Cassidy and Wells and Ors
[2014] FamCA 415
•18 June 2014
FAMILY COURT OF AUSTRALIA
| CASSIDY & WELLS AND ORS | [2014] FamCA 415 |
| FAMILY LAW – CHILDREN – Father failed to participate in hearing – Parties include paternal and maternal grandparents – Agreement reached by participating parties for children to continue to live with the maternal grandmother and spend time with the paternal grandmother and for the maternal grandmother, mother and paternal grandmother to share parental responsibility for the children – Consideration of risks of harm posed by parents – Active role of grandmothers in care of children – Best interests of the children |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN(7) Family Law Rules 2004 (Cth) r 16.07 |
| Aldridge & Keaton [2009] FamCAFC 229 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Donnell & Dovey [2010] FamCAFC 15 Jarrah & Fadel [2014] FamCAFC 14 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 Potts & Bims [2007] FamCA 394 Valentine & Lacerra and Anor [2013] FamCAFC 53 |
Yamada & Cain [2013] FamCAFC 64
| APPLICANT: | Ms Cassidy |
| FIRST RESPONDENT: | Mr Wells |
| SECOND RESPONDENT: | Ms J Harris |
| THIRD RESPONDENT: | Ms P Harris |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Dubbo |
| FILE NUMBER: | DUC | 182 | of | 2012 |
| DATE DELIVERED: | 18 June 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 13 May 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Warwick McCarthy & Co Solicitors |
| FIRST RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | Michelle Harding Lawyer |
| THIRD RESPONDENT: | Self-represented Litigant |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Dubbo |
Orders
That all previous Orders in relation to the children E born … 2008 and T born … 2009 (“the children”) are discharged.
That the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother have equal shared parental responsibility of the children.
That the children live with the Third Respondent maternal grandmother.
That the children spend time with the Applicant paternal grandmother:
(a)For the first half of each school holiday period for terms 1, 2 and 3;
(b)For the first half of term 4 holidays in odd numbered years and the second half in even numbered years;
(c)By telephone each Sunday between 5.00 pm and 5.30 pm when the children are not spending time with the maternal grandmother;
(d)At any other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.
That when the Applicant paternal grandmother relocates to Town A, the Applicant paternal grandmother shall spend time with the children during school terms as follows:
(a)Every weekend from 4.00 pm Friday until 4.00 pm Sunday subject to Order 7 below;
(b)Every Tuesday afternoon from 4.00 pm until 7.00 pm; and
(c)Other times as agreed between the Applicant paternal grandmother, the Second Respondent mother and the Third Respondent maternal grandmother.
That the Applicant paternal grandmother’s time with the children pursuant to Order 5(a) above be forfeited on up to twelve (12) occasions each calendar year upon either the Third Respondent maternal grandmother and Second Respondent mother providing notice to the Applicant paternal grandmother the prior Tuesday, except in circumstances of pressing need or emergency.
That all changeovers occur by way of the Applicant paternal grandmother collecting and returning the children from the Third Respondent maternal grandmother’s residence unless otherwise agreed.
That the Second Respondent mother shall not permanently reside with the Third Respondent maternal grandmother. Nothing in this Order prevents the Second Respondent mother from visiting the Third Respondent maternal grandmother or staying overnight on up to two (2) nights each week when the children are living with the Third Respondent maternal grandmother unless otherwise agreed or in the case of medical emergency.
That the parties shall provide to each other in writing details of any change of address, telephone number and/or other contact details within forty-eight (48) hours of such change.
That the children are to be known by the surname of “Wells” and no other surname.
That during any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention or T suffering a seizure, the party spending time with the children shall notify the other parties as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital or after the event.
That these Orders are sufficient authority for the parties to contact the children’s school or medical providers and to obtain information pertaining to the children.
That all outstanding applications be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cassidy & Wells and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 182/2012
| Ms Cassidy |
Applicant
And
| Mr Wells |
First Respondent
And
Ms J Harris
Second Respondent
And
Ms P Harris
Third Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The children in these proceedings are E, born in 2008, and T, born in 2009.
The proceedings involve both of the children’s grandmothers, together with the mother. The father had participated earlier in the proceedings, but did not participate leading up to and when the matter was before the Court for hearing on 13 May 2014.
The Applicant is the paternal grandmother, who seeks to spend time and communicate with the children. She is seeking greater time if she relocates from where she currently resides to near where the children reside. The Second Respondent is the mother and the Third Respondent is the maternal grandmother, with whom the children are currently living.
These proceedings were commenced by the paternal grandmother in the Local Court on 20 February 2012.
On 23 March 2012 interim Orders were made in the Local Court for the children to spend a two week period with the paternal grandmother. Those Orders were made by consent as between the paternal grandmother and the father but on an ex parte basis in respect of the mother and the maternal grandmother.
On 27 April 2012 interim Orders were made in the Local Court for the children to live with the father pending further order and to spend some time with the mother and the maternal grandmother, with the mother’s time to be supervised by the maternal grandmother.
On 11 May 2012 further interim Orders were made in the Local Court for the children to live with the father and to spend further time with the mother and maternal grandmother, with the mother’s time continuing to be supervised. The proceedings were then transferred to the Federal Magistrates Court (as it then was).
On 19 June 2012 a Federal Magistrate discharged the Orders made in the Local Court and made an Order for the children to return to live with the maternal grandmother.
On 20 June 2012 an Order was made for an Independent Children’s Lawyer to be appointed to represent the children and for a Chapter 15 expert report to be prepared. Interim Orders were made by consent providing, in summary:
a)That the parents and the maternal grandmother have equal shared parental responsibility for the children;
b)That the children spend time with the paternal grandmother and the father for a seven day period each six weeks, and communicate by telephone each Sunday evening;
c)That the mother be restrained from residing at the children’s residence;
d)That the children be known by the surname “Wells”;
e)That none of the parties consume alcohol or illicit drugs whilst the children are in their care, or permit others to do so in the presence of the children; and
f)That none of the parties denigrate the other parties, their family or friends, in the presence or within the hearing of the children.
The proceedings were then transferred to the Family Court.
On 26 November 2012 Coleman J stood the matter over generally, to be restored to the list by arrangement between the Court and the parties.
On 3 May 2013 an Order was made for a Family Report to be prepared with such expedition as possible.
On 19 December 2013 Orders were made pending further order by consent of the parties other than the father, providing, in summary:
a) That previous Orders relating to the children be discharged;
b) That the paternal grandmother, the mother and the maternal grandmother have equal shared parental responsibility for the children;
c) That until the paternal grandmother relocates to the Town A area, the children spend time with her for one half of each school holiday period and communicate with her by telephone each Sunday night;
d) That once the paternal grandmother relocates to the Town A area, the children spend time with her every weekend from 4.00 pm Friday until 4.00 pm Sunday and each Tuesday afternoon from 4.00 pm until 7.00 pm.
e) That the mother be restrained from residing with the maternal grandmother, but not be restrained from visiting the home of the maternal grandmother; and
f) That the children be known by the surname “Wells”.
The Court noted that the parties intended to participate in mediation before the end of March 2014 and that the parties were at that time unaware of the whereabouts of the father.
In late April 2014 the parties other than the father attended a conference for the purposes of settling the matter. The parties were successful in reaching a resolution and terms of settlement were signed by the parties in attendance.
On 13 May 2014 the matter was before the Court for final hearing. There was no appearance by or on behalf of the father. The terms of settlement, executed by the remainder of the parties, were handed up to the Court. Those terms provide, in summary:
a)That all previous Orders relating to the children be discharged;
b)That the paternal grandmother, the mother and the maternal grandmother to have equal shared parental responsibility for the children;
c)That the children to live with the maternal grandmother;
d)That the children to spend time with the paternal grandmother for the first half of each school term holidays, and have telephone contact with her each Sunday night;
e)That when the paternal grandmother relocates to Town A she spend time with the children every weekend during school term from 4.00 pm Friday until 4.00 pm Sunday, every Tuesday afternoon from 4.00 pm until 7.00 pm and at other times agreed between the grandmothers and the mother;
f)That the paternal grandmother’s weekend time (when living in Town A) be forfeited on 12 occasions per calendar year so that the maternal grandmother and the mother can spend some weekend time together;
g)That the mother be restrained from permanently residing with the maternal grandmother, but that she not be restrained from visiting the maternal grandmother or staying overnight on up to two nights each week when the children are living with the maternal grandmother; and
h)That the children be known by the surname “Wells”.
The Father’s Non-Attendance
The father last participated in the proceedings during the interview process with the Family Consultant in late 2013 for the purposes of a Family Report being prepared.
It was noted by the Court on 19 December 2013, when interim consent Orders were made on an ex parte basis in respect of the father, that the parties were not aware of the father’s whereabouts.
The father did not attend when the matter was before the Court for trial directions in late January 2014. He also did not attend the pre-trial conference in late April 2014, where the remainder of the parties reached a resolution (set out above).
Copies of the Court Orders have continued to be sent to the father’s last known address in I Street, Town B.
At the time of hearing on 13 May 2014 there was no appearance by or on behalf of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3)…
If the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The father’s whereabouts are unknown. The future conduct of the proceedings would be problematic in relation to his involvement and leave uncertain the circumstances into the future for the children, in a situation where the three other participating parties and the Independent Children’s Lawyer have reached agreement on a set of orders that they put forward as being in the children’s best interests.
The commentary of the Full Court needs only be considered in brief having regard to the father’s current situation. The Full Court in Jarrah & Fadel [2014] FamCAFC 14 considered the matters the Court should have regard to in considering an adjournment of proceedings. In that case, however, the father was actively engaged in the proceedings and was seeking an adjournment of the hearing. Her Honour Ainsley-Wallace J, in that case, referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
In this case the father’s whereabouts are unknown and he has not engaged recently in the proceedings. It is uncertain whether he will reengage in the proceedings in the future. Given that the remainder of the parties involved in the care of the children have reached an agreement and that the principle set out in s 69ZN(7) of the Act provides that proceedings should be conducted without undue delay, it is imperative for these young children that their best interests be considered not at some future indeterminate time, and at further cost to the taxpayer in relation to the Independent Children’s Lawyer and to the other three parties personally, but in a timely manner.
The remainder of the parties are entitled to have their applications heard and the matter to be determined by reason of rule 16.07.
Background
The paternal grandmother is aged 53 years and lives in Town B. Her son, the father, is aged 27 years. As has been noted, his whereabouts are currently unknown.
The mother is aged 24 years. The maternal grandmother and her live in the Town A area.
The parents commenced a relationship in about 2007 when the mother was still in high school and the mother fell pregnant with their first child E when she was in Year 12. They cohabited in the father’s family home and E was born in 2008.
Both of the parents allege the other was physically violent towards them during the relationship at times and that the other drank alcohol to excess. The mother also says the father took illegal drugs such as “ecstasy tablets, ice, speed and cannabis”.
The parents and E moved to Town B in early 2009. T was born whilst they were living in Town B in May 2009. In about mid-2009 the parents and the children moved back to Town A.
After an incident between the parties in early 2010, in which the mother was convicted of assaulting the father, the father moved back to TownB, leaving the mother and the children in Town A. He returned in about August 2010 to try and reconcile their relationship. The parties separated on a final basis in late 2010 and the father again moved back to Town B.
Following separation, the children initially lived with the mother and the maternal grandmother, but then with the father in Town B until January 2011 when the mother and members of her family travelled to Town B to collect them. The mother says the children were only meant to spend some holiday time with the father and his family but were not returned at the agreed time, necessitating her travelling to Town B to collect them.
Thereafter, the maternal grandmother was the primary carer for the children whilst the mother experienced some mental health problems, other than for a two month period from April to June 2012 during which the Local Court ordered on an interim basis that the children live with the father and spend time with the paternal grandmother.
In December 2010, the mother spent two weeks in a mental health unit voluntarily.
In 2011/2012 the mother undertook some counselling through Victims Services in respect of domestic violence she had experienced in her relationship with the father.
In January 2012 the mother was in the mental health unit of C Hospital for a four week period. The mother was diagnosed with having suffered a drug-induced psychosis. She was placed under the care of a psychiatrist whilst in hospital and prescribed medication. The hospital records indicate that the mother had at least two separate incidents in the seven years prior to her admission in 2012, and at both times she had been diagnosed with exacerbation of drug-induced psychosis. In a follow up with the mother by the psychiatric registrar of the hospital in mid-2012 the mother was found to not be mentally ill at that time and was receiving ongoing treatment.
In April 2012 the child T was assessed by a paediatrician, Dr D, at F Hospital. He was assessed as meeting the criteria for autistic disorder and was found to have a moderate global developmental delay. The paediatrician strongly recommended that T be engaged in autism-specific services and have language therapy, occupational therapy, behaviour support and case management by the Ageing, Disability and Home Care service. It was also recommended that T have a cognitive assessment before commencing school to determine his educational support needs. He was in the maternal grandmother’s care at the time of the assessment and the paediatrician noted his strong attachment to his grandmother would be a positive prognostic factor.
The maternal grandmother resides in a three bedroom home in Town A. E is currently attending Town A Primary School and T is receiving Early Intervention Services, Speech Therapy and Occupational Therapy on a regular basis.
The mother currently resides in Town G with the maternal grandfather and has done so since mid-2012. She is engaged to a new partner and indicated to the Family Report writer that she intended to study at TAFE in 2014.
At the time of the Family Report interviews in November 2013 the father was living in Town B, NSW but travelling regularly to Melbourne for work. As has already been noted, his current whereabouts are unknown.
Both sides of the children’s family are of Aboriginal heritage. The paternal family are of the H people and the maternal family are of the J people.
The Family Report
The Family Report in this matter is dated 20 December 2013 and became Exhibit A in the proceedings.
The Family Report writer conducted interviews with the mother, the maternal grandmother, the father and the paternal grandparents. E was also interviewed (he was 5 years and 9 months at the time) but T was not interviewed because of his age and development. The Family Report writer also observed the adults with the children.
The Family Report writer’s recommendations are, in summary, as follows:
·Parental responsibility be determined by the Court;
·The children continue to live with the maternal grandmother;
·The children spend time with the paternal family for half of school holidays and at other times as agreed, taking into account culturally significant days and time the paternal family may spend in Town A;
·The children spend time with the mother supervised by the maternal grandmother or a person she nominates as appropriate;
·Until the father gains skills in anger management and further information is provided in respect of his current drug and alcohol use (and the Family Report writer recommended drug and alcohol testing of the father), the children reside at the paternal grandparent’s home whilst staying in Town B when with the father;
·Further information be obtained in respect of the mother’s partner (in respect of whether there are any issues of family violence in their relationship) prior to the children spending any unsupervised time with him;
·The parties each attend to T’s prescribed medication; and
·The maternal grandmother provide all health, education and developmental reports to the father and paternal grandmother (including past and future reports).
The Family Report writer noted that both families are closely connected with their Aboriginal culture and community. All family members consider it essential that the children are actively engaged with and aware of cultural matters.
The maternal grandmother raised concerns about the children spending time with the father because of his past alcohol and illicit drug use and what she saw as a lack of commitment to the children. She did not raise concerns about the mother’s parenting at the time of interview, but said she always ensured there was someone to assist the mother because of T’s behaviour being difficult to manage. Further, she reported that the parents’ relationship involved family violence. She had not witnessed any violence herself but had seen bruising on the mother.
The mother did not present as confident in her ability or knowledge in respect of parenting the children, despite having completed a parenting course in the past. She was clearly dependent upon her mother and others to assist her when she cared for the children. The mother reported being subjected to verbal and physical violence during her relationship with the father, receiving bruising and black eyes, and that she was currently not able to speak with the father about the children without being verbally abused. She reported her last relationship (mid to late 2013) was also violent, but her current relationship was not. She reported having a criminal record after she “bottled” the father when she found him being unfaithful with another woman.
The father presented as nervous and reported that the paternal grandmother would assist him with caring for the children if they were to live in Town B whilst he continued working. He denied being physically violent to the mother during their relationship and said the only occasion of violence was when the mother had assaulted him. He denied recent illegal drug use, and reported a recent conviction of maliciously damaging property of his mother’s.
Neither parent was aware of the medications T took in respect of his conditions and both were reliant upon their mothers in respect of such matters.
The paternal grandparents presented as eager to focus on the children and their needs rather than issues relating to the parties. They indicated they would assist the father care for the children whilst he worked, and that they had looked into services in the Town B area for T and extracurricular activities for E. They were aware of the importance of T’s medication and ensured he took his medication in their care. They did not consider the father had a current alcohol problem and had not witnessed violence in the parents’ relationship. They conceded that there was previously violence in their relationship, but this had not been an issue for many years. There was an Apprehended Violence Order in place protecting the paternal grandmother from the father in respect of a recent incident where the father had damaged some property of hers.
E appeared to be developing appropriately for his age. He indicated a wish to continue living with the maternal grandmother and that he would like to visit his father less because the father boxed and hurt him. He indicated he had been learning about Aboriginal culture and language from the maternal grandmother.
The maternal grandmother reported upon matters of T’s autism and global developmental delay, including his receipt of occupational and speech therapy, which was on a weekly basis at the time of interview but was to reduce to every six weeks shortly after. The Town A Early Intervention service was assisting her and the pre-school T attends with strategies to manage T’s behaviour and improve his life skills, and the services are funded through an autism program.
The maternal grandmother and the father both reported that T can be violent and hit people, and this was observed by the Family Report writer when T was in the observation room. The Family Report writer observed the mother to struggle with managing both children and instead focused primarily on E, whereas the father was observed to focus his attention on T. Both grandmothers were observed to engage with both children and split their time between them, and the maternal grandmother was seen to be a calming influence for T and to intervene and stop T hurting E. When the children were observed with the father only both children’s behaviour appeared to escalate in a negative manner as the observation proceeded.
In respect of the children’s views, T was not interviewed due to his age and developmental stage. E expressed a wish to continue living with the maternal grandmother but the Family Report writer recommends little weight be placed on his expressed view because of his age and apparent developmental stage.
The Family Report writer observed the children to have an established relationship with all of the adults involved. She observed the maternal grandmother to meet both children’s needs at once and provide a calm environment. The parents each appeared to have difficulties focusing on both children at once.
From the information available, the Family Report writer was of the view that the maternal grandmother appeared to be meeting both children’s health, educational and developmental needs. The maternal grandmother had accessed appropriate support services in respect of T’s conditions. Unless the Court were to find that she was not meeting the children’s needs, the writer said it would be contra-indicated to move the children from her care.
Practicalities were noted as an issue in respect of the distance between Town A and Town B. The Family Report writer was of the view that significant and substantial time is not practical in this case. She recommended that the current arrangement whereby the children spend half of school holidays with the paternal family continue, and consideration could be given to the paternal family having time with the children if they visit the Town A area.
It was observed that the grandparents in the family have played a major role in providing consistency of care for the children. Both grandmothers appeared to take responsibility for ensuring T’s medical needs are met. The Family Report writer viewed the paternal grandparents as potential carers for the children in the event that the maternal grandmother was unable to care for the children.
A lack of communication between the paternal and maternal families in the past appeared to be a major issue. Both sides of the family questioned the others’ care of the children and it appeared this was partly due to limited information about the children’s care in the other household being shared. The Family Report writer viewed it would benefit both the children and the parties involved for more information to be shared about the children’s health, education and developmental needs and achievements, together with each families’ parenting practices and supports involved with each family.
It was noted that the father’s commitment to the children may be questionable having regard to the maternal family’s claim the father had not attended recent Court events and had visited Town A in mid-2014 but had made no attempts to see the children.
In respect of Aboriginal culture, the Family Report writer was of the view that the paternal family would still be able to share this with the children on regular visits to Town B, and that the children would also continue to learn about their culture from the maternal family.
The Family Report writer had reference to subpoenaed material which appeared to be inconsistent with reports the mother had made during interviews as to her current mental health being stable and as to her not using cannabis and alcohol to excess recently. The material indicated that the mother’s mental health caseworker in late 2013 was concerned about her mental health presentation and compliance with medication. Various health professionals had also recorded the mother reporting cannabis and excessive alcohol use in late 2013. The Family Report writer was of the view the children would be at risk in the mother’s care for a number of reasons including by reason of her use of alcohol and drugs, her mental health situation, that she would be unlikely to effectively meet the children’s physical and emotional needs and that T could be at an increased risk and more vulnerable because of his autism and global developmental delay. The Family Report writer recommended the children’s time with the mother be supervised by the maternal grandmother or person she considers appropriate, and that the mother’s time continue to be supervised until the mother’s mental health is stable and she is no longer using alcohol or drugs.
The Family Report writer also raised concern in respect of the mother having a history of violent relationships and that her current partner should be investigated in this regard.
Behaviour of the father suggested he may have an anger management problem which has not been adequately addressed and this may pose a physical or emotional risk to the children if he is unable to control his anger whilst caring for them. Given concerns in respect of the father’s current anger management strategies and uncertainty in respect of the father’s current drug and/or alcohol use, the Family Report writer recommended the children continue to reside with both the paternal grandparents and the father when they visit Town B.
The Family Report writer raised concern in respect of T’s observed aggressive behaviour and that E may be at risk of harm from T on a daily basis, or at least fearful of being hurt. She strongly recommended the parties seek support in their respective areas to develop strategies to ensure E is not harmed by T, and that it is likely to be in E’s best interests not be left unsupervised with T.
Issues for determination
The issues for determination are:
a)Can the Applicant and the Third Respondent apply for parenting orders as grandparents or more generally as persons concerned with the care, welfare and development of the child?
b)What are the relevant matters in determining the child’s best interests?
c)Who should exercise parental responsibility?
d)With whom should the child live?
e)What time should the child spend with each of the parties?
f)What, if any, other orders should be made in the best interest of the child?
Can the Applicant and the Third Respondent apply for parenting orders as grandparents or persons concerned with the care, welfare and development of the child?
Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The Applicant and the Third Respondent are the respective grandmothers of the children and can therefore apply for parenting orders pursuant to subparagraph (ba) of that section.
It is clear having regard to the children’s history that both the maternal and the paternal grandmothers have had a significant involvement in the care, welfare and development of the children.
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption does not apply where:
(a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
(c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
This matter, however, involves non-parents, namely grandparents. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the maternal and paternal grandmothers as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the maternal and paternal grandmothers by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …
The Full Court in Yamada & Cain [2013] FamCAFC 64 said:
19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.
…
21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …
…
25. In Donnell, the Court went on to say … [at [101] and [102]]:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. … (emphasis added)
As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
Finally, the Full Court in Yamada & Cain (supra) said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)
The Additional Considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. These proceedings were commenced prior to June 2012 and therefore the provisions of the Act as they then were prior to amendment are applicable. The relevant considerations are set out below.
(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;
E has expressed a wish to remain living with the maternal grandmother. However, given his age and apparent developmental stage, the Family Report writer recommended little weight be placed on his views. T was not interviewed because of his age and level of development and there is no evidence as to his views. The Court does not place weight upon E’s views for the same reason as noted above by the Family Report writer.
(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);
The children have an established relationship with all adults involved in the matter. The maternal grandmother was observed to have a calming influence on the children.
(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;
The parents do not appear to have a means of communicating effectively and the mother says that any attempts she has made to communicate with father in respect of the children have been met with verbal abuse. The father appears to have an unaddressed anger management problem which may impact upon his ability to effectively communicate with the mother and facilitate a relationship between the mother and the children.
In any event, it is not the parents who are primarily involved in the care of these children and the role the grandmothers have respectively played in these children’s lives is considered below under subparagraph (m) below.
(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; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Family Report writer recommends that the children continue to live with the maternal grandmother unless the Court finds that she is not meeting the children’s needs. The Court places weight upon the Family Report writer’s view that the maternal grandmother appears to be effectively meeting both children’s health, educational and developmental needs, and in particular has accessed and continues to receive funding and support services in respect of T’s autism and global developmental delay.
The Family Report writer was of the view that the paternal grandparents could be considered as potential carers if the maternal grandmother was unable to care for the children, but the Court finds no evidence to justify a change to the children’s circumstances and it is noted that the participating parties in these proceedings have agreed that this situation continue.
(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;
This is a notable issue in this case given the distance between Town A and Town B, where the children’s respective families live. The Family Report writer was of the view that substantial and significant time is not practical in this case and the Court accepts that this is so. The children have maintained a relationship with the paternal family despite only spending block and school holiday time with them, and this arrangement is envisaged to continue pursuant to the agreement of the participating parties.
It is to be noted here that this consideration specifically relates to parents, however, and therefore the Court is faced with a difficulty in respect of assessing the practicalities in the children spending time with the father when his whereabouts are unknown and he is not engaging in these proceedings.
(f) the capacity of each of the child's parents; and 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;
The parents were observed to have difficulties in focusing on both children at the one time. The mother focused her attention on E and the father focused his attention on T and interacted in an overactive way with him.
In respect of the mother, her capacity was indicative of time she is to spend with the children being in the presence of another responsible person. The Family Report writer recommended that the mother’s time continue to be supervised, by the maternal grandmother or a person nominated by her, for a number of reasons. It appears the mother’s mental health is still an issue, and it is unclear if there is an issue in respect of her current use of alcohol or drugs. The Family Report writer was of the view that the mother is “unlikely to be able to effectively meet the children’s physical and emotional needs in this case” (at [105]) and noted that T is at more risk and more vulnerable due to his autism and global developmental delay. The issue of the mother having been in violent relationships was also noted by the Family Report writer and is addressed further below.
As to the father, the Family Report writer recommended the children’s time with him be at the paternal grandparents’ home in Town B. A number of concerns were raised in respect of the father, including an unaddressed anger management problem, which may pose a physical or emotional risk to the children if the father is unable to control his anger whilst they are in his care. His current drug and alcohol use was also noted as in issue.
(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;
This matter is considered below in respect of the children’s Aboriginal heritage. T’s autism and global developmental delay has also been considered earlier in these reasons for Judgment.
(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;
Both the maternal and paternal family are of Aboriginal background. The children’s exposure to and enjoyment of their culture is being and will continue to be facilitated by both families when the children are in their respective care.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It appears that both parents, for a number of reasons, have abrogated their parental responsibilities onto their mothers. It appears that both grandmothers have played a major role in the upbringing of these children, rather than the children’s parents. It also appears, from the Family Report, that neither parent is fully appraised of T’s medical needs and that they each rely upon their mothers in this regard.
The mother has continued to spend time with the children but time has been supervised for some time because of her mental health.
The father’s commitment to the children is questionable. He has failed to continue to participate in these proceedings, his whereabouts are unknown to the other parties and to the Court and there are claims (whilst untested) that he visited the Town A area in 2013 but made no attempts to spend time with the children.
(j) & (k) family violence
There appears to have been physical and verbal violence in the parents’ relationship. The mother was convicted of assaulting the father on one occasion and the mother has been witnessed to have had bruising on her body, which she says was due to physical abuse by the father, but which he denies. The mother also reported violence in a recent but not current relationship of hers to the Family Report writer raising some concern about whether her current relationship also involves violence.
It is unclear whether the children were exposed to any family violence between their parents.
The father was recently convicted of maliciously damaging property of the paternal grandmother’s and an Apprehended Violence Order was taken out for the paternal grandmother’s protection from her son. The Family Report writer was of the view that the father may have an unaddressed anger management problem.
(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 participating parties have agreed to orders and the father has failed to actively participate in the proceedings recently. As noted above, it is in the best interests of these children for the proceedings to be finalised and not prolonged so that there is certainty in respect of their living arrangements.
(m) any other fact or circumstance that the court thinks is relevant.
As noted by the Family Report writer, “the grandparents in this family have played a major role in providing consistency of care for [the children]” (at [99]), and the children have an established relationship with them. The maternal grandmother has been the children’s primary carer for a significant part of their lives. The paternal grandparents have developed a relationship with the children when spending block and school holiday time with them.
Both grandmothers appear focused on the children’s needs and are able to meet their needs when the children are in their care.
The orders agreed to by the grandmothers, the mother and the Independent Children’s Lawyer would see a continuation of the children’s relationship with both of them.
The 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.
The Court is to balance these considerations.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The first primary consideration only applies to the parents and not to the grandmothers, but the relationship between the children and the grandmothers has been considered above in the context of the additional considerations.
The orders agreed to by the participating parties envisage the mother continuing to spend time with the children, facilitated by her mother, and this will promote their relationship continuing to develop in a protective and meaningful way.
The father has failed to participate in the proceedings recently and his commitment to the children is questionable. As noted above, he was observed to have an established relationship with the children, but the Court is unable to put in place orders to provide for the father to spend time with the children when there are many uncertainties in respect of the father. The orders proposed by the participating parties do not provide for any time between the father and the children and the Court would not be minded to make any positive orders for such time on the evidence before it. It is to be noted, however, that the proposed orders do not include a prohibitive order that the father spend no time with the children and the Court is satisfied that as the respective grandmothers are sufficiently focused on the children’s needs, they would take an appropriate position in facilitating any informal time between the father and the children in the future, subject to any risk the father may pose.
The second primary consideration is relevant in respect of the parents in this case. As noted above, both parents pose a risk of harm to the children.
In respect of the mother, it is unclear if the mother’s mental health condition is stable or not. The mother reported to the Family Consultant that her mental health was currently stable, but the subpoenaed material suggests otherwise. As noted above, her mental health caseworker in late 2013 noted that her presentation and compliance with medication was of concern. This included her not taking anti-psychotics as prescribed and overusing other prescribed medication to assist her sleep.
To the Family Report writer the mother denied recent use of cannabis or alcohol, but the subpoenaed material also suggests otherwise. Various medical professionals note that the mother reported cannabis use and excessive alcohol use in late 2013, and that her drug and alcohol use was a form of self-medication to assist her sleep.
The Family Report writer was of the view that the mother would pose a risk to the children if she were to be under the influence of excessive alcohol, cannabis or prescription drug use, or if her mental health continued to deteriorate. She was also of the view that T was more likely to be at risk and more vulnerable because of his autism and global developmental delay.
Continued supervision of the mother’s time with the children is considered protectively appropriate.
In respect of the father, as noted above, it appears he has an unaddressed anger management problem and may pose a risk to the children if he is unable to control his anger whilst they are in his care. The father’s admitted history of drug and alcohol use and unknown current use of drugs and alcohol also poses an unquantifiable risk of harm to the children.
The orders proposed by the participating parties do not include an order for the father to spend time with the children. As has been noted above, the Court is satisfied that the grandmothers would put in place protections to prevent the children from being exposed to any risk of harm if they were to facilitate any informal time between the father and the children in the future.
Who should have parental responsibility?
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as previously set out.
An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.
As this matter involves non-parents, the presumption does not apply. The issue therefore falls to be determined by considering the children’s best interests.
The Family Report writer noted that communication has been an issue between the maternal and paternal families in the past and recommends that more information be shared between them regarding the children’s health, education and developmental needs and achievements, together with each family’s parenting practises and supports involved with each family.
The participating parties seek to have equal shared parental responsibility for the children and be involved in major long-term decisions regarding various aspects of their upbringing. The Court considers that this is appropriate in this case as the grandmothers are the ones actively engaged in the care of these children and the mother continues to play a role in their lives in respect of spending time with them.
The father has failed to participate in the proceedings and none of the participating parties seek that he partake in decision-making regarding the children, and there is no evidence before the Court to consider whether he has been involved in such decisions in the past.
The issue of family violence has been dealt with above and is more currently relevant as between the father and the paternal grandmother (given the parents do not appear to come into contact or have day-to-day care of the children). However, this is not a determinative factor in respect of the issue of parental responsibility as the s 61DA presumption does not apply by virtue of the involvement of the grandparents in these proceedings. It is considered, however, in respect of the overall consideration of what is in these children’s best interests that the parties actively engaged in the care of these children should be involved in important decisions regarding their future.
Because the s 61DA presumption is not applicable, the Court need to proceed to considering the provisions set out under s 65DAA of the Act.
What orders are in the child’s best interests?
For the reasons already set out and in the circumstances of this case, the Court is satisfied that the orders proposed by the participating parties are in the best interests of these children and orders will be made accordingly.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 June 2014.
Legal Associate:
Date: 18 June 2014
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