Bentley and Bentley and Anor

[2016] FamCA 757

FAMILY COURT OF AUSTRALIA

BENTLEY & BENTLEY AND ANOR [2016] FamCA 757

FAMILY LAW – CHILDREN – Final parenting – Best interests of the child – Where the mother has disengaged in the proceedings – Child to live with the paternal grandparents and spend time with the father and the mother as agreed – Paternal grandparents to hold sole parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 69ZW.

Donnell & Dovey [2010] FamCAFC 15
G & C [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
McCall & Clark (2009) FLC 93–405, 41 Fam LR 483; [2009] FamCAFC 92
Mazorksi & Albright (2007) Fam LR 518

APPLICANTS: Mr and Mrs Bentley Snr

RESPONDENT: Mr A Bentley

SECOND RESPONDENT: Ms Truscott

INDEPENDENT CHILDREN’S LAWYER: Gonzales & Co

FILE NUMBER: PAC 341 of 2013

DATE DELIVERED: 19 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Raftons Family Lawyers

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE SECOND RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gonzales and Co

Orders

1. All previous orders are discharged.

2. The paternal grandparents, Mr and Mrs Bentley Snr have equal shared parental responsibility for the child B born … 2011 (“the child”).

3. The child live with the paternal grandparents.

4. The child spend time with the mother as agreed between the parties.

5. The child spend time with the father as agreed between the parties.

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 Bentley & Bentley 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: PAC 341  of 2013

Mr and Mrs Bentley Snr

Applicants

And

Mr A Bentley

Respondent

And

Ms Truscott
2^nd Respondent

REASONS FOR JUDGMENT

Introduction

1. The child B (“the child”) a little girl of almost five, has been in the care of her paternal grandparents for most of her life.

2. On 15 June 2016 I made final orders in relation to the child’s long term parenting arrangements. These orders were made in accordance with the application of the child’s paternal grandparents and with the consent of the father. The independent children’s lawyer (ICL) agreed that the orders proposed were in the best interests of the child.

3. The mother has been disengaged from the proceedings for some time and so far as she is concerned, the orders were made on an undefended basis.

4. When the orders were made I indicated that I would publish my reasons on  a future date. These are those Reasons.

Background

1. The applicants are Mr Bentley Snr, the paternal grandfather, who is 63 and Mrs Bentley, the paternal grandmother, who is 52 (“the paternal grandparents” or “the applicants”).

2. The applicant’s son, Mr A Bentley who is the child’s father (“the father”), was 23 at the time of the final hearing. The child’s mother is Ms Truscott (“the mother”) who was 31 at the time of the final hearing. 

3. The parents met in around late 2010 and subsequently formed a relationship.

4. At the time the mother and father met, the mother had a son , who was born in 2003. The child X has lived with his maternal grandparents since he was around two years of age.

5. The mother has been a long-standing user of illicit drugs, including amphetamines, cannabis and heroin.  She commenced drug use in her adolescence and in 2007 spent three months in a residential rehabilitation centre. The mother also experienced a number of personal difficulties in her life prior to meeting the father, including having a relationship with a violent partner, who was also a drug user, and who committed suicide shortly after he and the mother married.

6. When the parents met, the mother was 25 and the father was 17. Initially the parents lived in a backpackers’ hostel. Their relationship was characterised by homelessness and transience, the negative effects of the mother’s mental illness and drug use by both of them.

7. In July 2011, the paternal grandparents purchased a property which the mother and father moved into and rented from the paternal grandparents.

8. In 2011, the child was born, but little is known about the circumstances in the family when the child was a small infant.

9. The parents separated sometime between February and May 2012.

10. The paternal grandparents began caring for the child from around June 2012, initially on a temporary basis, though the periods of care were lengthy and on occasions lasted for at least a month. It appears that there were some notifications made to the Department of Family and Community services (“Community Services”) relating to each parent’s capacity at the time

11. From around mid-December 2012, when the child was 15 months the paternal grandparents assumed the child’s care with the consent of the parents.

12. On 30 January 2013 the paternal grandparents initiated these parenting proceedings.

13. On 5 March 2013 various orders were made by this court, including the appointment of an ICL, and that the child live with the grandparents and spend supervised time with the mother each Tuesday and Wednesday for two and a half hours on each occasion.

14. On 20 May 2013, the parties and child met with a Family Consultant for the purposes of a Children and Parents Issues Assessment as part of the Child Responsive Program. The Memorandum prepared by the Family Consultant as a result of that assessment indicates that the father told the Family Consultant that he would not be able to look after the child, financially or emotionally and proposed that the child live with the paternal grandparents and spend time with him as agreed. The father’s position has not changed over time.  The mother at that time proposed that the child live with her.

15. On 17 June 2013 orders were made for the child to live with the mother, so long as the mother complied with urinalysis and that the results indicated that she was not using drugs.  The mother was also required to maintain a stable residence. The orders also provided that the child spend time with the paternal grandparents for periods of six hours, two days per week.

16. Between June 2013 and December 2013 the child lived with her mother and the mother complied with some, but not all, of the requirements for urinalysis.

17. By January 2014 the parenting arrangement had broken down and the child had been returned to the care of the paternal grandparents.  In early 2014, the mother ceased complying with the orders with respect to drug screening and again became homeless.  Community Services again became involved with the mother who, it appears, had given birth to another child who had been removed at birth by Community Services.

18. In April 2014 the parties attended mediation and orders were made on 23 April 2014 in accordance with the agreement reached. The child was to live with the grandparents and spend time with the mother one day per week for three hours and the mother was to comply with drug screening.

19. Further orders were made in June 2014 and it was anticipated that an expert would be appointed thereafter.  The mother did not attend to spend time with the child, and has not complied with drug screening and has disengaged from the proceedings.

20. The mother’s solicitors filed a Notice of Ceasing to Act in November 2014.

21. The paternal grandparents have continued to care for the child on a full-time basis and the father spends regular time with the child as arranged between him and his parents. Nothing further is known about the mother.

22. The mother’s last engagement in the proceedings was when she appeared represented on 13 June 2014.  Her legal representatives subsequently ceased to act for her and she did not appear on 19 April 2016 before a Registrar when the other parties sought that the matter be listed for undefended hearing.

23. The matter was listed for undefended hearing on 15 June 2016 and I am satisfied that the mother was notified of that hearing.  The mother failed to appear on 15 June 2016 and the other parties sought that the matter be dealt with in her absence.

24. 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.

25. I am satisfied that the mother is aware of the proceedings and has been given sufficient notice that the matter would proceed on an undefended basis.

26. 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 is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the mother.

    [1] [2014] FamCAFC 14

    [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

The Law & Discussion

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

6. The only proposal for parenting orders is made by the paternal grandparents. Some of the primary and additional considerations specifically relate to parents and cannot be applied equally to the applicants, as they are not parents.  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 erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant I will do so by application of s 60CC(3)(m).

   [3] [2010] FamCAFC 15

Primary considerations: s 60CC(2)

1. 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. 

2. 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.

Benefit to the children in having a meaningful relationship with both parents

1. 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

2. 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).

3. 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.

4. The only orders under consideration, those sought by the paternal grandparents, will not support the child having a meaningful relationship or any relationship with her mother. However, in circumstances where the mother has chosen to disengage with the child totally, the mother can be taken to have accepted that there will not be a positive benefit to the child in having a significant relationship with her. It would not be in the child’s interest in these circumstances, to attempt to craft orders to foster such a relationship.  Having said that, the paternal grandparents have always taken the position that they will facilitate the child spending time with her mother if in their view it is in her best interests and have facilitated this occurring in the past.  The orders allow for the mother to spend time with the child in the future as agreed between the parties.

5. The child’s father shares a good relationship with the paternal grandparents and regular time with the child occurs as agreed between them. Under the orders this arrangement will continue and the child will continue to have the benefit of a meaningful relationship with her father.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. There is no evidence to support any concerns that the child is at risk of psychological or physical harm from being subjected to abuse, neglect or family violence in the applicants’ household.

2. The only concerns in relation to the child being neglected arose when she was briefly in the care of both parents and when she spent some months in her mother’s care. The paternal grandparents are well aware of the risks posed by the mother and have assumed the care of their grandchild from a young age to protect against these risks. There is no doubt that they will not allow the child to be exposed to any risk of harm if arrangements are made in the future for the mother to spend time with the child.

Additional considerations: s 60CC(3)

Views of the child and factors underlying those views

1. The child’s views are unknown. When she was seen by a Family Consultant in May 2013 she was one and a half years old and her views have not been sought since that date.

Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. As the child last saw her mother almost three years ago when she was two, it can be assumed that there is currently no relationship between the two.

2. It can also be assumed that as a result of the child spending regular time with her father she has at least a familiar relationship with him and it is likely that he is an important person in her life.

3. At the time the family were seen by a Family Consultant it was noted that “the child indicated no significant distress on separation or happiness on reunion with any of the parties and did not particularly seek out any of them for attention and affection. This was atypical of children of [the child]’s age who would usually show preferences for main caregivers”.

4. Following the assessment by the Family Consultant in May 2013 the child spent some time in her mother’s care in the following months.  It was hoped that the child could experience consistent care by her mother who was receiving significant support at the time. However, this arrangement subsequently broke down and the child returned to the paternal grandparents’ care.

5. The paternal grandparents have been the most significant people in the child’s life.  At least since the time they assumed her care again in late 2013 or early 2014 they have been the child’s principal caregivers. It may be assumed that the child has formed an important attachment relationship with her paternal grandparents.

6. Nothing is known of the child’s other relationships, except to say that she spends time with many relatives in the extended paternal family on a regular basis.

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

1. Neither parent has taken the opportunity to participate in long-term decision making regarding the child throughout virtually all of her life.

2. The mother has disengaged from seeking to spend time with or communicate with the child for over two years.

3. The father regularly spends time with and communicates with the child through an arrangement with his parents who have effectively acted as parents for the child for virtually all of her life.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. It appears that neither parent has fulfilled any obligation to maintain the child and that this responsibility has fallen to the paternal grandparents.

Likely effect of change in the child’s circumstances

1. There will be no change in the child’s circumstances as a result of the orders sought by the paternal grandparents and made in June 2016. The child will continue to live with her paternal grandparents and spend regular time with her father as she has done throughout her life.

Practical difficulty or expense involved in the child spending time with and communicating with the other parent

1. There is no practical difficulty or expense involved in the child spending time with and communicating with her father who lives near the child and the paternal grandparents. The mother’s current whereabouts are unknown, so this consideration cannot be applied to her.

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

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Each of the parents has demonstrated an incapacity to provide for the child’s needs and has abrogated the responsibilities of parenthood to the child’s grandparents.

2. The mother led a transient and disorganised life characterised by drug use, dysfunctionality and impairment due to mental illness and effectively gave responsibility for the child to the paternal grandparents from late 2013.

3. The father told the Family Consultant that he was not capable of meeting the child’s needs, and throughout the child’s life has shared some relationship with her in a non-parental role.

4. The paternal grandparents have demonstrated that they have the capacity to meet the child’s needs by caring for her throughout her life.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. The child has been raised by her paternal grandparents for most of her life. The paternal grandparents appear to be in a stable relationship themselves and are the parents of three adult sons. They are practising evangelical Christians and although the practice of this religion caused difficulties in their relationship with the father and his conduct as an adolescent, they wish to raise the child within their faith. The paternal grandfather however told the Family Consultant that he would acquiesce to the views of his son if there was a dispute regarding the child’s religious upbringing.

2. The father told the Family Consultant that his parents were stable and had much to offer the child. He also said that he would prefer the child to be raised within his parents’ faith and that he currently had a good relationship with his parents.

3. The mother has a well-documented history as a user of a number of illicit substances since adolescence. She also has a well-documented history of mental disorders, including bipolar disorder, and post-traumatic stress disorder

Family violence

1. There are no allegations of family violence in the parental relationship or in the applicants’ household.

Any other relevant fact or circumstance

1. As indicated earlier, the applicants for the parenting orders are the child’s paternal grandparents. Application of any of the considerations that do not apply to non-parents has been made on the basis of this consideration.

Parental responsibility

1. 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.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. 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)).

4. Neither of the parents is seeking an order that they have parental responsibility for the child and the mother has disengaged from the exercise of parental responsibility for the child for some years. The father concedes that he is not capable of appropriately caring for the child and the paternal grandparents have exercised parental responsibility for the child throughout virtually all of her life. In these circumstances there is no doubt that it is in the child’s best interests for her grandparents to exercise parental responsibility.

The Conclusion

1. Having regard to all of the factors in relation to the best interests of the child and attaching particular weight to the nature of the child’s relationships, the pattern of care throughout her life and the capacity of her parents and paternal grandparents to meet her needs, I am of the view that the orders proposed by the applicant are in the best interests of the child.

2. For these reasons the orders that I made on 15 June 2016 are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 September 2016.

Associate: 

Date:  19 September 2016