DONOGHUE & ALTON

[2011] FamCA 178

FAMILY COURT OF AUSTRALIA

DONOGHUE & ALTON [2011] FamCA 178

FAMILY LAW - CHILDREN – final orders – consideration of the appropriateness of the draft minutes of order – where the paternal grandmother makes allegations of physical, emotional and sexual abuse against the mother – where the matter has had a long history – where Court is satisfied that proposed draft orders represent the best interests of the child – orders that the child reside with the paternal grandmother and the mother to have increasing involvement in the child’s life

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Donoghue

RESPONDENT: Ms Alton

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4515 of 2009

DATE DELIVERED: 8 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 7 & 8 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Lee
SOLICITOR FOR THE APPLICANT:	Norman Waterhouse

COUNSEL FOR THE RESPONDENT:	Not Applicable
SOLICITOR FOR THE RESPONDENT:	Mother in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs Lindsay
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. By consent, in terms of the Minutes this day signed by me.

IT IS NOTED that publication of this judgment under the pseudonym DONOGHUE & ALTON is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4515  of 2009

Ms Donoghue

Applicant

And

Ms Alton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before me today and yesterday, and on many previous occasions on an interlocutory basis, relate to one young girl K who was born in July 2004 and who hence will be 7 years of age this year.  Regrettably these proceedings have had a long and unpleasant history, beginning with action taken by the mother on 5 January 2007.  Those proceedings though were of very short order in that a consensual arrangement was agreed between the mother and the father of K that K was to live with the mother.  All other proceedings before the Court were then dismissed.

2. That though was not the end of it.  The applicant in these proceedings is K’s paternal grandmother and as a consequence of a number of serious concerns she had, she instituted proceedings in this Court on 11 November 2009.  At the time of filing her Initiating Application and Affidavit in support, she also filed a Notice of Child Abuse.  That Notice of Child Abuse detailed a number of concerns that the paternal grandmother had for K’s welfare in the care of the mother.  Many of her concerns related to her observations and also upon reports made to her by K.  The concerns were wide ranging and included physical, sexual and emotional abuse.  The detail in that Notice of Child Abuse prompted the Court to accept the matter into its Magellan Project, which led to a number of interlocutory orders being made for the appointment of an Independent Children’s Lawyer and the provision of information by Families SA in relation to that Department’s experience of the family. 

3. The Court received two Magellan reports from the Department for Families and Communities – Families SA dated 20 November 2009 and 24 January 2011.  The concerns raised in that material were as indicated in the Notice of Child Abuse and ranged across concerns that K may have been physically, emotionally and sexually abused in the care of the mother.  The Court then made orders for the preparation of a Family Report and that report prepared by Ms D was provided to the Court on 19 April 2010.  In that report Ms D made a number of recommendations, but particularly that K remain living with the paternal grandmother.  However Ms D identified that the child was likely to be missing the mother and that some action needed to be taken in order to inhibit the possibility of K developing any grief for the loss of her relationship with her mother.

4. To the mother’s credit, despite the allegations made against her, on many occasions she both sought and accepted assistance from a wide variety of individuals and organisations to help her with the care of her children.  Again it was encouraging to see it recorded in that Family Report that the relationship between the mother and the paternal grandmother had been, in the past, cooperative.  Ms D recommended that K spend some regular and increasingly significant time with the mother, but in circumstances where K’s interests would be protected.  The Court then made orders to enable the mother to spend time with K and that included a number of periods of time supervised by Relationships Australia at their Children’s Contact Service (“CCS”) at B.

5. I note from the report of the CCS, which is annexed to the affidavit of the Independent Children’s Lawyer filed on 12 May 2010, that it took very little time for the mother to establish an affectionate and close relationship with K and the CCS report is filled with examples of K expressing her love for her mother and a reluctance to leave her mother at the conclusion of each of those periods.

6. As the matter was approaching a stage when a trial of the proceedings was necessary because the parties were unable to reach absolute agreement on all matters impacting upon K, I ordered the preparation of a second Family Assessment and a Report in that regard was provided by Ms T on 27 January 2011.  In her evaluation, Ms T observed that there were potentially still a number of concerns arising from the mother’s care of, and capacity to care for, K, but she noted also that there were a number of quite incongruent and bizarre aspects to K’s alleged disclosures to the paternal grandmother.

7. Again, an encouraging report from Ms T was to the effect that the paternal grandmother continued to acknowledge the need for K to have a relationship with her mother and was clearly in support of same in the event that K’s welfare could be promoted and secured.  Ms T considered it important that K remain in the care of the paternal grandmother for K’s own emotional security and wellbeing.  Ms T was well satisfied that the paternal grandmother had demonstrated in the past, and would continue to demonstrate in the future, a capacity to provide that necessary primary care.  However, she too recognised the need for K to develop an increasing relationship with the mother and she recommended a number of periods of time that K should spend with her mother.  She did though indicate that if the Court was of the view that supervision of any of that time was necessary, that the mother’s sister L appeared to be an appropriate person in that regard.  Ms T was also concerned that the mother continue to engage with various professional supports to assist her in her increasingly developing parenting role in relation to K and to assist her generally with the various challenges that she had faced in the past, and would potentially face in the future.

8. The care of K must be seen as against the background of some personal and individual struggles and difficulties that K has faced in life, and will continue to face.  I have been assisted greatly too by a report provided by K’s dedicated psychologist Ms O.  That report is dated 1 March 2011 and is annexed to an affidavit of the paternal grandmother’s solicitor filed on 4 March 2011.  She noted in that report that on 9 October 2008 K had been assessed by another psychologist as having above average non-verbal intelligence who promoted a number of behavioural recommendations.  Another report noted by Ms O was that of a speech pathologist dated 5 January 2009 and related to K’s most significant physical disability being that she suffers from mild to moderate hearing loss in her left ear and moderate to severe hearing loss in her right ear.  As a consequence K has been accessing auditory verbal therapy since December 2007 and she is fitted with hearing aides.   There is another notation in Ms O’s report to the effect that on 5 August 2009 a speech pathologist, in reviewing K’s progress, noted that she suffered moderately impaired language difficulties.

9. Thus it can be seen that K, in all of her tender years, has had to face more challenges than most people could expect to have to face in a much longer life.  She has suffered the difficulties that her own mother has faced in terms of a number of relationships that the mother found challenging and, as a consequence, found her parenting of K at times a very challenging role.  Added to that, of course, are the physical impairments that K also suffers in terms of her hearing.

10. The matter was listed to commence for trial before me yesterday but I was advised, very early in the piece, that the parties were demonstrating a willingness and, indeed, a desire to entertain some discussions in the hope that they could achieve agreement as to an outcome that would best represent K’s needs and interests.  The consequence of those discussions and negotiations is that I have been informed today that the parties have reached agreement in relation to all areas and that agreement is contained in a draft Minute of Order bearing today’s date.  The parties have signed that document and I have had an opportunity to read it carefully. 

11. However, as a consequence of the concerns that I had about K from my lengthy association with the file and my reading of all of the trial materials, I need to be satisfied that indeed the Minutes of Order do represent K’s best interests. I was comforted by the assurances in that regard from the experienced Counsel who appear before me in the trial of the matter but the obligation to ensure that the best interests of K are met by the proposed orders is an obligation imposed upon me. Counsel will be very aware of the relevant sections but there is a clear responsibility placed upon me by Section 60CA of the Family Law Act, and hence also Section 60CC of the Act. In order to be satisfied I indicated that I wanted to hear brief evidence from each of the parties, from Ms O and from Ms T. That has now occurred.

12. Having heard first the evidence of the paternal grandmother, I am indeed impressed not just by her care and concern for K and the dedication she has shown to ensuring K’s safety and wellbeing, but also by her ready acknowledgment of the need for K to develop a strong and meaningful relationship with her mother.  I am satisfied that the paternal grandmother will continue to support the development of that relationship whilst nonetheless ensuring K’s best interests are promoted.

13. I was as impressed too with the mother.  The mother has had a very difficult time for a long period of years.  She has faced many challenges that may indeed overwhelm most people.  However, a reading of her trial affidavit just prior to the commencement of the proceedings before me gave me much encouragement in terms of some demonstrated insight by the mother.  Whilst it was her primary application before the Court that K live with her, in that same document she nonetheless indicated that it may indeed be appropriate for a more staged approach to be applied to the problem.  I was impressed in her evidence that she understood that K’s needs and interests came ahead of her own.  I was impressed as to her understanding of the importance of the paternal grandmother in K’s life and the primary role that it is appropriate that the paternal grandmother continue to play.

14. Ms O and Ms T were also impressed by the co-operative nature of the discussions which had taken place between the parties and were encouraged to the view that the Minutes of Order best represented K’s interests in that they secured her primary attachment to the paternal grandmother at this stage, but provided many opportunities for the mother to develop an increasing attachment to her daughter and vice versa and for there to be an increasingly meaningful relationship developed between them.

15. Counsel and each of the experts have done a good deal of work in framing the Minutes of Order that have been presented to me.  I congratulate them and thank them all and am impressed by the level of detail and the level of care taken to ensure that everything can be done to achieve all of the aims that I have outlined.  On that basis I am satisfied that those Minutes of Order represent the best possible outcome for K and her best interests and indeed, am more than content to sign them as final orders of the Court. 

16. A further acknowledgment by the mother of the appropriateness of these orders is that she has indicated to the Court that she wishes me to dismiss her Application for Contravention which was filed at the commencement of these proceedings and which she swore on 28 February 2011. 

17. It is necessary for me to have regard to all of the relevant provisions of the Act. I have identified the two most relevant in terms of this matter, being Section 60CA and Section 60CC of the Act.

18. Section 60CC is divided into “primary considerations” and “additional considerations”.    There are two primary considerations, the first being:-

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

    In this particular matter K’s father has quite clearly indicated that he is not interested in these proceedings and so, within the context of this matter, it is the meaningful relationship between the mother and the paternal grandmother that matters.

19. The second primary consideration I have already dealt with in terms of my earlier discussion in these reasons and it is:-

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

20. There are many additional considerations framed under Section 60CC(3) of the Act.  In my view, it is not necessary to canvass each of them seriatim and make individual findings in relation to them.  Suffice to say that I have considered them all and, in my view, a consideration of all of those provisions means that it is entirely appropriate that orders be made in terms of the Minutes presented to me.  They clearly reflect, at the present stage, the views expressed by K and recognise the nature of the relationship K has with the mother and the paternal grandmother.

21. I am satisfied that there is indeed a willingness and an ability on the part of each of the paternal grandmother and the mother to facilitate and encourage a close and continuing relationship between the child and each of them.  The orders overcome the possible detrimental effects of any change in the child’s circumstances.  The only changes will be an increasing involvement by the mother in K’s life and those changes are clearly deemed by all parties, by the experts and by me, to be beneficial changes.

22. I have earlier touched upon the capacity of each of the mother and the paternal grandmother to provide for K’s needs, both as to an emotional and an intellectual level.  The ongoing support and assistance that K is receiving from a variety of experts will ensure that her needs in that regard are provided for and the willingness of the parties to engage in co-parenting mediation and be guided by Ms O also satisfies me that they have more than demonstrated an appropriate parenting capacity.

23. A number of the other matters raised under Section 60CC(3) would only require repetition by me of the findings I have earlier made.

24. Before signing the Minutes of Order, I consider it appropriate to record in these Reasons my congratulations to each of the parties for reaching this agreement.   Proceedings which have been so long in achieving a resolution can often bring out the strongest emotions and make any negotiations or agreement extremely difficult.  There is clearly a good deal of history which has made that exercise a particularly difficult one for the paternal grandmother and for the mother.  Regrettably in this jurisdiction the Court frequently sees parties who are unable to set aside their own needs in order to concentrate only on their children’s needs.  It is indeed, I acknowledge, a difficult exercise. 

25. To the credit of the paternal grandmother and the mother though they have done just that.  They have set aside their own sense of hurt, their own sense of concern or outrage and acknowledged that they are here only for K.  The negotiations that they have undertaken and the orders to which they have now agreed provide ample testimony of their capacity to be K focussed.  I am therefore satisfied that these orders represent K’s best interests.

I certify that the preceding twenty five (25) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 8 March 2011.

Associate: 

Date: