Dyball & Anor & Bland & Ors

[2014] FamCA 471

FAMILY COURT OF AUSTRALIA

DYBALL AND ANOR & BLAND AND ORS [2014] FamCA 471

FAMILY LAW – CHILDREN – Non-parent – Where the child has lived with the Applicants for a significant period of time – Where the child has not spent time with the mother for a significant period of time – Where the child and the mother have a toxic and untenable relationship at present – Where the mother did not attend at the hearing – Where the remainder of the parties reached agreement – Whether the agreement is in the best interests of the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2) & (3), 61DA
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton (2009) FLC 93-421
Donnell & Dovey [2010] FAMCAFC 15
G & C [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

FIRST APPLICANT:	Ms Dyball
SECOND APPLICANT:	Mr Dyball
FIRST RESPONDENT	Ms Bland
SECOND RESPONDENT	Mr Tumlin

THIRD RESPONDENT Ms B Bland

INDEPENDENT CHILDREN’S LAWYER: Watts McCray Lawyers

FILE NUMBER: PAC 6008 of 2011

DATE DELIVERED: Orders:        23 June 2014
Judgment:    27 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 June 2014

REPRESENTATION

THE APPLICANTS: Self-represented Litigants

THE FIRST RESPONDENT:	No appearance
THE SECOND RESPONDENT:	Self-represented Litigant
THE THIRD RESPONDENT	Self-represented Litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watts McCray Lawyers

Orders

1. Mr Dyball be joined as a Second Applicant in these proceedings.

2. The document headed “Final Parenting Orders” dated today’s date is marked Court’s Exhibit “A” in today’s proceedings.

3. Orders are made in accordance with paragraphs 3 to 10 and 15 and 16 of Court’s Exhibit A, subject to the changes noted orally to Orders 5 to 7, as follows:

   3.That Ms B Bland (the maternal grandmother”), Mr Tumlin (the father”), Ms Dyball and Mr Dyball have equal shared parental responsibility for the child N, born … 1998 (“the child”).

   4.          That the child live with Ms Dyball and Mr Dyball.

   5.          That the child spend time with the father as follows:

   a.During both school term and school holidays – for one weekend each month, from 5.00 pm on Friday until 5.00 pm on Sunday, and that such weekends be as agreed between Mr and Ms Dyball and the father, in accordance with the child’s wishes.

   b. At such other times as agreed between Mr and Ms Dyball and the father.

   6.        That the child spend time with the maternal grandmother  as follows:

   a.During both school term and school holidays – for one weekend each month, from 5.00 pm on Friday until 5.00 pm on Sunday, and that such weekends be as agreed between Mr and Ms Dyball and the maternal grandmother.

   b. Each Christmas Day from 10.00 am to 2.00 pm.

   c.At such other times as agreed between Mr and Ms Dyball and the maternal grandmother.

   7. That the child spend time with the mother as agreed between Mr and Ms Dyball and the mother, in accordance with the child’s wishes.

   8.That it is NOTED that the child is presently engaged in part time employment, and it is agreed that the parties will facilitate the child attending to such part time employment.

   9.That the child be at liberty to communicate with the maternal grandmother, the father, Ms Dyball, Mr Dyball and the mother, at all reasonable times and that whichever party the child is living with / spending time with shall facilitate such communication.

   10.      That all parties be restrained from:

   a.Denigrating or permitting another person to denigrate any other party, within the hearing or presence of the child.

   b.Discussing these proceedings with the child, or showing him any documents arising from these proceedings.

   c.Physically punishing the child.

   15.That Ms Dyball, the father, the maternal grandmother and the mother pay equally the Independent Children’s Lawyers’ fees, unless they obtain a waiver for those fees from the Legal Aid Commission.

   16.That for the purposes of Christmas Eve, Christmas Day & Boxing Day each year, such time that the child would spend with either the father or the maternal grandmother, pursuant to Orders 5(a) & 5(b) & 6(a) & 6(c) be suspended.

4. Pursuant to s 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders, and the details of who can assist parties to adjust to and comply with an order, are set out included in an annexure to these Orders.

5. Reasons for Judgment will be published on a date to be fixed.

IT IS NOTED THAT

1. Once the Orders are settled, Orders 11 to 14 will be made as amended to give effect to the orders sought to be made.

LATER IT IS ORDERED IN CHAMBERS THAT

1. Orders are made in accordance with paragraphs 11 to 14 of Court’s Exhibit A, as follows:

   11. That each party having parental responsibility for the child shall notify the others as soon as possible of any serious injury and any illness suffered by the child whilst he is in that party’s care.

   12.That each party having parental responsibility for the child shall promptly notify the other parties if the child is treated in hospital, by a general practitioner or any other medical specialist, or suffer a serious illness (so far as the emergency allows) and will provide the other parties with copies of any medical reports and times and dates of any medical appointments relating to the child.

   13.That each party having parental responsibility for the child shall do all acts and things necessary to provide the requisite authorities to the school the child attends, the child’s doctors and dentists and the like to provide the other parties with duplicate copies of all notices, reports and information that would otherwise be provided.

   14.That each party having parental responsibility for the child shall do all acts and things necessary to provide the requisite authorities for any school that the child attends, to provide to each of the parties photocopies of reports, newsletters and announcements of the school activities otherwise pertaining to the education of the child, and each of the parties shall authorise, if needed, staff members at any school that the child may attend to discuss the child’s progress with the other parties.

2. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dyball and Anor & Bland and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6008 of 2011

Ms Dyball and Mr Dyball

First and Second Applicants

And

Ms Bland

First Respondent

And

Mr Tumlin

Second Respondent

And

Ms B Bland

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the long term parenting arrangements for the child N (“the child”), who is 15. The child removed himself from his mother’s care when he was 12 and went to live with his former teacher and her family.

2. The child’s teacher and her husband now seek orders that the child live with them and that they jointly share parental responsibility for the child with his father and maternal grandmother.

3. The child’s mother did not participate in the hearing, though the orders she seeks include that the child live with his maternal grandmother and have no contact with the Applicant former teacher or her family.

4. All of the parties other than the mother (“the other parties”) have reached agreement as to orders which they say are in the child’s best interest. On 23 June 2014 I made the orders sought in accordance with that agreement and I indicated that I would publish my reasons for that decision at a later date. These are those reasons.

The mother’s non-attendance

1. The proceeedings commenced in December 2011. For a significant period of the proceedings the mother has been legally represented, though from at least October 2013, she has appeared for herself. The mother has participated cooperatively in various matters such as an assessment by an expert psychiatrist. The mother has appeared in person or by telephone at each of the Court events including the occasions when the matter was fixed for trial and on 13 June 2014 when a more detailed trial plan was prepared. I am satisfied that the mother was well aware that the trial was to commence on 23 June 2014. However, on the first day of the trial the mother did not appear, nor did she contact the Court or seek an adjournment.

2. Each of the other parties wished to proceed in the absence of the mother and have reached agreement as to final orders they wished the Court to make.

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

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

4. Each of the other parties seeks that I make the orders agreed to and relies upon the affidavits filed in the proceedings. There is no application before me for an adjournment of the proceedings. In any event, having regard to the considerations relating to adjournments of parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it would not be in the best interests of this child for the proceedings to be adjourned. For this reason I will determine this matter in the absence of the mother.

   [1] [2014] FamCAFC 14

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

The Uncontested Facts

1. The child is the only child of Ms Bland (“the mother”) and Mr Tumlin (“the father”). The child’s parents separated when he was about one year old and after separation the mother cared for him, together with his younger half-siblings. The child had virtually no contact with his father for many years.

2. Ms Dyball, who is 46, and her husband, Mr Dyball, who is 48, (“the Applicants” or “the Dyballs”) have been caring for the child for a number of years.

3. Ms Dyball, who is a teacher had been the child’s teacher in 2009 and 2010. The child was in Ms Dyball’s class as he had at that time been diagnosed as suffering from a mild intellectual disability, attention deficit hyperactivity disorder and oppositional defiant disorder. The child had a history of significant behavioural disturbance at school.

4. In 2009 the child ran away from school and the police were involved in having him returned. In the course of an interview between Ms Dyball, the child, his mother, the school principal and police, the child said that he did not want to live with his mother anymore and alleged that she did not care about him. Ms Dyball described him as upset and hysterical at the time which caused her to make a report to Community Services. Two other reports were made to Community Services in 2009 and 2010 as a result of the child telling a teacher’s aid that his mother had hit him on the hand with a metal spoon on one occasion and alleging that his mother had punched him in the stomach on another occasion.

5. The child’s mother, who was a parent helper at the school, was observed by Ms Dyball to be highly critical of the child in the classroom and as a result was asked by the school to no longer participate as a parent helper.

6. Throughout 2010 the child arrived to school with mouldy food for lunch and Ms Dyball was required to provide lunch for him, almost every day. Ms Dyball also observed that the child was very underweight. The child also made complaints to Ms Dyball that his mother required him to do a large number of chores at home, and verbally abused him and denigrated him if the chores were performed unsatisfactorily.

7. In 2011 the child commenced high school and, as he was struggling with his studies and classroom behaviour, Ms Dyball tutored him each afternoon with the knowledge and consent of his mother. The child also stayed over at the Applicant’s home one night per week when his mother was attending TAFE. The mother also asked Ms Dyball to care for her younger children on some weekends.

8. The child continued to make complaints about his mother’s inadequate care and alleged that his mother prevented him from seeing his father, grandmother or other relatives. The child told Ms Dyball at the beginning of 2011 that he wanted to run away from his mother.

9. The maternal grandmother, who is 55 and a party to these proceedings, had previously been extensively involved with the child throughout his life and had observed the child’s mother struggling with caring for him and verbally abusing and denigrating him. The child’s grandmother was also aware of the child’s complaints and notifications to Community Services and had reached agreement with Ms Dyball and the child that if the child thought it necessary to run away she would take him to the police station.

10. On Sunday 29 May 2011 the child left his home and went to his maternal grandmother’s home. The child complained that his younger sister had vomited on the mother’s bed and that he was required by his mother to clean up the vomit and put his sister in the bath. The child said that his mother abused him for not cleaning up properly, hit him on the head and punched him on his arm. The maternal grandmother took the child to the police station.

11. At the police station the child told police that he did not want to return home to live with his mother and related a significant history of verbal and physical abuse by his mother, including incidents over the years when his mother had hit him with a leather belt, punched and kicked him. The mother denied any assaults, other than in the course of lawful punishment, but agreed to having had physical struggles with the child, particularly when he refused to take his medication.

12. It was initially suggested at the police station that the child live with his maternal grandmother, but this was opposed by the mother. The child’s mother and father, (who had also been called to the police station) agreed for the child to live with Ms Dyball and her family.

13. Shortly after the child moved to the Dyballs, the mother began to complain about the arrangement. However, she did not take any legal action to have the child returned to her care. From June 2011 the mother made complaints to the Department of Education and police about Ms Dyball’s inappropriate behaviour in her care of the child.

14. An Apprehended Domestic Violence Order was made protecting the child from his mother for 12 months in the Local Court on 19 July 2011.

15. As a result of the mother’s complaints, the NSW Department of Education conducted an enquiry concerning Ms Dyball’s involvement with the child and in about November 2011, Ms Dyball was informed by the Department that no disciplinary action would be taken.

16. From December 2011 the mother sent a number of text messages to Ms Dyball suggesting that she had commenced legal proceedings in relation to the child’s parenting. Ms Dyball instructed her solicitors to write to the mother with proposals for the preparation of consent orders in similar terms to her current application in relation to the child.

17. Ms Dyball alone commenced these proceedings in December 2011, though Mr Dyball was subsequently joined as a party.

18. The mother sent a number of abusive and threatening text messages to Ms Dyball in response to her solicitor’s letter but did not respond to the proposals in relation to consent orders.

19. The mother continued to send similar text messages to Ms Dyball in July, September and November 2012. In the text messages the mother also made proposals to see the child. The child consistently indicated to Ms Dyball and other professionals, such as his school counsellor, that he did not want to see his mother. Other than on a single occasion in 2014 during the preparation of the expert psychiatrist’s report, the child has not spent any time with his mother and has had very limited text message communication with her.

20. On 28 March 2013 when the matter was listed for the first day of the Less Adversarial Trial the parties agreed for a psychologist, Dr C, to assist in providing therapy to the child and his mother. However, the child made it clear to Dr C that he did not wish to spend time with his mother and the psychologist felt there was little purpose in attempting therapy in these circumstances.

21. The child has been spending time with his father since May 2011 when he went into the care of the Dyballs. This time together has been arranged between the father and the Dyballs in accordance with the child’s wishes. The father supports the child living with the Dyballs and that this regime of time together continue.

22. When the child first came into the care of the Dyballs they made arrangements with the maternal grandmother for the child to spend time with her. However, after the maternal grandmother was joined as a party to the proceedings and initially sought orders for the child to live with her in February 2014, the child felt betrayed and tricked by her and for a period of time refused to have contact with her. In the course of the preparation of the expert psychiatric report, the child became aware that he had misunderstood his grandmother’s motives and in recent times the child has once again been spending time with his grandmother.

23. Since coming into the care of the Dyballs the child has also spent some time with his half siblings, facilitated by the maternal grandmother.

The Areas of Dispute

1. Although there is no evidence filed by the mother in support of the orders she seeks, it is her proposal that the child live with the maternal grandmother and spend no time with Ms Dyball and that Ms Dyball be prevented from contacting the child in any manner. I understand that it is the mother’s position that the child’s relationship with the Dyballs is detrimental to him. 

2. Evidence in relation to the Dyballs’ relationship with the child is contained in each of the Applicants’ affidavits and in the report of Dr D, a psychiatrist. Dr D interviewed the Dyballs, the child, each of his parents and the maternal grandmother in April 2014 and had access to the affidavits of the parties and documents subpoenaed from a wide range of sources including police, schools, doctors and Departments of Education and Community Services. The doctor expresses no negative opinions in relation to the Dyballs. Dr D is of the opinion that the Dyballs are providing the child with a positive family environment and that he is most likely to reach his potential in their care. 

3. Having regard to the doctor’s expertise and the absence of any other expert evidence, I accept the evidence of the doctor and place significant weight on it.

4. A number of Dr D’s opinions are referred to under the best interests considerations, but so far as the mother’s central contention is concerned, I am satisfied that the Dyballs’ relationship is not in any way detrimental to the child.

The Law & Discussion

1. The objects of Part VII of the Act and the principles underlying it set out in section 60B form the framework for the part of the Act dealing with parenting. 

2. The objects are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. 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).

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

3. In this matter both the mother and the other parties propose orders which would see the child living with parties other than his parents, being the maternal grandmother on the mother’s proposal or the Dyballs on the other parties’ proposal. The parties also propose that non-parents share parental responsibility for the child.

4. When applying the primary and additional considerations to these proposals, the Court must not treat those considerations which specifically relate to parents as if they equally apply to a non-parent party, in this case, the maternal grandmother and the Dyballs.

5. In Donnell & Dovey[3], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under s 60CC is also relevant to a non-parent, this should be addressed under s 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent. Where such a factor is being considered by me as relevant to the maternal grandmother and the Dyballs, I will do so by application of s 60CC(3)(m).

   [3] [2010] FamCAFC 15

What are the matters the Court must consider in determining a child’s best interests?

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

2. The primary considerations (under s 60CC(2)) are:

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

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

   As these proceedings were commenced prior to June 2012, these considerations are to be balanced equally.

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

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

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

   [5] (2007) Fam LR 518

   [6] [2006] FamCA 994

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

5. The orders agreed to by all of the other parties and the mother’s proposals both provide for the child only spending time with his mother in accordance with his wishes. Having regard to his views and attitude to date, it is a real possibility that the child will choose to have very minimal or no contact with his mother. This means that the child may not have a meaningful relationship with his mother. Whilst in many cases this would cause concern, as the Full Court said in McCall & Clark (supra) at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

6. I am of the view, having regard to the matters set out later in these reasons, that there will be no positive benefit to the child by attempting to craft orders to foster a relationship with his mother beyond the relationship that the child himself seeks as this would not be in his best interests.

7. The orders proposed by the parties other than the mother provide for the child to spend time with his father for one weekend per month and at such other times as agreed between the Dyballs and the child’s father, in accordance with the child’s wishes. The mother proposes that the child spend time with his father each alternate weekend. Either of these proposals would promote the child receiving the benefit of having a meaningful relationship with his father.

8. The need to protect the child from physical and psychological harm, from being subjected to abuse and neglect, looms large in this case.

9. Although the child’s main complaints when he first left the care of his mother was that he had been physically abused by her, Dr D noted that the greater concern was that the child was neglected and psychologically abused. Dr D describes the mother, in his opinion, as having been unable to manage the child’s behavioural problems and developing a response to him that was highly conflictual, which the child was unable to cope with. The doctor described the child as having an unstable early life with probably difficulties in his attachment phase of development and his self-esteem, which led to hypersensitivity to rejection and poor self-esteem development. The doctor is of the opinion that as a result of this, the child developed oppositional defiant disorder and describes the child currently as a teenager who is trying to develop a self-image and recover self-esteem and develop an internalised security.

10. The two proposals for the child’s living arrangements are that he either continue to reside with the Dyballs or reside with his maternal grandmother. Dr D remains concerned that there is a risk that the maternal grandmother, in an effort to develop a better relationship with her other grandchildren, will be emotionally blackmailed by the child’s mother to force the child to move into his mother’s care. This would place the child at an unacceptable risk of harm as, in the opinion of the doctor, the child’s relationship with his mother is very toxic and destructive. 

11. It appears that remaining with the Dyballs will offer the greatest protection for the child against ongoing emotional abuse.

Additional considerations

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

The child’s views

1. The child, who was assessed by the expert psychiatrist when he was 15, said he wanted to stay living with the Dyballs, he loved living there and had never been happier. The child said he never wanted to see his mother again. These wishes have been forcefully and continuously expressed for three years, notwithstanding a number of attempts at intervention and therapy to improve the child’s relationship with his mother. Having regard to the child’s age and persistence in expressing the same view, in my view, significant weight should be attached to the child’s views.

Relationships with parents and significant other persons

1. Dr D attempted to make an assessment of the child and his mother together. However, this meeting caused the child to become very agitated and extremely volatile. After the child was invited to say something to his mother and the child said that he did not want to see her, the doctor said the situation quickly escalated and he was concerned there may be a physical altercation. The doctor’s assessment of the child’s relationship with his mother is that it is “very toxic” and “untenable”. He said “…sadly I don’t believe that at this point a relationship would be possible, and that there would be significant repair achieved before [the child] and his mother could reconcile their relationship”. The doctor said that it would probably take a year or two before the child’s relationship with his mother could possibly be repaired and that it would take therapy to achieve a good outcome.

2. The doctor described the child’s relationship with his father as one which is still being formed, but that they appear to have a very positive interaction. He formed the view that the father was a caring parent and does have a significant contribution to make to the child’s life, but is not likely to be able to care for him full time.

3. The doctor described the relationship between the child and the Dyballs in very positive terms. He described the Dyballs as having genuine care about the child’s welfare, opening up their family and hearts to him and providing him with a positive family environment to which the child has responded well.

4. Another significant relationship in the opinion of the doctor is the child’s relationship with his younger half siblings. The doctor was of the view that there needs to be regular contact between them and that could be facilitated through the maternal grandmother. He was also of the view that the relationship between the child and his maternal grandmother is an important one, and that she clearly cares about him and has his best interests at heart.

Parents’ willingness and ability to facilitate a relationship with the other parent

1. As these proceedings were commenced prior to June 2012, this is a relevant consideration. Although the mother did not appear to be willing and able to facilitate and encourage a close and continuing relationship between the child and his father when the child was in her care, the orders she proposes do demonstrate that she is willing to facilitate that relationship. In supporting orders that allow the child to have a relationship with his mother in accordance with his wishes, the father demonstrates his willingness to facilitate a relationship that is consistent with the child’s best interests.

Likely effect on the child of a change in circumstances

1. The parties other than the mother propose no change in the child’s circumstances. The mother’s proposal is that the child reside with his maternal grandmother and have no contact with the Dyballs and that they be prohibited from making contact with him.

2. Having regard to the favourable report by Dr D in relation to the child’s development while in the care of the Dyballs and his relationship with them and their family, in my view, any order which involves him being separated from the Dyballs would be harmful to the child. Despite the clear evidence that the child has a good relationship with his maternal grandmother, the effect of having no contact with the people who have cared well for him during a critical time would be likely to be very detrimental to the child at a very vulnerable stage of his development.

3. There is also the risk noted by the doctor that although the relationship between the child and his maternal grandmother is favourable, the grandmother may feel obliged to force the child to move to his mother’s care in order for the mother to allow the grandmother to have a relationship with the two younger children. This would be highly detrimental to the child. 

Practical difficulty or expense in spending time / communicating with parents

1. There is no practical difficulty or significant expense involved in the child spending time with his father on either of the proposed orders.

2. Having regard to the current untenable relationship between the child and his mother, there may be significant expense involved in therapy and professional support to heal that relationship if the child chooses to spend time with his mother in the future.

Capacity of parents and others

1. The expert psychiatrist assessed the mother as having significant problems in relation to her personality development, which impact upon her capacity as a parent. He formed the view that the mother has significant problems in her emotional regulation and has had difficulty in her interpersonal relationships with a lot of projection and blame onto others. He said that she has features of borderline personality problems and, although he was uncertain whether she reached the category of a full disorder, her conflictual personality style is a major problem for her in being able to reconcile her relationship with the child.

2. The Applicants appear to have the capacity to meet all of the child’s needs. They have provided for him physically and educationally to a high standard over the last three years. Although some behavioural and learning difficulties continued for some time while in their care, according to Dr D, it seems that the child’s behaviour has gradually improved and “he appears to be functioning quite well… [and] he is very positive towards his adopted family.” The doctor describes the Dyballs as likely to have provided the child with “extremely good support and guidance” and “they appear to be a high functioning family with a solid family unit environment”. The doctor is of the opinion that the child will most likely develop to his best potential with the Dyballs, who he describes as impressive and insightful.

3. The expert psychiatrist also described the maternal grandmother as having good parenting capacity and he expressed the view that she would provide for the child well if he were to live with her. However, he did express some concern that there is a risk that the maternal grandmother may encourage a relationship between the child and his mother against the child’s interests and had some concerns that the maternal grandmother did not keep the child in her care when he first absconded from his mother.

Attitude to the child and responsibilities of parenthood demonstrated by the parents

1. Neither of the parents had a positive attitude towards the child and to their responsibilities as parents for much of his life. Although it appears that the mother made it difficult for the child to see his father after they separated, the father appears to have not made any efforts to be a responsible parent until the child removed himself from his mother’s care. In recent times the father has shown a more responsible attitude, though he is not in a position, nor is it proposed, that he assume care of the child himself.

2. The mother demonstrated a poor attitude towards the child when he was in her care, and was abusive of him. She adopted a particularly conflictual parenting style that has harmed him significantly. Since the child went into the Dyball’s care the mother has played no parental role. It is not proposed by any party that the mother resume a parental role. 

Family violence

1. The mother alleges that the father was violent towards her during their brief relationship and there seems to be some support for this allegation in the maternal grandmother’s evidence. However, this is not a case where it is suggested that the child has been harmed by being exposed to violence between the parents in the past or that there is a risk he will be exposed to it in the future.

2. Allegations of violence perpetrated by the mother against the child were one of the significant reasons why the child removed himself from his mother’s care.  The child’s mother does not deny that at times she used physical punishment against the child. He is of an age, however, that if he were to choose to have contact with his mother, there is no significant risk that she would be violent towards him in that context.

3. Having regard to the circumstances surrounding the Dyballs assuming care for the child, the need for him to be protected from harm and the parents’ limitations and incapacity to care for him, it is not in the child’s best interests to reside with either of his parents. Notwithstanding that he has a close and positive relationship with the maternal grandmother, having regard to the child’s wishes and the likely effect on the child of any change in his circumstances, together with the capacity of the Dyballs, I am of the view that it is in the child’s best interests to live with the Dyballs and spend time with each of his parents and the maternal grandmother as provided for in the orders agreed to by the parties participating in the proceedings.

Who should exercise parental responsibility for the child?

1. Unless I make an order changing joint parental responsibility, s 61C(1) of the Act provides that each of the child’s parents has parental responsibility for him.

2. Where the Court is deciding who should have parental responsibility for a child, the starting point is s 61DA. This section provides that when making a parenting order, the Court must presume that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence. I am satisfied that the mother has physically and psychologically abused the child so the presumption does not apply.

3. Further, as this is a matter involving a parent and non-parents seeking parental responsibility, according to the Full Court in Donnell & Dovey (supra) at [121] and Aldridge & Keaton[7] at [112], the presumption of equal shared parental responsibility under s 61DA does not apply. Therefore, in deciding who is to have parental responsibility for the child, I must consider the matters relating to his best interests.

   [7] (2009) FLC 93-421

4. Each of the matters I have considered in coming to the conclusion that it is in the child’s best interests to reside with the Dyballs equally support them having parental responsibility for the child. The nature of the relationship that the child has with his father and maternal grandmother also indicate that it is in the child’s best interests for each of them to share parental responsibility. Each has also shown during the period in which the child has been in the Dyball’s care a capacity to communicate with the other and cooperatively make decisions concerning the child. The child’s mother does not seek to exercise parental responsibility for him and, having regard to the matters considered, it would not be in the child’s best interests for such an order to be made.

5. The Orders that I make are set out at the forefront of these reasons for Judgment.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 June 2014.

Legal Associate:      

Date:    27 June 2014