FAMILY COURT OF AUSTRALIA
| CARSELY & BARON AND ANOR | [2020] FamCA 669 |
| FAMILY LAW – PARENTING – Undefended hearing – Where there is an Application for parenting orders in respect of the child made by the maternal grandfather – Where the child currently resides with the First Respondent maternal grandmother – Where the Independent Children’s Lawyer makes an Application for the child to live with the First Respondent maternal grandmother and that the maternal grandmother have sole parental responsibility for the child and for any time the child spends with the Applicant maternal grandfather and the Second Respondent mother to be determined by the First Respondent maternal grandmother – Where the Applicant maternal grandfather and the Second Respondent mother have not appeared or participated in the proceedings – Where the First Respondent maternal grandmother was unable to appear, however, provided her consent to the Independent Children’s Lawyer’s Application – Orders made in accordance with those sought by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 43(1), 60B, 61DA, 60CA, 60CC, 65DAC Evidence Act 1995 (Cth) s 140 |
| A v A (1998) FLC 92-800 John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Mr Carsely |
| FIRST RESPONDENT: | Ms Baron |
| SECOND RESPONDENT: | Ms C Baron |
| INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
| FILE NUMBER: | SYC | 5223 | of | 2014 |
| DATE DELIVERED: | 17 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 14 August 2020 |
REPRESENTATION
| NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT. |
| NO APPEARANCE BY OR ON BEHALF OF THE FIRST RESPONDENT. |
| NO APPEARANCE BY OR ON BEHALF OF THE SECOND RESPONDENT. |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr M. MacDiarmid of Mark MacDiarmid Family Law Specialist |
Orders
Orders be made in accordance with those proposed by the Independent Children’s Lawyer in the Minute of Order attached hereunder.
“Independent Children’s Lawyer’s Minute of Order”
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. (P)SYC5223/2014
BETWEEN
Mr Carsely (Applicant)
AND
Ms Baron (1ST Respondent)
AND
Ms C Baron (2ND Respondent)
AND
INDEPENDENT CHILDREN'S LAWYER
IT IS ORDERED THAT:
All prior parenting orders are discharged.
The 1st Respondent have sole parental responsibility for the child X born ……
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- Case
- [2020] FamCA 669
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary considerations under section 60CC(2) of the *Family Law Act 1975*, specifically the benefit to the child of a meaningful relationship with both parents and the need to protect the child from harm. Additionally, the court had to consider various additional factors under section 60CC(3), including the child's views, his relationships with his parents and others, the extent to which each parent had participated in decision-making, spent time with, and communicated with the child, fulfilled their maintenance obligations, the likely effect of any changes in circumstances, practical difficulties, the capacity of parents and others to provide for the child's needs, the child's maturity and background including his Aboriginality, the parents' attitudes to the child and their responsibilities, any family violence, and the preference for orders least likely to lead to further proceedings. The ICL also contended that the presumption of equal shared parental responsibility under section 61DA did not apply to the mother due to abuse or family violence, and was rebutted in relation to the father as equal shared parental responsibility would not be in X's best interests.
McClelland DCJ found that both parents had significant histories of criminality and drug abuse, with minimal and often neglectful engagement with the child. The mother had a history of drug abuse and criminality, and had made troubling disclosures to the Family Consultant, including encouraging X to steal and threatening and assaulting him. The father had a lengthy history of criminality and drug use and had had very little contact with X. The court noted that X expressed a desire to live with the first respondent, his mother, stating he did not want to go through the difficulties associated with his mother's potential relapse again, and indicated no interest in spending time with the applicant. The court also considered the positive relationship X had with his grandmother, the first respondent, and his brother, and the support he received from his maternal family. The Family Consultant expressed concern that orders sought by the applicant might cause the first respondent significant stress and negatively impact her caring role.
The court ordered that all prior parenting orders be discharged. The first respondent, Ms Baron, was granted sole parental responsibility for X, with X to live with her. X was to spend time with the applicant and the second respondent as determined by the first respondent.
Orders
Orders of the court
1.
Orders be made in accordance with those proposed by the Independent Children’s Lawyer in the Minute of Order attached hereunder.
“Independent Children’s Lawyer’s Minute of Order”
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. (P)SYC5223/2014
BETWEEN
Mr Carsely (Applicant)
AND
Ms Baron (1ST Respondent)
AND
Ms C Baron (2ND Respondent)
AND
INDEPENDENT CHILDREN'S LAWYER
IT IS ORDERED THAT:
1.
All prior parenting orders are discharged.
2.
The 1st Respondent have sole parental responsibility for the child X born … 2007 (‘the child’).
3.
The child live with the 1st Respondent.
4.
The child shall spend time with the Applicant and the 2nd Respondent as determined by the 1st Respondent.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In this matter, the Court was assisted by comprehensive written submissions provided by Independent Children’s Lawyer. Those submissions accurately reflect the recommendations in the Family Report of Ms P dated 16 December 2016 and helpfully present that evidence in terms of the considerations that the Court is required to consider, as follows:60CC (2) PRIMARY CONSIDERATIONS:1. 60CC (2)(a) the benefit to the child of having a meaningful relationship with both of the child's parentsThe child has an existing relationship with his mother, although he has not seen her since about September 2016. The child has had minimal contact with his father throughout his life.2. 60CC (2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violenceThe mother by her own admission has had a long and very serious history of drug abuse and other criminality. Further, the Family Consultant’s interview with X contained some troubling disclosures, including that the mother encourages X to steal, steals in his presence (para 46 FR) and that the mother threatened to smash X’s head into a wall in 2016 and had actually punched him in the head because she thought he had broken something (para 47 FR). The ICL contends that the mother poses a serious risk of harm to the child were the child to live with her or spend time with her unmediated by a responsible adult. X’s father Mr G has had a lengthy history of criminality and drug use. He has had very little to do with this child, and his failure to engage with X during times when the mother has either been in prison or involved with drug abuse displays a lamentable level of neglect and disregard for this child. The failure by both parents to engage in these proceedings (the father all along; the mother more recently in failing to participate with the family consultant interviews), is suggestive of somewhat compromised parenting capacity.60CC (3) ADDITIONAL CONSIDERATIONS:1. 60CC (3)(a) views of childThe Family Consultant sets out her observations of X at paragraphs 40-50 of her report. X presented as a ‘friendly, sociable and well-behaved’ child who enjoys school and takes pride in his Aboriginality (para 45FR). As indicated above, X made troubling disclosures about his mother encouraging him to steal and making various threats of physical harm to him, as well as actually assaulting him (paras 46-47 FR). X has indicated that he ‘should’ live with the 1st Respondent as his mother will ‘get sick again and I’ll have to go through all this again’ (para 47 FR).X indicated to the Family Consultant that he was not interested in spending time with the Applicant (para 48 FR).2. 60CC (3)(b) relationships with parents and othersAs indicated above, X’s relationship with his mother is very troubled, and extremely attenuated with his father. He has not seen the Applicant for some years (since March 2014 according to A paras 37-38), has little memory of him (para 63 FR), and indicated to the Family Consultant that he was not interested in seeing him (para 48 FR). He feels ‘pretty safe’ with the 2nd Respondent and is not worried when she looks after him (para 47 FR).X was observed to warmth and affection between X and the 1st Respondent, and noted that he was gentle and respectful to his grandmother (para 49 FR).The Family Consultant observed that ‘X appears to have a positive role model in his brother Mr B, and he is loved and supported by the immediate and extended members of his maternal family’ (para 64 FR).3. 60CC (3)(c) the extent to which each parent has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child The father appears never to have involved himself in making decisions about X. These appear to have been made by the mother and the 1st Respondent. The Applicant has not been involved in decision making. The 1st Respondent notes that she is the sole financial supporter of the child (R para 39).(ii) to spend time with the child The father has spent little time with the child. The Applicant has not spent time with the child since March 2014, and had only spent limited time with X prior to then. The mother has not spent time with the child since about September 2016, and prior to that had been extremely erratic in the child’s living arrangements. The 2nd Respondent appears to have been the most consistent person in the child’s life.(iii) to communicate with the child See previous paragraph.4. 60CC (3)(ca) the extent to which each parent has fulfilled, or failed to fulfil, the parent's obligation to maintain the child. The child has lived with the mother for extended periods although on her own account she has struggled to care for him in the context of her own addictions and other difficulties. The father does not appear to have maintained the child to any noticeable degree.5. 60CC (3)(d) the likely effect of any changes in the child's circumstances (incl separation from parents, other children etc)The Family Consultant opines that while the Applicant would no doubt be delighted to pursue a relationship with X (para 63 FR), she is concerned that the Orders sought by the Applicant ‘would cause Ms Baron much stress, may exacerbate her existing vulnerability to anxiety and possibly negatively impact on her caring role for X. As X’s primary carer, Ms Baron’s mental health and wellbeing should be prioritised’ (para 64 FR). As result, the Family Consultant opines that ‘it is difficult to envisage that any possible benefit to X of having a relationship with Mr Carsely outweighs the potential difficulties within the maternal family that the making of such an Order might make’ (para 64 FR).6. 60CC (3)(e) practical difficulty and expense of a child spending time with a parentThere does not seem to be any practical difficulties with the proposals of any party.7. 60CC (3)(f) capacity of parents and relevant others to provide for the needs of the child, including emotional and intellectual needsAs indicated above, neither parent seems to have the capacity adequately to care for the needs of this child. There are serious concerns raised about the Applicant’s use of alcohol and alleged prior violence to the 1st Respondent. The 1st Respondent indicated to the Family Consultant that she has always suffered from anxiety, and was diagnosed with PTSD about 12 months ago (para 31 FR).8. 60CC (3)(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 relevantThe parents have displayed a singular lack of maturity and child focus; both have been involved in significant criminality and drug abuse. The Applicant has had a history of criminality and alcohol abuse. The 1st Respondent used marijuana until 10 years ago (para 32 FR). Also see next paragraph in relation to Aboriginality.9. 60CC (3)(h) AboriginalityX is Aboriginal and is very proud of his heritage (R para 38; FR para 45). All members of his family apart from his father appear to identify as Aboriginal. The 1st Respondent identifies as [a … woman] raised on [W People] land (R para 1), and engages X in his indigenous heritage (R para 38).10. 60CC (3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parentsAs indicated above, the parents have failed to demonstrate any commitment responsibly to parent the child. Disturbingly, the mother has displayed antisocial and abusive behaviours toward the child.11. 60CC (3)(j) any family violence involving the child or a member of the child's familyThe mother has assaulted and threatened to assault the child (para 47 FR). The 1st Respondent raises significant historical allegations of family violence against the Applicant (R para 24).12. 60CC (3)(k) family violence ordersThere do not appear to be any current family violence orders.13. 60CC (3)(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 childThe ICL contends that the Orders proposed would reduce the risk of further litigation.14. 60CC (3)(m) any other facts or circumstancesPARENTAL RESPONSIBILITYThe ICL contends that the s61DA presumption does not apply in relation to the mother by reason of abuse or family violence pursuant to s61DA(2), and rebutted pursuant to s61DA(4) in relation to the father on the basis that an order for equal shared parental responsibility would not be in the child’s best interests.The ICL contends that the 1st Respondent is the child’s primary carer and the most stable adult in the child’s life. In any event, the ICL notes that parental responsibility is not in contention as between the Applicant and the 1st Respondent.