] spending time with her paternal grandmother, save for the necessity for supervision if that should be ordered.
However, the availability of the maternal grandmother to supervise the paternal grandmother’s time with [X] overcomes that difficulty.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother, as a single parent of four, no doubt struggles at times in meeting the demands of all her children. However, the children appear to be satisfactorily cared for and progressing appropriately.
The issue for the paternal grandmother is not her capacity to care for [X] in her own right, but rather her capacity to ensure [X] does not see her son if he should choose to re-engage with her or with [X] when [X] is in the paternal grandmother’s care.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother is undertaking the difficult task of parenting four children on her own. Her ongoing use of marijuana and her failure to enrol [X] in kindergarten this year is of concern but noone is challenging her as the primary carer of her children.
If Mr Shacklebolt was pursuing time with [X], there would be real concerns as to his capacity to parent [X] but he has chosen not to pursue his relationship with his daughter.
The paternal grandmother is wanting to have a relationship with her granddaughter, even in circumstances, or perhaps because of, her son’s failure to be an involved parent. I accept that she loves her granddaughter and wants to be able to contribute to her life in a positive and meaningful way.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The mother makes serious allegations that her relationship with
Mr Shacklebolt was a violent one and that [X] was exposed to that violence.
The mother also gave evidence that such violence was at times observed by the paternal grandmother and the paternal grandmother failed to intervene to try and protect the mother or [X] at that time. This is denied by the paternal grandmother.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The mother obtained an Intervention Order against the father,
Mr Shacklebolt, for a period of 12 months on 10 July 2008 arising from allegations by the mother that he assaulted her in her home whilst she was holding [X].
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
[X] is only a young child and her safety is paramount. In circumstances where the court has concerns for her ongoing safety, it can make orders that put in place long-term supervision.
When such orders are made, the supervised party may, in the future, seek to have those orders reviewed on the basis that time has shown the risk to the child to be lessened or the child is old enough to act protectively.
If however the court forms the view that such protection is needed, then it is incumbent upon it to make orders that promote the child’s safety as paramount.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It was the mother’s evidence that she has had no contact or communication with Mr Shacklebolt for nearly two years now. It is possible that if he continues to be absent from her life, from [X]’s life and from the paternal grandmother’s life, the mother’s genuine fears in relation to him will diminish.
It is therefore possible that in the future and as [X] gets older, the parties themselves will be able to reach an agreement for alternate arrangements for [X] into the future.
Conclusion
Having found that [X] spending time with her father poses an unacceptable risk, the real issue is, as Dr H so succinctly put it in his Report:
“The question of whether the paternal grandmother is willing to ensure that her son does not involve himself with [X] in ways that will not serve the child’s best interests is the crucial aspect of this case.”
Despite the paternal grandmother’s protestations that she would abide by all orders of this court not to allow any contact between [X] and her father whilst [X] was with her, the court has real concerns as to her capacity to do so. The paternal grandmother’s evidence that if Mr Shacklebolt were to contact her she would invite him back into her life and her denial that he in any way placed [X] at risk or that the mother had any reason to have concerns about his behaviours during the relationship are such that I cannot be satisfied that the paternal grandmother would be able to resist her son seeing [X] if he insisted upon doing so while she was spending time with her.
This is reinforced by the paternal grandmother bringing a photo album to her first supervised time with [X] after orders were made which contained not only photos of the paternal family, but many photos of [X]’s father. That the paternal grandmother did not see this behaviour as inappropriate only adds to my concerns as to her understanding of and ability to put [X]’s needs before those of her own and of her son.
In these circumstances orders will be made that [X] spend regular time with her paternal grandmother, but such time shall be supervised by the maternal grandmother or by such other persons as are agreed to from time to time by the mother and the paternal grandmother. The orders will also injunct the paternal grandmother from allowing [X] to have any contact or communication with Mr Shacklebolt whilst [X] is in her care.
I certify that the preceding one-hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 1 October 2010
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