Fello and Sternfeldt
[2014] FamCA 312
FAMILY COURT OF AUSTRALIA
| FELLO & STERNFELDT | [2014] FamCA 312 |
| FAMILY LAW – CHILDREN – Father failed to participate in hearing – Applicant is a non-parent – Mother deceased – Father has ongoing drug use and no prospect of rehabilitation – Child currently living with Applicant pursuant to interim Orders and has a settled routine – No deficiencies in respect of Applicant’s capacity – Whether the child would benefit from continuing a relationship with the father having regard to his drug use – What risk the father poses to the child in respect of his drug use and whether any such risk can be ameliorated by the father’s time being supervised – Paternal grandmother considered suitable supervisor – Order for the Applicant to have sole parental responsibility – Child’s current living arrangements determined to be in his best interests and are to continue |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZN(7) Family Law Rules 2004 (Cth) r 16.07 |
Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
Valentine & Lacerra And Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64
| APPLICANT: | Ms A Fello |
| RESPONDENT: | Mr Sternfeldt |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitors |
| FILE NUMBER: | PAC | 2504 | of | 2012 |
| DATE DELIVERED: | 15 May 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 6 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Morley |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitors |
Orders
That the Applicant maternal grandmother, Ms A Fello, have sole parental responsibility for the child T, born …, and for the purposes of this Order, the maternal grandmother shall notify the father and the paternal grandmother, Ms D, in relation to decisions with respect to the child’s health, education and/or major long-term issues in relation to the child.
That the child live with the Applicant.
That the child spend time with the father as follows:
(a) Each Saturday from 2.00 pm until 6.00 pm;
(b)For four (4) hours during the Christmas period each year, at times as agreed, or failing agreement, between 10.00 am. and 2.00 pm on Christmas Eve in 2014 and in each alternate year thereafter, and on Christmas Day in 2015 and each alternate year thereafter;
(c) On Father’s Day in each year from 10.00 am until 2.00 pm;
(d)At a time around the child’s birthday each year at times and on a date as agreed between the parties; and
(e) For such further and other periods as agreed between the parties.
That the father’s time with the child shall be in the presence of the paternal grandmother, Ms D, unless otherwise agreed.
That for the purposes of changeover, the paternal grandmother is to collect the child from the Applicant’s home at the commencement of the father’s time and the Applicant is to collect the child from the paternal grandmother’s home at the conclusion of the father’s time with the child, unless otherwise agreed.
That the Applicant is at liberty to suspend the child’s time with the father for up to six (6) weeks each year to go on holidays, but the Applicant shall provide to the father make up time for any missed visits.
That each party shall keep the other and the paternal grandmother advised at all times of their residential address and residential telephone number and emergency contact number.
That the Applicant shall do all things and sign all documents necessary to authorise and direct any preschool or school attended by the child to discuss with the father and the paternal grandmother the child’s preschool or school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the preschool or school and distributed to parents or relating to the child specifically and both parties and the paternal grandmother shall be entitled to fully participate in all and any activities at the preschool or school or connected with the preschool or school.
That within seven (7) days from the date of these Orders the father shall provide to the Applicant the child’s blue medical book.
That each party shall ensure that the other and the paternal grandmother is advised promptly of any medical emergency or significant illness suffered by or relating to the child, including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised or confined to bed.
That the child is permitted to travel internationally.
That the Applicant maternal grandmother, Ms A Fello, may apply for a passport for the child T, born … 2010, without first obtaining the consent of the father, Mr Sternfeldt.
That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household, in the presence or hearing of the child.
That, otherwise, all applications before the Court be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fello & Sternfeldt 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 2504 of 2012
| Ms A Fello |
Applicant
And
| Mr Sternfeldt |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The child in these proceedings is T, (“the child”) born in 2010. The child is the grandson of the Applicant maternal grandmother.
The child’s mother, Ms E Fello, died in January 2013 at the age of 21. At that time, the child was only two years of age.
The Respondent to the maternal grandmother’s application is the child’s father Mr Sternfeldt. The father is presently aged 39.
The maternal grandmother’s application is supported by the paternal grandmother.
The father has chosen not to participate in the proceedings when listed for trial.
The Applicant seeks orders that, in summary, provide for:
a)her to have sole parental responsibility for the child but to notify the father and the paternal grandmother in relation to decisions in respect to the child’s health, education and/or other major long-term issues in relation to the child;
b)for the child to live with her;
c)for the child to spend time with the father as follows:
i)each Saturday from 2.00 pm until 6.00 pm;
ii)time on Christmas Eve and Christmas Day in each alternate year;
iii)time on Father’s Day in each year;
iv)time on the child’s birthday as agreed in each year; and
v)such other times as may be agreed between the Applicant and the father
d)that the father’s time with the child is to be in the presence of the paternal grandmother, Ms D, unless otherwise agreed; and
e)various other specific orders in relation to changeovers, suspension of the father’s time to allow the Applicant to have holidays, keeping the other informed as to residential addresses and contact phone numbers, the Applicant authorising the child’s preschool or school to discuss the child’s progress with the father and the paternal grandmother, that the father provide to the Applicant the child’s blue medical records book, that the other party be notified promptly of any medical emergency or significant illness suffered by the child, that the father sign a passport consent for the child with that passport to be retained by the applicant and in default a passport issue for the child on the applicant’s application and mutual non-denigration.
These proceedings were commenced by the Applicant maternal grandmother on 13 June 2012 and, at that time, the child’s mother and the father were the Respondents to the application. On 13 June 2012 Orders were made facilitating substituted service of the application on the Respondent mother.
The father filed a Response on 14 September 2012 that, in summary, sought the following orders:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father;
c)that the child spend defined time with the Applicant maternal grandmother or as otherwise agreed; and
d)that the child spend time with the mother during such times as the child is with the Applicant maternal grandmother and under her supervision.
On 18 October 2012 interim Orders were made by Collier J that, in summary, provided:
a)that the child live with the Applicant maternal grandmother;
b)that the child spend time with the father for two hours each Tuesday afternoon and two hours each Saturday morning, with such time to be supervised by the paternal grandmother;
c)that the child have telephone contact with the father on Tuesday and Thursday evenings;
d)that the child spend time with the mother at such times as our agreed between the Applicant maternal grandmother and the mother, with such time to be supervised by the Applicant; and
e)that the Applicant be restrained from allowing the mother to live at her home or spend overnight time there.
The Court published short reasons for Judgment with the Court noting the mother’s non-engagement in the proceedings and the father producing a recent positive urinalysis report evidencing the presence of illicit substances, including amphetamines, methamphetamines and cannabis, in his urine.
On 23 August 2013 the matter was before Hannam J. The father’s solicitor was granted leave to withdraw from the proceedings and the father thereafter appeared unrepresented. The Court ordered:
a)the appointment of an Independent Children’s Lawyer;
b)the preparation of a family report;
c)that the father undertake further random urinalysis testing; and
d)that the father use his best endeavours to arrange for admission into a residential rehabilitation programme in respect of his drug use.
On 4 November 2013 the proceedings were again before Hannam J and the Court ordered:
a)that the father undergo random urinalysis testing at the request of the Independent Children’s Lawyer; and
b)that there be a short suspension in relation to the child’s time with the father with subsequent make up time.
On 30 January 2014 the Family Report was released and the proceeding were listed for trial directions on 3 February 2014.
On 3 February 2014 trial directions were made and on that date the father appeared in person. The directions included a direction that the parties file and serve any amended application and response, together with affidavits to be relied upon, by no later than 21 days before the commencement of the trial and that neither party may rely upon any documents filed other that in compliance with that direction without leave of the Court.
On 11 February 2014 the Independent Children’s Lawyer forwarded to the father a letter notifying him of the matter being listed for hearing for three days commencing on 6 May 2014. The Independent Children’s Lawyer forwarded further correspondence to the father on 24 February 2014 and on 10 April 2014 advising again as to the allocated hearing dates.
On 7 March 2014 the Registry sent the parties notification confirming that the proceedings had been listed for hearing commencing on 6 May 2014 for an estimated three days.
The proceedings were listed before a Registrar for a compliance check in relation to trial directions on 10 April 2014. There was no appearance by the father. The hearing dates commencing on 6 May 2014, allocating three days for trial, were confirmed by the Registrar. The Independent Children’s Lawyer was ordered to notify the father as to the confirmation of trial dates.
On 11 April 2014 the Applicant filed an Amended Initiating Application and affidavits to be relied upon by her at trial. On the same day those documents were forwarded to the Respondent father by way of service.
The Father’s Non-Attendance
Proceedings came before the Court on 6 May 2014 for hearing. There was no appearance by or on behalf of the Respondent father and the Court was informed that the paternal grandmother, who was present in Court, had been told by the father that he would not be present at Court and had no intention of attending.
The Independent Children’s Lawyer and counsel for the Applicant sought that the Court proceed to hear the matter, notwithstanding the father’s non-attendance.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(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.
(3)…
In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the father’s involvement and leave uncertain the circumstances of the child.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
…
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
The procedural background to these proceedings has been set out above. It is imperative that the child in these proceedings has his best interests considered not at some future indeterminate time, and at further cost to the taxpayer in relation to the Independent Children’s Lawyer and to the Applicant personally, but in a timely manner.
These are proceedings listed for trial. The father can be under no misconception as that circumstance. The Court has allocated significant resources to providing trial time and the author of the Family Report is available to give evidence, if required.
The Applicant maternal grandmother is entitled to have the application determined and the matter proceeded to determination by reason of rule 16.07.
Background
The Applicant maternal grandmother is 45 years of age and her husband, with whom she resides, is nearly 46 years of age. The maternal grandparents have been married for 24 years, the Applicant conceding that that relationship had been under stress as a consequence of the mother’s behaviour, mental health issues and her recent death, for which her family has sought appropriate counselling.
The maternal grandparents still have two daughters living in their household, aged 15 and 17.
The deceased mother commenced a relationship with the father when she was only 17 years of age. At that time the father was 34 years of age.
The mother suffered from mental health issues and problems with illicit drug use and alcohol. The relationship of the father and mother was characterised by drug use.
At the time of the birth of the child the relationship between the mother and father was on-again and off-again. Following the child’s birth the mother returned to reside in the Applicant’s home with the child. The father remained living in his family home and visited the mother and child and on occasions the mother and child visited the father’s family home. The relationship between the father and mother ended in late 2011.
On 10 January 2012 an Apprehended Domestic Violence Order protecting the mother from the father was made at the Local Court.
In March 2012 the father retained the child in his care without the consent of the Applicant. Shortly thereafter and in April 2012 the mother left the Applicant’s home and the Applicant had significant ongoing concerns in relation to the mother’s drug use and mental health. Proceedings were commenced by the Applicant in June 2012, as referred to above.
The child has been residing in the home of the maternal grandparents since 18 October 2012 and had been living in that household for various periods prior to the interim Orders. The Applicant has a settled routine for the child, who is currently attending preschool each Wednesday, although exhibiting some separation anxieties from the Applicant.
To the Applicant’s observation, the child is progressing well and is meeting his normal developmental milestones. The Applicant’s household is bilingual in both English and Italian and the child has a significant understanding of both languages.
The Applicant proposes that the child would attend the nearby local Catholic primary school when he commences formal schooling in 2016.
The child has a good relationship with the paternal grandmother, Ms D. Both grandmothers work cooperatively in relation to the child’s time with the paternal grandmother and supervised time with the father pursuant to the present interim Orders.
The relationship between the Applicant and the father is difficult. The Applicant finds it difficult to contact the father and most contact is made via the paternal grandmother. The father has, on occasion, been abusive to the Applicant, using foul language.
The Applicant expresses significant concern in relation to the father’s ongoing use of illicit drugs. Since the appointment of the Independent Children’s Lawyer, the father has failed to comply with requests for random urinalysis testing and has failed to engage in any form of drug rehabilitation program. The Applicant’s concerns are such that the child should only see his father under supervision and the Applicant is satisfied that the paternal grandmother is an appropriate person to undertake such supervision.
The paternal grandmother resides in a two-bedroom townhouse and she has the full-time care of her grandson J, aged 17. It appears that the father primarily resides at that home, but comes and goes.
The Applicant maternal grandmother was previously employed as a healthcare worker but left that work to care for the child on a full-time basis. Previously she had been employed in a specialist role for a government department and holds a tertiary qualification to that effect.
The maternal grandfather supports the Applicant. He is in full-time long-term employment in a commercial role and is able to provide appropriate financial support for their household.
The father is unemployed and there is little prospect of him providing child support to assist the Applicant.
The Family Report
The Family Report in this matter is dated 22 January 2014. It was released to the parties on 30 January 2014 and is Exhibit A.
The Family Reporter conducted interviews with the Applicant and her husband, the father and the paternal grandmother.
The Applicant describes her relationship with the child as very loving, affectionate and talkative and said that the child was very attached to her and had been reluctant to separate from her to attend preschool. The Applicant reported that the father was very loving towards the child but that the father’s lifestyle was not stable or safe as a consequence of his ongoing use of illegal substances and her suspicions that he was in fact dealing drugs, although she was of the view that the father would not intentionally harm the child.
Appropriately, the Applicant reported that the child did not quite understand the circumstances that his mother had passed away. The Applicant said the child refers to his mother as “Mummy in heaven” and to herself as “Mummy here on Earth”.
The Applicant sought sole parental responsibility as she said it was “hard to reason” with the father and such an arrangement would make things more settled for the child. The Applicant complained that the father was difficult to contact on many occasions and her only real means of contact was through the paternal grandmother. She described her present relationship with the father as “respectable”, it appears subject to her not raising with him issues in relation to the father’s ongoing drug use.
On interview with the Family Reporter the father was of the view that it was in the child’s best interests for the child to live with him. He expressed frustration regarding the Court proceedings, commenting that they were “ridiculous” and stating that the child was not in danger and had never been hit by him. The father described his relationship with the child as good and that he had a good relationship with the Applicant but the relationship was “different to a mum and son and dad and son” relationship.
The father proffered the opinion that the only thing that the maternal grandparents can offer the child is money.
The father attributed responsibility for the mother’s drug use and lifestyle to the maternal grandparents “upbringing of their daughter”, adding that they “paid the ultimate price in losing their daughter”.
As to his drug use, the father reported that he started using marijuana around the age of 17 and had “experimented with all of them”. He said that the mother had been using “ice” daily. At the time of interview, the father denied he was currently using drugs but said that he had used amphetamines approximately 3 times in the last three or four months, including using about three weeks before the Family Report interview. The father said that he had “given up now, more or less” in seeking treatment regarding drug use, saying that none of the strategies recommended by intervention services helped and that it “brings up a lot of stuff”.
The paternal grandmother, Ms D, informed the Family Reporter that the father wanted to spend more time with the child and had said that his “end goal” was for the child to live with him. The paternal grandmother reported that she had told the father that this was a “long way off” and was of the view that ideally the father would be able to collect the child and would not need a “minder”. She was hopeful that the father might be able to have a life so that, if something happened to her, he could manage on his own. She was uncertain as to what support the father might need to achieve this but would like to see him “do a stint in rehab”. She informed the Family Reporter that she would continue to assist when the child was spending time with the father, depending on the amount of time involved. She had ongoing concerns in relation to the child’s safety and well-being as a consequence of the father’s ongoing drug use, him having used “quite an array” of drugs.
Following observation sessions with the child that also included the Applicant’s two daughters, the reporter observed that the child appeared to have a close and established relationship with the Applicant, her husband and her two children. The Applicant consistently demonstrated an ability to engage the child in a manner appropriate to his developmental level and sensitive to his needs. The Applicant’s husband was less attuned in this regard, but the Applicant appropriately intervened. The child was observed to have established relationships with the Applicant’s husband and her two daughters.
The child appeared to have a close and established relationship with the father and established relationships with the paternal grandmother, Ms D, and the child’s half-sister E, aged 17, who lives with her mother. The Family Reporter observed that there were some concerns regarding the father’s ability to prioritise the child’s needs above his own.
It was noted by the Family Reporter that there were no indications during the assessment that the Applicant had significant deficits in her parenting capacity and further noted that there were no concerns or allegations in relation to the Applicant’s younger daughter using drugs or behaving in a manner that would suggest they are beyond parental control. The father’s account of factors that may have contributed to the mother’s drug use and untimely death appeared to minimise any influence or impact of his own drug-taking behaviour. This, says the Family Reporter, is of particular concern given his report that he and the mother used drugs together.
The father provided to the Family Reporter inconsistent and contradictory information regarding his current drug use and the reporter observes that substance abuse reduces the likelihood that a parent would be consistently able to provide sensitive and sustained parenting and such a parent would present with decreased emotional availability with children, potentially experiencing their parents as inconsistent, confusing or frightening. Substance abuse, says the reporter, also decreases a parent’s ability and availability to appropriately respond to any confusion or fear in the child, which can, in turn, lead to emotional and/or behavioural difficulties for the child.
The Family Reporter observed:
[The father] presented as self-focused during interview and demonstrated no understanding of the potential impact of his drug use on [the child] or the concerns that had resulted in [the child] residing with [the Applicant]. He did not appear to take responsibility for his drug use or behaviour, instead attributing responsibility to his own childhood experiences. [The father]’s presentation during interview and information he provided regarding his reason(s) for using drugs appeared to indicate that he had little to no motivation in abstaining from drug use. This raises significant concerns regarding [the father]’s willingness and ability to make significant and sustained changes to reduce any potential risk of harm to [the child] and prioritise [the child’s] needs above his own.
In assessment, the Family Reporter said that the child would most benefit from a stable and secure environment where he consistently felt safe from risk of harm. There were no indications during the assessment that the Applicant was not providing this for him. In contrast, it would appear that the father does not currently have the ability to consistently identify and meet the child’s needs and prioritise these above his own. As such, the Family Reporter recommended that the child continue to live with the Applicant and spend appropriate time with the father.
It was further recommended by the Family Reporter that arrangements for parental responsibility be the subject of judicial determination.
Issues for determination
The issues for determination are:
a)Can the Applicant apply for parenting orders as a person concerned with the care, welfare and development of the child?
b)Is the Applicant a person concerned with the care, welfare and development of the child (section 65C of the Act)?
c)What are the relevant matters in determining the child’s best interests?
d)Who should have parental responsibility?
e)With whom should the child live?
f)What time should the child spend with each of the parties?
g)What, if any, other orders should be made in the best interest of the child?
Can the Applicant apply for parenting orders as a person concerned with the care, welfare and development of the child?
Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The Applicant therefore is able to apply for parenting orders pursuant to subparagraph (ba) of that section.
It is clear having regard to the circumstances of the child both historical and at present as referred to above that the Applicant is concerned with the care, welfare and development of the child.
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
(a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
(c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the Applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the Applicant by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …
The Full Court in Yamada & Cain [2013] FamCAFC 64 said:
19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.
…
21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …
…
25. In Donnell, the Court went on to say … [at [101] and [102]]:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. … (emphasis added)
As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
Finally, the Full Court in Yamada & Cain (supra) said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)
The Additional Considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are as follows:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The child is young and for the purposes of the Family Report was not engaged other than for the purposes of observing his relationships with the parties and other significant persons.
(b) the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The nature of the children’s relationships with the Applicant and the father, together with other significant persons has been considered above.
The child has an established relationship with the Applicant and her family. The child’s relationship with the father is established but overshadowed by capacity issues relating to his drug-taking and lifestyle, which are discussed further below. The child’s relationship with the Applicant is important and meaningful to the child.
Prospectively, it is in the best interests of this child for that relationship to continue as it provides stability and a protective measure for the child.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;
The father’s failure to participate in these proceedings and in respect of child-related issues is clear. His capacity to do so in the future is problematic by reason of his lifestyle choices that put his own interests in priority to those of his child. The obligations in this regard have fallen to the Applicant, who has discharged the responsibility well.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child is settled in the Applicant’s household and in having time with the paternal grandmother and, under her supervision, the father. Any change to this arrangements presents risks to the child if he were to reside in the father’s household, by reason of his drug-taking and lifestyle, in respect of which he sees no need for rehabilitation.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a significant consideration in this case. The father is able to see the child at his mother’s home, where he mostly resides and the paternal grandmother is able to continue to supervise his time.
(f) the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs; the matters referred to above demonstrate that a determination of this issue will need to await a full hearing.
The Applicant is not subject to any reservations in this regard. However, the evidence and the Family Reporter’s opinion demonstrate significant defects in the father’s capacity, as referred to in paragraphs [60] to [63] above. This is indicative that the child’s present living arrangements should be maintained.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The child is now aged only three. His immaturity requires a consideration of orders that are protective of him and otherwise his Italian heritage will be promoted in the Applicant’s household.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Applicant, in the unfortunate circumstances that the child has come into her care, has demonstrated an appropriate attitude to the child and the responsibilities of parenting him. The father’s historical shortcomings have been referred to above and, combined with risks in relation to his ongoing drug and lifestyle, it is a matter of conjecture whether into the future his attitude to the child and his parental responsibilities will improve.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are final proceedings. The orders to be made consider the child’s present circumstances and his best interests into the future. Absent a significant change in the child’s circumstances, the orders to be made are at present the least likely to lead to further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
As noted above, this additional consideration facilitates consideration of the best interest factors conveniently in relation to the Applicant, who is a non-parent.
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
This first primary consideration does not arise in this case as the mother has died and the child is therefore unable to have the benefit of a relationship with both parents.
In any event, in respect of the benefit to the child in having a meaningful relationship with the father, the child’s relationship with the father at present is fraught with underlying concerns, as referred to above. It is to be inferred that a father-child relationship on that basis cannot be something that is meaningful to the child, save in circumstances where his time with the child is supervised as proposed.
This primary consideration is not applicable to the Applicant, being a non-parent, but the relationship between the child and the Applicant is one of significance and it has been considered above in the context of the additional considerations.
The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to this consideration.
This is a significant issue for this young child. The Applicant’s care is protective of the child, particularly having regard to the father’s present lifestyle and his unwillingness to seek rehabilitation. The protection of the child is facilitated by his present living arrangements continuing and the father having time with the child under supervision.
Who should have parental responsibility?
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [71] above.
An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.
As this matter involves a non-parent, the presumption does not apply.
The issue falls to be determined by a consideration of the child’s best interests. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.
Those considerations are clearly indicative of the Applicant having sole parental responsibility for the child, but with an obligation to inform the father of relevant decisions.
The Court is required, should the s 61DA presumption apply, to give consideration to the provisions set out in s 65DAA of the Act as to whether a child spending equal time with each of the parents is in the best interests of a child and reasonably practicable, and if so, to consider making an order for such equal time. If not, then the Court is required to consider whether a child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.
With no presumption applicable or order for shared parental responsibility possible, the orders to be made fall to be determined by reference to the best interests considerations set out above.
What orders are in the child’s best interests?
The Applicant and Independent Children’s Lawyer provided to the Court a minute of order agreed upon between them (Exhibit F) and sought that those orders be made in these proceedings. In summary, the minute provided for orders as follows:
a)that the Applicant maternal grandmother have sole parental responsibility for the child and notify the father and paternal grandmother in relation to decisions with respect to the child’s health, education and or other major long-term issues;
b)that the child live with the Applicant;
c)that the child spend time with the father as follows:
i)every Saturday from 2.00 pm until 6.00 pm;
ii)at times on Christmas Eve and Christmas Day in alternate years;
iii)that the father’s time with the child be in the presence of the paternal grandmother, unless otherwise agreed;
d)that the paternal grandmother facilitate changeovers, unless otherwise agreed;
e)that the Applicant be at liberty to suspend the father’s time for up to six weeks each year to the purposes of holidays, but that there be provided to the father make up time;
f)that each party keep the other and the paternal grandmother advised of their residential address, residential telephone number and emergency contact number;
g)that the Applicant do all things necessary to authorise the child’s preschool or school to discuss with the father and the paternal grandmother the child’s attendance and progress and the provision of reports and other relevant documents, and that the father and the paternal grandmother be entitled to fully participate in schooling activities;
h)that within seven days the father provide to the Applicant the child’s blue medical book;
i)that each party ensure that the other and the paternal grandmother is properly advised of any medical emergency or significant illness suffered by the child;
j)that the father do all things necessary to facilitate an Australian passport issuing for the child; and
k)that neither party denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.
For the reasons set out above, it is appropriate that the Applicant maternal grandmother have sole parental responsibility for the child, that the child have time with the father as proposed by the Independent Children’s Lawyer and the Applicant and that other orders sought by the Independent Children’s Lawyer and the Applicant should be made as they are in the best interests of the child.
Orders will be made accordingly.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 May 2014.
Legal Associate:
Date: 15 May 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence