Jinson and Anor and Bentleigh and Anor

[2015] FamCA 1148

FAMILY COURT OF AUSTRALIA

JINSON & ANOR & BENTLEIGH & ANOR [2015] FamCA 1148

FAMILY LAW – CHILDREN – Application by maternal grandmother and maternal great aunt seeking parental responsibility for the children and that the children live with them – significant risk of harm and protective concerns for the children if in the care of the mother or father – consideration of the applicants as non-parents – consideration of best interests of the children – orders made that children live with maternal grandmother and maternal great aunt and that they have joint parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

1st APPLICANT: Ms Jinson

2nd APPLICANT: Ms Duncan

1st RESPONDENT: Ms Bentleigh

2nd RESPONDENT: Mr Cleary

INDEPENDENT CHILDREN’S LAWYER: S P Nasti & Co Solicitors

FILE NUMBER: PAC 768 of 2014

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 November 2015

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Mr MacDiarmid

SOLICTOR FOR THE 2ND APPLICANT: Mr MacDiarmid

SOLICITOR FOR THE 1ST RESPONDENT: No appearance

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr MacDiarmid appearing by consent for Mr Nasti

Orders

1. That all previous parenting orders in relation to the children B born … 2011 and C born … 2012 be discharged.

2. That the first applicant maternal grandmother and the second applicant great aunt have equal shared parental responsibility for the children.

3. That the child B live with the first applicant maternal grandmother.

4. That the child C live with the second applicant great aunt.

5. That the children spend time with the mother and father with such time under such supervision as may be agreed between the applicants and the mother and father.

6. That otherwise all applications before the court be dismissed and proceedings removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jinson and Anor & Bentleigh and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 768  of 2014

Ms Jinson and Ms Duncan

Applicants

And

Ms Bentleigh and Mr Cleary

Respondents

REASONS FOR JUDGMENT

Introduction

1. The children in these proceedings are B, who is four years old and C, who is three years old.

2. The proceedings were initiated by the children’s maternal grandmother, Ms Jinson, who is 48 years old, and the maternal great aunt, Ms Duncan, who is 50 years old.

3. The respondents in the proceedings are the mother and father of the children, Ms Bentleigh and Mr Cleary who are 30 years old and 41 years old respectively.

4. The maternal grandmother and great aunt (“the applicants”) seek orders that they have equal shared parental responsibility for the children between them, that B live with the maternal grandmother and C live with the maternal great-aunt. They also seek orders that the parents spend time with the children under supervision as agreed with the maternal grandmother and great aunt.

History of the proceedings

1. The maternal grandmother and great aunt started proceedings in this Court in February 2014, seeking interim orders in very similar terms to the presently sought orders, and final orders as the Court deemed fit. The mother has participated in the proceedings intermittently and the father has only participated for a very short period and subsequently disengaged.

2. On 28 March 2014, interim parenting orders were made by a Registrar by consent of the maternal grandmother, great aunt and mother. The father did not appear. The orders provided for the maternal grandmother and great aunt to have equal shared parental responsibility for the children, for B to live with the grandmother and C to live with the great aunt, and for the parents to spend supervised time with the child by agreement with the applicants, or failing agreement for two hours per fortnight at a Contact Centre.

3. Shortly thereafter, on 2 April 2014, the maternal grandmother filed an Application in a Case seeking the recovery of the child B from the parents and for the orders made on 28 March 2014 to be suspended, to be heard on an ex parte and urgent basis. On that same date orders were made ex parte for the recovery of the child B, and leave was granted to the mother to make application on short notice for orders.

4. On 2 May 2014, the matter came before a Registrar, with appearances on behalf of the applicants, the mother appearing self-represented in person and no appearance by the father. On 13 June 2014, the matter again came before a Registrar, with appearances on behalf of the applicants and the mother, and again no appearance by the father.

5. On 21 August 2014, a Child Responsive Program Memorandum was prepared by the family consultant. It was noted that the applicants had participated in the assessment, but the mother did not attend the scheduled appointment and subsequently attempts to arrange for the mother to be interviewed were unsuccessful. The father did not participate in the assessment.

6. On 2 December 2014, when the matter came before a Registrar, there were again appearances on behalf of the applicants and the mother, but it was noted that the mother’s legal representative did not have instructions and there was a likelihood the matter could proceed undefended. On 25 February 2015, the mother’s legal representative filed a Notice of Ceasing to Act.

7. On 17 March 2015, there were again appearances on behalf of the applicants, and the mother appeared in person, self-represented. On this date, the Department of Family and Community Services were invited to intervene in the proceedings. It was noted that the father had not engaged in the proceedings, and the parents were expecting their third child in April 2015 and had resumed their relationship.

8. On 16 June 2015, when the matter next came before the Court, there were appearances on behalf of the applicants and the mother and father both appeared in person. Orders were made appointing an Independent Children’s Lawyer (“ICL”) and for the parents to undertake urinalysis for drug screening within 48 hours of request by the ICL. It was noted that the parents’ third child was born on 4 April 2015 and had been taken into care by the Department of Family and Community Services.

9. The mother and father again both appeared in person at the next court date on 7 August 2015. The mother was ordered to file an amended response and the father ordered to file a response by 9 October 2015. The parents have not appeared in the proceedings since this date nor filed any documents.

10. On 19 October 2015, upon noting that there were no appearances by or on behalf of the mother and father and that they failed to comply with the orders of 7 August 2015, the matter was listed for undefended hearing on 16 November 2015. The solicitor for the applicants was directed to forward to the parents a letter notifying them that the matter had been listed for undefended hearing, the consequences of non-attendance and enclose a copy of the orders. By letter dated 23 October 2015, the applicant’s solicitor duly forwarded a copy of the sealed orders to the parents and notified them that the matter had been listed for undefended hearing on 16 November 2015 and that in the event of their non-attendance the matter would proceed to final hearing (Exh H).

11. On the undefended hearing date 16 November 2015 there were no appearances by or on behalf of the parents.

Parents’ non-attendance

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   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.

   (3)      …

2. In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the parents’ involvement and leave uncertain the circumstances of the children.

3. 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.

4. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 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.

5. 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 who has briefed, at cost to the taxpayers, Counsel.

6. Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young 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.

7. In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:

   197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:

   If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)

   …

8. The Full Court then said:

   201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:

   Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.

   202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.

   …

   204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.

9. The procedural background to these proceedings has been set out above. The parents have not participated in the proceedings since 7 August 2015 and have failed to comply with directions to file relevant documents by 9 October 2015. The parents are clearly on notice of the proceedings, and more specifically of the listing for trial and the consequences of their non-attendance. 

10. Given the history of the proceedings and the nature of the children’s arrangements, it is in the children’s best interests to have their parenting arrangements considered not at some future indeterminate time but in a timely manner. 

Background

1. The mother started having drug and alcohol problems in 1999, when she was 14 years old. Between 2004 and 2006, the mother was admitted to a hospital mental health service. Between 2006 and 2007 the mother attended rehabilitation services, including a residential rehabilitation service for 12 months. From around December 2007, the maternal grandmother and mother were estranged.

2. In around 2011, the parents commenced a relationship.

3. In 2011 B was born. After the child’s birth the Department of Family and Community Services (“FaCS”) records state that the child spent three weeks withdrawing from methadone and the mother was admitted to a mental health service (Exh D).

4. In June 2011 B was taken into the care of FaCS. On 13 September 2011, final orders were made at the Children’s Court at Suburb D providing for the Minister to have parental responsibility for the child for six months, to be under the supervision of the Minister for a further 12 months, and the parents made various undertakings to the Court for a period of 18 months.

5. In December 2011, B was restored to the parents “due to positive changes being evident” (Exh D). At around this time the maternal grandmother and mother began to repair their relationship.

6. FaCS and Police records note that there were a number of reported incidents of family violence in December 2011 and throughout 2012.

7. The second child C was born in 2012. From around this time the maternal grandmother would care for B on weekends whenever she could.

8. The parents temporarily separated in mid-2013, although they appear to have resumed their relationship at various times since.

9. In around July 2013, the mother told the grandmother that she had stopped taking methadone. The grandmother noticed the mother subsequently constantly complained of being tired and not coping well with the children.

The change in the children’s care

1. On 9 August 2013, the mother told the maternal grandmother that the parents and children were being evicted from their home. On 16 August 2013 the grandmother picked up the children from the home.

2. When the grandmother went to the home to return the children on 18 August 2013, she received a phone call from the mother that she was staying with a friend, who lived in a two bedroom apartment with her own two children. The grandmother says she objected to the mother staying with the children in the apartment and the mother replied “Well you taken them then and I’m going to go and stick a needle in my arm”. The grandmother then returned to her home with the children.

3. Later on that same date, the maternal grandmother spoke to the mother again and they agreed that the children would remain with her for a week while the mother made arrangements. The grandmother and great aunt then decided that the best situation was for B to remain with the grandmother, for C to stay with the great aunt and to make arrangements so the children could see each during the week.

4. On 1 September 2013, the applicants met with the mother and left the children in her care for three hours, during which time the mother took the children to visit the father at his parents’ home. When the mother met with the applicants she returned the children to their care, stating “I still have no place to live and do not feel I am capable of caring for the children at this point in time. I am suffering from anxiety and needed to distance myself from [Mr Cleary]…”. The mother refused to come and stay with the grandmother.

5. In late August and September 2013, the father sent the grandmother various text messages about “collecting my kids with police” and “getin my kids bak (sic)”.

6. On 23 September 2013, the applicants planned for the mother to spend time with the children, but the mother cancelled the visit and told the grandmother “I’m still happy for the children to be with [Ms Duncan] and you. I need more time to sort things out”.

7. On 4 October 2013, the children spent time with the mother at her new accommodation overnight. The following day when the applicants picked up the children the father was there but as the applicants entered the home he left by the back door.

8. On 17 October 2013, in the course of a telephone conversation between the great aunt and the mother, the mother asked when she could spend time with the children overnight again. The great aunt responded that she was worried the father would take the children and not return them to the applicants, as he’d been text messaging to the grandmother. The mother stated “I am happy for you and mum to make all the decisions to do with the kids as I’m just not capable of thinking straight right now, so I will be happy with whatever you and mum think is the right thing”.

9. On 19 October 2013, the applicants arranged with the mother for her to spend time with the children at a park.  

10. In late October and early November 2013, the grandmother received several text messages from the father’s phone about the children returning to the parents.

1. On 4 November 2013, the mother was notified by FaCS that the mother had been admitted to a mental health unit. The grandmother understood that there were orders made for the mother to remain in the unit for four weeks and to take medication for schizophrenia and mood swings. On 12 November 2013, the grandmother received a call from the mother’s doctor that the mother had absconded after leave. Over the following days it appears that the mother was discharged.

2. On 24 December 2013, the mother informed the grandmother that she was again at the mental health unit. The mother said “[t]here was an altercation between me, [Mr Duncan] and [Mr Duncan’s] parents. I didn’t turn up to see the children on the 14th because I was with [Mr Duncan] and he wanted to take the children for good but didn’t have car seats”.

3. The mother was released from the mental health service on 9 January 2014, under a Community Treatment Order Treatment Plan, which included continuing to see her treating doctor and complying with her medication, including risperidone.

4. On 3 February 2014, the mother and grandmother had a conversation in which the mother stated that she would “keep” the children, who would live with her and the father at the paternal grandparents’ home. The grandmother expressed concern that the mother had previously told her the paternal grandparents’ home wasn’t suitable for the children. The grandmother subsequently refused to make the children available to the mother on 8 February 2014 and expressed that once she had applied for “temporary custody” she would arrange for the mother to see the children and return the children to her once the mother’s home was safe.

Proceedings commence

1. On 22 February 2014 the applicants initiated proceedings for parenting orders in this Court.

2. On 9 March 2014, the applicants made the children available to spend time with the parents at a park. During that visit the mother called the grandmother and stated that she would not be returning the children. While the applicants were at a police station seeking assistance the mother again called. The mother agreed to return the children if the police were not involved. The children were subsequently returned to the grandmother.

3. On 18 March 2014, there was an incident at the mother’s home whereby the mother alleged that the father had assaulted her, and damaged property in her home. Police records indicate that the father was charged with assault, malicious damage to property and breach of an Apprehended Violence Order.

4. On 28 March 2014 interim parenting orders were made by consent.

5. On 31 March 2014 the grandmother, mother and B spent time together. After an exchange between the grandmother and the mother in the grandmother’s car, the mother removed the child from the car and ran down the street with him. The grandmother went to the nearby police station to report the incident, called the mother several times and drove in the vicinity looking for the mother. A police officer then told the grandmother that the mother had called and told them that B was safe. In telephone conversations and text messages between the mother and grandmother that day and the following day the mother refused to return the child.

6. On 2 April 2014, an order for the recovery of the child was made and the following day B was returned to the grandmother’s care.

7. The great aunt and grandmother each received a number of threatening phone calls and text messages from the father, which were reported to police. In April 2014 an Apprehended Violence Order was made at the Local Court for the protection of the great aunt.

8. In June 2014 supervised contact visits between the mother and the children commenced at a contact service for two hours each fortnight. The contact service records generally describe the mother engaging well with the children when she attended. Until August 2015 the mother attended the majority of scheduled visits, although many visits were cancelled without notice (Exh G).

9. In December 2014 the mother was presented to hospital after being “found in a gutter acting oddly”. Medical records note the mother repeatedly referred to wanting methadone and that she was on legal heroin. The mother absconded from the hospital before she could be seen by doctors.

10. On 4 April 2015, the mother was admitted to hospital for the birth of the parents’ third child, E. At this time the parents had resumed their relationship. The NSW Health records details that after the birth of the child an urgent psychiatric review of the mother was organised. The mother was subsequently admitted as an involuntary patient to the High Dependency Unit after displaying behavioural disturbance and psychosis.

11. The parents’ third child was removed from hospital and placed into out-of-home care by FaCS. In a “Report for Mental Health Inquiry” prepared by a doctor on 12 May 2015, it was detailed that the mother had an established diagnosis of schizoaffective disorder and polysubstance abuse and remained with “poor insight into the need for treatment for her mental illness and illicit substance abuse” (Exh E).

12. In June 2015, the father completed his assessment with the Contact Service. However the scheduled visits were cancelled by the Contact Service “in accordance with the court proceedings on 17 June 2015 and as per our advice”. A previous record notes that the grandmother had contacted the service and expressed that the great aunt did not want contact between C and the father, and she felt that between B would be unhelpful or traumatising (Exh G).

13. The mother cancelled visits at the Contact Service on 25 July 2015 and 8 August 2015.

14. On 15 August 2015 the mother’s NSW Health medical records detail a urinalysis drug screen detected opiates, methadone and cannabinoid.

15. On 24 August 2015 the applicants were notified by the Contact Service that:

    12.5

16. The mother was notified that “[w]e feels that this [cancellation] is in the best interests of [B and C] at this time as their contact arrangements… need to be consistent and sustainable for their emotional and wellbeing” (Exh G).

B

1. The grandmother provides great detail about B’s development and the steps she has taken to meet his special needs.

2. In May 2013, after attending an assessment at an Early Child Screening Service with the mother, B was assessed as presenting with a receptive and expressive language delay.

3. Soon after coming into the grandmother’s care, B began attending speech therapy in October 2013. The speech pathologist’s initial evaluation dated 2 October 2013, annexed to the grandmother’s affidavit, assessed B as presenting with a severe communication delay and delayed play skills. It was noted that the grandmother and carers at his Early Learning Centre reported that there has been a significant change in the child’s speech and language skills since being placed in the grandmother’s care.

4. In August 2013, the grandmother also arranged for him to attend a psychologist. The psychologist’s “Progress Report” dated 13 November 2013 records:

   I have observed [B’s] behaviour improve in sessions over the period of appointments. He is more settled and able to play with toys. He seeks out his Grandmother for interaction and comfort. The considerable improvement in his play, interaction with others and behaviour, indicate that the care and attention that he is receiving from his Grandmother and her partner, is having a significant impact on [B’s] improvement.

5. More recently, B was referred by his paediatrician for an assessment of his development and possible diagnosis on the autism spectrum disorders in light of his identified developmental delay and social skills deficits. In an assessment 28 May 2015 by a clinical psychologist it was recorded:

   …[B] is functioning in the low average range of development, with relative weaknesses in speech and language and personal-social skills and relative strengths in gross motor tasks. He has a delay in his language skills with his speech articulation difficulties making it difficult to understand him, and has very poor attention to speech and poor discourse skills.

   [B] also has a history and current evidence of deficits in reciprocal interaction and social language as well as evidence of restricted and repetitive behaviours and interests, consistent with a diagnosis on the autistic spectrum of disorders.

   Clinical Impression

   1.        Deficits in Reciprocal Social Interaction and Social Language and evidence of restricted and repetitive behaviours and interests consistent with DSM-5 Autistic Spectrum Disorder.

   2.        Global Developmental Delay in the Low Average range.

   3.        Mild receptive and expressive speech and language delay.

   A number of recommendations were made for the child’s continued involvement with services, continued speech therapy, and further review.

The law & Discussion

Non-parent applicants

1. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. The maternal grandmother clearly falls within the ambit of the section. Further, having regard to the circumstances of the children both historically and at present where the child C is in care of the maternal great aunt, it is clear that she is also concerned with the care, welfare and development of the children. The applicants are able to apply for parenting orders.

Relevant matters in determining applications for parenting orders

1. The relevant principles in relation to parenting are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of a child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. This matter, however, involves non-parents.

9. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.

10. Consideration of the applicants as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”.

11. It is therefore appropriate to apply the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

12. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

    … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

13. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

    19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

    …

    21. It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

    …

    25.      In Donnell, the Court went on to say …

    However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

    We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” …

14. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said:

    … all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. …

15. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

    The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The additional considerations: section 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. As noted above, it is appropriate to consider the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

2. The children’s views by reason of health and age are not relevant considerations.

3. The nature of the children’s relationships with the parents and applicants is discussed above. This consideration is supportive of the children living with the applicants.

4. The failure of the parents to engage in decisions relating to the children is patent. Their lack of engagement is fundamental to the present application.

5. The applicants have assumed the primary obligation to maintain the children with the parents failing to make any contribution.

6. The children have been in their present living circumstances for some time and no changes are proposed to those arrangements.

7. The children’s relationship with the parents will be subject to agreement between the applicants and the parents. There is no practical difficulty or significant expense in the children spending time with and communicating with the parents. However the nature and extent of the parent’s willingness to engage with the children is at best problematic.

8. Parental capacity is also a fundamental aspect of these proceedings where both the mother and father have demonstrated little capacity to meet the children’s needs including the children’s emotional and intellectual needs. On the other hand the applicants have stepped in and demonstrated a most appropriate capacity in this regard.

9. The parents have demonstrated a startlingly poor attitude to the children and to their own responsibilities of parenthood. It is fortunate for the children that both applicants have stepped up in this regard.

10. There was family violence in the relationship between the mother and father with the children or either of them being exposed to their parents’ abhorrent behaviour. The applicants have been the subject of threats and abuse at the hands of the father with an apprehended domestic violence order being issued for the protection of the applicants in about March 2014.

11. The long-term protection of these vulnerable children requires that an order be made with a view to avoiding the institution of further proceedings. However the applicants are non-parents and even though the children will reside with them into the foreseeable future circumstances may be such that at some indeterminate time either or both parents may get their lives in order such that they may be a little bit eligible for consideration as the primary carer or carers for the children.

12. There is no other relevant fact or circumstance.

The primary considerations: section 60CC(2)

1. The primary considerations are:

   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.

Meaningful relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FamCAFC 92 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is clear that the nature of the parents’ relationship with the children historically was not meaningful for the children. The issue will remain as to the nature and extent of the parents’ relationship with the children moving forward and whether such a relationship will be important, significant and valuable to the subject children. Present indications are that the parental relationship with the children on a very limited basis by agreement with the applicants might be useful in preserving parental identity for the children. A more engaged relationship and whether such a relationship will be meaningful for the children can only be gauged by the passage of time. This consideration is clearly indicative of the children remaining in the care of the applicants.

Protection

1. This consideration is also a fundamental factor in the applicants assuming care of the children. The children’s lives have been dislocated, disrupted and subject to the aboriginal behaviour of their parents.

Parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [68] above.

2. An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.

3. As this matter involves non-parents, the presumption does not apply.

4. The issue would be determined by a consideration of the child’s best interests.

5. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

6. It is clear as discussed above that it is the best interests of the children for the applicants to have parental responsibility for the respective children.

7. Orders will be made that provide for the applicants to have equal shared parental responsibility for the children, for the children to live firstly as to B with the first applicant and secondly as to C with the second applicant. The parents will spend time with the children as agreed with the applicants. The ICL supports such orders.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 December 2015.

Associate:

Date:  18 December 2015