Grasso and Esplin and Anor (No.2)

[2015] FCCA 2554

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRASSO & ESPLIN & ANOR (No.2) [2015] FCCA 2554

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – sole parental responsibility – where respondents did not attend court.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Federal Circuit Court Rules 2001, r.13.03C

Cases cited:
Grasso & Esplin [2015] FCCA 1527

Applicant: MS GRASSO

First Respondent: MR ESPLIN

Second Respondent: MS HOOPER

File Number: SYC 1659 of 2014

Judgment of: Judge Scarlett

Hearing date: 16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Sydney

Delivered on: 16 September 2015

REPRESENTATION

Solicitor for the Applicant: Mr Busby (as agent)

Solicitors for the Applicant: Mitchell Playford and Radburn

First Respondent: No appearance

Second Respondent: No appearance

Independent Children’s Lawyer: Ms Nessworthy

Solicitors for the Independent Children’s Lawyer: Hamish Cumming Family Lawyers

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2006.

3. The child X is to live with the Mother.

4. The child X is to spend time and communicate with the First Respondent Father and the Second Respondent Paternal Grandmother as agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Grasso & Esplin & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 1659 of 2014

MS GRASSO

Applicant

And

MR ESPLIN

First Respondent

MS HOOPER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother of a child named X for parenting orders, particularly (a) that she should have sole parental responsibility for the child, and (b) that X should live with her.

Background 

1. This is a matter that has had a lengthy history, having been commenced by the mother on 21 March 2014.  In her application, the mother sought orders then that she should have sole parental responsibility for X and that X should live with her.  The fact is that for a significant period of time X has not lived with her mother but has moved between her father and her paternal grandmother, who are the first and second respondents. 

2. I conducted an interim hearing in this matter earlier this year. On 27 May 2015, I ordered the mother was to have sole parental responsibility for the child X; that the child would live with the mother; that a recovery order would issue under section 67Q of the Family Law Act 1975 (Cth).[1]  There was no appearance by either the paternal grandmother or the father.  The mother appeared, as did the Independent Children’s Lawyer. 

   [1] Grasso & Esplin [2015] FCCA 1527

3. On 12 August, however, when this matter was listed for an undefended final hearing, the Second Respondent, the paternal grandmother, appeared.  She sought a recovery order providing that the child should be returned to her care.  She did not file any documents but made an oral application and made submissions from the bar table as to why the previous orders should be reversed.  I declined to grant that application, but I did not proceed to the final hearing and ordered that the grandmother should file and serve a Response and an affidavit within 28 days.  I then adjourned the proceedings. 

4. No response has been filed.  No affidavit has been filed.  Neither the paternal grandmother nor the father appeared.  It is clear from the Court file that the father has never appeared and has never engaged in the proceedings at any stage.  For some of that period of time he appears to have been in prison. 

5. The mother’s solicitors prepared a chronology, which has provided a very useful background for these proceedings. 

6. The paternal grandmother was born on (omitted) 1967.  The mother was born on (omitted) 1988.  The father was born on (omitted) 1989.  The mother and father commenced their relationship in 2004 in (omitted).  In (omitted) of that year, the father came under notice for a driving offence and the following year was convicted for the offence of common assault.  The parties separated temporarily on 6 October 2005.  The father was convicted of a driving offence on 16 October 2005. 

7. The subject child, X, was born on (omitted) 2006.  The mother and child were admitted to (omitted) Base Hospital in (omitted) of that year.  The mother and the father recommenced their relationship in (omitted) 2006.  Later that year, the parties separated on a final basis with the father retaining the child.  In (omitted) 2006, the mother stayed overnight at the home of the paternal grandmother. In (omitted) 2007, the mother spent intermittent time with the child. 

8. In around September and October 2007, the mother took the child overnight, leaving her eldest daughter, Y, at the paternal grandmother’s home.  The mother decided not to return the child to the grandmother and sought assistance of the police for return of the child Y.  The paternal grandmother attended the mother’s home and took the child back.  The Department of Family and Community Services then provided a letter giving permission for X to live at the address of the paternal grandmother.  The mother’s daughter, Y, returned to live with the mother in (omitted) 2008. 

9. In (omitted) of 2008, the mother commenced a relationship with Mr D and in (omitted) of that year, the mother, Mr D, and the child, Y, relocated to (omitted).  The father came under notice for various offences in November 2008, April and June 2008.  Between then and July 2011, the mother had telephone contact with the child X.  The mother sought to see the child X and made arrangements with the paternal grandmother in July 2011.  This arrangement was cancelled once the father found out about the arrangement.  The mother made further attempts to secure the return of the child X to her care without success. 

10. On (omitted) 2013, the father was convicted of robbery in company and supply or knowingly take part in the supply of prohibited drugs, was sentenced to a sentence of imprisonment for four years with a non-parole period of one and a half years.  The mother continued to seek the return of the child to live in her care. It appears that from the records of the Department of Family and Community Services that the child was subjected to forms of sexual assault by another male person, and these matters were disclosed to the Department over a period of time in January 2014.  The person concerned was charged with aggravated sexual assault of a child.

11. Over this period of time, whilst in the care of the paternal grandmother, the child was attending more than one public school.  She had been enrolled in (omitted) Public School in February 2011 and attended school there.  She was later enrolled in (omitted) Public School in February 2014.  In April 2014, the child was enrolled at (omitted) Public School, but in May of that year she was again enrolled in (omitted) Public School. 

12. In September 2014 an Independent Children’s Lawyer was appointed by the Court and the Independent Children’s Lawyer reported that it was difficult to contact either the father or the paternal grandmother.  The father eventually was released on parole in November 2014, but has not sought to take any part in these proceedings. 

13. The fact is, that due to the reluctance of the respondents to take part in the proceedings and, in fact, the only documentation filed by either one of them was a response and an affidavit by the paternal grandmother on 30 September 2014, the only consistent efforts by any party to secure parenting orders for this child have been made by the mother.  There has been no appearance by anyone other than the mother and the Independent Children’s Lawyer in these proceedings for final orders. 

14. The fact is also that the child X has been living with the mother and her husband and with the mother’s other children.  The mother has given evidence relating to her circumstances, and her evidence is that X came back into her care on 29 May 2015 when she collected the child at the (omitted) Public School following the issue of the Recovery Order.  X informed the mother that she told the police that the father was living in (omitted) in Victoria, and it is the mother’s evidence that a warrant for the revocation of his parole is outstanding. 

15. The mother took with her when she collected the child her own mother and her daughter, Y, both of whom the child know.  It is the mother’s evidence that it has been a big adjustment for X and the rest of the family for her to be residing with the family, but the mother considers that significant progress has been made and the child is settled.  Her relationship with the child is building and she does unsurprisingly tend to spend more one on one time with her than she does with the other children.  She deposed in her affidavit the child was having some behaviour issues which she put down to a process of adjustment. 

16. It is the mother’s evidence that X was, at first, standoffish with her husband, Mr D, but that relationship has been building.  X and the child Y share a bedroom and X shows affection towards her half-siblings A, who is a baby, B, aged six years and C, aged four years.  X has been enrolled at (omitted) Primary School and has settled in well at school.

17. The mother has arranged for X and herself to attend the (omitted) Family Practice, and a mental health plan has been prepared for her to address the issues certainly arising from the sexual assault, and referrals have been obtained to (omitted) Sexual Assault Counselling and a child and adolescent clinical psychologist called Ms M.  The mother has enrolled the child in physical culture and the child and her half-siblings attend classes with them. 

18. The mother deposes she has facilitated X speaking on the telephone with her father and with her paternal grandmother, each of whom telephone on a sporadic basis.  It is the mother’s evidence that neither the father nor the paternal grandmother requested to see X in person.  And the mother wishes that X should continue to reside with her, where, in the mother’s view, the child is starting to settle and has a routine place.

Applications for Parenting Orders

1. When a Court is considering making parenting orders, it must consider the matters set out in Part VII of the Family Law Act 1975. The relevant sections are, first of all, section 60B, which sets out the objects and principles of Part VII. Section 60CA of the Act provides that the best interests of the child must be the paramount consideration. Section 60CC provides a guide to the Court in determining how the best interests of the child can be ascertained and includes the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3). The primary considerations are, of course, on the one hand, the benefit to the child in having a relationship with each parent and on the other the need to protect the child from physical or psychological harm arising from being subjected to or exposed to abuse, neglect or family violence.

2. The Court must also consider section 61DA of the Act, which deals with the question of parental responsibility, and if the Court makes an order for equal shared parental responsibility, the Court must consider the matters contained in section 65DAA, which includes whether it is in the child’s best interests and reasonably practicable for the child’s parents to have equal shared care or, failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time in the care of each parent.

3. I am not of the view that this is a matter where the Court would make an order for equal shared parental responsibility.  The father has chosen not to engage in these proceedings in respect of the child.  He has been conspicuous by his absence, and most of the parenting seems to have been done by the paternal grandmother.  It is a matter of concern that when the child appears to have been in the care of the paternal grandmother that she suffered a form of sexual assault, although there is no evidence that the grandmother facilitated this or was even aware of it. 

Orders that are in the best interests of the child

1. In my view, it is in the best interests of this child that she should remain living with her mother and her half-siblings and her mother’s husband, who is her stepfather.  I am of the view that the mother should have sole parental responsibility.  The mother seeks orders that the father and the paternal grandmother should have time with the child as arranged, and that appears to me to be appropriate.  I am satisfied, however, that it is clearly in the best interests of this child that she continues to reside with her mother, who should have sole parental responsibility.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  17 September 2015