Roserberg and Roserberg and Anor

FAMILY COURT OF AUSTRALIA

ROSERBERG & ROSERBERG AND ANOR

[2009] FamCA 875

FAMILY LAW – CHILDREN – Parenting – Final orders undefended basis – Grandfather applicant and no appearance of mother and father

Family Law Act 1975 (Cth)

APPLICANT:

Mr Roserville

FIRST AND SECOND RESPONDENTS:

Ms Roserville and Mr Hampstead

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8665

2008

DATE DELIVERED:

20 AUGUST 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

20 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS FORMICA

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE & ASSOCIATES

FIRST AND SECOND RESPONDENTS:

NO APPEARANCE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR GRIGGS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

PERRY WESTON

Orders

That the applicant have leave to proceed with his application on an undefended basis and in the absence of the mother and the father of the child … born … December 2000.
That the mother’s response filed 2 October 2008 is dismissed for want of prosecution.
That the orders made 25 November 2008 be discharged.
That the Grandfather MR ROSERBERG have sole parental responsibility for the child.
That the child live with the Applicant.
That the child spend time with her mother MS ROSERBERG as may be agreed with the Applicant.
That the Independent Children’s Lawyer be discharged from the proceedings.
That all outstanding applications are otherwise dismissed and removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8665 of 2008

MR ROSERBERG

Applicant

And

MS ROSERBERG and MR HAMPSTEAD

First and Second Respondents

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This is an application heard on an undefended basis by the maternal grandfather of a child born in December 2000. The child is 8 years of age.
There has been no involvement in this hearing by either of the child’s parents.
I have been assisted in the hearing by submissions from the solicitor for the grandfather and also counsel for the Independent Children’s Lawyer.
I made orders in a duty list on 20 August 2009 and said I would later briefly explain why I was making them. These are my reasons.
It is appropriate to begin by noting that the mother and father of the child were called and there was no appearance.
I have an affidavit of the applicant’s solicitor which comprehensively sets out the attempts to make the mother aware of the proceedings. Those attempts include various email addresses and a postal address. Whilst it is important to bear in mind the principle of natural justice that everyone involved in litigation has a right to be heard, it is perplexing in a parenting case to contemplate why there might not be some inquisitiveness by the child’s mother about her daughter having regard to the fact that she not only knows of her existence but also knows that her daughter was left with the maternal grandfather.
I am satisfied that it is in the best interests of the child for the matter to proceed in the absence of her mother’s involvement.
The child’s father has had no involvement in the proceedings albeit that he was made aware of them because the grandfather’s solicitor wrote to him enclosing copies of the orders of the Court. He was invited to contact the solicitor and I have an affidavit to say that he has not done so. The affidavit refers also to the fact that correspondence has not been returned to the offices of the solicitors.
I say the same principles apply in respect of the father about natural justice but more importantly in a parenting case, he knows of the existence of the child and has chosen not to assist in the determination of what order is in her best interests.
Those sentiments may become relevant for future courts if either the mother or the father decide that they wish to have some say in the life of the child. They would need to explain their apparent absence of interest.
The application I am dealing with was filed on 22 September 2008. It was supported in this final hearing by an affidavit of the applicant. Mr Grigg of Counsel for the Independent Children’s Lawyer said that he did not wish to cross-examine the applicant. I accept the grandfather’s unchallenged evidence.
A response to the Grandfather’s application was filed on behalf of the mother on 2 October 2008. In that document, the mother sought sole parental responsibility for the child and that the child live with her. The legal practitioners who filed that response subsequently filed a notice indicating that they had ceased to act for the mother.
The details of the background of the relationship between mother and father are not relevant any longer nor helpful.
The grandfather is 57 and is an IT specialist. The mother is 28. The father’s role in the child’s life has apparently been negligible.
The evidence which I accept is that the mother is a drug user and subsequent to the child’s birth has struggled. She has been assisted by the Grandfather at various times. In December 2008, the mother overdosed and ended up in a rehabilitation facility. The child remained with her Grandfather.
In respect of the initial stages of the proceedings in 2008, orders were made for the mother’s time with the child to be supervised. Thus, notwithstanding the response filed on her behalf seeking sole responsibility for the child, the Court was obviously satisfied on an interim basis that the child needed protection of some sort.
Since late 2008, there has been no contact between mother and daughter. Counsel for the Independent Children’s Lawyer told me that his instructor had interviewed the child and the perception was that the child “holds a candle for her mother”. After being discharged from the rehabilitation facility, the mother went to the home of her then boyfriend’s parents but has since disappeared. No-one seems to know her whereabouts but the inference is that she is back in the drug culture. It is hard to imagine therefore even contemplating the conscious choice she has made about her lifestyle, how she can simply forget that she has a daughter waiting for her return. We are close to a year of absence. The child deserves better than that.
I have read the affidavit material and all other indicators are that the child is meeting all of the challenges for a child of her age as well as her milestones.
The Independent Children’s Lawyer had some reservations about the background but I have no indication other than that the child is in a loving and secure environment. She deserves at least that.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.
Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.
Because of s 61C(3), joint parental responsibility is subject to any order of the Court and s 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
I have no other evidence than that which is before me. I have a Grandfather who has put his hand up to take on the care of the child. By default, he is making all of the decisions a parent should make and to give his position some legality, I propose to give him the formal responsibility for parental decisions concerning the child.
S 64B(2) provides that a parenting order may deal with a number of things including the person with whom a child is to live and the allocation of parental responsibility for a child.
Counsel for the Independent Children’s Lawyer urged me to make an order that said that the time between mother and child was to be by agreement with the Grandfather. There is no evidence before me to suggest that the mother is interested nor that even if she was, there could be any agreement. If past history is a guide to performance in the future, the mother’s track record of parenting leaves me with little comfort about her desires to fulfil all of the parental duties expected by the law let alone all of the emotional satisfaction that parents receive by watching their children achieve things.
Having said that, Mr Grigg urged me not to exclude the mother because it was the only encouragement she could have to come back into the picture of the child who as I said, awaits her mother’s return.
I will make the order sought on the basis that the mother will face hurdles in any Court if she wishes to heave a meaningful part in the child’s life in the future.
I am not making these comments for any other reason that it is important to recognize that Part VII of the Act prescribes what is required of parents so that children can achieve in our society what the majority of Australians would expect. It was for that reason that Parliament set out the objects and principles from which the provisions of Part VII are to be applied.
Section 60B provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Using those objects and principles as a checklist, it is obvious that neither of the child’s parents is meeting any of the criteria. I am satisfied however that the Grandfather is fulfilling both roles.
Fundamental to my decision in this case is s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(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.
Additional considerations
(3)      Additional considerations are:
(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 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;
(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) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      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; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Dealing with those relevant considerations, I find as set out below.
Whilst it is clearly an ideal for the child to have the benefit of having a meaningful relationship with both parents, the Court cannot force parents to fulfil not only their legal obligations but also ensure that their children do benefit developmentally by having a meaningful involvement in their lives. The child is not receiving that benefit here.
The second but equally important primary consideration is the protection of a child from the harm done both physically and emotionally by parents. There is no evidence of physical violence but the lack of care by the mother and in turn the father, means that the Court needs to turn to the child’s grandfather for assistance. I am satisfied on the evidence that the child’s grandfather is providing that protection.
I cannot give much weight to the wishes of the child having regard to her age but I make it clear that some of the sentiments that I have expressed here about parental responsibility arise because of things such as the expressed statement of the Independent Children’s Lawyer that the child is still hoping for the return of her mother.
There is no relationship between parents and child. There is no indication of any level of parental responsibility. That in turn shows the attitude of the parents to the responsibility of being parents. There is also sadly no evidence of parental capacity. There is ample evidence that the parents have not fulfilled their responsibilities nor facilitated the relationship of the other parent with the child.
It would be tempting to make orders which encouraged the parents and provided for them to participate in the child’s life but the evidence is lacking as to how the Court could do it. The only option for the Court is to call upon the grandfather who has indicated a willingness to fulfil all of those responsibilities. That extends to assisting his daughter and endeavouring to help her have a relationship with the child.
I am satisfied that the orders proposed by the grandfather are in the child’s best interests.
As I do intend to make parenting orders, s 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The absurdity of that situation of course is that neither parent has indicated any willingness to take on the decision-making role. In the circumstances, the grandfather should make all of those decisions.
Accordingly, I confirm the orders that are at the start of these reasons.

I certify that the preceding Forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 1 September 2009

[2009] FamCA 875

20 AUGUST 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Standing

Remedies