Yamada and Cain
[2011] FMCAfam 539
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAMADA & CAIN | [2011] FMCAfam 539 |
| FAMILY LAW – Children – residence dispute between child’s parents and paternal great aunt – child is five years old and has lived the majority of her life with her paternal great aunt – serious concerns raised about the parents’ history of drug use, criminality and transient lifestyle – consideration of potential loss of familial connectedness with her parents if the child were to live with her paternal great aunt – orders made for child to live with her paternal great aunt and spend regular holiday time with her parents as well as provision for weekly telephone and electronic communication. |
| Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61D, 64B |
| Potts & Bims [2007] FamCA 394 Simpson & Brockmann [2009] 43 FamLR 32 |
| Applicant: | MS YAMADA |
| Respondent: | MS CAIN |
| File Number: | MLC 4263 of 2010 |
| Judgment of: | Bender FM |
| Hearing date: | 16, 17 & 31 May 2011 |
| Date of Last Submission: | 31 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr McConchie |
| Solicitors for the Applicant: | Tait Lawyers |
| Counsel for the Respondent: | Ms Buchanan |
| Solicitors for the Respondent: | Bayani Harvey Lawyers |
ORDERS
All previous parenting orders be discharged.
The parents Ms Yamada (also known as [Ms Yamada]) and Mr B (also known as [Mr B]) (“the parents”) and the paternal great aunt Ms Cain (“the paternal great aunt”) have equal shared parental responsibility for the major long-term issues for the child [Z] born [in] 2005 (“[Z]”).
[Z] live with the paternal great aunt.
[Z] spend time and communicate with the parents as follows:
(a)for one week in each of the Victorian term school holidays, to coincide, where possible, with the South Australian term school holidays, with such time to conclude no later than the Saturday before the resumption of the Victorian school term;
(b)for one half of the Victorian long summer holidays as agreed between the parties and failing agreement for the second half in 2011/2012, to conclude no later than the Saturday before the resumption of the Victorian school term, and each alternate year thereafter and the first half in 2012/2013 and each alternate year thereafter, to commence on the first Saturday of the holidays;
(c)by telephone, webcam or other electronic means no less than once per week, with the parties to alternate who is to initiate the communication, and otherwise as reasonably requested by [Z]; and
(d)as otherwise agreed between the parties.
For the purposes of the time [Z] spends with her parents pursuant to orders 4(a) and 4(b) herein, and whilst the parents reside in [P], changeover shall take place in Adelaide or at such other location as agreed between the parties.
For the purposes of the communication between [Z] and her parents pursuant to order 4(c) herein, the parties shall:
(a)keep each other advised at all times of their current mobile and landline telephone numbers and email addresses; and
(b)forthwith do all things necessary to enable communication through Skype or other webcam communication.
Each party shall ensure they advise the other of their current address, landline telephone number and mobile telephone number and notify the other in writing of any change of such address, landline telephone number and/or mobile telephone number within seven days of any such change.
Each party shall advise the other of any serious illness or injury suffered by [Z] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school life of [Z], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents and caregivers are normally invited.
IT IS NOTED that publication of this judgment under the pseudonym Yamada & Cain is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4263 of 2010
| MS YAMADA |
Applicant
And
| MS CAIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This very challenging matter relates to the living arrangements for [Z] born [in] 2005 (“[Z]”).
The applicant is [Z]’s mother Ms Yamada (also known as
[Ms Yamada]) who is supported by [Z]’s father Mr B (also known as [Mr B]) and the respondent is [Z]’s paternal great aunt Ms Cain.
The mother is seeking orders that [Z] live with her parents and her four older siblings [V] aged 11 years, [W] aged 9 years, [X] aged 8 years and [Y] aged 7 years, in [P], South Australia.
The paternal great aunt seeks orders that [Z] live with her and her grandson [K] born [in] 2004 (“[K]”) aged 6 years, in Melbourne, Victoria.
Background
The applicant mother was born [in] 1970 and is 41 years of age. The father was born [in] 1975 and is 35 years of age. The parents have been in a relationship since 1998.
The paternal great aunt was born [in] 1958 and is 52 years of age. She is a retired [omitted]. She has the full-time care of her grandson [K], aged 6 years, and has had so since January 2010 following the death of his parents from drug overdoses.
This matter first came before me in May 2010 when the paternal great aunt sought a Commonwealth Location Order in an endeavour to locate the parents and [Z], and sought orders that [Z] be returned to her care.
It was her evidence at that time that [Z] had been in her care since she was three weeks old, that in January 2010 [Z] had gone to have a four week holiday with her parents and siblings and had not been returned by her parents.
A Commonwealth Location Order was made on 27 May 2010 and the matter otherwise adjourned to 15 July 2010. On 15 July 2010, the mother appeared in person and an order was made for a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (“the Act”) the next day.
On 16 July 2010, after feedback arising from the Conference, final consent orders were made which provided for [Z] to live with her parents and to spend time with the paternal great aunt for one week in the September 2010 holidays, for two weeks in the 2010 long summer vacation in Melbourne and thereafter during school holidays as agreed between the parties.
The orders also made provision for weekly telephone and webcam communication between [Z] and the paternal great aunt, with the parties to alternate initiating such communication.
At the time [Z] returned to live with her parents, they were residing in [C], South Australia.
The paternal great aunt visited [Z] in [C] in the September term holidays in 2010. Upon arrival, she was advised that [Z]’s father had been charged with rape and assault and was in custody in [P] where he remained until released on home detention in late December 2010.
In October 2010, the mother and children moved from [C] to [P] to be in closer proximity to the father.
On 13 January 2011 [Z] came to Melbourne to spend two weeks with the paternal great aunt pursuant to the orders made on 16 July 2010.
On 5 February 2011 the paternal great aunt took [Z] to Melbourne Airport to meet her mother to return to South Australia. Upon arrival, the paternal great aunt observed the mother being arrested by the Federal Police.
The paternal great aunt refused to return [Z] to her mother and on
9 February 2011 the mother filed an urgent Application seeking orders that the paternal great aunt immediately return [Z] to her care.
On 9 February 2011, the paternal great aunt filed a Response to the mother’s Application seeking an order that the mother’s Application be dismissed and that [Z] live with her.
The matter came before me on 15 February 2011. Orders were made for a Child Inclusive Conference and the matter was adjourned to
16 February 2011.
On 16 February 2011, Ms B, Family Consultant, gave the court feedback arising from her Child Inclusive Conference with the mother, paternal great aunt and [Z] earlier that day.
Ms B noted [Z] to be closely attached to both her mother and her paternal great aunt. However she advised the court that she was unable to get a real sense of the family and that a full Family Report was needed to enable the court to fully explore all relevant matters to determine where it was [Z] should live.
At the conclusion of Ms B’s feedback, and after making the necessary enquiries of the Dispute Resolution Co-Ordinator in Adelaide, I made orders for the matter to be listed for final hearing before me on 4 April 2011, for a Family Report to be prepared at the Adelaide Registry of the court on 1 March 2011, for [Z] to live with the mother until the commencement of the report interviews on 1 March 2011 and thereafter with the paternal great aunt until finalisation of the matter.
When the matter came before me on 4 April 2011, the applicant mother had not had sufficient time to respond to the paternal great aunt’s very lengthy affidavit filed 31 March 2011. To enable procedural fairness, the matter was adjourned to 16 May 2011 for final hearing. Because of the unavailability of the Family Report Writer, the matter was further adjourned to 31 May 2011.
The Evidence
The Mother
The mother filed three very brief affidavits in support of her Application on 9 February 2011, 4 April 2011 and 29 April 2011. She also gave viva voce evidence at the final hearing of the matter.
The mother advised the court that she is currently employed in [P] as a [omitted], doing four to five shifts a week, either between 7.00 am and 1.00 pm, 1.00 pm and 6.00 pm or 6.00 pm and midnight. She is also studying part-time to become a [omitted]. It was her evidence that she had previously qualified as a [omitted] in 1999 and that her studies were to upgrade her Victorian qualification so that she could work as a [omitted] in [P]. It was her evidence that upon completion of her qualifications, she would be employed at [omitted] in [P].
It was the mother’s evidence that she and the family had moved the previous week to accommodation at [address omitted]. She advised that this accommodation was permanent and had been obtained for the family through the Salvation Army. She indicated that when they first arrived in [P], the family had been placed in transitional housing until permanent accommodation could be found.
The mother confirmed that she had a criminal history, predominantly involving drug-related charges as follows:
a)October 2001: Cultivating and possessing marijuana, for which she received a 12 month good behaviour bond
b)April 2004 : Obtaining property by deception
c)May 2005: Trafficking, possession and using marijuana
d)November 2006: Trafficking marijuana, for which she received a three month suspended sentence
It was the mother’s evidence that she had never used, possessed or trafficked marijuana, but had been in the company of persons doing so. She conceded that she was in the company of the father when these charges were laid against her.
It was the mother’s evidence that whilst she was born Ms Yamada, she had two changes of name, firstly to [omitted] and then to [omitted], which is her current legal name and the name by which she is currently known.
It was the mother’s evidence that she had changed her name in order to get away from a former partner, who was pursuing her and threatening violence.
The mother also indicated that she knew that the father had an extensive criminal history, from 1991 to 2008, involving many traffic offences, including driving whilst disqualified and driving unlicensed, as well as many drug-related charges, including possessing, using and trafficking marijuana.
The mother confirmed that the father is currently facing serious charges for rape and assault. She indicated that she would be a witness for the defence when the matter proceeded to hearing sometime later this year.
It was the mother’s evidence that the father had a serious drug problem when their relationship first commenced, but that he had ceased using hard drugs 10 years ago. The mother conceded that the father had also had issues with serious marijuana usage, but it was her evidence that the father now only very occasionally smoked marijuana, and that when he did so, it was never in front of the children.
When challenged on this evidence, it was the mother’s evidence that the father did smoke marijuana in the home, but always in the bedroom or in the shed, and that the children were told that they were not to go into the room because their father was in there.
The mother conceded that the older children, in particular, would know that when they were banned from going into the room with their father, he was smoking marijuana.
The mother conceded that since the commencement of their relationship, she and the father have led a transient lifestyle. When they first commenced their relationship they were living in [O] in Melbourne. They then moved to [B]. From there they moved to [M], and then to [E]. From there they moved to [C] and are now resident in [P].
When asked for the reason for this lifestyle, it was the mother’s evidence that she and the father initially moved from Melbourne because they were sick of the people there and wanted to see more of Australia and experience different things.
In relation to the children’s schooling, the mother indicated that [V], who is currently in Year 7, has been to seven different schools, [W], who is in Year 4, has been to five different schools, [X], who is in
Year 3, has been to five different schools and [Y], who is in Year 2, has been to four different schools. [Z] has been to three different schools, one in [C], one in [P] and the school she is now attending having returned to Melbourne to live with the paternal great aunt pursuant to orders of this court.
When the mother was asked what impact she thought the change of schools and the transient lifestyle had on the children, it was her evidence that the children adjust to new situations very well. It was her evidence that she and the father speak to the children before they make a move and that the children always indicate that they are “happy to go”.
The records of the Department of Human Services in Victoria and the Department of Family and Communities South Australia were subpoenaed for the final hearing of this matter. Various matters raised in that subpoenaed material were put to the mother by Counsel for the paternal great aunt.
The mother agreed that there had been three notifications to the Department of Human Services between 2003 and 2005, as a result of the father’s drug use and the charges laid against both herself and the father for drug trafficking.
It was the mother’s evidence that the Department had only conducted two home visits and that the Department had ultimately closed their file as there were no concerns in relation to the care of the children.
The mother conceded that the Department had suggested assistance from Uniting Care, but that she had not engaged with that service as she did not feel it was necessary.
It was put to the mother that the Department of Family and Communities file raised concerns in relation to [V]’s behaviour in [C], and in particular that he had been sighted at night hanging around Main Street with other children who were drinking and using drugs.
The mother was adamant that the child in question was not [V], but rather [J], a next door neighbour’s 15 year old son who was living with them at the time.
It was also put to the mother that there had been a complaint received from [V]’s school, the [C] School, in which it was reported that on
4 May 2010, [V] went to school that morning so stoned that he was unable to talk properly. The Department file indicated that the school had chosen not to speak to the parents because of concerns that the father would become aggressive.
The mother challenged the accuracy of this Report on the basis that at no time had either she or the father been contacted by either the school or the Department.
It was put to the mother that the Department file revealed that they had attempted home visits in [C] on two occasions, but there had been no one home, and that the Department had found the house to be dirty, with large amounts of rubbish and a number of dogs roaming the yard.
It was the mother’s response that the family was not living in the house the Department attended at the time of their visit. She also observed that she was well known in [C] and that the Department would have been able to find her at work, if she was not at home.
In the paternal great aunt’s affidavits filed in these proceedings, she annexed a large number of photographs that she had taken when she visited [Z] in September/October 2010 of the home in [Property M] in [C] that the mother, father and children had lived in. These photographs showed this property to be dirty and rubbish strewn, with mattresses on the floor where the children slept and with faeces from the family’s animals on the floor. In short, the photographs of the home depicted it’s condition to be unfit for habitation.
It was the mother’s evidence that she and the children had moved from the [Property M] premises in or around August 2010 to premises that were closer to the centre of the city and therefore closer to the children’s school and her place of work. It was her evidence that when she left the [Property M] premises they were in a clean and tidy state. She conceded that after they vacated the premises, the father remained in that home, together with most of their belongings. The mother denied she and the father had separated, but offered no explanation as to why they were living in two separate premises. It was her evidence that it was from the [Property M] premises that the father was arrested, and that after he was so arrested the premises were left vacant and that the condition in which the paternal great aunt found the property was as a result of persons unknown “trashing” the property whilst it was vacant.
The paternal great aunt also annexed to her affidavits photographs that she had taken in her September/October 2010 visit of the premises to which the mother and children had moved. It had minimal furniture. There was no refrigerator for food storage and only mattresses on the floor for the children to sleep on.
It was the mother’s evidence that she and the father had been unable to move the majority of their belongings from [Property M] to the new home as their trailer was broken and they had not been able to effect its repair. The mother was unable to explain however why the photographs of [Property M] showed a trailer full of rubbish that appeared to be usable and why they had not emptied that trailer to move their furniture and other belongings.
The mother was cross-examined in relation to her intentions to remain in [P]. In the Family Report, it was recommended that if [Z] was to return to live with her parents and siblings, it be conditional upon a restraint on the parents from moving from [P] for a minimum of five years. The mother’s evidence was:
“If that’s what it takes to get [Z] back, I’ll do it.”
The mother was also questioned as to what she would do in the event that the father was convicted of the charges he is currently facing and was sentenced to a term of incarceration away from [P].
It was the mother’s evidence that she would continue to care for her family absent the father, and that she would not move from [P] to be closer to where the father may be incarcerated.
The father
The father filed a four line affidavit in support of the mother’s Application that [Z] live with her parents on 29 April 2011 and gave viva voce evidence at the final hearing of the matter.
Because of his home detention, the father’s evidence was given by telephone.
The father indicated that his bail conditions had recently been altered to enable day release so that he was able to work full-time as a [omitted]. He indicated that he starts work at 9.00 am, finishes at 3.00 pm when he collects the children from school and then returns to work until
4.30 pm. He indicated that his bail conditions require that he be home by 5.00 pm.
It was put to the father that the Department of Corrections South Australia file, which had been subpoenaed for these proceedings revealed that it was a condition of his bail that he be completely drug free and that he was required to undergo regular supervised drug screens to monitor his compliance with this term of his bail. It was put to the father that two of his supervised urine screens had been positive for cannabinoids.
The father conceded that whilst on bail he has occasionally smoked marijuana with friends who had attended his home with the drug, but claimed that his marijuana usage was only now very occasional and no more than once or twice a month.
The father conceded that he had abandoned an application to adjust his bail conditions to the “usual terms” as a result of his positive urine screens, but was hopeful that in June/July 2011, he could re-apply to have his bail conditions altered on the basis that by then he would be able to produce clean screens.
The father was unable to explain why, when the very strict terms of his bail required him to be drug-free, he had not been able to abstain from the use of drugs.
It was further put to the father that the Department of Corrections file indicated that when he attended for a urine drug screen in April 2011, he was accompanied by his two eldest children who should have been in school. It was the father’s evidence that both children were too unwell to attend school, the mother was working and that if he had failed to attend for the drug screen he would have been in breach of his bail conditions and would have been returned to jail. He said he had no other option but to bring the children with him.
When asked about the transient lifestyle that he and the mother live, it was the father’s evidence that they had left Melbourne to move to [B], then to [M] and then to [E] to enable him to “clean himself up”. It was his evidence that they left [E] to go to [C] as his past had followed him and he was being discriminated against because of his history of drug use.
The father has also changed his name from Mr B to [omitted]. His explanation for this was primarily because of the harassment from the mother’s former partner, but also because his name of Mr B is associated with his history of drug use and trafficking.
When questioned about the issues that had been raised in the Department of Family and Communities file in relation to [V], it was the father’s evidence that the boy referred to in the material as being out with older children would have been the next-door neighbour’s son, [J] and not [V].
In relation to the allegation that [V] attended school stoned, the father denied that [V] used marijuana and questioned why the Police or the Department had never approached he or the mother in relation to this issue.
It was the father’s evidence that he did not believe that [V] smoked marijuana as he had actually asked him whether he was using this drug and [V] had told that he wasn’t using marijuana. When asked why he had raised this with [V], the father indicated he had done so because [V] tended to associate with older boys and continued to do so in [P].
It was the father’s evidence that he and the mother intended to stay in [P] for at least five years, as it was a nice little town, not too big and not too small.
The father indicated that if he was convicted and incarcerated, he hoped that any sentence would be served at [P] but conceded that there were other jails in South Australia to which he may be sent.
The Paternal Great Aunt
The paternal great aunt filed two very lengthy affidavits in support of her application that [Z] live with her, one sworn on 23 February 2011 and the second sworn on 31 March 2011. The paternal great aunt also gave viva voce evidence at the final hearing of the matter.
It was the paternal great aunt’s evidence that [Z] has lived with her since she was three weeks of age, when the parents asked her to care for [Z] as they were unable to do so at that time.
It was her evidence that in the ensuing four years, she made several attempts to transition [Z] back to her parents’ care, including regular visits whilst they lived in Melbourne, making her available for holidays and arranging for her to go and stay with them but on all occasions the parents returned [Z] to her care.
In January 2010, the paternal great aunt’s son and his partner both died of drug overdoses and the paternal great aunt was required to work with the Department of Human Services to enable her grandson [K], her late son’s son, to continue to live with her. It was her evidence that [K] had lived with her for most of his life.
It was the paternal great aunt’s evidence that at this time the parents offered to take [Z] for a holiday, but it was her understanding that they were to return [Z] to her to enable [Z] to return to kindergarten at the beginning of the kindergarten year. It was the paternal great aunt’s evidence that [Z]’s parents failed to return her and it was because of this that the initial proceedings in this matter were instituted by her.
It was her evidence that when the matter came before the court in
July 2010, the section 11F Family Consultant had advised her that [Z] was torn between her and her parents, and that she made the decision that it was in [Z]’s best interests for her to agree to [Z] returning to live with her parents and siblings so that [Z] did not continue to be torn about who it was that she wished to live with.
It was the paternal great aunt’s evidence that the mother assured her that they would continue to reside in [C] and there would be no changes of residence or schooling for [Z] and her siblings.
The paternal great aunt indicated that she had kept in telephone communication with [Z] after July 2010, but that despite giving the parents a computer to enable Skype communication, they never put in place the appropriate arrangements to allow that to happen.
It was the paternal great aunt’s evidence that when she and [K] arrived in [C] to visit [Z] in September 2010, she was shocked to be told by the mother that the father had been arrested on charges of rape and serious assault.
It was the paternal great aunt’s evidence that [Z] was delighted to see herself and [K], and kept asking when she could go home with them.
The paternal great aunt stayed in [C] and looked after all five children so that the mother could go and visit the father in [P]. It was during this period that she saw the state of the home previously occupied by the family, as well as the conditions of the home in which they were then living.
The paternal great aunt indicated that after she returned to Melbourne, she continued to speak to [Z] on a regular basis, and [Z] kept asking when she would be coming “home” to live with her and [K].
The paternal great aunt raised concerns about the constant changing of telephones and telephone numbers by the parents and the difficulties she had in being able to regularly maintain communication with [Z].
When [Z] came to stay with the paternal great aunt in January 2011, it was the paternal great aunt’s evidence that [Z]’s toilet training had regressed, such that she was having to wear nappies to bed each night in circumstances where at the time she left to go to her parents in January 2010, [Z] was almost completely toilet-trained.
It was her evidence that when [Z] came to visit her in January 2011, she had a urinary tract infection, as well as severe head lice and that she was undernourished.
It was the paternal great aunt’s evidence that [Z] complained about the constant moving and indicated to her on a daily basis that she wanted to stay living with her and [K].
The paternal great aunt confirmed that she did attempt to return [Z] to the mother at Melbourne Airport on 5 February 2011, albeit with a great deal of reluctance as she was most concerned as to [Z]’s living circumstances with her parents. It was her evidence that when she attended at the airport, she was advised that the mother had been arrested and that she observed the mother being taken into custody by the Federal Police. It was at this time the paternal great aunt made the decision that she was not going to return [Z] to her parents, and was going to seek orders that [Z] come and live with her.
It is the paternal great aunt’s evidence that she does not believe that [Z]’s parents have the requisite parenting skills to properly care for [Z] or provide her with the necessary level of stability and continuity to enable her to fully realise her potential.
The paternal great aunt is of the view that the parents continue to indulge in a lifestyle that involves drugs and criminal activity, and that their transient lifestyle will continue into the future.
When challenged that her evidence and affidavit material was designed to show the parents in a bad light and focus on nothing but negatives, the paternal great aunt responded that she was telling the truth and relating the facts as she knows them to be.
It was the paternal great aunt’s evidence that she has lived in her home in [suburb omitted] for over 20 years and that she was in the best position to provide [Z] with a stable home, a continuity of education and a committed level of care that would enable [Z] to flourish.
It was the paternal great aunt’s evidence that she knows that [Z] loves her parents and siblings and that her relationship with them is very important, and that she would continue to foster that relationship into the future, as she had in the past.
Ms T
Ms T is a Family Consultant with the Federal Magistrates Court of Australia in Adelaide. Ms T interviewed the parents, the paternal great aunt and observed all five children and [K] on 1 March 2011 in Adelaide. She released a Family Report dated 11 March 2011 and also gave viva voce evidence at the final hearing of this matter.
In her Report, under the heading “Evaluation” in paragraph 48, Ms T stated as follows:
48.It is evident that the current dispute regarding [Z]’s care arrangements is a result of both parties’ genuine belief that they are best placed to care for her… The changes that [Z] has experienced in her care arrangements would undoubtedly have exerted an impact on the primacy and quality of [Z]’s attachment relationships. Nonetheless, at the current time she presents as a happy and confident child who exhibited attachment behaviours with both her mother and her paternal great-aunt.
Whilst noting the concerns that the paternal great aunt put forward in relation to the parents, it was Ms T’s view that the paternal great aunt was attempting to portray the parents in a negative light in a bid to strengthen her desire to have both [Z] and [K] in her primary care.
However, at paragraphs 51 and 52 of her Report, Ms T stated as follows:
51.Of the criticisms made by the aunt regarding the parents, it was her reference to their repeated relocations that was of greatest concern to the writer. The parents appear to have lacked maturity in making decisions for their family, and minimised the impact that their frequent relocations have had on the children in their care. Although the children presented as well-adjusted and content, the transience they have experienced has prevented them from experiencing stability in their schooling, community and social networks.
52.When asked about their future plans, the parents’ ambivalence did not inspire confidence regarding their future stability. Further to this, the writer held concerns regarding the mother’s ability to manage care of the children in [P] with scarce family and social support, should the father receive a custodial sentence for the crimes he is currently charged with.
Ms T, in commenting on her observations of [Z] and her siblings’ interaction with their parents noted the care received reflected an adequate level of parenting, as the children demonstrated co-operative, pro-social behaviours, abided by the boundaries set by the parents and engaged easily and happily with each other.
In paragraph 32 of her Report, Ms T noted that [Z] twice stated she wanted to “stay with” and “live with” mummy. She also reported that [X] told her:
“don’t take my sister away.”
Ms T however noted with some concern that the comments made by [Z] and [X] during the Report process suggested that the parents might have attempted to”
“‘prime’ or influence [Z] and her siblings prior to the assessment.”
In paragraph 56 of her Report, Ms T reported as follows:
56.In order for [Z] to reach her full potential, she requires a stable, responsive environment in which her developmental, emotional, social, and safety needs will be met. Whilst it is considered that both her parents and her paternal great aunt are capable of providing this environment to her, it is the writer’s view that [Z]’s long term needs for familial identity and connection would be best served by her returning to the care of her parents.
In light of all her observations set out in her Report, under the heading of “Recommendations” at paragraph 57, Ms T made the following recommendations:
57.It is recommended that:
·[Z] lives with Mr B and Ms Yamada.
·Consideration be given to Mr B and Ms Yamada relocating to the Melbourne metropolitan area at the conclusion of the next school term, where they shall henceforth reside, without further relocation, for the next five years.
·Once residing in the Melbourne metropolitan area, [Z] spends time with Ms Cain each alternate weekend from Saturday morning until Sunday evening.
·
Should the court consider it appropriate for
Mr B and Ms Yamada to remain in [P], they should similarly be prevented for (sic from) relocating for the next five years.
·Should [Z] continue to reside in [P], [Z] should spend one week of every short school holiday period (preferably that which overlaps with [K]’s Victorian school holidays) with Ms Cain. [Z] should spend up to two weeks of every summer school holiday period with Ms Cain.
·Should [Z] continue to reside in [P], [Z] should speak with Ms Cain and [K], via Skype, at a scheduled time each week. In order for this to occur, Ms Yamada would be required to establish a Skype account on an appropriate computer and facilitate this contact on [Z]’s behalf.
When Ms T prepared her Report, she did not have the benefit of being able to view all of the subpoenaed material, and in particular the Department of Human Services file, the Department of Family and Communities file, the Victoria Police records and the South Australian Police records.
Copies of those documents were provided to Ms T prior to the final hearing of this matter.
When cross-examined, Ms T was asked whether, in light of the subpoenaed material that she had now had the opportunity to peruse, she changed her recommendation that [Z] live with her parents.
It was Ms T’s evidence that she had not changed her fundamental recommendation that [Z] return to live with her parents.
When challenged by Counsel for the paternal great aunt as to the specifics of various matters contained in the subpoenaed material, it was Ms T’s evidence that whilst they were matters of concern, she did not think they were sufficiently serious to warrant the children being removed from the parents’ care, particularly from a Child Protection perspective.
It was Ms T’s evidence that her main concern, particularly in relation to [Z], was the transient nature of the parenting lifestyle and the impact that has upon her.
It was her evidence that, when formulating her recommendation as to where [Z] should live, it was about balancing her concerns as to the lack of stability for [Z] against the risk to [Z] of a loss of familial identity and connectedness to her immediate family.
When asked to expand upon what the risk to [Z] was if she were not to live with her parents and siblings, it was Ms T’s evidence as follows:
“I think that the risk is primarily that she will miss out on having a strong sense of sibling and familial connectedness as she gets older. I think that will come up for her when she is probably an adolescent and beyond that, in adulthood. My concern is basically she won’t feel that she is a part of that family, the way that her siblings will naturally feel an affinity with each other and a sense of connectedness to each other. [Z] may miss out on that by not being a part of that family unit.”
Having heard Ms T’s evidence, I asked her this specific question:
“It’s quite apparent from your recommendations that inherent in your view that [Z] should go back to live with her parents is requirements that there be restrictions put on their capacity to move from [P].; in other words, some kind of restraints that would ensure stability. If on the evidence the court couldn’t be satisfied that there would be compliance with that order should orders be made that she goes to her parents anyway?”
Ms T’s answer to that question was as follows:
“I really think that the transience is the big issue here… I think I would be reluctant for her to go to her parents if there was going to continue to be – if we couldn’t be assured that she was going to be afforded stability. I think her siblings have been exposed to a lot of transience but [Z]’s had a very complex care-giving history now and has had multiple moves, not only with her parents but also between those caregivers. So I think the need for her to have stability is potentially even higher than that of her siblings. So, yes, I would be reluctant for [Z] to go to her parents if they were to continue to move.”
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the child’s best interests, the court must consider the matters set out under sections 60cc(2) and section 60cc(3) of the Act.
Many of the matters pursuant to subsections 60cc(2) and (3) of the Act are worded in such a way that they make reference to a child’s parents only.
The manner in which the court is to consider the specific provisions of sections 60cc(2) and (3) that make reference to the parents only in parenting cases that involve parties who are not a parent of the child/children in question has been considered in a number of cases by the Full Court.
In the matter of Simpson & Brockmann [2009] 43 FamLR 32, at paragraph 121 the Full Court cited with approval the decision of Moore J in the matter of Potts & Bims [2007] FamCA 394.
In Potts & Bims (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the court should deal with those matters under sections 60cc(2) and (3) which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60cc(2) and (3), which were excluded for consideration because they made reference to “parents”, were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60cc(3)(m). Her Honour was of the view that this enabled the court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
I am in complete accord that this is the appropriate approach that the court should take when determining parenting issues between parties, where one or other of the parties is not a parent of the child.
Section 60cc(2) of the Act sets out the primary considerations which the court must take into account when determining best interests and they are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It was Ms T’s evidence that [Z] has a close attachment to her mother, though less so to her father.
In the event orders are made for [Z] to live with the paternal great aunt, there is no doubt that that level of attachment to her mother will diminish, particularly if the parents continue to live in [P] or continue their transient lifestyle.
If the court makes orders for [Z] to live with the paternal great aunt, it will be of vital importance to [Z] that she is able to spend regular time with her parents and siblings, as well as maintaining regular telephone and other electronic communications.
It was the paternal great aunt’s evidence that after [Z] returned to her care on 1 March 2011, her mother has only rung on three occasions and that when she attempted to contact the mother to enable [Z] to speak to her, and to advise her that [Z] had broken her arm, she was unable to reach the mother because her mobile telephone had been disconnected and the mother had changed her mobile telephone number and not advised the paternal great aunt of that change.
It was the paternal great aunt’s evidence, and acknowledged by the Family Report Writer, that the paternal great aunt had ensured that [Z] maintained her relationship with her parents and siblings. The paternal great aunt’s evidence was she would continue to do so and the Family Report Writer was in agreement that this would occur should orders be made for [Z] to live with the paternal great aunt.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Whilst there is no doubt the parents are able to provide an adequate level of care for [Z], the court must be concerned that the parents’ lifestyle has the potential to expose [Z] to a level of neglect and psychological harm.
The parents’ transient lifestyle has resulted in all their children, including [Z], attending multiple schools and not being afforded the opportunity to establish stable and secure friendship networks or any sense of belonging in or to a community.
The parents’ criminal history, particularly the high level of drug-related charges, as well as the very serious charges currently faced by the father is also of concern.
Equally, the father’s inability to refrain from drug use, even in circumstances where to do so risks him breaching his bail and returning to incarceration, causes the court real concern and is indicative that the father will continue to use drugs into the future.
It is also most concerning that the parties’ eldest son [V] has been reported to be drug-affected when attending school at the very young age of only 11.
Ms T notes that the parents lack any insight into the impact of their lifestyle choices on their children and found them to have lacked maturity in making decisions for their family.
Section 60cc(3) of the Act sets out the additional considerations that the court must look at in determining what is in the child’s best interests and each of those will be considered in turn where applicable to this matter.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
It is the paternal great aunt’s evidence that [Z] has been consistently telling her that she wants to live with her and [K] since the consent orders were made in this matter on 16 July 2010.
In the Family Report, Ms T indicated when talking to [Z] she:
“twice stated she wanted to ‘stay with’ and ‘live with’ mummy, as Ms Cain ‘already has a child’.”
In paragraph 32 of her Family Report, Ms T sets out that she asked [Z] if someone had told her to say this and:
“she stated that her mother had.”
Further in paragraph 33 of her Report, Ms T notes that:
“When asked about moving house, [Z] responded, ‘I hate it”.
In response to a question as to whether she missed anyone,
Ms T indicates that [Z] stated that:
“she missed ‘grandma because I never lose her’.”
I note that [Z] calls her paternal great aunt “grandma”.
Ms T also noted that [Z] told her that [K] was the person she most liked to play with.
As noted earlier in this judgment, Ms T expressed some concern that the parents may have attempted to prime or influence [Z] prior to the Report Writing process.
What was apparent from the Family Report and Ms T’s evidence was that [Z] has a very close attachment to both the paternal great aunt and her mother.
Given [Z]’s young age and the concerns of Ms T that [Z] may have been “primed” by her parents, no great weight can be attached to any views or wishes that [Z] may have expressed to the Family Report Writer.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted previously in this judgment, [Z]’s primary attachments would appear to be with her mother and with her paternal great aunt.
[Z] is not as closely attached to her father as she is to her mother and paternal great aunt.
[Z] was observed to interact positively and closely with her siblings and it is agreed that she is very close to her older sister [W] who seems to have adopted something of a nurturing role with all of her siblings.
[Z] is also very close to her cousin [K] and speaks of him as being the person she most likes to play with.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This subsection is not relevant to the matter before the court.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Whichever of the parties [Z] lives with, be it with her parents or her paternal great aunt, [Z]’s relationship with the other is going to be impacted.
[Z] has lived most of her life with her paternal great aunt and [K], and is clearly closely attached to and bonded with both of them. She loves them and they love her.
For most of 2010, [Z] lived with her parents and siblings, and has a strong attachment with her mother and an appropriate sibling relationship with her brothers and sister.
In her viva voce evidence, Ms T spoke of the importance of [Z]’s familial connection to her siblings and parents and the potential risk that as [Z] grows older, there might be implications for her family identity and her affinity with and sense of connectedness to each of her parents and siblings if she has not grown up within that family group.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
When the parties saw Ms T for the preparation of the Family Report, there was some discussion with Ms T about the possibility of the parents and children moving back to live in Melbourne. Ms T noted this to be the ideal outcome for [Z], as it would allow her to live with her parents but maintain regular, ongoing interaction with her paternal great aunt and cousin.
However, at the final hearing of this matter, the mother and father both clarified that they have no intention of moving back to Melbourne, either in the short or long term. It was their evidence they intended to remain living in [P].
In these circumstances, if [Z] were to live with her paternal great aunt, there is a real practical difficulty for [Z] to spend regular ongoing time with both her parents, other than on school holidays and through electronic means.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
As noted earlier in this judgment, Ms T stated in her Family Report:
“In order for [Z] to reach her full potential, she requires a stable, responsive environment in which her developmental, emotional, social, and safety needs will be met.”
In her viva voce evidence, Ms T was of the view that [Z] in particular requires stability in order to fully meet her potential. This is because [Z] has had several changes of primary carer, as well as experiencing her parents’ transient lifestyle.
Ms T was of the view that both [Z]’s parents and her paternal great aunt are capable of providing this environment to her.
However, Ms T was of the view that if the court could not be satisfied that the parents would settle in [P] for at least the next five years so that [Z], as well as her siblings, could continue to attend the same school, live in the same home, be immersed in the same community and neighbourhood and establish long-term stable friendship groups, then it would not be her recommendation that [Z] live with her parents and that she should live with her paternal great aunt and [K] who would provide the requisite level of stability that [Z] requires to be protected from long-term emotional harm.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The parents’ lifestyle choices are at the centre of this matter.
The parents’ lifestyle decisions, and in particular their transience,
drug-use and criminality have impacted negatively on [Z], as they have all their children.
Having said that, the Family Report Writer observed the children to be cooperative, pro-social and engaging easily and happily with one another, and as such demonstrating an adequate level of parenting.
However there has to be real concerns in relation to the reports of [V]’s behaviour, and in particular his potential use of drugs and associations with children older than himself in circumstances where the parents completely deny any knowledge of these activities or that [V] could or would have behaved in this way.
It was the mother’s evidence that in their new rental accommodation, there is a large bungalow at the back of the house, separate to the house, which is to be [V]’s bedroom. Given the concerns in relation to his behaviours, the potential lack of supervision of [V]’s movements if he lives in that bungalow shows a degree of lack of appropriate parenting and boundary setting.
When the matter proceeded to final hearing before me on 16 May 2011, the mother attended court with [W]. [W] should have been at school in [P], but it was the mother’s evidence that she had bought [W] with her as she wanted her company. [W] was with the mother on the first day of the hearing as the friend they were staying with in Melbourne had been called to work and the mother had been unable to arrange anyone else to care for [W]. It was fortunate that by complete coincidence, the mother’s sister-in-law was at the court supporting a friend and was able to assume responsibility for the care of [W] on that day. Otherwise [W] would have had to spend the day in the court’s childcare facilities.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This judgment has commented at length as to the court’s concerns in relation to the lifestyle choices of the parents and what that indicates is their attitude towards the responsibilities of parenthood.
The evidence of both the mother and the father that they did not believe that their lifestyle impacts on their children is concerning for its lack of insight and understanding of the needs of children for stability and consistency.
Similarly, the father’s ongoing use of marijuana is of concern, as is his inability to refrain from using that drug, even when faced with possible incarceration because of the breach of the stringent terms of his current bail.
The parents’ evidence that the children aren’t exposed to the father’s drug use is unconvincing, particularly when both parents conceded that the older children in particular know that when they aren’t allowed into the room with their father it is because he is using drugs.
In a similar vein, the decision of the father to take the children to the Department of Corrections when he was being drug-tested and the mother’s decision to bring [W] with her to court, instead of her being at school, does not show a positive attitude to the importance of the children’s education or give them the message that the parents themselves consider their education to be of major importance.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This matter has returned to the court in less than 12 months since final consent orders were made.
The paternal great aunt indicated that she brought her current Application as the parents’ promise to settle down and provide a stable home and lifestyle for the children at the time of the July 2010 consent orders had not come to fruition and that since the orders had been made, the children had moved home seven times and had been to three different schools.
It was argued on behalf of the paternal great aunt that the serious criminal charges faced by the father, as well as confirmation of his ongoing drug-use, was also indicative of there being a continuation of the lifestyle that [Z] had been protected from whilst living with her paternal great aunt.
The parents have given evidence to the court that it is their intention to remain living in [P] for at least the next five years and that in those circumstances, the court can be satisfied that they will be able to provide [Z] with the stability she so desperately needs.
The difficulty for the court is that if this promise proves to be beyond their ability to keep, further proceedings will be necessitated as a matter of course.
The converse of this argument is that if orders are made that [Z] lives with the paternal great aunt and the parents do achieve the stability they are promising, this too may lead to a further Application by them seeking that [Z] return to their care.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
The uncertainty in relation to the father’s pending criminal proceedings adds a further level of complexity to this matter.
Unfortunately, it would appear that there will not be an outcome known to those proceedings until later this year at the earliest, and in the interim the family and children live under a cloud of uncertainty.
It was apparent from the manner in which the paternal great aunt gave her evidence that she holds [Z]’s parents in very low regard and was unable to identify anything positive in their parenting and in their lifestyle choices. Whilst it was her evidence that she never speaks negatively of her parents to [Z], that she reassures [Z] at all times that her parents love her and ensures that [Z] has lots of photographs of her parents and her siblings around the home, there has to be a concern as to her capacity to shield [Z] from her dislike of her parents, particularly as [Z] gets older and is able to better understand the adult relationships.
Having said that however, I note that in her Report, Ms T at paragraph 56 states:
“To their credit, it appears that for the most part, the significant adults in [Z]’s life have been able to maintain a superficially cooperative relationship that has not compromised [Z]’s relationships with any of her caregivers. It is hoped that this can continue into the future, without the need to compromise familial relationships, and the continuity of [Z]’s care, with further court action.”
Subsection 60cc(3)(c) of the Act refers to the willingness of a parent to encourage the relationship between the child and the other parent. It is of relevance in relation to [Z] to look at the willingness of the parties to these proceedings to encourage [Z]’s relationship, one with the other.
It is the paternal great aunt’s evidence, which I accept, that whilst [Z] lived with her, she ensured that [Z] kept in regular contact with her parents and that she would continue to do so into the future as she understands that [Z] loves her parents and siblings, and it is vitally important for [Z] that she be able to continue that relationship.
However, it is difficult to be as confident that [Z]’s parents would enable [Z] to maintain the close relationship that she has with her paternal great aunt and cousin. When she first returned to her parents at the beginning of 2010, there was a period of several months where there was no contact made by the parents with the paternal great aunt, and more importantly no opportunity given by the parents to [Z] to be able to speak to her paternal great aunt and cousin in circumstances where the paternal great aunt had been [Z]’s primary carer for the first four years of her life.
The mother and father did little to connect to the Skype network following the July 2010 orders, despite the paternal great aunt giving the mother a computer to enable them to do so. It was the mother’s evidence that a webcam was needed to establish a Skype connection and that there were some difficulties in obtaining that piece of equipment in [C]. It was apparent from the mother’s evidence that she had not seen that as a priority.
There was also evidence given by the paternal great aunt that there have been and are ongoing difficulties in maintaining telephone contact with the mother and father. The mother herself conceded that in the month of March 2011, for various reasons, she had had three different mobile telephones and numbers.
It was the paternal great aunt’s evidence that since [Z] returned to live with her in Melbourne on 1 March 2011, the mother has only rung [Z] on three occasions. It was the mother’s evidence that she thought it might have been four times. Whether it was three or four times, it was not very often in a period of two and a half months and raises concerns as to the priority the mother gives to keeping in regular contact with [Z].
I also note that [Z] has a large extended family network in Melbourne, including grandparents on both sides of the family, aunts, uncles, cousins and great-grandparents, all of whom she would be able to keep in contact with if she were to live in Melbourne with her paternal great aunt.
Parental Responsibility
Neither of the parties to these proceedings sought to address the court as to the question of parental responsibility for [Z], particularly in the event that the court was to determine that [Z] live with her paternal great aunt.
That the court can make an order conferring parental responsibility for a child on a person other than a parent is quite clear under the legislation.
Section 61D(1) of the Act provides as follows:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 64B(2) of the Act sets out the matters which a parenting order may deal with in the following terms:
(2)A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility…
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
As with all parenting orders, section 60ca of the Act requires that the order for parental responsibility be made with the child’s best interests as the paramount consideration.
I am of the view that if the court orders that [Z] live with her paternal great aunt, parental responsibility should be shared between [Z]’s parents and the paternal great aunt, and that they should be required to communicate to determine the decisions relevant to [Z]’s long-term care, welfare and development.
Conclusion
This is a most difficult and troubling matter.
It was Ms T’s evidence that the decision as to whether [Z] lives with her parents and siblings or with her paternal great aunt and cousin involves a balance of the risks that [Z] faces of the potential loss of the familial connection to her parents and siblings if she lives with her paternal great aunt, and the potential for ongoing instability if she lives with her parents and they continue their longstanding transient lifestyle. I agree with Ms T.
There is absolutely no doubt that [Z] is loved by and loves her parents and siblings and that she loves and is loved by her paternal great aunt and [K].
Ms T recommended that [Z] live with her parents and siblings as she was of the view they were able to provide an adequate level of parenting and that the familial attachment and connectedness, particularly with her siblings, was of significant importance to [Z] now and into her adolescence and adulthood.
However, Ms T made it clear that her recommendation in this regard was subject to the court being able to be satisfied that [Z]’s parents would remain living in [P] for at least the next five years in order for her to be provided with the level of stability that she needs in order to reach her full potential.
It was Ms T’s evidence that if the court could not be satisfied that the parents were able to provide that level of stability for [Z], then she would be most reluctant to recommend that [Z] live with them.
It was the mother’s evidence that if it was required that she give a commitment to live in [P] for the next five years in order to have [Z] live with her, then she would give the court that commitment. It was also the mother’s evidence that even if the father was convicted of the current serious charges he faces and is incarcerated away from [P], that she would continue to live there and care for her children to the best of her ability.
The father also gave evidence that he was committed to living in [P] for at least the next five years, but conceded that this may be somewhat out of his control if found guilty of the criminal charges he is currently facing.
The difficulty with the parties’ evidence that they will remain in [P] is that it runs contrary to their long-standing pattern of their behaviours. They started life together in [O] and because of their criminal and drug activities, they made a decision to move from Melbourne. They initially moved to [B], then to [M] and then to [E].
The father claimed that his “reputation followed him” to [E]. It was his evidence that he was discriminated against because of his criminal history and the family were forced to move through no fault of their own.
The family moved to [C] where, it was the mother’s evidence, they intended to settle permanently. Whilst in [C], the parents had five different homes. Whilst clearly there has been no findings in relation to the allegations against the father, his behaviours have led to the family yet again having to move.
What this shows is a longstanding pattern of behaviour whereby the parties, through their own behaviours and lifestyle choices, have a transient lifestyle that has impacted on them and on their children.
It is therefore extremely difficult for me to have any confidence that the parents will, despite their best intentions at this time, actually remain in [P] for any period of time, let alone five years.
This would be particularly so in the event the father was convicted of the charges against him and was incarcerated for any lengthy period of time away from [P]. The mother has no community or family supports in [P] and there would have to be a real concern as to her capacity to care for five children on her own, absent those supports.
The court also has to have real concerns as to whether the parents would stay in [P] in the event that the father is found not guilty of the charges he currently faces. There is a pattern of the parties moving on whenever they encounter any form of difficulties, either as a result of their own behaviours or because their reputation has followed them.
By contrast, the paternal great aunt has demonstrated that she is able to offer [Z] a stable, secure and consistent home life.
Further, whilst the paternal great aunt clearly has little respect for [Z]’s parents and their parenting capacity, she has shown a commitment to ensuring that [Z] is afforded every opportunity to spend time with her parents and siblings and I am satisfied she shows the requisite insight in understanding the importance to [Z] in being able to continue and maintain those very important relationships.
In contrast, the court must be concerned as to the parents’ understanding of the importance to [Z] of her relationships with her paternal great aunt and cousin. The parents’ failure to allow [Z] to contact her paternal great aunt and cousin between January and
July 2010, the lack of urgency in establishing a Skype contact for [Z] when they moved to [C], and the constant changing of telephones and telephone numbers without notifying the paternal great aunt or [Z] of those changes has to raise concerns as to the importance the parents place on [Z]’s relationship with her paternal great aunt and their willingness and capacity to ensure that [Z] would be afforded the opportunity to maintain that relationship if she were to live with them.
Having considered and balanced the risks that face [Z] in the choice as to where she lives, I have formed the view that the risk of instability if she were to return to her parents outweighs the risk to her of the loss of the close familial connectedness with her parents and siblings in the event that she were to live with her paternal great aunt. I am not satisfied the parents will remain living in [P] for the next five years and that an order by me requiring them to do so would be complied with.
In these circumstances, orders will be made for [Z] to live with her paternal great aunt and to spend regular holiday time with her parents, as well as mechanisms being put in place for her to have at least weekly telephone and electronic communication with her parents and her siblings. As [Z] gets older, no doubt such electronic communication will extend beyond Skype to Facebook, MySpace and the like.
Further, as noted earlier in this judgment, as [Z] is to live with her paternal great aunt, orders will be made that the parents and the paternal great aunt have equal shared parental responsibility for [Z] in the context of making decisions for her long-term care, welfare and development.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 3 June 2011
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