GRATTON & WEST

[2013] FamCA 869

FAMILY COURT OF AUSTRALIA

GRATTON & WEST [2013] FamCA 869

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Order that child live with the father – Order that parents have equal joint parental responsibility of the child

Family Law Act 1975 (Cth)

Heath v Hemming (No 2) [2011] FamCA 749

APPLICANT: Mr Gratton

RESPONDENT: Ms West

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: MLC 10205 of 2011

DATE DELIVERED: 31 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 31 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Constantinou

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou Lawyers

SOLICITOR FOR THE RESPONDENT:                 No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Smith

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victorian Legal Aid

Orders

1. All existing parenting orders are hereby discharged.

1. The mother and father retain equal shared responsibility for the care, welfare and development of the child of the relationship B born on … 2004 ("the child").

1. The child live with the father.

1. The father have sole responsibility to make decisions in relation to the child's education and medical needs save that he is to advise the mother in writing of any major decision relation to the child's education or medical situation as soon as practicable. 

1. The mother spend time with and communicate with the child at such times and on such terms as may be agreed to with the father.

1. Each party keep the other informed of their residential address, contact telephone numbers and where applicable email address and ensure that the other is notified of any change to those as soon as practicable after the change is known.

1. The parties each immediately inform the other by email or sms text message of any serious illness or injury sustained by the child and further provide particulars of any treatment received by the child together with the contact details for the treatment provided.

1. The father authorise any school to which the child may attend to forward any school notices, information, newsletters, school reports, school photographs and in the event that the school is unable to do so, the father provide copies of them to the mother within seven (7) days of his receipt of them.

1. The father maintains a recent photograph of the mother in the child's bedroom after the mother provides such a photograph to the father.

1. The mother be permitted to forward cards, letters and gifts to the child at the father's residence and the father do all acts and things necessary to ensure that the child receives such cards and gifts.

1. The parties by themselves, their servants or agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other in the presence or hearing of the child.

1. The parties by themselves, their servants or agents be and are hereby restrained from discussing these proceedings with or within the hearing of the child.

1. Pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.

2. All outstanding applications be dismissed.

IT IS DIRECTED

1. The independent children’s lawyer forward to the mother, at her last known address, by ordinary pre-paid post a sealed copy of this order.

2. Exhibits ICL1, H1 and H2 remain on the court file.

3. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS FURTHER ORDERED

1. The appointment of the independent children’s lawyer be discharged as and from twenty eight days from the date of this order or such longer period as is ordered by a court exercising jurisdiction under the family law act.

   IT IS CERTIFIED

2. Pursuant to rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gratton and West 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 MELBOURNE

FILE NUMBER: MLC 10205 of 2011

Mr Gratton

Applicant

And

Ms West

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are parenting proceedings relating to B who was born in 2004, who is currently eight and will be celebrating her ninth birthday later this year.  This is a matter where the father is the applicant, the mother is the respondent and, for obvious reasons, an independent children’s lawyer has been appointed.

2. These proceedings were commenced in November 2011 and were listed for an undefended hearing before me today.  B is a child who wants to have a relationship with both of her parents and, at least from the father’s point of view, it is clear that he wants the child to have a relationship with both of her parents provided it is safe in all of the circumstances.  The material before me, in terms of the substantive issue, was a minute of order signed by the father and the Independent Children’s Lawyer which reflected the orders that they sought and which, the father says, the mother has tentatively agreed to, although there was no evidence from her and no appearance by her.  That document is Exhibit F1. 

3. There is a report from the Department of Human Services dated 17 May 2012 which is Exhibit ICL1.  There are two affidavits of the father; one sworn 26 June 2013 and the other 29 May 2013.  There is also a report by Dr C filed 20 April 2012.  In terms of notice to the mother, I note the notice of ceasing to act which was filed in this Court on 15 February 2013 and that subsequent to that date material has been provided to the mother as is set out in the affidavit of the father’s solicitor filed 15 May 2013.  A copy of the order was forwarded to the mother’s last known address on 15 May 2013, together with an indication that this matter is likely to be heard on an undefended basis today together with the application in a case, an affidavit of service of Mr D filed 11 June 2013, and three letters from the father’s solicitor dated 22 May, 28 May and 29 May which are Exhibit H2.

4. The mother was called this morning and did not appear.  I am satisfied that the mother has notice of these proceedings and notice of the orders that are sought, and has determined not to attend court today and not to provide any additional evidence.  The other material before me is the evidence of the father given orally in relation to the communication between B and her mother between his last affidavit and the present time.  The father says that B had regular contact with her mother until recent times when a number of serious threats were made to the father and his present partner or wife in very recent times.  It seems clear that the father has endeavoured to encourage a relationship between the child and the mother provided it was safe, and it seems clear that he has encouraged the relationship between the child and her paternal grandparents and siblings.

5. The mother is aged 33 and the father is 29.  The parties commenced cohabitation in 2003 and separated in 2006.  Apparently, arrangements for B to see both of her parents operated adequately, although not without troubles, until March 2010.  There was a period, between March 2010 and March 2012 where the father had little or no time with the child.  Since consent orders were made the father has spent time with the child and this has increased until April 2012.  At that time an order was made that the father have alternate weekends, half school holidays and then in June 2012 that time became alternate weeks.

6. In May 2013 B returned from school with a detention notice which attracted the attention of the father in terms of her behaviour which was, on his evidence, unusual for her and different from her normal disposition.  Certain disclosures were made which caused the father to have concern and an application in a case was filed.  The child has lived primarily with the father since that time, seeing the mother and her younger siblings, I think, on two occasions since that time.  The Independent Children’s Lawyer supports the order and has informed me that the child is aware of the proceedings and does not wish for her view, one way or the other, to be placed before the Court.

7. I cannot accept the submissions of the Independent Children’s Lawyer as evidence of the views of the child, however, I am able, on those submissions, to find or be satisfied on balance that she does not oppose the course that is being sought. 

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.

2. Section 60B of the Act sets out the objects and underlying principles to make sure that the children’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.

3. In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.

4. In Heath v Hemming(No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part 7 of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-

   87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:

   (i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)

   (ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))

   (iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).

   (iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).

   (v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).

   (vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.

   (vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:

   i.Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,

   ii.Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.

   (viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.

   (ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

5. I have considered and adopt the pathway suggested by Kent J.

6. The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-

   (1) The objects of this Part are to ensure that the best interests of 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.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a 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).

1. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.

2. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

3. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

4. I have turned my mind, to those matters.

5. The thrust of the issues in this case relate to the primary considerations set out in section 60CC in determining what in all the circumstances meets the best interests of B. The first is the benefit of B having a meaningful relationship with both of her parents. This has to be read in context of the need to protect B from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. The mother complained that the father may have constituted a risk of abuse to the child and made a series of complaints which have been investigated by and through the Independent Children’s Lawyer, and by the Department of Human Services.

6. Suffice to say that an examination of that material does not provide any evidence which would enable this Court to conclude that the child is at risk of harm in the unsupervised care of the father.  For obvious reasons, I do not intend to touch upon this further, except to say that that view was also shared by the Independent Children’s Lawyer and she made submissions to that end, and I accept those submissions.

7. The father, in his affidavit, sets out the mother’s current circumstance in terms of her partner and in terms of her use of drugs and ability to cope generally.  It is clear that the mother, at least economically and, perhaps, on a broader context, ran a chaotic household.  She was unable to meet debts as they fell due from time to time, including important matters such as rent and services.  There is evidence from the father and from the child at some levels that from time to time there was inadequate food in the home to wholly meet the needs of the family. 

8. The mother seems, from the evidence before me, to suffer from a mental illness which is not under control at the moment, and this is not to be taken as a personal criticism of the mother.  It is an illness which is not being properly treated for which there is, no doubt, sadness for all of those involved.  The consequence of that is that she has difficulty in properly caring for the child and has difficulty in managing her life in general.  The mother is, at the moment, putting her own needs and her own concerns ahead of that of the child, particularly in terms of her relationship and in terms of her use of drugs.  I have had regard to the medical evidence to which I have alluded to earlier in that respect.  The mother has, and until she has treatment is likely to continue to have, difficulty in managing the role as a parent and may have difficulty in caring for the child and may present as harm to the child in her current circumstances.

1. I am satisfied that B does not wish to express a view one way or another as to which parent she would like to live with.  I think that is entirely understandable and appropriate and it would be a terrible hardship to impose that upon this child.  Fortunately her father has, in the evidence, so far displayed an ability and desire to encourage a relationship, although there is some indication that from time to time his temper and his anger as to the events swirling around this child are not as moderate as perhaps one would hope.

2. The child has a close relationship with both of her parents, her siblings and her grandparents.  The father in recent times has taken the opportunity to make decisions about the child, albeit the mother has not been able to do so or not been willing to do so in recent times.  The father has in recent times fulfilled his duty to maintain the child.  The orders that are being sought will have a significant impact on the child’s circumstances.  She has been in the primary care of the mother most of her life.  That changed significantly in June of last year and profoundly in May of this year, the events of that are set out in the father’s affidavit.  My real concern in this matter is how the conflict between the parents, for whatever reasons, can be moderated.  For this child, it is clear she wants a relationship with both of her parents provided it is safe.

3. There will be some practical difficulty and expense in the child having a relationship with the mother for a number of reasons.  Firstly, the mother’s partner, to whom I have not alluded but I have had regard to the evidence, the concerns that have been raised in respect of that, in particular his violence, which is deeply troubling and the mother’s inability to extract herself from that relationship or dare I say it to protect the child from some of the excesses of that relationship.

4. The second is the mother’s unwillingness to undergo treatment for her mental-health difficulties and, thirdly, the geographic distance that now exists between the parties, which will cause some concerns.  The father has displayed a capacity to care for the child in recent times.  The mother had displayed some capacity to care for the child in earlier times, but not in recent times.  The father has at present displayed a strong attitude and careful attitude in respect to the responsibilities of parenthood.  The mother has difficulty in that respect.  I have had regard to the violence set out in the affidavits and the orders that are suggested to me will as best they can protect the child from the violence.  I am satisfied in all of the circumstances that it is appropriate for the orders to be made.  In doing so, I have had regard to the material set out in the father’s case outline.

5. I note and accept the submissions of the father that since he re-entered the child’s life in January 2012, he has embraced his obligation in respect of parental responsibility. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 31 July 2013.

Associate:     

Date:              31 July 2013