The child came first in this matter…. mum had not seen her daughter for 5 years

The child came first in this matter…. It is often the case that children are hard done by when parents and extended family members go to some lengths to stop the other parent from seeing and/or spending time with a child.

This case is about a mother who after having her second child struggled to cope and the father took the baby off her and disappeared. The mother was in an unhappy relationship the father took that child from mother for “respite” but disappeared interstate with child and paternal grandmother – Child did not see mother for five years – Orders in this matter were made that child live with mother and spend supervised time with the paternal grandmother.

In McLeod & Needham & Anor [2015] FCCA 2808 (1 October 2015) Judge Terry heard a parenting case between the mother and paternal grandmother of an 8 year old child (“X”). The parents began living together when the mother was 17 and the father 20, the mother describing their relationship as being characterised by violence and coercive conduct by the father ([6]). The case did not relate to their older child, a son (“Y”). The father did not take part in the proceedings except to appear in person on the first of the four days of the hearing to say that he supported the paternal grandmother. The Court said that… “The mother … was very conflicted about this second pregnancy. [There was a son (“Y”).] She said … that she was happy she was having a girl but was very unhappy in her relationship … X was born [in] 2007 and there is no dispute that the mother did not cope very well after X was born. X had to be airlifted to Adelaide for treatment soon after she was born. The paternal grandmother is of the belief that the mother did not go to Adelaide to be with her but this is not correct. The father went on the plane with X and the mother went down by road.

When X came back to (omitted) the mother was still not coping and when X was about three or four months old … the father took X with the mother’s agreement and left [the area].

The paternal grandmother holds to the belief to this very day that the mother gave X up to the father permanently. However the paternal grandmother was not present during any conversations between the father and the mother and the father did not give evidence.

I am concerned about the subsequent actions of the father and paternal grandparents. They took X to Queensland, to places where the paternal grandmother conceded during cross-examination the mother could not have found them. It gives rise in my mind to a concern that what happened was that the father in fact stole X away, because the mother’s evidence was – and I have no reason to doubt it – that she thought that the father was just taking X for a little while to give her some respite.”

Y remained with the mother and the father did not see him again ([16]) and for the next five years the mother did not see X either ([18]). In that time the mother was “struggling with alcohol abuse and began using cannabis” and “did not make very strenuous efforts” to find the child as she was “struggling with her own issues” ([21]). The Court said (at [23]):

“ … However gradually over time the mother got her life back on track. She sought assistance for her depression and anxiety, she obtained a job and in due course she bought a house … subject to a mortgage and re-partnered with Mr C.”

The mother began parenting proceedings and spending time with the child after hearing from the Child Support Agency that the father was in jail ([24]).

The Court said (from [35]):

“The mother is 30. She is in a good place in her life. She is employed, she is studying and she has no issues with drugs and alcohol. It was her case that it was far preferable for X to be with her given that there were concerns about what was happening in (omitted): the paternal grandmother was ill and frail and, on the mother’s case, may be relying on X as a crutch.

[36] … in the end [the mother] sought the same orders as were proposed by the independent children’s lawyer, namely that the child should spend supervised time with the paternal grandmother in (omitted) for the first 12 months. What was to happen after that was a bit of an issue.

[63] An issue which looms large in this case is the fact that apart from the maternal grandmother and the mother all of the parties and extended family in this matter [whom] I have had any dealings with have criminal convictions … ”

The child had “told the family report writer that she wanted to stay with the paternal grandmother” and that “the paternal grandmother needed her because the paternal grandfather had died” ([94]). The report writer’s view being that the child “had been coached to say that” ([95]), the Court ultimately declined to place weight on the child’s views as she had had “insufficient experience of the alternative offered by the mother” ([100]).

The Court said (from [113]):

“A big plank of the paternal grandmother’s case was that the mother had abandoned the child, almost pushed her away; let her go.

[114] The mother did let the child go in 2007 but I accept her evidence that she thought that it was simply a respite, a temporary arrangement and that in due course she would be able to reconnect with her daughter. I accept the mother’s evidence that she did not intend to part with X permanently. [116] I take into account that the mother handed X to the father in 2007 and I take into account that five years passed when the mother did not see the child, but that is not the be all and end all of the case. It does not create a bridgehead which means that the paternal grandmother is somehow ahead in terms of being able to retain care of the child. It is simply one matter I have to take into account. [156] The mother has to take some responsibility for what happened, but if the father had not walked out with that little baby in a blanket and taken her away and gone to Queensland for four years to places where the paternal grandmother admitted the mother would not have known to look for her and had made no attempt to contact the mother at any time after he took the child … then the gap when the child had no connection with the mother would not have happened either.”

The Court concluded (at para 181):

“The paternal grandmother’s fixed belief is that the mother abandoned the child in 2007 and underlying that is perhaps a fixed belief that the mother does not really deserve to have this child. I consider that there is merit in the family report writer’s opinion that the paternal grandmother and probably other members of the paternal family do not really support the child having a relationship with her mother. [182] If I make orders for the child to remain with the paternal grandmother and spend time with the mother I cannot be 100 % certain that the time with the mother will necessarily occur uneventfully. … [186] Even though the paternal grandmother and paternal aunt believe that the father is using ice and even though they know he is violent, they had been allowing the child to go with him to wherever that may be because the paternal grandmother said she did not know where the father took her. They have even allowed the father to take the child away overnight. They have repeatedly placed the child at risk. [187] The paternal grandmother’s counsel said that I should place weight on the fact that the child had not in fact been injured. However while it is true that she has not been physically injured but she has undoubtedly been psychologically and emotionally harmed by exposure to the father’s violence and lifestyle. It is inevitable; it must be the case.

[188] If the child remains with the paternal grandmother it is difficult to see how the court can do anything to prevent the child continuing to be exposed to the father …

[210] There is a very high risk that if X remains with the paternal family her relationship with her mother will fail to thrive due to the antagonism the paternal family feel for the mother and the mistaken beliefs they hold about her which could in turn lead to a failure to take X to changeovers and a failure to facilitate telephone communication. [211] My major concern is that nobody in the [paternal] family is capable of protecting X from exposure to the father’s drinking, drug use and violence. ( … ) [219] There is risk that X will not settle if I order that she lives with the mother. She may behave in ways that the mother and her family do not like very much because she has had certain behaviours modelled to her. She may be a challenge for the mother. She may not, you cannot be sure how things are going to go, but she may be a challenge. ( … ) [221] However no matter what the risks are of X not settling easily with the mother, or proving a challenge for the mother, no matter what those risks are, X cannot remain where she is. I have to change her residence. At least I will be giving her a chance and she will not have a chance if she stays where she is.” It was ordered that the child live with the mother and that the paternal grandmother have supervised time at Interrelate Children’s Contact Service for 12 months, that time to incrementally increase to unsupervised time.

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