Remzi & Anor & Land
[2020] FamCA 913
•29 October 2020
FAMILY COURT OF AUSTRALIA
| REMZI AND ANOR & LAND AND ANOR | [2020] FamCA 913 |
| FAMILY LAW – CHILDREN – Undefended hearing – best interests – where appropriate that the matter proceed on an undefended basis – where the applicants are non-parents – where consideration of applicable principles – where orders made that the maternal grandparents have sole parental responsibility for the child – where orders made for the child to live with the maternal grandparents and spend time with the father and second respondent paternal grandmother as agreed between them and the maternal grandparents. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN Family Law Rules 2004 (Cth) rr 11.02, 16.07 |
| Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 Goode and Goode (2006) FLC 93-286 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Potts & Bims [2007] FamCA 394 Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539 Yamada & Cain [2013] FamCAFC 64 |
| FIRST APPLICANT: | Mr Remzi |
| SECOND APPLICANT: | Ms Remzi |
| FIRST RESPONDENT: | Mr Land |
| SECOND RESPONDENT: | Ms Quinton |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Jenkins |
| FILE NUMBER: | PAC | 4086 | of | 2019 |
| DATE DELIVERED: | 29 October 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 30 September 2020 |
REPRESENTATION
| SOLICIOR FOR THE FIRST AND SECOND APPLICANTS: | Thornton Storgato Law Pty Ltd |
| FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT: | No appearance |
| SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Russell Kennedy Aitken Lawyers |
Orders Made On 30 September 2020
The Applicants, Mr Remzi and Ms Remzi, have sole parental responsibility for the child X born in 2013.
The said child live with the said Applicants.
The said child spend time with the Respondent father Mr Land as agreed between the Applicants and the Respondent.
That all time the child spends with either or both of the Respondents shall be supervised by the Applicants provided:
(a)during the time the child spends with the Respondents the child will always remain visible to the Applicants; and
(b)such time shall occur within the Sydney metropolitan area unless otherwise agreed by the Applicants and First and/or Second Respondents in writing.
That either or both Respondent/s may propose a professional supervisory service (“supervisory service”) to supervise the whole of the time the child spends with the First and/or Second Respondent instead of the Applicants, contingent upon the Respondent who proposes use of the supervisory service:
(a)meeting all costs of the supervisory service and providing the same with a copy of this order upon retention of the supervisory service; and
(b)providing the Applicants with contact details for the supervisory service no less than 72 hours prior to the time the supervisory service is proposed to supervise the time; and
(c)such time shall occur within the Sydney metropolitan area unless otherwise agreed by the Applicants and First and/or Second Respondents in writing.
That the Respondents:
(a)shall not consume alcohol and/or illicit substances for the 24 hours prior to spending time with the child; or
(b)allow any third party to spend time with the child if either or both Respondents believes that the third party has consumed alcohol and/or illicit substances in the 24 hours prior to spending time with the child; or
(c)cause the child to be transported anywhere except as the Applicant’s may direct.
That:
(a)The First Respondent be permitted to telephone the child by telephone between 6 pm and 7 pm on each Tuesday, Friday, and Sunday that the child is not in his care; and
(b)The Second Respondent be permitted to telephone the child by telephone between 6.30 pm and 7.00 pm on each Thursday that the child is not in her care.
(c)The Applicants shall inform the first and Second Respondents of any change to the telephone number to be used for each party to call the child upon.
That the parties shall not:
(a)denigrate the other in the hearing or presence of the child and shall not permit any other person to do so; or
(b)Discuss these proceedings with or in the presence of the child.
That the Applicants are permitted to provide a copy of these Orders to the school, medical and associated providers as they deem necessary to meet the best interests of the child.
That all outstanding applications be and are hereby dismissed with no further order as to costs.
Reasons for judgment will be published at a later date.
The Court Notes That
In the particular circumstances of this matter, it is noted there is no application for costs by the Independent Children’s Lawyer.
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 Remzi and Anor & Land and Anor 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 4086 of 2019
| Mr Remzi |
First Applicant
| Ms Remzi |
Second Applicant
And
| Mr Land |
First Respondent
| Ms Quinton |
Second Respondent
REASONS FOR JUDGMENT
These are parenting proceedings commenced by the applicant maternal grandparents by Initiating Application filed 22 August 2019. The proceedings relate to one child, X, born in 2013 (“the child”) who was aged seven at the time of hearing.
The child’s mother, who is not a party to the proceedings, died in 2017. The child’s father, who is the first respondent in these proceedings, did not meaningfully engage in the proceedings at any stage. The paternal grandmother who on her application was more recently joined as the second respondent in the proceedings also disengaged in the proceedings and as a result the matter proceeded to undefended hearing on 20 September 2020.
At undefended hearing the maternal grandparents relied upon:
a)the Initiating Application filed 22 August 2019; and
b)the affidavit of the maternal grandmother filed 15 September 2020.
The maternal grandparents sought orders as set out in their Initiating Application which were slightly amended in their Case Outline document (Exh “A”), in summary, that:
a)the maternal grandparents have sole parental responsibility for the child;
b)the child live with the maternal grandparents;
c)the child spend time with the father and paternal grandmother as agreed by the parties in writing with that time to be supervised by the maternal grandparents (such that during the time with the father or paternal grandmother the child will always remain visible to the maternal grandparents) and the time occur within the Sydney metropolitan area;
d)the father or paternal grandmother may propose a professional supervisory service to supervise the time the child spends with the father or paternal grandmother instead of the time being supervised by the maternal grandparents contingent upon:
i)the father or paternal grandmother meeting all costs of the supervisory service;
ii)providing the maternal grandparents with contact details for the supervisory service no less than 72 hours prior to the time the supervisory service who is proposed to supervise the time; and
iii)such time shall occur within the Sydney metropolitan area unless otherwise agreed by the maternal grandparents and the father and/or paternal grandmother.
e)That the father and paternal grandmother:
i)Shall not consume alcohol and/or illicit substances for the 24 hours prior to spending time with the child; or
ii)Allow any third party to spend time with the child if either or both the father and/or paternal grandparents believes that the third party has consumed alcohol and/or illicit substances in the 24 hours prior to spending time with the child; or
iii)Cause the child to be transported anywhere except as the maternal grandparents may direct.
f)That:
i)The father be permitted to telephone the child between 6.00 pm and 7.00 pm on each Tuesday, Friday and Sunday that the child is not in his care; and
ii)The paternal grandmother be permitted to telephone the child between 6.30 pm and 7.00 pm each Thursday the child is not in her care.
g)The maternal grandparents shall inform the father and paternal grandmother of any change to the telephone number to be used for each party to call the child upon; and
h)the parties be restrained from denigrating the other parties extending to third parties in the presence of the parties and the child or discussing the proceedings with or in the presence of the child.
The Independent Children’s Lawyer (“ICL”) appointed in the proceedings proposed similar orders to those sought by the maternal grandparents including that:
a)the child live with the maternal grandparents;
b)the maternal grandparents have sole parental responsibility for the child;
c)the child spend time with the father as agreed between the maternal grandparents and father with the maternal grandparents to ensure that they facilitate time provided that the child is protected from harm;
d)the maternal grandparents facilitate, encourage and allow the child to speak with the father over the telephone at any time the child expresses a desire to do so and not less than two occasions per week;
e)the maternal grandparents provide the father an update with information on the child’s health and condition, progress at school, copies of recent school notices and/or school photographs, information about her extra-curricular activities and other information relevant to her;
f)that the parties be restrained from denigrating the other whilst in the hearing or presence of the child; and
g)the parties are restrained from speaking to the child or in the presence or hearing of the child about the proceedings or materials relating to the proceedings.
Orders were made by the Court on 30 September 2020 as sought by the maternal grandparents on an undefended basis and reasons were reserved. These are those reasons.
Context
The maternal grandfather was 67, the maternal grandmother 59, the father 31 and the paternal grandmother 57 at the time of hearing.
The mother and father commenced a relationship at some point in 2012 and commenced cohabitation in 2012. The mother gave birth to the only child of their relationship in 2013. The mother and father separated around November 2013. Following separation the mother returned to live with the maternal grandparents with the child and the father returned to live with the paternal grandmother. About nine months later the mother moved out of the maternal grandparents’ home with the child.
In 2016 the child was diagnosed with Autism Spectrum Disorder.
In 2017 the mother committed suicide. The father and the child found the mother after her death. Following the mother’s death the child lived with the father and paternal grandmother and spent time with maternal grandparents each weekend and half of the school holidays. It seems this arrangement remained roughly in place until orders were made by this Court in September 2019 after the maternal grandparents commenced proceedings due to concerns for the child’s welfare in the father’s care and in the home of the paternal grandmother. Orders were made on this date that the child live with the maternal grandparents, that the maternal grandparents have sole parental responsibility for the child and spend time with the father supervised by the maternal grandparents.
The maternal grandmother asserts that since these orders were made, the father had only spent limited time with the child and contacted her by phone infrequently. The paternal grandmother has also spent only limited time with the child since orders were made but has communicated with the child more frequently than the father.
The Proceedings
On 22 August 2019 the maternal grandparents commenced proceedings by filing an Initiating Application in this Court. The following day, the maternal grandparents filed a Notice of Risk asserting various risk issues in the father’s care which included that:
(1)The father was not addressing the child’s autism;
(2)The child frequently absent from school or late without cause and that her educational needs are being neglected;
(3)The child’s basic medical needs were being neglected;
(4)The child was often not being provided with food;
(5)The child missing important co-curricular events at school;
(6)The child was not provided with a bed and sleeps with her father or grandmother;
(7)The child having reported to the maternal grandparents being left in the care of strangers and reported having awoken to find a strange adult in her bed and her hair dyed;
(8)The child becoming distressed before returning to the father’s care and expressing to the maternal grandparents that she is scared of the father;
(9)The child reporting that her father loses his temper and throws things when he is angry including his phone, her toys and musical instruments; and
(10)The child reporting that one of the father’s girlfriends had stolen her bracelet given to her by the mother before she died and that when the father found the child distressed and anxious he told the child he was going to kill the person who had stolen the bracelet.
On 17 September 2019 the parties were ordered to attend upon a family consultant as part of the Child Responsive Program and the matter was listed for an urgent interim hearing before a Senior Registrar. Orders were also made for the maternal grandparents to file any further Notice of Risk and for the father to file material in the proceedings include a Response and supporting affidavit.
On 19 September 2019 the matter came before a Senior Registrar for interim hearing. Orders were made appointing an ICL in the proceedings and again for the father to file documents in the proceedings. The matter was adjourned for possible interim hearing to a later date and on an interim basis orders were made, in summary, that:
(1)The child live with the maternal grandparents;
(2)The maternal grandparents have sole parental responsibility for the child;
(3)In the event the father failed to make the child available to the maternal grandparents, a recovery order issue to the federal police to recover the child and deliver her to the maternal grandparents;
(4)The father spend time with the child supervised by the maternal grandparents each Sunday from 11.00 am to 5.00 pm or as otherwise agreed and at any other times agreed between the parties in writing;
(5)The father not to consume any illicit substances for the 24 hours prior to spending time with the child and is not to consume any such substances whilst the child is in his care;
(6)Each party be permitted to telephone the child between 6.00 pm and 7.00 pm each Tuesday, Friday and Sunday that the children are not in that party’s care;
(7)The parties not denigrate the other in the hearing or presence of the child and shall not permit any other person to do so;
(8)Neither party shall discuss these proceedings with or in the presence of the child;
(9)The maternal grandparents provide a copy of these orders to the principal and staff of the school the child attends;
(10)Each party keep the other informed hereafter of all medical appointments and treatments made or carried out in respect of the child and each party do all things and provide any authority allowing the other party to obtain details of any treatment provided to the child from the treatment provider whilst the child was in the care of the other party; and
(11)The father undergo urinalysis testing on three occasions as nominated by the maternal grandmother’s solicitors within 24 hours of receipt of the request and the respondent is to provide copies of all results to the maternal grandmother’s solicitor within seven days of receipt.
On 14 November 2019 the matter came back before the Senior Registrar who listed the matter before a Registrar for directions.
On 18 November 2019 the maternal grandparents attended upon a family consultant as part of the Child Responsive Program.
When the matter came before a registrar on 17 December 2019 for directions there was no appearance by the father. The registrar considered that as there was no appearance by the father and he had not filed any material in compliance with previous directions the matter may proceed to undefended hearing. The matter was listed for a Less Adversarial Trial and further directions were made.
On 26 February 2020 there was no appearance by the father at the first day of the Less Adversarial Trial. Orders were made that the matter be adjourned to undefended hearing and that the ICL notify the father of the orders made.
On 5 May 2020 the paternal grandmother filed an Application in a Case seeking to intervene in the proceedings and amongst other things that orders be made for the child to spend time with her and the father respectively.
On 7 May 2020 by consent the undefended hearing was adjourned, the paternal grandmother was joined as a party to the proceedings and orders were made that she file documents in the proceedings.
When the matter came before the Court on 24 June 2020 for case management, the matter was adjourned to allow the parties time to participate in mediation. The ICL was ordered to forward to the father a copy of the orders made despite the father’s lack of participation in the proceedings to date.
On 18 August 2020 the matter came before the Court for case management. Upon noting that there was no appearance by the father or paternal grandmother, orders were made that the matter proceed to undefended hearing.
The undefended hearing proceeded on 30 September 2020 in the absence of the father and paternal grandmother. Final orders were made, in summary, that:
(1)The maternal grandparents have sole parental responsibility for the child;
(2)The child live with the maternal grandparents;
(3)The child spend time with the father as agreed between the father and maternal grandparents;
(4)The time the child spends with either or both the father and paternal grandmother be supervised by the maternal grandparents provided that during the time the child spends with the father or paternal grandmother the child remains visible to the maternal grandparents and that such time occur within the Sydney metropolitan area unless otherwise agreed by the maternal grandparents and the father and paternal grandmother;
(5)The father and/or paternal grandmother may propose a professional supervisory service to supervise the whole of the time the child spends with them instead of the applicants provided the father/paternal grandmother meet all costs of the supervision, providing the applicants with the details for the supervision service not less than 72 hours prior to the proposed supervisory time and such time occur in the Sydney metropolitan area unless otherwise agreed between the maternal grandparents and father/paternal grandmother;
(6)The father and paternal grandmother:
(a)Shall not consume alcohol and/or illicit substances for 24 hours prior to spending time with the child; or
(b)Allow any third party to spend time with the child if either or both the father or paternal grandmother believe they have consumed alcohol and/or illicit substances in the 24 hours prior to spending time with the child; or
(c)Cause the child to be transported anywhere except as the maternal grandparents may direct.
(7)That:
(a)The father be permitted to telephone the child between 6.00 pm and 7.00 pm on each Tuesday, Friday and Sunday the child is not in his care;
(b)The paternal grandmother be permitted to call the child between 6.30 pm and 7.00 pm on each Thursday the child is not in her care; and
(c)The maternal grandparents inform the father and paternal grandmother of any change to the telephone number.
(8)The parties shall not denigrate the other in the hearing or presence of the child or permit any other person to do so or discuss the proceedings with or in the presence of the child.
Procedural Fairness
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.
Further, rule 11.02(2)(c) of the Rules provides:
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c)determine the case as if it were undefended.
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.
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.
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…
The ICL tendered in the proceedings various emails sent from her to the father advising him of court dates and the potential consequences of further non-attendance. From the tenor of some of these emails it can be gathered that the father had received and responded to some email correspondence sent by the ICL and, therefore, was aware of the court events and consequences of non-attendance. The ICL also tendered emails sent from her to the paternal grandmother advising her of the undefended hearing date.
In all the circumstances where the father has not ever meaningfully engaged in the proceedings and the paternal grandmother ceased engaging in the proceedings, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis in their absence on the date listed for undefended hearing.
Child and Parents Issue Assessment
On 18 November 2019 the maternal grandparents and child attended upon a family consultant as part of the Child and Parents Issue Assessment and a Child Responsive Memorandum was subsequently prepared. The father did not attend the meeting and was unable to be contacted.
The maternal grandmother told the family consultant that when the mother and father were in a relationship she attended their home approximately three times a week. She also reported that after the mother moved out of the maternal grandparents’ home (after she had returned upon separating from the father), that the mother and child returned to their home all the time because the mother required support.
Both the maternal grandmother and grandfather stressed that they wanted the father to be a part of the child’s life and needed him to be involved.
The maternal grandmother reported that when the child was diagnosed with autism in 2016, the mother ensured that the child attended early intervention therapy. The maternal grandmother reported that they had recently booked the child in for reassessment with Aspect Australia to determine her current needs and how they might best be met. The maternal grandmother reported that the child needs routine and stability and becomes distressed when unexpected arrangements occur. She alleged that the father does not seem to believe there is anything wrong with the child.
The maternal grandparents told the family consultant that the child has spoken about the mother’s death and how she and the father found the mother after she had committed suicide. The maternal grandparents both said that the child recently began attending upon a psychologist to help her process these distressing events.
The child was aged six when she was interviewed by the family consultant. The child reported that she thinks the maternal grandmother and the father are friends and said she was “pretty sure” the maternal grandfather and father are friends. When asked about her living arrangements she said: “I like it the way it is, but I would like to see Daddy more”.
The maternal grandmother reported that the mother had sought an Apprehended Domestic Violence Order (“ADVO”) when she was in a relationship with the father due to “manipulation and control”. They reported that the mother was admitted to a mental health facility after she had the child for post-natal care and the hospital at one stage would not allow the father to visit her. The maternal grandparents stressed that they did not think the father physically assaulted the mother, but that her self-worth plummeted while she was with the father.
The maternal grandmother believed the father used to smoke marijuana but had not noticed any recent indication of that. The maternal grandparents reported that the father had sent them some text messages that he does not want to get out of bed some days and that the father had indicated to them on one occasion that he “wants to join [the mother]”. The maternal grandmother was informed by the father that he is consulting a mental health professional but was not able to provide any further details.
The maternal grandmother reported that she is confident the father would never hurt the child physically but was concerned as to his ability to provide a stable, structured environment which meets her needs especially considering her diagnoses of autism. The maternal grandmother also reported that the child “doubts herself in so many things” and had recently been saying that she has a voice telling her that she is “not good enough”. The maternal grandmother reported to the family consultant that she was worried that the father is undermining the child’s self-worth and said he needed to “get therapy and go back to work”.
The maternal grandparents told the family consultant that they thought the father may not be spending significant time with the child as he was unhappy with them supervising his time. The maternal grandparents had asked the father’s former partner if she would supervise but after reading of the responsibility that it would entail said it would not be possible as she herself had a young child. They told the family consultant that on two of the three occasions the father had spent time with the child since the orders were made regarding supervised time, the father’s former partner had been there and the father had left purportedly to go for a walk in the park. They said that on the last occasion the child returned and said to the maternal grandparents “Daddy and I talked a lot about Court” and “if Mummy was looking down on us now would she really be that angry with you; are you and grandad really going to die soon?” They also said that the child quoted from the father’s affidavit and reported that they feel they can no longer trust the father or the father’s former partner to be alone with the child.
The maternal grandparents reported that the father had only contacted the child once since the child returned to their care, that the child had contacted him on one occasion and on another occasion the child tried to contact him left a message and the father did not return her call. They also reported that the paternal grandmother calls several times a week.
The maternal grandparents reported concerns as to the father’s lifestyle and said that the child had spoken about “daddy’s girlfriends”. The maternal grandparents reported that the father “started to unravel” when the relationship with his former partner ended and said that he “needs to get help”. The maternal grandmother reported that the father needs to become more responsible so that the child is not exposed to his mental health difficulties and stream of girlfriends. The maternal grandmother also reported concern about the father’s protection of the child when driving, stating that the father does not ensure there is a child safety seat and seatbelts.
The family consultant opined:
[The child] appeared content with current arrangements, however, was obviously keen to spend more time with [the father]. If the barrier for [the father] is deemed necessary, then it may assist if a Contact Centre is used for this. It is unlikely to be in [the child’s] best interests to experience an extended disruption to her relationship with [the father], and this would be likely to impact on her feelings of self-worth and security.
Risks posed by the father
Family Violence and Sexual Abuse
There is evidence in objective material produced on subpoena and tendered in the proceedings as well as in material obtained by the maternal grandparents after the mother’s death, of the mother (and others) having complained to third parties that the father had perpetrated family violence and him having sexually assaulted the mother.
Community Services records (Exh “D”) from November 2013 contain the following report:
[name omitted] reiterated previous report of severe DV perpetrated by the father towards the mother. The mother has left the relationship and she took their child …with her. The mother and [the child] are now residing with the maternal grandmother.
[name omitted] no concerns about the mother’s parenting. However, [name omitted] is concerned that the father has limited capacity to care for [the child]. This conjecture is based on concerns raised by the mother.
The mother reported that the father is pressuring her to give him the care of [the child]. If this is to occur [the child] would be neglected by him. According to the mother he has not demonstrated a role in parenting when he was living with them. The only role he played was to pick up [the child] and then gave her back to the mother. [Name omitted] described the father as manipulative.
It is also recorded in Departmental records from November 2013:
[text omitted] key issue was afraid of her partner. Mother has said [text omitted] previously and again today that father could be walking along and if he thinks someone starring at him, he would confront them and start to fight them for no particular reason. (sic)
[text omitted] yesterday when making a wooden bowl, father said to mother ‘if it is not perfect I smash it up with a hammer, if you’re not perfect ill do that to you’.
[text omitted] on Saturday, when they were with 3yo nieces who were running around restaurant, father said to children that he would stab them if they didn’t behaviour. (sic)
[text omitted] there is no known physical violence towards mother at this stage. The father has kicked his dog excessively when dog has got out. [text omitted] mother knows father has potential to be dangerous.
The maternal grandmother asserts that she only came to understand the extent of the volatility of the relationship between the mother and father after the mother died and she came across text messages between the mother and father. In particular, she exhibits a text message exchange set out below which she says was an exchange between the mother and father the day the mother suicided:
Father: It’s probably best if we just stop talking!! Ok
Mother: Yep agreed
Father: U can go neck yourself now
Do it properly this time
Mother: Thanks I might just
Father: Do us all a favour
I’m so glad your gone now
The maternal grandmother also came upon a letter written by a treating health professional from a mental health facility the mother was engaged with for many years dated 28 April 2014 from which it can be gleaned was written to support an application made by the mother for an Apprehended Violence Order (“AVO”) against the father:
It has been evident over the years and particularly during [the mother’s] recent admission that her ex-partner and father of [the child], has been emotionally abusive towards [the mother], with a clear power differential and abuse of this power. This opinion is based on [the mother’s] consistent reports and observation of her interactions with [the father] on the unit in the past. Of particular concern are his intrusive and excessive attempts to contact [the mother]. It was evident that [the father] rang on average greater than 20 times a day (observed whilst in inpatient unit) and sent abusive, threatening emails and attempted to gain access to the unit. [The mother] was clearly significantly negative impact by this. [The mother’s] mental health has clearly been detrimentally impacted by [the father’s] actions, in the teams’ opinion. [The mother] expresses a real fear of [the father].
The maternal grandmother also exhibited to her affidavit a letter sent from a solicitor that the mother had gone to for some legal advice. In this letter dated 9 September 2014 it is recorded:
You told us that your ex-partner, [the father], recently sexually assaulted you. You also told us that [the father] has been continuing to send sms text messages and emails constantly…
The father’s criminal history
The father’s criminal antecedents and history of drug use (including from when he was a young person) is well documented in police records produced on subpoena and relied upon at the undefended hearing (Exh “D”).
In 2007 police were patrolling a particular location when they stopped and spoke to the father and an unnamed person. During the conversation both the father and unnamed person stated that they regularly smoked cannabis. The police officers observed that both the father and unnamed person “appeared affected by a drug, that being, they had bloodshot eyes, unsteady, giggling uncontrollably and had slurred speech”. It was noted by police that the father and the unnamed person have previous intel regarding administration of illicit drugs.
In 2008 the police received a report from the paternal grandfather and grandmother that the father’s behaviour was causing them to fear for their safety. At the time the father was living with the paternal grandparents. The following is documented in police records:
[The paternal grandfather] and [the paternal grandmother] have been having problems with the [father’s] behaviour for the last six months and have not reported it to police. The [father] is a self confessed drug user and is unemployed and gets his money by removing it from [the paternal grandmother’s] wallet. The [father] has sought help for his drug addiction but has never followed it through. The [father] as a result of drug abuse has suffered emotional and anger management issues which causes [the paternal grandfather] and [the paternal grandmother] to fear for their safety. About 16:30 Monday 24th March 2020 the [father] was out the back with Vic3 and [the paternal grandfather] and [the paternal grandmother were inside]… The [father] was having an argument with Vic3 over her wanting to leave and the [father] would not let her. [The paternal grandfather] at this time intervened and the [father] became upset… The [father] then let Vic3 leave. Once Vic3 left the [father] wanted [the paternal grandfather] outside to fight but [the paternal grandfather] ignored the [father]. This made the [father] angry and the [father] went inside the house and stated to [the paternal grandfather], that he was going to drag him over the fence and eat his heart. [The paternal grandfather] was disturbed by the [father’s] comment and fearful for his safety… (sic)
An incident is documented in police records that in 2008 the father was observed and admitted to a witness that he was attempting to take copper piping connected to a hot water heater from vacant NSW housing commission housing. When the witness asked the father to leave, the father indicated that he knew of some other houses where he could get some copper piping. Police attended the father’s home and the father admitted that he had attempted to take copper piping from the hot water system, as he had collected it when he was a tradesman. The father admitted that he did not have permission to attend this property. The father was subsequently charged with “enter building/land with intention to commit indictable offence” and later received s 10 bond operative for 18 months.
In 2008 the father was stopped by police for the purpose of a random drug and alcohol test. The first and secondary oral fluid test returned a positive result for cannabis and the father admitted to having smoked cannabis earlier that day. The father was later charged with “drive vehicle with illicit drug present in blood” and then received a $400 fine and was disqualified from driving for four months.
In 2010 the father was stopped by police for the purpose of Random Testing. The test produced a positive reading to cannabis and the father admitted to having had a “couple of cones” the previous night. The father was later charged with “drive with illicit drug present in blood” for which he later received a $700 fine and had his license disqualified for eight months.
In 2019 police received a report that the father may be in possession of a firearm and that he had been making threats to harm the child. Police attended where the father was residing with the paternal grandmother and spoke to the father who said he did not possess a firearm but would not give consent for police to search the location. The paternal grandmother also spoke to police who said that there were no firearms at the premises and that she would not allow one to be stored there.
It is recorded in police records that on 12 June 2020 the following incident transpired involving the father and a former partner of the father’s (“the father’s former partner”):
The [father] and the [father’s former partner] have sat in chairs on the veranda at the front of the house for approximately ten (10) minutes. The [father’s former partner] has eventually decided to end the conversation and has gone to the front of the house and closed the screen door to the house and locked it. The [father] has followed the [father’s former partner] and ripped the steel mesh out of the screen door and placed it on the veranda. The [father] has then used his right foot to kick the main door to the house once, before going down the steps to the front of the house and running back up them to kick the one more time with his right foot. The [father] did not gain entry to the house and the entire incident was captured on a security camera at the front of the house.
The father’s former partner contacted police following this incident who attended on the same day, observed the damage and obtained a statement from her. The father was then arrested and charged with “destroy or damage property (DV)” and an order was made imposing bail conditions. In relation to this charge the father was convicted with no other penalty.
On 17 June 2020 the father was served a provisional ADVO where he was named as the defendant and his former partner was the person in need of protection with various conditions including that the father not attend the former partner’s home.
On 27 June 2020 the father is recorded as having attended his former partner’s home and banged on the door, yelling that he wanted a pair of pants and a photograph. The former partner locked the door and fled to her neighbour’s property with the child where she contacted the police. It is recorded:
After the [former partner] ran to a neighbour’s property the [father] smashed the front door of…, ripping the screen door open and destroying the pneumatic air, soft closing strut and damaging the screen door. He kicked the entry door causing the timber door frame to split and rip apart damaging the deadlock. The [father] entered the house and stole a computer hard drive that controls and records a number of CCTV camera’s attached to the property, 2 of which had captured the accused at the front of the property…. The accused left the house and rode away with the hard drive on a bicycle. The [father] does not live at the property and does not have permission to be there or to enter the property. He has no claim of right to the CCTV hard drive and was not given permission to take it.
The father was subsequently charged with “destroy or damage property (DV) and “contravene prohibition/restriction in AVO (domestic) (2 counts)”. A detention application was also filed on 27 June 2020 and after it was established that the father had breached bail conditions he was remanded in custody (from July until August 2020). In August 2020 the father was sentenced, for the charges for “destroy or damage property (DV)” and “contravene prohibition/restriction in AVO”, to a Community Correction Order of 18 months commencing August 2020 and concluding February 2022 supervised by Community Corrections Service.
On 20 August 2020 an AVO was issued against the father expiring in August 2022 for the father’s former partner’s protection.
The father’s mental health
The father’s struggles with his mental health are documented in objective material and in text messages sent by him to the maternal grandmother.
In 2019 (on the mother’s birthday who was already deceased by this time) the father’s sister contacted police as she held concerns that the father was going to harm himself. It is documented in police records that the father had been contacting members of his family asking them to care for the child including contacting his sister during which the father is reported to have said to her that he was “over it all” and ashamed. It seems the father collected the child from the maternal grandparents and then left the child in the care of his former partner who then delivered the child to the paternal grandmother’s house. The identity of the person/people who were at the family home when the police attended the father’s family home (where it seems the father was residing at the time) is not clear from police records (they are described as the “NOK/s”) but the following record highlights concerning behaviour by the father:
Around 8:21pm the same day Police attended the home and spoke with the NOKs… The NOKs did not know where [father] may have driven to. Police contacted the [father’s] sister, brother in-law and current partner in an attempt to locate a whereabouts for the [father]. All parties stated the [father] had not been answering his phone but had been in contact via text message. The NOK … text messaged the [father] whilst Police were at the location requesting the [father] return home. The [father] replied ‘Fuck off’. The [paternal grandfather] has requested again to come home and the [father] replied a short time later ‘If Police are there I’m not going to go to jail and I’m not going to be locked up and if they do I’ll cave your fucking head in”. The [father] has then not replied to any further text messages from the NOKs. The NOK… stated the [father] has not been the same since his ex-partners suicide and had not been receiving treatment. She stated that he had been distant and cold lately but during that day it had worsened. During that day the [father] had been constantly saying for the NOKs to leave him alone. When he left he had not mentioned to the NOK where he was going. Police created a keep lookout alert for the vehicle the [father] was driving...The [father] had been speaking with his daughter but any time the partner had tried to speak with him he hung up the phone. She stated he had said “I can’t talk, Police are after me” and would hang up the phone again.
It is clear that police thereafter undertook a significant search for the father. At around 1.30 am the following morning police successfully contacted the father and requested his location to which the father responded that he was happy to speak over the phone. Police replied that they needed to sight him and speak with him to which the father responded that he wanted to be left alone and “didn’t want to be locked up in a psych ward”. The father subsequently hung up and it was recorded “Police hold fears for the mental state of the [father] and require him to have a mental health assessment at …Hospital when located. Currently does not take any medication for any mental health issues”.
Police spoke to the father on 4 January 2019 in person and he reported that he was not suicidal nor did he feel like harming himself in any way. The father’s partner at the time also reported that she felt the father was ok and did not need a mental health assessment.
On 26 May 2019 the maternal grandmother received a message from the father which she considered distressing:
…I’m trying my best as a dad but my life has literally turned to shit I feel judged by people for how I look after [the child] and it’s made me believe I’m not what’s best for her. I go without everything to make sure she gets what’s she needs but I don’t even feel like waking up most mornings. I don’t want her to have to deal with what I did growing up and watch the fighting and constant petty bull shit that goes on with my parents and I’d rather she not know them but am I’m stuck and I’ve just given up. She’s amazing and I’ve failed her as a parent. I fear telling anyone this because it will be used against me and a life without her isn’t one I want to be a part of. I hold the weight of the world every day and I feel like I’m losing grip I have no one to turn to and I’m too proud to ask for anything but I won’t let her suffer for myself feeling like a failure I just don’t want her to look at me the way others do.
An Intake Screening Questionnaire dated 3 July 2020 from when the father was on remand in custody records that the father stated “I was thought to have had PTSD” and that he had been prescribed medications which he never used. As part of this screening the father answered in response to a question about the type of accommodation he was living in prior to custody that he was “staying with friends, homeless”. In response to a question about how he felt at that point in time, the father responded “like shit”.
The father’s medical records produced on subpoena and relied upon by the applicant maternal grandparents in the proceedings (Exh “D”) record that on 8 February 2018 the treating medical practitioner noted that the father “refuses to see the psychologist”. Two days prior it was noted by the same medical practitioner in relation to the father “poor sleep, depressed, anxious”.
The maternal grandmother exhibited to her affidavit an email the father improperly sent to chambers on 26 February 2020. This email contained the following:
I haven’t given up on [the child] I just can’t stand to put her through what I think atm is my worst, I’m homeless I’m unemployed and I suffer severe depression and low self esteem which is complete opposite of who I am…
Risks posed by the paternal grandmother
There is some evidence in police records of the paternal grandmother being involved in alcohol fuelled domestic violence related incidents with her current partner Mr B (“the paternal grandmother’s partner”).
In October 2019 police were called to the paternal grandmother’s home by neighbours who heard the paternal grandmother and the paternal grandmother’s partner engaging in an argument. Police attended around 8.00 pm at night and both parties reported that it had been a verbal argument only. Police observed that both parties were well affected by alcohol. While police were there the paternal grandmother’s partner left the home to stay at his mother’s address in the same street. Shortly after police left, the paternal grandmother’s partner contacted police to report that the paternal grandmother had walked to his mother’s address and was wanting to speak to him. Police attended and warned the paternal grandmother regarding her actions and she responded that she would remain at her home and would not communicate with her partner until a later point in time.
A police record documents an incident having occurred on 10 January 2020 between the paternal grandmother and the paternal grandmother’s partner after they returned from dinner where they had each consumed eight to 10 beers. It is recorded that the paternal grandmother’s partner asked the paternal grandmother to leave the location several times which she declined to do. The paternal grandmother’s partner contacted police and reported that the paternal grandmother had assaulted him by slapping him to the face six times. When police attended the premises the paternal grandmother’s partner indicated that there was no assault but that he wanted the paternal grandmother to leave as they were arguing. The paternal grandmother’s partner indicated that he would leave and stay at his mother’s place and police told the paternal grandmother that she was not to attend her partner’s mother’s home.
The paternal grandmother’s medical records contain a record dated 12 January 2020 that the paternal grandmother reported “both sides rib pain after her fiancée hugged her strongly few days ago” and “she found difficulty during inhalation, breathing”. It is recorded after examination that there was “marked pain during movement and respiration” and “tenderness over lower ribs both sides”.
There is also some concern relating to the paternal grandmother’s mental health and how this would impact upon her ability to care for the child. During a medical consultation in July 2020, it is recorded that the paternal grandmother “presented today with stress and anxiety due to a family problem”. The “reason for visit” was for a “mental health consult” and “anxiety”.
The paternal grandmother’s partner’s criminal history was also produced and relied upon by the maternal grandparents in the proceedings (Exh “D”). The paternal grandmother’s partner has a history of driving related offences including mid-range PCA, driving unregistered vehicle, driving unlicensed vehicle and driving while disqualified from holding a license as well as convictions for possession of a prohibited drug and malicious damage to property. Most of the paternal grandmother’s partner’s offences were committed over ten years ago, however, most recently in 2018 he was charged with “drive with high range PCA” and later received a $1,500 fine, had his license disqualified and was ordered to participate in an alcohol interlock program.
The paternal grandmother’s partner’s medical records also record the paternal grandmother’s partner having attended upon a medical centre due to “alcohol dependence” in May 2019. No further information regarding this is available.
Discussion: Grandparents
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 children, can apply for parenting orders.
It is clear having regard to the circumstances of the child both historical and at present as referred to above that the applicants are concerned with the care, welfare and development of the child.
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.
The Full Court in Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 and Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 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; (2013) FLC 93-539 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. …
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.
Parental Responsibility
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.
As the presumption cannot apply as intended as between the child’s parents due to the regrettable circumstances of this matter, the present application is determined by a consideration of the child’s best interests.
The maternal grandparents have held sole parental responsibility for the child for over a year pursuant to interim orders made in September 2019. During this period they have demonstrated a capacity to make decisions that are child focussed and responsive to this child’s particular needs, which has included maintaining appropriate support for her in relation to her diagnosis of autism and obtaining psychological support to help the child appropriately manage any psychological issues arising from exposure to the mother’s death. In light of the foregoing and the risk factors that exist in the father’s care and paternal grandmother’s household and the discussion below, the Court is satisfied that the order that would be in the child’s best interests would be for the maternal grandparents to have sole parental responsibility for the child.
The Primary Considerations: s 60CC (2)
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; (2007) 37 Fam LR 518 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.
The child has lived with the maternal grandparents for over a year and their proposal will see this arrangement continue. The maternal grandparents’ propose that the child should spend time with the father and paternal grandmother as agreed between the parties but that this time always be supervised in circumstances where they contend there are significant risks associated with the father and paternal grandmother spending unsupervised time with the child.
It is the maternal grandparents’ position that the child will receive a benefit from having a meaningful relationship with the father but that this should occur in a manner that ensures the child is not exposed to harm. It is apparent from text message exchanges between the maternal grandmother and father relied on by the maternal grandmother that the maternal grandmother has actively attempted to facilitate the child spending time and communicating with the father in the recent past but that the father has often been unresponsive to these attempts or has cancelled plans at the last minute For this reason, it seems imminent that the extent to which the child will enjoy a meaningful relationship with the father will depend on the extent to which the father avails himself of the opportunity to spend time with the child.
The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is to give greater weight to this consideration.
This consideration is in itself determinative of the present application.
It is the maternal grandparents’ case which is supported by the ICL that the child would be exposed to an unacceptable risk of harm in the father or paternal grandmother’s care.
As set out previously in this judgment, the objective evidence available indicates that the father perpetrated significant family violence during his relationship with the mother. The father also has a more recent criminal history for violent offences perpetrated towards another partner. Combined with the history of family violence relating to the mother, the father’s ongoing perpetration of family violence supports the position of the maternal grandparents and ICL that there is a significant risk of the child being exposed to family violence in his unsupervised care.
The maternal grandparents also hold serious concern about the level of neglect to which the child was exposed while she was in the father’s care and in the home of the paternal grandmother and are concerned that there is a risk that this will occur in the future should the child spend unsupervised time with the father or paternal grandmother. The maternal grandmother asserts that on a number of occasions the child reported to her that she had not been fed breakfast or lunch that day or on occasions had to fend for herself as she was not provided with dinner. The maternal grandmother also deposes to occasions where the child came into the maternal grandparents’ care with medical issues that were not addressed or ignored by the father. Concern also arises that the child was often left in the care of various people unknown to the maternal grandparents when she was in the care of the father/home of the paternal grandmother.
The father’s use of drugs is also an area of concern given the known risks of harm associated with a child’s exposure to parental drug use. The father failed to comply with requests made by the maternal grandparents’ solicitors to participate in drug urinalysis on three occasions (17 October 2019, 6 December 2019 and 17 February 2020). In the absence of any evidence to the contrary and in light of the objective evidence of the father’s historical drug use, the Court cannot be satisfied that the father’s drug use is not a current issue of concern.
Further, serious concerns regarding the father’s mental health arise from various objective sources as well as comments made by the father himself to the maternal grandparents, others and even in correspondence to the Court.
The objective evidence also raises concern about risk of harm from exposure to family violence or otherwise in the paternal grandmother’s care. The police records documenting several incidents between the paternal grandmother and her partner are a cause for concern that the child would be exposed to family violence in her care. The paternal grandmother’s partner’s criminal record also raises some further concern as to risk of harm in the household of the paternal family, particularly relating to alcohol misuse and substance misuse.
Having regard to the various risk factors discussed above and the evidence which suggests that these are ongoing risks that would exist in the father’s care and paternal grandmother’s household, it is clearly appropriate to make orders as sought by the maternal grandparents that the child continue to live with the maternal grandparents. The risks are not such that they would not be mitigated by the existence of supervision and in light of the nature of the child’s relationship with the father as was canvassed with the family consultant, it is in the best interests of the child that the father be able to spend time with the child as agreed between the maternal grandparents and father. It is also in the child’s best interests that time between the child and paternal grandmother be supervised and as agreed between the maternal grandparents and paternal grandmother. It is also in the child’s best interests that she be able to communicate with the father three times a week so as to enable the child to enjoy a meaningful relationship with the father, and be able to speak to the paternal grandmother once a week so that she can also enjoy a relationship with her paternal grandmother.
The Additional Considerations: s 60CC(3)
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.
The child who was aged six at the time of the interviews for the Child Responsive Program indicated that she liked her current living arrangement (with the maternal grandparents) but would like to see the father more. Due to the father’s non-attendance no further observations could be made by the family consultant as to the nature of the child’s relationship with the father. Further, as the paternal grandmother was not, at the time the report was prepared, a party to the proceedings, the child’s relationship with her also was not observed.
At least since the child came into the care of the maternal grandparents in September 2019 (and on the evidence of the maternal grandparents leading up to the commencement of proceedings by them), the father has failed to actively participate in making decisions about major long-term issues in relation to the child. The father has also failed to spend time and communicate with the child on a frequent and regular basis despite the maternal grandmother’s attempts to facilitate the father being engaged with the child/ the child’s life in these ways. Text message communications between the maternal grandparents and father reveal that the father at one stage texted the maternal grandmother to say that he was “available on this number if [the child] would like to call”. When the maternal grandmother responded that it was the father’s responsibility to contact the child not the other way around, the father responded aggressively in a way that did not acknowledge such an onus was on him. The Court is of the view that the father’s behaviour surrounding spending time with the child demonstrates that he is not entirely child focussed and is indicative of the father’s lack of understanding regarding the responsibilities of parenthood.
The maternal grandparents have demonstrated a positive attitude to the responsibilities of parenthood by attempting to ensure that the child attends upon various health practitioners in accordance with her needs. The maternal grandparents are facilitating the child attending upon a psychologist to help her process the distressing events surrounding her mother’s death and exposure to this. Further, the child is engaged with necessary health professionals in relation to her autism diagnosis and the maternal grandparents acknowledge and provide for the particular needs of the child associated with this diagnosis including routine and stability.
In contrast, the father does not believe that the child does have autism and for this reason has historically not adequately provided for the child’s needs. The paternal grandmother also previously gave evidence in the proceedings that she had no knowledge of the child’s diagnosis of autism.
Further, in the first semester of 2019 when the child was still in the father’s care, the child had a high level of absenteeism with 17 full days absent in the first half of the year. In the second half of the year (Semester 2) during which the child was for the most part in the maternal grandparents’ care, she was only absent four days. The child’s school records also demonstrate that the child is performing well at school in the maternal grandparents’ care.
The paternal grandmother’s proposal while she was engaged in the proceedings was that the child live with her. The Court accepts the submission made on behalf of the maternal grandmother that this proposal would see the child having to travel around three hours each day to remain at her current school or would require the child to be relocated from her school, her extended maternal family, her friends, her extracurricular activities and her treatment providers.
The Court accepts the submissions made by the maternal grandmother that the paternal grandmother’s proposal did not acknowledge that the child has been diagnosed with Autism and requires professional support.
The maternal grandparents provide full financial support for the child and it does not appear that the father provides any financial support for the child to the maternal grandparents.
The child has Aboriginal lineage, however, there is no evidence before the Court as to how the father or paternal family previously engaged the child with her Aboriginal heritage and what detriment, if any, the orders proposed by the maternal grandparents would have on the child’s enjoyment of that heritage.
The orders least likely to lead to the institution of further proceedings are the orders proposed by the maternal grandparents given the father and paternal grandmother’s disengagement in the proceedings.
It is also proper to make orders as sought by the maternal grandparents restraining the parties from denigrating any other party in the presence or hearing of the child and from permitting any other person to do so and from discussing the proceedings with or in the presence of the child so as to ensure the child is appropriately shielded from any adult disputes.
It is also proper to make orders restraining the father and paternal grandmother from consuming alcohol or illicit substances for 24 hours prior to spending time with the child and from allowing any third party to spend time with the child if they believe that the third party has consumed alcohol or illicit substances in the 24 hours prior to spending time with the child in circumstances where the father and paternal grandmother’s use of alcohol and/or illicit substances is an area of concern in relation to risks of harm to the child.
An order is also made as sought by the maternal grandparents restraining the father and paternal grandmother from causing the child to be transported anywhere except as the maternal grandparents may direct which is proper given the father’s behaviour in the past of taking the child away from the maternal grandparents’ supervision.
All the aforementioned considerations are strongly supportive of orders being made in the best interests of the child as sought by the maternal grandparents.
Orders will be made accordingly.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 October 2020.
Associate:
Date: 29 October 2020
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