Dale and Mills and Anor
[2009] FamCA 1068
•12 October 2009
FAMILY COURT OF AUSTRALIA
| DALE & MILLS AND ANOR | [2009] FamCA 1068 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – With whom a child spends time – With whom a child communicates FAMILY LAW – CHILDREN – Drug and alcohol use – Physical discipline – Impact of family violence |
G and C [2006] FamCA 994
APC & RM [2004] FMCAfam 56
| APPLICANT: | Ms Dale |
| 1st RESPONDENT: | Mr Mills |
| 2nd RESPONDENT: | Ms Downer |
| INDEPENDENT CHILDREN’S LAWYER: | Vandeluer Todd |
| FILE NUMBER: | CSC | 977 | of | 2007 |
| DATE DELIVERED: | 12 October 2009 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 12 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Benson |
| SOLICITOR FOR THE APPLICANT: | Cope Family Law |
| COUNSEL FOR THE 1ST RESPONDENT: |
| SOLICITOR FOR THE 1ST RESPONDENT: |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Wilson |
| SOLICITOR FOR THE 2ND RESPONDENT: | Leahmann Featherstone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Trevino |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Vandeleur Todd |
Orders
The children K born … May 1996, T born … August 1998, Y born … November 1999 and R born … October 2000 (“the children”) live with the maternal grandmother Ms Dale (“the maternal grandmother”).
The maternal grandmother have sole parental responsibility for the children.
In exercising that responsibility the grandmother will first consult with the father about any decisions she intends to make about the children’s long term care, welfare and development and will take into account any views expressed of the father and she will inform each of the parents about any decisions that she makes.
The children spend time with the father at such times as may be agreed between the father and paternal grandmother.
The children spend time with the mother only under the supervision of the maternal grandmother or such other person nominated by her or otherwise ordered by a Court exercising jurisdiction under the Family Law Act or at such times as may be agreed between the mother, paternal grandmother or a court exercising jurisdiction.
In the event that any child becomes seriously ill or suffers serious injury which requires medical treatment or hospitalisation the party having the care of the child at the relevant time shall notify the grandmother as soon as practicable of the health condition of the child, the location of the child, the details of the child’s present practitioner if known so as to enable the grandmother to communicate or attend upon the child at the medical facility or hospital.
No party shall consume alcohol to excess whilst the children are in their respective care or under their supervision and in any case shall not have a blood alcohol concentrate of exceeding 0.05% whilst the children are in their respective care or under their supervision.
No party shall expose the children to or permit the children to be in an environment where any persons committing acts of violence and in the event that the children inadvertently become exposed to violent behaviour the parties having the care of the children at the relevant times shall forthwith remove the children from such environment and otherwise ensure the children are exposed to the violence.
Without admission or a positive finding and BY CONSENT of the paternal grandmother, no party shall hit or flog the children and no party will permit any other party to hit or flog the children and the Independent Children’s Lawyer to inform the children, in person, of this order within twenty one days from today’s date.
IT IS DIRECTED
The Independent Children’s Lawyer forward to the Chief Executive of the Department of Child Safety or his/her nominee copies of the following documents within twenty eight days of today’s date:-
(a)these orders;
(b)the reasons for these orders;
(c)two family reports;
and to express to the Chief Executive of the Department of Child Safety the Court’s concern about the youngest child of the mother L, with a request that the Department investigate the circumstances of that child to ensure that she is safe and not subjected to abuse, violence or neglect.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer be discharged at the expiry of twenty eights days from today’s date.
IT IS NOTED
These proceedings were heard on an undefended basis and that neither the mother nor the father attended at the final hearing.
Written reasons will be delivered in the near future.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Dale & Mills & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 977 of 2007
| MS DALE |
Applicant
And
| MR MILLS |
First Respondent
And
| MS DOWNER |
Second Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings are about K(aged 13), T (aged 11), Y (aged 9) and R (aged 8).
Their mother is Ms Downer (“the mother”). Their maternal grandmother is Ms Dale (“the maternal grandmother”).
Mr Mills is the father (“the father”) of the three younger children and is a father figure to K.
The maternal grandmother has cared for the children for some years and wants an order that they live with her and she has parental responsibility.
The father attended interviews for the family consultant but has not engaged in these proceedings and does not seek orders but has a wish to continue his ongoing relationship with all four children. The father has re-partnered and there is a young child of that relationship.
The mother was engaged in the proceedings until recent times. The mother’s solicitors appeared at the start of the hearing and tendered letters which showed significant and consistent endeavours by them to contact the mother from
24 September 2009 to the Thursday prior to the hearing. An updated Family Report was ordered by me on 25 May 2009 and the mother was not interviewed for that Report.
Paragraphs 13 to 16 of that Report show the enormous endeavours undertaken by the family reporter to interview the mother, without success.
I gave leave for the lawyers for the mother to withdraw; I am satisfied the mother knew the proceedings were for hearing and has not engaged in that process.
I am concerned about the mother’s youngest child, L, who was born
in January 2007 and I am urging the Department of Child Safety to commence an investigation with regard to this child and to ensure that she is not being neglected by the mother or exposed to violence or abuse whilst in the mother’s care.
The children, mother and maternal grandmother are Indigenous Australians.
The mother and Independent Children’s Lawyer each provided a chronology. The Independent Children’s Lawyer relied upon the Family Reports and two affidavits of the Independent Children’s Lawyer.
The maternal grandmother relied upon an affidavit by herself sworn 22 September 2009 which provided a chilling history of the care of the children when with the mother.
BACKGROUND
The maternal grandmother is aged 54, the father is aged 43 and the mother is aged 33. The mother became the primary carer of K in May 1996. In the same year the paternal grandmother reassumed the role of primary carer for K.
As each of the children were born their care was given to the maternal grandmother by either agreement or orders of the Department of Child Safety.
The mother and father separated in December 2000 and from at least August 2001 the children lived with the maternal grandmother. Between August and December 2001 the mother had little or no communication with the children. This continued throughout 2002 and 2003. In November 2004 the mother filed an application seeking orders that the children live with her. Orders were made in April 2004 for the return of the children Y and R to the mother and final orders were made on 7 November 2005 in the Federal Magistrates Court by way of an undefended hearing that the children remaining living with the maternal grandmother.
About two years later the mother commenced proceedings in the Federal Magistrates Court and in December of that year orders were made that the children spend time with the mother for one week in December 2007 and January 2008. Since that time the mother has spent irregular and inconsistent time with the children.
The matter was listed for trial commencing 12 October 2009.
THE EVIDENCE
On the evidence before me (albeit undefended hearing) I am satisfied that the children have lived predominantly with the maternal grandmother and that the mother has irregular care of the children.
During the time the mother and father were cohabiting I am satisfied their relationship was one in which domestic violence, drug and alcohol abuse were features. As such during that time the children were exposed to violence and experienced neglect. There has been a long history of involvement of the Department of Child Safety and the children from time to time have been subject to orders by that organisation.
From the Family Report of 18 June 2008 it is clear that the mother is of the Aboriginal people of the Atherton Tablelands. The mother has a history of self hating and suicidal idealizations. It is likely that the mother was sexually abused as a child.
The mother smoked a lot of cannabis and admitted to use of speed and alcohol. She said in 2008 she was substance and alcohol free. Having regard to her actions at the present time I am not sure that is the case.
In the Family Report of 18 June 2008 the mother’s brother observed of the mother when she was pregnant with L that she went out drinking and “got the shit kicked out of her – same thing with [R]”.[1] He went on to say that “she made up stories, the stories back-fired, we confronted her and she straight out lies to your face”.[2]
[1] Paragraph 60 at page 14.
[2] Ibid.
The mother claims that she was sexually abused by her father. There is some support from that from the files from Department of Child Safety relating back to those years. The mother’s father no longer resides with the maternal grandmother and there is a question as to whether she is protective of the children. Having regard to all of the evidence I am satisfied that she is protective of the children.
Significant complaints were made about the children’s father in relation to the time with the mother. At the present time the father is in his new relationship and expressed no desire for orders contrary to that sought by the maternal grandmother. He alleged the grandmother disciplines the children. That assertion is denied. However, without admission I will be making an order that none of the adults physically discipline the children.
The maternal grandmother is a qualified nurse; she smokes cigarettes but is otherwise drug and alcohol free. She denies being aware that the mother was sexually abused as a child although she said she kept a close eye on this it could have occurred.
The maternal grandmother interacts well with the father.
In her report dated 18 June 2008 the family reporter, after interviewing the parties and other relevant and significant people, she recommended that the significant adults have shared parental responsibility and that the children remain living with the maternal grandmother.
Having regard to the evidence I am satisfied the children should reside with the maternal grandmother. I am not satisfied that the mother should have unsupervised care of the children. I am satisfied the father should have unsupervised care of the children.
In a report from the family consultant dated 30 September 2009 she recommended that the maternal grandmother and the father have shared parental responsibility, the children remain living with the paternal grandmother and spend time with their mother from time to time. She also raised issues about the use of alcohol, drugs and violence.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.
The principles set out in s60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[3] for the child. The section provides as follows:
[3] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s 61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:
Primary considerations
(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.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(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;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)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;
(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;
(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);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s 60CC(3).
The meaning of the primary considerations has been considered by Bennett J in the recent unreported decision of G and C [2006] FamCA 994 in which her Honour said:
The primary considerations
65.The primary considerations echo the first two objects set out in s60B. The primary considerations are set out in s60CC(2) of the Act described as follows:
(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.
66.This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67.The correct interpretation of s60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68.The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69.While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 [pursuant to s15AB of the Acts Interpretation Act 1901 (Cth)].
70.The arguments supporting the first possible interpretation include:
(a)Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
71.The arguments supporting the second possible interpretation include:
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
72.My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
A statement of the relevant law in relation to family violence is set out in the decision of APC & RM [2004] FMCAfam 56 where Walters FM said:-
123.Insofar as domestic or family violence is concerned, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
124. Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 68F(2) of the Family Law Act.
125.In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
126.Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
127.As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
…………………….
129.The decision in Re L was cited with approval by Mushin J in K & K (2003) FamCA 1358. His Honour commented that (Re L):
…makes it clear that the balance between the need of children with an apparently good relationship with their contact parent to have on going contact, and the effects of family violence on a family, is a very difficult balancing act for a Judge.
130.His Honour was of the view, however, that:
I need to say to (the father) that the ways in which he has acted (cause him to be) a completely inappropriate role model for his children … I need to demonstrate to (the father) that he needs to get professional assistance.
PROTECTION FROM HARM
Alcohol and drugs are significant features of the mother’s care of the children as is neglect. The children love their mother and want a relationship with her. This can only be achieved, at this stage, through supervised time. Otherwise the children will be exposed to violence, abuse and neglect.
The mother’s history of drug and alcohol difficulties display inconsistent and unpredictable behaviour and has often left the children in the care of the maternal grandmother.
The children witness the mother’s excessive alcohol use. The children report other drunk people in the mother’s home. They are not of age and maturity where they are able to deal with this.
The younger children are troubled by their mother’s behaviour and, as all children need to be protected.
Section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
K likes the time with her mother provided she is not abusing alcohol. In the Family Report K reported:-
sometimes I go to see mum but others I don’t ….
The other children seemed settled with the maternal grandmother although in 2008 they expressed a desire to be with their mother because she was more gentle and a better cook, amongst other things. However the children were animated and happy when speaking of spending time with their grandmother, they are flourishing at school. They have, in recent times, not expressed strong views but I am satisfied however at the present time they are comfortable and relaxed with remaining with the grandmother.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The maternal grandmother has shown the capacity to maintain the relationship with the children despite the difficult circumstances of the mother and the father. The children love their mother and father and provided there are protections in place (particularly with the mother) there is a benefit to the children having a continuing and meaningful relationship with her.
The children spoke strongly and affectionately of their mother in the 2008 Family Report (albeit there is a sense that some of those answers may have been coached by the mother). The primary carer of the children is the maternal grandmother.
It is important the children retain significant contact with their mother. The maternal grandmother and father seem to be operating at a level which enables the children to see him at regular intervals and have contact with him at regular intervals.
The primary carer of the children is the maternal grandmother. They have a relationship with their mother and deeply love her but have difficultly coping with her alcohol addiction and her inability to provide constant care for them.
The children love their father and enjoy spending time with him.
The children love the maternal grandmother.
The grandmother and father communicate well and the grandmother ensures the children see the father and talk to him via Skype on a regular basis.
(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 including the father’s views as to the mother’s involvement with the child
There is great conflict between the maternal grandmother and the mother. If the children were in the care of the mother I do not believe she would encourage a relationship between the children and the maternal grandmother (who has been, after all, the primary carer of the children). Whilst the maternal grandmother is not entirely enamoured with the mother I am satisfied she will promote a relationship. I am not satisfied the mother would.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If the children remain where they are there will be no significant changes to their lives. If they move to the care of the mother there are real risks that they will not attend school and that the mother’s difficult lifestyle might be limited upon them. Similarly with the father.
The order I intend to make is that the children remain with the grandmother which would provide a degree of stability for these children.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) 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;
If the children move to Atherton Tablelands as suggested by the mother, it will mean significant changes of school. The children will be able to continue the relationship with their father and be available to see their mother when circumstances are such that they can do so with safety.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The eldest daughter is 13 and has the ability to remove herself from some aspects of the mother’s alcohol abuse. At the same time she is at risk of abuse by others who stay at the mother’s home. She also risks taking on a parenting role of her younger siblings.
She is approaching puberty and she faces similar risks as K in the mother’s household. The evidence is that this child appears more emotionally affected by the mother’s behaviour and is becoming withdrawn when asked to speak.
The two boys, the younger of the children, seem particularly emotionally effected by the mother’s behaviour and inability to spend time with them on a regular basis.
(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;
The children are Aboriginal on their mother’s side. The mother and maternal grandmother are Aboriginal and the father is from New Zealand. The maternal grandmother is instrumental in offering the children an understanding of their cultural heritage.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The maternal grandmother has demonstrated responsible parenting. She has been the island of responsibility in the difficult environment these children have found themselves.
The father recognises his limitations and cares for the children in the way that he is able to do so.
The mother is caught up with alcohol and drugs and a lifestyle which she seems unable to escape. She occasionally demands the children but is not able to provide them with a stable household.
(j) any family violence involving the child or a member of the child’s family;
The mother is involved in a violent lifestyle and the children are at risk of being exposed to violence in the mother’s care. The children have been inappropriately disciplined at times and have been exposed to violent scenes.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This is not a relevant consideration in these proceedings.
(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;
Sadly the mother did not participate in these proceedings. This is the second undefended hearing. However it is the only viable option available to the children, that is, to stay with the maternal grandmother.
(m)any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
Section 60CC(4) of the Act
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The mother’s interaction with alcohol, violence and drugs is such that she has failed to fulfil her responsibility as a parent. She has not spent time with the children when she is able to, she has not engaged in these proceedings.
On 18 September 2009 the mother attended the grandmother’s home early in the morning drunk and loud. The mother was abusing alcohol when she took the children.
The father has co-operated with the grandmother in the care of the children.
The maternal grandmother has made all the major decisions about the children and their welfare and has financially supported the children.
PARENTAL RESPONSIBILITY
The first question is that of parental responsibility. The person who has had parental responsibility for the care of the children through their lives has been the maternal grandmother. The mother’s unpredictable and erratic behaviour and her use of alcohol, drugs and her lifestyle are such that she has not actively engaged in parental responsibility.
The family reporter suggested that the father might have joint parental responsibility. However his involvement with the children has been limited. Counsel for the Independent Children’s Lawyer and the maternal grandmother submit that parental responsibility should be given to grandmother and she should exercise it after consultation with the father.
I have also considered whether the Chief Executive of the Department of Child Safety should intervene in these proceedings and take a role in parental responsibility. However having read all of the material and hearing the submissions from counsel, for the maternal grandmother, and the Independent Children’s Lawyer I am satisfied, on all of the evidence that that parental responsibility should vest with the maternal grandmother.
In terms of parenting the only stable home the children have known is that of the maternal grandmother. Whilst there are some issues in terms of her care, in particular concerns about her past history of not offering sufficient protection to the mother and some of the issues raised by the children in the report of 2008 I am satisfied, on all of the evidence that the children should continue to live with the maternal grandmother.
The maternal grandmother denies that she physically disciplines the children however there is a constant theme of the children complaining about physical discipline throughout the Family Report. With the consent of the maternal grandmother (and without admission) I will be making an order that the children not be physically disciplined and putting those orders in the form which the children will understand. I will direct the Independent Children’s Lawyer to inform the children of that order so they understand the protection it offers.
In terms of the time the mother spends with the children, bearing in mind her problems with alcohol as set out in the maternal grandmother’s affidavit and the family reports, initially any time would need to be supervised. I intend to make orders to that effect. The children need to be protected from the risk of abuse, violence or exposure to that whilst in the mother’s care.
In terms of the children’s time with the father, that has been working and I am satisfied that it will work into the future without specific orders.
The issues raised by the maternal grandmother and the family reports are such that I have grave concerns for the care of L. I have directed that this judgment and relevant material be provided to the Department of Child Safety so that they can put in place some measures to protect L.
Having considered all of the facts and circumstances of this case I make orders as are set out above.
I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 12 October 2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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Remedies