Harty & Chilton
[2021] FamCA 34
•8 February 2021
FAMILY COURT OF AUSTRALIA
Harty & Chilton [2021] FamCA 34
File number(s): PAC 1747 of 2018 Judgment of: FOSTER J Date of judgment: 8 February 2021 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the applicants are non-parents – Where consideration of applicable principles – Where orders made providing the maternal grandmother and maternal aunt with equal shared parental responsibility – Where orders made for the children to live with the maternal grandmother – Where orders made for younger children to spend defined time with the father – Where orders made for eldest child to spend time with the father as agreed between the father and the maternal grandmother and maternal aunt – Where orders made for children to spend time with the mother as agreed between the mother and the maternal grandmother and maternal aunt and under certain conditions – Where appropriate to make orders permitting the maternal grandmother and maternal aunt to obtain passports for the children and travel internationally with them – Where orders made for the maternal grandmother and maternal aunt to apply to the Registrar of Births Deaths and Marriages for birth certificates – Where orders made for the maternal grandmother and maternal aunt to apply to the Registrar of Births Deaths and Marriages to register the two younger children. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07
Cases cited:
Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Harty and Anor & Chilton and Anor [2018] FamCA 366
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539Yamada & Cain [2013] FamCAFC 64
Number of paragraphs: 175 Date of hearing: 18 November 2020 Place: Parramatta Solicitor for the Applicants: Mr Dunn of Watts McCray (NSW) Pty Ltd First Respondent – self‑represented litigant: The First Respondent attended in person Second Respondent – self‑represented litigant: The Second Respondent attended in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 1747 of 2018 BETWEEN: MS HARTY
First Applicant
MS A CHILTON
Second Applicant
AND: MS B CHILTON
First Respondent
MR DYSON
Second Respondent
MS DODSON
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
18 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The proceedings as to parenting proceed to final undefended hearing today.
THE COURT NOTES THAT
2.The Court is informed today by the Respondent father that he consents to the orders sought by the Applicants as set out in their Case Outline comprising Exhibit “A” today.
3.The Respondent mother Ms B Chilton appeared before the Court by phone today, she not having engaged in the proceedings for some time.
4.The Respondent mother is informed by the Court that the orders setting these proceedings down for undefended hearing would not be vacated but in circumstances whereby the orders proposed by the Applicants provide for the mother to spend time with the children in circumstances as agreed between the Applicants and the mother, then if it is the mother’s assertion that such agreement is being unreasonably withheld she is at liberty to make application to the Court for orders as to defined time with the children. It is noted that at present she is having weekly telephone time with the children and the mother asserts that her circumstances have changed somewhat in that she asserts that she has completed a rehabilitation program and her engagement with the Department of Communities and Justice has now ceased. The mother now resides in F Town. In those circumstances it is the contemplation of the Court that there should be no bar to the applicants agreeing to arrangements for a recommencement of the children’s relationship with the mother in a cautious way.
IT IS FURTHER ORDERED THAT
5.Ms Harty ("the Maternal Grandmother") and Ms A Chilton ("the Maternal Aunt"), shall have equal shared parental responsibility for the children, E born … 2004, C born … 2007 and D born … 2009, hereinafter collectively referred to as "the children".
6.The Maternal Grandmother and/or the Maternal Aunt may apply for a passport for the children, E, C and D without first obtaining the consent of Ms B Chilton ("the Mother") or Mr Dyson ("the Father").
7.The Maternal Grandmother and the Maternal Aunt be permitted to travel internationally with the children.
8.The Maternal Grandmother and/or the Maternal Aunt are hereby authorised to apply to the Registrar of Births Deaths and Marriages for the children C born … 2007 and D born … 2009 to be registered.
9.The Maternal Grandmother and the Maternal Aunt be authorised to apply to the Registrar of Births Deaths and Marriages for birth certificates for the children C, D, and E.
10.E live with the Maternal Grandmother or as otherwise agreed between the Maternal Grandmother and the Maternal Aunt.
11.C and D live with the Maternal Grandmother or as otherwise agreed between the Maternal Grandmother and the Maternal Aunt.
12.C and D shall spend time with the Father as follows:
12.1Commencing the third (3rd) weekend from the date of these Orders, and each third (3rd) weekend of each calendar month from 10.00 am Saturday until 6.00pm Sunday.
12.2From 10.00 am to 6.00 pm on Father's Day in the event that the D and C are not otherwise spending time with the Father.
12.3During the Christmas school holidays each alternate year commencing in 2020 at such times as agreed between the Maternal Grandmother and the Maternal Aunt and the Father.
12.4At any other time as agreed between the Maternal Grandmother and the Maternal Aunt and the Father.
13.The Father shall spend time with E as agreed between the Maternal Grandmother and the Maternal Aunt and the Father in writing.
14.The children shall spend time with the Mother at such times and under such conditions as may be agreed between the Maternal Grandmother and the Maternal Aunt and the Mother (including but not limited to drug testing, supervision and the persons to be present). Any such time is to be arranged through the Maternal Grandmother and the Maternal Aunt and not through the children.
15.The Maternal Grandmother and the Maternal Aunt are hereby authorised to communicate with, obtain information and copies of documents from the principal and staff at any school that the children may from time to time attend.
16.That each party shall use their best endeavours to notify the other parties as soon as reasonably practicable of any accident or emergency involving any of the children, which involves medical treatment or hospitalisation and whilst the children are in their respective care.
17.That neither party denigrate the other parties or members of the other parties' family to the children in the presence or hearing of the children.
18.That each party inform the other, in writing, of any change to his or her residential address or contact telephone number not less than seven (7) days after such change occurring.
19.That the Maternal Grandmother and the Maternal Aunt are granted leave to provide a copy of these Orders to any school that the children may, from time to time, attend.
20.That the Maternal Grandmother and the Maternal Aunt are granted leave to provide a copy of these Orders to Centrelink, and the Registry of Births Deaths & Marriages or any other relevant Government Department as may be required.
21.That the Maternal Grandmother and the Maternal Aunt are hereby authorised to communicate with, obtain information and copies of any documents from any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with children.
22.Noted that in the circumstances of this matter there is no application for costs by the Independent Children’s Lawyer.
23.Reasons for Judgment are reserved to a date to be fixed.
24.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
25.The matter be removed from the active pending cases list.
26.All subpoenaed documents produced in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harty & Chilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
INTRODUCTION
These are parenting proceedings commenced by the maternal grandmother and maternal aunt (collectively “the applicants”) by Initiating Application filed 23 April 2018. The proceedings relate to three children who were between 11 and 16 at the time of hearing (“the children”).
The children’s biological parents (“the respondents”) did not meaningfully participate at any stage of the proceedings, and although both appeared at the final hearing, the matter ultimately proceeded on an undefended basis.
At trial, the applicants relied on the following documents:
(a)Amended Initiating Application filed 28 November 2019;
(b)Affidavit of the maternal grandmother filed 19 February 2020;
(c)Affidavit of the maternal aunt filed 19 February 2020; and
(d)Affidavit of the maternal aunt’s partner filed 19 February 2020.
The applicants sought orders as set out in their Amended Initiating Application which were slightly amended in their Case Outline document tendered at hearing (Exh “A”). The orders sought provide, in summary, that:
(1)The applicants hold equal shared parental responsibility for the children;
(2)The applicants be permitted to apply for a passport for the children without the consent of the respondents and travel overseas with the children;
(3)The applicants be authorised to apply to the Registrar of Births, Deaths and Marriages for the younger children to be registered and for birth certificates to be issued for each of the children;
(4)The children live with the maternal grandmother or as otherwise agreed between the applicants;
(5)The younger children spend time with the father each third weekend of each calendar month from 10.00 am Saturday until 6.00 pm Sunday, while the eldest child spend time with the father as agreed between the applicants and the father in writing; and
(6)The children spend time with the mother at such times and under such conditions as may be agreed between the applicants and the mother (including but not limited to drug testing, supervision and the persons to be present), and any such time to be arranged through the applicants and not the children.
Orders were also sought in relation to obtaining information from the children’s schools and other departments relating to their medical and health needs, as well as an order for non-denigration.
In the course of the final hearing on 18 November 2020, the respondent father indicated that he consented to the orders sought by the applicants, while the mother pressed her application for defined time with the children and insisted that the hearing be vacated in circumstances where she asserts agreement between her and the applicants is being unreasonably withheld.
The Independent Children’s Lawyer (“ICL”) appointed in the proceedings supported the applicants’ position and opposed the mother’s application that the hearing be adjourned.
In refusing the mother’s request to vacate the hearing, the Court contemplated that in circumstances where the mother asserted that her situation has somewhat improved and that she is now having regular telephone contact with the children, there should be no bar to the applicants agreeing to arrangements for a recommencement of the children’s relationship with the mother in a cautious way.
Subsequently, orders were made as sought by the applicants and supported by the ICL and reasons were reserved. These are those reasons.
Context
The maternal grandmother was 64, the maternal aunt 42, and the mother and father 43 at the time of hearing.
The eldest child of the proceedings was born in 2004, the middle child in 2007 and the youngest in 2009.
The relevant circumstances in which the proceedings were commenced can be found in the Reasons for Judgment dated 2 May 2018 (Harty and Anor & Chilton and Anor [2018] FamCA 366) (“the 2018 Judgment”) which was delivered in relation to a request made to the Department of Family and Community Services (as they were formerly known) (“the Department”) to intervene. It suffices to say, however, that the applicants held serious concerns about the wellbeing of the children arising from various risk issues including substance abuse, homelessness, mental health difficulties, family violence and neglect, identified in the care of each parent.
From around the time the proceedings were commenced, the children have spent limited time with each of their parents. Interim orders made with the consent of the parties in June 2018 (“the 2018 orders”) provided that the children spend time with their mother as agreed between the mother and the applicants, and subject to the mother submitting herself to drug testing. The mother’s time with the children has not occurred having failed to undergo drug testing, but it appears she currently has some electronic communication with them.
The father’s time with the younger children on the other hand has been limited to each third weekend of every month pursuant to the 2018 orders. His time with the eldest child appears to have occurred by agreement between him and the applicants, although on a less frequent basis.
Currently, and as stipulated in the 2018 orders, the applicants hold equal shared parental responsibility for the children and the children live between the two.
In seeking that the 2018 orders with slight amendments be made on a final basis, it remains the case of the applicants that a plethora of risks arise in the care of each parent, although it appears from their written submissions that real concerns are held mainly in relation to the respondent mother.
Proceedings
Assuming familiarity with the 2018 Judgment, following the parents’ separation in 2017 the children lived in various parenting arrangements involving the mother, the maternal grandmother and the maternal aunt as concerns relating to each parent’s long-term care of the children grew.
In around April 2018, just prior to the commencement of proceedings, the eldest child expressed suicidal ideations which were reported to the Department by the maternal grandmother and maternal aunt. While the younger children were then placed in the care of the maternal grandmother, it appears the eldest child remained living with the mother.
Following this incident, the applicants’ concerns in relation to the children’s welfare intensified. On 23 April 2018, they filed an Initiating Application seeking that they equally share parental responsibility for the children and that the eldest child live with the maternal aunt and the younger children with the maternal grandmother. The applicants also proposed a limited time regime for both parents. In summary, the mother was to spend time with the children as agreed between her and the applicants, the father was to have each third weekend of every month with the younger children and time with the eldest child occur as agreed between he and the applicants, and that any such time between the children and parents be subject to regular drug-testing by each of the parents.
On 23 April 2020, the applicants were granted leave for substituted service of their Initiating Application. An ICL was also appointed to the proceedings on this date.
When the matter came before the Court on 2 May 2018 an invitation was made to the Department to intervene in the proceedings (which they later declined), in circumstances where the Court considered that both parents could be found to pose unacceptable risks of harm to the children. Orders were also made for the parties and the children to be assessed by a family consultant for the purposes of the Child Responsive Program and that the mother undergo urinalysis and the younger children live with the applicant maternal grandmother on a short-term interim basis.
The mother filed her Response to Final Orders on 22 May 2018 seeking that she and the father equally share parental responsibility for the children and that the children live with her and spend time with the father and the applicants as agreed between the parties. In her affidavit evidence filed in support of her Response the mother maintained that she had reduced her drug use significantly and that she was generally of “good health”. She also deposed to some incidents of family violence perpetrated by the father towards her, but did not raise any concerns in relation to the maternal grandmother or maternal aunt.
At no stage of the proceedings did the father respond to the final orders sought by the applicants.
On 24 May 2018 the family were assessed by the family consultant and a Child Responsive Program Memorandum was prepared. In this Memorandum to Court (“the 2018 Memorandum”), concerns were raised in relation to the mother’s substance abuse, mental health difficulties as well as the high levels of conflict between she and the applicants. Various recommendations were made by the family consultant including that a Family Report be prepared to assist the Court.
At an interim hearing on 1 June 2018, the 2018 Memorandum was released to the parties and their legal representatives.
On 5 June 2018 orders were made with the consent of the parties providing, in summary, that:
(1)The applicants hold equal shared parental responsibility for the children;
(2)The applicants ensure that they notify the respondents in writing of any long term decision made in relation to the children;
(3)The eldest child live with the maternal aunt;
(4)The younger children live with the maternal grandmother;
(5)The father spend time with the younger children each third weekend from 10 am Saturday until 6 pm Sunday and with the eldest child as agreed to between the father, the applicants and the ICL in writing;
(6)The mother spend time with the children as agreed in writing between the applicants, the father and the ICL;
(7)The parents submit themselves to urinalysis upon request by the ICL on no more than one occasion in each calendar month and provide the results to the applicants’ legal representatives and the ICL;
(8)The parents’ time with the children be suspended if drug test results detect any illicit substance;
(9)The parents refrain from consuming alcohol, drugs or any illicit substances 48 hours prior and during their time with the children; and
(10)Neither party denigrate the other party or members of the other party’s family to the children in the presence or hearing of the children.
In the ensuing months, it appears the children spent time with their father pursuant to court orders without significant incident.
Upon application by the ICL, the matter came before the Court for further directions on 12 October 2018 after it was alleged that despite correspondence to the mother and her former solicitors, the mother was evasive as to her participation in rehabilitation and failed to comply with orders that she submit herself to drug-testing. In these circumstances, the Court ordered that the family further attend upon the family consultant for the preparation of a Family Report.
Subsequently on 18 and 19 March 2019 the family, including the maternal aunt’s husband, were assessed by a family consultant. A detailed summary of the observations and recommendations made in the Family Report released to the parties on 9 May 2019 is given further in these Reasons, but it suffices to say that ongoing risk issues in relation to family violence, substance abuse, mental health difficulties and neglect of the children were identified in this assessment. The family consultant also recommended that the children remain in the care of the applicants and spend limited time with each parent.
At a case management court event on 17 June 2019 the parties were ordered to attend upon a COMP mediation program as arranged by the ICL. Orders were also made that the mother file and serve an Amended Response and an affidavit outlining her present circumstances including any general and health practitioners upon whom she attended in the last 12 months.
On 12 July 2019 the mother filed an Amended Response pursuant to court orders in which she sought that the parties hold equal shared responsibility and that the younger children live with the maternal grandmother and the eldest child with the maternal aunt. In relation to time with her, the mother sought that the younger children initially spend limited supervised time with her at a contact centre and that such time graduate to defined time on each second and fourth weekend of every month. With respect to the eldest child, it was the mother’s proposal that she initially spend time with her at a contact centre and that such time graduate to defined time on each first and third weekend of every month. She also sought to spend time with the children for half of each school holiday, but made no proposal as to any time with the father.
Trial directions were made on 22 October 2019 and it was estimated that the final hearing would proceed over four days.
On 28 November 2019 the applicants amended their Initiating Application and sought orders that the eldest child live with the maternal aunt and the younger children with the maternal grandmother or as otherwise agreed between the applicants. They also sought an order that the mother spend no time with the children and other orders relating to overseas travel and obtaining birth certificates for the children.
At the compliance hearing on 20 February 2020 the Registrar noted that only the applicants complied with the trial directions and that it appeared that the respondent father no longer intended to participate in the proceedings. The mother told the Court that she was no longer legally represented and as a result required further time to comply with filing directions. Compliance with trial directions was then extended for a further 21 days.
At the second compliance check on 26 March 2020, there was no appearance by or on behalf of the mother and it was noted that neither she nor the father filed any material for trial. The father informed the registrar that he was uncertain as to the requirements of filing court material having just been declined Legal Aid, although the ICL told the Court that prior to the court event she had contacted the father and advised him of the due date for filing his material. Both the applicants and the ICL insisted that the matter proceed to undefended hearing if necessary.
On 27 August 2020 at a case management court listing following non-compliance, there was no appearance by or on behalf of the mother or the father. The matter was listed for undefended hearing on 18 November 2020 and further directions were made for the filing of Case Outline documents. Solicitors for the applicants were also ordered to notify the respondents as to the consequences of their non-appearance including that the Court may consider a costs application by the ICL.
On 13 November 2020 the applicants filed their Case Outline document in which they largely sought orders outlined in their Amended Initiating Application but sought a further order that the mother spend time with the children at such times and under such conditions as may be agreed between the applicants and the mother, including but not limited to drug testing, supervision and the persons to be present.
At the final hearing of the matter on 18 November 2020, although both the mother and the father appeared self-represented, the matter ultimately proceeded on an undefended basis.
In the course of the hearing the father indicated his consent to the orders sought by the applicants as set out in their Case Outline, while the mother insisted that the hearing be adjourned in circumstances where she contended both applicants unreasonably withheld agreement in relation to time with the children. The mother also advised the Court of her weekly telephone time with the children and that she had also completed a rehabilitation program and is no longer engaged with the Department. In those circumstances, the Court indicated that there appears to be no bar to the applicants agreeing to arrangements for the recommencement of the children’s relationship with the mother and that the mother is, otherwise, at liberty to make an application to the Court for defined time with the children.
Orders were then made in the terms sought by the applicants and judgment was reserved.
Procedural fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
16.07 Parties' participation
(1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Further, rule 11.02(2)(c) of the Rules provides:
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c) determine the case as if it were undefended.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the case presently before this Court for consideration.
In circumstances where both the respondent mother and respondent father failed to meaningfully engage in the proceedings and failed to comply with trial directions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.
The applicants’ concerns about the children’s biological parents
Both the maternal grandmother and the maternal aunt raise a number of concerns about the respondent mother and father concerning the children’s safety and wellbeing.
The maternal grandmother deposes that throughout their parents’ relationship the parents were physically and verbally abusive to each other, and on many occasions in the presence and hearing of the children. She claims that the parties would yell at each other including words to the effect of “you’re just wasted space”, “I’ll kill you”, “fucking dog c..t”, and that she had witnessed them push, shove, kick and punch each other. While the maternal grandmother says it is unclear whether any Apprehended Domestic Violence Orders have been put in place, she deposes that police have been called to the parties’ home “on numerous occasions”.
The maternal grandmother also deposes that as a result of the abusive conduct between the parents, she has provided refuge to the mother and children on various occasions when the mother sought her assistance.
It is also the maternal grandmother’s concern that the parents have had unstable living arrangements including that following separation the mother and children lived in “approximately 11 different houses, including share houses, friends’ houses, half way houses…, and in [the mother]’s car for a short period”. Other times, the mother was homeless in part due to her inability to meet rental costs.
Of more significant concern, the maternal grandmother deposes that from about 2012 both parents were heavily involved with drugs including “ice” and cannabis. During this period the maternal grandmother says she observed concerning behaviours in relation to the mother including that the mother “was more aggressive, snappy, bitter, did not take care of herself and her personal hygiene and was very irrational”.
The maternal aunt also deposes to a conversation with the mother in which the mother describes wanting to cease her drug use. When asked what drugs she was involved in, the mother replied “ice, cocaine, you name it but the ice is evil stuff”. Further in her affidavit, the maternal aunt deposes that around the time the children moved to live with the maternal grandmother, a number of seemingly used needles were found “amongst the children’s toys in bags”.
The maternal aunt further recounts that there have been occasions where she has witnessed the mother berate the children including by shouting “I hate you”, “fuck off you little fucktard”, “I don’t love you, I’m going to give you to your father, fuck him”. On another occasion, the maternal aunt deposes that the mother threatened “to drive into a tree and kill [the children]”.
Shortly after the children moved to live with the maternal grandmother for a brief period in early 2016, the maternal grandmother deposes that the mother suffered mental health problems and was admitted to a psychiatric hospital.
Not long after, at a time when the children returned to live with their parents (although at no permanent address), the father was admitted to a psychiatric unit in circumstances unclear to the maternal grandmother. The maternal grandmother claims, however, that she was contacted by Departmental staff and a Care Plan was implemented to facilitate the children resuming into her full-time care. That Care Plan stipulated that the maternal grandmother attend to the daily care of the children and for the mother to engage in rehabilitation and counselling and organise permanent accommodation.
During this time the maternal grandmother says the eldest child insisted that she not return to the mother’s household stating words to the effect of “I don’t want to stay with mum because she’s not home at night”.
From about September 2016 the children remained in the maternal grandmother’s household and the maternal grandmother organised for the younger children to attend upon counselling and the eldest child to receive treatment from G Services.
In around October 2017 the eldest child moved to live with the mother some great distance away from the maternal grandmother and the two younger children but at a place relatively close to the maternal aunt’s home. According to the maternal grandmother’s evidence, it was the child’s preference to live with the mother at the time due to the lack of disciplinary measures under the mother’s parenting style.
By the time the eldest child returned to live with the mother, the mother commenced a relationship with a person whom the maternal grandmother deposes was also heavily involved with drugs. The maternal grandmother says that in addition to complaints made about “sleeping on [the mother and her partner’s friend]’s couches, staying at drug houses or sleeping in [the mother]’s car”, the eldest child has expressed concern about her safety including that she does not feel safe staying with the mother “because there are other boys in the house”.
The maternal aunt also deposes to complaints made by the child including that the child refused to go to school as “[the mother] pulled my hair and kicked me to get out of the car”. When the maternal aunt raised this with the mother, the mother is said to have “laughed about it”.
In early 2018 the mother sought to spend time with the two younger children at a friend’s place located in closer proximity to the maternal grandmother’s home. The maternal grandmother agreed to make the younger children available to spend overnight time with the mother at this friend’s home as at the time “[the mother] seemed coherent and did not appear to be affected by alcohol or drugs”.
When the maternal grandmother collected the two younger children the next day she observed that the mother was “dirty” and had failed to deliver the children to school on time. Not long after, the mother is said to have verbally abused the maternal grandmother in the hearing of the two younger children who became “visibly upset”. The maternal grandmother recounts that the mother yelled at her words to the effect of “you’re a mole, you’re a c..t, you’re a fucking bitch”.
From this time the maternal grandmother unilaterally decided to retain the two younger children in her care in fear that the mother would fail to prioritise the children’s daily needs above her own.
For some months in 2018 the eldest child also moved to live with the maternal aunt due to growing concerns held by both the maternal grandmother and aunt about the mother’s mental health and limited parental capacity.
One particular incident with which the maternal aunt raised concern related to the eldest child informing her that the mother had requested that the child lend the mother’s partner money (being money the child had received at Christmas from the paternal family). When the maternal aunt raised her concerns about this matter with the mother, the mother insisted that the money be provided and personally delivered to her partner. Although the maternal aunt later reluctantly agreed that the child lend the money, she says the mother still complained and told her “you’re a fucking gronk for not taking money to [the mother’s partner]’s house”.
The maternal aunt also held concerns about the mother’s partner as she says that on at least one occasion the mother had attended her home and complained about domestic violence perpetrated by the partner.
In around April 2018 the mother was granted accommodation in a halfway house on the basis that the eldest child occasionally lived with her. Despite this, the maternal aunt says this child frequently returned to her home as she was without food, appropriate clothing and basic school supplies. The maternal aunt also deposes that the child became increasingly averse to returning to the mother’s care because the mother was physically and verbally aggressive.
In agreement with the maternal aunt, the maternal grandmother through her solicitors sent a letter to both the mother and the father seeking long-term care for the children. In response the mother became increasingly hostile to the maternal aunt and demanded that the eldest child be returned to her care.
In April 2018 the eldest child attempted suicide by consuming prescribed medication in excess. The maternal aunt sought immediate medical attention for the child and police were contacted.
Some months following this incident, both the maternal grandmother and the maternal aunt took on the role of the children’s primary carers and the maternal aunt deposes to further incidents of abusive behaviour displayed by the mother towards her.
Family consultant’s evidence
Child Responsive Program Memorandum
As outlined above, the parties were assessed by a family consultant for the purposes of the Child Responsive Program in May 2018. At the time of the assessment the eldest child who lived with the maternal aunt was 14 and the middle and the youngest child who both lived with the maternal grandmother were 10 and nine respectively.
It was the maternal grandmother’s proposal on interview that the younger children live with her and spend time with each parent on every second or third weekend and during school holiday periods. The maternal aunt proposed that the eldest child live with her and spend time with each of the parents in accordance with the child’s wishes. The mother diametrically opposed the applicants’ proposal and sought that the children live with her and spend time with the other parties as agreed between them. The father generally agreed with the maternal grandmother’s proposal and sought that the younger children spend time with him every second or third weekend as agreed between him and the maternal grandmother.
When interviewed, the eldest child expressed a desire to live with the maternal aunt explaining that the maternal aunt is “able to provide structure, routine and resources”. While this child also reported concerns regarding the mother’s emotional wellbeing, mental health status and other issues relating to substance abuse and accommodation difficulties, she stated a strong preference to have frequent overnight time with the mother on an ad hoc basis.
The middle child spoke positively of his relationships with his parents and the maternal grandmother and appeared to the family consultant to have regular contact with each of them. While the youngest child’s preferences were less clear, the family consultant stated that he presented as having an “idealised view of his parenting arrangements that enable him to maintain relationships with frequent contact with [the mother], [the maternal grandmother] and [the father]”.
All children reported difficulties in the relationships between the mother and the maternal grandmother and maternal aunt.
Various issues were raised in the 2018 Memorandum to Court including the mother’s substance abuse and mental health, family violence, the children’s wellbeing and safety and the co-parenting relationship between the parties.
With respect to family violence, the maternal grandmother reported that the relationship between the mother and father was characterised by high levels of conflict. She reported that the mother often sought refuge in the maternal grandmother’s household and at times women’s refuge centres. When interviewed, each parent alleged incidents of abuse perpetrated by the other, including that they would “yell at each other during arguments”, “shove each other” or were, otherwise, verbally abusive towards each other. The mother also reported that the father attempted to choke her in the past, although both denied concerns regarding family violence following separation.
The maternal grandmother and aunt also reported that the mother levelled verbal abuse towards them to which the children were exposed. The maternal grandmother later added that the mother punched her in around February 2018 and previously threatened to kill her.
While the family consultant did not express any opinion as to the issue of family violence by way of evaluation, when considering the co-parenting relationship between the parties, the family consultant opined that the relationship between the mother and the maternal grandmother and aunt is “strained with high levels of conflict” of which the children are “acutely aware”. The family consultant then opined that exposure to such conflict places the children “at greater risk of emotional and behavioural difficulties” and later recommended that the parties undertake a program such as “Keeping Kids in Mind…” in order to reduce conflict between them and prioritise meeting the children’s needs.
In relation to the issue of substance abuse, the applicants raised concerns mainly about the mother’s use of cannabis and “ice”. When asked about this matter, the mother reported a history of injecting ice “one or two times per day and smoking up to 15 cones of cannabis daily up until approximately two years ago”. The mother went on to say that her drug use is now limited to one joint in the evening before bed and smoking ice on occasion with friends. She later complained about the maternal aunt’s alcohol consumption in that the maternal aunt consumes “up to three standard drinks”.
While the maternal grandmother and maternal aunt reported the father’s historical use of “ice”, they acknowledged that the father sought treatment and reported no current concerns about him in this regard.
Concerns raised about the mother’s mental health related specifically to the mother’s history of self-harm behaviours and suicide ideation.
In the course of her interview with the family consultant, the eldest child reported that the mother has in the past threatened to harm herself and the children “during high levels of emotional distress”. The mother told the expert about her diagnosis of post-traumatic stress disorder and anxiety and reported several hospital admissions that she said assisted her in the management of her symptoms. The mother denied that she is currently receiving treatment and stated that she has “matured” and is otherwise “confident” in managing any future difficulties.
The father reported that he receives treatment from a psychiatrist and family doctor having been diagnosed with depression and anxiety and that otherwise, he takes medication to assist him with sleeping.
The other area of concern raised in the assessment by the family consultant related to the children’s wellbeing and safety, particularly in the mother’s care. The applicants and the respondent mother all reported the incident in which the eldest child consumed medication tablets in excess in an attempt at suicide. All three parties agreed that this occurred at a time the mother changed the child’s living arrangements. The maternal aunt complained that the mother did not act protectively of the child and said that she herself contacted police and sought immediate medical attention for the child.
Both the maternal grandmother and maternal aunt also alleged that the mother does not have the capacity to meet the basic care needs of the children. The maternal grandmother, in particular, reported concerns about the mother’s unstable accommodation including that at one stage the mother was homeless and at other times living in her car. The maternal grandmother later added that when aggravated the mother will “drive dangerously with the children in the vehicle”. She also told the family consultant that in the past the mother had threatened to crash the car into a tree with the children present.
In making an assessment of the children’s needs and the issues raised in the interviews, the family consultant reiterated concerns about the mother’s psychological and emotional wellbeing. It was the family consultant’s view that the eldest child appeared to be “highly attuned” to the mother’s needs and opined that “children who feel responsible for meeting and managing their parent’s needs are at risk of psychological difficulties”. The family consultant went on to say that:
[The mother] may benefit from engaging with psychological support to assist her with developing appropriate skills to manage her emotions. This may then positively support the relationship between [the eldest child] and [the mother], and is likely to be in [the eldest child]’s best interest.
Further in the 2018 Memorandum the family consultant opined that, in addition to managing her emotional wellbeing, the mother may benefit from seeking psychological treatment “for her substance abuse difficulties and to assist the management of her mental health…”. As the family consultant anticipated that the 2018 Memorandum when released may cause the mother emotional distress, she recommended that it be provided to the parties in Court in order to minimise any possible detrimental impact on the children.
Ultimately, the family consultant was of the view that in light of the significant concerns raised about the mother’s substance abuse, mental health history, accommodation instability and issues relating to the children’s safety and wellbeing, the Court may need to be satisfied that the children “are not at (sic) risk of harm in the care of [the mother]”. It was the family consultant’s recommendation that a Family Report be prepared to assist in resolving the matter.
Family Report
A more extensive assessment of the family was conducted by the family consultant across two days in May 2019 at a time in which it appeared there was no progress in the mother’s engagement in rehabilitation or psychiatric treatment contrary to the recommendation made by the family consultant in the 2018 Memorandum to Court.
When interviewed the second time, the eldest child was almost 15, the middle 11 and the youngest nearly 10. The eldest child continued living with the maternal aunt and the younger children with the maternal grandmother in households situated a great distance from each other and from each parent.
On the first day of the assessment, the children, the applicants and the maternal aunt’s husband were interviewed, and the children were later observed with the maternal grandmother and the maternal family collectively and the eldest child with the maternal aunt and her husband separately. The second day of the assessment comprised of interviews with the respondent mother and father and observations of the children with each parent.
There were slight variances in the parenting arrangements proposed by each of the parties during this assessment. The applicants proposed that the eldest child live with the maternal aunt and spend time with the mother and father in accordance with her wishes. They also proposed that the younger children live with the maternal grandmother and spend time with the father on alternate weekends and that their time with the mother be supervised. The mother proposed that she have sole parental responsibility for the children and that they live with her and spend time with the applicants and the respondent father in accordance with the children’s wishes and as agreed between the parties. While the father agreed with the applicants’ proposal relating to the children’s living arrangements and their time with him, he made no proposal as to time with the mother.
Many of the concerns reported in the 2018 Memorandum were again raised in this assessment.
The maternal family asserted that the mother perpetrated family violence towards them in that she was verbally aggressive and threatening towards them to which the children were exposed. The mother again alleged that throughout the parties’ relationship the father was abusive towards her including that he “pressured her into having sex” and on one occasion “grabbed me in front of the kids”. The father denied that he pressured the mother into having sex or that there was physical aggression between them, but conceded that they would have “frequent verbal arguments”. Otherwise, no other risks in relation to family violence were identified in relation to the father or the maternal family.
The family consultant noted that the mother’s account of family violence was consistent with coercive controlling family violence while the father’s reports appeared more consistent with “poorly managed conflict that may have escalated to a typology of situational couple violence”. Although neither parent raised concerns of family violence since separation, the family consultant was of the view that it seemed likely that the children have been exposed to parental conflict prior the parties’ separation, which is likely to have had “a negative impact on the children’s emotional wellbeing and development”.
Reports relating to the children’s safety and wellbeing again included concerns arising from the eldest child’s previous suicide attempt in the mother’s care. The applicants did not resile from their view that the mother fails to meet the basic care needs of the children and reported additional concerns that the children are exposed to the mother’s drug use and violent relationships and that she engages in behaviour that undermines the children’s relationship with the applicants and the children’s emotional wellbeing. The mother complained that the applicants do not promote or facilitate her relationships with the children and later expressed concerns that the younger children are left in the care of their cousins, one of whom she alleged uses illicit substances.
With respect to alcohol and substance abuse, the mother reported a long history of drug use stating that she used ice “on an almost daily basis throughout 2018” which she described as her “coping mechanism” for past abuse she said she had experienced. Further in her interview, she told the family consultant that she was not prepared to participate in a residential rehabilitation program as she had already engaged with a drug and alcohol counsellor and regularly attended Narcotics Anonymous.
The family consultant opined that if the mother's reports of her history of drug use are accurate, then it may indicate that “[the mother] continues to struggle to abstain from the use of ice and cannabis” and that this may have a negative impact on her parental capacity. The family consultant also raised concern about the mother’s unwillingness to comply with court orders for drug testing, noting that it appears the mother “lacks insight into the significance of her substance use difficulties and the impact this is likely to have on her parenting and interpersonal relationships”.
In the course of his interview, the father told the family consultant about his drug use during a period in which he says he was struggling with symptoms of depression. He reported that he was ultimately hospitalised in 2016 to treat his mental and substance use issues but denied that he has used illicit substances since that time.
When reporting on her mental health, the mother told the family consultant that she experiences “enduring difficulties” including symptoms of depression and anxiety. She reported that she is being treated with medication prescribed by her family doctor and again reiterated that she is also supported by her drug and alcohol counsellor including with regards to her mental health.
The family consultant evaluated that the mother may be experiencing “grief issues” related to the loss of her role as a primary parent and recommended that the mother continue engaging with her current treating counsellor to develop stress management and emotional regulation strategies.
In relation to the father’s mental health, the father again raised his issues with his previous symptoms of depression and conceded that he used drugs in the past to “manage his emotional state”. He told the family consultant that he no longer experiences problems with his mental health and discussed the ways in which he maintains a positive emotional wellbeing.
The family consultant concluded that since no current concerns were reported in relation to the father’s mental health, and if the Court accepts the father’s reports, it would “seem positive” that the father had been able to abstain from drug use and maintain positive mental health.
Further in her report, the family consultant also explored the relationships between the adults. No concerns were reported in the relationship between the maternal grandmother and maternal aunt and their relationships with the father, but both applicants described having a poor relationship with the mother. The maternal grandmother, in particular, reported that she had a “long-standing tumultuous relationship” with the mother and when interviewed, the mother herself stated that there is no communication between them and that she could not see the situation changing.
The mother also stated that there was no trust between her and the maternal aunt, and in relation to the father reported conflict throughout their relationship but said that since separation their relationship has improved.
The father, on the other hand, in his interview appeared to hold all the other parties in a relatively high regard.
In the course of her interview with the family consultant, the eldest child who presented as a “quietly spoken and cooperative child” expressed some ambivalence as to her preferred living arrangements. She told the family consultant that her relationship with the maternal aunt was “strained” because the maternal aunt is “strict” and went on to describe the ways in which the maternal aunt sought to discipline her. Later in her interview she added that her relationship with the maternal aunt was “better when [the maternal aunt] was just her aunt and not a parent figure”, but acknowledged that her relationship with the maternal aunt’s husband was positive and that both he and the maternal aunt are “able to provide [her] with things she needs and support her schooling needs”.
The eldest child also reported some strain in her relationship with the mother, expressing that it is “disappointing” that the mother “finds it difficult to follow through with what she says she will do” and later stated that she is “used to it, so it doesn’t matter”. She ultimately reported that she enjoys spending time with the mother but stated a desire to be able to independently organise who she spends time with and when. This child also spoke positively of her relationship with her father and also expressed little concern about her relationship with the maternal grandmother, her siblings and her maternal cousins whom she lived with at the time.
The middle child, who was described by the family consultant as presenting as a “cooperative and responsive child” with a “restricted affect”, did not express a preference for his parenting arrangements and described the maternal grandmother as “always helpful” and denied feeling scared or worried in her care. Further, in his interview, the child expressed a desire to spend additional time with each of his parents and was particularly sad and confused about his limited time with his mother.
When asked about various parenting arrangements, the youngest child who reported as “friendly” and “socially engaging” stated that he would be “kind of scared not to live with [the maternal grandmother]”. In the course of his interview, he expressed positive sentiments about the maternal grandmother and denied feeling afraid of her. He also stated that he wished to spend time with the mother, that he was confused as to why he did not live with her and that he was excited to see her as part of the assessment. He described the mother as “funny” and “respectful with me” and also spoke positively about their telephone contact. With respect to the father, this child described his relationship with him in positive terms, described the father as “funny” and raised no concerns about him other than that he would like to see him more regularly.
Neither of the two younger children reported issues with their relationship with their maternal aunt or her husband.
When observed with the maternal grandmother, the family consultant noted that the younger children were “talkative and [the youngest child] in particular appeared to be very excited to be playing”. The family consultant further reported that the interactions between the younger children and the maternal grandmother “appeared relaxed” and that they were encouraging of one another and celebrated each other’s success in the games they played. Similar observations were made when the eldest child joined them shortly after.
When observed with the maternal family (comprising of the maternal grandmother, maternal aunt and the maternal aunt’s husband), the family consultant reported that the interactions between all three children and the family “seemed warm and enjoyable”. During the observation of the eldest child with the maternal aunt and her husband, the family consultant also noted positive interactions and reported that the mood seemed “light and playful”.
The children were also observed to be comfortable in their interactions with each parent, with affection displayed at the beginning and end of the assessment. They were also observed to engage in activities and conversation with each of them without difficulty.
The family consultant opined that while the eldest child appears to have established relationships with the maternal family and each of the parents, her confusion about her preferences for whom she would like to live with may be influenced by her view that the maternal aunt is too strict or influenced directly or indirectly by the mother. The family consultant noted that this child is likely having some difficulties in adjusting to rules, responsibilities and expectations of her within the maternal aunt’s household that were absent in the mother’s care. She contrasted the maternal aunt’s “inflexible approach to parenting” to the mother’s “more relaxed attitude towards parenting” and stated that ideally both the maternal aunt and the mother could negotiate a more congruent parenting approach but that it would appear “unlikely” given the apparent conflict between them.
The family consultant then recommended that if orders are made for the eldest child to live with the maternal aunt “it may be necessary for [the maternal aunt] to adjust her parenting approach in order to maximise the possibility of [the eldest child] remaining in [her] care until she attains maturity”. Elaborating on the child’s exposure to the poor dynamic between the maternal aunt and the mother, the family consultant noted that this is “incredibly problematic” for the child in that it may “create a pattern of unhealthy interpersonal relationships and behaviours” that the child may carry into future relationships.
Further in her report, the family consultant expressed the view that the relationship between the maternal family (excluding the mother) and the father appeared “amicable and cooperative” and went on to say that these relationships:
…provide the children with an opportunity [to] enjoy meaningful relationships with [the father] and their paternal family. The children are likely to benefit if (sic) these adults are able to continue to maintain positive and cooperative relationships and maintain their focus on the children’s needs and relationships.
The family consultant also stated that there were no reasons identified in the assessment to support a recommendation that the children primarily live in the mother’s household as proposed by the mother. She noted that any change in the children’s living arrangements would be “highly disruptive” to them, and may be especially “distressing” for the younger children including that it may accentuate any of their emotional and behavioural difficulties.
Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.
The eldest child who was almost 15 years old at the time of the most recent interview with the family consultant expressed some confusion about her preference for whom she would like to live with. The family consultant opined that such confusion may be directly or indirectly influenced by the mother, or in part influenced by the child’s perception that the maternal aunt’s parenting approach is “too strict”. While the family consultant advised that some consideration should be given to the child’s desire to have a less structured schedule given the child’s age and developmental stage, the family consultant ultimately concluded that “the Court may need to prioritise [the child]’s safety over her views, however unclear they are”. Accordingly, some weight is attached to the child’s views but those views are balanced against her safety and well-being.
The younger children, who were 11 and nine when assessed in 2019, did not indicate any preference as to specific parenting arrangements although both appeared to speak positively about their relationships with each of the adults. While the middle child expressed some desire to spend time with his parents, the family consultant noted that due to the risk issues identified during the assessment little weight should be attached to this child’s views. With respect to the youngest child, the family consultant stated that it is not possible to give weight to this child’s views having regard to his age and stage of development. Therefore, no weight is attached to the views of either of the younger children.
From at least the time the parties separated (and on the evidence of the applicants throughout the proceedings), both parents have failed to actively participate in making decisions about major long-term issues in relation to the children notwithstanding that in June 2018 interim orders were made that the applicants equally share parental responsibility. It can be taken from their lack of engagement throughout the proceedings (including the mother’s failure to submit to drug-testing) that the parents are not entirely child-focussed and lack understanding regarding their parental obligations.
In stark contrast, both the maternal grandmother and maternal aunt have demonstrated a positive attitude to the responsibilities of parenthood including by acting protectively of the children and by ensuring that the children’s daily needs are met. They have also been financially responsible for the children’s living expenses including at times prior to assuming their roles as primary carers. The maternal grandmother, in particular, has also been proactive in engaging in various parenting courses to help her better support the younger children. She and the maternal aunt have also in the past facilitated the eldest child seeking support through G Services for the child’s reported emotional and mental health difficulties which they say the mother had neglected.
In addition to providing stabling housing for the children for over two years, both the maternal grandmother and maternal aunt have also provided a consistent routine for the children which the father appeared to acknowledge in his interview with the family consultant and in providing his consent to their parenting proposal. To their credit, despite their misgivings about the father’s previous care of the children, the maternal family have maintained an amicable and cooperative relationship with him with a focus on the children’s needs. It was the family consultant’s view that, if maintained, these relationship are beneficial to the children particularly their emotional wellbeing and development.
This is to be contrasted to the poor dynamics between the applicants and the mother which the Court accepts is a result of hostile and aggressive behaviour displayed by the mother. Not only has the mother been verbally abusive and derogatory towards the applicants, but as identified by the family consultant, the mother’s behaviour in promising the children they will return to her care serves to undermine the children’s relationship with the applicants as primary carers.
As further discussed by the family consultant, ongoing exposure to the negative interactions between the mother and the applicants is “incredibly problematic” for the children as it risks healthy interpersonal relationships and behaviours for them in the future. A non-denigration order as sought by the applicants is, therefore, appropriate to safeguard the children from this domain of harm in the event the applicants deem it in the children’s best interests to recommence time with the mother.
The orders sought by the applicants and supported by the ICL and father would see a maintenance of the status quo so far as it relates to the younger children’s primary residence and the children’s time with the father. Although the living arrangement envisaged for the eldest child involves a shift in residence, there is no evidence to suggest that this would be disruptive to the child given she has lived with the maternal grandmother for significant periods of time and such household will also importantly allow the siblings to build and develop a more meaningful relationship.
Moreover, it is doubtful that the children will experience their limited time regime with the mother as a severe loss in circumstances where there appears to be some ongoing electronic communication between them. In any event, in light of risk factors arising in the mother’s care, the need to protect the children from harm is given primacy in the proceedings. Should the mother’s reports that she has since improved her situation and completed a rehabilitation program be accurate, again, it is the Court’s view that there should be little difficulty in reaching agreement for her time with the children to be reintroduced in a cautious way.
Other orders
The applicants also seek orders that they be permitted to obtain passports for the children and travel overseas with them without either parents’ consent, that the younger children’s names be registered with Births, Deaths and Marriages and that the children be issued birth certificates. These issues require the Court to have regard to the best interests of the children.
In light of the foregoing circumstances, particularly as the applicants have been concerned with the welfare of the children and as primary carers have engaged in decision-making for long term issues relating to them since 2018, it is appropriate that orders be made as sought.
An order that they obtain a passport and travel overseas with the children without either of the parents’ consent will particularly avoid the applicants being unnecessarily exposed to the mother’s hostile attitudes if they were required to seek her permission.
A consideration of the s 60CC factors having regard to the background of this matter, and the reality that neither of the children’s biological parents appear to be appropriate long-term carers for the children, support the making of orders as sought by the applicants.
Orders will be made accordingly.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster j. Associate:
Dated: 8 February 2021
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