MEHTA & AYLA

[2018] FamCA 939

FAMILY COURT OF AUSTRALIA

MEHTA & AYLA [2018] FamCA 939

FAMILY LAW – CHILDREN – Undefended hearing – Mother non-attendance at Court events – Where appropriate to proceed on an undefended basis – Where there are allegations of substance and alcohol abuse and aberrant conduct by both the father and mother – Where Department of Family and Community Services  decline the Court’s request to intervene – Where the children have been with the father for some time with no time spent with the mother – Where the mother has disengaged with the Court and the children – Where the father’s recent history is much improved and stable – Where in all the circumstances it is in the children’s best interest that they remain in his primary care – Where orders made accordingly.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Mehta

RESPONDENT: Mr Ayla

INDEPENDENT CHILDREN’S LAWYER: Mr Layson

FILE NUMBER: PAC 2341 of 2016

DATE DELIVERED: 16 November 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 September 2018

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Bell Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Upon Noting There Is No Appearance By Or On Behalf Of The Applicant Mother, Orders Were Made on 12 September 2018 That

1. The Initiating Application filed by the mother on 24 May 2016 is struck out.

2. The father have sole parental responsibility for the children X born … 2010, Y born … 2014 and Z born … 2015 (“the children”).

3. The children live with the father.

4. Upon contacting the father in writing seeking to spend time with the children and upon request from the father (with such requests not to be made more than once per month), within 24 hours the mother undertakes a chain of custody urinalysis test (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) and shall upon receipt of the results forward a copy to the father.

5. Upon provision of a negative urinalysis result, that the children spend time with the mother as agreed between the parties and in default of agreement from 10.00 am Saturday until 5.00 pm Saturday and 10.00 am Sunday until 5.00 pm Sunday as supervised by an adult known to the child approved by the father and each alternate weekend thereafter.

6. Pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

7. Pursuant to s 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

8. The matter be removed from the active pending cases list.

The Court Notes That

1. There is no application for costs by the Independent Children’s Lawyer as the father is legally aided.

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 Mehta & Ayla 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 PARRAMATTA

FILE NUMBER: PAC 2341 of 2016

Ms Mehta

Applicant

And

Mr Ayla

Respondent

REASONS FOR JUDGMENT

introduction

1. These are parenting proceedings commenced by the applicant mother by an Initiating Application filed in Suburb B Local Court on 20 April 2016 and transferred to the Family Court on 11 May 2016.

2. The application concerns eight year old X, four year old Y and three year old Z (“the children”), the children of Ms Mehta, the mother, and Mr Ayla, the father.

3. The matter proceeded to an undefended hearing  on 12 September 2018 in which the father sought orders that he have sole parental responsibility of the children, children live with him and spend time with the mother each alternate weekend supervised by the maternal grandmother on the condition that she provide a negative urinalysis.

4. The Independent Children’s Lawyer (“ICL”) supported the orders sought by the father, however, submitted that supervision be conducted by an adult known by the children and approved by the father.

Context

1. The parties commenced a relationship in 2009 and married the same year. The parties lived apart for the duration of their marriage except for a year between 2011 and 2012 in which the mother stayed in the paternal grandparent’s house with the father.

2. The father lived with the paternal grandparents in a suburb 45 kilometres away from the mother and children. During their marriage the father spent sporadic time with X and Z and substantial time with Y.

3. The parties separated on a final basis in mid-2015, prior to the birth of the youngest child Z.

4. Following separation the children initially resided with the mother and spent time with the father as agreed between the parties. This arrangement broke down in April 2016 and from this time until April 2017 the residence of the children was changed on multiple occasions between the parties and the children did not reside together as a sibling unit.

5. The mother has not spent any time with the children since April 2017, with the exception of the observation session with a family consultant for the purposes of the Family Report.

6. Interim orders were made by consent for the children to live with the father in December 2017.

The proceedings

1. On 20 April 2016 the mother commenced these proceedings in Suburb B Local Court.

2. On 13 May 2016 the Local Court made interim orders for the child X to live with the father and the two youngest children to live with the mother and for each alternate weekend for the children to spend time with their non-resident parent. The proceedings were transferred to the Family Court, to be considered for placement on the Magellan Protocol relating to children at risk. The matter was reviewed by a Registrar and the matter was not considered to meet the criteria for inclusion in the Magellan list.

3. On 30 May 2016 an order was made appointing an ICL.

4. On 19 July 2016 the parties were ordered to meet with a family consultant for the purposes of the preparation of a Child Responsive Memorandum. The parties met with the family consultant in September 2016.

5. On 9 December 2016 the matter was listed for judicial case management. Concerns for the children arising from the Memorandum were identified and the Department of Family and Community Services (“the Department”) was invited to intervene in the proceedings and the parties were ordered to undertake urinalysis for drug screening at the request of the ICL.

6. On 20 January 2017 the Department indicated that they would not intervene in these proceedings in circumstances where the children were said not to be at serious risk of harm.

7. On 2 February 2017 interim orders were made by consent of the parties that:

   a)the children X and Y live with the father; and

   b)the child Z live with the mother;

   c)that the children spend time with their non-resident parent each alternate weekend, with the mother’s time to be in the home of the maternal grandmother and that she be present;

   d)that a Family Report be prepared.

8. A Family Report dated 4 October 2017 was released to the parties on 12 October 2017.

9. On 8 December 2017 trial directions were made and interim consent orders were made that provided:

   a)That the children live with the father; and

   b)That the children spend no time with the mother unless she is able to provide a clear urinalysis result and in that event the children spend each alternate weekend with the mother, supervised by the maternal grandmother.

10. On 22 March 2018 the matter was listed for a compliance check, there was no appearance for or on behalf of the mother. The mother did not comply with trial directions.

11. On 21 June 2018 the matter was listed for a further compliance check, there was again no appearance for or on behalf of the mother who remained in breach of trial directions.

12. On 20 August 2018 the matter was listed for judicial case management by reason of the mother’s non-compliance. There was no appearance for or on behalf of the mother and the matter thus was set down for an undefended hearing.

13. On 12 September there was no appearance by or on behalf of the mother and final orders were made on an undefended basis.

Procedural fairness

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

Parties' participation

(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

Note: The court may dispense with compliance with a rule (see rule 1.12).

(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

(3)      …

1. In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother’s involvement and leave uncertain the circumstances of the children and the father.

2. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

3. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

4. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

5. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

6. Such is the case presently for consideration.

7. In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:

   197.In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:

   If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)

   …

8. The Full Court then said:

   201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:

   Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.

   202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.

   …

   204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.

9. On 21 June 2018 the ICL was ordered to advise the mother of the orders made and to inform her that a consequence of her continued non-appearance would be that the matter would proceed on an undefended basis.

10. On 20 August 2018 the ICL was ordered to forward to the mother a copy of the orders and again inform her that if she was not in personal attendance on the next occasion the matter would proceed on an undefended basis.

11. On 7 September 2018 the father served the mother via her email and by post to her home address his affidavit and Minute of Order sought and notified her of the date of the undefended hearing.

12. On 12 September 2018 there was no appearance for or by the mother, the Court was satisfied all appropriate attempts had been made to notify the mother and that she had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate to proceed on an undefended basis. By reason of the children’s settled circumstances with the father, orders were made with reasons to be published at a later date.  These are those reasons for judgment.

The father’s documents

1. The father relied on the following documents:

   a)His Response to Initiating Application filed 23 December 2016;

   b)His Affidavit filed 7 September 2018;

2. The father seeks orders, in summary, as follows:

   a)That he have sole parental responsibility for the children;

   b)That the children live with him;

   c)That should the mother seek to spend time with the children she contact the father in writing and submit a negative urinalysis result: if she does this the mother spends time with the children from 10.00 am to 5.00 pm Saturday and 10.00 am to 5.00 pm Sunday supervised by an adult known to the children and approved by the father and later each alternate weekend.

The evidence

1. The mother, who is aged 31, and the father, who is aged 38, commenced a relationship in 2009 and were married in that year.

2. The paternal family are Country C Indian and the maternal family has mixed Country C Indian and Country D heritage.

3. The mother has an extensive criminal record dating back to 2009. She has been convicted in relation to charges of damage to property, common assault, drug possession, assault of a police officer, resisting police, larceny, possession of a knife in public and a conviction for assault occasioning actual bodily harm.

4. The father also has an extensive criminal record including multiple criminal charges dating back to 1997.

5. The father’s criminal history includes serious and violent offences. In 2003 the father was convicted of three counts of aggravated sexual assault and was sentenced to nine years imprisonment with a non-parole period of five years and six months. He was also convicted of sexual intercourse without consent and was given a sentence of seven years imprisonment with a non-parole period of five years and six months.

6. Following his release from prison the father served an additional sentence of seven months imprisonment for breaching his parole conditions and was released in late 2011. Since then he has only come under notice as referred to below.

7. The first child, X, was born in 2010. In 2011, the Department removed X from the mother’s care and placed her with the maternal grandmother for a period, following an incident in which the mother was found by police intoxicated at a train station at 3.00 am with the child. The second child was born in 2014 and their youngest child was born in 2015 shortly after the parents’ separation.

8. During the marriage the mother was a significant carer for the children and the father visited the children at the mother’s home a number of times a week. The child, Y, lived with the father for sporadic blocks of three to four months over the course of the marriage.

9. The parties have a long history of alcohol and drug use. The father began using marijuana when he met the mother in 2009 and over time also began using speed and ice. He reported to the Family Consultant that his last use of drugs was in December 2016 which was a one off use of speed and was apprehended with a small quantity of ice in his vehicle in June 2016. The father deposes that he does not currently use any drugs.

10. The father drank heavily prior to his incarceration, often between one to two cases of beer per day. The father has not consumed alcohol since 2012.

11. The mother has used marijuana daily since she was 15 years old and is a user of ice. The mother used ice during her second pregnancy, with Y.

12. Despite Court orders for both parties to undertake urinalysis drug testing, no results have been provided to the Court in evidence

1. The parties separated in mid-2015 and the children lived with the mother. Since separation the children’s residence has been changed multiple times and for the majority of the time the children have not resided together.

2. In April 2016, the father attended the mother’s home to spend time with the children. X then aged six told the father that the mother hits her and makes her look after Z. Following this disclosure the father took X into his care.

3. In May 2016, the mother attempted to remove X from her school classroom causing X to become distressed. The school contacted the police. As a result of this incident a final Apprehended Domestic Violence Order (“ADVO”) was made for X’s protection from the mother.

4. Subsequent to X coming to live with the father, the two boys began spending time with the father each alternate weekend. From May to July 2016 the mother did not collect the boys as had been ordered on three occasions. From early July 2016 the boys remained in the father’s care.

5. From July until the end of October 2016 the mother spent sporadic time with the children at the home of the father.

6. In mid-October 2016, the paternal grandmother arranged for the children to have a haircut. A few days later, the mother attended the father’s home and threatened to chop the grandma’s arms off if she touched her son again. The father reported the incident to police. Later on 27 October 2016 the mother attended the home of the father without his consent. The father telephoned the police. Before the police arrived the mother took the youngest child, Z and drove off with him. The child was later returned to the father’s care.

7. As a result of this incident the mother was convicted of contravening the ADVO and was fined.

8. In February 2017, the youngest child Z again returned to live with the mother. On 24 February 2017 the father was contacted by the maternal uncle who told the father that the mother was using drugs and that the child was not safe in her care. On 25 February 2017 there was a violent incident in which the mother attacked the maternal grandmother and was then hit with a bat by the maternal uncle. This incident was witnessed by X who then refused to spend any further time with the mother.

9. In March 2017 the mother informed the father that she was going to live in a women’s refuge and asked the father to take the youngest child into his care, which he did.

10. In April 2017 the father dropped the two youngest children at the maternal grandmother’s home to spend time with the mother under the grandmother’s supervision. The mother then retained the children. Approximately a week later the mother allowed the father to pick the two youngest children up.

11. In April 2017 the mother was charged with and found guilty of the possession of drugs and having a knife in public.

12. The mother has not spent time with the children since April 2017, with the exception of the Family Report observation session. The father has been informed by the maternal uncle that the mother is continuing to use drugs and, therefore, he has not made the children available to her.

13. The father currently lives in a five-bedroom home with the paternal grandparents and his brother. He is self-employed.

14. X is enrolled at a local school in year three and the two youngest children attend a local day care centre. The father has completed a parenting course through E Group.

Child Responsive Memorandum

1. On 15 September 2016 the parties and children met with a family consultant for the purposes of the preparation of a Child Responsive Memorandum.

2. In her report X reported to the family consultant:

   That her mother used to hit her and yell at her. [X] also volunteered that there was one night when [Y] accidentally head butted their mother and their mother hit [Y] really hard on the arm.

   …

   She was asked if there was anything that made her feel scared or worried at her father’s house and she said “he starts yelling at me when I don’t know my maths”. [X] said that her father has hit her on three occasions.

Family Report

1. On 3 July 2017 the parties, the children, the paternal grandparents and maternal grandmother attended on a Family Consultant for the purposes of the preparation of a Family Report.

2. In her report dated 4 October 2017 the Family Consultant made the following comments about the children:

   [X] indicated a preference to continue living with [Mr Ayla] but to also maintain a relationship with [Ms Mehta].

   [Y] and [Z] were not of an age or stage of development whereby they could be interviewed. On observation, [Y] sought out both parents and [Z] appeared more orientated towards [the father’s] caregiving than [the mother’s]. He tended to be more responsive towards [the father], was seen to seek him out and was more verbal and animated when in his care. It appeared that, at this stage, [Z] would be more likely able to use [the father] as a safe base than [the mother]. [Z’s] behaviours on observation with [the father], when compared with [the mother], were consistent with his recent history of caregiving and should not necessarily be considered as his preference or indicative of parenting capacity.

   The children appear to have more established relationships with the members of the paternal family than maternal family and this is consistent with the history of their caregiving. It appears that it would be less of an adjustment to remain living with [the father] in [Mr Ayla Snr] and [Mrs Ayla’s] household than any alternate arrangement. It would appear that the children have an openness and desire to have a relationship with both parents.

   …

3. As to the mother the Family Consultant opined:

   [The father] alleged that [the mother’s] ‘ice’ use impaired her functioning and also alleged that she was exposing the children to her ‘drug dealer’s’ home.  If it was the case that [the mother] was using ‘ice’ frequently it can have a multitude of negative impacts on the children. It may put the children at risk of direct exposure to the drugs and drug paraphernalia. It is likely to have a negative impact on [the mother’s] parenting, including her ability to adequately supervise the children, attend to the children’s daily physical and educational needs and be attuned to the children’s psychological needs.

   There are allegations of [the mother] being physically violent towards the children. [the father] alleged that [the mother] had recently been physically violent towards [Z] when she is “coming down” after using ‘ice’. The information provided by FACS suggests that there have been previous allegations made of [the mother] being abusive towards the children and an admission by [the mother] of being abusive towards [X] whilst [the mother] was coming down from drugs. One risk factor associated with physical violence is the risk of injury to the child. [The father] made allegations that [Z] had sustained minor injuries at the hands of [the mother]. It is a matter for the Court to determine the veracity of such allegations. If the children have been exposed to physical violence it puts them at risk of psychological harm as well as physical harm. It may have negative impacts on the children’s mental health such as difficulties with anxiety and depression, internal and externalising behavioural difficulties and relationship problems such as hypervigilance in relationships and trust issues.

4. As to the father the Family Consultant opined:

   The material produced under subpoena in regards to [the father’s] criminal convictions and [the father] and [the mother’s] narratives suggest that [the father] has an extensive history of engaging in violent crimes, including violent sexual crimes and breaches of Family Violence Orders and antisocial behaviour. [The father’s] crimes appear to have been perpetrated against Police Officers, partners and associates. [The father’s] narrative on interview about his criminal history was dismissive, minimising and seemingly misleading (when compared to the information contained in the Police records) which raised concerns about his willingness to take responsibility for his crimes and acknowledge the impact that his behaviour has had on his victims. It is noted that notes contained in the FACS subpoena material suggest that a risk assessment report completed by Corrective Services NSW rated [the father] as a “high risk” of sexual reoffending on the STATIC 99. It would appear that this assessment was completed after [the father] had completed the therapeutic CUBIT Program. It is noted that [the father] said that he refused to comply with his parole conditions that required him to complete a further therapeutic group for sex offenders. It is beyond the scope of this assessment to make an assessment of [the father’s] likelihood of reoffending with either violent or sexual crimes. However, [the father’s] criminal history raises very significant concerns about his parenting capacity and the risk of harm that he may pose to the children.

   There are concerns about the possibility of [the father] using inappropriate discipline of the children, having an in ability to prioritise the children’s needs above his own and an inability to tolerate age appropriate behaviour.

   [The father] makes admissions to significant difficulties with drug and alcohol abuse in the past. His history of use raises concerns about alcohol and drug abuse being an issue for him in the future. [The father] reports that he is currently abstinent from alcohol and rarely uses illicit drugs. Prior to the Child Responsive Program, [the father] had been convicted of ‘ice’ possession. His account was that the drugs were not his, however, it is noted that the Police notes report that he made “full admissions to the drugs stating it was ‘ice’ and it was for personal use”. This raises concerns about the accuracy of the information that [the father] is providing to this Court about his illicit drug use.

5. The Family Consultant stated that both parties made admissions that they perpetrated family violence against the other and, therefore, recommended that it would be in the children’s best interests if the parents, contact with one another was limited so as to reduce the risk of the children being exposed to family violence or parental contact. The family consultant held serious concerns regarding the parents’ capacity to protect the children from unacceptable risk of harm and opined that:

   If the children are to remain in the care of either [the father] or [the mother] it is recommended that the parent who has the primary care of the children engage with a therapeutic case management program, preferably affiliated with FACS, or if they decline to provide assistance, with a local family support service, to assist to monitor risk, the children’s development and support the parent to maximise their parenting capacity.   

6. As to the role of the maternal grandmother as a supervisor, the Family Consultant opined:

   [The maternal grandmother] has previously acted as a supervisor for [the mother’s] time with the children. Information obtained in the course of this assessment suggested that [the maternal grandmother] has acted in the children’s best interests in the past and made arrangements to remove them from [the mother’s] care when she has allegedly been under the influence of ‘ice’. In this regard she appears to be a suitable supervisor. However, it would appear that there is a history of [the mother] engaging in conflict with [The maternal grandmother] and the children being exposed to such. No concerns were raised about [The maternal grandmother’s] alcohol consumption in this assessment, however, it is noted that the information obtained under subpoena from the Department of Family and Community Services suggests that there has been a history of significant concerns about [The maternal grandmother’s] alcohol consumption. It does not appear to be in the children’s best interests to risk further exposure to family violence between [the mother] and [The maternal grandmother]. Therefore, supervision at a contact centre, with impartial supervisors in a structured environment, appears more likely to meet the children’s needs.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. 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.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act 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.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

Best Interests

The Primary Considerations: s 60CC(2)

1. 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The mother was a significant carer of the children until separation but has spent no time with the children since April 2017, with the exception of the observation session for the purposes of the Family Report. The observations of the family consultant reflect a warm and affectionate relationship between the children and the mother. Though it is a less established relationship than that shared between the children and the father and paternal family, consistent with the fact that he has been their primary carer for over a year. X expressed a view that she wished to live with the father and maintain a relationship with the mother.

4. Although the mother is not participating in proceedings, the orders which the father proposed and which are supported by the ICL would ensure that the children continue to have a meaningful relationship with the mother, should she cease drug use.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In light of the mother’s significant and recent history of drug use and the lack of evidence as to her current drug use the mother may pose a risk of harm to the children.  

2. The father’s history is regrettable and, in other circumstances, would render him an inappropriate carer for the children with significant concerns as to his capacity and risk, his antisocial traits and past sexual offences he may pose to the children. Yet in the absence of the Department intervening in these proceedings and it being content to leave the children in the care of the father without Departmental support or assistance and in the absence of any extended family member having sufficient concerns for the children, then the father is the best of two bad options.

3. This consideration, which is to be given primacy, is in itself supportive of and determinative of the orders sought by the father and somewhat reluctantly supported by the ICL.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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 extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   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)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   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; and

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

1. Many of the considerations above are relevant in the context of the background matters discussed.

2. X expressed views to the Family Consultant that she wishes to live with the father and maintain a relationship with the mother. Some weight can be given to this view given the child’s age. The younger two children were not interviewed in regards to their views, and as such they are unknown.

3. As previously stated, the children have been in the primary care of both of the parents at different times in their lives. Since April 2017 they have lived with the father and have not spent regular time with the mother. The children’s relationship with the mother is compromised by her use of illicit drugs and aggressive behaviour. The family consultant formed the opinion that the children’s relationship with the father was a stronger one, and, in particular, he provided a ‘safe base’ for Z.

4. The father has more recently demonstrated a positive attitude to the responsibilities of parenthood, in particular, he has acted protectively in removing the children from the mother’s care when he became aware of her drug use. The mother’s attitude as outlined earlier, particularly in relation to her drug use, failure to comply with family court orders and aggression, demonstrate a poor attitude to the responsibilities of parenthood.

5. In disengaging from these proceedings the mother can be taken to be forfeiting any opportunities for her to participate in decision making or spend time with the children other than as agreed to by the father.

6. The orders sought by the father will not see the children’s current circumstances change in any way and there is no practical difficulty or expense associated with those orders.

7. There are serious concerns regarding the parenting capacity of both parents in these proceedings. The father’s violent criminal history and past drug use raises concerns in regards to his capacity to care for the children. However, he has not used illicit substances for approximately two years and has, it appears, demonstrated himself to be a capable father since the children came into his care in April 2017.

8. The mother’s ongoing drug use, criminal history and perpetration of family violence against the father and maternal grandmother to which the children have been exposed, raises concerns about her capacity to care for the children should she spend time with them.  As previously stated, the risks posed by the mother to the children are substantially determinative of this application.

9. In the context of such a risk, it is appropriate that the mother spend no time with the children until she is able to provide a negative urinalysis drug test result, and her time will be supervised as sought by the father and supported by the ICL.

10. All of the aforementioned relevant considerations are indicative of orders being made in the best interests of the children as sought by the father and supported by the ICL.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 November 2018.

Associate: 

Date:  16 November 2018