BLACKETT & LEICESTER
[2014] FCCA 1619
•24 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACKETT & LEICESTER | [2014] FCCA 1619 |
| Catchwords: FAMILY LAW – Children – Interim Orders – Mother deceased – Application of Goode & Goode when competing application for residence between maternal grandparents and father – whether equal shared parental responsibility appropriate. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 61DB, 61C, 64C, 65C |
| Goode & Goode [2006] FamCA 1346; (2007) 36 FamLR 422 Cowling v Cowling [1998] FamCA 19; (1998) 22 FamLR 776 Potts & Bims [2007] FamCA 394 Aldridge v Keaton (2010) 42 FamLR 369 Rice v Miller (1993) 16 FamLR 970 Re Evelyn (1998) 23 FamLR 73 Oldfield & Anor & Oldfield & Anor [2012] FMCAfam 22 |
| Applicants: | MS BLACKETT AND MR BLACKETT |
| Respondent: | MR LEICESTER |
| File Number: | BRC 6033 of 2014 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 17 July 2014 |
| Date of Last Submission: | 17 July 2014 |
| Delivered at: | Toowoomba |
| Orders Delivered on: | 18 July 2014 |
| Reasons Delivered on: | 24 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sorensen |
| Solicitors for the Applicant: | MacDonald Law |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | McMillian Kelly Thomas Lawyers |
ORDERS UNTIL FURTHER ORDER
That the applicant maternal grandparents and the respondent father have equal shared parental responsibility for the child X born (omitted) 2004.
That the child live with the maternal grandparents.
That the child spend time with the father each alternate weekend from after school Friday to before school Monday.
That the child spend from 5.00pm the Saturday before Father’s Day to 5.00pm Sunday (Father’s Day) if not already a weekend where he is spending time with the father pursuant to these orders.
That the child spend half the school holidays with the father as agreed between the parties, but failing agreement the second half.
That the child have telephone and/or skype communication with each party at any reasonable time.
That for the purpose of changeover when it is not a school day, the father is to collect the child from the maternal grandparent’s business at the commencement of time and the grandparents to collect the child from the father’s residence at the conclusion of time.
That parties do all things necessary to facilitate the child attending grief and family counselling with such counsellor as the parties may agree and that the parties engage with the counsellor as the counsellor may request or recommend from time to time.
That the child X born (omitted) 2004 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.
That the Independent Children’s Lawyer be at liberty to apply.
That the parties do all things necessary to obtain a family report from a suitably qualified family report writer.
That the family report writer is requested to:
(a)Consider the factors in s.60CC & s.65DAA of the Family Law Act 1975;
(b)Profile the father and the maternal grandparents and assess their ability to communicate and their interactions;
(c)Assess the child’s developmental and emotional state;
(d)Assess the relationship the child has to the father, his sisters and maternal grandparents and any other significant persons.
(e)Assess the wishes of the child should he express any and the circumstances surrounding those wishes;
(f)Consider the child’s sense of identity given his mother’s death and that he is currently living with the maternal grandparents and is not living with the father.
(g)Consider the proposals of each party for the child’s future;
That the family report writer has leave to inspect all documents produced under subpoena.
That the parties be responsible equally for payment of the cost of preparation of the family report.
That the parties have liberty to apply regarding the appointment of the family report writer and/or the timeliness of the production of the family report.
That the matter be adjourned to 10.00am on 18 November 2014 in the Federal Circuit Court of Australia at Brisbane for final hearing allocating 2 days.
IT IS NOTED that publication of this judgment under the pseudonym Blackett & Leicester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOOWOOMBA |
BRC 6033 of 2014
| MS BLACKETT AND MR BLACKETT |
Applicants
And
| MR LEICESTER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 July, whilst in a busy duty list on circuit, I heard submissions in relation to interim parenting arrangements for X who is 10 years old. The following day I made the orders set out at the commencement of this judgement and set the matter down for final hearing on 18 November. These are my reasons.
Competing Proposals
X’s maternal grandparents (the Applicants) have sought orders that would provide for him to live with them and spend time with his father on alternate weekends and half school holidays. They also sought an order that they have equal shared parental responsibility with the father and that a specific order be made for the parties to arrange grief counselling for X in light of his mother’s death in February.
The Respondent father has sought an order for him to have sole parental responsibility and for the child to live primarily with him. He proposed that X spend time with the Applicants one weekend in every four and for a week in each of the Christmas, Easter and September school holidays.
Material Relied Upon
The Applicants relied on:
a)The Initiating Application filed 9 July 2014;
b)The affidavit of Ms Blackett filed 9 July 2014; and
c)The Affidavit of Ms R filed 14 July 2014.
The Respondent relied on:
a)The Response filed 14 July 2014; and
b)The Affidavit of Mr Leicester filed 14 July 2014.
The parties’ legal representatives also handed up written submissions which I have considered along with their oral submissions.
Evidence
The hearing, being for interim orders, proceeded on a submissions basis without the benefit of having any of the evidence tested. I am therefore not in a position to determine disputed questions of fact at this stage. For this reason I will set out below only undisputed facts or indicate those factual matters that are in dispute but need to be mentioned to give context to these reasons. Other factual matters in the parties’ detailed affidavits will not be referred to.
The maternal grandmother is 66 years of age and the maternal grandfather is 72. They live on a farm near (omitted) with their three grandchildren: twins A and B who have just turned 18 and are completing their year 12 studies; and X who is 10 and in year 5 at school. The grandparents own and run a (omitted) business in (omitted). The grandmother who has qualifications in (omitted) has practiced as a (omitted) since 1995 although there was no evidence of her currently being engaged in a professional practice as such.
The Respondent father is 48 years old. He lives with his wife, Ms T and two boarders in (omitted). The father is owner and managing director of two small businesses one of which provides (omitted) services to the (omitted) sectors in fields such as (omitted). His other company provides support and assistance to (omitted) from the (omitted). He runs these businesses from his home and occasionally travels as part of his business responsibilities. His wife is an (omitted).
X’s mother died in February this year.
The father and mother commenced a relationship in 1989 and married in 1992. They physically separated in 2007 although the father maintains they continued a relationship until 2008. They were divorced in 2011. The evidence of the parties differs in relation to the history of separations between the father and the mother. It is not necessary for me to determine this issue particularly at this interim stage.
When the parents separated the children lived primarily with their mother and spent time with the father. According to the father there were periods when this time was regular in the sense that he saw the children on weekends, sometimes every weekend, but there were periods of time when the time was not as regular. I am not able to determine the reasons for the breaks in regularity as the evidence of the parties is in dispute. Although this aspect of the children’s care is relevant it is not necessary for me to determine with any precision the extent of the father’s time with the children after separation as even on the Applicant’s material, despite her thinly veiled criticism of him, the father has played a significant role in the lives of his three children.
The evidence is also clear that the maternal grandmother played a significant role in helping the mother care for the children particularly during periods of time when the parents were separated and when the mother’s health was poor. The mother’s health deteriorated in 2013 and by September that year she and the children moved from (omitted) to live with the maternal grandparents. The grandmother asserted she and the grandfather took on the major care of the children during this time. The father expressed concern in his affidavit that X was being cared for by other members of the maternal family and not always in the maternal grandparents’ home. I cannot determine this factual dispute at this time.
In her affidavit the grandmother appears to paint a picture of the father, when he became aware of the mother’s deteriorating health in late 2013, wanting to discuss with the children their future arrangements in apparent insensitivity to their feelings for their mother. She described an incident at her home on 1 March 2014 just four days after the funeral where the father attended and according to her said that he wanted to take X into his care which was against his wishes and the wishes of the twins. The grandmother accused him of distressing the children. The father’s affidavit on the other hand attempts to paint a picture of a father being concerned for his children being able to cope with the loss of their mother and of the extended maternal family attempting to exclude the child from him. The factual descriptions of the events of 1 March are significantly at odds and I am not able to determine the truth or otherwise of each party’s account at this stage.
The father also took an opportunity in his affidavit to raise concerns as to the grandparents’ care of other children not always related to them. This evidence was historic in nature and not of assistance at this interim stage. It may however be relevant at a final hearing.
Legal principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975 which mandates that in determining such matters the Court must consider the best interests of the child as the paramount consideration.[1] Even though these proceedings are for interim orders I am still required to follow that legislative framework. The Full Court of the Family Court in Goode & Goode[2] set out the approach to be adopted in interim proceedings in light of the history of the courts preserving well-settled arrangements pending a final determination.[3] It was submitted by the solicitor for the father that the approach laid out in Goode is problematic in this case as that authority identified the procedure to be adopted in disputes between parents whereas in this case the dispute is between grandparents and the father. Whilst the particular nature of the dispute may require some adjustment of the way in which the court considers the legislative provisions, the framework itself remains the means by which the court must determine a parenting application. To that extent I do not accept the father’s submission and I respectfully adopt the views of Moore J in Potts & Bims[4] to which I will refer below.
[1] s.60CA
[2] [2006] FamCA 1346; (2007) 36 Fam LR 422
[3] See Cowling v Cowling [1998] FamCA 19; (1998) 22 FamLR 776
[4] [2007] FamCA 394 at para [8]
The objects and principles of Part VII are found in s.60B(1) and (2) which provide:
(1) The objects of this Part 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.
(2) 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). (emphasis added)
Given this dispute is between a parent and non-parents, I have highlighted above those parts of the objects and principles that appear to apply solely to parents or specifically mention other people significant to the care of children such as grandparents. There is no dispute that persons other than parents may apply to the court for parenting orders[5] and grandparents are specifically referred to as a category of persons able to make such application.[6]
[5] s.65C; see also s.64C where specific provision is made for the making of a parenting order in favour of a parent or some other person.
[6] S.65C(ba)
In Aldridge v Keaton[7] the Full Court held that the matters set out in s.60B(2) (a)-(e) should be read conjunctively saying:
While the emphasis placed on parents by the legislature is of particular importance, the relevance of the principle that a child spending time with people significant to their care, welfare and development must also guide consideration of relevant matters under s 60CC(2) and (3).
[7] (2010) 42 FamLR 369 at 381 para [45]
In Rice v Miller[8] the Full Court expressed the view:
We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
[8] (1993) 16 FamLR 970 at 977
This approach was followed in Re Evelyn[9] where the Full Court held:
…there is no presumption in favour of a biological parent nor any presumption in favour of the biological mother where the child is female.
[9] (1998) 23 FamLR 73
In Aldridge v Keaton the Full Court adopted the following approach:
(i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2);
(ii) s 65C does not prescribe a hierarchy of applicants. The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3).
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC. Some of these provisions also appear to relate only to parents. Moore J in Potts & Bims[10] considered the approach to be adopted in cases between a parent and a non-parent. Her Honour had this to say:
The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘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)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
[10] [2007] FamCA 394 at para [8]
I am satisfied that it is appropriate to consider the s.60CC factors in so far as they are relevant and applicable to the parties in dispute before me. Although the Act sets out primary considerations and additional considerations the court is not required to consider the ‘list’ of factors in any particular order. It is sometimes preferable to group together a number of considerations in a thematic way to limit duplication and in cases such as this to aid an overall assessment of the child’s best interests given some of the factors refer specifically to parents making no mention of other persons whereas other provisions are more encompassing of others.
Presumption of Equal Shared Parental Responsibility
When making a parenting order the court would usually apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[11] In light of the mother’s death the father has parental responsibility for X.[12] As the presumption only applies as between parents it is not applicable in this case.[13] The court has power though to make a parenting order conferring parental responsibility on a person other than a parent.[14]
[11] s.61DA
[12] s.61C(1)
[13] s.61DA
[14] s.61D provides for a parenting order conferring parental responsibility on a person rather than a parent of the child; Aldridge v Keaton
This was a significant issue for the father who through his solicitor argued that an order for equal shared parental responsibility between the father and the grandparents could not be appropriate as parents have a special role in the context of a child’s care and parental responsibility for the child. The court was referred to the decision of Oldfield[15] in support of that proposition. Federal Magistrate Coker, as his Honour then was, in that case was determining a dispute between parents, who remained as an intact couple on the one hand and grandparents on the other. His Honour was clear to make the distinction between the exercise of parental responsibility by intact couples and those where there had been a separation. I do not consider the decision in Oldfield to be of assistance to this case at least at this interim stage.
[15] [2012] FMCA Fam 22 Coker FM
I will address whether it is in the best interests of X to make an order for parental responsibility attaching to the grandparents after I consider the best interests factors.
Best Interests Considerations
The Child’s relationships:
The benefit to the child of having a meaningful relationship with both of the child’s parents[16]
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)[17]
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living[18]
The primary consideration of the benefit to the child of having a meaningful relationship with both parents falls away to a certain extent in this case as X’s mother has died. It is a relevant consideration solely in relation to benefit to X of having a meaningful relationship with his father. Save for the father’s concern that the grandparents will not promote a positive relationship between him and X I am satisfied the grandparent’s proposal will not see the child’s relationship with his father compromised. They proposed the child spend time with the father on alternate weekends and during school holidays. The child has for the large part spent regular time with the father but has not primarily lived with him since the mother and father separated. X was only three years old when that occurred. I am not able, at this interim stage, to determine if the father’s concern as to the grandparent’s attitude and that of the extended maternal family to his relationship with X is well founded. I will no doubt be assisted to determine this important issue at trial by a family report and the testing of evidence. In the meantime, by making orders consistent with those sought by the grandparents the child will spend regular time with the father consistent with previous arrangements.
[16] s.60CC(2)(a)
[17] s.60CC(3)(b)
[18] s.60CC(3)(d)
If I was to adopt the father’s proposal however the child would be uprooted from the home he has had with the grandparents since September last year and separated from his older sisters. To do so at this interim stage without the benefit of a family report risks undermining a sense of stability for the child. When that is considered in the context of the recent loss of his mother I am of the view that it would be both unwise and not in the child’s best interests.
The grandparents have played a significant role in this child’s life through their help to the mother over the years both before and after the parents separated and in particular since September 2013. The father gave evidence of the child living with other family members from time to time but even if that evidence is ultimately accepted I am still satisfied that the grandparents have played a prominent role in X’s care.
B and A, whilst somewhat older than their brother, are still significant to him relationally. They are in their final year of high school and may have plans in the near future to move to live more independently. Such a move would in the natural course alter the sibling relationships but at this interim stage it is an important consideration and they remain living with the maternal grandparents and have no intention of moving to the father’s home.
The grandmother gave evidence of all three children’s relationships with the father being strained over the father’s desire for X to live with him. The father is of the view that the maternal family have fuelled this problem. I am not able to determine this issue without the testing of evidence and some independent evidence through a family report. In light of the issue being raised however I propose to adopt a conservative approach to provide as much as possible a sense of stability for X. If I was to order him to live with his father at this stage there may be a risk that the placement would break down which would not be helpful for the child especially since he would still be dealing with the loss of his mother.
Risk of Harm:
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence[19]
Any family violence involving the child or a member of the child’s family[20] and 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:
[19] s.60CC(2)(b). s.60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
[20] s.60CC(3)(j)
a)The nature of the order;
b)The circumstances in which the order was made;
c)Any evidence admitted in proceedings for the order;
d)Any findings made by the court in, or in proceedings for, the order;
e)Any other relevant matter[21]
[21] s.60CC(3)(k)
The father raised issues as to the child being exposed to violence in the maternal aunt’s home. The incident he referred to in his affidavit was some 7-8 years ago. Whilst concerning it appears to be historic. There is no evidence of any recent concerns. I am not satisfied there is sufficient evidence of any current risk the child will be exposed to family violence.
The father also raised concern that X may be at risk of psychological harm with the extended maternal family and relied on his version of events of 1 March 2014. The grandparents submitted the father’s own conduct on 1 March and on other occasions raise similar concerns if the child was living primarily with him. I have already indicated I am not able to determine this factual dispute at this stage.
The Child’s Views:
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[22]
[22] s.60CC(3)(a)
The grandmother in her evidence told the court the child had clearly expressed a wish to remain living with the maternal family. The father does not dispute the child has said that but has questioned the influence over him by the mother’s side of the family. He also submitted that when the child is with him his conduct is suggestive of being comfortable in his care. That may be the case but does not assist in determining his wishes.
At this interim stage I do not propose to give any weight to what the grandmother says about the child’s wishes. Any expression of a wish to both the father and grandmother would be contextual and significantly influenced by any sense of loss he would be feeling as a result of his mother’s death. It would be appropriate to have a family report writer assess any wishes he expresses along with his level of maturity and understanding of the consequences of those wishes.
Parental Involvement:
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
a)To participate in making decisions about major long-term issues in relation to the child; and
b)To spend time with the child; and
c)To communicate with the child[23]
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child[24]
The capacity of each of the child’s parents and 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[25]
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents[26]
[23] s.60CC(3)(c)
[24] s.60CC(3)(ca)
[25] s.60CC(3)(f)
[26] s.60CC(3)(i)
The grandmother appeared to be at pains in her affidavit to point out failings on the part of the father in relation to the care of the children and support to the mother both during their relationship and after. I am not satisfied she has a first-hand knowledge of all of the issues raised in her affidavit and do not propose to give any weight to her evidence at this interim stage.
Regardless of what findings I ultimately make on the father’s past commitment it is clear that he now wishes to step up to the mark and take on what he sees as his responsibility as X’s only surviving parent to be his primary carer. This will be an important consideration at the final hearing. At this interim stage however any assessment of his commitment and each party’s capacity to meet the needs of the child cannot be sufficiently determined.
A significant issue that does require adjudication is the dispute between the grandparents and father over the provision of counselling to the children upon their mother’s death. The father objected to the arrangements made by the grandparents but does not appear to have made any other arrangements. Whilst I am not prepared to make a finding at this stage that he acted in a way that was not child focused I am satisfied that such counselling would be of benefit to X and will make an order specifically addressing this issue.
Practical Difficulties:
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[27]
[27] s.60CC(3)(e)
The parties live in close enough proximity to ensure the child is able to move between their respective homes without difficulty.
Background Issues:
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[28]
The child’s right to enjoy his or her culture if the child is an Aboriginal child or a Torres Strait Islander child (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order will have on that right[29]
[28] s.60CC(3)(g)
[29] s.60CC(3)(h). s.60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture
The written submissions of the father suggest that these are not relevant considerations at this stage. However they indicate that the father has “some indigenous background”. I am not sure what is meant by that submission. In my view if this child is of Aboriginal or Torres Strait Islander heritage it will be a significant factor for my consideration at the final hearing to which the parties will need to address in their evidence.
Other Factors:
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[30]
Any other fact or circumstance that the court thinks is relevant[31]
[30] s.60CC(3)(l)
[31] s.60CC(3)(m)
The father’s solicitor made the following submission:
X is entitled to be parented by his parents. His mother has tragically passed away. His father is the sole surviving parent and has sole parental responsibility, and should be the primary carer for this child. An order which does not reflect this, risks further proceedings. An order which reflects this promotes the likelihood of a swift final resolution and less engagement in litigation.
With respect I reject that submission save as to the tragedy of X losing his mother. The courts have consistently rejected the notion of a presumption in favour of a biological parent. Any parenting matter is to be determined on its own facts and circumstances and in the best interests of the child involved. At this interim stage a change in the child’s residence to live primarily with the father may be premature and risk the matter being brought back before the court on an urgent basis if the placement breaks down. Fortunately I have been able to offer the parties a relatively quick final hearing in November. This earlier date may assist in limiting further litigation.
Another factor warranting consideration is X’s schooling. The father’s proposal would see him move from (omitted) in (omitted) where he has been attending since moving to his grandparents in September last year. He previously attended a school in (omitted). It would not be appropriate keeping X at the school in (omitted) if he lived with his father in (omitted) as the daily commute would be too much. There is a risk that a change of school would add to a sense of instability for the child. Without some independent evidence as to how the child is fairing at school and his emotional state it is not possible to quantify this risk. Therefore I would adopt a cautious approach and leave him at his current school.
Parental Responsibility
The father submitted that I should not make an order for equal shared parental responsibility as to do so would send a message to the grandparents that the father does not have an exclusive role in the decision making for the child. The father alleged the grandparents have a misconceived loyalty to their deceased daughter. He referred to the maternal grandmother’s evidence that she had been put in the position of being an advocate for the children’s wishes by their mother. It was submitted that having such a view would cloud the maternal grandmother’s capacity to make appropriate judgments about the child’s best interests. The extent to which the grandparents see their role in this child’s life will be a matter for final hearing.
Whilst I have sympathy for the father’s position, particularly given the difficulties between the father and the maternal family in March this year, because I have concluded that at this interim stage the child should remain living with the maternal grandparents I am of the view that the parties should share the child’s parental responsibility. The final hearing has been set down to be heard in four months’ time. There should not be any major decisions affecting this child’s long term care in that time but it might overcome some difficulties that can arise in relation to a child’s medical and educational needs if the people with whom the child is living shares the parental responsibility with the father.
The court is required to disregard the allocation of parental responsibility made at interim proceedings such as these when it considers the matter on a final basis.[32] This will mean that when I determine where the child should live on a final basis this issue will be looked at afresh.
[32] s.61DB
Conclusion
After weighing up the various factors above I have come to the conclusion that on balance it is in X’s best interests for him to remain living with his maternal grandparents where he will have a sense of stability pending the final determination of where he should live in the long term. In Goode the Full Court was clear to say that although the issue of stability had to be considered in the context of the overall legislative framework it may still be a factor that the court finds is ultimately in a child’s best interests. I am so satisfied.
The child has never lived primarily with his father since the parents separated seven years ago. He has only lived with his grandparents since September last year and has endured the upheaval of his mother’s illness and death this year. In that sense it is not clear if he has “well-settled circumstances” as contemplated by the decision of Cowling but by remaining with his grandparents he will continue to live with his sisters and see his father each fortnight. He will also remain at his current school. This will afford him as best as possible a sense of stability in the short term which in my view may not be achievable if he was to move to his father’s at this time. When the court is appraised of more evidence, particularly by way of a family report it will be possible to assess his longer term needs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 24 July 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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