Barker and Barker and Anor
[2018] FamCA 692
•7 September 2018
FAMILY COURT OF AUSTRALIA
| BARKER & BARKER AND ANOR | [2018] FamCA 692 |
Donnell & Dovey [2010] FAMCAFC 15 | ||||
| APPLICANT: | Ms A Barker | |||
| FIRST RESPONDENT: | Ms B Barker |
| SECOND RESPONDENT: | Mr Perkins |
| FILE NUMBER: | PAC | 2929 | of | 2017 |
| DATE DELIVERED: | 7 September 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 19 July 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Dignan and Hanrahan Solicitors and Attorneys |
| FIRST RESPONDENT: | No appearance by or for the First Respondent |
| SECOND RESPONDENT: | No appearance by or for the Second Respondent |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Maddox of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stanfords Solicitors and Conveyors |
Orders
The Applicant maternal grandmother have sole parental responsibility for the child X born … 2014 (“the child”).
The child live with the Applicant maternal grandmother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barker & Barker and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC2929 of 2017
| Ms A Barker |
Applicant
And
| Ms B Barker |
First Respondent
And
Mr Perkins
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the long term parenting arrangements in respect of four year old X, the child of Ms B Barker (“the mother”) and Mr Perkins (“the father”).
Following the parents’ separation on a final basis in March 2016 the mother and the child moved into the maternal grandmother’s home and the child spent regular time with the father under an informal arrangement.
The maternal grandmother initiated these proceedings in the Federal Circuit Court (“FCC”) in June 2017. They were transferred to the Family Court of Australia in August 2017. Each of the parents has significant impairments in parenting capacity and both have disengaged from the proceedings in recent months. The child has at all times lived with the maternal grandmother.
The maternal grandmother seeks sole parental responsibility for the child and that the child live with her.
The mother originally sought that the child live with her.
There were also some concerns about the maternal grandmother’s capacity due to suspected alcohol misuse and the Department of Family and Community Services (“Community Services”) was invited to intervene in the proceedings.
In circumstances where the Department did not intervene, the parents were not engaged in the proceedings and the maternal grandmother was the sole carer for the child I ordered that the maternal grandmother have sole parental responsibility for the child and that he live with her. I made no orders for the child to spend time with either parent. I indicated that I would subsequently deliver my reasons for such orders. These are those Reasons.
The mother and father’s non-attendance
On 15 June 2017 the maternal grandmother filed an Initiating Application in the FCC seeking urgent parenting orders.
Both parents were initially engaged in the proceedings and for some time the child lived in the equal care of the mother and the maternal grandmother.
The parties attended upon a Family Consultant in December 2017 for the purposes of the Child Responsive Program.
The mother ceased engaging in the proceedings in December 2017. At a court event at this time the maternal grandmother and father sought that the court make orders with their respective consent that the maternal grandmother have sole parental responsibility for the child on an interim basis. All parties were ordered to undertake Carbohydrate Deficiency Transferrin (“CDT”) testing and the mother and the father were ordered to undertake chain of custody urinalysis at the request of the Independent Children’s Lawyer (“ICL”).
In March 2018 the father also ceased engaging in the proceedings. At this stage Community Services was invited to intervene in the proceedings. Community Services subsequently indicated that it did not intend to intervene.
At a court event in May 2018 the father’s legal representative appeared on an amicus basis only, having had no instructions from the father and was granted leave to withdraw from the proceedings. On that date the maternal grandmother was restrained from permitting the child to spend time with either parent and the matter was adjourned to 19 July 2018 when it was anticipated that the proceedings would be determined on an undefended basis.
On 19 July 2018 there was no appearance by or on behalf of the mother or the father. On that occasion the maternal grandmother sought final orders that she have sole responsibility for the child and that the child live with her.
The maternal grandmother sought that the Court deal with the matter to finality in the absence of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests the child for the proceedings to be finalised and dealt with in the absence of the mother and father.
[1] [2014] FamCAFC 14.
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
As the application proceeded on an undefended basis, the mother and father’s material was not read.
Background
The mother, who is 38, and the father, who is 34 had a relationship which produced one child, who is four years old. The parties separated on a final basis in March 2016 when the child was almost two.
For the first six months of the child’s life the maternal grandmother was living overseas. When she returned the parents and the child moved into her home for eight months. During this time the maternal grandmother assisted the mother in caring for the child on a daily basis.
In January 2015 the parents moved into rental accommodation with the child. From this time until the parties separated the maternal grandmother had the care of the child five days a week from 8:30am to 6pm.
Following the parents’ separation the mother and the child moved into the home of the maternal grandmother and continued to visit the father two to four times a week. From this time until June 2017 both mother and child lived predominantly with the grandmother, with the exception of a few weeks in which the mother took the child to live with a friend and then again for a few weeks in which they lived with the maternal uncle.
The maternal grandmother deposes that the mother has a long history of drug abuse. She alleges that the mother first used marijuana in 1998 and continued to use it until May 2017. The maternal grandmother does not contend that the mother has used marijuana in the presence of the child.
The maternal grandmother deposes that during 2016 the mother was convicted of two assault charges and was charged with a further assault charge but no conviction was recorded. According to the maternal grandmother the first assault that related to the mother involved her punching a woman in the head in the presence of an undercover police officer and the second involved her grabbing a family friend.
The mother also has a history of using crystal methamphetamine commonly known as “ice”. In late 2016 the mother approached the maternal grandmother seeking the maternal grandmother’s help her with her ice misuse. The maternal grandmother and mother attended a medical centre and the mother was referred to counselling which she did not attend.
The mother was admitted to a mental health unit at a hospital in December 2016 after she was found in her bedroom drowsy and with slurred speech as a result of taking prescription medications. The mother was released from this facility 10 days later.
The maternal grandmother also deposes that the father admitted to her that he smoked ice with the mother when they lived together.
The maternal grandmother deposes that the mother displayed aggressive and abusive behaviour towards herself and the mother’s siblings over a number of years associated with her drug misuse. On one occasion in February 2017 the mother came to the maternal grandmother’s home in the evening and tried to take the child away. The maternal grandmother refused to allow the child to leave and the mother became angry and punched the maternal grandmother in the face and the maternal grandmother then pulled the mother’s hair.
The next day the maternal grandmother took the child interstate for a holiday. The maternal grandmother deposes to being informed by a family member that when the mother became aware that the child was interstate the mother responded aggressively, throwing objects such as coffee cups and knives around the home.
The child came to be in the care of the maternal grandmother following an incident in June 2017 in which the mother assaulted the maternal uncle, by throwing an ash tray at his head. The police attended and removed the mother from the maternal grandmother’s home. The following day the maternal grandmother found an ice pipe under the mother’s pillow.
Three days later the mother took the child from the maternal grandmother’s home. Before leaving the home the mother damaged the maternal grandmother’s car.
A few days later the mother returned the child to the home of the maternal grandmother and effectively relinquished him into her care.
When the proceedings were initially commenced in the FCC in June 2017, interim orders were made for the child to live in an equal shared care arrangement with the maternal grandmother and the mother and later orders provided for the child to spend defined time with the mother. Since those orders were made there has been ongoing difficulties with the mother’s compliance.
Between June and August 2017 the mother was late on a number of occasions to pick up or deliver the child to the maternal grandmother when the child was living in a week about arrangement. The maternal grandmother deposes that upon return from the mother’s care the child was often disruptive and difficult to settle. On one occasion the child returned to her care without underwear or a nappy.
The father’s time with the child pursuant to interim orders was as agreed between the father and the maternal grandmother.
In August 2017 the maternal grandmother was informed by the mother that the child had been sexually assaulted by his ten year old paternal cousin who lives with the father. A police investigation was commenced and police officers instructed the mother to retain the child in her care until he had been interviewed to ensure that the child would not come into further contact with his cousin.
On 13 August 2017 there was in incident between the maternal grandmother and the mother when the maternal grandmother attended the mother’s home to collect the child. Upon arrival the mother came out of the home yelling at the maternal grandmother and punched the driver’s side window of her car. The maternal grandmother drove away without collecting the child.
A short time later, the maternal grandmother deposes that she received a phone call from the mother (or mother’s home) and could hear the mother yelling “I am going to get a knife and kill her” and “I am going to stab her in the back of the head”. The maternal grandmother’s youngest daughter subsequently told the maternal grandmother that the mother had said she was going to stab the maternal grandmother to death.
The maternal grandmother reported this incident to the police.
On 15 August 2017 the police attempted to interview the child in relation to the alleged sexual assault by the ten year old cousin. The child refused to be interviewed and as such the investigation was closed.
From the 30 August 2017 the child began living with the maternal grandmother on a full time basis in accordance with interim orders then in place. The orders provided for the child to spend 48 hours with the mother each fortnight by arrangement with the maternal grandmother which was to be supervised. The mother did not spend any overnight time with the child but spent time with the child at the maternal grandmother’s home an average of once a week.
From the commencement of the proceedings the child spent sporadic and infrequent time with the father which amounted to an average of a few hours a fortnight. The maternal grandmother deposes that on a number of occasions the father was invited to spend time with the child at swimming lessons, dinner or at the park but he declined the invitations. This pattern of the child’s time with the father continued even after he disengaged from the proceedings in March 2018.
The mother was admitted to Suburb C Hospital in September 2017 for just under a week to undergo treatment for her drug use. After she was discharged the mother lived with the maternal grandmother for short time before moving to live with a new partner.
The mother’s time with the child became more sporadic from March 2018 and she has not seen the child since May 2018 when orders were made restraining the maternal grandmother from allowing the child to spend time with either parent.
The father also ceased spending time with the child in May 2018 pursuant to the orders.
The maternal grandmother has undertaken CDT and urinalysis drug testing at the request of the ICL on four occasions from June 2017 to May 2018. All tests results were clear of illicit substances.
The maternal grandmother has also completed family counselling with D Group and a parenting course.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
When applying the primary and additional considerations to the proposal of the maternal grandmother, the Court must not treat those considerations which specifically relate to parents as if they must equally apply to a non-parent party, in this case the maternal grandmother.
In Donnell & Dovey[3], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under section 60CC is also relevant to a non-parent, this should be addressed under section 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the maternal grandmother, I will do so by application of s 60CC(3)(m).
[3] [2010] FamCAFC 15
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The orders sought by the maternal grandmother would not expressly see the child develop a meaningful relationship with his father or mother. On the basis of the additional matters to which I will come it seems that the child had an established relationship with each parent and would benefit from orders promoting such relationships in the future. However, it is a weighty factor that both of the parents have ceased spending time with the child and are no longer engaging with these proceedings. In these circumstances it must be taken that they both accept that the child will not receive a benefit from having a relationship with either of them in the future. That being said, in the event that either parent did wish to develop that relationship it would be open for the maternal grandmother to permit that to occur in the circumstances she regards as appropriate.
The need to protect the child from harm is a weighty factor in this case.
Each of the parties acknowledged to the Family Consultant that the child had been exposed to family violence and the father reported to the family consultant that he ended his relationship with the mother to prevent the child from being exposed to ongoing conflict between the parties.
The mother, in particular, has a history of abusive behaviour. The maternal grandmother deposes that on multiple occasions the mother physically abused her, threatened her with violence and damaged her property. On two occasions, in June and August 2017, the maternal grandmother has called the police to report the mother’s abusive behaviour.
Given the maternal grandmother’s evidence as to the aggressive and violent behaviour of the mother which is not contradicted, I am satisfied that there is an unacceptable risk that the child will be exposed to family violence in the unsupervised care of the mother. There is no proposal before the court that the risk posed by the mother be mitigated by orders for supervised time.
The child has allegedly disclosed to the mother that he has been sexually abused by his ten year old cousin who resides in the father’s home. The alleged abuse occurred during the time the child was in the father’s care. Although I am unable to make a positive finding that the child was sexually abused, given the serious nature of the alleged abuse and in the absence of any evidence from the father addressing the issue, I find that there is an unacceptable risk of harm to the child in the father’s care on this basis.
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
The child in these proceedings is very young. He was not interviewed by the Family Consultant because of his young age. As such his views are not known.
Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)
The child has lived with the maternal grandmother for the majority of his life, with the exception of short periods of time in which he lived with the mother at the maternal uncle’s home and at her friend’s home. The child has a strong and positive relationship with the maternal grandmother. There is no suggestion that the child is at risk in her care.
The Family Consultant also observed positive and warm relationships between each of the parents and the child.
When observing the mother with the child the family consultant reported;
[The mother] appeared to be very excited to see [the child], was enthusiastic and very animated. [The child] responded warmly to her but he was less animated than [the mother]. Initially, [the child] seemed to be less forthcoming with verbalising his views and wishes with [the mother].
The Family Consultant finally observed the child with the father noting;
[The child] appeared to be surprised and excited to see [the father] and he smiled and greeted [the father] warmly… [the father] was enthusiastic and there was cooperative play and mutual enjoyment between him and [the child].
It was the view of the family consultant in December 2017 that the child appeared to have good relationship with each parent. Although nothing is known of the current state of those relationships it is likely that they would be significantly attenuated given the sporadic and infrequent level of contact between both parents and the child since that time.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
It appears that the mother and the father shared day-to-day and long-term decision making in regards to the child until the parties’ separated in March 2016. After that time it was predominantly the mother and maternal grandmother who had shared day-to-day and long-term decision making for the child for some time.
Since the parent’s separation the child has predominantly lived in the home of the maternal grandmother. The maternal grandmother has taken the child on holidays and cared for the child while the mother was hospitalised.
The mother failed to take the opportunity to spend time with the child in accordance with the interim orders made in the FCC on 30 August 2017. These orders provided for the mother to spend a block period of 48 hours with the child each fortnight. This did not eventuate and initially the mother spent time with the child at the maternal grandmother’s house approximately once a week. After leaving hospital in September 2017 the mother moved to live with a new partner and effectively relinquished the responsibility for the child’s care to the maternal grandmother.
The father also failed to take the opportunity provided for in the orders of 30 August 2017 to spend time with the child as agreed between himself and the maternal grandmother. On numerous occasions the maternal grandmother made the child available to the father and invited him to her home to spend time with the child, however he did not take up these opportunities. His visits were sporadic and infrequent and eventually ceased altogether.
It may be assumed that the maternal grandmother has taken on all responsibility to maintain the child. There is no evidence to suggest that either parent has taken on this obligation.
Both parents have ceased engaging with these proceedings. In doing so the mother and the father can be taken to have forfeited the opportunity to be involved in decision making for the child and to spend time with the child.
In my view this is a weighty factor in these proceedings.
Likely effect of change in the child’s circumstances
As the child lives with the maternal grandmother and has spent no time with the mother or father for a number of months, the maternal grandmother’s proposed orders will not result in any changes to the child’s current circumstances. It is anticipated that the child will experience some loss as a result of the mother and father ceasing any involvement in his life but little can be done to address this loss due to the mother and father’s withdrawal from the proceedings.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
The Family Consultant held concerns regarding the parenting capacity of the mother. She noted in her report that in particular the mother’s drug use, mental health history and perpetration of family violence presented as risk factors for the child.
The father made admissions to the Family Consultant that he is using marijuana on an ongoing basis. The father has also acknowledged that he perpetrated acts of family violence towards the mother in the presence of the child. As such I have concerns regarding the parenting capacity of the father.
The Family Consultant also held concerns in regards to the alcohol use of the maternal grandmother. This issue has been satisfactorily addressed in my view by requiring the maternal grandmother to have her alcohol use monitored. All such testing indicated that the maternal grandmother was not engaging in problematic drinking.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The maternal grandmother has demonstrated a positive approach to the responsibilities of parenthood. She has been a stable figure for the child in an otherwise chaotic childhood. The child has lived with the maternal grandmother, except for short periods in the homes of the mother’s friends or relatives, since he was six months old. Since this time the maternal grandmother has played a significant role in his day to day care.
The mother and father’s lack of involvement in the proceedings can be taken as an abandonment of the responsibilities of parenthood and is a matter to which I attach great weight.
Family violence
For the reasons given I am satisfied that the mother has been a perpetrator of physical and verbal abuse towards the maternal grandmother in the presence of the child. All of the parties also informed the Family Consultant that the child has been exposed to family violence. It is a matter of concern that the maternal grandmother and mother appeared in the view of the Family Consultant to have a limited understanding of the impact on the child of exposure to conflict. It is hoped that through these proceedings the maternal grandmother has gained insight into this matter.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
The maternal grandmother sought orders that the child spend no time with the mother or the father which will eliminate contact between the parties. Although this will reduce the likelihood of contravention proceedings this is not a weighty factor in this parenting dispute.
Conclusion
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter the maternal grandmother sought sole parental responsibility for the child. The father initially sought that he and the maternal grandmother have equal shared parental responsibility for the child. The mother did not specify in her Response what parental responsibility order she was seeking.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the maternal grandmother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the parents would have none of the duties, powers, responsibilities and authority with respect to the children.
Given the mother and father have disengaged from the proceedings, the only proposal before the court is for the maternal grandmother to have sole parental responsibility for the child. In these circumstances where there is also a history of physical and verbal abuse perpetrated by the mother and drug use by both parents I am easily satisfied that it would be in the child’s best interest for the maternal grandmother to have sole parental responsibility for him and for the child to live with her.
As there are no positive orders made for the child’s ongoing contact and or communication with his parents, this will be a matter for the maternal grandmother in the exercise of her parental responsibility. There are insufficient reasons in my view for an order that there be no contact with either parent.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 September 2018.
Legal Associate:
Date: 31 August 2018
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Family Law
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