Sister wins case for her younger brother to live with her

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This case involves an application for parenting orders in respect of X who is six years old.
3. The applicant is X’s 26-year-old sister. She seeks final orders that X live with her, that she have sole parental responsibility for him and that he spends time with his mother as agreed between her and the mother. She proposes that X spend no time with his father.
4. X came into the applicant’s care in May 2015 after an incident where he was allegedly – and I will call it that at this stage – harshly physically disciplined by the mother and he has lived with her ever since.
5. The applicant is not opposed to X spending time with his mother and she facilitated time occurring at her home as recently as the Sunday just gone. However it is her case that it would not be safe for X to live with his mother or spend unsupervised time with her at the moment given the mother’s lengthy history of drug use including use of ice.
6. The mother is 47. She has spent supervised time with X in one form or another since May 2015. She seeks final orders that X continue to live with the applicant until she has obtained more permanent housing and demonstrated that she can continue to stay drug free.
7. She seeks an order that she and the applicant share parental responsibility and that X spends time with her each alternate weekend from Friday to Sunday and for half of the school holidays. The mother also wants to be able to attend school functions and to find out about things like medical appointments and she wants to be able to have telephone communication with X.
8. The mother does not dispute that she has a long history of illicit drug use, that she began using ice in 2011 and that since 2012 she has been charged with a number of criminal offences arising out of her drug use. It is her case however that she has ceased illicit drug use since spending ten weeks at (omitted) Rehabilitation Centre between November 2016 and 10 January 2017.
9. The mother acknowledges that she is still facing some criminal charges but says that she is determined to stay drug free. It is her case that given that she is not using drugs at the moment there is no reason why X should not spend unsupervised time with her.
10. X’s father is Mr Wilson who is 35. He is an illicit drug user who has a 25-page criminal record. His first conviction was in Coonamble Children’s Court when he was 12 and he has spent the majority of his adult life in jail. He was out of jail on parole between September and November 2016 but he reoffended and is back in jail. He has never taken part in these proceedings.
11. X’s sister has the standing to make an application for parenting orders; pursuant to section 65C(c) of the Family Law Act she is a person who is concerned with the care, welfare and development of the child. She is not a parent but cases like Aldridge & Keaton ^[1]and Rice & Miller^[2] make it clear that while the fact of parenthood is a relevant matter it is simply one matter the court has to take into account in order to determine which parenting proposal is in a child’s best interests.

The evidence

12. The applicant gave evidence in her case, the first respondent mother gave evidence in hers and I have before me a family report prepared by Ms D, a Regulation 7 family consultant.
13. All of the witnesses were cross-examined.

Background

14. The mother has two daughters: Ms Harper, the applicant, who is 26; and Ms I who is 21.
15. The mother admitted that she had been a cannabis and amphetamine user for at least 20 years and that she used drugs throughout the applicant’s childhood. She alleged however that for a long time she was only a social user and only used drugs outside the home.
16. The applicant disputed this and there are strong indications in the evidence of the mother minimising things, making excuses and giving very inaccurate evidence. She said that she had no memory of her own childhood and of many things in her recent past. The applicant on the other hand was a straightforward and reliable witness. She has no drug and alcohol issues. She seemed to me very mature and grounded and she has a very forgiving attitude to her mother.
17. I prefer the applicant’s evidence about what happened during her childhood and she said that she had vivid memories of drug use in the household and of there being a bong in the laundry cupboard and a horrible smell of cannabis in the laundry.
18. In the family report it is suggested the mother began using amphetamines orally in her late 20s and began using ice in 2011, and that fits with the information the mother gave (omitted) when she went there in late 2016.
19. The applicant said that her mother subjected her to verbal and physical abuse during her childhood and that she slapped and punched her and pulled her hair. She said that this went on until she was 13 and stood up for herself and then her mother left her alone. I accept her evidence. I found her a reliable witness and not someone prone to gild the lily and say things that were dramatic but possibly untrue.
20. The applicant’s childhood was not all doom and gloom. She was appropriately dressed and she went to school but it was a tough childhood and she left home at 15 and had her first child when she was 18.
21. The mother commenced a relationship with X’s father Mr Wilson in 2009 during one of his brief stints out of jail and X was born on (omitted) 2010 when Mr Wilson was back in jail. At this stage Ms I was still at home and she very likely helped her mother with the care of X when he was younger.
22. The mother’s evidence was that in 2011 or thereabouts she commenced using ice. She had used other drugs up to that point but she only had one drug charge up until then, a possession charge in 2006. After 2011 things changed and the mother now has a number of criminal convictions.
23. In (omitted) 2015, just prior to X’s fifth birthday, Ms I, who would then have been 19 on my calculation, contacted the applicant on Facebook and told her that the mother had assaulted X. She took X to the home of another relative. A report was made to the Department of Family & Community Services and to the police. X came into the applicant’s care and she filed an application in this court seeking an order for X to live with her.
24. The mother was very angry about the applicant retaining X and was very abusive to her.
25. On 20 April the applicant agreed to the mother spending time with X at McDonalds for his birthday. Aided by some male friends the mother took X.
26. The applicant filed an application in a case seeking a recovery order and on 11 May 2015 an interim order was made that X live with the applicant, that she have sole parental responsibility for him and that the mother spend supervised time with him at a contact centre.
27. The mother did not immediately hand X over and the recovery order was executed. X has lived with the applicant ever since.
28. The applicant found herself in a very difficult situation. She has three children of her own who are 8, 6 and 3 and X’s behaviour was challenging when he first came to live with her. Her three children found his presence difficult and kept asking her when X was going home, she received no financial support in caring for him and the assistance she had hoped for from an aunt did not materialise.
29. However the applicant persevered.
30. The mother was compliant with the Court orders which allowed her to spend time with X. She spent time with him at (omitted) Children’s Contact Centre for almost 12 months until they said they could not do it anymore and after that some visits were organised at (omitted), a more expensive private supervised contact centre.
31. In August 2016 Ms D conducted interviews for the preparation of a family report. It was clear to her that the applicant was finding the care of X challenging and she formed the view that the applicant felt that X might need to go into foster care.
32. The applicant says that Ms D misunderstood her and that although she was struggling she wasn’t ready to give up, and she has stuck with caring for X since then and set out in her affidavit the improvements that had occurred over time. She said that X’s behaviour at home had improved and he was fitting in better with the family and sticking to routines, he had made some friends at school and his behaviour at school had also improved.
33. Things have become a little easier for the applicant in terms of caring for X
34. The applicant lives in (omitted) with her partner of seven years who has also accepted X into the home which is greatly to his credit. There are no allegations of any drug use, alcohol abuse or family violence in that home.
35. X is attending (omitted) Public School where he is in Year 1 and he is getting on much better than he was when he first started school in 2016.
36. The mother has had a number of brushes with the law since X went into the applicant’s care. In 2015 she was charged with frequenting a drug house and in 2016 she came to the attention of the police on a number of occasions to do with possession of drugs or drug paraphernalia or supply of drugs.
37. In August 2016 the mother was found outside (omitted) library with cash, two mobile phones one of which had messages suggesting drug dealing, a small quantity of cannabis and some ice pipes. She told the police at the time – and this is interesting, given the clean drug tests she has produced, including one at around this time –that she had an ice habit and that the ice pipes were for her own use.
38. The mother was charged with supply and possession and also with possession of proceeds of crime as a result of sums of cash found in her car. After her appearance in court she was referred to the MERIT program and then to (omitted) Rehabilitation Centre.
39. The mother commenced at (omitted) in early November 2016 and left on 10 January 2017. She said that she left because she was discharged in other words because she no longer needed to be at the centre. The (omitted) notes do not support this. They suggest that the mother was discharged for disciplinary reasons and that on the previous day she did not attend a psychology appointment, did not attend “group” and did not attend kitchen work therapy. They do not support the mother’s suggestion that she graduated from (omitted) because she did not need to be there anymore.
40. The mother is living with a friend Ms K in (omitted). She said that she was no longer using drugs and the applicant said in her evidence that her mother seemed well and seemed the best she had ever been. However the mother has to go to court in June 2017 in respect of the outstanding criminal charges. She intends to plead guilty to some of them but not guilty to being in possession of proceeds of crime.
41. One of the concerns I have about the mother is that there was no evidence in the affidavit she filed yesterday morning that she was currently engaged in any counselling or in a rehabilitation program in relation to drug use. On Monday she said she was doing something at the (omitted) Hospital but there was nothing about that in her affidavit.
42. Before I move onto X’s best interests I will mention the father Mr Wilson.
43. The father was convicted of stealing in Coonamble Children’s Court when he was not quite 13 and he has numerous Children’s Court convictions after that. When I was making a note of them I thought that if someone picked up the Crimes Act and flicked through it they would probably find that he has convictions for almost everything in there.
44. The father’s Children’s Court convictions include convictions for stealing, malicious damage, possessing housebreaking implements, unlawful entry, enter in closed lands, assault, resist arrest, offensive language, assault police, threatening people, intimidation, assault occasioning actual bodily harm, threatening a witness, being in a stolen car, contravening an ADVO and breaching an ADVO, shoplifting and robbery in company.
45. As an adult he has convictions for larceny, assault with intent to rob (and when I mention these charges, some of them appear on a number of different occasions in his record, so I am not just talking about one offence), robbery in company, offensive language, possessing a prohibited drug, supplying a prohibited drug, aggravated break, enter and steal, assault police and resist arrest, goods in custody, assault occasioning actual bodily harm, stalk intimidate, custody of a knife in a public place (more than once), recklessly causing grievous bodily harm and possessing housebreaking implements and then there are multiple charges on 16 November 2016. He is now again in prison.
46. In the sentencing remarks made following the father’s recent convictions it was noted that he had spent hardly any of his adult life out of jail. The mother described him as not fit to be in society and she is not wrong. She said as follows in her affidavit:
    He has no intention of trying to become a decent member of society, and the rest of his life will more likely be spent in prison, as he has no concept of how to live or behave in the real world, and my son doesn’t need that kind of influence in his life, even if he is his biological father.
47. I agree wholeheartedly with that but the mother has known the father for seven years and it is concerning that it has taken her seven years to come to that realisation.

Conclusion

141. X loves his mother and if he had his wish he would live with her.
142. I am sure the mother loves X and it is important for a child to know that they are loved by a parent especially in a case like this where the child really only has one available parent.
143. However I cannot make an order that X lives with his mother at the moment, and not just because of her housing. It is not a case of saying to the mother “If you get a house we can consider X living with you”. The matter is nowhere near that simple.
144. X could be at risk if he returned to live with the mother prematurely. There is a considerable risk that the mother may relapse into drug use and this is not a case where the mother has been sitting quietly at home using drugs. All the evidence suggests that she has been part of a drug culture, a culture where she is around other people who use drugs. She has been supplying drugs. There is no way that I could make orders which might result in X living in that situation and it is far too early to say that the mother will remain free of drug use and has removed herself from the drug culture.
145. X is extremely lucky that his sister took him in. When he began living with her he had just turned five. He had extreme difficulty with basic tasks and socialisation. He has made huge strides and if he returns to live with the mother and she resumes using drugs he may end up like his father: before he is 13 years old starting to appear in the Children’s Court. That is one of X’s future roads, and if anything can be done to prevent that happening it needs to be done.
146. I strongly hope the mother does remain drug-free but there is an enormous risk that she may relapse.
147. The mother has a lengthy history of drug use. She went from using cannabis to amphetamines and then to methamphetamines. Things have gradually got worse rather than better for her. She is not having any counselling or receiving any assistance at the moment to help her remain drug free and she is facing further criminal charges. She was using ice as recently as November 2016. I just cannot take the risk of making an order at the moment that X even spend unsupervised time with the mother unless the applicant decides, from seeing her mother and talking to her mother, that she is willing to take that risk, because I am satisfied that the applicant will be willing to test the situation if she thinks it is appropriate to do so but will also be willing to step straight in and keep X safe.
148. I am not even prepared to do what the mother proposed and make an order for unsupervised time on weekends and I am certainly not prepared to consider changing the child’s residence.
149. I feel enormous sympathy for the applicant. She has taken on a huge burden at the age of 26 with three children of her own, but she is X’s only hope for the future at the moment, the only hope he has of becoming a productive, valued member of society instead of going down the same road as his father. I hope that other members of her family support her and that everyone stays strong for X’s sake.