Gill and Ronald and Ors

[2016] FamCA 702

FAMILY COURT OF AUSTRALIA

GILL & RONALD & ORS [2016] FamCA 702

FAMILY LAW – CHILDREN – allocation of parental responsibility – where the Intervenor state welfare authority seeks orders for parental responsibility – child’s best interests – where the child’s biological parents did not participate at the final hearing – orders made in favour of the child welfare authority.

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Gill

FIRST RESPONDENT: Ms Ronald

SECOND RESPONDENT: Ms Allen

INTERVENOR: Secretary, Department of Family and Community Services, New South Wales

INDEPENDENT CHILDREN’S LAWYER: Claire Newton

FILE NUMBER: LEC 94 of 2012

DATE DELIVERED: 19 August 2016 orally; settled reasons provided to the parties 25 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 August 2016

REPRESENTATION

THE APPLICANT: No appearance

THE FIRST RESPONDENT: No appearance

COUNSEL FOR THE SECOND RESPONDENT: Mr Smart

SOLICITOR FOR THE SECOND RESPONDENT: Paul Denmeade & Co

COUNSEL FOR THE INTERVENOR: Ms Ward

SOLICITOR FOR THE INTERVENOR: Crown Law New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Newton Family Lawyer

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders in relation to the child B (the child), born … 2010, are discharged.

2. The Minister for Family and Community Services (the Minister) have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:

   1. his education;
   2. his religious and cultural upbringing;
   3. his health; and
   4. his living arrangements that make it more difficult for him to spend time with each parent.

3. Unless otherwise agreed, the child shall spend time with his mother, Ms Ronald, on four occasions each calendar year, on the following conditions:

   1. each occasion shall involve multiple visits falling on consecutive days, and
   2. each of these visits shall be for a period of no less than two (2) hours commencing at times, and for a frequency, as agreed between the parties but failing agreement, as nominated by the Intervenor or his delegate; and
   3. such time shall, at the discretion of and in the manner directed by the Intervenor or his delegate, be supervised (in the sense of the presence of another adult).

4. The child shall spend time with his father, Mr Gill, at such times, and for such duration as may be agreed between the parties in writing, but failing agreement as may be nominated by the Intervenor or his delegate and such time shall, at the discretion of and in the manner directed by the Intervenor or his delegate, be supervised.

5. Unless otherwise agreed, the child shall have telephone communication with his mother and siblings on one occasion per month at times, and for such duration, as is agreed between the mother and Intervenor in writing but failing agreement, as nominated by the Intervenor or his delegate and on the condition that the Intervenor, or his delegate, be at liberty to supervise such communication.

6. The child’s mother and father are hereby restrained and an injunction issue restraining them, during any time they are spending with the child, from:

   1. being under the influence of illicit drugs while spending time with the child;
   2. consuming alcohol in excess of the applicable legal driving limit within twelve (12) hours of the commencement of any time they spend with the child;
   3. abusing, insulting or denigrating the child or any of the other parties, or any member of the party’s family or household, or any member of the household in which the child is living, to or in the presence of the child; and
   4. discussing any allegation made or evidence given in the proceedings to or in the presence of the child; and
   5. exposing the child to any form of domestic violence, including verbal violence or abusive language to, or within, his hearing; and
   6. physically disciplining or striking the child; and
   7. questioning the child about the appropriateness of any other parties’ behaviour or parenting or the appropriateness or behaviour of any person with whom he is then living.

7. The father shall, within twenty-four (24) hours of a request made in writing by the Intervenor or his delegate, attend random chain of custody drug urinalysis screening in accordance with the current Australian Standard and shall, within twenty-four (24) hours of receipt of same, provide the results of such screening to the Intervenor or the Intervenor’s delegate.

8. The Intervenor has leave to provide to any service engaged to assist the child, his mother or his father, or as associated with the Intervenor’s exercise of either the sole parental responsibility accorded to the Intervenor pursuant to this Order or the exercise of the Intervenor’s state welfare powers, a copy of the reports of Dr C dated 5 March 2015 and 14 July 2016. 

IT IS ORDERED BY CONSENT AS BETWEEN THE SECOND REPSONDENT, INTERVENOR AND INDEPENDENT CHILDREN’S LAWYER THAT

1. The child spend time with the maternal grandmother as agreed but on no less than four (4) occasions each year at E Town or such other place as is agreed as follows:

   1. on two occasions following the making of this Order for no less than four (4) hours; and
   2. thereafter for up to six (6) hours at the election of the maternal grandmother.

2. The child shall communicate with the maternal grandmother by telephone and/or other electronic means at least once per month at such time and on such dates as are agreed.

3. The maternal grandmother be and is hereby restrained from involving the mother during the time that the maternal grandmother spends with the child.

4. The maternal grandmother be at liberty to send letters, presents and photographs to the child via the office of the Intervenor and the Intervenor shall provide same to the child in a timely fashion.

5. The Intervenor shall ensure that the maternal grandmother is invited to participate (including by telephone) in the annual Case Plan Meeting in relation to the child and such meeting shall include discussion of the time that the child spends with the maternal grandmother and whether it is appropriate for the child to commence spending overnight and/or holiday time with the maternal grandmother.

6. Save in the case of responding to an emergency situation, in the event the Intervenor determines that it will seek to move the child from his current foster carers then the Intervenor shall notify the mother and maternal grandmother in writing within forty-eight (48) hours of that determination.

7. The maternal grandmother be at liberty to contact the child’s school and request information pertaining to the child’s schooling and to attend school events normally attended by family members and this Order authorises the school to provide such information as is requested by the maternal grandmother pursuant to this Order.

IT IS NOTED THAT

A.Either or both of the child’s current carers shall be at liberty to attend all or part of the first four (4) hour time and the first six (6) hour time the child spends with the maternal grandmother and on other occasions at the election of the maternal grandmother.

B.In the event that the parties do not reach agreement about whether it is appropriate for the child to commence spending overnight time and/or holiday time with the maternal grandmother, then she has liberty to apply in relation to the issue of time (including overnight and/or holiday time).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gill & Ronald 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 BRISBANE

FILE NUMBER: LEC 94 of 2012

Mr Gill

Applicant

And

Ms Ronald

First Respondent

And

Ms Allen
Second Respondent

And

Department of Family and Community Services, New South Wales
Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings concern the child B, who was born in 2010.  The matter was listed for trial for three days commencing on Wednesday.  When it commenced before me, neither of the child’s biological parents appeared.  Instead, the day was usefully used for the remaining parties, which include his maternal grandmother, to reach agreement in relation to orders which will provide him the opportunity to maintain an ongoing relationship with her.  That is important for the child because regard to the evidence before the Court establishes that his start in life was one that had a large number of challenges and compromises. 

2. It is clear that, from mid-August 2013, when his care was, in essence, assumed by the Intervenor, that he has been afforded opportunities to address some of the issues that unfortunately arose for him as a consequence of the limited parenting capacity his mother possesses.

3. It is clear on all of the evidence that the most important thing in this case for the child is to ensure stability of care and to ensure that he is provided with every opportunity to maximise his potential. 

4. He has, since about August 2013, lived with foster carers.  It is clear on all of the evidence that those persons are undertaking their care of the child in an exemplary manner.  The evidence clearly suggests that he has benefitted a great deal from the opportunity to be cared for by them.  He clearly has strong and significant attachments to them, something which is perhaps unsurprising given his age at the time they assumed responsibility for his care.  He clearly has been welcomed by them. It is the expressed intention of the Intervenor that he remain within the care of, in a practical sense, the foster carers with whom he has lived since mid-2013.

5. A case such as this is one in which, in my view, clear reference to the principles outlined by the Full Court in Banks & Banks is apposite: that is, it is clear from that authority that, in circumstances where the evidence is such as to point inexorably to one conclusion, it is unnecessary for the Court to traverse in great detail all of the evidence before it. 

6. It is, I think, enough to state here that, insofar as the child’s biological father is concerned, his failure to appear and participate in the hearing which commenced on Wednesday is a further manifestation of what can best be described as an intermittent involvement in the child’s life.  He has through the course of these proceedings intermittently appeared at various court events.  He did not participate in the interviews for the Family Reports conducted by Dr C.  He has spent very intermittent time with the child, despite the efforts of the delegates of the Intervenor. 

7. Reading the contents of Exhibit 1 would only lead to a conclusion that all reasonable efforts appear to have been made to ensure that the child’s father has been provided with information about the child’s life - including photographs on relatively regular occasions - and that attempts have been made to facilitate him spending time with the child.  Those efforts have included offering financial assistance to assist in travel.  Unfortunately, for reasons which appear to be said to relate to difficulties in transport, it seems that the child’s time with his father has been extremely limited.  It is clear on the evidence that it has been so limited that the child does not, in fact, recognise his father as his father.  He is very much someone who is not engaged in the child’s life.

8. That position can, in a way, be contrasted by the position of the child’s mother.  It is clear she suffers from relatively significant personal deficits.  It might be said (some might say somewhat charitably) that, to the extent that is possible, she has endeavoured - albeit on somewhat of an up and down basis - to attempt to do her best.  She has been the recipient of a significant amount of assistance to attempt to assist her in her parenting.  Unfortunately, it is quite clear on the evidence that, despite the application of those resources and despite her attendance at a number of parenting courses, her functioning is such that she appears to experience significant difficulty in retaining and applying the parenting principles and learnings that have been made available to her. 

9. It seems to me to be well established on the evidence that it is highly unlikely that there will be any improvement in the child’s mother’s parenting capacity in a long term sense.  That capacity is also, relevantly, taxed as a consequence of the fact that the child has a number of siblings who, for the most part and for, it appears, at least most of the time, live with their mother; albeit that, more recently, there appears to be somewhat of a fracture of some sort between the child’s mother and his oldest sister, F, who is now 14 years of age.  The mother’s other children - G, who is now nearly 13 years of age, and H, who is now nearly four years of age - appear to live with their mother; although, again, the evidence suggests that, insofar as G is concerned, there are occasions on which he absents himself from her residence and seeks accommodation elsewhere.

10. The importance for the child of the opportunity to maintain a relationship with the biological, aspect of his family is important.  So much is recognised by the proposal put forward by the Intervenor and the Independent Children’s Lawyer, which would afford to the mother the opportunity to spend time with the child on four occasions per year.  Whilst it may, in one way, be thought that that time is somewhat limited, the reality of the child’s life must also be taken into account.  Geographic distance and practicality must also be taken into account.  The importance of affording to the child stability and the opportunity to benefit fully from the care and living arrangements which he has enjoyed since mid-2013 must also be taken into account.

11. Insofar as the child’s mother is concerned, it appears that, subject to logistic constraints and previous arrangements between herself and the relevant person from the Intervenor, she has maintained pretty good consistency in ensuring her attendance - and the attendance of the child’s siblings - at the visits that have been organised by the Intervenor.  She has made a point, it seems, more recently, of expressing to one of the facilitators her desire to ensure that, irrespective of the child’s ongoing living arrangements, she and his siblings remain known to him.  Whilst she, too, did not appear at this hearing it is clear, I think, from that evidence and from her actions in attending the organised visits that she has manifested a desire and intention to remain - to the extent that is possible and consistent otherwise with the child’s best interests - a part of his life.

12. It is, I think, sufficient in this case to record my finding that the presumption of equal shared parental responsibility does not apply.  It is also, I think, sufficient to record that, in addressing and focusing upon, as I must, the child’s best interests as the primary consideration, of all of the relevant considerations, the importance to him of the maintenance of stability and the absence of change is, itself paramount.

13. It is, I think, well established that the orders that are proposed by each of the Intervenor and Independent Children’s Lawyer will afford the child the opportunity to maintain a relationship with his biological mother.  It will afford to him the opportunity, subject to his biological father making the effort to attempt to create a relationship with him, to maintain that. 

14. It is, I think, clear on all of the evidence that the appropriate orders in this case are those which will ensure that the Intervenor is able to continue to be in a position to ensure a continuation of stability for the child.

15. It is also, I think, sufficient to record that each of the child’s biological parents have, on occasion, utilised illicit substances.  It is, I think, relatively well established that, insofar as the child’s father is concerned, that use of illicit substances has been something that is longstanding.  Insofar as his mother is concerned, it’s perhaps a little more intermittent.  Some of these matters are, I think, relevant to the orders sought in relation to injunctive relief directed to managing the functioning of each of the child’s biological parents during any time that they may spend time with him.

16. I do not intend to deliver any further reasons, because I am satisfied that those which I have pronounced thus far, taking into account, as I have said, the Full Court’s discussion in Banks & Banks, address (for the purpose of this proceeding) sufficiently the evidence. 

17. There could be no other conclusion than that the child’s best interests will be met by orders that will, as I have said, see afforded to the Intervenor sole parental responsibility for him.

18. I do not intend today to make orders in relation to the child’s living arrangements.  I decline to make orders insofar as that particular aspect of his care is concerned.  I consider the more appropriate order, and an order which is proper and in his best interests, simply to be one which affords to the Intervenor sole parental responsibility for major long term issues for the child.  That will have, as I understand it, pursuant to the application of the relevant New South Wales legislation, a number of consequences - included within which, of course, is the ability for the Intervenor to continue to be responsible for, and manage and discharge those responsibilities in relation to, the child’s care.

19. It is clearly in the child’s best interests that, during any time his biological parents spend with him, they act in a manner that is not going to place him at any risk of suffering harm and that they present in a manner that maximises, for him the opportunity to use that time to develop and/or maintain a relationship. 

20. It is clearly important for the child, given the contents of the material before me, to be afforded the opportunity to continue to spend some time with F and G and H or any combination of those who may accompany their mother.  It is clear on the material, at least, that he appears to have a relationship with them.  He certainly recognises and knows them and seemed to take particular delight and/or interest in H.  So it seems that there would be benefit to him in affording to him the opportunity to continue to maintain those relationships. 

21. The effect of any change for the child of any living arrangement would be catastrophic.  In any event, there are no real competing proposals in relation to his living arrangements.  Had there been, it is highly unlikely, in any event, that they would have been considered to have been in his best interests.

22. I should also record that orders have already been made in relation to the child’s time and ongoing relationship with his maternal grandmother. 

23. I record that I have declined to make orders of an injunctive nature which, in essence, direct the child’s mother and father from permitting any person to do any of the things that they are restrained from doing because I am not persuaded, on the evidence, that it is likely that such orders are capable of being enforced.

24. For these reasons, then, Orders are made in the terms set out at the commencement of these Reasons, upon my conclusion that they are Orders which are in the child’s best interests and proper.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 August 2016.

Associate: 

Date:  25 August 2016.