Partland and Anor and Partland and Anor

[2014] FamCA 803

FAMILY COURT OF AUSTRALIA

PARTLAND AND ANOR & PARTLAND AND ANOR [2014] FamCA 803

FAMILY LAW – CHILDREN – Final Orders – where mother and father have failed to actively participate in proceedings – where mother and father appeared unrepresented at final hearing – limited right of involvement – paternal grandmother sought final orders that the children live with her and spend time with parents on weekend – best interests of the children – history of family violence – where paternal grandmother has been primary caregiver for number of years – orders made for children to live with paternal grandmother and spend alternate weekends with parents.

Family Law Act 1975 (Cth) ss 60CA, 60CC

APPLICANTS: Mr G Partland
and
Ms Partland

RESPONDENT: Mr K Partland

RESPONDENT: Ms Fogarty

INDEPENDENT CHILDREN’S LAWYER: Mr Charman

FILE NUMBER: ADC 2288 of 2011

DATE DELIVERED: 15 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Fuda

SOLICITOR FOR THE APPLICANTS: Denise M Rieniets & Associates Pty Ltd

COUNSEL FOR THE 1^ST RESPONDENT: N/A

SOLICITOR FOR THE 1^ST RESPONDENT: In Person

COUNSEL FOR THE 2^ND RESPONDENT: N/A

SOLICITOR FOR THE 2^ND RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ian Charman & Associates

Orders

1. The children C born on … 2000, B born on … 2007 and D born on … 2009 live with the paternal grandmother.

2. The paternal grandmother have the sole parental responsibility for the said children.

3. The paternal grandfather spends time with the children at such times as agreed between him and the paternal grandmother.

4. Commencing on Saturday 27 September 2014 the parents spend time with the children each alternate weekend from 2.00 pm Saturday to 6.00 pm Sunday with handovers to occur at such place as agreed between the paternal grandmother and the parents, with the parents to collect and deliver the said children from and to the paternal grandmother at an agreed venue in Town E.

5. Any time that the child C spends with the parents to be at the child’s discretion.

6. The mother and father are restrained and injunctions are granted from:

   6.1consuming alcohol during any period that the children are in their care;

   6.2consuming any illicit substances or bringing the children into contact with any person consuming illicit substances at any time that the children are in their care;

   6.3from denigrating, abusing or criticising the paternal grandparents to or in the presence of the children or allowing any other person to do so;

   6.4from exposing the children to any violence at any time;

   6.5from driving in any motor vehicle with the children without the age appropriate legally approved and properly fitted children’s car restraints for each of the children.

7. The paternal grandmother provide to the parents copies of the children’s school reports.

8. Each of the parties inform the others of them of any illness, accident or emergency suffered by any of the children whilst in their care requiring medical treatment.

9. The appointment of the Independent Children’s Lawyer is discharged within one [1] month from today.

10. All matters are removed from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2288 of 2011

Mr G Partland and Ms Partland

Applicant Paternal Grandparents

And

Mr K Partland

First Respondent

And

Ms Fogarty

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This was listed as the First Day Hearing of the trial in these proceedings, which concerned the welfare of three children:  C, who was born in 2000, is now 14; B, born in 2007 and now 7;  and D, who was born in 2009, and is aged 5.  These proceedings have been ongoing since they were commenced in the Federal Magistrates Court (as it then was) in June 2011.  There have been numerous Court attendances over the years, in both the Federal Circuit Court and recently this Court. 

2. A Family Consultant’s report was prepared by Mr M, which is attached to the affidavit filed by Ms P on 12 February 2014, being the Family Consultant’s report of 11 February 2014, following upon the Family Consultant interviewing the parties and the children. 

3. What is clear in the file before the Court is that the biological father of the children has not filed any response to the proceedings.  The only document that appears to be on file concerning him is a Notice of Address for Service. 

4. The mother has filed documents, but has not filed any documents recently.  In particular, the matter came on before the Court on 10 June 2014, by way of a First Day Hearing, when Ms Fuda attended on behalf of the paternal grandparents.  There was no appearance on that occasion by either the mother or the father of the children.  Specific orders were made on that occasion, indicating that the Amended Initiating Application filed on 28 April 2014 was listed for final hearing before me in December 2014, and that the First Day directions hearing would be listed before me today, Monday 15 September 2014 at 9.15 am. 

5. I made specific orders in paragraph 3 and 4 of the orders of 10 June 2014, which provided for the mother and father to file and serve, by 4.00 pm on 1 September 2014, an affidavit setting out in detail the final orders which they are seeking. 

6. Paragraph 4 made it quite clear that if the parents did not comply with that order to file the affidavits, or failed to attend this morning, the Court may make final orders on the basis the matter is “undefended”.  I emphasise that on 10 June 2014 the order was made, giving the father and mother until 1 September 2014 to file an affidavit setting out in detail the final orders which they are seeking.  There has been no compliance with that order.

7. This morning I have heard submissions from counsel for the grandparents, the Independent Children’s Lawyer; and the mother and father, who each appear unrepresented this morning.  The mother and father were not able to provide anything that would be classed as a sensible explanation for the failure to comply with the orders, or why the Court should continue to have the matter listed for trial, bearing in mind the warning they were clearly given as long ago as early June this year, and the lack of explanation for their failure to comply with the orders. 

8. When I heard their submissions, both the mother and father emphasised that they wanted to have more time with the three children, on the basis that they did not consider the alternate weekend time spent would be sufficient time for them or for the children.  There was no clear submissions from either the mother or the father as to why there should be any change in the living arrangements currently in place, namely that the children live with the paternal grandmother. 

9. The proceedings have been on foot since June 2011.  That is a considerable period of time, taking into account the ages of the children and the ongoing difficulties. 

10. Although it is not necessary to consider the best interests of the children when making a decision as to whether the matter proceeds today or on another date, I do consider it to be a factor that should be taken into account. 

11. Therefore taking into account the failure of the mother and father to participate in the proceedings in a proper way over many years, taking into account that they are both unrepresented and therefore may have some difficulty from time to time in appreciating the serious consequences of their failure, but nonetheless, taking into account the many years that they have had to participate in the proceedings, and the months they have had to comply with the simple orders made in June of this year, I consider it appropriate in all the circumstances, and it is just and equitable for the matter to proceed to a final decision today. 

12. I also consider it to be in the best interests of the children that the matter be finalised and all of the parties released from the involvement in the proceedings in this Court. 

13. I will turn then to consider what is in the best interests of the children so far as final orders are concerned.  Pursuant to the Family Law Act 1975 (Cth) (“the Act”), even if I am making the orders on an undefended basis, it is necessary for me to be satisfied that the best interests of the children are met. In particular section 60CA requires the Court to consider the best interests of the children as the paramount consideration. That is the overriding factor.

14. The Court, of course, is directed to determine the matter taking into account the provisions of section 60CC(1), which emphasises the need to consider the matters by way of primary considerations and additional considerations, which are set out in section 60CC(2) and (3). The primary considerations are the benefit to the children of having a meaningful relationship with both parents, and the need to protect the children from physical or psychological harm, or being subjected to or exposed to abuse and neglect or family violence. The primary consideration emphasises the need to consider the meaningful relationship with both of the children’s parents.

15. In this case, I take into account in particular the report of Mr M, which has set out in it the history of the care provided by the grandparents, and the history of the difficulties, and the impact those difficulties have had in relation to the parents’ capacity or failure to provide appropriate care for the children and their needs.  In relation to the matters before the Court therefore, the considerable emphasis must be placed upon the need to protect the children from psychological harm, and from being subjected to or exposed to family violence. 

16. The matters referred to in the affidavit material on file may well be considered matters which happened some time ago, so far as the dysfunctional, violent relationship which is alleged to have existed between the mother and the father.  I take into account however the psychological and mental health needs of the children, and in particular the younger children, who have been in the primary care of the grandmother for a considerable period of time.  There would be a risk to those children if the current arrangements were to alter without sufficient protection being put in place. 

17. Section 60CC(3)(a) refers to the views expressed by the children. I take into account Mr M’s report, and particularly in relation to the older two children C and B, but taking into account at the same time the background of this matter, so that it is not the views of the children which would be a determining factor.

18. I have also heard from the bar table the mother makes some comment that the daughter is expressing reluctance to return to the care of the grandmother, but again emphasise that the wishes of the children would not be a determining factor, particularly taking into account the background of this matter. 

19. In relation to the nature of the relationship of the children with each of the parents and other persons, including any grandparent or relative of the child, section 60CC(3)(b), it is significant in this matter that the children have formed a strong bonded relationship with the grandparents, and in particular the grandmother, over a period of years.

20. Paragraph (c) refers to the extent to which each of the child’s parents has taken, or failed to take, an opportunity to participate in making decisions about major long-term issues in relation to the child, or to spend time with the child, or communicate with the child.  The major concern here is not that they have failed to take an opportunity to spend time with the child, but the concern would be what participation the parents have had, and whether they have had an opportunity to have that participation in major decisions concerning the children. 

21. In particular, I note the documents annexed to the recent affidavit of the Independent Children’s Lawyer indicate that it has been the grandmother who has been the primary participant in making decisions and attending to assist the school in relation to the child C’s behaviour, and is providing assistance in that regard. 

22. In relation to paragraph (d), the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either or his or her parents, or any other child or other person, including a grandparent, with whom he or she has been living.  This is a significant factor in this matter.  Taking into account the difficulties which the children have experienced in the past, and in particular the remarks in the report of Mr M, it is significant that one of the serious considerations in this matter is the risk to the children in their mental and psychological development if there should be any significant change in the circumstances.

23. One of the changes, however, that has been proposed is that the children’s time with the parents be limited to alternate weekends, rather than each weekend.  In relation to that change in circumstances, I take into account the remarks made by the Family Consultant and the benefit to the children of having what would be called non-school time and relaxing time with the grandmother, rather than simply spending each weekday with the grandmother and having all weekend time, or most of the weekend time, with the parents. 

24. I also take into account that may give the grandmother appropriate interaction with the children and giving her more time to enjoy the activities with the children, rather than simply be the carer on a practical weekday situation.

25. In relation to paragraph (e), the practical difficulty and expense, that is not a significant factor in this case.

26. In relation to paragraph (f), the capacity of each of the child’s parents, and any other person, to provide the needs for the child, including emotional and intellectual needs, this is a significant factor which, taking into account the material that has been provided by the grandparents and the report of the Family Consultant, indicates that there is a concern about the capacity of each of the parents to provide the ongoing needs for the children, and hardly any concern for the capacity of the grandmother to do so. 

27. In relation to the other factors, paragraphs (g) and (h), they are not significant in this matter. 

28. Paragraph (i) is the attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents.  The material indicates that there have been difficulties in the past.  Although those difficulties may, according to the parents, not be continuing, it is still a factor which is to be considered, taking into account the arrangements which have been in place for the children now for some years. 

29. Paragraph (j) is any family violence involving the child or a member of the child’s family.  The historical material in the file indicates that this was a concern.  This is now denied as an ongoing concern by the parents, and is not, at this time, considered a significant factor, although currently, as indicated, there is no recent material filed by either of the parents which would give the Court any reassurance in that regard. 

30. The Court does not have any information concerning any family violence orders, and therefore does not place any emphasis upon that in making its decision. 

31. Paragraph (l) is 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.  Clearly, that is a factor which is considered to be one which impacts upon what is in the best interests of the children.  I consider that the orders being proposed by the grandmother are orders which are less likely to lead to the institution of further proceedings in relation to the children. 

32. Paragraph (m) any other fact or circumstance, as the Court thinks is relevant.  I have taken into account in a general sense the clear material in the report of Mr M. 

33. On that basis, weighing up all of the factors, I consider it to be in the best interests of all three children that the orders being sought by the paternal grandmother be made as final orders. 

34. I have heard from the bar table that the mother has given birth to another child, and the remarks made by the father from the bar table indicate that he considers himself to be the father of that child.  Apart from those remarks from the bar table, I have no other information which deals directly with that child.  Taking into account the proposed orders to provide for the parents to have time with the children each alternate weekend, I consider that those orders will also give the children an opportunity to continue any relationship with their sibling.

35. I therefore make orders in terms of paragraphs 2 through to 9 of the Amended Initiating Application, filed on 28 April 2014, save and except that paragraph 5 will read that the parents spend time with the children each alternate weekend commencing on Saturday 27 September 2014. 

36. The appointment of the Independent Children’s Lawyer is discharged one month from today.  Otherwise the matters are removed from the pending list. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 September 2014.

Associate: 

Date:  23 September 2014