Bitu & Bitu

[2019] FamCA 715

FAMILY COURT OF AUSTRALIA

BITU & BITU AND ORS [2019] FamCA 715

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother ceased engaging in the proceedings – Where consideration of applicable principles – Where orders were made providing the paternal aunt with sole parental responsibility – Where orders made for the child to live with the paternal aunt

Family Law Act 1975 (Cth) ss, 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 11.02, 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394

APPLICANT: Ms Bitu

FIRST RESPONDENT: Mr Bitu

SECOND RESPONDENT: Ms C Bitu

THIRD RESPONDENT: Ms Keshav

INDEPENDENT CHILDREN’S LAWYER: Crawford Ryan Lawyers

FILE NUMBER: WOC 1287 of 2016

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2019

REPRESENTATION

SOLICITOR FOR THE FIRST RESPONDENT: Ms Wilkins

SOLICITOR FOR THE SECOND RESPONDENT: Ms Udagama

SOLICITOR FOR THE THIRD RESPONDENT: Ms Udagama

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carol

Orders Made On 19 July 2019

1. The paternal aunt MS S BITU have sole parental responsibility for the child X born … 2012.

2. The said child live with the paternal aunt.

3. The said child spend time with the father as agreed between the father and paternal aunt.

4. The child X born … 2012 is permitted to have an Australian travel document and travel internationally.

5. The paternal aunt Ms S Bitu may apply for an Australian travel document (“passport”) for the child X born … 2012 without first obtaining the consent of the mother Ms Bitu and the father Mr Bitu.

6. The Family Law Watchlist order made 23 August 2018 in relation to the child X born … 2012 is hereby discharged and it is requested that the Australian Federal Police give effect to this order and cause the removal of the said child’s name from the Family Law Watchlist.

7. All outstanding applications be dismissed.

8. The matter be removed from the active pending cases list.

9. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

THE COURT NOTES THAT

A.The paternal aunt Ms S Bitu would benefit from the paternal grandmother Ms Keshav providing assistance in the care of the child X born … 2012.

B.In the circumstances of this matter, there is no application for costs by the Independent Children’s Lawyer.

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 Bitu & Bitu and Ors 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: WOC 1287 of 2016

Ms Bitu

Applicant

And

Mr Bitu

First Respondent

And

Ms C Bitu

Second Respondent

And

Ms Keshav

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 21 December 2016.

2. The application concerns X (“the child”) born in 2012 who was seven years old at the time of the hearing. There is another child of the relationship, Y, born in 2010 who is not the subject of the proceedings as this child was historically removed from the care of the mother and father by Family and Community Services (“FACS”) and placed in the care of the maternal aunt following proceedings in the Children’s Court (Exh “F”).

3. The mother also has another eight children from prior relationships, however, none of these children are currently in her care having all been removed from her care by FACS.

4. The mother has failed more recently to engage in these proceedings and the proceedings were heard on an undefended basis.

5. At trial the father relied upon the following documents:

   a)Further Amended Response filed 27 July 2018; and

   b)His affidavit filed 11 June 2019.

6. The paternal aunt relied on the following documents:

   a)Her affidavit filed 30 May 2019; and

   b)Her Amended Response filed 30 May 2019.

7. The paternal grandmother sought orders consistent with that of the paternal aunt and relied upon her affidavit filed 30 May 2019.

8. The paternal aunt sought orders as set out in her Amended Response that she have sole parental responsibility for the child, that the child live with her and spend time with the father as agreed between the parties, that she be permitted to make an application for a passport for the child without the consent of the mother or father and that the Family Law Watchlist order be discharged.

9. At the hearing the father adopted the orders sought by the paternal aunt. The Independent Children’s Lawyer (“ICL”) also adopted the proposed minute of the paternal aunt.

10. Orders were made by the Court in the terms sought by the paternal aunt on 19 July 2019 and reasons were reserved. These are those reasons.

Context

1. The mother was 38 and the father 35 at the time of hearing.

2. The parties married in 2009 and separated on 8 October 2013.

3. The subject child of these proceedings was born in Country B in 2012, it seems in a deliberate ploy by the parties to prevent the child’s removal from their care by FACS. Following the birth of the child, the father returned to Australia for family reasons and the mother later returned on expiry of her visa.

4. The child remained in Country B for over a year with the paternal aunt and paternal grandmother until they each moved to Australia in July and August 2013 respectively.

5. Since coming to Australia, the child has been cared for by the father, paternal aunt and paternal grandmother who all reside at the same address. The paternal aunt is the primary carer for the child. Following the parties’ separation, the mother visited the child in the father’s care on a few occasions, however, such visits ceased at some point in 2015.

The proceedings

1. Proceedings were commenced by the mother on 21 December 2016 by filing an Initiating Application in the Federal Circuit Court of Australia as against the father only.

2. On 2 June 2017, the parties were ordered to attend upon a family consultant for the purposes of a Child Dispute Conference.

3. On 31 July 2017, leave was granted to the paternal aunt to intervene in the proceedings.

4. On 5 March 2018, orders were made by consent appointing a single expert witness, Dr D, to prepare a report in the proceedings.  

5. On 14 June 2018, the proceedings were transferred to this Court as the Federal Circuit Court judge determined that the issues were complex.

6. On 23 August 2018, orders were made with the consent of all parties that the paternal aunt have sole parental responsibility for the child, that the child live with the paternal aunt and that all parties be restrained from removing the child from the Commonwealth for a period of two years and to give effect to this order the child’s name was placed on the Family Law Watchlist. Further orders were made that the parties attend a COMP mediation to be facilitated by the ICL with the ICL ordered to make an application to the Court in chambers to relist the proceedings following the mediation.

7. The matter came back before a Registrar on 30 January 2019 as the parties were unable to resolve the dispute at mediation.

Procedural Fairness

1. On 18 February 2019, the mother failed to appear at a case management hearing although she was legally represented. The mother was ordered to file an Amended Initiating Application setting out with particularity the parenting orders sought by her in relation to the child by no later than 22 March 2019 and attend in person on the adjourned date, otherwise, the Court was to consider issuing a warrant to bring her before the Court.

2. The mother’s solicitors subsequently filed a Notice of Ceasing to Act on 22 February 2019.

3. On 5 April 2019, the mother failed to appear before the Court as ordered and had not filed an Amended Initiating Application as previously ordered.

4. Consequently her Initiating Application was struck out and dismissed and the matter was listed for an undefended hearing. Directions were made for the father, paternal aunt and paternal grandmother to each file one consolidated affidavit of evidence in chief to support the orders sought by them which all parties complied with.

5. On 19 July 2019, the mother did not appear on the adjourned date listed for undefended hearing.

6. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (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.

7. Further, rule 11.02(2)(c) of the Rules provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

8. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

9. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

10. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

    … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

11. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

12. Such is the case presently before the Court for consideration.

13. In circumstances where the mother failed to comply with orders made and failed to appear on a number of occasions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis where her Initiating Application had been struck out.

Child Dispute Conference Memorandum

1. On 3 July 2017 the parties attended upon a family consultant for a Child Dispute Conference. 

2. While the paternal aunt had not yet been joined to the proceedings, the father insisted that she be present during his interview, which gave the family consultant the impression that the father did not think he could perform well in the interview alone. The paternal aunt was not permitted to speak on behalf of the father but was permitted to be present during the interview.

3. Relevantly, the family consultant made the following observation:

   It is possible that X’s primary attachment figure is not one of her parents but is [the paternal aunt] and/or the paternal grandmother…

4. The family consultant concluded that the child does not have a relationship with the mother and it is possible the child does not remember her.

Expert Report

1. On 11 March 2018 the parties attended upon a Dr D for the preparation of an expert report.

2. The expert opined regarding both parties and specifically as to the father:

   …I think that both the mother and the biological father have significant psychological issues which probably reflect more characterlogical than mental illness issues. I think both are quite damaged people. Why [the father] is such I do not know but certainly he does not present as a person who is able to manage psychologically without significant support from his family. 

3. The expert observed as to the paternal aunt:

   [The paternal aunt] has clearly been the primary carer for X, with good support from [the paternal grandmother]… [The paternal aunt] has been living with X from the minute she was born and basically she says that she has been the full time carer and mother figure to X…

   …From X’s perspective she lives in a very close enmeshed family in which parental roles seem to be shared by everybody, although obviously her primary attached is to her aunt

4. Further, the expert opined of the paternal aunt:

   [The paternal aunt] on the other hand does not present as having any psychological difficulties of note. She appears to be focussed on the needs of all her nieces and manage a parental role towards them.

5. As to the child, the expert opined:

   X is a young child who presents as having significant distress. She is clearly a child who has experienced some trauma and I am not quite sure where the source of that trauma lies but I suspect that the paternal family have not been particularly good historians in regards to the issues…

6. The expert concluded that at this point in her life, the child has no need for her mother as her family identity and attachment needs are completely met by the paternal family.

The mother’s conduct

1. The mother at no stage played much of a parental role in the child’s life. After giving birth to the child, all parental duties including changing nappies, bathing, and feeding the child were performed by the paternal aunt and paternal grandmother who have lived in the same house as the child at most points during the child’s life.

2. The mother perpetrated family violence towards the father and paternal family throughout the parties’ relationship. From the child’s birth onwards, the mother was verbally and physically abusive to the paternal aunt and paternal grandmother.

3. In May 2012, the mother threatened the paternal aunt with violence, asserting that she had a friend who had a gun.

4. On 8 October 2013, the child burnt her hand on a hot pressure cooker under the mother’s supervision. The paternal grandmother who had been outside washing clothes rushed inside on hearing the child screaming and applied mustard oil on the child’s hand to ease the pain. The mother did not respond well to this and after washing the oil off the child’s hand and throwing the child onto the sofa started choking the paternal grandmother while the child watched and screamed. The paternal grandmother managed to escape the mother’s grasp by pulling the mother’s hair and then picked up the child and took her outside. From outside the paternal grandmother watched the mother throw contents of the fridge onto the floor and smash them with her feet. The mother then got into her car and reversed into the clothes line and then drove away. This incident was reported to the police (Exh “J”)

Objective Evidence

1. Otherwise, the mother’s engagement in sex work and the father’s role as her “minder” in this capacity is well documented in police records produced (Exh “G”).

2. The parties’ drug use is also well documented in police records produced on subpoena. On 1 March 2010, police observed the husband to appear to be under the influence of illicit drugs (Exh “G”) and upon searching his vehicle found drug paraphernalia. Then on 1 June 2010, the mother admitted to police that she was using illicit drugs (Exh “G”).

3. A letter dated 19 October 2012 indicated also at that point in the time the mother was a methadone patient (Exh “M”). Medical records further document the mother as having been a regular drug user (Exh “H”).

4. It is also documented that the police have historically suspected the husband of procuring or distributing drugs in areas where the mother used to work.

5. On 5 February 2016 police were called to a scene where they observed the mother to have heavy bruising on her face. The mother refused to talk to police or give them any information about who had assaulted her.

6. Medical records produced on subpoena also indicate the mother’s significant mental health issues and her disinterest in gaining any form of employment. The records indicate that the mother only seemed to seek help for the purpose of getting a Disability Support Pension and not for any genuine rehabilitative purpose (Exh “H”).

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, 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.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In the present matter the Court is well satisfied that there has been family violence perpetrated by the mother. The father sought no order as to parental responsibility devolving same to the paternal aunt. In such circumstances against a background of family violence it is clearly not in the best interest of the child to consider the presumption as to shared parental responsibility. Such presumption does not arise.

9. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The paternal aunt and paternal grandmother, therefore, are able to apply for parenting orders pursuant to subparagraph (ba) of that section.

10. This matter involves a non-parent.

11. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229, in referring to the decision of Moore J in Potts & Bims [2007] FamCA 394 said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

1. Consideration of the paternal aunt as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m).

2. The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is, therefore, appropriate to apply the relevant considerations in respect of the paternal aunt by way of application of s 60CC(3)(m) to determine what is in the child’s best interests.

3. It is clearly not in the best interests of the child for the parents to have equal shared parental responsibility. Having regard to the father’s consent to orders for the paternal aunt to have sole parental responsibility for the child, and in circumstances where the paternal aunt has been the primary carer for the child since her birth, orders will be made for the paternal aunt to have sole parental responsibility for the child.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The paternal aunt has been the primary carer for the child at all times since her birth and it is readily apparent the child’s primary attachment is to her. The mother has played no realistic active role in the care of the child at any stage in the child’s life and following separation has seen the child irregularly and infrequently. The mother has at no stage had a meaningful relationship with the child. The mother’s mental health issues and her history of drug abuse and aberrant conduct leave little room for orders that may facilitate a meaningful relationship between her and the child. The father and paternal aunt have not sought “no time” orders against the mother. It is appropriate that orders be silent on the issue of her time with the child. It is a matter for the mother to be proactive about her own rehabilitation and her relationship with the child.

4. While the father’s involvement with the child is questionable, he is living in the house with the paternal aunt so has the opportunity to have a meaningful relationship with the child to the extent as permitted by the paternal aunt in the interests of the child.

5. It is clearly appropriate to make orders that ensure the child remains in the paternal aunt’s primary care with the father’s time to be as she considers appropriate.

Section 60CC (2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. This is a salient issue in these proceedings given both parties’ history of drug abuse, the mother’s mental health issues and violent tendencies. This gives rise to a significant concern about the risk of harm that both the father but more so the mother poses to the child. Relevantly the expert opined:

   [The mother] appeared to have no insight into the impact on X of meeting her mother, or X’s current stability in her paternal family’s care… [The mother] did not display any insight into what attachment issues might occur for X as consequence of resuming contact with [the mother]…

   [The mother] presents as a much-damaged woman who has little insight into her parenting. She has significant relapse potential for drug abuse. I believe she remains a psychologically disturbed woman who is yet to get enough age and maturity to burn out form her personality disordered behaviours. However it is difficult to fully explore [the mother’s] psychological state and certainly her extensive drug use history would have masked a number of her personality issues that do exist…

3. The ICL submitted that given the mother’s lifestyle and history of perpetrating violence, the Court would have significant concerns about the child spending any unsupervised time with the mother.  Of note is the Expert’s recommendation that should any time with the child be ordered, the child should spend supervised time four times per year with the mother (referred to as “identity time”) such as to give the child a real impression of her mother as opposed to creating a fantasy of who her mother might be.

4. The ICL submitted that there are also some concerns about psychological harm to the child in the paternal families’ household.  Such concerns are based on the expert’s conclusions regarding the paternal families’ attitude towards the mother. The expert opined that there is “vilification of the mother in the household despite the comments made by the paternal aunt and father as to the absence of such vilification.” 

5. The expert also opined:

   [The child] clearly has been alienated from her mother despite the comments to the contrary by the paternal family.  It is obvious that they have spent some time in providing quite negative narratives to [the child] about her mother’s behaviour and this is a matter of concern to me, although it is possible that if [the child] does have any memories of her mother they are likely to be reinforced by these negative narratives.

6. The ICL submitted that if orders were made as sought by the paternal aunt, it is hopeful that such denigration by the paternal family of the mother would cease.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The child was almost six years old when she met with Dr D for the preparation of the expert report. The child indicated that she liked living with her two “sisters” (her cousins) and that she liked her “Mum” who was, in fact, her paternal aunt. The child also clearly expressed the view that she did not want to see the mother, however, given her age, in isolation this cannot be given significant weight.

4. The child’s primary attachment is clearly to the paternal aunt.  As opined by the expert, at this point in her life the child has no need for the mother as her family identity and attachment needs are completely met by the paternal family.  The expert, after observing the child interacting with the grandmother, formed the view that the child also has a strong and affectionate relationship with her grandmother, but was of the view that given the grandmother cannot speak English their relationship may diminish over time.

5. The mother has failed to play an active role in the child’s life and has not had a relationship with the child since about 2015. Even after commencing proceedings in relation to the child, the mother has failed to commit to her application and has disengaged in the proceedings. While the father’s engagement with the child is questionable, he nonetheless continues to reside in the child’s household and play some part in the child’s life. 

6. The paternal aunt has at all times been the primary carer for the child including being responsible for long-term decision-making in relation to the child so has always been exercising de facto parental responsibility. In her interview with the expert, the paternal aunt indicated that her brother, the father, defers decision-making to her. The paternal aunt gave the example to the expert that if there are school meetings or parent teacher nights, she is the one who attends and provides information about the child.

7. The child also has a close relationship with her cousins who live in the same household and refers to them as her “sisters”. She also has a strong relationship with her uncle who also lives in the household. The likely effect of the child’s removal from this extended family system would not be in her best interests.

8. The father and paternal aunt share the costs of maintaining the child.  

9. The orders proposed by the paternal aunt and adopted by the father would see a maintenance of the status quo for the child. A change in the child’s circumstances resulting in her separation from the paternal aunt would cause the child significant distress. The expert observed that neither the grandmother nor the father had the capacity to soothe and care for the child when she is emotionally distressed and only the paternal aunt was able to do so. Further, the expert was concerned that a requirement for contact between the child and mother may expose the child to further conflict given the paternal families’ attitude towards the mother.

10. Given the mother’s history of drug use, attitude to employment and mental health, there is real concern that she would not be able to provide for the needs of the child, including emotional and intellectual needs.

11. The child is of Country B heritage. By living with the paternal family who are also of such heritage, it is likely that the child would be able to be involved in her culture, however, no evidence is adduced as to cultural norms and practices in the paternal family.

12. The mother has not demonstrated an appropriate attitude to the responsibilities of parenthood, having essentially abandoned all responsibility from the child’s birth. The father has also previously demonstrated an inappropriate attitude to the responsibilities of parenthood, resulting in the paternal aunt assuming care. The paternal aunt has at all times demonstrated an engaged and mature attitude to the responsibilities of parenthood in relation to this child.

13. Finally, given the mother has disengaged from the proceedings, the orders that would be least likely to lead to the institution of further proceedings in relation to the child would be those sought by the paternal aunt as adopted by the father.

14. A consideration of the s 60CC factors above in the context of the background of this matter and the reality that there is no relationship between the child and the mother demonstrates that the orders as sought by the paternal aunt and endorsed by the father are in the best interests of the child. These orders allow for the maintenance of the status quo such that the co-parenting relationship within the paternal family remains in place and the paternal aunt continues to be the primary attachment figure for the child.

15. Otherwise, the paternal aunt seeks an order that she be permitted to obtain a passport for the child. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the parents. In the circumstances of this matter where the father consents to orders being made in favour of the paternal aunt and the mother has played no role in the child’s life thus far, it is proper for the paternal aunt to be able to obtain a passport for the child without the consent of the mother.

16. All the aforementioned considerations are indicative of orders being made in the best interests of the child as sought by the paternal aunt. Orders will be made accordingly.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 October 2019.

Associate:

Date:  4 October 2019