Howard and Price

FAMILY COURT OF AUSTRALIA

HOWARD & PRICE

[2008] FamCA 454

CHILDREN – with whom a child should live - maternal grandmother seeking sole parental responsibility – father has no relationship with the child – history of drug-taking, violence and lack of care by the mother - mother failed to file documents as ordered - whereabouts of mother unknown – hearing on undefended basis– consideration of the best interests of the child in the absence of either parent.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA

APPLICANT:

Ms Howard

RESPONDENT:

Ms Price

INDEPENDENT CHILDREN’S LAWYER:

Terry Stephen

FILE NUMBER:

BRF

3061

2006

DATE DELIVERED:

15 February 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

15 February 2008

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Eid

SOLICITOR FOR THE RESPONDENT:

Vicki Lehmann & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Du Barry

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Mr T Stephen

Orders

That the child D born in August 1998 live with the maternal grandmother, Ms Price, who shall have sole parental responsibility for the said child.
That the mother be restrained and an injunction is granted restraining her from telephoning the maternal grandmother other than in the event of an emergency and from abusing, harassing or denigrating the maternal grandmother or causing or permitting any other person to do so.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
That all applications be dismissed and removed from the active pending cases list.
That pursuant to Section 62B and 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 the attached Fact Sheet.

IT IS NOTED that publication of this judgment under the pseudonym Howard & Price is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: BRF 3061 of 2006

MS HOWARD

Applicant

And

MS PRICE

Respondent

EX TEMPORE REASONS

Introduction

The application before me is in fact the maternal grandmother's Response filed on 7 February 2007. The mother had filed an Application for Final Orders on 30 October 2006, but on 10 January 2008 I ordered that that application be struck out and that the matter proceed on an undefended basis on the maternal grandmother's Response just referred to.
This is of course a matter that is being heard pursuant to Division 12A of the Family Law Act 1975.
The orders sought by the maternal grandmother are those set out in the outline of case document. Save and except for one substantive matter and two procedural issues, the orders sought are as per the Response. The one substantive matter is that the maternal grandmother also sought an order that she have the sole parental responsibility for the child, the subject of these proceedings. The two procedural matters are, firstly, that the mother's application be dismissed and I have dealt with that, in that I have struck it out. The other procedural matter was that the appointment of the Independent Children’s Lawyer be discharged. There can be no issue about that and I will make that part of the orders that I make today.
In terms of what I have called the substantive application as to parental responsibility, although that amendment to the Response has not been formalised and an Amended Response served upon the mother, in the circumstances of this case, and particularly how it has come to be undefended, I have no concern about proceeding on the basis of that being a proper application before me.

Factual background

In June 1952 the maternal grandmother was born and she is now aged 55 years.
In January 1976 the mother was born and she is now aged 31 years.
Between 1992 and 2001 the mother worked as an entertainer.
In 1994, at the age of 18 years, the mother moved out of home and lived an itinerant lifestyle, moving between South Australia, Queensland, New South Wales and Western Australia.
In August 1998 the child D was born and is now aged 9 years. His father Mr J has no relationship with the child or the mother and his whereabouts are unknown.
In April 1999 the mother returned to live with the maternal grandmother with the child who was suffering from drug dependency. The mother was addicted to drugs by this time but she was looking to rid herself of the habit.
In October 1999 the mother commenced a relationship with Mr H.
In August 2000 the child A was born and he is now aged 7 years. The father of this child is Mr H.
In late 2001 the maternal grandmother, her husband and Mr H found amphetamines and needles in the mother’s handbag.
In February 2002 the child C was born and he is now aged 5 years. The father of this child is Mr H and the child suffered from drug withdrawal after his birth.
In 2002 a series of anonymous child protection reports were made about the mother and Mr H to the Department of Community Development (WA). The allegations were that the children were constantly screaming, that the mother hit the child D with a belt and that the mother was consuming drugs. There were further allegations that the child D hit the child C with a plastic rake, that several bruises were observed on the child D, and that Mr H threw the child A against a wall.
In April 2003 the mother, the children and Mr H moved to Queensland.
On 1 September 2003 a crime report was made to police by the Townsville Department of Families relating to an incident committed in late July, 2003. It was alleged that mother punched the child C in the chest and stomach area with a closed fist, slapped the child A with an open hand on the arm and chest area and threw a shoe at the child D, chipping his tooth. Police discovered approximately 6 rotting teeth in the child D’s mouth. The mother denied punching the children, denied recent drug use and explained that the chipped tooth arose out of a game. No charges were laid and police left the Department to deal with D’s rotten teeth as a neglect issue.
In early 2005 the mother contacted the maternal grandmother stating that she was again taking drugs and wanted to get away from the people with whom she was associating. The mother requested money from the maternal grandmother to allow the whole family to return to South Australia. The maternal grandmother sent money but neither the mother nor the rest of the family returned to South Australia.
On 12 July 2005 a crime report was made to police by the Department of Child Safety (Queensland) that the child D informed a teacher that a large bruise at the top of his leg was caused by his father hitting him with a broom stick. As a result the police attended W Primary School to interview the child D, who confirmed that it was his father who hit him with a broom on the leg. The Police and the Department attempted to contact the mother or father but were unsuccessful. Police were informed by the school that the children had been removed from the school as the family was relocating to South Australia.
On 10 August 2005 the mother sent the child D to live with her sister in Western Australia citing H’s violence toward him, and the child has not seen his mother since then.
In 2006 a series of incidents were recorded by the Department of Child Safety (Queensland) relating to suspected harm or risk of harm to the children A and C.
In March 2006 the mother’s relationship with Mr H ended.
In May 2006 the mother commenced a relationship with Mr G.
In May 2006 the mother contacted her sister N and asked for the child D to be returned. The mother’s sister decided not to send the child home due to concerns about disrupting his school work and because the mother was talking about moving in with her new partner.
Between August and September 2006 the mother sent numerous abusive text messages to her sister N. The mother’s sister was concerned about the mother’s drug and alcohol use and high level of domestic violence. The mother’s sister decided to send the child D to live with the maternal grandmother in Adelaide.
On 28 September 2006 the child D arrived in Adelaide and commenced living with the maternal grandmother and her husband. The maternal grandmother arranged a new unlisted telephone number to stem abusive phone calls from the mother.
On 25 October 2006 the maternal grandmother filed an application in the Adelaide Registry of the Federal Magistrates Court seeking orders including that the child D live with her.
On 30 October 2006 the mother filed an application in the Brisbane Registry of the Family Court of Australia, seeking orders including that the child D live with her.
On 21 November 2006 Federal Magistrate Mead made the following orders:
29.1That the solicitors for each party forthwith serve their client’s documents on the other of them.
29.2Until further order the child live with the maternal grandmother.
29.3That the matter be adjourned to 15 January 2007.
On 22 November 2006 a crime report was made to Queensland Police of an incident involving an argument between the mother and her boyfriend Mr G. The mother called ‘000’ from a telephone box outside their residence. While at the telephone box, the boyfriend wrestled the mother, threw her to the ground, then attempted to strangle her. The child A witnessed this event. A Domestic Violence Order application was made and the risk of future abuse or neglect was assessed as significant.
On 4 December 2006 Judicial Registrar Smith made the following orders:
Upon noting that the mother’s solicitor has informed the Court that the maternal grandmother has issued proceedings in the Federal Magistrates Court in Adelaide returnable on 15 January 2007:
31.1Until further order, the mother have telephone communication with the child each Sunday between 7:00pm and 7:30pm SA time with the maternal grandmother to telephone the mother.
31.2That the matter be adjourned to 9 January 2007.
31.3The child be independently represented and Legal Aid Queensland arrange the same.
31.4That the Director-General of the Department of Child Safety be requested to intervene.
On 29 December 2006 a police report was made by the maternal grandmother’s husband, Mr Price, regarding abusive messages and phone calls being received from the mother.
On 9 January 2007 Judicial Registrar Smith made the following orders:
33.1By consent that paragraph 1 of the orders of 4 December 2006 be discharged.
33.2By consent the mother have telephone communication with the child each Thursday between 7:00pm and 7:30pm SA time with the mother to telephone the maternal grandmother’s residence.
33.3That until further order the mother undertake such drug urine testing as is required from time to time by the Independent Children’s Lawyer.
33.4That the matter be adjourned to 13 February 2007.
33.5That the maternal grandmother file responding documents by 5 February 2007.
On 15 January 2007 upon noting that the proceedings in Brisbane were adjourned to 13 February 2007, Federal Magistrate Mead adjourned directions to 28 February 2007.
On 13 February 2007 Judicial Registrar Smith adjourned the matter to 27 March 2007.
On 28 February 2007 Federal Magistrate Mead dismissed the maternal grandmother’s application filed on 25 October 2006.
On 23 March 2007 Mr P, Psychologist, prepared a Family Assessment Report at the request of the Independent Children’s Lawyer. His recommendations were as follows:
109.Based on the material provided to me in the form of documents and my interviews with the relevant parties, and with reference to the summary presented immediately above, I make the following recommendations:
110.I recommend that the child, [D], continue to reside with his maternal grandmother and her husband. As stated above, he is in need of stability and consistent, reliable care, which he is currently receiving. I do not believe that his mother has demonstrated the capacity to match the level of care and to provide for him the stability which characterises his current living situation.
111.[D] has not seen his mother and half-siblings for a long time – approximately 18 months – and for that reason, I believe his future relationship with his mother and half-siblings are at risk. To reintroduce these people to his lives (sic), I suggest that the physical and psychological boundaries offered by a contact centre be utilised for a time. I further suggest that he be reintroduced to his mother as soon as possible, through at least alternate week visits at a contact centre, under supervision. The visits could occur up to weekly, for a period of two hours but should not be less often than fortnightly. A child of [D]’s age will need at least two visits each four weeks, as well as weekly telephone calls, in order to re-develop a relationship with his mother. After four such visits, I suggest that his half-siblings have the opportunity to share the time [D] is spending with his mother. However, as a result of [D]’s reported memories of [Mr H], as well as my and others’ conclusions that he has harmed [D], I strongly recommend that [Mr H] be prohibited from ever having any form of contact with [D].
112.While [D] is beginning to spend regular time with his mother, and later, with his half-siblings, I recommend that he engage with a suitable qualified child-therapist for counselling. This individual will be able to support him through the reintroduction to his family of origin and will also be able to monitor, and potentially report on, his emotional response to his reintroduction to his mother.
113.Up to six months of regular visits by [the mother] and her other two children with [D] will give [D] an opportunity to have these relationships re-established. It might only be then that time spent without supervision between [D] and his mother might be considered. Those six months will also give [the mother] the opportunity to demonstrate the reliability and stability which she believes is now inherent in her life. It will also give her the chance to submit regularly and randomly to tests to determine that she is indeed remaining drug free, as is her stated intention. The future of her capacity to care adequately for [D], I believe, will depend in a large part on her ability to avoid what she has termed “relapses”.
114.I suggest that the counselling I have recommended for [D] continue until at least the time when [D] has been spending unsupervised time with his mother.
115.I recommend that it be plainly stated to Mr and Mrs [Price] that they must not monitor telephone calls between [D] and his mother.
116.I recommend a review of this matter by a family report writer after [D] has commenced spending unsupervised time with his mother. This is a complex issue and there are a number of variables which might contribute to the success or otherwise of a re-introduction of [D] to his mother and half-siblings. A family report-update will give an opportunity to consider [D]’s welfare in reference to the numerous variables which might impact upon it into the future.
On 27 March 2007 the Honourable Justice Jordan made the following orders:
38.1The file be transferred to the Adelaide Registry of the Family Court and be listed for mention at a date to be advised.
38.2The solicitors for the mother have leave to withdraw.
On 10 May 2007 Registrar Thomas made the following orders:
39.1That the matter be adjourned for mention on 7 June 2006.
39.2That the order for the appointment of an Independent Children’s Lawyer in Queensland be discharged.
39.3That the child be separately represented and such representation be arranged by the Legal Services Commission of South Australia.
In June 2007 the mother’s relationship with Mr G ended. There was a. Domestic Violence Order in place against him and the mother admitted to him having been violent to her twice, but never to her children. At around this time the mother, her two other children and Mr H moved from Queensland to South Australia.
On 17 July 2007 an order was made in chambers for the parties to attend counselling.
On 20 August 2007 a child dispute conference was held with Mr M.
On 28 August 2007 the matter was listed for a First Day Hearing. However, I made the following orders by consent until further order:
Upon Noting the joint application of the mother and the maternal grandmother to adjourn the Division 12A hearing and Upon Noting the support of the Independent Children’s Lawyer
43.1The parties do all things necessary to facilitate the intake process with the Children’s Contact Service […].
43.2Upon acceptance into the Service the mother spend time with the child:
43.2.1   for six periods of two hours;
43.2.2   to occur at the Service and be supervised by the Service;
43.2.3   to occur on such dates and time as nominated by the Service.
43.3That after the completion of six visits, the Independent Children’s Lawyer use his best endeavours to obtain a written report from the Service.
43.4That the mother be restrained and an injunction is granted restraining her from:
43.4.1consuming alcohol 12 hours prior to and during any time spent with the child;
43.4.2consuming any illegal and illicit substances at all.
43.5That the mother submit to drug screen testing within 48 hours of a request being made by the other party’s solicitor – such a request to be made on no more than four occasions during the period of the adjournment – and the results of such testing to be provided to the other party’s solicitor and Independent Children’s Lawyer as soon as available.
43.6That the mother communicate with the child by telephone each Thursday between 7:00pm and 7:30pm, such communication to be facilitated by the mother telephoning the maternal grandmother on a number previously provided or such other number as may be agreed between the parties – with the maternal grandmother to provide privacy to [D] during such phone communication.
43.7That, pursuant to Section 62G that Mr [M], Family Consultant, prepare a report to be commenced upon the completion of the time spent between the child and the mother as provided for in paragraph 43.2 above.
43.8That further consideration be adjourned to a directions hearing at 9:30am on 10 January 2008.
The mother failed to attend the appointments at the Children’s Contact Service and did not attempt to telephone the child D.
On 5 September 2007 the mother left South Australia, went to Queensland, then travelled to Sydney, New South Wales. Her whereabouts are now unknown and apart from one abusive telephone message in December 2007, nothing has been heard from her.
On 11 October 2007 an application was filed by the maternal grandmother seeking orders that until further order the order made on 28 August 2007 be suspended, that until further order the child live with the maternal grandmother and that she be solely responsible for his day to day care.
On 4 December 2007 a Notice of Ceasing to Act was filed by the mother’s solicitors.
On 5 December 2007 I made the following orders:
48.1That the matter be adjourned to 10 January 2008 at 9:30am on the basis that if the mother does not appear and/or file any documents explaining her position since 28 August 2007 her Application for Final Orders will be struck out and this matter will proceed on an undefended basis on the maternal grandmother’s Response filed on 7 February 2007.
48.2That the Application in a Case filed by the maternal grandmother on 11 October 2007 be dismissed and removed from the active pending cases list.
On 10 January 2008 the mother didn’t appear and she failed to file any documents. Thus I made orders that the mother’s Application for Final Orders and the Application for Interim Orders be struck out and listed the undefended hearing for Friday 1 February 2008.

The current circumstances of the parties

Firstly, in relation to the mother, as I have said, her whereabouts are unknown and her circumstances are unknown. Mr H, I am told, remains living in South Australia with the two children of his relationship with the mother.
In relation to the maternal grandmother, there is an affidavit that she filed on 30 January and which is before me. I am not going to repeat all that is in that affidavit in these reasons for judgment but, in summary, the maternal grandmother and her husband, Mr Price, separated in June 2007. However, they still remain friends. They live close to each other and they see each other on a regular basis. The maternal grandmother lives in private rented accommodation at S and the child D has his own room in that house. The lease is due to expire in September 2009, but the maternal grandmother proposes to renew the lease at that time.
In terms of the child, currently he is attending S Primary School and he has commenced year 4 this year. There is a report, his end of school year report for 2007, which is annexed to the affidavit of the grandmother, and that indicates that he is progressing very well at that school. There is also a letter annexed to the affidavit from Ms V who was D’s classroom teacher in 2007. The contents of that letter are very positive. In addition to that, there is a letter of 25 January 2008 from the school counsellor, which also fills me with confidence that D is progressing well at this school and he is enjoying his time there.
As I understand it, the maternal grandmother does not work. She is 55 years of age, and she receives social security benefits. I do not know what Mr Price's position is. I assume he receives Centrelink benefits as well, but again that is speculation. There is nothing in the affidavit to help me with that. I was concerned, though, I must say, with some aspects of the relationship between the maternal grandmother and Mr Price, and I will come to that a little later. I also express some concern about why they separated, but be that as it may, that is the current position. I am told, and I accept, that D still enjoys an excellent relationship with Mr Price and sees him on a regular basis, both when Mr Price visits the maternal grandmother and also vice versa. D visits Mr Price on two occasions per week and has meals with him.
I am told that there are no health issues with the maternal grandmother. In relation to D he was diagnosed in August 2007 as suffering from ADHD and he has been prescribed Ritalin. The maternal grandmother says that she has noticed an “enormous improvement” in D's behaviour since he commenced taking that drug and, indeed, I have some independent evidence of that in the form of a short report from E Medical Centre which confirms the evidence of the maternal grandmother.
The summary of the current circumstances of D is that he is settled in is grandmother’s care; there is adequate accommodation available for him in her household where he has lived since September 2006; he is doing well at school; his ADHD is under control; and everything bodes well for the future in the care of his grandmother. As I say, there is an element of concern about what is happening in the relationship between the maternal grandmother and Mr Price, but there is no evidence before me that that is impacting upon this child, so I will not comment any further about that.

The issues

I see the issue in this case now, given it is proceeding undefended, is whether it is in this child's best interests to make the orders sought by the maternal grandmother, because of course that is the only application before me.

The applicable principles

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)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 child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

The evidence that is before me is four affidavits of the maternal grandmother, namely, those filed on 25 October 2006, 7 February 2007 and 11 October 2007, and the affidavit that I have just referred to filed on 30 January 2008. In addition, there is the report of Mr P before me which is annexed, as I say, to the affidavit of Ms R filed on 3 May 2007. I did not require any oral evidence to be presented to me for the purposes of this case.

Section 60CC of the Family Law Act

I am required to determine whether the parenting orders sought are in the best interests of this child and, for that purpose, I need to have regard to section 60CC of the Family Law Act. Subsection 60CC(2) sets out the primary considerations to which I must have regard and they are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The first consideration is obviously a troubling one, given that neither of the child's parents are before me, the father, because he has had no involvement in the child's life whatsoever, his whereabouts are unknown and he has taken no part in these proceedings, and the mother, for the reasons that I have already expressed. However, the relevant subparagraph only refers to the relationship with the child's parents, so I do not need to consider for this purpose the relationship between the child and the maternal grandmother.
Nevertheless, one of the additional considerations set out in paragraph 60CC(3) is sub-paragraph (b) which is the nature of the relationship of the child with persons other than the child's parents. Thus, although it is not a primary consideration to look at the relationship between the child and his grandmother, it is a consideration that I have to have regard to. In any event, I have no concerns about the relationship between the child and his maternal grandmother. It appears to be a good one and a loving one, and a nurturing one, and under the grandmother's care, this child has progressed well in all areas of his life since coming into her care.
Turning to the second primary consideration - namely, the need to protect the child - this, in my view, looms large in this case, in that I have no hesitation in saying that there is a need to protect this child from psychological harm and physical harm, if this child is placed in the care of his mother or if there was an order made that the child spend time with his mother. I do not recall there being any allegations of physical violence perpetrated by the mother upon the child but there is ample evidence before me that the mother's partner Mr H has done so and, indeed, that was one of the reasons why the mother sent the child to Western Australia back in 2005.
However, the exposure of this child to the mother's drug‑taking, her nomadic lifestyle and the violence emanating from Mr H and, I would assume in that context, disputation in the household between the mother and Mr H, paints a picture of a household where this child should neither be placed nor required to spend time.
However, it is entirely in the mother's hands as to the future of this matter. It is sad and unfortunate that she has chosen not to take a role in this child's life. However, that is not to say that she cannot - to use the vernacular - clean up her act and, at that point, look to renew a relationship with this child. This child of course needs his mother in his life, but not while the mother pursues a lifestyle of drugs and who knows what.
Perhaps I can expand on that comment by briefly referring to the evidence and, in particular, the report of Mr P. That is a highly relevant report and details the history and background of this matter and I consider it appropriate to set out Mr P’s summary and opinion as follows:
99.    [The mother] and [the maternal grandmother] (with the support of her husband, [Mr Price]) disagree about where [the mother’s] eldest son, [D], aged eight and a half, should live. [The maternal grandmother] wants him to continue to reside with her and [the mother] wants him returned to her care. Neither of the two parties in this matter have proposed that [D] should spend time with the other.
100.   Saving for an approximately 12 month period when he lived with his mother in Adelaide (while she stayed at the home of her mother), [D] lived with his mother in Queensland. In August 2005, [the mother] sent him to live with her sister in, or near to, Perth WA, as a result, it seems, of [D] being repeatedly harmed by [the mother’s] partner of the time, [Mr H]. It also appears that from that time on, [the mother] had very little contact with her son and it is clear that she did not spend any face-to-face time with him. It also appears that [the mother] wanted [D] returned to her care, but her sister decided in late 2006, for various reasons related to her own personal circumstances, to send him to her mother, [Ms Price], in suburban Adelaide. He has remained in the care of [the maternal grandmother] and her husband since that time.
101.   [The mother] believes that there is no reason for [D] not to me (sic) in her care. She believes she is perfectly capable of caring for him, as she is currently caring for her younger son, Aaron. Aaron suffers from autism, but [the mother] believes that his condition does not have marked consequences. I note from the material contained in the summary of the subpoena material that staff at his school have determined that [A]’s care needs are substantial. [The mother] has reported numerous concerns regarding her mother and her step-father’s capacity to care of (sic) [D]. Most notable of those is her allegations that [Mr Price] has sexually abused her and her sister and that her mother has suffered notable mental health problems.
102.   [Mr Price] denies ever having sexually abused [the mother]. He reported that he regularly works with children and has “police clearance” to do so. He also holds a Queensland Blue Card. [The maternal grandmother] currently reports and appears to be psychologically well, but she has not been so in the past.
103.   Mr and Mrs [Price] have described [the mother] as itinerant, unreliable, drug addicted, and with a propensity to form relationships with violent men. They have also described her behaviour as that of someone who has not had the best interests of [D] in mind. There is some support for their assertions in a document written by [the mother’s] sister, [N].
104.   [The mother] described to me a history of illicit drug use, but denied any substantial recent use. She minimised her contact with child protection agencies and authorities and told me how she has deliberately sought to allude them after they have raised concerns about [D]’s safety. She confirmed that she has been very unstable in her accommodation and that she has moved about Australia extensively. She also spoke dismissively of the three violent relationships she has had. Most notably, it is apparent that she remained in a relationship with a man who was repeatedly violent to [D] and she sought to minimise this by telling me that she only ever found out Mr [H] had harmed [D] after he had harmed him (“after the fact”). She then chose to send [D] to her sister while she remained in the relationship with Mr [H]. I am not convinced that she is no longer in the relationship. She answered Mr [H]’s personal mobile telephone when I rang it and she stated that she is in regular contact with him. [Mr Price] states that he has heard [Mr H] in the background when [the mother] has telephoned [D]. Given the inconsistencies and understatements in the manner she spoke with me, as noted in the body of my report, I doubt that [the mother] has been a reliable informant. At the very least, [the mother] is seeing [Mr H] at least twice each week and she lives only seven kilometres from his home. He is a man who is on record as having been violent and abusive to [D].
105.   From the comments of Mr and Ms [Price], it seems apparent that at least one of them is monitoring the telephone calls between [D] and his mother. In doing so, he, she or they may be negatively impacting on his relationship with his mother.
106.   In my interview with [D], he appeared to be quite disturbed when initially exposed to a discussion of practical matters related to his mother. He was generally very reluctant to speak to me about matters related to his mother. He reported to me that [Mr H] has harmed him and that his mother has engaged in various behaviours consistent with those engaged in by individuals addicted to illicit drugs. He told me he does not wish to return to the care of his mother and that he wishes to continue to live with his grandmother and step-grandfather. He appears to me (sic) managing well at school, where he is attending regularly and reliably. From the reports of Mr and Ms [Price], with support from the details in his school report, his behaviour and emotional presentation are generally unremarkable. He presented as clean and well dressed and groomed and appeared to be comfortable in the company of his maternal grandparents. Unfortunately I did not have the opportunity to observe his (sic) with his mother, but he gave no indication that he would have consented to participating in such an interaction.
107.   There is rich information in the subpoena material. [The mother] has an extensive child protection history and there is confirmation that [Mr G] and [Mr H] have been violence to either [the mother] or to [D]. There is material suggesting that [C] has also been harmed while in the care of [the mother] and/or Mr [H]. It appears that [the mother] has been a long-term polysubstance abuser. Additionally, it appears that [the maternal grandmother’s] relationship with [Mr Price] has been more tumultuous than what either of them have reported to me. There are reports that [Mr Price] has been at least emotionally abusive and that [the maternal grandmother] has either sought to leave him or has left him on occasions.
108.   What stands out to me is that [D] appears to be currently well cared for and settled in the home of his maternal grandparents. His mother gave up his care rather than choose to leave the man who she admitted was harming him. I have doubts that she is not currently continuing her relationship with him. [D] has had a very unsettled but short life. He presentation to me suggests he is in need of stability, safety and nurturing. My opinion is that his grandmother and Ms (sic) [Price] are most likely to be able to provide this, even though there are some doubts about their historical capacity to provide what [D] currently needs. I believe that, on balance, [the mother’s ] past is more illustrative of a future incapacity to provide for the basic needs of [D]. I also consider that [D], even though he is very young and probably emotionally immature, has expressed a desire not to return to the care of his mother and to remain in his current living situation. I am, however, concerned about his future relationship with his mother and with his half-siblings. Attention needs to be given to these relationships.

As can be seen this report evidences a history of drug‑taking, of family violence, of lack of care, of failure to demonstrate a proper attitude to the child and to the responsibilities of parenthood by the mother. It deals with an appalling chapter in this child's life best forgotten by him. He is fortunate that he has been able to be taken out of that environment, initially to live with his aunt in Western Australia but in more recent times with his grandmother in South Australia.
To highlight further the appalling history in this matter and issues of violence particularly, I have also taken into account the documents contained in Annexure B to this affidavit of Ms R filed on 3 May 2007. They are notes taken from subpoenaed material and, in particular, from police records, including in Queensland, and also from the relevant Department of Child Safety in that State.
My purpose in incorporating Mr P's summary and opinion is that it is a shorthand way of addressing the relevant factors in Section 60CC. I do not propose to look at those factors seriatim, but it is obvious to me from that report and Annexure B and the affidavit material that is before me that there is no question that the orders sought by the maternal grandmother are in the best interests of this child.
I need, though, to mention two other matters which are raised in the material. Firstly the mother made allegations to Mr P that she, her sister and her sister’s daughter were sexually abused by Mr Price, the husband of the maternal grandmother. Those allegations are referred to at page 18 of the report as part of the summary and opinion. There is also an allegation that Mr Price physically abused the mother’s brother.
Obviously, these are serious allegations. They were made to Mr P and he made some comments about the genuineness of those allegations, but of course he was not in a position to investigate them. The position with them is that they have been denied by Mr Price, they have been denied by the maternal grandmother and there is no evidence before me of any investigation of such allegations. All that is before me are the bald allegations themselves, without any detail, made by the mother to Mr P, but she is not here and she has chosen not to be involved in the proceedings.
Thus I propose to proceed on the basis that the allegations are not established and I propose to ignore them for the purposes of these proceedings.
The second matter, which is in a similar category, is that the mother also in her interviews with Mr P, alleged that the maternal grandmother had mental problems. Again, that is denied by the maternal grandmother, and there is no evidence before me, no independent or corroborative evidence of that being the case. It is at the level of a bald allegation made by the mother to Mr P and, in the circumstances of this case, I propose to ignore that allegation for the same reasons that I have referred to already in relation to the other allegations.
Next I need to mention the issue of parental responsibility, given that that is the subject of, in effect, an amended application by the maternal grandmother. I raised with counsel the impact of Section 61DA(1) of the Family Law Act 1975 which provides:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
However, as Mr L correctly pointed out, that is a presumption that only applies as between the child's parents, and that is not the case here. Neither parent is before me in terms of any application being pursued and it would be an odd situation if, although I am making a parenting order, I was then obliged to apply a presumption as between the child's parents, neither of whom are before me for the purposes of these proceedings.
In any event, in this case there is ample evidence that parental responsibility should not be reposed in either of the child's parents, given the history of this matter, and I need not repeat what I have said about, obviously, the father who has taken no part in his life or these proceedings and the mother who has walked out and whose whereabouts are unknown, and who has decided for some reason - unfortunately, I suspect, because of her lifestyle - not to have a role in this child's life.
However everything points to the maternal grandmother having parental responsibility. She deserves great credit in taking on the responsibility of caring for this child. She has done so willingly, she has done so well, and she is prepared to continue her role and ensure that D grows up and develops in the best way possible. Thus I have no hesitation in making an order that the maternal grandmother have sole parental responsibility for this young child.
In conclusion, and by way of a brief summary, the mother has had no face‑to‑face contact with this child since August 2005. There have been telephone calls but there has been no face‑to‑face contact. The child since then has been in the care initially of his Aunt N and now his maternal grandmother. The mother has disappeared. She had the benefit of an order which was designed to re‑establish her relationship with her son through supervised time spent at a children's contact service but she has chosen not to take up that order.
There are significant concerns that I have about the mother's ability to properly provide for the care, welfare and development of this child. On the other hand, the maternal grandmother has appropriately provided for the care, welfare and development of this child, and is able to continue to do so. Importantly, the child is in a settled and stable living environment and he has expressed a wish that he continue to live with the maternal grandmother. His views are set out quite plainly and clearly in the report of Mr P in paragraph 97. That paragraph is relevant in that D was in fact asked whether he wanted to see his mother at the time that he was being interviewed by Mr P and he said that he did not. He said he would be very angry. He reported that, "She says mean stuff, heaps of stuff." In effect, he did not want - to use the vernacular – to have a bar of his mother for what appeared to Mr P to be very good and mature reasons, and Mr P then commented on the child's views in his summary and opinion.
The fact of the matter is - and this is an important consideration under Section 60CC - the child has expressed clear views that he wants to live with his maternal grandmother and he does not want to see his mother. However, I still hope that that situation can be turned around by the mother. But that is for the future. I can only deal with the present and make appropriate orders to ensure that this child's best interests are catered for and, as I say, to repeat, I am satisfied that by making the orders that I am asked to, that that will occur.
Finally in relation to paragraph 2 of the orders sought there is ample evidence before me of the mother making abusive telephone calls to the household of the maternal grandmother and harassing her, and that simply has to stop. The mother has disappeared but there is evidence that the mother made an abusive phone call to the household in December 2007 and that cannot be allowed to continue.

I certify that the preceding
89 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 15^th day of February 2008.

……………………………………….
Associate

[2008] FamCA 454

15 February 2008

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