Carsely and Baron & Anor
[2020] FamCA 669
•17 August 2020
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 … 2007 (‘the child’).
The child live with the 1st Respondent.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carsely & Baron and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5223 of 2014
| Mr Carsely |
Applicant
And
| Ms Baron |
First Respondent
And
| Ms C Baron |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This matter concerns an Application for parenting orders in respect of the child, X born in 2007 (“the child”). The Applicant is Mr Carsely (“the Applicant maternal grandfather”), the First Respondent is Ms Baron (“the First Respondent maternal grandmother”) and the Second Respondent is Ms C Baron (“the Second Respondent mother”). The maternal family and the child identify as Aboriginal.
The child currently resides with the First Respondent maternal grandmother in accordance with interim Orders made on 6 March 2017. The Applicant maternal grandfather and First Respondent maternal grandmother are in dispute over the time, if any, the child should spend with the Applicant maternal grandfather.
The Second Respondent mother has not participated in these proceedings and, although appearing on 20 May 2020, the Applicant maternal grandfather has not filed any documents in these proceedings and did not appear at the final hearing. The First Respondent maternal grandmother was unable to appear at the final hearing as a result of collecting the child from school. However, through the Independent Children’s Lawyer, the First Respondent maternal grandmother indicated her support for the orders proposed by the Independent Children’s Lawyer.
I am satisfied that the Applicant maternal grandfather and Second Respondent mother are aware of these proceedings and, in their absence, I dealt with this matter on an undefended basis.
For reasons advanced by the Independent Children’s Lawyer, I am satisfied that the orders proposed by the Independent Children’s Lawyer are in the best interest of the child and I have made those orders.
Background
The chronology set out by the Independent Children’s Lawyer in his case outline document is not challenged. Accordingly, I will now set out the relevant background to this matter as set out in that chronology.
In 1955, the First Respondent maternal grandmother was born. She is currently aged 65 years.
In 1958, the Applicant maternal grandfather was born. He is currently aged 62 years.
In 1973, the Applicant maternal grandfather and the First Respondent maternal grandmother commenced cohabitating.
In 1975, the Second Respondent mother was born. She is currently aged 45 years.
The First Respondent maternal grandmother contends that, in late-1975, she and the Applicant maternal grandfather separated. The Applicant maternal grandfather contends that he and the First Respondent maternal grandmother separated in 1977. The difference is not material to this decision.
In 1978, the Applicant maternal grandfather contends that the First Respondent maternal grandmother was in prison, was diagnosed with bi-polar disorder and attempted self-harm. The First Respondent maternal grandmother, however, denies these allegations.
In 1991, the Second Respondent mother met the Applicant maternal grandfather for the first time.
In 1992, the Applicant maternal grandfather took the Second Respondent mother to Country Q for her 18th birthday. The Second Respondent mother contends that the Applicant maternal grandfather was intoxicated for a large period of the holiday.
In 1994, the Second Respondent mother observed the Applicant maternal grandfather punching his son “at least six times in the head while [his son] was driving”.
In 1994, the Second Respondent mother’s child Mr B was born. He is currently aged 26 years.
In 1995, the Second Respondent mother’s child Mr D was born. He is currently aged 25 years.
In 2005, the Second Respondent mother commenced a relationship with Mr G (“the father”).
In 2006, the Second Respondent mother discovered that she was pregnant. At that time, the Second Respondent mother had been incarcerated for shoplifting and drug use. The Second Respondent mother claims that, from this time until June 2011, she did not consume any drugs.
In 2006, the Applicant maternal grandfather contends that he loaned a sum of $3,000 to the First Respondent maternal grandmother so that she may open a business.
In late-2006, the Second Respondent mother was released from prison and the Second Respondent mother and the father of the child (“the father”) commenced residing in Suburb F.
In 2007, the child was born. He is currently aged 13 years.
In 2010, the Second Respondent mother and the father separated. The Second Respondent mother contends that the last occasion on which she saw or spoke to the father was in 2011.
In June 2011, the Second Respondent mother recommenced drug use consisting, primarily, of amphetamines.
In late-2011, the Second Respondent mother claims that the First Respondent maternal grandmother took the child into her primary care. The Second Respondent mother states that she relapsed and commenced using methamphetamine on a daily basis.
In December 2011, the Applicant maternal grandfather met the child at a shopping centre. The Applicant maternal grandfather describes the encounter as a “chance meeting”.
In December 2011, the Second Respondent mother was incarcerated for shoplifting and drug use. She remained in prison until May 2012.
In March 2012, the Applicant maternal grandfather contends that the Second Respondent mother and the child stayed with him for a week in the H Region in Queensland.
In May 2012, the Second Respondent mother was released from prison and commenced residential rehabilitation for a period of 21 days at J Centre. Following her release from J Centre, the Second Respondent mother commenced residing with the First Respondent maternal grandmother. The child had already been residing with the First Respondent maternal grandmother at this time.
In 2012, the Applicant maternal grandfather had regular telephone communication with the Second Respondent mother and the child.
On 3 December 2012, the Applicant maternal grandfather wrote to the Second Respondent mother seeking to spend time with the child. This request was not met.
In December 2012, the Second Respondent mother and the child relocate to L Town.
In May 2013, the Second Respondent mother contends that she and the child spent four (4) nights with the Applicant maternal grandfather at K Town and that the Applicant maternal grandfather was heavily intoxicated during this period.
In May 2013, the Second Respondent mother states that she and the child commenced residing with her step-father, Mr M, who reintroduced her to “intoxicating substances”.
In August 2013, the Second Respondent mother was charged with aggravated breaking and entering and was sentenced to seven (7) months’ imprisonment.
In March 2014, the Second Respondent mother was sentenced to two (2) years and six (6) months’ imprisonment for breaching her bail conditions.
The Applicant maternal grandfather states that the last occasion on which he spent time with the child occurred in March 2014. The Applicant maternal grandfather also contends that, around this time, the First Respondent maternal grandmother was homeless with the child in her care.
In April 2014, the Applicant maternal grandfather visited the Second Respondent mother in R Correctional Centre. The Second Respondent mother contends that the Applicant maternal grandfather became abusive.
In July 2014, the Applicant maternal grandfather visited the Second Respondent mother at T Correctional Centre.
In March 2015, the Second Respondent mother was released from prison and recommenced residing with the First Respondent maternal grandmother and the child in Suburb V.
In the period between June and August 2016, the First Respondent maternal grandmother states that she noticed the Second Respondent mother’s behaviour becoming erratic. The First Respondent maternal grandmother contends that the Second Respondent mother lost weight and her unit caught fire.
In September 2016, the First Respondent maternal grandmother took the child into her care again.
The current situation in respect to the child was explained by the Independent Children’s Lawyer at the hearing of this matter. By way of summary, that current situation is as follows:
·The child remains living with the First Respondent maternal grandmother and she states that the child is doing very well.
·The child is in year seven (7) at High School.
·The Second Respondent mother is currently living in regional New South Wales.
·The First Respondent maternal grandmother advised that while she does not really get on with her daughter, she nevertheless facilitates the child having a relationship with his mother and the Second Respondent mother phones the child every couple of days.
·The child spent two (2) weeks with his mother last Christmas and, according to the First Respondent maternal grandmother, the child enjoyed that time. Nevertheless, the child has been very clear that he does not want to live with the Second Respondent mother but he is content to spend some time with his mother on holidays.
·The First Respondent maternal grandmother is very conscious of her position as holder of the child’s indigenous heritage and link to his family, and she takes that responsibility very seriously. She indicated to the Independent Children’s Lawyer that she would, notwithstanding her issues with her daughter, continue to facilitate her grandson spending time with his mother.
·The First Respondent maternal grandmother has made contact with the child’s paternal grandmother, who resides in Queensland, and she has been attempting to establish a link with the paternal grandmother.
In the circumstances of this matter, I accept and express the Court’s appreciation for the updating evidence as provided by the Independent Children’s Lawyer from the bar table.
Applications
The Independent Children’s Lawyer seeks that orders be made in accordance with the Minute of Order provided to the Court by email dated 20 May 2020, as follows:
1. All prior parenting orders are discharged.
2. The 1st Respondent have sole parental responsibility for the child X born in 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.
Evidence
The Independent Children’s Lawyer relies upon the following documents:
a)Child Dispute Conference Memorandum of Ms N dated 28 November 2014; and
b)Family Report of Ms P dated 16 December 2016.
The law – concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objectives of Part VII, which 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.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act), and to protect them from family violence (s 43(1)(ca) of the Act).
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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 for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
Those authorities must, however, be read in the context of s 65DAC(2) and (3) of the Act, which provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
If an order for equal shared parental responsibility is made, the pathway set out in s 65DAA of the Act applies to the task before the Court in respect to making parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties.
Best interests of the child
Section 60CA of the Act provides 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. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) requires me to consider the importance of the child having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Protection from harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. Stott & Holgar [2017] FamCAFC 152 at [38] confirms that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b), exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: M & M (1988) FLC 91-979 at 77,081 (“M & M”); B & B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: A v A (1998) FLC 92-800 at 84,996; M & M (supra) at 77,081.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]-[149].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence[1]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: N & S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled “Unacceptable Risk: A Return to Basics”.[2]
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
[1]Dieter & Dieter [2011] FamCAFC 82 at [61].
[2] John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. These considerations are as follows:
Sub-section (3)(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.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
Sub-section (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 child; and
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration
Considerations
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 parents
The 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 violence
The 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 child
The 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 others
As 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 parent
There 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 needs
As 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 relevant
The 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) Aboriginality
X 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 parents
As 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 family
The 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 orders
There 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 child
The ICL contends that the Orders proposed would reduce the risk of further litigation.
14. 60CC (3)(m) any other facts or circumstances
PARENTAL RESPONSIBILITY
The 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.
Conclusion
I am satisfied that the Independent Children’s Lawyer’s submissions are soundly based and the orders proposed by the Independent Children’s Lawyer, as explained in those submissions, are in the best interests of the child.
I, therefore, make orders in accordance with the Independent Children’s Lawyer’s Minute of Order set out at the commencement of my reasons for judgment and express the Court’s appreciation to the Independent Children’s Lawyer for the assistance he has provided to the Court.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 17 August 2020.
Associate:
Date: 17 August 2020
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