Liney and Anor and Hanks and Anor

[2007] FamCA 700

FAMILY COURT OF AUSTRALIA

LINEY AND ANOR & HANKS AND ANOR [2007] FamCA 700

FAMILY LAW - CHILDREN - With whom a child lives - Best interests - Family violence

APPLICANTS: MR AND MRS LINEY

RESPONDENT MOTHER: MS HANKS

RESPONDENT FATHER: MR BIENE

FILE NUMBER: NCF 402 of 2005

DATE DELIVERED: 26 JUNE 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: MULLANE

HEARING DATE: 14 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT MATERNAL GRANDPARENTS: Ms Matrick of Messrs Brazel Moore, Solicitors

THE RESPONDENT MOTHER: In person

THE RESPONDENT FATHER: In person

COUNSEL FOR INDEPENDENT LAWYER FOR THE CHILDREN : Ms Olsen of Messrs Boyd Olsen, Solicitors

Orders

1. All previous parenting orders are vacated and the children M born in August 1998, A born in August 1999, K born in June 2003 and N born in September 2004 are to live with the maternal grandparents and they are to have equal shared parental responsibility for the children.

2. Each of the parents is to spend such time with the children as the parent and the maternal grandparents agree, but the time is to be conditional upon:

   2.1the parent to abstain from use of alcohol and any illegal drugs for 4 hours prior to the time and during the time;

   2.2the parent ensuring the children are properly supervised during the time, by the parent;  and

   2.3for any overnight time spent with the parent, the parent must supply each child with proper bedding, bed linen and accommodation in premises adequate for the purpose and with a fenced yard.

3. Each of the parents is restrained from:

   3.1discussing any Court proceedings concerning the children with the children or with anyone in their hearing or presence;  and

   3.2permitting any of the children to read any documents in any such proceedings.

4. When any of the children spend time with either parent, the parent must ensure the children attend any educational or sporting commitments the child has.

5. These Orders incorporate and have attached to them a document setting out:

   5.1      the obligations that these Orders create;
   5.2      the consequences that may follow if a person contravenes an Order;

   5.3the availability of programs to help people understand the responsibilities under parenting orders;  and

   5.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.

6. Otherwise the Amended Application of the maternal grandparents filed on 23 May 2006 is dismissed.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as LINEY AND ANOR & HANKS AND ANOR.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 402 of 2005

MR AND MRS LINEY

Applicant Maternal Grandparents

And

MS HANKS

Respondent Mother

And

MR BIENE
Respondent Father

REASONS FOR JUDGMENT

Introduction

1. This was an undefended hearing of the application of the maternal grandparents of five children; a boy called M (aged 8), a girl called A (aged 7), a boy called K (who turned four in June), a boy called N (aged 2) and a girl called G, who it appears from submissions was about one month old at the time of the hearing.  The grandparents seek orders for the children to reside with them and for the grandparents to have equal shared parental responsibility for the children.

2. They also seek orders regarding the children spending time with each of the children's parents who are the respondents to the proceedings.

3. The grandparents seek other orders and that will be referred to later.

4. The parents were present at the hearing.  The grandparents further amended the orders they sought at the hearing.

5. All five pregnancies of the mother were unplanned by the parents.

6. In July 2006 a welfare report of Mr P, a social worker, was released.  In the report, Mr P recommended the proceedings be adjourned for six to 12 months to allow interventions to occur.  Those interventions were, relationship counselling for the parents, attendance of both parents at a parenting program, and to establish the drug free status of the mother, she was to participate in weekly urine analysis for six months.  The parents have done none of those.

7. The proceedings were listed for undefended hearing before a Judicial Registrar on 23 October 2006.  The hearing did not proceed that day, and was adjourned to 14 May 2007 before me, in order to enable the parents a further opportunity to commence the interventions.

8. The parents have not commenced any of the interventions that Mr P recommended in his report in July 2006.

Evidence

1. The evidence in the proceedings comprises:

   ·    the Amended Application for Final Orders filed 23 May 2006 and amended at the hearing, ( the amendment have been effected by attaching to it the different orders sought and noting the amendment on the document); 

   ·    the Affidavit of the maternal grandfather sworn 13 April 2005;

   ·    the Affidavit of the maternal grandmother sworn 13 April 2005;

   ·     the Affidavit of the paternal grandfather sworn 14 April 2005;

   ·    the welfare report of Mr P which was released 7 July 2006;

   ·    the Affidavit of the maternal grandmother sworn 10 July 2006;

   ·    the Affidavit of the maternal grandfather sworn 10 July 2006;

   ·    the further Affidavit of the maternal grandmother sworn 11 October 2006; 

   ·    the Affidavit of the maternal grandfather sworn 10 May 2007; and

   ·    the further Affidavit of the maternal grandmother sworn 10 May 2007.

Background

1. The parents have since 1997 been involved with each other and for much of the last 10 years have cohabitated.  They have had frequent separations and they are currently not living together.  Both parents in that period have a history of using illegal drugs.  The mother has had ongoing mental health problems and drug addiction problems and has had hospitalisations for these.

2. At times, the mother and children have lived with the maternal grandparents.  The three eldest children have resided with the maternal grandparents since December 2004 when the mother was evicted from her accommodation.  N has lived with the maternal grandparents since January 2005. 

3. In September 2004, the mother obtained an order in the Family Court of Australia, for the three elder children to reside with her.  The grandparents first applied for orders for the children to reside with them by an application filed in the F Local Court in 2005.  Orders were made in the F Local Court in July 2005 for the four elder children to reside with the maternal grandparents and have contact with the parents each second weekend.  It appears that those orders were interim orders only.  That contact appears to have failed largely because of frequent failures of the parents to make themselves available.

4. In the period since December 2004, the mother has from time to time stayed for short periods with her parents but she is not living there now.

5. It appears that the fifth child G was born in April 2007, taken into care by the Department of Community Services on 30 April 2007 and placed by the Department in the care of the maternal grandparents on 7 May 2007, where she remains. Although orders were sought regarding G, on the evidence she appears to be a child who is under the care of the Director General of the Department of Community Services (NSW) and therefore Sec 69ZK of the Family Law Act prevents this Court making any order regarding G at this time.

Relevant Law

1. Section 60CA of the Family Law Act provides:

   Child's best interests paramount consideration in making a parenting order

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

2. Section 60CC of the Family Law Act provides:

   Determining child’s best interests

   (1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)      The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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

   Additional considerations

   (3)      Additional considerations are:

   (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)      the nature of the relationship of the child with:

   (i)       each of the child’s parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child’s parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h) if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)       the order is a final order; or

   (ii) the making of the order was contested by a person;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

1. The findings under subsection 60CC(3) are as follows:

a)        Expressed views of the child

1. Both M and A have expressed a clear preference to reside with the maternal grandparents, but because of their immaturity, it does not reflect a mature consideration of all the long term considerations.

b)        The child’s relationships

1. On the balance of probabilities each child’s primary attachment is to the maternal grandmother and it is a close and positive relationship.  The second most important level of relationships for the child is that relationship with each other and with the maternal grandfather.

2. The children’s relationships with the parents are their next most important relationships.  These relationships are in all probability insecure because of the parents’ failure to provide the children with routines, consistency and stability, and their failure to protect the children from exposure to abusive behaviour.

3. M’s relationship with the father is ambivalent as he has some fear of the father because of some physical interactions they have had and also behaviour by the father by way of screaming at people.  A’s relationship with both parents involves some ambivalence because of her exposure to their verbal abuse of each other.

4. N and G, because of their history of care are unlikely to have developed any attachment to either parent.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

1. Despite the parents’ problems the maternal grandparents have an adequate recognition of the children’s needs for time with each parent and a meaningful relationship with each parent.  However, each of the parents have demonstrated inadequacy in terms of recognition of these needs of the children and acting to satisfy those needs.

d)        Likely effect of any changes including any separation

1. If the children live with either or both parents the care will be inadequate and abusive.

2. If the children are to reside with the maternal grandparents, their care will be adequate in that household.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

1. The parents have seriously inadequate parenting capacities and attitudes to the responsibilities of parenting.  They have a history of exposing their children to their use of abuse in dealings with each other by verbal abuse of each other and of the children, by physical abuse of the children, and by physical damage to property (e.g. “trashing” the house).

2. They have since M’s birth demonstrated inadequate intellectual, coping and parenting capacities.  They have not been able to cope with homemaking responsibilities for them and the children.  They have not been able to provide the children with adequate care and supervision.  Their use of drugs such as alcohol, cannabis and amphetamines has compromised those capacities.  The mother’s capacities have also been compromised by chronic depression and drug addiction, which have combined to result in her hospitalisation on several occasions.

3. The parents coping problems and the inadequacy of their parenting capacities dictate that the children are likely to be unsafe in the parents’ unsupervised care.  Attendance at a parenting course and ceasing to use those drugs might address this issue.

f)Capacity of each parent and any other person to provide for the child’s needs

1. The capacity of the paternal grandparents to provide for the children’s needs are adequate.  The capacity of each parent to do so are not.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

1. The immaturity of the children and their backgrounds increase their needs for stability, routine, consistency, emotional support, security and protection from exposure to abusive behaviour.

2. The maternal grandparents are more likely to provide each of these than either parent or the parents together.

h) If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. There is no evidence that this applies to any of the children.

1. Attitude to the child and the responsibilities of parenthood 

1. The attitudes of the maternal grandparents to the responsibilities of parenthood are adequate. 

2. The attitudes of each of the parents are grossly inadequate.  Each of the parents is unable to properly recognise and address the children’s needs including material needs and needs for supervisions, housing, care, emotional support, protection from exposure to abusive behaviour, routines and stability.

j)        Any family violence

1. There has been some limited physical interaction between the father and M – including excessive force by the father.  There has been conduct of the parents of “trashing” their home.  They have also exposed the children to them verbally abusing each other.  It appears M has experienced the father screaming at him or others.  The children have been exposed to this behaviour and it has no doubt caused them feelings of fear and insecurity.

2. Abusive behaviour is not an attribute of a particular victim or a particular relationship.  Abuse is an attribute of the perpetrator.  It is a fact that some people use abuse in dealing with others, but most do not.

3. Children who spend time with an adult who uses abuse in his or her dealings with others are at an obvious risk of physical injury.  Children, (some would say especially at certain stages such as “the terrible two’s” and adolescence) can test an adult carer’s patience as much as any argumentative or aggressive adult.

4. But spending time with an abusive adult involves other risks to children.  One of those is the risk of psychological harm.  Children can as a result of experiencing abuse or witnessing abuse of loved ones, suffer insecurity, apprehension, unhappiness, anxiety, fear, hypervigilance and terror.

5. Verbal abuse and put downs can especially diminish a child’s self esteem and self confidence, and that can cause long term damage.  But generally experiencing or witnessing abuse inhibits a child’s emotional development.

6. The worst danger that an abusive parent or carer presents to a child, however, is as a role model.  The child can learn to use abuse in dealings with others, including those they love.  It is a social disability that can destroy the most intimate relationships and bring the child into conflict with relatives, friends, other people they socialise with, the police and the law.  The role model of an abusive parent or carer puts a child at risk of adopting the role of an abuser or the role of an accommodating victim of abuse when they partner.  Either way, it is a long term damaging legacy from the adult(s). 

k)Any family violence order that applies to a child or a member of the child’s family

1. There is no such order.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

1. If any of the children live with either or both parents it is more likely there will be further proceedings because the parent(s) will be unable to cope with that responsibility.

m)Any other fact or circumstance the Court thinks is relevant

1. There is no other such matter.

PRIMARY CONSIDERATIONS

1. The findings as to primary considerations under Subsection 60CC(2) are: 

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

1. On the evidence at present the Court is not satisfied that any of the children would be safe living with either or both of the parents without supervision.  They all have a need for a meaningful relationship with each parent but that should only be facilitated in a way that is safe.

2. The grandparents’ attitudes are such that they can be relied upon to facilitate the children spending time with each parent if there is a way of this happening that will ensure the children’s safety. 

3. But there should be conditions of any such time spelt out in a court order for:

• Abstinence from drugs;

• Proper supervision of the children;  and

• Proper accommodation and bedding if there is any overnight occasion.

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This has already been discussed.  There is a need to protect the children during time with either parent, from the risks involved in incompetent care, abusive behaviour, and family violence.

PARENTAL RESPONSIBILITY

1. There is an issue as to parental responsibility.

2. Section 61DA of the Act provides:

(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)      family violence.

(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

1. In this case the parents’ parenting capacity and attitudes to the responsibility of parenting are so poor that the children’s interests require the maternal grandparents should have the parenting responsibilities.  They should have equal shared parental responsibility.

RESIDENCE

1. The children’s interests require that they live with the maternal grandparents.

Spending Time With The Parents And Communicating With Them

1. The time the children spend with the parents should be left to the judgment of the maternal grandparents to ensure the children are safe.  There should also be an order spelling out the particular conditions listed earlier.  There should be an order as the maternal grandparents seek requiring that during any such time the children must attend their sporting and educational commitments.

OTHER ORDERS

1. It is in the children’s best interests that there be orders as sought by the maternal grandparents for each parent to be restrained from discussing court proceedings about the children with the children or in their presence or permitting any of the children to read any documentation in such proceedings.

_____________________
The Hon Justice Mullane