Worth and Price and Anor
[2016] FamCA 1015
•25 November 2016
FAMILY COURT OF AUSTRALIA
| WORTH & PRICE & ANOR | [2016] FamCA 1015 |
| FAMILY LAW – CHILDREN – Where second respondent is the paternal grandmother – Where the mother and father have failed to participate in the proceedings – Where the father is incarcerated – Where the mother has mental health issues – Where consideration of best interests principles as to the subject child – Where Order for the second respondent to have sole parental responsibility for the child – Order for the child to reside with the second respondent. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Aldridge & Keaton [2009] FamCAFC 229 Donnell & Dovey [2010] FamCAFC 15 Goode & Goode [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Potts & Bims [2007] FamCA 394 Valentine & Lacerra and Anor [2013] FamCAFC 53 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Worth |
| FIRST RESPONDENT: | Ms Price |
| SECOND RESPONDENT: | Ms Worth |
| INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid |
| FILE NUMBER: | PAC | 5419 | of | 2014 |
| DATE DELIVERED: | 25 November 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 10 October 2016 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | No appearance |
| FIRST RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
| SECOND RESPONDENT: | Ms Hawkes of Neil Jones Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr MacDiarmid of Mark MacDiarmid Family Law Specialist |
Orders
That the second respondent paternal grandmother Ms Worth have sole parental responsibility for the child B born … 2012.
That the child B born … 2012 live with the second respondent paternal grandmother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Price and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: PAC 5419 of 2014
| Mr Worth |
Applicant
And
| Ms Price |
First Respondent
And
| Ms Worth |
Second Respondent
REASONS FOR JUDGMENT
These are parenting proceedings concerning the child B born in 2012.
Context
The applicant father is aged 27. The first respondent mother is aged 24. The second respondent grandmother is aged 49.
The parents separated in July or August 2013.
The applicant father filed an urgent Initiating Application in this Court on 22 October 2014 seeking inter alia a recovery order for the return of the child to his care and orders that he have sole parental responsibility for the child and that the child live with him. Those orders were made.
A Response to the Initiating Application was filed on 29 October 2014 by the respondent mother seeking orders that child live with her and that the parents have equal shared parental responsibility.
The matter was transferred to the Federal Circuit Court on 30 October 2014.
At a directions hearing on 9 December 2014 the Court made consent orders that the child spend time with the mother on 27 and 28 December 2014.
On 24 February 2015 a Family Report was ordered.
At a Child Dispute Conference on 6 July 2015 the following agreement was reached between the mother and the father:
(1)That the child live with the father.
(2)That the child spend time with the mother as follows:
(a)From Monday 6 July 2015 to Monday 13 July 2015; then
(b)Every third week thereafter with changeovers on Sundays being the week of Sunday 26 July 2015 to Sunday 2 August 2015, Sunday 23 August 2015 to Sunday 30 August 2015 and so on.
(3)All changeovers are to occur at the C Rest Area located 40km south of D Town unless otherwise agreed.
(4)Or any other arrangements to which the parents mutually agree.
On 5 August 2015 the mother filed an Application in a Case seeking orders that she have sole parental responsibility, that the child live with her, that the child spend supervised time with the father, that the father undergo a chain of custody urine drug testing and hair follicle drug testing and that an ICL be appointed.
A Response to the mother’s Application in a Case was filed by the father on 12 August 2015.
Orders were made by Dunkley J in the Federal Circuit Court on 13 August 2015 that the child live with the mother, that an ICL be appointed, and that there be telephone communication between the father and the child at 5.45 pm on Mondays, Wednesdays and Saturdays.
Amended Orders on 10 September 2015 continued the Orders from 13 August 2015 that the child live with the mother and that the child have telephone contact with the father but restrained the mother from moving the child’s place of residence from F Town without the agreement of the ICL. The Amended Orders provided that the parents were to engage with a children’s contact centre in E Town to facilitate the child spending time with the father.
On 20 October 2015 the Second Respondent paternal grandmother filed an Application in a Case seeking orders that the paternal grandmother be joined to the proceedings as a party, that she be granted sole parental responsibility for the child, that the child live with her and that the child spend time with each parent as recommended by the ICL or under supervision for not less than four hours each month.
The paternal grandmother was joined as Second Respondent to the proceedings on 21 October 2015.
The matter was transferred to this Court on 20 November 2015.
Procedural fairness
On 20 November 2015 the solicitors for the applicant father were given leave to withdraw from proceedings.
On 8 December 2015 the parties and the child’s attendance at a Children and Parents Issues Assessment was ordered by the Registrar with appointments on the 29 February 2016.
On 2 February 2016 the solicitors for the first respondent mother filed a Notice of Ceasing to Act.
The paternal grandmother and the child attended the Children and Parents Issues Assessment interviews at G Town on 29 February 2016. Neither the father nor the mother engaged in the Assessment.
Neither parent engaged in the directions hearing held before Registrar Tran on 17 May 2016.
The matter was listed for a Less Adversarial Trial Continuation on 24 June 2016. Neither the father nor the mother appeared and orders were made as follows:
(1)The Second Respondent Paternal Grandmother [Ms Worth] have sole parental responsibility for the child [B] born on … 2012.
(2)The said child [B] live with the Second Respondent paternal grandmother.
(3)The matter is adjourned to Tuesday 19 July 2016 at 2.15 pm for a further Case Management hearing.
(4)In the absence of there being any appearance by or on behalf of the Applicant Father and First Respondent Mother on the adjourned date then the Court will give consideration to listing these proceedings for undefended hearing in the [G Town] sittings commencing on 7 November 2016.
(5)The Independent Children’s Lawyer notify the Applicant Father and First Respondent Mother of the orders made today by ordinary prepaid post and forward to them a sealed copy of the orders made today, with that letter reminding the Applicant and First Respondent that in the event there is no appearance by or on their behalf at 2.15 pm on 19 July 2016 that directions will in all probability be made for the proceedings to be listed for undefended hearing in the G Town sittings commencing 7 November 2016.
(6)The Independent Children’s Lawyer’s notification to the Applicant Father and First Respondent Mother in compliance with the previous order be by way of ordinary prepaid post to the Mother at [H Street, F Town] NSW … and the Father at [I Street, J Town] NSW ...
The orders reflected the circumstance that the child had been living with the second respondent for some time.
It was noted that day that it was the opinion of the Independent Children’s Lawyer that the matter could proceed to undefended hearing on the basis of the Child Responsive Program memorandum, a consolidated affidavit of the Second Respondent Paternal Grandmother and material available on subpoena to the Court.
The parents were informed by the ICL by letters dated 29 June 2016 of the above orders.
The matter was listed for further case management on 19 July 2016. Neither the mother nor the father made an appearance.
The matter was adjourned for undefended hearing on 10 October 2016. Neither the mother nor the father appeared on that day.
On 10 October 2016 the Court was satisfied that all appropriate attempts had been made to notify the father and the mother and that in the circumstances it was appropriate for the matter to proceed on an undefended basis.
The above orders were made on 10 October 2016 with reasons reserved. These are those reasons.
The paternal grandmother’s documents
The paternal grandmother relied on the following documents:
a)Outline of Case Document filed on 30 September 2016;
b)Response to Initiating Application filed on 23 September 2016;
c)Consolidated Affidavit of Ms Worth filed on 23 September 2016;
d)Affidavit of Mr K filed on 12 November 2015;
e)Affidavit of Ms L filed on 21 October 2015.
Evidence
The child currently lives with his paternal grandmother and has had no contact with the mother since February 2016 and no contact with the father since the father’s incarceration in August 2016.
Prior to the mother and the father separating in 2013, the child lived with both parents in G Town. The parents had a volatile relationship to which the child was exposed.
Following the separation of the parents, the father moved to J Town and the child remained with the mother in G Town.
Some weeks after separation the mother arranged for the father to come and collect the child and he and the child moved to J Town to live with the paternal grandmother, the paternal grandmother’s partner and their two children.
The father has alleged that the mother took the child to live with her in October 2014 when he arranged for her to spend time with the child in J Town. Subsequent to this, the father commenced the current proceedings on 21 October 2014.
The child was returned to the father and time with the mother was facilitated by the father as per consent orders from 9 December 2014. On 6 July 2015 the parents came to an agreement regarding the child at a Child Dispute Conference.
At the 29 July 2015 changeover, the mother alleges the father was drunk and accompanied by two other drunken men. The police were called and a provisional ADVO was taken out against the father.
The child was not returned to the father’s care and on the mother’s application Dunkley J on 13 August 2015 made orders that the child live with the mother and that the child have telephone contact with his father.
There are some concerns regarding the mother’s mental health. On 23 November 2015 a report was made to the Department of Family and Community Services of the mother slashing her wrists while the child and the mother’s daughter were in the house. Police attended the incident. The report indicates that the mother may have a history of depression.
The paternal grandmother asserts that the mother has trouble meeting the child’s needs and she contacted the paternal grandmother on 30 January 2016 asking her to collect the child when the mother “couldn’t handle him anymore”. The paternal grandmother drove to F Town to collect the child and he has lived with her in J Town since that date.
The paternal grandmother facilitated phone contact between the child and the mother in the few days after 30 January 2016 but has not heard from the mother or been able to contact her since then. The paternal grandmother facilitated day only contact between the child and the father until the father was incarcerated.
A Department of Family and Community Services Report from 25 February 2016 states that the mother has a history of neglecting the child. The report further states that the mother has disappeared and is no longer contactable but that there is reliable third party information that the mother is in a new relationship and has moved to the E Town area. The report indicates that the child has a severe speech delay and had missed two bookings with the speech pathologist at the time of the report.
The mother has not sought contact with the child or with the paternal grandmother since the child came into the paternal grandmother’s care on 30 January 2016.
The father was convicted of dangerous driving occasioning grievous bodily harm and was given a 15 month custodial sentence on 26 August 2016 and is currently incarcerated until November 2017.
The paternal grandmother seeks orders that the child live with her and that she have sole parental responsibility for the child.
The Independent Children’s Lawyer
The Independent Children’s Lawyer supports the orders sought by the second respondent paternal grandmother.
The ICL stated that both parents pose a significant risk to the child. The mother has serious mental health issues and has not complied with an order to engage with mental health services. The father is currently incarcerated.
The mother has two older children who were removed from her care and placed with their paternal grandmother. Close contact is maintained between the two older children’s paternal grandmother and the second respondent paternal grandmother and a relationship has been facilitated between the two older children and the child in question.
The ICL submitted that the paternal grandmother has prioritised her grandson over her son and that the paternal grandmother will facilitate the child’s relationship with the father in a protective way ensuring appropriate behaviour.
The ICL was of the view that the paternal grandmother is the best option for the child to engage with his Indigenous culture.
The Family Consultant Report
The child is not of an age or apparent developmental level where he could be meaningfully interviewed.
After observing the interaction between the grandmother and the child, the Family Consultant made the following, pertinent, observations:
20. … [Ms Worth] interacted with the child in a manner that was appropriate to and supportive of his development. [The child] appeared comfortable with and responsive to [Ms Worth].
23. In material filed in these proceedings since they commenced in October 2014 each party ([Mr Worth], [Ms Price] and [Ms Worth]) has raised significant concerns regarding the use of alcohol and or other drugs, the involvement in violence, the capacity to appropriately parent children and protect them from harm for the other parties in this matter. There currently appears to be little effective communication regarding the child between [Ms Price] and either [Ms Worth] or [Mr Worth]. It appears currently that communication between [Ms Worth] and [Mr Worth] is functional.
25. [The child] is a pre-school aged child with a history of disruptions to his care and a context of alleged concerns regarding the parenting capacity of each of his parents and his paternal grandmother. The impact on [the child] of these issues is unclear. At the time of writing it appeared to not be in dispute that [the child] live with [Ms Worth] (near [J Town]) and spend time with [Mr Worth] as agreed between he and [Ms Worth] and spend time and communicate with [Ms Price] as agreed between her and [Ms Worth].
26. If the Court has concerns regarding the current parenting arrangements for the child (living with [Ms Worth], spending daily time with [Mr Worth] and not spending time or communicating with [Ms Price]) then it may assist if Family and Community Services are invited to intervene in proceedings.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of the second respondent as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the second respondent by way of application of s 60CC(3)(m).
Parental Responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.
It is clear from the lack of engagement by the parents in these proceedings that the presumption will not apply. However, this matter involves a non-parent.
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …
The Full Court in Yamada & Cain [2013] FamCAFC 64 said:
19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.
…
21. It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …
…
25. In Donnell, the Court went on to say … [at [101] and [102]]:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. … (emphasis added)
As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
Finally, the Full Court in Yamada & Cain (supra) said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The lack of engagement in this matter from the parents, the mother’s lack of contact with the child since February 2016 and the father’s incarceration mean that it is not practical for there to be a meaningful relationship with either parent at the present time. There are risks in the future as to both parents engagement if any with the child as discussed above.
The paternal grandmother has become the primary carer for the child and there appears to be a strong relationship between the child and the paternal grandmother. It is in the child’s best interests to have a meaningful relationship with his paternal grandmother and remain in her primary care.
Section 60CC(2)(b) – need to protect
This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above the protection of the child is not facilitated by either parent. The paternal grandmother has demonstrated the capacity to protect the child and appropriately manage the child’s relationships with the father and mother should they seek to engage.
This consideration, which is given primacy, is supportive of the orders sought by the grandmother.
The additional consideration: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b) The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii) To spend time with the child; and
iii) To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f) The capacity of:
i) Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h) If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
iii) Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v) Any other relevant matter;
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; and
m) Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed above.
The views of the child cannot currently be determined due to the age and developmental level of the child, therefore orders will be made having regard to the best interests considerations.
The nature of the child’s relationship with the mother appears to be characterised by neglect and disruption. There is evidence from the paternal grandmother that before he was incarcerated the father had daily contact with the child and cared for the child to some extent. According to the Family Consultant Report, the paternal grandmother has a good relationship with the child and facilitates meaningful relationships between the child and his older half siblings and his uncles.
While the father appears to have taken the opportunity to engage prior to his conviction, his incarceration means he no longer has the capacity to make decisions about the child. The mother, since 30 January 2016, has not made contact with the child or the paternal grandmother and has failed to take the opportunity to make decisions about or communicate with the child.
The second respondent paternal grandmother’s proposed orders do not result in any change in circumstances for the child.
There appears to be a significant amount of practical difficulty associated with the child spending time with either parent. The father is incarcerated and if the mother is living at E Town this is a significant distance, some four or five hours, from J Town.
The father has no capacity to provide for the needs of the child while incarcerated. The history of neglect by the mother of the child and her disengagement from proceedings indicates that she has no capacity to provide for the needs of the child either. There is every indication that the paternal grandmother has the capacity to care for the child and has been doing so since January 2016.
All parties are Indigenous in this matter and the ICL has submitted and it is accepted that the paternal grandmother is the best person to facilitate the child’s engagement with his indigenous culture.
There may have been some violence between the parents to which the child was exposed when the child lived with both parents. It is accepted that the paternal grandmother has facilitated and will facilitate the child’s relationship with the father in a protective manner.
All of the above considerations are indicative of orders being made as sought by the grandmother and supported by the ICL.
Orders
Orders will be made as set out at the forefront of these reasons for judgment.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2016.
Associate:
Date: 24 November 2016
Key Legal Topics
Areas of Law
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Family Law
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