Ganesh & Ganesh

[2021] FamCA 440

FAMILY COURT OF AUSTRALIA

Ganesh & Ganesh [2021] FamCA 440  

File number(s):

PAC 2453 of 2018

Judgment of:

HANNAM J

Date of judgment:

24 June 2021

Catchwords:

FAMILY LAW – PARENTING – Undefended hearing – Where Applicant is the biological sister of subject child – Where child is severely handicapped – Where child’s birth father is deceased and child’s birth mother suffers a disability – Where another sister of the child (“the second Respondent sister”) briefly participated in the proceedings but ultimately disengaged and failed to comply with court orders and appear at final hearing – Where upon of the death of child’s father, child primarily lived in the care of mother and second Respondent sister and was subjected to various risk issues – Where due to serious concerns about the capacity of the mother and second Respondent sister to care for the child the Applicant took on more of the responsibility for the child’s care and protection – Where the second Respondent sister has displayed threatening and abusive behaviour towards the Applicant and the mother which has in the past resulted in orders for their protection – Where there is ongoing disruptive and aggressive behaviour by the second Respondent sister towards the Applicant and mother – Where in the course of the proceedings interim orders were made including for the recovery of the child to the Applicant, for sole parental responsibility for the child to be given to the Applicant and for various injunctions against the second Respondent sister – Where Applicant’s proposal would see the child’s interim parenting arrangement in the Applicant’s care be made final – Where in the circumstances it was in the child’s best interests for orders to be made as finally proposed by the Applicant sister and consented to by mother through her case guardian.    

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Family Law Rules 2004 (Cth) r 11.02

Cases cited:

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Number of paragraphs:

65

Date of hearing:

16 February 2021

Place:

Parramatta

Counsel for the Applicant:

Ms Friedlander

Counsel for the Independent Children’s Lawyer:

Ms Kelso

Solicitor for the Applicant:

As Family Lawyers

Solicitor for the Independent Children’s Lawyer:

Legal Aid NSW

Case guardian for the First Respondent:

Mr Hampton

Legal Representatives for the Second Respondent:

No appearance by or on behalf of Second Respondent

ORDERS

PAC 2453 of 2018

BETWEEN:

MS A GANESH

Applicant

AND:

MS B GANESH

First Respondent

MS D GANESH

Second Respondent

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.The Applicant has sole parental responsibility for the child, X born … 2004 ("the child"), including but not limited to:

(a)Providing all authorities necessary to cause and/or permit the issue or renewal of any passport for the child without the signature of the other party; and

(b)Providing all authorities necessary to cause and/or permit the child to travel to and from the Commonwealth of Australia at any time.

2.The child is to live with the Applicant.

3.The child is to spend time with the first Respondent as agreed between the Applicant and the first Respondent.

4.The child is to spend no time with the second Respondent.

5.Pursuant to Section 68B of the Family Law Act 1975 (Cth) the second Respondent is restrained from:

(a)approaching or coming into contact with the Applicant or the Applicant's place of residence, place of work or study, except as permitted by Court Order or agreed to in writing between the parties; and

(b)from approaching or coming into contact with or attempting to come into contact with the child or the child's place of residence, or place of study except as permitted by Court Order or agreed to in writing between the parties.

6.Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act 1975 (Cth).

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. The Applicant is the sister of a severely handicapped sixteen year old child and seeks parenting orders in relation to that child. 

2. The child’s father is deceased and her mother who also suffers a disability participates in these proceedings through a case guardian. The case guardian on behalf the mother consents to the orders proposed by the Applicant in relation to the child. 

3. At an earlier stage, there was brief engagement in the proceedings by another sister of the child (“the second Respondent sister”) but when the final application was heard and determined on 16 February 2021 the second Respondent sister had disengaged in the proceedings for some time and had not complied with trial directions. Accordingly, the proceedings were determined on an undefended basis as against the second Respondent sister.

4. At final hearing on 16 February 2021 when orders were made as finally proposed by the Applicant sister and consented to by the mother I indicated that reasons would be provided for such orders as soon as practicable. These are those Reasons.

   BACKGROUND

5. The parents (“the mother” and “the father” collectively “the parents”) were married in the overseas country of their birth in 1984. 

6. In 1989 the parents’ first daughter, the Applicant, was born.  The parties’ second daughter, the second Respondent Sister was born in 1991.

7. In 1996 the parents migrated to Australian with their two daughters.

8. In 2004 the parents’ third daughter (“the child”) was born with significant physical and intellectual disabilities including cerebral palsy, quadriplegia and blindness. She is also non-verbal.  As the mother also had various difficulties including an intellectual disability, the father primarily provided care for the child throughout the child’s life.

9. In about 2009 or 2010 the Applicant moved out of the family home when she was aged 21 but maintained regular contact with her family and returned to stay overnight about once each fortnight. 

10. In 2012 the second Respondent sister who had been diagnosed with a psychotic illness was admitted to a psychiatric unit for the first of many such admissions over the ensuing years. The behaviour of the second Respondent sister when unwell includes violent outbursts and psychotic symptoms which re-emerge when her illness relapses from time to time due to non-compliance with medication.

11. In early 2017 the second Respondent sister moved out of the family home.  A few months later, the father who had been diagnosed with brain cancer became unable to care for the child and was hospitalised for about three months. At this stage the Applicant became more involved in the day to day care of the child but remained living in her own home.

12. A few months later, in late September 2017 the second Respondent sister moved back into the family home.  An interim Apprehended Violence Order (“AVO”) was made against the second Respondent sister for the protection of the Applicant at around this time. 

13. In late 2017 the father died and the second Respondent sister and mother began caring for the child which was very challenging for them. The child was neglected by them so the Applicant took on more of the responsibility for the child’s care including arranging medical appointments, communicating with specialists and a home respite care team, budgeting in relation to NDIS services and attending relevant meetings in relation to the child’s schooling.  The Applicant also arranged for a significant increase in in-home respite care for the child due to her concerns about the capacity of the mother and second Respondent sister to care for the child.  The Applicant also became the first point of call for various service providers in relation to the child’s care. 

14. From around the time the father died and the Applicant became more active in the care of the child, the second Respondent sister became increasingly abusive and aggressive towards the Applicant and the mother pushing and swearing at them and frequently screaming at them which distressed the child. 

15. In January 2018 the Applicant made a report to the Department of Communities and Justice (“the Department”) due to her concerns about the child’s welfare.  Departmental case workers conducted a home visit and assessed that the mother lacked capacity to care for the child on her own.  At the time, caseworkers tried to contact the second Respondent sister to organise a meeting between the child’s immediate family members but the second Respondent sister did not respond to those attempts. At around the same time, the second Respondent sister also transferred the title of the family home into the joint names of herself and the mother.

16. Although it was clear that the mother had significant challenges in her capacity to care for the child she was only diagnosed for the first time in February 2018 with mild delayed cognitive ability and impaired adaptive functioning. A financial management order was subsequently made for the mother in March 2018.

17. In the meantime, the second Respondent sister published a Notice of Intended Application for Probate regarding the father’s estate and about three weeks later on 6 March 2018 a transfer of a fifty per cent share in the family home to the second Respondent sister for “nil consideration” was filed with the Land Titles Office. 

18. The Department stayed involved with the family in an attempt to reduce the risk of harm to the child and to make arrangements for her appropriate care. In this regard on 15 March 2018 Departmental caseworkers developed a Safety Plan under which the Applicant was to move to the family home to care for the child.  The Applicant attempted to implement this safety plan but was unable to remain at the home due to the aggression of the second Respondent sister.  The second Respondent sister was asked by Departmental caseworkers to leave the family home but refused. 

19. On 17 March 2018 the Applicant asked police to do a welfare check on the child at her home.  When police attended it was ascertained that the child had suffered a seizure and was taken to hospital where she was admitted and remained until 26 March 2018. The second Respondent sister was not at the family home on 17 March 2018 when police attended and while the child was in hospital did not attend any meetings with the doctors. The Applicant attended the hospital each day, liaised with doctors and explained the information given to the mother. The Applicant also kept the Department informed of relevant matters in relation to the child’s care.

20. On 20 March 2018 a caveat was lodged on the family home by NSW Trustee and Guardian. 

21. Throughout March 2018 the Applicant continued to make reports to the Department about her concerns for the child and although there were several meetings with Departmental caseworkers attended by the Applicant, the second Respondent sister did not attend and nothing was resolved for the care of the child.  Despite the non-engagement of the second Respondent sister, the Department did not remove the child from the family home. 

22. In mid-2018 the child had another suspected seizure while in the care of the second Respondent sister and although an ambulance attended, the child was not taken to hospital as paramedics did not consider it necessary. The second Respondent sister did not bring this seizure to the attention of the child’s doctors.

23. On 20 April 2018 police attend at the family home to investigate complaints made by the second Respondent sister.  The second Respondent sister was believed to be “suffering from a mental health episode” and was subsequently taken to a mental health facility. A couple of weeks later the second Respondent sister travelled overseas effectively abandoning the child and did not inform the Department of her departure.

24. On 8 May 2018 a final AVO was made against the second Respondent sister for the protection of the Applicant for a period of six months.

25. There were further meetings with the Department and a service provider during the absence of the second Respondent sister in May 2018 and the Applicant continued to raise her concerns about the then current care arrangements for the child to the Department but no steps were taken to change the arrangement. 

26. On 31 May 2018 the second Respondent sister returned from overseas.

27. On 1 June 2018 the Applicant initiated proceedings in the Federal Circuit Court of Australia seeking orders including that she have parental responsibility for the child and that the child live with her. On the first return date of the application neither the mother nor the second Respondent sister appeared and the proceedings were transferred to this court. 

28. At subsequent court events on 16 August 2018 (when an Independent Child’s Lawyer (“ICL”) was appointed) and 24 August 2018 neither the mother nor the second Respondent sister appeared on either occasion.

29. At the next court event on 28 August 2018, as the second Respondent sister had not appeared nor produced the child at Child Dispute Services as ordered, orders were made including for the recovery of the child to the Applicant, for sole parental responsibility for the child to be given to the Applicant and for various injunctions against the second Respondent sister.  The following day the child came to live with the Applicant in her home. 

30. In November 2018 the mother moved to live with the Applicant and the child.  Over the ensuing months there were further incidents between the second Respondent sister and the Applicant including an incident on the day the mother moved from the family home which resulted in the admission of the second Respondent sister to hospital and a further AVO being made against her for the Applicant’s protection.

31. At a court event on 13 December 2018 there was once again no appearance by or on behalf of the second Respondent sister though a representative from the public guardian was present for the mother. As the Court was informed that the parties wished to attend mediation in an effort to resolve the dispute, an adjournment was granted for these purposes.

32. For the ensuing 12 months the second Respondent sister periodically threatened the Applicant by telephone (including threatening to kill the Applicant and to take the mother and child), and there were two occasions on which the second Respondent sister behaved erratically and in an aggressive and threatening manner at a local police station. Throughout this period the second Respondent sister also lodged a Lapsing Notice in relation to the caveat on the family home and attempted to sell the family home. 

33. On 14 October 2019 at a court event, an order was made requesting the Attorney General’s Department to nominate an appropriate Case Guardian for the mother.

34. In October 2019 the second Respondent sister came to the attention of police in relation to an alleged assault of a former partner and at the same time the Applicant sought a variation of the AVO to include the mother as a protected person.

35. In November 2019 the Case Guardian was appointed for the mother and filed the relevant documents in this court. 

36. A mediation that was due to occur in March 2020 was postponed when the second Respondent sister made contact with the ICL for the first time. 

37. The following month the second Respondent sister was arrested by police in relation to the supply of cocaine and throughout the following month she sent emails to the Applicant threatening to harm both the Applicant and the mother.

38. In June 2020 a guardianship order and a financial management order were made which appointed the Applicant as financial manager of the mother’s estate.

39. In June 2020 the parties including the second Respondent sister attended telephone shuttle mediation in relation to the family law proceedings but no agreement was reached.

40. In July 2020 the second Respondent sister was dealt with in relation to her criminal charges and a further six month AVO was made against her for the protection of the Applicant and mother. 

41. On 13 October 2020 the second Respondent sister was represented in these parenting proceedings for the first time and various orders were made for her to file and serve various documents within a set timetable. 

42. In January and February 2021 the second Respondent sister came to the attention of police again in relation to allegations of harm threatened to another person. On 23 January 2021 the AVO against the second Respondent sister for the protection of the Applicant and mother expired. 

43. The second Respondent sister did not file documents as required in accordance with directions and has not participated any further in these proceedings.

44. On 16 February 2021 the parenting application was determined and final orders were made in the absence of the second Respondent sister.

    THE HEARING

45. As indicated, the entirety of the second Respondent sister’s participation in these proceedings is an appearance at one court event through her legal representative. As also indicated, the second Respondent sister has not filed any affidavits or other material in the proceedings in accordance with court orders. She also failed to appear at the final hearing on 16 February 2021.  It had been anticipated that the second Respondent sister would not be present at final hearing so it was accordingly listed as an undefended hearing.

46. Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) ("the Rules") provides that:

    (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

    (c)       determine the case as if it were undefended.

47. No Application was made for the proceedings to be adjourned at final hearing.  Having regard to the principles for the conduct of child-related proceedings, in my view, it was in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the second Respondent sister.

    THE LAW & DISCUSSION

48. The objects of Part VII of the Family Law Act 1975 (Cth) ("the Act") and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

49. The objects are to ensure that the best interests of a child are met by:

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

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

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

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

50. The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)a child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)a child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child; and

    (d)parents should agree about the future parenting of their child; and

    (e)a child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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

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

   Primary considerations: s 60CC(2)

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

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

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

4. The meaning of the phrase "meaningful relationship" is not defined in the Act but the Full Court has approved the interpretation given to the phrase that it is a relationship which is "significant", "important" or "of consequence".[1]

   [1] Mazorski & Albright (2007) Fam LR 518; McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92.

5. Under the orders made the child will continue to have a meaningful relationship with her only living parent, being her mother. Although the orders do not define the time that the child is to spend with the mother I have no hesitation in accepting that the Applicant will continue to make all appropriate arrangements that are in the child’s best interests including promoting the relationship between the mother and the child for the child’s benefit as she has done since the death of the father. 

6. The Applicant has at all times approached the question of support for the child continuing to receive the benefit of a meaningful relationship with the mother, with great respect and sensitivity towards that relationship given the mother’s shortcomings. The Applicant took extensive steps for example to ensure that the mother participated in these proceedings to the fullest extent possible.  

7. The second of the primary considerations being the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence looms large in these proceedings. 

8. As can be seen, the child has been neglected when in the care of the mother and/or the second Respondent sister following the death of the child’s primary care giver, being the father.  The Applicant took immediate steps as soon as she became aware of the extent of harm to which the child was exposed to become involved to the greatest extent possible in providing protection for the child. It is unfortunate for the child that she endured some ongoing harm during the time that she remained in the care of the second Respondent sister and the mother even though it had been recognised by the Department that shortcomings in the mother’s parenting capacity meant that she was unable to care for the child and it appears to have been readily apparent that the second Respondent sister was also responsible for neglecting the child and was a perpetrator of family violence to which the child was exposed. 

9. The child’s safety and need to be protected from harm has been adequately ensured since orders were made in late August 2018 including for the recovery of the child to the Applicant, that the Applicant have sole parental responsibility for the child and restraining the second Respondent sister in various ways for the protection of the child.

10. Given the second Respondent sister’s ongoing disruptive and aggressive behaviour, in my view, it is appropriate for restraints under section 68B of the Act to be made for the welfare of the child including injunctions for the personal protection of the child and the Applicant on a final basis.

    Additional Considerations

11. Virtually all of the additional considerations are either not able to be applied in this Application or require only brief consideration. This is primarily because there is no dispute to be determined as the only parties engaged in the proceedings both support the orders sought by the Applicant and it is only the Applicant who puts herself forward to take on the responsibility for the care of the child. 

12. Fortunately for the child I am easily able to conclude that the proposed orders are in her best interests. Framed in terms of the additional considerations set out in s 60CC(3), it suffices to say that it can be assumed that the child has an attachment relationship with the Applicant who has been involved in her care for a number of years and has been an important presence for the child throughout her life. The Applicant has demonstrated that she has great capacity to provide for the child’s needs as she stepped in and assumed responsibility for the child in meeting those needs as soon as it became apparent after the father’s death that those needs were not adequately being met by the mother and the second Respondent sister.

13. The attitude taken by the Applicant towards the child has been particularly caring and responsible and it is essentially the Applicant who has been the protective ally for the child in the environment she was living which posed multiple risks, after the death of her primary carer.

14. Having regard to the Applicant’s involvement in the care of the child, the sacrifices she has made and her attitude throughout these proceedings I had no hesitation at final hearing in finding that the final orders proposed by the Applicant and supported by the mother were proper having regard to the best interests of the child.

15. For the foregoing reasons, I made the orders as sought at the final hearing.

I certify that the preceding sixty five  (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:
Dated: 24 June 2021