Longley and Velton and Ors

[2018] FamCA 969

FAMILY COURT OF AUSTRALIA

LONGLEY & VELTON & ORS [2018] FamCA 969

FAMILY LAW – CHILDREN – With whom a child lives – Parental responsibility – Where the child presently lives with the grandparents – Where the mother has filed a notice of discontinuance – Where the father takes no part in the proceedings – The Independent Children’s Lawyer supports the proposal of the grandparents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DA(2), 61DA(4)

MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Longley

1st RESPONDENT: Mr Velton

2nd RESPONDENTS: Mr Longley & Ms Oriel

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 3431 of 2015

DATE DELIVERED: 23 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT: No appearance

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENTS: Mr Harley

SOLICITOR FOR THE 2ND RESPONDENTS: Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That all previous parenting orders be discharged.

2. That Mr Longley and Ms Oriel (“the grandparents”) have equal shared parental responsibility for X born … 2011 (“the child”) to the exclusion of the mother and father.

3. That the child live with the grandparents.

4. That the child spend time with the mother at such times and on such conditions as may be agreed between the mother and the grandparents.

5. That the mother and the grandparents are at liberty to obtain at their own cost from the child’s school copies of the child’s school reports, circulars, newsletters, photographs and other documents of a type normally supplied by the school to parents.

6. That the mother and the grandparents be at liberty to attend all school functions to which parents would normally be invited.

7. In the event of a medical emergency involving the child, the party in whose care the child is at that time shall inform the other parties as soon as possible.

8. That the mother be restrained from bringing the child into contact with Mr B.

9. The mother and the maternal grandparents are restrained and an injunction is granted restraining each of them from denigrating the other parent, the other parent’s partner or the other parent’s family in the presence of the child or allowing any other person to do so.

10. The appointment of the Independent Children’s Lawyer is discharged.

11. All extant applications are otherwise dismissed as finalised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Longley & Velton and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3431 of 2016

Ms Longley

Applicant

And

Mr Velton and
1^st Respondent

And

Mr Longley and Ms Oriel

2^nd Respondents

REASONS FOR JUDGMENT

Introduction & procedural history

1. The proceedings between Ms Longley (“the mother”) and Mr Longley (“the grandfather”) and Ms Oriel (“the grandmother”) (collectively “the grandparents”) arise from an Initiating Application filed by the mother on 15 September 2015 seeking parenting orders in respect of X born in 2011 (“the child”).

2. By Response filed 13 November 2015 the grandparents oppose the orders sought by the mother and seek that they have sole parental responsibility for the child and that the child lives with them and spends time with the mother as may be agreed between them.

3. Mr Venton (“the father”) takes no part in the proceedings and has not spent time with the child since approximately 2012 or 2013.

4. The court is assisted by the appointment of an Independent Children’s Lawyer (“ICL”).

5. On 24 April 2018 the matter was listed for final hearing in the week commencing 19 November 2018. The mother was present but the grandparents were not.

6. On 24 May 2018 trial direction orders were made setting in place a regime for the preparation and filing of materials. The mother was to file and serve her materials by 3 August 2018 following which the grandparents were to file and serve their materials by 12 October 2018.

7. The mother did not file her materials by 3 August 2018, and the grandparents filed an Application in a Case on 27 August 2018 seeking, inter alia, leave to proceed with the matter on an undefended basis.

8. On 18 September 2018, noting that the grandparents did not press the Application filed 27 August 2018 that day, Registrar Paxton granted the mother an extension of time to 12 October 2018 to comply with the trial directions and listed the Application for the first day of trial.

9. The mother filed a Notice of Discontinuance on 10 October 2018 and takes no further part in the proceedings.

10. The grandparents rely upon the following materials:

    a)Response filed 13 November 2015.

    b)Affidavit of the grandfather filed 18 October 2018.

    c)Case Outline Document filed 19 November 2018.

11. The ICL relies upon the following materials:

    a)Family Assessment Report by Ms C dated 1 April 2016

    b)Family Assessment Report by Ms C dated 29 October 2018.

    c)Case Outline Document filed 19 November 2018.

12. The ICL agrees with the orders sought by the grandparents and seeks additional orders to restrain the mother from bringing the child into contact with her partner Mr B and/or from exposing the child to family violence. The ICL also seeks that the mother be restrained from using any illicit substances or consuming alcohol to excess when the child is in her care or for 24 hours prior to the child coming into her care and that each party be restrained from denigrating the other to or in the presence of the child.

Background

1. The mother was born in 1991 and is 27 years old. The date of birth for the father is unknown but his age is estimated by the grandparents to be approximately 29 years old.

2. The mother was in a de facto relationship with the father from approximately 2010 until 2013. Following separation from him, the mother commenced a relationship with Mr B in 2014. It is unknown if the mother is still in a relationship with Mr B.

3. The mother has one other child born in 2018 who is not the subject of these proceedings.

4. The grandfather is 63 years old and the grandmother is 64 years old. They have been in a de facto relationship since 1984 and have two children together; the mother, and her brother born in 1986. The grandfather has three adult daughters from a previous marriage.

5. Following the birth of the child, the mother and the father lived in the home of the grandparents. The father moved out in mid-2012 and briefly saw the child on two occasions thereafter. He has not spent time with the child since that time.

6. The grandparents provided the majority of care for the child following her birth. The mother moved out of the grandparents’ home in May 2013, leaving the child in their care. They have been the primary caregivers for the child since that time.

7. In May 2014 the mother did not return the child to the grandparents following a visit. She returned the child a few days later due to the hospitalisation of Mr B.

8. Following the commencement of these proceedings the mother has spent time with the child on a limited basis. Following the orders made by consent before Judge Cole on 10 November 2015, the child was to spend not less than two occasions per week with the mother for up to four hours per visit. The visits were to be supervised by either the mother’s brother, the mother’s sister-in-law, or another person approved by the ICL.

9. The arrangements were amended by consent orders made 14 July 2016 that provided for the mother and the grandparents to have equal shared parental responsibility and implemented a gradually increasing time spending arrangement such that eventually, the child would spend time with the mother from 10 am Saturday until 5 pm Sunday on each alternate weekend and spend time on Christmas Day and Mother’s Day.

10. By orders made 7 December 2016, the mother’s time with the child was increased such that she would spend time with the child from 5 pm Friday until 5 pm Sunday each alternate weekend, with provision for special occasions, school holidays and birthday time spending. The matter was transferred from the Federal Circuit Court to this court.   

11. The child has not spent time with the mother since 28 October 2017.

12. There are concerns that the mother is not able to adequately protect the child from exposure to family violence. The grandparents and the ICL hold concerns that the mother’s relationship with Mr B is unstable and is characterised by family violence from Mr B.

Family Assessment report

1. Ms C (“the family consultant”) conducted two family assessment reports in these proceedings. The first report was released 1 April 2016 (‘the first report”) and the most recent report was released 29 October 2018 (“the second report”).

2. The mother, the father, the grandparents and the child participated in the first report.

3. The child did not present as overly insecure or anxious and there were no concerns regarding her development. The child referred to the mother as “mum” and the family consultant considered that the child and the mother had a sufficiently secure attachment.

4. The father indicated that he was seeking to spend time with the child and would be willing to commence supervised visits at a contact service. He acknowledged “that he had made minimal attempts to maintain a relationship with [the child].” When he learned that the child was in the full time care of the grandparents and that “the mother had ‘lost custody’ of [the child], he considered it pointless to instigate litigation.”

5. The mother raised that the grandparents were “controlling and over bearing” and following the assessment the family consultant remained concerned that the grandparents may “indirectly or directly undermine efforts to reunify the child with the mother.”

6. The mother “appeared to have difficulty to articulate her understanding of [the child’s] needs.” The family consultant considered that concerns about the mother’s “lack of attention” towards the child could be characterised “by the fact that [the mother] was a young mother who may have felt undermined by [the grandparents].”  

7. The family consultant concluded the first report with a recommendation that the child and the mother engage in reunification therapy with a view to the child moving into the full-time care of the mother and that after six months of the child living in the full-time care of the mother, the mother have sole parental responsibility.

8. The mother did not attend for her scheduled appointment for the second report and the child refused to participate in an interview. The grandparents reassured the child with respect to her safety and wellbeing and encouraged her to participate in the assessment. It was noted that they “appeared emotionally attuned to [the child] because they did not attempt to force [the child] and seemed to understand when to cease encouraging [the child’s] involvement in this assessment.”

9. The family consultant received an email dated 12 October 2018 from the mother which addressed her time with the child. The mother informed the family consultant that she intended to file a Notice of Discontinuance and reported “I just want [the child] to be happy … [the child] is where she wants to be, and I can see that now.” The mother declined to attend an interview for the family assessment in light of this.

10. The family consultant observed that the child has a “stable and secure home environment” with the grandparents and is “thriving in [the grandparent’s] care…”.

11. The child’s presentation demonstrated a strong relationship with the grandparents and she was observed to readily seek them out for comfort and affection. The family consultant considered that “[t]he child presented as comfortable, content and strongly attached [to the grandparents]”.

12. The grandparents reported that the child is distressed by the possibility of spending time with the mother and her partner Mr B. The child is reported to have disclosed that during a visit the mother and Mr B “yelled at her” and she had felt scared.

13. The child reportedly experienced night terrors and anxiety in relation to spending overnight time with the mother and would refuse to leave the grandmother’s car at handovers.

14. The grandparents presented with concern for the mother and a “deep sense of sadness for the fact that [the child] does not have a relationship with [the mother].” The family consultant considered that the grandparents were very supportive of the child having a relationship with the mother and that provided the child’s safety could be assured, they would be capable of interacting and negotiating with the mother.

15. The family consultant recommended at the conclusion of the second report that the child remain in the care of the grandparents and that they have parental responsibility for the child. If the child was to recommence time spending with the mother it was recommended that this occur initially as a day time period in the presence of one or both of the grandparents. It was also recommended that the grandparents do not discuss their concerns about the mother in the presence of the child.

Principles relevant to parenting orders

1. The child lives with the grandparents and spends no time with the mother. The child last spent time with the mother on 28 October 2017.

2. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).

3. I am cognisant of the primary and additional considerations as set out in s 60CC(2) and (3).

4. I am mindful of the directions contained in s 60CC(2A) regarding the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. I propose to adopt the following approach:-

   (1)Give consideration to the proposals put forward by the parties as they were identified and presented to the Court.

   (2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2).

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of a child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.

   (5)Have regard to the additional considerations under s 60CC(3).

   (6)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) is to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.

Parental responsibility

1. Section 61DA of the Act requires the court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.

2. In that respect the provisions of 61DA(2) and (4) are relevant:

   (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.

   …

   (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.

3. If the presumption is rebutted, the court can make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC. If the presumption applies and it is not rebutted, then s 65DAA requires the court to consider whether there should be an order for equal time. If not then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, 467 [15], the consideration of whether equal time is feasible “requires a practical assessment”.

4. The child has lived in the home of the grandparents since she was born and has been in the primary care of the grandparents since May 2013. The child has spent no time with the mother since October 2017 and it appears by her communication with the family consultant by email on 12 October 2018 that the mother accepts the child’s preference is to remain in the care of the grandparents.

5. The grandparents have not communicated with the mother since October 2017 and the mother has not attempted to contact them.

6. The father has not seen the child since 2012 nor sought to be involved in the present litigation. While he attended the first family assessment report and indicated to the family consultant a desire to spend time with the child, he has taken no action with respect to that desire. I consider that the child has no relationship with the father.

Best interests of the child

1. There is no evidence which would assist the court in determining any wish or view expressed by the child. The child refused to participate in an interview or an observed interaction during the second family assessment report and as such did not disclose any view about her circumstances.

2. The child’s closest relationships are with the grandparents. Her relationship with the mother is fractured and the family consultant considered any attachment remaining between the child and the mother would not be a sufficiently secure attachment. The child’s relationship with the father is non-existent.

3. I am entitled to be informed by the observations of the family consultant who observed that at all times the child interacted warmly with the grandparents and sought their comfort when she felt distressed. The grandparents have provided the child with a stable household which has enabled the child to meet her potential at school and in all developmental areas. The family consultant considered that child is thriving in the grandparents’ care.

4. The grandparents are able to provide for all of the child’s intellectual and emotional needs. They have a three bedroom home, in which the child has her own bedroom. The house has amenities for entertainment, play and learning, and it is nearby to facilities such as a public playground and the child’s school.

5. The grandparents and the ICL raise a concern that the mother may expose the child to family violence. In particular, concerns about the mother’s partner, Mr B, are raised in trial materials. The ICL seeks a specific order that would restrain the mother from bringing the child into contact with Mr B, or in the alternative, restrain the mother from exposing the child to family violence.

6. The grandparents presented to the family consultant with genuine concern for the mother’s wellbeing. They hold support for the child’s relationship with the mother though that support is tempered by their concern for the child’s safety in the mother’s care.

7. The child should live with the grandparents and any time with the mother should follow the agreement of the parties. The mother, by her Notice of Discontinuance is no longer involved and no longer seeks orders. In any event, the relationship between the mother and the child has fractured and the mother has not spent any time with the child since October 2017. The child is well settled in the home of the grandparents and is performing well at school.

1. The grandparents are willing to engage with the mother and while the parties presently do not communicate, the grandparents indicated to the family consultant their support for the mother spending time with the child, provided the safety of the child can be assured. I am confident that they will be able to communicate with the mother and reach agreement that serves the child’s best interests. 

Conclusion

1. I am satisfied that the child should live with the grandparents and that they should have parental responsibility for the child to the exclusion of the mother and father.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 November 2018.

Associate: 

Date: 23 November 2018