Bush and Bush and Anor
[2019] FCCA 2081
•24 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUSH & BUSH & ANOR | [2019] FCCA 2081 |
| Catchwords: FAMILY LAW – Children – application by grandmother for sole parental responsibility – where the mother has exposed the child to abuse and neglect – where the father is not present in the child’s life – best interests of the child – consideration of the benefit to the child to have a meaningful relationship with both parents and the need to protect the child – due process – determination to proceed on an undefended basis – Makita & Sprowles issue raised with family report – child’s right to identification and practice of culture. |
| Legislation: Family Law Act 1975 (Cth), ss.91B, 60CA, 60CC, 65DAA Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Allesch v Maunz [2000] HCA 40 |
| Applicant: | MS BUSH |
| First Respondent: | MS A BUSH |
| Second Respondent: | MR SCOTT |
| File Number: | PAC 579 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Khalil of Khalil Family Lawyers Pty Ltd |
| Solicitors for the Independent Children’s Lawyer: | Ms Jenkins of Russell Kennedy Aitkin Lawyers |
ORDERS
Discharge all prior parenting orders with respect to the child [X] (born … 2006).
[X]’s grandmother, Ms Bush, shall have sole parental responsibility for [X].
[X] shall live with his grandmother, Ms Bush.
Pursuant to s.68B Family Law Act 1975 each of [X]’s parents, Ms A Bush and Mr Scott, shall be and are hereby restrained from removing [X] from Ms Bush’s care.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
IT IS NOTED that these Orders are made in the absence of the Respondent and accordingly, the provisions of rule 16.05 of the Federal Circuit Court Rules 2001 apply, such that the Respondent is entitled to make Application to reopen the proceedings and be heard.
In the event that the Respondent should wish to make an application to reopen the proceedings and be heard, then the Respondent shall:
(a)No later than close of business June 21 2019, make a request in writing, by email, direct to my Associate in accordance with Federal Circuit Court protocols regarding communication with Chambers seeking a relisting of the proceedings and explaining their non-attendance on this occasion and on previous occasions; and
(b)Prior to or contemporaneous with the above request file and serve a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk and failing the filing of such material any request for relisting by the Respondent shall not be acted upon.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed. Remove all issues from the list of cases awaiting hearing.
Grant leave to the Independent Children’s Lawyer to a make an application for contribution for costs as against each party.
Dismiss the application for costs.
IT IS NOTED that publication of this judgment under the pseudonym Bush & Bush & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 579 of 2017
| MS BUSH |
Applicant
And
| MS A BUSH |
First Respondent
| MR SCOTT |
Second Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young man [X], born … 2006. As would be apparent, [X] has recently turned 13.
The parties to these proceedings are numerous, being:
a)The applicant, Ms Bush, [X]’s maternal grandmother;
b)[X]’s mother, Ms A Bush, the first respondent; and,
c)[X]’s father, Mr Scott, the second respondent.
[X]’s interests are capably represented by an Independent Children’s Lawyer.
The proceedings have an unfortunate history, a phrase equally applicable to [X]’s past care arrangements.
The proceedings were commenced by an Initiating Application filed a little over two years ago on 13 February 2017. It has not been possible to conclude the matter earlier than this through no fault of the Court or the parties. The proceedings have largely been a continuous response to crisis. Those crises have largely come about through the actions or inactions of Ms Bush, [X]’s mother.
When the proceedings first came before the Court, a number of orders were made on an urgent basis in relation to [X]. [X] had, at that point in time, been removed from his grandmother’s care (with whom he had been living for some short time). [X] had been taken by the mother, who was at the time in a relationship with, and may still be in a relationship with, a partner with whom she has since had a young child named D.
D is the subject of orders made by the Town B Children’s Court. Those orders, it seems, arose from concerns relating to the mother’s drug use (and possibly that of her partner) and violence by D’s father towards her mother. But for the fact that these proceedings had been commenced, and orders had been made to return [X] to the grandmother’s care, [X] might have also been be the subject of Children’s Court orders. If so, he might also be residing in foster care.
The Department has had extensive involvement in young [X]’s life. That involvement has related to, not only, issues of violence and drug abuse, to which poor [X] has been significantly exposed, but also more general neglect. As was noted in the orders made 3 March 2017 when the matter proceeded to interim hearing, [X] had been absent from school for an average of 86 days per school year. That is more than one term per year. Thus, [X]’s learning has been significantly impeded, not through any fault of [X]’s but through his mother’s neglect.
These proceedings have had numerous Court events, some of which the mother has participated in, albeit few, and at none of which, it would seem, the father has participated. [X]’s father is, sadly, absent from his life, although in light of some of the issues raised in the evidence, that may be protective of him.
The matter has been the subject of a number of requests pursuant to section 91B of the Family Law Act 1975 for the Department of Family and Community Services to intervene or assist. The parties and the Independent Children’s Lawyer have sought assistance from the Department in the provision of services for young [X]. [X] requires all the assistance he can receive at this point in life in light of the neglect that he has suffered in his mother’s care in the past.
None of the above is intended in any way to demonise poor [X]. He would appear to be a lovely and, now, happy young boy. He has done as best as he can. Indeed, he is doing remarkably well now he is back in his grandmother’s care and all the more so in light of the difficulties he has faced in the past. He has deserved better from his parents. He has not received it. The one shining light for this young lad is that his grandmother is there to pick up the pieces.
During these proceedings, [X] has had a number of comings and goings, returning to his mother’s care at times, it would seem on at least one occasion by agreement but on others through the mother’s actions. On that basis, orders had previously been made and will be continued on a final basis, that the mother be restrained from removing or attempting to remove [X] from his grandmother’s care save pursuant to an order made by a Court exercising jurisdiction under the Family Law Act1975.
The absence of participation of the Department does not cause any significant concern as this is not a matter in which there is any concern that [X] will not receive proper and appropriate care from his grandmother and her partner. Indeed, he does. The real concern is the absence of assistance that would be provided to this grandmother in meeting the needs of young [X]. The Department has been involved to the extent of negotiating family arrangements as evidenced by a document tendered in an earlier tranche of proceedings. It would seem that upon the conclusion of those negotiated arrangements the Department’s disinterest arose.
The proceedings will now conclude on a final and undefended basis. Accordingly, due process must be addressed.
As indicated, the mother has sporadically participated in these proceedings, at times somewhat histrionic but at least present. In more recent times, the mother has attended with the assistance and in the company of workers from Odyssey House where she was then resident, receiving rehabilitative treatment for her past drug and alcohol addictions. Sadly, she has left that service and would appear to have relapsed back into and surrendered herself to the demons of her drug use.
At a time when the mother was involved, a family report was prepared by Mr C. That report recommends that young [X] continue living with his mother and spend substantial time with his grandmother. That report, of course, was prepared on the acceptance that the mother had recovered from her drug and alcohol abuse and that the recovery would be sustained. Clearly, it is not. On that basis and without intending any disrespect to the report writer, clearly, he had accepted the mother on her word that drug use was now a thing of the past when that word was less than dependable.
The recommendations of the report cannot not stand. The principles outlined in the case of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 would dismiss any suggestion of that, noting that the premise upon which the recommendation was advanced was the mother’s sustained abstinence.
I refer to the report at this point as it is one of the vehicles by which the mother has been afforded an opportunity to participate and be afforded due process.
The mother has, consistent with her relapse into drug use, now disengaged from the proceedings. As already indicated, the father has never engaged.
I am satisfied that the mother remains aware of the proceedings, the relief that is sought and the basis upon which it is sought.
I am satisfied that the mother has been notified of today’s event. An order was made on the last occasion dispensing with any requirement for personal service and requiring that advice be given by such means as possible including Facebook, Google Messenger, email, text message or any other service. That is the best that can be achieved when the mother absents herself and cannot be located and does not participate. The determination of [X]’s interests should not be held up indefinitely waiting for the mother to reappear.
In any event, there is the comfort that rule 16.05 of the Federal Circuit Court Rules 2001 would apply, as the mother is not present when orders are made. Accordingly, the mother would have a right to apply to reopen. I intend to temper that right to provide a period of 28 days from today’s date for any such application to be made with notification to be given to the mother on the same basis as previously ordered, by such means as might be available, and to require that the mother file an affidavit explaining her non-attendance and non-participation in the proceedings today and on the last few Court events, before that request is actioned.
That will provide some protection for the mother’s position should she feel that her right to due process is infringed. However, I am conscious of that which fell from the High Court in Allesch v Maunz [2000] HCA 40. What is required, in any proceedings, is to give a litigant a reasonable opportunity, in all of the circumstances, to participate. The right must also be viewed in light of that discussed by Forrest J in Gordon & Gordon [2015] FamCA 616. The paramountcy principle, if it is to have real meaning, must apply to all determinations made by the Court including determinations such as this, a determination to proceed on an undefended basis.
The mother is aware of the case. She certainly knows what is at stake if she does not participate. Everything that can be done has been done to engage her. On that basis, I am satisfied the matter can and should proceed on a final basis.
I do not propose to canvass the evidence in any further detail than above. I will refer to aspects of it in addressing the legislative provisions to which I now turn.
I must commence with section 60CA, the paramountcy of the child’s best interests.
Young [X] deserves a determination of his interests so that he has certainty and stability and security in his care. The care arrangements that have been provided by his mother have not always been neglectful. Certainly, since the mother has engaged herself in violent relationships - and I do not seek to re-victimise her for experiencing that violence, it is simply that she has found herself in relationships in which men visit violence upon her, for whatever reason - but more importantly her descent into drug use, there has been real disadvantage for [X].
No doubt, that neglect is demonstrated abundantly through [X]’s lack of school attendance whilst with the mother and the impact that has had on his education. [X] is a young Aboriginal boy. The last thing that he needs in life is a poor education. That is exactly what he has received and would receive if he returned to his mother’s care. On that basis alone, there is real need for this child to have certainty. His best interests cannot be met by his mother.
There is certainly, per Rice & Miller [1993] FamCA 87 (“Rice & Miller”), no preference in favour of a biological parent. It is merely that in circumstances where all else is equal, there might be some preference shown. In this case, all things are not equal. The mother’s parenting is neglectful and harmful to this child. The mother cannot parent [X] when she is so caught on the hook of her addiction. That has led to young [X] experiencing obesity, poor school attendance and generally not thriving as he should.
If one considers, as the objects include, the International Convention on the Rights of the Child and the preamble thereto, childhood is a place deserving of special protection. It is a place in which children deserve and require a family environment in which they can receive love and grow up in an environment of happiness. That is not what he has received in his mother’s care. It is what he receives with his grandmother’s care. Accordingly, this would seem to abundantly support the relief that is sought.
In looking at the objects and principles, I must have regard, in addition to the Convention, to the orders that will meet [X]’s best interests by ensuring that he has the benefit of meaningful involvement with both parents. As the Full Court in Aldridge & Keaton (2009) 42 Fam LR 369 (“Aldridge & Keaton”) makes clear, this consideration can expand to others who are not parents, such that regard must be had to [X] having the benefit of meaningful involvement of significant people in his life to the maximum extent consistent with his best interests.
The difficulty in this case is that beyond Ms Bush, this child’s grandmother, who is doing an excellent job caring for him with her partner, there is no means by which an assessment could be made of the extent, let alone maximum extent, to which either parent could be involved in [X]’s life. When they have been involved in the past, it has been disadvantageous. He does not go to school. He is poorly fed and fed junk food. He becomes obese. He becomes bullied and picked on by others at the school when he chances to attend as a consequence of his presentation. They are all significant disadvantages that no child should experience, and [X] need not because there is a readily available option - being raised by his grandmother.
I am also conscious, and will address by reference to section 60CC, the requirement to consider the kinship practices of Aboriginal peoples. Whilst evidence is not specifically led in the grandmother’s case, although that is not intended as criticism, it must be observed that First Nations people generally, certainly those within the shores of this nation, parent in a way that is perhaps no longer known to Anglo-normative societies (although it has not always been so). Before the working classes were rounded up and fed to the mills in the manner described in Blake’s Hymn “Jerusalem”, to meet the needs of industrialised Britain, families did live in very much the same way as First Nations people - in extended family units where aunts, uncles, cousins, grandparents, all had a role to play in the raising of children.
Sadly, the Industrial Revolution has seen that pass for Anglo-normative societies and increasingly for many different societies however they are constituted. It is, however, a fundamental tenet of cultural practice for First Nations people. To the extent that Rice & Miller discusses a potential preference for parents over others when all things are equal, that is, again, an Anglo-normative concept. The nuclear family is foreign to a non-Anglo-normative society.
For this young child, the important object is the second of the primary considerations set out in section 60CC (2), the need to protect him from abuse, neglect and family violence, all three of which [X] has been abundantly exposed to by his mother. He is not exposed to those things when he lives with his grandmother and her partner. He is well cared for, he is able to participate in sport, attend school on a regular basis, his needs are met nutritionally, emotionally and practically.
Children must receive adequate and proper parenting. Again, whilst the objects may not be part of the substantive law to be applied to the facts of the case, but guiding the outcome that should be achieved, what is readily apparent is that [X]’s care by his mother is neglectful, thus, anything but adequate and proper, whilst [X]’s care by his grandmother is abundantly adequate and proper.
Parents should fulfil duties and meet responsibilities. It is a child’s right that it be so. Yet neither of [X]’s parents have done so in any meaningful way or for any extended or sustained period. Those needs are far better met by his grandmother. She is not troubled by the demons which seem to plague Ms Bush Junior.
The principles underlying the objects of the Family Law Act 1975 create rights for young [X], a right to know and be cared for by both of his parents - although, again, as Aldridge & Keaton makes clear, that can extend to others.
But the rights are not absolute. They are subject to the important caveat that they are neither enlivened nor practised when to do so would be contrary to the child’s best interests.
It would be contrary to [X]’s interests to return him to the care of the mother. It would also deny Ms Bush due process. There is no application to return him to the mother. The only application pressed before this Court is that [X] stay where he is and where he is loved and well cared for. Accordingly, that is the order that will be made. To the extent that it might be described as a right, it would not be enlivened in this case.
Children have a right to spend regular time with both of their parents. [X] has never had expression of that right in relation to his father, and in light of the evidence regarding him, that is, perhaps, a blessing. There must be a tempering of that right in relation to his mother. She does not meet his needs. Accordingly, I am not concerned that the rights, to the extent that they might be so described in the principles, would apply in this case or would obviate against the relief that is sought by the grandmother. It is the only relief that can meet [X]’s needs, and it is demonstrably so from the evidence in these proceedings.
I must then consider the presumption of equal shared parental responsibility. The presumption cannot apply in this case as the presumption applies only as between parents. I am satisfied that its non-application, in any event, is entirely appropriate. On the evidence available, there are more than reasonable grounds to believe that a parent has engaged in or exposed the child to abuse or family violence. Accordingly, an order will be made in due course - and I will address it by reference to section 60CC - for Ms Bush to have sole parental responsibility for [X]. She is the only person who makes effective and protective decisions for him at this point in his life. She needs the investment of that order to be able to do so if she is not a parent shown on the child’s birth certificate.
In turning to section 60CC, I must commence with the primary considerations, being the benefit of a meaningful relationship with both parents and the need to protect the child, the latter prioritised over the former and also subject to the difficulty, perhaps inconsistency, between Aldridge & Keaton and Burton & Churchin & Anor [2013] FamCAFC 180 (“Burton & Churchin”), that a consideration of the benefit of a meaningful relationship with both parents is confined to [X]’s biological parents. That does not create any substantial difficulty in this case for two reasons or three.
Firstly, the primary consideration does not create a presumption in favour of parents, far from it. Secondly, in this case, as was discussed in Burton & Churchin, a consideration of a meaningful relationship can still proceed. This child does not presently have a relationship with either of his parents that could be described as meaningful. It is a neglectful relationship that he has with his mother. He suffers disadvantage from it. Any reasonable considerable of that discussed in Mazorski & Albright [2007] FamCA 520, as to what a meaningful relationship might be, could be undertaken in this case. Even if it were, the best way by which it can be achieved as a benefit for the child, at this time, is through the orders that are sought by Ms Bush.
[X] will continue to practise a relationship with his mother, Ms Bush’s daughter, but it will be safe and protected. The child continues to practise a relationship with his paternal family, although not necessarily his father, demonstrative of Ms Bush’s sensitivity to [X]’s broad and general needs.
Thirdly, and most importantly, the need for protection trumps all. This child could not live with his mother and receive the same level of quality care that he receives from his grandmother. That must end the issue. This is a protection case.
As previously indicated, but for the fact that at the time that the Department intervened with respect to D, [X] was back with his grandmother, [X] would also be the subject of a Children’s Court order.
I now turn to the additional considerations.
Views
[X] is perfectly happy where he is. There have been struggles. There have been times, naturally and explicably, when he has missed his mother, been curious about his young sister and has desired to return to his mother. That is a perfectly explicable desire. But [X], at 13, is not responsible for knowing or understanding his needs and interests or his need for protection.
No child, unless they have experienced significant abuse from a parent, is likely to wish to reject that parent altogether. [X] does not, but, certainly, the evidence makes clear that he is becoming increasingly aware of the disadvantages he experiences in his mother’s care. He is disappointed in her, and so he should be. She is, no doubt, disappointed in herself during moments of sobriety.
[X]’s views would support his remaining where he is. His views are not inconsistent with his remaining where he is, and, certainly, it is the best thing for him even if his view was contrary.
Nature of child’s relationship with each parent and other persons including grandparents
At this point, the Court can specifically consider [X]’s relationship not only with his grandmother but with his pop. They are two people who are abundantly important to this child. They have kept him safe. They meet his needs very well, and those relationships will serve [X] well into the future. They are also relationships that are supportive of and sensitive to his needs for relationships with others and those relationships are facilitated. It supports the relief that is sought.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
Both mother and father have failed. There has not been impediment put in their way to any significant extent, if at all, by Ms Bush. It is simply that they are troubled by their own issues.
The extent to which each parent has met their obligation to maintain the child
Neither has.
The likely effect of change including separation from either parent or any other person with whom they are living
The effect of change for [X] would be disastrous. That is clearly demonstrated longitudinally during the course of these proceedings. When he is with his grandmother, he does much better than when he is with his mother. He is housed, clothed, fed, educated, engaged with his community, all things that do not happen or do not happen to the same standard or with the same regularity when in the mother’s care. That must overwhelmingly dictate that the arrangement that he is in at present, being cared for his grandmother, continues.
Practical difficultly and expense
I incorporate section 65DAA.
The parties live some little distance apart. The mother is, as best as can be ascertained, somewhere on the Region E. She is difficult to contact and even more difficult to engage with. She has no capacity to provide for the child’s needs without substantial assistance, if not supervision, and, thus, equal or substantial and significant time is obviated.
The ability to communicate is poor, not through belligerence or hostility demonstrated by Ms Bush Senior, but purely through the difficulties in communicating with any person who is drug affected or is difficult to contact.
The impact of the arrangement on the child is positive. Young [X] receives great benefit living in a household as he does, with his grandmother and pop. That is the arrangement that must continue if his needs are to be met in the future.
The capacity of the parents and any other person to meet the child’s needs
As would be abundantly apparent, Ms Bush is vastly superior, as is her partner, this little boy’s pop, in meeting this boy’s needs, much better than his mother or father.
Maturity, sex, lifestyle and background of the child
This young lad has had such a poor start to life, through no fault of his own. Possibly, one might generously express, through no deliberate fault of the mother. She descends into poor relationship choices and drug and alcohol abuse quite readily. But, whether the mother is culpable or not, there is no benefit in seeking to blame her for her addiction. It is a medical issue. Culpability means nothing to [X]. All that matters for [X] is that he effectively loses his mother, he loses the care, support and nurture that he has a right to expect from her and he is disadvantaged. That overwhelmingly supports the relief Ms Bush seeks as it will provide this child with real stability and benefit.
Young [X] is already observed as an Aboriginal child. That is no determinative of any issue (see Haigh & Holt [2003] FamCA 1381). But culture must be properly and appropriately considered as it is [X]’s right to identification and practice of culture. That right is met by Ms Bush as well as it is by other persons through Ms Bush. [X] is fully aware of his culture, his identity and will continue to be supported in its practice. That also supports Ms Bush’s case.
Attitude
This is already addressed as is family violence.
Family Violence
There is certainly no family violence order that causes any issue with respect to inconsistency.
Whether it is preferable to avoid future proceedings
It is most assuredly so. Young [X] does not need to have litigation hanging over his arrangements any more. It should be ended, and it will be today by the following orders.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 2 August 2019
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