Department of Family and Community Services and Carrol & Ors
[2012] FamCA 784
•29 August 2012
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & CARROL AND ORS | [2012] FamCA 784 |
| FAMILY LAW – CHILDREN – With whom a child shall live and spend time – application brought by the Department of Family and Community Services for child to live with the father – where child has been living with maternal grandparents almost since birth – current orders exist for the mother to spend only supervised time with the child – allegations that grandparents allowed the child to spend unsupervised time with the mother – allegations that child was exposed to violence during time with the mother – effect on child of separation from grandparents – some weight given to the father’s status as a parent of the child – orders made in draft form – parties have the opportunity to make submissions about the form and practicability of the orders |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61DA, 64C, 65DAA, 68P Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 s 2 and Sch 1, item 45 |
| Aldridge & Keaton (2009) FLC 93-421 |
| APPLICANT: | Director-General Department of Family and Community Services |
| 1ST RESPONDENTS: | Ms Carrol and Mr D Marshal |
| 2ND RESPONDENT: | Ms Marshal |
| 3RD RESPONDENT: | Mr Maney |
| 4TH RESPONDENT: | Mr Mitten |
| 5TH RESPONDENT: | Mr Noland |
| 6TH RESPONDENTS: | Ms Thwaite & Mr Thwaite |
| FILE NUMBER: | CAC | 2048 | of | 2007 |
| DATE DELIVERED: | 29 August 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 28 and 29 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G Moore |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor, NSW |
| COUNSEL FOR THE 1ST RESPONDENTS: | Not applicable |
| SOLICITOR FOR THE 1ST RESPONDENTS: | Ms J Gore, Galland Elder Lulham |
| COUNSEL FOR THE 2ND RESPONDENT: | Not applicable |
| SOLICITOR FOR THE 2ND RESPONDENT: | Not applicable |
| COUNSEL FOR THE 3RD RESPONDENT: | Not applicable |
| SOLICITOR FOR THE 3RD RESPONDENT: | Not applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Burgess, Legal Aid ACT |
Orders
Mr Maney, the third respondent in these proceedings (“the father”), will have sole parental responsibility for A, born … March 2007 (“the child”).
(a)Notwithstanding that the father has such sole parental responsibility he will:
(i)Advise Ms Marshal, the second respondent (“the mother”), and Ms Carrol and Mr D Marshal, the first respondents (“the grandparents”), as soon as practicable after it should occur about any medical emergency for the child;
(ii)Advise the grandparents and the mother as soon as is practicable of any serious illness or incapacity from which the child may suffer at any time and keep them advised of her prognosis and progress;
(iii)Ensure that the grandparents and the mother are informed about any medication that the child may require from time to time and provide such medication for any period where the child might be with either the grandparents or the mother;
(iv)Keep the grandparents and the mother informed about any visits by the child to any specialist medical practitioner; and
(v)Authorise any school that the child attends to provide copies of the child’s school reports and or school notices (including order forms for school photographs) to the grandparents and the mother at the request of such person and at that person’s expense.
The child will live with her father.
The child will spend time with the grandparents as follows:
(a)For up to the whole of, but not less than one half of, each of the school holidays immediately following the end of terms 1, 2 and 3 at the school the child attends. If the grandparents and the father are not able to agree about the holiday time that the child should spend with the grandparents:
(i)In respect of the holidays following the end of terms 1 and 3, the default position will be that the child will spend time with the grandparents for the whole of those school holidays; and
(ii)In respect of the holidays following the end of term 2, the default position will be that the child will spend time with the grandparents for one half of those school holidays.
(iii)For the purposes of these orders, the school holidays will be deemed to commence at 10.00 am on the first Saturday morning after the last day on which the child is required to attend school and deemed to conclude at 4.00 pm on the Sunday afternoon before the first day on which the child is required to attend school. The middle of the school holidays will be deemed to be noon on the eighth day of the school holidays counting the first day as defined in this order.
(b)During the school holidays following the end of term 4, the child will spend two weeks with her grandparents:
(i)In 2012 and every second year thereafter, such two weeks will commence at 10.00 am on the first Saturday immediately after the last day on which the child is required to attend school, and will conclude fourteen days thereafter at noon; and
(ii)In 2013, and every second year thereafter, such two weeks will commence from 10.00 am on 2 January and will conclude fourteen days thereafter at noon.
(c)For one weekend, from Friday afternoon until Sunday afternoon, in each calendar month, with the father delivering the child, or causing her to be delivered, to the grandparents’ home in Town G at the commencement of weekend time and with the grandparents delivering the child, or causing her to be delivered, to the father’s home in Town R at the conclusion of weekend time.
(i)Unless the grandparents and the father otherwise agree, the father will deliver the child to the grandparents’ home on the Friday afternoon on or before 6.00 pm and the grandparents will return the child to the father on or before 4:30 pm on the Sunday afternoon.
(ii)Unless the grandparents and the father otherwise agree, the weekend that the child spends with her grandparents will be the first weekend in any calendar month.
(iii)In May of each year, in lieu of spending time with the grandparents in accordance with Order 3(c)(ii) above, the child will spend time with the grandparents on the weekend on which Mother’s Day falls.
(iv)On Mother’s Day the grandparents will use their best endeavours to ensure, subject to any Court orders, that the child spend some time with the mother.
(v)The child’s weekend time with the grandparents in accordance with Order 3(c) is suspended during school holiday periods.
(d)The father will facilitate the child’s communication with the grandparents by telephone or Skype not less than once per week on a day and at a time to be agreed between the father and the grandparents but in default of agreement, on Thursdays between 5.00 pm and 6.00 pm.
During the weekends on which the child is with her grandparents, they, in cooperation with the mother, will do all that they reasonably can to ensure that the child will spend some time with her mother in accordance with Order 8 made on 18 August 2012.
(a)During the time that the child spends with her mother in accordance with Order 4 above, the grandparents, the mother and the sixth respondents (“the [Thwaites]”) will do all that they reasonably can, in accordance with Court orders, to ensure that B and Y are also spending time with their mother when she is spending time with the child.
(b)If at any time in any month the child is unable to spend time, for whatever reason, either with her grandparents or with her mother, then the Thwaites and the father will do all that they reasonably can to ensure that during that month the child spends some time with her brothers B and Y. In this regard, unless the parties otherwise agree, this would involve the father’s transporting the child to the Thwaites’ home and the Thwaites returning the child to the father’s home at the end of the relevant period. The time that the child spends with B and Y will be a matter for agreement between the father and the Thwaites.
Nothing in these Orders prevent the parties from reaching agreement about variations to the times of pickup or delivery, the method of pickup or delivery of the child, or the duration of the periods which the child spends with any of the parties referred to. However, in default of there being agreement for a variation, the orders set out herein are to apply and will be complied with.
The grandparents and the father keep each other informed by telephone within 48 hours about their residential address if it changes and telephone contact details if that changes.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons who produced it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person who produced it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The Independent Children's Lawyer is discharged from the proceedings upon the expiration of the appeal period.
Any interim orders previously made are discharged.
The matter be removed from the Pending Cases Inventory.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Carrol 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 CANBERRA |
FILE NUMBER: CAC 2048 of 2007
| Director-General Department of Family and Community Services |
Applicant
And
| Ms Carrol and Mr D Marshal |
1st Respondents
And
| Ms Marshal |
2nd Respondent
And
| Mr Maney |
3rd Respondent
And
| Mr Mitten |
4th Respondent
And
| Mr Noland |
5th Respondent
And
| Ms Thwaite & Mr Thwaite |
6th Respondents
REASONS FOR JUDGMENT
Introduction
This is a matter with a long history of litigation in both this Court and the Federal Magistrates Court. Previous proceedings involving these parties concerned three children – A, five years old; and her half-brothers B, about three and a half years old; and Y, almost two years old. Final parenting orders about these children were made by consent on 18 August 2011.
The current proceedings arose from two Contravention Applications, one filed by the foster parents of B and Y, Mr and Mrs Thwaite, and one filed by the children’s maternal grandparents, Ms Caroll and MR D Marshal (“the grandparents”). Those Contravention Applications were subsequently withdrawn by each of the applicants and, accordingly, dismissed by the Court.[1]
[1] Order 4 of 3 February 2012.
In light of the circumstances which gave rise to filing of those Contravention Applications, the Director-General of the Department of Family and Community Services (“the Department”) sought leave to file an Application seeking a variation of the parenting orders for all three children. Leave was granted to the Department to file that application.[2]
[2] Order 1 of 3 February 2012.
On 3 and 29 February 2012, further final parenting orders were made by consent with respect to B and Y[3] and that effectively removed the need for Mr and Ms Thwaite to participate further in the current proceedings.
[3] Orders 3 of 3 February 2012.
The fourth and fifth respondents, respectively the fathers of B and Y, have not participated in proceedings concerning these children for some time and were not active in these current proceedings. An order was made which dispensed with the requirement to serve documents relating to these proceedings on either the fourth or the fifth respondent.[4]
[4] Order 2 of 3 February 2012.
The proceedings relating to B and Y being finally resolved, the only outstanding matters with which this Judgment is concerned are the appropriate parenting orders for A (“the child”).
Orders sought by each party
The Department
The applicant in these proceedings is the Department. The Department seeks that the orders of 18 August 2011 be set aside; that the child’s father, the third respondent in these proceedings, have sole parental responsibility for the child; that the child live with the father and that she spend time with the grandparents (with whom the child currently lives) in the father’s home town for one weekend in every four from Friday afternoon until Sunday afternoon.[5] The Department also seeks an order that the father provide the mother and the grandparents with updated information about the child’s health and education at least twice a year. This is to include copies of school reports and photo order forms.[6]
[5] Application in a Case, filed on 3 February 2012, Attachment A, orders 1 to 3.
[6] Application in a Case, filed on 3 February 2012, Attachment A, order 5.
In relation to the child’s time with the mother, the second respondent, the Director-General seeks that this be for two hours each month on a weekday afternoon to coincide with the time the mother spends with B and Y. This time spent between the child and the mother shall only occur “upon the mother having completed a professional rehabilitation program agreed to by the Director General and having provided 3 months of clear urinalysis”. Six of the visits between the child and the mother shall be supervised by the Director-General or her delegate, and the other six will be supervised by an external supervision agency approved of by the Director-General and arranged and paid for by the mother or the grandparents.[7]
[7] Application in a Case, filed on 3 February 2012, Attachment A, order 4.
In support of its application, the Department relied on the affidavit of Ms A, case worker, filed on 3 February 2012; the affidavit of Mr B Thwaite filed on 1 February 2012 and the affidavit of Ms R Thwaite sworn on 2 February 2012 and handed up in Court.
The father
The father did not file a response or a minute which sets out the orders he seeks. However, on 3 February 2012, the father stated in Court that he would like orders for the child to live with him and spend time with the grandparents.[8] It appears that the father supports the orders sought by the Department.
[8] Notation 6 of 3 February 2012.
In support of the orders he seeks, the father relied upon his affidavit filed on 24 February 2012, and the affidavits of his fiancée, filed on 24 February 2012; his step-mother, filed on 27 February 2012; and his fiancée’s sister-in-law, filed on 23 February 2012.
The grandparents
The grandparents oppose the Department’s application. They seek orders for equal shared parental responsibility between themselves and the father; for the child to continue living with them; for the child to spend time with the father every fourth weekend from 5:30 pm on Friday until 5:00 pm on Sunday and for half of the school holidays with special arrangements for the Christmas holidays. The grandparents also propose that, if the father is attending the Town G area where they currently live with the child, and would like to visit the child and have provided the grandparents with a “reasonable period of notice”, the grandparents will not “unreasonably deny” the father spending extra time with the child.[9]
[9] Orders sought by grandparents, orders 1-10.
In relation to the child’s time with the mother, the grandparents propose that this be for two hours each week, supervised at a supervision centre. The grandparents also propose to facilitate two telephone calls each week between the child and the mother, with the mother to initiate those phone calls.
In the light of recent allegations that the grandparents have, in breach of current orders, permitted the mother to have unsupervised time with the child, the grandparents (in essence by way of self-protection) seek that an order be imposed that:
the maternal grandparents will only facilitate contact between the mother and [the child] as provided by these Orders and that the maternal grandparents will not permit [the mother] to attend their home…, or anywhere else they reside permanently or temporarily and that if [the mother] attends [their home] they will do all such acts and things to have her removed from their property.
The grandparents relied upon the affidavits of the grandmother filed on 29 February 2012 and 25 May 2012, and the affidavits of the grandfather filed on the same dates.
The Independent Children’s Lawyer
The Independent Children’s Lawyer, in her final submissions, submitted that there was no basis for reversing the existing orders in relation to the child. Although she canvassed the issue of the time that the child might spend with her father as being more extended than presently exists, she took the position that there was no demonstrated reason for a change and she submitted that the child was happy and settled, and had a good relationship with the father and was not suffering from trauma (as a result of spending time with her mother otherwise than in accordance with Court orders. This is explained below). She commented that, practically, the proposition for changing the child’s residence to be with the father could not be effected with the gradual transition recommended by the Family Consultant and that, essentially, if the existing situation was not broken, no attempt should be made to fix it.
The mother
When these proceedings first came before the Court on 3 February 2012, the Court was informed that the mother was in jail. The matter was adjourned to 29 February 2012 for further determination.[10] On 21 February 2012, the Court was notified by the NSW Crown Solicitor’s Officer that the mother would be remanded in custody until 7 March 2012 and arrangements were then made for the mother to attend the next Family Court event on 29 February 2012 by video link from the jail.
[10] Order 7 of 3 February 2012.
On that occasion, the mother sought that the matter be adjourned so that she could obtain legal advice. I accepted that it would be a denial of natural justice to force the mother to deal with the matter on 29 February 2012 without her having had the benefit of legal advice, and so the matter was adjourned to 28 May 2012 for the mother to obtain such advice. It was stated in the orders made on 29 February 2012 that on 28 May 2012, the issue about where the child should live would be determined.[11] A sealed copy of that order was sent to the mother on 6 March 2012 at the address provided by the assistant superintendent of the jail in which the mother was remanded.
[11] Order 3 of 29 February 2012.
When the matter came back before me on 28 May 2012 for determination, the mother was out of jail on parole and again she sought an adjournment so that she might have the opportunity to obtain legal advice.
This application was opposed by all the other parties. The Department opposed an adjournment on the ground that the current application regarding the child did not affect the child’s time with the mother. The grandparents opposed the application for adjournment because they felt it would be in the child’s best interests for the matter to be finalised. In addition, they were not legally aided and also wanted the matter finalised for financial reasons. The father opposed the application for adjournment because, like the grandparents, he felt it would be best for the matter to be finalised. He said he felt that every time this matter came before the Court, there was another adjournment.
I disagree with the Department that their application does not affect the child’s time with the mother. Under the orders of 18 August 2011, the child was to spend time with the mother for two hours each week, supervised. Although an order of 3 February 2012 restrained the grandparents from allowing the child to spend time with the mother in jail[12], that order was made on an interim basis until 29 February 2012. The Department’s application seeks to change the mother’s time with the child from once each week for two hours, to once a month for two hours. In my opinion, that drastically affects the mother’s time with the child. I do not accept that as a ground on which the mother’s application for adjournment should be refused.
[12] Order 8 of 3 February 2012.
However, I agree with the grandparents and, to some extent, with the father that it is in the child’s best interests for this matter to be finalised to enable her to have stability in her life.
The mother was previously given an opportunity to obtain legal advice. The matter was adjourned for approximately three months for that to occur. That the mother failed to get the legal advice she said she would seek is a matter for her and these proceedings should not be further delayed. It is, in my opinion, in the child’s best interests to finalise these proceedings.
For these reasons, I refused the mother’s application for adjournment.
The mother has not filed a response or minute setting out the orders she seeks nor has she filed any affidavits in these proceedings.
Background
As stated above, final orders about the child were made by consent on 18 August 2011. Those orders provided:[13]
[13] Orders 1, 4-8 of 18 August 2011.
a)The grandparents and the father would have equal shared parental responsibility for [the child];
b)[The child] would live with the grandparents;
c)Until she commences school, [the child] would spend one week in every four with the father;
d)Upon [the child] commencing school:
i)She will spend time with the father for one weekend in every three from Friday afternoon until Sunday afternoon, for 10 days in each of the term 1 and term 3 school holidays each year, for half of the term 2 school holidays and half of the end of year school holidays, with special arrangements for [the child]’s birthday, Easter and Anzac Day;
ii)She will communicate with the father by telephone or email or Skype each Wednesday at a minimum;
e)[The child] will spend time with her mother for two hours each week (except for the weeks when [the child] is due to spend time with the father) supervised by the grandfather or her maternal aunt, [Ms K Carrol], provided that the supervisor terminates the mother’s time with the child if the mother appears to be affected by alcohol or illicit drugs, uses physical punishment on the child, or becomes aggressive or abusive towards the child. [The child]’s time with the mother will not occur at the grandparents’ home, and the grandmother will not be present.
The orders of 18 August 2011 also related to B and Y. The Minister for the Department had sole parental responsibility for B and Y. B and Y were to live with Mr and Ms Thwaite and spend time with the grandparents with such time to coincide as far as possible with the times when the child is living with the grandparents. B and Y were to spend only supervised time with the mother.[14]
[14] Orders 10, 11, 13, and 17 of 18 August 2011.
In addition, the orders of 18 August 2011 restrained the mother from attending the grandparents’ home and restrained the grandparents from permitting the mother to attend at their home or the surrounds thereof.[15]
[15] Orders 21(a) and (b) of 18 August 2011.
On 16 December 2011, a Contravention Application was filed by Mr and Ms Thwaite, alleging that the grandparents had, in breach of the 18 August 2011 orders, permitted the mother to attend on their home on 20 October 2011 and 5 November 2011.
The Department alleged the grandparents contravened the 18 August 2011 orders in other ways as well. On 21 November 2011, after the two occasions on which the grandparents allegedly permitted the mother to attend their home, a case worker from the Department searched for the mother’s profile on Facebook.[16] The case worker found a number of photos of the mother with each of B, Y and the child.[17] It is suggested by the Department that some or all of these photos were taken by the mother during unsupervised time with the children.
[16] Affidavit of Ms A, [32].
[17] Affidavit of Ms A annexure ‘J’.
The case worker proceeded to interview the child on 22 November 2011. The child made disclosures during that interview which the Department suggests indicate she has spent time with the mother which was not supervised by either the grandfather or the maternal aunt. These allegedly unsupervised visits occurred at the pool and at a motel in M.[18]
[18] Affidavit of Ms A, [35].
As previously mentioned, the grandparents filed a Contravention Application against Mr and Ms Thwaite. It is not necessary to go into the detail of this application. Both contravention applications were withdrawn and further orders relating to B and Y were made by consent on 3 February 2012.
Those orders discharged order 13 of 18 August 2011 which related to the time that B and Y would spend with the grandparents. Under the orders of 3 February 2012, B and Y will spend time with the grandparents on up to six occasions each year, for up to two hours on each occasion, with such time to be subject to the supervision and direction of the Director-General or the Director-General’s nominee.[19]
[19] Orders 3(b) and (c) of 3 February 2012.
On 3 February 2012, interim orders were also made for the child to continue to live with the grandparents and for the grandparents to continue to have responsibility for the child. The grandparents were restrained from permitting or causing the child to visit the mother in jail and the matter was adjourned to 29 February for final determination, if necessary, about orders relating to the child.[20]
[20] Orders 5, 7 and 8 of 3 February 2012.
On 29 February 2012, when, the matter was again adjourned to allow the mother to seek legal advice, interim orders were made for the child: to continue to live with the grandparents; to spend time with the father every third weekend from Friday afternoon until Sunday afternoon; and for nine days during the April school holidays. The changeover point for the child’s time with the father was to be at S – a point in between Town G and Town R but not necessarily the mid-point. Otherwise, the orders of 18 August 2011 in relation to the child were to continue. By consent, it was also ordered that the mother may communicate with the child by telephone each Wednesday (other than during school holidays) between 8:30 am and 8:45 am.[21]
[21] Orders 4-9 and 11-12 of 29 February 2012.
The matter came before me for final determination on 28 May 2012 in relation to the issue of parenting orders for the child.
Relevant Law in Parenting cases
Certain provisions of the Family Law Act 1975 (Cth) (“the Act”) relating to child abuse and family violence were recently amended by the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth) (“the amending Act”). The amending Act stipulates that certain family violence amendments “only apply in relation to proceedings instituted on or after commencement.”[22] The family violence amendments did not commence until 7 June 2012.[23] These proceedings were instituted on 3 February 2012, therefore, the relevant family violence amendments do not apply to this matter.
[22] Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth), Sch 1, item 45.
[23] Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth), s 2.
When referring to “the Act” in these Reasons, I am referring to provisions of the Act as they were prior to the commencement of the family violence amendments unless otherwise indicated.
Under the Act, I am obliged, when making a parenting order, to 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.[24] In this regard, “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”[25] Hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent[26].
[24] Family Law Act 1975 (Cth), s 61DA(1).
[25] Family Law Act 1975 (Cth), s 61B.
[26] Family Law Act 1975 (Cth), s 61DA(1).
That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the parent’s family or engaged in family violence.[27] “Family violence” is defined in the Act as actual or threatened conduct towards a member of a person’s family or their property which causes that person or any other person in their family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety.[28]
[27] Family Law Act 1975 (Cth), s 61DA(2).
[28] Family Law Act 1975 (Cth), s 4.
The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child’s best interests.[29]
[29] Family Law Act 1975 (Cth), s 61DA(4).
In determining what is in the child’s best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into “primary considerations”[30] and “additional considerations”[31].
[30] Family Law Act 1975, s 60CC(2).
[31] Family Law Act 1975, s 60CC(3).
A parenting order (as defined in s 64B(1) of the Act) may be made in favour of a parent or some other person.[32]
[32] Family Law Act 1975, s 64C.
If the presumption of equal shared parental responsibility were to apply, I am obliged then to consider whether the child should spend equal time with each of the parents[33] or substantial and significant time as defined in the Act.[34] In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to the reasonable practicability of the child spending such time with each parent.[35]
[33] Family Law Act 1975 (Cth), s 65DAA(1) and 65DAA(2)
[34] Family Law Act 1975 (Cth), s 65DAA(3).
[35] Family Law Act 1975 (Cth), s 65DAA(5).
It is not normally my practice to set out the objects and principles of Part VII but I do so because of the particular significance of the use of the word ‘parent’ in different places in the Act.
Section 60B
(1)The objects of this Part 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.
(2)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).
…
The Act in its present form has been drafted with almost exclusive emphasis on a dispute between parents. In circumstances where there is a person who has been in loco parentis it may be thought that the terms (in this particular case) grandparent and parent might be interchangeable. It is unnecessary for me in the context of this matter to decide if that is so. There are, however, some areas for consideration under the Act where reference is made exclusively to parents and the Act should be so applied. The same matters can be considered in relation to grandparents under the provisions of s 60CC(3)(m) which allows the Court to take into account “any other fact or circumstance that the court thinks is relevant” and carry the same weight as other s 60CC considerations. In Aldridge and Keaton, the Full Court held that the Act does not:[36]
…direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations)…
[36] Aldridge & Keaton (2009) FLC 93-421, [74].
Consequently, I will deal with the grandparents and the father simultaneously under all of the relevant criteria set out within s 60CC of the Act.
Primary Considerations
The Act prescribes that in deciding what is in the child’s best interests I must consider, as primary considerations:
(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.
Section 60CC(2)(a)
It is not possible in this matter, at this point, to give effect to the benefit to the child of having a meaningful relationship with both of her parents. At the time of hearing, the mother had only recently been released from jail and was in the process of enrolling in a rehabilitation program. There was no evidence about the mother’s current circumstances and no application by the mother in relation to the child. The mother was not an active participant in the proceedings.
The child would benefit from a meaningful relationship with the grandparents. They have been her carers since she was a baby, the grandmother being her primary carer. The Family Consultant wrote:[37]
3.20 [The child] perceives the most number of positive feelings in the family coming from her grandmother towards her. For example, “This person in the family really understands me”, “This person in the family is kind to me”, “This person in the family likes to kiss me” and “This person in the family likes to help me with my bath”. [The child] also attributed a number of responses of parental indulgence and protection to the grandmother.
…
[5.1] [The child]’s primary attachment relationship is with her grandmother. This means that [the child] has experienced her grandmother as the person who has predictably and regularly met her needs during the critical period, …during the first 4 years of life.
[37] Exhibit J1, [3.20] and [5.1].
The child would also benefit from a meaningful relationship with the father. The Family Consultant observed the relationship between them to be “close, comfortable and mutually joyful.”[38]
[38] Exhibit J1, [3.11].
Section 60CC(2)(b)
It is suggested by the Director-General that if the child were to remain in the care of her grandparents, they may not be able to ensure that she spends only supervised time with her mother. To that extent, it might be thought that might expose the child in some way to some form of physical or psychological harm.
This is a difficult matter because there is some controversy, which cannot adequately be resolved on the evidence, about the extent to which being with the mother unsupervised would expose the child to risk. It is true that the mother has had a difficult life - to put it at its most neutral. There have been incidents which, if they were found to have been proved, involve a violent act (such as the kicking in of a motel door).
The Department alleges that the mother attended on the grandparents’ home on 21 October 2011 and 5 November 2011 while the child, B and Y were present and that the grandparents did not immediately take action to get the mother to leave the premises.[39] There are also photos of the mother with the children which the Department alleged were taken during time the mother spent with the children in breach of Court orders.[40] The grandmother deposes to a number of occasions where the mother has approached her home, smashed windows and asked for money. Those occasions are described at paragraphs 160 to 169 of her affidavit filed on 29 February 2012.
[39] Affidavit of Ms A, [28], [29], [38]
[40] Affidavit of Ms A, annexure ‘J’.
It is also alleged that the mother has spent unsupervised time with the child in a hotel in Town G. In an interview between a case worker and the manager of the local hotel, the manager asserted that he had seen the child at the hotel “regularly”, but could not confirm whether the child stayed at the hotel overnight. The manager also said there was a man in his “mid to late 30s” who sometimes went to the hotel with the mother and that this is “the man [the mother] always fights with.” He said also there was an incident where the mother’s hotel door was kicked in. [41]
[41] Affidavit of Ms A, [41].
In an interview between the child and a case worker, the following was said:
[The child] said: I had a sleep over in [M] too in a cabin…
[Case worker] said: Was there anyone else there, no one else or something else?
[The child] said: Yeah we was with [Mr C] …
[Case worker] said: …When were you [sic] in [M] with mum and [Mr C], was anyone else there?
[The child] said: No. Just me, mum and [Mr C]. Next time I’m going to sleep at my mum’s hotel but I can’t now coz the door’s kicked in and my mum has to sleep in her car…
It is not clear from what the child is alleged to have said above whether she was in fact present when the door was kicked in or whether this was related to her at a later point. In any event, if the child was present during such incidents involving the mother, the extent to which such incidents may have a direct or indirect effect on the child was not explored by any expert.
In a conversation between the father and a case worker from the Department, the father said:[42]
[The child] has told me that she spent 3 nights down the coast with [the mother] and [Mr C]. She’s said that she’s met [Mr C] and he spits everywhere and punches [the mother]. She’s also said that [the mother] and [Mr C] fight and [Mr C] smashed the TV, that [the mother] went to [the grandmother’s] house and the Police came and took her away and that [the mother] came back to the house. [The child], as she was telling me this, then clicked her fingers, mimicking [the mother] and said, “where’s my money, bitch?” to [the grandmother].
[42] Affidavit of Ms A, [42].
I am unable to make a specific finding about what actually occurred between the mother and [Mr C] and whether or not the child was there when it happened. The evidence about this matter is indirect and there is not much of it. Again, the extent to which such incidents may have had a direct or indirect effect on the child was not explored by any expert.
The mother’s behaviour at the grandparents’ home has been violent and the mother has also been involved in violent situations which appear to have been instigated by certain men she socialises with. If the child were to spend time with the mother, there may be some risk that the child would be exposed to physical or psychological harm.
On the evidence, the grandparents were either unable to prevent the child spending unsupervised time with her mother, or were complicit in her spending unsupervised time with her mother, or were being inattentive during periods of supervision thereby allowing the child to spend unsupervised time with her mother. None of these possibilities are to their credit.
The allegations were the subject of a Contravention Application and although that has been withdrawn, there was evidence which would allow a finding that at least one of the possibilities mentioned above was applicable. This evidence may not have been enough to satisfy me to the requisite standard to establish an intentional breach of the Act without a reasonable excuse, but it nevertheless indicates, as counsel for the Director-General has suggested, that there is a risk that if the child remains with the grandparents they may be unable to prevent the child spending time with her mother otherwise than in accordance with the orders of the Court.
Caution is wise. The future to some extent lies in the hands of the mother. If she is able properly to rehabilitate herself and to make an application to the Court she may then be able to demonstrate that the child’s best interests would be served by her spending more time with her mother. That would and should be determined in the context of the application and the evidence adduced to support it.
The mother has been suggesting for some time now that she would be attending rehabilitation imminently. I hope that this has now occurred. She had not done so at the time of the finalisation of proceedings before me.
If the child were to be living with her father the opportunities for an unauthorised intervention by the mother would be reduced but not eliminated.
As I expressed before, the mother is, under current orders, precluded from spending time with the child at the grandparents’ home. In light of the allegations by the Department that the grandparents have allowed the mother to attend on their home and spend time with the child and the other children outside the parameters provided by Court orders, the grandparents have stated that they will comply with Court orders. The grandfather specifically said, “If [the mother] turns up at home I will tell her to leave, and if she does not leave immediately I will call the police.”[43] The grandmother similarly promises that “[she] will not permit [the mother] to attend [her] home… or anywhere else [she] is staying from time to time. If [the mother] attends [her] home… or anywhere else [she] is staying [she] will do whatever [she] need[s] to have her removed including calling the police.”[44]
[43] Grandfather’s affidavit, filed on 29 Febraury 2012, [43].
[44] Grandmother’s affidavit, filed on 25 May 2012, [4].
I accept that the grandparents are sincere in these undertakings. However, I also sympathise with the grandfather’s sentiments when he said “am I supposed to just turn her away” when referring to the mother turning up at their home with bruises on her face after being “flogged” by [Mr C].[45]
[45] Affidavit of Ms A [38(d)].
Although the grandparents may use their best endeavours to keep the mother away from their home, that is no indication about what the mother may do. The grandparents have no control over the mother if she decides to go to their home, unannounced, seeking to spend time with the child. The grandmother states “[The mother is an adult now and her behaviour is out of my control. My priority is to my young children and grandchildren and in particular [K] [her youngest son aged eight years old][46] and [the child], as I am their primary carer.”[47]
[46] K is the grandmother’s youngest son and, therefore, the child’s uncle. However, K is aged only about eight years old and so the child regards him more as a brother than an uncle.
[47] Grandmother’s affidavit, filed on 29 February 2012, [105].
The Department’s suggestion that the grandparents spend time with the child in Town R rather than in Town G is perhaps to designed to reduce the risk of the mother turning up during the grandparents’ time with the child. However, that proposal carries with it a number of disadvantages, not the least of which would be that the child would then not regularly see her brothers – if at all.
To the extent that I give some weight to this consideration, I determine that there would be some greater risk for the child if she were living with her grandparents that she would unauthorisedly spend time with her mother.
If the child were to be living with her father the opportunities for an unauthorised intervention by the mother would likely be less than the opportunities if the child were to be living with the grandparents.
Section 60CC(3)(a)
The child is, in the words of the Family Consultant “a gregarious little girl with an engaging personality. … She separated from her grandparents readily, when they accompanied her and also from her father when he brought her to the office.”[48]
[48] Exhibit J1, [3.1]
This I understand to mean that she is a child who is confident in the adults looking after her to the extent that she knows that they will return to collect her and she is secure to engage with third persons.
The comments from the child to the case workers from the Department do not demonstrate a high level of maturity. However, the child is only about five years of age and her speech and actions appear to be consistent with the development of a child of her age. I do not place great weight on any views expressed by the child.
Section 60CC(3)(b)
The child’s primary attachment relationship is with the grandmother. The Family Consultant expresses her view that the child’s primary attachment relationship:
will remain a significant relationship for her throughout her growth and development. However, her current development does not depend on this relationship to the extent that it has during her first 4 years of life. The world of a 5 year old is much bigger and more under their control than that of a child of 4 years and under.[49]
[49] Exhibit J1, [5.3]
And the Family Consultant also says:
In the event that [the child] was relocated to her father’s care she would require an experience of him consistently and predictably meeting her needs before she would achieve the level of security that she experiences with her grandmother. From the information gained in the process of this report there is reason to consider that the father is able to meet his daughters needs and provide her with emotional security. [50]
[50] Exhibit J1, [5.4].
The child has expressed positive feelings towards both the grandmother and the father, as indicated above. The child identified the grandparents, the father, Y, B and K as members of her family.[51] The child said of her father, “[m]y Dad did [my hair]. He’s always doing a good job.”[52] The child identified the father’s fiancée as the person who helps her dress in her father’s home and who cooks dinner for her.[53]
[51] Exhibit J1, [3.18].
[52] Exhibit J1, [3.14].
[53] Exhibit J1, [3.9].
The Family Consultant’s opinions about the child’s primary attachments and the father’s ability to meet the child’s needs would seem to be consistent with the positive views the child expresses about both her father and his fiancée and their home, and the environment in which she lives with her grandparents in Town G. It is also consistent with the grandmother’s evidence that she has been the child’s primary carer, and with the father’s evidence that he has changed his life and is now prepared to have the child live with him.
It follows from the evidence and the various reports that the child has an appropriate relationship both with her grandparents, her father and her father’s fiancée. The extent to which she has a relationship with K is not extensively examined in the material but it seems that it is a close and loving relationship in which she regards K more as a brother than as an uncle.[54] She appears to enjoy at least some contact with her wider family in both Town G and Town R.
[54] Exhibit J1, [3.19].
I think the evidence of her relationship with her mother is both sad and equivocal. There are moments of joy and it is in the circumstances, delightful, that the child carries with her happy thoughts of her mother: “My Mum […]. She’s a beautiful one. She’s a good girl. She’s missing me. She’s in jail because she’s been at my house looking for me.”[55] and “Mum’s nice”.[56]
[55] Exhibit J1, [3.5].
[56] Exhibit J1, [3.16].
Sadly for the child it is unlikely that in the immediate future she will be able to build on these happy memories with her mother except in the limited circumstances set out in the orders that have been made.
While the relationship of the child with her grandparents is a strong one (particularly with her grandmother), the nature of her relationships with both her father and her grandparents is not such as to provide a basis for differentiating between them for the purposes of my decision.
Section 60CC(3)(c)
The evidence indicates that the grandparents and the father have been able to co-operate in ensuring that the child has a relationship with each of them and the grandparents have facilitated the child’s spending time with the father.[57] For example:[58]
After 16 April 2010 [the father] and I decided to vary the time [the father] spent with [the child] so there was less travelling for [the child], [the father] and I. Our variation also meant [the father] had increased time with [the child]. We changed it from every second weekend to every third weekend and [the child] stayed 7 days with [the father]. This change was approved by [the Department].
[57] Grandmother’s affidavit, filed on 29 February 2012, [29] to [40].
[58] Grandmother’s affidavit, filed on 29 February 2012, [36].
The grandparents and the father both report a friendly relationship with each other. They are able to communicate with each other and negotiate arrangements for the child.[59]
[59] Exhibit J1, [2.3].
The grandfather has communicated with the father with “no problems or conflict”. He believes they need to have a “good relationship” and that he and the grandmother “make [the father] and [his fiancée] feel welcome when they attend [the grandparents’] home.”[60]
[60]Grandfather’s affidavit, filed on 29 February 2012, [44].
The grandparents and the father both agree that the child should have a significant relationship with each of them.[61]
[61] Exhibit J1, [2.1].
I am therefore satisfied that the grandparents and the father are each willing and able to facilitate and encourage a close, loving relationship between the child and the other.
Section 60CC(3)(d)
If the child were to go to live with her father, that change in her circumstances would have an effect on her because of her separation from the people who are important to her life in Town G.
The Family Consultant identified that the child’s primary attachment was to her grandmother.[62] However, the Family Consultant also pointed out that the child’s current development at the age of five years does not depend on this primary attachment relationship as much as it did when the child was four years old. This is because the child’s world now as a five year old is “much bigger and more under [her] control than that of a child of [four] years and under.”[63]
[62] Exhibit J1, [5.1].
[63] Exhibit J1, [5.3].
The Family Consultant suggests that, if the child starts living with her father. She may be able to achieve the same level of security that she experiences with her grandmother if she has a similar experience with the father consistently and predictably meeting her needs. From her observation of the father, the Family Consultant believes there is reason to consider that the father is able to do this and also to provide the child with emotional security.[64]
[64] Exhibit J1, [5.4].
It would, therefore, seem that while there may be some uncertainties and perhaps some difficulties that may arise as a result of a change in the child’s living circumstances, those may be overcome by the father’s consistently and predictably meeting the child’s needs.
I accept the Family Consultant’s evidence that there is reason to consider the father is able to do this. That evidence is consistent with my conclusions about the father based on his evidence. He appears to have established a stable life with his fiancée and he expresses a commitment to caring for his daughter. He said to the Family Consultant that he would “drop everything” if the child needed him.[65]
[65] Exhibit J1, [2.6].
The grandmother gives evidence about some occasions in recent times when the father has not exercised his time with the child.[66] The grandmother’s evidence was that the father had not seen the child since 29 February 2012. The father provided an explanation for some of these occasions, saying that his work roster had changed or he could not take any more time off work.[67] At the commencement of proceedings, the father also indicated that he had been suffering from pneumonia. While there can be no doubt the father did not see the child on a completely regular basis during this period, I am not satisfied that the father’s failure to see the child in the circumstances, is in some way, a disqualifying factor.
[66] Grandmother’s affidavit, filed on 25 May 2012, [10]-[27].
[67] Father’s affidavit, [13], [17], and [19].
The Family Consultant also recommended that if there were to be a change such that the child would live with the father, “a slow and planned transition period” would be required.[68] This will allow the child to slowly develop her relationship with the father so that she can feel safe when primarily living with him and know that she can depend on him to meet her needs.[69] Moving to live with the father may be emotionally difficult for the child and may result in detrimental psychological impacts on her.[70]
[68] Exhibit J1, [6.1].
[69] Final hearing, 28 May 2012, approximately 4:02pm.
[70] Final hearing, 28 May 2012, approximately 4:15pm.
While noting the benefits of a slow transition period, the Family Consultant also recognised that such a transition would be difficult because of the distance between the homes of the grandparents and the father.[71] However, she also says that if the child were to live with the father, she would need to spend regular time with the grandparents, K and her family in Town G. Likewise, if she lived with the grandparents, she would need to spend regular time with the father.[72]
[71] Exhibit J1, [6.1].
[72] Exhibit J1, [6.2].
The Family Consultant also said that if the child were to live with the father, this would require a high level of cooperation between the grandparents and the father. If the significant adults in the child’s life provide her with the “certainty of their convictions” about her changing living arrangements, then the child is more likely to feel comfortable and confident about those changes herself.[73]
[73] Exhibit J1, [6.1].
Based on this evidence, it would seem that if the child were to live with the father, significant time with her grandparents in Town G and a high level of cooperation between the grandparents and the father would assist the child in dealing with the transition. This should, of course, be combined with the father being available to meet the child’s needs so that she feels secure.[74]
[74] Exhibit J1, [5.4].
Under the current orders, the child should spend time with the mother for two hours each week. The grandparents propose that the child spend time with the mother, supervised at a supervision centre, for two hours each week. The Director-General, with whose orders the father appears to agree, proposes that the child spend time with the mother for two hours once a month. Thus it would appear that if the child were to live with her father, she may not get to spend as much time with her mother although it is contemplated that she would spend time with her mother when she also might spend time with her brothers B and Y.
I do not regard the possible, though not probable, diminution of her time with her mother if she were living with her father as being of particular significance in my determination in this matter.
Section 60CC(3)(e)
Whether the child lives with her grandparents or her father, there will be some difficulties and expense in her spending time with the other that may interfere with her right to maintain a personal relationship and direct contact with them on a regular basis. The distance between the grandparents’ and the father’s homes mean long drives for the child (approximately three hours one way) to spend time with one or the other. This, in turn, will necessarily mean the parties will need to spend money on petrol.
Section 60CC(3)(f)
Each of the father and the grandparents, it appears, has the capacity to provide for the child’s emotional and intellectual needs.
The grandparents have been caring for the child almost since her birth. She is a “gregarious little girl with an engaging personality.” The Family Consultant also observed her to have “good speech and language”[75] and these positive comments are consistent with the positive comments made by the child’s teachers in her school report:[76]
She is working well and making pleasing progress across the curriculum… [the child] is a happy, healthy and settled Kindergarten student who always comes to school looking great in her school uniform and ready to participate all [sic] the activities that await in the day ahead. She is a delightful class member.
[75] Exhibit J1, [3.1].
[76] Grandmother’s affidavit, filed on 29 February 2012, annexure A.
The grandmother is capable of providing for the child’s health needs. The evidence indicates that she has taken the child to the appropriate medical practitioners after being diagnosed with a respiratory problem and took the child to an occupational therapist after observing that the child was “clumsy on her feet”.[77]
[77] Grandmother’s affidavit, filed on 29 February 2012, [86]-[91].
Credit should be given to the grandparents for the child’s development to date and I am satisfied that they are capable of providing for the child’s needs.
I am also satisfied that the father is able to provide for the child’s needs. His evidence indicates that he understands the child’s physical needs, he describes his rental accommodation as having a bedroom for the child, a back yard with a play area for her, and toys.[78] While there have been complaints made by the grandmother that the child returns from the father’s care with mosquito bites, that the father and his fiancée improperly treated the child’s urinary tract infection and that they have bees in their home, I do not place significant weight on these matters. Mosquito bites can happen to any child. The father’s and his fiancee’s treatment of urinary tract infection has not been shown to be a consequence of negligence and may simply be a result of inexperience.
[78] Father’s affidavit, [5] and [6].
The father displays an understanding of the child’s educational needs.[79] Moreover, the father displays insight into the child’s emotions if she were to move to live with him and this demonstrates a capacity to provide for the child’s emotional needs:[80]
[The child]’s father understands that [the child]’s emotional and physical security is of paramount importance if [the child] is to develop optimally. …He stresses the importance of [the child] feeling emotionally secure and believes that he is better able to provide her with this, throughout her growing up. He acknowledges that it will be a transition for her, in the event that she was to move to live with him. “It would be a big re-shuffle for her. There’s a large number of family in [Town O]. We [the father and his fiancée] both work full-time and there’s no children in the household. We are a close unit. It will change for her. I understand what it is like to change your behaviour”.
[79] Father’s affidavit, [23] and [24].
[80] Exhibit J1, [4.2].
The father works in accordance with a roster. It is clear from the evidence that when he does work, the father’s fiancée is involved in the child’s care[81]. The grandmother believes that the father’s fiancée is the “primary carer” for the child when she is with the father because the child regularly talks about the father’s fiancée feeding her, cleaning her and playing with her more often than she refers to the father doing such things.[82] I cannot make a finding about whether the father’s fiancée is more involved in the child’s care than he is. But, the grandmother’s comment satisfies me that the father’s fiancée is involved in the child’s care to the extent that she would be able to provide for the child’s care should the father be unavailable. In further support of this, the child reported to the Family Consultant that it was the father’s fiancée who “gets [her] clothes” and cooks dinner at the father’s home.[83]
[81] Affidavit of the father’s fiancée, [6] and [8].
[82] Grandmother’s affidavit, filed on 29 February 2012, [65].
[83] Exhibit J1, [3.9].
The father will also have the support of extended family to assist in caring for the child when he and his fiancée are not available.[84]
[84] Paternal grandmother’s affidavit and affidavit of Ms L.
I might have had more evidence about the father’s ability to contribute to the child’s financial support and any reasons he may have had for not doing so. None of the evidence I have before me enables me to make a finding about the father’s financial ability to meet the needs of the child. However, both he and his fiancée are engaged in employment and I infer from that they are capable of financially providing for the child’s needs, as are the grandparents.
S 60CC(3)(g)
The child has had an unusual lifestyle and background – she has siblings from various fathers, has an uncle as a brother (de facto) and has lived a somewhat odd lifestyle during her short time thus far on earth. These are factors which would lead me to determine that there should be a clear cut and secure decision for her in the future. It does not necessarily require that I should favour her living either with her grandparents or her father.
S 60CC(3)(h)
The child is not an Aboriginal or Torres Strait Islander child.
S 60CC(3)(i)
I have made mention previously about the attitude of the father in relation to his responsibilities of parenthood and I have nothing to add.
The comments I have made as to the possible lapse in responsibility by the grandparents are factors which could properly be brought into account as previously referred to.
S 60CC(3)(j)
I have discussed issues relating to violence involving the mother’s friend(s) above and I have nothing to add in relation to the issue of family violence.
S 60CC(3)(k)
There is an apprehended violence order (AVO) currently in place against the mother for the protection of the grandmother.[85] That AVO is due to expire on 30 November 2013. The AVO contains the usual orders and also an additional order that the mother must not enter the premises at which the grandmother may from time to time reside or work.
[85] Grandmother’s affidavit, filed on 29 February 2012, annexure D.
The terms of this AVO are not inconsistent with the parenting orders regarding the child’s time with the mother.[86]
[86] Family Law Act 1975 (Cth), s 68P.
The relationship between the grandparents and the father has remained, curiously, reasonably amicable all the way through these proceedings, notwithstanding that they have not always had the same interests.
I place no particular weight on issues of violence in making my determination.
S 60CC(3)(l)
The Act finally requires specifically that I should consider 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. Any such order in this matter may be an expression of hope rather than of expectation.
The seriously disrupted and dysfunctional nature of the lives of some of the people involved in the child’s life, particularly the mother’s, means it may be likely that the Court may need to intervene again at some point. I accept that this is undesirable, especially because the child has already been the subject of litigation since 2007, but to some extent it is inevitable. Nevertheless I am satisfied that the orders I have made are at the present time orders which are the least likely to lead to the institution of further proceedings.
S 60CC(4)
I have commented above about the opportunities taken by the father and the grandparents to participate in the child’s life, to accept responsibilities as a parent or as a person in loco parentis, the way they have facilitated time between the child and each of them and the way they have fulfilled the parent’s obligation to maintain the child. The considerations stipulated in s 60CC(4) do not require any further or separate comment.
Parental Responsibility
The presumption is that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. [87] In this matter it has never been suggested in the current proceedings that parental responsibility should be shared between the child’s mother and her father. It is not a case where that responsibility could be shared between the mother and father, particularly given the mother’s circumstances at the time of final hearing and prior to that. The presumption is rebutted on the basis that it would not be in the child’s best interests for her parents to share parental responsibility.
[87] Family Law Act 1975 (Cth), s 61DA(1).
There is no presumption of equal shared parental responsibility between the father and grandparents; the Act specifically states “parents”[88]. Aldridge & Keaton[89] is not authority for simply replacing the word “parent” in the Act with caregiver. Even if there were such a presumption which could be applied to grandparents or caregivers, in my opinion that presumption would be rebutted in this case. Certainty for the child is important. If she is in the father’s primary care, he should also have sole parental responsibility (noting that the word is “parental”). That does not mean the grandparents should be excluded from the child’s life – not at all – but the father should, in the child’s best interests, be the primary decision maker.
[88] See also Aldridge & Keaton (2009) FLC 93-421, [62].
[89] (2009) FLC 93-421.
Equally there is no demonstrated case in this matter for the grandparents and the father to spend equal shared time. Such an arrangement could not be practicable when the child attends school given the distance between the grandparents and the father. And, this is not a matter in which an order could be made for the child to spend substantial and significant time[90] with either the father or the grandparents if she were to be in the primary care of the other party.
[90] Family Law Act 1975 (Cth), s 65DAA(3).
Parenting Orders
I am asked to make a parenting order and, in accordance with s 60CA, “[i]n 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.
I have reminded myself of this particular provision because it is hard not to be sympathetic to the claims by the father and the grandparents that it would not be fair if the child were not to live with each of them respectively. The father might reasonably ask what more could he do to demonstrate his willingness to accept his responsibilities as a parent, and the grandparents might equally reply by saying what else could they do to demonstrate their commitment to the child than the five years they have spent looking after her and being, for all practical purposes, her parents.
In this regard I am conscious of the fact that, while the best interests of the child must remain my paramount consideration, that does not exclude the interests of either the father or the grandparents.
Since I have found that there should not be equal shared parental responsibility, there is no need to consider whether the child should spend equal or substantial and significant time with the grandparents and the father.[91]
[91] Family Law Act 1975 (Cth), s 65DAA(1).
The orders I propose which are identified at the start of this judgment hereafter are, at this point, draft insofar as the precise terms of the orders have not been the subject of proper consideration by any of the parties. The father’s position was essentially to adopt the proposals of the Director-General without necessarily putting forward his own ideas about the sort of time that the child could reasonably spend with the grandparents, or with her mother, (except in the very limited circumstances proposed by the Director-General in Town R).
I therefore propose that the parties should notify the Court about any changes they propose to the orders, only in so far as those changes relate to the form of the orders rather than the substance, within 7 days. If the Court receives no such notification, I will make the orders as final orders.
With whom the child should live
This matter and the decision I need to make have caused me to do a lot of soul searching. I am faced with a dilemma and in the end there are reasons for making a decision in favour for each of those seeking to be the primary carer of the child. As well, there are negative matters relating to each of the grandparents and the father.
If both the father and the grandparents lived in the same town, this would be a matter in which it would be desirable and practicable for the child to live with each on a week about basis, or live with one and spend substantial time with the other. In such circumstances, it may be that because of her long connexion with her grandparents, the child might spend more time initially with her grandparents; but it may also be likely that she might finish up spending most of her time with her father and his new family as she moves into puberty in some years’ time. But, this is not to be. The grandparents and the father live approximately three hours’ drive apart. An arrangement of equal time or substantial and significant time (as that term is defined under the Act[92]) is not practicable. Not only that, for the child to spend substantial and significant time with her grandparents and her father would also be impracticable because of the child’s need to have some certainty and predictability in her life, and because of the transport difficulties associated with her moving between Town G where the grandparents live, and Town R where the father lives. I indicate briefly that it has not been suggested that the child should spend equal time or substantial and significant time with her grandmother and father.
[92] Family Law Act 1975 (Cth), s 65DAA(3).
In determining this particular aspect I, of course, take into account the matters discussed under s 60CC.
On the one hand, the child has spent the whole of her life, from the time when she was but a few months old until the present time, in the care of her grandparents. The fact that she has, would ordinarily suggest that her stability and wellbeing would be better served by her remaining in that environment. The child has a close relationship with her de facto brother K and would have formed friendship networks in her school. The grandparents, as discussed above, are capable of providing for the child’s needs and they should be commended for their dedicated efforts in accepting the responsibility of looking after the child when the father could not because he was dealing with drug addiction and ensuing issues.[93]
[93] Exhibit J1, [1.5].
On the other hand, the father is also quite capable of providing for the child’s needs. The father has done much to rehabilitate himself. He has been in a relationship for four and a half years, he has been in steady employment[94] and, as he submitted to me, he has done everything he can to be a better father. He has travelled to and from Town G to visit the child nearly as often as he reasonably could. The father has his fiancée, mother and his sister in-law and a group of friends who would be supportive of him in his care of the child.[95]
[94] Father’s affidavit, [2] and [3].
[95] Father’s affidavit, [13]; Paternal grandmother’s affidavit; Affidavit of Ms L.
I am satisfied that the environment in which she will live with her father and his fiancée will be a loving and supportive one. The father’s relationship with his fiancée is now of four and a half years duration and this indicates a level of commitment which is commendable. The father’s attention to his work is a distraction to some extent because as a shift worker, he will not be able to spend the same regular time with the child as would be the case with someone who was not on shift work. However, there is no test or criterion that occupations must necessarily determine who should care for a child. There are many intact families in which the parents or one of them have jobs which for one reason or another preclude them from as much engagement with their children as they wish to have.
There is an advantage, although not an overbearing one, that the child will be with a younger parent who will be available and closer to her age as she grows up who can participate in her activities. I accept that the environment in which she will be living in Town R will be a supportive one.
While the grandparents have much more experience in caring for children than the father does, I do not regard that as a factor which would favour the grandparents in this case. All first-time parents are inexperienced, it should not be a matter which would preclude them from having children live with them.
Taking into account my consideration of s 60CC(2)(b) above, in my opinion the opportunities for the child to spend unsupervised time with the mother would be more limited with the father than with the grandparents. I remain concerned to some extent, that if the child were to be living with the grandparents in Town G there is an added risk that the child may be inappropriately exposed to time with her mother. This may operate to her detriment. I have indicated I do not regard this as a serious risk but it is nevertheless a risk that I should properly take into account.
I also consider that it is important that the child should have the opportunity to develop a father-daughter relationship with her father and a grandchild relationship with her grandparents. At the moment, the child appears to be confused about the roles of the people in her family[96].
[96] Exhibit J1, [2.10].
Taking all these matters into account, it is clear that there are few, if any, strongly differentiating factors between the two proposals as to where the child might live. On balance, I believe that it would be in the child’s best interests to live with the father.
In coming to this decision, I am conscious of the fact that I cannot implement the suggestion from the Family Consultant that the transition should be one accomplished slowly and gradually. Given, the distance between the parties’ homes, any decision I make really must have application almost immediately.
I acknowledge the Family Consultant’s evidence that a slow transition will help the child feel comfortable and confident about the significant change in moving to live with the father. However, I also note the Family Consultant’s evidence that the child will also be assisted in managing the change in her life if the significant adults are supportive and provide her with certainty about that change. She will also be assisted by spending regular time with the grandparents, K and other extended family in Town G. To the extent that the “significant adults” will be supportive and provide the child with certainty, I am satisfied the father and the grandparents are capable of implementing this change in the child’s residence amicably for the reasons set out above in s 60CC(3)(c). In relation to the child’s spending regular time with significant people in Town G, I propose to make orders which will allow for this to occur.
I am conscious of the fact that the decision I have arrived at is not consistent with the recommendations or submissions of the Independent Children’s Lawyer. The involvement of an experienced Independent Children’s Lawyer like Ms Burgess and the recommendations she makes are invariably of great assistance in matters relating to children, particularly the difficult ones that seem to frequently come before me.
After careful consideration of this matter, I do not accept her recommendations. I have indicated above my reasons for believing that the child should live with the father and, while I have taken account of the Independent Children’s Lawyer’s submission, and in particular carefully considered her wise submission that matters that seem to be working well should not be disrupted, on balance I believe that the child would be better off living primarily with the father.
I must add that my decision is in no way to detract from the credit to be given for the grandparents’ assumption of responsibility for the child when neither parent could do so. The grandparents might have every reason to feel that this is unfair so far as they are concerned, given the time and effort and love that they have lavished on this little girl over the five years of her existence. I accept that it is reasonable they should feel that way
In the end, although it is intangible, it seems to me that the wording of the Act, the objects and principles upon which Part VII of the Family Law Act 1975 are based are such that I should give some effect to the fact that the father is the father. I accept that in Aldridge v Keaton[97] the Full Court indicated that the Act does not provide any basis for the preference of a father over a grandparent (or another parent) because that person is a parent. Nevertheless, the fact that there is no statutory basis for a parental preference does not mean that in an appropriate case it may not be a factor properly to be taken into account under s 60CC(3)(m).
[97] (2009) FLC 93-421, [59]-[79], in particular [75].
The statutory situation is to be contrasted with the default position that is sometimes adopted by the Department, that position being that wherever possible, a child should be placed with a parent ready, willing and able properly to care for the child. I have not acted upon any such principle.
With whom the child shall spend time
For the reasons articulated above, it would be necessary, appropriate and desirable for the child to spend regular time with the grandparents. Two questions arising from that conclusion is how often such time should occur and where it should occur.
The Department contends that the child should spend time with the grandparents for one weekend, from Friday until Sunday, out of four. Because of the distance between the parties’ homes, I agree that this would be in the child’s best interests. It will allow the child to maintain regular contact with the grandparents and other significant people in Town G in accordance with the recommendation by the Family Consultant. Spending weekend time with the grandparents more frequently than this would involve a large amount of travel for the child. Frequent long-distance travel may be tiring for children and, as the child grows older and perhaps becomes more involved with friends and extra-curricular activities, it is unlikely that she will want to spend more than one weekend in four away from her social network at home.
Although this was not requested by any of the parties, it would be desirable for the child to spend block periods of school holiday time with the grandparents. This will enable the child to maintain a meaningful relationship with the grandparents and K.
From a practical point of view it would seem appropriate for the child to spend up to the whole of the three shorter school holidays a year with her grandparents and for two weeks at Christmas. This would leave her having four weeks of her school holidays with her father and his fiancée and hopefully they could arrange with their employers to have leave during that period. Such an arrangement would provide the child with the opportunity of maintaining her Town G connexion and to have holiday time with K. It may also be possible for her to spend time with B and Y during school holidays, depending upon the ability of various parties to arrange that.
Such an arrangement however may restrict the time that the child can spend with the friends she acquires in Town R and to do things in Town R during her school holidays. Hence the form of orders that I propose at this stage would be that the child would spend up to the whole of, but not less than the half of, all of the shorter school holidays with her grandparents.
The Christmas holidays would, it seems to me in deference particularly to the time that the child has spent with her grandparents, be divided on the basis that she would spend, in every second year, the first two weeks of the school holidays at Christmas with her grandparents (including Christmas Day) and would spend, in each alternate year, two weeks from 2 January with her grandparents. This would mean that in each case the child would have a period to settle down again in Town R before she recommences school.
I now turn to consider where the child’s time with the grandparents should occur. The Department proposes that time between the child and the grandparents should occur in Town R. This proposal raises practical difficulties for the grandparents. The grandparents do not have a home in Town R. If they are to spend one whole weekend with the child in Town R, it begs the question as to where in Town R the child will spend time with them. It would not be desirable for the child to spend the entire weekend with the grandparents in a public place, nor would it be desirable for the child to spend the entire weekend with the grandparents in a motel room, particularly as she gets older. In a home environment, the child will be at ease and can do as she pleases and it provides the grandparents with a degree of flexibility about what they can do while the child is spending time with them. This is a factor which weighs in favour of the child spending time with the grandparents in Town G.
The concerns of the Director-General about the child spending time with the grandparents in Town G centred on the possibility that if this were so, the child’s grandparents may not be able to prevent her from spending time with the child’s mother otherwise than in accordance with the orders of this Court.
I have examined the risks associated with that situation above and commented about the lack of evidence relating to the nature and magnitude of such risk. I am also conscious of the fact that the grandparents have sought orders which provide that they will not permit the mother to attend their home and, if she does, to do all they can to have her removed from their property. While I accept that there may have been some failure in the past on the part of the grandparents to be as assiduous as they might have been in complying with the orders, I am satisfied from their demeanour in Court, from the orders they are seeking and from the submissions from their lawyer that it is more likely than not, that in the future they will do all they reasonably can to comply with Court orders relating to the time that the child spends with her mother.
As a consequence, I do not feel unduly concerned that if the child is to spend time in Town G with the grandparents that she should be exposed to any unacceptable risk.
The decision about the child spending time with her grandparents and her mother necessarily involves a balancing of benefit with risk and while I am conscious that opinions may differ, the balance struck by me in these orders was arrived at after considering and weighing the different and, in some cases, competing considerations.
Spending time with the grandparents in Town G will also assist in facilitating the child’s time with B and Y.
The present orders relating to B and Y (the child’s brothers) and the time that they will spend with the grandparents and their mother are as follows:
a)[Mr and Ms Thwaite] (the foster carers for [B] and [Y]) will cause [B] and [Y] to be made available to spend time with the grandparents, for up to six occasions each year, for periods of up to two hours, under the supervision and direction of the Director-General of the Department of Family and Community Services including such supervision be carried out by a nominee of the Director-General.
b)Such time that the boys spend with their grandparents will be at such place as the Director-General or his nominee shall determine, taking account of the fact that it would be least desirable for such time to occur at the local offices of the Department.[98]
[98] Order 3(b) of 3 February 2012,
There was general agreement that, so far as it was possible, the child should spend time and have a relationship with B and Y.[99]
[99] Exhibit J1, [2.2].
The child could also spend time with the mother while spending time with B and Y. This will enable them to spend time together as a family. The grandparents’ proposal is that the child should spend time with the mother for two hours each week and, indeed, that is the arrangement under the current orders. However, the child’s living with the father in Town R would mean this is not a practicable course.
None of the parties proposed that the child’s time with the mother should be anything other than supervised time and I make orders which provide for that and take into account the AVO in place against the mother for the protection of the grandmother. In my opinion, supervision of the mother’s time with the children obviates the need for the mother to provide clear urinalysis as a precondition to spending time with the children.
I note the grandfather conceded that on previous occasions where he has supervised the mother’s time with the child, he has not always been in the room with them or within earshot of them. He has admitted that he sometimes went outside for a smoke while the child and the mother spent time together in the motel room. Given the scrutiny that the grandparents have come under as a result of those previous actions and their undertakings that they will supervise the mother and the child properly in the future, I am satisfied that it is not necessary that a supervision centre be engaged for this purpose. It will be sufficient that the child’s time with the mother is supervised in accordance with Order 8 made on 18 August 2011.
The Department proposes that the supervision of the mother’s time with the child, B and Y be undertaken by the Director-General or an approved delegate. While it is appreciated that the Department would make such supervision available, that supervision should be complementary with orders made in relation to the mother.
These arrangements will depend in part upon the willingness of Mr and Ms Thwaite to cooperate. I am conscious of the fact that contravention proceedings were brought against the grandparents by the Thwaites relating to the grandparents’ failure to keep B and Y quarantined from their mother’s unsupervised presence. I did, however, over a significant period have an opportunity to observe Mr and Ms Thwaite and to establish their deep well of good will, their concern for the best interests of particularly B and Y and their altruism in making sacrifices to enable the children to get the best out of their various relationships.
The orders I make will therefore be in draft form to enable all of the relevant parties to comment upon their practicability but, in the case of the Thwaites, to seek their consent, in effect, to the arrangements that are proposed.
Mother’s Day poses a number of competing considerations. The first of these is the child’s mother. At the moment the child has a bright and optimistic view of her mother which is endearing but in some respects unrealistic. She should continue to see her mother if it is possible to do so without any danger to her (the child). This will enable her to see her mother as a whole person with both good and perhaps not so good characteristics. In my opinion, she should be aware of and be conscious of the fact that Ms Marshal is her mother.
At the same time, her grandmother has been in the position of a mother in many respects for most of the child’s life and it would be appropriate for that to be recognised in some way and finally, the father’s fiancée will undoubtedly assume a mother-like involvement in the child’s life as the years go by.
In my opinion, the child should spend at least the weekend involving Mother’s Day as one of the weekends in which she would be with her grandparents in the expectation that she would be able to spend time with her mother on Mother’s Day in accordance with orders applicable at that time. Such a weekend would not be in addition to the other weekends prescribed by the orders but in substitution for whichever weekend was nearest to Mother’s Day.
This would necessarily have the effect of the child’s not being with the father’s fiancée on Mother’s Day. Unless the parties reached a different conclusion, however, it seems to me that this is something which cannot in the circumstances of this matter be avoided and trying to prescribe that the child would spend part of her time with her mother, part with the grandmother and part with the father’s fiancée all on the same day when the three people are not in the same town may well produce a situation where the child does not enjoy the day at all.
I accept that there may be difficulties associated with the coinciding of the time that the child spends with her mother with the time her mother spends with B and Y. It is my intention that so far as it is possible, B and Y will spend time with their mother and the child on the first weekend in each month.
Accordingly, the orders that I propose should be made are as set out above. I will allow a period of seven days to elapse after I deliver this judgment to enable the parties (including the mother) to make such comments about the practicability of the orders or the form of the orders, but not the substance of the orders.
If there is a reason to do so, I will appoint a day after the seven days have elapsed to enable parties to comment by telephone or in Court on the suggestions of any particular party but, in default of my receiving any written submissions within the seven day period, I shall make the orders identified above as final orders.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 29 August 2012.
Legal Associate:
Date: 29 August 2012
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Procedural Fairness
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Judicial Review
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Standing
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