Klim and Fontane & Anor

[2009] FamCA 135

FAMILY COURT OF AUSTRALIA

KLIM & FONTANE AND ANOR [2009] FamCA 135

FAMILY LAW - CHILDREN - with whom a child lives - the children to live with the applicant paternal grandmother

FAMILY LAW - CHILDREN - With whom a child spends time - children to spend time with the father as agreed by the father and the paternal grandmother - children to spend time with the mother on the first weekend of each calendar month

FAMILY LAW - CHILDREN - Parental Responsibility - paternal grandmother to have sole parental responsibility for the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C(1), 61DA, 61DB, 64A, 65DA, 65DAA, 67N

Goode and Goode (2006) FLC 93-286

APPLICANT GRANDMOTHER: Ms Klim

FIRST RESPONDENT MOTHER: Ms Fontane

SECOND RESPONDENT FATHER: Mr Dale

INDEPENDENT CHILDREN’S LAWYER: Mr Marks

FILE NUMBER: (P)NCF 949 of 2005

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 14 November 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hannaway Lawyers

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marks

Orders

1. That the children Q born … September 1998 and M born … October 2001 shall live with the Applicant Paternal Grandmother.

2. That the Applicant Paternal Grandmother shall have sole parental responsibility or the said children.

3. That the children shall spend time with the Father at all reasonable times and in such circumstances as may be agreed between the Applicant Paternal Grandmother and the Father.

4. That the Applicant Paternal Grandmother shall not make the children available to spend time with the Father if he has been drinking alcohol.

5. That the Father shall communicate with the children at all reasonable times and in such circumstances as may be agreed between the Applicant Paternal Grandmother and the Father.

6. That the children shall spend time with the Mother on the first weekend in each calendar month from 10.00 am to 4.00 pm on each of the Saturday and Sunday of such weekend provided always that if the Mother is accommodating herself and the children at the home of her Uncle D Fontane on such weekends, the time the children spend with the Mother on such weekends shall commence at 10.00 am Saturday and conclude 4.00 pm Sunday.

7. That the Mother shall communicate by telephone with the children at all reasonable times, but not earlier than 8.30 am and not later than 7.00 pm, and not more frequently than three times in each seven day period (such period to be measured from each Sunday to the Saturday immediately following), and to give effect to such communication:

   (a)the Applicant Paternal Grandmother shall make her telephone services (both landline and mobile) available to accept such calls;  and

   (b)the Applicant Paternal Grandmother shall forthwith advise the Applicant of her current telephone service numbers (both landline and mobile) and notify the Mother of any changes thereto within 48 hours.

8. That the Mother shall communicate with the children by letter, card, package or parcel and that to give effect to such communication the Applicant Paternal Grandmother shall ensure all such letters, cards, packages or parcels addressed to either child or the children and received by the Applicant Paternal Grandmother are delivered unopened to the addressee child or children.

9. That for the purposes of giving effect to Order 7 herein, unless otherwise agreed between the Applicant Paternal Grandmother and the Mother in writing, the applicant Paternal Grandmother (or her agent known to the Mother and the children) shall deliver the children to the Mother (or her agent known to the applicant Paternal Grandmother and the children) at McDonalds Family Restaurant at K at the commencement of each period of time the children are to spend with the Mother, and the Mother (or her agent known to the Applicant Paternal Grandmother and the children) shall return the children to the Applicant Paternal Grandmother (or her agent known to the Mother and the children) at the same venue at the conclusion of each period of time the children are to spend with the Mother.

10. That the Mother shall be and is hereby restrained from consuming alcohol to excess or introducing into her bodily system any illicit or non-prescribed drugs (other than over the counter medication) whilst the said children or either of them are in her care, or in the 24 hour period immediately preceding the said children or either of them coming into her care, and the Mother is further restrained from permitting or allowing either of the said children to witness any person introducing into their bodily systems any illicit or non-prescribed drugs (other than over the counter medication), or otherwise coming into contact with any person excessively affected by alcohol or under the influence of illicit or non-prescribed drugs (other than over the counter medication).

11. That the Mother shall be and is hereby restrained from permitting or allowing either child to come into contact with Ms S or Mr R Fontane.

12. That subject to these Orders, each of the Applicant Paternal Grandmother, Mother and Father shall respectively be responsible for making those decisions concerning the day to day care welfare and development of each child when such child is in their individual care.

13. That the Applicant Paternal Grandmother shall forthwith (and in any event as soon as practicable and upon each occasion either of the children is enrolled in a school) authorise such child’s school authorities:

    13.1to record the Mother and father as persons to be notified in the event of an emergency pertaining to either of the children;  and

    13.2to provide the Mother and Father with copies of all reports, newsletters, notices and memoranda pertaining to either of the children or to events, meetings

14. That the Mother and father shall be at liberty to attend all school events, meetings or functions relating to either of the said children or in which either of the said children may be involved and which parents are ordinarily permitted to attend.

15. That each of the Applicant Paternal Grandmother and Mother shall forthwith (and in any event as soon as practicable) notify the other of any illness or injury suffered by either of the said children whilst in their respective care and requiring medical attention, or of any medical/dental examination or assessment of either of the said children whilst in their respective care, such notice to include the name, address and telephone number of the treating / examining / assessing health professional or hospital to which either of the said children has been admitted, or in which either of the said children has been treated, and shall authorise the treating/examining/assessing health professional or hospital authority to communicate directly with the other party in respect of all health/development issues pertaining to either of the said children.

16. That the Applicant Paternal Grandmother shall do all acts and things reasonably necessary to ensure each of the subject children attends his or her school on each and every school day and is otherwise only absent from school as a consequence of illness, serious injury or medical appointments or appropriate extra curricular activities.

17. That the Applicant Paternal Grandmother shall do all acts and things reasonably necessary to undertake all things reasonably necessary to ensure all recommendations of Professor O (or such other medical specialists) regarding the child Q are followed.

It is further ordered:

1. That the Applicant Paternal Grandmother shall not place the children in the Mother’s care for periods longer than provided for in Order 7 unless the Mother has provided 12 consecutive monthly urine analysis screen results for herself in which no metabolites of illicit or non-prescribed drugs are detected.

The Court Notes:

1. That the Applicant Paternal Grandmother, the Father and Independent Children’s Lawyer agree that if the Mother provide urine analysis results for the frequency referred to above they propose that she spends time with the children as follows:

   19.1on the first and fifth weekend of each school term New South Wales school calendar as gazetted from 4.00 pm Friday to 4.00 pm Sunday;  and

   19.2for one week in each of the school holiday periods at the end of Terms 1, 2 and 3 of  New South Wales school calendar as gazetted commencing 10.00 am the first Saturday immediately following the last day of term and concluding 4.00 pm the second Sunday immediately following the last day of term;  and

   19.3for two weeks during the school holiday period at the end of Term 4 in New South Wales school calendar commencing 10.00 am on 2 January and concluding 4.00 pm on 15 January immediately following.

2. In the event the Mother spends time with the children by agreement in accordance with the above Notation the Applicant Paternal Grandmother shall communicate by telephone with the children at all reasonable times, but not earlier than 8.30 am and not later than 7.00 pm and to give effect to such communication:

   20.1the Applicant Paternal Grandmother shall make her telephone services (both landline and mobile) available to accept such calls;  and

   20.2the Applicant Paternal Grandmother shall forthwith advise the Applicant of her current telephone service numbers (both landline and mobile) and notify the Mother of any changes thereto within 48 hours.

3. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. That all outstanding applications do otherwise stand dismissed.

5. That the Independent Children’s Lawyer causes a sealed copy of these orders to be served by ordinary prepaid post upon the Mother at the address contained in the Affidavit of Service sworn by CW and thereafter files an affidavit of compliance.

IT IS NOTED that publication of this judgment under the pseudonym Klim & Fontane and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  (P)NCF 949 of 2005

MS KLIM

Applicant

And

MS FONTANE

First Respondent

And

MR DALE

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction 

1. These are parenting proceedings in relation to Q, born in September 1998 and M, born in October 2001 (“the children”).

2. The applicant in these proceedings is the children’s paternal grandmother Ms Klim (“the paternal grandmother”). The first respondent is the children’s mother Ms Fontane (“the mother”) and the second respondent is the children’s father Mr Dale (“the father”). The children and all the parties are of Aboriginal heritage.

3. The children have been living with the paternal grandparents since about March 2002 according to the paternal grandmother and the father, or since April 2003 according to the mother.

4. This matter was set for a one day final hearing before me on 14 November 2008. The mother did not appear at the hearing. That day final orders were made with the paternal grandmother and father’s consent and on an undefended basis vis-à-vis the mother.  Those orders are set out above. In summary, the orders provide for the children to live with the paternal grandmother, spend time with the father as agreed between the paternal grandmother and the father, and spend time with the mother on the first weekend of each calendar month. The paternal grandmother was ordered to have sole parental responsibility for the children.

5. These are my reasons for making the above orders.

Background Facts

1. The paternal grandfather was born in July 1957.

2. The paternal grandmother was born in March 1959.

3. The mother was born in March 1977.

4. The mother and father commenced a relationship in 1997.

5. In September 1998 the child Q was born.

6. In October 2001 the child M was born.

7. The mother says that she and the father separated in 2001.

8. According to the paternal grandmother and the father, the parents separated around March 2002.

9. The paternal grandmother and the father say that after separation in March 2002, the mother asked the paternal grandmother to look after the children as she was not managing with the children. The paternal grandmother agreed and took the children into her care. Apparently the children had no contact with their mother from March 2002 until 29 September 2005 when the mother came to the paternal grandmother’s home and took the children.

10. The mother denies asking the paternal grandmother to take the children into her care and gives a different account of events. According to the mother, she and the father separated in 2001, and she cared for the children until April 2003. According to her affidavit filed on 9 November 2005, the children were living with her in M until April 2003, when the father telephoned her to ask if he could have the children for the school holidays. The mother agreed, and a short time later the paternal grandparents arrived at her home in M to pick up the children. The mother allowed the paternal grandparents to pick up the children, believing the children would be with the father for school holidays only. When the children where not returned to the mother at the end of that school holiday period, she telephoned the paternal grandmother enquiring when the children will be returned. The grandmother replied that the children would not be returned to the mother, and that they were going to live with the father.

11. The mother says that she wanted to collect the children from the father but she did not do so because she was afraid of him, as he had been violent towards her in the past.

12. According to the mother’s affidavit filed 9 November 2005, she attended mediation with the father and the paternal grandmother in 2003, and she agreed that the children should live with the father and have contact with her. The mother explains that she agreed to this because she had no advice or support during the mediation and felt unable to say what she really wanted for the children.

13. The mother says that after the children were taken away from her in 2003 she became depressed and began to consume alcohol to excess and smoke marijuana. She says she was too afraid to approach the father and his family in order to arrange contact with the children.

14. The mother says that in September 2005 she received a telephone call from her uncle’s partner Ms S advising that apparently the father had not been assisting the paternal grandmother with the care of the children, and the paternal grandmother was unable to cope with the children. The mother then went to K and asked the paternal grandmother if she could have the children for the day, to which the grandmother agreed. The mother then took the children to M.

15. On 5 October 2005 the paternal grandmother filed an Application for Final Orders at K Local Court seeking, in summary, the following orders:

    1.        That the children live with the paternal grandmother.

    2.That the parties have joint responsibility for decisions-making for the long-term care, welfare and development of the children.

    3.That the children spend time with the parents as arranged between the parties.

16. On 5 October 2005 the paternal grandmother also filed an Application in a Case seeking, in summary, the following interim parenting orders:

    1.   That the children live with the paternal grandmother.

    2.   That the paternal grandmother and the father have responsibility for decision-making for the day to day and long-term care, welfare and development of the children.

    3.   That the children spend time with the father as arranged between the father and the paternal grandmother.

    4.   That the children spend no time with the mother until further order.

    5.   That service on the mother be dispensed with.

    6.   Alternatively, that personal service of this Application and Affidavit together with a copy of the orders of the court be effected if the mother can be located.

    7.   Alternatively, that an order for substituted service on the mother’s mother at D Street in M be made.

    8. That pursuant to s 67N of the Family Law Act 1975 the Secretary of Centrelink provide to the  Registrar of the Local Court information relating to the location of the children and information about the location of the mother with whom the children are believed to be.

    9.   Recovery order for the return of the children to the grandmother’s care.

    10. That the mother registers the children’s births and file birth certificates within 42 days.

17. A recovery order was made at K Local Court on 5 October 2005, as well as orders pursuant to the grandmother’s Application in a Case filed 5 October 2005.

18. On 6 October 2005 the police arrived at the mother’s home in M and removed the children pursuant to the recovery order, and returned the children to the paternal grandmother’s care.

19. On 9 November 2005 the mother filed a Response to an Application for Final Orders seeking, in summary, the following final orders:

    1. That the children live with her.

    2.That the mother has sole responsibility for the day to day care, welfare and development of the children.

    3. That each of the parties has joint responsibility for the long term decision-making for the care, welfare and development of the children.

    4. That the paternal grandmother spends time with the children during school holidays, and on Saturdays and Sundays from 9 am to 5 pm in M during school term.

    5. That the father spends time with the children during school holidays as agreed between the paternal grandmother and the father but not earlier than 9 am and no later than 5 pm and that the father’s time with the children is supervised by either of his parents.

20. On 9 November 2005 the mother also filed a Response to an Application in a Case seeking, in summary, the following orders:

    1. That each of the parties has joint responsibility for the long term decisions-making for the care, welfare and development of the children.

    2. That the mother spends time with the children during school holidays and every second weekend during school term.

    3. That the father spends no time with the children unless one of his parents is present at all times.

21. On 16 November 2005 interim orders were made by consent in the Local Court at K that provided, in summary:

    1.        That the children to live with the paternal grandmother.

    2. That the parties have joint responsibility for decision-making for the long-term care, welfare and development of the children.

    3. That the children spend time with the father as arranged between the father and the paternal grandmother.

    4. That the children spend time with the mother every fourth weekend from 5.00 pm Friday until 5.00 pm Sunday, as well as additional time on alternate weekends provided that the mother gives the paternal grandmother at least 14 days notice of her intention to spend the additional time with the children.

    5.That the children spend time with the mother for half of term school holidays and three weeks during the Christmas school holidays.

    6.That the matter be transferred to the Family Court at Newcastle.   

22. On 28 June 2006 Registrar Dodson ordered that the children be separately represented in these proceedings.

23. On 16 August 2006 the father filed a Response to an Application for Final Orders, a Response to an Application in a Case and an affidavit, in which he supports the paternal grandmother’s application for the children to live with her.

24. On 22 January 2007 the paternal grandmother filed an Amended Application for Final Orders seeking orders for the children to live with her, spend time with the father by agreement, and spend time with the mother for half of term school holidays and three weeks during the Christmas break. She also sought orders for sole parental responsibility.

1. On 14 April 2007 Registrar Dodson made orders for the preparation of a Family Report.

2. On 1 January 2008 the paternal grandparents delivered the children to the mother for the school holidays pursuant to the 16 November 2005 orders.

3. On 23 January 2008 orders were made by me for the appointment of Dr O, Paediatric Neurologist, as the Chapter 15 Expert. Dr O was appointed to enquire into and report upon matters relating to the disability suffered by Q including:

   1.A diagnosis of the disability and the extent to which the disability impacts upon the physical and intellectual functioning of Q, including an assessment of both physical and intellectual delay.

   2.A prognosis as to whether or not Q’s physical and intellectual functioning will deteriorate over time and if so, whether or not such deterioration is predictable as to time and extent.

   3.If there are any treatments, therapies or interventions (surgical or otherwise) which may alleviate the difficulties experienced by the child and if so, the nature and availability of such treatments, therapies or interventions and when such treatments, therapies or interventions should be commenced to maximize any benefit to the child, and recommendations regarding same.

   4.Whether or not the child’s carer should administer any therapies (physical or otherwise), the nature and frequency of such therapies and the extent the carer requires training or instruction in such therapies and recommendations regarding same.

   5.Whether or not the child requires specialist education and training, the nature and availability of such specialist education and training and recommendations regarding same.

   6.Whether or not the child has specific requirements as to modifications to her home and school environment, the nature and extent of such modifications and recommendations regarding same.

4. On 25 January 2008 the paternal grandfather collected the children from the mother’s home in M.  During changeover the mother advised that Q had a temperature.  The following day the grandparents took Q to see a doctor as one of her ears was dripping with pus and she still had a temperature.  The paternal grandmother says that Q looked unwell and was crying.  The doctor sent them to K Hospital. Q was dehydrated and was sent to P Hospital for treatment.

5. Q was admitted to P Hospital on 26 January 2008 where she was treated with antibiotics intravenously for six days.  She had two perforated eardrums, a high temperature and was suffering from dehydration.  The paternal grandmother says that after the October 2007 school holidays Q came back from spending time with the mother dehydrated and had to be admitted to hospital for two nights.

6. The paternal grandmother says that M told her that while he and Q were spending time with the mother in January 2008:  “[Y] came home drunk. Mum and [Y] were arguing.  [Y] broke a glass and I cut myself.  He kicked [Q] in the ear.” Y is the mother’s brother. The paternal grandmother called the Department of Community Services.  The paternal grandparents then went to the police station and made a report.  The paternal grandmother says that both children have been very unsettled and distressed since returning home.

7. In January 2008 the paternal grandparents married.

8. On 28 February 2008 the paternal grandmother filed an Application in a Case seeking that, pending further order, the mother’s time with the children pursuant be suspended.

9. Pursuant to the orders made on 23 January 2008 Q was examined by Dr O, Paediatric Neurologist.  Dr O’s report is dated 20 March 2008.  He made the following diagnoses:

   1.        Severe intellectual handicap.

   2.Mild ataxia, probably static and consistent with a diagnosis of ataxic cerebral palsy.

   3.        Autistic features.

   4.        Chronic bilateral otitis media.

   5.Severe deafness, or at least a significant hearing loss due to chronic otitis media.

10. Dr O further noted [at page 5]:

    As the child is fully dependent on carers, on a 24 hour, 7 day weekly bases, her long term needs are quite demanding and require a major commitment to her welfare…

    Children with severe intellectual handicap and autistic features need a very stable ordered existence, with the opportunity to build up close relationships with teachers and family. Changes in their environment can be extremely disruptive to their stability and rehabilitation…

11. On 21 April 2008 the mother filed a Response to an Application in a Case seeking an order that orders made on 16 November 2005 at K Local Court not be varied or suspended.

12. In her affidavit filed 21 April 2008, the mother denied that M cut his foot in January 2008 because her brother Y broke a glass while drunk.  Instead the mother says that M cut his foot on some glass while playing football in the paddock with other children with no shoes on.  The mother also denies that her brother Y kicked Q in the head.  She says that her brother accidentally kicked Q in the leg one night while he was intoxicated, and Q was apparently not upset or hurt.

13. The mother also says that she did not notice that Q was dehydrated when the paternal grandfather picked the children up after they were spending time with her during the January 2008 school holidays. She says that Q had a temperature that day and her ears were running a bit, but she was eating and drinking regularly up until the grandfather picked her up.  With respect to the mother’s evidence the medical evidence makes it clear that during the school holidays Q’s needs were neglected.  Had she not returned to the paternal grandparents the potential consequences of this neglect was probably life threatening.

14. On 23 April 2008 orders were made by Judicial Registrar Johnston suspending the mother’s time with the children pursuant to orders made on 16 November 2005. Judicial Registrar Johnston ordered that pending further order, the children shall spend time with the mother from 10.00 am to 4.00 pm on 14, 15, 16 and 17 July 2008 with the changeover being at K McDonald’s.

15. On 6 May 2008 orders were made for the preparation of a family report.  It was ordered that the report writer investigate and report upon the following:

    1.The nature of each child’s relationship with the mother, father and paternal grandparents.

    2.Each parent’s and paternal grandparent’s attitude to one another, the extent of the parenting role (if any) each parent and paternal grandparent foresees for the other in the life of the children, and whether or not each parent and paternal grandparent is capable of encouraging and supporting the relationship between the children and the other parent and paternal grandparents, and the impact of such on the children.

    3.The views of [M] on the issue of where he should predominantly live and the time he spends with the other significant persons in his life.

    4.The capacity of each parent and paternal grandparent to identify, understand and meet the needs of [the children] having regard to the contents of the expert report by Dr [O] dated 20 March 2008.

    5.Having regard to all relevant circumstances, whether or not it is in the best interests of [the children] to live predominantly with the mother and spend periods of time with the father and paternal grandparents, or with the paternal grandparents and spend periods of time with the mother and father, and any recommendations as to the nature, frequency and duration of such periods and how such periods could best be implemented to minimise dislocation for the children and conflict between the parents and paternal grandparents.

    6.Any other matter the Family Consultant considers relevant.

16. Family Consultant Ms T prepared the family report and that report is dated 2 July 2008.

17. Ms T notes at paragraph 23 of her report:

    The applicant grandmother and the grandfather spoke well of the mother and volunteered that she loves the children very much and that the children love her as well.  They appeared genuine in laying blame firmly with substance addiction/abuse rather than the mother’s character.  They said their hope was that she was or could be in future not only unaffected by substances but that any environment she took the children to would also be free of drugs and alcohol.

18. In relation to the mother, Ms T reports at paragraphs 26 and 27:

    The mother did not seem overly hostile toward the grandparents in interview.  It was clear that she saw them as the obstruction to having the children back in her care but acknowledged that the children had always appeared well cared for.  The mother denied any current illicit drug use or that she has ever abused alcohol. She is angry that the grandparents are alleging that she uses these substances problematically.

    The mother alleges the father was violent toward her during their relationship and that police were involved on occasion.  The mother claims the father knocked her unconscious on occasion and that his violence was always worse when he was affected by alcohol.  The mother alleges she gained no support from the paternal grandmother rather the grandmother would be angry with the mother for calling the police.  The mother has some lingering anger against the grandmother in regard to this.  The mother alleges to know that the father is violent to his new partner currently which will be of concern if this is true and if the children spend time with the father and his new partner.

19. In relation to the last issue Ms T was asked to comment on, namely whether the children should live with the grandmother and spend time with the mother and father, or live with the mother and spend time with the grandmother and the father, Ms T comments at paragraphs 34 to 36:

    [The children] have been cared for in the main by the paternal grandparents for the last six years.  [M] understandably views them as his primary carers and speaks of a close and trusting bond with them.  It would seem that the children are well cared for in the grandparents’ care and that the grandparents are appropriately protective of both children but particularly of [Q] who due to her severe level of delay and physical dysfunction is a highly vulnerable child to physical and sexual risk.

    It does not appear that the mother has had a relationship with the children’s school which is particularly important in view of [Q’s] special needs.

    It would appear that the mother has in the past and possibly continues to have a problem with substance abuse, which unfortunately has led her to abrogate her parental responsibilities for the children over a long period of time.  It would appear the father has done the same.  There does not appear to be any sound reason to remove the children from the grandparents’ care and place them in the care of the mother.

20. Ms T’s observations largely accord with my own and I give her evidence significant weight.

21. On 8 August 2008 orders were made that the matter be listed for final hearing at 10.00 am on 14 November 2008.  It was also ordered that unless the mother files and serves a Notice of Address for Service within 14 days, her Response will be struck out for want of prosecution and the grandmother’s Application and the father’s Response will proceed for hearing as listed but on an undefended basis vis-à-vis the mother.

22. On 11 September 2008 the paternal grandmother filed an Amended Application for Final Orders seeking, in summary, the following orders:

    1.        That the children live with the grandmother.

    2.        That the grandmother have sole parental responsibility for the children.

    3. That the children spend time and communicate with the father as arranged between the father and the grandmother.

    4. That the children spend time and communicate with the mother on the first weekend of each month from 10.00 am until 4.00 pm on the Saturday and the Sunday or as agreed between the parties in writing, and by telephone each Wednesday at 6.00 pm.

    5.That the mother shall not allow the children to come into contact with Ms S or Mr R Fontane.

    5.That the mother shall not consume alcohol or illicit substances during or 12 hours prior to having the care of the children.

23. On 11 November 2008 Professor G evaluated Q’s cochlear and brainstem auditory function using electrocochleography and brainstem testing during general anaesthesia at the Day Surgery Centre at the Children’s Hospital at Westmead. Professor G reported (exhibit “B”) that Q has a moderate hearing loss in the left ear and a mild to moderate hearing loss in the right ear.  Professor G felt that a hearing aid would be of benefit to Q. He raised the possibility of tympanoplasty on her left ear to prevent future infection but the chances of success of such surgery are only about 50 percent and would require a series of appointments and additional surgery.  He recommended that Q have her sinuses evaluated.

24. On 14 November 2008 the final hearing took place.  The mother did not appear at the hearing.  In his affidavit filed in Court on behalf of the grandmother, the grandmother’s solicitor detailed the steps he took to serve the mother with documents.  Indeed it is worth noting that the Court, Independent Children’s Lawyer and the parties have all gone to considerable lengths to try and encourage the mother’s participation in the proceedings as well as takes steps to address her drug and alcohol abuse. 

25. The grandmother’s solicitors had been attempting to serve the current set of documents on the mother since 17 September 2008.  Because of her frequent changes of address and desire to not participate in the proceedings this was fraught with difficulty.  On 13 November 2008 the Sheriff in M finally managed to serve the mother with an Amended Application for Final Orders, affidavits of the paternal grandmother and grandfather both sworn on 4 September 2008 and a copy of the orders made by this Court on 8 August 2008.  The mother signed an Acknowledgment of Service.  I am satisfied that the mother was served with the above documents and that she was aware that the final hearing was listed for 14 November 2008. She chose not to appear at the hearing nor contact anyone in relation to the hearing.  Hence the hearing proceeded on an undefended basis qua the mother. 

Family violence

1. The mother alleges that the father was violent towards her during their relationship.  She also says that she was fearful of the father.

2. The father denies being violent towards the mother.  However during cross-examination he agreed with his mother’s evidence that when he is drunk he often verbally abusive and can be physically aggressive.  The mother behaves similarly.  

3. In her affidavit filed on 29 March 2007 the grandmother says that she is aware that the father has been in trouble with the police.  However he has never been violent to her or the children, and she does not believe that he is a risk to the children.  During her oral evidence she explained that the father cooperates with her anti abuse stance and knows that if he is affected by drugs or alcohol he is unwelcome.  He behaves accordingly.  The paternal grandfather takes an equally strong anti abuse and violence stance.  Compared to the parents the paternal grandparents are superior role models and safer for the children to be with.

Substance Abuse

1. The father and paternal grandmother say that the mother has had drug and alcohol issues in the past. The father says the mother used to use marijuana and amphetamines. He says he has observed her intoxicated with alcohol, smoking marijuana and taking amphetamines.

2. The mother admits to abusing alcohol and smoking marijuana in the past but claims that she is no longer using drugs or drinking to excess.  She says she has not used any drugs since early 2005.  She admits to having an occasional social drink but says she does not drink to excess.  She denies ever using amphetamines.  The totality of the evidence persuades me that the mother continues to abuse alcohol and that substance abuse seriously compromises her parenting capacity.

3. Although the father drinks less often these days, he has long term drug and alcohol difficulties. He acknowledges that substance abuse seriously compromises his parenting capacity.

4. When sober both parents are capable of being warm and loving with the children.

The parties’ circumstances

1. The paternal grandmother will be turning 50 years of age in March of this year. She is in good health.  The paternal grandfather is also in good health.  The paternal grandparents have been together for over 30 years.  There is no evidence of family violence in the grandparents’ home, or any evidence to suggest that the children are other than safe with their grandparents.

2. The father is living with his current partner Ms I.  They have a child together.  The father and Ms I are living together with their child and Ms I’s three children from another relationship.  The father supports the grandmother’s application.

3. According to the grandmother’s affidavit filed 29 March 2007 the father sees the children almost every day.  When he is sober she describes him as a good father.   Because he is aggressive when drunk she does not permit him to spend time with the children.  Presently she is concerned that the father has reduced his contact with the children.  M in particular is saddened that his father does not appear to be making the effort to maintain contact.  During cross examination the father said he appreciated the need to make more of an effort. 

4. The mother leads a disorganised life.  She has a history of alcohol and drug abuse, as well as depression.  The mother has ceased to prosecute her case.  Her solicitors withdrew from the proceedings when they were unable to get instructions from her.

5. Before the mother’s time with the children pursuant to the 16 November 2005 orders was suspended by Judicial Registrar Johnston in April 2008, the mother was not spending time with the children pursuant to those orders.  She would usually only see the children during the Christmas break.  The mother says she has found it difficult to spend time with the children because the distance between her home and the paternal grandparents’ home is so significant. According to the mother, the homes are over 500 kilometres apart.  The paternal grandmother says that the distance between the paternal grandparents’ home and the mother’s home is between 600 and 700 kilometres away or about eight hours drive.  Either way the distance between the two homes is significant and has proved to be a major obstacle to the mother spending time with the children.  The mother’s limited financial resources and difficulty in obtaining a motor vehicle have also made spending time with the children problematic.  However it is noteworthy that even when her family and the paternal grandparents take the children to her, the mother is often absent and more often than not the children have been placed at risk. 

6. The mother did not pay child support until about July 2008.  She now pays child support of about $28 per month.

7. The Independent Children’s Lawyer supports the paternal grandmother’s application for the children to live with her.

General Law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

1. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome.  Where there are no countervailing factors the s 60B principles may be decisive. Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and

   (ii)      to develop a positive appreciation of that culture.

2. In deciding the arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

3. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).  Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed.  The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.   Ultimately the weight attached to each factor is a matter for the Court’s discretion.

4. The sequence of determining parenting orders is important.  If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order.  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays; and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the   child; and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

5. The child’s best interests remain the overriding consideration.

6. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.  Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply. 

7. By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act.  In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility where the evidence satisfies the Court that it would not be in the child’s best interests refutes any notion that the Act elevates parents above others in parenting cases decided under the present Part VII.   

Applying the law to the facts

1. The paternal grandparents have been the primary carers of the children for most of their young lives.  No criticisms have been made by any of the parties about the grandmother’s parenting capacity. Q’s paediatrician Dr D wrote in a letter dated 21 December 2006 that Q “was being very capably looked after” and that “her care was of a very high standard”.

2. The Assistant Principal of the school Q attends said “[Q] always presents at school clean and tidy. Her attendance at school is excellent… I wish to commend [the paternal grandmother] for the devotion and care of her granddaughter as she has maintained a high standard of care for [Q] over the past years.  She has provided not only the physical care [Q] requires, but more importantly, the love and emotional security that is essential for a good quality life”.

3. Family Consultant Ms T noted in her report that while it was clear that the mother saw the paternal grandparents as the obstruction to having the children back in her care she acknowledged that the children had always appeared well cared for.  Ms T concluded that there does not appear to be any sound reason to remove the children from the grandparents’ care and place them in the care of the mother. I agree.

4. Children with special needs like Q that are highly dependent on carers require a major commitment to their welfare. The paternal grandparents have demonstrated such commitment consistently over the years.  The parents, on the other hand, have not.  They have not been able to put the children’s needs ahead of their own, nor attend to the children’s needs while the children are in their care.  It is undoubtedly in the children’s best interests to remain living with the paternal grandparents.

5. It seems that the father and the grandparents have a good relationship.  The father supports his mother’s application.  The paternal grandmother says that the father loves the children and she is confident he will abide her directions with them.  When he is sober she has no concerns for the children while they are in his care.  If he is drunk she refuses to let him near them.

6. The mother made allegations of family violence against the father which probably have some foundation.  She does not make allegations of direct child abuse.  The paternal grandmother acknowledged that the father has been in trouble with the police in the past, but said he has never been violent towards her or the children.  I am satisfied that if the father ever becomes abusive in the children’s presence the paternal grandmother will intervene and keep them safe.  I am therefore of the view that it is in the children’s best interest to spend time with the father at times and under conditions as agreed between he and the paternal grandmother.  This regime has worked well in the past and I do not see a need for more structured orders.

7. As for the mother’s time with the children, orders similar to those made in November 2005 are appropriate.  The distance between the mother’s and the paternal grandparents’ homes means that orders for equal time or substantial and significant time are not practicable.  In addition the mother has not demonstrated a commitment to the children that would justify the making of orders for substantial and significant time.  Therefore the mother should spend time with the children on the first weekend of each calendar month from 10.00 am to 4.00 pm on the Saturday and the Sunday provided always that if the mother is accommodating herself and the children at the home of her uncle D Fontane on such weekends, the time the children spend with her shall include overnight.  I am confident that the children will be well cared for and safe in the home of D Fontane and in those circumstances the mother should have the opportunity to spend some overnight time with the children.

8. The orders provide for the mother to spend increased periods of time with the children if she provides 12 consecutive monthly urine analysis screen results for herself in which no metabolites of illicit or non-prescribed drugs are detected.  My hope is that this will provide a framework which motivates the mother to work towards sobriety.  The parties agree that if she is sober over a prolonged period they are willing to carefully increase the amount of time she spends with the children.  With sobriety it is their and my hope that the mother will be able to take steps to improve her circumstances, including steps to protect herself from harm.  As her circumstances improve so too does her opportunity to improve her relationships with her children.   

9. Having regards to my findings concerning family violence the presumption of equal shared parental responsibility is rebutted.  My findings concerning the parents limited parenting capacity means that it is not in the children’s best interests for the parties to have equal shared parental responsibility.  Over the years, the paternal grandparents have been the ones that have made all major and minor decisions in relation to these children.  Q is a high needs child who is highly dependent on her carers.  The paternal grandmother selected the schools for the children, she and the paternal grandfather have taken them to medical appointments and they have been the ones effectively making all the decisions.  None of the parties argued that the grandparents made any poor decisions in relation to the children’s ongoing care.  They have exercised their parental responsibility capably and always in the children’s best interests and I am satisfied that they will continue to do so.  I do not see a reason to extend the parental responsibility to the father and the mother.  Indeed I am strongly persuaded that doing so is likely to introduce conflict or confuse the capacity for prompt and appropriate decision making.

10. Finally I should briefly mention cultural issues as they are relevant in this case. All the parties and the children are of Aboriginal heritage.  The paternal grandmother says in her affidavits that theirs is a large family with literally hundreds of cousins in the K area.  Through their paternal grandparents the children are in contact with their relatives on all sides.  In terms of culture, the children are highly connected to their culture and I am satisfied that this will be so in the future.

Conclusion

1. Q has numerous medical difficulties and requires skilled parenting.  There have been no incidents relating to the children while the children have been in their care.  Indeed the paternal grandparents have diligently and consistently provided for the children’s physical, emotional and intellectual needs since the children came into their care in March 2002.  On the other hand, when the children spent time with their mother other than when assisted by her uncle D Fontane the children have variously been neglected and exposed to violence and abuse.  The sad reality is that the children’s health and well being will be put in jeopardy if orders are made for the children to live with the mother. Such risks do not exist if the children remain living with the paternal grandparents.

2. I am confident that these children will be well cared for and safe in the grandparents’ care.

3. For these reasons I am satisfied the orders identified at the start of this judgment are in the children’s best interests.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date:  27 February 2009