FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIELS & ANOR & DANIELS & ANOR | [2014] FCCA 3133 |
| Catchwords: FAMILY LAW – Children – paternal grandparents seeking to spend time with child – biological father not engaging in proceedings – history of illicit drug use by biological parents – Departmental involvement after child admitted to hospital and found to have ingested benzodiazepines – mother’s case conducted by her attorney without focus on issues in dispute or uncontested evidence – mother opposes all time – clearly established relationship between child and Paternal Grandparents – clear benefit to child of relationship with Grandparents – where mother ceased all time between the child and the Grandparents based on their presentation of the child to hospital being seen as “meddling” even though the child was admitted and pathology testing demonstrated the child had ingested benzodiazepines and the Department of Family and Community Services was advised – where the mother’s reaction “titanic”. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(4), 60H, 65C, 65DAA(5), 61DA |
| Browne & Dunn (1893) 6 R 67 Aldridge & Keaton [2009] FamCAFC 229 Churchin & Burton [2013] FamCA 597 |
| Applicants: | MS DANIELS & MR DANIELS |
| Respondents: | MR DANIELS & MS CONROY |
| File Number: | PAC 2577 of 2014 |
| Judgment of: | Judge Harman |
| Hearing dates: | 19-21 November 2014 |
| Date of Last Submission: | 21 November 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 21 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Ian Harper & Co |
| Advocate for the Respondent: | Ms Nagle |
| Solicitors for the Respondent: | O’Connell Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Macdiarmid |
| Solicitors for the Independent Children’s Lawyer: | Mark Macdiarmid Family Law Specialist |
ORDERS
The Mother have sole parental responsibility for the child X born (omitted) 2010 (‘the child’).
The child live with the Mother.
The child spend time with the Applicants as agreed and failing agreement as follows:
(a)For each of 22 November 2014 and 13 December 2014 from 10:00am until 7:00pm;
(b)Once per calendar month commencing January 2015 from 3.00pm (or after school on school days once the child has commenced attending school) on the first Friday of each calendar month until 5pm on the next following Sunday;
(c)For one week in each of the child’s school holiday periods, commencing with those following Term 1 2015, commencing at 5.00pm on the second last Sunday of each school holiday period and ending at 5.00pm on the last Sunday of such holidays and providing that from the time X commences school in 2016, that time during the Christmas school holidays shall be a two week block from the third last Sunday until the last Sunday.
(d)From 10:00am on Boxing Day until 4.00pm on 27 December in each year;
(e)For a period of two (2) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Applicants pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm.
The Applicants time with the child shall be suspended on the following occasions:
(a)For all but one week in each of the child’s school holiday periods, commencing at 5.00pm on the second last Sunday of each school holiday period and ending at 5.00pm on the last Sunday of such holidays;
(b)From 4.00pm on Christmas Eve until 10.00am on Boxing Day in each year;
(c)From 5.00pm on the Saturday immediately preceding Mother’s Day until 5.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
(d)From 5.00pm on the day immediately preceding the Mother’s birthday until 5.00pm on the Mother’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
(e)For a period of two (2) hours on the child’s birthdays in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Mother pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm.
For the purposes of the above, changeover shall occur as agreed between the parties and failing agreement at the entrance of (omitted) Library, (omitted).
The Applicants and the Mother shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parties within 48 hours of any change to either their residential address or telephone number.
Each party shall at all times:
(a)Be courteous and respectful to the other parties and their family members;
(b)Not denigrate the other parties or their family members; and
(c)Be restrained from using profane language and making derogatory comments about the other parties or their family members in the presence or hearing of the child, and shall remove the child from the presence of any person who is denigrating the other parties or the other parties’ families in the presence or hearing of the child.
The Applicants shall allow X to telephone and speak with his mother whilst he is in their care should he express a desire to do so and the Applicants shall cause X to telephone his mother between 6:00pm and 6:30pm each Saturday and during school holiday periods and in addition each Wednesday.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Daniels & Anor & Daniels & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2577 of 2014
| MS DANIELS & MR DANIELS |
Applicants
And
| MR DANIELS & MS CONROY |
Respondents
REASONS FOR JUDGMENT
These are proceedings involving future parenting arrangements for a young child, X born (omitted) 2010.
The parties to the proceedings are:
a)Young X’s paternal grandparents, Ms Daniels and Mr Daniels. They are the applicants in the proceedings;
b)Mr Daniels, the father of little X; and
c)Ms Conroy, his mother.
X’s interests in these proceedings have been capably represented by an Independent Children’s Lawyer.
Evidence
In dealing with the proceedings, I have read and considered the following material which was identified by the parties in their case outline or opening.
In the case of the applicants, I have read and considered:
a)Their application initiating proceedings filed 2 June 2014;
b)The affidavit of Ms Daniels sworn or affirmed 17 October 2014 and filed the same date;
c)The affidavit of Mr Daniels sworn or affirmed 16 October 2014 and filed 17 October 2014;
d)The affidavit of Ms K, young X’s aunt, sworn or affirmed 17 October 2014 and filed the same day; and
e)The earlier affidavit of Ms Daniels sworn or affirmed 30 May 2014 and filed accompanying the application initiating proceedings on 2 June 2014. That affidavit has been read, at least to the extent of paragraphs 4 and 5 thereof, as that affidavit was and those paragraphs were the subject of cross-examination.
In the case of Ms Conroy, I have read and considered:
a)Her amended response filed 11 November 2014; and
b)Her affidavit of evidence‑in‑chief sworn or affirmed 18 August 2014 and filed the same day.
I have also had regard to the case outline documents provided by each of the mother’s advocate, the Independent Children’s Lawyer and the applicant’s counsel.
There are a number of exhibits in the proceedings, although they are limited.
At an earlier stage in the proceedings a person and history document was produced by the Department of Family and Community Services in response to a request made pursuant to section 248 of the Children and Young persons (Care and Protection) Act. That document was marked as exhibit A on 21 July 2014 and remains an exhibit in the proceedings.
I have otherwise had regard to:
a)Exhibit A1 being records from the (omitted) Hospital as tagged. The exhibit comprises three pages of the record. The documents produced were forwarded to the mother’s attorneys under cover of a letter dated 10 November 2014 and provided by the (omitted) Local Health District in response to a request pursuant to the Health Records and Information Privacy Act 2002 (NSW). Cross-examination of Ms Daniels had occurred by reference to those documents. The documents were then called for and tendered by the applicant;
b)Exhibit A2 being a case note dated 18 February 2013 produced by the Department of Family and Community Services; and
c)Exhibit A3 comprising further documents from the (omitted) Hospital.
I have also sighted, particularly having regard to a number of submissions put at the close of evidence on day 2 of the trial and again today:
a)The notice of address for service filed on behalf of the mother by her attorneys on 7 August 2014;
b)A transcript of communication between the National Enquiry Centre and the mother’s attorneys, 20 November 2014; and,
c)A section 60I certificate which was issued under the hand of an employee of the Sydney City FRC on 12 June 2013 and filed with the initiating application. That certificate suggests, for reasons that are not before the Court, that family dispute resolution was not conducted as it was not considered appropriate.
At the commencement of submissions by the Independent Children’s Lawyer a minute of orders was tendered. That minute of order tendered on behalf of the Independent Children’s Lawyer is, with a number of modifications, adopted by the applicants. The contents of the minute, which will be incorporated within these reasons, proposes that time occur between the applicant grandparents and young X for one weekend per month, for periods of one week during school holidays and for other periods such as birthdays, Christmas and the like.
The amendments that are proposed by the applicants to orders as the Independent Children’s Lawyer proposes would see young X spending each Christmas Day with his mother. The Independent Children’s Lawyer had proposed that time would be spent by the applicants with X from 4 pm Christmas Day through to Boxing Day. Counsel for the applicants who has put the applicant’s position clearly before the Court being that they would accede to young X spending each and every Christmas Day with his mother and, accordingly, with his elder sister, a child of a prior relationship who lives within that household, and such that they would spend time with X instead from 10 am Boxing Day until 4 pm 27 December in each and every year.
The other issue which is raised by the applicants at variance to the proposals of the Independent Children’s Lawyers is regarding school holiday periods and, particularly, that which might occur during the Christmas holidays. During her cross-examination the mother conceded that she had no concern or difficulty regarding a two-week block during the Christmas holidays, whereas the Independent Children’s Lawyer’s minute proposes only one week.
Beyond that, the applicants adopt and support that which the Independent Children’s Lawyer proposes.
The mother’s case is closed with submissions whereby the mother would seek that X be “reintroduced” to the applicants, with whom he has not spent time or communicated since March of this year, such that time would commence on the first Saturday of each month for a period of three months and being the period from 10 am until 3 pm on each of those days. The submission is prefaced as “reintroduction” notwithstanding the concession by Ms Conroy during cross-examination that X has a relationship of real warmth with his grandparents and that there is real benefit to him from that relationship and of spending time with his grandparents. Inexplicably the basis for termination of time between X and his grandparents remained unexplained.
Thereafter, the mother largely adopts the minute of the Independent Children’s Lawyer with some amendments those being focused upon seeking a delay in the commencement of any block periods during school holidays until young X has commenced school. It would appear common ground that will be in 2016.
Discussion of Evidence
Each of the parties who have sworn affidavits have been required for cross-examination.
From the outset, I make clear that Mr Daniels is, perhaps, the most impressive witness whom I have ever had the opportunity, indeed privilege, of observing in the witness box. Sadly, Mr Daniels is not present at Court today to hear those words but they will no doubt be conveyed to him.
What is impressive about the evidence of Mr Daniels is twofold. Firstly, whilst one is oft given cause to become jaded and cynical when people espouse Christian beliefs but act entirely contrary to the beliefs they express, Mr Daniels, in giving his evidence, was clear that his Christian beliefs infuse his actions in every respect. Certainly, his description of his attitudes and actions is consistent with that proposition and I accept that it is so.
Secondly, the generosity that was extended by Mr Daniels towards Ms Conroy and his level, balanced and considered discussion of each element of evidence was abundantly impressive. There is no love lost between these parties and that is abundantly clear from the evidence given by each of them and their cross-examination and yet Mr Daniels, I accept, bears no malice and embodies the ethos of “turning the other cheek”. He was clear and I accept that he loves Ms Conroy, the mother of his grandson.
I should be clear at this point that Mr Daniels, the father of young X, has not participated in the proceedings. I am not asked to draw any significant criticism of his absence of appearance nor do I. Mr Daniels has clearly had difficulties in his life. They have, principally, been difficulties with the use of heroin and other drugs. The evidence of Mr Daniels Senior makes clear that he has taken action in relation to his son at times when he has acted other than appropriately. He has expressed real disappointment in his own son, something which I accept no parent would find joy in saying.
However, Mr Daniels Senior is quite clear that whilst previously his son has lived within their home and including, at times, when young X has been present, that he has dealt with his son by insisting that he leave and not return to the home until such time as he has “gotten his house in order”.
At paragraph 8 of his affidavit, Mr Daniels Senior suggests that X first became involved with drugs at the age of 19 years and that whilst using drugs that he became violent. It is suggested that as a consequence of his drug use and violence that he has brought himself to the attention of the police whom Mr Daniels and Ms Daniels Senior would not otherwise have had darken their door.
As a consequence of a relationship between Mr Daniels Junior and a former partner, Ms R, there is a child whom it would appear was taken into care by the Department of Family and Community Services, although placed with Mr and Ms Daniels Senior from the age of nine. Mr Daniels Senior also states at paragraph 9 of his affidavit:
When we discovered that Mr Daniels was dealing in drugs, either my wife or I would call the police to try and stop his behaviour.
He continues in paragraph 10:
If Mr Daniels became violent when he came to our house, we would call the police.
The remaining paragraphs make clear that their actions have been, at all times, protective of themselves and focused and infused, not upon a desire to bring trouble into Mr Daniel’s life but to use the available services, primarily the police, to try and assist him in becoming an instrument of change in his own life.
Mr Daniels Senior suggests that Mr Daniels has, of late, become more reconciled to life and has begun to address his difficulties – holding down a job and remaining drug free and although having been addicted for some little time, struggling on a daily basis with that addiction but being clean at this point.
Mr Daniels Junior is not here to give his own evidence with respect to those matters but on the basis of the impressiveness of Mr Daniels Senior, I accept his evidence without reservation. He is a credible witness and demonstrated, quite clearly, his decency.
That decency included and extended to his views and beliefs regarding Ms Conroy. It is clear from his evidence and, to paraphrase it, that whilst he feels that he has, at times, been badly treated or misused by Ms Conroy, that he holds no grudge, bears no malice and understands that things could have been different but were not - a pragmatist in a very real sense. He makes very clear his view that he loves Ms Conroy. She is the mother of his grandson whom he loves and, accordingly, he is concerned to ensure that things in her life are as best as they can be. He indicated, “We will do anything to make it right but I’m not sure we can do”
He did indicate clearly that he felt that little X would be “better off with our influence”. This proposition was conceded by Ms Conroy during her cross-examination. Mr Daniels indicated that he and his wife were prepared to help Ms Conroy should she ask for it or feel that she needed it and gave examples of how this had occurred in the past through provision of money, groceries and toys for X and his older sister, Y.
He otherwise concluded his evidence by indicating clearly that he wished he could speak with Ms Conroy and “sort this out”. He indicated that he would “look her straight in the eye and with love would speak with her to try and resolve things”. That is unlikely to happen but the fact that there is the insight to understand that it is the way to deal with the issues, to bury the hatchet as it were, and move forward is impressive. It is, sadly, rare of persons who appear before the Court.
Ms Daniels was not as accommodating or as forgiving in relation to that she perceived as the past hurt visited upon her by Ms Conroy or, as she described, of both Ms Conroy and her son, X, being the fact that they had each “used them”. However, in the circumstances, she was remarkably calm and frank and candid. When asked about those issues she had sought advice as to whether she was required to answer the question. On being told that she was required to answer the question, her answer - whilst it may not have been the most helpful of answers to her cause -was entirely genuine. She was clear that she does feel hurt (and it was clear to see that in her presentation) but she does not seek to act upon it.
Ms Daniels has not brought an application seeking to have X removed from the mother into her care and she has not taken any action that the evidence would suggest is motivated by spite, vindictiveness or anything other than an appropriate response to X’s needs.
Much is raised in the evidence with respect to young X’s aunt, Ms K and her attending at and about Ms Conroy’s home with some frequency. Ms Daniels was clear that she does attend in the same street as the mother’s residence on a regular basis. At present, she is staying with a neighbour of Ms Conroy. She indicated she is contemplating, perhaps, moving in with that same neighbour.
She was criticised for this on the basis that she “hangs around, snoops and interferes”. She was very clear that the neighbour, who is someone she has known for quite some little time, has become, if not has been for some little time, a close family friend. This neighbour of Ms Conroy has come out to the home of her parents and has spent significant time with her, her parents and young X.
It may well be that Ms Conroy feels that she is being “cramped” or “scrutinised” when Ms Daniels attends to visit her friend or stays with her. But they are both adults. Ms Daniels is entitled to live her life and live where she wishes to live at any point in time as is Ms Conroy. It was entirely unclear why Ms Daniels’ mere presence was so upsetting to Ms Conroy.
Ms Daniels was not seriously challenged during cross-examination as to any of her actions. The substantial criticisms of her were threefold.
Firstly, that she had, in concert with her mother, her brother and her father, come upon Ms Conroy in the street at (omitted) in February 2013 and then engaged in an argument or verbal altercation with Ms Conroy during which she yelled certain unseemly things or, at least, it is alleged.
The cross-examination of Ms Daniels and Ms Daniels made clear by their version of events, which was remarkably different to Ms Conroy’s, that this was a far more civilised encounter, their attendance prompted by not being able to have Ms Conroy answer the phone and speak with them and, thus, arrangements could not be made for young X to spend time with or communicate with them.
What is common ground between the two versions is that upon Ms Daniels approaching Ms Conroy, that Ms Conroy held up her hand and made clear that she did not wish to speak to her former mother-in-law and continuing to walk away towards her home which she was close to at that time.
Ms Conroy suggests that she was followed, abused, that various neighbours came out having heard the kafuffle and that she was followed into, at least, the front yard of her home if not the home by young Ms Daniels. The evidence does not support that version.
Ms Conroy also suggests that both Mr Daniels Senior and Mr Daniels Junior were also present. Mr Daniels Senior was not cross-examined with respect to that proposition and denies his presence. I accept his evidence that he was not present.
Mr Daniels Junior was not present to give any evidence or be cross-examined. However, both his mother and sister who were present indicate clearly that he was not. I accept their evidence and I, in fact, accept them both as witnesses of truth.
Secondly, Ms Daniels is criticised for “snooping and interfering”. It is suggested that whilst at the neighbour’s home that she calls over the fence and, as was put in submissions, seeks to engage both children, X and his elder sister, in disputes and with a view to “manipulating them”, to encourage them to be with her and her grandparents.
The evidence of Ms Daniels which, again, was not seriously challenged and as to this point she was not cross-examined at all, would suggest something significantly different. She suggests that she does, from time to time, speak to the children but appropriately. Whenever she has come upon Y she has asked her to go and speak with her mother to check that things are all right in the event that she has wanted to spend time with her or engage in further conversation. Again, I do not accept that criticism. I do accept that Ms Conroy may feel uncomfortable having young Ms Daniels around but that is something that adults deal with. She has done nothing that would be a rational basis for concern.
The third and the most substantial criticism, although the precise basis upon which it is suggested to be a criticism is unclear, is that young Ms Daniels, on 15 December 2012, attended at the mother’s home and then took from the home with the mother’s consent both Y and young X. There is some dispute as to whether it was intended to be a short outing to go up to (omitted) and visit a café before coming home or something longer.
The version of Ms Daniels, which I accept, is that Ms Conroy was apparently not well for whatever reason. Ms Daniels speculates that there may have been an ingestion of drugs. She suggests, certainly, that Ms Conroy was very tired and that much is conceded. Ms Daniels suggests that she proposed and offered to take both children to “give Ms Conroy a break”. Having left, she went with them to a café at which time she observed certain behaviours with respect to young X which led her to believe that he was not particularly well. And whilst it was something which she was less forthcoming about in the witness box, although it does not impact upon my acceptance of her as a witness of truth, she formed a concern that the child may have ingested something which was making him ill.
She then left with X and Y, drove to the home of her mother with whom she was then living, collected her mother and went to the (omitted) Hospital with X. Upon arriving at the hospital, X’s father also attended.
The child was admitted and kept in hospital overnight. Various tests were undertaken, including urinalysis. The test results, which were produced some short time after the child’s discharge, suggested that benzodiazepine had been detected. Much has turned upon the suggested “false positive” outcome for that test and the test result only becoming known after X’s discharge.
What cannot be disputed is that the child’s admission to hospital occurred as a consequence of a decision made by medical practitioners to do so.
The criticism is raised by Ms Conroy that Ms Daniels, Mrs Daniels and Mr Daniels all made various allegations to the hospital which were untrue. There is nothing in any of the documents tendered, or any of the evidence led, that suggests a single false statement was made by any of them.
The nursing records, comprising part of exhibit A1, show that whilst Mr Daniels was present at the hospital and observed, interestingly, by nursing staff to be interacting happily and appropriately with the child.
He stated he is concerned that X took some of mum’s “pills”. Unsure which but says possibly Xanax. Dad stated he is not concerned that mum gave him any medications and states mum takes good care of X as best she can. But then states they (his family and him) have been “waiting for something like this to happen”. X was observed at that time to be happy and active, engaging with his father. His father left for a short period of time.
The record then continues discussing matters not directly relevant to these proceedings.
What is clear is that Mr Daniels raised a concern which was plausible. The testing report disclosed the presence of benzodiazepine of which Xanax is an example.
Mr Daniels is much vilified in his absence. In light of the concessions made by Mr Daniels Senior as to his son’s violence the criticism is, in all probability, an entirely appropriate criticism of him at least as regards his behaviours whilst in a relationship with Ms Conroy with respect to whom he is suggested to have visited family violence as well having reintroduced her to heroin, a drug she had previously used and a drug that has led her to be, for some time and continuing, on the methadone program. However, his interaction with X as observed by nursing staff, his prompt attendance and genuine concern suggest some credit might also be due. Change is possible and all of the evidence would suggest that Mr Daniels Junior is trying hard and achieving well to change his life.
The reference to “waiting for something like this to happen” is, clearly, in that context, not as sinister as Ms Conroy has chosen to take it to be. What it suggests is that there has been a lingering concern in the Daniels’ household that something might happen to the child, nothing specific, and nothing that suggests wrongdoing on the part of Ms Conroy but, perhaps, something which might arise through an omission rather than an act.
What is also extraordinary about the hospital records, as already observed, are two things:
a)Firstly, that Mr Daniels is observed acting appropriately and young X being happy and active in his father’s care; and,
b)Secondly, the clear, unsolicited statement to the hospital staff by Mr Daniels Junior that young X is taken good care of by his mother.
What is clear and as was advised to the parties as a consequence of accessing the United States Federal Food and Drug Administration. website is that:
a)Xanax is one of the drugs in the very class of drugs (benzodiazepines) which were found within this child following the urinalysis test; and
b)It is possible, although not predictable or probable, that other less sinister substances such as certain types of cough mixture might show up as a “false positive” for the very drug that was shown to be in this child’s system by the urinalysis report.
Ms Conroy suggests that on the date of X’s admission, 15 December 2012, that both she and X were sick and very tired. Whilst it is not in the evidence of Ms Conroy it is put by her advocate during submissions that X had, that morning, walked with his mother and elder sister from their home in (omitted), to the (omitted) Hospital in (omitted), and had walked back (a distance of around two kilometres). The trip was to allow Ms Conroy to collect her methadone.
The boy was, at that time, 17 months of age and it is suggested that he walked that distance. One would hope he is a fit child. He certainly will be if he does that every day.
The mother suggests that because X was ill she had given him Panadol and cough mixture, a generic brand that she had purchased at the chemist. Whether it is one of the types of cough medicine containing the types of ingredients that might show as a “false positive” for benzodiazepines or not cannot be ascertained, however, nor need it be. All that I need be conscious of is the reaction and aftermath of that event and that hospital admission.
The child was admitted overnight, was discharged the next day and has suffered no ill‑effects from whatever it was that was affecting him. His mother suggests it was an ear infection and that she had a doctor attend upon him once he returned to her care. The hospital records would suggest that they had checked his ears and there was nothing at all abnormal. Whether that is so or not, again, is not the relevant issue.
As a consequence of the urinalysis report and the child’s admission and, no doubt, to some extent, the history given by the Daniels family, a notification was made by the hospital to the Department of Family and Community Services. As a consequence, the Department became engaged with the mother. The Departmental officers would have been most concerned to have heard and to have been provided with a history that the mother had previously used heroin, was on the methadone program and, as Mr Daniels had suggested, used Xanax which the child may have ingested. The Departmental officers, no doubt having conducted inquiries of their own, would have been aware that Xanax fell within the class of benzodiazepines located in the child’s system. The Departmental officers were clearly aware of that because they specifically questioned the mother with respect to it.
The mother undertook urinalysis at the time of the Departmental involvement as is referred to in exhibit A2, that being in February of 2013. That arose as a kind of consequence of the concerns that had been raised regarding the potential that the mother might have used some form of benzodiazepine (or “benzos” as they are referred to in the Exhibit) and this this might have explained the child’s urinalysis report.
When the mother had been tested on 19 December she tested positive for benzodiazepine, the very drug found in the child’s system. What is also clear from the Departmental record is that the mother then denied that she had used Xanax or any benzodiazepine at all.
When the positive drug test was returned a record was produced. It is unclear whether the note records a conversation on 18 December 2012 or 19 December 2013 but, in any event, it is after the child’s admission and after the release of the urine testing report showing benzodiazepine in the child’s system. It reads:
Ms Conroy then said that she had taken half a Xanax on 15 December 2012 after finding out at (omitted) Hospital that X was in hospital.
The mother’s evidence is, I pause to note, that she was not told directly or immediately by any member of the Daniels family that the child was hospitalised. She suggests that she had found out when she had gone to the hospital to collect and take her methadone, a message had been left at that hospital for her. That is consistent with the evidence of Mrs Daniels who suggests that, at the time, the mother did not have a working phone and, accordingly, they would relate messages to the mother through the hospital or through the very same next-door neighbour suggested to harbour Ms Daniels Junior and aid and abet her in the nuisance she is suggested to perpetrate in Ms Conroy’s life.
The Departmental note continues:
I asked why Ms Conroy didn’t tell us this when asked last time we spoke to her. She said, ‘As she knew it didn’t look good.’ Ms Conroy said that she didn’t have any Xanax at home, however, and still believes the test results for X to be wrong. I explained that we are finding it hard to develop a safety plan with Ms Conroy as we don’t know if X ingested drugs by accident or if someone gave them to him intentionally.
The record contains other material which might have some relevance but which I need not discuss at this time. What the record does not contain is any suggestion by Ms Conroy that X had been given quantities of cough medicine. That suggestion is also absent the mother’s evidence in these proceedings and is raised as “evidence from the bar table” by Ms Conroy’s advocate during closing submissions.
What is clear is that the hypothesis that the false positive may have been produced - and I make clear that it is at best “may” - through ingesting some quantity of cough medicine was not raised with Departmental officers. What is clear is that the mother had lied to them, had misled them when they were seeking to investigate a significant and important allegation that the child had ingested a drug, possibly through misadventure and possibly something more nefarious, which had caused his presentation.
One would think, in light of his admission after having been observed and attended upon by hospital staff, the observation of hospital staff and their concerns for the child’s wellbeing that more candour and interest in the child might have been exhibited by Ms Conroy.
Credit must be given to the hospital staff. They would not have admitted the child purely because of the statements that were made to them by Mr Daniels or possibly also Ms Daniels. They admitted the child because they held concerns as medical practitioners for his wellbeing at that time.
As I have endeavoured to make clear to the mother through her advocate throughout the proceedings and, particularly, following the conclusion of the applicant’s case on the first day of trial, there is no need for me to make any finding, nor do I believe, that the mother caused the child to ingest a drug whether through act or omission. It is not suggested in any of the evidence that it is so. But the mother took that possible explanation for the child’s presentation and the results of the urinalysis and the actions of the Daniels family in presenting the child at hospital as being proof-positive that false allegations were being made about her being that she was harming or allowing the child to be harmed. Nothing is further from the truth.
During her cross-examination, Ms Conroy had conceded that the presentation of the child to hospital was entirely appropriate and yet so much is made by her in this case of that very presentation. It is offered as a significant contributor to her subsequent cessation of time between X and the Daniels family.
Lest there be any uncertainty at all I make clear and I find by reference to the evidence that:
a)Ms Daniels Junior, upon collecting X, observed behaviours in him that were not consistent with his usual behaviour and presentation. Whether that extended to his eyes “rolling back in his head” or otherwise, I need not be troubled by. Clearly, she observed something about the lad that suggested to her that he was not himself and required some medical attention;
b)Her actions, as well as those of Mrs Daniels and, for that matter, Mr Daniels in presenting him to hospital were entirely appropriate. The corroboration for the appropriateness of those actions is found through the child’s admission to hospital let alone the concession of Ms Conroy;
c)The child had ingested some substance which, in all probability, caused the behaviours which were observed by Ms Daniels. Whether that was benzodiazepine, whether it was cough mixture which has produced a “false positive” result for benzodiazepine or otherwise, I do not know nor need I;
d)The child’s condition was such that hospital staff were concerned that he should be and thus was admitted to hospital to receive treatment or at least to be observed to ensure that further treatment was not necessary.
In all of those circumstances, it would be clear that rather than the reaction to that admission that has occurred on the part of Ms Conroy, (although Ms Conroy’s reactions are not confined solely to that event), that Ms Conroy should have been immensely grateful to the Daniels family and, in particular, Ms Daniels for the action that they and she took.
Criticism is raised by the advocate for Ms Conroy, indeed, the submission is put although there is no evidence whatsoever to support it nor was it put as a hypothesis to any witness, that the child’s presentation was either mischievous or was in some way calculated to create mischief. I reject the submission. The child was admitted to hospital after assessment by medical practitioners. That should have been the end of the issue.
The concern is raised by Ms Conroy that she was not told immediately of the hospital admission. I accept the evidence of Ms Daniels and Mrs Daniels that they could not contact the mother by telephone at that time as she did not have a working telephone. Indeed, Ms Conroy’s evidence, if I understand it correctly, as it was at times tangential to the questions asked, would appear to concede that reality.
The Daniels family did all that they could to alert the mother short of leaving the hospital and driving back to (omitted) to bang on her door, something which has generated criticism from Ms Conroy when it has occurred. They contacted the neighbour and the hospital and a message was relayed. There was no secrecy involved in the hospital presentation or anything that followed it.
To the extent that Ms Conroy feels that the Daniels family have “set Departmental officers upon her”, she is wrong. Ms Daniels, during her cross-examination, made clear that she was contacted by the Department and I could infer if the hospital records did not make it clear, that the notification was made by the hospital.
Mrs Daniels was contacted to provide further information to assist any inquiries and that is explicable, particularly having regard to exhibit A2, the note wherein the Departmental officers had questioned Ms Conroy as to whether she had or had ever taken Xanax. She had indicated that she did not and had not but then some days later conceded that this denial had been a calculated misstatement as she was aware it would “look bad for her” when benzodiazepine had been found in the child’s system if she had conceded that she had taken benzodiazepine on the very day when the child was observed to be acting abnormally and thus taken to hospital and benzodiazepine found in his system. The lie made it worse not the truth.
Again, I make clear that this is not to suggest that I believe, (and I certainly make no finding nor need I), that Ms Conroy has allowed, caused or permitted this child to ingest any drug. However, her reaction to all of those events is, as I have described throughout the case, “titanic”.
Ms Conroy responded to the admission with a titanic over reaction. If she had been child focused at that time (rather than worrying about it “looking bad for her”) she would have wept tears of joy and humbly thanked the Daniels family for promptly and appropriately helping X. The reaction of Ms Conroy was out of all proportion with the reality of the event and it has no bearing upon that which, in fact, transpired.
The mother has indicated through her advocate that she has felt personally confronted and criticised, particularly through the suggestion that she may have allowed the child to ingest drugs. The suggestion has simply never been made or at least not made by Mr and Mrs Daniels the applicants. What has been made clear is that whilst criticism is raised of Ms and Mrs Daniels (and Ms Daniels) for taking the child to hospital in light of their concerns, their concerns were entirely valid. This child did have benzodiazepine or something which has tested positive for it in his system. They should, again, be thanked and congratulated for the action they took.
They are criticised, particularly young Ms Daniels, for not taking the child to the nearest hospital to the mother, (omitted) Hospital. It is explicable that Ms Daniels would have driven to collect her mother and that one would think that rather than another delay of an hour in driving back to (omitted) Hospital, a hospital close to the mother, that they would simply take him to the nearest hospital to where they then were being (omitted). Young Ms Daniels, again, acted appropriately. The Daniels family did not overreact by presenting the child to hospital. They acted appropriately. The overreaction was that of Ms Conroy.
It must be borne in mind that the reaction to the admission and, possibly, other events, including that which is suggested to have occurred in the street in (omitted) in February 2013, has been to completely terminate the relationship between young X and his paternal family. This is a relationship which Ms Conroy conceded in her evidence when asked about the relationship:
“Well….my little boy will benefit from that”.
The benefit to the child of the very time which is now sought, asked for by the applicants and supported by the Independent Children’s Lawyer, is conceded by Ms Conroy as beneficial. It is concerning that there is then no connection between that concession by Ms Conroy (the belief, understanding and desire as expressed for the child to have a relationship with the paternal grandparents) and the complete, indeed stark, absence of action to make it so.
During the course of these proceedings the only action that has been taken by Ms Conroy to procure a relationship between this child and the paternal grandparents is to file a response and amended response. The response, as initially filed, does not depart dramatically from that ultimately sought in the amended response. Each consistently seeks that time between the applicants, the paternal grandparents, and the child occur once per month for a period of two hours through a supervised contact service.
Various other restraints are also sought, including restraints which are pressed, (even though there is no evidence to support why they would be in the child’s best interests, nor any submission put that would draw the Court’s attention to such evidence), which would preclude the child’s father, Mr Daniels from coming into contact with the child at all. The strongest submission put in support of that restraint was “He [Mr Daniels] is not here to oppose it”.
A restraint was also sought by Ms Conroy to preclude the applicants permitting their daughter or any other person for that matter being in contact with young X other than in their presence. No rational basis for seeking let alone pressing that relief was advanced.
It is extraordinary that this case has proceeded to a final hearing let alone that it has consumed three days of Court time. It is extraordinary that the mother, whilst making the concession she does during cross-examination that this child would benefit from monthly, overnight time with the grandparents, has taken no step towards procuring it nor even offered until closing submissions.
The mother’s advice is not known to the Court and nor should it be. It is governed by legal professional privilege. For some period, the mother was self-represented. There have been two attorneys on record at different times. However, the mother’s understanding of the position advanced by the applicants in this case would not appear to have been complete or accurate at any time including whilst legally represented and up to and including the close of evidence.
Ms Conroy would appear to have been labouring under a misapprehension until the completion of this hearing that there was some issue in this case regarding the child’s removal from her care or some issue in this case as to orders being made in favour of the child’s father, Mr Daniels, for time.
Mr Daniels has never participated in the proceedings, although he has been served and I am entirely satisfied is aware of the proceedings, the orders sought and the consequences of his non-participation being that the Court will not likely make an order or a specific order in his favour for time. However, he has never sought orders.
No-one has ever sought to challenge this child’s continued residence with his mother. The reality is entirely to the contrary. The application initiating proceedings seeks that the child live with the mother and seeks nothing more than time with him, (albeit that it was initially sought on an alternate weekend basis and ultimately, as pressed at the close of evidence, time is sought on a monthly basis).
That the matter has occupied three days of time is not the fault of the parties. No order for costs is sought by counsel for the applicant or the Independent Children’s Lawyer with respect to the third day of hearing, although they would have been entirely justified in doing so.
The proceedings have occupied a third day as it could not be completed on its second scheduled day as the mother’s advocate did not arrive at Court until an hour after the scheduled commencement. But for that lateness the matter would have finished in two days. That has had the consequence that the applicants and the Independent Children’s Lawyer have incurred further cost. Legal Aid will incur further cost if an invoice is submitted by the mother’s advocate for today’s appearance which would be most remiss of the mother’s advocate.
The Court’s time is valuable. Many compete for it. This matter has only concluded today by the Court sitting continuously from 9.30am until whatever time the Court’s business today might finish tonight. On best estimates that will not be before 6 pm and will be without any break including the absence of a lunch break. That is to accommodate and ensure that the parties and young X are not further disadvantaged.
These reasons are delivered on an ex tempore basis as to now adjourn the proceedings with judgment reserved may well delay the delivery of judgment until the New Year. X’s best interests deserve better.
The matter could have been dealt with so much more expeditiously. If the mother’s position in the proceedings had been different to that which was expressed in her material and had, instead, mirrored that which she conceded in the witness box readily and without prompting, that there is benefit to this child of time with his grandparents and on an unsupervised basis, then the matter could have been and in all probability would have been resolved without hearing at all.
It is somewhat scandalous, especially in light of the Court’s presence lack of resources, that the mother’s advocate would deign to arrive an hour late for the second day of a hearing. That has meant that not only these parties and their resources but those of the Court and those of other litigants before the Court today will now also be wasted and my staff and other litigants inconvenienced. It is completely inappropriate and unacceptable.
Concerns also arise as to the failure by the mother’s advocate to have regard to the Solicitors Professional Conduct and Practice Rules. Rules 35 and 36 are specially important providing:
Responsible use of Court process and privilege
A.35. A practitioner must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the practitioner or on the practitioner's advice to invoke the coercive powers of a Court or to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material already available to the practitioner;
(b) are appropriate for the robust advancement of the client's case on its merits;
(c) are not made principally in order to harass or embarrass the person; and
(d) are not made principally in order to gain some collateral advantage for the client or the practitioner or the instructing practitioner out of Court.
A.36. A practitioner must not allege any matter of fact in:
(a) any Court document settled by the practitioner;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence; unless the practitioner believes on reasonable grounds that the factual material already available provides a proper basis to do so.
It is concerning, leaving aside evidential rules such as Browne & Dunn that matters are put to the Court which are not supported by evidence or questions put to witnesses which, at times, have not been supported by any evidence which would allow or permit the proposition to be formulated, let alone put and, at times, particularly regarding the (omitted) Hospital notes. Questions put to Mrs Daniels by reference to those notes were entirely contrary to that contained within them.
Rule 36 of the Solicitors Rules provide that a practitioner must not allege any matter of fact in a document, in a submission, in the course of an address or during any other conduct of the case unless there are reasonable grounds to believe that material is available to support that submission and thus a proper basis for it to be put. Questioning of that nature has protracted these proceedings and, no doubt, the hurt and anguish of the parties and I am concerned, particularly, for Ms Conroy.
Ms Conroy is conceded by all to be doing a good job for this little boy. As Mr Daniels Senior conceded Ms Conroy “loves him more than she loves her own life”. She is devoted to this little boy and no-one has suggested that she will not continue to care for him or that she is not (although Mr Daniels is somewhat more cautious and guarded and attaches a caveat to his concession) doing a good job. That Ms Conroy was not disabused of her belief that his removal was at issue is inexcusable.
That the case has been run to conclusion when the end result of the proceedings was inevitable as a consequence of Ms Conroy’s own concessions during cross examination (i.e. that what was sought was beneficial to the lad) beggars belief.
I do not propose to consider the evidence further save and suffice that it establishes clearly that:
a)Prior to March 2013 X spent significant time with his aunt and his grandparents. Ms Daniels Junior suggests that this time was up to and including a period each and every weekend. That is not conceded by Ms Conroy. She suggests something less but, in any event, what is clear, and certainly I accept the evidence of the Daniels plural, is that their involvement was substantial and that this had included X spending overnight periods of time from a very early age;
b)Young X has enjoyed the time that he has spent with his paternal family in the past and I am satisfied will continue to enjoy it in the future;
c)X’s relationship with the Daniels family was developing quite nicely up to and until March 2013 when it was abruptly terminated for no valid or rational reason. To the extent that there was a reaction to the events surrounding the child’s hospitalisation such reaction was completely misguided and completely contrary to the child’s best interests.
I thus propose to turn to the legislative pathway. I make clear, however, that the totality of evidence has been considered by me and that I have not recited each and every aspect of it should not be taken or inferred to imply that it has not all been considered. Further aspects of the evidence will be referred to in a discussion of the legislative pathway.
Legislative Pathway
I must be satisfied as to jurisdiction. There is and can be no contest that the applicants have standing to bring and prosecute these proceedings as specific provision for applications by grandparents is included by section 65C.
I must then commence with section 60CA that reminds the Court that in all that is done the child’s best interests are the paramount consideration. Having so reminded myself, I must then turn to the objects and principles set out in section 60B and which I incorporate herein:
Objects of Part and principles underlying it
(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).
It must be noted from the outset that the applicants are not a “parent” within the discussion of same in Aldridge & Keaton and Churchin & Burton. They are neither adoptive nor biological parents, (nor “deemed” parents pursuant to section 60H).
The Full Court was clear in Aldridge & Keaton that notwithstanding that the majority of the provisions of sections 60B and 60CC the Family Law Act direct the Court’s attention to a consideration of “parents” and refers to “other persons” specifically in only a small number of provisions that the Court can apply those provisions, save section 60CC(2)(a), (the consideration of meaningful relationship with parents as to which see Churchin and Burton), to persons other than parents. I propose to do so.
I must ensure that the best interests of children are met through ensuring that children have the benefit of both of their parents having a meaningful relationship and a meaningful involvement in their life and to the maximum extent consistent with their best interests. The substantive provisions of section 60CC repeat similar requirements. The objects and principles are not the substantive provisions of the legislation. They do, however, guide the interpretation and application of the substantive provisions and, thus, warrant scrutiny.
If one were to extend this consideration beyond parents to the participants in these proceedings, I am satisfied and can be comfortably satisfied in light of the mother’s own concession, that there is real benefit to this young boy of having a meaningful involvement with his grandparents and having his grandparents meaningfully involved in his life. That extends to the benefit he would receive from a meaningful involvement with his aunt and, for the limited periods that will in all probability arise, if any, whilst he is in the care of the grandparents, with his father.
There is no evidence that young X has, in recent times save the hospital admission, spent any time with his father whilst in the care of the grandparents. Indeed, the only evidence of time that the father has spent with young X arose from the mother’s evidence. She suggests that X regularly sees his father when both she and the father are at (omitted) Hospital collecting their methadone. Why young X is there is something of a mystery but there he is and that is the opportunity that he has to interact with his father.
The mother concedes benefit to X of time spent with his grandparents. I am satisfied there is also benefit in that it will, as Mr Daniels Senior opined during his evidence, provide their stable and consistent influence. They love him, they care for him and they have done the right thing by him since his birth.
The Court must ensure that children are protected from physical or psychological harm arising from exposure to abuse, neglect or family violence. There is no evidence whatsoever that the applicants, or for that matter their daughter (young X's Aunt), have ever engaged in anything that would fall within the section 4 and 4AB definitions of abuse or family violence nor that X has at any time been neglected by them. In fact, quite the contrary. One might well envisage that he is somewhat spoilt by them. That is not a criticism, purely a reflection of reality and their love and largess towards him.
The Court must ensure that children receive adequate and proper parenting. Again, what is glaringly obvious from the evidence is the concession made by all members of the Daniels family that the mother is doing a good job. She looks after X. She loves him. She is devoted to him and committed to his care. Mr Daniels adds the caveat that she is doing “as well as she can” but that need not be viewed as a negative. No-one can do better than they are capable of doing and the evidence, particularly that of Mr Daniels Senior, makes clear that it is accepted that his mum looks after him well.
The Court must also ensure that parents and others for that matter fulfil their duties and meet their responsibilities. As regards the plea for relief by the applicants I have no concern that they will meet their duties and responsibilities, even though, whilst they are not within the category of those considered by the Full Court as parents, they do not have direct obligations to do so. The Court need make no order to cause them to do so. They will do it gladly, willingly and voluntarily.
The principles underlying the objects provide that save where it is contrary to a child’s best interests, children have a right to know and be cared for by their parents and to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development.
Clearly the benefit to this little boy, his right to spend time and communicate with people of significance to him and important to his care, welfare and development, has been denied to him for some few months now. That will be corrected by the orders to be made, many of which can, ultimately, be made by consent or substantially so.
I then turn to the presumption of equal shared parental responsibility in section 61DA. Clearly, it does not apply in this case. The evidence makes clear, including as corroborated by Mr Daniels Senior, that there has been family violence perpetrated by Mr Daniels and, thus, the presumption is not applicable as between the parents.
Lest I am wrong in that regard the presumption clearly applies only as between parents and, thus, the contest in that regard would be between Ms Conroy and Mr Daniels and the presumption does not and cannot apply as between the active participants in these proceedings.
Mr Daniels does not participate and I am be satisfied that if the presumption did apply, that it is rebutted as it would be impractical and contrary to the child’s best interests for it to apply when there is no communication or ability to resolve difficulties at all between young X’s parents.
That being so I am not obliged to consider equal or substantial and significant time before considering any other time arrangement. I propose to consider all time arrangements at large and by turning to section 60CC.
I must commence with the primary considerations in section 60CC(2) being:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and,
b)The need to protect the child from physical or psychological harm.
The latter is prioritised over the former by subsection (2A).
I am not satisfied that there is any evidence that would suggest that the child, whether at the hands of the parents (noting the discussion of the primary considerations by the Full Court in Churchin & Burton), or grandparents, aunts or other paternal family members, has been physically or psychologically harmed. The child has not been exposed to family violence other than in the context of the relationship between Ms Conroy and Mr Daniels Junior. That it has been so is tragic. However, it is historical and disconnected from the active participants in this application.
Thus, I am left with the primary consideration of the child’s meaningful relationship with both parents. Again, as the Full Court made clear in Churchin & Burton, that consideration applies only as regards parents and, thus, in this case the mother.
I must be conscious to ensure that whatever orders are made do not infringe upon, impact upon or diminish the relationship between Ms Conroy and this child. I am satisfied that the orders proposed by the applicants and by the Independent Children’s Lawyer do not do so. The mother concedes that there is benefit of the relationship between X and his grandparents and does not assert any negative consequence at all let alone to her relationship with X. This young lad will continue to have the benefit of a meaningful relationship with his mother.
There is no evidence as to young X’s relationship with his father, nor is he here to press any claim.
I must then turn to the additional considerations.
Views
There is no evidence of young X expressing any view in relation to any aspect of these proceedings.
The nature of the child’s relationship with each parent and other persons including grandparents or other relatives
As would be clear from the above I am satisfied that this child’s primary relationship is with his mother. She has cared for him at all times since his birth.
X does, however, have important relationships with each of his grandmother, grandfather and aunt. They are all vastly important relationships to his life, bringing great benefit and stability and bringing aspects of care, life and stability in life that may not be available or available to the same extent in his relationship with his mother. That benefit has been denied this young lad since March, 2013. It will resume forthwith.
The mother proposes that there would be a lead-in period of day only visits before moving to overnight time. I am satisfied that there is some benefit to that but being regular and frequent periods over a short space of time. I am not satisfied that a three-month delay in the introduction of overnight time would be in any way appropriate. I am prepared, however, to have two day visits occur before the overnights nights start and those visits will both happen during November and December, being alternate weekends from now until Christmas and then commencing with an overnight period on Boxing Day as is sought by the applicants.
There is no need for those day visits to be limited or confined. It is a time of the year when it is hot, the sun rises early and sets late and the evidence would suggest that this young lad is used to spending long, full days with his grandparents. Accordingly, I propose to make orders for time to occur on each of Saturday, 22 November, (tomorrow), and 13 December from 10 am until 7 pm. That will, I am satisfied, allow a sufficient lead-in period.
This little boy had an excellent relationship with his grandparents and his aunt before that time with them was terminated. I have no reason to doubt that he would remember them and remember them fondly. In all probability he has missed them a great deal during this period of time when nothing has been done to resolve the matter or to resume time.
The extent to which each parent or other person has taken or failed to take the opportunity to participate in decision-making, spend time with or communicate with the child
One cannot criticise the grandparents and aunt for failing to participate. They have done everything within their power. When little boy’s aunt has called out to him when he has been in the street or in his front yard she is criticised for doing so. Why it is a criticism is entirely unexplained. The attitude to it demonstrated by Ms Conroy has been petulant. Ms Daniels has simply been trying to engage in the child’s life in a way that she had been allowed and permitted, indeed encouraged, to do prior to the termination of time and in a fashion that is far from offensive or controversial.
Prior to the 2012 amendments, this subsection was contained within section 60CC(4) which also provided for consideration of the extent to which each parent had interfered in the ability of the other to communicate and spend time. Clearly, from the above evidence, that would fall in favour of the grandparents.
Also, prior to the June 2012 amendments, subsection (c) had provided what was often erroneously referred to as the “friendly parent provision”. It was never anything of the sort nor intended to be. It was a requirement to consider the extent to which a parent had recognised, supported, facilitated and encouraged the child’s relationship with the other parent (or other persons). There are circumstances in which it would be entirely inappropriate for such encouragement to occur, in which case there would be no criticism. However, in this case, the failure to encourage the relationship between this child and the extended paternal family, less so in the case of the child’s father, is completely irrational and unexplained.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The applicants have provided financial support, indeed financial largess, to this child since birth. They have also provided for his elder sister. This has been without any legal or moral obligation to do so. X is clearly supported by his mother. It is unclear whether there is any support provided by his father.
Likely effect of change including separation from either parent or other persons
For X to spend time with his grandparents and aunt, he will, of necessity, be separated from his mother and elder sibling. The grandparents have, with some wisdom and foresight, made clear that they are happy, as had occurred in the past, for this little boy’s elder sister to also come on visits. The Court has no power to make an order to compel that but Ms Conroy had indicated that she did not have any significant philosophical objection to that concept and would deal with it on a day-to-day basis.
The effect of separation of X from his mother for periods, whilst spending time with this grandparents and aunt, I am satisfied is beneficial, not because he will not be in his mother’s care but because, as the mother concedes, he will receive benefit from the caring, loving relationship he has with his grandparents and aunt.
Practical difficulty and expense
I incorporate therein section 65DAA(5).
The parties live no real distance apart from each other. The mother does not drive and, accordingly, all transport will be undertaken by the applicants or the child’s aunt. The parties agree the changeovers will occur outside the (omitted) Library on (omitted) a few blocks from the mother’s home rather than the mother’s home. Whilst it would be preferable for the child to transition from his home and return to it the parties are agreed on that aspect and, accordingly, I do not propose to interfere with it. It may have some benefit in assuaging the mother’s concerns that people come to her home uninvited.
The current capacity to implement an arrangement I am satisfied is abundantly demonstrated by past action. Prior to the events from late 2012 until March 2013, this child was spending regular, frequent and overnight time with the paternal family without the need for orders. There is no reason to think that it cannot resume or that the child will not benefit from it. Indeed, he will and Ms Conroy concedes that it is so.
The capacity of these parties to communicate and resolve difficulties is problematic but I am, again, struck by the decency and insight demonstrated by Mr Daniels in that said by him in the witness box. One would hope that this offer is taken up as it was intended being a generous offer to try and start again.
The impact on the child, as addressed above, is positive. Orders for regular, monthly time will not be particularly intrusive into Ms Conroy’s time or parenting and will allow young X to resume a loving, caring relationship. It will allow him stability and will give him benefits that are, perhaps, not available from the mother. Again, that is not a criticism of Ms Conroy, simply an acknowledgment that the skills, love and largess of the applicants are different to those of the mother.
Capacity of each parent and others to meet the child’s needs, including emotional and intellectual needs
It is concerning that the child’s relationship with, his investment in the relationship with, his paternal family was completely disregarded in the action taken earlier in 2013 in terminating that relationship. However, I am conscious to not be unnecessarily critical of Ms Conroy. She has, at different point in times, received advice and, sadly, none of that would appear to have moved her towards or supported her in moving towards a resolution of this issue as should have occurred and by a reintroduction of time.
There was simply no basis for time between X and his paternal family to have ever stopped and the interpretation of events that has been allowed to remain in the mother’s mind, if not actively instilled, encouraged or “stoked”, is far from beneficial to this lad. However, I am satisfied that all of the parties possess sufficient skills and capacity to meet this little boys needs on every level.
Maturity, sex, lifestyle and background of the child and the parties
I am conscious that Ms Conroy, whilst I have dwelt upon Mr Daniels’ past difficulties, has also had difficulties of her own. That is not a criticism of her. She has at different points struggled with addiction. It is a medical issue and she is dealing with it. If she were actively engaging in drug use and ignoring this child’s needs, that would be a criticism. That is not what this mother does. She meets this little boy’s needs. She ensures that he is housed, clothed and fed. He is loved, indeed as Mr Daniels Senior put it, “loved to death”. He is special and cherished, as he should be by his mother, and she does the best she can for him and that is a pretty good best.
The mother has been perhaps misguided and I have certainly been critical of her for her reaction to the hospital admission and Departmental involvement resulting in terminating the relationship between X and his grandparents. That is because the explanation for those events that she has allowed to reside in their mind has been irrational. It has not been based upon the realities of the circumstance that the child was admitted to hospital on medical advice and treated for what was then difficult to explain and for some little time indeed, until now, has remained so.
The mother has some fragility. Again, it is no criticism. Simply an acknowledgement that she requires support. She should not be undermined. She might not cope and function as a single parent with the daily commitments she has to her own health if that is occurring. However, I am satisfied that the evidence does not establish that she has or would be undermined by the paternal family.
Ms Conroy may well feel and perceive that it is so and, to that end, one is reminded of the sage words of Bob Marley “Who feels it, knows it”. This mother perceives, by the simple presence of a person whom she does not wish to see attending at the home of their friend who lives in proximity to her, that she is being harassed. She may feel harassed but she need not impute or imply a motive to the person. It is entirely explicable that they may be attending for their own reasons, completely unconnected to the mother or any desire to interfere in her happiness.
But I must be conscious of her fragility and I am. Primarily, I must be conscious of the child’s best interests and I am not satisfied that this fragility or the perception of interference or harassment, past, present or future, is such as would obviate against this little boy having the relationship which his mother concedes is beneficial to him. I am certainly not satisfied that there is any evidence that would suggest an inability to cope or function as a consequence of the orders which are sought by the applicants or the Independent Children’s Lawyer.
Aboriginality
Neither party identifies as an Aboriginal or Torres Strait Islander and, thus, nor does X.
The mother is from a (omitted) background. I need not be troubled as to whether Parliament had intended that the description of an Aboriginal or Torres Strait Islander child is limited to those from an Australian Aboriginal background or more broadly. The identification of the factor is relevant to the extent that I must be conscious that the orders that are made will not impact negatively upon this child’s right to enjoy culture, including, as expanded in subsection 6, his right to enjoy culture and maintain a connection with culture through and with those with whom he shares it.
This child will live for all but one weekend per month and periods during school holidays with his mother. He will thus practice and enjoy his culture. It is a proud and rich culture. It is a culture which has gained mainstream acceptance and support within its place far better than Australian Aboriginal or Torres Strait Islander culture has been able to maintain as regards mainstream society.
One obvious and highly visible example is the performance of the (omitted) by (omitted) and non-(omitted) members of (country omitted) sporting teams. There is nothing comparable in Australian culture.
(omitted) language is in wide spread use in mainstream (country omitted) society in a way that Australian Aboriginal language is not. Since 1987 the (omitted) language has been recognised as an official (country omitted) language in addition to English. Most government departments and agencies use bilingual names. That is but dreamed of by the Indigenous peoples of Australia.
(omitted) culture has influenced and bettered all aspects of (country omitted) culture in a way that Australian Aboriginal culture would if permitted. Australian Aboriginal culture does and will continue to benefit and better Australian society to the extent it is permitted to do so. It has simply not been permitted to maintain the footholds of (omitted) culture.
The mother is proud of her (omitted) culture and so she should be. It is a culture of which X should be proud and which X can continue to engage in without impact from these orders. It is a culture that will help form X’s sense of self.
The orders proposed and which I propose to make will not, in any way, limit or negatively impact X’s right to culture.
The attitude of the child and the responsibilities of parenthood demonstrated by each parent
I am satisfied that this is addressed above both as regards the parents and others.
Family Violence
I certainly accept that family violence was visited upon by Ms Conroy by Mr Daniels. It has never been visited upon her nor condoned by the grandparents. Each of Mr Daniels’ parents and his sister have condemned his actions towards the mother. That is a very difficult decision for them, to condemn their son and brother for his actions but it is also entirely appropriate. I wholeheartedly accept that Mr and Mrs Daniels have barred him from their home. That demonstrates an abundantly appropriate attitude on their part.
The family violence that has occurred clearly continues to trouble and haunt Ms Conroy. I can well-understand that it might. However, it is not violence that is referable to the applicants nor to which this child will be exposed whilst in their care.
Family Violence Orders
The mother has obtained a family violence order against Mr Daniels. There are no other family violence orders.
Mr Daniels is not participating in these proceedings, has not sought and will not receive the benefit of any order.
To the extent that restraints are sought which would preclude the applicants permitting their son or daughter to come into contact with X or contact other than in their supervision, I am satisfied that those orders are not necessary. The evidence does not establish any need for them.
Such restraints would not be orders that would protect this child from behaviour to which he would, in all probability, be exposed. Nor are they orders that would meet his best interests. To the extent that they would have the effect of cutting out or limiting his aunt in her involvement with him, they would, in fact, be positively detrimental.
Whether it is preferable to make orders that will least likely lead to the institution of further proceedings
At the outset of the case the Independent Children’s Lawyer had made clear that some form of family counselling or therapy might be of assistance in achieving this end by improving communication. However, I am struck by the evidence of Mr Daniels and, to a lesser extent, Mrs Daniels that they are, as it were, emotionally exhausted. They do not see that external assistance which might be offered by way of family counselling is necessary and, ultimately, the Independent Children’s Lawyer has not pressed the issue. I am content that it need not be ordered.
Certainly, some form of counselling support for the mother would be ideal. That is not to suggest any deficiency in her. It is purely that she has now to adjust to the reintroduction of X’s time with his paternal family and that will bring with it stresses for her. The mother has appropriately sought out, through the (omitted) Hospital, counselling supports and they are in the process of being put in place. Accordingly, I am satisfied I need do nothing further.
As regards the orders sought by the applicants and as proposed by the Independent Children’s Lawyer, as would be clear, I have no difficulty in making orders for a very short lead-in period of day visits, two of them, prior to overnight time commencing this Christmas.
As regards block periods of time I am satisfied that young X has previously had periods of some days with his grandparents and, on the basis that block periods will not commence until the holidays following term 1, 2015, even though he will not have commenced school at that time, I am satisfied that one week blocks will then be appropriate. He will have very much resumed overnight periods and will have had several weekends by then.
I would propose, as the mother has conceded in her evidence, to increase the Christmas block period to two weeks once he has commenced school. Ms Conroy was clear that this would be something that X would benefit from and would cope with. Her evidence was in the context of opposing time during the shorter school holidays. However, I am satisfied that this 2 week block would be beneficial to this young lad in addition to blocks in the shorter holidays.
For those reasons I will shortly make orders substantially as sought by the Independent Children’s Lawyer and the applicants. However, before doing so and in closing, I wish to make clear that I have some concern that Ms Conroy has been misled to some extent and through whatever means, (and I do not seek to identify them, nor am I in a position to do so), as to that which was sought by the applicants as well as the basis upon which this Court would proceed to hear and determine the proceedings. That misunderstanding is regrettable at any time and for any litigant. For it to subsist when a litigant is legally represented is inexcusable.
The focus in Ms Conroy’s evidence in the conduct of her case was upon matters that were irrelevant, unsupported by evidence or which otherwise did nothing to advance either the best interests of this child or the principles guiding the conduct of child-related proceedings set out in section 69ZN. That is regrettable but the presentation of the case involves forensic decisions that are not taken by Ms Conroy. She has been led that merry dance as have the applicants.
Accordingly, I make orders as follows.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 13 March 2015
- AGLC
- Daniels and Anor and Daniels and Anor [2014] FCCA 3133
- Case
- [2014] FCCA 3133
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was in the child's best interests to spend time with the paternal grandparents, given the established relationship and the clear benefit derived from it. The court also had to consider the mother's opposition to this contact, which was based on her perception of the grandparents' actions as "meddling."
Judge Harman reasoned that there was a clearly established relationship between the child and the paternal grandparents, and that this relationship offered a clear benefit to the child. The court found that the mother's opposition was disproportionate to the circumstances, particularly in light of the confirmed benzodiazepine ingestion and departmental involvement. The court applied principles of family law concerning the best interests of the child, weighing the established positive relationship with the grandparents against the mother's concerns.
The court ordered that the mother have sole parental responsibility and that the child live with her. However, it also made detailed orders for the child to spend time with the paternal grandparents, commencing with specific dates in late 2014 and then establishing a regular schedule of monthly weekend time, holiday time, and time on specific public holidays and birthdays, with provisions for changeovers and communication between the child and the mother. The orders also included provisions for respectful communication between the parties and consequences for contravention.
Orders
Orders of the court
1.
The Mother have sole parental responsibility for the child X born (omitted) 2010 (‘the child’).
2.
The child live with the Mother.
3.
The child spend time with the Applicants as agreed and failing agreement as follows:
(a) For each of 22 November 2014 and 13 December 2014 from 10:00am until 7:00pm;
(b) Once per calendar month commencing January 2015 from 3.00pm (or after school on school days once the child has commenced attending school) on the first Friday of each calendar month until 5pm on the next following Sunday;
(c) For one week in each of the child’s school holiday periods, commencing with those following Term 1 2015, commencing at 5.00pm on the second last Sunday of each school holiday period and ending at 5.00pm on the last Sunday of such holidays and providing that from the time X commences school in 2016, that time during the Christmas school holidays shall be a two week block from the third last Sunday until the last Sunday.
(d) From 10:00am on Boxing Day until 4.00pm on 27 December in each year;
(e) For a period of two (2) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Applicants pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm.
4.
The Applicants time with the child shall be suspended on the following occasions:
(a) For all but one week in each of the child’s school holiday periods, commencing at 5.00pm on the second last Sunday of each school holiday period and ending at 5.00pm on the last Sunday of such holidays;
(b) From 4.00pm on Christmas Eve until 10.00am on Boxing Day in each year;
(c) From 5.00pm on the Saturday immediately preceding Mother’s Day until 5.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
(d) From 5.00pm on the day immediately preceding the Mother’s birthday until 5.00pm on the Mother’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
(e) For a period of two (2) hours on the child’s birthdays in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Mother pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm.
5.
For the purposes of the above, changeover shall occur as agreed between the parties and failing agreement at the entrance of (omitted) Library, (omitted).
6.
The Applicants and the Mother shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parties within 48 hours of any change to either their residential address or telephone number.
7.
Each party shall at all times:
(a) Be courteous and respectful to the other parties and their family members;
(b) Not denigrate the other parties or their family members; and
(c) Be restrained from using profane language and making derogatory comments about the other parties or their family members in the presence or hearing of the child, and shall remove the child from the presence of any person who is denigrating the other parties or the other parties’ families in the presence or hearing of the child.
8.
The Applicants shall allow X to telephone and speak with his mother whilst he is in their care should he express a desire to do so and the Applicants shall cause X to telephone his mother between 6:00pm and 6:30pm each Saturday and during school holiday periods and in addition each Wednesday.
9.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
10.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
11.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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