Brythe & Anor and Balston & Anor

[2008] FamCA 1263

FAMILY COURT OF AUSTRALIA

BRYTHE AND ANOR & BALSTON AND ANOR [2008] FamCA 1263

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Brythe

2nd APPLICANT: Mr Brythe

1st RESPONDENT: Ms Balston

2nd RESPONDENT: Mr Balston

INDEPENDENT CHILDREN’S LAWYER: Mr Marks

FILE NUMBER: NCC 580 of 2007

DATE DELIVERED: 30 October 2008

PLACE DELIVERED: Newcastle

JUDGMENT OF: Flohm J

HEARING DATE: 27 October 2008

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr R Greenaway

COUNSEL FOR THE 2ND APPLICANT: Mr R Greenaway

COUNSEL FOR THE 1ST RESPONDENT: N/A

COUNSEL FOR THE 2ND RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER COUNSEL: N/A

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr S Marks

Orders

1. That all previous parenting orders in relation to … born … May 2003 (“the child”) are vacated.

2. That Ms Brythe and Mr Brythe (“the grandparents”) and Mr Balston (“the father”) are to have equal shared parental responsibility for decisions relating to the major long-term issues for the child.

3. That the child is to live with the grandparents who are to have responsibility for the child’s daily care.

4. That the child is to spend time with the father at all reasonable times as agreed between the father and the grandparents.

5. That the father is to commence, participate in and complete a recognised “Parenting After Separation” course or the equivalent within six months of the date hereof and upon completion of the course obtain a letter from the provider certifying the sessions attended and completion of the course and provide copies of such documentation to each of the other parties and the Independent Children’s Lawyer within 14 days of receipt of same.

6. That the father is to communicate by telephone with the child at all reasonable times as may be agreed between the grandparents and the father, but not later than 7.00pm on any occasion, such communication to be effected by the father telephoning the residence of the grandparents and the grandparents making their telephone service and the child available to accept such calls.

7. That Ms Balston (“the mother”) is to spend supervised time with the child for a period of not less than 2 hours each fortnight at such times as nominated by Relationships Australia and supervised by Relationships Australia and that for the purposes of giving effect to the foregoing the mother is to:

   (i)Contact Relationships Australia within seven days and arrange an appointment for assessment as to suitability for supervised time;

   (ii)Shall attend and participate in any assessment;

   (iii)Shall attend any appointments made by Relationships Australia for supervised time and shall otherwise comply with:

   (a)all reasonable rules of Relationship Australia; and

   (b)all reasonable requests and/or directions of the staff of Relationships Australia; and

   (iv)On each occasion of supervision pay such reasonable charge/s as Relationships Australia requests.

8. That the grandparents are to:

   (i)Attend upon Relationships Australia as directed or requested by such service with the child (if required) and participate in the assessment for supervised time between the child and the mother;

   (ii)Upon acceptance for supervised time, deliver the child to Relationships Australia or as directed or requested by Relationships Australia and otherwise comply with all reasonable rules of Relationships Australia and all reasonable requests and/or directions of the staff of Relationships Australia.

9. That the mother is to communicate with the child by telephone each Tuesday and Thursday not earlier than 6.00pm and not later than 7.00pm and at no other times, and that for the purpose of effecting the foregoing, the mother is to telephone the residence of the grandparents and the grandparents are to make their telephone service and the child available to accept such calls.

10. That the grandparents are to do all things necessary to ensure that the father, at his request, receives copies of all school reports, notices and newsletters from the school or schools which the child may from time to time attend.

11. That each party is to notify the other as soon as possible in the event that the child requires medical attention for any serious illness or accident.

12. That each party is to provide the other with a contact telephone number and keep them so informed of their respective places of residence and advise of any change thereto within 48 hours of such change being effected.

13. THE COURT NOTES that the grandparents and the father agree that the time the child spends with the father will not be supervised and that the child will not commence spending overnight time with the father until the child’s first year in school and at the agreement of those parties.

14. That the child … born … May 2003 (female) be removed from the Airport Watch List.

15. That during periods when the child is spending time with the father, the father is restrained from allowing the child to have contact with the mother by any means.

16. THE COURT NOTES that the father will pay for one half of the school fees of the child.

17. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

18. That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.

19. That all outstanding applications are dismissed and removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Brythe and Anor & Balston and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 580 of 2007

MRS AND MR BRYTHE

Applicant

And

MS BALSTON

First Respondent

And

MR BALSTON

Second Respondent

REASONS FOR JUDGMENT

THE APPLICATIONS

1. In this case parenting orders are sought by the maternal grandparents Mrs and Mr Brythe (“the grandparents”), Ms Balston, (“the mother”) and Mr Balston (“the father”).  The parenting sought by each of the parties relate to a daughter born in May 2003 (“the child”).

THE PARTIES' PROPOSALS AND THE ORDERS SOUGHT

1. In an Amended Application filed on 31 October 2006 the grandparents sought orders summarised as follows:

   1.That the child, […], born […] May 2003 is to live with the Applicant maternal grandparents.

   2.That the child is to spend such time with the mother and the father respectively on such terms as the Court deems appropriate.

2. In a Response filed 12 December 2006 the mother sought orders summarised as follows:

   1.That the child […] born […] May 2003 is to live with the mother.

   2.That the mother and father are to have shared parental responsibility for the child.

   3.That the child is to spend time with and communicate with the father as agreed between the mother and the father.

   4.That the child is to spend time with and communicate with the grandparents as agreed between the mother, father and grandparents but failing agreement as follows:

   (a)     During each school term, from 5.00pm Friday to 5.00pm Sunday on the first and third weekend of each month.

   (b)    Each year for an agreed period of 7 nights during the New South Wales first term school holiday period.

   (c)    From 7.00pm Christmas Day to 7.00pm 1 January each year.

   (d)    For an agreed period of two hours on the child’s birthday.

   (e)    By telephone each Wednesday between 6.00pm and 6.30pm, the grandparents to make such call by telephoning the mother’s landline/or mobile telephone number and the mother ensuring the child is available to take such call.

   (f)     That the grandparents collect the child from and return the child to the mother at the McDonalds Family Restaurant at [W].

   (g)    That the grandparents are to be restrained from bringing the child into contact [with Mr R].

3. In a Response filed 8 December 2006, the father sought orders summarised as follows:

   1.That the child, born in May 2003 is to live with the mother Ms Balston and with the father Mr Balston.

   2.That the child spend time with the grandparents Mr and Mrs Brythe each alternate weekend.

   3.That the location of collection and return of the child be determined.

CHRONOLOGY OF RELEVANT EVENTS 

1. The essential background of the case is as follows.

2. The maternal grandfather was born in 1950 and he is now aged 58 years.  The maternal grandmother was born in 1954 and she is now aged 54 years.  In 1980 the mother was born and she is now aged 28 years. In 1980 the father was born and he is now aged 28 years.

3. The child was born in May 2003 and she is now aged 5 years.  In July 2003 the grandparents moved their residence to be closer to the parents and the child. 

4. In March 2004 the parents separated, the mother and child moving out of the family home.  In April 2004 the father received treatment at a Psychiatric Hospital, in mid 2004 he was imprisoned for a violent offence against the mother and in late 2004 the father was imprisoned for various criminal offences.

5. On 10 November 2004 orders were made on an ex parte basis in the Federal Magistrates Court for the child to live with the mother and for the father to have supervised contact with the child.

6. In mid 2005 the mother commenced a relationship with Mr R, and in August that year the mother and Mr R holidayed for a month in the United States of America, during which period the child was in the care of the grandparents.

7. In February 2006 the grandmother travelled to New Zealand to collect the child from the mother and the child remained in the grandparents’ care for approximately 6 weeks until the mother returned to Australia.

8. In June 2006 the mother was referred by her GP for an urgent psychiatric assessment. 

9. In September 2006 the police attended the mother’s home on two separate occasions because of Mr R’s violence towards the mother, including threats upon her with a knife.  At this time the mother also alleged that Mr R sexually assaulted her.  On 29 September 2006 the mother arranged for the child to be cared for by the grandparents for a period of at least five weeks.  From approximately February 2006 to approximately October 2006 the child spent time with the grandparents on approximately 10 occasions for periods ranging from 2 days to 2½ weeks.

10. On 3 October 2006 the mother separated from Mr R and on 7 October 2006 the mother collected the child from the grandparents.

11. On 24 October 20006 the mother was admitted to Westmead Psychiatric Hospital but discharged herself from that hospital one day later. 

12. The mother alleged that on 20 November 2006 Mr R again sexually assaulted her.

13. On 27 November 2006 the mother and father commenced living in the same home. 

14. On 13 December 2006 there were proceedings in the Federal Magistrates Court at Newcastle.  On that occasion the mother failed to attend court.  It was ordered that, on an interim basis, the child live with the grandparents.

15. Thereafter the mother spent time with the child with irregular frequency and for irregular duration.  Further, the mother failed to spend time with the child on a number of occasions notwithstanding having made arrangements to do so.  The father spent time with the child on one or two occasions each month, but not overnight.

16. In January 2007 the child commenced attending day care.

17. On 5 February 2007 further interim orders were made in the Federal Magistrates Court for the child to continue living with the grandparents, and the time she was to spend with the mother was varied.  The proceedings were also transferred to the Family Court.

18. In mid 2007 the grandparents noticed what they thought was sexualised behaviour by the child.  They took the child to an organisation which is part of the Sexualised Behaviours Program, Hunter Child and Family Team.   The behaviour which had concerned the grandparents was successfully addressed.  Ms S, a Senior Social Worker from the above-named organisation, prepared a report dated 9 November 2007.

19. The mother continued to spend time with the child on an irregular basis.

THE PROCEEDINGS

1. Although there was no advance notice either to the Court or to her family of her intentions not to involve herself in these proceedings, that is precisely what the mother has done.  After I delayed the proceedings for some time in circumstances where I had been informed that the mother is often late in her attendance at Court, the hearing proceeded in her absence.  The Court's decision to take that course took into account not only the mother’s non-attendance at the hearing but also:

   (1)That according to a bench sheet, on 30 April 2008 when the mother was present in Court, the hearing was listed to commence on 27 October 2008.

   (2)That the mother has not complied with directions for the filing of affidavits and in fact has filed no material in preparation for this hearing.

   (3)The fact that the mother has not availed herself of orders made in her favour since July 2007 to spend time with the child, apparently having spent no significant periods with the child since that time, other than the two hours she spent with the child in January 2008 when assessed with the family report.

2. Accordingly, it was not one particular act or omission on the mother’s part, but a combination of such acts and/or omissions that has demonstrated to the Court the mother’s apparent lack of interest in having input into future parenting arrangements for the child.

THE RELEVANT LEGAL PRINCIPLES

1. Section 60B of the Family Law Act sets out the object of Part VII and the principles which underlie that Part.  That section states:

   60B  Objects of Part and principles underlying it

   (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).

   (3)  [This sub-section is not relevant to these proceedings. ]

2. Section 60CA of the Family Law Act states that in determining matters in which parenting orders are sought the Court must regard the best interests of the child as the paramount consideration.  Section 60CC(1) states that in the course of deciding what is in the child’s best interests the Court must consider the matters set out in s 60CC(2) and s 60CC(3).  Those sections are:

   Primary considerations

   S.60CC(2)  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.

   Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   S.60CC(3)  Additional considerations are:

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

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

   (i)  each of the child’s parents; and

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

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

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

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f) the capacity of:

   (i)  each of the child’s parents; and

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

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

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

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

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

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

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

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)  the order is a final order; or

   (ii)  the making of the order was contested by a person;

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

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

APPLICATION OF THE LEGAL PRINCIPLES TO THE EVIDENCE IN THESE PROCEEDINGS

1. First I will deal with the primary considerations set out in s 60CC(2)(a) and (b).

The Primary Considerations

s 60CC(2)(a) – The benefit to the child of a meaningful relationship with both parents.

1. The subject child, like all children everywhere, will benefit from a meaningful relationship with each of her parents.  The challenge for the Court in this case is to determine whether or not that outcome can be achieved, and if so how. 

2. On the evidence before me, I am satisfied that in the event that the child lives with the mother it is highly unlikely that the child will be able to have any relationship with the father, let alone a meaningful one.  Further, I am satisfied that if the child is to live with the mother it is highly unlikely that the child will be able to have a meaningful relationship with the mother herself because of the mother’s mental health's problems.  I am satisfied that if the child lives with the grandparents it is likely that the child will be able to have a relationship with both her mother and her father and that the grandparents will assist the child having a relationship with both parents.  The quality of each of those relationships is very much dependent on the input of each parent.

s 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.

1. I am satisfied that the child has been exposed to violence whilst in the care of the mother, being violence visited upon the mother by her partner.  I am further satisfied that, to a lesser extent, the child has been exposed to adult violence whilst in the joint care of the mother and the father. 

The Additional Considerations

s 60CC(3)(a) – The child’s views. 

1. Because of the child's age and her somewhat chaotic earliest years, her views about any future parenting arrangement will attract little weight in these proceedings.

s 60CC(3)(b) – The child’s relationship with each of her parents and others.

1. On the evidence before me the child has a close relationship with the grandparents, although still has somewhat ambivalent feelings about each of her parents.  In particular, the evidence does not support the existence of a strong emotional connection between the child and her mother nor that the child strongly identifies Ms Balston as her mother.

s 60CC(3)(c) – Each parent’s willingness and ability to facilitate and encourage the child’s continuing relationship with the other parent.

1. The evidence before me is that the grandparents have demonstrated that they will continue to try and foster a relationship between the child and the mother notwithstanding that it is unlikely the mother would attempt to encourage such a relationship with the grandparents.  The evidence is that the grandparents will continue their current efforts to develop a relationship between the child and the father.  The evidence is that currently the father is able to successfully liaise with the grandparents about the time he spends with the child.

s 60CC(3)(d) - The likely effect of a change to the child's circumstances.

1. The child has lived with the grandparents since December 2006, and I am satisfied that to remove the child from a situation which reflects a two year status quo would be a most significant change in the life of a five year old child.  This is particularly so where, on the evidence, the child’s earliest years were characterised by disruption to her care, the involvement of a number of different carers, and exposure to violent situations, and the child’s last two years have, on the evidence, been characterised by a good consistent parenting in a non-violent atmosphere. 

1. The grandparents have demonstrated a capacity to provide for all the needs of the child, the mother and father less so.  There is general agreement that if the mother would be able to improve her physical, mental and emotional health and remain drug free and achieve long term stability, the child’s best interests may have been served by living predominantly with her.  But there is evidence, and indeed supported by a strong argument, that even if the mother could now satisfy the Court that she had achieved the necessary stability, it may be too late to change the child’s predominant carer and secure a positive outcome for her.  That is not to say that the mother could not play a real role in the child’s life in those circumstances, if she was interested in doing so.

s 60CC(3)(e) -The practical difficulty and expense of the child spending time with and communicating with the parties.

1. The current living arrangements for the child are such that it is relatively convenient for the father to continue spending time with the child.  The mother’s present address is unknown to the grandparents and indeed there is some evidence in the subpoenaed material that, since this matter was set down for hearing, the mother has lived in Victoria.

s 60CC(3)(f) - The capacity of each parent and other relevant persons to provide for the child's needs including her emotional and intellectual needs.

1. The evidence before me demonstrates that the mother does not have the capacity at this time to provide for the child's physical, emotional or intellectual needs. The child was, whilst in the mother’s care prior to December 2006, exposed to parental drug use, domestic violence between the parents and between the mother and subsequent partner or partners and the mother's emotional instability and chaotic lifestyle.  There is no evidence before me to satisfy the Court that there has been any change in the mother’s lifestyle and the impact that has on her parenting capacity. 

2. The mother has filed no evidence regarding her current circumstances.  It would appear that the mother has suffered mental illness or personality problems that have adversely impacted upon her relationships.  The mother has filed no evidence about the current status of these issues. Nor has the mother filed any evidence to explain her limited contact with the child since December 2006 which, prima facie, demonstrates the mother’s lack of commitment to her child. 

3. In the absence of such evidence the Court can draw the inference that the mother's current capacity to provide for the child’s needs does not support the mother’s case that the child to live with her at this time.

4. On the evidence before me, I am satisfied that the grandparents are able to identify the physical, emotional and intellectual needs of the child and are capable of meeting those needs and providing her with a stable and secure home environment. 

5. On the evidence before me I am satisfied that, whilst the father, unlike the mother, has remained involved in the child’s life, he has not yet reached a stage where he has the capacity to provide for the child’s needs other than as a parent whose time spent with his child will occur under the guidance of others, including the grandparents.

s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parties.

1. The mother’s, the father's and the grandparent’s respective attitudes to the responsibilities of parenthood have already been discussed in s 60CC(3)(c) and (f) above.  On all the evidence before me the mother has not demonstrated that currently she accepts the responsibilities of parenthood. The father's acceptance of those responsibilities is progressing positively. 

s 60CC(3)(j) - Any family violence involving the children or a member of the child's family.

1. On the evidence before me the child has been exposed to violence, primarily in the care of the mother, but also when in the joint care of the mother and father. 

s 60CC(3)(l) – Order to avoid further litigation.

1. It is submitted that in the event of a final order being made that the child live with the grandparents, this is less likely to lead to a further proceedings being instituted, at least in the foreseeable future.  I accept that submission in circumstances where the orders proposed by the grandparents, and supported by the father, are appropriate orders for the long term care of the child, whilst the orders proposed by the mother will, on the evidence before me, be more likely to lead to further proceedings.

SUMMARY

1. Taking into account all of the evidence, including the subpoenaed material which has been tendered, I am of the view that the orders I now make are in the child’s best interest.  I note that the orders I now make are urged upon me by the grandparents, the Independent Children's Lawyer and the father.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm

Associate: 

Date:  9 March 2009