Paterson and Wilson and Anor
[2016] FamCA 202
•4 April 2016
FAMILY COURT OF AUSTRALIA
| PATERSON & WILSON AND ANOR | [2016] FamCA 202 |
| FAMILY LAW – CHILDREN – Applicant is a non-parent – Where the mother and father have failed to participate in the proceedings – Where the father has spent little time with the children due to incarceration but now spends some time with the children supervised by the applicant – Where the mother has some day contact with the children by arrangement with the applicant – Where the children have been residing with the applicant since 2014 – Consideration of best interests principles – Order for the applicant to have sole parental responsibility for the children, for the children to reside with the applicant. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C |
| Aldridge & Keaton [2009] FamCAFC 229 Donnell & Dovey [2010] FamCAFC 15 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Potts & Bims [2007] FamCA 394 Valentine & Lacerra and Anor [2013] FamCAFC 53 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Ms Paterson |
| 1st RESPONDENT: | Ms Wilson |
| 2nd RESPONDENT: | Mr Paterson |
| INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
| FILE NUMBER: | DUC | 151 | of | 2012 |
| DATE DELIVERED: | 4 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 March 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Aboriginal Legal Service |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
Orders
That the applicant paternal grandmother Ms Paterson have sole parental responsibility for the children B born … 2010 and C born … 2011 and.
That the children live with the applicant paternal grandmother.
That the respondent mother spend time with and communicate with the children as agreed with the applicant paternal grandmother.
That the respondent father spend time with and communicate with the children as agreed with the applicant paternal grandmother.
That the applicant paternal grandmother provide to the respondent mother and the respondent father details of the children’s schools and/or child care arrangements and in a timely fashion copies of all notices, letters, school reports, school photos and invitations.
That the respondent mother and respondent father may attend parent/teacher interviews or other school activities to which parents are usually invited.
That the respondent mother and the respondent father be at liberty to send the children cards and gifts on their birthday and at Christmas time and otherwise communicate with the children by letter.
That the applicant paternal grandmother shall notify the respondent mother and respondent father as soon as practicable in the event of a medical emergency involving any of the children.
That the applicant paternal grandmother, the respondent mother and the respondent father shall not criticise or denigrate the other or the other’s family in the presence of or within hearing of the children.
That the applicant paternal grandmother shall keep the respondent mother and respondent father informed at all times of her contact details including mobile telephone number and postal and residential address and is to advise the respondent mother of any change within 7 days.
That otherwise all outstanding applications are dismissed.
That these proceedings be removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paterson & Wilson 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 PARRAMATTA |
FILE NUMBER: DUC 151 of 2012
| Ms Paterson |
Applicant
And
| Ms Wilson and Mr Paterson |
Respondents
REASONS FOR JUDGMENT
These proceedings concern the children B born in 2010 and C born in 2011.
Litigation in relation to the circumstances of the children has been ongoing since 2012.
Context
In early 2012 the paternal grandmother made application to the D Town Local Court for parenting orders in relation to the children. On 19 April 2012 orders were made in that court in summary as follows:
a)That the children reside on an interim basis with the mother Ms Wilson;
b)That the children spend time with the paternal grandmother each Monday, Wednesday and Friday between 7.30 am and 4.00 pm and otherwise as agreed; and
c)That proceedings be transferred to the then Federal Magistrates Court at Parramatta.
Subsequently on 18 June 2012 the court ordered that an Independent Children’s Lawyer be appointed to represent the interests of the children and that a family report be prepared. Otherwise it was ordered by the court by consent:
a)That orders made on 19 April 2012 be discharged;
b)That the children be permitted to relocate with the mother from D Town to E Town;
c)That the children live with the mother except when they live with the paternal grandmother;
d)That the children live with the paternal grandmother as agreed between the mother and the paternal grandmother and for one continuous week in D Town each month from 1.00 pm Sunday to 1.00 pm the following Sunday; and
e)Otherwise various specific issues orders were made not relevant to the present determination.
It was noted by the court on 18 June 2012 that the father Mr Paterson was in juvenile detention until October 2012 and to date had not participated in the proceedings.
Subsequently on 22 May 2013 final parenting orders in relation to the children were made by consent. Those orders provided in summary as follows:
a)That the mother and father have equal shared parental responsibility for the children but that they undertake to consult with the paternal grandmother in relation to that responsibility;
b)That the children live with the mother;
c)That the children spend time with the paternal grandmother as agreed but failing agreement until the child B commences kindergarten the third Saturday of each month from the Saturday morning until the following Monday and after the child B commences kindergarten for one half of each mid-term school holiday period and in the Christmas school holidays for three nights in each alternate year over the Christmas festive period and for a period of two weeks from the second Saturday in January;
d)That the children spend time with the father as agreed and in default of agreement at times that the children are spending with the maternal grandmother and under her supervision with the father restrained from being under the influence of non-prescribed drugs and or alcohol; and
e)Otherwise there were various specific issues orders facilitating implementation of the orders referred to above.
Further concerns arose in relation to the circumstances of the children and on 8 May 2014 the mother filed an application in a case seeking a recovery order in relation to the children who had been retained by the paternal grandmother.
On 5 June 2014 in the Federal Circuit Court of Australia interim orders were made by Judge Donald in summary in the following terms:
a)That orders made on 22 May 2013 be suspended;
b)That the children live with the paternal grandmother;
c)That the children spend time with the mother as agreed and failing agreement supervised by the paternal grandmother on each alternate Sunday from 10.00 am until 3.00 pm at a location in F Town and on the other Sunday supervised by the paternal grandmother between 10.00 am and 3.00 pm at a location in D Town; and
d)That the children spend time with the father as agreed with the paternal grandmother.
The matter was thereafter adjourned on a number of occasions until on 18 February 2015 the court ordered that leave be granted to the respondent paternal grandmother to file and serve an initiating application, that the respondent mother file and serve a response and that proceedings be adjourned for interim hearing to 18 June 2015.
The matter was thereafter adjourned again and on 4 August 2015 the court ordered that an Independent Children’s Lawyer be appointed to represent the interests of the children and that the paternal grandmother, the mother and the subject children attend upon a family consultant for the purposes of a child inclusive conference.
Subsequently it appears that on 21 October 2015 the interim hearing was finally conducted. Previous orders in relation to the mother’s time were discharged and orders were substituted in summary as follows:
a)That the children spend time with the mother in D Town between 12 noon and 4.00 pm each Sunday subject to the arrival and departure times of trains from Sydney to D Town and return or otherwise as agreed;
b)That should the mother wish to spend time in accordance with the order she is to notify the paternal grandmother not less than 48 hours prior to the commencement of such time;
c)That Mr H is restrained from coming into contact or being in the presence of the children and the mother is not to permit or cause or allow the children to come into contact with him.
The court otherwise requested that the Department of Family and Community Services NSW intervene in the proceedings in relation to the children. The Department did not.
The proceedings were thereupon transferred to this Court.
Procedural fairness
The transferred proceedings were before a Registrar of this Court on 1 December 2015. There was no appearance by or on behalf of the respondent mother and the respondent father. The Independent Children’s Lawyer was ordered to notify the respondent parents that proceedings were adjourned to 9 February 2016 and that in default of their attendance the matter may proceed to undefended hearing.
On 9 February 2016 there was no appearance by or on behalf of the respondent parents with information to hand that the father was currently in custody and the mother had relocated to G Town in Queensland. Proceedings were adjourned for judicial case management hearing on 15 March 2016 at 11.30 am and the Independent Children’s Lawyer was ordered to notify the parents that on that day the matter may proceed to undefended hearing.
Exhibit B evidences that the Independent Children’s Lawyer provided due notification to respondent parents of the Registrar’s directions made on 1 December 2015 and 9 February 2016.
The matter proceeded to undefended hearing on 15 March 2016. It was appropriate to do so as both the mother and father had failed to engage in the proceedings or comply with filing directions.
Can the Applicant apply for parenting orders as a person concerned with the care, welfare and development of the child?
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 therefore is able to apply for parenting orders pursuant to subparagraph (ba) of that section.
It is clear having regard to the circumstances of the children both historical and at present as referred to above that the Applicant is concerned with the care, welfare and development of the children.
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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.
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.
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.
The presumption 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)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
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)].
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.
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.
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).
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). …
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)
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”.
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)
The applicant grandmother’s case
The applicant paternal grandmother relies upon her amended application filed on 21 August 2015 and her affidavit filed on 8 September 2015.
The applicant is 48 years of age.
The respondent mother was born in 1994 and is presently 21 years of age.
The subject children were at times in the care of the applicant in circumstances where the mother was unable to care for them.
On 10 January 2012 the child B was bitten on the right arm by the mother leaving a significantly visible injury. The mother was later found guilty of assault on the child and placed on a good behaviour bond. The children thereafter remained in the applicant’s care until April 2012 when interim orders were made by the D Town Local Court.
Shortly thereafter the mother commenced a relationship with Mr H.
In December 2012 the children spent time with the applicant at which time the child B had a severe case of untreated herpes in his mouth and the child C had herpes on the back of her right leg. The applicant took the children to the local hospital where B was admitted for treatment including dehydration as he had been unable to eat or drink. The next month in January 2013 both children had untreated scabies and the applicant attended to obtaining medical treatment for them.
Notwithstanding final orders made on 21 May 2013 that facilitated the applicant having significant input into the circumstances of the children. The relationship between the applicant and the mother improved after orders of May 2013 and the applicant spent more significant time with the children than as provided for in the orders. At this time the mother was living in the E Town area.
The mother later asserted that she had separated from Mr H and moved to F Town with the children in about April 2014. The mother complained that Mr H was aggressive and abusive towards her and was a user of illicit drugs. The mother also held concerns for the children being in the presence of the Mr H unsupervised.
The applicant mother attended at D Town Police Station in late April 2014 in relation to certain disclosures made by the child B that were suggestive of him being inappropriately touched by Mr H.
At this time the mother was pregnant expecting her third child. The father is Mr H. This child, J was born in 2014.
Subsequently in early May 2014 the applicant’s daughter made a report to the police in relation to physical assaults by the mother on the children. The applicant ascertained that the mother remained in a relationship with Mr H. The children later made further disclosures that were investigated by the Department of Family and Community Services and that resulted in apprehended violence orders being made against the mother and Mr H for the protection of the children.
Then in early June 2014 formal court orders were made that the children live pending further order with the applicant. The mother did not spend time with the children as provided for in the orders. The applicant later ascertained that the mother had moved out of her property in F Town. Her circumstances were unknown to the applicant for some time. It appears that the mother in mid-June 2014 relocated to Queensland.
In the context of the present application it appears the mother’s proposal was that she would relocate the children to live with her in Queensland. This proposal is notwithstanding that the children’s paternal family live in the D Town area.
The applicant paternal grandmother is presently in receipt of a disability pension and receives additional family tax benefits by reason of her care of the children.
The applicant identifies as an aboriginal woman and supports the children’s rights to enjoy their aboriginal culture and has informed the children’s school and preschool accordingly.
The applicant is concerned to maintain the relationship between the children and the mother subject to protection of the children from any risk of harm. The applicant has concerns that the mother will continue to allow the children to come into contact with Mr H notwithstanding significant concerns for the children’s welfare and safety should she do so. The applicant is willing to make the children available to the mother in D Town on a day time basis each week should the mother wish to engage. As at September 2015 the mother was residing at Suburb I in Western Sydney.
Subsequent to orders made in early June 2014 the mother did not spend time with the children until 16 August 2015. The mother has had some day contact with the children by arrangement with the applicant.
The children
The children reside with the applicant in a three-bedroom home. Otherwise the applicant has two other children now aged two and 12 months placed in her care by the Department of Family and Community Services. The elder child is the subject children’s half-brother and the paternity of the younger child is at present unknown.
The child B attends K Town Public School where he is in kindergarten. The child C attends day care and a preschool program at K Town Public School with a view to commencing school in 2017.
The applicant resides within walking distance of the public school and local community facilities. The applicant has appropriate transport for all children in her care. The applicant has observed a close bond between all four children in her care.
The father is having some time with the children after spending a period of full-time imprisonment from September 2014 to June 2015. The applicant is encouraging of the father spending time with the children on a supervised basis but he “has not spent much quality time with the children” since his release.
Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
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.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [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.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The additional considerations are set out in s 60CC (3) of the Act. The relevant considerations are as follows:
(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 each of the child's parents and other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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 either of his or her parents; or 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 each of the child's parents; and 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 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 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 the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and 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;
(m) any other fact or circumstance that the court thinks is relevant.
The primary considerations
The children’s relationships with their parents are at present irregular and inconsistent. The background of this matter reveals that both parents have significantly failed the children and it could not be said that the present relationship that those parents have with the children in any way can be meaningful in terms of being important and valuable to the children.
It appears that since his release from custody in 2015 the father has engaged to some extent with the children and the applicant paternal grandmother is prepared to facilitate that continuing engagement. The mother’s proposals in relation to the children are unclear as it appears that her present circumstances in living with her partner have taken significant priority over those of her own children.
There is no doubt that the children by reason of the paternal grandmother’s significant engagement in their lives from the beginning have a meaningful and significant relationship with the grandmother and a continuation of that relationship particularly in circumstances where the children have been residing full-time with the grandmother since 2014 will be meaningful for the children in terms of being important, significant and valuable to them.
The grandmother’s engagement with the children represents consistency and protection for the children and should be continued.
The protective considerations in s 60CC(2) are given prominence. Indeed overall in considering the best interests of the children the protective considerations are in reality determinative of the present application. It is important for the children to have the overarching protection of the paternal grandmother’s primary care within which she can it appears appropriately manage the children’s relationships with the father and mother should they seek to engage.
The additional considerations
There is no evidence as to the views of the subject children and having regard to the children’s background circumstances and the fact that they are only presently aged four and five any expressed wishes would be afforded little or no weight.
The nature of the children’s relationships with each of the parents and the applicant paternal grandmother is discussed above. It is clear that the primary relationship of the children is with the applicant paternal grandmother and that relationship should be continued.
The mother and father have significantly failed to take the opportunity to participate in the lives of the children or when they have they have exposed the children to the risk of harm and neglect. Otherwise the paternal grandmother fortunately for the children has engaged appropriately in the care of the children and has taken responsibility for making decisions about their lives from day-to-day and long-term.
There is no evidence that the mother and father currently provide any financial support for the applicant paternal grandmother and the evidence such as it is would suggest that there is little prospect they will do so into the future. In that circumstance the paternal grandmother will assume the totality of the obligation to provide for the maintenance of the children.
The orders proposed by the applicant paternal grandmother do not make any change in the children’s current circumstances in which they have been living now for almost two years. It is important for the children to have continuity in their primary care with the paternal grandmother and orders will be made to facilitate same.
The question of the practical difficulty and expense of the children spending time and communicating with each of the parents is at best at this stage problematic. The evidence suggests that the father will continue to have contact with the children under the supervision of and on terms imposed by the paternal grandmother in the best interests of the children. The mother has in the latter half of 2015 had occasion to spend time with the children, once again facilitated by the paternal grandmother. It is proposed by the paternal grandmother that these arrangements will continue and they appear to be appropriate in all of the circumstances.
Both parents have demonstrated a significant lack of capacity to provide for the needs of the children including the children’s emotional and intellectual needs. Such conclusion is self-evident from the background discussed above. Otherwise the applicant paternal grandmother has demonstrated a most appropriate capacity in this regard and it is difficult to imagine what the circumstances of the children would be absent her engagement in their lives.
The applicant identifies as an aboriginal woman and supports the children’s rights to enjoy their aboriginal culture and has informed the children’s school and preschool accordingly. The mother also identifies as an aboriginal woman. The applicant appears to respect the rights of the children to enjoy their aboriginal culture and it is to be inferred will continue to facilitate that into the future.
Both parents have demonstrated an inappropriate attitude to the children and their responsibilities of parenthood. The applicant paternal grandmother for her part and as a consequence of her significant role in the children’s lives has demonstrated a most appropriate attitude to the children and her responsibility as a grandmother to the children and as their primary carer.
There are issues as to family violence and abuse to which the children have been subjected in the household of the mother as discussed above. Those issues raise significant questions as to risk of harm should the children spend unsupervised or extended time with the mother particularly in the company of her present partner.
There is evidence of an interlocutory family violence order made against the mother and her partner for the protection of the children. The final determination as to that application is not known.
Whilst it is preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children the reality is that the applicant with whom the children will live is their grandmother. The children are young and it may well be that at some time in the future either the mother or the father get their lives in order sufficient for them to make application for a change in the orders proposed to be made.
Discussion
For the reasons set out above and following a consideration of the various factors impacting on the children’s best interests of the presumption as to the mother and father holding equal shared parental responsibility is clearly not to apply.
It is in the children’s best interests that the applicant paternal grandmother hold long term parental responsibility for the children. As a consequence there is no need to consider the children spending equal time or substantial and significant time with each of the parents.
Overall it is in the best interests of these children that orders be made as sought by the paternal grandmother and as supported by the Independent Children’s Lawyer as set out in Exhibit C.
Orders will be made accordingly.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 April 2016.
Associate:
Date: 4 April 2016
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