Slipper and Calder

[2016] FamCA 536

FAMILY COURT OF AUSTRALIA

SLIPPER & CALDER [2016] FamCA 536

FAMILY LAW – CHILDREN

APPLICANT: Ms Slipper

RESPONDENT: Mr Calder

INDEPENDENT CHILDREN’S LAWYER: Mr Samuel

FILE NUMBER: SYC 5130 of 2012

DATE DELIVERED: 23 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by mother

SOLICITOR FOR THE RESPONDENT: Milford Haseldine & Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. All previous parenting orders in respect to the child B born … 2009 (hereinafter referred to as “the child”) be discharged.

2. The father have sole parental responsibility in respect to all day to day and long term decisions relating to the child.

3. The child live with the father.

4. IT IS NOTED THAT at the current time the father continues to reside with the paternal grandmother namely Ms Calder and her partner. The father has some intention to eventually move out of their home into his own independent accommodation but to stay close to his mother’s residence. That will mean that his mother will remain available to assist him in the child’s care from time to time and be available to facilitate any time the child spends with the mother.

5. The mother spend time with the child by agreement between the father and the paternal grandmother and that the father take all reasonable steps to encourage and foster the relationship between the child and the mother.

6. The child’s time with his mother will be organised on the following basis:

   6.1.The mother make a telephone call to the paternal grandmother asking to be able to see the child at her home within the next 24 hours;

   6.2.During that telephone call, the paternal grandmother is to indicate to the mother whether or not prior arrangements and any other circumstances mean that she is unable to accommodate her request. Otherwise the paternal grandmother is to agree with the mother in relation to a time on the following day that the mother can attend her home to see the child;

   6.3.Unless the paternal grandmother otherwise agrees, the period of time the mother can spend at the paternal grandmother’s home is two (2) hours;

   6.4.The child’s time with his mother is to be supervised by the paternal grandmother during that period;

   6.5.The paternal grandmother has the right to refuse to allow the child to spend time with his mother or to otherwise terminate a particular occasion if she was to form the view that there was a reason that the mother’s behaviour would not be such that it would be in the child’s best interest to continue the event and in particular, if the paternal grandmother forms the view that the mother is under the influence of any substance.

7. The father is not to denigrate the mother within the presence or hearing of the child or permit any third party to do so.

8. The father is not to discuss the proceedings or any issues arising out of the proceedings with the child or permit any third party to do so.

9. Without admission, the father is not to consume any illegal drugs or substances whilst the child is in his care and control.

10. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5130 of 2012

Ms Slipper

Applicant

And

Mr Calder

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father applies for a final parenting order for sole parental responsibility in relation to the child, B, who is currently aged 7 years old. I have been attempting to case manage this matter since about July 2013. There have been a number of court events before me in which orders have been made to attempt to provide an opportunity to the mother to spend time with the child at defined times, particularly in the presence of the paternal grandmother. On a number of occasions the mother has not turned up to court events.

2. On 19 February 2015 I made a set of final orders which the Independent Children's Lawyer has asked me to incorporate into one set of orders today. Those orders importantly, made a final order placing the child with his father but noting that the father was living in the home of the paternal grandmother and her partner, Mr C, and on the evidence I had, the father indicated he had no plans to move, although he may now have something in mind about moving at some point in the future, according to his latest affidavit.

3. The mother knew the matter was on today. She was personally present in court when the matter was adjourned to today from 4 December 2015. I expressed to her on that day the desirability of giving as much notice as possible to the paternal grandmother if she was unable to attend and spend time with the child on any particular occasion. The mother on 4 December 2015 was represented by Ms Seric from Bankstown Legal Aid. Ms Seric filed a notice of ceasing to act on 6 May 2016. In that notice to the mother she reminded the mother about today’s date. The lawyer for the father today has read out a text message that the mother sent the paternal grandmother on 10 June 2016 making it clear that she understood the matter was on today and indicating in that text that she would consent to any term or condition as long as “the door was left open to her” for the child to be able to spend some time with her. The mother has been called three times outside the court room today and has not appeared. I intend to hear the matter on an undefended basis.

4. Currently the child lives with the father, the paternal grandmother and her partner Mr C. 

5. The parties were in an “on and off” relationship from approximately 2009, separated in mid-2009 and resumed their relationship briefly in 2011. The relationship ended on a final basis in April 2011.

6. The mother was incarcerated between July 2012 and 2 February 2013 for a criminal offence.

7. The father seeks sole parental responsibility and that the child live with him. The Independent Children's Lawyer supports that application and also an application in the terms discussed with the paternal grandmother as to the circumstances in which she would agree to facilitating the child’s time with his mother.

8. Other orders sought by the Independent Children’s lawyer are that the mother spend time with the child by agreement between the parties, and that the father take all reasonable steps to encourage and foster the relationship between the child and mother, the father not denigrate the mother or discuss the proceedings with the child. The father should also not consume any illegal drugs or substances when the child is in his care and control.

9. I take into account all the affidavits that have been filed in the proceedings to date and the Child Responsive Program Memorandum prepared by Ms D in November 2012 and the family report prepared in November 2013.

10. The paternal grandmother was born in 1951.

11. The father was born in 1989.

12. The mother was born in 1991.

13. There is a history of violence that had been perpetrated by the father towards the paternal grandmother during his teenage years.

14. In 2006 there were was an apprehended domestic violence order in place protecting the paternal grandmother from her previous husband.

15. In 2008 there was an apprehended violence in place protecting the paternal grandmother and the father from Mr C.

16. The parties commenced and ended their relationship at the times I have previously indicated.

17. The child B (presently aged 7 years old) was born in 2009. The child lived initially with the mother. Until the child was 8 months he had almost daily contact with his father at the mother’s home. The parties lived in separate units but in the same block at this time. The mother states that the father subsequently spent alternative weekends with the child.

18. In November 2011 the mother was arrested and held for one night in custody. Charges were laid.

19. On 28 November 2011 an apprehended violence order was made against the mother for the protection of the father.

20. On 16 December 2011 the parties reached an interim agreement which provided for the child to live with the father and to spend time with the mother each weekend from 4.00 pm on Friday until 4.00 pm on Sunday. There was an agreement signed by the parties but there were no court orders.

21. On 3 February 2012 the mother pleaded guilty to criminal charges and was sentenced to 1 year 11 months. Her sentence was suspended.

22. On 25 May 2012 final orders were made by Justice Austin. The orders provided for the child to live with the mother and to spend alternative weekends with the father from 1.00 pm on Friday until 1.00 pm on Monday and during school holiday periods and special occasions.

23. The Director of Public Prosecutions appealed the mother’s sentence. The mother was incarcerated on 25 June 2012. The mother served eight months imprisonment.

24. On 8 October 2012 orders were made that provided for the child to live with the father and to spend time with the maternal great aunt each week from 9.00 am on Thursday until 5.00 pm on Friday. The maternal great aunt was restrained from taking the child to the mother’s correctional facility.

25. On 3 December 2012 orders were made permitting the maternal great aunt to take the child to visit the mother in jail.

26. On 8 December 2012 the child commenced attending a long day care centre two days per week.

27. In December 2012 an apprehended violence order was put into place protecting the father’s former girlfriend from the father.

28. On 2 February 2013 the mother was released from custody.

29. At that time in February 2013 the father allowed the child to be with the mother for four days and three nights per week, he says in order to facilitate the child’s reintroduction to the mother. The father then unilaterally decided to cut that back to two days and one night per week.

30. Ms E, the maternal great aunt, initially applied to the court for parenting orders in her favour, but thereafter ceased to be a party to the proceedings.

31. The mother had previously lived with the maternal great aunt and the maternal grandparents. In November 2013 the mother went to live with her parents. That which was a breach of the conditions of her parole. She was apprehended on 19 December 2013 and incarcerated until 25 January 2014, which was the end of her parole period.

32. In 2014 the child commenced attending school at F School.

33. In January 2014 orders were put in place for the child to spend time with the mother for two hours after school each Thursday, supervised by the paternal grandmother. This time was increased by consent in February 2014 to two hours on a Monday and Friday after school at the paternal grandmother’s home.

34. Throughout 2014 the mother failed to spend time with the child on all of the occasions she was scheduled to under the orders that were in place. It was noted on 5 September 2014 when the matter came before the court, that the mother was pregnant and the Department of Community Services were involved in relation to that unborn child.

35. On 5 September 2014 the orders were varied again so that the mother could spend one period of time per week with the child for two hours subject to various conditions. This variation was made in the context of evidence presented to the court that the mother had attended only seven out of the last 16 occasions.

36. On the last occasion the matter came before the court on 12 November 2014 the paternal grandmother indicated that the mother was living with her boyfriend at Suburb G. The mother was not in attendance. Orders in favour of the mother spending time with the child were discharged.

37. The mother has not filed any evidence with this court since 23 March 2015. In the affidavit filed on 23 March the mother recorded that as at March 2015 she was currently living back at her parents property and she said she had been doing that since approximately October 2014. She said her parents were both on the methadone program. She confirmed that she had given birth to H born in 2015 and said that H is currently in the care of foster carers and subject to children’s court proceedings in the Suburb I Children’s Court. I have got no updating information as to what the current position is in relation to that child.

38. The mother asserted at [59] of her affidavit that the last time she had used ice was in October 2014, which was less than six months prior to her swearing the affidavit.

39. In relation to recent history, the paternal grandmother has filed an affidavit on 20 June 2016.

40. The orders of 4 December 2015 envisaged that final orders would be put in place that would provide for a three month period where the child would see his mother at the home of the paternal grandmother on a midweek basis and the parties would keep a diary as to how well that was working and if it worked substantially well, then it was anticipated that there might be able to be a move to unsupervised time.

41. The paternal grandmother gives evidence that since that date, the child has only seen his mother on four occasions at the home of the paternal grandmother.

42. The paternal grandmother says that on 10 February 2016 she received a text message from the mother saying that she was going to see the child the next day. The mother didn’t turn up. A similar thing happened on 13 April 2016 where the mother said that she wanted to see the child at his school. The paternal grandmother was at his school at the appointed time but the mother did not turn up again. On 13 April the paternal grandmother sent a text to the mother asking where she was and got a reply saying that she would “call soon”.

43. The paternal grandmother says that since 4 December 2015, so far as she knows, the mother has had at least five different mobile telephone numbers.

44. The paternal grandmother gives some evidence about proceedings that are due for hearing or at least some event in the Suburb J Local Court in June 2016 between the mother and her partner, Mr K in regard to a domestic violence incident between the mother and her partner.

45. The current strategy adopted by the paternal grandmother is not to tell the child at all about a proposed arrangement for his mother to see him and given the history of this matter that is a very sensible approach to take. The paternal grandmother says that the child appears to accept that he sees his mother on occasions when she turns up at the house. On the evidence given by the paternal grandmother, I accept that the child has settled well in her house with his father and I also accept that the paternal grandmother has at all times adopted a commendable facilitative attitude to the child having time with his mother.

46. There are continuing concerns in relation to the mother’s use of drugs. The paternal grandmother indicates that in her opinion, the mother was clearly affected on 16 March 2016 at an Austag game. The paternal grandmother says the mother on that occasion exhibited behaviour involving significant unprompted laughter which was disturbing to other adults who were present at the Austag game. Such behaviour drew comment from people who were around the mother at the time. The paternal grandmother says that the mother was dressed in her pyjamas and slippers and says on approaching her she noticed that her eyes were very glazed. She asked the mother what she was taking and the mother replied “I swear I’m not on ice again, just on pot”.

47. The paternal grandmother also has a very facilitative attitude to the child having regular contact with his maternal grandmother, Ms L and it appears that about every three weeks Ms L takes the child to her home and on those occasions the child has the ability to see a number of his cousins who live near Ms L.

48. The father’s latest affidavit indicates that he is fully financially responsible for the child and he continues to reside at his mother’s home. He would like to move out of the home when he is financially independent but if he did so he would continue to live in the same area. He would not intend the child to change schools. He reports on the child’s progress which is satisfactory. He does not have any direct contact with the mother. He has no objection to orders being made that would allow the child to spend time with his mother on the proposals referred to earlier in these Reasons, that is, supervised by his mother at her home on the conditions that were discussed during submissions.

49. Section 60CA Family Law Act 1975 (Cth) (“the Act”) provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

50. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

51. The child has a meaningful and positive relationship with the father. The relationship with his paternal grandmother is very important. She is a stabilising influence. The child has a good relationship with other extended family members including members of the maternal extended family.

1. I have mentioned above the history of previous apprehended violence orders.

2. The family consultant notes that there are a number of Police reports about verbal violence involving both the mother and father. She also records that the child has been present at many of the disputes.

3. There is clearly a concern as to the possible psychological impact on the child of his mother coming in and out of his life in the way that she has.

1. When the child was a little younger, he told the family consultant that he missed his mother a lot and thought about his mother a lot. I note that this was in October 2013 when he was seeing the mother frequently. The child has not been seeing his mother now at that type of regularity. He has been seeing his mother hardly at all.

2. The family consultant recorded in October 2013 that the child was aware of the dislike the parents have for one another and he demonstrated that in his play.

1. The father told the family consultant he had some reluctance for the child to have contact with the maternal grandparents but it seems that that may have now dissipated given what I have earlier said about the paternal grandmother’s association with Ms L. 

1. The mother has failed to spend regular time with the child now for some time. I have already referred to what I said to the mother on 4 December 2015 which is noted at paragraph 5 of the orders and notations made on that day.

2. The mother has again failed to turn up today.

3. According to the paternal grandmother and Mr C, the father has matured and developed as a parent to the child. He has developed a warm relationship with the child. In practical terms, the father has been able to provide for the child by relying heavily on the assistance of his mother. The paternal grandmother has been responsible for much of the daily care, preparing meals and making travel arrangements but the father has now had an order in his favour that the child live with him since 19 February 2015 and I infer that he has been involved significantly in the child’s care since that time.

1. During the family interviews the father did present as caring of the child. He indicated to the family consultant at that time that his mother was primarily responsible for organising the arrangements for the child to see his mother and there is nothing that has changed in that regard.

2. I am satisfied that the father and the maternal grandmother have been providing for the child’s physical, emotional and intellectual needs and making all decisions including the decision as to where he would start school. In all the circumstances it is in the child’s best interests that an order be made that the father have sole parental responsibility for making decisions about all major long term issues.

1. Because of the existence of family violence in this case, there is no presumption of equal shared parental responsibility. Even if there was, because of the mother’s disengagement in these proceedings, it would not be in the child’s best interests to make an order for equal shared parental responsibility.

2. In terms of the orders sought in relation to the child having an opportunity to continue to have some engagement with his mother, the order proposed by the father and the Independent Children's Lawyer is in the child’s best interests.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 23 June 2016

Associate: 

Date:  30.6.16