Tucker and Tucker and Avery and Tucker - [2009] FMCAfam 131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUCKER and TUCKER & AVERY and TUCKER

[2009] FMCAfam 131

FAMILY LAW – Grandparents – parenting orders – best interests of 2¾ year old child – no participation by parents – child to live with grandparents.

Family Law Act 1975 (Cth) Part VII

Chapman and Palmer (1978) 4 Fam LR 462, FLC 90-510
Flanagan and Hancock (2000) 27 Fam LR 615 [2000] Fam CA 150
Fookes and McCarthy (1994), FLC 92-450

Applicants:

MR TUCKER

MRS A TUCKER

1st Respondent:

MR AVERY

2nd Respondent:

MS E TUCKER

File Number:

NCC 2820 of 2008

Judgment of:

Coakes FM

Hearing date:

3 February 2009

Date of Last Submission:

3 February 2009

Delivered at:

Newcastle

Delivered on:

3 February 2009

REPRESENTATION

Solicitors for the Applicant:

Mullane & Lindsay

Solicitor for the Applicant:

Ms Carty

First Respondent:

No appearance

Second Respondent:

No appearance

THE COURT ORDERS THAT:

The Maternal Grandparents MR TUCKER and MRS A TUCKER are to have sole parental responsibility shared between them for the child [X] born in 2006 in so far as the exercise of that parental responsibility involves making a decision about any major long term issue in relation to her, such major long term issues meaning issues about her care, welfare and development of a long term nature and including (but not limited to) issues of that nature about:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing:
(c)The child’s health;
(d)The child’s name;
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The child live with the Maternal Grandparents.
The mother MS E TUCKER spend time with and communicate with the child as agreed between the mother and the Maternal Grandparents but in the absence of agreement as determined by the Maternal Grandparents.
The father MR AVERY spend time with and communicate with the child as agreed between the father and the Maternal Grandparents and failing agreement as follows:
(a)At the [omitted] Children’s Contact Centre to be supervised by the Officers of such centre at such times and on such occasions as the Centre can manage and arrange and subject to the rules applicable at such Centre and subject to the father attending for an assessment at such Centre as to his suitability to spend time with the child;
The Maternal Grandparents are authorised to apply to The Registrar, of Births Deaths and Marriages for the State of New South Wales to change the name of the child [X] Avery born in 2006 to [X] Tucker.
The Registrar, of Births Deaths and Marriages for the State of New South Wales, upon the application of the Maternal Grandparents referred to in Order 5 above is to do all acts and things necessary to register the change of name of [X] Avery born in 2006 to [X] Tucker pursuant to s.28 of the Births Deaths and Marriages Registration Act 1995 (NSW) and not withstanding the consent of neither the mother or the father has been obtained.
That for all purposes the child [X] Tucker be known by such name.
That pursuant to 11(1) (b) of the Australian Passports Act 2005 the child [X] Avery born in 2006 now to be known as [X] Tucker be permitted to travel internationally with the Maternal Grandparents for the purposes of vacation or for any other purpose.
A sealed copy of today’s Orders be served by post by the Solicitors for the Maternal Grandparents upon the mother at her last known address.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC 2820 of 2008

MR TUCKER
MRS A TUCKER

Applicants

And

MR AVERY

First Respondent

MS E TUCKER

Second Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the maternal grandparents Mr Tucker and his wife Ms A Tucker seek parenting orders on both a final basis and an interim basis in relation to their granddaughter [X] who was born in 2006.
I am satisfied that this Court has jurisdiction to entertain the grandparents' application for final parenting orders in relation to their granddaughter pursuant to s.65C.
The parents of [X] are the daughter of the maternal grandparents,

Ms E Tucker who is aged 22 years. She was born in 1986, she is not employed and when she is not elsewhere she is living with her parents, the applicants in these proceedings, at their home in [B] on the mid Central Coast of New South Wales.
The father of the child is Mr Avery, he is 33 years of age and was born in 1975. His present whereabouts is not known.

Is a final undefended hearing appropriate

The first issue I must consider is whether it is appropriate to deal with the matter in the absence of the parents and I find that it is and for these reasons. I am satisfied that the mother was served with all the documents upon which the grandparents rely, including their application, their two affidavits and some subpoenas and that the mother was served on 19 November 2008 at the offices of the solicitors for the maternal grandparents, Mullane and Lindsay in Newcastle.

In that regard I have regard to the affidavit of Vivien Leigh Carty filed 24 November 2008.
I am equally satisfied that the father was served with all the documents upon which the maternal grandparents rely and that he was served, again at the offices of the solicitors Mullane and Lindsay on

14 November 2008 at 12 noon. In that regard I have regard to the affidavit of Vivien Leigh Carty, solicitor.
I note also that the father signed, at that time, an acknowledgement of service. I am satisfied having regard to the content of the affidavit of Vivien Leigh Carty that it was the father who was served and in particular I note that he was required to produce some identity, which he did in the form of his driving licence and that he signed the acknowledgement.

Background and applications

By way of introduction, the maternal grandparents bring these proceedings because, quite simply, they require some finality to enable them to make decisions about [X]'s upbringing. They are forced into that situation but they come of course as volunteers, and willing volunteers to the Court prepared to take on the responsibility of the parental role for [X] because of the failure by their daughter and the child's father to carry out those responsibilities which they have as parents, and in which they have failed and continue to fail and to which I will refer later in these reasons.
I add that the parents' names were called and it is now 10 past 5 in the evening, the parents' names were called earlier in the day by my Court Officer, neither parent appears, neither parent has appeared today during the course of the proceedings. Neither has either parent been represented by a lawyer or other person appearing on their behalf.
The grandparents, to their credit, and during what has no doubt been a nightmare for them in relation to their daughter's failure to care for their granddaughter, and no doubt some questioning on their part as to what are the appropriate steps to be taken insofar as their granddaughter is concerned, nevertheless are willing to assume the responsibility of parents for her and for that they are to be praised.
It is unfortunate that increasingly, nowadays, young parents, and certainly the daughter is a young parent, use prohibited substances to which I will refer later and are unable to extract themselves from the consequences of continued use of prohibited substances despite their, I suppose, best efforts or perhaps their inability to become rehabilitated and the really horrid effects of the use of such substances and the manner in which that affects all around them including their parents and their relatives and their own children.
It is to the credit of grandparents such as these that they are prepared to step into their children's, or in this case their daughter's shoes when perhaps they could otherwise have looked forward, in their late summer years, to some relief from looking after their own children of whom there are three. It is not easy to make this decision which they have made or an easy task and it is appropriate that they receive the benefit of every possible assistance which agencies are able to give them and the Court is able to give them.
I choose those words carefully because one can have nothing but empathy for these grandparents forced into these circumstances, for all the difficulties which will face them in continuing to bring up [X] given her age and no doubt the continuing difficulties which they are likely to continue to experience with their daughter. I was troubled by some aspects of the grandmother's evidence to which I will refer later today in that sense.
That then is the application brought by the maternal grandparents, including a change of name which they would like to register and including the ability for a passport to be issued for [X]. They are clearly practical applications.

The Evidence

Insofar as the evidence is concerned, I have read the initiating application, I have read the two affidavits, although Ms Carty sought to rely on only one affidavit, it was nevertheless appropriate that I read both, which I have done and I have heard oral evidence from each of the grandparents, I have received some exhibits and I have read those and I take that into account, and I have heard comprehensive submissions from Ms Carty.

The Issues

It seems to me the issues are these. Is it appropriate to make parenting orders today on a final basis or should they be on an interim basis? Is it appropriate to make the orders as sought by the maternal grandparents bearing in mind the difficulties in relation to the father not having seen [X] for some time? What is the likely effect upon [X] of effectively her maternal grandparents having the sole responsibility for looking after her, not only in a day to day sense but also being responsible for all the long term decisions?

The general legal principles

The general principles which I am required to apply are found in Part VII of The Family Law Act and that is the relevant law which I must apply and I must also take into account the amendments which came into effect on 1 July 2006 pursuant to the Family Law Amendment (Shared Parental Responsibility) Act of that year.
The significant sections are and to which I must have regard, s.60CA which provides that in deciding whether to make a particular parenting order the Court must have regard to the best interests of the child as being the paramount consideration.
I must consider in determining what is in [X]'s best interests the matters set out in s.60CC, they are broken down into two primary considerations. First the benefit of having a meaningful relationship with both of the child's parents and secondly the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4) and must consider the extent to which each of the child's parents has fulfilled or failed to fulfil their respective responsibilities as a parent.
I must also have regard to s.60B which sets out the objects of PartVII and the principles underlying those objects.
I must also have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of a child or family violence and the law provides the presumption may also be rebutted if the Court is satisfied that there is evidence before the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility, and this is such a case and for reasons which I will give, neither parent should have any parental responsibility for this child.
Consequently it is unnecessary for me to consider the consequences of the presumption of shared parental responsibility being applied and in particular the other matters which I am required to consider flowing from s.61DA and s.65DAA.

The Grandparents case

The grandparents' case is this and in my view it's succinctly set out in both their affidavits to which I have referred and filed on 6 November 2008. They depose to, and I accept, that [X] has lived with them effectively since 2007 and August of that year, when she was about

15 months of age. Although their daughter lives with them she has taken no active part, I am satisfied on the evidence, in her day to day upbringing.
I accept the grandmother's evidence and whilst it is natural, I suppose for a mother to be protective of her daughter, and I make that observation of Mrs A Tucker, it is obviously very difficult for her to give evidence about her daughter and to be critical of her parenting capacity. It is in that sense that a grandmother is likely to be torn between the inevitable loyalty to her daughter and the responsible role that she has to play in the care of her granddaughter when she sees that she is being neglected and exposed to risk and family violence by her daughter.
I listened very carefully to the grandmother's evidence, I am left with the perception that she did not tell me all that perhaps she would have liked to have told me, if she was independent of her daughter in a true sense, and for that reason I empathise with her difficult position.
The grandfather however left me no doubt as to what happens most of the time in their household when the mother is present and it is to his credit, although it was very difficult for him, that he could be frank and objective, in my view, about what he perceived were his daughter's failings and her inability to care for their granddaughter. I find on the balance of probabilities on the grandfather's evidence that the mother may from time to time spend some time with the child or take part in some activity with her, but it is not in the sense of being a parent to her. It is not in a sense of being a responsible parent to her and is not in the sense of being able to properly contribute to her upbringing.
The fact that the mother continues to live from time to time at her parents home is testament, I suppose, to the love they have for their daughter but they have the difficult role to perform of being wise and proper parents as it were to their granddaughter against being fond and foolish toward their daughter and that balance is very difficult. They have my empathy insofar as it assists them in understanding the difficult role they perform.
What precipitated the current application was an incident which occurred on 28 October 2008 when unbeknown to the grandparents, the mother apparently overdosed on intravenous drugs whilst [X] was in her care on a train. The consequence was there was an incident on the train and an ambulance attended. The mother was then in the company of a person who may be, or may not be her current boyfriend, a Mr B and the child was conveyed to hospital. The grandparents were subsequently told of what occurred and were then involved and bring the present application.
That I suppose, was the watershed after a number of events which had occurred when they had previously considered taking up the parental role. Their evidence is that they first became aware that Ms E Tucker was using illegal drugs when she was 17 years of age. They assisted her to enter a drug rehabilitation programme and tell me, which I accept, that their daughter did not complete the programme and again relapsed into drug use shortly after leaving that programme. Time and time again that is the repeated behaviour which this Court sees for parents who are adversely affected by use of prohibited substances.
The grandmother suspects, as she told me today because she has recognised certain signs, that the mother may again be using prohibited substances and more likely than not, heroin. The mother has stolen from her parents, that again is a common feature of cases which come before me where one of the parents is addicted to prohibited substances. That is how they support their habit. It is an insidious and horrible disease from which parents suffer when they use prohibited substances and it is extremely hard to recover, and quite often impossible, with short and long term drastic consequences for the person involved.
The grandparents submit that [X] is just two and a half years old and needs their protection. I accept that submission.
As to the grandparents' ability to care for [X], I am satisfied that they can do so and are able to do so and will protect her from exposure to inappropriate behaviour by their daughter or anybody else with whom she may be friendly and will not let her be with her mother unsupervised by either of them.
The grandmother is a [healthcare professional]; she works at the [omitted] Hospital. She has made arrangements now, as of August 2007, shortly before which [X] came into their care to work on Sundays only from 7.00 am to 3.30 pm and on Mondays from 2.30 pm to 11.00 pm.
The grandfather has his own business, with employees, as a [omitted]. I am satisfied that he is able to effectively assist his wife looking after [X] and I note his working hours generally are from 6.30 am until 4.00 pm or 6.00 pm on weekdays, Monday to Friday. Generally he has no weekend work. I am satisfied that he is available as required to assist.
The third bow in their armoury to assist and look after [X] is the grandfather's parents, Mr and Mrs D Tucker who look after [X] from time to time whom I am satisfied on the evidence are able to continue to do so but essentially are used as a reserve measure rather than a primary measure to care for her. I am satisfied on the evidence before me that in all probability [X] has a very close and fond relationship with her maternal grandparents and her great paternal grandparents.
It is their hope that ultimately their daughter will be able to take a more active role in the care of [X] and play a parental role to her. I could not be confident either in the short term or the long term that that wish can be realised and it is likely that the grandparents will realise as time passes that unless something very significant happens, there will be periods when perhaps it is hopeful that the mother can look after her daughter but for other periods it will be hopeless for them in attaining the wish that they would like ultimately to realise but against that there is no reason why [X] should not spend some time with her mother in their care and under their supervision from time to time.
It is their case insofar as the father is concerned, that he has taken no active interest at all and certainly since late 2007. I am told and accept that in January of this year their daughter told them of a text message or two which she had received from him which said in effect:
“He had no real interest in spending time with her and that he proposed in all probability to travel to Western Australia.”
and did not on the face of it propose to maintain any relationship with [X].
Certainly I am satisfied on the evidence before me that the grandparents do not know where the father is presently residing.

[X]’s surname

The next issue is the surname for [X]. The grandparents would like their surname, Tucker, to be adopted and used by her for all purposes as her surname. The rationale of that application is that she has no current relationship with her father whose surname is Avery. Their daughter's surname is presently Tucker. That may change in the future if she enters into another relationship or would like to change her surname.

There is no evidence before me from the mother or the father. There is no opposition suggested by the mother or the father to the orders sought by the maternal grandparents. They have had the opportunity to appear but they have chosen presumably not to do so and it seems to me it is appropriate to consider favourably the proposal to change her surname from her registered surname to Tucker. I have sighted a birth certificate and in that birth certificate registered in the State of New South Wales, she is given the names [X] Avery and her mother is described as Ms E Tucker and her father described as Mr Avery.
The evidence concerning the use of the surname is that for any formal purpose of which there is very limited evidence, she is known by the surname Avery and I think that is how she is referred to on her Medicare Card held by the mother. The grandfather tells me that he tends to refer to her, if he is required to do so, by the surname Tucker. The grandmother would certainly like to use the surname Tucker. They have not discussed, not surprisingly I suppose given her age, that change with her.
I am satisfied on the evidence before me particularly having regard to exhibit 3, that a letter was delivered to or collected by the father in September 2007 when there were proposals that some parenting orders be made, essentially little different from those which are now sought today, save that it was proposed then that the surname be Avery Tucker and that the birth certificate be changed for that purpose and the parental responsibility for [X] would be shared by the mother and the father as well as the maternal grandparents.
Of course it has changed since then and the maternal grandparents, appropriately in my view, now seek that they have sole responsibility and that only the surname Tucker be adopted.
It is less than clear on the evidence of the maternal grandfather as to whether the father opposes or agrees with the change of surname. Doing the best I can, I am satisfied that he did not express to the maternal grandfather in all probability, any opposition to the proposed change of name but equally neither did he agree or consent to the change. I note that he did not sign the document which now is exhibit 3.
The issue of a choice of surname for a young child comes before the Court quite frequently and the question of changing surnames for a young child was considered by the Court in what was a substantive decision of the time in a case of Chapman and Palmer (1978) 4 Fam LR 462, FLC 90-510 when the Full Court made the following statement which I quote:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody care or control of that parent or to direct that a name be restored where a change has occurred unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof, it is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration it must stand above the wishes or the proprietary interests of the parents.”
In a later case of Fookes and McCarthy (1994), FLC 92-450, Warnick J said this:
“There is only one principle; that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
The matter was considered by the Full Court again in Flanagan and Hancock (2000) 27 Fam LR 615 [2000] Fam CA 150, where it was held that orders in relation to change of the use of a surname for a child where either a parenting order pursuant to s.65B, as it then was, before the 2006 amendments, all fell within the injunctive powers in s.68B as it then was. In either case the welfare of the child remains the paramount consideration and I am guided by those principles enunciated in those respective cases.

Matters under section 60CC.

I turn now to consider the matters which I am required to consider under s.60CC. The first, or the primary considerations under sub-s.2, is the benefit to [X] of having a meaningful relationship with both of her parents. That would be the optimum outcome in these proceedings but meaningful has a particular objective and that is for her to have a relationship with each of her parents which enables them to have relationship with her.
Meaningful in that context, in my view, means something that is beneficial for her, something which advances her interests, something which assists her in growing up, something which assists her in being prepared and able to deal with all the various aspects of growing up which she will have to deal with and with her parents guiding her.
Unfortunately whilst it would be a benefit it is unlikely to occur in any real sense because she does not enjoy a relationship of an ordinary parenting nature with her mother and she does not see her father at all. So whilst it may be of considerable benefit I take it into account and find that there is very little likelihood of that occurring on the evidence before me, and with either parent.
The second of the primary considerations is the need to protect her from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and is critical in her case, given that I am satisfied she has been exposed to family violence as recently as 28 October and she has been exposed to other inappropriate behaviour by her parents and that the mother has exposed her, in all probability, to inappropriate behaviour by Mr B.
In the sense of considering the matters which I am now considering under s.60CC(3), I have regard in particular to Exhibit 1 and the documents produced in response to the subpoena to The Department of Community Services which refer to the mother's admission to hospital following the incident on the train to which I have referred.
The notes record that the mother was brought to hospital after overdosing on heroin in a train. Her partner Mr B and [X] were present during the incident. The partner has also been described as under the influence of heroin at the time.
Mr B is described as living in [W] (approximately 110kms from Newcastle) and that the mother and Mr B have been together for about three months. The mother is reported as saying to the hospital, which I accept, that:
“She was previously on amphetamines, using them for about three months and that she had a stint in rehabilitation at Odyssey House in Sydney and that since then she has used heroin once or twice a week.”
The hospital records that she told them:
“Her partner is a heroin user and that was the main reason for her trying it.”
It is recorded that the ambulance officers reported that:
“The daughter was screaming and crying when they came to collect the mother.”
The hospital gave the mother advice in relation to programmes available for recovery from use of prohibited substances.
I have regard also to documents which now form Exhibit 2 and which are as follows. On 21 June 2007 the father Mr Avery was admitted to the James Fletcher Hospital, a psychiatric unit of the Newcastle Hospitals and was discharged four days later on 25 June 2007. The documents record that his principle diagnosis is an adjustment order coupled with cannabis use. He is recorded as presenting himself for help, feeling suicidal and depressed during the last three weeks since his girlfriend had left him.
He was admitted as a voluntary patient. He is reported as telling the hospital authorities that he was staying in a motel, he had run out of money, his parents had refused to keep him at their place and he is reported as using cannabis to the extent of 10 to 15 cones per day for nearly the last 10 to 12 years, which contributed to the breakup of his relationship. In that context the relationship clearly is with the mother in these proceedings. He was given assistance as to what he may be able to do.
It is of considerable concern that the father admits to using cannabis for such a long period of time. Medical evidence establishes very clearly nowadays, that continual use of cannabis in whatever form causes serious mental illness, usually in the form of psychotic episodes, psychotic outbursts, irrational behaviour and may have a link with causing, ultimately, a bi-polar disorder and epilepsy.
It is in these documents that it is disclosed that the father has two other children, [Y] who was then six years of age, and [Z] who was then five years of age, but whom he has not seen for some three years.
I am satisfied also that the father in June 1999, as a consequence of documents in Exhibit 2, was admitted to Bloomfield Hospital in Orange as an involuntary patient at that time, scheduled after police found him running in front of cars whilst intoxicated. It is noted in the hospital records of now almost 10 years ago, that the father had a past opiate dependency with heavy alcohol use. The hospital recommended certain programmes for him.
The same exhibit discloses that on 7 March 2001 he was admitted to the same hospital in Orange but discharged later the same day after transfer from Dubbo Hospital, admitted with a disorder with depressive episodes after an alleged attempted hanging and threatening behaviour with a knife whilst intoxicated. It is recorded that police had been called and he had to be physically subdued and capsicum spray was used.
Those notes refer to an admission to another hospital in Goulburn in November 2000 after an overdose related to a family dispute. His past drug and alcohol history notes previous heroin use and that he denied illicit use for some years, but heavy alcohol use until recently. He was referred to various programmes.

Consideration of section 60CC(3)

(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;

[X] is not of an age, because she is not old enough and her cognitive abilities are not sufficiently developed to express a view as to where she should live or with whom, but I take into account that she has lived with her maternal grandparents continuously now for something in excess of 18 months.

(b) The nature of the relationship with the child with:

(i)Each of the child’s parents; and:
(ii)Other persons (including any grandparent or other relative of the child);

I do not know on the evidence what the nature of her relationship is with her mother. It seems to me that more likely than not, it is a cursory relationship as far as the mother is concerned and that she is not able to devote to [X] the time and attention and love that ordinarily a mother would want to give her child.
[X] has no relationship with her father but I am satisfied against that that there are photographs which [X] is able to be shown by her grandparents, of her father and that they will not deny knowledge to her of him.
I am satisfied on the evidence before me that [X] has a very good and close and loving relationship with her maternal grandparents and they have taken on the role of parenting for her and that that is a relationship which they are prepared to continue notwithstanding its very great difficulties and that is a relationship which will promote the possibility of resuming a relationship with her mother and possibly her father under their proposals.

(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;

That is nil. The father clearly has abandoned any interest in wishing to have a relationship with [X]. The mother because of her, in all probability, I find on the evidence her repeated and continued and chronic use of prohibited substances, is not able to maintain a relationship with her and consequently not able to maintain a relationship for her with the father.

(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;

There is none because [X] will continue to live with her maternal grandparents in a home which she has occupied now for some

18 months or a little more, which is familiar to her. It is proposed that she attend, or be enrolled in a preschool or something akin to that shortly, I am told by Ms Carty which I accept. That is appropriate. It is likely that given that the maternal grandparents have lived in their present home for 12 years, there is nothing before me which would suggest that they intend to move or relocate elsewhere, and that they will offer her nothing but stability which can continue.

(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;

Clearly that has no application insofar as the mother is concerned just so long as she continues to live predominantly with her parents. There is nothing to suggest that will change although past history may suggest that she will from time to time absent herself for varying periods from the parents' home.
The father's whereabouts is not known and if he has gone to Western Australia there will obviously be a practical difficulty and expense.

I make no further finding in relation to that particular issue.

(f) the capacity of:

(i) each of the child's parents;
(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;

I am satisfied that the maternal grandparents have the capacity and ability to provide not only for [X]'s day to day physical needs, in the sense of warmth and comfort and appropriate diet and clothing, but also her emotional and intellectual needs.
I was impressed by the manner in which both grandparents gave their oral evidence today as to their concern for her and their knowledge of the risks involved in spending time with their daughter and their willingness to take on the role upon which they have now embarked. It is something which they have done for some time and they, I am satisfied, intend to continue that role.
Neither parent, in my view, has the capacity either to provide physical care for [X] or is able to meet either her emotional or 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;

There is limited evidence before me about [X], except that I was impressed when the maternal grandmother described her to me today in her oral evidence:
“As a child enjoying being a child at her present age. Who is a bit naughty sometimes, is probably amenable to appropriate correction by her maternal grandparents, who is clearly conscious of her mother disappearing from time to time.”
She does not have any other particular characteristics, on the evidence before me as to health or otherwise which require any special consideration. Insofar as the parents are concerned, clearly they are both habitual drug users and disabled from being parents for those reasons.

(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;

This sub section has no application.

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

The attitude demonstrated by each of the parents can only be described as abysmal. It is a total abrogation by each of them of their responsibility of being a parent.
I note the mother's age. It would seem that she became disabled from being a parent, probably from the age of about 17 when she commenced the use of prohibited substances. The father is much older but he has been disabled for a long period of time and the consequence of their lack of responsibility is that in real terms, [X] is denied a relationship with them which is of any likely benefit to her.
The grandmother tells me that the mother has some limited involvement with her. For example, she might put her to bed sometimes or she might read a story to her, but that really is a passing involvement as a parent.

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

Well there is evidence of family violence before me in the exhibited material in the incident which occurred on the train. It is my view that family violence encompasses not only physical violence but also abusive behaviour and it is that which occurred on that occasion and about which the ambulance officers told the hospital something to which I have referred.

(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;

This has no application. I am not told of any current final Apprehended Violence Order in force.

(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;

Ms Carty submits that I should make final parenting orders today. When the matter first came before me today I was reluctant to accede to that application but having heard the evidence and having heard

Ms Carty's submissions, I am persuaded it is appropriate to make final parenting orders for two reasons.
First, it avoids the need for further Court proceedings and these grandparents should be able to leave here today in the knowledge that they don't have to come back to Court unless something else happens in relation to their granddaughter.
The second reason is that I could not be confident at all, that if I were to give the father or the mother leave to bring an application if, for example I made interim parenting orders, that they would take any active part in these proceedings. They are not here today and they have not filed any material. They have had ample time to do so and the reality is, the real likelihood is that these parents just are not interested at all. So for those reasons it is appropriate that I make final parenting orders today.

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

In relation to the change of surname, I am satisfied having regard to the manner in which [X] is being brought up and will continue to be brought up, that she should have the surname Tucker and for these reasons.
It is her grandparents who for all intents and purposes will be involved in every activity which involves the use of her name, including her surname whether it be for registration purposes, whether it be for recording purposes, whether it be to enrol her in any activity or school, preschool or other place. The grandparents are relatively young and in all probability it would not be an embarrassment for [X], having seen both grandparents give evidence today, for her to identify with them as she gets older.
It is sometimes an issue for a child if her grandparents are elderly, this is not the case here and whilst the grandparents do not seek to replace the parents and there is an age difference between [X] and her grandparents, she should have the opportunity to identify with them for the reason that will not cause her any embarrassment, it retains the use of the present surname of the mother, there will be no confusion of identity for her and it is important, it seems to me, for [X] to be able to identity with her grandparents because for all intents and purposes, for the reasons I have given, they will play the sole parenting role for her.

It is appropriate for those reasons for me to make orders that her birth certificate be changed for that purpose and that it be Tucker and not Avery Tucker, as I could not be satisfied that the father will take any active interest in her upbringing. That is not to deny her father from having a relationship with her and I am satisfied for the reasons that I have given that she is aware of him as her father.
I am equally satisfied that it is appropriate to issue a passport, or at least give the grandparents an opportunity to apply for a passport for her if they wish to travel overseas. Whilst they do not currently have a plan to do so, the grandparents should be relieved again when I come to consider the desirability of avoiding further proceedings, for that to be dealt with today.
I am required to take into account s.60CC(4) to the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities as a parent. I do not propose to make any further observations in that regard, both parents have clearly failed to fulfil that responsibility in many respects.

Final conclusion

It is appropriate to make on a final basis the orders sought by the maternal grandparents and for the reasons which I have given.
The Court is concerned that [X], may, if her mother absents herself for extended periods, suffer some grief or distress as a consequence of what would then amount, for her, to be the loss of both her parents. Experts tell me that when both parents disappear from a young child's life it is akin to the death of those parents and that appropriate counselling for grief or loss of that relationship is appropriate even though [X] is very young and that the maternal grandparents should be aware of the facilities for that to occur.
I do not propose, having heard from them, to make an order for that to occur or for them to be required to seek that assistance. I am satisfied having observed them both, that they are well aware now of that possibility and that they are both appropriately experienced and sensitive and have insight as to the need for that to be done, should that occur.
I am concerned that there are no relatives of the father, it would seem on the evidence before me, who have sought to maintain a relationship with the child. I am told by the maternal grandmother that the father's parents live in [P], a suburb of outer Newcastle but they have shown no interest in maintaining a relationship with [X], and I accept that evidence.
Consequently, upon the evidence before me there is no known relative of the father likely to take an interest or with whom [X] could maintain a relationship with members of the extended paternal family.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Coakes FM

Associate: J Manners

Date: 23 February 2009