Saltlake & Anor and Yadegari & Ors

[2011] FamCA 1098

FAMILY COURT OF AUSTRALIA

SALTLAKE AND ANOR & YADEGARI AND ORS [2011] FamCA 1098

FAMILY LAW – CHILDREN – With whom the child shall live - where the child has lived with the paternal grandparents for some time – the parties agree the child shall live with the paternal grandparents – paternal grandparents shall have sole shared parental responsibility for the child – the mother suffered from drug-related issues and mental health issues – the mother had recently moved overseas – the mother was not available to prosecute her application – the maternal grandparents had no formal application for time with the child – the maternal grandparents were not present in Court to prosecute an application – no order made for the child to spend time with the mother or the maternal grandparents

Family Law Act 1975 (Cth), s 60CC

Rice v Asplund (1979) FLC 90-725

APPLICANTS: Ms A & Mr B Saltlake

RESPONDENT: Ms C Yadegari

2^ND RESPONDENT: Mr F Saltlake

3^RD RESPONDENT: Ms D & Mr E Yadegari

INDEPENDENT CHILDREN’S LAWYER: Mr Ridge

FILE NUMBER: CAC 295 of 2008

DATE DELIVERED: 14 October 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 14 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Gill

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of Ms Yadegari

SOLICITOR FOR THE 2^ND RESPONDENT: No appearance by or on behalf of Mr Saltlake

SOLICITOR FOR THE 3^RD RESPONDENT: No appearance by or on behalf of Mr & Mrs Yadegari

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Barker & Barker

Orders

IT IS ORDERED THAT:

1. All previous orders made in relation to the child, G born on …2002, are discharged.

2. The child, born on … 2002, will live with her paternal grandparents Ms A Saltlake and Mr B Saltlake.

3. Mr B Saltlake and Ms A Saltlake will have sole parental responsibility for the child.

4. a.     The respondent’s applications that the child live with her or spend time with her are dismissed.  (In this regard it is noted that the Court has been informed that the first respondent has departed Australia and is living in Country H.  It is unknown at the time of the making of these orders when, if at all, the first respondent will return to Australia and what her mental health is, or might be).

   b.   These orders do not preclude the first respondent from making an application when she returns to Australia under Part VII of the Family Law Act1975 for a parenting order in relation to the child.  Such an application however, must be accompanied by an affidavit explaining the circumstances in which she did not attend Court as she was otherwise obliged to do on 14 October 2011. 

5. Noting that as far as the Court records disclose there has been no substantive application by the third respondents Ms D Yadegari and Mr E Yadegari no order is made for the child to spend time with either or both of the third respondents.  In this regard it is noted that during the course of the formal finalisation of the hearing of this matter the maternal grandfather Mr E Yadegari did not attend at Court nor did he seek to put before the Court, through his legal representative, any evidence about his current position, his relationship with Ms D Yadegari or his relationship with his daughter. 

6. If either or both of the third respondents seeks to make an application to the Court pursuant to Part VII of the Family Law Act 1975 that either or both spend some time with the child then he or she may do so by filing an application in the ordinary course of events but only do so if the application is accompanied (notwithstanding any Rules to the contrary) by an affidavit which sets out the arrangements they propose, the reasons why such arrangements would be in the child’s best interests in accordance with the criteria enumerated in s 60CC of the Family Law Act 1975 and the physical and financial aspects of the transportation of the child to or from such time.

7. Noting that there is no application from the second respondent relating to the time he might spend with the child, no order is made in that regard. 

8. The Independent Children’s Lawyer is discharged.

9. The matter is removed from the pending cases list.

10. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

11. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

12. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saltlake & Yadegari 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 CANBERRA

FILE NUMBER: CAC295/2008

Ms A & Mr B Saltlake

Applicant

And

Ms C Yadegari

Respondent

And

Mr F Saltlake

2^nd Respondent

And

Ms D & Mr E Yadegari

3^rd Respondent

REASONS FOR JUDGMENT

Introduction and background

1. In this matter the proceedings before the Court relate to the child, G, born in 2002. The proceedings were conducted in the context that the child had lived for most of her relevant life with her paternal grandparents.

2. On 6 October 2011, the Canberra Registry received two letters from Ms D Yadegari (“the maternal grandmother”) and those letters were brought to my attention. While what is contained in them, of course, is to some extent hearsay and unsworn, I propose to accept the letters as exhibits “X” and “Y” as evidence that, in fact, Ms C Yadegari (“the mother”) has either been sent or gone (and it is irrelevant really which of those it is) to Country H.  There is no suggestion from any of the material I have as to when she might return and the circumstances in which she might return.  It would appear that at least one of her objectives of going to Country H would be to seek some form of treatment, although that is unspecified.  I cannot really make any determination about whether she is likely to receive that treatment in Country H – or if it is likely to have any success. 

3. I made orders on 19 September 2011 permiting further evidence to be given by the mother and the maternal grandmother, about the material that had been allowed into evidence after the conclusion of the hearing on the application of the paternal grandparents about an incident that had happened at the home of the maternal grandparents.

4. That evidence was originally due on 19 September 2011, but on that day, I received a medical certificate which simply said that the mother was suffering from a “medical condition” and was unfit for work.  This was not very helpful.  As a consequence, on 19 September I adjourned proceedings until this day for the additional evidence to be taken. I specifically indicated in my Orders of 19 September 2011 that if, for whatever reason, the mother is unable to attend because of a medical condition I expected there to be proper evidence about that. I also ordered that, if the mother’s treating medical practitioner(s) were not able to provide evidence in the form of an affidavit, then it would be open to the mother or those acting for her to arrange for the medical practitioner(s) to give evidence by telephone. No such request has been made, and there is no evidence before me about the matter apart from exhibits “X” and “Y”. 

5. In those circumstances it seems to me that the appropriate way of dealing with this matter is not to further adjourn it, but to make orders which effectively finalise the proceedings in this Court and to deliver a judgment essentially on an undefended basis, depending upon what might occur.

6. As it transpires the maternal grandmother is not in Court so I am unable to determine (a) whether she wants to persist with the application for adjournment or (b) has anything further to say.  However, in the context of the potential for that to occur I had circulated the Orders I proposed to make in this matter so that they would not take anyone by surprise.  Orders one and two and three of the Orders I proposed are orders that were in fact part of the submissions on behalf of the maternal grandmother.  That is, that the child the child would live with the paternal grandparents and they would have sole parental responsibility for the child. In making those orders there is agreement about the form of those Orders from all relevant parties, unless the Independent Children’s Lawyer has any contrary view.

Outstanding applications

The mother’s application

1. The balance of the dispute of course relates to the time that the child would spend with her mother and the circumstances of those arrangements. In particular, whether the time she spends with her mother should be supervised, or (as had been proposed on a previous occasion) whether it might occur at the home of the maternal grandparents. 

2. The child’s mother had serious difficulties with drugs and mental illness and they have dominated, to a large extent, the evidence that has been the subject of these proceedings.  The child’s father has been a participating and consenting part of the proceedings on the basis that the child would remain living with his parents and he would continue to see her regularly with them.  This was a matter of agreement.  Within that context the file has grown enormously over the years in relation to various applications, expert evidence and the like.  In the end, the issues to be resolved are whether the child should spend time with her mother, either in supervised or in unsupervised circumstances, and the capacity of the child’s mother to assist in looking after the child’s welfare and her best interests.

3. The evidence about some of the matters was controversial and this was covered in some detail in a number of written submissions received by me.

4. I am not in a position to make any findings about the child’s time with the mother as I have not heard any final submissions about what has happened since the conclusion of the trial.  But on the evidence I had available to me at the conclusion of the hearing, in my opinion, there was a very strong case for saying that the time the child should spend with her mother should be supervised, and in a professional way, not, as she had proposed initially, with her mother in the maternal grandmother’s home.

5. I comment only as I indicated previously, that the evidence I had at the conclusion of the hearing, without the benefit of any additional evidence, would have led me to conclude that the arrangements proposed for the child’s spending time with her mother in the home of the maternal grandparents did not commend themselves to me, nor do I think they satisfied the paramount consideration of the child’s best interests. 

6. However, the question of what time the child might spend with her mother and the circumstances of it are really no longer in issue, as for all practical purposes, the mother’s application has been abandoned.  I propose to dismiss her application.  That would not preclude her from making an application again if she came back to Australia but, in doing so, she would then need to demonstrate her capacity properly to fulfil matters in the child’s best interests. 

7. In relation to the submissions on behalf of the mother, which were filed in this Court on 2 March 2011, I make the following additional notations. In [41], Ms Baker, on behalf of the mother said:

   It is a strong sign to the Court, that the relationship [between the mother and the maternal grandmother] is such that an organised contact visit with the maternal grandmother supervising will be a positive and healthy environment for the child. 

1. It is quite clear that the present circumstances, no matter how they might be construed, mean that that submission has no basis in reality any more and can not possibly by itself stand. 

The maternal grandparents’ application

1. When I examined the file, I found there was no application by or on behalf of the maternal grandparents in their own right for time with the child.  There was, in their most recent affidavits, a reference to an application for time with the child but there is no formal application.  Their most recent affidavits (each in identical form apart from the deponent’s name) suggest they should spend weekly time with the child in their home.  The basis for that occurring is not explained.  No amendment was sought to their formal application and, in default of there being a formal application, there is no particular reason for me to make any determination, or make an order, about whether or not such time might occur.

2. Therefore, there is no application by the maternal grandparents to dismiss as such. In relation to their application, which essentially was one in support of their daughter’s application, I am otherwise discharging that.

3. The evidence relating to the issue of whether the maternal grandparents should spend time with the child is so scant. Furthermore, the maternal grandmother has not attended Court this day to further prosecute her application to the extent there is one.

4. I decline to make any order at this point. However, that would not preclude the maternal grandmother from making an application at some point in the future. I do not want the maternal grandmother to feel that she has been excluded from the process given that she has represented herself through most of the time with obviously some difficulty in understanding the process. Hence, I had included in the draft orders provided, a reference to the fact that, the maternal grandparents can make an application to spend time with the child. But they may only do so if the application is accompanied by an affidavit setting out the arrangements they propose and the reasons why such arrangements would be in the child’s best interests in accordance with the factors enumerated in s 60CC. Whether the maternal grandmother will make such an application, I do not know. There are other issues, such as the rule in Rice & Asplund[1], that may stand in the way of such an application.  It does not seem to me, however, that there is anything to be gained from prolonging the proceedings further. 

   [1] (1979) FLC 90-725

Orders relating to the paternal grandparents

1. There is agreement that I should make orders that would provide that the child live with her paternal grandparents and that they should have sole parental responsibility.  This appears, at least, from the submissions prepared on behalf of the mother in which she sets out the Minute of Orders she is seeking.  I accept that is the case and there is no contest about it, but I will indicate briefly why I believe it is in the child’s best interests that she should live with the paternal grandparents. 

Relevant law in parenting matters

1. There is a presumption under the Family Law Act 1975 (Cth) (“the Act”) that the parents of a child have equal shared parental responsibility for that child. That presumption is clearly and unequivocally rebutted in this case, neither parent talks to the other. Neither parent has any day-to-day participation in the child’s life. Neither parent has demonstrated that ability or the ability to accept the responsibility for the child in the past. As a consequence of my finding that the presumption is rebutted it is unnecessary [in the specific context] for me to consider the matters that I would have been obliged to do under the Act as to the child spending equal time or significant and substantial time with each parent.

Best interests of the child

1. In general terms I am obliged under the Act to take account of the child’s best interests as my paramount consideration, but that is not the only consideration.

Primary considerations

1. One of the primary considerations I am to take in to account is the benefit to her in having a meaningful relationship with both of her parents.  In the circumstances of this matter, for the reasons I have indicated previously, and to some extent in adopting some of the submissions relating to the drug use by the mother and the questions of mental health as set out in the written submissions on behalf of the paternal grandparents, it seems to me the prospects of the mother having a meaningful relationship with the child in the immediate future are, at least, doubtful.  Although it would be desirable [for her to do so] and this has been accepted as being desirable by Mr B and Ms A Saltlake, one can only deal with the possible. 

2. The other primary consideration is the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.  I do not believe that if she were to spend time with her mother that would necessarily expose her to a risk of a deliberate physical act of violence on behalf of her mother.  It is clear however that when the mother is suffering [one of] her psychotic episodes, there is a limit to her ability to control her actions.  This means that in ensuring the child’s interests and best health and safety are properly protected, there is some advantage at present in the child’s not spending time with her mother. 

3. That is not necessarily permanent but it is related to her mother’s physical and psychological ability to contribute to the child’s best interests. 

Additional considerations

1. I accept the child’s views about what she wants as expressed to the Family Consultant and take those in to account.  The child’s views were, among other things that she would have preferred any further contact with her mother to occur through supervised arrangements, as they have in the past. 

2. The nature of the child’s relationship with her mother has been attenuated, possibly for reasons beyond the mother’s control.  Nevertheless circumstances do not lend assistance to the proposition that the child has a good relationship with her mother or, and perhaps even less so on the evidence, with her maternal grandparents.  That is not to say that they are people who do not have the child’s best interests at heart.  But they are not people who have participated significantly in the child’s life up to this point.

3. There is a question about 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.  This is substantially irrelevant in the circumstances of this matter but I note simply in passing it is difficult to envisage circumstances in which the child’s mother might, on the evidence I have before me, continue to support the relationship between the child and her father.  I acknowledge this is a situation where there is little, if any, evidence rather than a situation where there is any negative or positive evidence to the contrary. 

4. The separation of the child from her mother, even on the limited basis to which it has occurred, will undoubtedly have some effect on the child.  The evidence is equivocal as to whether she will suffer any emotional deprivation.  There is also evidence that she will suffer some emotional benefit from being exposed to what she regards as difficult circumstances - as she expressed them to the Family Consultant. 

5. The practical difficulties and expense of the child spending time with her mother emphasise the geographical separation of the child from her mother, who is in Country H, and to some extent from her father.  Her father sees the child regularly in the presence of his parents.  As there is to be no order about the time she spends with her mother at this point, this is not a matter that bears deliberately, or with any substance, on my determinations.

1. I am satisfied that at the present point the child’s mother does not have the capacity to provide for the child’s needs, including her emotional, intellectual needs. I am satisfied that her father - I and I note that s 60CC(3)(f)(ii) includes in this consideration grandparents - can provide for the child’s emotional, intellectual needs.

2. I am satisfied that that is the conclusion reached by the child’s mother and the evidence supports that finding. 

3. Submissions filed on behalf of the mother on 2 March 2011 state:

   There has, to date, been no recognition of the encouragement of the child to engage with her [Religion I] culture.

4. One of the matters I am obliged to take in to account under s 60CC of the Family Law Act 1975 is the maturity, sex, lifestyle, background including lifestyle, culture and traditions of the child, and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant.  In this matter, it is of concern to me that it is most likely that, as a result of the child’s growing up with the paternal grandparents, that she will receive little exposure to her Religion I culture.  This is I think perhaps regrettable in one sense of the word, but almost inevitable in another.  In any determination of these matters there [should be] a balance achieved.  The balance is not possible in this case although I mention it is a factor which should bear at least in part on the thinking of the paternal grandparents at some time in the future. 

5. She is not Aboriginal and the next subsection of the Act does not apply.

6. The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents is a matter which I have covered in my previous comments and do not propose to repeat them. 

7. Questions of family violence are not relevant in particular in relation to this matter, although they bear generally upon what might be appropriate in the future.

8. The orders that I make would be preferable, at least to the extent that they might limit any further proceedings in relation to the child. I take that in to account as a determination as to how I should finalise the proceedings, and I note that subsection (m) reads “Any other fact or circumstance the court thinks is relevant.”

9. This section has been taken into account in other matters [set out above].  I have deliberately in my short consideration of these matters made reference to those things which I think are appropriate for the paternal grandparents.  They have been positive factors which I find supportive of the orders I propose to make. 

10. I should also comment, by way of completeness, that s 60CC(4) which relates to the extent to which each of the child’s parents has taken or failed to take the opportunity to be involved in the child’s care, operates to suggest that the time that the child spends with her mother should be limited not expanded, and therefore it is not a consideration that bears upon the orders I make.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks delivered on 14 October 2011.

Legal Associate:

Date:  21 February 2013