Harris and Bradley & Anor

[2010] FamCA 675

FAMILY COURT OF AUSTRALIA

HARRIS & BRADLEY AND ANOR [2010] FamCA 675

FAMILY LAW – CHILDREN – with whom a child lives – where the children have been in the care of the maternal grandmother for the past 5 years – best interests – consideration of the impact of any change of circumstances – where there are concerns surrounding the mother and father’s capacity to parent – orders that the children remain living with the grandmother

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where it is not in the best interests of the children for the parents to have parental responsibility –grandmother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Harris

RESPONDENT: Ms Bradley

SECOND RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 905 of 2003

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS R. READ

SOLICITOR FOR THE APPLICANT: Dixon Gallash Pty Ltd

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS COCKS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Orders

1. The children J born … November 1998, B born ... June 2000 and T born … January 2003 do live with the maternal grandmother Ms Harris.

2. The maternal grandmother Ms Harris do have the sole parental responsibility for the said children.

3. The appointment of the Independent Children’s Lawyer is discharged.

4. Remove all matters from the active pending list.

IT IS NOTED that publication of this judgment under the pseudonym Harris & Bradley and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 905 of 2003

MS HARRIS

Applicant

And

MS BRADLEY

1^st Respondent

MR JAMES

2^nd Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a somewhat unusual and difficult matter which comes before the Court to determine what is in the best interests of the three young children; J who is now 11, B who is now 10, and T who is now seven. 

2. Proceedings commenced some time ago in 2003.  The current proceedings commenced in 2005. 

3. The applicant for the orders before the Court today is the maternal grandmother Ms Harris.  The respondents to the proceedings initially were the mother, who goes by various names, but is named in these proceedings as Ms Bradley, the father as Mr James.  The Court has had the benefit of orders appointing an Independent Children’s Lawyer for the children. 

4. As can be seen from the proceedings, the matter was originally set down for trial following orders for directions to have the matter listed for trial. 

5. The Court has, for reasons previously given, directed that the matter proceed on an undefended basis.  This was primarily based on the non-compliance and non‑attendance at various times of the mother and the father. 

6. Before me today the grandmother is represented by Ms Read, the Independent Children’s Lawyer by Ms Cocks.  The case outlines filed by the counsel for the grandmother and Independent Children’s Lawyer draw the Court's attention to the history of this matter and, in particular, the affidavits and reports upon which the grandmother and the Independent Children’s Lawyer rely. 

7. I have heard further oral evidence from the grandmother this morning bringing the Court up to date in relation to the children, their circumstances, and the grandmother's role in their care.  I accept the submissions of Ms Read that the grandmother's oral evidence supports the material in her affidavits, and supports the finding of the Court that the grandmother is dedicated to providing appropriate care and family nurturing for the three children.

8. This is an unusual matter because of the background to the proceedings.  As the affidavit material and the reports indicate the children have been in the care of the grandmother for approximately five years.  They came into her care, and have remained in her care, as a result of criminal activity on behalf of the father and mother which resulted in charges of arson and conspiracy to commit arson directed at the grandmother.

9. Information before the Court indicates that although the mother was charged she was not convicted of those offences but released specifically with a domestic violence order preventing her having any contact whatsoever with the grandmother or attending near her premises.  The only contact which was permitted specifically referred to these Family Court proceedings or orders made pursuant to these proceedings.  The father was sentenced after pleading guilty to certain offences and given a suspended sentence.

10. The factors surrounding the criminal violent behaviour of the mother and father are significant matters not only to be taken into account in the general sense, but significant in the consideration of the arrangements which came into place for the grandmother to provide the care for the children. 

11. The Court acknowledges that T, the youngest child, is not a child of the father.  T’s father died some years ago and did not at any time participate in the care of the other children or to any significant extent in relation to T.

12. The Court is required to consider the specific provisions of the Family Law Act and, in particular, the presumption that the parents have equal shared parental responsibility of the children.  That is so, however, subject to a determination that it is in the children's best interests. 

13. When determining what is in the children's best interests the Court must have regard to the provisions of section 60CA and section 60CC; the children's best interests being the paramount consideration.

14. The factors set out in section 60CC(2) deal with the primary considerations, the first of which is the benefit to the children of having a meaning relationship with both of the children's parents.  In relation to T, of course, that would only be the mother.  In relation to the other children it would be the mother and the father.  Emphasis must, however, be placed upon the wording which refers to the benefit to the children of having a meaning relationship, and I stress there the words "benefit" and "meaningful". 

15. The Court needs to also consider the past behaviour of both the father and the mother, and take that into account when determining what benefit there would be to the children of having a relationship with the mother and the father when assessing whether that relationship could be both beneficial and meaningful.

16. The Court is required to consider the other primary consideration which is the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  The Act also draws specific attention to the need to protect the children from family violence.  When considering this matter the background facts which are before the Court clearly indicate that the children need to be protected from the sort of behaviour previously indulged in by the mother and the father.

17. The other additional considerations under section 60CC(3) include the views expressed by the children, and their level of maturity, and other matters that might be relevant to the weight to be given to the children's views.  In relation to their views I have taken into account the reports of Mr M and, in particular, the last report which is as recent as April this year. 

18. I also take into account the nature of the relationship of the child with each of the parents and, as required by section 60CC(3)(b), other persons including any grandparent or other relative of the child. 

19. It is also clear from the evidence I have heard today, supported by the reports of Mr M and the other affidavit material before the Court, that the children have had the benefit of a strong continuing relationship with the maternal grandmother for a period of five years.  The relationship the children now have with the mother and the father could not be described as a beneficial relationship, nor has there been any ongoing relationship for a considerable period of time.

20. In relation to the willingness and ability of the child's parents to facilitate and encourage a close and continuing relationship with the child and the other parent, those factors are not directly relevant.  I also take into account, however, that the grandmother is going to place herself in the position of a parent. 

21. The grandmother is not now proposing any time spent between the children and the mother and the father. 

22. I take into account in particular the reports of Mr M and the mother's psychiatrist when placing in context the fact that the grandmother is not currently willing to encourage a relationship with either of the parents.  It appears on the material before me that she has a justifiable and sound reason for that attitude.

23. Subsection (d) is the likely effect of any changes in the child's circumstances, including the likely effect on the children of separation from either of his or her parents and any other child or other person with whom the children have been living.  This is a significant factor.  The children have now had the benefit of settled ongoing care with the grandmother for five years.  Any proposed change is likely to be significantly disruptive and impact upon their ongoing development. 

24. Paragraph (e), practical difficulty, is not directly relevant.  It is not a question of practical difficulty or expense in this matter which interferes with the communication between the parents and the children, rather it is other significant factors such as their past behaviour, the violence they have exhibited, the mother's mental health issues and the father's past history of limited involvement with the children.

25. Subsection (f) deals with the capacity of each of the child's parents and other persons, including any grandparent or other relative of the child, to provide for the needs of the child, including emotional and intellectual needs, and subsection (i) the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.

26. The capacity of the parents in this case is called into question.  Their capacity to provide for the needs of the children, being their emotional and intellectual needs, is called into question. The father has failed to carry out his responsibilities.  The mother has limited capacity and an inappropriate attitude due to the serious issues which are raised by the report from her own psychiatrist which is before the Court, together with the report of Mr M.

27. Subsection (h) is not relevant to these proceedings. 

28. In relation to subsections (j) and (k), the reference to family violence, these are, as indicated, significant matters.  In particular the Court takes into account the ongoing order made by way of domestic violence order which restrains the mother from having any contact with the grandmother.  The order was made by the Magistrates Court in June of 2009 and is expressed to be an order that continues until further order.

29. The protected person is the grandmother and the person restrained the particulars of the defendant is given as “…”, which is another name used by the mother. 

30. The order protects the grandmother and the mother is prevented from assaulting, intimidating, threatening or harassing the grandmother, from attending at or within 100 metres of her premises, and from approaching, communicating with or contacting her directly or indirectly, except for specific provisions in the domestic violence order, including communication with solicitors in relation to Family Court, and to effect any Court ordered contact or Court ordered handover arrangements in relation to the children.

31. The report concerning the mother's mental health also draws attention to the mother's delusions and the persecutory beliefs that the mother has in relation to the grandmother. 

32. The report of Mr M also raises concerns about the risk of further inappropriate behaviour by the mother due to her mental illness.  In particular the Court has had its attention appropriately drawn to the interview conducted with the mother by Mr M, and the comments made by the mother to Mr M which would appear to be delusionary and not supportive of any indication that her behaviour has in any way improved.

33. Subsection (l) of section 60CC(3) says whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, and (m) is any other fact or circumstances that the Court thinks is relevant.  In this particular case I am aware that the orders sought place the children in the care and give parental responsibility to someone who is not one of their parents.  I take this into account, however, together with the background in this particular matter which supports the finding that it will be in the children's best interests for sole parental responsibility to be granted to the grandmother. 

34. I accept and agree with the submissions that any order which would require the grandmother to attempt to communicate with the father and the mother to arrange their agreement or consideration of proposals for the ongoing care of the children is only likely to be significantly detrimental to the emotional and psychological welfare of the children, particularly as it is likely to impact upon the grandmother's capacity to provide the secure stable care she has provided for the children in the past.

35. I have taken into account the evidence given today that the children have stable ongoing schooling at the same school where their progress has been appropriate.  I take into account the involvement by the grandmother and the children in artistic and musical activities.  All of the evidence from the grandmother indicates that she is providing appropriate care and exercising appropriate responsibility in relation to all three children.

36. In summary, therefore, I am satisfied because of all the criteria in section 60CC that the presumption of equal shared parental responsibility by the parents is clearly rebutted in the circumstances, and that it is in the best interests of the three children for the grandmother to have sole parental responsibility for the children and that they live with her. 

37. The Court has considered in the past attempts to reintroduce each of the parents to the children, and attempts have been made through interim orders for supervised time.  I have carefully considered all of the factors under section 60CC when contemplating any order which would provide for the children to spend time with the mother and the father Mr James. 

38. The clear indications are, however, particularly from the reports of the mother's own psychiatrist and the most recent report of Mr M, that it would not be in the children's best interests for any such order to be made and, in particular, his report suggests orders for any form of the children spending time with the mother is likely to be destructive of the progress the children have made in recent days. 

39. In summary, therefore, it is not in the children's best interests for there to be any order providing for them to spend time with either the mother or the father.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5August 2010