FAMILY COURT OF AUSTRALIA

Masters and anor & SPITIERI-MASTERS and anor	[2015] FamCA 451	

FAMILY LAW – CHILDREN – Final Orders – undefended basis – where mother residing in Japan with infant child of later relationship – where mother’s circumstances previously volatile and currently unknown – where mother now no longer wishes to participate in proceedings – where father has not participated in proceedings – where maternal grandparents have been primary carer for balance of young child’s life – best interests of the child – reasonably practicable - where orders sought by maternal grandparents would protect the child from harm and provide stability – orders made for maternal grandparents to have equal shared parental responsibility – mother to have limited communication with child.	

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA	

MRR v GR (2010) 240 CLR 461	

APPLICANTS:	Ms Masters
& Mr Spitieri	

RESPONDENTS:	Ms Spitieri-Masters & Mr Waite

INTERVENOR:		

Independent children’s lawyer:		

FILE NUMBER:	ADC 	1324		of	2014	

DATE DELIVERED:	4 June 2015	

PLACE DELIVERED:	Adelaide	

PLACE HEARD:	Adelaide	

JUDGMENT OF:	Berman J	

HEARING DATE:	4 June 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Litigant In Person	

SOLICITOR FOR THE APPLICANT:		

COUNSEL FOR THE RESPONDENTS:	Ms Parker as a courtesy to the Court and given  leave to withdraw	

SOLICiTOR FOR THE RESPONDENTS:	Georgina Parker Lawyers	

		

Orders
1.	That the maternal grandparents Ms Masters and Mr Spitieri do have equal share parental responsibility for the child B born … 2011.

2.	The child shall live with the maternal grandparents.

3.	That the parents Ms Spitieri-Masters and Mr Waite are at liberty to send to the child letters and/or gifts on special occasions such as Easter, Christmas and the child’s birthday.

4.	That the maternal grandparents will facilitate the said child communicating with the parents by skype or telephone at any time that the child shall reasonably request to do so and in the case of the mother, no less frequently than once a month with the mother to initiate such contact at a time to be agreed with the maternal grandparents.

5.	To the extent that there shall be presents, gifts or other communication whether in writing or by electronic means, the maternal grandparents shall be able to vet and if necessary veto such presents, gifts or communication if they consider that the proposed gift or communication is unacceptable or not in the interests of the child NOTING that any such veto shall not be capriciously exercised.

6.	That the parents and each of them are restrained and an injunction is granted restraining them from removing the said child from:-

a.	the care of the maternal grandparents;

b.	from any place where the child may reside from time to time;

c.	from any childcare, educational or other medical facility the child is attending from time to time;

d.	from taking the child out of the State of South Australia and also the Commonwealth of Australia.

7.	The Australian Federal Police be directed to place name of the child B born … 2011on the Airport Watch List and maintain the child’s name on that List but unless required by the Australian Federal Police that the variation or removal of the child’s name from the Watch List can only be achieved by Court Order, the maternal grandparents together by their joint consent in writing can request that the child’s name be withdrawn from the Airport Watch List.

8.	That all proceedings be removed from the Pending List of Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters and Anor & Spitieri-Masters and Anor 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 adelaide	

FILE NUMBER: ADC 1324 OF 2014

Ms Masters and Mr Spitieri	
Applicants

And

Ms Spitieri-Masters and Mr Waite	
Respondents

EX TEMPORE REASONS FOR JUDGMENT
1.	This matter comes before me today by a first day trial list with the intention of the matter being listed for hearing.  The proceedings relate to B, born in 2011.  The child is presently three years of age.  The applicants, Ms Masters and Mr Spitieri, are the applicant maternal grandparents of the child.  Ms Spitieri-Masters is the child’s mother and Mr Waite is his father.  The proceedings were commenced by the applicant grandparents by an Initiating Application on 10 April 2014.  In that application, the applicants sought that they have equal shared parental responsibility in respect of the child and that the first and second respondents spend time and communicate with the said child on such terms and conditions as may be agreed between them, that is the mother and the father, and the maternal grandparents.
2.	The child has lived with the maternal grandparents since about late 2012, when the mother returned to Adelaide following a breakdown of what might be described as a turbulent relationship with the father of the child.  Whilst it is not necessarily germane to the matters that need to be considered at this point, one of the allegations, but only one, and, in any event, a reasonable indicator of the level of dysfunction that existed between the mother and the father, was that the parties had a physical dispute in which a samurai sword was used.  The mother left the child in the sole care of the grandparents when she relocated to Japan in January 2013.  Up until today, it was understood that the mother lives in Japan and continued to do so with her current partner and a child of that relationship born in 2014.  
3.	Orders were made by Judge Baumann of the Federal Circuit Court on 14 April 2014, which provided for the child to live with the maternal grandparents and spend time with the mother and the father as agreed.  Because of the uncertainty of the circumstances of the mother and the father, but in particular that at least at some point in the early parts of the proceedings the mother’s position was that she would wish the child to live with her but outside of the Commonwealth of Australia and, in particular in Japan, a watchlist order was put in place and remains in force.  A further order was made restraining the parents from removing the child from any medical or childcare facility, the care of the paternal grandparents or in any location where the child may be residing form time to time.
4.	That order, with some amelioration in the sense of the maternal applicant grandparents agreeing to allow communication between the parents and the child forms the basis of the Amended Initiating Application filed 2 May 2014.  In reality, the amended document is perhaps an update of the initial initiating application but it does not change the basic tenor of the orders sought by the applicants, namely that the child reside predominantly and primarily in their care and that any time that is spent with the mother or the father is really only to occur by agreement other than in circumstances where it is non-physical communication.  
5.	The mother’s involvement, as I have indicated, is via her Response filed on 1 May 2014 and that simply seeks that the child be returned to live with her in Japan.  There was an initial flurry of activity in the early stages of these proceedings and that is best evidenced by each of the mother and the applicants filing notices as to risk.  In terms of chronological order, the notice of risk filed upon the instructions of the applicant alleges, and I quote:
The child [B], aged two and a half, is at risk of being removed from his primary caregivers of the last 14 months, the applicants, by his biological mother, the first respondent, who has not had contact with him for 14 months.  And, furthermore, she has threatened to forcibly remove him from their care and take him to Japan where he does not have any other connections.  This would have serious psychological, if not physical, consequences for the child.
6.	Depressingly, there are also allegations of family violence.  Not as between the applicants and the respondents but as between the respondents, namely, where there was physical violence between mother and father which may have occurred in the presence of the child.  For her part, the mother filed a notice of child abuse, family violence or risk on 29 May 2014.  That document is somewhat more expansive and it relates to the observations of the mother on the morning of 15 May 2014, but not limited to that date, whereby the applicant grandmother was alleged to have been still in bed at 11 am and the child was left, according to the mother, unattended, distressed and had soiled himself.
7.	There are then a number of allegations, 1 through to 11, which set out the allegations that the mother makes in respect of the care of the child by the maternal grandparents, some being benign, such as an allegation that the child is fed food that is canned or pre‑packaged and may not have been, at that stage, suitable for the age of the child but also, more significantly, where it is alleged that the applicant grandparents share alcohol with the said child and have a history of drug use and neglect.  The allegations are florid but they nonetheless set out, at least as far as the mother would have the court understand, significant and serious concerns as to the status of this child in the care of the maternal grandparents.  
8.	It is not disputed by the mother and it’s certainly not part of her case, at least as expressed on the limited occasions that she has engaged in the process, as to the circumstances by which the child came to be in the care of the grandparents.  What the mother seems to complain about, or at least as evidenced in some earlier affidavit material and the notice of alleged risk of abuse, is not how the child came into the grandparent’s care but the suggestion, the allegation or the assertion that the child is not being properly cared for in terms of supervision, medical health and potentially other detrimental conduct on behalf of the grandparents.
9.	If that were to be the mother’s true and genuine presentation, it would indeed be worrying, but it would also be reasonable to consider why, in the face of allegations, genuinely held by the mother, that she has taken no steps to remedy the obvious issue, namely the continued care of the child by his grandparents.  There is nothing to suggest that the mother was not able to attend Australia.  Nothing was put by the mother in court during the interim proceedings, which would assist in understanding why the mother would appear to be content to leave the child in the care of her parents in circumstances where she makes serious and substantial allegations, which if true and correct, could not be considered in the child’s best interest.  
10.	The lack of engagement by the mother, however, has been manifest.  She has not appeared today and her involvement has been scant.  Obviously, there were concerns today as to a proper way forward.  A number of options would have presented themselves to the court.  The first, and perhaps most obvious, is that the matter could have been further adjourned with an order putting the mother on notice that if she did not attend and/or engage by the attendance of legal representatives on her behalf on the adjourned date, the court would give consideration to whether the matter should proceed by the striking out of the mother’s response.  
11.	Initially, that was a way forward that had some attraction.  The grandmother, however, today, tenders her affidavit which sets out what appear to be communication between the mother and her daughter.  Some of it provides some assistance in terms of the current circumstances in which the mother lives in Japan.  Some of it provides assistance in terms of the mother’s attitude both to the child but also in respect of the fate of these proceedings.  
12.	I am satisfied from the messages forwarded from the mother to the grandmother that the circumstances in which the mother finds herself in Japan is poor, unsatisfactory and certainly such that the court would be reticent about readily placing the child in her care.  The documents annexed to the affidavit indicates that she no longer is in a relationship with the father of her child in Japan, that their relationship was dysfunctional and the language is frankly offensive, not of assistance but perhaps more relevantly, unlikely to be child focused.  
13.	The suggestion of this child being forwarded or sent to live with the mother in Japan would be to send this child to an uncertain fate.  The mother has spent little or no time with this child now for a number of years and it is doubtful whether this child would necessarily have any recollection at all of his mother;  I suspect not.  That is, in itself, a tragedy but that is not the fault of the applicant parties but rather is a matter that the mother, for reasons best known to herself, has chosen not to remedy.  It could be remedied simply by the mother returning to Australia in order to seek either orders by consent or an arrangement by consent that would see her reunited with her son.  For reasons that are only known to her, she chooses not to do so.  
14.	One of the messages, and it is indeed one of many, is a message of 18 March 2015 where the grandmother seeks to contact her daughter.  The response from her daughter is as follows:
Can’t I have nervous breakdown in peace?  You people never fucking give up.  If it is not one goddamned thing, it’s another.  Fuck you.  I wouldn’t be going through this shit if you didn’t make me Skype my own child.  I wish I only had to Skype with you when I was a kid.  Maybe my life wouldn’t have been such a mess, bitch. 
15.	On 1 June 2015 the mother’s response in relation to, yet again, another inquiry of the grandmother is as follows:
Do whatever you want.  I don't want kids.  You and [Ms C] and [Ms D] and everyone can go to hell.  I’m done with family.  Clearly, I was never meant to have one.  Goodbye.  
16.	There are other messages but the clear tenor of the document taken together is that the mother does not wish to participate in the proceedings, does not wish to be heard and necessarily, therefore, is not opposing the orders that her mother seeks in respect of the child.  To the extent that it is necessary to do so, assistance is given from a consideration of the following affidavit material:  affidavit of Ms Masters filed 10 April 2014;  affidavit of Mr Spitieri and Ms Masters filed 6 June 2014;  affidavit of Ms D Spitieri-Masters filed 6 June 2014;  affidavit of Ms Masters filed 6 June 2014;  and affidavit of Ms Masters filed 4 June 2015.  Those affidavits are read by me and form the evidence in terms of the basis upon which the maternal grandparents seek to resolve the matter.
17.	It is my view, given the complete lack of engagement by the mother and the father and the clear intention that they do not wish to be heard, there is no good purpose in the proceedings being further adjourned.  
18.	I consider it appropriate to explore whether I can be satisfied under Part VII of the Act to make orders that are either sought by the grandparents or are similar in terms of their focus.  Part VII of the Family Law Act 1975 (Cth) sets out the legal principles which govern parenting proceedings.  The court is required under s 60CA to have regard to the best interests of the child as the paramount consideration.  The objects of Part VII that ensure the best interests of the child are set out in s 60B(1):-
(a)	Ensure 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;  
(b)	protecting children from physical or psychological harm from being subjected to, 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.
19.	The determination of the best interests of children are properly considered pursuant to s 60CC of the Act, namely the primary considerations are set out in s 60CC(2) and the additional considerations are set out in s 60CC(3).  Section 60CC(2A) provides that in respect of the considerations in s 60CC(2), the court shall give greater weight to the considerations in paragraph (2)(b).  That is, there is an emphasis and a priority that must be given to allegations that a child is at risk of neglect, abuse or family violence.  If the court is able to make that finding, then those issues and the consequences of such a finding must take priority and preference over the presumption that it is in the best interests of a child to have a meaningful relationship with his or her parents.  It is clearly a matter that resonates with issues of child protection.
20.	The application of s 61DA of the Act provides that:
When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  That presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:  (a) abuse of the child or another child who, at the time, was a member of the parent’s family;  or (b) family violence.
21.	The presumption can also be rebutted if I am satisfied that after a consideration of the factors in respect of s 60CC, it would not be in the best interests of the child for their parents to have equal shared parental responsibility.  Section 60CC is to be utilised in order to determine the question of what is in the best interests of the child and the issues of whether an order for equal time or substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).  There will, from time to time, be some overlap in terms of assessing whether a proposed order was reasonably practicable and, in that regard, I have given proper consideration to the decision of the High Court in MRR v GR (2010) 240 CLR 461.  
22.	In this case there is no independent children’s lawyer.  The grandparents seek an order of equal shared parental responsibility as between themselves but not as between themselves and their daughter and/or the father, Mr Waite. It seems to me there is ample evidence for me to consider that the presumption of equal shared parental responsibility as between, certainly, the mother and the father but also as between the mother and the father and the maternal grandparents should be rebutted.  
23.	There is little or no effective communication between the parties.  The child has had no meaningful relationship or contact with his parents for now a long period of time and, in any event, wherever the whereabouts of Mr Waite may be, the mother currently continues to reside in Japan in circumstances that are at best uncertain but potentially, at worst, a hazardous environment to the child.
24.	I need to consider, however, the issues of what orders I should make and whether, as a primary consideration, the extent of the weight that I give to the meaningful relationship that should exist between a child and his or her parents.  Of course, to some extent that does not apply in this case because the maternal grandparents are not the child’s parents, they are the grandparents.  It does exist, for the purposes of any orders that might be made as between the mother and the father, but there is no application by Mr Waite and the response filed by the mother at the commencement of these proceedings is a bridge too far.  That application, which is part of the final orders that I intend to make, will be dismissed.
25.	A meaningful relationship is desirable but the need to protect this child from harm is more acute.  At present, I am satisfied, and completely so, that this child is being properly cared for and that his needs, both physical, emotional and intellectual, are met by his grandparents.  The child is lucky that his grandparents have been prepared to take on the very considerable obligation of caring for such a young child for the period that has now passed.  I could not be satisfied that if the child resided or spent significant time with the mother, other than in the circumstances of strict supervision, that the child may not, indeed, come to harm, not necessarily at the hands of the mother but that neglect, as raised in the annexures to the affidavit of 2 June 2015 is a real and live position.  The child is too young to express any view.  I am satisfied that the child has a proper relationship under s 60CC(3)(b)(ii), namely, with “other persons” being the child’s grandparents.  That relationship is a close, strong and loving one and the child, frankly, has not known any other relationship than that which he has with his grandparents, and possibly also his aunt.  I say that because there is an affidavit from Ms D Spitieri-Masters of 6 June 2014 which I bring to account and place some significant weight upon.
26.	The mother has had every opportunity to participate in the child’s life, both in terms of making decisions about major long-term issues but also spending time with and indeed even communicating with the child.  The mother has not taken up those opportunities.  I am satisfied that they have been open and available to her and it is a matter for her that she has not done so.  It is not a matter where a party is obliged to do something.  It is a matter where the Court’s obligation – and indeed, more importantly, the obligation upon the applicant in this case – is to give the mother the opportunity to participate.  If she chooses not to do so – and similarly, the father – then that is a matter for them, but that cannot be considered as a criticism of the grandparents.
27.	I consider that the mother and the father have not fulfilled their obligations to maintain the child.  Subparagraph (ca) relates to parental fulfilment of obligations and is not a section that relates to the maternal grandparents.  The child has been separated from his or her parents for a very long time.  The current orders will not, frankly, change anything;  they will simply concrete the current living arrangements.  There will be a seamless transition.  The child’s life today will be no different tomorrow as a result of the orders that are being sought.
28.	There is no likelihood at this stage of there being any agreement, understanding, preparedness on the part of the paternal – maternal grandparents to facilitate the child travelling to Japan in order to spend time with the mother.  That issue is raised because of an order that the grandparents seek, which is by way of an airport watch order.  
29.	I can understand that the grandmother, giving that matter some thought, had determined that in all the circumstances it would be better for that watch order to remain in place rather than it be discharged and potentially risk the child being taken by the mother or the father out of the Commonwealth of Australia.  I do not know with what likelihood or possibility or potential that fear can have any substance or foundation but I accept it is genuinely held by the grandmother.  It just may not necessarily be a fear that is able to be substantiated or supported on the balance of probabilities.
30.	The capacity of the grandparents to care for the child is established and I am satisfied that their care encompasses both emotional and intellectual needs.  This is not a case where there is significant issues relating to the child’s sex, lifestyle or background and I do not consider necessarily that there are cultural or other issues that are to be brought to account.  In any event, that particular section – namely, subsection (g) – is a matter that, again, only involves the parents and not other parties, that being the category in which the maternal grandparents find themselves.
31.	There may be issues of family violence but they are not issues within the grandparents’ home.  They may be issues in the mother’s home or in the father’s home or historically when the parties were together for whatever time that was.  I do not consider that there are any issues relating to family violence that I need to bring to account other than to highlight, again, that I am uncertain as to the circumstances in which the mother lives.  But taking into account even a modest consideration of the annexures to the affidavit of the grandmother of 2 June 2015, there is some real and genuine concern that the mother may not be able to provide a protective environment for the child.  In reality, unless the mother was living back in Australia it is unlikely that any time will be time spent between the child and the mother.
32.	To the extent that there are other issues that need to be considered, that can be achieved under “any other fact or circumstance”, being subparagraph (m) of s 60CC(3), but I think in covering the parts of s 60CC that are of assistance all things that need to be said have been said.  Finally, though, I consider that in making the orders that I propose to make today, that will have the very real and practical effect of completing and concluding the proceedings and that can only be a relief to, certainly, the applicant grandparents but also it may well have the effect of being less likely to lead to the institution of further proceedings.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 June 2015.

Associate:  

Date:  16 June 2015