Amir and Alza and Anor

[2015] FamCA 341

FAMILY COURT OF AUSTRALIA

AMIR & ALZA & ANOR [2015] FamCA 341

FAMILY LAW – CHILDREN – Interim parenting – Best interests of children – Whether the two younger children should spend time with the paternal grandfather – allegations of domestic family violence by the father

Family Law Act 1975 (Cth), ss 60CC, 60CC(2A)

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT: Mr Amir

FIRST RESPONDENT: Mr Alza

SECOND RESPONDENT: Mr Magid

INDEPENDENT CHILDREN’S LAWYER: Ms Shedden

FILE NUMBER: PAC 4503 of 2014

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms El Baba of Oxford Lawyers

FIRST RESPONDENT (UNREPRESENTED LITIGANT): No appearance

SOLICITOR FOR THE SECOND RESPONDENT: Ms Seric of Legal Aid NSW Campbelltown Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shedden of Shedden & Associates

Orders

1. The Application brought by the Second Respondent paternal grandfather for interim orders that he spend time with the two youngest children is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amir & Alza and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4503  of 2014

Mr Amir

Applicant

And

Mr Alza

First Respondent

And

Mr Magid

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in parenting proceedings have six children, four of whom are under 18 years of age. The two eldest boys, B who is 15 and C who is 14, live with their paternal grandfather while the two youngest children, a girl D who is 11 and a boy known as E, who is five, live with their mother.

2. This application, brought by the children’s paternal grandfather is for interim orders that he spend time with the two youngest children. It is opposed by the mother and the Independent Children’s Lawyer (ICL). The father has not been recently participating in the proceedings and his attitude toward this application is unknown.

3. The question for me to determine is whether it is in the best interests of D and E for the interim parenting order sought by their paternal grandfather to be made.

The uncontested facts

1. The mother and the father who were married for almost 20 years separated in about December 2012. The relationship appears to have been characterised by family violence perpetrated by the father and at least one Apprehended Violence Order (AVO) was made for the mother’s protection during the relationship. Initially the mother and her five younger children were living at the former family home following the separation. In about September 2013 B who was then 13 left the family home to live with the father and in around January 2014 C also started living with his father.

2. The two youngest children in respect of whom the paternal grandfather brings this application have spent no time with their grandfather since around November 2013 when D was 10 and E was four.

3. On 6 February 2014 the father assaulted the mother and oldest daughter in their home when the younger two children were present. Following this event, the mother, her oldest adult daughter and the two youngest children moved to a women’s refuge. At around the same time B and C moved from their father’s home and went to live with the paternal grandfather. Community Services became actively involved with the family from around this time, and as I understand it supported B and C living with their paternal grandfather. The mother does not accept that the sons in fact still live with the paternal grandfather and believes that they live with the father.

4. The mother filed an Initiating Application in this Court on 19 September 2014. On 14 October 2014 the paternal grandfather filed an Initiating Application in the Local Court, which was subsequently transferred to this Court and his application has been treated as a Response. The paternal grandfather seeks interim orders that B and C live with him and that D and E spend time with him each Saturday from 10.00 am to 6.00 pm at his residence.

5. On 31 October 2014 I made interim orders that D and E live with the mother and that the father be restrained from contacting or approaching these children and the mother. The father was present in Court on that date but had not filed a Response or affidavit in relation to that application and has not participated in the proceedings since that date. The paternal grandfather was not present on that date and I was unaware of his Initiating Application, which had been filed in the Local Court but had not been transferred to this Court at that stage.

6. A Magellan report dated 26 March 2015 was provided to the parties on 9 April 2015, a couple of weeks prior to the interim hearing concerning the paternal grandfather’s application. On the date of the interim hearing I had insufficient information from Community Services, concerning the Department’s involvement with B and C to be satisfied that I had jurisdiction in relation to those two children. For this reason only the application concerning the grandfather spending time with D and E was dealt with. The Magellan report is concerned mainly with circumstances prior to separation and current significant concerns about B and C and does not relate to D and E.

7. In addition to the uncontested facts the mother also alleges other circumstances which I understand may be in dispute and have some relevance to this application. She contends that the paternal grandfather has undermined her relationship with B and C and she fears he will do so with the younger children if his application for interim orders is granted. It appears from his affidavit that the paternal grandfather disputes this allegation. The paternal grandfather also contends that he has had a significant role in assisting in the care of all of the children when the family was intact prior to separation. It is not clear the extent to which the mother disputes this contention.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   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 from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. It is a significant issue in the mother’s opposition to these interim orders that she contends that the children’s meaningful relationship with her may be undermined by the active involvement of the paternal grandfather in supporting the father and alienating the children from her. There is some evidence that the grandfather has undermined the older boys’ relationship with their mother such as him sending a message that C had been “freed” from his mother when C moved himself from his mother’s care, that lends some support to the mother’s position. However, I could not conclude on the evidence before me that the children’s meaningful relationship with their mother would be seriously affected by the orders sought in this application given that the children will continue to live with her. The orders sought will, likewise, not affect the relationship between the two younger children and their father as they are currently not having any contact with him. In making orders on 31 October 2014 that the two younger children have no contact with their father I was of the view that it was not in their best interests to have a meaningful relationship with him.

4. In relation to the need to protect the children from harm, there is nothing in the uncontested evidence to suggest that the children have been subjected to or exposed to abuse, neglect or family violence while spending time with the paternal grandfather in the past. However, it is contended by the mother, and there seems to be some support for this contention, that the paternal grandfather has been aware of serious violence perpetrated by his son (the father) against the mother and has taken no action to protect her or the children from that harm. For example, in the Magellan report there are references to the paternal grandfather coming to the home to care for the children when the mother was taken to hospital following her having been the victim of serious assault by the father. Given the paternal grandfather’s significant involvement with the family, it appears he must have been aware of the violence perpetrated by the father against the mother.

5. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

Children’s views

1. D has expressed a view, which is described as a “fervent wish” by the ICL, that she not spend time with her paternal grandfather. Although she is only 11 years old and factors underlying her views are unknown, some weight must be attached to her view. E is too young to have expressed a view.

Relationships

1. Although the nature of the relationship of the two younger children with their paternal grandfather is, in my view, a significant factor in this matter, nothing is known of that relationship.  It was submitted on behalf of the grandfather that he previously enjoyed a good relationship with all of the children, but he gives no evidence of the nature of the relationship with these particular children. Although the grandfather says that up until November 2013 he was involved in the day-to-day life of each the children since birth, there is no dispute that he has not seen them for 18 months.  It is not known if the relationship between him and them has changed as the family circumstances have changed.

Change in circumstances

1. If the order sought by the paternal grandfather to spend time with the two younger children is made this will amount to a change in their circumstances, which will involve them being separated from their mother, for a significant period of time once a week and spending time with their paternal grandfather who they have not seen for 18 months when nothing is known about the relationship between them and the grandfather. In circumstances where it is not known whether E remembers his paternal grandfather and D expresses a strong wish not to see him, it is likely that D at least will be distressed if required to spend time with her grandfather.

2. It is also contended on behalf of the grandfather that should his application be granted, the younger children will have an opportunity to share their relationship with the two older brothers, B and C. There is no evidence about the current relationship between the two younger children and their older siblings.

Practical difficulty

1. The paternal grandfather proposes that the mother deliver the children and collect them from his home at the start and end of his time with them. As the mother strenuously opposes coming into contact with him, this proposal is fraught with practical difficulties.

Capacity to provide for the children’s needs

1. There is no evidence about the paternal grandfather’s capacity to meet the children’s needs if they were to spend time with him. He has not been assessed by a family consultant or any other person.

Cultural and other factors

1. It is submitted on behalf of the paternal grandfather that allowing the two younger children to spend time with him weekly will allow the children to continue with their faith and culture. It is submitted that the grandfather is solely responsible for this aspect of the children’s upbringing and since the date of the family breakdown there has been no continuation of the children’s culture and faith in the mother’s care. Apart from the grandfather asserting that this is the case, there is no evidence to support the contention that the parents delegated these responsibilities to the paternal grandfather. It may be that the parents do not wish to pursue these faith practices for the children. Given that the mother is of middle eastern heritage, it appears that she is providing for the children’s cultural needs as part of her own care of them.

2. It is submitted on behalf of the Applicant paternal grandfather that because the Department is aware that the older two boys are living with the paternal grandfather and has not intervened, it can be inferred that there are no safety concerns relating to family violence in his care. While it is accurate to say that the main concerns about violence are related to the father’s perpetration of it, I attach some weight to the mother’s submission that the paternal grandfather must have known about his own son’s violence and did not intervene to protect the children from it.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, the lack of evidence about the current relationship between the paternal grandfather and the two younger children, the change in circumstances that will be entailed if the interim order is made as he seeks and the strong view held by the older of the two children are matters to which I attach significant weight. Although it appears that previously the grandfather had a significant involvement in the children’s lives, I cannot be satisfied that it is in the best interests of these children to spend time with their grandfather as proposed in these orders at this stage in the proceedings. Accordingly, that application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 May 2015.

Associate:

Date:  12 May 2015