Souter & Meagher & Anor
[2007] FamCA 18
•22 January 2007
FAMILY COURT OF AUSTRALIA
| SOUTER & MEAGHER & ANOR | [2007] FamCA 18 |
| FAMILY LAW - CHILDREN – With whom a child lives – Best interests of child – 6 year old child living with maternal great grandmother since he was 2½ – Mother had a history of criminal activity and illicit drug use – The separated parents have now each re-partnered and are in stable relationships – Mother has a child with her new partner – Evidence of child psychologist that it is time for child to return to live with one or other of his parents, and that there would be no significant ill-effects for the child in no longer living with his great grandparents – Orders that child live with the mother and spend time with the father and the great grandparents. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Souter |
| FIRST NAMED RESPONDENT: | Ms Thomson |
| SECOND NAMED RESPONDENT: | Mr Meagher |
| INDEPENDENT CHILDREN’S LAWYER: | ALEXANDER MCKAY MCCORMACK |
| FILE NUMBER: | DGF | 939 | of | 2005 |
| DATE DELIVERED: | 22 JANUARY 2007 |
| PLACE DELIVERED: | MELBOURNE |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATES: | 2, 3, 4, 5 & 15 JANUARY 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR MARCHETTI |
| SOLICITOR FOR THE APPLICANT: | ROBIN HARRISON & ASSOC |
| COUNSEL FOR THE FIRST NAMED RESPONDENT: | MR HOULT |
| SOLICITOR FOR THE FIRST NAMED RESPONDENT | O’HALLORAN DAVIS |
| COUNSEL FOR THE SECOND NAMED RESPONDENT: | MR BREWER |
| SOLICITOR FOR THE SECOND NAMED RESPONDENT: | LITTLETON HACKFORD & D’ALESSANDRO |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | MR MCGOWAN |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | MCCORMACK & CO |
Orders
(1)That the father and the mother have equal shared parenting responsibility in respect of major long term decisions affecting the child R born in October 2000.
(2)That each of the father and the mother be responsible for making day to day decisions concerning the welfare of the child whilst he is in their respective care.
(3)That the child live with the mother as and from 4.00pm on Sunday 28 January 2007.
(4)That during Term 1 of the 2007 school year, the child spend time with :
(a)the father on each alternate weekend from 6.00pm Friday to 7.00pm on Sunday on the weekends commencing Friday 2 February 2007, 16 February 2007, 2 March 2007 and 16 March 2007; and
(b)the maternal great grandparents from 6.00pm on Friday to 4.00pm on Sunday for the weekends commencing 23 February 2007 and 23 March 2007.
(5)That for the purposes of paragraph (4)(a) hereof the mother deliver the child to the father at the commencement of the period and the father return the child to the mother at the conclusion of that period.
(6)That for the purposes of paragraph (4)(b) of these orders, the mother deliver the child to the maternal great grandparents at the commencement of the period and collect the child from the maternal great grandparents at the conclusion of the period.
(7)That during Term 2 of the 2007 school year, the child spend time with:
(a)the father on each alternate weekend from 8.00pm on the Friday until 7.00pm on the Sunday commencing 20 April 2007, 4 May 2007, 18 May 2007, 1 June 2007 and 15 June 2007; and
(b)the maternal great grandparents from 11.00am until 4.00pm on Sundays 29 April 2007, 27 May 2007 and 24 June 2007.
(8)That for the purposes of paragraph (7)(a) hereof, the mother deliver the child to the father at the commencement of the period and the father return the child to the mother at the conclusion of the period.
(9)That for the purposes of paragraph (7)(b) hereof, the mother deliver the child to the great grandparents at the commencement of the period and collect the child from the great grandparents at the conclusion of the period.
(10)That during Term 3 of the 2007 school year, the child spend time with:
(a)the father each alternate weekend from 8.00pm on Friday to 7.00pm on Sunday commencing 27 July 2007; and
(b)the maternal great grandparents on each alternate Friday from 6.00pm to 8.00pm commencing 27 July 2007.
(11)That for the purposes of paragraph (10)(b) hereof, the mother deliver the child to the great grandparents at the commencement of the period, the father collect the child from the great grandparents at the commencement of his period of time and the father return the child to the mother at the conclusion of the period referred to in paragraph (10)(a) hereof.
(12)That commencing with Term 1 in 2008 and thereafter, the child spend time with the father on each alternate weekend from 7.00pm on the Friday until 7.00pm on the following Sunday commencing with the first Friday in the school year.
(13)For the purposes of paragraph (12) hereof, the mother deliver the child to the father at the commencement of the period and the father return the child to the mother at the conclusion of the period.
(14)That during school holidays at the end of Term 1 in 2007, the child spend a period of five days with (and in this sequence):
(a)the great grandparents;
(b)the father; and
(c)the mother
with the first day commencing to run at 6.00pm on the last day of school and concluding at 6.00pm five days later.
(15)That for the purposes of paragraph (14) hereof the mother deliver the child to the great grandparents at the commencement of the term holidays and the father collect the child from the great grandparents to commence his five days and the father return the child to the mother at the conclusion of his five day period.
(16)That during school holidays at the end of Terms 2 and 3 of 2007, the child spend time:
(a)with the father for the first week of the holidays commencing at 7.00pm on the last day of school in each term and concluding at 7.00pm on the Sunday in the middle of the holidays; and
(b)with the great grandparents from 7.00pm on the Sunday in the middle of the holidays until 4.00pm on the following Wednesday.
(17)That for the purposes of paragraph (16) the mother deliver the child to the father at the commencement of the term holidays and the father deliver the child to the great grandparents at 7.00pm on the Sunday in the middle of the term holidays and the mother collect the child from the great grandparents at the conclusion of their period of time with the child.
(18)That for the summer holidays in 2007-2008, the child spend:
(a)the first two weeks, including Christmas Day with the father;
(b)the third week with the great grandparents; and
(c)the balance of the holidays with the mother
and for the purposes of this order, the mother deliver the child to the father at the commencement of the period, the father deliver the child to the great grandparents at the conclusion of his period of time and the mother collect the child from the great grandparents at the conclusion of their period of time.
(19)For all school term holidays commencing with the holidays at the end of Term 1 in 2008, the child spend time with:
(a)the father from 7.00pm on the last day of school until 7.00pm on the Friday at the end of the first week of the holidays; and
(b)the great grandparents from 7.00pm on the Friday at the end of the first week of the holidays until 7.00pm on the Sunday, two days later,
and for the purposes of this order, the mother deliver the child to the father at the commencement of the period and the father deliver the child to the great grandparents at the conclusion of his period of time and the mother collect the child from the great grandparents at the conclusion of their period of time.
(20)For the summer holidays in 2009-2010 and every second year thereafter, the child spend time with:
(a)the great grandparents for six days commencing on 2 January; and
(b)the father for 15 days commencing on 14 January.
(21)For the summer holidays in 2010-2011 and every second year thereafter, the child spend time with:
(a)the father from 7.00pm on the last day of school for 15 days; and
(b)the great grandparents for six days commencing at 7.00pm on the last day that the father’s period of time with the child concludes.
(22)That for the purposes of summer holidays from 2009 onwards, the travel arrangements be by agreement and in default of agreement, on the same basis as the pattern set out generally in these orders.
(23)Paragraphs 4, 7, 10 and 12 hereof are suspended during all school holiday period.
(24)That for the purposes of all calculations under these orders, school holidays shall be deemed to commence at the close of school on the last day that the child attends school in each term and conclude at 6.00pm on the day prior to the resumption of school for the following term.
(25)That if for the purposes of Mothers Day and Fathers Day in any year, a parent desires to spend the relevant day with the child and it is not their weekend with the child, the parties do all things to alter these ordered arrangements by substituting that weekend with the party who would otherwise be spending time with the child on the relevant day with a weekend of their own pursuant to these orders.
(26)That until the Term 1 in 2007, the mother facilitate the child telephoning:
(a)the great grandparents each Tuesday and Thursday at 6.00pm and at such other times as the child may wish; and
(b)the father each Wednesday at 6.00pm,
and that such telephone calls be at the expense of the mother and for a duration of up to 15 minutes.
(27)That each parent keep the other informed of and immediately advise the other of, any:
(a)change of residential address;
(b)change of telephone number;
(c)illness or injury of the child;
(d)counselling advice received that may affect the child;
(e)medical or dental procedure recommended to be undertaken by the child; and
(f)concern expressed by any teacher about the child’s welfare.
(28)That for the purposes of these orders, the mother and the father may each deliver and collect the child with the assistance of a nominated person providing that such person is known to the child and to the other parent.
(29)That the mother keep the great grandparents informed of any of the matters referred to in paragraph (27) hereof.
(30)The independent children’s lawyer is discharged from the proceedings.
AND IT IS FURTHER ORDERED BY CONSENT OF THE PARTIES:
(31)That within three months, the mother dispose of the two dogs presently in her possession or under her control.
(32)That the mother be and is hereby restrained by injunction, from bringing or allowing the child into contact with the mother’s dogs unless the dogs are under physical restraint by lead and controlled by a responsible adult or otherwise housed in a secure run separating the child from the dogs.
AND IT IS FURTHER ORDERED BY THE COURT:
(33)That all extant proceedings are otherwise dismissed and removed from the list of cases awaiting a hearing.
IT IS CERTIFIED
(34)That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage a lawyer as counsel.
(35)That pursuant to s 65DA(2) and s 62B, 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.
AND THE COURT NOTES that notwithstanding the orders set out above, it is the intention of the parents to keep the maternal great grandparents informed of any significant events affecting the child.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 939 OF 2005
| Ms Souter |
Applicant
And
| Ms Thomson |
First named Respondent
And
| Mr Meagher |
Second named Respondent
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
R was born in October 2000. He is currently six years of age.
In these proceedings, three parties seek parenting orders in their favour. They are R’s mother, his father, and his maternal great grandmother.
Since early 2003, R has lived with his great grandmother. The mother and the father, each for their own reasons, wish to change that situation.
The circumstances under which R came to live with his great grandmother were perhaps not unusual but certainly tragic. The mother says that things have changed since then. The great grandmother and the father are not convinced.
Background
When the mother was twelve years of age, her own mother commenced a journey to Queensland to get away from a domestic partnership in which she was living. She drove towards W when a tyre on her motor car blew out causing the car to overturn. The mother in these proceedings, then aged 12, somehow managed to scramble out of the car before it exploded, killing her own mother. Thereafter between the ages of 12 and 18, the mother lived unsuccessfully with her father in E for about 12 to 15 months, in Melbourne with her aunt and eventually back in E with another aunt in circumstances that were described by the great grandmother as “disastrous”. The mother left school during year 10. Prior to the mother’s 18th birthday, she obtained rental accommodation and shortly thereafter, moved into a house that she bought using money received as compensation for her mother’s motor vehicle accident. To use the great grandmother’s expression, it was a “tough childhood”.
In around 1999 the mother and the father commenced living together in the house bought with the compensation money. The father’s brother lived there as well. In a short time, it seems that the property was at best “let go” and at worst, severely damaged but ultimately sold and after payment of the mother’s personal debts, she received $52,000. During this period of time R was born and around seven or so months later, the mother and the father separated.
The years 2002 and 2003 were turbulent years in which the mother had to deal with the intervention of the Department of Human Services in relation to concerns over her ability to parent R. She began to use the drugs Ecstasy and Speed and, quite separately, was involved in criminal activities which ultimately ended in her facing the local court where she was released on a good behaviour bond on charges of burglary and theft.
From some time in 2002, R began spending significant time with his great grandparents during both weekdays and weekends. When the Department of Human Services intervened, their concerns were apparently about the time that R was spending with his mother not his great grandmother. By early 2003, R was living with his great grandmother on a fulltime basis, the circumstances of which, I shall return to in a moment. In December 2003, final orders were made in the E Magistrates Court giving residence of R to the great grandmother. The mother’s time to spend with R was to be by agreement. These orders were recorded as being by consent of the mother and it appears that the father knew little, if anything, about them being made.
After the orders were made, the mother initially spent two days each week with R, no doubt under the watchful eye of the great grandmother. For his part, after their separation, the father who was not named on the birth certificate of R, spent little time with R. The father was then living with his own mother. It was only when the paternity issue was resolved confirming that he was indeed the father of R that in 2005, the great grandparents began to allow overnight time with R at the home of the paternal grandmother. Over time, the father’s time with R grew to every second weekend.
In 2004 the mother moved to Melbourne and began travelling to the country to see R each Tuesday and Thursday and some weekends. There has been a consistent visitation regime by the mother since then.
In summary therefore, R has been with his great grandmother on a full time basis since he was about 2½ years of age. The mother and father have spent various amounts of time with R.
The mother says that the terrible history to which I have referred above is now behind her and that she is a responsible and caring parent wanting to take over the full time parenting responsibilities for R.
The father has clearly moved on his life and also wants the responsibility of caring for R on a full time basis.
For her part, the great grandmother says that she is not certain about the mother’s commitment notwithstanding improvements that have been made in the relationship between the mother and R. In respect of the father, according to the great grandmother, R at times does not want to go to the home of the father for reasons she is unable to explain. Overall, the great grandmother says it is not time for a change.
The proceedings
The mother commenced the proceedings by filing an application on 31 August 2005 seeking parenting orders under which R would live with her. On 16 September 2005, the father responded seeking that R continue to live with the great grandmother. Two weeks later and after the hearing to which I shall refer below, the father amended his application to seek that R live with him. The great grandmother’s response to the application of the mother was simply to seek a dismissal of the proceedings and a continuation of the existing E orders.
On 19 September 2005 sitting at Dandenong, Young J made orders arising out of the contested interim hearing as follows:
1.THAT these proceedings be adjourned to the Judicial Duty List at Dandenong on 9 November 2005 at 10.00 a.m.
2.THAT pending the adjourned date the child R born in October 2000 have contact with the mother as follows:
a.each Tuesday from 10.00 a.m. until 4.00 p.m. save on those dates when R is to attend for appointments with the Family Report writer;
b.from 3.30 p.m. on Friday 14 October 2005 until 12.00 noon on Sunday 16 October 2005;
c.from 3.30 p.m. on Wednesday 19 October 2005 until 4.30 p.m. the following day;
d.from 3.30 p.m. on Friday 28 October 2005 until 4.00 p.m. the following Sunday;
e.by telephone on R’s birthday for a period of 15 minutes such call to be initiated by the mother at 5.00 p.m.
3.THAT until further Order the father have contact with the child as follows:
a.from 6.30 p.m. Friday until 5.00 p.m. Sunday on the weekends commencing:
i)23 September 2005;
ii)7 October 2005;
(iii)21 October 2005; and
(iv)4 November 2005.
b. as may otherwise be agreed.
On 9 November 2005 an order was made for the appointment of the now Independent Children’s Lawyer.
When the matter returned to court on 30 November 2005, the parties had the benefit of a family report from psychologist Ms T and between themselves, agreed on the following orders which have been maintained until now.
1.That until further order the child R born in October 2000 have contact with the Mother:
(a)On a three-week rotating basis during the Victorian school term from 3:30pm on Friday until 4:00pm on the following Sunday commencing 16 December 2005 and such contact shall resume at the same intervals as if the holidays commencing 2006 provided no interruption.
(b)In 2005 for the purposes of Christmas celebrations, from 12:00 noon on Boxing Day until 3:00pm on 27 December.
(c)Over the 2005/2006 long summer holidays for two periods being from 3:00pm on 27 December 2005 until 3:00pm on 2 January 2006 and from 14 January 2006 at 3:00pm until 3:00pm on 20 January 2006.
(d)During each of the Term 1, 2 and 3 school holidays for a period of five nights by agreement between the parties and in default, from the conclusion of school on the last day of term until 3:30pm five days later.
(e)On Mother's Day from 10:00am until 5:00pm, and in the event that Father's Day falls on the Mother's contact period, then the Mother's contact period be suspended from 10:00am until 5:00pm that day.
(f)By telephone each Wednesday between 6:00pm and 6:30pm, such call to be initiated by the Mother.
(g)On Tuesday 29 November 2005 and 13 December 2005 from 10:00am until 4:00pm.
(h)At such further times as may be mutually agreed between the Mother and the maternal great grandparents.
2.That until further order the child R bom in October 2000 have contact with the Father:
(a)On a three-week rotating basis during the Victorian school term from 3:30pm on Friday until 4:00pm on Sunday commencing 2 December 2005 and such contact shall resume at the same intervals as if the holidays provided no interruption.
(b)In 2005 for the purposes of Christmas celebrations from 12:00 noon on 24 December until 3:00pm 25 December.
(c)Over the 2005/2006 long summer holidays for two periods being from 3:00pm on 8 January 2006 until 3:00pm on 14 January 2006 and from 3:00pm 20 January 2006 until 3:00pm on 26 January 2006.
(d)During each of the Term 1, 2 and 3 school holidays for a period of five nights, actual times to be agreed but in default then for five nights concluding 24 hours prior to the conclusion of the holiday period.
(e)On Father's Day from 10:00am until 5:00pm, and in the event that Mother’s Day falls on the Father’s contact period then the Father’s contact period be suspended from 10:00am until 5:00pm that day.
(f)By telephone each Thursday between 6:00pm and 6:30pm in default of other periods by agreement.
(g)At such further times as may be mutually agreed between the Father and the maternal great grandparents.
3A.That the Maternal Great Grandmother authorise any school attended by the child to provide the parents with all information, newsletters and photograph opportunities and the like, at the expense of each of the parents and the parents be entitled to attend any and all activities at the school to which parents are usually invited or encouraged to attend.
3.That the Mother shall (without admission of the need for same) undergo supervised drug screening within 24 hours of a request for same by the Child Representative and shall forward the results of same to the Child Representative within 72 hours of receipt of results.
4.That each of the parties by themselves, their servants and agents be and is hereby restrained by injunction from:
(a)Discussing these proceedings in the presence or hearing of the child.
(b)Denigrating any other party or family member thereof in the presence or hearing of the child.
5.That the maternal great grandparents and the Mother shall undertake mediation/counselling (as directed in Ms T’s Family Report of 18 November 2005) at a venue to be nominated by the Child Representative and both parties shall comply with the lawful directions of the Child Representative with respect to attendance at same on the condition that any costs are agreed between the parties.
6.That each party shall keep the other parties informed of their residential address and shall provide 21 days notice of any proposed change of address.
The respective positions at trial
The mother sought orders that she and the father share parental responsibility for R but that R live with her and that for Terms 1 and 2 of 2007, R continue the rotation under which he would spend one weekend with his father, one weekend with the great grandmother and the third weekend at home with the mother. She sought that for the period thereafter, R spend every alternate weekend with his father and effectively one weekend in four with the great grandmother. In respect of school holiday periods, she sought that all holidays be divided three ways so that each of the parties had an equal time with R.
Although the mother’s application sought the sharing of parental responsibility with the father, she said that she would agree to consult with the great grandmother in respect of parenting issues relating to R into the future.
The father’s position was that he and the mother should share parental responsibility but that R live with him. He proposed that R spend each alternate weekend from 5.00pm Friday to 5.00pm Sunday with the mother and that the great grandmother spend time with R by agreement with him.
The great grandmother’s position was that R continue to live with her and that the current three week cycle of weekends should continue.
The evidence
The mother
The mother is 24 years of age and now lives in the Melbourne suburb of S. She is engaged in home duties.
For just over two years now she has been involved in a relationship with Mr P. They have a daughter J who was born in June 2006.
The mother and Mr P do not live together other than on a part time basis. She lives in rented accommodation provided by a state authority and is otherwise supported by Centrelink and payments that she receives from Mr P. She and Mr P live about ten minutes apart, or up to 45 minutes to an hour apart depending on peak hour traffic. Mr P lives most of the time with his parents and works full time as an excavator operator.
Although the mother and Mr P are in a committed relationship, there is a child support assessment between them in respect of J for $435.25 per month. The mother and Mr P have an arrangement apparently acceptable to the Child Support Agency which is not in writing, to the effect that Mr P pays the mother $50 per week in cash and provides other benefits such as her car registration and insurance, her landline telephone and mobile telephone accounts each month. He helps her with food expenses from time to time.
The mother said that she speaks to Mr P each day and that they are intending to buy a house in nearby B. This house is a goal for which Mr P has been saving his income to enable him to raise a deposit. Part of the goal would be for Mr P to obtain the first home buyers grant for which the mother would not be eligible because she has already had a house of her own. Mr P however, has not had that advantage.
The mother said that one of the other benefits that she received from Mr P was that he provided her with a motor car. However, to do so, he had to borrow the money and the repayment of that loan was one of the reasons why the saving for the deposit for the home had not advanced much further than it currently has.
It was put strongly on behalf of the father to the mother in cross examination that what the mother and Mr P were doing was “cheating the system”. Even if that was relevant to these proceedings, and I do not think it is, I am satisfied that the relevant revenue authorities are well aware of what the mother and Mr P are doing and that there is nothing sinister in their activities. More importantly, there did not seem to be any serious challenge by the father to the depth of the committed relationship between Mr P and the mother. In so far as they have a stated goal of obtaining a house in B within six months, I am satisfied on the evidence that they are well intentioned and that there is every likelihood their goal will be achieved. If they cannot make that goal, they say they will live together in rented premises. I accept that.
In cross examination, it was put to the mother that the B goal was not serious because she and Mr P had not even looked at houses at this stage. The mother’s response was that they did not want to undertake that exercise until they knew they were in a financial position to acquire a property. I am quite satisfied having regard to what I have just said in respect to their intentions that that was a truthful response.
The relationship with Mr P and the proposed house purchase are important in this case because the mother asserts that she has abandoned all criminal and wayward activities and can and will give R a stable lifestyle.
The mother readily conceded all of the tragic as well as criminal background. When she was challenged by the father’s counsel about the fact that she had “blown” all of the money from the sale of the house and not spent it on R, she readily agreed and in trying to explain what she was then going through, said and I accept, “I blew it because I would rather have had my mother than the money”. When cross examined by counsel for the Independent Children’s Lawyer about why she stopped taking drugs over two years ago, she said:
Because I wanted to sort my life out, get back on track and get the respect back I had years ago.
It was put to the mother by counsel for the father that one of the conditions of her good behaviour bond was that she refrain from associating with named people who were involved with her in criminal activities and that she had failed to comply with that. It was even put to her that she was with these men when she attended at some point when she came upon the father. Her response of denial was emphatic. As with a number of matters to which I shall now turn, I have concerns about the basis upon which these issues were put on behalf of the father.
In the context of cross examination about the mother’s care of R, it was also put to the mother by counsel for the father that her current house did not have a front fence. The mother responded that it did.
It was put to the mother that she was involved in “street racing” and although she said she had watched it, she denied having participated.
It was put to the mother that she had been involved in a transaction with a motor car that turned out to be stolen. She denied that.
In respect of each of these last three matters, it transpired in cross-examination of the father by Counsel for the Independent Children’s Lawyer that the instructions to the father’s counsel had either been wrong, inadequate or that his counsel had misunderstood.
It was also put to the mother that she had “propped” R in front of an “X Box” and I have presumed that I was to infer that this was some form of unnecessary way of entertaining the child so that the mother did not have to look after him whilst he was in her care. The mother denied it. Nothing of this issue was put in evidence by the father and there was no cross-examination of any other witness who could have shed any light on it. I have therefore accepted the mother’s evidence in relation to it.
A criticism was made of the mother by counsel for the father that she had taunted the father that he was not R’s father. I found this assertion difficult to understand because on the evidence that I was given, the testing was done at a time when R was already living at the great grandmother’s home and subsequent to the making of the orders in December 2003 in the E Magistrates Court. The great grandmother said that when R was placed in her care, she felt she could not encourage the father’s relationship because she did not know if in fact he was R’s father. She then added that it was not the mother who said that the father was not R’s father, but that other people had said it. She added that it took the father a while to cooperate in respect of the testing.
This sort of dispute was of concern to me because the mother in her evidence in chief said that she was now able to discuss matters with the father.
To the extent that all of these last five substantive matters were put to test the credit of the mother, they were at odds with paragraph 16 of the father’s affidavit. He said that although he had reservations about whether the mother could cope with “stresses” in the future and may revert to illicit drug use and a transient lifestyle, his relationship with her had improved dramatically over recent times and that she had “settled down”.
To the extent that those same five matters were put to show some incompetence or irresponsibility on the mother’s part as a parent, I do not so find.
A significant period of time in this hearing was spent on an issue that did not appear in the affidavit material of any person and was not raised with the psychologist Ms T. That was the issue in relation to two dogs kept by the mother. One is a Staffy-cross Pit bull terrier and the other is a Bull Arab Ridgeback. The issue first arose when counsel for the father put to the mother that the father had raised concerns about her keeping the dogs and that he had asked her to get rid of them. The mother’s spontaneous answer in respect of both issues was that the father had not done so. This led to counsel for the father indicating that he was intending to seek injunctive orders about bringing the child into contact with the dogs. Thereafter, considerable time was spent by all parties on the issue of what restraints, if any, should be made. When the father gave evidence, because the issue of the dogs had not been raised in any written material, I gave leave to his counsel to lead evidence about his concerns. The father said that he had raised the issue of the dogs with the mother “on numerous” occasions at her house, over the telephone and with her personally but then added that he had not raised it with his legal team. It was conceded by all parties that it had not been raised with Ms T. When the subject was raised by the father’s counsel in cross-examination of the great grandmother, she said she did not like Pit Bull dogs but was usually “happy” with Staffies. She thought she had raised it with the mother but only to the extent that she may have said she should keep the dogs away from the children. Having regard to the fact that this issue did not appear in any affidavit material and nor was any correspondence tendered to me expressing concerns about the mother retaining the dogs, I cannot accept that the father did complain to the mother as he asserts. In relation to that issue, I prefer the evidence of the mother.
Ultimately, this issue became largely irrelevant at the end of the fourth day of the hearing when all parties agreed on a set of orders in relation to the dogs.
The mother’s evidence about the care of R by the great grandmother was unequivocal. She praised the great grandmother for looking after R and readily acknowledged that she had failed to do so herself. Her initial evidence in chief was to the effect that in 2003, the great grandmother had asked her for the opportunity to care for R until such time as she was able to set herself up and find stable and safe accommodation. She went on to say it was only after that that the great grandmother insisted on court orders or she would not be able to take R from the house. I am critical of the mother for endeavouring to minimise what occurred, because it was only during cross examination that she conceded that her main fear was that the Department of Human Services might take R away from her. I find that that was the major reason for entering into the formal arrangements by way of court orders which in reality, only reflected the fact that the great grandmother was the only stable person in R’s life at that time.
To her credit, the mother conceded that she had been angry about the difficulties that she saw she was having with the great grandmother until recently but that she was no longer feeling that way. She said that she had felt that the great grandmother was excluding her from R’s life but that she had been much happier over the past year. In par 20 of her affidavit, the mother set out a succession of concerns about issues involving R from which she felt that she had been excluded. I accept that there has been a communication problem between the mother and the great grandmother but that it applies to both of them and I shall refer to the great grandmother’s position shortly. Counsel for the father put to the mother that her list of grievances against the great grandmother were an attempt to show the great grandmother in a poor light. She said that she put them into the affidavit because they happened but she was not intending to reflect badly on the great grandmother. Whilst I have some reservations about that statement, particularly as it will be important for R’s sake to include the great grandmother significantly in his life in the future, I have taken into account the mother’s age and the traumatic background to which I have referred above and accordingly accepted that the complaints were listed for historical reasons rather than as an attempt to denigrate the great grandmother.
On a positive note in the evidence, the mother gave evidence of her physical capacity to provide for R’s needs. Those matters are set out in paragraphs 38 to 39 and 41 to 42 of her affidavit. I accept her evidence on those issues.
The mother said that she would promote the relationship between R and his father and notwithstanding all of the matters to which I have referred above, she was not seriously challenged about that and accordingly I accept that she would foster the ongoing relationship between R and his father.
The mother’s partner – Mr P
Mr P is aged 26 years and presented as a hardworking man, earning approximately $43,000 per year. He confirmed the savings goal to purchase the house at B.
Mr P said that he was not involved with drugs and rarely used alcohol and that he got along with everyone.
Mr P was challenged that the arrangement with the mother under which they lived apart was a “residence of convenience” and that he and the mother were cheating because no statutory authority could monitor what they were doing. Mr P denied any such intention.
Mr P impressed me as a man whose goal was to have a house purchased by June 2007 and that he had contemplated his job position changing so that he will have a permanent position in one place even if it meant that he will earn less money. He acknowledged the indebtedness that he currently had in relation to the motor cars of he and the mother and proffered a solution of selling his own car when he moved to the potential new job position so that he could reduce the loan.
In relation to all of these matters, Mr P impressed me as being both focussed on the needs of the mother and what he saw as his future family in which he included R. No witness disputed that Mr P has a good relationship with R. I found him to be an honest witness.
Most importantly, in respect of the claimed stability of the mother, no party suggested that Mr P was involved in or aware of, the mother’s return to criminal behaviour or drug usage. That reinforces in my mind what I had earlier said about the mother having changed her way of life and abandoned the drug scene and criminal activity.
The father’s evidence
The father is 26 years of age and manages the retail sales of a car company. He has an income of about $55,000 per annum. He is an astute man with money, having bought three homes in R all of which are rented and which are mortgaged. It was his practice to buy a property, renovate it and then rent it out for financial gain. There was some criticism of the father about the fact that he paid much less financial support for R to the great grandparents than he would otherwise have had to do, had a child support assessment been implemented. His response when questioned about it was that he was paying $50 per week, seeing R on the various weekends and had bought some clothing. Whilst that may not amount to what would otherwise be normally expected to be paid had a child support assessment been sought by the great grandparents, they had never been concerned about it and raised no complaint in these proceedings. The father told me that he was not aware of what the assessment would be. I make no criticism of the father in respect of his financial support to date.
In terms of the financial and physical requirements for R, I have no doubt the father has the capacity to support R. He and his partner are currently living in a five bedroom rented home. It was put to the father that his lease on this property would expire this year but he said that he was not concerned about that because the landlord was also managing his own property. Having regard to his astuteness to which I have referred above about property, I have no doubt that he would always provide adequate and proper accommodation for R.
The father in is a domestic relationship with Ms A who is aged 21 years. Although they may have known each other for some time, they have only been living together since February 2006. Whilst it was put to Ms A by counsel for the mother that there had been problems in the household between she and the father, that assertion really came from a comment by R to the psychologist. It was not suggested to the father that there were problems within his relationship with Ms A and she in turn, said they had arguments but certainly not recently.
The father said that he and Ms A had talked of marriage but had no plans and they were happy going in the same direction. He added that if there was any instability in their relationship it was because of what was going on in these proceedings. He said that they have a plan to have children regardless of the outcome of these proceedings.
I am quite satisfied about the stability of their relationship.
In response to the suggestion by counsel for the mother that there was a poor level of communication between the father and the great grandparents, the father acknowledged that it had deteriorated after March 2006 but that the parties had been able to work out things amongst themselves in respect of R. He did not see as serious, any of the concerns expressed by the great grandfather. Perhaps it was an unfortunate yardstick to determine the depth of the relationship but the father acknowledged that he was not at a point in time where he could “sit down and have a beer” with the great grandfather but that he was willing to “continue to work on it”. Having regard to the orders that I propose to make, my impression of the father in respect of this issue is that he will consider the best interests of R in so far as there is an ongoing relationship with the great grandparents.
The father holds very strong views that R should continue to attend the school he has been at for the last 12 months even if he came to live with him. He was at pains to point out that although it is 25 minutes travel time each way from his home, that is not unusual in the country. His view was that if R remained at the school, there would be no need to change his friends and he could continue to be involved in the activities such as Auskick and Cricket. I accept that these views have been carefully thought out and that the father would endeavour to implement what he says. The drawback however is that he is reliant upon his partner. There is perhaps nothing unusual about that because he was confident that either he or Ms A could deliver R to school in the morning and that Ms A would be able to collect R in the afternoon. The father said that his hours were sufficiently flexible to enable him to extend his lunchtime if he needed to attend activities at R’s school during the day. Although Ms A was supportive of the concept, she also acknowledged that her own daughter, who will most probably start school in 2008, will be commencing at the local school in R which is only minutes away from where the father currently lives. Whilst no issue was made of that by any counsel, there seemed to me to be an obvious impracticability if Ms A had to consider her own daughter at a different school. In 2007, Ms A’s daughter commences kindergarten between the hours of 9.00am and 2.00pm and she will then be required to collect R.
Whilst the underlying concept of retaining the status quo for R at his school is commendable, I do not accept it is practicable in this case. It was not supported by the great grandmother.
There was some criticism of the father by various counsel because of the fact that over the last year or two he had had little involvement in R’s schooling. His response was that it was because the great grandparents were “running the show” but he then added it was also because of his work. I do not criticise the father for his lack of involvement in the schooling in the last two years but it does reinforce the fact that the proposition of keeping R at a school 25 minutes away whilst working full time in a demanding job even with the support of his partner, will be difficult.
The father’s evidence in chief was that his relationship with the mother had improved and that they had an ability to negotiate changes in relation to their respective time with R and that they were working together for R’s benefit. When pressed by counsel for the great grandmother what his concerns were about the mother, he said that he did not know what she was going to do in the future and particularly whether she could get R to school on time. He felt that if she was under stress or if one of the children was sick, he did not know what would happen. He added however that he was not saying that the mother would revert to drug usage. I shall return to this statement in par 70 of these reasons. He thought that if R went to live with the mother, there would be some adjustment difficulties for the child such as adapting to a new school, missing his great grandparents and that R would feel confused for a while. On this evidence, the father showed insight into the needs of the child and I could have been comfortable in saying that wherever R was living, the father would be very supportive in settling him down and fostering the relationship for example, with the mother. However, when cross-examined by the counsel for the independent children’s lawyer, I saw a disturbing side of the father which made me wonder about his support for a relationship between R and the mother unless it was one of which he approved.
The father said that at the commencement of the proceedings, he was enjoying every second weekend with R but that he had always wanted R to live with him. He acknowledged that he had never said that openly. It was pointed out that when he filed his initial response to the mother’s application, he had only sought to support the retention of R with the great grandparents. That response was filed three days before the hearing at Dandenong before Young J. The father conceded that he did not initially treat the mother’s application seriously. It was only when the Court determined that his fortnightly weekends were to change to every third weekend, he realised that the situation was serious and that the great grandparents “may not have been able to stop what was happening”. He readily admitted that he did not think at that time that the mother had a chance of retaining the full time care of R but then added that this would have ruined his chances of “getting custody”. He said that he then realised that he had to change his application to ensure that the mother did not succeed.
In par 12 of his affidavit, the father said that he had not taken any formal legal steps and would not have chosen to initiate court action had it not been for the mother commencing her proceedings. He then added:
I felt that it was better for [R] to remain with (the great grandparents) at least until he was ready to commence school.
There was never any suggestion by the great grandparents in their evidence nor was it put to them that some arrangement had been made for the father to have the care of R once he started school.
I was left with the very strong impression that the father was happy with the arrangement that he had with the great grandparents but that that was under threat by the mother’s application and he reacted accordingly.
Counsel for the Independent Children’s Lawyer then put to the father that he had endeavoured to blacken the name of the mother to achieve the end to which I have just referred. The father denied that.
Sadly, having regard to all of the matters to which I have referred above in relation to the cross examination of the mother and in particular, the father’s explanation that his counsel was effectively not putting the matters accurately on his instructions, leaves me with a doubt about his stated focus on the needs of R. When pressed as to why his instructions had been so given, his response was that he had an idea of “what the mother gets up to” and that if her current relationship ended, she would revert to her previous criminal and drug activity. This was at odds with his evidence in chief. There are two problems with the father’s assertion. The first is that I have already found that the relationship between the mother and Mr P is committed and sound. The second is that in par 16 of the father’s affidavit of evidence in chief he deposed to the fact that the relationship with the mother had improved dramatically over recent times and that she “appears to have now settled down”. His attitude as I have outlined above was inconsistent with what he had said in his affidavit.
In par 51 of his affidavit of evidence in chief, the father described the change that occurred as a result of the orders of Young J from his perspective as making him the “loser” because his time with R was cut back. That suggests that the father is parent-focussed rather than child-focussed. Notwithstanding the assessment and praise from the psychologist and the general support for his parenting skills from the great grandmother, I am still left with a doubt about his intentions.
Consistent with the views that I have just expressed about the father’s rather self-centred attitude, were two incidents. The first is referred to in par 20 of the great grandmother’s affidavit. It occurred on 20 March 2006 when there appears to have been a communication breakdown between the father and the great grandparents. They attended at the father’s home to collect R to take him on holidays to U as had been planned by them. The father was aggressive and agitated because it was Easter and he anticipated having R during that period of time. R was present throughout this disagreement. According to the great grandmother, the father was verbally abusive to the extent of yelling. R was crying. In par 14 of the father’s affidavit, he said that the disagreement arose because the great grandparents had not consulted him. He admitted that he got quite upset because he had taken time off work to spend with R only to be told that the great grandparents wanted to go to U. The father conceded that the incident was regrettable and that he used “inappropriate language” and that he knew that R had become upset because R wanted to go with the great grandparents to U. It must be remembered that this incident occurred whilst the father had R in his care.
Notwithstanding the contrite impression conveyed in the affidavit, the father’s view was that there is now “no issue” as between he and the great grandparents. That was troubling, however, because of an incident involving the great grandfather, again in the presence of R, at a football match during 2006. It was the father’s weekend. R wanted to go home with the great grandfather. To use the great grandfather’s words, the father “flew into me”. It was quite clear to me that the “no issues” attitude of the father was not necessarily reciprocated by the great grandfather.
My assessment of the father therefore was that whilst he espoused that he was focussed on R and would do what was best for him, it may depend upon whether it suits him.
The evidence of the great grandparents
Although the nominated party in these proceedings is the great grandmother, in reality both great grandparents have shouldered the burden of R almost since his birth and both have participated in these proceedings in a very significant way. The great grandmother is 74 years of age. Her husband is aged 72 years. They are both retired. Both are recipients of Centrelink benefits.
The great grandmother told me of her extensive parenting background with seven children. She now has a large number of grandchildren as well.
I found both great grandparents exceedingly honest, forthright and willing to make concessions. Neither was prepared to be openly and strongly critical of either the mother or the father unless really pressed to do so and even then with hesitation.
It could never be said that either of the great grandparents was showing signs of age. The great grandmother has an ability with computers which many people might envy. She has the capacity to produce calendars for each parent showing in a different colour, their respective times to be spent with R. Whilst that may or may not have assisted the mother and the father, the great grandmother said it certainly assisted R in that he knew exactly what days he was going to spend time with his mother and father. In addition, the great grandmother was participating in the reading program at the primary school and gave me a very clear picture of the needs of R, including his delight in “hugs”.
The great grandfather attended every Auskick game regardless of whether R was staying with him that weekend or not and although he may not have been able to actively participate in the games, he made it clear that he had a very real interest in what R was doing. It was not in any of the evidence in chief of any party that the great grandfather had been taking R to a model train club each week and that together, he and R played with model trains at home which was something that R had a significant interest in for a number of years.
The great grandmother had kept diaries on the computer in respect of the activities of each of the parents in relation to R and was able to say times and dates that each of them had attended various functions at school and swimming in particular. The great grandmother had participated in mediation with the mother to improve her relationship and she conceded that in fact it had. It was her evidence that the mother had been involved in R’s first day at school and had provided some things for the child. The great grandmother’s view was that the father was spoiling R by giving him too much but that otherwise, she had no concerns about the father.
In her astute way, the great grandmother had determined that the mother’s new partner Mr P was pleasant and she had nothing negative to say about him. She was not so forthcoming in respect of the relationship between the father and his partner Ms A. The great grandmother candidly said that R had problems with Ms A and her child H but she was not able to say what it was other than it disturbed R. Whatever it was, it made him reticent to go to his father’s home.
In respect of the mother, both great grandparents expressed concerns about the stability of the mother’s lifestyle and maturity. The great grandmother expressed doubts about the mother’s love for R subsequent to the birth of J in June 2006 but she found it difficult to describe in any detail what made her think that. When pressed, the great grandmother said that the mother no longer greeted R with a cuddle and a kiss and that upon her arrival at their home, the mother simply chatted to her and her husband. The notable change was that prior to the birth of J, R would always run out to the mother and that no longer happened. She pondered whether the mother would cope with two children. She conceded that there was a problem in communicating with the mother but when really pressed, she described her relationship with the mother as more of a friend. That came about she said because the mother did not ask her for any advice and when she did give advice, the mother did not listen. She conceded however that that situation had not really arisen over the last 12 months. There was clear criticism of the mother that the great grandmother had not been invited to the mother’s home other than on a limited number of occasions. There was a complaint made by the great grandmother that she left messages on the telephone of the mother which were not answered. Notwithstanding those complaints, she said she did not believe that there had been any sign of drugs and that she felt that the mother was coping with the care of R. She made no secret of the fact that the mother could have come down to visit R and participate in other activities with R and had not done so. When it was suggested to the great grandmother that the father had not involved himself in similar activities, her response was that the father had to work. She would not countenance the fact that the mother was on a pension, living in Melbourne and had a young baby as an excuse for not seeking more time with R or attending at school functions. She was critical of the mother for having the baby J before sorting out the issue associated with R.
Having regard to the age gap and the background matters to which I have referred above, I am not prepared to say that the criticism of the mother by the great grandmother looms large in my determination. In an ideal world, things might have been a lot different had the parties lived closer to one another and had their relationship been closer as well. I find that the great grandmother has been constructive in her criticisms of the mother and that she is not trying to either gain some advantage for herself or to deliberately besmirch the name and character of the mother.
The great grandfather expressed his only concern as being that the mother might relapse into crime. His basis for that was a concern that the mother had attended a Tupperware party and an adult party in the middle of winter and only a fortnight apart. He conceded that neither of those events would have impacted on R and that that was the worst that he could think of. When pressed, he felt that it was not too bad. He said that he had seen the mother’s home which was presentable and adequate for J and R. He had met Mr P who was a “decent bloke” and that he had no criticism of him. Like his wife, the great grandfather was trying to be constructive and I make no criticism of his presentation. I think he was being honest.
Nothing I heard from the great grandparents in respect of the mother would dissuade me from the view that the mother is genuine in her desire to be a full time parent and to take over the role in respect of R that they have more than adequately fulfilled.
In respect of the father, the great grandmother expressed a reservation in her evidence in chief as a result of the incident that occurred at Easter 2006 but in cross-examination, she said that everything was now fine. She had been to the home of the father and that there had no longer been “threats” since the Easter incident. Her only apprehension about R going to his father’s home was the concern that R was expressing about the father’s partner Ms A and her 3½ year old daughter. The great grandfather was less complimentary about the father personally. He made the observation that even though he attended every football match involving R, the father usually only attended on his weekends. He said that the abuse to which I referred earlier was directed more towards the great grandmother than to him and that it happened occasionally. Their relationship might be cordial but it is certainly not good.
Neither great grandparent expressed any reservations about the relationship between R and the father.
It must be said that all of the criticisms by both great grandmother and great grandfather were made with reluctance and hesitation. It was to the credit of both of them that they did not wish to say uncomplimentary things about either parent.
The great grandmother was cross-examined about her past and future care of R. In respect of the past, she said that she was not originally looking at a “long term thing”. She had thought that the mother would have ended up in gaol and that the father had not been “an option”. Thus she took on the care of R. She said that at that time, she had hoped that the mother could have R back and that she did want to “let go” but had wanted to be sure that R would be loved and cared for. As for the future, she said that she would be prepared to step back out of R’s life if he was content and happy. She candidly added that she has 4 more great grandchildren this year and it was a problem getting around to all of them.
The great grandmother was asked at what point in time there should be a transition for R moving away from her care to a parent. She said that she felt that from her perspective it was not the right time but that she couldn’t say the same from R’s perspective. Her only concern would be whether R would settle having regard to the changes that would have to be made. She said she didn’t necessarily want a consultative role in R’s life but was happy to be informed about things of importance and to know where he was living. She was confident that R would adjust to a new school and new house. She said that he made friends easily.
To all intents and purposes, she said that there was nothing that would prevent the current situation from continuing and that that was what she wanted to have happen but she knew that her role could not go on forever. The great grandfather had a similar view. He said that he and his wife always knew that they would have to relinquish R and that it would be hard for them to let go but if it was to happen, now was the time. He said he was happy, like his wife, to take a back seat role and be informed about important issues.
The evidence of the father’s partner Ms A
Ms A is the father’s partner. She is a 21 year old student who has a 3½ year old daughter in her full time care. There is no relationship apparently between that child and her natural father.
Ms A is training to be a teacher and in addition to studying two days per week, she works part time five days per week. She has currently made a request to change her shifts of work so that she would be more available if R came to live with the father.
Ms A was very supportive of her partner, acknowledging that it was a huge responsibility on her shoulders because of the role she would have to play in the absence of the father at work. She saw no difficulties with that role and did not accept that there was a problem between she and R. She said that R was treated in the same way as her daughter was.
I was impressed with Ms A and my only reservation about her support for the proposal of the father is the practicability of fulfilling as many roles as she does particularly if R was to stay at the school he currently attends.
The evidence of psychologist Ms T
Ms T is a clinical psychologist with 20 years experience specialising in child and family psychology.
The first report of Ms T was prepared on 18 November 2005 pursuant to the order of Young J on 19 September 2005. The report ultimately assisted the parties to reach agreement which is set out in the orders of 30 November 2005.
One year later, although the report is incorrectly dated 2005, Ms T saw the parties and R again.
In the second report, Ms T reported that she had spoken to R’s school vice principal and found that R was generally settled and doing well and there were no significant concerns of any kind.
Ms T reported positively about the mother and her relationship with Mr P. Her assessment of the relationship with the mother and great grandmother was that they were getting along better and that the relationship with the father had also improved. Ms T reported positively about the mother’s attempt to involve the father in a family function. Along with that, there seemed to be no problems between the mother and Ms A.
Ms T did not see the father and his family, including R, until six weeks later. She spoke positively of the relationship between R, his father and Ms A. Most importantly, Ms T said that the father had spoken positively about improvements in the situation between he and the mother and that they had been able to talk together and that there was cooperation around R and his needs.
Ms T had set out the father’s position as being that it would be less of a “complete environmental change” for R if he came to live with him rather than the mother.
Ms T reported no criticisms by either party of the other in respect of parenting issues.
In relation to R, Ms T said that he understood in a childish way what the proceedings were about and that up until that point, the Court had said that he had to live with his great grandparents but that if the Court changed its mind, it, the Court, should say that he live with his mother.
Ms T made it clear about her view. She said (p 10 of her report)
While [the great grandparents] had apparently continued to be of generally good health, they are in their seventies and are [R’s] great grandparents, and consequently it would be logical to consider the appropriateness of placing [R] back into the care of either or both of his parents at this stage, unless their (sic) is evidence that is presented that is contrary to this goal.
On the basis of what Ms T had said, there was no evidence that could be said to be contrary to that goal of returning R to his parents.
Ms T was questioned about whether it would be sensible to leave R with the great grandparents and her response was that in time, there could be issues with R about the fact that he had not spent time with his parents. She said that she could not say that there would be damage to R but acknowledged that although the great grandparents are currently healthy, they were in their seventies. She added, however, that before any change should be contemplated, it had to be predicated on the stability of the parents’ respective relationships. In her view, both parents were seen as offering good parenting.
The father’s counsel made much of the fact that R is living in a community where he has friends and activities with which he is very familiar and in which, his lifestyle is very settled. Counsel questioned the sense in severing the tie with that community but Ms T responded by saying that it really depended upon what replaced that community. There is evidence that R makes friends easily and will adjust to any new life that he commences.
Counsel suggested that taking away R’s involvement with the model trains interest that he shares with his great grandfather would be a problem. It was put that R would not need to change that interest if he lived with his father. Ms T responded by saying that it would clearly be a loss but that it all depended on what was provided and that each party offered advantages and disadvantages.
The father’s case in relation to schooling was also put to Ms T because having established himself in that school, there was a flow on effect of birthday parties. Again, it was put to Ms T that this was a very significant issue but she responded by saying that children do move schools and make new friends.
Ms T did not seem at all concerned therefore about the change of environment away from his current circumstances with the great grandparents, whether or not it was with the mother or the father.
Counsel for the father raised the fact that the mother and Mr P were not living together and that Mr P worked long hours. Ms T said that she was unclear about how much time the mother and Mr P spent together and that she thought that there would usually be some adjustment period between them if they moved in together. Ms T acknowledged that if the relationship did not survive, it may evoke some of R’s early period which could be very difficult for him. That however, depends of how the mother copes in that situation. I have no evidence to suggest anything other than that the relationship is a committed one and that Mr P and the mother are supportive of each other.
Ms T confirmed that there was no presentation of any post-traumatic stress disorder in the mother notwithstanding all of the things that the mother had gone through to which I have referred to earlier.
Ms T repeated her statement in her report that if the parties lived closer together, it was certainly a case in which she would recommend shared care. She was pressed to say what the difference was between the positions of the mother and the father and her view was that each had things to offer R and that she hadn’t been able to settle on one parent or the other. She said it was a matter of weighing up the situations and in the end, she recommended that R live with the mother because she was more available.
I found the evidence of Ms T extremely helpful and have relied upon it heavily particularly in relation to her view that R would not be adversely affected by the transition from the great grandparents to either parent. Having regard to the fact that the great grandparents have been the primary carers of R for the majority of his life, this was a troubling issue for me. However, Ms T’s evidence has reassured me that there should be no adverse consequences.
The submissions of the parties
Mr McGowan on behalf of the independent children’s lawyer said that whilst each parent had something to offer, in balancing matters, the Independent Children’s Lawyer favoured the mother. He said this was a case for equal shared parental responsibility orders but that the presumption should be displaced. He made the point that the objects of the legislation make it clear that the primary focus is on parents being responsible for their children.
Counsel for the father said that R having to travel was an issue and that if an order was made that R live with his father, that problem would be overcome. If R was to live with his mother however, he could no longer be involved in the activities in his local community because he would be constantly travelling. More importantly, however, he said that as between the mother and the father, the Court should find that the mother’s lifestyle position was not settled but the father’s was. His submission was that placing R with the mother was effectively putting him in an untried community where there was a great deal of speculation about what the mother would do in the future. That was particularly so having regard to the mother’s abrogation of responsibilities in the past. He pointed out that the father had been involved in R’s life each week when visits were made to the great grandparents’ home on a Thursday night. He emphasised the stability of the father both in terms of his relationship with Ms A and also his financial matters.
Counsel for the father pointed out that everything that the mother was proposing was a “bit of punt”. The father had developed a work ethic which was important for the development of the child and working full-time should not prejudice his position as a parent. In fact, he said that R would enjoy the fruits of that environment. The mother, on the other hand, did not have that same ethic as could be seen by the spending of the compensation money and the involvement in drugs and criminal activity.
Counsel for the great grandparents said that neither parent was settled yet but that if there was to be a change to either parent, the great grandparents should have a continuing involvement with R and that orders should be made because there was not enough evidence that the parties could work things out themselves.
Counsel for the mother pointed to the fact that she was stable and that even if the house situation did not eventuate, she and Mr P were going to live together in permanent rented accommodation by June. He highlighted the fact that the mother had been involved consistently but that the father had refused to participate in mediation and school activities and gave as an example, the fact that he had not done anything about the birth certificate.
It can be seen therefore that in the context of making a decision about what is in the best interests of R, the parties themselves highlighted the strengths and weaknesses of each other. In the mother’s case, according to the father, I have to be satisfied that she is going to provide a stable existence where that has not occurred in the past. In the father’s case, according to the mother, he does not have the time that she has to put in the full-time care of R and that he is dependent upon his partner.
In the midst of all of this, the great grandparents have done a wonderful job in parenting R but the expert witness says that it is time for them to hand-over that responsibility so that R understands that it is his parents who are parenting him and that he uses the time to catch up with the great grandparents as one would normally do with very interested extended family members.
The Law
These are applications for parenting orders under the Family Law Act 1975 (Cth) (“the Act”).
Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
that a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
Fundamental to my decision in this case is the provision of s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
As I have previously said, whilst to a very large degree, the parties are focussed on whether it is time to make a change for R or not, my function is to have regard to his best interests as the paramount consideration in whether or not I should make a parenting order.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Before turning to those particular provisions, because this is a parenting order that I propose to make, s 61DA requires that I 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.
Whether it was a legislative oversight or not, it is curious that the provision is limited to parents. This is particularly so in a case where a child such as R has been effectively parented by his great grandparents for the major portion of his life. It is quite clear in the additional considerations in s 60CC(3)(b), (d) and (f) that persons other than parents and in particular grandparents are treated as significant participants. However, the presumption in relation to the question of sharing parental responsibility is limited to the parents. That does not mean that a court cannot make an order for a relative to have parental responsibility (See s 64B(2)(c)). Counsel for the independent children’s lawyer pointed to the fact that the principle objects of Part VII refer to parents and that it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with that proposition.
Thus, having regard to the legislative framework, the first issue is the application of the presumption of equal shared parental responsibility.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) 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.
Section 61DA(4) says:
(4) 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 for the child.
In this case, notwithstanding what was obviously neglect by the mother of R in the years 2002 and 2003 and the father’s ambivalence towards any significant relationship with the child during that period of time, I am not prepared to say that either of the matters in s 61DA(2) applies.
Further, notwithstanding the findings that I have made about the father’s attitude towards the mother in the conduct of the proceedings, all of the evidence otherwise points to the fact that both mother and father are capable of having good, sensible and civilized discussions when it comes to making decisions about R and I see no reason why that would not continue in respect of decisions about his future.
Accordingly, I propose to start from the presumption that it is in the best interests of R that his parents have equal shared parental responsibility.
Section 61DB provides that if there is an interim parenting order, the Court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order. In this case, the orders made in September 2005 are of little consequence.
The presumption of shared parental responsibility triggers the application of s 65DAA. That section provides:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
I am quite satisfied that it is not practicable for R to spend equal time with each of the parents. Neither parent agreed nor was able to, live closer to the other to the extent that they would be able to share R in terms of time. The mother had no desire to return to the country for reasons which I have earlier set out and which I accept. The father had contemplated moving to Melbourne but said that it was impracticable for him to do so.
Ultimately therefore, I find that it is not in the best interests of R for a parenting order to be made that he spend equal time with each of the parents.
Having rejected equal time, the legislation requires that I contemplate the question of R spending substantial and significant time with each parent. It must be borne in mind that substantial and significant time means not only weekends and holidays but week days during which, the parent would be involved in the child’s daily routine as well as attend occasions and events that are of particular significance to both the child and the parent. Whilst I am not limited in that definition, I have already indicated that the geographical distance in this case is a problem. Whilst I am sure parents can arrange their work commitments around such travel, in this case, because of R’s age, it would be impracticable for him to live with his mother in Melbourne and be expected to get to school on time in R and vice versa. The father has commitments at work which I accept are flexible but he acknowledged that he had to work a certain number of hours. The mother has a young child and limited income. Whilst the parents have until now, managed to resolve the relatively limited decisions that they have had to make to change the various arrangements for R, my view is that the only realistic time that either parent could spend with R is on weekends and holidays if they were not the primary parent responsible for the daily care of R.
I turn then to the provisions of s 60CC to determine what is in the best interests of R by reference to a number of considerations. The considerations are divided into two parts. The first of these is said to be primary considerations namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Section 60CC then provides a list of additional considerations which are to be taken into account. Before turning to those considerations however, it is instructive to look at the objects of Part VII of the Act as set out in s 60B(1). Those are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles said to be underlying these objects are, except where it would be contrary to a child’s best interests are:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I am satisfied that in making the orders I propose, I will be meeting the objects and principles set out above.
The first of those objects is to ensure that R has the benefit of both of his parents having a meaningful involvement in his life to the maximum extent consistent with his best interests. There is no definition in the legislation of “meaning involvement” but whatever it means, R must benefit from it. That is, it is my responsibility to assess the benefit or advantage that R will gain from the relationship provided by the parenting orders. To a large degree in this case, the tyranny of distance sets the boundaries of time but it should not affect the type of relationship that each parent will have with R. In the case of the mother, I am satisfied that she will be focussed on his future physical and emotional care notwithstanding that she has not fulfilled that role in a time sense on a full-time basis for a number of years. In respect of the father, I am quite satisfied that his time has also been limited for a number of years but that his involvement with R has been meaningful to date and that in my view, that should continue.
I turn then to the matters set out in s 60CC.
The benefit to the child of having a meaningful relationship with both of the child’s parents
I am quite satisfied that with the sound relationship that each parent currently has with R, the orders that I propose to make will enable R to benefit from the time that he spends with each of them in a meaningful way.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
Not withstanding the reservation I had about the conduct of the father in behaving inappropriately towards the great grandmother and the great grandfather in front of R, I do not believe that there is any need to consider this issue further. I believe both parents will protect R from physical and psychological harm.
Any views expressed by the child
Although R reported to Ms T that he wanted more time with the mother and even that he should live with the mother if not the great grandparents, having regard to his age, this is not something that carries any great weight.
The nature of the relationship of the child with each of the child’s parents and the great grandparents
As I have found above, each of the parents has a close and loving relationship with R and has his best interests at heart. Similarly, the current relationship of the great grandparents as primary carers has been close and very supportive of R. Although under the orders that I propose to make, the great grandparents’ relationship will change, on the evidence, all parties have very strong and reliable relationships with R.
The willingness and ability of each of the parents to facilitate and encourage, a close and continuing relationship between the child and the other parent
This is the only area in which I can express any reservation and on the findings that I have made above, I have done so in relation to the father. However, to be contrasted with that, all parties suggested that otherwise, their relationship had improved of late and that they were cooperating for the benefit of R.
The likely effect of any changes in the child’s circumstances
This issue troubled me greatly and I refer to the findings I have made based on the evidence of the psychologist about the separation of R from his great grandparents. I am satisfied that there will be no ill-effects of that change. As the orders I propose to make will continue the current relationship between R and his father save that there will be less “visitation” time on a Thursday night, I do not believe that there will be any significant ill effects for R because the time I am proposing to order in respect of the father will ultimately be increased.
The practical difficulty and expense of a child spending time with and communicating with a parent
In this case, this was a significant issue but I accept that neither parent can do much about it. If the parents lived closer to one another, a greater sharing arrangement could be seriously contemplated. I am satisfied that that is not practicable but that the distance in this case does not otherwise substantially affect R’s right to maintain a close relationship with his father and great grandparents on a regular basis.
The capacity of each of the parents and the great grandparents to provide for the needs of R
I have already made findings that each parent has the capacity to provide for the emotional and intellectual needs of R and need say no more.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents
R is a little boy whose parents have had a troublesome background but who has had an enormous amount of support from his great grandparents as carers. On the findings I have made, both parents show a mature outlook in respect of future. Whilst I acknowledge there have been serious concerns about the mother’s lifestyle in the past, I have made findings about the fact that that is in the past and that R will no longer be adversely affected by that. By the same token, the father had a limited role in R’s life until these proceedings commenced but that his lifestyle and work ethic indicate that R will benefit from considerable time with his father.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents could be criticised for their failure to care for R in his very early years but in the time since these proceedings began, each has shown a far greater responsibility in respect of parenting and I rely on the findings that I have made above.
Family violence and family violence orders
Whilst I have made findings about the relationship between the father and the great grandparents, I am not satisfied that has any relevance in this case.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
This has been a stressful time for all three parties and R has been conscious that his future depends upon the outcome of those proceedings. Having regard to the unusual situation of the great grandparents as primary carers of R, I am not prepared to simply leave it to the parties to work out the sharing arrangements for the future. Accordingly, I have made orders to avoid further proceedings in the transition period of primary care from the great grandparents to the mother, to ensure that their significant role continues both as great grandparents and as monitors.
Section 60CC(4) requires the court to consider the extent to which parents have fulfilled or failed to fulfil their responsibilities. I have made specific findings about the criticisms by the great grandparents of both the mother and the father and endeavoured to set out the failings of each of the parents in the very early years of R’s life. I have taken those matters into account in making an assessment of the future stability of each of the parents.
In contemplating s 60CC(4), I have certainly carefully weighed up all of the events commencing with the separation of the parties but most importantly, the circumstances under which R was cared for by both of them until the great grandparents took over the reins. For the reasons I have already set out above, I am quite satisfied now that each of the parents is sufficiently mature and stable to take back the responsibility for the care of R, each in their own distinctively different way.
For all of the reasons that I have set out above, whilst it may be a finely balanced case in respect of each of the parents, I find that it is appropriate for R’s best interests that he be cared for predominately by his mother. The time I am allocating to the father will enable R to benefit from a meaningful relationship with his father. It is my intention under these orders to enable the great grandparents to hand over the baton as parents and fulfil the normal relationship that one would expect of grandparents in relation to a child like R. My view is that it is time for that to occur and that the orders I propose are in R’s best interests.
I certify that the preceding One Hundred and Sixty Four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 22 January 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Souter & Thomson & Anor
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