Choudhary and Hailey and Ors

[2016] FamCA 924

FAMILY COURT OF AUSTRALIA

CHOUDHARY & HAILEY AND ORS [2016] FamCA 924

FAMILY LAW – CHILDREN – Undefended – With whom the children live with – With whom the children spend time – Parental responsibility – Best interests of the children – Where the paternal grandparents and paternal aunt reach agreement –Where the elder child lives with the paternal grandparents and the younger child lives with the paternal aunt – Where the father has perpetrated family violence – Where the mother is unable to protect the child from family violence – Where the father and the mother have disengaged from the proceedings – Views of the children – Nature of the children’s relationships – No contact with the father – No contact with the mother.

Choudhary & Hailey [2016] FamCA 514
G & C [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clarke (2009) 93–405; 41 Fam LR 483; [2009] FamCAFC 92

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 69ZN

Family Law Rules 2004 (Cth) r 16.07

APPLICANT: Mr Choudhary

RESPONDENT: Ms Hailey

INTERVENOR: Mr Choudhary Snr

INTERVENOR:  Ms C Choudhary

INDEPENDENT CHILDREN’S LAWYER: Mark MacDiarmid

FILE NUMBER: PAC 3292 of 2007

DATE DELIVERED: 3 November 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 4, 5, 6 ,7 April 2016 and 12 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: No Appearance

SOLICITORS FOR THE INTERVENOR: Paternal Grandparents In Person

SOLICITOR FOR THE INTERVENOR: Paternal Aunt In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark MacDiarmid

Orders

1. All prior parenting orders are hereby discharged.

2. The Intervener Mr Choudhary Snr (“the paternal grandfather”) have sole parental responsibility for the child L born … 2002 (“L”).

3. L live with the paternal grandfather.

4. The Intervener Ms J Choudhary(“the paternal aunt”) have sole parental responsibility for the child S born … 2004 (“S”).

5. S live with the paternal aunt.

6. The paternal aunt, Ms J Choudhary and Ms Kisani (“the paternal grandparents”) will do all things necessary to ensure that L and S (“the children”) spend regular time with each other.

7. The paternal grandfather and paternal aunt shall keep each other advised at all times of their residential address, email address and contact telephone number and shall advise the other within 48 hours of any change to either their residential address or telephone number.

8. The paternal grandfather and the paternal aunt shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable.

9. All parties are restrained from physically disciplining the children or from allowing any third person to do so.

10. No party shall discuss these Court proceedings with the children or show the children any document connected with these proceedings.

11. All parties are restrained from passing information or messages through the children to any other party.

12. The paternal grandparents and paternal aunt will do all things necessary (including providing the appropriate technology and ensuring it is available for use) to ensure that when the children are living in separate households they will communicate with each other electronically (and if at all possible using video technology) regularly.

13. Mr Choudhary (“the father”) spend no time with the children.

14. The father is restrained by injunction from approaching and/or making contact with the children at any place or by any means.

15. A police officer may arrest the father without warrant, pursuant to s 68C of the Family Law Act 1975, if such police officer believes on reasonable grounds that the father has, since these orders were made, breached the injunctions contained in order 14 by

    (a)causing, or threatening to cause, bodily harm to the children or either of them; or

    (b)       harassing, molesting or stalking the children or either of them;

    and it is to be taken for the purposes of this order that the injunctions in paragraph 14 relates to the personal protection of the children or either of them.

16. Ms Hailey (“the mother”) spend no time with the children.

17. The mother is restrained by injunction from approaching and/or making contact with the children at any place or by any means.

18. A police officer may arrest the mother without warrant, pursuant to s 68C of the Family Law Act 1975, if such police officer believes on reasonable grounds that the mother has, since these orders were made, breached the injunctions contained Order 17 by

    (a)Causing, or threatening to cause, bodily harm to the children or either of them; or

    (b)       Harassing, molesting or stalking the children or either of them;

    and it is to be taken for the purposes of this order that the injunctions in paragraph 17 relates to the personal protection of the children or either of them.

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 Choudhary & Hailey Ors (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 3292  of 2007

Mr Choudhary

Applicant

And

Ms Hailey

Respondent

And

Mr Chaudhary Snr
Intervenor

And

Ms C Choudhary
Intervenor:

REASONS FOR JUDGMENT

Introduction

1. A final hearing in relation to the future parenting arrangements for L who is 14 and S who is 12 was listed in April 2016.  The children’s father had by that stage not been participating in the proceedings for some time and was also disengaged from the children.  L had been living with her paternal grandparents for some time at that stage and S was then living with her mother.

2. At the April 2016 hearing significant issues of harm in the mother’s household came to light which resulted in an invitation to the Department of Family and Community Services (“Community Services”) to intervene in the proceedings.

3. On 7 April 2016 I made final orders in relation to L that she live with her paternal grandparents and that the paternal grandfather have sole responsibility for her and other associated orders.  On that date interim orders were made including that the mother have sole parental responsibility for S and that S live with the mother.  Orders were also made with respect to the children spending time with each other, for S to spend time with her paternal grandparents and for L to spend time with her mother.  Orders were also made for the children and significant adults in their lives to participate in therapeutic counselling.

4. A paternal aunt, Ms C (“the paternal aunt”) had been identified shortly before the April 2016 hearing as an appropriate person to facilitate the children’s contact with each other and family members with whom they did not live. 

5. On 11 July 2016 S left the care of her mother and placed herself in the care of the paternal aunt.  At a court event a few days later, the paternal aunt was joined as a party to the proceedings and on an interim basis orders were made for the paternal aunt to have sole parental responsibility for S and for S to live with her. 

6. On 12 October 2016 the proceedings with respect to S were listed for final hearing.  Neither of the parents appeared on that occasion.  The participating parties at this final hearing were the paternal grandparents with whom L continued to live and the paternal aunt who continued to have the care of S (“the younger child”).  The parenting arrangements for the younger child proposed by the Independent Children’s Lawyer (ICL) at this final hearing were that the paternal aunt have sole parental responsibility for the child, that the child live with her and spend time with the paternal grandparents as arranged between themselves and the paternal aunt.  The ICL also proposed orders for the children’s time with each other and that the parents spend no time with either child. 

7. The paternal grandparents and the paternal aunt agreed that the ICL’s proposal was in the best interests of the children.  All parties also agreed that the ICL’s other proposed orders including that each parent be restrained from approaching the children were in the children’s best interests.

8. This Judgment deals with the remaining orders with respect to L (“the older child”) that were not made on a final basis in April 2016 and the final parenting orders with respect to the younger child.

Background

1. My Reasons for Judgment in Choudhary & Hailey[1] delivered on 5 July 2016 (“the July 2016 Judgment”) set out in detail the background in relation to the family.  Those Reasons are incorporated in and to be read with these Reasons.

   [1] [2016] FamCA 514

2. It suffices to say for the purposes of these Reasons that the two children who are the subject to these proceedings have had a tumultuous life both prior to and after their parents’ separation.  In particular they were exposed to a highly conflictual and violent relationship between their parents and have had a number of changes in their care arrangements throughout their lives.

3. From around February 2014 the older child came to be cared for by her paternal grandfather and his partner (the “paternal grandparents”) in their home while the younger child remained in the care of her mother.

4. These proceedings were commenced by the father in the Federal Circuit Court in May 2014 and subsequently transferred to the Family Court. 

5. The family were interviewed and observed by a Family Consultant for the purpose of preparing a family report in January 2015. 

6. Although the father had initiated the proceedings, he disengaged from them in 2015.  By the time of final hearing in April 2016 the father had completely disengaged from the proceedings. 

The April 2016 hearing and Judgment

1. At the April 2016 hearing, the paternal grandparents and mother reached agreement about most matters with respect to the children’s parenting arrangements and the ICL agreed with most of the proposed orders.  The parties reached agreement that it was in the best interest of the older child to live with her paternal grandparents and that her grandfather should have sole parental responsibility for her. 

2. Orders were made on 7 April 2016 to give effect to this agreement and Reasons for those orders were contained in the July 2016 Judgment.

3. There were a number of outstanding matters upon which agreement had not been reached in April 2016 or were matters about which I expressed a concern that there was insufficient evidence to determine that the proposals were in the best interest of the children.  While some of these matters related to the older child, I also had particular concern about whether there was an unacceptable risk of harm to the younger child in the mother’s household posed by the mother’s partner with whom she resided.

4. The July 2016 Judgment deals at length with the issue of the risk of harm posed by the mother’s partner in paragraphs 32 to 49.  These paragraphs also relate to a number of other relationships the mother had previously with violent and/or controlling men.  As set out in those paragraphs, the tenor of the mother’s evidence was that although she had hoped to have a relationship with her current partner in the future she had lost hope for that relationship on the first day of the final hearing as she realised that she had to choose between losing her child and losing her partner.

5. The July 2016 Judgment also dealt with concerns about the younger child’s behaviour as she was said to have been the perpetrator of bullying at school, and other matters of risk in the mother’s household about which numerous complaints had been made to Community Services.

6. As explained in the July 2016 Judgment, after the evidence concerning the mother’s partner came to light, the mother agreed to make immediate arrangements to move herself and her children, including the younger child, from their current home and she agreed to a restraint on allowing the younger child to come into contact with her partner.

7. In general, I expressed the view in the July 2016 Judgment that there were currently significant concerns about the mother’s protective capacity.  One of the reasons that the orders with respect to the younger child were made on an interim basis was to invite Community Services to intervene in the proceedings and to monitor the mother’s engagement with services and her protective capacity.

Events following the April 2016 hearing

1. Although the balance of the proceedings that had not been resolved by final orders in April 2016 was listed for further directions on 16 August, further events occurred resulting in the proceedings being relisted on an earlier date. 

2. On 11 July 2016 the younger child left the care of her mother and placed herself in the care of the paternal aunt.  Although Community Services declined to intervene in the proceedings, officers of that Department were well aware of both the children and the younger child’s placement of herself with the paternal aunt.  Community Services officers were of the view that it was in the interests of the child’s safety, welfare and wellbeing to remain living with the paternal aunt.  The child informed officers of Community Services that she wished to remain in her aunt’s care which was described by Community Services as “a highly supportive care arrangement”.  In coming to this conclusion, interviews had been carried out with the child, paternal grandfather, mother and paternal aunt.

3. In her interview with Community Services officers, the child said that she had been subjected to verbal and physical abuse by her mother.  It also became clear that the mother had not separated from her violent and abusive partner.  Police records indicate that on 19 May 2016, the mother’s partner was charged with contravening the Apprehended Violence Order (AVO) against him for the protection of the mother when the mother and her partner were observed together at a Local Court.  It is recorded that the mother’s partner told police on that day “she’s [the mother’s] been living at my house since the day”.  This is consistent with the evidence before the court in April 2016 that notwithstanding bail conditions and an ADVO the mother and her partner continued to live together. 

4. According to police records, the child reported that the reason she left her mother’s care on 11 July 2016 was because the mother had physically assaulted her by pressing her against the wall with a handle of a hair brush held to her throat, pulling her hair, hitting her and kicking her.  It is also recorded that this caused the child to fall to the ground and that her mother then stomped on her, punched her and kicked her and that the mother’s partner intervened before the mother told the child that she had to leave.  The child then made her way to a pre–arranged meeting with the ICL. The police records indicate that although the mother’s partner apparently asked her and her other children to leave his home as a result of the incident, the mother said she still loved her partner and would no longer “fight for the custody of [the younger child]”.

5. On 15 July 2016 the paternal aunt was joined as a party to the proceedings and the earlier orders with respect to the younger child were suspended.  The paternal aunt was given sole parental responsibility for the younger child on an interim basis and the child was to live with her.  Interim orders were also made that the children spend no time with their mother and that the mother be restrained from approaching or making contact with either of them.  Orders were also made that the mother file an affidavit setting out her living arrangements and relationship with her partner from 1 April 2016, steps she had taking to comply with orders made on 7 April 2016 and any other matter she wished to raise with respect to the children.  The paternal aunt was also directed to file a Response setting out the final orders sought by her and a supporting affidavit.

6. The mother did not comply with directions for the filing of further material and did not appear on 16 August 2016 when the matters were listed for final hearing on 12 October 2016.  As both parents were disengaged with the proceedings at this stage it was noted that the hearing with respect to the parents was expected to proceed on an undefended basis. 

The October 2016 hearing

1. On 12 October 2016 neither of the parents appeared and the hearing proceeded on an undefended basis with respect to the them for the following reasons

2. As noted in the July 2016 Judgment, the father has been disengaged from these proceedings for almost two years.  His last active involvement appears to have been his attendance with a Family Consultant in January 2015, and he did not attend a second interview in March 2015.  The father did not attend procedural court events or comply with any filing directions for the April 2016 hearing or the final hearing in October 2016.  By October 2016, he had not had any contact with his extended family for some time. 

3. The mother attended and was legally represented at the April 2016 hearing.  The mother was well aware of the issues of concern in her household and that the orders with respect to the younger child were only made on an interim basis as Community Services was to be invited to intervene and the circumstances in her household were to be closely monitored.  The mother was also represented when the proceedings were relisted on 15 July at the request of the ICL as circumstances had changed and the younger child had placed herself with the paternal aunt.  On this occasion the mother must also have been well aware of directions which had previously been made but were updated concerning the filing of a further affidavit with respect to events following the April 2016 hearing.  The mother did not however, comply with these filing directions and did not appear on 16 August 2016 when the proceedings were fixed for final hearing on 12 October 2016.  On that occasion it was noted that it was anticipated to be an undefended hearing.

4. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

   (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.

5. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[2], and to the principles for the conduct of child-related proceedings[3], in my view, it was in the best interests of children for the proceedings to be finalised and dealt with in the absence of the mother and the father.

   [2] [2014] FamCAFC 14

   [3] Set out in s 69ZN of the Family Law Act 1975 (Cth).

6. The ICL ultimately set out a proposal in a Minute of Order which he contended was in the best interest of the children.  The paternal aunt, who was not legally represented, agreed that the ICL’s proposal was in the best interest of the children.  The paternal grandparents also consented to the ICL’s proposed orders. 

7. The ICL’s proposal is that the paternal aunt have sole parental responsibility for the younger child and that the child live with the paternal aunt and that the parents spend no time with her.  Under this proposal, both parents are also restrained from approaching or making contact with both children.  The ICL also proposed that the paternal aunt and paternal grandparents do all things necessary to ensure that the two children spend regular time with each other.

1. On 12 October 2016, I indicated that I intended making orders in accordance with the ICL’s proposal.

The Law and Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects 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.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations as applied to the children under s 60CC(2) are:-

   a)the benefit to the children of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. As these proceedings commenced after 7 June 2012 greater weight is to be given to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. Although the meaning of the phrase “meaningful relationship” is not defined in the Act the Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   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”.

   [4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [5] (2007) Fam LR 518

   [6] [2006] FamCA 994

2. This consideration has not been interpreted as meaning that there is a presumption that children do receive a benefit in having a meaningful relationship with both parents.  Rather the focus is on whether a meaningful or significant relationship with both parents will be of benefit to the child.

3. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

4. The Full Court continued at [122]:

   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.

5. The ICL’s proposed orders with which the remaining participating parties agree do not provide for the younger child to spend any time with either of her parents and restrain the parents from having contact with both children.  A proposal of this type must of its nature require a finding that there is no benefit to the children in having a meaningful relationship with either of their parents. 

6. So far as the children’s relationship with their father is concerned I adopt my findings in the July 2016 Judgment particularly at paragraph 85.  At that stage I noted that the father had not participated in the younger child’s life at all for some time.  The father has not participated in these proceedings for almost two years.  The father’s approach to the proceedings clearly gives rise to an inference about his attitude towards a meaningful relationship with the children.  In my view it can be taken from his lack of engagement in the proceedings that he concedes there is no benefit to the children in having a meaningful relationship with him.

7. In these circumstances I am satisfied that there is no benefit to the children in having a meaningful relationship with the father.  Given the difficult and tumultuous experience that the children have had throughout their childhood, and the fact they are now each beginning to settle in their respective households, in my view it is in their best interest to reinforce this finding by making the orders restraining the father’s contact with them on a final basis.

8. Findings with respect to the risk of harm posed by the mother to which I will come give rise to a similar finding that the children will not benefit from having a meaningful relationship with their mother.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. I am of the view that this is the most important consideration in this matter.  The general circumstances in which the children were raised are set out in paragraphs 88 and 89 of the July 2016 Judgment which is incorporated in this Judgment.

2. In paragraphs 92 and 93 of the July 2016 Judgment, I also set out the significant risk factors then present in the mother’s household.  In summary these risks are that the younger child was physically abused by the mother, and that the mother had a pattern of forming relationships with violent partners and exposing her children to family violence.  There were also risks associated with the child’s mental health which in my view were likely to be connected to her exposure to family violence and gave rise to a significant need to protect the child from psychological and physical harm when in the mother’s care. 

3. The mother was clearly on notice in the April 2016 proceedings and the July 2016 Judgment that the greatest issue of concern was her continuing relationship with her partner despite his extensive criminal history, violent conduct towards her and others and his disregard of the ADVO in place for her protection and bail conditions.

4. Events occurring since the April 2016 proceedings in my view amplify the issues of risk in the mother’s household and the need to protect the children from harm posed by her. 

5. I am satisfied as a result of the matters referred to in the July 2016 Judgment and events in July 2016 (when S left her mother’s care following an alleged assault and the mother remained in the relationship with her violent partner) that there is an unacceptable risk of physical and psychological harm if the children are to have any unsupervised contact with their mother.  This arises from a likelihood that they will be physically abused and/or exposed to or subjected to family violence in her care.  For this reason I am satisfied that the orders which provide for the mother to spend no time with the children and to be restrained from making any contact with or approaching them are in the children’s best interests.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. The views of the children given to the Family Consultant in March 2015 are set out in paragraphs 96 to 102 of the July 2016 Judgment and are adopted here. 

2. At that time the younger child expressed the view that she was happy with her mother and wished to remain in her mother’s household.  I attach no weight to this view as it is clear from events in recent months that this child is no longer happy in her mother’s household. 

3. I attach significant weight to the younger child’s view most recently expressed to the ICL that she wishes to remain in the care of her paternal aunt.  In my opinion, having regard to a letter from Community Services of 14 July 2016, this view is likely to be a reflection of the child’s experience in the care of her paternal aunt which appears to be of a very high quality and consistent with her needs.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. I adopt the findings with respect to this consideration set out in paragraphs 103 to 104 of the July 2016 Judgment.

2. I am satisfied as a result of recent events which are not disputed that the younger child currently has a fractured and damaged relationship with her mother which would take considerable therapeutic intervention to repair.  However, it can be taken from the mother’s disengagement with these proceedings and decision to focus on her relationship with her partner at the expense of her child that the mother has no intention of attempting to repair that relationship.

3. Although the paternal aunt has not been assessed by a Family Consultant, I am satisfied that over the last seven months, the younger child has developed an important relationship with her paternal aunt.  In the 14 July 2016 letter from Community Services, it is noted that “the relationship between S and [the paternal aunt] was observed by case workers to be open and transparent, with mutual respect of each other.”  In circumstances where the child has a very damaged relationship with each of her parents, I attach significant weight to the nature of her relationship with her paternal aunt in these proceedings.

4. As a result of the orders put in place to re-establish the relationship between the siblings and between the younger child and the paternal grandparents, those relationships have been developing and improving.  Both of the children have also engaged with a therapist for the purposes of repairing their sibling relationship.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the child

1. So far as the father is concerned, I adopt the finding made at paragraph 107 of the July 2016 Judgment.  So far as the mother is concerned, it is of significance that she effectively abandoned playing a role in the younger child’s life in July 2016 when there was a violent altercation and the child left her care.

Likely effect of change in the children’s circumstances

1. The orders sought by the ICL will not bring about any change in the younger child’s circumstances since July 2016 when she effectively placed herself into the care of her paternal aunt.  For the reasons given elsewhere in this Judgment, I am of the view that this child has not been detrimentally affected by separation from her mother when she moved herself to the care of her paternal aunt.  The proposed orders will formalise the reality of the child’s circumstances.

Capacity of each parent and any other person to provide for the children’s needs

Attitude to the children the responsibilities of parenthood demonstrated by each parent

1. As noted in the July 2016 Judgment, this is a significant consideration in this matter.  In particular I adopt the findings in paragraphs 116 to 118 of that Judgment which refer to the impressive capacity of the paternal aunt to meet the younger child’s needs and the lack of capacity of the mother and the father.

2. The mother’s attitude towards the younger child and towards her responsibility as a parent is particular weighty in these proceedings. 

3. The mother was clearly on notice that her pattern of engaging in relationships with violent partners and exposing her children to violence was the matter of gravest concern to the court.  Although the mother stated in the April 2016 proceedings that she had only just aware of the extent of her partner’s violent behaviour and clearly stated an intention to separate from him, all of her actions since then are inconsistent with this stated intention. 

4. The mother has quite clearly prioritised her own relationship over her care for the younger child.  It is of concern that a contact record of Community Services following the incident which led to the younger child leaving her mother’s care states that the mother had said “she was still in love with [her partner] and that she thought she would no longer fight for the custody of [the child]” and that “if [the child] was out of the picture” she could return to [her partner] “without anyone monitoring this”. 

5. I am satisfied that although each of the parents has effectively abandoned their responsibilities as a parent it is fortunate for the children that other family members have been in a position to step in in place of the parents and care for the children in a responsible and capable manner.

Maturity, sex, lifestyle and background of the child or parents

1. The children are of Country D heritage on their paternal side.  Cultures and traditions of their Country D heritage are promoted in the paternal grandparents’ and paternal aunt’s home. 

2. The younger child has experienced some psychological stress which in my view relates to exposure to family violence.  The paternal aunt is will attuned to the child’s needs and has met these needs in the last few months when the child has been in her care and is likely to do so in the future.  The child is now being raised in a stable family environment.

Family violence

1. This is a very weighty consideration with respect to the best interests of the children.

2. I adopt the findings set out in paragraphs 122 to 125 in the July 2016 Judgment with respect to the children’s exposure to family violence perpetrated by their father.  I also adopt the findings in that Judgment with respect to the younger child’s exposure to family violence in the mother’s household. 

Summary and conclusion

1. The children who are the subject of these proceedings have been exposed to significant harm as a result of their parents’ conduct throughout much of their life. 

2. The best interest considerations with respect to the older child were set out at length in the July 2016 Judgment.  Most of those findings are equally applicable to the younger child.

3. Following the April 2016 proceedings where a number of serious issues of concern in the mother’s household were raised, the circumstances for the younger child have significantly changed.  Having regard to the best interest considerations and particularly the need to protect this child from being exposed to abuse and family violence, the nature of the child ’s relationship with her paternal aunt, the paternal aunt’s capacity to provide for the children’s needs and the mother’s incapacity to protect her children and otherwise meet their needs, I am satisfied that the orders proposed by the ICL and agreed to by the remaining participating parties are in the best interests of the younger child. 

4. I am also satisfied that some of the orders with respect to the older child that were previously made on an interim basis are also in her best interest to be made on a final basis.  Other orders which were made on an interim basis to reflect the then current circumstances are no longer necessary or in the best interests of the children having regard to my findings in these Reasons.  For this reason they are discharged in these final orders.

5. Finally, as I indicated when reserving my decision, I propose consolidating the orders with respect to both children into one single set of orders which are set out at the forefront of these Reasons.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on

3 November 2016.

Associate: 

Date:  3 November 2016