Wodsworth and Walberry and Anor

[2014] FamCA 28

FAMILY COURT OF AUSTRALIA

WODSWORTH & WALBERRY AND ANOR [2014] FamCA 28

FAMILY LAW – CHILDREN – Best interests – with whom the children shall spend time and communicate – application by paternal grandmother – children to spend appropriate time and communicate with the paternal grandmother so as to maintain a relationship –  parents are in a continuing relationship – parents estranged from the paternal grandmother – issues of drug and alcohol misuse and family violence in the parents’ home – the Department and both the maternal and paternal grandparents had needed to intervene to protect the children from harm in the past – hearing proceeded undefended as the parents did not attend

Family Law Act 1975 (Cth) s60CC
APPLICANT:	Ms Wodsworth

FIRST RESPONDENT:	Ms Walberry
SECOND RESPONDENT:	Mr Roberts

FILE NUMBER: NCC 634 of 2012

DATE DELIVERED: 24 January 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Powe & White Lawyers

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales  (Mr Squires)

Orders

1. That all current parenting orders relating to the children Z born … June 2008, M born … June 2009 and R born … June 2009  (“the children”) be discharged.

2. That the children live with their parents Mr Roberts and Ms Walberry.

3. The children spend time with the Paternal Grandmother Ms Wodsworth as follows:

   (a)The child Z, each Wednesday commencing Wednesday 2 February 2014 from 3.00 pm / conclusion of school that day until the commencement of school the immediately following morning.

   (b)All three children each third weekend with the first such weekend to commence on  Friday, 31 January 2014 from 3.00 pm (conclusion of school) until 9.00 am / commencement of school on the immediately following Monday.

   (c)Each Boxing Day from 10.00 am to 6.00 pm.

   (d)Such other times as agreed between the paternal grandmother and the mother.

   (e)The Paternal Grandmother may provide a copy of these Orders to the school at which the children attend.        

4. Should the children or either of them be ill and unable to attend to spend time as aforesaid, the parents are to provide to the paternal grandmother a medical certificate setting out the illness or condition of the children or child and that such illness or condition prevents the children or child from spending time with the paternal grandmother and the duration of time the children or child will be unable to attend.

5. In the case of the children or any of them being unable to spend time with the paternal grandmother, the child or children who was/were unable to spend time are to spend time with the paternal grandmother the weekend immediately following at such times as set out in par 3(b) and any such time spent shall not change the sequence of each third weekend as set out in par 3(b) herein.

6. The children shall communicate with the paternal grandmother at all reasonable times but specifically on each child/s birthday between 6.00 pm and 6.30 pm, the paternal grandmother’s birthday on … July between 6.00 pm and 6.30 pm and on Christmas Day between 9.00 am and 10.00 am.

7. The telephone communication as aforesaid to be facilitated by the mother causing the children to telephone the landline telephone of the paternal grandmother being … and should the paternal grandmother not answer any such call the mother shall cause a call to be made to the paternal grandmother on her mobile telephone service being … .

8. Each party shall keep the other informed of their telephone contact number/s and their place of residence and in the case of change such to be communicated to the other by way of text message as soon as practicable and no later than 12 hours of any change.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC634 of 2012

Ms Wodsworth

Applicant

And

Ms Walberry

First Respondent

And

Mr Roberts

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction 

1. This is an application for parenting orders by Ms Wodsworth (57) (“the applicant”) in respect of her three grandsons Z aged five and M and R (twins) aged four (“the children”).  The respondents are the parents of the children.  Mr Roberts (“the father”) (36) is the applicant’s son.  Ms Walberry (“the mother”) (31) is his partner.  The parents have been in a relationship for approximately seven to eight years. 

2. The matter was heard in the absence of the parents. They had been served with the application but did not attend the hearing.[1] 

   [1]Order 2 of Orders dated 04/10/2013 and Exhibit 2 ‘Affidavit of Service’

The Evidence

1. The documents set out below have been read and considered by me. There were also submissions on behalf of the Applicant and by the ICL. The Applicant also gave oral evidence and was briefly cross-examined.

   Filed by the applicant paternal grandmother:

   a)Initiating Application of the applicant filed 12/03/2012;

   b)Amended Initiating Application filed 14/09/2012;

   c)Further Amended Initiating Application filed 11/10/2012;

   d)Affidavit of the applicant sworn 13/03/2012;

   e)Affidavit of the applicant filed 08/11/2012;

   f)Affidavit of the aplicant e-filed 18/10/2013;

   g)Affidavit of Ms B filed 11/09/2012;

2. Filed by the respondent mother and father:

   a)Response to Initiating Application of the mother filed 21/06/2012;

   b)Affidavit of the mother filed 21/06/2012;

   c)Affidavit of the father filed 21/06/2012;

   d)Affidavit of Ms C (Maternal grandmother) filed 21/06/2012;

3. Additional documents:

   a)Memorandum to Court by Family Consultant dated 23/05/2012;

   b)Children and Parents Issues Assessment dated 11/09/2012;

   c)Memorandum to Court dated 22/03/2013.

Short history

1. On 12 March 2012 an application was made in the Federal Circuit Court (formerly known as the Federal Magistrates Court) for the applicant to spend time with the children on alternate weekends and at other special times.  Orders were sought for a drug testing regime for the parents.  In the event that the testing revealed illicit drug use, alternative orders sought were for the children to live with the applicant and spend time with their parents.

2. On 23 May 2012 the parties attended a child dispute conference.  A memorandum[2] was prepared for the Court by the Family Consultant.  At that time the parents expressed a wish that the applicant spend no time with the children.

   [2]Memorandum of Family Consultant, Ms D dated 23/05/2012

3. The applicant raised serious child protection concerns, including exposure of the children to:

   (a)Family violence;

   (b)Parental drug and alcohol misuse;

   (c)Physical harm, aggressive behaviour by the father towards the mother’s eldest child E.

4. The Family Consultant noted the vulnerability of the children together with the protective factor of their being monitored by the pre-school and day care they attended and the parent’s engagement with the Brighter Futures Program.[3]

   [3]  The parents had signed on for engagement with Brighter Futures in January 2012, affidavit of Father filed 21/06/2012, par 48

5. The mother has two older children, E (15) and F (9) from a relationship with Mr G. By orders dated 9 March 2011 E lived with the mother and F with his father. However after events later outlined in these Reasons E returned to live with his father.

6. The father described his criminal history as “deep and ugly” consisting mostly of drug related and driving offences with assault convictions as a juvenile.

7. The Family Consultant recommended a Child and Parent Issues Assessment be undertaken (CAPIA).  No agreement was reached between the applicant and the parent.  The matter was transferred to this Court and the parents directed to file relevant material.

8. On 21 June 2012 the parents filed a Response and an affidavit by each of them.  The orders they sought were consistent with the position taken by them with the Family Consultant, that is, that the children live with them and that the applicant be restrained from spending time with the children.  Further an order was sought for the applicant to “undergo a forensic psychiatric evaluation to determine whether the children spending time with the paternal grandmother is in their best interests”.

9. Both parents referred in their affidavits to being “estranged” from the applicant.  The parents set out a history of their involvement with the applicant.  The parents have lived in the home of the applicant for periods of months and also in the house next door to her.  The applicant had provided care for the children as babies and also financial assistance to the parties. 

10. The father alleged that the applicant (his mother) was mentally ill, unstable and violent.  The father acknowledged in his affidavit that he had struck his partner and blamed the applicant for his actions in this regard.[4]  The descriptions suggest dependence and hostility by the father in relation to his mother.

    [4]Affidavit of Father sworn 21/06/2012, par 27

11. The father also acknowledged being charged and convicted for an assault on his step-son E, then aged 12.  That assault was in October 2011.[5]

    [5]Affidavit of Mother sworn 21/06/2012, par 37

12. After the assault in 2011, E moved to live with his father and brother.  At this time the parents separated for a short period.  The father left the home and used amphetamines.  The mother described herself as having a breakdown.  She had applied for an Apprehended Violence Order (AVO) for the protection of herself and the children after the assault on her son E.

13. On 2 December 2011 the three children were left with E; then aged almost 13, overnight.  The mother was drinking and became too intoxicated to come home.  She stayed away overnight.

14. A friend of the applicant’s, who boarded in her home at the time, attended the parent’s home on the request of the applicant to check on the children.  She described arriving at the home at approximately 8.45 am, she observed Z, M and R outside of the home:

    All three children had on pyjamas, they were in a dishevelled state, their clothing was dirty, the twins were both wearing nappies which I subsequently changed, and the nappies were filthy.

    She went inside the home, neither parent was present, [E] was asleep in bed.

15. The applicant and her husband then came to the home, bathed and fed the children and cleaned the house.  The mother returned home smelling of alcohol and unsteady on her feet.  Subsequently the maternal grandmother also attended the home.[6]   For a few days the respective grandparents cared for the three children, who ultimately returned to live with their own parents.

    [6]Affidavit of Ms B filed 06/09/2012, pars 6-14 inclusive

16. On 25 July 2012 an Independent Children’s Lawyer was appointed and the matter was listed for an interim hearing on 20 September 2012.  The parties were directed to attend a CAPIA. 

17. On 11 September 2012 the CAPIA was provided to the Court by the Family Consultant.  That assessment recorded the continuing opposition of the parents to the applicant spending any time with the children.  At the time of interview, the children had not seen their grandmother for approximately nine months. The behaviour of the children on that day and the capacity of their parents to discipline and contain that behaviour was set out in detail.  The Senior Family Consultant had taken the unusual decision to interrupt the interview between the Family Consultant with the mother.  The Family Consultant noted that the Senior Family Consultant had advised her that: 

    The father presented as agitated and unable to control the behaviour of the children.  She observed that the father did not appear to have any strategies to manage the children and that when she had suggested that the father take the children for a walk, the father had stated he was unable to do that as ‘there are three of them and one of me.’  She observed two of the children to be violent in their behaviour kicking and punching each other, while the third children climbed onto a high table whilst in the care of the father. 

18. The Family Consultant also records that numerous staff members advised her that the children had:

    … generally presented as unusually aggressive towards one another. ‘It was noted that [Z] appeared to be targeted’ to a concerning level; had continually absconded from the child care room and in general presented with chaotic behaviour which was consistently out of control. 

19. Staff members advised that neither parent appeared to be able to place limits on the children and/or to control their behaviour.[7] 

    [7]CAPIA dated 11/09/2012, p 3, 4

20. In her assessment, the Family Consultant noted disparities between the report of each parent on drug and alcohol abuse with records produced in response to subpoena.  The COPS notes also provided details of several aggressive and violent assaults on E by the father.  Neither parent was prepared to concede in their affidavits, or in response to questioning by the Family Consultant, more than one incident or the level of physical force recorded.

21. The Family Consultant also recorded concern about the children’s ability to move between the households when there was such hostility directed by the parents at the applicant.  The Family Consultant recommended that the Department be asked to intervene and be provided with her assessment. 

22. The parents were united in telling the Family Consultant that they had identified the applicant as the problem at the heart of all their difficulties at the end of 2011.  The father certainly made allegations of serious neglect and abuse of himself by the mother during his childhood and of exposure to many undesirable male partners of hers.  I am unable to determine the truth of those allegations.  However it is established that the father has repeatedly asked his mother for and received assistance, both in the care of his children and financial support throughout the relationship between the parents. 

23. I do not accept that the applicant is the cause of the parent’s difficulties.

24. In late 2011 the father had a “change of mood”, possibly due to a change in testosterone treatment.  He struck the mother, he repeatedly assaulted his almost 13 year old step-son, he used amphetamines and he left the family.  The mother left three very young children in the care of their 12 year old brother overnight.  She became intoxicated and incapable of caring for them.  The parents appear to have been justifying their actions in the latter part of 2011 by blaming the applicant.  It was the parents who put their own children at risk and harmed them and no one else.

25. On 14 September 2012 the applicant filed an Amended Initiating Application seeking sole parental responsibility for all three children and residence with her. 

26. On 20 September 2012 the parties consented to orders for the applicant to spend time with the children at a contact centre each alternate Friday for two hours.  The applicant also consented to urinalysis for herself, despite the lack of indication for the need for that testing to be done.  The parents also consented to drug testing.

27. The applicant contacted the contact centre immediately after the orders were made.  The parents contacted the centre about four weeks later after several letters of request by solicitors for the applicant for them to do so.

28. On 11 October 2012 the applicant filed a Further Amended Initiating Application in which she stepped back from seeking residence and returned to orders for graduated time with the children, specific issues and restraining orders.

29. On 3 December 2012 the interim hearing from September was resumed.  Again, orders were made by consent.  Provision was made for the children to swiftly progress from supervised time at a centre up to a whole day.  The parties were directed to again attend on the Family Consultant, this time for a child dispute conference.  Thereafter there was regular communication between the applicant, the children and the mother.  This communication was by telephone and text and face to face.  The children stayed with the applicant during the day and overnight in various combinations.  The applicant provided financial assistance on request to the parents.

30. On 30 January 2013 the matter came before the Registrar.  The applicant and the Independent Children’s Lawyer appeared.  There was no appearance by or on behalf of the parents.

31. On 22 March 2013 the parties had the appointment with the Family Consultant.  The applicant and her husband attended.  Neither parent attended.  The mother contacted to advise that she was unable to attend due to a sick child at home.  Attempts were made to contact the mother by the Family Consultant, but the mother did not respond.  No explanation was provided as to why at least one of the parents could not attend.

32. The Family Consultant recorded the advice of the applicant that communication between herself and the mother (but not the father) had improved and that the children had spent time with her additional to the orders including overnight time.  The applicant reported that the behaviour of the twins was “incredibly difficult to manage.”  The Family Consultant recommended that a family report be undertaken.

33. On 4 April 2013 the matter came before me and was adjourned.  There was no appearance by the parents.  Time between the children and their grandmother was continuing.

34. Between 6 June and 13 July 2013, the applicant and her husband travelled overseas.  Shortly after their return, the applicant was contacted by the father.  There was a meeting between the applicant and the parents at their request.  The mother apparently said that her mother had taken over the care of the children, “because we have both been using and she says the house is filthy and a mess.”  The applicant travelled with the parents to the home of the maternal grandmother and collected two of the children.

35. On 17 July 2013 the matter came back before me.  There was no appearance by the parents.  The Court noted that the matter might be dealt with undefended.

36. On 26 July 2013 the applicant responded to an urgent call from the pre-school attended by the twins.  The children had not been collected.  The applicant collected them.  She relates a concerning conversation with the pre-school Director.[8]

    [8]  Affidavit of Paternal Grandmother filed 18/10/2013, par 10 and Exhibit 4 Contact records from DoFaCS dated 26/07/2013

37. The Director was worried about the behaviour of the mother, strongly suggestive of drug use.  The applicant saw the mother and agreed to her request to take her to see a DoCS officer and to collect Z from school on the way.  When the applicant attended Z’s school, Z was present with the School Principal and two officers from Family and Community Services.  Z had been interviewed and made statements such as:[9]

    My dad pushed my mum into the wall and it made a deep hole.

    Mum was throwing everything at dad. 

    Mum and dad fight every single day.

    [9]Exhibit 4, tag 1Independent Children’s Lawyer 

38. The DoCS officers requested that the applicant take all three children to her home.  The applicant did so.  The DoCS officers later attended with the mother and had a conversation in the home of the applicant about the mother’s conceded drug use.  The applicant signed up to a safety plan initiated by the Department for the three children.

39. From 29 July until early September 2013, the children lived with the applicant.  They spent periods of time with their parents supervised by the applicant in her home, as had been anticipated. Both parents were resentful, especially the father, about the supervision.

1. On 28 August 2013 a request was made by this Court for the Director-General to intervene in the proceedings.  That did not occur.

2. On 29 August 2013 an officer from the Department advised the applicant that the children would be returning to their parents on the following Sunday, Father’s Day, with the applicant to deliver them to the parents at the gate of the Town I Public School.  The applicant complied with the direction and her husband delivered the children to the parents at the stated venue.  The applicant has not seen the children since that date.

3. In September 2013 the applicant became aware that the father had appeared before the Local Court.  She was unaware of the charges. 

4. In the latter part of September 2013 the applicant was telephoned by a person from Z’s school.  The applicant was advised that Z had come without his lunch, stating he had not had any breakfast.[10]  The applicant asked that food be provided from the canteen.  She later attended at the school to pay the relevant $6.00.

   [10]  Affidavit of Paternal Grandmother filed 18/10/2013, par 10.45 and Exhibit 4 ‘Case Notes report 19/09/2013’

5. On 1 October 2013 the applicant through her solicitor, attempted to finalise these proceeding with orders consistent with the arrangements discussed by her with DoCS officers prior to the return of the children on Father’s Day, that is that she spend time with the children each third weekend.

6. On 2 October 2013 the applicant and her husband saw the parents and children by chance whilst driving.  They pulled over to say hello and were rebuffed by the parents.  The mother yelled abuse at the applicant; the father pulled the children away (the twins were both on leads).

7. On 4 October 2013 the matter came back before me.  There was no appearance by the parents.  The matter was listed for an undefended hearing.  The Court was advised by the parents or one of them, through the National Enquiry Centre, that they were unable to attend Court.  The call came after the Court event was over.

8. The applicant served a copy of the orders she sought, as directed.

9. I am satisfied that the parents were aware of the proceedings and the orders proposed.

10. On 5 December 2013 the matter was heard.  There was no appearance by the parents.  The applicant was present.  In the court room was the paternal grandfather, Mr H.  It was drawn to my attention by the solicitor for the applicant that Mr H and his wife were present in Court to support the application being made by the applicant.  Mr H had provided a forceful, closely typed 10 page statement entirely supportive of his former wife, the applicant.  Mr H stated that he had come to the conclusion, however painfully, that his son was dishonest, continuing to abuse drugs and immature in his conduct as a father.[11]  I attach some significance to the united position of the father’s parents.

    [11]Affidavit of Paternal Grandmother filed 08/11/2013, Annexure G

11. I was advised from the Bar table that the father was due to appear again in Local Court on 16 December 2013 and that at least to some extent, the relevant charges related to a breach of the bond that had been imposed after the father’s assault on E.  There was no evidence about that.

12. The applicant expressed a strong wish to restore and maintain a relationship with the children.  She was taken to a Departmental file note[12] which included this reference:  “Children reluctant to paternal grandmother due to excessive discipline”.  The applicant said that the Department had not raised excessive discipline with her at any time.  There was no evidence that she had been so approached.

    [12]Exhibit 1

13. There are interviews with the children who refer to having been smacked by both their parents and grandparents.  I note there is a reference to M having experienced excessive discipline, but that was an incident involving the mother throwing hot coffee and M being hurt.

14. I accept the evidence of the applicant that she has done her best in extremely difficult circumstances to maintain her commitment to the children.  She has done so in the face of an erratic response from the parents, where sometimes communication is good and at other times hostile and abusive.  I am satisfied that the focus of the applicant is on her grandchildren.

Analysis

1. These proceedings began in March 2012 in circumstances where the applicant had become concerned that the household constituted by the parents and the three children was in crisis.  The evidence bears out that view.  There was an interim hearing conducted on two separate days, where the parties agreed to have orders made for time between the children and the applicant.  Time and communication did take place after the December 2012 orders.

2. Between July and early September 2013, the children lived with the paternal grandmother at the direction of the Department.  I accept that the parents have become even more resentful towards the applicant as a result of that period of time.

3. The final hearing was undefended by the parents.  Accordingly none of the evidence presented in a wealth of affidavits has been tested.  However I have had the benefit of documents produced in response to subpoena and the three documents of the Family Consultant.

4. The evidence of the applicant in her affidavits and oral evidence is supported by the objective evidence.

The law

1. This is a parenting application where the paternal grandmother asks for specific orders which will provide time for her with her three grandchildren and a level of involvement in their lives.  Parental responsibility and residence remains with the parents.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the relevant matters set out in s 60CC(2) and (3) of the Family Law Act 1975.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

1. There is ample evidence that the children have been exposed to abuse, neglect and family violence.  Z reports having seen his mother struck by his father and all the children have been exposed to volatile arguments.  Both of the parents have been affected by drugs and alcohol to the detriment of the children. 

2. There have been times when grandparents on both sides of the family have stepped in to protect the children from further exposure to abuse and neglect.  It is essential to preserve the relationship between the applicant and the grandchildren on that basis alone.

Section 60CC(3)(b) - the  nature of the relationship of the children with each of their parents; and other persons (including any grandparent or other relative of the child)

1. The children have their primary relationships with their parents.  However they have a strong connection with the applicant, her husband and with the maternal grandmother.  Their older brother E and to a lesser extent F, are also important to them.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

1. The children have not seen their paternal grandmother, the applicant, since September 2013.  Although they are young, they are old enough to retain a strong connection with her, having seen her regularly and at times throughout their lives, having lived in her home; most recently between July and September 2014.  They will be adversely affected by not maintaining that relationship.

2. The applicant is a loving grandmother, who is determined to ensure that the children are educated, fed, clothed and are kept safe to the extent that she can achieve that.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with the applicant

1. There will be no difficulty in the children spending time with their grandmother.  It will represent not only the maintenance of relationships, but potentially helpful respite for the parents, who struggle to discipline and contain their three active young boys.

Section 60CC(3)(f) - the capacity of the children’s parents and of the applicant to provide for the needs of the children, including emotional and intellectual needs

1. The father has an extensive criminal record, which reflects anti-social conduct over the past nearly 20 years.  Under pressure the father has reverted to drug abuse.  His experienced mood changes which have led to violence being directed at a child.  He has been violent and aggressive towards the mother.

2. The evidence suggests that the father has a limited capacity to meet the children’s needs.

3. The mother has a volatile relationship with the father.  She was unable to protect her older children from the father.  Under pressure, she has abused alcohol and drugs.  She has a limited capacity to meet the children’s needs.

4. The paternal grandmother is concerned to ensure that the children attend school regularly and are fed, clothed and supervised appropriately.  I am unable to make any findings about the applicant as a mother to the father.  Given the present level of hostility between them, there may well have been parenting difficulties.  However I am satisfied that the applicant has the capacity to meet the needs of the children on a regular basis of weekend time, with the important mechanism of being available to the school in the event there is a further crisis in the family.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents and the applicant

1. Both of the parents have been indifferent to the independent needs of their children to maintain the relationship with their paternal grandmother.  When they have felt angry or aggrieved by her conduct, they have simply cut the children off, presumably in order to punish her. This behaviour is indicative of an immature attitude.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family and any family violence order that applies to the children or a member of the children’s family

1. The children have been exposed to family violence in the home of their parents.  There has been a family violence order which was put in place after the assault of E in late 2011.

2. The father is presently before the Local Court, charges unknown.

3. The orders sought by the applicant provide a mechanism for her to spend time with the children, to understand how they are progressing at school and to be available in the event that the school or the Department of Family and Community Services contacts her, as has happened in the past, for a fuller involvement in the lives of the children.

4. Orders are made in accordance with the application of the applicant to commence as stated.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 January 2014.

Associate:    

Date:  24 January 2014