Emmett and Grunswell

[2013] FamCA 1161

FAMILY COURT OF AUSTRALIA

EMMETT & GRUNSWELL [2013] FamCA 1161

FAMILY LAW – CHILDREN – With whom a child shall live – undefended – best interests of the child – child to live with father – father to have sole parental responsibility.

APPLICANT: Ms Emmett

RESPONDENT: Mr Grunswell

FILE NUMBER: BRC 4162 of 2013

DATE DELIVERED: 9 September 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Deputy Chief Justice Faulks

HEARING DATE: 9 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr G Stagg, Legal Aid ACT

Orders

In this matter, I make the following orders:

1. The father have sole parental responsibility for C (“the child”), born … 2012.

2. The child will live primarily with his father.

3. The child will spend such time with his mother as may be agreed between his parents but the time that he spends with his mother will be supervised by the father or someone nominated by the father, unless the parties otherwise agree or in accordance with any further order that might be made by this Court or any other court of competent jurisdiction.

4. If the mother choses to travel to spend time with the child she will meet her own costs in this regard.

5. The father will continue to do such things as he may reasonably do to keep the mother informed of the child’s progress and will ensure that the mother is aware of his, that is the father’s, address at all relevant times.

6. The matter is otherwise removed from the pending cases list.

IT IS NOTED THAT:

1. This was a matter which proceeded on an undefended basis but I was satisfied that the mother was aware of the proceedings and the nature of them. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Emmett & Grunswell 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: BRC 4162 of 2013

Ms Emmett

Applicant

And

Mr Grunswell

Respondent

REASONS FOR JUDGMENT

1. The mother filed an application in the Brisbane registry of this Court on 28 May 2013.  The proceedings have, however, continued for all practical purposes in Canberra this year on the basis that the father, as he seeks in his response, should be the carer for the child C (“the child”). 

2. The child is not yet one and the circumstances in which he came into the care of the father and the father’s mother have been detailed in a number of affidavits filed in this Court.

3. The issues before me today relate to whether I should make orders as sought by the father, which I am satisfied the mother is aware of:  that the father have sole parental responsibility for the child; that the child live with his father; that the time that the child spends with his mother should be as agreed between the parties and be supervised by the father or his nominee; and that the mother pay for her travel costs in coming to see the child.  The situation is that the father has applied himself to the care of the child on a full-time basis and proposes to do so until the child no longer needs full-time care.

4. The difficulty is that, as is outlined in the s 69ZW report and in the evidence, the mother has a number of difficulties with being an effective parent at the moment.  Part of this is her – perhaps without being prescriptive about it - her mental state and also her apparent addiction to a number of illicit drugs.  She lives in Queensland and fails to communicate on a regular basis, and, in fact, has not seen the child for some months.

5. I am satisfied from the evidence given, that the father, in conjunction with his mother, can effectively provide the care that is necessary for the child and will ensure that he thrives in his environment with them.  The proposal for them is that while they presently live at Town U, in New South Wales, they will move to country New South Wales - in this vicinity – probably to Town A wherein they will have enough room to live a country and rural existence and yet still have appropriate facilities provided for the child in Town M, which is only about 20 minutes away.

6. So far as the factors I am to take into account; there is a presumption that there should be equal shared parental responsibility and that presumption would ordinarily mean that the parents should share responsibility for the major matters relating to the child’s care, including such matters as his health, what school he attends and the arrangements for his day-to-day primary care.

7. In this matter, it would appear that, sadly, the mother has chosen not to involve herself in matters relating to the child - at least at this stage - and in my opinion, it would be in the child’s best interests that his father should have clearly defined authority to make such decisions as are necessary for the child’s wellbeing and for his care and protection.  Accordingly, the father should have sole parental responsibility for the child. 

8. In making such an order, I am not obliged to consider (as I would be if there were equal shared parental responsibility) whether it is appropriate for there to be equal time for the child with his mother and his father or that the mother spend substantial and significant time with him if she is not spending equal time.  If I were obliged to make that decision in the circumstances applicable, in this matter, neither of those arrangements would be practicable and it is clear that it is important that while the mother should, if she is able to do so, resume a place in the child’s life, at the moment that does not appear to be something that is likely to occur - in the short term.

9. My primary considerations in determining what is in the best interests of the child must be the benefit for him in having a meaningful relationship with both of his parents.  There are two factors to that.  The first is what constitutes a meaningful relationship and in circumstances where the mother has chosen for whatever reason – perhaps for reasons beyond her control – not to be involved with the child.  It is difficult to see how she could have a more meaningful relationship than the sort of attenuated arrangement that is suggested by the father at the same time as he demonstrates a willingness to foster that relationship, subject to the willingness in turn of the mother to be a contributor to it.

10. The second aspect of s 60CC(2), is that there should be a benefit to the child in having a meaningful relationship.  It is not simply the case that because a child has two parents it must be for a child’s benefit to have a relationship with both.  In this matter, at this time, it is difficult, if not impossible, to discern an immediate benefit to the child in having that relationship with his mother until such time as she is able to apply herself in an appropriate way towards the maintenance and fostering of that relationship.

11. That supports my making an order that the child lives principally with his father.  Similarly, I am obliged as a primary consideration – in fact, it is the primary consideration to the extent that there is to be a hierarchy between the considerations – to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence.  In relation to this matter, I draw upon the s 69ZW report and the investigations conducted by the department.

12. I draw upon the matter set out in the affidavits and indicate that I am satisfied that if the child is with his mother, on the evidence available to me (uncontradicted by her in these proceedings, which have occurred on an undefended basis) that there is at least a risk, and I would suggest at this point (on the evidence before me) an unacceptable risk, that if I were to make orders which enabled the mother to have either the principal care or substantial care of the child that he might be exposed to neglect or to psychological harm because of the mother’s involvement in drugs and her apparent inability to prioritise the child’s interests over her own.

13. The other matters I am to take into account include what views might be expressed by this child.  In this case, the child, being not yet one, is not expressing a lot of views and it is not a matter that I could attribute any weight to, in any event.  I am satisfied the father has, in difficult circumstances, stepped up to his responsibilities and is providing appropriate and loving care of the child and I was impressed by his evidence in the witness box where he referred to the fact that he was listening for the child’s voice outside, if he should be distressed, and his demeanour in giving that evidence was that he clearly cared and continues to care.

14. I am satisfied, too, that the child’s relationship with his mother is, in some respects, non-existent, which is a sad, but necessarily the conclusion I should reach from the evidence that I have before me.  I am satisfied that the child’s relationship with his grandmother, which is the father’s mother, is a factor I should take into account and I am satisfied again about the depth, quality and importance of that relationship to the child and the dedication of the paternal grandmother to the care of the child and her acceptance of a responsibility, which she probably did not think she would have any more, for looking after “little people”.

15. I also noted the extent to which the child’s mother has failed to take opportunities for participating in decisions about the child’s long-term welfare and her decision not to spend time with the child or to communicate with him.  I do not make any finding that these are due in any large measure to a deliberate decision on her part not to be involved with the child.  There may be reasons why this has not happened, but she has not taken opportunities that were otherwise available to her, even in these proceedings, to explain why it is that she has for whatever reason at this point not been able to participate in the child’s life.

16. To the extent that she has not done so, she has failed to fulfil her obligations in caring for the child and I take that factor into account as well. 

17. There will be no obvious changes to the child at the moment in his day-to-day circumstances if I am to make the orders sought and I note that this means that there will continue to be a significant geographic distance between the child and his mother.  This is a factor which essentially is one of her choosing, not of any other matter, and in such circumstances, it certainly is not a reason why I should make an order that the child live primarily with his father.  I say this without any disrespect at all intended to the father.  He is a very young parent to have the responsibilities he does, but I am satisfied from his evidence and that of his mother that he has demonstrated a capacity to provide for the needs of the child, including his emotional and intellectual needs.

18. I note one of the factors I am to take into account under s60CC(3)(h), is the fact that the child has an Aboriginal heritage.  I note the matters set out in paragraphs 98 to 102 of the father’s affidavit and I am satisfied that he will acknowledge the child’s right to enjoy his Aboriginal culture and I am satisfied that this is most likely to occur irrespective of any order I might make at this point. 

19. I am satisfied that there are no other matters which will bear upon my making the orders that I am asked to make and I will accordingly make them.

20. It is noted that this was a matter which proceeded on an undefended basis, but I was satisfied that the mother was aware of the proceedings and the nature of them.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 9 September 2013.

Associate: 

Date:  28 April 2015