Musil and Cullen & Anor

[2017] FamCA 672

FAMILY COURT OF AUSTRALIA

MUSIL & CULLEN AND ANOR [2017] FamCA 672

FAMILY LAW – CHILDREN – Best Interests – Where the applicant is a non-parent – Where the paternal aunt seeks parenting orders – Where the mother and father are in New Zealand – Where the child was born in Australia – Where the child was left in the care of the paternal family by the mother when she returned to New Zealand – Where the parents have disengaged from the proceedings – Where there are concerns as to the parenting capacity of both parents – Where the father has been convicted of sexual abuse of his daughter – Where the mother has had her two older children removed from her care by Child Youth and Family in New Zealand – Where the child was to be removed from the care of the parents by Child Youth and Family if she had been born in New Zealand – Where the paternal aunt has been the primary carer of the child for over 18 months – Where the child identifies the paternal aunt as her mother – Where no concerns are held as to the parenting captivity of the paternal aunt – Orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where the father has never participated in the proceedings – Where the mother has only intermittently engaged in the proceedings – Where both parents have disengaged from the proceedings – Where it appropriate for the matter to proceed to undefended hearing. 

Family Law Act 1975 (Cth) ss 60B, 60C, 60CA, 60CC, 61DA, 65C, 65DAA, 65Y, 69ZN(7)
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 Musil

RESPONDENT: Ms Cullen

SECOND RESPONDENT: Mr Dernier

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: PAC 655 of 2016

DATE DELIVERED: 1 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

FIRST RESPONDENT – SELF-REPRESENTED LITIGANT: No Appearance

SECOND RESPONDENT – SELF-REPRESENTED LITIGANT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

1. That the paternal aunt, Ms Musil, shall have sole parental responsibility for B born … 2015 (“the child”).

2. That the child shall live with the paternal aunt, Ms Musil.

3. That the child shall spend no time with and shall not communicate with her father, Mr Dernier, and mother, Ms Cullen.

4. B born … 2015 is permitted to have an Australian travel document and to travel internationally.

5. The paternal aunt, Ms Musil may apply for an Australian travel document (passport) for B born … 2015 without first obtaining the consent of the child’s mother and father.

6. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the paternal aunt Ms Musil shall be authorised and entitled to remove the child from the Commonwealth of Australia for the purpose of travel at her discretion.

7. That the First Respondent mother, Ms Cullen born … 1988, and the Second Respondent Father, Mr Dernier born … 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or attempting to cause or permitting or attempting to permit the removal of the child, B born … 2015, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List and maintain the child’s name on the Watch List until the Court orders its removal or until 18 April 2033.   

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 Musil & Cullen and Dernier 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 655  of 2016

Ms Musil
Applicant

And

Ms Cullen
Respondent

And

Mr Dernier
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. These are parenting proceedings commenced by the applicant paternal aunt, Ms Musil, by Initiating Application filed 15 February 2016 in the Family Court of Australia.

2. The application concerns two year old B (“the child”) born in 2015, the child of Ms Cullen, the respondent mother, and Mr Dernier, the second respondent father.

Context and Procedural Fairness

1. The parties appear to have commenced a relationship in 2014 and separated in late 2015.

2. In February 2015 the paternal aunt was asked by the father to have the then pregnant mother stay with her so the child could be born in Australia in an effort to avoid the child being removed from the parents’ care by Child, Youth and Family (“CYF”) New Zealand (now known as the Ministry for Vulnerable Children since April 2017).  

3. On 9 January 2016 the mother and child moved to live with Ms C Musil, the daughter of the applicant paternal aunt. On 25 January 2016 the child was left in the care of Ms C Musil when the mother returned to New Zealand. Three days later on 28 January 2016 the child passed into the care of the paternal aunt.

4. The child has been in the care of the paternal aunt and has not spent time with her mother since this date.

5. On 15 February 2016 the paternal aunt initiated proceedings in this Court and orders were made on that date for service to be effected on the mother by Facebook and on the father by email.

6. On 15 March 2016 there was no appearance by or on behalf of the father and the mother appeared by telephone. The matter was adjourned for interim hearing.

7. On 27 April 2016 the matter was listed for interim hearing but there was no appearance by or on behalf of the mother or the father. Interim orders were made for the paternal aunt to have sole parental responsibility for the child, for the child to live with the paternal aunt and for the mother and father to be restrained from removing the child from Australia.

8. On 7 June 2016 the mother appeared by phone and was ordered to file a Response to the paternal aunt’s Initiating Application. The father did not appear.

9. On 5 July 2016 the mother, who had not filed a Response as directed, appeared by telephone and the father made no appearance. Orders were made appointing an Independent Children’s Lawyer (“ICL”) and further directions were made for the mother to file documents. 

10. On 25 August 2016 the mother and father, neither of whom appeared before the Court, were ordered to file Responses within 14 days or the matter would proceed on an undefended basis. Neither party complied with this order.

11. On 18 October 2016, there was no appearance by or on behalf of the mother or the father and a Registrar made orders for the matter to be listed for a Less Adversarial Trial (“LAT”).

12. On 3 February 2017 there was once again no appearance by either the mother or the father. On that date the parties were ordered to attend on a Family Consultant for the purposes of a Child and Parents Issues Assessment (“CAPIA”) and the proceedings were adjourned for undefended hearing to 27 March 2017.

13. The CAPIA interviews took place on 21 March 2017 and the subsequently produced written memorandum (Exh “B”) was released to the parties on 23 March 2017.

14. On 27 March 2017 the paternal aunt was legally represented in Court and the mother appeared via telephone. There was no appearance by or on behalf of the father. The mother was ordered to file a Response and affidavit outlining her current circumstances and the proceedings were adjourned.

15. When the matter was next before the Court on 16 May 2017 the mother had still not filed any documents in accordance with court orders. The mother was ordered to file a Response and accompanying affidavit by 30 June 2017. If the mother failed to comply with those orders the matter was to be listed for undefended hearing.

16. The mother failed to file her documents as ordered and neither she nor the father, who has never engaged in these proceedings, appeared before the Court on 19 July 2017.      

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

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 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.

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 19 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 aunt’s documents

1. The paternal aunt relied upon the following documents:

   a)Initiating Application filed 15 February 2016;

   b)Notice of Risk filed 15 February 2016;

   c)Her affidavit filed 17 March 2017;

   d)Affidavit of Ms C Musil, paternal aunt’s daughter, filed 17 March 2017;

   e)Affidavit of Mr D Musil, paternal aunt’s husband, filed 17 March 2017; and

   f)Affidavit of Mr D Musil Junior, paternal aunt’s son, filed 17 March 2017.   

The evidence

1. The paternal aunt seeks orders that she have sole parental responsibility for the child, that the child live with her and that the child spend no time with the mother or the father. In the alternative, the paternal aunt seeks orders that the child spend no time with the father and only supervised time with the mother as agreed between the parties. She also seeks an order that the parents be restrained from removing the child from Australia and, accordingly, the child’s name be placed on the Airport Watch List.

2. The paternal aunt says that the father contacted her in February 2015 informing her that the CYF in New Zealand had appointed a guardian for the child and would be taking the child into their care immediately following her birth. He requested that the mother stay with the paternal aunt so she could have the child in Australia and avoid the removal of the child by CYF.

3. The paternal aunt agreed to the father’s proposal and the mother came to reside with her in March 2015.

4. Subsequent to the child’s birth in April 2015, the paternal aunt provided financial support to the mother and the child and played a significant role in caring for the child such as bathing, feeding and settling the child.

5. On 9 January 2016 the mother and child moved in with the daughter of the paternal aunt. On 25 January 2016 the mother departed for New Zealand leaving the child, then nine months old, and the child’s birth certificate with the daughter of the paternal aunt. There was a handwritten “contract” drafted by the mother giving the paternal aunt’s daughter sole parental responsibility for the child until the mother returned to Sydney.

6. The paternal aunt took over the care of the child on 28 January 2016 when her daughter and the child moved back into her home. She has been the primary carer for the child since this date.     

7. The paternal aunt holds concerns about each parent’s capacity to care for the child. The mother has had her older two children removed from her care in New Zealand by CYF and CYF intended to remove the child from the mother’s care immediately following her birth had the mother not left New Zealand. Further, the paternal aunt constantly had to prompt the mother to care for the child when the mother was staying with her. She says that it was common for her to return from work to find that the child’s nappy had not been changed for hours or had not been fed enough during the day to maintain appropriate weight gain and development. The paternal aunt held the view that the mother was a “disinterested and lazy” parent.

8. The father, in around 2009 or 2010 was charged with offences including the violation of a child under the age of 12 in relation to his daughter. The father was convicted at trial and served a four year sentence in prison before being released in 2014.

9. Prior to the interim parenting orders of April 2016 the paternal aunt had difficulty enrolling the child in day care, obtaining a visa for the child and seeing to her medical needs as she did not hold parental responsibility for the child. This was of particular concern as the child had been diagnosed by a specialist doctor with a condition that requires consistent monitoring and may require treatment in the future.

10. The paternal aunt contacted the NSW Department of Family and Community Services who have informed her that they only hold concerns for the child if she were to return to New Zealand.

11. The paternal aunt does hold some concerns, reduced since the interim orders were made in April 2016, that the mother or someone else may seek to take the child back to New Zealand due to conversations the mother has had with the paternal aunt’s daughter on Facebook. On this basis the paternal aunt seeks the child’s name be maintained on the Airport Watch List.

12. The paternal aunt deposes to the child developing well and attending day care three days per week. She currently resides with the paternal aunt and the paternal aunt’s partner and three children.

13. The child has had no contact with her mother since January 2016 and has never had any contact with her father.    

The Child Responsive Program Memorandum

1. On 21 March 2017 the paternal aunt and the child were interviewed by a Family Consultant for the purposes of a CAPIA. The mother and the father did not attend the scheduled interviews and were unable to be contacted.    

1. The paternal aunt reported to the Family Consultant that she and the child have no relationship with the mother or the father and she has concerns about the child spending unsupervised time with her parents.

2. The child was too young to be meaningfully interviewed but on observing the child’s interaction with the paternal aunt the Family Consultant relevantly reported the following:

   [The child] entered the room, smiling, and said, “hi Mum!” to which [Ms Musil] responded warmly. She immediately went to the sand tray and [Ms Musil] followed her … [Ms Musil] was able to maintain her engagement with [the child] and was child focused and led by what [the child] wanted to play with. When [the child] left the sand and approached the shelves and selected a game, [Ms Musil] sat on the floor with her and played. She provided appropriate feedback when [the child] put things away when asked and was warm and engaged throughout.   

3. The Family Consultant further relevantly reported the following:

   [Ms Musil] reported that [Mr Dernier] would not be allowed entry into Australia because he had a criminal conviction for the sexual abuse of his daughter from another relationship. [Ms Musil] said that she believed [Mr Dernier] was wrongly convicted. [Ms Musil] said that, despite her belief, she considered that [the child] needed to be protected from both of her parents.

   [Ms Musil] denied any issues with drugs or alcohol or criminal history, denied that her children were ever involved with Family and Community Services, denied any issues with her mental health, and denied any violence in her relationship. She said she did not know if [Ms Cullen] and/or [Mr Dernier] had any of these issues, apart from [Mr Dernier’s] criminal conviction of sexual abusing his daughter. (sic)

4. The Family Consultant could not make any recommendations as to the time the child should spend with her parents but did provide the following evaluation:

   No assessment can be made of [Ms Cullen’s] or [Mr Dernier’s] proposals or how [the child] may be able to have access to her biological parents. It was recommended to [Ms Musil] that she access resources about adoption, as this may be of assistance in providing information about how to talk to children about their birth parents. It was also suggested to [Ms Musil] that she introduce [the child] to this information as young as possible, in an age appropriate manner. [Ms Musil] may be assisted by accessing counselling with a professional experienced in adoption issues (although [Ms Musil] did not propose to adopt [the child], [the child’s] needs may be similar to that of an adopted child).

   Serious risk issues were raised in this matter, including [the child] being physically neglected by [Ms Cullen], resulting in an ongoing medical issue. In addition, [Mr Dernier] is reported to have a conviction of sexually assaulting his daughter from another relationship. Although the details of this are unknown, it is concerning that [Ms Musil] is disbelieving of [Mr Dernier’s] guilt, despite a New Zealand Court seemingly finding him guilty. However, this may or may not impede on her protectiveness of [the child], as she indicated that she had no intention of allowing [Mr Dernier] unsupervised contact with [the child]. In addition, [Ms Musil] also reported a lack of relationship with [Mr Dernier] and did not foresee a time when they may reconcile.    

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 aunt 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 and her pursuance of parenting orders it is clear that the paternal aunt is a person concerned with the care, welfare and development of the child. The Applicant paternal aunt, therefore, is able to apply for parenting orders pursuant to subparagraph (ba) of that section.

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 child is, therefore, unable to have the benefit of a relationship with both parents. In this case it is clear that the child currently has no relationship with either of her parents and is unlikely to develop such relationships in the near future. Indeed, any such relationship presents as a risk to the child.

4. This primary consideration is not applicable to the paternal aunt, being a non-parent, but the relationship between the child and the paternal aunt is one of significance given the paternal aunt has had the primary care of the child since January 2016 and the child identifies the paternal aunt as her mother.  

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 both the mother and the father, 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 aunt.

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. The child is too young to have been interviewed by the Family Consultant and even if she were able to express a view, it would be given little weight by reason of her age and developmental stage.

4. As described earlier in these Reasons the child has no relationship with either of her parents. Her relationship with the paternal aunt is clearly a significant and secure one for the child, who refers to and treats the paternal aunt as her mother. It is also clear that the child’s relationships with her extended paternal family, particularly the paternal aunt’s daughter, are significant to her and should be maintained.

5. By disengaging with these proceedings and failing to take the opportunity to build, in the case of the father, or maintain, in the case of the mother, a relationship with the child the parents have failed to fulfil their obligations to maintain the child and forfeited their rights to make long term decisions for the child. Neither parent contributes financially to the welfare of the child.

6. If orders are made in terms as sought by the paternal aunt, this would see no change in the child’s current circumstances nor would there be any practical difficulty or expense associated with the making of such orders.

7. The lack of capacity of the child’s parents to meet her needs is deeply concerning. The paternal aunt is currently employed and has been caring for the child in a financial and non-financial sense since her birth in 2015. The paternal aunt has enrolled the child in day care and deposes to making arrangements for the child’s visa and medical needs. Despite believing the father is innocent of sexual abuse of his daughter, even though he was apparently convicted by a New Zealand court, the paternal aunt has indicated that she does not believe it would be safe for the child to come into contact with the father and would abide by any order restraining her from bringing the child into contact with the father. There are no concerns held about the paternal aunt’s capacity to care for the child.  

8. The child has Maori heritage on her maternal side. The paternal aunt indicated to the Family Consultant that she was unsure how she would expose the child to Maori culture and would need to find out more information. The child’s exposure to her heritage is likely to be limited if she resides in Australia with her paternal aunt but the paternal aunt is to be encouraged to seek out ways to maintain the child’s connection to Maori culture.

9. By virtue of leaving their child in Australia and disengaging with these proceedings the parents have shown a complete disregard for the responsibilities of parenthood. Conversely, the paternal aunt and her family have admirably cared for the child and have shown an excellent attitude to the responsibilities of parenting in the circumstances. 

10. Orders as sought by the paternal aunt should allow for some stability in the child’s life and are unlikely to lead to the institution of further proceedings if made.

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

12. All of the relevant considerations are indicative of orders being made in the best interests of the child as sought by the paternal aunt.

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

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 September 2017.

Associate: 

Date:  1 September 2017