Richards and Brooks and Anor

[2014] FamCA 673

FAMILY COURT OF AUSTRALIA

RICHARDS & BROOKS AND ANOR [2014] FamCA 673

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother failed to participate in the hearing – Where the paternal grandmother and maternal grandmother have the care of the subject children – Non-parents – Where the grandmothers have reached agreement as to the future care of the subject children – Where the father of one of the children lives with the paternal grandmother and spends time with the child in the household – Where the father of the other child is deceased – Where the mother presents an unquantifiable risk of harm in respect of drug-use, lifestyle and unstable accommodation – Where the children’s views are to be given some weight – Where the grandparent with whom each of the children lives is to have sole parental responsibility for that child – Where the children are to spend some time together

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65D, 117
Family Law Rules 2004 (Cth) r 16.07

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Ms Richards

FIRST RESPONDENT: Ms B Brooks

SECOND RESPONDENT: Ms C Brooks

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Campbelltown

FILE NUMBER: PAC 2332 of 2011

DATE DELIVERED: 19 August 2014

PLACE DELIVERED: Suburb L

PLACE HEARD: Suburb L

JUDGMENT OF: Foster J

HEARING DATE: 29 & 31 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenaway

SOLICITOR FOR THE APPLICANT: Thurlow Fisher Lawyers & Consultants

THE FIRST RESPONDENT: Self-represented Litigant

THE SECOND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Campbelltown

Orders

1. That the paternal grandmother, Ms Richards, have sole parental responsibility for the child D, born … 2003 (“D”).

2. That the child D live with the paternal grandmother.

3. That the maternal grandmother, Ms B Brooks, have sole parental responsibility for the child E (also known as E), born … 2000 (“E”).

4. That the child E live with the maternal grandmother.

5. That the paternal grandmother and maternal grandmother do all things necessary so as to reasonably ensure that the children E and D spend supervised time with each other once per month and at such other times as agreed between the paternal and maternal grandmother, and that such time be supervised by either the paternal grandmother or the maternal grandmother and no other third party.

6. That the paternal grandmother do all things necessary and sign all necessary documents so as to facilitate the child D continuing counselling and therapy with Prof F, or such other therapist or health professional as he may recommend, and that she obey all reasonable directions of such family therapist or psychologist for the ongoing counselling and treatment of the child D.

7. That the maternal grandmother do all things necessary and sign all necessary documents so as to facilitate the child E being referred to a family therapist or psychologist for issues arising out of the circumstances of this matter, and that she obey all reasonable directions of such family therapist or psychologist for the ongoing counselling and treatment of the child E, including, if necessary, a referral to any other therapist or health professional and engagement with that health professional.

8. That the mother, Ms C Brooks, have no contact with the children E and D, save as may be reasonably recommended by the children’s respective therapists or health professionals and on such terms and conditions as may be reasonably recommended by such therapists or health professionals.

9. That the maternal grandmother be restrained from permitting or allowing the children from coming into contact or spending time with the mother, except in compliance with any recommendations of the children’s therapists or health professionals as provided for above.

10. That the child D be permitted to travel internationally.

11. That the paternal grandmother may apply for an Australian passport for the child D, born … 2003, without first obtaining the consent of the father or the mother.

12. That the child E be permitted to travel internationally.

13. That the maternal grandmother may apply for an Australian passport for the child E, born … 2000, without first obtaining the consent of the mother.

14. That the application for costs by the Independent Children’s Lawyer be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SUBURB L

FILE NUMBER: PAC 2332 of 2011

Ms Richards

Applicant

And

Ms B Brooks

First Respondent

And

Ms C Brooks
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The present application is in relation to parenting proceedings in respect of the children D, born on 30 April 2003, and E, born in 2000.

2. The parties to the proceedings are Ms Richards, the Applicant paternal grandmother, who is aged 60, Ms B Brooks, the Respondent maternal grandmother, and Ms C Brooks, the Respondent mother.

3. Previously, a paternal cousin, Ms G, was a party but prior to final hearing she discontinued her application and ceased to be a party.

4. The parents of the child D are the Respondent mother and the father Mr Richards, who has played no part in these proceedings but resides with the Applicant paternal grandmother.

5. The parents of the child E are the Respondent mother C Brooks and the father Mr H, who died in 2008.

6. The proceedings have had a long history, having been commenced by the Applicant paternal grandmother in May 2011.

7. On 2 September 2011 interim Orders were made by consent that provided, in summary, for the paternal grandmother to have sole parental responsibility for the children and for the children to live with the paternal grandmother.

8. Subsequently and on 12 October 2011, an Independent Children’s Lawyer was appointed for the children and further interim Orders were made that provided for the mother to spend time with the children at the Region I Contact Centre on alternate Saturdays from 2.00 pm to 4.00 pm and each alternate Friday from 5.00 pm until 7.00 pm. The mother was otherwise required to undertake chain of custody urinalysis testing as requested by the Independent Children’s Lawyer.

9. On 25 November 2011 an Order was made for the preparation of a Family Report to assist the Court in the matter.

10. On 2 April 2012 further Orders were made that facilitated the mother and the maternal grandmother spending time with the children at the Region I Contact Service and/or the J Town Contact Service as provided for in Orders made on 12 October 2011 and for more extended time if agreed between the parties.

11. On 21 June 2012 the proceedings were transferred to this Court from the then Federal Magistrates Court of Australia and a supplementary Family Report was ordered as a consequence of the first report failing to include any observation sessions of the children with the relevant adults. The Court further ordered that:

    a)the paternal grandmother have sole parental responsibility for the children;

    b)that the children live with the paternal grandmother;

    c)that the mother submit to random urinalysis testing at the request of the Independent Children’s Lawyer;

    d)that the mother’s time with the children be conditional upon her compliance with urinalysis testing and those tests being clear; and

    e)that the mother and the maternal grandmother spend time with the children from 10.00 am until 4.00 pm each alternate Sunday with such time to occur at the maternal grandmother’s home, subject to contrary agreement between the parties.

12. The matter first came before this Court on 12 August 2013. On that date it was noted that there had been significant changes in relation to the circumstances of the child E and that the parties proposed to engage in mediation in an endeavour to resolve the matter.

13. On 21 October 2013 when the matter was next before the Court it had not resolved. An updated Family Report was ordered as a consequence of a change in circumstances of the child E.

14. Otherwise, with the consent of all parties, including the mother, the Court made the following orders:

    a)that the paternal cousin, Ms G, be joined as the Second Applicant in the proceedings;

    b)that the paternal grandmother have sole parental responsibility for the child D;

    c)that the child D live with the paternal grandmother;

    d)that the paternal cousin have sole parental responsibility for the child E;

    e)that E live with the paternal cousin;

    f)that the paternal grandmother and paternal cousin ensure that the children E and D spend time with each other a minimum of four hours each fortnight;

    g)that the paternal grandmother and the paternal cousin ensure that the children E and D are referred to and attend upon counselling as long as is necessary and confirm those arrangements with the Independent Children’s Lawyer;

    h)that leave be granted to the paternal grandmother and the paternal cousin to provide to the children’s counsellor a copy of the Family Report dated 20 March 2012 and the addendum report dated 21 May 2012; and

    i)that in the event that the mother fails a urinalysis test then the maternal grandmother mother be restrained from facilitating the mother spending time with the children.

15. On 29 November 2013 leave was granted to the parties to approach the list clerk for allocation of trial dates and trial directions were made.

16. The updated Family Report was released on 27 February 2014.

17. The matter was again before the Court on 10 March 2014 in circumstances where the child E had left the care of the paternal cousin and was living in unknown circumstances with the Respondent mother. An Order was made for the mother to present the child for interview by the Independent Children’s Lawyer within 14 days, and in the absence of compliance with that Order, it was noted that consideration would be given to the issue of a recovery order to procure the return of the child to the care of the paternal cousin.

18. On 8 April 2014 an Order was made requesting the Director-General of the Department of Family and Community Services to intervene in the proceedings in relation to the children as a consequence of the expressed concerns of the Independent Children’s Lawyer. The Court noted that the child D continued to reside with the paternal grandmother and that the child E was residing with the mother in unknown circumstances.

19. The Department of Family and Community Services declined to intervene, citing other priorities.

20. On 1 May 2014 the paternal cousin filed a Notice of Discontinuance of her application in the proceedings and ceased to be a party.

21. By letter dated 17 June 2014 the paternal grandmother’s solicitor notified the mother by ordinary prepaid post that proceedings had been listed for a procedural hearing on 30 June 2014.

22. On 30 June 2014 the proceedings were listed before a registrar and it was noted that the mother had failed to engage in the proceedings since 21 October 2013. It was further noted that there was agreement between the paternal grandmother and the maternal grandmother as to proposed orders in circumstances where the child E had commenced to reside with the maternal grandmother. The matter was transferred on this day to Hannam J. Her Honour ordered that the matter remain listed for hearing on 29 July 2014, but in the event of there being no appearance on behalf of the mother, the matter proceed on an undefended basis.

23. On 29 July 2014 there was no appearance by the mother.

24. Rule 16.07 of the Family Law Rules 2004 (Cth) provides that a party must attend at the hearing, and if a party does not attend, in this case being the mother, the other parties may seek that orders be made on an undefended basis.

25. The Court proceeded to hear the matter on an undefended hearing. The hearing was adjourned part-heard to 31 July 2014 so as to facilitate the paternal grandmother filing a short updating affidavit in relation to the circumstances of both children.

Short Background

1. The father of the child D is now aged nearly 32. The mother of the children is aged 32.

2. The mother and father commenced a relationship in about October 2000 when the mother’s daughter E was about 8 months of age. The relationship between the mother and father was conflictual and there were many separations between the mother and father during which the paternal grandmother had a significant involvement with both children.

3. Since early 2007 the children have been cared for by the paternal grandmother on a regular basis with support of their paternal cousin, Ms G, and the father. The paternal grandmother has provided financial assistance for the children, including payment of preschool fees.

4. The child D commenced residing virtually full-time with the paternal grandmother from February 2007. The child E remained living with the mother but would spend time at the paternal grandmother’s home on occasions.

5. Subsequent to D commencing to reside with the paternal grandmother, he would spend periods sometimes for a few days at a time with the mother and then returned to the paternal grandmother’s home.

6. In 2009 the child D commenced formal schooling and was enrolled by the father and the paternal grandmother at K School. The child attended school regularly whilst in the care of the paternal grandmother but has missed school on many occasions when school days coincided with the time the child spent with the mother.

7. The relationship between the father and the mother thereafter continued to be on and off and on occasions the father and mother would reside together with both children and at other times D would be residing in the paternal grandmother’s home and E with the mother. On occasions E would also reside in the paternal grandmother’s home.

8. The relationship between the mother and father ended in January 2011 and the father returned to reside full-time with the paternal grandmother together, with the two children. The mother would spend time with the children occasionally and on many occasions make arrangements to spend time with the children but not attend to collect them.

9. On 1 May 2011 the mother by arrangement with the father and the paternal grandmother was to spend a few hours with the child D. The mother did not return the child to the paternal grandmother’s care and left threatening and abusive messages for the paternal grandmother that were reported by the paternal grandmother to the Suburb L Police.

10. On 4 May 2011 the police issued a Provisional Apprehended Domestic Violence Order against the mother for the protection of the father and the two children.

11. In May 2011 the older child E disclosed to the paternal grandmother information that revealed that the mother was an intravenous drug user.

12. The mother’s conduct continued to be threatening and abusive towards the paternal grandmother and the father in breach of the Provisional Apprehended Domestic Violence Order.

13. It was in these circumstances that the paternal grandmother made her application for parenting orders in relation to the children in May 2011.

14. The child D has continued to reside with the paternal grandmother on a full-time basis.

15. The child E had previously resided with the paternal cousin Ms G, as referred to above. However, in January 2014 following an argument between E and the paternal cousin, the child moved to reside with her mother.

16. The child subsequently informed the paternal grandmother that whilst living with the mother things were terrible. The child said that she and her mother just moved from house-to-house and that her mother was still working in a brothel. She said that her mother was very violent towards her and that her mother was doing “ice”. The child said on one occasion there was no food and that she and the mother went out and stole food.

17. The child had a poor school attendance record whilst she lived with the mother.

18. Subsequently, the child telephoned the paternal cousin so as to make contact with the maternal grandmother and ask if she could live with the maternal grandmother.

19. In May 2014 the child commenced to reside with the maternal grandmother and resumed her attendance at K Senior School where she is in Year 9. Her progress at school has improved. Also residing in the maternal grandmother’s home is the child’s uncle Mr M, aged 27. Mr M assists the maternal grandmother and the child financially.

20. The child D continues to reside with the paternal grandmother as does the child’s father.

21. The paternal grandmother and her husband live in a four-bedroom home at Suburb K where the child D has his own room. The child attends K School and is in Year 5. It is expected that he will transition to K Senior School where his older sister attends.

22. The child has settled well into the paternal grandmother’s home and has many school friends living in the local area. The child is presently being tutored by his former primary school principal and the child is progressing well at school.

23. The paternal and maternal grandmothers ensure that the two children spend regular time together.

The Family Report

1. The updated Family Report was released on 14 February 2014. At the time of the interviews for the Family Report in January 2014 the child E was still residing with her paternal cousin, the paternal cousin’s her husband and their three children. At that time, the child had occasional time with the mother and the maternal grandmother.

2. The child D continued to reside with the paternal grandparents and the father at the paternal grandparent’s home. The child at that time spent occasional time with the mother and the maternal grandmother.

3. At the time of interview the mother proposed that the children spend every weekend or every second weekend with her from after-school Friday to before school Monday. However, she proposed that she would have the long term full-time care of both of the children.

4. The maternal grandmother proposed that the children spend weekend time with the mother, with that time increasing, together with half the school holidays with the mother.

5. The paternal grandmother, reported the Family Reporter, considered arrangements for the children to spend time with their mother needed to have conditions in place to ensure the children are with her in a safe environment and that there be an assessment of any drug issues of the mother that could place the children at risk.

6. The paternal grandparents considered that the maternal grandmother was able to provide a safe and supervised environment for the children to spend time with the mother and they acknowledged her assistance and support for the children.

7. The mother acknowledged to the Family Reporter that she would not be able to have the children live with her at present but stressed that she wanted them every weekend or every second weekend. The mother asserted that she was drug-free and willing to be tested to prove it.

8. The maternal grandmother expressed her concerns that the mother did not have the resources or the support to see the children in institutional supervision and there was no one else but her that would be able to assist the mother to spend time with the children. The maternal grandmother expressed no concerns whilst the child D remained in the care of his paternal grandmother.

9. In observation the paternal grandparents and the father appeared to have well-established relationships with both children and in their company the children displayed an easy manner and appeared to enjoy each other’s company and easily established rapport with the adults in the activity and the commentary.

1. The mother in observation appeared to have a warm and engaging relationship with the children. Although it is noted by the Family Reporter that, on the mother asking the children if they could be patient until later to get to live with her, the children did not respond.

2. E, who at the time of interview was 13 years and 10 months, reported that she had been stressed, upset and confused by the dispute and behaviour of the various parties with her and the Court matters. She confirmed that she had been in the care of the paternal grandmother for three years and more recently in the care of the paternal cousin for about eight months. The child felt let down about the lack of focus on her and her brother in the proceedings and the ongoing conflict between the various sides of the family.

3. At the time of interview, E expressed a clear wish to stay with her paternal cousin, saying “it is a better environment that will affect me in the future and help me to be more successful in a better environment”. The child reported that the mother tells her that she is fine, but the child is not sure that she is saying “if mum would least try to get off drugs and I’m not sure if she has tried. I do want her to go to rehab”.

4. The child D reported that he had been with his (paternal) grandparents now for seven years and wished to stay where he was. He liked his school, it was fun with his grandparents and his father and they go to places on holidays together, he likes his sport and has good friends. The child has poor recollections of the mother, often being left at home at night or at night he heard noises and people knocking on the door and always feeling scared that something would happen and not feeling safe.

5. The child D presented as settled in his current care arrangements due to the overall stability of his care and the influences of the Richards family. The Family Reporter concluded that the child appeared attached to his grandparents and father and any other care options would be considered disruptive to his security and developmental needs at this time.

6. In assessment the Family Reporter observed that the child E presented as having adult trust issues with her family due to her experiences of abandonment and the volatile and irresponsible behaviours of her parents and extended family. The child expressed anxiety about her mother and her capacity to establish a stable environment for herself and the children. The child noted her mother’s drug issues and sought that the mother attend rehabilitation.

7. The Family Reporter recommended that the children would benefit from continued counselling to assist them to deal with the history of domestic violence, abandonment, adult trust issues and the confusion of the family’s history and biased stories that might have impacted on their self-esteem and reality. Both children, said the Family Reporter are considered vulnerable and emotionally have been exposed to very disruptive and destructive experiences, together with a sense of rejection and family hostilities about their parents.

8. The mother’s capacity to provide a suitable and secure environment for the children is questionable and it was considered that for the mother’s long-term relationship with both children there be conditions that would assist her to be drug-free for the responsible care of the children and those conditions might include her attending a drug rehabilitation program.

9. The Family Reporter recommended at that time:

   a)that the child E continued to live with the paternal cousin;

   b)that the child D live with the paternal grandmother;

   c)that the children spend alternate weekends with their mother and maternal grandmother in suitable living arrangements to ensure their safety;

   d)that the children spend time together with their mother or with their mother separately at times as agreed by each child;

   e)that the children have telephone contact with their mother at least twice a week at times agreed between the parties;

   f)that the mother attend a registered drug testing centre and/or a drug rehabilitation centre if considered a significant condition for the children’s long-term relationship with their mother; and

   g)that any further extended or unsupervised time the children spend with the mother be dependent on the mother’s capacity to be drug-free and have a suitable and safe environment for both children and be a responsible carer.

Other evidence

1. The child D commenced psychological counselling with Prof F, psychologist, in December 2013. A short report from Prof F dated 8 February  2014 was provided to the Court (Exhibit G).

2. Prof F saw the child both in his rooms and at the home of the paternal grandparents. The report is glowing of the child’s circumstances in the paternal grandparents home and is a strong reinforcement of the recommendations made in the Family Report.

The proposed orders

1. At the commencement of the hearing the Court was informed that the paternal grandmother and maternal grandmother had agreed as to orders in relation to the children.

2. In summary, their agreement was:

   a)that the paternal grandmother have sole parental responsibility for the child D;

   b)that the child D live with the paternal grandmother;

   c)that the maternal grandmother have parental responsibility for the child E;

   d)that the child E live with the maternal grandmother;

   e)that the paternal and maternal grandmothers ensure that the children spend supervised time with each other once per month and on any other times as agreed;

   f)that the mother have no contact with the children;

   g)that the child D spend supervised time with the child E as agreed with the maternal grandmother;

   h)that the child E spend supervised time with the child D as agreed with the paternal grandmother;

   i)that any time spent by the children together be supervised by either the paternal or maternal grandmother and no other third party;

   j)that the maternal grandmother is to ensure that the child E is referred to and attends on counselling for as long as the counsellor deems necessary;

   k)that the paternal grandmother have liberty to remove the child D from Australia at any time, and to that effect, the necessity for the consent of any party to the issue of a passport for the child be dispensed with; and

   l)that the maternal grandmother have liberty to remove the child E from Australia at any time, and to that effect, the necessity for the consent of any party to the issue of a passport for the child be dispensed with.

3. The Independent Children’s Lawyer supported the proposals by the paternal and maternal grandparents.

Can the grandmothers apply for parenting orders as persons concerned with the care, welfare and development of the children?

1. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The Applicant and First Respondent are therefore able to apply for parenting orders pursuant to subparagraph (ba) of that section.

2. It is clear, having regard to the circumstances of the children both historical and at present as referred to above, that both grandmothers are concerned with the care, welfare and development of the children.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of a child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.

6. 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)].

7. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.

9. Consideration of the grandmothers as non-parents 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 grandmothers by way of application of s 60CC(3)(m).

10. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

    … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

11. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

    19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

    …

    21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

    …

    25.      In Donnell, the Court went on to say …

    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” …

12. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

13. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

    The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The Additional Considerations: section 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are as follows:

   (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   Both children have clear views as to their relationship with the mother. They both express concerns should they be in her care. D has well-formed views guided by his experiences in the paternal grandmother’s household. E also has firm views and through the Independent Children’s Lawyer it is clear that she wishes to remain with the maternal grandmother.

   In the circumstances of this matter, the children’s views should be afforded significant weight.

   (b) the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   The nature of the children’s relationships with the grandmothers and the parents has been considered above. This consideration is supportive of the arrangements proposed by the grandmothers.

   (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;

   The father’s failure to participate in these proceedings and in respect of child-related issues is clear. He has left the issue to his mother, yet he is involved in the children’s lives significantly, particularly as a member of his mother’s household. His position, by inference, probably reflects his own incapacity to present as a primary carer.

   The mother has, in effect, abandoned her role in this regard to her own lifestyle choices. Her capacity to participate into the future is at best problematic.

   Both grandmothers have ultimately stepped into the parental breach and demonstrate an appropriate capacity in the context of this consideration.

   (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   The children are now settled in their respective households. It is not proposed that there be a change their circumstances.

   (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;

   This is not a significant consideration in this case. The circumstances have been considered above. The father is able to see the children at his mother’s home whilst a member of her household. Should he move out, his time will be at his mother’s discretion in a child-focussed way.

   The mother will be able to see the children only under supervision, reflecting protective concerns as to her drug use and inadequate lifestyle.

   (f) the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

   The grandmothers are not subject to any reservations in this regard.

   However, the evidence and the Family Reporter’s opinion demonstrate significant defects in the mother’s capacity. The father, perhaps reflecting his own perceptions in this regard, has chosen not to participate in the proceedings.

   This is indicative that the children’s present living arrangements should be maintained.

   (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; 

   The children are not of tender years and are perceptive as to their sad history and the conflict between their parents. This consideration adds weight to the children’s views set out above.

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

   The grandmothers, in the unfortunate circumstances that the children have come into their respective care, have demonstrated an appropriate attitude to the children and responsibilities of parenting.

   The less said of the parents in this regard the better. Their relationship has exposed the children to violence and conflict, necessitating the children engaging in counselling.

   (j) & (k) family violence;

   The violence and conflict between the parents is the background to these children’s lives. It has necessitated the allocation of parental responsibility and care of the children away from the parents. This factor is supportive of the agreement reached between the grandmothers.

   (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;

   These are final proceedings. The orders to be made consider the children’s present circumstances and their best interests into the future. Absent a significant change in the children’s circumstances, the orders as proposed by the grandmothers are at present the least likely to lead to further proceedings.

   (m)     any other fact or circumstance that the court thinks is relevant.

   As noted above, this additional consideration facilitates consideration of the best interest factors conveniently in relation to the grandmothers, who are non-parents.

2. The extent to which the parents and for that matter the grandparents have fulfilled their responsibilities to the children (s 60CC(4)) and circumstances since the parents’ separation (s 60CC(4A)) have been considered above.

The Primary Considerations: section 60CC(2)

1. The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

2. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) 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.

1. In McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

2. In respect to the benefit to the children in having a meaningful relationship with the father, the children’s relationship with the father (stepfather to E) is facilitated by reason of his residence with the paternal grandmother. D is in a safe environment in the household and such should allow the relationship with his father to continue and develop in a sound way. 

3. The father’s relationship with E will continue into the future by reason of orders facilitating the ongoing relationship between the children.

4. The mother‘s relationship with the children is overshadowed by her shortcomings in regard to drugs and lifestyle choices. The amelioration of that is in her hands.

5. This primary consideration is not applicable to the grandmothers being non-parents, but the relationship between the children and the grandmothers is of significance and it has been considered above in the context of the additional considerations.

6. The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence..

7. This is a significant issue for these children. The paternal grandmother’s care is protective of the child D, particularly having regard to the mother’s present lifestyle and her unwillingness to seek rehabilitation. The protection of this child is facilitated by his present living arrangements continuing. The child E is also in a secure and safe home in the maternal grandmother’s care.

8. Both grandparents seek that the mother have no time with the children. Under the circumstances, it is appropriate to make no positive order for time for the children to spend with her. It will be a matter for the mother should she improve her circumstances to win the confidence of the children’s therapists and the grandmothers in this regard.

Who should have parental responsibility?

1. 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 a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [77] above.

2. An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.

3. As this matter involves non-parents, the presumption does not apply.

4. The issue falls to be determined by a consideration of the child’s best interests. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

5. Those considerations are clearly indicative of the grandmothers having sole parental responsibility for the child in their respective care.

6. The Court is required, should the s 61DA presumption apply, to give consideration to the provisions set out in s 65DAA of the Act as to whether a child spending equal time with each of the parents is in the best interests of a child and reasonably practicable, and if so, to consider making an order for such equal time. If not, then the Court is required to consider whether a child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

7. With no presumption applicable or order for shared parental responsibility possible, the orders to be made fall to be determined by reference to the best interests considerations set out above.

What orders are in the child’s best interests?

1. Clearly, the children’s arrangements at present are optimal. There is no suggestion that a change would be in their best interests.

2. It is appropriate that in the best interests of the children, orders be made that substantially reflect the agreement reached between the Independent Children’s Lawyer and the children’s primary carers.

Independent Children’s Lawyer’s costs

1. At the conclusion of the hearing, the Independent Children’s Lawyer made an application for costs. The Independent Children’s Lawyer sought an order that each of the paternal grandmother, the maternal grandmother and the mother pay the sum of $2,295 in respect of the Independent Children’s Lawyer’s costs, totalling $6,885.

2. The Independent Children’s Lawyer made no submissions in relation to the relevant matters under s 117 of the Act as are applicable.

3. On behalf of the Applicant paternal grandmother, it was submitted that no order should be made in circumstances where each of the grandmothers had stepped into the breach, as it were, in relation to both of the subject children and would bear significant financial burden in relation to the child in their respective care into the future.

4. In circumstances where the grandmothers have stepped into care for the subject children and will have well into the future bear significant financial responsibility for the children and where the financial circumstances of the mother are not known, the strong inference being that she by virtue of her lifestyle may be in somewhat parlous financial circumstances, it is not considered appropriate that there be an order for the Independent Children’s Lawyer’s costs in these proceedings.

5. The Independent Children’s Lawyer’s application for costs will be dismissed.

6. Orders are made as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 August 2014.

Legal Associate: 

Date:    19 August 2014