Pohan & Anor and Kueffer & Anor

Case •

[2009] FamCA 1040

•

6 October 2009

FAMILY COURT OF AUSTRALIA

POHAN AND ANOR & KUEFFER AND ANOR [2009] FamCA 1040
FAMILY LAW – CHILDREN – Best interests – applicant grandmother and second cousin
Family Law Act 1975 (Cth)
1ST APPLICANT: Mrs Pohan
2ND APPLICANT: Ms Modell
1ST RESPONDENT: Ms Kueffer
2ND RESPONDENT: Mr Pohan
INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers
FILE NUMBER: SYC 7604 of 2007
DATE DELIVERED: 6 October 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Justice Fowler
HEARING DATE: 6 October 2009

REPRESENTATION

COUNSEL FOR THE 1ST AND 2ND APPLICANTS:
Mr Dura
1ST RESPONDENT: Ms Kueffer
2ND RESPONDENT: Mr Pohan
INDEPENDENT CHILDREN’S LAWYER: Ms Adams

Orders

By consent:

  1. That the Applicant Paternal Grandmother, Mrs Pohan (“the Applicant Grandmother”) and the Second Applicant, Ms Modell (“the Second Applicant”) have equal shared parental responsibility for the long-term care, welfare and development of the child … born … November 2006 (“the child”). 

  2. That the Applicant Grandmother and the Second Applicant shall provide the Mother and the Father with information and/or documents relevant to the child’s education, health and welfare on a regular basis and as soon as practicable in the event that the child is admitted to hospital or is diagnosed with a serious illness.

Live With

  1. That if the Applicant Grandmother and the Second Applicant are living together, the child live with the Applicant Grandmother and the Second Applicant.

  2. That unless otherwise agreed between the Applicant Grandmother and Second Applicant, if the Second Applicant is not living with the Applicant Grandmother, the child live with the Applicant Grandmother.

Spend Time With

  1. That unless otherwise agreed between the Applicant Grandmother and Second Applicant, if the Second Applicant is not living with the Applicant Grandmother, the child spend time with the Second Applicant:

    (a)       Every weekend from 6.00 pm Friday to 7.00 am Monday; and

    (b)       Other times as agreed.

  2. That the Respondent Father spend supervised time with the child as agreed between the Applicant Grandmother, the Second Applicant and the Respondent Father.

  3. That the Respondent Father’s time with the child be supervised by the Applicant Grandmother and/or the Second Applicant and/or Mr Modell and/or Mr S. 

  4. That the Respondent Mother spend supervised time with the child at a Contact Centre as follows:

    (a)That the Respondent Mother spend time with child on a supervised basis at Centacare Contact Centre, on such days and such times as nominated by the Centre but not more frequently than once per fortnightly for up to 3 hours per visit;

    (b)That the Respondent Mother be responsible for all costs associated with her spending time with the child at the Centre;

    (c)In the event the Respondent Mother fails to attend three (3) consecutive scheduled visits at the Centre, then the time provided for in Order 8a above is suspended;

    (d)In the event the Respondent Mother seeks to re-instate the time provided for in order 8a above, should Order 8c become operate, the Respondent Mother shall file and serve an Application in a Case setting out the Orders sought by her together with a supporting Affidavit setting out the reason for her non-attendance and those matters listed in paragraph 21 of the Orders sought in the Second Further Initiating Application filed 5 September 2008; and

    (e)For the purposes of this Order the Respondent Mother and the Applicants comply with all guidelines and policies of the Contact Centre including but not limited ensuring they attend the Building Connections course.

Specific Orders

  1. That unless the Respondent Mother is spending supervised time with the child pursuant to Order 8 above, the Respondent Mother is restrained from removing the child … born … November 2006 or causing the removal of the child from the care of the Applicant Grandmother and/or the Second Applicant and/or Mr Modell and/or Mr S and/or the Respondent Father until further order of the Court and it is an order made for the personal protection of the child and carries the power of arrest without warrant pursuant to Section 68C of the Family Law Act 1975.

  2. That the Respondent Mother’s telephone communication with the child be as agreed between the Applicant Grandmother, the Second Applicant and the Respondent Mother, but at least three times per week initiated by the Respondent Mother.

  3. That the Respondent Father have liberal telephone communication with the child.

  4. That the Respondent Mother and Respondent Father not consume alcohol beyond the legal driving limit or illicit drugs within 24 hours of spending time with the child.

  5. That the parties are to ensure that the child not be exposed to adults who have consumed alcohol to excess and not be in the presence of any person using illicit drugs.

  6. That the parties be restrained from denigrating the other parties to the child, within the child’s presence or within her hearing and are to ensure as far as possible that no other person denigrates the other parties or the child, within her presence or within her hearing.

  7. That the Respondent Mother and Respondent Father comply with and attend all appointments, courses and meetings as directed by their Probation and Parole Officers.

  8. That the parties comply with any medical treatment and take any medication recommended by their treating doctors and other medical/mental health practitioners.

  9. That the parties attend all appointments, course and meetings as directed by their treating doctors and other medical/mental health practitioners.

  10. That the parties are restrained from smoking in the presence of the child.

  11. That the parties are restrained from allowing the child to be a passenger in the motor vehicle driven by a person who does not have a current driver’s license or who is under the influence of alcohol or illicit drugs.

  12. That the parties keep each other informed of their residential address and contact telephone number and notify all other parties of any changes to their address or contact number within 14 days of such change.

Other Orders

  1. Pursuant to Section 65DA(2) and Section 62B, particulars of the obligation of these Orders and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Facts Sheet attached and these particulars are included in these Orders.

Notations:

  1. That if the Respondent Mother and/or Respondent Father seek to vary the Orders, he/she is to approach a mediation service.

  2. The Court notes that the Independent Children’s Lawyer will provide each of the parents with a letter outlining the process they must undertake to vary the Orders, including the requirement for mediation and the process of filing a Court application.

IT IS NOTED that publication of this judgment under the pseudonym Pohan and Anor & Kueffer and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7604  of 2007

MRS POHAN

1st Applicant

And

MS MODELL

2nd Applicant

And

MS KUEFFER

1st Respondent

And

MR POHAN

2nd Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

  1. The proceedings before the court are proceedings relating to the parenting arrangements for the child born in November 2006 and presently aged 2 years and 11 months.

  2. The applicants are Mrs Pohan aged 55 years who is the paternal grandmother and a second applicant is Ms Modell aged 30 years who is the father’s cousin and the second cousin of the child.

  3. The applicants seek orders for sole parental responsibility and that the child live with them and spend supervised time with the father and, subject to conditions, supervised time with the mother.

  4. At the hearing of the proceedings both the mother and the father were unrepresented.

  5. The mother had, during the proceedings, been in prison for a period of nine months and in Court delivered an emotional plea that she was now on a different path and that she was no longer the woman who had been sent to prison but was working hard towards an ultimate goal of rehabilitation and education which she hoped would ultimately put her in a position where her relationship with her daughter might be regularised.

  6. The applicants amended the orders they sought to give the mother the opportunity in deeds, rather than in words, to start developing a positive relationship with her daughter.

  7. The Independent Children’s Lawyer supported the orders proposed to be made by consent but emphasised that, having regard to the length of the proceedings (they having been on foot since November 2007), no order should be made which did not end these proceedings subject of course to the usual rights of a party on proof of compelling reasons so to do to apply for a change of the orders so made.

  8. The father consented to the orders sought by the applicants’ application and with the mother executed minutes of consent orders.

  9. I am satisfied that the orders will, whilst preserving the child safe from abuse, neglect or violence, afford the child the opportunity of developing a meaningful relationship with both of her parents.

  10. That will take time and determination of each of the parents, as the father is presently in custody on criminal matters.  In pursuit of that meaningful relationship it will be deeds, not words, that count.

  11. A future court will have to be satisfied that there has been a sufficient change in the circumstances of the child and the parties to warrant an amendment of these orders.  The mother particularly avers that there will be such a change.

  12. Given the matters referred to in the affidavits filed in these proceedings the task facing the mother is difficult but not impossible.  It is my hope that this child will in due course be able to benefit from a relationship with her mother but it will be up to the mother to demonstrate that this can be done.  The path to this goal is not going to be easy but is not closed.

Background Facts

  1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

  2. The child has lived with the applicants for the majority of her life since November 2006 although there were interruptions to that care when the child was with either the father or the mother.

  3. The child has been seen intermittently by the mother between then and now.  The child was continuously in her care for about a month in October 2007 but suffered illness apparently arising from neglect of the child.  The mother was, it seems at the time, affected by ill-health by reason of her addictions;  addictions which she says she has recently overcome.

  4. The formalisation of the child’s care on an interim basis was given effect to by orders made in this Court in February 2008.

  5. In March 2008 or thereabouts the mother was imprisoned in Gaol but in May filed a response seeking care of the child.  The mother was released from Gaol in August 2008.

  6. In September 2008 the father was committed to imprisonment at X prison.

  7. In November 2008 attempts were made for the mother to spend some supervised time with the child but those arrangements were not put into effect by the mother and similar arrangements were made in July 2009 to the same effect.  They equally were not followed through upon.

Relevant Law

Legal principles

  1. The principles governing this case are set out in the Family Law Act 1975.  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration.  In determining what is in the child's best interests, I must consider certain matters under section 60CC.  Those matters are the "primary considerations" and the "additional considerations" set out in that section.

  2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount.

  3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.

  4. I am required to consider the matters set out under section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

  5. Section 61DA(1) requires that:

    “…  When making a parenting order in relation to a child, 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 for the child.”

    The Act goes on to say however that:

    “…  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

  6. Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

  1. I have to consider the benefit of the child having a meaningful relationship with each of her parents.

  2. Having regard to the history of this matter and the parenting of each of the parents and their current situation it will be difficult for the child to establish a meaningful relationship with each of them but the door to that is still open and I encourage each of them to seek to re-establish such a relationship with the child.  The child will be well served if in time the mother and father can be seen to be free of their past, reinstated as productive and healthy members of society, and able to contribute positively and safely to the development of the child’s potential.  That time will not be short and the path each of them has to tread will be difficult.  Nevertheless in an appropriate time the welfare of this child can only be served by them travelling it to a successful conclusion.

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

  3. This child has been exposed to neglect and family violence in the presence of both parents.  The present arrangements represent a safe haven from those dangers and the Court would need to be reassured that there was no longer any possibility of them recurring before changing these arrangements

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

  1. Given the child’s age and maturity her views are not a relevant matter in my considerations.

    (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)

  2. The child has, on the evidence, a good relationship with each of the applicants with whom she has lived for most of her life and who in every respect have parented her.  It cannot be said that she has a relationship at the present time of significance with either of her parents.

    (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

  3. The applicants have put before the Court arrangements for the recommencement of a relationship between the mother and the father and to facilitate contact and the flow of information concerning the child’s welfare to each of her parents.  They have agreed to facilitate telephone communication.

    (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

  4. The child’s relationship with her carers is effectively that of parents and child.  A removal of the child from so long an established relationship at this time and her placement elsewhere would in my view provide the foundation for anxiety for the child at such a separation from them and cause her hurt and possible psychological injury.

    (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

  5. There is a difficulty in the relationship being established between the child and the father and the mother.

  6. The father is currently imprisoned and it is difficult for the child to see him.  The child will be able to have supervised contact with the mother under the proposed orders.

    (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

  7. The applicants have demonstrated a capacity to provide for the emotional, financial and intellectual needs of the child.  The mother and the father could not presently be judged able to so provide for those 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

  8. The child’s father is from the Pacific Islands and her mother is of Aboriginal descent.  The applicants have sought to involve her in the culture of the Pacific Islands and I think are prepared to maintain a connection between the child and her Aboriginal descent and certainly the mother will have, by contact with the child, an ability to provide for that.

    (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

  9. The child is of Aboriginal descent and having regard to the matters referred to above whilst the order that I make will at this time probably mean that she will have a greater exposure to her Pacific Island culture given the mother’s proposed contact with her she will be able to keep in touch with her aboriginal culture.

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

  10. The demonstration of the responsibility of each of the parents of the child has been found lacking.  Priorities it seems have been afforded by each of them to other matters which do not serve the interests of the child.  I hope that that will change.  The applicants have been responsible for caring for the child and, whilst not her parents, have provided to her appropriate parental care.

    (j)any family violence involving the child or a member of the child’s family

  11. There has been a history of family violence but not in the presence of her present carers.  Whilst that care continues the child will not be exposed to such violence in my view given the responsibility that the applicants have demonstrated.

    (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

  1. There was previously an Apprehended Violence Order between the parents and between the father and his girlfriend, C, and I note that because I am obliged to take it into account.

    (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

  2. In my view the orders that I make are the best that can presently be made to end the proceedings.  I do however urge upon the parties to this matter that if some change is proposed to the current orders that it be dealt with by mediation or conciliation rather than an adjudication.  In that way problems might be resolved rather than simply be the subject of a judicial decision.

Section 60CC(4) & (4A)

  1. In relation to section 60CC(4) and (4A) I have already touched on a number of matters which fall for consideration under this heading and I will not repeat them.

Balancing of all considerations under Section 60CC and the defined issues

  1. Balancing all the matters set out in section 60CC and the evidence recited in these reasons and contained in the affidavits, I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

  1. Section 61DA requires a presumption to be made unless an excluding factor applies.  That section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility.

  2. The presumption does not apply where there has been family violence.  In this case there has been family violence as set out.

  3. Notwithstanding that there may have been family violence it would still be open to me to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.

  4. The section further provides that the presumption may be rebutted if it is determined not to be in the best interests of the child.

  5. In this case there is reason for the presumption not to apply and I find that it is not presently in the best interests of this child that it do apply.

Section 65DAA

  1. Section 65DAA requires me to consider making an order for equal shared time with the child for each parent where it is proposed to make an order for equal shared parental responsibility.

  2. I do not propose and accordingly will not need to consider to make such an order and accordingly will not need to consider this matter.

The Orders to be made

  1. I therefore propose to make the orders in relation to parenting as set forth in the minutes of consent order which will be initialled by me and placed with the papers and I accordingly make those orders.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  6 October 2009

Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Consent

  • Costs

  • Injunction

  • Jurisdiction

  • Procedural Fairness

  • Remedies

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