Kavanagh and Power & Ors (No 2)
[2015] FamCA 917
•23 October 2015
FAMILY COURT OF AUSTRALIA
| KAVANAGH & POWER AND ORS (NO 2) | [2015] FamCA 917 |
| FAMILY LAW – PRACTICE & PROCEDURE – Where the first respondent father ceased participating in proceedings – Where the second respondent paternal grandparents chose not to appear at the final hearing – Where the matter therefore proceeded undefended by any of the respondents – Where at the time of the hearing, the whereabouts of the elder child was unknown to the mother FAMILY LAW – CHILDREN – Best Interests – Where both children have meaningful relationships with the mother – Where the younger child is aligned with the mother – Where the elder child is young person at risk, given that she is living with neither parent nor with any family member – Children’s views – Where both children have suffered as a result of their parents inability to focus on them as a result of post separation events and the fact that they do not communicate with each other – Where the circumstances of the elder child are beyond what a Court alone can do by way of order to improve – No orders made in relation to where the elder child should live – Younger child to live with the mother – Where although it would be a great benefit for the younger child to restore his relationship with the father and to be able to have regular contact with his sibling, no orders are made in that regard FAMILY LAW – CHILDREN – Parental Responsibility – Mother to have sole parental responsibility for the elder child with orders providing for all parties to advise each other about relevant events involving her – Mother to have sole parental responsibility for the younger child, subject to reporting requirements to the father and paternal grandparents |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Kavanagh |
| FIRST RESPONDENT: | Mr Power |
| SECOND RESPONDENTS: | Mr A Power & Ms B Power |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 3266 | of | 2013 |
| DATE DELIVERED: | 23 October 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 14 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Curtis |
| SOLICITOR FOR THE APPLICANT: | YPG Legal |
| FIRST RESPONDENT: | Not Applicable |
| SECOND RESPONDENTS: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Rugendyke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That all prior parenting Orders in relation to C, born … 2000 (“C”) and D, born … 2003 (“D”), together referred to as “the children”, are discharged.
Parental Responsibility for C
That the mother shall have sole parental responsibility for C.
That in the event the mother becomes aware (other than through the father and paternal grandparents) of C being affected by an adverse event, including but not limited to serious illness, injury, hospitalisation, or misadventure of any sort, the mother shall advise the father as soon as practicable of the adverse event.
That in the event that the father and/or the paternal grandparents, or either of them, become aware of C being affected by an adverse event as set out in Order 3 herein, that party shall:
(a) Advise the mother as soon as practicable;
(b)Advise any relevant police officer, ambulance officer, or medical practitioner involved in dealing with the adverse event that the mother has sole parental responsibility for C.
That the mother has leave to provide a copy of these Orders, at any time she considers relevant, to an officer of:
(a)NSW Police, Police of another State or Territory and the Australian Federal Police;
(b)Department of Family and Community Services or equivalent organisation of another State or Territory; and
(c)Centrelink.
Parental Responsibility for D
That subject to the following, the mother shall have sole parental responsibility for D:
(a)The mother shall keep the father advised in writing at all times of the names of any school attended by the child and ensure that the father’s name and contact details are included in any school documentation;
(b)The mother authorise any school at which the child attends to provide to the father, in respect of the child, copies of all school reports, newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to the school a copy of this Order;
(c)The mother advise the father in writing of details of all medical and allied health professionals including counsellors, psychologists and psychiatrists who may be providing assistance or treatment to the child and provide an ongoing authority to these professionals to provide information to the father about all matters relevant to the health and welfare of the child upon a request by him for such information;
(d)The mother advise the father as soon as practicable in the event that the child suffers a significant illness or injury or requires hospitalisation;
(e)The paternal grandparents are at liberty to attend any sporting events including football matches in which the child is a participant;
(f)The paternal grandparents are at liberty to attend any function at the school at which the child is a pupil from time to time and to which grandparents are normally invited.
Residence for D
That D shall live with the mother.
Telephone contact
That D shall have telephone communication with the paternal grandfather each Sunday at 7.00 pm.
Specific issues
That within 28 days, the Independent Children’s Lawyer shall provide a copy of these Orders and Reasons for Judgment to:
(a) The Director of Centrelink;
(b) The Secretary, Department of Family and Community Services; and
(c) NSW Police.
That the parties and each of them are hereby restrained from verbally abusing, harassing, belittling and denigrating the other parties, their family and members of their respective households to, and within the hearing of, the children and either of them.
IT IS NOTED that publication of this judgment under the pseudonym Kavanagh & Power is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3266 of 2013
| Ms Kavanagh |
Applicant
And
| Mr Power |
First Respondent
And
| Mr A Power & Ms B Power |
Second Respondents
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These were contested proceedings for parenting orders in relation to two children; C, just turned 15 years and D, just turning 12 years.
The applicant is the mother, aged 33. She has lived and worked in E Town in the central west area of New South Wales since March 2015. Her household consists of herself and D. The mother is an Aboriginal woman of the F people.
The first respondent is the father. He is 32 years old and a tradesman by occupation. He probably lives on the Central Coast of New South Wales. His current circumstances are not known to the Court as he ceased participating in this litigation in 2014.
The second respondents are the paternal grandparents, who live and work in G Town, a town in the central west of New South Wales. They are both aged in their mid-late fifties.
The paternal grandparents were joined as parties to the proceedings in
July 2014.
The paternal grandmother has attended at court in person, and more recently by telephone for court events, but the paternal grandparents both chose not to appear at this final hearing.
Accordingly, the matter proceeded undefended by any of the respondents.
The most difficult aspect of this hearing is that C has not been consistently living with either of her parents or her grandparents for almost 2 years. Her whereabouts at the time of hearing, as has been the case on many occasions, was unknown to the mother.
A Family Consultant has been observing the family since February 2014. His summary of risk factors for C in July 2015 was as follows:
See previous Family Report dated 15 August 2014.
In addition, as a runaway, C is at extremely high risk of substance use, prostitution, sexual assault, pregnancy, physical assault and emotional abuse. [1]
[1] Child Inclusive Conference Memorandum dated 28/07/2015
Short History of Relevant Events
The mother and father began a relationship in 1998 when the mother was
16 and the father 15 years of age. Each of them was living with their respective families in E Town.
C was born in 2000. Soon after, the parents and their new baby moved to live in the home of the paternal grandparents in nearby H Town.
In 2001 the parties moved to live in Victoria for a year and then moved back to E Town.
In 2003 D was born. The parties then moved to the South Coast and then the Central Coast of New South Wales.
The parties struggled as parents and in their relationship, with issues of drug and alcohol abuse by the father and mutual accusations of infidelity.
In 2009/2010 the mother reported depression and was prescribed medication which she did not always take.
In March 2011 the mother was taken by ambulance to hospital and over the following weeks the mother continued to express feelings of depression and suicidal thoughts.
Separation
In May 2011 the parties separated and they both remained living on the Central Coast. The children lived with the mother and spent time with the father at weekends and for holidays by arrangement. Both parties contemplated reconciliation.
In August 2011 the father began an association with a childhood friend of the mother, although that fact was not known to the mother.
Mother moves away
In January 2012 the mother moved with the children from the Central Coast to I Town in western New South Wales. The children were enrolled at school there.
In March 2012 the father’s companion became pregnant to him.
In May 2012 the parties and children all spent holiday time together and thereafter remained in communication.
In September 2012 the mother, hopeful of reconciliation, contemplated a move back to the Central Coast.
In mid-December 2012 the mother learned, through a Facebook post, of the relationship between the father and her former friend. She also learned that their twin girls were just born. The mother reacted with anger and distress. There was what the Family Consultant described as an “an instant and dramatic collapse in the co-parenting relationship”.[2]
[2] Family Report dated 15/08/2014, par 11
D was bitterly disappointed that the possibility of his parents reconciling was over. The children ceased spending time with the father and communicating with him. The mother thereafter did not speak directly to the father. Significantly, all subsequent communication between the parents was through C.
Mother moves to J Town
In 2013 the mother moved the relatively short distance from I Town, a small town without a High School, to J Town. C commenced High School in J Town and D changed to a local primary school.
In mid-2013 the mother commenced full-time work as an administrative officer.
C begins truanting and running away
C began truanting and misbehaving at school. She also began running away from the mother’s home.
In the second half of 2013 the father began a new relationship.
In September 2013 the father travelled to J Town to spend time with C at her request, but without the mother’s knowledge.
In October 2013 C ran away from the mother. She again contacted the father, told him she had run away, and again asked him to come and see her.
Fight between the father and the maternal uncle
On 25 October 2013 the father arrived at the mother’s home in J Town. The mother experienced his arrival as an unwelcome surprise and was probably offended by his demand to see the children.
There was a verbal argument between the parties and a physical confrontation between the father and the maternal uncle. Police were called. An interim Apprehended Violence Order was taken out for the protection of the mother and the maternal uncle. The father was charged for assaulting the uncle and he was later convicted of the offence of assault.
In early November 2013 C returned to school after a period of suspension. Two days later, the mother received a message that C had left the school with friends.
C goes to live with father
The mother reported C missing to police. In fact C had, by arrangement with the father, gone to his home on the Central Coast of New South Wales. This was a journey of about 360 kilometres, four hours by car or five hours by train. C was then just over 13 years old.
The father took C to the police station for assessment. C said she wished to remain living with the father. The parents did not agree on that course of action. However C did remain living with the father for a few weeks.
On 13 November 2013 the mother was contacted by a high school on the Central Coast advising that C was to be enrolled there.
Family Law proceedings commence
On 18 November 2013 the mother filed her first application for parenting orders in respect of C and also D. That application was made to K Town Local Court.
On 20 December 2013 the father filed a Response in L Town Local Court and on that day, interim Orders were made by consent:
a)That C live with the mother;
b)That the parties have equal shared parental responsibility;
c)That there be defined time for C and the father; and
d)That the matter be transferred to the Family Court at Newcastle.
In accordance with the Orders, C returned to live with the mother and D, but the pattern of truanting, misbehaving and running away resumed.
On 24 December 2013 the matter came before a Registrar of this Court and an assessment of the parties and children was ordered.
In January 2014 a subpoena was issued on behalf of the father, compelling C to give evidence as a witness for him in the criminal proceedings relating to his assault on the maternal uncle.
Children and Parents Issues Assessment (“CAPIA”)
On 14 February 2014 a CAPIA was produced by the Family Consultant.
The Family Consultant reported on the failure of communication between the parties; the mother refusing to communicate directly with the father and expressing a preference for no communication at all because “he [the father] doesn’t prioritise the children properly (and therefore the children should not communicate with him)”.[3]
[3] CAPIA dated 14/02/2014, par 32
The father was observed to have a “relatively unsophisticated understanding of the developmental and emotional needs of the children”.[4] He expressed interest in D’s school progress but had not contacted the school because “no-one has told me which school he goes to”. He had purchased several expensive gifts for C but not for D, with the explanation that “[D] can get presents when we see him”.
[4] CAPIA dated 14/02/2014, par 35
C expressed a clear, strong view that she wanted to live predominantly with the father.
D presented as an anxious child, protective of the mother, over exposed to the detail of the parents’ separation and expressing a clear, strong view that he did not want to communicate with the father at all.
At that time, C was observed to have significant relationships with each of the parents and with D and a positive relationship with extended family, including both grandmothers.
That assessment reflected that the parents’ failure to communicate directly with each other had adversely affected the children. C had demonstrated a propensity to “lie and deceive to achieve what she wants” and had more power over events than she could manage. D was estranged from the father and aligned with the mother and appeared psychologically fragile and vulnerable.
Events following the CAPIA
On 19 February 2014, within days of that CAPIA being completed, C ran away from the mother’s care and went to stay with a friend. C truanted from school and was returned by the police.
On 20 February 2014 the father received a text message from C, telling him that the mother had “kicked her out of the family” and that she was staying in the home of her boyfriend. The father arranged to meet C in J Town. The police met the father and C there. C returned with the father to the Central Coast without reference to the mother.
The Family Consultant presciently says this in the CAPIA:[5]
[The mother’s] attempts to protect the children from what she sees as inadequate parenting may have come at a very high price.
[5] CAPIA dated 14/02/2014, par 33
On 3 March 2014 the mother received a telephone call from C asking to be picked up from the father’s home after an argument between them. C had not wanted to go to school and the father had refused to let her stay home. The police were notified. They collected C from the father’s home. The mother collected C that afternoon and thereafter she was in the mother’s care.
On that day, the father filed an Application in a Case for C to come to live with him and spend time with the mother in accordance with C’s own wishes.
By 14 March 2014 C was deceiving the mother about her whereabouts and openly defying her about living at home and complying with any directions. By this stage C was undoubtedly aware that she could disregard what her parents said, knowing that each parent would blame the other for the outcome.
On 21 March 2014 C did not return home after school. Two days later she absconded again, catching the train to the father’s home on the Central Coast. The police conducted a welfare check noting that C appeared well.
On 24 March 2014 the mother filed a Response to an Application in a Case seeking sole parental responsibility for the children, that they live with her, that C spend supervised time with the father in accordance with her wishes (with the supervisor to be the paternal grandmother), and that D spend no time with the father.
Thus, both parents had made applications to the Court for residence of C with them and for time with the other parent to be according to her wishes.
Neither parent would speak to the other and the father would not take a firm line by insisting that C remain in the mother’s care until his application had been dealt with. The father said he wanted to have direct communication with the mother but could not because she refused and there was an Apprehended Violence Order requiring him to stay away from her.
Interim consent orders
On 27 March 2014 interim consent Orders made by me provided that the children live with the mother and spend time with the father in in a defined way. Order 5 is significant, it provides that:
In the event that [C] attends the father’s residence at a time other than provided for in Order 3, the father immediately contact the mother and inform her of [C’s] whereabouts and make arrangements for the mother to collect her.
Provision was made for the Orders to be provided to the children’s school and the treating psychologist who was proposed. A Family Report was ordered.
On 19 April 2014, pursuant to those Orders, C returned to live with the mother.
Six days later on 27 April 2014 there was an argument between C and the mother about C’s then boyfriend. C ran away from home and stayed with friends in the local area.
C lives with neither parent
On 1 May 2014 C again absconded and again caught the train from J Town to the Central Coast. Although it was not known to the mother for a long time after, C had gone to stay with the father’s former partner, the mother of his twin daughters. Those children were at that time about 18 months old.
C remained in that home for several months and did not attend school at all. The father’s former partner apparently attempted to enrol her at school but without court orders was unable to do so. There is no evidence before me about the extent to which the father was involved in these arrangements, but he probably knew that C was living with his former partner and their children.
On 5 May 2014 C gave evidence in the Local Court on behalf of the father in relation to the assault charge.
The father was convicted of assault on the maternal uncle. An Apprehended Violence Order was made for the protection of the maternal uncle against the father for 12 months.
On 15 May 2014 the father’s legal representative was granted leave to withdraw from the proceedings. The father was not present at Court and was unable to be contacted by telephone on more than one known number.
At that time, the Court noted that C was not currently living with any family member but apparently with a former partner of the father, that she was not attending school, and that the school she had most recently attended on the Central Coast advised that they could not re-enrol her without an order of the court because of a pattern of absconding. It was further noted that C, then aged 13, had at times been living with a person described as her boyfriend.
First request for intervention by the Department of Family and Community Services (“the Department”)
On 15 May 2014, a request was made for the Department to intervene.
On 4 June 2014 C and the Independent Children’s Lawyer met with the home school liaison officer on the Central Coast.
On 10 June 2014 the Court noted that a compulsory schooling order was discussed in the meeting with the home school liaison officer. There is no evidence of such an order being implemented.
On 12 June 2014 the Department advised the Court that it would not intervene.
In late June 2014 there was an argument between C, the father and his former partner (with whom C had been living). C left that home and began living with the father. The mother became aware of that arrangement and was dissatisfied.
C lives with the paternal grandparents
There was then an agreement between the parents that C would live with the paternal grandparents on an interim basis at their home/work place in G Town.
On 2 July 2014 the paternal grandparents were joined to the proceedings and pending further order, were given parental responsibility in respect of C’s education, including enrolment at school.
On 4 July 2014 the Independent Children’s Lawyer requested the father to attend for urinalysis and he did not.
On 15 July 2014 C commenced at G Town High School, nearby to the paternal grandparents’ home.
Family Report
On 6 August 2014 interviews for the Family Report took place and the report was released two weeks later.
The recommendations of the Family Consultant were:[6]
a)Equal shared parental responsibility;
b)For D to live mainly with the mother and spend defined time with the father; and
c)For C to live with the paternal grandparents and then, commencing in 2015, with one of her parents, after an intense focus on school attendance for the balance of 2014.
[6] Family Report dated 15/08/2014, pars 103-112
C leaves the home of the paternal grandparents
On 3 September 2014 trial directions were made for a hearing in January 2015. At that time the Court noted that C had left the home of the paternal grandparents and was staying with the father on the Central Coast and that the father had undertaken to ensure her return to school in G Town by 5 September 2014. There was also a notation that the paternal grandparents had agreed to let the mother know when C left their care.
On 11 December 2014 the parties and the Independent Children’s Lawyer attended at a Legal Aid Family Law Conference. The matter was not entirely resolved but the parties apparently reached an agreement on some issues. Significantly there was a general agreement that the family would care for C and that she would spend time in defined ways with each of the parents and D.
On that same day C left the home of the paternal grandparents to stay with her boyfriend and refused to return. Police were contacted. The paternal grandmother contacted the mother and arranged for her to collect C.
From Christmas Day until 30 December 2014, C stayed with the mother and D. She then left without notice.
On 22 January 2015 the mother filed an Amended Initiating Application proposing orders including relocation of the children’s residence to E Town, for her to have sole parental responsibility for both children, for both children to live with her and for defined time between the children and the father and the paternal grandparents.
In her Amended Application, the mother sought that the court note that in the event that C left the mother’s home without permission or persistently truanted, that she would be enrolled in a boarding school, nominated by the mother, with the costs to be borne equally between the mother and the father.
The father and the paternal grandparents did not file affidavits and on
23 January 2015 the Independent Children’s Lawyer foreshadowed an application for the matter to proceed undefended.
Mother returns to live in E Town
On 13 March 2015 the mother moved with D to live in E Town
The matter was then listed for a three day hearing, due to commence on
11 May 2015.
A further Legal Aid Conference was organised and the hearing was adjourned to September 2015 undefended.
Second request for intervention by the Department
On 1 May 2015 C’s file with the Department was closed.
On 21 May 2015 the Court made a further request for the Department to intervene.
On that day the mother and the Independent Children’s Lawyer had no knowledge of C’s whereabouts.
On 15 June 2015 the Court was advised by the Department that a decision had been taken not to intervene and there was no current intention of commencing any investigation regarding C. The Department was also unaware of her whereabouts.
Child Inclusive Conference Memorandum
On 17 July 2015 an Order was made for a Child Inclusive Conference to take place for C alone to attend on 28 July 2015. The maternal grandmother indicated that C would attend.
On 28 July 2015 C failed to attend.
Mother applies for recovery order for C
Subsequently, the mother made an application for a recovery order for C.
On 30 July 2015 that application was dismissed and Reasons were given. A copy of those brief reasons was provided to the Department.
On 14 September 2015 the matter proceeded to conclusion.
Evidence
The documents read in respect of the application were as follows:
(a)Amended Initiating Application filed 22/01/2015;
(b)Mother’s affidavit filed 02/02/2015;
(c)Affidavit of the maternal grandmother filed 27/01/2015;
(d)Affidavit of Ms M, psychologist, filed 11/09/2015;
(e)Father’s Response filed 20/12/2013;
(f)Father’s affidavit filed 03/03/2014;
(g)CAPIA dated 14/02/2014;
(h)Family Report dated 15/08/2014; and
(i)Child Inclusive Conference Memorandum dated 28/07/2015.
Oral Evidence
The Mother
The mother provided some updating evidence-in-chief and was cross examined by Counsel for the Independent Children’s Lawyer.
The mother returned to live in E Town in March 2015. Her mother, aunts, uncles, cousins and twin brother all live in that town and the mother is seeking to draw on their assistance.
The mother had had recent telephone contact with C who had rung to tell her that she wanted to travel to E Town to watch D play football in the grand final. She nominated the weekend that she would be arriving and the mother confirmed that that would be acceptable and good. C also had a conversation with D.
C did not arrive for the arranged weekend or at all. This was the second time that C had rung the mother to make arrangements without following through.
My impression is that C is wary and cautious in her telephone contact with the mother about giving information relating to where she lives or who she lives with.
The mother had seen C in May 2015, briefly, at the motel run by the paternal grandparents and on one other occasion.
The mother has done everything she can think of, both in these proceedings and in her dealings with C and the extended family, to bring her home to live with her.
However I accept the submission of the Independent Children’s Lawyer that events of the last two years have created a painfully difficult relationship between C and the mother.
The risks to C, obvious to the mother and clearly identified by the Family Consultant, were not at all obvious to the 13 year old whose catchphrase, in relation to the mother, is “she can’t tell me what to do”.
The mother does not have anything in place by way of a plan for therapeutic intervention or a plan implemented through the school counsellor and/or principal of the school which C would attend.
To have what the Independent Children’s Lawyer described as the “hard conversations” with C with regards to mechanisms for ensuring compliance has to be seen in context. To be fair, C has had a very successful history of ringing the father or the paternal grandparents and arranging to leave the mother’s household, supported both emotionally and financially by one or more members of the paternal family to do just that.
It appears that the mother has not forced the issue with C about her truanting behaviour, boyfriends and running away for fear of losing her entirely.
It may well be that C returns to live with the mother at least from time to time once these proceedings are concluded. C is probably satisfied that she is able to live where she pleases and spend time with her parents as she chooses, without the possibility of intervention by courts or police.
C has already suffered significant losses that she may well be still oblivious to at this stage. She has had more than one “boyfriend”. She has not attended school consistently for the last two years and probably not at all in 2015. Accordingly, she has no skills and training for employment. She may be receiving financial support from the paternal family, and she may be receiving a Newstart allowance, but the risk is that she will be vulnerable to the control and abuse of third parties if she is financially unsupported.
Understandably, on behalf of the mother, it was submitted that C is at extremely high risk. I agree she is. It was submitted that the Court should take “extreme action to protect the girl”; that is, to force her to return home by way of recovery order. It was also submitted for the mother that she now had the support of the maternal family in E Town and that she was ready for a hostile response from C.
The difficulty with these submissions is that C’s history suggests that she would run away, contact the father or paternal grandparents for financial support and accommodation, turn to third parties unknown to the family for financial support and accommodation, and absent herself without information as to her whereabouts whenever she thought there was a risk of being brought into the control of the mother.
C clearly loves both of her parents and does not fear them. She is also close to D and has repeatedly expressed a wish to spend time with him. She speaks to him on the telephone when she can.
The central difficulty with the mother’s application is that she and the father do not work together. C has been the conduit for communication between them for almost three years. C turned that to her advantage, tapping into support from the father whenever she was at odds with the mother.
The mother has taken a resolute stand that the father is an inadequate parent and that the children have needed protection from him by not seeing him.
The consequence has been that D has rejected the father and maintained loyal support of the mother. C has maintained her relationship with both parents, but accepts guidance and direction from neither of them.
An order for C to live with the mother would almost certainly be undermined by the support of third parties for C not living with the mother. Contravention applications and applications for recovery orders cannot cure the damage that has been done by C being empowered by her parents’ refusal to cooperate together as her parents.
The maternal grandmother
The maternal grandmother was not required for cross examination.
She has a deep commitment to employment for all young people, particularly aboriginal students, and most particularly her own grandchildren, “I could write a book on the importance of an aboriginal child to be educated”.
The maternal grandmother is of course correct when she said in her affidavit that if boundaries and rules were not put in place for C, she would continue to manipulate the adults in her life so that she can do whatever it is that C pleases.[7]
[7] Affidavit of the maternal grandmother filed 27/01/2015, par 15
It is also undeniably true that had the father, the paternal grandparents, the mother, and indeed the maternal grandmother come together to form a united front, C could have been living at home with the mother and D and spending regular time with the father and paternal grandparents to her great advantage. However, that is not what has happened and there is no evidence before me to suggest that it will in future; quite the contrary.
I have no doubt that the maternal grandmother would offer every support and encouragement to the mother and to C in her education and in her life if she returned to live with the mother.
Ms M, psychologist
Ms M is a senior psychologist at Centre Care N Town. She provided a report in relation to D. She was not required for cross examination.
Ms M’s observations support the conclusion that D is still very strongly aligned with the mother: [8]
… He repeated that he really did not want to see his father, still feels he would rather kill himself than see his father - that he was really scared of him and hopes that the Court will not make him when the Final Court orders happen in September.
[8] Affidavit of Ms M filed 11/09/2015 (Report dated 20/07/2015)
D is reported as missing C, “I really miss her and worry about her”.
He is otherwise reported to be behaving well at home and at school. He is involved in sports such as archery, futsal, and football. He is described by his principal as working well and producing good quality work.
D is described as being disappointed or upset with the paternal grandparents, who he perceives have not looked after C and kept her safe. However he has enjoyed a good relationship with the paternal grandparents, particularly the paternal grandfather and with time, commencing with telephone contact, he may be able to restore that relationship as a matter independent of difficulties around C.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Both children do have a meaningful relationship with the mother who has provided the majority of their care in their lives.
C has been defying the mother, but has maintained contact which she clearly wishes to continue, on her own terms.
D does not presently enjoy a meaningful relationship with the father. He expresses fear of him and some hurt and resentment about what he perceives as favouritism towards C, at least in the past.
The evidence supports the conclusion that the father loves both the children, but does not understand his obligations as their parent to consider their needs and not simply to react to events.
The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
C makes contact with her parents, spends time with them and lives with them as she chooses, as she does with the paternal grandparents. It is a profoundly unsatisfactory situation and she is a young person at risk. The chances that she is presently exposed to abuse are high, given that she is living with neither parent nor with any family member.
D is well protected and is not exposed to physical or psychological harm from abuse and/or neglect.
Both children observed the fight between the father and maternal uncle. C had the damaging experience of being compelled to give evidence in support of the father against the maternal uncle arising from that incident.
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
In August 2014 C was describing a difficult relationship with the mother, “she advised that they argued a lot and that she ran away a lot”.[9] She stated that she could no longer live with the father because he had tested positive for marijuana. At that time, C was positive about living with the paternal grandparents but not long after those views were expressed, C left the home of the paternal grandparents and has not returned.
[9] Family Report dated 15/08/2015, par 69
C’s growing up years have been blighted by the impact of the separation of her parents and their inability to focus on the children as a result of post separation events.
D is expressing a very negative view about the father and was shocked at the Family Consultant raising the possibility of contact between them. D’s statements about the father’s drug use, drinking, violence, and a failed drug test are all a reflection of just how much D has been involved by the mother in the adult issues raised in these proceedings.
Of considerable concern is D’s statement that although he had a good relationship with the maternal grandmother, if there was to be an argument between the mother and the maternal grandmother, he would simply stop communicating with the maternal grandmother and no longer see her, so as to not to risk the mother having any further argument.
D has suffered considerable loss. He has lost the relationship with the father; his sister has moved out of his life and maintained sporadic contact; he has lost the relationship with the paternal grandparents, although appears to be quietly hopeful of restoring it. He has no knowledge of his young twin half-sisters and his loyalty to the mother has put it out of the question for him to develop such a relationship.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
Until separation in May 2011 the children had a close relationship with both of their parents and other extended family members, depending on where they were living at any particular time.
The fact that D in particular was very disappointed that his parents did not reconcile speaks of the strength of the family prior to separation.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
Both the parents have been committed to making decisions about long term issues about the children.
Both have wanted to have the children live with them, spend time and communicate with them. Neither has understood the difficulties created for the children by the fact that the parents do not communicate with each other.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother is working and providing for D, and did so for C when she was a member of the household.
The father has provided accommodation for C when she has stayed with him. Both he and the paternal grandparents have at times provided her with money, access to a phone and the costs of travel.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The circumstances of C are beyond what a Court alone can do by way of order, to improve.
D’s circumstances are positive in terms of his day to day care. It would be a great benefit for D to repair his relationship with the father and to be able to have regular contact with C if that could be facilitated.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties do live some hours apart. The mother lives in the central west of New South Wales; the father probably on the Central Coast. However, the time and cost of travel is not an issue in these circumstances.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The father responded to C’s request for help by travelling from the Central Coast to J Town on at least two occasions. He was rightly concerned that she had run away from the mother and was truanting from school.
He dealt with her directly and he had to; the mother had ruled out communication with him after December 2012. However, he did not meet the child’s emotional needs by doing so. She needed to know that both her parents were aware of what she was saying and doing and would unite to ensure her safety, her education and happiness.
The father appeared to be oblivious to the impact on D of his focus on coming to see C, taking C home with him and providing both gifts and financial support for her, with nothing for him.
I accept that the father did not intend to hurt or insult D, but that has been the outcome.
The mother has the capacity to meet the needs of the children. Her personal reaction to learning that the father had formed a relationship with an old friend of hers and that children were born of that relationship has affected events ever since. She has not spoken to the father willingly for three years. She has been unable to set aside her legitimate reasons for feeling critical of the father and betrayed by him. She has missed focusing on the independent relationship of the two children with the father.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
C has just turned 15. She has been living with different family members, with friends and unknown third parties for the best part of two years. She was far too young to do so and her health, safety and future are all at risk.
D has just turned 12. He is anxious and protective of the mother and angry and frightened about the father. It appears school has become a sanctuary for him. He does well academically and is involved in a range of sports that he enjoys.
If the child is an Aboriginal child or a Torres Strait Islander child
Both the children are aboriginal children.
The mother is an aboriginal woman from the central west region of New South Wale and has extensive connections with land and culture there. She has involved the children in NAIDOC celebrations.
She gave evidence that she did not think the father would be supportive for the children in enjoying their aboriginal culture.
It is important for both children that they understand and identify with their aboriginal maternal family and tap into the love and support that is clearly on offer there.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
Both the parents were very young when they met and formed a relationship, only in their mid-teens. C was born before either parent had fully grown up.
They were able to maintain a relationship for 13 years from 1998 to May 2011. Perhaps because they grew up together the loss of the relationship has so adversely affected the children.
Any family violence involving the child or a member of the child’s family, and 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
There has been a family violence order in place, now expired, for the protection of the mother and the maternal uncle against the father.
C gave evidence in the criminal trial which saw the father convicted for an assault on the maternal uncle. Such a painful division of loyalties must have hurt C although there is no direct evidence before me about that.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The Independent Children’s Lawyer submitted that no order about parental responsibility should be made for C. The reasons for that submission were that when C inevitably comes to the attention of authorities again, it would be best if both parents had all of the rights and responsibilities of parenthood in order to deal with whatever the situation was.
There is force in that submission, however, the parents have agreed in the past that C should live with the mother, as have the paternal grandparents. The father was content for the mother to take responsibility for the care of the children post separation. The father has not complied with drug testing and the police have noted the extent of evidence of alcohol consumption by the father after home visits.
Accordingly, the safer course, it appeared to me, is to make an order for sole responsibility for the mother with orders providing for the mother to advise the father of relevant events and for the father to advise authorities of the orders in the event that C chooses to live with the mother again and the mother permits C to do that. It will be important for the mother to have authority to make decisions about C’s education, health and employment without restriction.
The evidence does not support any confidence that the parents will be able to communicate in future to a greater extent than they have done for the past three years.
Any other fact or circumstance that the court thinks is relevant
As stated, C is a young person at risk.
The Department have closed the file but have a history for C.
A copy of these Orders and Reasons for Judgment should be provided to the Department as circumstances for C may change even more adversely at any time.
Conclusion
I conclude that the mother will always be willing to cooperate with the Department and to provide care and supervision for C if given the opportunity to do so.
It is also likely that C will come to the attention of police in future and for that reason a copy of these Orders and Reasons for Judgment should also be supplied to the police.
C has two loving parents who have never abandoned her. They have simply been unable to meet her needs for boundaries and discipline together.
For all these reasons, I make Orders for both children accordingly.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 October 2015.
Associate:
Date: 21 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Procedural Fairness
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