Winston and Anor and Medland

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINSTON & ANOR & MEDLAND

[2013] FCCA 1903

Catchwords:

FAMILY LAW – Parenting – dispute about future parenting arrangements for a child aged 9 – where the child’s mother died suddenly in 2012 – where prior to her mother’s death the child was living with the mother and spending time with the father – where the child has lived with the maternal grandparents since the mother’s death – maternal grandparents proposing that this continue – father seeking an order that the child live with him – child conflicted and not expressing a preference – whether the fact of parenthood tips the balance in favour of the child living with the father.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60K, 61DA, 65DAA, 64C, 65C

Aldridge & Keaton (2009) FLC93-421
D & F [2001] FamCA 382
Dennett & Norman [2007] FamCA57
Mazorski & Albright (2008) 37 FamLR 518
Rice & Miller (1993) FLC92-415

Applicants:

MS WINSTON & MR WINSTON

Respondent:

MR MEDLAND

File Number:

NCC 234 of 2009

Judgment of:

Judge Terry

Hearing dates:

11, 12 & 13 November 2013

Date of Last Submission:

13 November 2013

Delivered at:

Tamworth

Delivered on:

21 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Braye Cragge Solicitors

Counsel for the Respondent:

Ms Shearman

Solicitors for the Respondent:

Bridge Street Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Carty

Solicitor for the Independent Children’s Lawyer:

Jennifer Blundell & Associates

ORDERS

All previous parenting orders concerning [X] born [omitted] 2004 are discharged.
The father, the maternal grandmother Ms Winston and the maternal grandfather Mr Winston shall have equal shared parental responsibility for the child.
The child shall live with the maternal grandparents.
The child shall spend time with the father:
(a)each alternate weekend during school terms from 6.00pm on Friday until 3.30pm on Sunday;
(b)for a period of 9 days during the Term 1, 2 and 3 school holidays as agreed between the parties and failing agreement commencing at 3.30pm on the first non-school day of the holiday period and concluding at 3.30pm 9 days later;
(c)for one half of the Christmas school holidays as agreed and failing agreement for the first half when the holidays commence in an even numbered year and the second half when the holidays commence in an odd numbered year; and
(d)at such additional or alternate times as may be agreed between the father and the maternal grandparents.
Unless otherwise agreed changeover between the parties shall take place at McDonalds Family Restaurant at [S].
Notwithstanding any other order:
(a)if Father’s Day falls on a weekend when the child would otherwise be with the maternal grandparents the maternal grandparents time with the child shall be suspended on that weekend and the child shall spend that weekend with the father;
(b)if Mother’s Day falls on a weekend when the child would otherwise be with the father the child’s time with the father shall be suspended on that weekend and the child shall spend that weekend with the maternal grandparents.
The party or parties who do not have the child in their care shall have telephone or Skype communication with her as agreed between the parties and failing agreement each Tuesday and Thursday between 4.00pm and 6.00pm and the adults shall afford the child reasonable privacy during that time.
Each party shall promptly notify the other(s) should the child while in their care be diagnosed as suffering from a serious medical condition, be involved in an accident requiring attendance at hospital or be the subject of a medical emergency requiring attendance at hospital and each party may visit the child in hospital and obtain from the hospital or treating medical practitioner any relevant medical information concerning or reports prepared about the child.
Each party may obtain from the child’s schools newsletters, notices, school reports, school photograph order forms and any other information or documents normally provided to parents.
Each party is entitled to attend all events involving the child including:
(a)sporting fixtures;
(b)extra curricula activities that allow for parental attendance;
(c)school functions and events that allow for adult attendance including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions.
Each party is to keep the other informed of their current residential address, postal address, and landline (if they have one) and mobile telephone number and shall advise the other party or parties within 24 hours of any changes to any of these details.
If a party intends to take or send the child away from their usual residential address for more than 4 days during their period of holiday time with the child they shall notify the other party or parties in writing (by email, text message or otherwise) no later than 48 hours prior to departure of their dates of departure and return and the address at which the child will be staying while away from the usual residential address.
During the time the child is with each party or parties each party shall:
(a)not physically chastise the child or allow any person to do so;
(b)speak respectfully of the other party or parties or the father’s partner as the case may be;
(c)not denigrate, insult or threaten the other parties or the father’s partner and use their best endeavours to ensure that others do not do so in the presence or hearing of the child;
(d)not seek to elicit from the child any views about where the child should live.
The maternal grandparents shall promptly make an appointment for the child to see Ms C for the purposes of Ms C explaining to the child the orders which have been made.

IT IS NOTED that publication of this judgment under the pseudonym Winston & Anor & Medland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 234 of 2009

MS WINSTON & MR WINSTON

Applicants

And

MR MEDLAND

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 May 2012 [X]’s mother Ms D died suddenly.
[X]’s parents separated many years ago and at the time of her mother’s death [X] was living with her mother pursuant to court orders and spending each alternate weekend and time during the school holidays with her father.
Since her mother’s death [X] has lived with her maternal grandparents in [T] and has spent the same time as previously with the father.
The maternal grandparents would like this to continue, but [X]’s father, who lives in [R], proposes that [X] live with him and spend each alternate weekend and time during the school holidays with the maternal grandparents.
[X] told Dr R, the child psychiatrist who prepared a report for the proceedings, that she wanted to stay with her father forever and her maternal grandparents forever and did not know what to do.
The maternal grandparents are almost 64 and 61. The maternal grandfather is employed by [omitted] and the maternal grandmother is engaged in home duties. [X] is the only child in their household; their daughter Ms T moved out in about April 2013 with her daughter [A] in order to live with a partner.
The father is 32. He is on a Disability Support Pension and is studying for a [qualification omitted]. He lives with his wife Ms M who is engaged in home duties, their daughter [Y], 4, Ms M’s sons [B], 13 and [C], 10 and the father’s friend Mr R and Mr R’s partner.
The driving distance between [T] and [R] is about four hours.
The maternal grandparent’s case is that they can offer [X], who has already been subject to a number of sudden changes and much difficulty in her life, the stability she needs.
The maternal grandparents are concerned about the fact that both the father and his wife have mental health issues and are concerned about how she will adapt to moving from being an only child in their household to being one of four children (including one who has special needs) and four adults in the father’s household.
The father’s case is that [X] deserves the right to be brought up by her only surviving parent. He argues that he and his wife are perfectly capable of providing stability for [X] and that concerns about their mental health are overblown. They are both engaged with treating health professionals and are compliant with their medication and their mental health is stable.
The father says that it is important for [X] to have the opportunity to grow up with her sibling [Y] and that [X] gets on well with the other children in his household and that there will be benefits to her in growing up as part of a sibling group rather than an only child.

The Evidence

The maternal grandparents relied on their application filed on 5 July 2012 and their affidavits filed on 1 November 2013 and 30 October 2013.
The father relied on his response filed on 17 July 2012, his affidavit filed on 31 October 2013 and the affidavits of his wife Ms M filed on 31 October 2013, his friend Mr R filed on 6 November 2013, his psychologist Mr C filed on 7 November 2013 and Ms M’s treating psychiatrist Dr M filed on 6 November 2013.
Dr R, a child psychiatrist, prepared a report which was released to the parties on 23 May 2013.
All of the above witnesses were cross-examined.
I have also read as requested and taken into account paragraphs 46-48 and 57-58 of the affidavit of Ms T filed on 23 May 2012 and paragraph 23 of the affidavit of Ms Winston filed on 5 July 2012.
I have also read the experts report of Ms S, a clinical psychologist, which was prepared in October 2010 for the purposes of proceedings between the mother and the father. The report is attached to the affidavit of the maternal grandmother and it provides useful historical information. No objection was taken to the report being referred to for that purpose.
The maternal grandparents were pleasant, reasonable and responsive witnesses. There was no hint in their evidence of them being determined to keep [X] at all costs to replace their daughter, and no hint of animosity to the father or Ms M although they do have concerns about them.
The father was a calm and reasonably responsive witness although there were occasions when I was concerned about the way in which he came up with additional evidence when he was challenged about issues in the case.
I accept unreservedly that the father wants only the best for his daughter and genuinely believes that the best for her is to live with him.
I had some concerns about the reliability of Ms M’s evidence. Some of her oral evidence was inconsistent with the evidence of the father, and on more than one occasion when challenged about inconsistencies in her evidence she proceeded to give a detailed account of events which she said had occurred but which were not mentioned in her affidavit.
When challenged about her evidence that the maternal grandmother blamed her for the mother’s death Ms M told a long story about the maternal grandfather ringing the father while he was at Ms M’s side in hospital and making this exact accusation. The father did not give this evidence and this version of events was not put to the maternal grandfather during cross-examination.
The tenor of the evidence in Ms M’s affidavit was that after the father was diagnosed with bi-polar in 2011 he commenced taking medication and everything changed for the better. Ms M failed to mention the incident on 31 March 2013 when the father consumed a bottle of vodka in 5 minutes and was rushed to hospital.
When asked about this incident during cross-examination she admitted that it occurred and said that it was due to the father not being on the right medication. She said that after the medication was adjusted (increased) the father was on an even keel.
I accept that Ms M is genuine in her belief that she and the father can provide a happy home for [X] and provide her with a good level of care.
Mr R was briefly cross-examined. He was a pleasant witness. He said that he had an intellectual disability and this fitted with his presentation in the witness box.

Background

The mother and father commenced living together in 2002 when they were 21 and 20 respectively. They lived with the maternal grandparents for about a year until the maternal grandparents asked the father to leave and they then obtained their own accommodation.
[X], their only child, was born in [omitted] 2004.
The mother and father separated in April 2007 when [X] was not yet 3. [X] thereafter lived with the mother and spent either every weekend or three days each week with the father (they could be the same thing but each parent gave a different account to Ms S in 2010).
After separation the father commenced sharing accommodation with his friend Mr R and Mr R has lived in the same home as the father ever since.
In or about April 2007, if not earlier, the mother commenced a relationship with Mr D and they subsequently began living together and later married.[1]
[1] Each parent gave different information to Ms S about when this relationship commenced and I cannot resolve this dispute.
Until April 2008 all of the relevant people in [X]’s life, namely the mother, father and maternal and paternal grandparents, lived in the Newcastle area. In April 2008 however the mother and Mr D moved to [T], in 2009 the mother’s sister Ms T moved there and in 2010 the maternal grandparents moved there and purchased a home.
From April 2008 [X] lived with the mother in [T] and spent each alternate weekend with the father with changeovers at [S].
In December 2008 the father commenced cohabitation with Ms M, now Mrs M whom he married in September 2010. Mrs M has two children, [B] born in 2000 and [C] born in 2003, and the father and Ms M have a daughter [Y] born in 2009.
In March 2010 the father refused to return [X] to the mother after a weekend visit on the basis that she had complained of a sore vagina and had disclosed that Mr D had been touching her.
The mother immediately commenced court proceedings seeking [X]’s return to her care but in light of the allegations interim orders were made for [X] live with the father and spend supervised time with the mother for a few hours each fortnight.
A JIRT investigation was conducted and JIRT substantiated the allegations because of [X]’s disclosures. Mr D denied any wrongdoing but Ms S detailed in her report the fact that Mr D had admitted touching one of his own daughters in a sexually inappropriate manner in the past and that another daughter had alleged that that he had behaved in a sexually inappropriate way with her.
In early October 2010 the mother was admitted to hospital following a suspected heart attack. To his credit the father upon being notified of this immediately took [X] to [T] to see the mother. Unfortunately the maternal grandmother, who was distraught about her daughter’s illness, loudly accused the father at the hospital of causing it by subjecting her daughter to stress. Ms M was present when this occurred and may well have considered that the accusations were directed at her as well as her husband.
The maternal grandmother said that she regretted this incident and subsequently sent a letter of apology to the father and Ms M. Ms M denied receiving such a letter and Mr Medland was not asked about it.
I found the maternal grandmother a generally credible witness and I accept her evidence that the letter was sent, but mail can go astray and the father has moved addresses and it is not open to me to be satisfied that he and Ms M received the letter.
The father’s counsel submitted that it was unclear from the maternal grandmother’s evidence when the letter was sent. This was not explored in cross-examination and I accept that I cannot be certain about this.
Ms S was asked to prepare an experts report for the proceedings between the mother and the father and she conducted interviews in early November 2010. Mr D attended the interviews with the mother.
During his interview the father revealed to Ms S that he had suffered a breakdown a couple of weeks earlier and had been placed on a mental health plan by his GP and had commenced receiving counselling.
Ms S’s report was released in December 2010. She expressed the opinion that [X], then 6, was grieving over her separation from the mother. She recommended that [X] resume living with the mother as soon as possible provided that the court was satisfied that the mother was genuinely prepared to separate from Mr D.
The parties did not reach agreement after the report was released and the matter was listed for hearing in July 2011.
In February 2011 the father was diagnosed with Bi-polar II and prescribed medication.
On 5 July 2011 the parents settled their dispute. Orders were made for [X] to live with the mother commencing in October 2011 and thereafter spend time with the father each alternate weekend and for half of the Christmas school holidays and 9 days in the three shorter school holidays. An order was made restraining the mother from having any contact with Mr D or causing or allowing the child to have any contact or communication with Mr D.
I draw no adverse inference against the father from the fact that the matter did not settle after the release of the experts report.
[X] commenced living the mother in [T] in October 2011 and commenced attending [H] School. The mother and [X] lived in their own accommodation in [T] until March 2012 when they moved in with the maternal grandparents. At that time the maternal aunt Ms T and her daughter [A] were also living with the maternal grandparents and [X] and [A] shared a room.
In March 2012 the father resigned from his employment with [omitted] citing health and mental health issues as the reasons why he could not continue to work.
On 31 March 2012 the father consumed a bottle of vodka in 5 minutes, an action which could have killed him and which he described as a cry for help. An ambulance was called and he was taken to [omitted] Hospital Mental Health Unit. His medication was adjusted and he was released and he has since been seeing a psychologist.
On 13 May 2012 Ms M was admitted to hospital with symptoms suggesting that she had suffered a stroke. Ms M had previously suffered mental health problems and investigations suggested that there was no physical cause her systems and that they were as her psychiatrist put it a conversion disorder.
On 17 May 2012 the mother collapsed at the maternal grandparents’ home in the early hours of the early hours of the morning and died. The maternal grandparents have since been informed that she died because of a blood clot to the heart.
The maternal grandfather informed the father of the mother’s death later that day and the father relayed the news to Ms M who was still in hospital. This no doubt added to Ms M’s stress, as she had previously experienced the maternal grandparents loudly blaming the father (and perhaps she was right to assume herself) for their daughter’s health problems.
Ms M commenced receiving treatment from a psychiatrist and she remained in hospital until 24 May 2012
The mother died on a Thursday and after the maternal grandfather informed the father of the mother’s death they agreed that [X] would not go to the father on the Friday although this was a weekend which up till then it had been expected she would spend with her father.
The father soon began asking the maternal grandparents about [X] “coming to him” or “coming home” and he agreed that he told the maternal grandparents that [X] was “now 100% mine.” He sent a sent a text message saying that he was going to collect [X] after the mother’s funeral on Friday 25 May 2013.
The maternal grandparents did not consider that such a sudden change of residence would be appropriate.
On Wednesday 23 May 2013 the father drove to [T] without prior notice to the maternal grandparents and went to their home asking to see [X]. A confrontation occurred in which heated words were exchanged and which led to the police being called and attending. [X] was inside the house and did not come out to spend time with the father.

The father did not attend the mother’s funeral on 25 May 2013, he said because he was not invited, although the paternal grandparents attended the funeral.
On 4 June 2012 the maternal grandparents through their solicitors sent a letter to the father proposing the parties attend mediation to discuss future parenting arrangements for [X].
On Thursday 7 June 2012 the father again drove to [T] again without notice to the maternal grandparents and went to [X]’s school and demanded that the school give [X] to him. People at the school attempted to stall him and told him that he should allow the court to decide the issue of what was to happen for [X] but the father remained insistent and after some hours the school allowed [X] to leave with him.
The father took [X] to his home in [E] but shortly after this he and his family moved to [R]. It is unclear to me on the evidence whether [X] was enrolled at school in [E] and then later at [G] School, but nothing turns on this.
On 5 July 2012 the maternal grandparents filed an urgent application for parenting orders. The father filed a response and the matter came before me on 18 July 2012. After conducting a defended interim hearing I ordered that in the interim [X] live with the maternal grandparents and spend each alternate weekend and time during the school holidays with the father.
[X] was duly returned to [T] and re-enrolled at [H] School and she has spent time with the father in accordance with the interim orders ever since.
I formed the view on 12 July 2012 that it was possible that the father’s had not been advised of the existence of s.60K of the Family Law Act 1975 which provides as follows:
What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives
(1) This section applies if:
(a) a parenting order is in force that provides that a child is to live with one of the child's parents; and
(b) that parent dies; and
(c)the parenting order does not provide for what is to happen on that parent's death.
(2)The surviving parent cannot require the child to live with him or her.
(3)The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.
(4)In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.
In due course an experts report was prepared by Dr R but this did not assist the parties to resolve their dispute and it was listed for hearing in the week commencing 12 November 2013.

The applicable law

The maternal grandparents have standing pursuant to s.65C of the Family Law Act 1975 to make an application for [X] to live with them, and s.64C gives the court power to make a parenting order in favour of a parent of a child or some other person.
However the norm in our society is for children to be brought up by their parents, and the father’s counsel submitted that the fact of parenthood was a significant factor in this case given that [X] had always had a relationship with her father and indeed had lived with him for 18 months up to October 2011 and that (on his submission) both the father and the maternal grandparents could provide competent care for [X].
The father’s counsel referred me to a passage in D & F in which the following was said:
There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.’[2]
[2] D & F [2001] FAmCA 382
D & F is a 2001 decision case in which a grandmother was seeking residence of a young child and the mother was the respondent. The passage has been referred to with approval in many subsequent cases including Dennett & Norman[3] another case to which the father’s counsel referred me.
[3] Dennett & Norman [2007] FamCA 57
I accept that the fact or factor of parenthood is something which I must take into account, but the above passage makes it clear that it is but one factor to be taken into account and that its implications will vary from case to case.
The Full Court has repeatedly emphasised that notwithstanding the amendments to the Family Law Act 1975 in 2006 the fact of parenthood does not create a presumption in favour of a parent and that the legislation requires that all decisions about parenting orders must be determined by treating the best interests of the child as the paramount consideration.
In Aldridge & Keaton the Full Court said as follows:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;
the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and
that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.[4]
[4] Aldridge & Keaton (2009) FLC 93-421
The following passage from Rice & Miller (referred to in Aldridge and Keaton) remains apposite:
… We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question. [5]
[5] Rice & Miller (1993) FLC 92-415

[X]’s best interests

S.60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) 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.
S.60CC (2A) provides that in applying the considerations in s.60CC (2) the court is to give greater weight to the consideration set out in s.60CC (2)(b).
The primary considerations do not assist me in this case.
It is important for [X] to have a meaningful relationship with her father, but this can occur regardless of where she lives. His role in hers life will be different if she lives primarily with the maternal grandparents but he will still be able to provide her with nurture and guidance and have a relationship with her which is significant meaningful and valuable to her.[6]
[6] Mazorski & Albright Mazorski & Albright (2008) 37 FamLR 518
There was no evidence which would support a finding that the maternal grandparents were likely to fail to promote this relationship or likely to do or say things which might undermine it if [X] lived with them. Their motivation in these proceedings is not to keep [X] away from the father for the sake of it.
There was no suggestion that [X] was likely to be exposed to or subjected to abuse neglect or family violence in the care of either the father or the maternal grandparents.
The father is concerned about the maternal grandparents handling of [X]’s head lice problem recently and the maternal grandparents are concerned about the mental health of the father and his wife but these matters are more appropriately dealt with as part of an assessment of parenting capacity rather than by trying to decide whether [X] has been in the past or might in the future be neglected in one household or the other.
The first of the additional considerations in s.60CC (3) is 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.
None of the parties claimed that [X] was expressing a wish about where she should live, and Dr R said as follows:
Discussing the time she spends with her father, [X] reported it occurred for a “little bit” every second weekend. She stated that Nan had told her to say where she wanted to live when she is older and then declared she “want(s) to stay with Daddy forever, wants to stay with (MGPs) forever” and she does not know what to do.[7]
[7] Dr R’s report page 3
The next additional consideration is the nature of the relationship of the child with each of her parents and any other persons including any grandparents or other relative of the child.
[X] has a close and loving relationship with her father and with her maternal grandparents.
[X] also has a very good relationship with her best friend [Z], who she mentioned to Dr R, and a reasonable although perhaps not especially close (it is difficult to tell from the limited evidence) relationship with her aunt Ms T and cousin [A] who is in the year above her at school.
[X] has made negative comments about Ms M to the maternal grandparents in the past fifteen months. However the relationship between the two sides of the family while functional has not been cordial for much of the period since the father retained [X] in March 2010, something [X] must inevitably have picked up on, and the maternal grandparents readily agreed during cross-examination that little if any weight could be given to comments [X] made to them from time to time about her step-mother because of the risk that [X] was saying things which she thought might please them.
The maternal grandfather very fairly said as follows in his affidavit:
I still don’t know if [X] is saying things to us about Ms M because she thinks they are things that I want to hear, or if she is simply having trouble fitting into a blended household with four adults and four children.[8]
[8] Paragraph 66 affidavit of Mr Winston filed 31 October 2013
Of greater concern is that [X] said a number of things to Dr R which suggested that she did not have a good relationship with Ms M or

Ms M’s children. Dr R reported as follows:
In 3 houses, in which she could decide who lived where, [X] decided –
1.With her – [Y] and [Z]
2.Next door, to see whenever she wanted – Nan, Pop, [A], Aunt [Ms T], Daddy, Mum
3.Far away, never to see again – [B], [C], Ms M.[9]
[9] Dr R’s report page 4
Dr R also reported that:
When asked if she likes Ms M, [X] replied “kind of”. To an enquiry if Dad and Ms M fight, she stated “yes, not much”, at which times Dad goes into his room and shuts the door and Ms M could take a drive or go to poker. Questioned if they “yell and scream and swear” during their fights, she said “only yelling”. [10]
[10] Dr R’s report page 3
Dr R considered that caution needed to be exercised when considering the meaning which could be attributed to these statements. She said as follows:
Her relationship with her stepmother and stepbrothers are more complex and no doubt influenced by the MGPs’ views of Ms M. At this assessment, [X] initiated positive engagement with Ms M. Her complaints about her stepbrothers were of no real concern and her interactions with [B] were very appropriate.[11]
[11] Dr R’s report page 17
Dr R also said as follows:
At this assessment, [X]’s allegations about Ms M were not overly concerning given the context and her wish – she would like her parents back together again – and she does not like to share her father with [Y] (and probably Ms M). She was able to report positive activities with Ms M and, as previously discussed, engage with her reasonably well during their family appointment.
I suspect her placement of Ms M and the boys in the house “never to be seen again” and having the stepmother die in her animal play with her therapist is more about her wish for an intact family and no conflict than about Ms M as an abusive stepmother. Undoubtedly being cared for by Ms M is not (Dr R’s emphasis) the same as being parented by her mother and [X], missing her mother (both in 2010 and now) speaks negatively about her stepmother. As Ms S indicted, it is difficult to know the causal factor for her complaints – was it about her actual experiences with Ms M or about her wish to live with her mother.
Dr R did not express a concluded view about the nature of the relationship between [X] and Ms M or between [X] and her stepbrothers but she did say that:
On balance, I believe Ms M being part of Mr Medland’s household is not a good reason for [X] to not be returned to him.[12]
[12] Dr R’s report page 19
Dr R prepared a thorough report and none of the parties challenged the factual accuracy of anything in the report. Dr R’s conclusions were thoughtfully reasoned and logically founded on the information available to her, and she answered all questions put to her during cross-examination in a thorough and thoughtful manner. I place considerable weight on Dr R’s report and on her conclusions about the significance of the statements [X] made to her about Ms M.
The father said that [X] had a “normal sibling relationship” with [B] and [C] in that they had their moments but got on at other times. Given Dr R’s evidence I am satisfied that this is likely to be the case.
It was generally accepted that [X] had a good relationship with her sister [Y] who is 5 years her junior. She and [Y] lived in the same household between March 2010, when [Y] was 5 months old, and October 2011 when [X] returned to live with her mother.
The next additional consideration is the extent to which the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or to communicate with the child.
The father has always been an interested and involved parent. [X] spent almost equal time with him for the first year after separation and for the next three years she spent each alternate weekend and time during the holidays with him.
[X] lived with the father between March 2010 and October 2011 and she has spent alternate weekends and time during the school holidays with him from that time onwards, subject to a disruption around the time of her mother’s death and leaving aside the further disruption in June/July 2012 when the father took her from school.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the children.
This was not an issue in the proceedings.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of any separation from a parent, any other children or other person with whom he or she has been living.
The father’s proposal will involve a complete change in [X]’s circumstances; a change from living with the maternal grandparents, a change of school, separation from her best friend and a change of community, and also a change from living in a small household to becoming part of a blended family.
The father claimed that the change would be beneficial because [X] would commence living with her surviving parent who was a loving and involved father who could provide her with a good level of care and she would be able to grow up with her sibling [Y].
The father did not accept that [X] would have any trouble adjusting to life in his household and did not accept that she might feel lost or left out in a household of four adults and four children.
The maternal grandparents disputed that such a change would be beneficial for [X] and I cannot make a finding about the likely effect of such a change until I make findings about all of the s.60CC matters.
I must consider the practical difficulty and expense of the 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.
The maternal grandparents and the father live approximately 4 hours driving distance apart. This situation has existed for years and it was not suggested that any party should consider relocating.
The parties have installed Skype and [X] is able to communicate with each party by this method when she is with the other, but the distance the parties live apart means that if [X] lives with the maternal grandparents the father will not easily or frequently be able to do the things which parents often do such as attend school assemblies, parent teacher nights, sports days or extra-curricular activities.
The father would have to make a special effort to attend things such as the end of year school concert and he will probably not be involved much with [X]’s homework or school projects, as it is unlikely that she will want to take these things with her on weekend or school holiday visits.
I must consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including her emotional and intellectual needs.
The father is on a Disability Support Pension and Ms M receives family tax benefits including a Carers pension for [C].
The father has just commenced studying for a [qualification omitted] and hopes to obtain work in due course in a field such as [omitted]. He is studying full time and if all goes well will complete the degree in three or four years.
The father and Ms M were adamant that they managed their finances well. There is no reason to doubt that and the fact that the father’s family are dependent on Centrelink benefits is not a disqualifying factor as far as the father having the care of [X] is concerned.
Since separating from the mother the father has moved several times and the children in his care have attended several different schools. [X] attended two different primary schools when she was in the father’s care in 2010 and 2011 ([E] School and [W] School) and if she returns to live with him she will be enrolled in yet another school, [G] School.
The father maintained that there would be no more changes as he would be able to stay in his current accommodation in [R] indefinitely. However given that the father is renting and has moved on several occasions in the last few years it is impossible to be sure if this will be the case.
The father’s physical health has been a concern in the past. Ms S described him as obese in late 2010 and he agreed that at that time he weighed up to 170 kilograms. Problems caused by his weight were one of the reasons the father gave for resigning from his employment with [omitted] in March 2012.

In March 2013 the father had gastric banding and he has lost a dramatic amount of weight since then. Dr R, who saw him in April 2013, described him as overweight but he appeared of normal weight to me in November 2013.
The father’s physical health is not currently a problem for him.
A more significant issue is the father’s mental health.
The father was diagnosed with ADHD as a child and was medicated and was under the care of the Adolescent Mental Health Team.
At 23 he was diagnosed with depression. He told Ms S in November 2010 that he had suffered from depression on and off over the years and that all his depressive episodes had been reactive to stressors in his life.
The father told Ms S that about two weeks prior to the report interviews he “had a breakdown” reactive to the issues concerning [X] which led to him being unable to function for three days and also led to him having a motor vehicle accident. He said that his GP had placed him on a Mental Health Plan and referred him to Auspsych for counselling.
The father professed during cross-examination to remember little about what had occurred at this time.
In February 2011 the father was taken to [omitted] Hospital by ambulance. The hospital notes state that what led up to this was that the father crashed his car and ran off into the bushes but eventually went to the police and asked for help and was taken to hospital. The father is recorded as saying that everything had been getting on top of him and that he had had a minor argument with his wife.
It was at this time that the father was diagnosed with Bi-Polar 11, and he was prescribed Somac and Sertraline.
It seems unlikely that the father got back onto an even keel after this because on 29 March 2012 he resigned from his employment with [omitted] and in the email he sent informing [employer omitted] of his resignation he said as follows:
As you are aware I have had a significant amount of time off work in the past 18 months to 2 years due to health problems and mental health issues.
On 31 March 2012 the father consumed an entire bottle of vodka in 5 minutes and cut himself superficially on the stomach with a fan. Police were called and he was taken to [omitted] Mental Health Unit by ambulance. Hospital notes record that the father initially said that he wanted to commit suicide but later denied that he had such thoughts. During cross-examination the father that this was not a suicide attempt rather it was a cry for help.
Hospital notes record that the father’s actions had been preceded by an argument with Ms M.
The father was not admitted to hospital on 31 March 2012 but his medication was adjusted. Ms M said that his dosages were increased.
The father currently takes Epilem and Zoloft daily. He agreed that Epilem was a mood stabiliser and Zoloft an anti-depressant.
Neither the father nor Ms M mentioned this incident in their affidavits and when asked about it during cross-examination professed to remember little about the surrounding circumstances save that there had been an argument. I found their answers unsatisfactory and evasive.
In April 2012 the father commenced seeing Mr C, who has been a registered psychologist for nearly 10 years. Mr C prepared a report for the father for these proceedings and I found him a pleasant and responsive witness.
In his report Mr C said that the father presented with the following issues:
·Episodes of hypomanic and depressed mood
·Suicidal Ideation
·Relationship issues with his spouse
·Anger management
Mr C said that the father also reported he had a challenging parenting situation. In April 2012 the mother was alive and [X] was uneventfully spending time with the father pursuant to court orders so this could refer to issues within the father and Ms M’s household, but it is impossible to know.
Mr C said that he was satisfied that the diagnosis of bi-polar 2 was appropriate.
Mr C reported that:
Mr Medland’s psychological health was having a negative impact on his work capacity at presentation. He reported that at the end of 2011[sic] he ceased employment for mental health reasons as he was having difficulty dealing with people.
Mr C has seen the father on many occasions since April 2012 and he has a very positive view of the father’s progress and current situation. He said as follows:
Mr Medland has responded very well to treatment.
He has been able to combine pharmacological and psychological strategies to effectively manage his symptoms.
He has now maintained a high level of functioning (often in stressful circumstances) for an extended period of time. In my opinion his functioning is now within the normal range.
Mr C said that with the father’s current high level of functioning he had no reservations about his current parenting capacity, and while he conceded that relapse was possible he did not consider it highly likely.
Before considering the implications of the father’s mental health for these proceedings I intend to outline the concerns about Ms M’s mental health.
Ms M has been seeing Dr M, a psychiatrist, since 24 May 2012 and he prepared a report for these proceedings.
In his report Dr M set out what he described as Ms M’s complex history. He reported that Ms M had a “terrible childhood” involving drunkenness, discord between adults and lack of affection. She was diagnosed with a generalised anxiety disorder at 15 and was reported to have had previous severe depressive episodes.
Ms M had severe post-natal depression at 21 and was treated with a variety of medications. At one stage she developed brief overvalued or delusional ideas or at least hypochondrical obsessive thoughts and was treated with anti-psychotic medications.
Ms M told Dr M that she came off the medications and stayed well until her grandmother became ill and she discovered that her father was not her biological father and she then resumed taking anti-depressants.
Ms M said that she ceased taking anti-depressants when pregnant with [Y] and stayed off them after [Y]’s birth but gradually became unwell.
On 13 May 2012 Ms M was admitted to hospital with the symptoms of a stroke. No physical cause could be found for her symptoms however and she was further evaluated on 17 May 2012 and referred to Dr M.
Dr M said as follows about Ms M’s situation in May 2012:
Ms M believed she had not been fully well for the last four years. She believed that in recent months she had become gradually more and more depressed to the point where she now felt lost, confused, anxious, sleep disordered, socially withdrawn, with little to look forward to, little or no pleasure, exhaustion, low energy, and a variable appetite, swinging between extremes. She was often irritable. She was petrified of dying she told me, but she denied suicidal wishes. She had recently developed panic attacks, associated with nausea, dreads and a fear of becoming severely ill again.
Ms M was discharged from hospital on 24 May 2012 but has continued to receive treatment from Dr M.
Dr M said during cross-examination that he considered that a diagnosis of Bipolar II disorder for Ms M was appropriate. She takes prescribed medication and has been attending psychotherapy.
Dr M said as follows his report about the situation at present:
Over the ensuing months until the present time, Ms M has dealt with a number of significant stressful life events, including court hearings and assessments for court, her mother’s emergency cardiac surgery following a heart attack, her biological father’s episodes of illness, illness affecting her daughter [Y] and requiring hospital admission, and her own surgery for carcinoma of the cervix.
During this time she has shown a steady improvement in her mental state, which I attribute to a number of factors, including her regular consultations with a psychologist for psychotherapy, her compliance with her prescribed medications which allowed her to emerge from her depressive state and to lose her agitation, and a stable and mutually supportive relationship with her husband.
Dr M further said:
While it is always possible for Ms M to have a relapse into an episode of depression, the chances of this occurring have been significantly reduced by her remaining on an anti-depressant and having her level of anxiety modulated by medications, and also by her assiduous psychological work in therapy. She has shown an excellent capacity for developing rapport with myself and with other therapists. I believe she has also improved her ability to monitor her own progress and to take any necessary steps in the event of her becoming distressed.
Dr M said that he had confidence in Ms M’s capacity to be a loving, thoughtful and responsive mother who was capable of providing the best care for her children. He said that while relapse was possible he considered that it was unlikely at present.
The father’s counsel submitted that the issue of father and Ms M’s mental health had been made out to be bigger issue than it was. Both he and counsel for the Independent Children’s Lawyer (who supported the father’s application that [X] live with the father) submitted that there was no evidence that the previous unwellness of the father and Ms M had impacted on any of the children in their care.
Counsel for the Independent Children’s Lawyer went as far as to submit that concerns about the incident on 31 March 2012, when the father consumed the bottle of vodka in 5 minutes and cut himself and had to be taken to hospital by ambulance, had been overblown. None of the children were at home at the time and the father was not admitted to hospital but only treated in Outpatients.
I do not accept these submissions.
It is important to remember that the mental health of the father and

Ms M did not decline because they considered themselves blamed for the mother’s death. The father had an acute episode on 31 March 2012 and Ms M was admitted to hospital on 13 May 2012.
Ms M was unwell for a considerable period prior to her admission to hospital on 13 May 2012. She described symptoms to Dr M which common sense suggests must have impacted on her capacity to parent the children and function in the household.
Ms M was in hospital for 11 days. She was unavailable to care for her children during that period and the father was distracted from his parenting tasks by the need to support her.
It is of considerable concern to me that neither the father nor Ms M mentioned the incident which occurred on 31 March 2012 in their affidavits and that the answers they gave when asked about it during cross-examination were unsatisfactory and evasive.
In April 2012 the father told Mr C that his psychological health had been having an impact on his work and presentation and it is naïve to suggest that the father’s mental health issues prior to 31 March 2012 were having no impact at home.
I cannot be certain exactly what the impact the father and Ms M’s mental health issues on their parenting capacity was prior to 31 March 2012 in the case of the father and 13 May 2012 in the case of Ms M. They are the only ones who know that. However there is no merit in the submission that they would have had no impact. They must have had an impact.
I accept the evidence of Mr C and Dr M that the father and Ms M are currently well and that they are functioning well as parents. It is greatly to their credit that they are taking their prescribed medication and are engaged with their treating health professionals. However both treating professionals agreed that there was always the possibility of relapse.

Dr R said the same and said that it concerned her that the most recent acute episodes in relation to the father and Ms M had been in 2012 in other words not so long ago.
The fact that a parent has a mental illness does not necessarily mean that they should not have the primary care of a child, nor does the possibility that they might relapse automatically disqualify them in this regard. However every case turns on its own facts and [X], the child I must make a decision about, is a particularly vulnerable child. She suffered a sudden and unexpected separation from her mother in March 2010 and grieved at the loss. She returned to live with her mother in October 2011 only to lose her suddenly and completely on 17 May 2012.
Dr R said that it was very important that [X] suffered no further loss and sudden unpredictable change in her life if it could be avoided, and that while it was impossible to predict everything what could be predicted should be avoided as much as humanly possible.
If the father and/or Ms M suffer another incident or incidents of unwellness, and this cannot be ruled out, it could result in [X] being exposed not only to a period of less than adequate parenting but to further sudden change.
Another aspect of the matter which seems to have escaped everyone’s attention, and the reason why the incident of the father consuming the vodka cannot be dismissed as being of no consequence, is that the father was also expressing a wish to die and could have died, and the result of his actions that day was that he was taken from his home to hospital by ambulance.
One of [X]’s greatest fears is that her father will die like her mother. She was at home on 17 May 2012 when ambulance officers tried desperately to restart her mother’s heart. The likely effect on [X] of witnessing an incident such as the vodka incident is too awful to imagine.
Ms M being taken to hospital by ambulance, as she was on 13 May 2012, would also be likely to have a more serious impact on [X] than on another child.
It is true that if [X] spends time with the father as opposed to lives with him she could still be exposed to such incidents, but the risk of it is reduced if her time with him is less.
There are two other issues which require consideration in the context of assessing the capacity of the father to provide for [X]’s needs.
Ms M has a number of criminal convictions. Three involve either dishonesty or using offensive language and are 15 years old and three are driving offences but she has two convictions for common assault, one committed in December 2005 and the other in May 2008. Both convictions resulted in her being fined.
According to Ms M both incidents involved her having a fight with other females.
On the first occasion Ms M said she slapped [C]’s father’s girlfriend after a slanging match and on the second occasion she slapped and punched a different female after a fight in which she was also slapped.
No information was provided about the state of Ms M’s mental health at the time of these incidents and the last conviction was five years ago, but sitting there in the background they do create an increased concern that something could go wrong for the Medlands again in the future.
[C]’s special needs are in the same category.
Ms M’s older son [B] attends [N] School and is in the gifted and talented program. His father lives in [omitted], about 20 minutes from the mother’s home, and [B] spends time with his father each alternate weekend and each Friday overnight to Saturday. No issues of concern were raised about [B].
[C] however has been diagnosed with Oppositional Defiance Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD) and either Asperger’s or an Autism Spectrum Disorder. He is under the care of a paediatrician and is medicated with Catapres and Concerta which he takes twice a day during school terms and for part of the time only (on medical advice) during school holidays.
Ms M said that in the not too distant past [C]’s father attempted to reconnect with him but after five visits said that he did not wish to see [C] again because he could not handle his behaviour.
It would be unsafe for me to draw any conclusions from that when I know nothing at all about [C]’s father and any surrounding circumstances, and Ms M and the father both said that [C]’s behaviour was not a problem within their home. There was nothing in the evidence which would cause me to doubt that, but the fact that [C] has special needs and requires special consideration and treatment within the household is something sitting there which could unexpectedly cause a problem.
One of the things I am specifically required to consider is the capacity of the father to provide for [X]’s emotional needs and in the context of this case it is an important issue. If I make the orders the father is seeking [X] will have to adapt to a change of school and a change of living circumstances (from being an only child in a household to being one of four children) and if the father lacks empathy for her and lacks insight into her emotional needs [X] may struggle to adapt to this change.
Dr R agreed with this and said that this issue may be a “deal breaker.”
I have concerns about the father’s empathy for [X] and his capacity to provide for her emotional needs.
It is regrettable that the father has chosen on the majority of occasions in the last 12 months to delegate the task of collecting [X] from and returning her to [S] to his friend Mr R. I accept that it would have been difficult for the father to attend on Friday’s during the semesters when he was studying, but he conceded that he could have gone on Sunday and delegated the take of collecting [B] from [omitted] to Mr R.
The impression created is that the father prioritised collecting Ms M’s child to collecting his own daughter. It also removed any opportunity for the maternal grandparents and the father to start talking to each other regularly about [X].
However I need to be cautious about drawing too much from this because [X] may not have taken anything from it and I may be looking at it from too critical an adult perspective.
My major concerns about the father arise out of his actions on 23 May 2012, 7 June 2012 and 18 August 2013.
Criticism was levelled at the maternal grandparents for their behaviour in the week following their daughter’s death but the father was not very diplomatic in his dealings with the maternal grandparents in that week. His assertion that [X] was now 100% his and his decision to travel to [T] on 23 May 2013 without notice to the maternal grandparents was ill-advised.
It is regrettable that the father did not obtain early legal advice concerning s.60K of the Family Law Act 1975 and was not apprised of the fact that he did not have any right to demand that [X] live with him. It might have saved everybody some heartache. I cannot be certain that the father was not given that advice but the manner in which the father’s solicitors dealt with the situation after the father removed [X] from school makes me suspect that he was not.
On 7 June 2012 the father again drove to [T] without notice to the maternal grandparents and removed [X] from school and took her back to [E] where he was then living.
This action showed a complete disregard for [X]’s well-being and smacks of being about the father asserting his rights. [X] had gone to school that day believing that she would be returning home to the maternal grandparents and would be going to [H] School the following day. She was abruptly removed and was not given the opportunity to say goodbye to her maternal grandparents or her school friends or her teacher.
[X] may have been happy to see the father on 7 June 2012 as he asserts (although there was conflicting evidence about this) but she can have had no idea that the father did not intend to return her to [T].
The father ignored the advice of the school that he should allow a court to sort the matter out and he imposed a sudden unexpected change on a child who had lost her mother only three weeks earlier.
There was no sign in his affidavit that he had since reflected on his actions and recognised their potential to cause distress for [X]. He went to some lengths to assert that [X] was happy to be home.
On 18 August 2013 the father failed to return [X] to the maternal grandparents at the end of a weekend visit because he was concerned about some scabs on her head caused by head lice. This was yet another unforeseen unsettling event for [X], who had previously been twice retained by the father for varying lengths of time. It had the real prospect of causing her distress and anxiety.

The withholding may only have lasted 24 hours and [X] may only have missed one day of school but it is of concern that [X] was not returned to the maternal grandparents until solicitor’s letters were exchanged.
As I observed to the father’s counsel during submissions there were a number of ways in which the father could have dealt with his concerns about the head lice issue. He could have picked up the phone and talked to the maternal grandparents about his concerns, or written to them about his concerns or had his solicitors write to them: anything rather than withhold [X] yet again.
No issues were raised about the maternal grandparent’s capacity to provide for [X]’s day to day needs. They were not challenged in cross-examination about their management of the head lice issue.
It was raised as an issue that they were almost 64 and 61 and will be 72 and 70 in nine years’ time when [X] turned 18. However neither of them has any serious health problems and even if they do develop physical problems in the next 9 years it does not follow that those problems will disable them from caring for [X].
They do not have any mental health issues, drug or alcohol issues or a criminal record.
There was no evidence that the maternal grandparents currently had an overwhelmingly negative attitude to the father or Ms M. Their evidence that they would agree to [X] living with the father if that was her wish (although they would still have their concerns about it) is evidence enough of that.
Counsel for the Independent Children’s Lawyer submitted that the maternal grandparents also lacked the capacity to provide for [X]’s emotional needs, and there can be no doubt that they have not always been able to contain themselves over events surrounding the retention of [X] in 2010 and their daughter’s illness and death. Their behaviour at the hospital in October 2010 was completely out of order and exposed [X] to a distressing scene.
However the difference between the two situations is that if [X] remains with the maternal grandparents she will not have to adapt to a change whereas if she moves to live with the father she will have to adapt to a major change: a change of school, a change of location, a change from being an “only” child to living in a very full household. Dr R commented that she could struggle to adapt to the change and that it was essential that her caregiver be sensitive to what was happening for her.
[X] is settled at school in [T]. She has been elected a class councillor and is comfortable with her peer group. She has a close best friend, [Z].
The maternal grandparents were questioned about [X]’s absences but there was no evidence that she had had an unjustifiable number of absences or that they were affecting her academic performance.
[X] has a psychologist in [T], Ms C, to whom the maternal grandmother takes her when as the maternal grandmother described it “things get difficult for [X]” in terms of the loss of her mother.
I must consider the child’s maturity sex and background.
This is not relevant as a separate consideration.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
Insofar as he has been a keen and active part of his daughter’s life the father has demonstrated a good attitude to the child and the responsibilities of parenthood in the past.
I must consider any issues of family violence and the existence of any family violence orders but family violence is not an issue in this case and there are no family violence orders.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
I wish that I could be sure, after all [X] as gone through, that any order I made would last for the remainder of her childhood and adolescence but of course I cannot. Unexpected health issues or accidents could intervene for any of the parties and no orders I make can prevent this.
I can only hope that each of the parties allows [X] to settle peaceably into the regime which is place following this decision regardless of their own disappointment about the outcome.
It concerns me that the father chose to withhold [X] in August 2013 because of scabs on her head caused by head lice. Unless the father learns a different style of dealing with issues which concern him not only might [X] be made anxious and distressed but the matter might end up back in court again sooner rather than later.
I must consider any other relevant fact or circumstance.
The relationship between the maternal grandparents and the father and Ms M has been poor for much of the period since March 2010.
The maternal grandmother said that she and the maternal grandfather and the father had been getting on better in the last 12 months, and certainly the changeovers which they have all attended have been uneventful and none of them displayed any overt animosity to the others in the witness box.
The maternal grandmother said that she had been rebuffed in her attempts to talk to Ms M. Ms M denied this and it is impossible for to make a finding about where the truth lies, because this does not come down to issues of credit but to the fact that there can be genuine differences of perception in situations such as this.
However while during the last fifteen months the parties have been able to get along well enough most of the time I have concerns about the future and consider that the possibility of trouble erupting between them may be just under the surface rather than buried deep.
The father decision to withhold [X] on 18 August 2013 rather than adopting a course involving meaningful and respectful communication with the maternal grandparents causes me concern, and while Ms M fell in readily enough with the suggestion by Counsel for the Independent Children’s Lawyer that she was willing to start communicating with the maternal grandparents in paragraph 43 of the affidavit she swore only a month ago she said the exact opposite.
I am not saying that all the problems are on one side; the maternal grandparents have behaved badly in the past, notably at the hospital in 2010. What I am saying is that the potential for trouble to erupt again is all too real. No suggestion was made in the proceedings however about how the parties could be helped to develop a more co-operative relationship around the care of [X].

Parental Responsibility

The presumption in s.61DA of the Family Law Act 1975 has no relevance in this matter because the dispute is between the father and the maternal grandparents.
The father and the maternal grandparents both proposed an order for equal shared parental responsibility between the three parties.
If [X] lives with the maternal grandparents this is entirely appropriate. If she lives with them then they must be included in major long term decision making and while the parties do not have a first class capacity to communicate not too many major long term issues will arise, and it is important for [X] that the father, whose role in her life she values and whose role in her life is so very important, have the opportunity to have a say about major issues in her life.
If [X] lives with the father an argument for the maternal grandparents to be included in decision making is less compelling, but it was not an issue in dispute between the parties.
I will therefore make an order for equal shared parental responsibility between the three parties as they each sought.

Dr R’s evidence

Dr R set out at length in her report the pros and cons of each household and after doing so she offered the following opinion:
Both of these households have merit and [X] could be cared for by either of these couples available to her. However, the Winstons appear more likely to offer her the stability she needs as both Mr & Mrs Winston are in a settled period in their lives and neither have the chronic relapsing psychiatric illnesses, which are significantly influenced by stress and may impair parenting, the Medland’s unfortunately suffer from.
It is vital for [X] that she be able to maintain and strengthen her relationships with the father and his family. She should spend regular time with him and have extended period (sic) with him during school holidays. Should the Winstons be unable to continue to care for her in the future, it would be appropriate she move to live with Mr Medland.
Dr R was cross-examined at length. She provided careful thoughtful answers to all the questions she was asked and she did not resile from this opinion although she was careful to say that she did not class it as a recommendation.
Dr R was asked about the relevance of the fact that Ms T and her daughter [A] were no longing living with the maternal grandparents. She said that she had considered it an advantage that Ms T and [A] were living there because it meant that [X] would not effectively be an only child in the household but she did not consider it a “deal breaker” that they had moved out.
Dr R was pressed by Counsel for the Independent Children’s Lawyer to concede that there would be benefits to [X] in growing up with her sibling [Y] and she conceded that this was the case. She did not concede however that this was a deal breaker either.
Dr R was asked whether it was possible that if [Y] lived with the father but [X] did not [X] might ask why that was the case and perhaps think it was because she had done something wrong. Dr R said that she did not consider that this was likely. She said that even if [X] did not live with the father she would still be having plenty of contact with him and would have a felt experience of being loved and cared for and it would be obvious enough to her that her circumstances were different to [Y]’s.
Dr R said that the outcome with this rested with the father who could reassure [X] that she was important to him and that it was not her fault that she did not live with him.
Dr R did not agree that the maternal grandparents’ age or possible health problems were a deal breaker and said that there were some advantages in them being mature.
Dr R was asked about the advantage to [X] of growing up in a sibling group rather than as an only child. She said that there were advantages to this but what it came down to was the quality of her the parenting provided to her. She said as follows:
She is a child who is starting at a disadvantage and she needs a quality of parenting which is above average, where she is monitored, where somebody is actively reflecting on how [X] in particular is travelling – perhaps she does need a special place not so much to be made special in a negative sense but she is special in that she has had a lot more wrong things happen to her than her siblings….in a way she might need that special consideration…things need to be paid attention to without going overboard and making her feel deviant and different.
Which set of parents have the presence of mind, the maturity, the awareness to know what her needs are and be able to meet them …which set of couples are likely in the face of adversity and every day adversity to stay more attuned to [X]?
Dr R also commented that the Medlands would need a fairly high level of parenting capacity to bring all the children together and help them develop into a sib ship which provided the benefits of being in a sib ship.
Dr R observed that if [X] stayed with the maternal grandparents there would be no change of school or community or neighbours whereas if she was to live with the father she would have to adapt to something yet again, and said that in these circumstances the issue of whether the father had the capacity to assist her to adapt to that change was something she considered a deal breaker.

Conclusion

The Independent Children’s Lawyer supported [X] being placed with the father.
Counsel for the Independent Children’s Lawyer submitted that the matter was finely balanced but the father and Ms M were capable of providing “good enough” parenting for [X]. She submitted that while [X] might face a short term challenge in adapting to a change of residence she would achieve the long term benefit of being brought up with her sibling [Y] and by her surviving parent.
The father’s counsel reiterated these arguments and submitted that the mental health issue had been made bigger than it really was. He submitted that the court should treat the fact of parenthood as a significant factor in the case.
I agree with the submission by Counsel for the Independent Children’s Lawyer that this is a finely balanced case but in my view the balance tips in favour of not imposing a further change on [X] and of leaving her in the care of the maternal grandparents.
[X] is settled in the home of the maternal grandparents and at her school and in [T] and she not expressing a wish to change where she lives.
[X] has had two huge changes imposed on her during her life: her separation from the mother in March 2010 and the loss of her mother in May 2012. It would be highly detrimental to her if she had to suffer further unexpected changes or a change to which she struggled to adapt.
If an order was made that [X] commence living with the father the change could be managed so that it was calm and predictable and so that [X] had a chance to get used to the idea of it before she actually moved, indeed it was agreed that if the change was made it should commence from the beginning of the 2014 school year. However [X] would still need to adapt to a change of school and community and to living on a full time basis in a noisy busy household with three children and four adults.
[X] did not adapt to this well in 2010-11 – Ms M acknowledged this when interviewed by Ms S and Ms S observed it. However then the mother was still alive and [X] was missing her badly. The mother is no longer here so that pull would not be a distraction for [X] in the father’s household.
Nevertheless adaption would be required and Dr R emphasised how important it was because of [X]’s past that someone be focused on her and be monitoring her and be empathic to her and I am not convinced that the father can be relied on in that regard even when there is no intervening difficulty with his mental health.
In June 2012 and August 2013 the father acted in ways which were contrary to [X]’s best interests and he has never shown any recognition of this.
There is also the risk of future upheaval in the father’s household.
I do not accept that I should be unconcerned about the past mental health issues of the father and Ms M when there were critical incidents in regard to both of them only 18 months ago, when each has a long history of mental health difficulties exacerbated by stress and when the potential for stress in the household in the future is real.
A recurrence of mental health difficulties for either of the Medlands could lead to a decline of parenting standards in the household, another unexpected change for [X] or even to [X] being exposed to a frightening experience.
The fact that Ms M has a number of convictions including two for assault and that [C] has special needs do not by themselves tip the balance one way or the other but they do emphasise that there are matters in the background in connection with the Medland household which do not exist for the maternal grandparents household. The maternal grandparents have the capacity to provide [X] with calm uneventful and caring parenting without these risk factors sitting in the background.
I acknowledge that if [X] remains with the maternal grandparents she will lose the chance to be brought up by a parent. I have had regard to the cases to which the father’s counsel referred me and I am conscious of a decision of my own made within the last month in a dispute between a mother and a grandmother in which I ordered that the child live with the mother, but every parenting case turns on its own facts.
I am satisfied that in this particular case [X]’s best interests require her to be placed with a grandparent rather than a parent.
It is a shame that the father does not live closer to [X] because if he did he could perhaps see her more frequently than once each fortnight and he could be more involved with her school life. However he can still have a meaningful relationship with [X] without those opportunities.
[X] will have the opportunity to have a good relationship with her father if she remains with the maternal grandparents. The two sides of the family have a functional if not especially cordial and warm relationship. The father is not denigrated in the maternal grandparents’ household and [X] will still have the chance to have a good relationship with her sibling [Y]. When [Y] is older she might even be able to visit [X] in [T].
I am acutely conscious of the fact that the father will be disappointed by this outcome and may consider it very unfair.
The father has been an interested and involved father throughout his daughter’s life. I accept unreservedly that he did what he thought was necessary in March 2010 to protect her from Mr D who may well have been a perpetrator of sexual abuse.
The father is in a good place in his life at the moment, having worked hard to deal with his mental health issues. I accept that at he feels eminently capable of parenting his daughter and that he would not willingly place her at any risk of harm.
Prior to adjourning on the 13th of November I told the father that I admired him, and I do.
The father did not ask to be dealt a hand in life which included mental health difficulties, and I admire the persistence he has shown in dealing with and attempting to overcome those difficulties.
It is admirable that the father has embarked on study with a view to obtaining a degree, and admirable that Ms M has similarly persisted in dealing with her mental health issues.
I am sad for the father because I understand that he will be disappointed by the outcome, but I have to make the order I consider to be in [X]’s best interests not in the interests of any of the parties. I am satisfied that in [X]’s particular circumstances the pros of leaving her where she is and not imposing a further change on her outweigh the pros of moving her.
I am fortified in that conclusion by the fact that it was also the opinion of Dr R, who prepared a very thorough report and obviously gave the matter considerable thought.
The father’s counsel was critical of the maternal grandparents for saying that if [X] had expressed a wish to them to live with the father they would not have opposed it, and Dr R said that in her view the choice of where [X] lived should be made by the adults and not left to [X].
I accept the validity of Dr R’s opinion, but at the same time I do consider that if in a few years, when she is in her teens, [X] expresses a wish to try living with her father then this is something the parties will need to consider.
One of the tragedies of [X]’s life is the dramatic unexpected changes which have happened to her: being unexpectedly separated from her mother in March 2010 and her mother dying in May 2012. As a young teen [X] will still need adult guidance and it will still be up to the adults to make the ultimate decision, but if [X] does express a wish in a few years time to experience living with her father then depending on the circumstances at the time the adults may need to consider whether allowing [X] to exercise some control over her own life given all that has happened to her is something which should happen, even if only on a trial basis.
I will make orders concerning [X]’s time with the father in accordance with the existing arrangements. The parties each proposed that [X] spend the Mother’s Day weekend with the maternal grandparents and I will make an order to that effect.
Dr R agreed that it would be a good idea if a third party sat down with [X] and explained to her that the court had made a decision and gave her a chance to discuss the situation and ask any questions she wanted to ask. I considered making an order delegating that task to the Independent Children’s Lawyer but she is in Newcastle and [X] is in [T] and on reflection I consider that the appropriate person to do this is Ms C, the [T] psychologist with whom [X] already has a relationship. I intend to order that the maternal grandparents arrange for that to occur.

For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 21 November 2013

[2013] FCCA 1903

21 November 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction