McIndry & Neil

[2016] FamCA 648

FAMILY COURT OF AUSTRALIA

MCINDRY & NEIL AND ANOR [2016] FamCA 648

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Undefended hearing – Where the applicant mother has not filed any material with the Court since 9 March 2015 despite Orders to do so – Where parents have a history of mental illness and drug abuse – Where the child’s strongest emotional attachment is with the paternal grandmother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Maldera and Orbel (2014) FLC 93-602

APPLICANT: Ms McIndry

RESPONDENT: Mr Neil

INTERVENOR: Ms Neil

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 2405 of 2014

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 4 August 2016

REPRESENTATION

FOR THE APPLICANT: No appearance

FOR THE FIRST RESPONDENT: Self-represented

FOR THE SECOND RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Order

1. That Ms Neil have sole parental responsibility for the child, B born … 2012.

2. That the child live with Ms Neil.

3. That the mother and father spent time with the child as agreed between the mother and father and Ms Neil.

Miscellaneous

1. All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.

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

3. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto.  And these particulars are included in this Order.

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 McIndry & Neil & Anor 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 BRISBANE

FILE NUMBER: BRC 2405 of 2014

Ms McIndry

Applicant

And

Mr Neil

First Respondent

And

Ms Neil

Second Respondent

And

Patrick Dooley

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The hearing proceeded in the absence of the mother. Mr Dooley, the Independent Children’s Lawyer, had made numerous attempts to contact the mother at her last known address and telephone number, to no avail.

2. The parties to these proceedings are Ms McIndry (“the mother”), Mr Neil (“the father”) and Ms Neil (“the grandmother”) who is the paternal grandmother of the subject child, B (“the child”) born in 2012.

3. The proceedings were commenced by the mother by way of Initiating Application filed 17 March 2014.  In her Application the mother sought the following final orders:

   a)That the child live with the mother;

   b)That the mother have sole parental responsibility for the child; and

   c)That the child spend time with the father as recommended by the Family Consultant after a family report is obtained.

4. The mother also sought a recovery order, which was dismissed by Order dated 6 May 2014.

5. The mother has since disengaged from the proceedings and has not filed any material nor attended the Court on any occasion since March 2015.

6. At a hearing before me on 18 July 2016, the father, grandmother and Independent Children’s Lawyer agreed on final orders that would be sought by each of them at the trial of this matter, viz:

   a)That Ms Neil have sole parental responsibility for the child;

   b)That the child live with Ms Neil; and

   c)That the mother and father spent time with the child as agreed between the mother and father and Ms Neil.

7. I made an Order on that day that should the mother fail to appear at the final hearing of this matter on 4 August 2016, final orders would be made in her absence.

8. The father relied upon his affidavit filed 25 November 2015, which is the only material that has been filed by him in these proceedings.  The orders sought by the father and grandmother have been formally particularised in the Order of 18 July 2016.

9. The grandmother was joined to these proceedings by way of Order of the Federal Circuit Court dated 6 May 2014.  The grandmother relied upon the following material at the final hearing:

   a)Affidavit of the grandmother filed 1 May 2014;

   b)Affidavit of the grandmother filed 21 August 2015; and

   c)Affidavit of the grandmother filed 22 December 2015.

10. The Independent Children’s Lawyer relied upon the following material:

    a)Family Report by Ms C dated 11 August 2014 (Exhibit1);

    b)Affidavit of Ms C filed 22 October 2015; and

    c)Affidavit of Dr D filed 20 November 2015.

Relevant background facts

1. The father was born in 1989 and is 27 years old.  The mother was born in 1993 and is 22 years old.

2. The father and mother commenced a relationship in July 2011 and, at that time, lived with the grandmother and grandfather, Mr E Neil, who is not a party to these proceedings.  The mother and father lived with the grandmother and Mr E Neil from the time they commenced their relationship until April 2012 and then again from January 2013 until separation on 7 March 2014.

3. The mother and father led a chaotic existence when not living with the grandmother.

4. The grandmother has been the primary carer of the child since the mother and father separated on 7 March 2014.  She has provided significant care for the child since birth, both while the mother and father lived in her home and while they lived independently.  The grandmother is a health professional and currently works in that role.

5. Both the mother and father have a history of mental illness and both have a history of admission to mental health facilities.  The father has struggled with depression and anxiety since his teenage years and deposes to taking antidepressants in the form of “Zoloft in the mornings and Endep before bed”.

6. The father also has a history of drug and alcohol abuse, including use of the methamphetamine commonly referred to as ‘ice’.  He entered the Queensland Magistrates Early Referral Into Treatment (“QMERIT”) program on 28 November 2014 and completed that program on 2 April 2015 in relation to his drug use and mental health issues.

7. The father has been permanently living with his parents, the grandmother and Mr E Neil, since July 2015.  The grandmother provided oral evidence that the father has had one “lapse” since that time where he left the home over a weekend and is said to have used marijuana on that occasion.  The father has not used ‘ice’ since returning to the grandmother’s home in July 2015.

8. Dr D opined in his report dated 28 October 2015 that if the father was maintaining his abstinence from illicit substances, he would have no concerns that the child would be at risk in the care of the father on an unsupervised basis.

9. The father currently looks after the child one day a week while the grandmother is at work. The grandmother has been impressed with the father’s commitment and parenting capacity.

10. The mother has had a difficult family life and was living in foster care up to a time shortly before she began her relationship with the father.  The mother was allegedly sexually abused at the age of 8 years old by a family member and her biological father has spent time in prison for sexually abusing the mother’s sister. 

11. The mother was admitted to the F Town Mental Health Unit in 2012 and diagnosed with post-traumatic stress disorder and borderline personality disorder.  In the mother’s interview with Dr D on 30 July 2015 he opined that the mother appeared to have impaired intellectual abilities.

12. The grandmother has not received any communication from the mother for the last two months. Her messages have been unanswered.

13. Ms C, psychologist, prepared a family report in this matter on 15 October 2015 and opined that returning the child to the primary care of either parent at this stage would “dramatically impact on her development in an unhelpful manner”. Ms C was impressed with the grandparents and also opined that the need for ongoing supervision of the father was dependent upon his abstinence from drugs. She recommended that the child continue to live with the grandparents.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer (see Goode & Goode (2006) FLC 93-286; SCVG & KLD Error! Hyperlink reference not valid.; Banks & Banks (2015) FLC 93-637).

2. Section 60B(1) provides that the objects of the Act 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.

3. Section 60B(2) provides that 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;

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

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).

11. While there is no presumption in favour of a parent it is a factor to be considered along with all other factors. As the Full Court held in Maldera and Orbel (2014) FLC 93-602:

    81. Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.

Involvement of the mother in the proceedings

1. The proceedings commenced on 17 March 2014 and an interim Order was made on 6 May 2014 granting the mother and grandmother shared parental responsibility and ordering that the child live with the grandmother and spend time with the mother each Tuesday and Thursday for 4 hours at a shopping centre. 

2. In a further interim Order dated 11 September 2014, the mother’s time with the child was to be supervised for a period of 3 months after which time it would move to unsupervised.  This order was discharged on 9 March 2015 and further supervised time was ordered.

3. The mother attended a hearing before Judge Howard on 9 March 2015.  On this date there was an Order made that the parties attend upon a family report writer for the purposes of preparing an updated family report and that the mother and father attend upon a psychiatrist for the purposes of a psychiatric assessment.

4. Dr D was engaged by the Independent Children’s Lawyer and the mother attended an interview with Dr D on 30 July 2015.

5. The interviews for the updated family report took place on 17 September 2015 with Ms C and despite attempts to contact the mother, she failed to attend on that day or make contact with the parties or Ms C.  Ms C prepared her report based on interviews with the father and grandmother as well as observations of the child with the father and grandmother and with the father and Mr E Neil.

6. The mother failed to attend procedural hearings on the following dates:

   a)22 April 2015;

   b)26 August 2015;

   c)28 October 2015; and

   d)25 November 2015.

7. The mother failed to attend the pre-trial hearing before me on 18 July 2016 and has not filed any material since 9 March 2015.

8. The mother has not seen the child unsupervised since 2014 and not at all since January 2016 however, does have some irregular telephone communication with the child, facilitated by the grandmother.

9. The mother made no appearance at the trial of this matter on 4 August 2016 nor was there any appearance on her behalf.  Final orders were therefore made in her absence pursuant to the 18 July 2016 Order.

Discussion

1. The Independent Children’s Lawyer submitted that if it were not for the grandmother, it is more likely than not that the child would be in foster care. I accept that submission. He submitted that the grandmother has insight into the needs of the child, the mother and the father, particularly because of her healthcare background, and that she has a realistic view of the limitations and capacities of the mother and father to care for the child. I accept those submissions.

2. According to Ms C, the child has the strongest emotional attachment to the grandmother. This is unsurprising given that the grandmother has been her primary carer for most of her life.

3. It appears that the child is developing a relationship with the father and that she knows who her mother is but has limited experience of her. The grandmother stated that the child fantasizes about her mother. It is clear that the grandmother fosters a relationship between the child and her parents.

4. The mother currently spends no time with the child. She last saw her in January 2016 and there has been no communication from the mother for at least two months.

5. The parents’ capacity to parent has been significantly compromised by their mental illness and, in the father’s case, his drug abuse. Neither of the parents have the capacity to provide for the child’s emotional, physical and psychological needs.

6. I am satisfied that the grandmother has the capacity to provide for all of the child’s needs and that it is in the child’s best interests to continue to live with her. I am satisfied that it is also in the child’s best interests for the grandmother to have sole parental responsibility.

7. I note that the father consents to the proposed Order.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 August 2016.

Associate: 

Date:  11 August 2016