5 June 2007

Samuels & Errington (No. 2) [2007] FamCA 507

After a full contested final hearing that proceeded over six days, the Family Court of Australia has ordered that a nearly ten year old boy should live with his paternal grandparents in Hobart rather than with his mother who wishes to live in Perth. 

The final hearing followed an interim hearing in January 2007 in which Justice Carmody had to decide whether the child should live either in Perth or Melbourne with the mother, who had been the primary carer of the child for most of his life, or be returned to his paternal grandparents in Hobart pending final hearing.  

Justice Mushin, of the Family Court, has found in the final hearing that it is in the best interests of the child to live in Hobart with his paternal grandparents.

In a 59 page judgment, Justice Mushin found that:

  • the paternal grandparents were competent, nurturing and protective carers who were able to act in the child’s best interests, provide for his needs and promote his relationships with his mother, father and other relatives
  • the child had thrived during the ten month period in which he previously lived with his paternal grandparents
  • if the child lived with the paternal grandparents he would be able to spend significantly more time with his father and maternal grandmother who live in Hobart and were found to be supportive, loving figures in his life
  • the child expressed views that he would prefer to live with the paternal grandparents in Hobart rather than with his mother in Perth
  • when in Perth he greatly missed his father and paternal grandparents, and when in Hobart he did not miss his mother as much, and
  • the relationship between the child and his mother was seriously flawed as a result of the mother’s previous parenting, which included neglect, and physical and emotional abuse – elements which were admitted by the mother in her sworn evidence.  Mushin J did not accept the mother’s submission that she had changed her parenting style.

Justice Mushin observed that in the fundamental issue of the child’s best interests he ‘must ensure that the child is protected from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence’. The judge considered that if the child lived with his mother in Perth, he would be exposed to a ‘very high risk of physical harm’.

Justice Mushin also ordered that the child should not come into any contact at all with the mother’s partner who was convicted of the possession of child pornography. The volume of the child pornography, 350,000 still images and 6,400 videos, is said to constitute an Australian record for the greatest amount of child pornography collected, Justice Mushin held.

He found that statements of the partner were not correct and that there was a breach, at least in spirit, by the mother of interim orders made by Justice Carmody that the child was not to be alone with the partner. 

Justice Mushin ruled the partner constituted an unacceptable risk to the child. His Honour said the child would be at risk of being exposed to child pornography if the partner relapsed – even if this recidivism risk was a small one. 

He found the child may be excluded or ridiculed by his peers if the mother’s relationship with the partner continued. He considered the mother’s relationship with her partner was a ‘negative factor’ for her and a ‘major issue’ in the matter.

Justice Mushin commented on the grandfather’s admitted alcoholism and previous drug addiction. His Honour was impressed with the grandfather’s reaction to those allegations, and the way in which he has dealt with the afflictions. The judge said this did the grandfather considerable credit. He did ‘not regard either of those matters as being negative in the grandparents’ application’.

His Honour was critical of the grandfather in his conduct of a media campaign concerning Justice Carmody’s decision in January 2007. His Honour found that the media campaign may have been ‘significantly contrary to the child’s best interests’.  

Justice Mushin made a number of other final orders relating to contact and visits between the child, his father and mother, and other relatives.  

His Honour also ordered that the paternal grandparents and the mother have equal shared parental responsibility for making major long-term issues for the child.

He ordered that the child should be collected by the grandmother from the mother’s residence in Perth no later than Thursday 14 June 2007.

Justice Mushin observed that he had much more comprehensive material available to him than was previously presented to the Family Court on the hearing of the interim applications by Justice Carmody in January 2007. Divergent results in final, as opposed to interim, hearings are not uncommon.

Justice Mushin said that the manner of presentation of the initial interim applications was quite different to that before him. His Honour said he had the advantage of observing all the relevant witnesses and hearing their cross-examination during the six-day hearing. His hearing, he noted, was therefore very different to the interim hearing and has enabled the Court to consider all relevant issues. 

Justice Mushin’s decision confirms and broadens the restraining order in relation to the mother’s partner by Justice Carmody in January 2007.

NOTE: This statement is not intended to be a substitute for the reasons of the Family Court of Australia or to be used in any later consideration of the Court’s reasons. The anonymised judgment in this matter is known Samuels & Errington (No. 2) [2007] FamCA 507. The full anonymised judgment is available on the Family Court’s web site and AustLII.