Blaze v Grady
[2015] FamCA 1064
•30 November 2015
FAMILY COURT OF AUSTRALIA
| BLAZE AND ANOR & GRADY AND ANOR | [2015] FamCA 1064 |
| FAMILY LAW – CHILDREN - where the applicants are not the child's "parents" - where the applicants are not related to the child - where the mother and the applicants agreed before the child's birth that the applicants would care for the child - quasi-adoption - where the father was not involved in this decision - where the mother resiled from that agreement - where the mother, the father and the Independent Children’s Lawyer seek orders to have the child transitioned to the mother’s primary care - whether the child's best interests are served by continuing her established attachments to the applicants - whether the child's best interests are served by enhancing her familial attachments and familial connectedness to her parents and siblings - where the child is two years old - principles relating to non-parent applicants - child to live with her mother and spend time with the applicants and spend time with her father. |
| Acts Interpretation Act 1901 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Aldridge v Keaton (2009) FLC 93-421 Beckwith v The Queen (1976) 135 CLR 569 Champness & Hanson (2009) FLC 93-407 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cox & Pedrana (2013) FLC 93-537 Donnell & Dovey (2010) FLC 93-428 Goode & Goode (2006) FLC 93-286 Hall & Hall (1979) FLC 90-713 Hort & Verran (2009) FLC 93-418 M v M (1988) 166 CLR 69 Maldera v Orbel (2014) FLC 93-602 Marsden & Winch (No 3) [2007] FamCA 1364 Mills v Meeking (1990) 169 CLR 214 MRR v GR (2010) 240 CLR 461 Mulvany & Lane (2009) FLC 93-404 Potts & Bims [2007] FamCA 394 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Evelyn (No 2) (1998) 23 Fam LR 73 Rice v Miller (1993) FLC 92-415 Sanders & Sanders (1976) FLC 90-078 Sayer v Radcliffe and Anor (2012) 48 Fam LR 298 SCVG & KLD (2014) FLC 93-582 The Commonwealth v Baume (1905) 2 CLR 405 Transport Accident Commission v Treloar (1991) 14 MVR 289 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANTS: | Ms Blaze and Ms Darnley |
| RESPONDENT: | Ms Grady |
| INTERVENER: | Mr Harper |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Jennifer Boulton |
| FILE NUMBER: | BRC | 2313 | of | 2014 |
| DATE DELIVERED: | 30 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19 to 23 October 2015 and 26 to 27 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Cullen |
| SOLICITOR FOR THE APPLICANTS: | Porta Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Galvin |
| SOLICITOR FOR THE RESPONDENT: | Journey Family Lawyers |
| COUNSEL FOR THE INTERVENER: | Ms McDiarmid |
| SOLICITOR FOR THE INTERVENER: | Delaney & Delaney |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton, Solicitor |
Orders
it is ordered that:
The Mother and the Father shall have equal shared parental responsibility for the child, B born on … 2013.
For the purposes of the child transitioning to live with the Mother, the child shall live with the Mother and the Applicants as follows with all handovers to occur at the Suburb C Shopping Centre, unless otherwise agreed in writing:
With The Mother:
(a) for the first four (4) weeks commencing from Monday 30 November 2015 (“the First Transition Period”):
(i)from 9.00 am Wednesday until 5.00 pm Wednesday in each
week; and
(ii)from 5.00 pm Friday until 5.00 pm Sunday in each week.
(b) from the end of the First Transition Period and for the next four (4) week period (“the Second Transition Period”):
(i)from 9.00 am Wednesday until 5.00 pm Thursday in each week;
and
(ii)from 5.00 pm Friday until 5.00 pm Sunday in each week.
(c) from the end of the Second Transition Period and for the next four (4) week period (“the Third Transition Period”) from 9.00 am Wednesday until 5.00 pm Sunday in each week.
With The Applicants:
(d) at all other times when the child is not living with the Mother in accordance with subparagraphs (a) – (c) inclusive herein.
From the end of the Third Transition Period and for the next eight (8) week period (“the Fourth Transition Period”) the child shall:
(a) spend time with the Applicants from 5.00 pm Friday until 5.00 pm Sunday in each alternate weekend; and
(b) live with the Mother at all other times.
During the First, Second, Third and Fourth Transition Periods the child shall spend time with the Father at all such times as may be agreed between the Mother and the Father provided that such “time” does not coincide with the time that the child would otherwise be in the care of the Applicants pursuant to these Orders.
On and from the conclusion of the Fourth Transition Period the child shall live with the Mother.
From the end of the Fourth Transition Period and until the child commences school, the child shall spend time with the Applicants from 5.00 pm Friday until 5.00 pm Sunday on the fourth weekend of each block of four (4) weeks (“the Applicants’ Weekend”) with changeover to occur at the Suburb C Shopping Centre (unless otherwise agreed to by the parties in writing), with such weekend time to alternate between the weekends the child would otherwise be spending with the Mother and the weekends that she would otherwise be spending time with the Father in accordance with these Orders.
From when the child commences school, the child shall spend time with the Applicants from after school Friday until 5.00 pm Sunday on the fourth weekend of each four (4) week period (“the Applicants’ Weekend”) with the Applicants to collect the child from her school on the Friday and with changeover on the Sunday at the Suburb C Shopping Centre (unless otherwise agreed to by the parties in writing) with such weekend time to alternate between the weekends the child would otherwise be spending with the Mother and the weekends that she would otherwise be spending time with the Father in accordance with these Orders.
From the end of the Fourth Transition Period and until the child commences school the child shall spend time with the Father at all such times as may be agreed between the Mother and the Father (provided that such “time” does not coincide with the Applicant’s Weekend) but failing agreement as follows:
(a) from 4.00 pm Tuesday until 7.30 am Wednesday in each week;
(b) each alternative weekend, from 5:00 pm Friday until 7:30 am Monday; and
(c) for a period of no more than seven (7) days in a row, up to four (4) times per calendar year, with the Father to nominate this time by giving the Mother no less than sixty (60) days’ notice in writing.
From when the child commences school, the child shall spend time with the Father at all such times as may be agreed to between the Mother and the Father (provided that such “time” does not coincide with the Applicant’s Weekend) but failing agreement as follows:
(a) from after school Tuesday until before school Wednesday in each week;
(b) from after school Thursday until before school Friday in each week;
(c) each alternative weekend, from after school Friday until before school Monday; and
(d) for a period of no more than fourteen (14) days in a row, up to three (3) times per calendar year or half of the child's gazetted school holidays with the Father to nominate this time by giving the Mother and the Applicants no less than sixty (60) days’ notice in writing.
In the event that Easter Thursday to Easter Monday inclusive, Mother’s Day, the Mother’s birthday, the child’s birthday, Father’s Day, the Father’s birthday, Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day fall during the Applicants’ Weekend, then the Applicant’s time pursuant to these Orders is suspended on those days only and the child shall be returned to the parent with whom the child is otherwise to live or spend time with pursuant to these Orders.
Special Occasions
That on the child’s birthday, the child shall spend time with the parent who does not have their care on that day, with such time to be as agreed between the Mother and Father in writing at least seven (7) days prior, or failing agreement, from after day care/school until 7:30 pm if the birthday falls on a day care/school day or from 12:00 pm to 5:00 pm if the child’s birthday does not fall on a day care/school day. The parent not having the care of the child on that day is responsible for collecting the child from the other parent’s residence or day care/school at the commencement of the birthday time and returning the child to the other parent’s residence at the conclusion of the birthday time.
In the event that the Mother’s birthday falls on a day when the child is not in the Mother’s care, the child shall spend time with the Mother with such time to be agreed between the Mother and Father in writing at least seven (7) days prior, or failing agreement, from after day care/school until 7:30 pm if the birthday falls on a day care/school day or from 12:00 pm to 5:00 pm if the Mother’s birthday does not fall on a day care/school day. The Mother is responsible for collecting the child at the commencement of her birthday time from the Father’s residence or day care/school and responsible for returning the child to the Father’s residence at the conclusion of her birthday time.
In the event that the Father’s birthday falls on a day when the child is not in the Father’s care, the child shall spend time with the Father with such time to be agreed between the Mother and Father in writing at least seven (7) days prior, or failing agreement, from after day care/school until 7:30 pm if the birthday falls on a day care/school day or from 12:00 pm to 5:00 pm if the Father’s birthday does not fall on a day care/school day. The Father is responsible for collecting the child at the commencement of his birthday time from the Mother’s residence or day care/school and responsible for returning the child to the Mother’s residence at the conclusion of his birthday time.
In the event that Mother’s Day falls on a weekend when the child is not in the Mother’s care, the child shall spend time with the Mother from 9:00 am to 5:00 pm.
In the event that Father’s Day falls on a weekend when the child is not in the Father’s care, the child shall spend time with the Father from 9:00 am to 5:00 pm.
For Easter, as follows:
(a) in 2016 and each alternate year thereafter, the child shall spend time with the Father from 4:00 pm on the Thursday prior to Good Friday until 5:30 pm on Easter Monday; and
(b) in 2017 and each alternate year thereafter, the child shall spend time with the Mother from 4:00 pm on the Thursday prior to Good Friday until 5:30 pm Easter Monday.
For Christmas, as follows:
(a) in 2015 and each alternate year thereafter, the child shall spend time with the Mother from 12:00 noon Christmas Eve until 12:00 noon Christmas Day and with the Father from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day; and
(b) in 2016 and each alternate year thereafter, the child shall spend time with the Father from 12:00 noon Christmas Eve until 12:00 noon Christmas Day and with the Mother from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day.
Changeover Location
That in relation to changeover between the Mother and the Father (unless otherwise provided for in these Orders or otherwise agreed):
(a) until the child commences school the Mother will deliver the child to the Father’s residence at the commencement of the child’s time with him and the Father will return the child to the Mother’s residence at the conclusion of the child’s time with him;
(b) once the child commences school:
(i)during the school term the Father will collect the child from her school at the commencement of her spending time with him and return the child to her school at the conclusion of her time with him; and
(ii)on all other occasions when the child is spending time the Father, the Mother will deliver the child to the Father’s residence at the commencement of the child’s time with him and the Father will return the child to the Mother’s residence at the conclusion of the child’s time with him.
That in relation to changeovers involving the Applicants, unless provided for in these Orders, all changeovers will be at Suburb C Shopping Centre unless otherwise agreed to by the parties in writing.
Telephone Communication
That the Mother and the Father be at liberty to telephone, text message and or call the child via Tango/Skype/Facetime when the child is not in their care at all reasonable times.
That the child be at liberty to telephone, text message and or Tango/Skype/Facetime the Applicants, the Mother and the Father at any reasonable time requested by the child and the other party shall do all things necessary to encourage and facilitate such communication.
Passports and Overseas Travel
That upon the request of either the Mother or the Father, the Mother and the Father shall sign any passport application and necessary documentation in order for the child to obtain a passport within fourteen (14) days of the request.
That in the event that the Mother or the Father shall neglect or fail to sign any passport application and necessary documentation in accordance with paragraph (22) hereof, a Registrar of the Family Court of Australia shall sign in lieu thereof any passport application and supporting documentation necessary to allow the child to travel overseas.
That the Mother and the Father agree that in the event that either of them wish to travel overseas with the child, the travelling party will provide to the other party at least twenty-eight (28) days prior to departure, the following:
(a) details of the time and place of departure from Australia and the time and place of arrival on their return to Australia;
(b) copies of documentation and return tickets that evidences when the child will be returning to Australia;
(c) a brief itinerary as to where the child will be travelling and the addresses where the child will be staying when overseas;
(d) contact telephone numbers so that each party has telephone communication with the child whilst they are in the care of the other party at all reasonable times.
Specific Issues Orders
That the parties use text message and email to communicate with respect to the child’s care, welfare and development.
That the Applicants, the Mother and the Father are restrained from criticising, denigrating, demeaning, belittling or ridiculing each other or any member of each party’s family or household in the presence or the hearing of the child and the parties who are present shall forthwith remove the child from the presence of any person who is doing so.
That the Applicants, the Mother and the Father advise each other in writing of any changes to their residential address, landline telephone number and mobile number within forty-eight (48) hours of such change occurring.
That the Mother and the Father keep each other advised in writing of the activities, playgroups, extra-curricular activities, medical practitioners or other professionals that the child attends and advise within forty eight (48) hours of any change to those details.
That the Mother and the Father be at liberty to attend the child’s school and extra-curricular events and activities and to contact the child’s school and teachers to ascertain how the child is progressing. These Orders authorise the child’s school and relevant educational institutions to provide a copy of the child’s reports, school notices, newsletters, school photographs and any other information concerning the child to the Mother and Father.
That the Applicants, the Mother and the Father advise each other as soon as practicable of any emergency involving the child and providing details including the name of the treating doctor, hospital and relevant contact numbers.
That the Mother and the Father be at liberty to contact all of the medical practitioners treating the child from time to time and these Orders authorise the child’s medical practitioners to provide information or reports concerning the child to the Mother and the Father.
Within twenty-eight (28) days of the date of these Orders the Applicants, the Mother and the Father do all things reasonable and necessary and sign all documents to ensure that the Father’s name is recorded on the child’s Birth Certificate as her father.
The Mother and the Father are permitted to register the name, “N”, in the child’s name with the Registrar-General for the State of Queensland, provided that the name, “N”, is incorporated as one of the child’s middle names and the Mother and the Father are hereby restrained from registering the name “B-N” as the child’s name with the Registrar-General for the State of Queensland.
The Mother and the Father are permitted to change the child’s surname from “Darnley-Blaze” to “Harper-Grady” and to register that name as the child’s surname with the Registrar-General for the State of Queensland.
The Applicants, the Mother and the Father shall within twenty-eight (28) days of the date of these Orders enrol in a parenting orders program and thereafter complete such program and follow any recommendations or referrals made by the facilitator of the said program.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blaze & Anor & Grady & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2313 of 2014
| Ms Blaze and Ms Darnley |
Applicants
And
| Ms Grady |
Respondent
And
| Mr Harper |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The central question raised in these parenting proceedings[1] concerning the child B, born in 2013 and aged two years and four months at trial (“the child”), is whether the child’s best interests are best achieved by orders now made which:
a)Maintain the position of the child remaining in the primary care of the applicants, as sought by them, that being the position that has obtained since the child’s birth; or
b)Transition the child into her mother’s primary care; as is sought by the mother and the child’s father and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the child in these proceedings.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The answer to that central question depends upon assessing and balancing the benefits to the child of the continuity of her primary care by the applicants and any detriments to the child of disrupting her established attachment to the applicants; as against assessing the benefits to the child of enhancing her familial connectedness with each of her parents and with her siblings.
That central question and the assessments referred to arise in the following unusual circumstances.
The child’s mother, Ms Grady (“the mother”) is the mother of three other children, namely Ms D born in 1996 who is 19 years of age; E born in 2004 who is now 11 years of age and F born in 2005 who is now 10 years of age.
As at the time of trial, Ms D and E were primarily living with their father, the mother’s ex-partner Mr G, and E was spending each alternate weekend with the mother. F was continuing to live primarily with the mother.
In about the latter part of 2012 and during her pregnancy with the child, the mother determined and agreed with the applicants, Ms Blaze and Ms Darnley, a same-sex couple, that upon the child’s birth the child would be relinquished by the mother into the care of the applicants, albeit with the mother and her other children having some ongoing relationship with the child.
Each of the mother, Ms Blaze and Ms Darnley are profoundly deaf. The mother and Ms Blaze were long term friends and Ms Blaze’s relationship with Ms Darnley had the consequence that the mother and Ms Darnley came to know each other.
During her pregnancy the mother thought or believed that the child’s father was a man already in a relationship with another woman and which relationship had produced a child. The mother’s belief in this respect seems to have informed the mother’s view at the time of her pregnancy that she was unlikely to receive any support from this man either for herself or for the child. At that time the mother had the primary care of all three of her children and on the evidence her financial circumstances were constrained. These features informed, at least to some extent, the mother’s decision to relinquish the child’s care to the applicants upon her birth. In the event, DNA testing undertaken subsequent to the child’s birth confirmed that the man who was the putative father referred to was not in fact the child’s father.
From 10 February 2013 and until the child’s birth on 25 June 2013 the applicants lived with the mother and her children as part of the mother’s household. The applicants assisted the mother with the household and daily living tasks and with the care of the mother’s children and their financial contribution to the household comprised them being primarily responsible for purchasing groceries for the family in that period.
The mother and the applicants sought counselling with a psychologist in March 2013, apparently in an endeavour to gain an understanding of any implications that may arise as a result of their agreement for the mother to surrender the care of her child to the applicants. A written “birth plan” was executed by the applicants and the mother under which the applicants were to take responsibility for the child’s care immediately following her birth.
The mother and the applicants, soon after the child’s birth, entered into a Parenting Plan prepared by a lawyer. A copy of that document is Annexure “TAG-01” to the mother’s affidavit filed on 13 October 2014.
The Parenting Plan provides for, in summary, the applicants to have equal shared parental responsibility for the child and to be her carers. The Parenting Plan also provides for the child to have a relationship with the mother and her three children, however does not specify the amount of time or how that was to occur.
The mother provided both affidavit and evidence at trial under
cross-examination that she did not consider such a stipulation to be necessary at the time due to her then close friendship with the applicants.
As the Recitals to the Parenting Plan confirm, the applicants had been longstanding friends of the mother. The evidence confirms that this was particularly so as regards the mother and Ms Blaze.
As already noted, each of the mother and the applicants are profoundly deaf and Recital E in the Parenting Plan records that the mother saw it as important that her child be raised by the applicants, rather than being placed for formal adoption with State authorities. Recitals D, H and I record the facts, respectively, that the applicants had been unable to have their own child through assisted reproductive therapy; that the parties were unable to enter into a formal surrogacy arrangement; and that a formal adoption (under applicable State law) was not available.
I here note that the child has no hearing impairment.
Following the child’s birth and discharge from hospital the applicants cared for her at the home of a friend at Suburb H, Queensland, for what they say was a period of approximately two weeks, at which time they relocated to their home in Melbourne, Victoria. It was apparently always known to the mother that the applicants would be returning with the child to live in Victoria. However, the duration of the period that the applicants and the child remained in Queensland immediately after the child’s birth is disputed by the mother. She suggests that they left Brisbane on 28 June 2013.
The applicants contend that the mother was supportive of them returning to their home in Melbourne, Victoria with the child, expressing to them to the effect “go home and start your new life, I am happy for you to leave.”[2] The applicants maintain that their transition to caring for the child was a seamless, enjoyable and positive experience. There is no forensic need to determine this aspect of the dispute.
[2] Affidavit of Ms Blaze filed on 10 October 2014 (at paragraph 18).
The child’s father, Mr Harper (“the father”) did not know he was the child’s father either when the mother was pregnant; nor at the time of the child’s birth; nor for a significant period following the birth. The father thus did not participate in, or know about, the decision by the mother to relinquish the child to the applicants, nor was the father a party to the Parenting Plan. The father has never cohabitated with the mother on a permanent basis. They each describe their relationship to the effect that it is a casual dating relationship.
In about August or September 2013, some two or three months subsequent to the child’s birth the father was informed by the mother that he may be the child’s father. DNA testing undertaken on or about 14 March 2014 confirmed the father’s paternity.
Subsequent to the child’s birth and the applicants, with the child, relocating to Victoria the applicants returned to Queensland with the child in October 2013 for a visit. The duration of the period of the visit is in dispute. However, during the first week of the visit the applicants and the child stayed with the mother and her children in the mother’s household and the remainder of that time was spent staying at the house of the mother’s ex-partner, Mr G. The applicants contend that the reason for them not staying with the mother for the entirety of the visit was due to what they assert was an unhygienic environment in the mother’s household.
It seems to have been at the time of the mother’s 40th birthday party, held on 19 October 2013, that the mother first informed the applicants of her belief that the father was the child’s father. The applicants met the father at that time. The father met the child for the first time on the following morning at the mother’s home, at which time the applicants encouraged the father to undertake a paternity test in order to confirm whether or not he is the child’s father.
It is the mother’s position that, relating to the October 2013 visit, the applicants did not allow her or her children to spend sufficient time with the child. The mother has maintained that requests were made for her or her daughter, Ms D, to see the child during this period which she says were denied. The applicants dispute this to be so and have asserted that the mother did not give any clear indication of wanting to see the child. In any event, it seems clear enough that it was at about the time of the October 2013 visit, or in response to what had occurred during the visit from her experience, that the mother’s position in relation to the child remaining in the ongoing care of the applicants, changed. That is, the mother determined that the child ought be in her care.
The father provides evidence that it was in November 2013 that the mother commenced to communicate to him to the effect that she wanted the child to be returned to her care. It seems that it was at this time that the father confirmed that he would be willing to undertake a DNA test to verify his paternity and, should the test be positive, the father expressed his willingness and eagerness to play an active and ongoing role in the child’s life, and support for the mother in having the child in her care.
Following the October 2013 visit the applicants and the child again returned to Queensland in March 2014. On 11 March 2014, pursuant to arrangements that had been made, the mother and the applicants attended upon a counselling session with the psychologist earlier referred to. It appears that the applicants were willing to engage in counselling services in order to address the issues that had arisen surrounding the child’s care and the mother’s concerns surrounding that. It is clear that the mother had, prior to 11 March 2014, determined that she would “reclaim” the child. On that date the mother attended the psychologist’s office with a police officer in attendance who apparently informed the parties that he was there to maintain the peace. It seems that the psychologist had recommended that the child be returned to the mother’s care and thus facilitated that occurring in the context of the counselling session referred to. Thus it was that on 11 March 2014 the mother, contrary to the wishes of the applicants, took the child into her care.
On the same date of the child’s removal by the mother, the applicants requested that the police perform a welfare check. The father deposes that the mother brought the child to his residence where they both cared for the child on that day. On each of 12 and 17 March 2014 police attended the father’s home and were apparently satisfied that his residence was suitable for the care of a child.
Proceedings prior to trial
On 13 March 2014 the applicants filed an Initiating Application in the Federal Circuit Court for, inter alia, an order for the child to be returned to their care. The application was initially heard on 20 and 21 March 2014 at which time the father obtained leave to intervene as a party in the proceedings. On 21 March 2014 orders were made (amended on 4 April 2014) by Judge Purdon-Sully in the Federal Circuit Court. Those orders were made by consent on an interim basis and were predicated upon the applicants’ undertaking to relocate to Brisbane, which they did.
The interim orders provided for the child to live with the applicants in Brisbane; for the parties to have equal shared parental responsibility for the child; and for the child to spend time and communicate between 9.00 am Saturday to 9.00 am Sunday each alternate weekend with the mother; and with the father between 9.00 am Friday to 9.00 am Saturday on the other alternate weekend; and with both parents between 9.00 am to 5.00 pm each Wednesday. Orders were also made for the appointment of an ICL; for a family report to be prepared pursuant to s 62G of the Act; and for the proceedings to be transferred to this Court. Those orders for the child’s care arrangements remained as the operative orders as at trial.
It is thus the case that the child has lived primarily in the care of the applicants, and has spent time with her parents as provided for in orders made on 21 March 2014, since those orders were made. It is clear that the mother and the father have often invited the other to spend time with the child during their individual allocated time under the orders in an effort to maximise the time they have both spent with the child in each week since the orders were made. This has also obviously facilitated the mother’s other children, the child’s siblings, having opportunities to spend time with the child.
Final trial
One complicating circumstance of the trial of these proceedings is that each of the applicants and the mother are profoundly deaf and communicate in Auslan, the sign language of the Australian Deaf Community. The father is severely deaf as distinct from being profoundly deaf. He mainly utilises hearing aids and lip reading for comprehension (he also has some ability in Auslan) and he communicates verbally in spoken English.
For the purpose of facilitating this trial the Court engaged six qualified and accredited Auslan interpreters who were sworn to interpret. The interpreters respectively provided interpretation of the evidence given by any hearing impaired witness as well as providing each of the parties with interpretation of what was being said in Court throughout the seven days of trial.
It was necessary for the Court to engage six such Auslan interpreters because of the need to allow the interpreters respite without affecting the continuation of the proceedings. That is, it was recognised that the demands of undertaking Auslan interpretation meant that every 15 minutes or so the interpreter providing the interpretation of evidence given to the Court was interchanged with another interpreter. Similarly, there were interchanges of the interpreters providing interpretation to the respective parties.
I record here, as I did during the trial, that I am comfortably satisfied that each of the Auslan interpreters performed the task of interpretation of evidence competently and accurately. Specifically, I am satisfied that the interpreters provided accurate interpretation of the questions and answers given to questions during the course of examination of each relevant witness requiring interpreter assistance.
One impressive feature of the interpreters was their apparent ability not only to translate into the spoken word the message sought to be conveyed by the witness, but to do so with the use of inflection and intonation of speech reflecting the emphasis the witness sought to convey.
Exhibit 2, comprising a written transcript of relevant answers given by the applicants respectively during the course of their respective
cross-examinations, was admitted because counsel for the applicants asserted, subsequent to the completion of their respective cross-examinations and
re-examination, that it was a consequence of “language difficulty” that neither applicant identified, during cross-examination, the same concerns they had expressed in affidavit material about the mother, concerning her parenting capacity, and the risks they asserted the mother might pose in this respect if the child were in her care.
I was not persuaded that the applicants’ respective “failures” in this respect could be attributed to any difficulty of language or interpretation.
I am comfortably satisfied that each applicant was given ample opportunity in the course of their cross-examination (by the three counsel for each of the other parties respectively) to identify and express any relevant concerns each held about the mother and her capacity, because I am satisfied as to the accuracy of the task performed by the Auslan interpreters.
I rejected the application of the applicants to be recalled to give further evidence subsequent to completion of their respective cross-examinations. In my judgment, in the face of what was clear evidence given under
cross-examination, there could be little probative value in further (revised) evidence of the applicants, they having realised the contrast between their affidavit evidence in this respect and their evidence given in cross-examination, to revisit the same topic in further, subsequently given, evidence.
Some days after the mother had completed her evidence in cross-examination one of the applicants (Ms Blaze) via her counsel raised, for the first time, an issue concerning what were alleged by Ms Blaze to be some errors or omissions in the interpretation of the mother’s evidence. Leaving aside the belatedness of this issue being raised I did not then consider, and I record now, that there was any substance to the complaint raised.
In my judgment any difference between the Auslan accredited and independent interpreters, on the one hand, and a party on the other, as to the evidence given in the course of the trial is readily resolved in favour of the interpreter. I am fortified in that conclusion by the observation, in addition to those already made, that, aside from the feature that the interpreters were engaged by the Court independently of the parties, over many hours and days of this trial when such interpretation was undertaken only minor or limited complaints, relative to the overall extent of interpreted evidence undertaken, were raised.
Parties’ respective proposals
Applicants’ proposed orders
The applicants’ proposed orders are contained in a document headed “Amended Final Orders” which was admitted and marked as Exhibit 6 in the proceedings.
Obviously, the full detail of the applicants’ proposed orders appears in Exhibit 6. However, summarising the central features of the applicants’ proposed orders, the applicants seek an order for the child to live with them and to spend time with each of her parents. There is a differentiation between the period from now “until the child turns of Prep School Age” (“the first stage”) and thereafter. At the first stage the applicants propose that the child would spend from 3.00 pm Friday to 3.00 pm Sunday each alternate weekend alternating between each of her parents respectively; and one third of “holiday time”[3] “with each parent respectively.” In addition, the child would spend one day each week, between 9.00 am and 5.00 pm, with each parent respectively.
[3] This is to be understood as referring to gazetted school holiday periods.
From when the child attains “Prep School Age” the applicants propose that the child would spend one out of each three weekends with her mother from 3.00 pm Friday to 9.00 am Monday and likewise one in three weekends with her father; and the other weekend in the three week period would be spent with the applicants.
Curiously, the orders proposed for when the child is of Prep School age, in respect of holiday time, provide for that time for no more than seven days in a row albeit up to three times per calendar year. That is curious because that is not the proposal with respect to the first stage as to “holiday time”.
The applicants also make provision in their proposed orders for special occasions such as Father’s Day and Mother’s Day and for Easter periods.
The applicants propose that changeovers continue to occur in the current manner, that is, in the food court of the Suburb C Shopping Centre and there is provision for communication by way of telephone, text and/or Skype.
There is also provision in the proposed orders for overseas travel.
Orders for specific issues are sought including an order for the mother to partake in random drug testing and provide the results to other parties at three month intervals “upon demand by any of the parties.”
The applicants specifically seek an order that the child’s name not be altered from the name by which she is presently known as her birth name without the consent of all parties.
In respect of parental responsibility the applicants’ proposed orders refer to “all parties” having equal shared parental responsibility for the child but this is to be understood to be a reference to the applicants and each of the parents respectively rather than including the ICL.
Parents’ proposed orders
Exhibit 7 in the proceedings are the final orders sought by the mother in written form. Exhibit 8 in the proceedings are the final orders sought by the father. As each of these effectively are a mirror image of each other the parents’ proposed orders may be referred to collectively.
In relation to parental responsibility for major long-term issues the parents propose orders that the parents equally share that responsibility.
The parents further propose that there be a transition of the child from her current primary care with the applicants to primary care with the mother. That transition is proposed to occur over a period of months with a gradual increase of time in each of those months to the point when, at the conclusion of the period, the child would be living with the mother and spending time with the father (otherwise than as agreed between the mother and the father) on overnights Tuesdays and Thursdays and on each alternate weekend as well as holiday time.
From the child’s commencement at school there would be some minor adjustments to the regime and with it to include school holiday periods.
On the parents’ proposed orders the child would spend time with the applicants once per calendar month on either the first or second weekend of the month from 5.00 pm Saturday to 5.00 pm Sunday with such time to alternate between weekends the child would otherwise be spending time with her mother and weekends that she would otherwise have been spending time with her father.
Further provisions are made for special occasions to be shared between the parents such as birthdays; Mother’s Day and Father’s Day and Easter and Christmas periods.
The specific issues orders addressed by the parents mainly are referrable to orders as between themselves rather than being inclusive of the applicants.
The parents also propose that there be an order that the parents be at liberty to change the child’s name to include a hyphenated Christian name of their choice and that the child’s surname be a hyphenated combination of the parents’ respective surnames.
The parents’ proposed orders also include a notation, in the event that the Court orders a “shared care arrangement between all three parties” as to the parties attending upon “specialised adoption counsellors”.
ICL’s proposed orders
The minute of orders proposed by the ICL was submitted as part of the submissions stage of the trial and that minute of orders was admitted and marked as Exhibit 9 in the proceedings.
Again, as with respect to those of the other parties, the full detail of the ICL’s proposed orders is contained in the written document referred to.
In summary, the ICL supports the parents’ position that an order should be made for the parents to have equal shared parental responsibility. The ICL further supports orders that would see a transition of the child to live with the mother on a graduating basis with respective periods, initially of four weeks each, being provided for in the proposed orders.
Essentially the ICL’s proposed orders would see a transition of the child into the primary care of the mother after some 20 weeks have elapsed from the time of orders, but an essential difference between the ICL’s position and that of the parents is with respect to the time the child should spend with the applicants in the longer term.
On the ICL’s proposed orders, after the transition period described in those proposed orders, and until the child commences school, the child would spend time with the applicants from 5.00 pm Friday until 5.00 pm Sunday on the fourth weekend of each block of four weeks, rather than one overnight per month as the parents propose.
From when the child commences school, the ICL proposes an order that the child would spend time with the applicants from after school Friday until 5.00 pm Sunday on the fourth weekend of each four week period.
The ICL’s proposed orders also contain specific orders for the child to spend time with the father both in the period prior to the child commencing school and thereafter. There are provisions for special occasions similar to those which are contained in the parents’ version.
A further difference between the ICL’s proposed orders and those proposed by the parents is with respect to the child’s name. The ICL proposes that the Christian name selected by the parents be used as the child’s middle name rather than being part of a hyphenated Christian name, but the ICL supports the parents’ proposal that the child’s surname be able to be changed to a hyphenated version combining the parents’ respective surnames.
Relevant to the parties’ respective proposals is Exhibit 4 which comprises a series of tables prepared by the ICL setting out in tabulated form a representation of the comparisons between the then existing proposals of the applicants on the one hand and the parents’ proposals on the other, both before and after the child commences preparatory schooling. Those tables were particularly designed to show in that form the numbers of changeovers for the child from one household to another on the applicants’ proposal on the one hand as compared with the proposals of the parents.
Central issues
As these are parenting proceedings Division 12A of Part VII of the Act applies to them including the principles applying to their conduct (s 69ZN); the duties giving effect to those principles (s 69ZQ) and the provisions about evidence (ss 69ZT to 69ZX).
Consistent with the Court actively directing, managing and controlling the proceedings, at the trial I sought to obtain the parties’ consensus as to what appeared to be the central issues in the case, having regard also to the expert evidence via the two family reports of Ms I, Family Consultant, prepared in advance of the trial.
This resulted in the identification of the following issues, some of which overlap and are not listed in any particular order of importance:
a)The child’s primary attachment to the applicants (and the effect of disruption to that attachment);
b)The potential for, and likely effect of, future conflict between the adults involved;
c)The child’s relationships with her siblings;
d)Whether the applicants truly recognise the importance of the child’s parents in her life;
e)The strength and/or stability of the relationship between the applicants;
f)The strength and/or stability of the relationship between the mother and the father;
g)The mother’s parenting capacity and whether she has historically been neglectful of her other children;
h)Whether the applicants are likely to continue living in Brisbane;
i)The capacity of the mother and the father to support the applicants having a role in the child’s life;
j)The effect upon the child if she has only limited contact with her biological family.
An issue which may be added to the above list, because it assumed some prominence in the course of the trial as reflected in the proposals of the parties earlier outlined, concerns the potential change of name of the child. The parents, in addition to seeking an order that they (the parents) share parental responsibility for the child, seek an order that they be permitted to change the child’s name to a hyphenated Christian name and to change the child’s surname to a combination of their surnames, namely to “Harper-Grady”.
How is Part VII to be applied when the parties to parenting proceedings include non-parents?
Part VII of the Act (ss 60A to 70Q) provides the statutory framework for the Court’s jurisdiction and power to make parenting orders.
However, it can be seen that a number of these statutory provisions expressly refer only to a “parent” or “parents”.
For example, the objects expressed in s 60B(1)(a) and (d); the principles expressed in s 60B(2)(a), (c) and (d); the s 60CC(2)(a) “primary consideration”; and the “additional considerations” expressed in each of s 60CC(3)(c), (ca), (e), (g) and (i) make reference only to “parent” or “parents”.
The effect of s 61B and s 61C is that, by law, “parents” have parental responsibility for a child, subject to Court order. The presumption of equal shared parental responsibility expressed in s 61DA refers only to “parents” and likewise s 65DAA refers to “parents”.
It would seem to be well settled that “parent” when used in Part VII means a biological or adopted parent and does not include a person who stands in loco parentis to a child.[4]
[4] Donnell & Dovey (2010) FLC 93-428 (excluded from this are cases involving children born as a result of artificial conception procedures and, possibly, the application of s 61F of the Act with respect to persons treated as a parent by Aboriginal or Torres Strait Islander customs where s 61F applies).
Having regard to the case outlines and/or summary of argument documents filed on behalf of the applicants, and to some extent the manner in which some of counsel’s final submissions proceeded, it appeared to be assumed, to some extent or in some respects, that the relevant statutory provisions ought be considered and applied as if each of the applicants and the parents are to be treated as a “parent” or “parents” where that descriptor is used within Part VII and specifically the s 60CC considerations.
As but one example, the applicants’ summary of argument filed on 13 October 2015 contained the contention, under the heading “Statutory Presumptions” (at paragraph 24 and referenced to s 61DA(1) of the Act):
There is a statutory presumption that parties ought to share equally parental responsibility.
(emphasis added)
Self-evidently s 61DA(1) expressly refers to “parents” not “ parties”.
It is necessary to outline, then, how the provisions of Part VII are to be applied in this case where the parties include both of the child’s parents and the applicants, who are not relatives of the child.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and specifies the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(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.
Section 60B(2) provides:
(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).
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. 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.
Section 60CC(2A) requires that in applying the primary considerations the Court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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 in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider whether it is in the best interests of the child and reasonably practicable to make an order for substantial and significant time with each of the parents.
In parenting proceedings where the parents only, and not non-parents, are parties, the operation of the statutory framework and the manner in which the Court approaches its application including the determination of the s 60CC “best interests” considerations is well settled by authority (see, for example, Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer v Radcliffeand Anor (2012) 48 Fam LR 298; Cox & Pedrana (2013) FLC
93-537 and SCVG & KLD (2014) FLC 93-582).
Whilst substantial amendments to Part VII of the Act took effect from 7 June 2012 which, inter alia, significantly widened the definition of “family violence” as it now appears in the amended Act; the guidance or guidelines provided by those of the cases referred to which were decided prior to the amendments is not materially affected by them, save only that it is to be recognised that s 60CC(2A) now requires greater weight to be given to the second of the two primary considerations.
Part VII has been subjected to criticism for its complexity and/or lack of clarity including in the area where, as here, the parties to parenting proceedings are not only the child’s biological parents but other “non-parent” parties.
For example, in Mulvany & Lane[5] Finn J observed (at [15]):
15.It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.
[5] (2009) FLC 93-404.
In Potts & Bims[6] at [8] and [9] Moore J discussed the statutory provisions in the context of a case involving both of the parents and the maternal grandparents as parties. Her Honour determined that to the extent the objects and principles set out in s 60B(1) and (2) of the Act; and the “considerations” in ss 60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not specifically refer to “parent” or “parents”; and in particular under the catch-all provision of s 60CC(3)(m): “any other fact or circumstance that the court thinks is relevant”. Moore J said:
8.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.
9.In this case the parents agree about the outcome as between themselves and oppose the outcome sought by the grandparents. It follows that the determination of the grandparents application against their united opposition will fall to be evaluated by the fewer provisions just mentioned.
(original emphasis) (emphasis added)
[6] [2007] FamCA 394.
Left to consider the approach taken by her Honour Moore J, absent Full Court authorities binding upon me which I will shortly come to, I would have some considerable difficulty reconciling her Honour’s approach with each of conventional common law approaches to statutory interpretation having regard to the terms of Part VII; s 15AA of the Acts Interpretation Act 1901 (Cth); and s 43(1)(c) of the Act.
Section 60CC does not prescribe the relative weighting to be given, or result following from, any particular consideration; and it is well settled that a “primary consideration” does not outweigh or displace any or all “additional considerations”.[7] The obligation or prescription upon the Court to “consider” a particular matter is to be distinguished from any statutory prescription as to the result of that consideration.
[7] Marsden & Winch (No 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78]; Champness & Hanson (2009) FLC 93-407; Mulvany & Lane (supra) at [84]; Aldridge v Keaton (2009) FLC 93-421at [74] and [75] and Donnell & Dovey (supra) at [102] to [104].
It follows that, perhaps ironically, in a given case an “additional consideration” can be of primary importance and a “primary consideration” of lesser importance in the overall determination of a child’s best interests.
To my mind in a case such as this including non-parents as parties it would be consistent with principles of statutory interpretation for the Court to consider, as a “primary consideration”, the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)) and to also consider, as an additional consideration under subsection 60CC(3)(m), the benefit to the child of having a meaningful relationship with the non-parent party. That party has presumably met one of the criteria expressed in s 65C to be an applicant for a parenting order and having regard to that criteria it would seem to follow that the benefit to the child of a relationship with that party would be a relevant consideration.
However, the evidence of the mother and Mr G, which I accept, confirms that they have achieved vast improvement in their relationship and that is also evident from what Ms D reported to Ms I as referred to.
Ms D was involved in an episode of self-harm when she was 16 years of age and the Department of Communities, Child Safety and Disability Services (“the Department”) were involved. However, that the applicants select that event as being indicative of the mother’s parenting capacity does not do them credit. Obviously enough, Ms D was at that stage a “rebellious and stubborn” teenager and had confronted the difficulties consequent upon the conflict that occurred between her own parents.
As at the period leading up to the birth of the child, the mother was primarily responsible for the care of her three older children as well as being pregnant with the child. She was obviously concerned about the fact that she thought she was unlikely to receive any kind of support from the putative father earlier referred to. Her financial circumstances were restrained.
In terms of changes for the mother, it is the fact that her two oldest children now primarily live with her ex-partner Mr G and consequently the demands upon the mother are not the same. It is clear that the mother and Mr G now have a positive co-parenting relationship and I accept Mr G’s evidence to that effect. Moreover, it is clear that the mother has drawn significant benefit from the support she receives from the father both in a financial sense but also in terms of emotional and other like support.
Results of random drug screening of the mother, pursuant to interim orders made in the lead up to trial, corroborate the mother’s evidence to the effect that she ceased her participation in drug taking or excessive alcohol consumption.
More particularly, there is the evidence of the father. I have already made observations concerning the positive impression as a witness that the father made. I have also referred to his obvious commitment to his child and his focus upon her best interests. He has had ample opportunity to make observations of the mother generally and of her parenting over a significantly long period leading up to this trial. It beggars belief, if he had observed any concerning behaviours in the mother, that his support for her in these proceedings would be as unqualified as it obviously is.
Assertions by the applicants to the effect that the mother is somehow distant from her other children or has estranged relationships with them or cannot show affection for them, is at odds with the presentation of those children to Ms I as recorded in her family reports as well as statements of the children she records. It is also contrary to the evidence of the paternal grandparents who both gave evidence positive about the mother from their observations. I accept the evidence of the paternal grandparents.
In the category of evidence within the applicants’ case critical of, or negative about, the mother is the evidence of Mr M and Ms M. I must record that I did not find either of these witnesses to be particularly convincing. It is clear that this case has become well known within the Deaf Community. Indeed a member of Ms Blaze’s family used social media in an attempt to garner support to the “cause” of the applicants, seeking donations of funds to contribute to their legal fees. It would seem that there are a body of people within the Deaf Community that have aligned themselves to support of the applicants whilst the mother has found it necessary to withdraw from the Deaf Community because of criticisms she has experienced including via social media. In my judgment, Mr and Ms M demonstrated a significant lack of independence or capacity to provide independent evidence uninfluenced by personal views, by their obvious alignment with the applicants.
Part of the content of Ms M’s evidence, asserted to be sourced to the mother herself from statements that the mother made (which the mother denied), required evidence to be obtained directly from the mother’s now adult daughter Ms D. Essentially Ms D’s evidence was to refute very serious allegations to the effect that the mother effectively permitted or acquiesced in Ms D being raped when she was then only 15 or 16 years of age and the perpetrator was an adult male. In the face of the affidavit evidence that was provided by Ms D herself that allegation fell away and Ms D was not required for cross-examination.
The point is I do not accept that the mother relayed any such information to Ms M. In my judgment it is more likely than not that, as the mother contended, that this is a product of the rumour-mongering that has occurred within the Deaf Community adverse to the mother.
In any event I did not find the evidence of either of these witnesses persuasive.
In the end, and mainly in reliance upon the father as a witness of truth, I am satisfied that there is no substance in the criticisms mounted in the applicants’ case concerning the mother’s parenting capacity. I note that Ms I saw no deficit in the mother’s capacities in this respect and I also note that both of the paternal grandparents who gave evidence and who have had the opportunity to make observations of the mother were likewise positive about her.
I also reiterate that Exhibit 2 as previously discussed demonstrates that in their respective evidence under cross-examination neither applicant raised specific concerns concerning the mother’s parenting capacity notwithstanding the opportunity to so do.
Finally, I would note that on the applicants’ proposed orders the child would be spending significant time in the care of the mother and that it is entirely inconsistent, as a proposal, with any continuing concerns of any significance as to the mother’s capacity to provide for the child’s needs.
I have earlier referred to the evidence of Ms I concerning her assessment that all adults involved have the capacity to provide for the child’s needs, which obviously includes the mother. Notably, as is recorded in the first family report, one of the sources of information relied upon by Ms I was subpoenaed material obtained from the Department. At paragraph 92 of the first family report Ms I summarises this material. Thus it is clear that Ms I reached her conclusions having also had regard to that material.
I reiterate that the mother’s former partner Mr G provided affidavit evidence and was required for cross-examination. Whilst it is clear that the mother and Mr G have historically had a conflictual relationship which involved episodes of domestic violence perpetrated by Mr G it would seem, and I find, that the mother and Mr G have reached a position where conflict is not any longer a feature of their relationship and they have been able to successfully negotiate the co-parenting arrangements for their children in recent times.
I also reiterate that given my view of the father as an entirely impressive, credible and thoughtful witness who is fundamentally concerned with his child’s welfare; and who has had ample opportunity to observe the mother’s parenting capacity particularly over the period since March 2014; that his unqualified support for the mother speaks volumes in a positive sense about the mother’s capacity to provide for the needs of the child.
In her final submissions counsel for the applicants maintained submissions directed to highlighting concerns held by the applicants about the mother’s parenting capacity but acknowledged that the father and his role was a “protective factor”.
As stated, I find that the father’s involvement goes further than simply being a “protective factor”. My acceptance of his evidence carries with it the acceptance that the mother no longer participates in drug taking or drug abuse such as to compromise her parenting capacity.
Moreover I reject submissions to the effect on behalf of the applicants that there is some need to protect the child from harm within the meaning of s 60CC(2)(b) in terms of the mother’s parenting capacity whether by reference to historical events concerning her other children, as referred to by counsel for the applicants, or otherwise.
I reiterate that it would be inconsistent with there existing any relevant risk to be guarded against for the applicants to propose the orders they propose with respect to the mother’s care, even in the context of random drug testing as they contend for.
Whether it is preferable to make the order least likely to lead to further proceedings
In my judgment the earlier discussion concerning the longer-term view of the child’s best interests resonates also with this consideration.
That is, in my judgment it would be preferable in the circumstances of this case to consider the order least likely to lead to further proceedings. For the reasons earlier discussed, in my judgment that overwhelmingly favours an order seeing the transition of the child into the primary care of the mother and hence her consequent enhanced connections with her biological family.
That is because it would seem inevitable on the evidence of Ms I, which I accept, that the child will hereafter increasingly gravitate to her biological family. It would seem to me inevitable that if the child remained in the care of the applicants she would increasingly have difficulties in understanding or assimilating any reasons why she is living with non-biological relatives but at the same time is seeing her parents and her siblings with whom she does not primarily live.
Moreover, the issues earlier discussed relating to adoption on the expert evidence inevitably means that there is a significant risk of the child seeking closer connections with her biological family if she were to remain living with the applicants.
In summary, in my judgment, orders made now seeing the child transitioning into the primary care of the mother is desirable from the perspective that it is an order that will not only avoid the risks referred to but is the order which is preferable to make as being the order which is least likely to lead to the institution of further proceedings in relation to the child.
Balancing of relevant s 60CC considerations
If the child were to remain in the primary care of the applicants, she would have the benefit of continuing to experience the primary care of the two people who have provided that care to date and have demonstrated their capacity to provide the child with exemplary care in her short life to date. It is obvious that both of the applicants love the child and that she loves them.
That outcome would avoid the risks to the child of disruption of her relationship with her primary attachment figures and the potential adverse consequences of such disruption for the child.
However, it is an outcome, given the proposed orders reflecting the need for the child to have and maintain relationships with her biological family, that carries with it the immediate and inherent disruptions to the child’s stability of circumstances by the changes from one household to others that those proposed orders entail.
More fundamentally and more importantly it is an outcome which is likely to be placed under ever-increasing pressures as time moves on. As the child shortly reaches the level of cognitive development, in the not too distant future, where she is likely to ever-increasingly seek to gravitate to her biological family, then increasingly the perceived benefits of her present situation may become more perceived than real. Such a scenario carries with it all of the risks of an adopted child as earlier discussed by reference to the expert evidence as, for example, questions of identity and rejection and the like increasingly present themselves for the child by the circumstances in which she finds herself.
In my judgment, the benefits for the child of remaining in the primary care of the applicants are significantly outweighed by the potential risks of that to the child in the longer-term and the benefits to the child immediately available to her by transitioning into the primary care of the mother. That transition would have the consequence that the child’s relationships, not only with her mother and her father, but also with her siblings, will be enhanced. She will be living with her sibling F and she will have increased opportunities to enhance her relationships with her other siblings.
Living with the mother enhances the child’s opportunities to further develop her already favourable relationship with her obviously committed, devoted and capable father.
In my judgment, any distress as will be likely experienced by the child of disruption of her present care arrangements will be minimised, if not eliminated, by several aspects. First, it is the fact as assessed by Ms I that the child’s stability of circumstances as provided by the applicants and the quality of their care has enabled the child to readily form attachments with her biological family members. The transitioning process contemplated will enable the child to further assimilate these relationships and to assimilate a progression from the primary care of the applicants to that of the mother and the associated connections with biological family that this entails.
Moreover, commencing the transitioning now will minimise the potential adverse consequences for the child that part of her life story is in fact that her mother relinquished her care from birth to the applicants. That is, the child from now will have the opportunity to experience her mother’s primary care and that of her father; as well as her connections with her biological family members; for a period prior to her cognitive appreciation and need to process that part of her history. As a matter of common sense and logic, it must be far easier for that to occur in circumstances where the child transitions now to her biological family rather than that process being delayed.
Parental responsibility
In circumstances where the child’s best interests dictate that she be transitioned into the primary care of the mother and experiencing effectively the primary care of her parents, it is difficult to see how it would be in the child’s best interests for parental responsibility to be shared, not only by the parents, but also with the applicants.
There is a history of conflict between the adults and conflict over parenting issues and obviously such future conflict would render a sharing of parental responsibility counter-intuitive. However, potential conflict aside, there is no reason to conclude that between them the mother and the father do not collectively possess the capacity to discharge the obligations of parental responsibility in the child’s best interests. That is, there would not exist, in my judgment, any deficit in the capacity of the parents collectively to adequately discharge the responsibilities of what is entailed in parental responsibility in the child’s best interests.
Conversely, it would not seem to be necessary on the expert evidence for the applicants to maintain some share of parental responsibility in order for the child’s relationship with them to be maintained in the manner proposed by Ms I.
For these reasons in my judgment, it is consistent with the child’s best interests for there to be an order for the parents to have equal shared parental responsibility for the child.
As I propose to make an order for equal shared parental responsibility as between the parents, the considerations in s 65DAA arise.
As earlier noted, both parents are united in the proposed orders sought as to the time the child is to spend with them collectively and separately.
To date the parents have utilised separate provisions for time to enable the other parent to have increased opportunities to spend time with the child. It is clear that is likely to continue irrespective of the formal orders made.
Neither parent seeks orders for equal time and obviously the orders proposed would see the child spending substantial and significant time within the meaning of the Act with both parents and that is reasonably practicable within the meaning of the section referred to.
Change of child’s name
I accept the submissions on behalf of the ICL, based as they are on the expert evidence of Ms I, that because the child identifies with and well knows her present Christian name, there ought not be a change of her Christian name to make it a hyphenated name with the name chosen by the parents.
This child will have enough to deal with in terms of changes than confronting a change of her Christian name with which she is obviously familiar and comfortable. It makes far more sense so far as any questions of the child’s confusion for the parents’ chosen name to be used as a middle name for the child rather than as part of a hyphenated Christian name.
Unsurprisingly given the child’s age and level of development, there is no firm evidence that she identifies with her current surname or even appreciates or understands that this has been her surname, and consistent with the outcome that she transitions into the mother’s care and that her parents share parental responsibility for her, it obviously enhances her familiar connectedness that she have as proposed by the parents, and supported by the ICL, a surname which combines the surnames of her parents.
Orders
In my judgment, the orders proposed by the ICL best meet the child’s best interests and are to be preferred to those proposed by the parents where they differ in the respects earlier identified.
Obviously enough the most significant of those differences is the amount of time the child spends with the applicants in circumstances where she has transitioned into the primary care of the mother. As earlier noted, the parents’ approach is that time should be limited to one overnight period per month, whilst the ICL contended for one weekend per month.
Ms I explained in her oral evidence that in recommending a “weekend” within the recommendation in her report in this context, Ms I meant a full weekend including Friday and Saturday overnight. Ms I confirmed in her oral evidence that she saw it as important that there be one weekend per month as explained in order for the child to maintain her relationship with the applicants.
The ICL’s proposed orders are consistent with the expert evidence of Ms I which I accept. That is, I accept that it is in the child’s best interests in terms of maintaining her relationship with the applicants, for the time as recommended by Ms I and as proposed within the orders proposed by the ICL to be made.
For these reasons I make orders consistent with the orders proposed by the ICL and as set out at the commencement of these Reasons.
I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 November 2015.
Associate:
Date: 30 November 2015
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