Garrett and Trueman and Anor
[2019] FCCA 526
•6 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARRETT & TRUEMAN & ANOR | [2019] FCCA 526 |
| Catchwords: FAMILY LAW – Parenting – 4 year old child lived with maternal aunt since 8 months old – competing live with applications as between aunt and father – best interest considerations. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 60CG, 65DAA, 64B |
| Cases cited: Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 Donnell & Dovey [2010] FamCAFC 15 Goode & Goode (2007) 36 FamLR 422 |
| Applicant: | MR GARRETT |
| First Respondent: | MS TRUEMAN |
| Second Respondent: | MS A TRUEMAN |
| File Number: | PAC 4457 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 20 - 21 September 2018 |
| Date of Last Submission | 19 October 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 6 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| Appearing for the First Respondent: | No appearance |
| Counsel for the Second Respondent: | Ms Hamilton |
| Solicitors for the Second Respondent: | Rafton Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Rebehy |
| Solicitors for the Independent Children's Lawyer: | O'Donnell & Associates Family Lawyers |
ORDERS
All prior parenting orders with respect to the child [X] born … 2014 are discharged.
The father shall have sole parental responsibility for the child, [X] born … 2014.
The child shall live with the father.
The child shall spend time with and communicate with the First Respondent as agreed between the First Respondent, the Second Respondent and the father in writing and that such time is to be supervised by the Second Respondent.
The child shall spend time with the Second Respondent as agreed between the parties in writing and failing agreement, as follows:
(a)Until 31 March 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Saturday;
(b)From 1 April 2019 until 5 May 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Friday;
(c)From 6 May 2019 until 2 June 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Thursday;
(d)From 3 June 2019 until 30 June 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Wednesday;
(e)From 1 July 2019 until 28 July 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Tuesday;
(f)From 29 July 2019 until 25 August 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Monday;
(g)From 26 August 2019 until the child commences school:
(i)Each alternate weekend from after school or 5pm on Friday until 5pm on Sunday;
(ii)For seven nights commencing at 9am on 2 January and concluding at 9am on 9 January.
(h)Upon the child commencing school:
(i)During the school terms, on each alternate weekend from after school or 5pm on Friday to 5pm on Sunday;
(ii)During the two week school holidays usually occurring in April, July and October from 9am on the first Saturday of the school holidays to 5pm on the following Friday.
(iii)During the December/January summer school holidays for 14 nights commencing at 9am on 2 January and concluding at 9am on 16 January.
(i)On special occasions, if the Second Respondent is not otherwise spending time with the child:
(i)In years ending with an even number, from 11am on 23 December to 11am on 25 December;
(ii)In years ending with an odd number, from 5pm on 25 December to 5pm on 27 December;
(iii)On the child’s birthday, if a school day from the conclusion of school (or otherwise 3.30pm) to 5.30pm and if a non-school day, for a period of three hours as agreed between the parties in writing or otherwise from 10am to 1pm; and
(iv)Any other times as agreed between the parties in writing.
(j)From the time the child reaches 12 years of age, in accordance with her own wishes.
To facilitate the Second Respondent spending time with the child, changeover shall occur at the child’s day care/school/afterschool care provider and in the event that changeover does not coincide with the child’s day care/school/afterschool care changeover shall occur with the Second Respondent collecting the child from the father’s residence at the commencement of time and with the father collecting the child from the Second Respondent’s residence at the conclusion of time.
Each of the parties are restrained by injunction from causing the child to be physically disciplined or causing, permitting or allowing any third person from doing so.
The Second Respondent shall communicate with the child as agreed between the parties in writing and failing agreement, each Tuesday between 6pm and 7pm.
The Second Respondent shall be and is hereby restrained from bringing the child into contact with the First Respondent without agreement in writing from the father.
The parties shall communicate by SMS in respect of arrangements concerning the child unless the matter is urgent, in which case the parties will communicate by telephone.
The parties shall refrain from making critical or derogatory remarks in relation to the other parties in the presence or hearing of the child and each party will use their best endeavours to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The father shall provide the Second Respondent with a copy of the child’s school report and school photograph order form within 14 days of him receiving them.
In the event that the child suffers a medical emergency requiring medical attention while in the care of either party the other party is to be notified as soon as practicable and provided with the full details of the practitioner and/or medical facility upon which the child is attending as soon as practicable.
Each party shall keep the other party advised of their contact telephone numbers and address and advise the other party of any changes to these details within seven days of such change occurring.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Garrett & Trueman & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4457 of 2015
| MR GARRETT |
Applicant
And
| MS TRUEMAN |
First Respondent
| MS A TRUEMAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
When [X] was about eight months old, her mother left her in the care of her maternal aunt. [X] did not get to spend any time with her father after she came to live with her aunt for many months. It was only after the father commenced proceedings that [X] got the opportunity of developing a relationship with her father. Time has progressed slowly, and still [X] does not get to stay overnight with her father. Due to circumstances beyond her control, she has remained living in the home of the maternal aunt till the present day.
[X]’s mother, who left the scene when [X] was a baby due to a lifestyle that involved illicit substance abuse, has spent time in gaol having been recently released. She did not participate in the proceedings in any meaningful way.
[X] is now four years old. Her father asks the Court for orders that she live with him, while her aunt asks the Court for orders that she remain living with her.
Where [X] is to live is a quandary.
The issues before the Court are complex and involve a determination of:
a)With whom parental responsibility should be vested;
b)The most appropriate living arrangements for the child;
c)The impact on the child should there be a significant change to her current living arrangements;
d)The father’s capacity to meet the child’s needs; and
e)The ability of the adults to support a relationship with the child’s other care givers.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. 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 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Parents are not the subject of any preferential treatment nor are they in any special position of advantage pursuant to the Act with respect to parenting orders. The Act does however distinguish between parents and non-parents in various, sometimes very important, ways.
Two of the objects[1] of Pt VII are to ensure that the best interests of a child are met by:
a)Ensuring that she has the benefit of both of her parents having a meaningful involvement in her life, to the maximum extent consistent with her best interests; and
b)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their child.
[1] s60B(1)
Enshrined in the principles which underlie the objects of Pt VII of the Act, is the idea that it is a child’s parents who are expected to share the duties and responsibilities for the care, welfare and development of their child[2]. The Act provides that it is the parents who should agree about the future parenting of their child.[3] Furthermore, it is the child who has the right to know and be cared for by both of her parents.[4]
[2] s60B(2)(c)
[3] s60B(2)(d)
[4] s60B(2)(a)
The overarching[5] provision is s60CA which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration. There is no reference in this provision to any distinction between parents and non-parents.
[5] Donnell & Dovey [2010] FamCAFC 15 at [79]
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[6]
[6] see for example Slater & Light [2011] FamCAFC 1at [45]
Once again, there is a distinction the Act draws in the treatment of parents and non-parents as far as the primary and secondary considerations are concerned. Section 60CC, on its face maintains clear distinctions between a “parent” and a non-parent.
It is self-evident that some considerations required to be undertaken under s 60CC refer to parents and some do not. It has been clearly established that the reference to “parents” in s 60CC(2)(a) is a reference to the parents of a child and that to treat a person other than a parent as if they were for the purpose of that section is an error.[7]
[7] Burton & Churchin(2013) FLC 93-561 at [51]; see also Donnell at [101], cited recently in Oram & Lambert and Ors [2019] FamCAFC 4 at [123]-[124]
Sections 60CC(3)(c), (ca), (e) and (i) refer only to “a parent[8]”. However, as the Full Court[9] held:
To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant.”
[8] Parent for the purposes of these sections is a biological parent or an adoptive parent, see Donnell & Dovey[2010] FamCAFC 15; (2010) FLC 93-428 at [92]
[9] Donnell & Dovey at [99]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[10] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[11]
[10] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[11] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[12]. The Court may include[13] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[12] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[13] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
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 there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
The presumption applies only to parents. However, s 64B(2) makes clear that parenting orders, including orders for “parental responsibility”, may be made in favour of non-parents as well as parents.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[14]
[14] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[15] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[16] affirmed the legislative pathway.
[15] (2007) 36 Fam LR 422, (2006) FLC 93-286
[16] [2010] HCA 4
The fact of parenthood however, is not irrelevant to the analysis the Court is to undertake. It is a matter that is the subject of many a judicial pronouncement. After a careful analysis of a number of Australian and English authorities, the Full Court[17] stated:
We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
[17] Rice v Miller (1993) FLC 92-415 ; (1993) 16 Fam LR 970 at 978
The Court’s Discretion
Parenting cases are always difficult. Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework.
The Full Court has indicated that in its analysis[18]
the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
[18] Donnell at [103]
In this context, it is apposite to be reminded of what the High Court[19] has said in respect of the Court’s discretion in this regard:
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[20]
[19]CDJ v VAJ (1998) FLC 92 - 828 at [151]; [152] per McHugh, Gummow and Callinan JJ.
[20] Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [11]
It is with these principles in mind that the Court has made its findings and determined where the child is to live to live.
Chronology of Key Events
Ms A Trueman was born on … 1983.
The father was born on … 1993.
The mother was born on … 1994.
The father arrived in Australia from Country B as an unaccompanied minor on a boat and was detained on Christmas Island in 2010.
The father and mother commenced a relationship in 2013 and married on … 2013. They separated on a final basis in November 2014 however are not divorced.
The only child of that relationship, [X], was born on … 2014.
An interim Apprehended Domestic Violence Order was made against the father in September 2014 naming the mother as a protected person which was later dismissed.
In around April 2015 the mother asked Ms Trueman to care for [X]. The child has remained in the care of Ms Trueman and her partner, Mr C, since this time and she has spent limited time with the father.
Proceedings were commenced by the father by the filing of an Initiating Application on 11 September 2015.
Following the making of interim orders by this Court for the father and Ms Trueman to attend mediation agreement was reached for the father to spend time with the child supervised by Ms Trueman. Additional orders were made by the Court on 19 May 2016 for further supervised time between the father and child.
On 27 March 2017 interim consent orders were made by the Court for the child to live with Ms Trueman and to spend unsupervised day time with the father.
The mother was incarcerated in … 2017, released in … 2017 and was then incarcerated again in … 2017. The evidence before the Court is that the mother was released from prison on … 2018. The mother’s evidence (provided in the Family Report) is that she has convictions related to a police pursuit, stolen vehicle, fraud and possess a prohibited drug.
The Family Report dated 9 May 2018 was released to the parties on 10 May 2018. It is noted that the mother participated in the Family Report interviews by telephone as she was incarcerated at the time and as a result of this she was not observed with the child.
Evidence of the Parties
Ms Trueman
At the time of hearing Ms Trueman resided in a three bedroom home in Suburb D, a suburb in Sydney, with her partner Mr C and their three children [E] born … 2004, [F] born … 2006 and [G] born … 2007.
Ms Trueman and Mr C have been in a relationship for over 15 years.
Ms Trueman says that the relationship between the mother and father was not stable and that there were many times when the mother and child would stay with her and her family during times of separation with the father.
Ms Trueman recalls one occasion where the mother had confided in her that the father had hit her however, she did not provide Ms Trueman with any other details and ultimately returned to the home of the father with the child. Ms Trueman had expressed her concern to the mother about this.
Ms Trueman has had the primary care of the child since about April 2015 and the child refers to Ms Trueman as “mum”, Mr C as “dad” and the father as “daddy …”.
At the time that the mother left the child in her care Ms Trueman was of the belief that this was only temporary whilst the mother arranged appropriate housing for herself and the child. Ms Trueman attempted to contact the mother for many months however the mother did not reply to any of her messages.
Ms Trueman and Mr C have attended to the child’s needs since April 2015.
Ms Trueman says that when the father initially sought to spend time with the child she responded to him that he had to check with the mother and did not allow the father to spend time with the child because she did not want to overstep the boundaries as the child’s temporary carer, which was her belief at the time. This was particularly in light of the disclosure of the mother to Ms Trueman that the father had hit her.
Ms Trueman says that once time was commenced between the father and the child time generally went well although she observed the father to be lax with arriving on time and that he was unaccommodating if it was not to his benefit.
Ms Trueman maintains that she has supported the relationship between the father and the child as best she can and that she is generally the instigator of conversation to confirm visits. She says that the father has often cancelled visits and told her that he will visit the child on another date. Ms Trueman says that the father has not been accommodating to her commitments on those days and has not reciprocated leniency with respect to changeover times or places.
Ms Trueman is concerned with the level of attention that the father has given to the child during supervised visits with respect to him talking on the phone and not watching the child – on one occasion Mr C had to run after the child to stop her from running onto the road as the father was not watching her.
Ms Trueman is also concerned with the level of insight the father has with respect to the relationships she has with her and her family and that the father is most concerned with making the child happy rather than making the right decisions for her.
Ms Trueman’s communication with the mother is sporadic at best. The mother has sought to spend time with the child following her release from prison in … 2018 however at the time of hearing Ms Trueman had not yet facilitated this time as it had not been discussed with the father. Ms Trueman believes that the mother lives in the Suburb H area and she has her contact telephone number.
Ms Trueman is candid about her mental health and explains that she suffers from depression and anxiety and that she takes medication to manage this.
Ms Trueman acknowledges in her evidence that it is important for the child to have a relationship with the father and this is reflected in the orders that she asks the Court to make. She states that she has facilitated time with the father and has encouraged the child to spend time with him. She is concerned that the father does not have this insight and that he will not facilitate time between the child and Ms Trueman and her family.
Ms Trueman asserts that there is a risk to the child should the Court order her to live with the father and that this risk relates to contact with Ms J (the father’s partner), the father’s failure to disclose information, lack of insight into the care of young children, his mental health and his use of Tramadol.
Mr Garrett
The father currently resides in a two bedroom apartment in Suburb K, having moved from Suburb L at around the time of final hearing. He is in a relationship with Ms J although they do not reside together.
Ms J has one child, [M] born … 2015. Although the child shares the father’s surname he is not her biological father. [M] has lived in Mr Garrett’s full-time care since April 2017.
Ms J acquired a brain injury approximately six years ago as a result of an assault on her by her brother, however Mr Garrett says that this does not impact her day to day life. She did not give evidence in the proceedings.
The father’s evidence is that in either late 2012 or early 2013 he slapped the mother across the face in retaliation to her slapping him across the face during an argument.
In January 2015 the mother refused the father to spend time with the child. On 27 January 2015 the father admitted himself to the Mental Health Unit of Hospital and stayed there for 10 days and was not diagnosed with a mental illness.
After the child’s birth the father worked 40 hours per week in customer service and would care for the child in the evenings when he returned home from work.
The father has not seen the mother since 9 August 2015.
The father’s evidence is that following separation there was a period of time that he was unsure of where the child resided and that he made attempts through the mother to see the child however these were mostly unfruitful. Upon discovering that the child was living with Ms Trueman he reached out to her, sought legal advice and ultimately commenced proceedings.
The evidence of the father is that whilst he appreciates the care, assistance and love Ms Trueman and her family have provided to the child, the child should return to his care.
In early May 2017, following the release of the Child Dispute Conference Memorandum to the Court, on the father’s instructions his solicitors wrote to Ms Trueman with a proposal for the child to spend increased time with the father, including overnight time. Ms Trueman did not respond to this letter.
Ms N – Family Report Writer
Ms N does not raise any major concerns in the Family Report about the child’s current safety or wellbeing.
There are no concerns with respect to alcohol or substance abuse by Ms Trueman or Mr C. The mother conceded to Ms N that she was abusing the drug ‘ice’ and has a history of cannabis use as a teenager. The mother made allegations of the father abusing cannabis, ‘ice’ and Tramadol and also alleged that Ms J used the drug ‘ice’. There are allegations that Ms J also abuses alcohol.
Ms N opines that at the time of interviews the father did not demonstrate an understanding of the impact on the child should she move to live with him. To her mind he did not appreciate the need for a transition period. The father told Ms N that “I don’t want to take [X] away from Ms A Trueman and the kids”.
The father accepted that should the Court make orders for the child to spend time with the mother that he would accept this and facilitate time in accordance with any orders. However, he proposed that any time should be supervised for at least 12 months and that he would supervise the time. He stated that he does not trust the mother.
During the Family Report observations the father engaged with the child in an attentive and child focused manner. He allowed the child to lead the play and she invited him to play with her. She appeared comfortable with the father.
Ms J and [M] were observed with the child. Ms J was observed to be disengaged in the session. The two children played together for some of the time and played calmly and co-operatively.
The child separated comfortably from the father at the conclusion of the observation session.
In observation with Ms Trueman the child became more talkative and confident. Ms Trueman likewise was child focused and attentive.
The child was comfortable and playful with Mr C and her cousins.
The Family Report writer observed that Ms Trueman became flat and breathless during the observation session however would remain engaged by talking from the lounge where she was seated.
The report writer’s evaluation was that:
a)The child has a close relationship with Ms Trueman and her family;
b)The child was natural, confident and relaxed in the care of Ms Trueman;
c)The child has been well integrated in Ms Trueman’s family;
d)Any change to her primary living arrangements would likely be very traumatic for the child because of the losses she would experience;
e)Ms Trueman impressed as the most willing to facilitate a relationship with the other parties and has been able to maintain the balance between becoming a parental figure whilst understanding the limitations of her role and the importance of her biological parents[21];
f)The child’s relationship with her mother is limited due to the minimal time with her since she was a baby;
g)The risk the mother poses to the child is unclear;
h)The child demonstrated a close relationship with her father on the day of interviews and he demonstrated some good parenting skills;
i)The child has a clear narrative about all of the adults in her life which will ensure that she does not lose the relationship with her father; and
j)The father did not demonstrate a sound understanding of the psychological impact on the child should she move to live with him[22].
[21] This has not been established on the facts
[22] This has not been established on the facts
The report writer recommended that, should the Court order the child to live with the father, a transitional period ought to be in place to minimise the loss and trauma that will be experienced by the child.
The Court’s Determination
Rule in Jones v Dunkel
Counsel for Ms Trueman and the Independent Children’s Lawyer raised the issue of a Jones v Dunkel[23] inference being available to the Court as a result of the absence of evidence from the father’s partner.
[23] (1959) 101 CLR 298
The ‘rule’ in Jones v Dunkel can be explained as follows[24], as far as relevant to these proceedings:
a)The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence, may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference entitles the trier of fact to more readily draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or all the evidence;
b)The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
c)The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer;
d)The rule cannot be applied where it would not have natural for the party to call the witness or the party might reasonably be expected to call a witness i.e. a failure to call evidence which that party was plainly in a position to have given or called; and
e)The evidence of the missing witness must be such as would have elucidated a matter.
[24] See generally J D Heydon, Cross on Evidence, LexisNexis Looseleaf Service [1215] – citations omitted
The Court rejects making any inference pursuant to these principles on the basis of the absence of evidence from Ms J.
Ms J had been available and had participated in the interviews with the Family Consultant. The father gave evidence, albeit hearsay[25] about the acquired brain injury suffered by her and his observations of her capacity to parent.
[25] If similar evidence had been given by Ms J it would also have been hearsay.
The absence of evidence per se is not sufficient for the inference to arise. It can only be drawn where evidence is given of facts requiring an answer. No such facts were identified by those inviting the Court to make the inference. Speculation as to what may or may not have occurred is not evidence of facts requiring an answer. An allegation of a matter without a foundation in fact on a “concern” raised is not evidence of fact. It is speculation.
Primary Considerations
It is apposite to be reminded of the wording of the sub-section which sets out the primary considerations the Court must have regard to[26]. Those 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.
[26] Section 60CC(2)
Sub-section (2A) mandates that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The submission made on behalf of the father that “any risk of harm to [X] while she is in the care of Ms A Trueman must be weighed against the benefits of maintaining a relationship with Ms A Trueman and her family, as stipulated in s60CC(2)” misunderstands the primary consideration which is only concerned with “parents”. It is not concerned with the benefit of a meaningful relationship between the child and anyone but the child’s parents. Those matters may however, be relevant elsewhere.
The Independent Children’s Lawyer makes submissions regarding the “need to protect the child from psychological harm or[27] being subjected to, exposed to, abuse, neglect or family violence.” It is clear from the submissions of the Independent Children’s Lawyer that she too misunderstands the primary consideration contained in s60CC of the Act.
[27] Emphasis added
The sub-section speaks of the need to protect the child from psychological harm which arises from the child being subjected to, or exposed to, abuse, neglect or family violence. In order to found the submission, the Independent Children’s Lawyer would need to convince the Court that the facts establish that the child would be subjected to exposed to abuse, neglect or family violence and that this would result in subsequent psychological harm.
The Independent Children’s Lawyer’s submission that “the removal of [X] from her primary family and carer would expose her to the risk of psychological harm” is not only unsupported by the evidence[28] but it is a misunderstanding of the primary consideration. It is, no doubt, a relevant consideration for the Court, at least in respect of the matters which the Court might consider elsewhere but it is not a primary consideration per se. The opinion of Ms N that [X] would likely experience being moved from her current home as highly traumatic because of the losses she would experience is but a part of the overall evidence in the proceedings and must be considered in the context of all of the evidence, particularly the evidence of the father as to how he would deal with the child experiencing any such trauma.
[28] The evidence in the proceedings is that it would be highly traumatic for her, but trauma does not translate into “psychological harm” per se without expert evidence about the matter
The evidence about the mother is very limited. What is before the Court is the fact of the mother’s incarceration during much of [X]’s young life. There is no evidence that [X] has at present a meaningful relationship with the mother or that she is likely to develop one. The mother, as the Court noted earlier, has not participated in the proceedings in any meaningful way. She placed [X] in the care of Ms Trueman and effectively removed herself from the child’s life.
That the child has a meaningful relationship with the father is not in dispute. What is submitted on behalf of Ms Trueman is that:
There remains a chance that there was verbal abuse of or by the Father when Ms J attended his residence in the early hours of 20 June 2018, and it is conceded by the Father that he slapped the Mother across the face.
It was submitted that the evidence shows a risk that the father may suffer further family violence or perpetrate it, but that without more the evidence was insufficient to displace the benefit of the child having a meaningful relationship with the father. [X] was not present during the incident between the father and Ms J on 20 June 2018. [X] was a young baby when the father slapped the mother while the parties were still together, many years ago. These were one off incidents. There is no evidence before the Court which would tend to prove that the child would be subjected to similar incidents in the father’s household.
There was evidence of an incident in Ms Trueman’s home which resulted in one of her children calling the police. The incident related to an argument between Ms Trueman and her partner. There is no evidence that [X] was present or that she has been subjected to or exposed to similar incidents in Ms Trueman’s household. Furthermore, there is a suggestion in the father’s case that the child complains of being hit by her cousins. This was explained by Ms Trueman as essentially rough play between her children, which at times includes [X]. There was also a suggestion that the aunt’s partner has at times hit [X]. There is no basis for finding that [X] has been subjected to physical abuse at the hands of her cousins or the aunt’s partner or that she might be exposed to or subjected to such incidents in the future.
Additional Considerations
Sub-section 60CC(3)(a)
[X] is only four years old. She is too young to express a view about where she wants to live and even if she did express such a view it would be given no weight on the basis of her age, level of maturity and inability to understand the consequences of such a long term decision.
The father’s evidence is that she has expressed a view about wanting to stay overnight with the father. What this might mean to a child four years of age is not known. It is certainly not the child expressing a view about where she wants to live.
Sub-section 60CC(3)(b)
The child has a close and loving relationship with Ms Trueman and her family. She is treated as part of Ms Trueman’s family unit, indeed she is treated by Ms Trueman and her partner as their child.
The child also has a close and loving relationship with the father.
The evidence supports a finding that the child’s primary attachment figure is Ms Trueman. This is not surprising given that Ms Trueman has been her primary caregiver since the child was eight months old, that the father was not able to spend time with and care for [X] during the first few months she came into Ms Trueman’s care and that the child has spent limited time with the father overall.
Ms Trueman has facilitated the child spending some time with the mother, including taking the child to visit the mother while she was incarcerated without the father’s knowledge or consent.
There is no evidence of the child’s relationship with any members of the maternal extended family.
The father does not have any other family in Australia. He is however in a committed relationship and has the care of another young child, who is the biological child of his partner. There is some evidence in the father’s case that [X] has a good relationship with that other young child and the father’s partner. There is also some evidence in the father’s case that the child has seen and communicates with the paternal grandparents via electronic means.
Sub-section 60CC(3)(c)
The father has had a limited opportunity of spending time with the child and of communicating with her. The way in which the child came to be in the care of Ms Trueman has already been addressed in these Reasons.
The father commenced these proceedings on 11 September 2015. At the time, [X] was not even 13 months old. He has always maintained that it was in [X]’s best interests for there to be an order that she live with him. Through no fault of his own, it had taken three years for the matter to be heard on a final basis, and almost three and a half years after the proceedings were commenced for final orders to be made. The matter has had a large number of Court events. The father has been persistent and consistent in his application. He has been patient with the Court process.
The father has taken all reasonable opportunities of spending time with the child pursuant to interim orders. While there may have been an odd occasion when time did not occur, by and large the parties have complied with the orders and the father has spent time with the child. Ms Trueman and the father have also been able to agree to informally vary the time the child was spending with the father pursuant to interim orders in order to facilitate the father’s work and other commitments.
The child has spent very limited time with the mother, and this has been through arrangements between Ms Trueman and the mother. Since June 2016 a restraint has been in place which prevented Ms Trueman and her partner from leaving the child in the mother’s sole care and from permitting the mother to remove the child from their care.
Sub-section 60CC(3)(ca)
There is no evidence that the father has ever been assessed to pay child support. The father has from time to time purchased items for the child.
There is no evidence that the mother has ever been assessed to pay child support.
It is Ms Trueman who has taken on the bulk of the financial responsibilities of caring for the child.
Sub-section 60CC(3)(d)
The likely effect of any changes in the child’s circumstances is in the Court’s view one of the most significant factors the Court has to consider in the circumstances of this case.
[X] has been living with Ms Trueman for almost her entire life, and certainly for as long as she can remember. She has close and loving relationships not only with her aunt, but also the other members of Ms Trueman’s household.
Ms N’s evidence in respect of this issue may be summarised as follows:
a)[X] was orientated towards living in the aunt’s household;
b)[X] appears to have a positive relationship with father which was developing;
c)If [X] was moved from Ms Trueman’s household this would be a difficult experience for her, and there would be grief and loss around what her world had been: loss of relationships, structure, routine and orientation towards care givers;
d)The father would need to be mindful that it is different for the child to live with him to spending time with him. One of the important things is for the father to have a concept of what that would be like for [X] and therefore that he have the capacity to imagine what it would be like to live in an entirely new household, separated from her care givers that she has known, separated from her cousins – if he has no understanding of that he then needs to be able to manage it. In terms of management, the father needs to be able to read the child’s cues – when he notices something out of the ordinary he then needs to consider what that might be about, being attentive and attuned to her cues. He also ought to have the capacity to predict times which might be difficult for [X], her routines and capacity to predict what she might be experiencing.
e)The father did not have a thorough understanding of the implications and what might be involved in supporting [X]’s move to his household from Ms Trueman. He did not appear to be particularly attune to what [X] might suffer;
f)There is an unknown in respect of what [X]’s reaction might be to spending overnight time away from Ms Trueman. Ideally, if she was to change residences the process would be complete several months prior to commencing school, so that developmentally she is not adjusting to too much change at once.
It was the Court’s observation that the father was listening attentively while Ms N was giving her evidence.[29]
[29] One would expect from the father’s lived experience of being an unaccompanied minor and undertaking a dangerous boat trip to claim asylum in Australia that he would have an understanding of what it is like to live in an entirely new household without the only family you have ever known.
It is the Court’s finding that the father has demonstrated a capacity to support [X] in a transition into his full-time care. He has carefully set out what his plans are if [X] was to live with him. Ms N has indicated that these matters allay her concerns to some degree. The father has indicated through his oral evidence that he will do whatever it takes to make [X] happy. It is the Court’s view that the father will seek out appropriate assistance if needed not only to help him, but also to help [X]. It is the Court’s assessment of the father that he is attune to [X]’s needs and that he will put her needs ahead of his own.
There was nothing about [X], in Ms N’s opinion, which would have led her to form the view that with adequate support, [X] could not cope with a change of residence.
It might be inferred from Ms N’s evidence that in order for [X]’s best interest to be served in the long term, Ms Trueman would also need to possess the skills and capacity Ms N would like to see in the father.
Submissions were made on behalf of Ms Trueman that the father’s text message to Ms Trueman that:
[X] gonna come to me or later she has to know who’s her dad and that’s the time I’m gonna tell her u did to us and she gonna hate you for whatever you done to us” and “So don’t act like you care for me to come see [X] u the reason I didn’t came to see [X] today
tends to undermine any submission the father might make about acknowledging the importance of [X]’s relationship with Ms Trueman’s family, is not a submission which is accepted on the evidence. The text message, while unfortunate and certainly when read out of context appears to undermine the child’s relationship with Ms Trueman, is the only such text message between the father and Ms Trueman which is in evidence. It is also immediately followed by a text message from Ms Trueman “So does that mean u are not seeing [X] anymore?” which in the context of what was occurring on that day speaks strongly of Ms Trueman’s limited willingness to facilitate the child’s relationship with the father.
Sub-section 60CC(3)(e)
If the child was to live with Ms Trueman there is no practical difficulty with her spending time with and communicating with either of her parents. There are some significant risk factors associated with the child spending time with the mother arising out of her anti-social behaviour, illicit substance use and limited relationship with the child.
Sub-section 60CC(3)(f)
It has been held by the Full Court that:
in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s)[30].
[30] Donnell at [97]
Ms N was of the opinion that it was not likely for [X] to have a good relationship with father unless she had received psychological permission from her aunt to do so. It is a fact in these proceedings that Ms Trueman is asking the Court for an order for [X] to live with her and to spend time with the father. That she has given [X] psychological permission to have a good relationship with her father is entirely consistent with her position. However, it has to be considered in light of the child calling Ms Trueman and her partner “mum” and “dad” and referring to the father as “daddy …”. It has to be considered in light of all of Ms Trueman’s actions and the actual relationship which has been facilitated.
Ms N was of the opinion that Ms Trueman was likely to facilitate a relationship between the child and her parents more so than the father was likely to facilitate between the child and Ms Trueman and the mother. The Court does not find that this has been established on the facts. There is nothing to indicate to the Court that the father will not facilitate a relationship between [X] and her aunt, or between [X] and her mother. Indeed he recognises the importance to [X] of these relationships and these people. While Ms N formed an opinion of the father based on her own observations of him, having the benefit of hearing both parties cross-examined, and having the benefit of observing the parties during the hearing, the Court does finds that Ms Trueman, rather than the father, is the person less likely to promote such a relationship.
The difficulty for the Court in accepting Ms N’s opinion about the aunt’s willingness to provide for the child’s emotional needs is that Ms Trueman was not willing to facilitate any relationship between the child and the father when [X] first came to be in her care, she ignored the letters sent by the father’s solicitors, and even in the face of her application for overnight time, which had been filed and served as at June 2016, Ms Trueman had still not facilitated the child spending overnight time with the father as at the date of the final hearing. At final hearing, her position in respect of overnight time with the father changed, it was submitted on the basis of risk which was posed to the child in the father’s household.
It is the Court’s assessment of Ms Trueman that she has acted in a non-child focused way in retaining [X] in her care after the mother asked her to care for her, and not letting the father spend any time with the child. Ms Trueman said that it was not up to her to decide whether the child should see her father when she was placed in her care. The Court does not accept this, she is the one who refused to answer the father’s attempts at communicating with her about seeing [X] in circumstances where she knew that the mother was not communicating with either her or the father. She did not commence proceedings.
Furthermore, the information which the mother had provided to Ms Trueman in respect of the father being allegedly violent towards her[31], is not in the Court’s assessment of sufficient magnitude such that it could have resulted in an unacceptable risk of harm to [X] in spending time with the father or indeed living with the father in her very early years. The result of Ms Trueman’s actions in not facilitating any time were such that [X] was denied the important opportunity of spending time or living with the father from April 2015 to December 2015, from the age of eight months to the age of 16 months, and consequently having to establish a relationship with him. By the time the orders for time were made on 23 March 2016 the father was in effect a stranger to [X].
[31] And taking into consideration the father’s admission that he slapped the mother on one occasion during an argument that also involved violence from her
The father was homeless for a part of this period, in all a few days. He suffered from some form of mental health issue at the time. He had just lost his partner, his daughter and his home. He attributes his mental health issues at the time to these losses.
While there was cross-examination of both the father and Ms Trueman about their mental health, ultimately neither party made submission that the mental health of the other party was such that it impacted upon their capacity to parent [X], or meet her needs in any manner.
The father has been the primary care giver to his partner’s child and has provided her with the only constant physical and emotional support for more than 12 months. He has in caring for her, ensured that she has a strong relationship with her mother. It is therefore open to conclude that the father would be able to have a similar capacity in respect of [X].
Ms N, during her interviews with the father, commenced forming a particular view of him from the early stages of the interview. Her evidence is that the father was not proposing any time between [X] and Ms Trueman. She says this is based on the questions which she asked the father during the interview. At the time, the father had before the Court an application for [X] to spend time with Ms Trueman as agreed between them and had stated to Ms N that he did not want to take [X] away from Ms N and her children. Whatever words the father might have spoken in answer to Ms N’s questions about the orders he sought, had to be understood in the context of his then application and the other matters he had said to Ms N. To have formed an opinion that the father was not proposing any time for [X] to spend with Ms N if she was to live with him was the result of a misunderstanding on the part of Ms N.
In addition, Ms N’s opinions of the father were also in part based on an erroneous understanding of the father’s partner’s child’s living circumstances. Indeed, the evidence established that the father had met those child’s best interests and needs, and had acted at all times in a child-focused way towards that child.
Sub-section 60CC(3)(g)
The father is a man of Country B background, and he has introduced [X] to his culture and languages. There is no evidence that Ms Trueman has supported [X] in identifying with the father’s cultural background.
In the absence of any consideration of these matters by Ms N, who had not asked either the father or Ms N about the importance or otherwise of the Country B community to the father or his background as a refugee from Country B, the recommendations by Ms N did not properly factor in the relevance of the father’s culture and traditions.
Sub-section 60CC(3)(h)
There is no evidence that the child is an Aboriginal child or a Torres Strait Islander child.
Sub-section 60CC(3)(i)
There is very little evidence of the mother’s attitude to the child and to the responsibilities of parenthood, except as demonstrated through her lack of engagement in the proceedings and her leaving the child with Ms Trueman when she was but eight months old. In that context, the mother’s actions also speak of her poor attitude towards the child having any relationship with the father.
The father’s demonstrated attitude towards the child and the responsibilities of parenthood has already been the subject of findings throughout these Reasons for Judgment. The father has at all times acted appropriately, despite the hurdles which have been placed in the way of the child’s relationship with him.
The suggestion in the submissions made on behalf of Ms Trueman that the father’s attitude towards the child is “somewhat proprietary” is not established on the evidence. He is the child’s father. The legislation speaks in the principles and objects of the Act in terms of the child’s rights to be cared for by her parents.
Sub-section 60CC(3)(j)
Aspects of family violence have already been canvassed earlier in these reasons. The evidence does not establish on the balance of probabilities that the child has been exposed to family violence in either the father’s household or the household of Ms Trueman.
The “significant question mark” said to exist by Ms Trueman [32] over whether some form of family violence occurred on 20 June 2018 is to invite speculation by the Court. While the event was not the subject of any evidence in chief by the father despite his affidavit being filed on 8 August 2018, it was however, the subject of significant cross-examination of the father.
[32] Through the submissions made on her behalf
While an adverse inference as to the father’s credit might be open based on the lack of any evidence in chief about the event, it is not an inference that the Court draws. The father said that no-one had asked him about it, and that he did not think to include it. He did not think that the partner’s child was at risk at the time. The father also admitted that he was wrong in his evidence when he swore to the fact that his partner had not drunk any alcohol since Christmas 2017, given that she turned up at his residence in what appeared to be an intoxicated state on 20 June 2018.
Sub-section 60CC(3)(k)
There are no family violence orders.
Sub-section 60CC(3)(l)
These proceedings have been on foot since September in 2015. There has been a significant number of Court events, the parties have attended and attempted family dispute resolution and there have been agreements reached between them as to the interim arrangements for [X].
The fact of the mother’s lack of participation might mean that at some point in the future she will bring an application for parenting orders. Parenting proceedings are not subject to res judicata. This of itself does not mean that final orders ought not be made at this point in time. [X] deserves to have some certainly in her life, particularly as she is due to commence formal schooling next year.
Sub-section 60CC(3)(m)
The child has not yet stayed overnight away from the home of the maternal aunt. A change of residence will have significant impact upon her at least in the short term. She needs to be supported in what is to come. The Court is not bound by any proposal made by any party. The Court is duty bound to make orders which are in the child’s best interest.
The evidence of Ms N supports a period of transition between the two households for the child, if an order for her to live with the father is to be made. Ms N’s opinion is that [X] needs to be settled well in time for the start of kindergarten at the commencement of next year.
Parental Responsibility
Given the lack of involvement by the mother in the child’s life to date and her lack of engagement in these proceedings, the presumption of equal shared parental responsibility has been rebutted.
It is open to the Court to make an order for a person other than a parent to have parental responsibility for the child. In circumstances where the child will be living with the father pursuant to these orders, it is in her best interest for the father to have sole parental responsibility. While the father and Ms Trueman have been able to agree on some long term decisions concerning the child, going forward no objective reason has been put as to why Ms Trueman ought to have a say in the long term decisions concerning [X] in circumstances where she is living with the father.
Conclusion
Ms Trueman has provided a loving home to [X] for almost 4 years. She has treated her as part of her own family. She clearly has some doubts about the father’s capacity to care of [X], and in the Court’s view, herself has demonstrated an attitude towards the child which is “somewhat proprietary”. Objectively however, the concerns which Ms Trueman might have had or still has about the father’s capacity, have not been borne out on the evidence. It is not a matter of finding that [X] should remain living with Ms Trueman because the future is uncertain and the father’s capacity is to an extent untested. It is a matter of weighing up all of the relevant considerations and coming up with a determination in the exercise of the Court’s discretion, as to what living arrangements are in [X]’s best interest.
The circumstances in which this child came to be in the care of Ms Trueman prejudiced her legal and moral right to be cared for by her father. It deprived her of an opportunity of establishing a relationship with him which, if he was her primary carer, would likely have led to a primary attachment to him. Instead, her aunt (by virtue of her refusing to allow the child to have a relationship with the father for a period of some 8 months) became her primary carer. The mere fact of that deprivation of the relationship, for reasons which have clearly not been made out, bears heavily on the Court’s determination of her capacity to ‘parent’ the child. It is however, not a determinative factor.
It is the accumulation of all relevant factors which lead the Court to the conclusion that the child’s best interests are served by an arrangement where she lives primarily with the father and spends time with the maternal aunt (and consequently the maternal aunt’s family and the child’s mother).
For all of these reasons orders are made as set out in the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 6 March 2019
0
10
2