Simm and Forest and Anderson
[2009] FMCAfam 369
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMM & FOREST and ANDERSON | [2009] FMCAfam 369 |
| FAMILY LAW – Parenting – competing applications by mother, father and paternal grandmother for the children to live with them – allegations of violence and drug use – long history of litigation – toxic relationship between mother and paternal grandmother – consideration of the importance of the paternal grandmother to the children’s educational and psychological needs – sustainability of the orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA, 64B & 65DAC |
| Church & Overton and Anor [2008] FamCA 965 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS SIMM |
| First Respondent: | MS FOREST |
| Second Respondent: | MR ANDERSON |
| File Number: | SYC 8196 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 9, 10 & 11 March, 2 & 3 April 2009 |
| Date of Last Submission: | 3 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the First Respondent: | Mr A. Ladopoulos |
| Solicitors for the First Respondent: | Ktenas Solicitors |
| Counsel for the Second Respondent: | Mr W. Moss |
| Solicitors for the Second Respondent: | Batey’s Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Ms E. Lawson |
| Solicitors for the Independent Children’s Lawyer | Redleaf Family Lawyers |
ORDERS
All previous parenting orders in relation to [X] born in 1995 and [Y] born in 1997 be discharged.
In relation to [X]
The mother and father have equal shared parental responsibility for [X].
[X] live with the mother.
[X] communicate and spend time with the father as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the father.
[X] spend time with the paternal grandmother as [X] wishes.
[X] communicate and spend time with the paternal grandmother as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the paternal grandmother.
The paternal grandmother be at liberty to send a letter/email/text message to [X] every 3 months on condition she does not require a response from [X], and the mother be restrained from interfering with any such communication.
The father be at liberty to contact [X]’s school regarding her progress and welfare and receive all notes, circulars, newsletters and reports issued by [X]’s school from time to time.
In relation to [Y]
The mother and father have equal shared parental responsibility for [Y] except in relation to decisions concerning his schooling and school related activities.
The paternal grandmother and the father have equal shared responsibility for decisions concerning [Y]’s schooling and school related activities.
[Y] live with each party as follows:
(a)With the paternal grandmother:
i)From Monday after school (or 4.00p.m. Monday if a Public Holiday) until Thursday before school (or Friday before school in any week in which [Y] has an examination on that Friday) each week of school term, commencing on the first Monday after these Orders are made; and
ii)From 2 p.m. on the day before school commences at the commencement of Terms 2, 3 and 4, and from 2 p.m. on the second last day before school commences at the commencement of a school year.
(b)With each of the father and the mother:
i)In each alternate week from after school Thursday until before school Monday (or 4.00p.m. Monday if a Public Holiday) or from Friday after school if [Y] has an examination on the Friday of that week, such time to commence with the father on the first weekend after these orders are made;
ii)Subject to Order (11)(a)(ii), for half the Christmas school holidays, being the first half with the father in 2009 and alternate years ending in an odd number, and being the second half with the father in 2010 and alternate years ending in an even number.;
iii)For half of each term 1, 2 and 3 school holiday period ending at 2 p.m. on the last full day before the school term commences, being the first half with the father in 2009 and alternate years ending in an odd number, and being the second half with the father in 2010 and alternate years ending in an even number.
[Y] spend additional time with each parent as follows:
(a)At Christmas, as agreed between the mother and father, but failing agreement:
(i)[Y] spend time with the father from 5.00p.m. on Christmas Eve until 1.00p.m. on Christmas Day in 2009 and every odd numbered year thereafter and from 1.00p.m. on Christmas Day until 5.00p.m. on Boxing Day in 2010 and every even numbered year thereafter;
(ii)[Y] spend time with the mother from 1.00p.m. Christmas Day until 5.00p.m. on Boxing Day in 2009 and every odd numbered year thereafter and from 5.00p.m. on Christmas Eve until 1.00p.m. on Christmas Day in 2010 and every even numbered year thereafter.
(b)[Y] spend the Mother’s Day weekend with the mother from 6.00p.m. on the evening before Mother’s Day until before school on Monday, and with the father from 6.00p.m. on the evening before Father’s Day until before school on Monday, whatever any other order provides.
Changeovers during the school week to occur to and from school.
Changeovers between the two parents occur as arranged between the parents.
Changeovers between the paternal grandmother and each parent, when [Y] is not at school, occur outside the home of the father and the mother be restrained from attending those changeovers.
The paternal grandmother collect and deliver [Y] to school on days he is living with her and each parent be restrained from attending [Y]’s school at those times.
[Y] be at liberty to telephone the mother at any time when with the father or the paternal grandmother and to be given privacy for that purpose.
[Y] be at liberty to telephone the father at any time when with the mother or the paternal grandmother and be given privacy for that purpose.
[Y] be at liberty to telephone the paternal grandmother at any time when with the father or with the mother, and be given privacy for that purpose.
The mother be restrained from interfering with any arrangements made by the father with the paternal grandmother for the care of [Y] when [Y] is living with the father.
The paternal grandmother be permitted to telephone [Y] on his birthday and on Christmas Day whether [Y] is living with his mother or his father on those days, and each parent ensure [Y] speaks to his grandmother on those days.
The mother and father be permitted to telephone [Y] on his birthday if living with the other parent or with the paternal grandmother.
Each party ensure [Y] attends all his sporting and extra-curricular activities when [Y] is living with that party, including matches and practices.
Each party be at liberty to attend all school functions and sporting activities in which [Y] participates irrespective of whether those events and sporting activities fall on the days in which [Y] normally spends time with that party.
Each party communicate all information to the other parties concerning [Y]’s school functions and extracurricular activities, such communication to occur by telephone or email.
The mother and the father and the paternal grandmother be at liberty to contact [Y]’s school regarding his progress and welfare and receive all notes, circulars, newsletters and reports issued by [Y]’s school from time to time.
The paternal grandmother and the mother be restrained from approaching the other or attempting communication with the other if attending the same event for [Y].
To the extent these orders are inconsistent with any family violence order, these orders prevail.
All parties be restrained from denigrating any party in the presence and/or hearing of the children, and take all reasonable steps to ensure that no other person denigrates any of the parties in the presence and/or hearing of the children.
Each party keep the other parties informed of their respective residential address, residential telephone number and mobile telephone number and to advise the other party within 48 hours of any change of address or telephone number.
[Y] complete his primary school education at [L] School, and undertake his high school education at [E] School if selected for that school, or otherwise at [G] School, unless otherwise agreed by the paternal grandmother and the father in consultation with [Y].
Each party notify the other parties as soon as practicable of any serious illness, injury or medical emergency in respect of the children.
The paternal grandmother forthwith arrange to attend counselling at a Family Relationships Centre or at Relationships Australia, Centacare, Unifam or Interrelate to address ways to support [Y]’s adjustment to these arrangements, and to continue with such counselling as recommended by the Agency.
The paternal grandmother arrange confidential counselling for [Y] outside school within 4 weeks of the date of these Orders to assist him to adjust to the changes in his living arrangements, and [Y] to continue in counselling at a frequency recommended by his counsellor.
The paternal grandmother provide a sealed copy of these Orders and Reasons to her counsellor and to [Y]’s counsellor.
The Independent Children’s Lawyer provide a sealed copy of these Orders to the Principal of [Y]’s current school with a request that the Orders be on-forwarded to the Principal of [Y]’s school at the commencement of 2010.
The appointment of the Independent Children’s Lawyer continue for a period of 2 calendar months to ensure these orders are implemented and in particular to provide recommendations to the paternal grandmother as to appropriate counsellors if necessary.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Simm & Forest and Anderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 8196 of 2007
| MS SIMM |
Applicant
And
| MS FOREST |
First Respondent
| MR ANDERSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [X] aged 13 and [Y] aged 11 years. The parties are the paternal grandmother, the father and the mother of the two children. The parties substantially agree on arrangements concerning [X], given her age and strongly expressed views. The dispute therefore concerns arrangements for [Y].
The paternal grandmother wants [Y] to live with her during school weeks and for [Y] to share his time equally with his parents at all other times. Each parent wants [Y] to spend either equal time (the mother’s position) or substantial time (the father’s position) with each parent and no order for time with the paternal grandmother. The father says he supports [Y] spending time with the paternal grandmother, without order. The mother vehemently opposes [Y] spending time with the paternal grandmother.
The paternal grandmother represented herself at hearing. The mother and the father and the Independent Children’s Lawyer were represented by counsel.
Ms Donna Bowen, the family consultant, has, over 9 years, prepared
3 reports in this matter[1]. She was also cross-examined at length on two separate occasions during this hearing. I found Ms Bowen’s evidence consistent, clear and insightful. She recommends that [Y] live with the paternal grandmother from after school Monday until before school Friday in each school week, and otherwise that [Y] share his time equally between each parent’s household.
[1] First report October 2000; second report June 2007; third report February 2009 – Exhibit 1
The Independent Children’s Lawyer supports Ms Bowen’s position.
The hearing ran over 5 days. Each party was cross-examined and extensive material was tendered from each child’s school, the police, the Roads and Traffic Authority and the Department of Community Services. Some medical records and urinalysis records were tendered.
I am satisfied that there are significant risks for the children when living in each parent’s household. I am satisfied neither the father nor the mother has the motivation or the capacity to provide the children with a safe and secure base from which the children can prosper educationally and psychologically.
a)In relation to [X], I share the significant concerns of Ms Bowen as to [X]’s prospects, both psychological and educational, but given [X]’s age and adamant position, I am not satisfied that court orders at this stage of her life, compelling a change in her living arrangements, would assist her.
b)In relation to [Y], I share Ms Bowen’s concerns that if his living arrangements remain substantially as they are now, as proposed by each parent, he has poor life prospects. I also have concerns about the likely impact on [Y] of living in the arrangement recommended. I have carefully considered Ms Bowen’s recommendations in light of my concerns. If [Y] lives with the grandmother during the week, will the adverse reaction from his mother be too much for him to bear, and therefore render the arrangement unsustainable? I have no doubt that if the arrangement can be sustained, [Y] has a significantly improved chance of continuing to do well at school and with his sport and will have life options which would otherwise be unavailable to him. I have therefore decided to make orders substantially in terms of Ms Bowen’s recommendations.
The mother was 16 and the father 19 years old when [X] was born. After living together for just over 4 years, the mother and the father separated in July 1999, nearly 10 years ago. [X] and [Y] have been exposed to violence, excessive alcohol consumption and illicit drug use and neglect in both the mother’s and the father’s households. The children are accustomed to police intervention at the home of each parent. Each child presents to Ms Bowen as unhappy[2].
[2] February 2009 report of Ms Bowen at paragraphs 35 and 50
[Y] appeared to be somewhat sad and flat in affect.
…[X] does not appear to feel as if she fits in with her family or at school. She seems angry and depressed. Both she and [Y] speak about not caring about, or not being affected by, many things around them. It is likely that they have steeled themselves against difficulties and do not wish to express vulnerabilities.
From soon after the parties’ separation, the children lived with the father, with only supervised time with the mother until August 2002. The father has always had the assistance of the paternal grandmother. On two occasions since orders were made by the Family Court in 2001 after a contested hearing, the mother failed to return the children at the end of their time with her, requiring court intervention. On the second of those occasions in June 2006, the father alleges the mother was threatening to move with the children to Queensland.
Since October 2007, [X] has been living full time with the mother, seeing almost nothing of her father and refusing to see her paternal grandmother, despite a close relationship existing between the two until that time. [X] is adamant this is the way she wants it to stay. [Y] is living with the father 8 days a fortnight, the mother 6 days a fortnight, and spending time with the paternal grandmother on an ad hoc basis when living with the father. [Y] tells the family consultant he wants equal time with each parent. Ms Bowen believes this is [Y]’s way of doing the best he can to reduce the conflict between the parties and to remove himself from the ongoing dispute.
Since moving to her mother’s home in October 2007, [X]’s performance at school has deteriorated markedly. The paternal grandmother is concerned that if [Y] is not living with her during the school week, his enthusiasm for school will wane and his academic progress will deteriorate, as has [X]’s.
The paternal grandmother, aged 59, lives alone in [J]. She has retired from the [omitted] industry. She was recently approved as a foster carer for the Department of Community Services though as yet, has no children in her care, and will not do so if her application succeeds.
The father, aged 33, also lives in [J] in a 3 bedroom Department of Housing home in which he has lived since August 2006. He struggles with literacy and has depended on his mother to “do paperwork”. The father has not worked full time since 1999. He is presently studying literacy at TAFE one evening a week. He has been in an “on/off” relationship with a 20 year old neighbour Ms F since early 2007 and they have lived together from time to time. Ms F has a child, [K], with special needs, from a previous relationship. At hearing in March, the father and Ms F had just recommenced cohabitation. At hearing in early April, Ms F said her relationship with the father had ended.
The mother, aged 30, lives in [W]. The mother has two younger children, [M] aged 7, and [P] aged 16 months. She is not in paid employment. [M] lives with the mother under parenting orders made by Sutherland Local Court in December 2006 [3] and does not see her father, Mr D. The mother says she is not in a relationship with [P]’s father, Mr S, but [P] sees him most days when Mr S visits for half an hour or so on his way home from work, or when the mother takes her to his home to see him. In his affidavit sworn in February 2009, the father believed the mother was living with Mr S. The mother reported to the [S] Cannibis Clinic in November 2008 that her relationship with Mr S changes from friend to boyfriend every couple of weeks[4].
[3] Exhibit 21
[4] Exhibit 17
[X] attends [G] School in Year 8. [Y] attends [L] School in Year 6. The parties agree [Y] will attend [E] School in 2010, if he is accepted, or otherwise the school [X] attends.
Short History of Litigation
The parties separated in July 1999. On 22 December 1999, orders were made by consent for the children to live with the father and spend supervised time with the mother.
On 9 February 2001, after a contested hearing, final orders were made by the Family Court providing for the children to live with the father and spend supervised time with the mother for at least 8 hours each weekend. The court ordered that time was to be unsupervised once the mother was able to deliver to the father the results of 6 months of supervised urine tests to indicate the mother had been free of illegal drug use for that 6 month period. In August 2002, though she was not drug free, the children began having unsupervised time with the mother.
On 7 June 2006, the father obtained a recovery order for the return of the children to his care after the mother failed to return the children.
In early 2007, the police again returned the children from the mother to the father using the existing recovery order.
At the time of Ms Bowen’s report in June 2007, [X] and [Y] were living with the father and spending alternate weekends with the mother with changeover at either school or a contact centre. The mother had moved to Housing Commission accommodation in October 2006 and was in a relationship with Mr S. The father had moved house as a result of threats of violence from the mother’s associates and was in new relationship with Ms F, then aged 19.
On 4 July 2007, final orders were made by consent in the Federal Magistrates Court for the parents to share parental responsibility for the children, for the children to live with the father and spend time with the mother 5 nights each fortnight and for half school holidays.
In September 2007, Ms F moved to live with the father and the children. In October 2007, [X] moved from the father’s home to the mother’s home on a full-time basis. In early 2008, Ms F’s relationship with the father broke down.
In November 2007, the paternal grandmother commenced these proceedings. At that time, she sought orders that the children spend time with her for an afternoon once a month and by telephone twice a week.
On 22 February 2008, an Independent Children’s Lawyer was appointed, and the parties were ordered to attend Relationships Australia for child inclusive mediation. It was noted in those orders that Relationships Australia were aware of the parties’ need for intensive family therapy, and that Orders made on 4 July 2007 were not presently being complied with in relation to [X]. The Court also noted the advice of the mother that [X] was expressing a wish not to spend time with the father or the paternal grandmother.
In March 2008, the paternal grandmother amended her application, seeking orders that the children live with her from 6 p.m. Sunday until the end of school on Friday each week, and share their time with each parent outside those times.
On 18 April 2008, the parties were again ordered to attend counselling/family therapy at Relationships Australia, each party was restrained from using illicit substances at any time and ordered to undertake supervised urinalysis within 48 hours of a request by the Independent Children’s Lawyer. The Court noted the paternal grandmother’s undertaking to the Court not to consume alcohol when the children were in her care. The matter was listed for final hearing on 9 March 2009 for three days.
On 20 June 2008, the parties were again ordered to attend Relationships Australia to continue their counselling and the mother and father each openly acknowledged to the court their continued use of cannabis. The court noted each party’s undertaking to stop using cannabis, and the Independent Children’s Lawyer indicated she would speak with each party’s counsellor in relation to their use of cannabis for this issue to be discussed in each party’s counselling sessions. The paternal grandmother advised the Court she had not consumed alcohol since December 2007 and had no intention of consuming alcohol in the future.
In February 2009, when she discovered Ms F had moved in to the father’s home again, the paternal grandmother again amended her application seeking an order that [X] live with her mother and spend time with the paternal grandmother in accordance with [X]’s wishes. She sought an order that [Y] live with her from after school Monday until before school Friday, and otherwise share his time equally between his two parents.
This hearing took place over 5 days, from 9 to 11 March 2009 and 2 to 3 April 2009.
As already noted, at hearing the paternal grandmother sought an order that [Y] live with her during the school week and otherwise share his time equally with each parent. She agrees with the father and the mother that [X] should live with the mother and spend time with her and the father as [X] wishes. The father seeks an order that [Y] live with the mother from Wednesday after school until Monday morning in the first week of every 2 week cycle, and from after school Wednesday until before school the following day in the second week. The mother seeks an equal time arrangement between her and the father. The father and mother agree that [Y] should share his holiday time with each of them equally. At the end of the hearing, the Independent Children’s Lawyer sought orders providing for [Y] to live with the paternal grandmother from after school Monday until before school Friday each week, and to share weekends and holidays with each parent equally.
Credit issues
The paternal grandmother impressed me as a frank and honest witness committed to the welfare of her grandchildren. I found she showed considerable insight into the needs of [X] and [Y] including their need to spend time with each parent and build relationships with their half siblings.
I found the father tended to understate the extent of his problems with alcohol and illicit drug use, and showed poor insight into the impact of his conduct on the children. However, I did not conclude he was dishonest.
The mother presented as an arrogant, immature and angry young woman. Her hostility towards the paternal grandmother was palpable. She answered back, made derogatory ‘side’ remarks, frequently argued the point with the cross-examiner, and was unresponsive to many questions. At one point, I interrupted proceedings to allow her counsel to speak to her about her conduct in the witness box. At times, she appeared almost incapable of controlling her emotions.
I found the mother’s evidence unreliable. She denied the content of police reports and health reports without plausible explanation. I formed the view she was untroubled as to whether or not her evidence was entirely truthful.
When the evidence of the paternal grandmother differed from that of the mother or of the father, I preferred the paternal grandmother’s evidence.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) which includes “any other fact or circumstance the court thinks is relevant.” The additional considerations in section 60CC(3)(b), (d) and (f) make clear that grandparents can play an important role when considering a child’s best interests.
Section 60CC(4) requires me to consider also the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children.
There is no presumption in favour of a natural parent when considering a child’s best interests, although the fact of parenthood is an important and significant factor[5]. The Full Court held [6] that “each case must be determined according to its own facts, the paramount consideration always being the welfare of the child.”
THE PRIMARY CONSIDERATIONS
[5] Rice & Miller (1993) 16 Fam LR 970 at 977
[6] At 978
The benefit to the child of having a meaningful relationship with both the child’s parents.
Each party acknowledges that [X] and [Y] love both their parents and need to maintain a loving close relationship with both their mother and their father. The mother says that even though [X] does not want to live with, or spend fixed time with the father, she and her father recently enjoyed a relaxed evening together full of laughter and lively interaction.
Neither parent, nor Ms Bowen, suggests that the children’s opportunity to continue to enjoy a close relationship with each parent will be at risk on any party’s proposal, if the parties accept the arrangements ordered.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
This is the most significant factor in this case and I give substantial weight to my findings under this factor.
Although the parents supported each other’s positions at hearing against a common foe, the paternal grandmother, I am satisfied the relationship between the parents has been characterised by anger, hostility and an inability to communicate without frequent flare-ups. It is noteworthy that for the majority of the last 10 years, an apprehended violence order has been in force for the protection of either the mother or the father against the other parent. The father reported to Ms Bowen in April 2007 that the mother had stopped sending [M] to his home to be looked after because their conflict had increased and the mother had been in dispute with Mr D about [M]’s care[7]. The latest apprehended violence order between the parents expired in January 2009.
[7] June 2007 report of Ms Bowen at paragraph 30
In summary, I find neither parent has protected the children from exposure to fighting and at times violence between each of them and other adults. I find neither parent has protected the children from frequent exposure to excessive alcohol use and illicit drug use. I find neither parent has protected the children from regular exposure to police intervention, which has caused the children to experience fear, embarrassment and insecurity. I find each parent has been negligent in permitting exposure to inappropriate situations. Neither parent shows insight into the damage their conduct is likely to cause their children. I find it highly likely the children will continue to be exposed to conflict, excessive use of alcohol and illicit drug use, which will necessitate further police intervention, when living in the households of either the father or the mother.
In particular, in relation to the father:
a)On 4 June 2006, the father went to the mother’s home to collect the children when she failed to return them after contact. Mr B, a friend of the mother’s and close friend of the mother’s most recent partner, Mr S, assaulted the father in front of the children causing his head and lip to split open[8]. The father’s unchallenged evidence is that Mr B grabbed him by the neck, held him against the wall with the father’s feet dangling, and rammed the father’s head into the side of a brick wall. Mr B then punched the father in the mouth with a closed fist and knocked him to the ground. The mother drove the children away from the scene while unlicensed to drive a car. The father was taken to hospital.
b)The father concedes at interview with Ms Bowen in 2007 that the children were subjected to considerable conflict in his previously short-lived relationship[9].
c)In June 2007, [Y] reported to Ms Bowen that he was worried about his father getting into fights at the pub. [Y] said he had seen an ex-girlfriend of the father run over his father’s toe with a car[10].
d)Ms F acknowledges loud angry arguments with the father in his house, and [Y] reacting badly to these fights. [X] left the father’s home permanently to live with the mother within a month of Ms F moving to the father’s place in September 2007. [X] said in her letter to her father at that time “all you do is fight with me, [Y], [Ms F] and Nan.” [11]
e)In December 2007, the father and Ms F had a fight “with raised voices”. Ms F’s brother arrived carrying a piece of timber for protection. In front of [Y], Ms F’s brother threatened the father, “come out of the house so I can beat your head in.” Police were called[12].
f)Just prior to the report interviews in February 2009, [Y] and Ms F had a physical tussle over a mobile phone and Ms F flicked her lighter at [Y] hitting him on the back of the head. The father told Ms Bowen that Ms F called [Y] a “little shit”.
g)The father acknowledges drinking alcohol each day, “mostly beer”…“unless he goes to the pub with friends”, smoking cigarettes and using cannabis, and admits he failed to attend urinalysis when requested to do so prior to hearing. He says he has suffered from insomnia since he was 13 and cannot sleep unless he smokes marijuana. He also uses marijuana to cope with stress. He reduced his consumption for a short period in 2006 when attending a cannabis clinic[13], but relapsed. The Clinic records show he returned for an assessment in December 2008 when the father said that he “walks around in circles if I don’t have a bong.”[14] Ms F reports the father using marijuana, probably in the laundry, 4 to 5 times a day when she is living there. Ms F says the children have asked him to stop using. The paternal grandmother describes the father’s drinking and drug habits. She sees bottles in brown bags, and bottle tops throughout the house. She found a bong in a kitchen cupboard when she cleaned a few months ago. In June 2007, the father reported to Ms Bowen that alcohol consumption was his worst problem[15]. Ms Bowen reported contact centre records stating the father approached the contact centre to collect the children on one occasion carrying a half drunk bottle of beer[16]. The father is aware the children do not like him smoking cigarettes. The father says he has been particularly stressed as a result of the court case, his estrangement from his mother over Ms F, the death of his dog, lack of employment and the death of his grandmother.
h)The paternal grandmother’s unchallenged evidence is that [Y] has stayed at her place because of the father’s alcohol use. The father told Ms Bowen that he spent afternoons at a hotel with [Y] playing pool or watching football. [X] told Ms Bowen that she often had to ask Ms F to collect her father from the local hotel, and described him as being unreliable at providing food and getting out of bed in the morning[17]. [X] reported that he consumes excessive amounts of alcohol and that he is worse tempered if not consuming marijuana. [X] reported to Ms Bowen in June 2007, her father having male friends at his home regularly and him drinking alcohol and smoking cigarettes. [X] complained the father was erratic with his provision of meals for them, and slept in. Ms F confirmed that the children would have to ask the father to purchase food for them. At interview in June 2007, the mother said the children were unhappy about the level of the father’s alcohol consumption and his having friends and young women at the house regularly[18].
i)The father suffered from depression for at least the 12 month period following his friend’s suicide in 2004. He said he consumed a lot of alcohol during this period and spent long periods in front of his play station.
[8] Exhibit 18
[9] June 2007 report of Ms Bowen at paragraph 27
[10] June 2007 report of Ms Bowen at paragraph 54
[11] Exhibit 4
[12] Exhibit 18
[13] Exhibit 6
[14] Exhibit 6
[15] June 2007 report of Ms Bowen at paragraph 28
[16] At paragraph 28
[17] February 2009 report of Ms Bowen at paragraph 32
[18] June 2007 report of Ms Bowen at paragraph 11
In particular, in relation to the mother:
a)The mother has been convicted of 21 criminal offences. In her June 2007 report, Ms Bowen said[19]:
[19] June 2007 report of Ms Bowen at paragraph 73
Of concern is that the children are aware that their mother has disregard for the law and police and that in her company they have been actively involved with avoiding police intervention. This places them at risk of conduct disorders and of mimicking similar behaviour in the future.
b)On Christmas Day 2000, the mother kicked the father in the face. Mr D then punched the father in the back of the head and said “you’re dead cunt”. Mr D then had the father in a wrestle while the mother yelled out for Mr D “to kill the arsehole”. The mother describes [X] crying and calling out “stop fighting.” [Y] was also present[20].
[20] Exhibit 18
c)The father deposes to both [X] and [Y] being hit by [M]’s father, Mr D, when at the mother’s home in 2003. [X] described Mr D to Ms Bowen as a “junkie who is on ice”.[21]
[21] February 2009 report of Ms Bowen at paragraph 29
d)In February 2004, the mother and father had an altercation in front of the children on the way to soccer.
e)In January 2005, the mother had an argument with her mother in [B], with the children and [M] present. The mother claims her mother punched her and there was “yelling and screaming in front of children”. The police were called and took the children and the mother and [M] to [B] station[22].
[22] Exhibit 18
f)In 2005, the mother says Mr D threw her across the room and punched her in the face.
g)
In January 2006, the mother failed to return the children to the father’s care in accordance with court orders. The police were called. The mother described the events of that evening to
Ms Bowen. The mother said [23] that she and the 3 children ([X], [Y] and [M]) were in the bedroom together late at night when the police “bashed” on the door. She described [X] “wishing they would piss off” and [Y] comforting [M].
[23] June 2007 report of Ms Bowen at paragraph 17
h)On 7 July 2006, the court ordered the children’s return to the father when the mother refused to return them in accordance with the court orders. It was necessary for security to be called because of the mother’s abusive conduct in front of [Y].
i)
On 13 August 2006, the father deposes [24] to the mother bringing a male friend to his home for changeover of the children and to the mother threatening to have the father “done over” in front of the children. The father says the mother repeated this threat on
[24] Affidavit of father sworn on 16 February 2009 at paragraph 30
26 August 2006[25]. On 30 August 2006, the father says the mother spat on him and said “It doesn’t matter anyway, you’ll be dead soon.”[26] The father deposes to the mother using foul obscene language towards him.
[25] Affidavit of father sworn on 16 February 2009 at paragraph 32
[26] Affidavit of father sworn on 16 February 2009 at paragraph 33
j)On 29 January 2007, the father deposes to the mother yelling in the children’s presence, when the police arrived to retrieve the children, “How dare you fucking come around here”…“you fucking dog cunts.” The father observed the children to be “quiet, pale and shaken”.[27]
[27] Affidavit of father sworn on 16 February 2009 at paragraphs 51 to 53
k)In November 2007, police records show there was a fight in front of [M] between Mr D and Mr S[28]. The mother said “[M] was very shaken”. Mr S had “bitten” Mr D when Mr D put his hand in [Mr S]’s mouth, which necessitated Mr S being tested for hepatitis B. [M] was referred to the Department of Community Services.
[28] Exhibit 18
l)In September 2008, the children were present when the police arrested Mr S for possessing firearms. The mother makes light of this offence.
m)
On 17 October 2008, police records [29] state that a male known to the mother, Mr Q, forced entry to the mother’s home, wielded a knife, trying to take things from the home. The children were present with the mother’s friend Ms M, the mother absent.
[29] Exhibit 14
A woman urinated on the common lawn, and Ms M rang the mother. The mother told [X] on the phone to take all the children to the bathroom upstairs and lock themselves inside. She described the children as “very shaken when I got them out.”
n)The paternal grandmother obtained an apprehended violence order against the mother soon after the parents separated. The mother has since initiated two complaints against the paternal grandmother for an apprehended violence order, one shortly after the first one expired on 10 November 2008. The mother claims that on 20 November 2008, the grandmother made repeated phone calls to [X] who, the mother claims, did not want to speak to her. The grandmother then delivered gifts to [X]. The mother claims [X] did not want the gifts, so she took her to the grandmother’s to return them. On 27 November 2008, these events resulted in the mother obtaining another apprehended violence order against the paternal grandmother which prevented the paternal grandmother from attending [Y]’s school, or from [Y], [M] and [P] having any contact with her. As a result of the paternal grandmother’s application to vary, the current order dated February 2009 does not include the children, has a two year term and is on appeal by the paternal grandmother who claims there is no basis for the application. The order prohibits the grandmother from approaching the mother’s home, or from approaching or contacting the mother.
o)
The mother admits to drinking alcohol, and to being a long term user of non-prescription drugs. The mother was using heroin at the time of the parenting proceedings in 2000, and has used cannabis since the age of 12. She smoked cannabis before [Y] was born and during her pregnancy with [M]. [P] was born with a positive cannabis reading. The mother was prescribed an anti-depressant after [M] was born[30]. On 8 August 2004, police records reveal that police were called to the mother’s home after she had overdosed on prescription medication and alcohol. The mother tested positive to cannabis use in June 2006[31]. The father believes the mother was using amphetamines at the time of interviews with Ms Bowen in 2007[32] and that [X] was aware of her mother’s drug use. Department of Community Services’ records state that the mother has a history of using ice and provides inadequate supervision of [X] and [Y][33]. However, having admitted to continued daily cannabis use in July 2008 at court, the mother has since attended the [S] Cannibis Clinic.
On 1 October 2008, the cannabis clinic records[34] state that the mother told the clinic she was then using 3.5g a day mixed with tobacco and “…smokes most of the day. Is trying to cut out cones in the middle of the night.” She claims until October 2008, she was consuming cannabis to a value of $350 a week but “I got it for free from [Mr S]”[Mr S]. The clinic notes show the mother reported a cannabis free period when she substituted cigarettes for cannabis. She had a negative drug screen on 12 and 24 November 2008 and in February 2009[35]. [X] told Ms Bowen[36] the mother is “less frustrated” if using marijuana.
p)The Department of Community Services have been involved with the mother because of concerns about [M]’s care. Their records of November 2007 reveal there have been 15 previous reports to the Department in relation to [M]: “the mother’s boyfriend gets her out of bed and hits and kicks her and the child only has noodles for lunch and sometimes she does not have socks”…“concerns that mother puts her drugs in the dirty clothes”…“previous reports have been with regards to domestic violence, drug use by carer, suicide risk of carer, inadequate shelter and risk of psychological harm.” [37]
[30] June 2007 report of Ms Bowen at paragraph 18
[31] Annexure P of grandmother’s affidavit filed on 13 February 2009
[32] June 2007 report of Ms Bowen at paragraph 24
[33] Exhibit 19
[34] Exhibit 17
[35] Annexure C to mother’s affidavit sworn on 16 February 2009
[36] February 2009 report of Ms Bowen at paragraph 33
[37] Exhibit 19
The paternal grandmother says that she does not drink alcohol, smoke cigarettes or use non-prescription drugs. Neither parent adduces evidence of any violence or conflict at the paternal grandmother’s home.
I accept Ms Bowen’s assessment that the children’s emotional health is at risk living in each parent’s household where there are high levels of conflict and high levels of exposure to inappropriate behaviour.
I accept her view that both [X] and [Y] are anxious about their parents and this is not good for them.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
[X] has stated a clear wish to live with her mother on a full time basis and to spend no time with her father or paternal grandmother. She told Ms Bowen in April 2007 that she had wanted to live with her mother for the two years prior to that. [X] wrote to her father in October 2007 begging him to let her move to the mother’s place[38]. The Independent Children’s Lawyer submits that the court should give her views significant weight given her age. Ms Bowen recommends arrangements for [X] remain as they are. As already noted, and as agreed between the parties, [X] will remain with her mother and [X] will decide when and if she wants time or communication with her father and paternal grandmother.
[38] Exhibit 4
[Y] has told Ms Bowen he wants alternate week arrangements between his parents as this would be “fair” to him and “probably Mum”.[39] [Y] then indicated he had no problem with the present arrangements. [Y] told Ms Bowen in April 2007 that he did not want to be involved in decisions regarding his parents’ dispute. [Y] then agreed with [X] that he wanted to live with each parent in alternating weeks “so [M] is not upset” and “so it’s even.”[40]
[39] February 2009 report of Ms Bowen at paragraph 36
[40] June 2007 report of Ms Bowen at paragraph 57
When Ms Bowen asked how he would feel about staying with the paternal grandmother during most of the school week, and spending alternate weekends with each parent, “[Y] just quietly reiterated that he wants the arrangement to be 7/7”.[41] The paternal grandmother says she told [Y] in early February this year that she was proposing that he stay with her during the school week. She says [Y] did not say much except sought reassurance (which she gave him) that he would still see his mother and father.
[41] February 2009 report of Ms Bowen at paragraph 36
The Full Court in H v W [42] and in R and R: Children’s Wishes [43] said the wishes of children are important, and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
[42] (1995) FLC 92-598 at 81,947-8
[43] (2000) FLC 93-000 at 87,071
Ms Bowen notes that [Y] may be saying this to placate his mother, relieve himself of emotional pressure, or reduce the frustrations of living with the father. In her view, [Y] finds it very hard to deal with the conflict between the three adults. [Y]’s advice to other children in his situation is “don’t get in the middle of fights” and “don’t take sides.” Ms Bowen says [Y] would assume he would spend time with his paternal grandmother when living with his father, as has been his pattern in the past. Ms Bowen believes [Y] finds his paternal grandmother’s home a place to retreat. He has chosen to spend time there when there has been fighting in his mother’s household, or his father has been drinking to excess, or Ms F has been staying with the father.
I accept Ms Bowen’s view that [Y] finds it too difficult to express what he really wants for himself, given his overriding need to reduce the emotional pressure he is under. I take into account that [Y] wants the arrangements to be “fair” and would find it harder to accept an arrangement giving him more time with one parent than the other.
The nature of the relationships between the child and each parent and between the child and other persons including any grandparent.
As observed by Ms Bowen, I find [X] and [Y] have meaningful relationships with each parent. Since the time the parents separated, each child has spent time with each parent on a regular basis, increasing time with the mother in more recent years. From October 2007, [X] has sought distance from her father, but this, in my view, does not diminish her meaningful relationship with him.
[Y] loves both his parents and I am satisfied wants and needs time with them both. However, I also accept Ms Bowen’s assessment that [Y] is insecure in his relationship with each parent in that, and he believes that if he is not absolutely fair to them both, this will cause them to be dissatisfied. I accept Ms Bowen’s assessment that [Y] is acutely aware of his parents’ needs and desires. He knows what each parent wants, and what will upset them, and he desperately wants to accommodate their needs if he can. [Y] therefore feels a level of anxiety with each parent.
I find that [X] has enjoyed a close relationship with the paternal grandmother but that she cannot openly sustain the relationship in the face of the mother’s vehement loathing of the paternal grandmother. I prefer the evidence of the father and the paternal grandmother to the evidence of the mother, as to the significant role the paternal grandmother has played in both children’s lives until October 2007. The paternal grandmother’s unchallenged evidence is that she bought [X] clothes, including school clothes, bought her furniture for the father’s home, helped her with school work, drove her to extra-curricular activities and medical appointments and to information nights for high school. The grandmother did [X]’s washing and ironing, including her undone washing returned from visits with her mother, to always ensure she was well presented at school. It is noteworthy that [X] asked to stay with the paternal grandmother when she started menstruation in February 2007, and that [X] did not complain about the grandmother when interviewed by Ms Bowen for the June 2007 report. I accept the paternal grandmother’s evidence that when she has seen [X] alone over the last 18 months, [X] has shown no hostility towards her. They enjoyed a happy day together on Christmas Day 2007. In March 2008, when they met by chance at a shopping centre, [X] approached the grandmother and gave her a “big hug”. They had an hour on the phone on 24 July 2008. But when in the presence of the mother, [X] ignores the grandmother, and cannot choose to see the grandmother in the face of arrangements made by the mother. I do not accept that her statement to Ms Bowen in February 2009 that the paternal grandmother is “an emotional drunk and a gambler”[44] is her genuine view.
[44] February 2009 report of Ms Bowen at paragraph 31
I am satisfied the mother’s attitude to the paternal grandmother emotionally prohibits [X] from continuing to benefit from her strong relationship with the paternal grandmother.
As acknowledged by the father[45], I find [Y] has a close relationship with his paternal grandmother. As for [X], the paternal grandmother has washed and ironed [Y]’s clothes for the last 10 years, transported him to and from school and to and from extra-curricular activities. As for [X], she has helped [Y] with his school work, provided a computer with internet access for him, and encouraged him academically. I accept Ms Bowen’s view that [Y] does not have to worry about his grandmother, because he can take her love for him for granted. [Y] does not feel a sense of responsibility for her needs as he does for his parents. He has no need to worry about how his grandmother will react, nor take steps to nurture his relationship with her. He can escape to her home when he needs respite from his father, or when he needs to focus on his school work. I accept Ms Bowen’s view that [Y] enjoys a safe relationship with his grandmother, a relationship focussed on him. I give particular weight to this finding.
[45] Affidavit of father sworn on 16 February 2009
I accept the father and the paternal grandmother’s evidence that [Y] enjoys a good relationship with his maternal grandmother who lives at [B], and enjoys the visits they arrange there. This is despite the complete breakdown in the mother’s relationship with her mother, and her opposition to the children seeing the maternal grandmother. I accept that [X] too enjoyed a fond relationship with the maternal grandmother, but is prevented from enjoying that relationship now, in the face of her mother’s strong negative feelings towards her.
In relation to sibling relationships, I accept Ms Bowen’s conclusion that [Y] and [X] are not relating well at present. [Y] believes [M] would miss him if he were not spending time with his mother. [X] describes [M] to Ms Bowen as “horrible and naughty”. Ms Bowen notes that the longer [X] has lived with the mother, the more conflict has arisen in the sibling relationships.
There was no challenge to the father’s evidence that the children get on well with his sister Ms L, a police officer, and her children [D] and [E].
I find [Y] has a poor relationship with the father’s sometime partner, Ms F. [X] tells Ms Bowen, [Y] “hates” Ms F[46]. I accept the paternal grandmother’s evidence that [Y] has retreated to her home at times to avoid Ms F.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
[46] February 2009 report of Ms Bowen at paragraph 30
The children have been exposed to years of chronic conflict between their parents. Although at hearing there was a kind of “truce” between the father and the mother, while each opposes the orders sought by the paternal grandmother, there is no evidence before me to give me any confidence the “truce” will be long lasting. The mother and the father’s relationship has been characterised by hostility and apprehended violence orders. Ms Bowen observed in April 2007 that the parents quickly became embroiled in disagreements at interview, and their joint interview was terminated[47]. I am satisfied each parent has denigrated the other at times, and the children are well aware of the ongoing conflict between them. Court orders for the parents to attend counselling to learn the importance of speaking positively about each other, and improving communication for the children’s sake, have always broken down. Neither parent shows any understanding of the importance to the children of co-operative constructive co-parenting.
[47] June 2007 report of Ms Bowen at paragraph 23
There have been two occasions when the mother has failed to return the children in accordance with orders, and in addition, the mother ignored the 2007 orders when [X] changed residence with the mother’s assistance. I am not persuaded the mother is making any genuine effort to re-establish the relationship between [X] and the father, but neither am I satisfied the father is motivated to take any steps himself. I am satisfied the mother places minimal importance on court orders.
Despite these findings, the children have spent substantial time with each parent since the parties separated and, almost despite their parents’ conduct towards each other, have established good relationships with them. I am satisfied that despite the current tension in [X]’s relationship with the father, these relationships will continue.
I do not find this a significant factor in deciding this case.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
None of the parties or the Independent Children’s Lawyer seek to change [X]’s present arrangements because of her age and her insistence that she wants no change. This is despite her presentation to Ms Bowen as sad and lacking in motivation at school and at home[48], and despite the tension in her relationships with the father and the paternal grandmother.
[48] February 2009 report of Ms Bowen
While the mother seeks an order for [Y] to spend equal time with her and the father, her proposal is only slightly different from the present 6/8 day shared arrangement in favour of the father and agreed by the parties. I am not satisfied such a change would have more than a marginal impact on [Y].
However, if [Y] lives with the paternal grandmother during the school week, this will be a significant change for him. It will mean fewer nights with each parent, and fewer nights with [X] and his half-siblings. [Y] will see less of his friends who live near the mother’s home. [Y] may also suffer increased anxiety when living with each parent, if either or both react badly and fail to adjust to the changed arrangements. As earlier noted, I have particular concerns about the pressure the mother will impose on [Y] and the resulting strain on him.
While I have difficulty making a firm finding as to how much time [Y] has spent with the paternal grandmother, it is clear that [Y] has never lived with the paternal grandmother, nor spent structured regular time with her. Rather, he has spent time there when he has needed to work on a project or when he has wanted to escape the pressures of life with either parent. Living with the paternal grandmother each week for days at a time would be an entirely new experience. The father claims [Y] has become frustrated with his grandmother in recent months and that since [X] left his home, the paternal grandmother’s attention on [Y] has been too intense. Though the father recognises [Y] enjoys using the internet at the grandmother’s place, he believes [Y] might react badly to the grandmother if forced to live with her each week.
On the other hand, if [Y] lives with the grandmother on all or most school nights, I am confident he will have uninterrupted time to concentrate on his homework and school projects, will be supported and assisted with his school work when necessary, will be at school on time each day, will enjoy regular and nourishing meals and will enjoy a peaceful, calm and supportive day to day existence, away from the turmoil in each parent’s household.
These are findings to which I give significant weight.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties live in close proximity to each other. This is not a factor in this case.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs.
The paternal grandmother says she was “not a good parent” to her own two children. I accept her admission. She has a criminal record from 1987 to 1989[49]. She acknowledges associating with a “bad person”, and being convicted and sentenced for aggravated assault to a gaol term of nearly 5 years when the father was only 13 years old. She knows that her absence from her son’s life at this critical stage of his life had a devastating effect on him, while her older child Ms L was able to go on to university and become a [occupation omitted]. While this background is not directly relevant to the issues I must decide, I have little doubt that a sense of guilt has added to the paternal grandmother’s intense involvement in this family. However, the issue I must decide is the grandmother’s present capacity.
[49] Exhibit 2
As already noted, the paternal grandmother has played an active role in the children’s lives. In April 2007, the paternal grandmother told
Ms Bowen she generally saw the children twice a week, as well as times when she transported them to sporting or school activities[50].
[50] June 2007 report of Ms Bowen at paragraph 31
Although difficult to establish the amount of time each child has spent with her, I am satisfied [Y], and [X] until October 2007, have regularly spent time at the paternal grandmother’s home for most of their lives, including overnight stays, and she has spent regular time with them at the father’s home. I accept her evidence that until 4 years ago, she tutored each child two afternoons each week. I accept that [Y] spent
18 overnights with her in the latter part of 2008, which included overnights during a 10 week period when he was doing a school project.
I am satisfied the paternal grandmother has an excellent capacity to provide for [Y]’s schooling and educational needs. She represented herself at trial in a competent manner. As a self-represented litigant,
I found her well prepared and well organised and she presented as intellectually focussed. Neither parent questions her intellectual competence when she has assisted [Y] with school work, nor her commitment to his education generally. By way of example, just prior to this hearing, [Y] asked her to buy him a USB for school, which she did.
In relation to [Y]’s physical needs, the paternal grandmother has shown concerns over a long period about the state of the father’s home while the children have lived with him. She has tried to teach the father to clean and keep a home tidy. She has cleaned his home herself to improve conditions for the children. She has bought equipment for the home including an iron and a washing machine. The paternal grandmother has transported [X] and [Y] to school events, extra- curricular activities, medical appointments and to changeover between their parents for many years. She has done the children and the father’s washing and ironing for many years. She has delivered pancakes to the children before school on occasions. She ironed the father’s shirt for this hearing. While each parent is critical of her for “taking over” and “interfering”, and to an extent I accept this is true, I am satisfied overall that the paternal grandmother’s assistance to the parents, particularly the father, has been a significant reason for both [X] and [Y]’s progress at school in their primary years. [Y]’s reports show he has been doing well at school. His Year 5 report in 2008[51] reads:
[Y] is a hard working, thoughtful student who has put a 100% into all that he has done this year. His steady approach and excellent attitude has always set a fine example to his peers and his standard of work is highly commendable…. It has been a pleasure to teach [Y] this year.
[51] Annexure I of grandmother’s affidavit filed on 13 February 2009
In addition, the paternal grandmother has provided the children with financial assistance by purchasing clothing and school equipment, including a computer and internet connection. She has paid [Y] to mow her lawn. She assisted [Y] to open a bank account in November 2008.
I am satisfied the paternal grandmother has met both [X] and [Y]’s emotional needs in the past when required, by being available to them when they have needed her. For example, [Y] stayed with her in December last year when he was troubled by his father drinking excessively. She has ensured their continuing contact with their maternal grandmother, their paternal great grandmother and arranged visits for the children to the maternal grandmother’s home at [B]. If [Y] were living with the paternal grandmother during the school week,
I find that the paternal grandmother will be supportive, particularly in relation to helping him manage any adverse reaction from his parents to such an arrangement. I am encouraged by [Y]’s comment to
Ms Bowen that if he had a problem he would turn to either parent or his paternal grandmother. I also have no hesitation in accepting
Ms Bowen’s assessment of the grandmother, in 2007 and 2009, as child-focussed.
Ms Simm spoke with empathy for the children, and for example, she described apologising to them for the involvement of the police to secure their return to their father during 2006. [52]
Ms Simm spoke with familiarity and awareness of the children’s interests and concerns. [53]
[the grandmother] presents as warm and empathic when she speaks of the children. [54]
[52] June 2007 report of Ms Bowen at paragraph 34
[53] June 2007 report of Ms Bowen at paragraph 35
[54] February 2009 report of Ms Bowen at paragraph 17
The paternal grandmother is clearly devastated to have lost her relationship with [X], but respects [X]’s wish not to see her. She made it clear that although she only has a two bedroom home, she would always make room for [X] if ever [X] wanted to stay with her.
Ms Bowen says[55]:
[55] February 2009 report of Ms Bowen at paragraph 14
Ms Simm has been of very significant practical and emotional support to [X] and [Y] over many years. Both parents have histories of drug and alcohol problems, unstable work and home lives, and conflictual relationships but they have little appreciation as how this has contributed to the need for
Ms Simm’s level of involvement in matters concerning the children.
While I am satisfied the mother generally meets the children’s most basic day to day needs, I find her a poor role model to her children with a limited capacity to parent. The mother has failed the children in a number of respects:
a)The mother has used illicit drugs for most of the children’s lives. Despite court orders in early 2001 which gave her the chance to spend time with the children unsupervised if she stopped using, she chose not to do so.
b)The mother continued to use cannabis until at least the latter part of 2008, openly admitting to the court in June 2008 that she was using cannabis. The mother demonstrates no insight into the impact of her conduct on her children, or on her parenting capacity.
c)Until October 2006, when she obtained Department of Housing accommodation, the mother failed to establish a stable and secure home for herself and the children. Prior to that, the mother reported[56] living at [various suburbs omitted]. During 2006 the mother says she was “homeless” living with various friends, in a caravan or in a motel.
[56] June 2007 report of Ms Bowen at paragraph 12
d)The mother shows limited insight into the importance of the children’s schooling and education. In 2007, [X] was described by her school as “a well mannered, cooperative student. She always completes set work.”[57] She continued to do well in the early part of 2008 when in Year 7, receiving a number of achievement certificates[58]. However, in second semester 2008, [X] had 13 days absent from school, 4 unexplained. Despite good reports in some subjects, her mathematics report [59] states “…her attitude has deteriorated and she makes little effort to learn.” Her English report states “…her attitude towards this subject is of a negative nature.” In August 2008, she received an encouragement certificate which read “for doing homework![60]” [X] was required to enter into a number of behavioural contracts over the course of the year:
[57] Annexure G of grandmother’s affidavit filed 13 February 2009
[58] Exhibit 3
[59] Annexure H of grandmother’s affidavit filed 13 February 2009
[60] Exhibit 3
…she was rude and spoke back to the teacher when questioned about [her behaviour][61]
[61] Annexure B of grandmother’s affidavit filed 13 February 2009
…broke classroom agreement, talking, calling out, disrupting others learning [62]
[62] Annexure D of grandmother’s affidavit filed 13 February 2009
…broke class agree; singing, talking and sloping around in her chair. Looking backwards, disrupting others around her, inappropriate response to requests to pay attention eg grins [63]
[63] Annexure E of grandmother’s affidavit filed 13 February 2009
…constant calling out/talking [64]
[64] Annexure C of grandmother’s affidavit filed 13 February 2009
…students in her class complained of name calling, throwing things at them and stopping the class from learning [65]
[65] Annexure F of grandmother’s affidavit filed 13 February 2009
On 15 August 2008, [X] was suspended from school. On 19 November 2008, [X] was again suspended from school. The father received a letter which explained she had been suspended for swearing at a teacher[66]. Despite these reports, the mother described [X]’s report for that year as “excellent”[67].
[66] Annexure C to father’s affidavit sworn 16 February 2009
[67] Exhibit 24
e)The mother has been solely responsible for [X] during the period [X]’s academic progress has deteriorated. When meeting with the school about [X]’s swearing last year, the mother herself swore at the principal. I find the mother has poorly managed [X]’s behavioural problems at school and failed to recognise the significance of [X]’s suspensions from school last year. The mother has been quick to blame others without being prepared to acknowledge her own role in [X]’s loss of motivation and focus. Having shown considerable promise as a student in primary school, Ms Bowen says [X] now speaks of “hating school” and says she wants to leave “at the first opportunity to train as a chef.” Ms Bowen makes this observation[68]:
[68] February 2009 report of Ms Bowen at paragraph 52
…it is of concern that [X] has become increasingly angry and is expressing very negative attitudes. If this continues she is likely to have difficult relationships and her education will suffer. The deterioration has coincided with her moving into her mother’s household full time and it may be related to the disregard for authority that she has seen her mother (and, to a less intense but perhaps significant degree, her father) express.
f)I accept the father’s claim that the mother takes no interest in when [Y]’s school projects are due, and does not assist him with homework when he is with her. The mother admits to not attending [Y]’s parent/teacher night last year.
g)The mother demonstrates a failure to understand the importance of stability in schooling. I accept the father’s evidence[69] that in October 2006, the children asked him to allow them to change schools to one closer to the mother’s home. [Y] said to his father “Mum said that she needs us to look after [M] at school because she would get picked on.”
h)The mother has not chosen to prioritise the needs of her children ahead of her own. She did not watch [Y] play in his hockey semi-finals on two occasions in December 2006. In March and April 2007, the mother did not take [Y] to his soccer match and soccer training.
i)The mother has a poor driving record, which has resulted in her being without a driver’s licence for lengthy periods. Having just obtained her provisional licence, as a result of pending motor traffic charges, I am satisfied she is about to lose her licence again as a result of speaking on a mobile phone whilst driving, failing to show ‘P’ plates and parking in a school zone. The mother says she will plead guilty to two of the three charges. I accept the father’s evidence that in late January 2007, [X] told him that she had been in the car twice “when Mum has been arrested.” [X] has been worried about what would happen to [M] if the mother went to gaol.
j)The children have reported to the father and the paternal grandmother that they have been left alone in the mother’s home, with [X] responsible for the mother’s two younger children, or that they have been left with strangers, or woken up to find strangers in the house.
k)[X] reports to Ms Bowen that she spends much of her time at the home of her friends. The father claims the mother gives [X] “too much freedom” and does not monitor her to ensure she does her homework and domestic chores.
l)The mother has failed to recognise the benefits to the children of having a relationship with the paternal grandmother, particularly given her ability to assist them with school work. I am critical of the mother for imposing her views of the grandmother on the children. In cross examination, she said “the children call you the wicked bitch”. I do not accept those are the children’s views.
m)I am satisfied from a reading of her August 2006 affidavit[70], the mother has limited literacy.
[69] Affidavit of father sworn 16 February 2009
[70] Exhibit 25
I am not satisfied the father has adequate capacity to meet the children’s psychological and educational needs, although I find he shows greater insight into his shortcomings as a parent, than does the mother, and has made some good decisions for the children. For example, the father has, for the most part, been prepared to accept the assistance offered by his mother, to take some interest in [Y]’s schooling and has ensured [Y] can engage in sport. He has played a role in ensuring the children stay in contact with extended family. The father has provided stable accommodation for the children, with only one move in 2006, since separation.
I summarise my concerns as to the father’s parental capacity:
a)
He has not provided an organised home environment which functions well for the children. He has been a poor housekeeper and household manager. Although [Y] has his own room, I accept [X]’s comments to Ms Bowen, and the paternal grandmother’s evidence, that the house is untidy, smelly, dirty and unkempt.
Ms Bowen says from the father’s own descriptions, his home sounds “unkempt and disorganised”.[71] [X] complained to
[71] February 2009 report of Ms Bowen at paragraph 27
Ms Bowen about having to do most of the housework at her father’s home. The paternal grandmother described a kitchen full of unwashed dishes, a lounge room strewn with beer bottles, a disgusting shower curtain, a putrid kitchen floor, a fridge not cleaned for years and having to use stove cleaner 4 times to clean the stove when she spent 3 days cleaning in January this year. She found [Y]’s room full of rubbish and clutter, a curtain down and a sleeping bag on his bed. The father takes no responsibility for the difficulties [X] faced living in such a household. The father has taken no responsibility for creating an adequate work space for [Y]. He says [Y] sits at the table in the lounge room to do his homework, often with the television on. He has a playstation, DVD and television in his room. He never has friends to stay over.
b)The father uses alcohol, cigarettes and cannabis every day. He uses all to excess and spends at least $160 a fortnight of his government benefits on these items. The father goes to the local hotel to drink, and takes [Y] into this environment to play pool.
c)In September 2007, the father brought Ms F, and her young baby, [K], with significant special needs, into [X] and [Y]’s home without concern for the impact of this arrangement on them. [X] complained to the grandmother about having to wake Ms F in the night to care for [K].
d)
In February 2009, the father decided Ms F should move in to live with him again, Ms F having that same day left her former de facto partner. The father made this decision without private consultation with [Y], but rather chose to tell him in front of
Ms F. When [Y] asked “are you serious?” and questioned why Ms F could not stay at her own mother’s home across the road, the father failed to understand the distress his decision caused [Y] and said [Y] was happy with the arrangement. Ms F has been in an on off relationship with the father since early 2007. Ms F’s daughter calls the father “Dadda”. I find it likely, that despite the recent break in their relationship, the father and Ms F will live together again when these proceedings have been finalised. I am in no doubt that will expose [Y] to continued conflict and disruption and make it harder for him to focus on his school work, sporting activities and peer relationships.
e)Although he claims to take an interest in [Y]’s school work, the father could not name [Y]’s teacher for this year or for last year, and says [Y] does not need any assistance with homework.
f)The father takes no responsibility for [Y]’s use of inappropriate language. He blames television, school and [Y]’s friends for [Y] using terms such as “little slut”. This is despite his concession that [Y] and Ms F have argued with Ms F using terms such as “little bitch” and “brat”.
I give significant weight to my findings under this factor.
The attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
As already noted, I am critical of each parent’s attitude to the responsibilities of parenthood.
In relation to each party, I am critical of their failure to protect the children from exposure to violence and drug and alcohol abuse. I am critical of their attitude to the children’s schooling.
I have already referred to the mother’s poor driving record, lack of regard for motor traffic laws and negligence in driving the children in a car, while unlicensed.
I am critical of the mother for failure to comply with court orders in the past necessitating police and court intervention.
I am critical of both parties for their failure to take any steps to address [X]’s decision to cut herself off from her father and paternal grandmother.
I am critical of the mother for failing to inform the father immediately upon learning of [X]’s suspensions from school last year. I am critical of the mother’s failure to inform the father when the children were traumatised by the incident involving Mr Q.
I am critical of each parent’s failure to address their communication problems for the sake of the children. I find neither parent is child focussed.
These are all findings to which I have regard in reaching my decision.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
I raise no other matters under this factor.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other relevant characteristics of the child
Each parent presented at the hearing as immature. I found each parent chose to concentrate on the problems of the paternal grandmother, and their joint need to defeat her case, rather than on what might be the best outcome for the children. Neither showed an ability to analyse how these proceedings had arisen, and why the paternal grandmother believed the proceedings necessary. Neither acknowledged any part he or she might have played. While it was clear, upon scratching the surface, that each parent was deeply critical of the other, each parent was prepared to pretend otherwise in the common quest to defeat the grandmother.
The parents in this case have lifestyles which are incompatible with good parenting. Each have formed relationships with unsatisfactory others, the mother has had two more children by two different fathers, both of whom have been involved in illicit drug taking and crime. Each parent has exposed the children to hostility and violence and each has indulged in drug taking and excessive alcohol use. All this has resulted in two children who present to Ms Bowen as sad and unhappy. Yet, despite these serious issues, each parent, particularly the mother, blames the paternal grandmother. Each asks the court to accept that if the grandmother would step back, or in the mother’s case, have nothing at all to do with the children or either parent, all would be well. Each parent fails to accept responsibility for their own actions and show little, if no insight, into how their own actions have impacted, and continue to impact, on the children.
I have regard to these matters.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
I have earlier referred to the existence of previous apprehended violence orders between the parents, the last of which expired earlier this year. I have referred to the current order against the grandmother for the protection of the mother, which is presently the subject of appeal. I have addressed the family violence issues in this family and each parent’s role in exposing the children to family violence. I have nothing further to add under this factor.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
I have nothing further to add under this factor.
Any other relevant fact or circumstance.
I have regard to the fact that this case involves a dispute substantially between the parents and the paternal grandmother whilst the objects of the Act focus on parents, rather than non-parents, sharing the duties and responsibilities concerning the care and development of children.
I address this issue shortly.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child, but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Section 61DA requires the court to 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. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption of equal shared parental responsibility only applies to parents. It has no application to orders for parental responsibility made in relation to other people. However, the court has power to allocate parental responsibility to persons other than parents[72].
[72] Section 64B(2)(c) of the Family Law Act 1975
As stated by his Honour Justice Cronin in Souter & Meagher & Anor[73], the principle objects of the Act in Part VII refer to parents and it was clearly the intention of the legislature to place the onus on parents to undertake parental responsibility. His Honour Justice Benjamin, in Church & Overton and Anor [74] noted the Court should not interfere with the exercise of parental responsibility by parents unless it is contended the parents are not undertaking that responsibility in the best interests of the child.
[73] [2007] FamCA 18 at paragraph 132
[74] [2008] FamCA 965 at paragraph 60
In the present case, given the history of high conflict and poor communication between the parents, I am not satisfied the presumption applies. However, in relation to [X], I am satisfied that an order requiring both parents to share in major decisions about [X] is in [X]’s best interests because:
a)[X] has spent the majority of her life in her father’s primary care and has a good relationship with him.
b)[X] is not presently spending more than very limited time with the father.
c)The mother has a tendency to make poor judgments.
d)The father loves [X], despite the current problems in his relationship with her, and wants what is best for [X]. The father has shown genuine concern about [X]’s negative attitude towards her schooling.
e)Each of the 3 parties seeks an order for equal shared parental responsibility between the two parents in relation to [X].
In relation to [Y], the parents seek to share equally or substantially his day to day care. It follows in my view that it is in [Y]’s best interests for his parents to share parental responsibility for him in relation to most major issues concerning his welfare. However, I am not persuaded that it is in [Y]’s best interests for such an order to extend to decisions concerning his schooling and school activities. As already noted, I am impressed by the paternal grandmother’s focus on the children’s education and extra-curricular activities over the past many years. She has demonstrated consistently, over the long term, her commitment to providing them with assistance with homework and projects, her commitment to transporting them to school related functions and extra-curricular activities, her financial commitment to ensuring they have the right furniture and computer with internet access. I have concluded that the paternal grandmother recognises the value of education to the future happiness of these children. In these circumstances I have decided she should be involved in decision-making about [Y]’s schooling and school related activities with the father. Given the mother’s open hostility towards the paternal grandmother, I have decided an order requiring consultation between the mother and the paternal grandmother would be unworkable.
Conclusion
I agree with Ms Bowen’s view[75] that the children’s exposure to years of chronic conflict between the adults in their lives, their exposure to unstable relationships and to drug and alcohol use by each parent has caused them significant harm. I agree with Ms Bowen that the father has shown limited insight, and the mother expressed no concern, about the impact of these issues on the children.
[75] June 2007 and February 2009 reports of Ms Bowen
I agree with Ms Bowen’s assessment that “there are risks to the children in both parents’ households”[76] and her assessment in June 2007 that “it is difficult to ascertain whether or not the children are at more substantial risk…in one or other parent’s household.”
[76] February 2009 report of Ms Bowen at paragraph 49
I accept Ms Bowen’s assessment that [X] worries about her mother, and presents as sad and depressed. I am however not asked to change her parenting arrangements. As Ms Bowen recommends, [X] will continue to live with the mother, and spend time with the father and paternal grandmother as she wishes. The paternal grandmother will be permitted to send [X] gifts and letters from time to time, so [X] knows she can re-establish her relationship with the paternal grandmother at any time.
I accept Ms Bowen’s assessment that [Y] feels anxious about both his parents, and presents as sad and emotionally withdrawn. In her view, for his psychological and intellectual development, [Y] needs to feel emotionally balanced and to be without anxiety. To the extent possible, [Y] needs to be protected from the emotional upheaval he experiences in each parent’s household.
The question is whether [Y]’s welfare is best served by sharing his time equally or substantially between his parents, or by sharing his weekends and holidays with his parents and spending all or most of the school weeks with the paternal grandmother.
Ms Lawson, counsel for the Independent Children’s Lawyer, agrees with Ms Bowen that the situation is far from ideal whatever orders the court makes. Counsel submits however, and I agree, that the court should take the course of minimum risk. This, in her submission, involves [Y] living with his paternal grandmother from Monday to Friday each week, and sharing his weekend time and holiday time with his parents equally. Counsel submits this arrangement allows for [Y] to spend meaningful time with each of his parents, while reducing his exposure to violence and conflict, alcohol and drug abuse and the deficient care each parent offers.
In particular, Ms Lawson lists difficulties in the father’s household with which I agree: the father uses cannabis daily and uses alcohol to excess; he has a habit of watching television and DVD’s and playing on the play station; has poor motivation for daily living; has poor literacy; does not know [Y]’s teacher’s name; is in a volatile, impulsive on/off relationship with Ms F with whom [Y] relates badly; provides disorganised and unkempt living conditions. Ms Lawson submits that the father seriously underplays the long history of hostility between him and the mother (which involved four apprehended violence orders), the serious conflict between him and the mother’s associates and the tension between him and the paternal grandmother. In the mother’s household, I also agree with counsel’s summary: the mother turns a blind eye to violence; she accepts violence and conflict as the norm; she associates with unsavoury people; she accepts illicit drug use as the norm; she shows an indifference to the impact of violence and drug abuse on the children; she provides an inadequate environment for the children to focus on school work.
The father’s counsel submits that [Y] moving between 3 households could only work if there was cooperation and a sharing of information between the 3 adults involved, which does not exist in this case. Counsel submits the present arrangements for [Y] should continue in which [Y] spends 8 nights with his father, and 6 nights with his mother each fortnight and half holidays with each parent. He highlights the fact that [Y] has lived primarily with his father for 9 years, has developed a good relationship with his mother, has regularly seen his paternal grandmother and done well at school. He says the court should accept that the father’s relationship with Ms F has finished. Counsel predicts that if ordered to spend weeknights with his grandmother, it is likely [Y] will feel so disloyal to his parents that he will return to his father. Counsel submits the present arrangements are working well.
The mother’s counsel submits that [Y]’s wish to spend alternate weeks with each parent should be respected. [Y] can then spend whatever time he wishes with his paternal grandmother. Counsel submits that the paternal grandmother has stood by while parenting orders were made between the parents in 2007 without intervening, so it is difficult to understand how events since then could justify the significant change the paternal grandmother now seeks.
I do not accept the submissions of either parent’s counsel, both of whom I find seriously over simplified or ignored the evidence in this very complex case. In particular, the evidence does not support the father’s counsel’s view that the present arrangements are working well. Nor does the evidence support the mother’s counsel’s submission, that if [Y] spends week and week about with each parent, he could see his grandmother whenever he wished. It was plain during the hearing that the mother loathes the paternal grandmother and will not support a relationship between her and either [X] or [Y].
The most significant factor in this case concerns the need to protect [Y] from emotional harm and abuse. I find [Y] (indeed both children) is unprotected in each parent’s household. On the other hand, I find the paternal grandmother can offer [Y] a safety house, free from conflict and neglect, and attuned to his educational and psychological needs. As Ms Bowen says, [Y]’s entry to high school is fundamental. If he has the same difficulties [X] has faced, he will become disruptive with teachers and have problems in his peer relationships. Once he falls behind, there will be long term implications. Years 6, 7 and 8 are vital. I agree with Ms Bowen that it is likely that the grandmother’s involvement in [Y]’s school work has helped him significantly, and that this relationship needs to be respected. I am satisfied that if [Y] were to spend more time with his mother, as she proposes, [Y]’s relationship with the paternal grandmother would be under threat.
I agree with Ms Bowen and counsel for the Independent Children’s Lawyer that [Y] moving between three households will not be easy for him in a practical, or in an emotional sense, although [Y] is certainly accustomed to spending time in 3 households. In particular, [Y] is likely to find transitions from his paternal grandmother to his mother particularly difficult, given the mother’s hostile attitude to the paternal grandmother. I find it likely the father’s relationship with the paternal grandmother will improve when these proceedings have been finalised. [Y]’s adjustment to living with his grandmother will be assisted if each parent supports the arrangement. I find there is a better foundation for the father making this adjustment, than the mother. Certainly, if both react negatively it will be harder for [Y]. However, as Ms Bowen says, conflict for [Y] will unfortunately be ever-present in the background.
In D & F[77] in a case involving competing live with applications between the paternal grandmother and the natural father, the Full Court, quoting the Trial Judge, said[78]:
... the advantages to the child of living with a parent must be balanced against the advantages of living with a non-parent who is in a better position to provide particular care in relation to existing and possible future emotional problems.
[77] [2001] FamCA 382 (unreported)
[78] At paragraph 2
Ms Bowen says[79]:
[Y]’s entry to high school will be a crucial time in his long term development. If he begins high school in a situation of instability or is dealing with household conflicts he could quickly fall behind academically and lose confidence and interest. If he is experiencing difficulties at home he may be emotionally upset and this could undermine the formation of good bonds with peers and affect the long term formation of good social relationships.
[79] February 2009 report of Ms Bowen at paragraph 56
I have decided [Y] will spend time in school weeks with his paternal grandmother every week. The grandmother lives within walking distance of the father’s home, so [Y] will be able to walk or ride his bike to see his father any time. I find it likely the father will continue to take an interest in [Y]’s sport and that the paternal grandmother will encourage his involvement. I do not anticipate [Y] being free to drop into his mother’s home during the time he is with his grandmother, although this would be ideal.
Given the strain in all the adult relationships, and likelihood of conflict erupting at changeovers, all changeovers will occur at school, except during holidays when changeovers back to the paternal grandmother will occur at the father’s home.
I will order [Y] to attend [E] School if he is accepted, and [G] School otherwise, to avoid any possibility of disagreement over his schooling in Year 7. [Y] says he wants to attend [E] School because of his love of sport and their sporting programme, and he has already advanced in the selection process.
I have given careful consideration to the question of which nights [Y] should spend with his paternal grandmother. I find it necessary for changeovers during the term to occur at school, which eliminates changeover on Sundays. I find merit in Ms Bowen’s recommendation, supported by the Independent Children’s Lawyer, that Monday afternoon to Friday morning makes the arrangement clear and simple for everyone involved, and gives [Y] the chance to focus on school work and sporting commitments during the week, and peers, siblings and each parent on weekends. However, I am concerned that
4 consecutive nights in every week might be too much time away from his parents, given the amount of time he has been spending with each of them, and too onerous for him at only 11 years of age. I am concerned to make the arrangements sustainable for [Y]. I have therefore decided to order that he live with his paternal grandmother from Monday after school until Thursday before school each week. This will be extended to Friday in any week he has an examination on a Friday.
I concur with Ms Bowen’s view that these orders should continue indefinitely. I share her confidence that the paternal grandmother will be open to change should change be necessary in the years ahead.
I accept Ms Bowen’s recommendation that [Y] may benefit from a period of confidential counselling while he adjusts to the changes in his arrangements, and will order accordingly.
I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X] and [Y].
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 29 April 2009
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