Mercer and Friedson & Anor

[2017] FamCA 711

FAMILY COURT OF AUSTRALIA

MERCER & FRIEDSON AND ANOR [2017] FamCA 711

FAMILY LAW – CHILDREN – Best Interests – Undefended final hearing – Where the applicant is a non-parent – Where both parents have disengaged from proceedings – Where there are allegations of family violence and drug use – Where there are serious concerns as to each parent’s capacity to care for the children – Where the applicant paternal grandmother has had primary care of both children for nearly two years – Where there are no concerns as to the capacity of the paternal grandmother to care for the children – Where orders made as sought by the paternal grandmother.

FAMILY LAW – PRACTICE AND PROCEDURE – Where both parents have disengaged from the proceedings – Where both parents have been multiple opportunities to participate in the proceedings – Where it is appropriate to proceed on an undefended basis. 

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

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Ms Mercer

FIRST RESPONDENT: Ms Friedson

SECOND RESPONDENT: Mr Mercer

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 2152 of 2015

DATE DELIVERED: 14 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 28 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Amanda Little & Associates

FIRST RESPONDENT: SELF-REPRESENTED LITIGANT No appearance

SECOND RESPONDENT: SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey of Legal Aid NSW Parramatta Family Law

Orders

1. That the paternal grandmother, Ms Mercer, shall have sole parental responsibility for the children, B born … 2005 and C born … 2010.

2. That the children shall live with the paternal grandmother Ms Mercer.

3. That the children shall spend time with the mother as agreed in writing, such writing to include SMS or email communication, between the mother and the paternal grandmother such time to be subject to such conditions as are reasonably imposed by the paternal grandmother for the welfare and safety of the children.

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 Mercer & Friedson 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 2152  of 2015

Ms Mercer

Applicant

And

Ms Friedson

First Respondent

And

Mr Mercer

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. This are parenting proceedings commenced by the applicant paternal grandmother, Ms Mercer (“the paternal grandmother”), by Initiating Application filed 7 July 2015 in the Federal Circuit Court of Australia.

2. The application concerns 12 year old B born in 2005 and six year old C born in 2010 (“the children”), the children of Mr Mercer, the first respondent father (“the father”), and Ms Friedson, the second respondent mother (“the mother”).

Context and Procedural Fairness

1. The parties commenced a relationship in 2004. The parties appear to have separated and reconciled on multiple occasions prior to final separation sometime in 2015 or 2016.

2. On 23 October 2010 parenting orders were made by the D Town Magistrates Court in Queensland for the parents to equally share parental responsibility and for the children to live equally with the parents.  

3. On 22 April 2014 final parenting orders were made in the Federal Circuit Court for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother as agreed between the parents.

4. The paternal grandmother initiated these proceedings on 7 July 2015. On that date orders were made by a Judge in the Federal Circuit Court transferring the matter to this Court, suspending the orders dated 22 April 2014, appointing an Independent Children’s Lawyer (“ICL”) and for the child, B, to live with the paternal grandmother.  

5. On 13 October 2015 there was no appearance by or on behalf of the mother. The father appeared in person and informed the Court that he intended to take no further part in the proceedings but he supported the orders sought by the paternal grandmother. The proceedings were set down for interim hearing on 23 October 2015 and orders were made for the mother to file a Response and be present in Court on that date or a warrant would issue for her arrest.

6. On 23 October 2015 there was no appearance by or on behalf of the father. Following interim hearing, at which both the mother and paternal grandmother were legally represented, orders were made for the paternal grandmother to have sole parental responsibility for the children and for the children to live with her and spend time with the mother as agreed between the parties. The paternal grandmother was restrained from allowing the children to come into contact with the father. Further orders were made for the production of a Family Report and that the mother be restrained from attending at or communicating with the children at school.

7. On 10 December 2015 there was no appearance by the father. The orders made 23 October 2015 were varied as follows:

   (1)That C & B spend time with the mother each alternate Saturday from 10am until 12pm at McDonalds Family Restaurant, E Street, Suburb F commencing Saturday 12 December 2015.

   (2)The paternal grandmother will deliver C and B to the playground and remain inside the premises while C & B is spending time with the mother.

   (3)At the conclusion of the time C and B are spending with the mother the paternal grandmother shall return to the playground and the mother shall leave the premises.

8. Further orders were made on that date for the mother to communicate with the children by telephone each week.

9. On 12 February 2016 the paternal grandmother filed an Application in a Case seeking that the orders of 10 December 2015 be suspended and the mother spend supervised time only with the children.

10. On 25 February 2016 the mother appeared in person and orders were made by consent suspending the mother’s time with the children.

11. The matter was listed for interim hearing on 23 March 2016 and on that date the matter was adjourned for the mother to file her documents.

12. On 27 April 2016 orders were made by consent for the mother to spend two hours of supervised time with the children every alternate Saturday at a contact centre and for the mother and father to be restrained from approaching or contacting the paternal grandmother.

13. On 19 July 2016 the Family Report was released to the parties in court. On that date trial directions were made and orders were made for the mother and paternal grandmother to undergo random urinalysis testing at the request of the ICL.

14. On 11 October 2016 the matter was before the Registrar for a compliance check and it was noted that the mother and father had filed no documents for trial.

15. On 15 November 2016 there was no appearance by or on behalf of the mother or the father and the matter was adjourned to 15 December 2016 with the ICL to notify the parties that the matter would proceed to an undefended final hearing if they did not appear in court on the adjourned date.

16. On 15 December 2016 the mother appeared in person and was ordered to file her documents by 27 January 2017 or the matter would proceed to undefended final hearing.

17. The mother filed an affidavit on 27 January 2017 and when the matter was next before the Court on 3 February 2017 updated trial directions were made.

18. On 27 April 2017 the parties were granted leave to obtain final hearing dates.

19. On 6 July 2017 the mother’s solicitors filed a Notice of Ceasing to Act.

20. On 28 July 2017 there was no appearance by or on behalf of the mother or the father and the matter proceeded to undefended hearing and judgment was reserved.

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)…

2. 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 and father’s involvement and leave uncertain the circumstances of the child.

3. 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.

4. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 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.

5. 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.

6. 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 that litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

7. Such is the case presently for consideration.

8. 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; e.g. 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)

   …

9. 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”.

10. On 28 July 2017 the Court was satisfied that all appropriate attempts had been made to notify the mother and the father and that they had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis.   

The paternal grandmother’s documents

1. The paternal grandmother relied upon the following documents:

   a)Amended Initiating Application filed 23 September 2016;

   b)Her affidavit filed 23 September 2016;

   c)Her updating affidavit filed 13 July 2017;

   d)Affidavit of Ms G filed 23 September 2016;

   e)Affidavit of Ms H Mercer filed 23 September 2016;

   f)Affidavit of Mr J Mercer filed 23 September 2016;

   g)Affidavit of Ms K filed 3 March 2016.

The paternal grandmother’s evidence

1. The paternal grandmother deposes to the mother and father commencing a relationship in 2004 in Queensland when the father was 21 and the mother was 15.

2. Shortly after commencing a relationship the mother fell pregnant with the parties’ first child, B, and the mother and father moved in with the paternal grandparents.

3. The mother and father lived with the paternal grandparents until 2005 when B was four weeks old. The paternal grandmother deposes to the father later contacting her and asking her to “keep [B] for the night” and subsequently B living with her until he was two years and eight months old.  

4. The paternal grandmother deposes to the father visiting B most days and the mother visiting a few times per week until 2006 when the mother and father moved further away from the paternal grandmother.

5. In 2007 the mother and father removed B from the paternal grandmother’s care and he remained living with them and spent time with the paternal grandmother each weekend for the next few years.

6. The parties’ second child, C, was born in 2010.

7. In May 2012 the paternal grandmother attended an appointment with B’s paediatrician in L Town and B was diagnosed with moderate to severe Autism.

8. Following the paternal grandmother relocating to New South Wales in 2012, the father contacted her claiming the mother’s behaviour had become erratic and she was in a new relationship with a member of a motorcycle club. The father then made arrangements for the children to stay with the paternal grandmother in NSW.

9. The mother filed an application in D Town Magistrates Court seeking the recovery of the children. Consent orders were made on 23 October 2012 for the parents to equally share parental responsibility and for the children to live in a shared care arrangement.

10. In late 2012 the paternal grandmother deposes to the parents coming to live with her and her husband in NSW. She claims B has been in her care since this date.

11. During 2013 and 2014 the police were called on multiple occasions due to domestic disturbances between the parties. The father was arrested and had an apprehended violence order issued against him. The mother became involved with drugs during this period.

12. On 10 February 2014 the father initiated proceedings in the Federal Circuit Court of Australia after the mother unilaterally removed C from NSW and moved to Queensland.

13. On 13 February 2014 a Recovery Order was issued for the return of the child C. On 16 February 2014 that recovery order was executed in Queensland and the mother was arrested by police.

14. On 22 April 2014 the matter was dealt with on an undefended basis and orders were made granting the father sole parental responsibility for the children and for the children to live with him and spend time with the mother as agreed between the parents.

15. Subsequently, the parents recommenced their relationship in April 2014 with B remaining in the paternal grandmother’s sole care and the parents jointly caring for C.

16. The paternal grandmother became aware in late 2014 that the parents were taking drugs and involved with criminal groups. During this time the parents’ home was raided by police and an attempt was made on the father’s life.

17. In February 2015 the paternal grandmother was contacted by the father who informed her that that the parents had argued and the mother had left with C. The paternal grandmother spoke to the police, the Department of Family and Community Services (“the Department”) and a caseworker from another agency about this incident.

18. On 5 April 2015 C was placed in the care of the paternal grandmother by the father. Following this, the paternal grandmother was visited by a caseworker from the other agency and was told that the Department had deemed the children safe in her care.

19. On 27 April 2015 the paternal grandmother deposes to the mother forcibly removing C from her care and assaulting the paternal grandmother and the paternal grandmother’s daughter in the process. The paternal grandmother contacted the police and the Department about this incident.

20. The paternal grandmother consequently commenced the current proceedings in July 2015.

21. The paternal grandmother did not see C between 15 September 2015 and interim orders being made for C, in addition to B, to live with her on 23 October 2015. 

1. Following the orders of 23 October 2015 the paternal grandmother deposes to organising telephone contact between the mother and the children, during which, on multiple occasions, the mother told the child, C, that she could not see her because of “Nanna”.

2. Later contact was arranged between the mother and the children on 28 November 2015 at Suburb F McDonalds. The paternal grandmother observed the mother constantly whispering in C’s ear during this visit and failing to release the child to the paternal grandmother at the end of the visit leading to a physical altercation between the mother and the paternal grandmother.

3. The paternal grandmother deposes to C being aggressive, particularly towards her brother, following the visit and saying things like “I don’t want you anymore Nanna” and “You’re not my brother [B]”.

4. After the orders made on 10 December 2015 for the mother to spend time with the children for two hours each alternate Saturday at McDonalds the time occurred irregularly with the mother often failing to attend.

5. During one visit on 6 February 2016 the mother attempted to film the paternal grandmother and facilitated C speaking to the father via her mobile phone. The paternal grandmother was threatened by the mother.

6. Following orders made on 27 April 2016 the mother’s visits with the children at Suburb F Contact Centre commenced on 13 August 2016. B consistently refused to attend these visits and C attended these visits alone.

7. On 28 January 2017 the mother posted video footage of her contact visit with C on Facebook which resulted in her contact visits being suspended.

8. Supervised time resumed on 25 March 2017 but the mother cancelled her scheduled visits with the children in April and May 2017. As a result the contact centre terminated the supervision access agreement with the mother.

9. The children have had no contact with the mother since March 2017.

10. Both children are attending on a paediatrician, a psychologist, a speech therapist and an occupational therapist regularly as facilitated by the paternal grandmother. Both children are also participating in appropriate extra-curricular activities.

11. B has been assessed for a supported student placement when he attends high school next year and has been enrolled in a school that specifically supports children with intellectual disabilities.

12. The paternal grandmother says the children are being well settled in her care and seeks orders that she have sole parental responsibility for the children, that the children live with her and spend time with the mother at a contact centre for two hours each month or at such times as offered by the contact centre. 

The Child Responsive Program Memorandum

1. On 16 May 2016 the mother, father, paternal grandmother and the children attended on a Family Consultant for the purpose of the preparation of a Family Report.  

2. At that time the children were living with the paternal grandparents and were not spending time with the mother or the father.

3. The mother reported living with her partner, Mr M, and working for her partner’s business. The father reported having no fixed address and no paid employment.

4. The Family Consultant relevantly reported the following about the children:

   [B] (aged ten years, nine months) presented with significant developmental delay and other behaviours, consistent with moderate autism and intellectual disability. When being booked into child care by [the paternal grandmother], [B] was observed to become anxious and he engaged in rapid and repetitive speech and hand flapping. He allowed himself to be settled by [the paternal grandmother], who intervened appropriately by explaining the room to him and what would be happening during the day and [B] then became excited about the toys and agreed to stay in childcare. During interview, [B] appeared to understand some but not all of the questions put to him. In addition, it appeared he may have been relating conversations he had had with [the father] and [the mother] during the playroom observations (which had occurred just prior to his interview) rather than historical facts. On several occasions [B] asked when the interview would be finished, thus, he was only interviewed briefly.

   [B] said that he is not scared of anyone in his family but that [the paternal grandmother] is the best adult at looking after children and that, of all the houses to live in, hers is the best.

   [B] indicated that he wants to spend time with his father and that if he lives with [the paternal grandmother] this can occur, stating, “Nanna will pick Dad up, you see.” [B] said that [the father] would buy him video games, including “Masters of the Universe” and he declared, “I can play it in my room with blue and white stickers and fluffy clouds, you see.” [B] said that [the father] had sometimes played video games with him when he had lived with them and he said that [the mother] had played “Batman and Wonder Woman” with him. [B] said that, if [the father] lives separately from [the paternal grandmother] he should visit that [the paternal grandmother’s] house. (sic)

   When asked if he wants to spend time with [the mother], [B] stated, in a matter of fact tone, “I don’t think so” but was unable to give reasons why.

   [C] (aged five years, five months) initially refused to be interviewed but accompanied the family consultant to the interview room when allowed to bring a doll from the childcare room.[C] reported that she is enjoying kindergarten, although, she finds her teacher “grumpy.” She was able to name her friends. [C] appeared to have some difficulties with her speech, the nature of which could not be determined in this assessment.

   [C] indicated her awareness that her parents are “not friends” and that “Nan and Mum are not friends” but that [the paternal grandmother] and [the father] are on good terms. [C] spontaneously offered that [the father] was going to “bring my phone back” and that [the mother] had made a note for [C] which she pulled out of her pocket to show the family consultant, stating “Look, never forget. Look, never forget.”

   [C] said that she misses [the mother] and wants to live with her. She said that, of all the adults in her family, [the mother] is the best at looking after children. When asked what she likes to do with [the mother] she stated, “I just play with some toys there.”

   [C] said that she would like to spend time with [the father]. She said that he never smacks her, only shouts when she is naughty. [C] denied that she is scared of either of her parents.

   [C] described [the paternal grandmother] as a “grumpy Nan” and claimed she could not think of anything nice about her. She claimed to be “scared of Nan and Poppa” and when asked why, stated, “I don’t want to live with them.” [C] said she does not know why she is living with the paternal grandparents and said that she does not want to spend any time with them.

5. The children were observed to be comfortable with their father, seeking his attention and enjoying their time with him and the Family Consultant reported the following:

   [The father] was observed to use short, sharp sentences when addressing the children. He periodically made positive comments about their play but engaged in no active play with them until towards the end of the observation, when he showed them how one of the sand toys worked.  [The father] was affectionate towards the children but the impression given was that he was seeking to sooth himself, rather than affirm the children, as he repeatedly asked the children if they missed him

6. The children were also observed to be comfortable with and pleased to see their mother with the Family Consultant reporting:

   [The mother] used a warm, cheerful tone when interacting with the children. She appeared somewhat chaotic in her interactions with them. [The mother] was observed to be somewhat more affectionate towards [C] than [B]. Both children appeared comfortable with [the mother]. [B] separated easily from [the mother] while [C] was observed to cling to her and indicated she wanted to go with her.  

7. In regards to the paternal grandparents the Family Consultant relevantly reported the following:

   The children appeared comfortable with the paternal grandparents throughout the observation and to enjoy playing with them. [The paternal grandmother] and [Mr J Mercer] appeared to interact with the children in a warm, cheerful and developmentally appropriate manner.

8. Following the interviews and observations the Family Consultant came to the following conclusions:

   [B] and [C] appeared to have complex relationship with each parent and with the paternal grandparents. It appears that both children, but particularly [C], have had frequent and/or sudden changes of primary carer, which has likely traumatised them and negatively affected their capacity to form secure attachments. [B’s] primary attachment appears to be [the paternal grandmother] and he also appeared to have a good relationship with [Mr J Mercer]. [B] appears to have an established relationship with [the father], likely born from the fact that [the father] has periodically lived with [the paternal grandmother]. The quality of [B’s] relationship with [the father] is difficult to determine, although, he appears to want to have contact with him. [The mother] appeared familiar to [B] but he appeared ambivalent about spending time with her, which is likely the result of having spent limited time with her over the last few years.

   It does not appear to be in dispute that [C] is attached to [the mother] and it appears that she wants to live with her. [C] showed interest in spending time with [the father], indicating that they have an established relationship, although the quality of this relationship was difficult to determine. [C] expressed anger towards the paternal grandparents during interview but this appeared related to her perception that they are preventing her from living with [the mother] rather than any actual dislike of them. C appeared comfortable with the paternal grandparents during the observation.

   [The mother] presented as strongly desiring that [C] live with her but somewhat ambivalent about her relationship with [B]. This appears consistent with her history of contact with each child over the years. [The mother] was observed to show greater attention to [C] and, while she had brought an activity for both children to play with, the activity she selected for [C] meant [C] had a gift to take home but [B] did not. [B] did not appear upset by this but, should this occur regularly, this may cause him to feel left out. [The mother] impressed as unable to balance the emotional needs of both children, although, she acknowledged that [B] is primarily attached to [the paternal grandmother] and does not seek to disrupt this arrangement. This is positive, given that he would likely experience a change of primary carer as traumatic. [The father] impressed as somewhat ambivalent about his relationship with the children and it appeared that has had inconsistent contact with [B] over the years. The paternal grandparents presented as committed to providing the primary care for both children. There was no indication that they favour [B] over [C], as had been claimed by [the mother].

   The children would likely benefit from the opportunity to develop and/or maintain a relationship with their parents, however, concerns about each parent’s capacity to facilitate this were raised during the course of this assessment. Serious allegations were raised about both parents posing risk of harm to the children and, despite the importance of preserving the children’s relationship with each parent, the Court would need to prioritise protecting the children from unacceptable risk of harm over their relationships.

   It appears that both parents used illicit drugs and/or consumed alcohol to excess during their relationship and that the children have been exposed to the effects of this. Parents who abuse substances often have difficulty managing children’s routines, ensuring school attendance, seeking timely medical attention, providing appropriate supervision and managing housework. Financial difficulties, such as providing enough food and maintaining appropriate housing, may also occur.  Substance abusing parents may present as self-focused, failing to respond to the emotional needs of the children. In particular, substance abusing parents may experience fluctuating moods, causing shifts between controlling, authoritarian parenting and a permissive neglectful parenting. Material obtained under subpoena from FaCS (Sleeve 2), [… agency] (Sleeves 7 and 9), the QLD Police (Sleeve 3) and the NSW Police (Sleeve 16) appear to suggest that the children have experienced ongoing neglect and exposure to parental drug use whilst in [the father’s] and [the mother’s] care.

   Based on the accounts of the parties and the material obtained under subpoena, it appears that serious family violence has occurred, although, the parties are in dispute about the primary perpetrator of the abuse and this would require determination by the Court. There appeared to be veracity to [the mother’s] claim that [the father] has attempted to control and/or retaliate against her for problems in their relationship by removing the children and placing them with [the paternal grandmother]. It is noted that, on two separate occasions, [the father] referred to [the mother] preferring other partners to him as the reason why he had placed the children with [the paternal grandmother]. This apparent use of the children to cause distress to [the mother] would be consistent with coercive controlling behaviour and would indicate that [the father] has limited understanding of the children’s emotional needs and an unwillingness or inability to prioritise the children’s needs over his own. [B] and [C’s] special needs make them particularly vulnerable to be effects of witnessing family violence and ongoing neglect and it is possible that their development has been negatively affected by repeated exposure to these risk factors.

   If the Court determines that [the mother] had been the victim of coercive controlling violence, consideration must be given to the negative impact this trauma may have had on her parenting capacity. Victims of such violence may develop anxiety and depression and may abuse substances to manage their trauma symptoms. The impact of the abuse can cause them to lose confidence in their parenting capacity and to become physically and/or emotionally exhausted and unavailable to the children. Poor judgement may be shown, particularly with regard to a preoccupation with the perpetrators demands and/or an inability to protect the children from witnessing further violence.

   [The mother] claimed that she has made significant improvements in her parenting capacity since separating from [the father], however, records obtained under subpoena from [… agency] suggest that [the mother] has made little improvement in her capacity to understand and protect [C] from family violence, manage [C’s] routine, manage the household finances and maintain the rental property to a reasonable standard. In addition, it is noted that, while [the mother] maintains that she no longer abuses substances, it appears that, as recently as March 2016, [the mother] came to the attention of police regarding whether she had stolen alcohol from a liquor store. Concerns are held that, should [C] be returned to [the mother’s] care, she is likely to be exposed to further neglect and thus this could not be recommended.

   [C] would likely be distressed if not able to spend time with [the mother]. [B] may benefit from spending short periods of time with his mother but would likely find longer periods disorientating due to the severity of his special needs and their lack of a robust relationship. [the mother] presented as unlikely to press the matter if [B] prefers not to spend time with her so it appears impractical that anything other than time according to his wishes be ordered. Unsupervised time could not be recommended until [the mother] has demonstrated long term abstinence from substance use, that she is protective of the children with regard to family violence and that she can provide adequate supervision. Until the Court is satisfied that this has occurred, any time the children spend with [the mother] should be supervised. It appeared that, given the conflict between [the mother] and the paternal family, there are no suitable supervisors and thus the children would have to spend time with [the mother] at a contact centre, which will limit this contact to four to six occasions per year.

   [The father’s] admission that he continues to use ice and that this has no impact on his parenting capacity, as well as his apparent history of violent behaviour, raises serious concerns about the children coming into contact with him. [The father] appeared unmotivated to cease his ice use for the benefit of the children and thus, despite the fact that they would likely be saddened about not spending time with him, and that this may negatively affect their identity formation, it is assessed that contact with [the father] would likely place the children at unacceptable risk of harm and cannot be recommended.

   It is not appear to be in dispute that [the paternal grandmother] has provided good day to day care to the children, including having sought appropriate assessment and follow up services for their special needs. [The mother] claimed that the paternal grandparents abuse substances and that there has been serious family violence between them. Exposure to such behaviours would negatively impact on the children’s well-being but the veracity of these claims could not be determined in this assessment and are a matter for the Court. Unless the Court finds that the paternal grandparents pose unacceptable risk of harm to the children, the children should remain living with them.

   Concerns are held that [the paternal grandmother] may be insufficiently protective with regard to the children having contact with [the father]. [the paternal grandmother] appears to minimise the level of risk that [the father] poses to the children, particularly since she acknowledges that he continues to use drugs. It is noted that [the paternal grandmother] appears to hold [the mother] more responsible for the neglect of the children than [Mr Mercer], despite acknowledging that he had been their primary carer. It is also concerning that [the paternal grandmother] and [Mr J Mercer’s] accounts about [the father’s] level of aggression towards them differ. It is a matter for the Court to determine the likelihood that [the paternal grandmother] would comply with a Final Order that restricts [the father] having contact with the children but, if the Court holds concerns about this, living with [the paternal grandmother] may pose an unacceptable risk of harm to the children.

   If the Court finds that the paternal grandparents pose an unacceptable risk of harm to the children, this would mean that there is no suitable carer and the children would have to be placed into alternative care. For this reason, it is recommended that Family and Community Services be invited to intervene in these proceedings.

   It does not appear that [the mother] and [the paternal grandmother] have any capacity to communicate and cooperate regarding the children’s needs and it would be impractical for them to share parental responsibility. Thus, it is recommended that, unless the Court holds concerns about the children being at unacceptable risk of harm in the paternal grandparent’s care, it is recommended that [the paternal grandmother] hold sole parental responsibility for the children. [the paternal grandmother] should periodically update the parents regarding the children’s progress, such as with copies of school reports

9. The Family Consultant ultimately recommended that the children live with the paternal grandparents and the paternal grandmother hold sole parental responsibility for them unless the children were found to be at an unacceptable risk of harm in the paternal grandparents’ care. The Family Consultant further recommended the children spend supervised time with the mother and no time with the father.

Parenting     

Can the Applicant apply for parenting orders as a person concerned with the care, welfare and development of the child?

1. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The applicant in this matter is the paternal grandmother and not the biological parent of the child. However, it is clear that she has played a significant role in the care of the child since birth and has been the primary carer of the child since late January 2016.

2. From the evidence outlined above, it is clear that the paternal grandmother is a person concerned with the care, welfare and development of the child.

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.

8. This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

9. Consideration of the Applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is, therefore, appropriate to apply the relevant considerations in respect of the Applicant by way of application of s 60CC(3)(m).

10. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

    … there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

11. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

    19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.

    …

    21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

    …

    25. In Donnell, the Court went on to say … [at [101] and [102]]:

    However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

    We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. … (emphasis added)

12. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said: “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

13. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

    The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)

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. This first primary consideration does not arise if one or both parents are unavailable and the children are, therefore, unable to have the benefit of a relationship with both parents. In this case, it is clear that the children do have a relationship with each of their parents but that both parents have ceased contact with the children.  Any such relationships may present significant risks to the children in light of the issues discussed above.

4. This primary consideration is not applicable to the paternal grandmother, being a non-parent, but the relationship between the children and the paternal grandmother, and in fact the paternal grandfather, is one of significance given the paternal grandmother has been a consistent presence in the children’s lives and has had the primary care of B since late 2012 and the primary care of C since late 2015. The children clearly have a meaningful relationship with their paternal grandparents.   

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above, there are unacceptable risk factors in the child’s possible engagement and time with the father and the mother if unsupervised, who have disengaged from these proceedings in any event. 

2. This consideration, which is to be given primacy, is in itself supportive of and determinative of the orders sought by the paternal grandmother.

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. 

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

3. While both children have expressed a wish to see their parents, the Family Consultant had the following to say about the weight to be attached to the children’s views:

   [B’s] presentation was consistent with his diagnosis of autism and intellectual disability and [Ms Mercer’s] claim that he has been assessed as functioning approximately three years younger than his chronological age; thus the Court could place limited weight on [B’s] stated wishes and views. [C] presented with a speech delay, the nature of which could not be determined in this assessment. Given her young age, the Court could place no weight on her stated wishes and views.

4. Accordingly, there will be very limited weight given to either of the children’s stated views. 

5. It is clear from the Family Report that the children have a meaningful relationship with both parents. However, both parents have disengaged from these proceedings and have failed to take the opportunity to spend time with and make decisions for the children. This is particularly the case in relation to the mother who, herself, ceased supervised contact visits with the child C despite those visits being facilitated by both the paternal grandmother and the contact centre. By disengaging from these proceedings, both parents can be taken to be forfeiting their rights to participate in any decision making for the children in the future.

6. Neither parent currently contributes financially or non-financially to the care of the children and serious questions are raised as to their capacity to maintain and provide for the needs of the children. It is clear that the paternal grandmother has cared for the children at various points in their lives when the parents were unable or unwilling to do so themselves and has been the primary carer for the children for a significant period. While there is some concern over the paternal grandmother’s capacity to abide by any orders restraining her from bringing the children into contact with the father, the father’s disengagement from proceedings significantly limits this concern.

7. Otherwise, there are no concerns as to the paternal grandmother’s ability to care for the children.

8. The orders as sought by the paternal grandmother provide for no changes in the children’s current circumstances and involve no practical difficulty or expense.

9. Each parent in these proceedings has demonstrated a concerning attitude towards their responsibilities as a parent. The father appears to have prioritised his drug habit over his relationship and contact with the children, making him an unacceptable risk of harm to them. The mother, despite being able to spend time with C at a contact centre, has chosen to cease her time with the children and has had no contact with them for nearly six months.

10. Despite the lack of information relating to the relationship between the parents and the experiences of the children while in their care, according to the Family Consultant it is possible that the children have been exposed to family violence. This issue is of limited concern in the circumstances where both parents have disengaged from these proceedings and there are no issues as to family violence raised regarding the paternal grandparents.

11. Making orders as sought by the paternal grandmother is unlikely to lead to the institution of further proceedings given the disengagement of the parents.    

12. The above primary and additional considerations have been applied to the applicant paternal grandmother by operation of s 60CC(3)(m) as a relevant fact or circumstance.

13. All of the relevant considerations are indicative of orders being made in the best interests of the children as sought by the paternal grandmother and supported by the ICL.

14. Orders will, accordingly, be made as set out at the forefront of these reasons for judgment.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 September 2017.

Associate: 

Date:  14 September 2017