WINTON & DAWSON

[2014] FamCA 782

FAMILY COURT OF AUSTRALIA

WINTON & DAWSON [2014] FamCA 782

FAMILY LAW – CHILDREN – Where the paternal grandmother has discontinued in the proceedings – Undefended - Where the child is living in the maternal grandmother’s care – Where the child’s time with the paternal grandmother was suspended in late 2013 – Where the paternal grandmother has not actively participated in the proceedings recently – Where the child spends time with his mother whilst in the maternal grandmother’s care – Where the grandmothers each raise allegations of harm and risk of harm to the child in the other’s household – Where there has been litigation throughout the child’s life – Best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C(1), 61DA, 69ZN, 91B

Donnell & Dovey [2010] FAMCAFC
G & C [2006] FamCA 994
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Winton

RESPONDENT: Ms Dawson

INDEPENDENT CHILDREN’S LAWYER: Ms Wulf

FILE NUMBER: PAC 6079 of 2007

DATE DELIVERED: 5 September 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 July 2014

REPRESENTATION

APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT:	Paul Schroder
SOLICITOR FOR THE RESPONDENT:	Adams & Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Benetatos White Solicitors

Orders

1. All previous Orders in respect of D Dawson, born … 2003, (“the child”) be discharged.

2. The Respondent maternal grandmother shall have sole parental responsibility for the child.

3. The child shall live with the Respondent maternal grandmother.

4. The child shall spend no time with the Applicant paternal grandmother.

5. All outstanding applications and cross-applications in respect of the child are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winton & Dawson 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 PARRAMATTA

FILE NUMBER: PAC 6079 of 2007

Ms Winton

Applicant

And

Ms Dawson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the future parenting arrangements for D (“the child”), an 11 year old aboriginal boy who lives in western New South Wales.

2. The child’s grandmothers have been engaged in what has been described by a psychologist as a “destructive internecine battle with [the child] as the prize” for a large part of his life. For most of that time the child has lived with his maternal grandmother.

3. The latest round of this battle is the current proceedings which were commenced by Ms Winton, the child’s  paternal grandmother.

4. Since December 2013, the child has been living with his maternal grandmother and spending no time with his paternal grandmother. The paternal grandmother, who commenced these proceedings, has now discontinued them, but the maternal grandmother seeks final orders to be made in the absence of the paternal grandmother.

5. The maternal grandmother is seeking orders for the child to continue to live with her, for her to have sole parental responsibility for him and that there be no provision for the child to spend time with the paternal grandmother.

6. The question for me to determine is whether the orders sought by the maternal grandmother or some other orders are in the child’s best interests

Background

1. The child’s parents are Mr W and Ms B. Mr W’s mother, Ms Winton was born in 1943 and was 69 at the time of the proceedings. Ms B’s mother, Ms Dawson was born 1962 and was 52 at the time of the proceedings.

2. The child’s parents commenced living together in around March 2002 when the father was about 33 and the mother about 21. The father had suffered from a brain injury about 13 years before when he was around 20. The parents lived together for only a few months until July 2002.

3. The child was born in 2003 and is currently 11 years old. There were initial concerns about the mother’s care of the child from a time shortly after his birth relating to neglect, inadequate supervision and maternal drug and alcohol abuse. The child began living with his maternal grandmother, Ms Dawson, in western Sydney when he was a few months old.

4. A few months later, in August 2003, the father and paternal grandmother applied to the Local Court for parenting orders for the child to live with them. In January 2004, the matter was transferred to the Family Court at Parramatta and the child continued to reside with his maternal grandmother.

5. From December 2004 notifications were made to and investigated by Community Services relating to sexual harm alleged to have been perpetrated by Ms Dawson’s partner. These issues formed the basis of the first proceedings.

6. In June 2005, there was a five day hearing resulting in orders that the child live with the maternal grandmother, who had parental responsibility for him, and spend supervised time with his father, and time with his mother. Under the orders the paternal grandmother was to spend time with the child on the fourth of weekend of each month in Sydney.

7. In 2007 the maternal grandmother made allegations of sexual harm against the child’s father, which were also investigated by Community Services. This issue also formed the basis of the maternal grandmother’s application to suspend the child’s time with his father in the second proceedings.

8. The second proceedings commenced in November 2007. Throughout 2008 there were allegations of neglect and physical harm relating to the maternal grandmother’s care of the child and of sexual harm perpetrated by the child’s brother, which were investigated by Community Services. None of the allegations of sexual harm were found to be substantiated by the Department of Community Services.

9. A Chapter XV expert’s report was prepared by Dr C, a child psychologist in May 2009, following the parties appointing him by consent. At that time the doctor’s recommendations included that no sexual abuse counselling for the child should be permitted and that the respective grandparents should have counselling to assist them with the current circumstances, especially supporting the child having contact with each of his families and understanding the potential damage to the child by their battle over him.

10. In December 2009, the court made final parenting orders by consent in the second proceedings. Once again the child was to live with the maternal grandmother, who was allocated sole parental responsibility for him, and was to spend time with his mother, father and paternal grandmother, Ms Winton.

11. Following the final orders in December 2009 each of the grandmothers continued to make further allegations against the other in relation to the care of the child, including neglect, physical harm and poor school attendance and related to the maternal grandmother’s alcohol misuse.

12. In 2011 each of the grandmothers alleged that the other had not made the child available or returned him in accordance with the court orders. The maternal grandmother was also concerned at this time that the child slept in the same bed as his father or the paternal grandmother when spending time with the paternal family as the household was overcrowded.

13. In September 2011, the maternal grandmother and the child moved to Town A in western New South Wales.

14. In January 2012 when the child was spending time with the paternal family, the paternal grandmother took him to the local police to report alleged abuse in the Dawsons’ home and the police took out and interim Apprehended Domestic Violence Order for the protection of the child against the maternal grandmother. At the commencement of 2012 the paternal grandmother did not return the child to Ms Dawson’s care in accordance with the parenting orders after school holiday time, and enrolled him in a local school in a different area under a changed name. The paternal grandmother also commenced the current proceedings in the Local Court on 6 February 2012 and interim orders were made for the child to live with her.

15. The matter was subsequently transferred to the Federal Magistrates Court the following day and an Independent Children’s Lawyer was later appointed.

16. On 30 April 2012, the Federal magistrate, as she then was, reinstated previous orders giving the maternal grandmother sole parental responsibility for the child and ordered that the child live with her and spend  specified time with other family members, including the paternal grandmother. The matter was then transferred to the Family Court. The interim Apprehended Domestic Violence Order was discharged at the time of the transfer.

17. Since July 2012 the child has attended the N School in Town A.

18. In August 2012, on the first day of the Less Adversarial Trial, the trial judge identified the issues as neglect, physical abuse in either household, exposure to the risk of sexual abuse, impact of the grandmothers’ conflict on the child, domestic violence at the maternal grandmother’s home, alcohol consumption in both grandparents’ homes and the ability of the parties to meet the child’s physical and emotional needs, as well as his school attendance, including multiple changes of school. The trial judge also discharged previous orders in relation to the child’s time with the paternal grandmother and made orders that he spend time with her in the school holidays and on each third and sixth weekend during school terms.

19. Throughout 2012, there continued to be significant conflict between the grandmothers relating to the child’s changeover and spending time with the paternal grandmother.

20. On 19 February 2013 an updated report of Dr C was ordered by consent. The report was prepared in May 2013 and released on 18 June 2013. The doctor’s recommendations were that the child should continue to live with the maternal grandmother. In the view of the doctor, Ms Dawson had heeded the recommendations he had previously made about not making allegations about the child’s care and involving authorities in investigations. The doctor felt that the paternal grandmother had continued to make allegations and involve the authorities. In light of this, the doctor recommended that there being no contact between the child and the paternal family for six months, other than telephone contact once a week and that if no further allegations were made following that six-month period, then monthly weekend contact could resume. The doctor maintained his recommendation that each of the respective grandparents receive counselling to assist their ongoing battle over the child.

21. Although the maternal grandmother ceased making complaints to the Department of Community Services given the history of the matter, she maintains that she is concerned about the paternal families’ care of the child. She says that on a number of occasions in 2013 the child was extremely resistant to attending changeover to spend time with his paternal family and that in May 2013 there was an incident at changeover when the father punched the mother in the face and grabbed her around the throat and that this occurred in the presence of the child who was highly distressed. Police records indicate that police officers observed the child to be crying and highly agitated. The maternal grandmother says that whenever school holidays were approaching in 2013 the child’s behaviour would deteriorate, and he was resistant to spending time with the paternal family.

22. In the course of proceedings before me on 19 September 2013 the paternal grandmother repeated her claims relating to the risk of harm to the child whilst in the maternal grandmother’s care and supported the Department of Community Services intervening, even if the child was taken into the care of the Minister as a result. At that stage the independent children’s lawyer also requested the court to invite the Department to intervene in the proceedings. On 19 September 2013, I made an order pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”), requesting the Department to intervene in the proceedings. The Department declined to intervene.

23. On Monday, 22 September 2013 the child was not returned to the maternal grandmother or returned to school for the commencement of the school term by the paternal grandmother after spending time with Ms Winton in the holidays. On 14 October 2013 the child was dropped off at a police station by the paternal family and police contacted the maternal grandmother and requested that she collect the child.

24. In October 2013, the police and Community Services investigated complaints by the paternal grandmother relating to Ms Dawson’s care of the child. Community Services and police documents indicate that neither agency had concerns about the child’s care at that time.

25. On 20 December 2013, I made orders suspending the paternal grandmother’s time with the child.

26. On 20 February 2014 the paternal grandmother filed a Notice of Discontinuance in the proceedings. She then indicated in an affidavit filed on the 7 April 2014 that she wished to ‘ withdraw the Notice of Discontinuance’  and repeated her complaints about the maternal grandmother’s care of the child.

27. The matter was fixed for hearing on 29 July 2014 and orders made for the filing of trial affidavits. The paternal grandmother, Ms Winton did not file any affidavits and on 14 May 2014 she filed a further Notice of Discontinuance in the proceedings.

28. The maternal grandmother lives in Town A in a three bedroom house. The child and his half-sister each have their own each room. The maternal grandmother is supported by extended family members in the area and the child’s mother also lives there. The child’s mother assists the maternal grandmother in looking after the child and the maternal grandmother describes the child’s mother as more like a big sister than a mother figure to the child. The child’s mother has the care of the child’s brother, J who is 13 and the two children are close and get along well. The maternal grandmother has been in a relationship with Mr K for many years, but they do not currently lived together as Mr K remains living in Sydney.

29. The child it is enrolled in the N School and is in year six. When the child was previously falling behind in his school work the maternal grandmother enrolled him in a homework centre once per week, which he still currently attends. There had previously been problems associated with the child’s attendance and behaviour at the time he was spending time with his paternal grandmother but there have been no behavioural problems or truancy this year.

30. Both of the child’s maternal and paternal families are aboriginal. His maternal family are part of the X tribe from the north west New South Wales area and the child spends time with many members of the extended maternal family on a regular basis. I am unaware of any further details concerning the child’s paternal family.

Preceding in the absence of the applicant, Ms Winton

1. These proceedings which were initiated by the paternal grandmother were fixed for hearing,  for three days commencing 29 July 2014. These dates were allocated administratively and the parties were notified by letter dated 11 April 2014. A readiness check was held on 10 July 2014, and although the parties were given leave to attend by telephone, the paternal grandmother did not attend.

2. As indicated, the paternal grandmother filed a Notice of Discontinuance on 20 February 2014. On 7 April 2014 she filed an affidavit sworn on 4 April 2014 purporting to withdraw her Notice of Discontinuance and pursue her application. The paternal grandmother then subsequently filed a second Notice of Discontinuance on 14 May 2014, that is after the hearing dates had been allocated.

3. Pursuant to Rule 10.11(3) discontinuance of a case by a party does not discontinue any other party’s case. The remaining participating party, Ms Dawson seeks that the court proceed to deal with the matter to finality in the absence of Ms Winton.

4. Rule 16.07 of the Rules provides that:

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2)If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

5. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1] and to the principles for the conduct of child-related proceedings set out in s 69ZN of the Act, in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of Ms Winton. The paternal grandmother is well aware that the matter has been listed for hearing today and has been given the opportunity to attend but has not done so. In light of the matter proceeding on an undefended basis any material filed by the paternal grandmother will not be read.

[1] [2014] FamCAFC 14

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met in various ways, including by:-

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential.

3. The principles underlying these objects include that (except when it is or would be contrary to a child’s best interests):

   ·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

   ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   I have also had regard to the other objects and principles not specifically referred to.

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

6. In this matter, when applying the primary and additional considerations to the orders that are sought, the Court must not treat those considerations which specifically relate to parents as if they must equally apply to a non-parent party, in this case the maternal and paternal grandmother. 

7. In Donnell & Dovey[2], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under s 60CC is also relevant to a non-parent, this should be addressed under s 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent.  Where such a factor is being considered by me as relevant to the child’s grandmothers, I will do so by application of s 60CC(3)(m).

[2] [2010] FamCAFC 15

Primary considerations

1. The primary considerations (under s 60CC(2)) 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. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   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”.

   [3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92`

   [4] (2007) Fam LR 518

   [5] [2006] FamCA 994

1. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

2. The Full Court said in McCall & Clark (supra) at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

3. The orders sought by the maternal grandmother, will provide for the child to continue to have a relationship with his mother as she lives near the child and has some involvement in his day-to-day life. Although the maternal grandmother describes the relationship between the child and his mother as more like a sibling relationship it does appear to be an important relationship for the child. The maternal grandmother filed an affidavit from the mother who says that she has a good relationship with the child and sees him almost every day. She says that she helps her mother in the care of the child from time to time and that the child at times stays with her and at other times she cares for him at her mother’s house. The mother has also accompanied the child at school excursions and describes attending a town cricket match on a Saturday with the child, her mother, and her other two children J and Y “as a family to watch the game’.

4. Unfortunately the orders proposed by the maternal grandmother do not provide for the maintenance of any relationship between the child and his father.

5. In Dr C’s first report of May 2009 he formed the view that the child had a close, loving relationship with his father However, the child’s father did not attend the second interview with Dr C. In his second report Dr C said that as the father has had a significant brain injury this may affect his overall emotional and behavioural controls and that any time the child spends with his father should be monitored by family members. Unfortunately, as the paternal grandmother has discontinued her application no proposal is set out to support the relationship between the child and his father. On the basis of past events there appears to be little positive benefit to be derived by the child in crafting orders to foster that relationship with his father when no other paternal family member is interested in playing a role in promoting that relationship in a safe way for the child.

6. The child had been exposed to physical and psychological harm from a very early age. His parents acknowledged that they were unable to care for him by placing him with the maternal grandmother when he was an infant. Despite the large number of complaints made over the years by the paternal family that the child has been exposed to neglect and abuse in the maternal grandmother’s home, none of the investigations carried out by agencies such as Community Services or police have substantiated these claims. Most recently, following its investigation in October 2013, the Department of Community Services was satisfied that the child was not at risk in the maternal grandmother’s care. Dr C also assessed the maternal grandmother as a “capable caring parent” in his report of May 2013.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

The child’s views

1. Dr C did not directly ask the child about his views in either of the reports but was of the opinion that the child’s behaviour indicated that he wanted to be with the maternal grandmother.

The nature of the relationship of the child with each of the parents and other significant persons

1. Dr C found that the maternal grandmother was the child’s primary attachment figure and said in both reports that the child had a close, loving relationship with her. The doctor felt that the child recognised his mother Ms B as a close family member, but did not relate to her like a mother figure, but more like an aunt-like figure.

2. In his first report in May 2009 Dr C assessed the relationship between the paternal grandmother and the child as a close and loving one but that it was a grandparent relationship and he did not show the same attachment type behaviour as he did with the maternal grandmother. In his second report Dr C had many criticisms of the paternal grandmother and in relation to their relationship he said that she didn’t appear to be very affectionate or closely attuned to the child emotionally.

3. In his first report the expert described the relationship between the child and his father as close and loving. However, the childe’s father did not attend at the second assessment in May 2013 and Dr C concluded that the child’s father was not playing a significant role in the child’s life.

Willingness and ability of each parent to facilitate and encourage a relationship with the other parent

1. These proceedings were commenced prior to June 2012, when the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent was a best interest consideration. However, this is not a case where this consideration applies in the sense that it is a “contest” between the grandparents rather than parents. The child’s parents have not played a role as his carer for the entirety of his life and the issue of the parents’ willingness and ability to facilitate the other parent’s relationship with the child does not arise.

The likely effect of any change in the child’s circumstances

1. The child’s circumstances will not change in the event that the orders sought by the maternal grandmother are made. The child has been cared for by his maternal grandmother for all of his life. The only change in circumstance is that the suspension of time with his paternal grandmother will be permanent. Ordinarily the cessation of a relationship with an important family member would be detrimental for any child. In this case, however, the evidence indicates that some behavioural difficulties that the child had been showing have settled since he has ceased spending time with his paternal family. Further, real concerns have been raised by Community Services about the risk of emotional abuse to the child arising from the repeated allegations of abuse raised by the paternal grandmother. Similarly, there have been concerns about the impact upon the child of the paternal grandmother retaining the child after she spent time with him and enrolling him in a new school under a different name at the beginning of 2012.

The practical difficulty or significant expense in spending time with and communicating with the other parent

1. This consideration does not arise as the matter is not a “contest” between two parents. There will be no practical difficulty or expense associated with the child seeing his mother, who is a significant figure in his life. The orders do not provide for the child to spend time with or communicate with his father.

The capacity of the child’s parents and others to provide for his needs

1. The child’s maternal grandmother’s capacity to provide for his needs is an important factor in this matter.

2. The two reports of Dr C and various investigations carried out by the Department of Community Services indicate that the child’s maternal grandmother has the capacity to meet his physical and educational needs. Dr C described the maternal grandmother as a “capable caring parent” in his both reports.

3. There had previously been concerns that the maternal grandmother did not understand the impact upon the child of allegations to various authorities of ill treatment, as she had also made regular complaints about the child’s care, resulting in a number of the investigations. Dr C was of the opinion, however, in his second report that the maternal grandmother had gained some insight into the effect of this ongoing conflict on the child and had heeded his recommendations in this regard.

4. Dr C said in his second report that he held major concerns about the paternal grandmother’s ability to provide substantial care for the child but was of the opinion that she probably still had a role in a limited capacity as a “contact parent”.

The child’s aboriginality

1. The child is of aboriginal heritage from both his paternal and maternal family. I am satisfied from the evidence contained in the maternal grandmother’s affidavit that she enjoys a deep connection to her aboriginal heritage and will ensure that the child will continue to enjoy his aboriginal identity and culture as part of her care of him.

Family violence

1. Although the paternal grandmother previously made serious allegations about the child being the victim of and exposed to family violence she has discontinued her application and there is no evidence to support these allegations.

The making of an order that would least likely lead to the institution of further proceedings

1. The child’s grandmothers have been locked in a battle over him, which has included three sets of parenting proceedings in the 11 years of his life. The allegations and counter-allegations have continued regardless of the circumstances. Many of the allegations have arisen out of circumstances where the paternal grandmother spends time with the child. Although it is an extreme form of order, in my view, an order which does not allow for the child to spend any time with his paternal grandmother may result in it being less likely for further proceedings to be instituted.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is s 61DA, which provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, in this case neither parent has ever sought and does not now seek to exercise parental responsibility for the child.

3. The presumption does not apply to other relatives and the only application before the court is for the maternal grandmother to have sole parental responsibility for the child. The maternal grandmother has exercised sole parental responsibility for the child since June 2005 and all of the evidence suggests that this has been in his best interests. Accordingly, the order of parental responsibility will be made as sought in the maternal grandmother’s application.

Conclusion

1. I have had regard to all of the factors in relation to the best interests of the the child, in particular the nature of his relationship with his maternal grandmother and the maternal grandmother’s capacity to meet his needs. Even though the order sought will not allow for a meaningful relationship between the child and his father, for the reasons given I am of the view that the orders sought by the maternal grandmother are in the child’s best interests.

2. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 September 2014.

Associate: 

Date:  5 September 2014