Karl & Karl
[2020] FamCA 703
•26 August 2020
FAMILY COURT OF AUSTRALIA
| KARL & KARL AND ANOR | [2020] FamCA 703 |
| FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – Where the applicant is a non-parent – Where consideration of applicable principles – Where orders made providing the maternal grandmother with sole parental responsibility – Where orders made for the child to live with the maternal grandmother and spend time with the mother and father as agreed between them and the maternal grandmother. FAMILY LAW – INJUNCTIONS – Order restraining the mother and father from taking the children from the maternal grandmother’s care – Order restraining the mother and father from approaching or entering upon any place of education, day care/preschool that any of the children may attend and from any place of residence at which the children or the maternal grandmother may reside and from contacting the maternal grandmother or the children by any means save and except for the purposes of arranging time to be spent with the children – Order made restraining the mother from bringing the children into contact with her current partner. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN Family Law Rules 2004 (Cth) rr 11.02, 16.07 |
| Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 Goode and Goode (2006) FLC 93-286 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Potts & Bims [2007] FamCA Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Ms Karl |
| FIRST RESPONDENT: | Ms C Karl |
| SECOND RESPONDENT: | Mr Newlin |
| FILE NUMBER: | PAC | 3661 | of | 2019 |
| DATE DELIVERED: | 26 August 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 20 July 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms McCleary of Legal Aid NSW Parramatta Family Law |
| FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT: | No appearance |
| SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT: | No appearance |
Orders Made On 20 July 2020
Upon Noting There Is No Appearance By Or On Behalf Of The Respondent Mother or the Respondent Father, It Is Ordered That
The application for final parenting orders by the Applicant maternal grandmother Ms Karl proceed on an undefended basis.
The maternal grandmother, Ms Karl, have sole parental responsibility for the subject children, X born … 2013, Y born … 2015 and Z born … 2017.
The said children live with the maternal grandmother.
The said children spend time with the Respondent mother and/or Respondent father as agreed in writing such writing to include SMS or email communication between the maternal grandmother and the mother and/or the father.
The mother and father be restrained from removing or attempting to remove the said children from the care of the maternal grandmother except as agreed in writing between the maternal grandmother and the mother and/or father.
Pursuant to s 68B(1)(c) of the Family Law Act 1975 (Cth) the Respondent mother, Ms C Karl, and the Respondent father, Mr Newlin, be and are hereby restrained from approaching or entering upon any place of education, day care/preschool that any of the children may attend upon from time to time and from any place of residence at which the children or the maternal grandmother may reside from time to time and from contacting the maternal grandmother or the children by any means save and except for the purposes of arranging time to be spent with the children as provided for above.
The mother be and is hereby restrained from bringing the children into contact with Mr B or permitting or authorising any other person to do so.
Reasons are to be published on a later date.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Karl & Karl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3661 of 2019
| Ms Karl |
Applicant
And
| Ms C Karl |
First Respondent
And
| Mr Newlin |
Second Respondent
REASONS FOR JUDGMENT
These are parenting proceedings commenced by the applicant maternal grandmother by Initiating Application filed 1 August 2019. The proceedings relate to three children X (“the oldest child”) aged seven, Y (“the middle child”) aged four and Z (“the youngest child”) aged two.
Neither the mother nor father ever engaged in the proceedings commenced by the maternal grandmother so the proceedings were heard on an undefended basis on 20 July 2020.
At the undefended hearing the maternal grandmother relied upon the following documents:
a)her Amended Initiating Application filed 4 September 2019;
b)her affidavit filed 6 July 2020; and
c)the affidavit of her partner filed 6 July 2020.
The maternal grandmother sought orders as set out in her Amended Initiating Application which were slightly amended in her Case Outline document (Exhibit “A”) that:
a)she have sole parental responsibility for the children;
b)the children live with her;
c)the children spend time with the mother and father as agreed between the grandmother and the mother in writing;
d)the mother and father be restrained from removing the children from the grandmother unless agreed;
e)the mother be restrained from approaching the children’s schools or day care, or the grandmother’s residence unless agreed; and
f)the mother be restrained from bringing the children into contact with a Mr B (“the mother’s partner”).
Orders were made by the Court on 20 July 2020 in terms as sought by the maternal grandmother on an undefended basis and reasons were reserved. These are those reasons.
Context
The mother was 23, the father 25 and the maternal grandmother 46 at the time of hearing.
The mother gave birth to the oldest child in 2013 when she was 16 years old and living in the maternal grandmother’s home. Shortly after the birth of the oldest child, the mother and father commenced a relationship and the father began living in the home of the maternal grandmother where they continued to reside until late 2016. During this period, in 2015 the mother gave birth to the middle child. The mother and father moved out of the maternal grandmother’s home towards the end of 2016 and the two oldest children continued to live with the maternal grandmother but spent time with the mother and father regularly as they lived nearby but for only short periods each time.
The youngest child was born in 2017 and lived with the mother and father following his birth.
The mother and father separated in early 2018 and it is the maternal grandmother’s understanding that the children have not had any physical contact with the father since separation.
The youngest child continued to live with the mother following her separation from the father. The mother re-partnered sometime during 2018 with her current partner whom the maternal grandmother considers to pose a risk of harm to the children.
The youngest child spent time with the maternal grandmother on an increasing basis and in July 2019 the maternal grandmother took this child into her care due to concerns for the children’s safety after the mother took the older two children from school without the grandmother’s knowledge. Since this date the mother has not asked to have the children return to her care.
On 1 August 2019 the maternal grandmother commenced proceedings in the Family Court of Australia seeking that the application be listed on short notice.
The maternal grandmother has significant concerns regarding the safety of the children in both parents’ care. Her concerns in relation to the risk of harm to the children in the mother’s care arise from the mother’s relationship with her current partner Mr B and in relation to drug use, having observed drug paraphernalia in the mother’s home as recently as September 2019 and smelt marijuana in the home at this time. The maternal grandmother’s concerns in relation to the father are associated with his drug use and criminal behaviour as the father has been in and out of custody over the last few years and it appears from objective records that his drug use is ongoing.
There is currently an Apprehended Violence Order (“AVO”) in place for the maternal grandmother, her partner and the children’s protection from the mother’s partner which is in place until October 2021.
The proceedings
After the maternal grandmother’s commencement of the proceedings on 1 August 2019 the matter came before a registrar on 16 August 2019 for consideration as to its urgency. On this occasion the registrar was informed that the father was in custody. The registrar then listed the matter on an urgent basis before a Senior Registrar for consideration of the maternal grandmother’s interim application that same day. The Senior Registrar made orders listing the matter for an interim hearing on 16 August 2019 and made orders on an ex parte basis pending further order that:
a)the maternal grandmother have sole parental responsibility for the children;
b)the children live with the maternal grandmother;
c)the mother be restrained from removing the children from the maternal grandmother’s care, from approaching any place of education, day care or preschool that the children attend, from approaching any place that the children or maternal grandmother may reside or from contacting the children by any means; and
d)restraining the mother from bringing the children into contact with her current partner.
On 22 August 2019 the matter came before the Senior Registrar for interim hearing and the Senior Registrar confirmed the orders of 16 August 2019.
The matter came back before a registrar on 23 January 2020 for directions who made orders that the parties attend upon a Family Consultant for the preparation of a Child and Parents Issues Assessment.
On 14 May 2020 the matter came before the Court for a First Day Less Adversarial Trial where the Child and Parents Issue Assessment was released to the maternal grandmother. There was no appearance by either parent and there had been no appearance by them at any of the prior court events. In these circumstances, the maternal grandmother’s application was listed for final undefended hearing on 20 July 2020 with directions made for the filing of documents for hearing.
On 20 July 2020 there was again no appearance by or on behalf of the mother or father and the matter was heard on an undefended basis. Orders were made that the children live with the maternal grandmother, spend time with the mother and/or father as agreed in writing between the maternal grandmother and/or mother and father and that the maternal grandmother have sole parental responsibility for the children. Orders were also made in the same terms as the interim orders as to restraints against the parties and reasons for judgment were reserved. These are those reasons.
Procedural Fairness
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.
Further, rule 11.02(2)(c) of the Rules provides:
(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c)determine the case as if it were undefended.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Act:
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…
Tendered in the proceedings were letters sent by the maternal grandmother’s solicitor to the mother and father’s last known addresses in January 2020 and again in June 2020 advising them of the proceeding and listings for the matter including the date listed for undefended hearing on 20 July 2020. In the communication sent in June 2020 the mother’s solicitor also enclosed a copy of the orders of 14 May 2020 which included the order that the proceedings would be dealt with on an undefended basis on the next occasion.
In circumstances where neither the mother or father have engaged in the proceedings at all and there is evidence they have been served with various court documents over time, dating back to the commencement of the proceedings in August 2019, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis in their absence on the date listed for undefended hearing.
Child and Parents Issue Assessment
The maternal grandmother, the maternal grandmother’s partner and children attended upon a family consultant as part of the Child and Parents Issue Assessment on 17 March 2020 and a Child Responsive Memorandum was subsequently prepared. The mother and father both failed to attend for the assessment.
The maternal grandmother reported that the children lived with her and her partner as well as with her own children.
The maternal grandmother reported that she has been the primary carer for the children since their births. She told the family consultant that even when the mother was living separately with the children, she would often return the children to the grandmother to care for them. The maternal grandmother reported that she removed the children from the mother’s care in July 2019 as she had concerns for the children’s safety and reported that the police and Department of Communities and Justice (“the Department”) had been involved at the time.
The maternal grandmother reported that when caseworkers attended the mother’s home in the past they held concerns about the condition of the property.
The maternal grandmother told the family consultant that the mother was currently spending time with the children every second or third day for approximately 10 minutes at a time. She also reported concerns regarding the environment the mother is residing in with her current partner’s family, reporting that the property “looks like a tip” and that the police frequently search the property for stolen items, drugs and individuals wanted for arrest.
The maternal grandmother reported that the father does not currently spend time with the children as there is an ADVO protecting the children which was issued as a result of a threat made by the father towards the mother involving “something about a gun”. She reported that while the father was not currently spending time with the children, he contacts her to see how the children are progressing. The maternal grandmother reported her concerns about the children spending unsupervised time with the father due to a belief that he is due to enter a drug rehabilitation program.
The maternal grandmother and her partner reported that the oldest child was diagnosed with ADHD when he was around three or four years old and is currently medicated and is under the care of a paediatrician to manage this.
During observation the family consultant observed that the children “continued to readily and easily interact with [the maternal grandmother] and [the maternal grandmother’s partner] and appeared relaxed and comfortable in their presence”. She also observed that the maternal grandmother and her partner to be “instructive and educational in their interactions with the children at all times”.
The maternal grandmother’s partner reported that he had been assaulted by a teenage nephew of the mother’s partner in August 2019 when he was hit to the head with a baseball bat. He reported that he sustained a fractured skull and bleeding on the brain, suffered seizures and a heart attack and is now unable to drive a vehicle or operate heavy machinery. The maternal grandmother’s partner reported to the family consultant a belief that the mother’s partner was responsible for organising the assault. He also explained the ongoing psychological impacts following the assault including that he has been diagnosed with Post Traumatic Stress Disorder.
The maternal grandmother’s partner reported that he was previously “addicted to heroin and cannabis” and that he “dibbed and dabbed with ice” but that he has been clean since 2008 and was on a methadone program.
The maternal grandmother and her partner reported that the mother’s partner deals methamphetamines and that the mother has started using drugs, specifically methamphetamine, cannabis and “GHB” since commencing a relationship with him.
The maternal grandmother and her partner reported that the father has a history of drug use, including methamphetamines, MDMA and cannabis.
The family consultant identified the oldest child’s and youngest child’s speech development and it was recommended that the maternal grandmother obtain a referral to speech therapy.
It was also recommended by the family consultant that the maternal grandmother and her partner access special trauma counselling to assist them manage the impact on their psychological wellbeing of the attack on her partner.
Objective Evidence
Records produced by the Department of Communities and Justice
The shortcomings in the mother and father’s parenting capacity and potential risks posed to the children in their care is well documented in records produced by the Department (Exhibit “C”).
The children have been the subject of six Risk of Significant Harm Reports.
The reports received by the Department include:
a)A report was received in May 2018 relating to domestic violence;
b)Three reports in July 2019 of substance abuse, inadequate supervision and domestic violence; and
c)In August 2019 a report of substance abuse.
A safety assessment conducted in September 2019 of the children in the mother’s care scored the risk level as high which included an assessment of high for risk of neglect and an assessment as high for risk of abuse.
Departmental records from September 2019 relevantly provide:
[The maternal grandmother] is currently the primary care giver for her grandchildren… and has initiated Family Law Court proceedings. [The maternal grandmother] expressed concerns regarding the children’s mental wellbeing considering all that has happened and requested assistance with counselling, caseworker has provided [the maternal grandmother] with information on appropriate counsellors for the children’s ages/development. [The maternal grandmother] is willing to engage with Community Services or an appropriate service in regards to [the oldest child’s] speech therapy. On 30 August 2019, Caseworkers… spoke with [the mother] who reported that she doesn’t have any current plans of having [the children] in her primary care.
The report made to the Department in August 2019 related to the mother’s partner’s alleged involvement in selling “ice” and that the mother uses “ice” and marijuana. It was reported that the mother’s partner had been driving past the house in the early hours of the morning, beeping their horns and yelling out threats to take the children. It was reported that the children were scared to walk to the shops and go to school because of this behaviour.
Police Records
The father’s and mother’s current partner’s criminal antecedence is set out in police records produced (Exhibit “C”).
The father’s criminal history
Police records document the mother reporting to police an incident in May 2018 where the father made threats to kill her and others. It is recorded that the father contacted the mother asking for her to facilitate time for him to see the children. During a phone call between the parties the father began to ask the mother if she was in a relationship with anybody which the mother denied but the father is then said to have replied “I saw my mate the other day and he gave me a gun. I’m going to come up there and shoot everyone in that house”. The police issued a provisional ADVO for the mother and children’s protection from the father.
In July 2019 the father received a Community Corrections Order with a term of 30 months after he contravened to prohibition/restrictions of the ADVO in place at the time.
In January 2020 the father was arrested for possessing a knife in a public place which appeared to police to be in breach of an Intensive Corrections Order that was in place at the time. In a Breach Report relating to this offence it is recorded:
[The father’s] response to supervision is considered poor. Since the commencement of his Intensive Corrections order in September 2019 he has been arrested on two separate occasions prior to this most recent arrest. [The father] is still awaiting sentencing on both of these matters. His attendance to Community Corrections is considered superficial. In January 2020 he was given a formal direction to comply with the conditions of his supervision. During his period of supervision [the father] has been required to address his ongoing illicit drug use through D Centre however he had failed to attend scheduled appointments with this service on a number of occasions.
The father was released from prison in or around March 2020 and in a Case Note Report prepared by a corrective service officer on 17 March 2020 it is recorded that the father told the corrective services officer that he had been using “ice” since his release, living with an “ice” dealer since his release and that his new partner is also an “ice” user. It was recorded:
In regards to his drug use, [the father] has made note that he would like to cease drug use and acknowledged that it has been detrimental to his life and relationships, making note that his ex-partner…broke up with him due to his chronic ice use.
The father also reported that he would continue to make efforts to contact his children even if there is an AVO in place.
The mother’s partner’s criminal history
Police records produced evidence a colourful history of the mother’s partner’s criminal activities including periods spent in custody.
The mother’s partner’s criminal history includes:
a)Convictions for common assault for offences committed in October 2016 and August 2017 for which he received a bond with conditions that he obey all reasonable directions NSW Probation Service for counselling, educational development and drug and alcohol rehabilitation; and
b)A conviction for using an offensive weapon to commit an indictable offence and stalk/intimidate intending fear physical harm for which he was sentenced to a Community Correction Order of 12 months with ongoing monitoring for anger management, drug and alcohol issues and for which he was to receive structured intervention.
An Intake Screening Questionnaire dated 20 June 2020 records the mother’s partner being in custody at that time on remand for possessing ammunition without holding a licence/permit and possessing an unauthorised pistol. It is also recorded that the mother’s partner threatened self-harm while in custody and had indicated that he would “commit suicide if sent back to prison”.
The incident of 11 August 2019 involving the maternal grandmother’s partner and members of the mother’s partner’s family is also detailed in police records. At 5.00 pm that day it was captured on CCTV footage that the mother’s partner drove past the maternal grandmother’s residence and while he drove past made an offensive hand gesture towards the maternal grandmother. This caused the maternal grandmother fear so she reported the incident to the police. Later that evening around 7.00 pm a group of young persons approached the maternal grandmother’s residence and were observed to walk back and forth out the front of the premises along the road whilst yelling out towards the maternal grandmother’s partner. One person is recorded as picking up an object from the road and throwing it towards the premises. The maternal grandmother’s partner then exited the home and walked towards the young persons holding a large black hunting knife for his protection. The young persons retreated momentarily until one came to be in possession of a bat/pole which the young person used to strike the maternal grandmother’s partner to the side of his head. Three young persons were subsequently arrested. The maternal grandmother’s partner was taken to hospital where it was discovered he had suffered a fractured skull and bleeding on the brain. On the same day police applied for a provisional AVO and in August 2019 an interim AVO was issued for the maternal grandmother’s, children’s and her partner’s protection from the mother’s partner. In October 2019 a final AVO was made for their protection with conditions that the mother’s partner, alongside the standard conditions, not approach the maternal grandmother, the children or the grandmother’s partner or attend anywhere they live or work.
Discussion: Grandparents
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 children, can apply for parenting orders.
It is clear having regard to the circumstances of the children both historical and at present as referred to above that the applicant is concerned with the care, welfare and development of the children.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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.
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 the child.
The Full Court in Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 and Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 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 it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the applicant as a non-parent 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”. It is, therefore, appropriate to apply the relevant considerations in respect of the applicant by way of application of s 60CC(3)(m).
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; (2013) FLC 93-539 at [43]:
… there is 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). …
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 … [at [101] and [102]]:
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” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. …
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”.
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.
Parental Responsibility
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 the child for the child’s parents to have equal shared parental responsibility.
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)].
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.
In circumstances where neither parent has ever engaged in the proceedings, where the maternal grandmother is currently exercising parental responsibility for the children as she has done for most of their life and where there are serious questions as to the parents’ capacity to exercise parental responsibility for the children, the Court is satisfied that an order that the children’s parents have equal shared responsibility would not be in the children’s best interests.
For the reasons discussed above, it is also in the best interests of the children that the maternal grandmother have sole parental responsibility for the children.
The Primary Considerations: s 60CC (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.
In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 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 one. Quantitive 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.
The maternal grandmother has been the primary carer for the two older children since their births but particularly since late 2016 when the mother and father moved out of her home without them and only spent time with them on a limited basis as arranged with the maternal grandmother. The youngest child has been in the maternal grandmother’s care since July 2019 and the mother has not sought to have this child return to her care since this time as had been the previous arrangement. The orders sought by the maternal grandmother would see the continuation of an arrangement where the children live with her and spend meaningful time with each of the parents as she considers to be sufficiently protective for the children.
The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is to give greater weight to this consideration.
This consideration is in itself determinative of the present application.
It is the maternal grandmother’s case that there are significant safety concerns if the children were to spend unsupervised time with the mother or father at this point in time. It is her case that she does not wish to restrict the children from enjoying a meaningful relationship with both of their parents but wants to ensure that they are not exposed to harm.
There is significant concern of risk of exposure to harm for the children in the father’s care. Police records demonstrate as recently as January this year the father was identified as having ongoing illicit drug use issues and having failed to participate in prescribed rehabilitation for his drug use. Also in police material from March 2020 is the father’s own acknowledgment of his historical and ongoing chronic “ice” use and his acknowledgment of surrounding himself with people who are “ice” users.
There is also concern about the children’s exposure to violence and risk of harm in the father’s care in light of the threats of violence he has made towards the mother in the past.
Concern in the mother’s care arises from her relationship with her current partner and suspected drug use. The objective evidence of the mother’s partner’s criminal record and the maternal grandmother’s observations of drug paraphernalia at the mother’s home raises significant concern about risk of exposure to neglect or harm in the mother’s care. The maternal grandmother’s reports to the family consultant that the mother’s partner’s home “looks like a tip” and that there are police frequently attending the property also raises significant concerns about risk of harm in that household.
Relevantly, the family consultant opined:
The information provided by [the maternal grandmother] and [the maternal grandmother’s partner] is indicative that [the children] have experienced inconsistent care throughout their lives, at times from a caregiver who was under-involved and potentially neglectful. It is also possible that the children have been exposed to, and are at risk of future exposure to, parental drug use and family violence and associated risks, including the detrimental impact of these factors on parenting capacity.
At this stage the maternal grandmother is the only person presenting as a carer for the children as neither parent has engaged in the proceedings and the mother has, in fact, indicated that she does not have any plans to have the children in her primary care.
Having regard to the opinion of the family consultant of the risk of exposure to parental drug use and associated risks in the mother and father’s care, and the objective evidence available which suggests that this is an ongoing risk in each parents’ care, it is clearly appropriate to make orders as sought by the maternal grandmother that the children continue to live with her and that the maternal grandmother be able to determine the time the parents spend with the children as agreed with the parents.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the 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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
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)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
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; and
m)Any other fact or circumstance that the court thinks is relevant.
The children’s views were not canvassed in the Child Responsive Memorandum but given their young ages, it would be unlikely that the Court would attach any substantial weight to their views in any event.
The children have a close and established relationship with the maternal grandmother and her partner as identified by the family consultant during the Child Responsive Program. The family consultant observed the children readily seek out both of their attention during observation and appeared to enjoy interaction and engagement with both of them.
The children also enjoy a close relationship with their great maternal grandmother who they spend time with regularly.
Following the mother and father leaving the older two children in the maternal grandmother’s care in late 2016 when they moved out of her home, it seems that neither of them took the opportunity to participate in decision making about long term issues for these children and it seems spent quite limited time with the children. Their later acceptance of the youngest child remaining in the maternal grandmother’s care again speaks poorly to the degree they have taken to participate in the children’s lives.
The maternal grandmother’s reports to the family consultant of facilitating the oldest child being medicated for ADHD and facilitating his attendance upon a paediatrician speaks positively to her parental capacity and capacity to provide for the children’s needs. Further, her comments to the family consultant that the child has improved at school since commencing medication and her comments that the children’s childcare provider raised no concerns about the children’s development also seems to demonstrate her understanding of the children’s needs.
The records produced by the Department suggest that the children are well cared for by the maternal grandmother and also that the mother has no intention to take the children into her permanent care. The mother’s surrendering of the children into the maternal grandmother’s care in itself demonstrates the significant shortcomings in her parenting capacity at this point in time.
The family consultant expressed a clear position about the disruption to the children’s parenting arrangements the children had so far experienced in their lives which would support the continuation of the current parenting arrangement for the children and said:
… [the children] are likely to benefit from a caregiving environment that is stable, secure and safe with carer(s) who are able to consistently identify their needs and meet these to an adequate standard. Concerns were not raised, albeit on the limited amount of information available to this assessment, that [the maternal grandmother], in conjunction with [the maternal grandmother’s partner], does not have the capacity to currently provide adequate care to the children.
The maternal grandmother has actively taken on the recommendations made by the family consultant by attending upon a counsellor herself and has engaged the oldest daughter with a speech therapist. These actions speak to her mature and proactive attitude to the responsibilities of parenthood.
The Court accepts the submission made by the maternal grandmother that she will support the children learning about and engaging with their Aboriginal culture by connecting the children to members of the paternal family including their paternal grandfather and paternal uncle who live in close proximity to the maternal grandmother.
The Court is satisfied that the father’s threats towards the mother in the past resulting in a provisional ADVO being obtained would fall within the definition of family violence set out in the Act as this is also a relevant factor in determining the proceedings as discussed above.
The order least likely to lead to the institution of further proceedings are the orders proposed by the maternal grandmother given neither the mother or father have even been engaged in the proceedings or proposed orders of their own.
The parents must be taken from their total lack of engagement in the proceedings to have forfeited any interest in participating in the children’s lives and this is one of the most salient matters in these proceedings. This supports the making of an order that the extent of the parents’ time with the children should be as agreed to with the maternal grandmother only.
Otherwise, the maternal grandmother sought injunctive orders restraining the mother and father from taking the children from her care, approaching or entering upon any place of education, day care/preschool that any of the children may attend upon and from approaching the maternal grandmother’s residence save and except for the purposes of arranging time to be spent with the children as provided for above. In light of the discussion of risks posed by both parents should they have the children in their care unsupervised, the mother’s history of taking the children into her care without notifying the maternal grandmother and the father’s concerning comments of his intention to not comply with conditions of an AVO previously in place, the Court is satisfied that such orders are proper.
The maternal grandmother also sought an order restraining the mother from bringing the children into contact with the mother’s partner Mr B or authorising any other person to do so. In light of the August 2019 event described above and the mother’s partner’s criminal history in general, the Court is also satisfied that such an order is proper.
All the aforementioned considerations are strongly supportive of orders being made in the best interests of the children as sought by the maternal grandmother.
Orders will be made accordingly.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 August 2020.
Associate:
Date: 26 August 2020
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