GRALL & HACKETT

[2015] FamCA 540

FAMILY COURT OF AUSTRALIA

GRALL & HACKETT [2015] FamCA 540

FAMILY LAW – PARENTING – Application for parenting orders by maternal grandmother — mother deceased — father failed to attend hearing — final orders unopposed — costs

Family Law Act 1975 (Cth) Pt VII

Valentine & Lacerra and Anor [2013] FamCAFC 53

APPLICANT: Ms Grall

RESPONDENT: Mr Hackett

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10612 of 2014

DATE DELIVERED: 1 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Forster

SOLICITOR FOR THE APPLICANT: Forster & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

IT IS ORDERED:

1.That the maternal grandmother, Ms Grall, and the father, Mr Hackett, have shared parental responsibility for the child B born … 2004 (“the child”).

2.That the child live with the maternal grandmother and she be responsible for his day to day care welfare and development.

3.That the child spend time with the father as agreed between the parties from time to time.

4.That the child and his father communicate by post or electronic means including telephone, text, email and Skype according to their wishes.

5.The father make a contribution to the applicant’s cost of these proceedings fixed in the sum of $695, such payment to be made by not later than
4.00 pm on 12 June 2015 and into the account of Forster & Associates Lawyers.

6.For the purpose of facilitating the payment of costs, Forster & Associates Lawyers forthwith notify the father in writing of the details of the bank account into which the monies are to be paid.

7.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

8.Otherwise all extant applications before the Court be and are hereby dismissed and removed from the matters awaiting allocation for final hearing.

AND IT IS NOTED that, for the avoidance of doubt, the fact that the father shares parental responsibility in relation to the child entitles the father to obtain copies of school records and to discuss the child’s progress with the school at which the child is attending.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 10612 of 2014

Ms Grall

Applicant

And

Mr Hackett

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 May 2015, I made parenting orders in relation to the child B (“the child”) born in 2004 and reserved my reasons to be published at a later date. These are those reasons.  

2. The application was brought by the maternal grandmother, who sought final parenting orders in relation to the child. The mother is deceased and the respondent is the child’s father.

3. The parents separated when the child was four months old. Thereafter, the mother and the child lived with the maternal grandmother until the mother’s death in 2013. At that time, the maternal grandmother became the child’s primary caregiver and he has lived with her uninterruptedly ever since. The father works in the mining industry and spends significant time interstate in this capacity.

4. The maternal grandmother filed an initiating application in this Court on 26 November 2014, seeking (on both an interim and a final basis):

   a)that she and the father have shared parental responsibility for the child;

   b)that the child live with her and she be responsible for his day to day care, welfare and development;

   c)that the child spend time with the father as agreed between the parties from time to time; and

   d)that the child and the father communicate by post or electronic means including telephone, text, email and Skype according to their wishes.

5. The maternal grandmother also filed an affidavit in support of her application, sworn 25 November 2014, and a s 60I Certificate by a family dispute resolution practitioner, indicating that the parties had not attended family dispute resolution because the practitioner considered, pursuant to s 60I(8)(aa) of the Family Law Act 1975 (Cth) (“the Act”), that it would not be appropriate to conduct family dispute resolution in this matter.

6. The father filed a response on 3 February 2015 seeking final orders in the following terms:

   a)that the child spend every third weekend with the father;

   b)that the child spend Christmas Eve and New Year’s Eve with the father in alternating years, as well as Christmas Day and New Year’s Day each following year;

   c)that any final orders made at this time be reviewed at the end of 2016, being the year when the child is to complete primary school;

   d)that the father be notified of all medical visits that are related to the child’s wellbeing, that he be given access to the child’s medical records, to be notified if any accidents occur and to be consulted in relation to operations or urgent surgery if such is required;

   e)that the father have full access to the child’s schooling information, such as school reports, and that these be mailed to the father along with any progress statements, conduct cards and disciplinary actions taken in relation to the child, as well as photo forms; and

   f)that the father be notified if the child is to leave the state of Victoria.

   The father also filed an affidavit sworn on 3 February 2015.

7. On 7 January 2015, Registrar Sikiotis made interim orders by consent in the terms of the orders sought by the maternal grandmother. The application for final parenting orders was adjourned to a procedural hearing list for review and further case management on 29 April 2015.

8. On 29 April 2015, the father failed to attend court. Registrar Sikiotis made orders, inter alia, for each of the parties to file any further material they would seek to rely upon and adjourned the matter into the Judicial Duty List on 22 May 2015 with leave for the applicant to run her case on an undefended basis should the father fail either to file further material as ordered or appear at the hearing.

9. The applicant maternal grandmother swore and filed a further affidavit on 6 May 2015, followed by a supplementary affidavit sworn and filed on 15 May 2015. The respondent father did not file any further material.

10. When the matter came before me on 22 May 2015, the maternal grandmother was represented by her solicitor, Ms Forster. The father did not appear. I was, and remain, satisfied that the father was accorded procedural fairness and had ample opportunity to respond to the grandmother’s application. He filed a notice of address for service on 7 January 2015 and was present when Registrar Sikiotis made her orders on that day. He elected not to file further material or attend court on subsequent occasions.

11. This is not a case wherein there are two competing proposals as to who the child should live with. Indeed, the parties’ proposals are substantively consistent with one another, differing only in the amount of specificity sought in the parenting orders and in the father’s desire for the parenting orders to be reviewed at the end of 2016.

Evidence

1. No oral evidence was given in this case and no independent professional assessments were ordered or completed at the request of the parties. The evidence consists of three affidavits by the maternal grandmother and one by the father.

2. The maternal grandmother deposed[1] that she is 56 years old and in good health, works for her brother’s building company as an administration officer and project manager and earns $66,000 per annum. She further deposed that she receives a government benefit in the sum of $161.04 per week to assist with the child’s care and that she lives in a three bedroom rental property which she rents from her daughter, the child’s aunt. According to the maternal grandmother’s uncontested evidence, the child has lived in this house since his birth.

   [1] Affidavit of the maternal grandmother sworn 25 November 2014 at [5].

3. The maternal grandmother deposed[2] that the child is in good health and has dealt well with his mother’s death, though he does have “periods of extreme sadness”. She deposed that the child is an average student who struggles somewhat with reading, which she assists him with under the guidance of his teacher. The maternal grandmother deposed that the child has friends at school and also in the street where they live and that the child enthusiastically participates in junior football.

   [2] Ibid [6].

4. The maternal grandmother deposed[3] that she is assisted in caring for the child by her daughter, the child’s aunt, who is a forensic officer for Victoria Police — the maternal grandmother takes him to school each morning and her daughter collects him each afternoon.

   [3] Ibid [7].

5. The maternal grandmother deposed[4] that she is in a position to provide emotionally, physically and financially for her grandson.

   [4] Ibid [8].

6. The maternal grandmother’s evidence is that she has experienced complications which result from her lack of any documentation formally acknowledging her role as the child’s carer. Such complications have arisen, she deposed,[5] in her dealings with Centrelink, the child’s school and a recent unsuccessful attempt to obtain a copy of the child’s Birth Certificate from the Department of Births, Deaths and Marriages.

   [5] Ibid.

7. The maternal grandmother deposed[6] that from March 2014 she had made attempts to obtain the father’s cooperation in obtaining orders to formalise her role as the child’s primary carer. Annexed[7] to the maternal grandmother’s affidavit sworn 25 November 2014 is a copy of proposed consent orders, dated 28 October 2014, signed by both parties. The maternal grandmother deposed[8] that she had hoped for these orders to be finalised by making an application for consent orders but that this proved impossible as the father would not complete the necessary paperwork. The maternal grandmother deposed[9] that the father’s lack of cooperation led her to seek the assistance of the Court to formalise the child’s living arrangements and thus provide him with certainty about the future.

   [6] Ibid [4], [12].

   [7] Annexure “JAG 3”.

   [8] Affidavit of the maternal grandmother sworn 25 November 2014 at [2], [12].

   [9] Ibid [4].

8. The maternal grandmother deposed[10] that the father has re-partnered and has two children of this relationship, one being six years of age and the other four years of age. She further deposed that the father had worked interstate in the mining industry since 2011 until recently, on a fly-in/fly-out basis.

   [10] Ibid [9].

9. The maternal grandmother deposed[11] that while the child’s mother had encouraged his relationship with his father, the child had never spent significant time with the father and there was no set routine of involvement, though there had been ad hoc contact based on the father’s availability. Nonetheless, the maternal grandmother deposed[12] that the child has developed a reasonable relationship with his father and extended paternal family. Her evidence was that she has remained in communication with the father’s family since the death of her daughter and has facilitated the child’s contact with them, though this has been minimal.

   [11] Ibid.

   [12] Ibid [10].

10. The maternal grandmother deposed[13] that shortly after his mother’s death, the child had expressed concern that his father would want the child to go and live with him, which unsettled him because he had not stayed overnight with his father since the end of December 2013.

    [13] Ibid.

11. The maternal grandmother deposed[14] that the child had seen the father on seven occasions in 2014 up until 25 November (being the date on which her affidavit was sworn), consisting of two full day outings, one half day outing and visits at the maternal grandmother’s home of one and a half to two hours.

    [14] Ibid.

12. The maternal grandmother deposed:[15]

    I fully understand the need for [the child] to remain in contact with his father and paternal family, and I intend to continue to support this need as I have done in the past. I am also aware that [the child] is grieving for the loss of his mother and is dealing with the insecurity of his future living arrangements. I believe he would benefit from having certainty about his future living arrangements.

    [15] Ibid [11].

13. The maternal grandmother deposed[16] that the father had told her that he was seeking assistance with a serious alcohol problem and was to enter a six month residential rehabilitation program to assist him with these issues. She further deposed that she arranged for the father to see the child on 28 October 2014, when the father told the child that he would be unable to visit over the next six months as he was going on a “camp”. According to the maternal grandmother’s evidence, it was during this visit that the father signed the minute of proposed orders referred to at [18] above.

    [16] Ibid [13].

14. The maternal grandmother deposed[17] that she (at that time) was not aware of the father’s residential address or that of his partner.

    [17] Ibid.

15. The father’s affidavit sworn 3 February 2015 does not dispute any of the information the maternal grandmother provided about his personal circumstances.

16. The father deposed that he does “not agree with nor want to give up all of my parenting rights on my son”. The father deposed that he was led to believe that his signing the minute of proposed orders was to enable her to obtain a Medicare card for the child and to provide her with access to details that had been difficult to obtain since the death of the child’s mother. He further deposed that he “was not aware that once all said and done it would actually stop me from having contact or visitation unless it was authorised by her”.

17. The father deposed that he is not opposed to the child remaining in the care of the maternal grandmother “whilst the child is still getting over his mothers (sic) death”.

18. The father’s explanation for the minimal contact between himself and the child was as follows:

    I have asked the child to come live with me before his mother passed when [Ms Grall] forgot to mention that [the child’s mother] had been sent off to jail. This happened on one of my visits with [the child], he told me that he wasnt (sic) allowed to tell me that she was not home because then I would try and take him. I Later (sic) asked my mother and she knew as well, so I am not entirely sure what [the child] gets told but his insecurities come from that day before his mother passed. I am not besides the obvious reason of him coming to live with me why (sic) I was not told of this information straight away.

    This is then being the case is what then (sic) caused the minimal contact that is mentioned in [the maternal grandmother’s] affidavit.

19. The father deposes that at one time he would see the child regularly when he returned to Victoria “from interstate” and that during two school holiday periods he “had [the child] flown over to my place of residence too.” The father deposes that he would like to spend every third weekend with the child so that they can build a relationship through regular and routine visits and contact. He further deposes:

    ·that he would like to return to the arrangement that, he says, was in place before the mother’s death in terms of him spending time with the child over Christmas and New Year;

    ·that he would like to be notified of medical visits and would like to be part of any decision making in the event that the child requires an operation or urgent surgery;

    ·that he would like to be notified if the child is to leave the State of Victoria for any reason;

    ·that he would like to have access to all of the child’s school records, including disciplinary information, with school reports and photo forms to be sent to his mailing address, which he would arrange himself with the child’s school;

    ·that he would like all things decided in these proceedings be reviewed in two years’ time.

    In regard to the final point above, the father deposed to his hope that after a two year period, during which he says he will spend more time with the child and be included in more of his activities, “should help him get over his insecurities with living arrangements and further a chance of him living with me.”

20. In concluding his affidavit, the father deposed to the “most important thing” being for the child to be placed immediately in his care if the maternal grandmother becomes unwell.

21. As is clear from the preceding paragraphs, the father’s affidavit did not contain a great deal of evidence, consisting instead predominantly of a description of the arrangements he would like to see in place in terms of his spending time with the child.

22. The maternal grandmother filed a further affidavit sworn 6 May 2015. Therein, she deposed that on the first occasion when this matter was listed before Registrar Sikiotis, being 7 January 2015, the father attended court though he had not filed any material or indicated to the maternal grandmother that he intended to participate in the proceedings.

23. The maternal grandmother deposed[18] that the father had never objected to her role as the child’s primary carer since the death of his mother. She further deposed that the father has not lived with the child since the child was three months old and that the father had had sporadic time with the child over the years due to the father’s interstate work commitments. The maternal grandmother deposed that she had never denied a request from the father to spend time with the child.

    [18] Affidavit of the maternal grandmother sworn 6 May 2015 at [3].

24. The maternal grandmother deposed[19] that she has been put to considerable inconvenience and expense as a result of these proceedings. She deposed that the father failed to participate in the compulsory counselling which she arranged in order to obtain a s 60I Certificate.

    [19] Ibid [4].

25. The maternal grandmother deposed[20] that the child was very excited when she informed him that she had obtained an interim order formally acknowledging her role as his primary carer as he had been anxious about his future care arrangements. She deposed that the child is unaware that the orders were not final.

    [20] Ibid.

26. The maternal grandmother deposed[21] that following the hearing on 7 January 2015, the matter was adjourned until 29 April, with the lengthy adjournment being to provide an opportunity to trial arrangements for the child to spend time with the father. She further deposed[22] that since 7 January 2015, the father had not made any attempts to spend time with the child, despite her encouragement. The maternal grandmother deposed that the father had spoken to the child by phone on 27 February 2015, had attended one of the child’s basketball games with the paternal grandmother on 21 March 2015 where he spoke briefly to the child, and had again spoken to the child by phone on Easter Sunday, being 5 April 2015. During the last of these conversations, the maternal grandmother deposed, the father told the child that he might be going to work in Western Australia, which the father had not discussed with her. She deposed that, the following day, she called the paternal grandmother, who confirmed that the father was due to fly to Western Australia that evening. According to the maternal grandmother, the father has not contacted her or the child since that date.

    [21] Ibid [5].

    [22] Ibid [6].

1. The maternal grandmother deposed[23] that she has no knowledge of the father’s personal circumstances, that she does not know where the father resides and has no knowledge about the father’s relationship with his partner/former partner and their two children. She deposed that she only became aware of his recent employment in Western Australia as a result of the emails he forwarded to the court prior to the hearing on 29 April 2015.

   [23] Ibid [7].

2. The maternal grandmother deposed[24] to having concerns about the father’s 2014 disclosure that he was seeking treatment for an addition; according to her evidence, the father subsequently informed her that he had completed two weeks of the program and then left.

   [24] Ibid [8].

3. The maternal grandmother’s affidavit sworn 6 May 2015 responded to the father’s affidavit sworn 3 February 2015 as follows:

   (a)[The father] is mistaken in stating he has given away his parenting rights as he and I have retained joint parental responsibility;

   (b)I have never denied a request by [the father] to spend time with [the child] and I facilitate regular time spent by [the child] and his paternal grandmother;

   (c)I am happy to provide [the father] with notice of any serious illness or injury the child may suffer;

   (d)[The father] has never been involved in the child’s school although there is nothing to prevent him from doing so;

   (e)I am very fortunate to enjoy good health and have the significant assistance of [the child’s] aunt … who sees [the child] almost on a daily basis and is involved in his sporting activities.

   (f)I reserve the right to more fully deal with the issues raised in [the father’s] affidavit should the Court proceedings continue.

4. The maternal grandmother deposed that the child appears to be coming to terms with the death of his mother, that he is progressing reasonably well at school, has a good friendship network and plays football and basketball. She deposed that the child is well settled in his living arrangements and “expressed delight” when she informed him in January 2015 that he was to live with her permanently.

5. The maternal grandmother swore a final affidavit on 15 May 2015. Therein, she deposed to a telephone conversation that she had with the father on 11 May 2015, summarising that conversation as follows:

   (a)[The father] told me he was about to return to Western Australia and would not be at Court on the 22 May 2015, and that he would not be submitting any more paperwork to the Court. He said he would agree to the arrangements in the Interim Court Orders that were in place and would not take the legal matters any further.

   (b)[The father] said he bears me no hard feelings and would pay my Court Costs as set out in my lawyer’s letter to him dated 30 April 2015. Annexed and marked with the letters “JAG A” is a true copy of that letter.

   (c)[The father] informed me he would be back in Melbourne on 26 May 2015 and would like to spend time with [the child] then.

6. The maternal grandmother deposed[25] that she told the father he was welcome to see the child at any time provided he gave a few days’ notice. She deposed that she also suggested to him that he call the child regularly whilst he is working interstate.

   [25] Ibid [3].

7. The father did not file any further material. The father does not significantly contradict the maternal grandmother’s evidence. The maternal grandmother’s evidence is plausible and I accept it.

Relevant Law — Parenting Issues

1. These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.

2. Section 60B defines the objects of Part VII as to “ensure that the best interests of the children are met” by:-

   (a)  ensuring that children have 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 children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children 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 children.

   These objects may be regarded as the core values of the legislation.

3. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:-

   (a) children have 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)  children have 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 children; and

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

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

4. Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws so that laws and actions affecting children put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

5. I do not perceive there to be any conflict between the child’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.

6. Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting order as it thinks proper.

Determining the child’s best interests

1. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

2. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-

   (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

   with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[26]

   [26] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. In this case, one of the child’s parents is unfortunately deceased; the other does not seek a change of the child’s residence. The maternal grandmother’s evidence is that she has never denied the father contact with the child and would not do so. Though a meaningful relationship between the father and the child may indeed be beneficial to the child, the maternal grandmother’s evidence suggests (and the father does not meaningfully contradict) that the father has been involved in the child’s life on an ad hoc basis to the extent that it is convenient for the father. It appears that the only barrier to a meaningful relationship between the father and the child is the father himself.

4. There is no evidence that the child has been subjected or exposed to abuse, neglect or family violence and indeed no suggestion that he has been.

Treatment of the additional considerations

1. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case.

The child’s views[27]

[27] Ibid s 60CC(3)(a).

1. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. 

2. The maternal grandmother’s evidence was that the child was very excited about living with her permanently, when she informed him that she had obtained orders acknowledging her role as his primary carer. The father’s evidence as to the child’s views was somewhat inscrutable (see [29]), but the gist appears to be that the child has insecurities about his living situation. In any event, there is no independent evidence as to the child’s views about his circumstances.

The nature of the child’s relationships[28]

[28] Ibid s 60CC(3)(b).

1. I consider the nature of the child’s relationship with the maternal grandmother, the father and other relatives.

2. The child has lived in the maternal grandmother’s home for his entire life. Since his mother’s unfortunate passing, the maternal grandmother has been the child’s primary carer.  The child is now 11 years of age and will have experienced all of the milestones of early childhood in the home and proximity of the maternal grandmother. She has remained a constant in his life following his mother’s death and has supported him in all the ways a parent should, including financially, physically and emotionally, since that time.

3. The maternal grandmother has supported the father’s relationship with the child in that she has not denied him time with the child and has encouraged him to telephone the child while he is working interstate in order for them to further develop their relationship. The maternal grandmother has also facilitated the paternal grandmother spending time with the child.

4. The relationship between the father and the child cannot be considered close in a psychological sense. According to the evidence, the child has not spent overnight time with the father since December 2013. The evidence also indicates that the child saw the father a total of seven times in 2014 (up to November) and these were not all substantial encounters. Between January and May 2015, the child had spoken to the father on the phone twice and seen him once at a basketball game.

5. I am satisfied that the child is most significantly, if not primarily, attached to his maternal grandmother.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[29]

[29] Ibid s 60CC(3)(c).

1. Since the death of the child’s mother in 2013, the maternal grandmother has been responsible for the child’s care and decision making as it relates to him. He has lived uninterruptedly with her since his birth.

2. The father’s evidence is that he wishes to be involved in decision making relating to the child where medical procedures are concerned. There is no evidence as to the extent to which the father has been involved in other decision making as it relates to the child, either prior to or following the death of the mother. However, it is reasonable to conclude on the totality of the evidence that he has not participated substantially in such decision making.

3. Even in relation to the child’s everyday care, for which he agrees the maternal grandmother should be responsible, the father has not taken the opportunity to participate in decision making — the maternal grandmother tried between March and November 2014 to obtain the father’s assistance in formalising her caregiver role but the father did not complete the necessary paperwork.

4. In terms of spending time and communicating with the child, the father has not consistently taken up opportunities to do so. The maternal grandmother has never denied the father time with the child, but the father has only sporadically had such time. While the father works interstate, thus making it relatively understandable that he has not had frequent or consistent time with the child, he has also not made consistent attempts to speak to the child by telephone.

5. The father’s explanation as to why his time with the child has been infrequent (see [29]) seems to be that the child is insecure about his living arrangements.

6. I am satisfied that the applicant maternal grandmother has been primarily responsible for the child.

The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[30]

[30] Ibid s 60CC(ca).

1. There is no evidence about whether the father provides the maternal grandmother with financial assistance.

The likely effect of any changes in the child’s circumstances[31]

[31] Ibid s 60CC(3)(d).

1. No changes to the child’s circumstances are advocated for. The father agrees that the child should remain in the maternal grandmother’s care. While the father’s response to the maternal grandmother’s application in a case sought regular time with the child, the father has not prosecuted his case and provided no evidence in his affidavit as to why an order for such time would be in the child’s best interests.

Practical difficulty and expense associated with face to face time and/or communication with the other parent[32]

[32] Ibid s 60CC(3)(e).

1. There is practical difficulty with the father spending face to face time with the child due to his employment being interstate. However, the father works on a “fly in/fly out” basis and returns to Victoria periodically. The maternal grandmother has agreed to facilitate time between the father and the child whenever he requests it, provided the father gives a few days’ notice.

2. There was no evidence about any difficulties the father might face in communicating with the child whilst interstate.

Capacity of the parties to meet the child’s needs[33]

[33] Ibid s 60CC(3)(f).

1. The maternal grandmother has been involved in the child’s care for all of his 11 years. There is nothing to suggest that she is unable to meet his needs. She is, furthermore, assisted in caring for the child by her daughter, the child’s aunt.

2. Considering the amount of time the father has spent with the child since the death of the child’s mother, it is not possible to consider that he knows the child well enough to know what his needs are, let alone meet them. Nothing in the father’s affidavit indicates that he is focused upon the child’s needs. Rather, the affidavit details what the father wants. As the father did not attend the hearing before me, I have no further information to go on in making my decision.

3. I am satisfied that the applicant maternal grandmother has ample capacity to meet the child’s needs.

The child’s maturity, sex, background and other characteristics[34]

[34] Ibid s 60CC(3)(g).

1. The child is 11 years old and has already, in his short life, experienced the pain of losing his mother.

2. The child is an average student who struggles somewhat with reading. The maternal grandmother assists him with this, with the support of the child’s teacher.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents[35]

[35] Ibid s 60CC(3)(i).

1. The father’s attitude to the responsibilities of parenthood is outstripped by the attitude and practical efforts of the maternal grandmother.

Any family violence involving the children or any member of the children’s family and family violence orders[36]

[36] Ibid ss 60CC(3)(j) and (k).

1. As noted above, there is no suggestion that family violence is an issue in this case and no family violence orders have been brought to my attention.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[37]

[37] Ibid s 60CC(3)(l).

1. Parenting proceedings are never final in the sense that children and circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Caregivers and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation. 

2. I am satisfied that it is in the child’s best interests for his parenting arrangements to be finalised, and for that finalisation to occur as set out in the orders at the commencement of these reasons.

Parental responsibility

1. Pursuant to s 61DA of the Act, when making a parenting order,[38] the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

   [38] Ibid (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.

2. Section 65C(ba) enables a grandparent to apply for a parenting order. Under s 64B(2)(c), a parenting order may deal with the allocation of parental responsibility for a child. In regard to an application for a parenting order by a non-parent, such as the present application,

   … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …[39]

   [39] Valentine & Lacerra and Another [2013] FamCAFC 53 at [43].

3. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[40] Equal shared parental responsibility relates to decision making about “major long term issues”, which is defined in s 4 of the Act as follows:-

   [40] Family Law Act 1975 (Cth) s 61B.

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with their parents. 

4. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[41] The concept of shared parental responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue”[42] and to “make a genuine effort to come to a joint decision about that issue”.[43] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

   [41] Ibid s 65DAC(2).

   [42] Ibid s 65DAC(3)(a).

   [43] Ibid s 65DAC(3)(b).

5. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)if the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[44] or abuse of the child or another child who is a member of the parent’s family;[45]

   b)if, at an interim hearing, the court considers it is inappropriate for the presumption not to apply[46] or;

   c)where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[47] 

   [44] Ibid s 61DA(2)(b).

   [45] Ibid s 61DA(2)(a).

   [46] Ibid s 61DA(3).

   [47] Ibid s 61DA(4).

1. In this case, the child’s maternal grandmother has been his primary carer for more than a year and a half, since his mother’s death. Prior to the mother’s passing, she and the child resided with the maternal grandmother. The father has not had substantial involvement in the child’s life since the mother’s death, though there is very little evidence about the time preceding her passing.

2. The applicant maternal grandmother has shown a long term and responsible commitment to the child’s care. It is necessary for her to have parental responsibility for the child. I note the comments of Ms Foster, solicitor, who appeared for the applicant in the hearing before me, that the red tape faced by grandparents who are the primary carers for their grandchildren needs to be addressed. For instance, the maternal grandmother had to go through the process to get a s 60I Certificate which, Ms Foster stated, is unhelpful outside of the context of a relationship breakdown between parents. Ms Foster remarked that the maternal grandmother had to go to the time, expense and inconvenience of coming to court to formalise a role that she was already fulfilling in order to successfully navigate bureaucracies (for example, to obtain a copy of the child’s Birth Certificate).

3. Taking all of the above considerations into account I am satisfied that it is appropriate that parental responsibility be shared.

Costs

1. In her affidavit sworn 15 May 2015, the maternal grandmother deposed that, during the telephone conversation of 11 May 2015 (see [42] above), the father agreed to pay her legal costs as set out in a letter from her solicitor to the father, dated 30 April 2015.[48] That letter puts the father on notice of the maternal grandmother’s intention to seek an order for him to pay her costs for the hearings of 7 January 2015 and 29 April 2015, as follows:

   [48] Affidavit of the maternal grandmother sworn 15 May 2015 — Annexure “JAG A”.

   1.    Preparation and attendance at Court on 7.1.15
   (2 hours @ scale)  $461.50

   2.    Preparation and attendance at Court on 29.4.30
   (1 hour @ scale)  $230.75

   _______

   $692.25

   I am satisfied that the father had the opportunity to contradict the maternal grandmother’s evidence and to make an argument against her being awarded these costs and he elected not to do so.

2. As discussed above at [18], the maternal grandmother’s evidence is that she first approached the father about formalising her role as the child’s primary carer in March 2014. She deposed that he was supportive of this position but nonetheless would not complete the necessary paperwork. This was what ultimately led her to seek orders from the Court through this application.

3. The fact that the maternal grandmother tried to settle this matter by consent is reflected in the minute of proposed consent orders dated 28 October 2014, which was signed by both parties.[49] This minute reflects the orders the maternal grandmother sought in these proceedings and those which I ultimately made on 22 May 2015.

   [49] Affidavit of the maternal grandmother sworn 25 November 2014 — Annexure “JAG 3”.

4. If the father had no intention of participating in the proceedings after 7 January 2015, he could have taken measures to save the Court and the maternal grandmother time and money by communicating this to the maternal grandmother or her solicitors prior to 11 May 2015.

5. In light of these circumstances, a departure from the usual rule that each party pay their own costs is justified in this case.

6. I am satisfied that the applicant was put to expense without justification. I am satisfied that the father should make a contribution to her legal costs accordingly.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Legal Associate:

Date: 1 July 2015