Kane & Anor and Kane & Anor

[2011] FamCA 676

FAMILY COURT OF AUSTRALIA

KANE AND ANOR & KANE AND ANOR [2011] FamCA 676

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time with – with whom a child communicates with – orders that child live with the maternal grandparents – order that maternal grandparents have parental responsibility for the child – child spend supervised time with the mother as agreed – injunctive orders – orders releasing child’s passport to maternal grandparents

Family Law Act 1975 (Cth)

MRR v GR [2010] HCA 4

1st APPLICANT: Ms A Kane

2nd APPLICANT: Mr B Kane

1^ST RESPONDENT: Ms C Kane

2^nd RESPONDENT: Mr D

FILE NUMBER: HBC 993 of 2008

DATE DELIVERED: 5 August 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 August 2011

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms M A Ryan

SOLICITOR FOR THE 1ST APPLICANT: PWB Lawyers

COUNSEL FOR THE 2ND APPLICANT: Ms M A Ryan

SOLICTOR FOR THE 2ND APPLICANT: PWB Lawyers

COUNSEL FOR THE 1STRESPONDENT: No appearance

SOLICITOR FOR THE 1ST RESPONDENT: No appearance

COUNSEL FOR THE 2ND RESPONDENT: Mr Crisp

SOLICITOR FOR THE 2NDRESPONDENT: Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

1. E born … 2002 (“the child”) live with Ms A Kane and Mr B Kane (her maternal grandparents).

2. UNTIL FURTHER ORDER Subject to these orders, the maternal grandparents have parental responsibility for the child.

3. The child spend time and communicate with Ms C Kane (“the mother”) at such times and in such manner as is agreed between the maternal grandparents or is othewise ordered by a court exercising jurisdiction under the Family Law Act.

4. None of the parties demean, harrass or abuse the other in the presence or hearing of the child and remove the child from the presence of any person doing so.

5. All parties are restrained from bringing the child into contact with Mr F and they are restrained from allowing, enabling or facilitating any contact or communication between the child and Mr F.

6. All parties are restrained from discussing the proceedings or allegations with respect to Mr F with the child, except as requested in the terms of any therapeutic intervention recommenced to the child by a licenced medical practitioner.

7. The mother not be under the influence of alcohol or illicit substances when spending time or communicating with the child.

8. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

9. The child’s passport be released to the maternal grandparents Ms A Kane and Mr B Kane and the court permits the maternal grandparents to remove the child from the Commonwealth of Australia for holidays subject to them:-

   (a)notifying the father of the holiday, the flights, accommodation and arrangements at least twenty eight (28) days in advance of the holiday at the father’s last known residential address during the course of these proceedings and in addition to the notice of address for service of the father c/- his legal practitioner; and

   (b)notifying the mother of the holiday, the flights, accommodation and arrangements at least twenty eight (28) days in advance of the holiday at the mother’s last known residential address.

10. The child be removed from the Airport Watch list.

    IT IS NOTED

11. The question of the time that the child spends with or lives with her father and parental responsibility with regard to her father have yet to be determined and are still matters in obeyance before this court.

    IT IS DIRECTED

12. The Independent Children’s Lawyer forward a copy of these orders to the mother at her last known residential address by ordinary pre-paid post within twenty eight (28) days from the date of this order.

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

    IT IS CERTIFIED

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

IT IS NOTED that publication of this judgment under the pseudonym Kane and  Anor & Kane 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 HOBART

FILE NUMBER: HBC 993 of 2008

Ms A Kane and Mr B Kane

Applicants

And

Ms C Kane and Mr D

Respondents

REASONS FOR JUDGMENT

1. These are proceedings between Ms A Kane and Mr B Kane as applicants, Ms C Kane as first respondent and Mr D as second respondent.  It is a matter in which an Independent Children’s Lawyer has been appointed.  The proceedings relate to a child E (‘the child’) who was born in 2002 and is now aged eight.  The proceedings fall into two parts.  The first part relates to the involvement by Mr D in the life of the child and those proceedings are still on foot.  Mr D only recently having learnt, on his evidence, of the existence of the child and he is developing a relationship with her, I might add, it seems with the consent of the maternal grandparents.  Those proceedings have been adjourned to another date and if not settled will be determined by me next year. 

2. The other proceedings relate to the primary care of the child, these are the maternal grandparents, Ms A and Mr B Kane and Ms C Kane.  Those proceedings were listed for an undefended hearing today and I am satisfied that the mother was not here on 3 August 2011 and she was called today at about 10 minutes past 12 and was not here today.

3. I am satisfied by virtue of the orders that were forwarded to the mother from earlier this year and a letter which is exhibited to me today, from the Independent Children’s Lawyer, that the mother was put on notice that this matter was listed for both the 3 August and the 5 August.  The mother’s involvement in these proceedings, and I have perused the file in that respect, has been at times intermittent and I am satisfied on balance that she knew the proceedings were on foot but has not engaged in those proceedings.  It is, of course, open for her to come back to the Court at some stage to seek to time or other orders in respect of the child, although I neither discourage her or encourage her in terms of that issue.

4. The material before me is voluminous and I do not intend to go through it in these reasons in complete detail, although I will mention parts of it from time to time.  The material includes: a notice of child abuse or family violence filed 26 September 2008; an affidavit of the maternal grandmother filed the same day;  I have read an affidavit of the mother filed 30 October 2008, which I was directed to do, as I understand it, in the affidavit of the maternal grandmother;  an affidavit by the maternal grandmother of 1 August 2011; an affidavit by the maternal grandmother of 21 February 2011;  an affidavit by the maternal grandfather of 21 February 2011; and an affidavit by him if, I am not mistaken, in August 2011 and an affidavit by Ms G filed 21 July 2009. 

5. I have had regard to a confidential report provided by the Department of Health and Human Services in the form of Ms H dated 17 October 2008 and two family reports, one of 10 September 2009 and another 4 of February 2009.  I have also had regard to a report from Ms J of K House dated 15 January 2009 and received by the Court on 21 January 2009.  Finally, I have had regard to the child’s mid year report from L School being the mid year report of 2011.  In addition to that material I have earlier this week viewed two videos, one of an interview between police officers and the child in about June 2008 and the second an interview between police officers and Mr F of about the same month.

6. The legal practitioner for the maternal grandparents has provided to me a chronology which is of great assistance.  It is of value to go through that in providing a background.  

7. These proceedings were commenced by application filed in September 2008 by the maternal grandmother.  Earlier this week an order was made joining the maternal grandfather as a party to the proceedings.  This was done with the consent of the father and with the consent of Mr B Kane.  In those proceedings, both initially and now, orders were sought that the child live with her grandparents.  Mr B Kane is aged 63 and Mrs A Kane is aged 61.  The mother is aged 29.  It appears on the evidence that the child has lived significant parts of her life in the care of the maternal grandparents.  I do not intend to go through that in detail as it is set out in those affidavits to which I have had regard.

8. The early part of the child’s life was troublesome as a consequence of a number of factors which are before me.  Firstly, there is significant evidence of the mother’s abuse of alcohol and at times abuse of substances, whether illegal or not.  Fortunately for the child, she had her grandparents who have provided an enormous backstop for her, and it would appear that this applies to the remainder of the family.  In addition, the mother has been in and out of relationships, some good and some bad.  It is clear from the material that whilst the grandparents endeavoured to assist, they did not try to take over the role of parenting this child.  They have endeavoured to ensure that the child was parented by her mother and they still seek to do so, provided it is safe for the child and provided the child is properly looked after.  However, their best wishes in that regard and their best endeavours in that regard have not been met.

9. The mother entered into a relationship with Mr F some years ago and that relationship continues.  There has been a significant allegation that the child was sexually abused by Mr F.  The mother adopts a difficult approach in relation to that aspect.  She says and has said to the welfare authorities that she is protective of the child and she says that to her parents, the child’s maternal grandparents.  Unfortunately, it is clear on the evidence that she does not treat that need for protection with the seriousness that the allegations demand and has in many ways walked away from her responsibility to provide a safe environment for the child, which is clearly of great concern, worry and sadness to the maternal grandparents.

10. I do not intend to go through the allegations of abuse, except to say that after reading the affidavit material, reading the report from the Department of Health and Human Services, observing the demeanour of the child in interview and the other interviews, and having regard to the material set out in the family reports, I am satisfied that the child is at unacceptable risk of abuse in the unsupervised care of Mr F.  I am equally satisfied on the evidence before me that the mother is in denial in relation to this risk of abuse and does not take the protective steps that one would have hoped or expected of a parent in these circumstances.  As such, the child is at risk of abuse in the unsupervised care of her mother.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. This section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to section 61DA.

   [1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

5. If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.

6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.

7. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.

8. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-

   Primary considerations

   (2)        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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

   (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);

   (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.

10. A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.

11. In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider:-

    Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[2]

    [2] MRR v GR [2010] HCA 4.

1. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interests of the child.  

2. I am obliged to have regard to the objects and principles in respect of parenting set out under Part VII of the Act. I am obliged to consider what is in the best interests of the child, and I must also consider the various provisions of section 60CC of the Act, and I am also obliged to consider whether in the circumstances this is a matter where the presumption of equal shared parental responsibility should apply and if it applies whether I should consider equal time or equal and substantial time.

3. In terms of the various factors, there is in this case the benefit of the child having a meaningful relationship with her mother.  That is clearly, obviously and repetitively acknowledged by both maternal grandparents throughout the course of this proceeding.  It is significant that they take this proceeding with great sadness.  However, the second step of the meaningful relationship must be that the child needs to be protected from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  In this case there are suggestions of violence to the child by Mr F, which the mother does not accept nor offer protection for the child.  There is evidence that the child may have been subjected to sexual abuse to which the mother has not protected the child.

4. What is more troubling is the endeavours made by the mother to persuade the child to ignore what the child said had happened to her.  That to me means that the child in the care of the mother is exposed to psychological abuse.  Some of the evidence I read in the affidavit is particularly disturbing and shows the mother in many ways lacks insight into the care of this child.  In addition, the mother has in the past driven the child in a car whilst the mother was intoxicated and has driven cars without a drivers licence.  These have significant impacts and could put the child at risk. 

5. The child has, in the material before me, expressed her view that she wants to stay with the maternal grandparents because it is a safe place.  She has expressed that in strong terms in a number of areas, and on reading the school reports it is implicit that the child has settled well into the school.  It is of value to talk about positives in reasons other than negatives and I note that her current school report says the following:-

   [E] sets an excellent example of good behaviour and a sensible attitude.  She is a friendly member of class who works with enthusiasm and regularly contributes to class discussion.  Her progress has been steady throughout the curriculum.  [E] is developing maturity and has steadily gained in confidence.  [E] is a pleasant, conscientious student who has enjoyed many aspects of her work so far this year.

6. That sort of comment only comes when a child is settled into school.  It is worthwhile noting the comments of the school teacher, Ms G, in her affidavit filed in 2009 as to the circumstances when the child was in the care of her mother and the circumstances when the child was in the care of the grandparents.  The comments made by the teacher are stark and, sadly for this child, very revealing.

7. The child has a deep and close relationship with her maternal grandparents.  She has a relationship with her mother but, unfortunately, the mother, through circumstances of her health and/or her own making, is not developing that relationship and is at risk that it may diminish over the years.  There is little this Court can do about that except note that the grandparents encourage the relationship and will continue to do so, on their evidence, in the future.  They are willing to encourage a close and continuing the relationship between the child and the other parent and despite a somewhat slow start, are encouraging a relationship between the child and her father.

8. There are no practical difficulties in respect of the child spending time with the mother except the real difficulty of ensuring the child does not come into contact with Mr F and is not subjected to any pressure by the mother in terms of having the child withdraw from allegations she has made in the past.  That probably means that any time the child has with her mother in the immediate future or the medium-term future will need to be reasonably carefully supervised. 

9. The maternal grandparents have displayed, over most of this child’s life, a capacity to provide for the needs of this child including emotional and intellectual needs and financial needs.  The mother has not from time to time met these needs.  The grandparents’ attitude and responsibilities of parenthood is sound, mature and child focused.  The mother’s has been diminished by virtue of her personal difficulties and the relationship in which she finds herself.  There are allegations of violence which are dealt with in the affidavit, and I have had regard to those allegations of violence, in particular, the fear that the child has had with regard to Mr F.  It is significant the comments made by Ms J in the K House report of January 2009.

10. The orders I will make will generally be final, except in relation to the question of parental responsibility.  It may be that when the child’s father becomes further involved in the child’s life and when that matter is heard, there may be a different form of parental responsibility and I make it clear that the parental responsibility order would be pending the application of the father.  In terms of where the child lives, she is settled, happy and thriving and it is, in my view, in her best interests that she remain in that environment.  This is not a matter where there ought to be an order for equal shared parental responsibility, for the matters that I have articulated above, particularly in relation to the risk of abuse, which I need not repeat.

11. The maternal grandparents obtained a passport for the child and are proposing to take her overseas on holidays from time to time.  The maternal grandparents are well established in Tasmania and have deep family roots in this state.  Neither the father nor the Independent Children’s Lawyer have any concern about the grandparents being able to remove the child from Tasmania from time to time on holidays, provided people are told about it in advance.  I intend to make orders releasing the passport to the grandparents to enable them to travel from time to time overseas upon the giving of notice.

12. Material in the affidavits is replete with concerns of inappropriate verbal interaction and from time to time physical interaction between the child and her mother.  In particular, there was one instance where the mother endeavoured to remove the child without the child’s consent and in difficult circumstances at the time of the alleged abuse.  The grandparents seek, and this is joined by the father, an order that no party demean, harass or abuse the other in the presence of the child and remove her from the presence of any other person doing so.  Having regard to the history of this matter, this order seems prudent and sensible.

13. The maternal grandparents also seek orders that the child spend time and communicate with the mother as agreed between the maternal grandparents and the mother.  Having regard to the history, I am confident that this will occur but in a way that is safe for the child.  If the mother is unhappy it is always possible for her to come to a court, exercising jurisdiction under this Act.  But I am confident, having regard to the past, that the maternal grandparents will deal with that aspect sensibly.

14. There is a need that the mother not bring the child into any contact with Mr F.  That does not mean leave the child alone with Mr F as the mother has from time to time interpreted the orders.  It means that the child must not be brought into any contact with Mr F, whether physical or by telephone or by internet or any other way, and I will be making that order.

15. I will also restrain the parties from discussing the allegations with respect to Mr F.  This is a difficult enough thing for this child to deal with, as is set out in the reports and the K House report, rather than to expose this child to further insult arising from those sorts of discussions.  The maternal grandparents also seek orders that the mother not be under the influence of alcohol or illicit substance when spending time or communicating with the child, and having regard to the history of this matter and the facts to which I have alluded to earlier, that seems a sensible order.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 August 2011.

Associate:

Date: 5 August 2011