Felton & Anor & Chupin

[2019] FamCA 741

FAMILY COURT OF AUSTRALIA

FELTON AND ANOR & CHUPIN [2019] FamCA 741

FAMILY LAW – CHILDREN – Undefended hearing – Best Interests – Where the applicants are non-parents – Where the mother has expressed consent to orders sought but disengaged due to ill health – Where father has no relationship with the child – Where there is a history of family violence perpetrated by the father – Where there are serious concerns as to the mother’s capacity to care for the child – Where the applicants the maternal grandmother and her partner have had the primary care of the child for some years – Where orders made as sought in the earlier Application for Consent Orders sought by the maternal grandmother, her de facto partner and the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Dispense with service – Where maternal grandmother and the de facto partner seek that service be dispensed with upon the father – Where there is an unacceptable risk of harm to the child and the mother – Where the father has failed to make attempts to spend time with the child since birth – Where the father’s whereabouts is unknown – Where order made dispensing with service.

Family Law Act 1975 (Cth)  ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT: Ms Felton

SECOND APPLICANT: Ms Paprocki

RESPONDENT: Ms Chupin

FILE NUMBER: PAC 863 of 2019

DATE DELIVERED: 14 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 July 2019

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: Ms Messner

SOLICITOR FOR THE FIRST APPLICANT: Sydney Law Group Pty Ltd

COUNSEL FOR THE SECOND APPLICANT: Ms Messner

SOLICITOR FOR THE SECOND APPLICANT: Sydney Law Group Pty Ltd

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders Made On 22 July 2019

Parenting Orders

1. That the First and Second Applicants have joint parental responsibility for the child, namely X born … 2013 and currently 5 years of age (“the child”).

2. That the child shall live with the First and Second Applicants.

3. Subject to Order 4, that the child will spend time with the Respondent mother as follows:

   3.1For a minimum of 3 hours each week at times arranged between the parties;

   3.2For a minimum of 2 hours on the child’s birthday being … of each year;

   3.3For a minimum of 2 hours on the Respondent mother’s birthday being … of each year;

   3.4For a minimum of 3 hours during the period 20 December to 25 December of each year for Christmas celebrations.

   3.5For a minimum of 2 hours on Mother’s Day each year;

   3.6At such other or additional times as is agreed between the parties from time to time.

4. The Respondent mother’s time with the child is to occur as follows:

   Supervised by the First and/or Second Applicant;

   4.1Order 3.1 – At times mutually convenient to the parties and in any structure, including several shorter blocks of time, taking into account the needs and activities of the child and the health of the Respondent mother.

   4.2Order 3.4 – At a time mutually convenient to the parties taking into account any arrangements which may be made by the Applicants to travel away from Sydney during each school holiday period.

5. The First and Second Applicants are to have the sole responsibility for giving consent and making arrangements for the issue of the child’s passport.

6. The Mother’s time with the child is suspended during periods when the Applicants are travelling with the child with such travel to be limited to a total period of 12 weeks during any year.

7. During any period that the child is travelling with the Applicants in accordance with Order 6, the Applicants will arrange for the child to communicate with the mother during each seven day period using any digital method available including but not limited to FaceTime or Skype.

8. From the age of 12, the mother’s time with the child is suspended during periods when the child is travelling in accordance with arrangements made by or through her school including for any Duke of Edinburgh, antipodean, charitable or similar activities.

9. That the Applicants will keep the Respondent mother informed of the following:

   9.1Any school at which the child is attending;

   9.2Any issues which may arise in relation to the child’s health;

   9.3Any arrangements made by the Applicants to travel with the child.

10. The Applicants will provide the mother with a copy of all academic school reports issued for the child.

11. If the mother is unable to spend time with the child in accordance with these orders, there is no accrual of time spent with the child and the mother forgoes that time with the child.

Dispensing with Service

1. That service of the proceedings on the father, Mr B be dispensed with.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 863 of 2019

Ms Felton

First Applicant

And

Ms Paprocki

Second Applicant

And

Ms Chupin

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the Applicant maternal grandmother, Ms Felton (“the maternal grandmother”) and her partner, Ms Paprocki (“the partner”), by Initiating Application filed 18 April 2019 in the Family Court of Australia.

2. The Initiating Application was filed pursuant to orders made on 18 March 2019 following consideration of an Application for Consent Orders filed on 26 February 2019 (Exh “A”) by the maternal grandmother and the partner and the Respondent mother seeking final parenting orders.

3. The application seeks final parenting orders in relation to the child X born in 2013 (“the child”) currently six years of age.

4. The child has lived with the maternal grandmother and the partner on a permanent basis since 3 September 2016 on which the maternal grandmother and the partner assumed primary responsibility for the day-to-day care of the child.

5. Mr B, who is alleged to be the biological father, was not joined to these proceedings and an Application in a Case was filed on 24 April 2019 seeking that service be dispensed with.

Context

1. The maternal grandmother born in 1951 and the partner born in 1963 commenced living in a domestic relationship in August 1989.

2. The Respondent mother was born in 1982 and Mr B was born in 1977.

3. The mother and Mr B commenced cohabitation in 2011/2012.

4. In 2012 the mother fell pregnant.

5. The mother and Mr B separated mid-way through the pregnancy and the mother moved in with the maternal grandmother and the partner.

6. Mr B has had no meaningful engagement with the child.

7. In 2013, the child was born and upon release from the hospital the mother and the child returned to live with the maternal grandmother and the partner.

8. In or about May 2013 the mother and the child moved back in with Mr B but following domestic violence returned to live with the maternal grandmother and the partner in or about September 2013.

9. The child has lived with the maternal grandmother and the partner on a permanent basis since September 2016.

The proceedings

1. On 26 February 2019 an Application for Consent Orders (Exh “A”) was filed by the maternal grandmother and the partner and the Respondent mother seeking final parenting orders as follows:

   (1)That the First and Second Applicants have joint parental responsibility for the child, namely X born … 2013 and currently 5 years of age (“the child”).

   (2)That the child shall live with the First and Second Applicants.

   (3)Subject to Order 4, that the child will spend time with the Respondent mother as follows:

   3.1For a minimum of 3 hours each week at times arranged between the parties;

   3.2For a minimum of 2 hours on the child’s birthday being … of each year;

   3.3For a minimum of 2 hours on the Respondent mother’s birthday being … of each year;

   3.4For a minimum of 3 hours during the period 20 December to 25 December of each year for Christmas celebrations.

   3.5For a minimum of 2 hours on Mother’s Day each year;

   3.6At such other or additional times as is agreed between the parties from time to time.

   (4)The Respondent mother’s time with the child is to occur as follows:

   4.1Supervised by the First and/or Second Applicant;

   4.2Order 3.1 – At times mutually convenient to the parties and in any structure, including several shorter blocks of time, taking into account the needs and activities of the child and the health of the Respondent mother.

   4.3Order 3.4 – At a time mutually convenient to the parties taking into account any arrangements which may be made by the Applicants to travel away from Sydney during each school holiday period.

   (5)The First and Second Applicants are to have the sole responsibility for giving consent and making arrangements for the issue of the child’s passport.

   (6)The mother’s time with the child is suspended during periods when the Applicants are travelling with the child with such travel to be limited to a total period of 12 weeks during any year.

   (7)During any period that the child is travelling with the Applicants in accordance with Order 6, the Applicants will arrange for the child to communicate with the mother during each seven day period using any digital method available including but not limited to Facetime or Skype.

   (8)From the age of 12, the mother’s time with the child is suspended during periods when the child is travelling in accordance with arrangements made by or through her school including for any Duke of Edinburgh, antipodean, charitable or similar activities.

   (9)That the Applicants will keep the Respondent mother informed of the following:

   9.1Any school at which the child is attending;

   9.2Any issues which may arise in relation to the child’s health;

   9.3Any arrangements made by the Applicants to travel with the child.

   (10)The Applicants will provide the mother with a copy of all academic school reports issued for the child.

   (11)If the mother is unable to spend time with the child in accordance with these orders, there is no accrual of time spent with the child and the mother forgoes that time with the child.

2. On 5 March 2019, the matter came before a registrar for directions who declined to make the orders by consent and listed the matter for judicial case management to 18 March 2019.

3. On 18 March 2019 the matter came before the Court for judicial case management. Orders were made that:

   a)an application initiating proceedings be filed; and

   b)that the parties meet with a family consultant for the purposes of the preparation of a Child Responsive Memorandum, and

   It was noted that the Applicants would be making an application for an order for substituted service or dispensing with service on the father.

4. On 18 April 2019 the maternal grandmother and the partner filed, pursuant to orders made on 18 March 2019, an Initiating Application seeking final parenting orders.

5. The parties met with the family consultant on 23 April 2019.

6. On 24 April 2019 the maternal grandmother and the partner filed an Application in a Case seeking an order that service of the proceedings on Mr B be dispensed with.

7. On 8 May 2019 the Child Responsive Memorandum was released to the parties.

8. On 22 July 2019 the matter was listed for judicial case management. There was no appearance by or on behalf of the Respondent mother nor Mr B and the matter proceeded to undefended hearing.

9. Final orders were made in terms as previously set out in the Application for Consent Orders (Exh “A”) signed by the maternal grandmother and the partner on 7 November 2018 and signed by the mother on 5 December 2018 and filed on 26 February 2019.

Dispensing with service

1. Rule 7.18 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Service with conditions or dispensing with service

   (1) A party who is unable to serve a document may apply, without notice, for an order:

   (a)…

   (b)to dispense with service of the document, with or without conditions.

   (2) The factors the court may have regard to when considering an application under subrule (1) include:

   (a)the proposed method of bringing the document to the attention of the person to be served;

   (b)whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

   (c)whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

   (d)the likely cost of service; and

   (e)the nature of the case.

   (3)If the court orders that service of a document is:

   (a)dispensed with unconditionally; or

   (b)dispensed with on a condition that is complied with;

   the document is taken to have been served.

   Note:  An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).

2. Rule 7.18 deals with dispensing with service and indicates that there are a number of factors the Court may have regard to when considering such an application. One of them is the consideration of the nature of the case.

3. The maternal grandmother and the partner seek an order that service upon Mr B be dispensed with on the basis that:

   a)The father poses an unacceptable risk of harm to the child and the family; and

   b)The father has failed to make any attempt to spend time with the child since shortly after she was born in 2013; and

   c)His location and current residential address is unknown.

4. In considering the nature of the case, the question of whether the father poses an unacceptable risk of harm to the child and the family is a grave and important matter.  This is undoubtedly supportive of an order dispensing with service.

5. In support of the application to dispense with service of the proceedings on Mr B, the maternal grandmother and the partner rely on an affidavit of the maternal grandmother sworn 7 November 2018.

6. In her affidavit the maternal grandmother states the mother and a man known as Mr B were in a relationship and living together in 2012 when the mother fell pregnant. The mother separated from Mr B midway through the pregnancy and moved into the maternal grandmother’s and the partner’s home.

7. In early 2013 the child was born and the mother telephoned Mr B who then attended the hospital resulting in a huge verbal argument.

8. Mr B did not attend the ante natal clinic appointments and was not involved with the pregnancy.

9. On discharge from hospital the mother and child returned to the maternal grandmother’s and the partner’s home.

10. In or about May 2013, the mother and the child moved in with Mr B.

11. The maternal grandmother assisted the mother facilitating a connection with Suburb E Community Mental Health Service and Early Childhood Centre as she was worried about the mother’s relationship with Mr B. However, Suburb E Community Mental Health Service advised the maternal grandmother that contact was unable to be made with the mother. The maternal grandmother then collected the mother and the child in order to take them to an appointment with the Suburb E Community Health Centre. The mother was withdrawn looking very afraid and said words to the effect, “Mr B won’t let me come here”.

12. In or about September 2013 Mr B became violent and controlling and the mother contacted the maternal grandmother requesting they meet at Suburb E Police Station. The mother appeared terrified and made a statement to police. Subsequently, a final apprehended domestic violence order was put in place by the Court for two years.

13. At this time the mother had a serious mental health breakdown and was admitted to PECC Unit at F Hospital. On discharge in or about October/November 2013 the police arranged for the mother and the child to be placed in a protected refuge for mothers and babies in Suburb G as they wanted to make sure that the mother and child were protected from Mr B.

14. Subsequently, the mother returned with the child to live with the maternal grandmother and the partner.

15. The maternal grandmother recalled the mother saying words to the effect:

    “Mr B has refused to go onto the birth certificate. He wants nothing to do with the baby. He won’t pay child support.”

16. The maternal grandmother and the partner are unaware of Mr B’s whereabouts and for the reasons set out above no attempts have been made to find his whereabouts.

17. It is under those circumstances that an order is sought to dispense with service and based on the above the Court is satisfied in all of the circumstances that it is in the best interests of the child that an order to dispense with service of the proceedings on Mr B be made. An order dispensing with service will be made accordingly.

Context

1. On 23 April 2019 the maternal grandmother, the partner and the mother attended the Child and Parent Intake assessment interviews and the mother advised the Family Consultant that she believed it was in the child’s best interest that the child live with the maternal grandmother and the partner as she was not well and unable to care for the child.

2. A Child Responsive Program Memorandum (Exh “B”) was prepared by Family Consultant Ms McCall and released on 8 May 2019. In her memorandum the Family Consultant stated:

   Ms Chupin acknowledged that she believes it is in X’s best interest to live with Ms Felton and Ms Paprocki, stating she has explained to X that she is not well and not able to care for X at the moment.

3. On 15 July 2019 the maternal grandmother filed an affidavit sworn 15 July 2019 providing an update on the mother’s health. The mother was admitted to the crisis mental health facility called the PECC Unit at C Hospital on three separate occasions, approximately one admission per month.

4. A number of attempts were made for the mother to spend time with the child since April 2019, however, the mother has spent less time with the child.

5. On 22 July 2019 the matter was listed for judicial case management. There was no appearance by or for the mother. Counsel for the maternal grandmother and the partner advised the Court that although the mother was out of hospital on that day, she was continually in and out of hospital due to her mental health and relied upon the affidavit of the maternal grandmother sworn 15 July 2019 attesting to the mother’s mental health.

6. Counsel for the maternal grandmother and the partner also relied on the Child Responsive Program memorandum and submitted that although the mother was not in attendance in Court there was sufficient evidence to find that the mother consents to the orders being made as sought in the Application for Consent Orders. Such submission is readily accepted.

7. Based on the above, it was appropriate to proceed on an undefended basis. By reason of the child’s settled circumstances with the maternal grandmother and the partner, the matter proceeded on an undefended basis and orders were made with reasons to be published at a later date.  These are those reasons for judgment.

The maternal grandmother’s documents

1. At trial the maternal grandmother relied on the following documents:

   a)Application in a Case filed 18 April 2019 to dispense with service on the father;

   b)Initiating Application filed 18 April 2019;

   b)Her affidavit sworn 7 November 2018;

   c)Her affidavit sworn 15 July 2019;

   d)Notice of Child Abuse, Family Violence or Risk of Family Violence efiled 26 February 2019.

The evidence

1. The maternal grandmother, who is aged 69, and the partner, who is aged 56, commenced cohabitation in August 1989.

2. The mother was born in 1982 and Mr B was born in 1977.

3. The mother was almost seven years of age when the maternal grandmother and the maternal grandfather separated. Since the maternal grandparents’ separation various orders were made resulting in the mother moving frequently between the maternal grandparents’ homes and changing schools frequently. Final orders were made that the mother live with the maternal grandfather, but then returned to the maternal grandmother’s home at the commencement of high school.

   The mother’s mental health

4. The mother has had a long history of mental health problems.

5. As a young teenager, the mother was diagnosed with anxiety, depression and having very strong personality traits. The maternal grandmother became aware that the mother was taking non-prescription drugs in or about 1996.

6. The mother continued to abuse alcohol and drugs, could not hold down employment and was in abusive relationships. The mother moved back home from time to time, however, was very unstable emotionally and her behaviour was unpredictable. The mother was often aggressive and at times the maternal grandmother had asked her to leave.

7. Throughout her 20’s the mother was hospitalised for substance abuse and/or mental health instability on approximately ten separate occasions and was diagnosed with:

   a)Complex borderline personality disorder;

   b)Anxiety;

   c)Depression;

   d)Eating disorder;

   e)Substance abuse of prescription medication; and

   f)Complex Post Traumatic Stress Disorder (“PTSD”).

8. The mother did not actively participate in the treatments prescribed whilst in hospital and did not attend regular follow up treatment and appointments as an outpatient and although she stopped drinking at the age of 21 she continued to abuse both illicit drugs and prescription medication.

9. The mother and Mr B commenced cohabitation in 2011/2012.

10. The mother fell pregnant in 2012 and separated from Mr B midway through the pregnancy at which time she moved in with the maternal grandmother and the partner. The maternal grandmother attended the ante natal clinic appointments with the mother.

11. During the pregnancy the mother was under the care of a Psychiatric Registrar at C Hospital who paid close attention to the mother’s mental health. The mother told the ante natal staff “I have stopped taking any drugs. I want to do the best for the baby.”

12. The maternal grandmother believed that the mother had stopped taking all illicit drugs and abusing prescription medication.

13. Mr B was not involved with the pregnancy.

14. In 2013 the child was born. The mother telephoned the father and he attended the hospital at which time a huge verbal argument ensued.

15. Upon release from hospital, the mother and child returned to the maternal grandmother’s and the partner’s home.

16. In or about May 2013 the mother and child moved in with Mr B.

17. The maternal grandmother assisted the mother facilitating a connection with Suburb E Community Mental Health Service and Early Childhood Centre as she was worried about the mother’s relationship with Mr B. However, Suburb E Community Mental Health Service advised the maternal grandmother that contact was unable to be made with the mother. The maternal grandmother then collected the mother and the child and took them to an appointment with the Suburb E Community Health Centre. The mother appeared withdrawn looking very afraid and said words to the effect, “Mr B won’t let me come here”.

18. In or about September 2013 Mr B became violent and controlling and the mother contacted the maternal grandmother requesting they meet at Suburb E Police Station. The mother appeared terrified and made a statement to police at which time an apprehended domestic violence order was put in place by the Court for two years.

19. The mother then returned with the child to live with the maternal grandmother and the partner.

20. The maternal grandmother recalled the mother saying words to the effect:

    “Mr B has refused to go onto the birth certificate. He wants nothing to do with the baby. He won’t pay child support.”

21. In September 2013 the mother had a serious mental health breakdown and was admitted to PEC Unit at F Hospital. The maternal grandmother and the partner cared for the child during this time.

22. On discharge from F Hospital in or about October/November 2013 the police arranged for the mother and child to be placed in a protected refuge for mothers and babies in Suburb G as they wanted to make sure that the mother and child were protected from Mr B.

23. In or about late 2014, the mother and child moved from the refuge to the H Centre at Suburb J, a service for mentally ill mothers and babies. The service provides a 24/7 onsite supervision and access to parenting programs, group therapy and psychiatric treatment. The mother continued to see her psychiatrist, Professor K and was doing well.

24. In late 2015, the mother and child were discharged from the H Centre to live independently with the child in the community but shortly after discharge the mother began to struggle with the child’s care and the day-to-day activities. During this time the maternal grandmother provided assistance at least a couple of times each week and recalls the mother was taking large amounts of prescription medication. The maternal grandmother and the partner assisted the mother with support and had the child with them several times a week.

25. On several occasions the maternal grandmother was unable to reach the mother by telephone. She would drive to the mother’s home on occasions finding the mother to be fine and on other occasions to be staggering around, slurring her words and falling over resulting in the child spending a few nights each week in the maternal grandmother’s and the partner’s home.

26. The mother commenced experiencing seizures, however, following multiple neurological tests the doctors could not find a cause. However, a general practitioner in Suburb L thought the mother may have been experiencing Serotonin Syndrome caused by mixed medications reacting against each other.

27. The seizures continued even though she was prescribed anti-seizure medication causing her to have a couple of car accidents. The mother was frequently transported to L Hospital by ambulance due to these seizures or near overdoses.

28. Suburb M Mental Health team recommended and arranged for the mother to undergo therapy, however, the mother failed to attend these appointments and never complied with suggested treatments for her mental health.

29. In September 2016, the mother’s health declined where she was no longer able to look after the child on her own.  The mother and child moved back in with the maternal grandmother and the partner with the mother retreating to her room and binging on pills. The maternal grandmother and the partner took on most of the day-to-day care of the child and paid for the child’s activities such as day care and swimming lessons as well as clothes and food.

30. The child has been living with the maternal grandmother and the partner on a permanent basis since September 2016.

31. In January 2018, the mother was admitted to the N Hospital for treatment remaining until May 2018 and then continued as a voluntary patient until July 2018 when she was discharged with antipsychotic medication. When the mother takes the medication she experiences side effects such as sleeping for very, very long periods of time, sometimes for days on end.

32. In early February 2018 the child commenced kindergarten at Suburb O Public School. The maternal grandmother and the partner prepared and took the child to school on her first day and have been active participants in her schooling since that time.

33. In or about July 2018, the mother moved into a housing commission apartment at Suburb P NSW about a 10 minute drive from the maternal grandmother’s and the partner’s home.  The child remained in the care of the maternal grandmother and the partner. The maternal grandmother and the partner have taken the child to spend time with the mother but always in the presence of either the maternal grandmother or the partner.

34. Although the mother is still under the supervision of the Suburb O Mental Health Team and treatment groups and one-to-one psychotherapy sessions have been organised, the mother has not participated in them. The mother continues to struggle with her addiction to prescription medication.

35. The mother turns up about two to three times per month at school when the child is being dropped off in the morning.

36. Between November 2018 and March 2019, the mother has been readmitted to the crisis mental health facility called the PECC Unit at C Hospital on three separate occasions, with each admission being approximately once each month. On those occasions the mother said words to the effect “I am trying to go back into N Hospital”.

37. The last occasion was in approximately June 2019. When the mother was in the PECC Unit she called the maternal grandmother and said words to the effect:

    “There is a lady who is very loud and crying. I can’t cope with her. I punched the wall and my hand is broken … I punched the wall twice.”

38. Since April 2019 the mother has spent less time with the child even though the maternal grandmother and the partner have made regular contact endeavouring to encourage the mother to spend time with the child. The maternal grandmother states that it can be several weeks before the mother spends any time with the child, a pattern not unusual for the mother which reflects the mother’s mood cycles.

39. In or about June 2019 the maternal grandmother invited the mother to attend the parent teacher interview at the child’s school.  The mother did not attend. In or about July 2019, the maternal grandmother invited the mother to attend the child’s school disco. The mother did not attend.

Child Responsive Memorandum

1. On 23 April 2019 the maternal grandmother, the partner, the mother and the child attended on a Family Consultant for the purpose of the preparation of a Child Responsive Memorandum.

2. At that time the child was living with the maternal grandmother and the partner on a permanent basis and has been since September 2016 and that the child was progressing well at school and participates in dance, piano and swimming classes each week. The child had not spent time with Mr B since she was an infant.

3. The maternal grandmother and the partner each reported that the child wears glasses but had no other medical or developmental concerns.

4. The parties further reported the child sees a counsellor, Mr Q, about once a month and that he reported no concerns about the child’s emotional wellbeing and development.

5. The parties each reported that the child spends time with the mother as agreed between the parties, however, the mother said that she would ideally like to be able to spend time with the child on special occasions such as Easter, Christmas and birthdays. The mother said she was upset when the maternal grandmother and the partner took the child away for the Easter holidays, however, feels confident negotiating this issue with them.

6. In relation to the child, the Family Consultant reported the following:

   X presented as a friendly and cooperative child. She engaged in conversation about her family, school and interests.

   X spoke positively of her relationships with Ms Felton, Ms Paprocki and Ms Chablis. X described Ms Felton as “kind” and said that Ms Felton loves her very much. X said that Ms Paprocki is a “really good cook” and that she plays games such as monopoly and snakes and ladders with her. X said that Ms Felton and Ms Paprocki take it in turns to read her books, bath her and prepare her meals.

   X described Ms Chupin as “kind” and said that Ms Chupin would like her to sleep at her house. X said that when she spends time with Ms Chupin that they watch television, play games and X jumps on the bed.

   X said that if she had any worries that she would talk to either Ms Felton, Ms Paprocki or Ms Chupin. Similarly X identified that if she was hurt or upset that either Ms Felton, Mr Paprocki or Ms Chupin would comfort her.

   When asked if she had a father, X said that she does but said that he lives in another country. She explained that he used to live in Australia but moved away. She said she could not remember his name.

   X described school positively, stating that she enjoys playing with friends and learning maths, she also enjoys dance and piano lessons and talks about the pets in each household.

7. In relation to the mother, the Family Consultant reported the following:

   Ms Chupin [the mother] alleged that Mr B perpetrated family violence against her, stating that a final two year Apprehended Domestic Violence Order was made against Mr B in September 2013. Ms Chupin alleged that Mr B was verbally abusive stating that he would call her a “bitch” or “arsehole”. She further alleged that he took her bank card, would prohibit her from seeing her friends and family and controlled various aspects of her life. He gave an example, alleging that Mr B would monitor the amount of toilet paper she used. Ms Chupin alleged that Mr B would become physically violent, describing an incident when he was hold X, who was three weeks old at the time, in which Ms Chupin said that Mr B hit her in the head with his thong. Ms Chupin alleged multiple instances of physical violence perpetrated by Mr B. She also alleged that he sexually assaulted her during the relationship.

   Ms Felton, Ms Paprocki and Ms Chupin reported no current family violence concerns between them.

   Ms Felton and Ms Paprocki alleged that when Ms Chupin was using illicit substances as a teenager and young adult that she could become verbally and physically aggressive. Ms Chupin described a difficult childhood history in relation to both her parents, stating that Ms Felton was not tolerant of Ms Chupin expressing her emotions.

   Ms Chupin reported that she used illicit substances regularly in her late teens and young adult hood. She reported that she was using ecstasy, cocaine, cannabis and speed up to five times per week. Ms Chupin reported that she has not used illicit substances in over ten years.

   Ms Chupin reported that prior to being admitted to N Hospital in January 2018 she was misusing prescription medication. Ms Chupin explained that her mental health was not being managed well and she was misusing prescription medication to “numb” her pain and difficulties. Ms Chupin reported that since her mental health has been well managed she has not misused prescription medication.

   Ms Chupin reported that she has been diagnosed with borderline personality disorder, complex post-traumatic stress disorder, anxiety, depression and insomnia … she has required multiple hospital admissions to treat and manage her mental health … her last hospital admission was in January 2018 for six months at N Hospital.

   Ms Chupin said that she is treated with medication prescribed by her family doctor … that she sees a psychotherapist, Ms R, once a week and has a weekly appointment with her family doctor.

8. The maternal grandmother and the partner reported concerns to the Family Consultant that the mother’s mental health sometimes affected her ability to attend to the child’s basic care needs, however, did not report any concerns that the child would be physically unsafe, only that the mother’s mental health when poorly managed may have a negative impact on the child’s relationship with the mother.

9. The mother reported to the Family Consultant that she believed it is in the child’s best interest to live with the maternal grandmother and the partner, stating that she has explained to the child that she is not well and not able to care for the child at the moment.

10. No concerns were reported by the mother to the Family Consultant about the wellbeing and safety of the child in relation to the maternal grandmother and the partner.

11. The parties each reported to the Family Consultant a generally positive co‑parenting relationship with the mother describing her relationship with the maternal grandmother and the partner as “the best it has ever been”.

12. The parties reported to the Family Consultant they have not had any contact with Mr B since 2013. The maternal grandmother reported that she believes that Mr B is aware of where she and the partner live and that she has been surprised that Mr B has made no attempts to resume a relationship with the child.

13. Ultimately, the Family Consultant expressed the following evaluation:

    It would appear that despite Ms Chupin’s ongoing mental health difficulties, the parties have been able to facilitate X having a meaningful relationship with Ms Chupin, whilst ensuring X’s safety and wellbeing.

    It would seem that X has benefitted from consistency in her care arrangements since September 2016. The parties appear to be in agreement that X lives with Ms Felton and Ms Paprocki and spend time with Ms Chupin. Unless there is unacceptable risk of harm for X it is suggested that this arrangement continue.

Parenting

Issues for determination

1. The issues for determination are:

   a)Can the Applicants apply for parenting orders as persons concerned with the care, welfare or development of the child?

   b)Are the Applicants persons concerned with the care, welfare or 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 Applicants apply for parenting orders as persons concerned with the care, welfare and development of the child?

1. These proceedings involve issues between a non-parent – that is the maternal grandmother and her partner – and the mother.  Section 65C of the Act provides that:

   Either or both of the child’s parents, including grandparents – and any other person concerned with the care, welfare or development of the child – can apply for parenting orders.

2. The First Applicant, being the maternal grandmother, can clearly apply for parenting orders in the context of these proceedings pursuant to subparagraph (ba) of that section, being a person intricately concerned with the care, welfare or development of the child.

3. The Second Applicant, being the maternal grandmother’s de facto partner, can also apply for parenting orders in the context of these proceedings pursuant to subparagraph (c) of that section, being a person intricately concerned with the care, welfare or development of the child.

4. It is clear from the evidence above that both the maternal grandmother and the partner have played a significant role in the care of the child since birth and have been primary carers of the child since September 2013.

Are the Applicants persons concerned with the care, welfare or development of the child (section 65C of the Act)?

1. From both the historical and present evidence as outlined above, it is clear that the maternal grandmother and the partner are persons that have always been and are currently concerned with the care, welfare or development of the child.

2. How then does the Court deal with the various factors in the Act that will be referred to later that relate to parents only?  This can be done by reference to the provisions of s 60CC(3)(m) of the Act that provide that the Court can consider any other factor or circumstance as the Court thinks relevant as a “catch-all provision”. Section 60CC(3)(m), therefore, allows the appropriate best interest considerations of the children that will be referred to later in these reasons to be applied to the First Applicant maternal grandmother and Second Applicant.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. 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.

4. 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.

5. 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.

6. The presumption relevantly 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)…

   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)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 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.

8. 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.

9. Consideration of the Applicants 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 Applicants by way of application of s 60CC(3)(m).

10. 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). …

11. 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)

12. 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”.

13. 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.

Best Interests

The Primary Considerations: s 60CC(2)

1. 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [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 one. Quantitive 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.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. This first primary consideration does not arise if one or both parents are unavailable and the child is, therefore, unable to have the benefit of a relationship with both parents. In this case, it is clear that the child has a relationship with her mother but no relationship with her father as the father has failed to have any contact or seek a relationship with the child. Any such relationship with the father may present significant risks to the child in light of the domestic violence issues discussed above.

4. The child continues to have a meaningful relationship with the mother due to the encouragement and assistance provided by the maternal grandmother and the partner, however, due to the mother’s mental health problems and mood cycles she has chosen to spend less and less time with the child.

5. This primary consideration is not applicable to the maternal grandmother or the partner, being non-parents, but the relationship between the child and the maternal grandmother, and in fact the partner, is one of significance given the maternal grandmother and the partner have been a consistent presence in the child’s life and have had the primary care of the child since September 2013. The child clearly has a meaningful relationship with both the maternal grandmother and the partner.

6. It is readily apparent that the child’s ongoing relationship with the Applicants as her primary carers is important, significant and valuable.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above, there are unacceptable risk factors in the child’s possible engagement and time with the father on the basis of his aggressive, violent and controlling behaviour. The father has, in any event, failed to be involved in the child’s life at this stage.

2. Further, in light of the matters discussed above, there are unacceptable risk factors in the child’s possible engagement and time with the mother on the basis of her mental health. The maternal grandmother and the partner have, however, facilitated the child spending time with the mother in the presence of either one of them and continue to encourage the mother spending time with the child.

3. This consideration, which is to be given primacy, is in itself supportive of and determinative of the orders sought by the maternal grandmother, the partner and the mother.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   iii)with whom he or she has been living;

   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;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)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;

   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;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   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; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The child expressed a positive relationship with the maternal grandmother, the partner and the mother describing the maternal grandmother as “kind” who loves her very much. The child describes the partner as a “really good cook” who plays games such as monopoly and snakes and ladders with her and that both the maternal grandmother and the partner take turns to read her books, bath her and prepare her meals. The child describes her mother as “kind” and tells her that she would like her to sleep at her house. When she spends time with her mother they watch television and play games.

4. The child said that if she had any worries she would talk to either the maternal grandmother, the partner or the mother and that if she was hurt or upset they would all comfort her.

5. The child has lived in the primary care of the maternal grandmother and the partner since September 2016 and the maternal grandmother and the partner have been able to facilitate a meaningful relationship with the mother whilst ensuring the child’s safety and wellbeing. It was observed by the Family Consultant that the child has benefited from the consistency of living with the maternal grandmother and the partner. The Family Consultant suggested that unless there is a risk of harm that the current arrangements continue.

6. The maternal grandmother stated that although the mother spends time with the child in the presence of either the maternal grandmother or the partner, these occasions have become less frequent since April 2019 even though they continued making regular contact with the mother encouraging the mother to spend time with the child. Such instances being when the mother was invited to attend the child’s parent teacher interview in June 2019 and the child’s school disco in July 2019 and she did not attend either.

7. The maternal grandmother and the partner reported concerns that the mother’s mental health sometimes affected her ability to attend to the child’s basic care needs and may have a negative impact on the child’s relationship with the mother, however, they did not hold concerns that the child would be physically unsafe in the mother’s care. The Family Consultant reported that the mother acknowledged that she believed it is in the child’s best interest to live with the maternal grandmother and the partner.

8. The mother reported she had no concerns for the child’s wellbeing and safety in relation to the maternal grandmother and the partner.

9. It is clear from the evidence above that there are no concerns as to the maternal grandmother’s and the partner’s ability to care for the child. The maternal grandmother and the partner has cared for the child at various points in the child’s life prior to September 2016 and assumed the primary care for the child since September 2016.

10. The orders as sought by the maternal grandmother, the partner and the mother provide for no changes in the child’s current circumstances and involve no practical difficulty or expense.

11. Both the maternal grandmother and the partner in these proceedings have demonstrated a positive attitude towards their responsibilities as a primary carer for the child. However, both the mother in these proceedings and the alleged father, Mr B, have demonstrated a concerning attitude towards their responsibilities as a primary carer for the child. The father appears to have made no attempt to resume a relationship with the child but history provided of domestic violence perpetrated by him would make him an unacceptable risk of harm to the child. The mother, despite being able to spend time with the child, has chosen to spend less and less time with the child since April 2019 despite the maternal grandmother and the partner endeavouring to encourage her to spend more time with the child.

12. The issue of family violence is of limited concern in the circumstances where the father has elected not to resume a relationship with the child. This issue is of limited concern in the circumstances where the father has no involvement with the child and the mother has agreed that the maternal grandmother and the partner have the primary care of the child.

13. Making orders as sought by the maternal grandmother, the partner and the mother is unlikely to lead to the institution of further proceedings given that the orders are being made by consent of those parties and the disengagement of the father.   

14. The above primary and additional considerations have been applied to the Applicant maternal grandmother and the partner by operation of s 60CC(3)(m) as a relevant fact or circumstance. 

15. All of the relevant considerations are indicative of orders being made in the best interests of the child as sought by the maternal grandmother, the partner and the mother.

16. Orders were made accordingly.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 October 2019.

Associate: 

Date:  14 October 2019