Beaudin & Elbaum
[2020] FCCA 3362
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Beaudin & Elbaum [2020] FCCA 3362
File number(s): BRC 10826 of 2018 Judgment of: JUDGE CASSIDY Date of judgment: 10 December 2020 Catchwords: FAMILY LAW – parenting – default judgment – where mother and maternal grandmother failed to appear at the final hearing – where children have not spent any time with the father since July 2020 – where father says he has no capacity to be a resident parent – where mother unlikely to facilitate time – where there are serious concerns in relation to the mother and her partner. Legislation: Family Law Act 1975 (Cth) s 60CC. Number of paragraphs: 109 Date of last submission/s: 27 October 2020 Date of hearing: 27 October 2020 Place: Brisbane Counsel for the Applicant: Ms Harris Solicitor for the Applicant: Neilson Stanton & Parkinson Solicitor for the First Respondent: No Appearance Solicitor for the Second Respondent: No Appearance Solicitor for the Independent Children's Lawyer: Swanwick Murray Roche Lawyers Counsel for the Independent Children's Lawyer: Ms Murphy ORDERS
BRC 10826 of 2018 BETWEEN: MR BEAUDIN
Applicant
AND: MS ELBAUM
First Respondent
MS MITCHELL
Second Respondent
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS ON A FINAL BASIS:
1.All previous parenting orders and plans be discharged.
2.That the parents and the Maternal Grandmother have equal shared parental responsibility for the children X born in 2016 and Y born in 2017 (collectively hereinafter “the children”).
3.That the children live with Ms Mitchell (aka Ms Mitchell) (“Maternal Grandmother”).
Children’s time with the father
4.That the children spend time and communicate with the Father at all reasonable times as maybe agreed between the parties and failing agreement as follows:-
(a)Commencing on the first weekend after the making of these orders, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday;
(b)For one half of each of the end of Term 1, end of Term 2, and end of Term 3 school holiday periods regardless of whether the children are in attendance at school being the first half in even numbered calendar years and the second half in odd numbered calendar years unless otherwise agreed in writing.
(c)For alternate one week blocks during the Christmas School holiday period in each year regardless of whether the children are in attendance at school with the children to spend time with the father for the week that includes Christmas Day in 2020 and in all even numbered calendar years thereafter and with the children to spend time with the mother in the week that includes Christmas Day in 2021 and in all odd numbered calendar years thereafter;
(d)By telephone at all reasonable times but at least each Tuesday and Thursday between 6.00pm and 6.30pm with the father to initiate the call to the children and the maternal grandmother to ensure the children are available to receive the call.
(e)For the purpose of school holiday time the following shall apply:-
(i)The first day of the school holiday period is the Saturday immediately following the last gazetted day of the school term;
(ii)The last day of the school holiday period is the Saturday immediately before the first gazetted day of the school term;
(iii)Handovers in the middle of same shall occur on the middle Saturday of the school holiday period;
(f)For the avoidance of doubt, the children’s alternate weekend time with their father pursuant to clause 4(a) herein shall be suspended during school holidays and shall resume:
(i)If the Father has the first half of a school period, then his time each alternate weekend will re-commence on the first weekend after the first day of school.
(ii)If the Father has the second half of a school holiday period, then his time each alternate weekend will recommence on the second weekend after the first day of school.
Children’s time with the mother
5.The children’s time with the mother shall be supervised by the maternal grandmother.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth) an injunction issue restraining any party to these proceedings from bringing the children into unsupervised contact with the mother’s current partner, Mr C.
Special occasions
7.The children shall spend time with the maternal family on the weekend on which Mother’s Day falls each year. For the avoidance of doubt, should the weekend on which Mother’s Day falls be a weekend the children would usually spend with the father, then the children’s time with him shall be suspended that weekend and the children shall remain in the care of their maternal grandmother.
8.The children shall spend time with the father on the weekend on which Father’s Day falls from 5.00pm on Friday to 5.00pm on Sunday. For the avoidance of doubt, should the weekend on which Father’s Day falls be a weekend the children would otherwise be in the care of the maternal grandmother, they shall nevertheless spend time with the father.
9.That the party who does not have the care of the children on either of the children’s birthday shall spend time with both children on the children’s birthday:-
(a)If that party is in the same town as the children:
(i)If it is a school day then from after school until 6:30pm; and
(ii)If it is a non-school day from 1:00pm to 6:00pm.
(b)If that party is not in the same town as the children:
(i)By telephone, FaceTime, Skype or other electronic or video communication from 6.00pm with the party who does not have the care of the children to initiate the call.
10.Should the party who does not have the care of the children on Christmas Day be in the same town as the children the parent who does not have the care of the children on Christmas Day shall spend time with the children from 2:00pm Christmas Day until 5:00pm Boxing Day.
11.Unless otherwise agreed changeovers shall take place at Town D.
12.Each party is at liberty to have another person well known to the children attend changeover on their behalf.
13.That within fourteen (14) days of this Order the Mother sign all documents necessary to have the Father’s name included on the birth registration for each of the children.
14.The father, maternal grandmother and mother are to keep each other informed at all times of their residential address, home telephone number and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change.
15.The maternal grandmother, mother and father shall keep each other informed of any medical emergency or major illness involving the children that occurs during periods when the children are living with or spending time with each of them.
16.This Order shall act as an authority for any school that the children may attend from time to time to provide to each of the parents and the maternal grandmother all information relating to the children’s progress at school, including school reports, newsletters and photographs, at the requesting person’s cost (if there is such cost).
17.This Order shall act as an authority to the children’s medical and educational providers to discuss with either parent the care, welfare, treatment and development of either child.
18.That the process to be used for resolving future disputes about the children or the terms of this Order shall be as follows:-
(a)A Family Dispute Resolution Practitioner shall be appointed by Relationships Australia;
(b)The parents shall consult with the Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children; and
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
19.That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take steps referred to in the preceding clause.
20.The mother shall within four weeks of the date of these Orders arrange for each of the children to have a comprehensive medical review with the children’s medical practitioner and provide to the father a full report regarding the outcome of the medical review. Further the mother shall ensure that any medical recommendations made as a result of the medical review are undertaken as soon as reasonably practicable and that the father is kept informed regarding any steps taken in this regard.
21.The mother shall within four weeks of the date of these Orders arrange for the children to engage in counselling and for the children to continue such counselling as recommended by the therapist. The mother shall advise the father of the name and contact details of the counsellor and the counsellor is authorised by the Orders to provide details regarding the dates of the children’s attendance upon the counsellor and details regarding recommended further counselling to the father.
22.These Orders authorise any medical practitioner, specialist, psychologist, psychiatrist or other health professional attended by the children to provide to each of the parents at the expense of the requesting parent such information as they may require including but not limited to copies of medical reports. Both parents are authorized to discuss the children’s treatment with the children’s medical practitioner, specialist, psychologist, psychiatrist or other health professional.
23.That the Independent Children’s Lawyer be discharged save for any appeal.
IT IS NOTED:
1.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
It is requested that the Department of Child Safety, Youth and Women review the arrangement for the children in light of the concerns raised in this judgment. Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Beaudin & Elbaum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Cassidy
INTRODUCTION
This is a matter where I intend to proceed to hear and determine the matter in default of the appearance of the mother and maternal grandmother. The matter involves two young children Y who was born in 2017 (herein ‘Y’) and X who was born in 2016 (herein ‘X’ or collectively with Y ‘the children’).
It is an unusual matter in that I would not be comfortable making orders in default of the appearance in favour of the father for the children to reside with him. His current living circumstances preclude him from pursuing a residence application. I make no criticism of him for this decision he has reached.
However, the consequence of this has left me potentially leaving the children in their grandmother’s care in circumstances where I consider there are risks in that household. These risks are discussed in this judgment.
The father and the Independent Children’s Lawyer are at one in relation to the orders they seek. However because of the findings I have made in this judgment I consider it is appropriate for the Department of Child Safety, Youth and Women (’the Department’) to give consideration to taking these children into their care.
The Notice to the Respondents of the Hearing and the Defaults of the Respondents
The background below sets out the defaults of the mother and the maternal grandmother to both appear and to file material.
The letter the Independent Children’s Lawyer sent to the mother and the maternal grandmother (exhibit 1) satisfies me that the mother and the maternal grandmother had notice of the hearing and the orders that might be made in default of their appearance.
I note the father has not spent any time with the children since July 2020 in circumstances where there is a week about order in place for time with the father.
However, in circumstances where the father is unable to take responsibility for the residence of the children I am left with little choice but to make the orders sought by the father and the Independent Children’s Lawyer.
I accept the orders will not ensure the father spends time with the children. However, while the orders are current they are able to be enforced. It was on this basis the father and the Independent Children’s Lawyer sought that the orders be made in default of the appearance of the mother and maternal grandmother
Independent Children’s Lawyer and Father’s Proposal
The orders sought by the Independent Children’s Lawyer and the father were tendered by leave at the hearing.
They provide for equal shared parental responsibility for the mother, father and maternal grandmother. The fathers’ time is alternate weekends and half of all school holidays with the Christmas holidays being week about. There is also an order for telephone contact each Tuesday and Thursday.
The order provides that the mother’s time with the children is to be supervised by the maternal grandmother.
There are a number of specific issues orders that would not be controversial.
Orders sought by the Father and Neither Consented to Nor Opposed by the Independent Children’s Lawyer
The father seeks an order that the mother arrange a comprehensive medical review for the children, that she arrange for the children to attend counselling and that the order acts as an authority for both parents to obtain medical information from treating practitioners.
BACKGROUND
The father was born in 1990, he is 30 years of age.
The mother was born in 1987, she is 33 years of age.
The maternal grandmother was born in 1958 and she is 62 years old.
The mother and the father met through mutual friends while they were living in City E and commenced cohabitation in early 2015.
Shortly thereafter, in 2015 the father served a term of imprisonment for a period of three months on break and enter offences.
On 27 May 2015 the maternal grandmother filed an application for Domestic Violence Order naming the mother as the Respondent.
Upon the father’s release from prison the parties lived with the maternal grandmother in City F.
On 16 December 2015 a Domestic Violence Order was made naming the father as the Respondent and the mother as the Aggrieved. A reciprocal order was made on this date naming the mother as the Respondent and the father as the Aggrieved.
In early 2016 the parties returned to live in City E. The child X was born in 2016.
Following the birth of X the mother and the father relocated to City F.
On 30 March 2016 the Department recorded that the mother had attended hospital after falling and losing consciousness following the father chasing her and she tripped over. The Department’s notes record that the child and both parents were “filthy” and the child was described as appearing “pale” and had “cradle cap all over the scalp”, the child’s nappy area was “red raw” and there was a build-up of “cheesy crud in the groin region”. The notes further record that “both parents… unable to care for the child. The parents were believed to be affected by substance.”
On 29 June 2016 both the mother and the father were charged with breaches of Domestic Violence Orders.
On 18 October 2016 the Department recorded further concerns in relation to the children and the mother noting that the mother presented as “skinny, dirty, with dirty clothes, hair unwashed and no shoes”. The note taker, Ms G also noted that she “believes she is using ICE again” and that she “believes that Mr Beaudin is still using ICE and has in the past manufactured it”.
On 26 October 2016 the father was interviewed by the Department in the presence of his mother. The Department notes record that the father had stopped using drugs and “Ms Elbaum’s (X’s (sic) mother) dropped X (sic) off with Mr Beaudin and left – she’s been gone a while”. The notes further record that when the mother dropped X off at the father’s home the mother stated she has “had enough”.
On 28 October 2016 the Department conducted an interview with the maternal grandmother who expressed a concern that “I have got friends that live next door and just down the road. They have been telling me that there has been lots of yelling and screaming coming from the house.” The notes by the Department further record that the maternal grandmother believes the mother was being held hostage at the father’s house and that he would not let her appear when third parties are present at the house.
On 1 February 2017 the father was charged with a further breach of Domestic Violence Order which involved the father calling the mother a “fucking dog” and taking X with him as he left on foot.
On 23 February 2017 notes by the Department record concerns that the father had “punched Ms Elbaum’s two front teeth out.”
Y was born in 2017.
On 29 August 2017 the Department notes indicate concerns in relation to the mother that during her pregnancy (with Y) she had no antenatal care, that she appeared “scattered” and that she had been “smoking cigarettes and marijuana.”
In or around October 2017 the father was sentenced to a term of imprisonment in relation to a breach of Domestic Violence Order.
On 13 October 2017 the father was charged with possess utensils or pipes and unlawful possession of suspected stolen property following the execution of a police search warrant.
On 28 November 2017 the Department notes record concerns that following the father being incarcerated the mother has “disappeared with the children”, that she appeared “out of it”, that she doesn’t associate with “favourable people” and that “Ms Elbaum is using drugs again and is making trips to the Region H to deal drugs”.
In late 2017 the parties separated on a final basis.
In 2018 the father was interviewed by the Department while in prison.
In 2018 the father was released from prison.
On 16 May 2018 there was a domestic violence incident between the mother and the maternal aunt which involved the maternal aunt slapping the mother on the face and reporting concerns for the mother’s mental health and that she has been a drug user and stays in her room all day not cleaning herself or washing.
On 2 July 2018 the mother was convicted for breach of Domestic Violence Order.
These proceedings were commenced by the father on 20 September 2018 naming the mother, maternal grandmother and maternal aunt as the first, second and third respondents respectively.
On 23 October 2018 the Department recorded further concerns that the children had been neglected by the mother and that they were at risk of neglect and exposure to illicit drugs if the children were in the care of the mother.
The matter first came before the Court on 14 November 2018 before Judge Turner. On that date the mother had a duty lawyer appear on her behalf and there was no appearance by the maternal grandmother or the maternal aunt. Her Honour made orders on that occasion requiring each of the Respondents to file and serve their response material by 12 December 2018.
On 7 December 2018, in accordance with the direction of Judge Turner, the mother filed her Response material.
On 25 March 2019 the matter came before me. On this occasion the mother was represented and there was again no appearance by the maternal grandmother or the maternal aunt and Orders were made for, among other things, equal shared parental responsibility as between the mother and the father and that the father spend supervised time with the children at a contact centre. I also made orders for the appointment of an Independent Children’s Lawyer.
On 14 May 2019 the police made an application for Domestic Violence Order naming the maternal grandmother as the aggrieved and the mother as the Respondent in circumstances where the mother and maternal grandmother had engaged in a verbal altercation which escalated to the point where the mother began throwing items towards the maternal grandmother including electrical cable, plates and a kettle. When being interviewed by police the maternal grandmother stated that there had been prior incidents of domestic violence between her and the mother which had gone unreported and include an incident approximately two weeks prior which resulted in a “fistfight”.
On 20 May 2019 the matter again came before me and once again there was no appearance by the maternal grandmother or maternal aunt. The solicitors acting for the mother sought to withdraw on this occasion and a warrant issued for the mother’s arrest.
The arrest warrant was executed on 28 May 2019 and the mother appeared before Judge Spelleken. The matter was adjourned to 5 June 2019.
On 5 June 2019 the mother appeared before the Court on her own behalf and, again there was no appearance by the maternal grandmother or the maternal aunt.
That matter next came before me on 17 June 2019 and the mother, maternal grandmother and maternal aunt all failed to appear. A second arrest warrant was issued in relation to the mother. The Orders made on that date also included a notation that should the mother fail to appear on the next occasion the Court may consider making the orders sought by the father.
The arrest warrant was executed and the matter came before me again on 26 June 2019. Again, the maternal grandmother and maternal aunt failed to appear and an order was made under section 91B of the Family Law Act 1975 requesting the intervention of the Department.
The matter was next before the Court on 27 August 2019 and on this occasion there was no appearance by the mother, maternal grandmother or maternal aunt.
On 31 October 2019 the matter next came before the Court. On this occasion the mother appeared by telephone and there was no appearance by the maternal grandmother or the maternal aunt. A notation to the Order was made that in the event the mother, maternal grandmother and/or maternal aunt fail to appear on the next occasion, orders may be made for the children to live with the father and that a recovery order may issue.
On 12 November 2019, when the matter was next before the Court the mother, maternal aunt and maternal grandmother all appeared by telephone and an Order was made for the maternal grandmother and maternal aunt to file their response material.
On 5 December 2019 no material had been filed in accordance with the previous Orders. All parties appeared before the Court on 5 December 2019 and interim consent Orders were made for the children to live with the mother and the father on an equal time basis. The maternal aunt was removed as a party to the proceedings.
The matter was next before the Court on 25 March 2020 and the mother and the maternal grandmother again failed to appear.
On 1 April 2020 the mother appeared by telephone before the Court and there was no appearance by the maternal grandmother. Orders were made for the mother to file and serve an affidavit regarding the care of the children and a case outline setting out her final orders sought within 14 days.
An Affidavit and further Response was filed by the mother on 22 April 2020.
The maternal grandmother also filed an Affidavit on 22 April 2020.
On 23 April 2020 the mother and maternal grandmother appeared by telephone before the Court and Orders were made for the mother to provide the father’s solicitor with the birth certificates of the children.
On 27 April 2020 Orders were made for the children to spend time with the father on a week about basis from 4:00pm Monday until 4:00pm Monday, commencing on 4 May 2020. The matter was also listed into a trial callover which was to occur on 6 August 2020.
On 13 August 2020 the material from the Queensland Police records an incident between the mother and an individual believed to be the mother’s partner in the presence of the maternal grandmother. The incident involved a verbal argument between the mother and her partner where the mother’s partner had attended at the maternal grandmother’s residence to pick up his car. This escalated into an incident where the mother’s partner began yelling and demanding his car back. Ultimately he became verbally abusive towards the maternal grandmother and had to be calmed down by his brother. Prior to leaving the partner lay on the front yard crying and demanding his keys.
On 2 September 2020 the matter came back before the Court and was set down for an urgent two day trial on 27 October 2020 with trial directions to be made on 16 September 2020. The mother and maternal grandmother failed to appear.
On 6 September 2020 a very concerning incident occurred between the mother and a third party who again, is believed to be the mother’s partner which resulted in a call to the police and a female caller stating “there is going to be a murder or suicide if you don’t get to this address”. Even more concerning is the notes taken by the police in relation to this incident where it is stated:
“NECESSARY/DESIRABLE – The RESP has a history of Domestic Violence and has a current order with an ex-partner. The Resp is currently charged with Accessory after the fact to murder DVO Brisbane Magistrates court 6/10/2020. The Resp has 6 x previous charges of Breach of Domestic Violence orders.”[1]
[1] Subpoena Tender Bundle (Exhibit 2) at page 160.
On 16 September 2020 the mother and maternal grandmother appeared by telephone and trial directions were made.
On 27 October 2020 the mother and maternal grandmother failed to appear at Court for the final hearing. Exhibit one in these proceedings is a copy of correspondence between the Independent Children’s Lawyer, the mother and the maternal grandmother reminding them of the date of the final hearing.
Domestic Violence
This matter has various orders made in relation to domestic violence involving all of the parties.
There were cross orders made in December 2015 in relation to the mother and the father.
The maternal grandmother had filed a domestic violence order in May 2015 naming the mother as the Respondent.
In June 2016 both the mother and the father were charged with breaches of domestic violence orders.
On 2 July 2018 the mother was convicted of a breach of domestic violence order with the maternal grandmother as the aggrieved.
On 14 May 2019 the police made an application for a domestic violence order naming the mother as the respondent and the maternal grandmother as the aggrieved as discussed as paragraph [47].
On 13 August 2020 the mother was the aggrieved in an incident where the police were called to the maternal grandmother’s home because of the behaviour of her new partner. The incident involved verbal abuse. The young children were present.
On 6 September 2020 the mother was a witness to incidents that resulted in a police application for a domestic violence order between the mother’s partner and his mother.
The report records:
“The agg is **** years old. The Resp is **** years old and is the son of the agg. The Agg and Resp both reside at **** in a rental property which they share rent. The Resp;s girlfriend Ms Elbaum 32 years old also lives at the address. CURRENT INCIDENT – On Sunday the 6th of September, 2020 the agg and her son and girlfriend were arguing over the hair left around the house by the Resp’s girlfriend. The agg has been upset that the REPS’s girlfriend is living in the house and she continually asks her to leave and she is refusing. The Resp has become agitated and began knocking items over the floor and walked behind the agg and picked up the recliner chair pushing it upwards. The Resp pushed the chair with force which the agg fell forward out of the chair and has landed on the corner of a piece of furniture on her left shoulder causing a small bruise. The Rsp has gone to bed and in the morning the arguing continued with police being called CODE 2 after a female called stating “there is going to be a murder or suicide if you don’t get to this address”. All three provided differing versions of the events and all denied making the call to police, however small items were observed on the floor of the loungeroom such aspens and a nail file. The Resp disputed any violence or pushing any items over and stated the AGG has mental health issues. The Resp’s girlfriend stated she saw the Resp throw items on the floor but was in her bedroom when the alleged assault occurred. The Agg stated that there has been numerous times she has been assaulted by the Resp however declined to make any statements to police as she feared her son would get into trouble.
PREVIOUS INCIDENTS – None noted between the Agg and Resp.
NECESSAR/DESIRABLE – The Resp has a history of Domestic Violence and has a current order with an ex partner. The Resp is currently charged with Accessory after the fact to murder DVO Brisbane Magistrates Court 6/10/2020. The Resp has 6 x previous charges of Breach of Domestic Violence orders. Due to the history of the Deft with DV matters and the age and the relationship of the agg it is highly likely that Domestic Violence is occurring between the pair and that a protection order is required to ensure the agg’s ongoing safety.”[2]
[2] Subpoena Tender Bundle marked Exhibit 2 in the proceedings at page 150-160.
I am very concerned about leaving the children in the care of the grandmother when it seems the mother and her partner both have serious issues of dangerous behaviour, causing domestic violence and the mother and her partner are spending time at the grandmother’s home where the children are living.
Exhibit three in these proceedings is a subpoena record from the Queensland Police Service in relation to the mother’s partner and it records, in part, his extensive history of domestic violence:
Establishment/Date
Offence
Order/Comment
Finalised Offences
…
Suburb J Magistrates Court 2011
[CC] 75(1) (A) Threatening Violence – By words or conduct (On 2010)
As Mr C
Conviction Recorded
Fined: $750.00
In Default Imprisonment: 15D
Time to Pay: 28D
City F Magistrates Court 2017
Contravention of release conditions (2016) Trespass – Entering or Remaining in Dwelling or Yard (2016)
As Mr C
On all Charges
Conviction Recorded
Fined: $500.00
Time to Pay: 28D
City F Magistrates Court 2017
Contravention of Domestic Violence Order (2017)
As Mr C
Conviction Recorded
Fined:$200.00
Time to pay: 28D
…
City F Magistrates Court 2017
Contravention of Domestic Violence Order (2017)
Breach of Bail Condition (Between 2017 and 2017)
As Mr C
On all Charges
Conviction Recorded
Fined: $800.00
Time to Pay: 28D
…
City K Magistrates Court 2020
Contravention of Domestic Violence Order (Aggravated Offence) (2019)
Contravention of Domestic Violence Order (Aggravated Offence (2019)
As Mr C
Conviction Recorded
Fined: $500.00
Time to Pay: 28D
Conviction Recorded
Fined: $500.00
Time to pay: 28D
Suburb J Magistrates Court 2020
Contravention of Domestic Violence Order (Aggravated Offence) (2020)
As Mr C
Conviction Recorded
Probation
Period: 9MO
City F Magistrates Court 2020
Contravention of Domestic Violence Order (Aggravated Offence) (2020)
As Mr C
Conviction Recorded
Fined: $500.00
Time to Pay 28D
Risk of Abuse
There have been three notifications and six child concern reports to the Department between 15 July 2015 and 14 May 2019.
There has been one substantiated risk where the children were in need of protection. This was 28 November 2017. The Department records state:[3]
[3] Subpoena Tender Bundle (Exhibit 2) at page 415.
| Date | Child Protection Concerns | Response Recorded by Child Safety | Departmental Action |
| 28 November 2017 | Concerns for X and Y (sic) in relation to Mr Beaudin having been incarcerated three (3) weeks earlier, Ms Elbaum, X and Y (sic) had been residing with the paternal grandmother (Ms L) however had not been seen in three (3) weeks; Ms Elbaum had been using drugs and travelling to the Region H to deal drugs; when Ms Elbaum was drug affected she did not respond to the baby’s [Y’s(sic)] crying; Mr Beaudin had been the primary carer for the children, prior to his incarceration; Child A and Child B were reportedly removed from Ms Elbaum’s care several years earlier, due to her poor care of the children when she was drug affected. | Notification Recorded | Investigation & assessment undertaken Outcome recorded – substantiated – child in need of protection Intervention with Parental Agreement [IPA] commenced. |
I have concerns that the children may be at risk in the grandmother’s care while the mother continues to live with the grandmother and associate with her current partner.
The risk is being exposed to incidents of domestic violence.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (herein “the Act”).
Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
Primary Considerations
Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
““(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.
…
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
There is no doubt the children would benefit from a meaningful relationship with both of their parents provided the parents are not affected by drugs and do not engage in any domestic violence that will affect the children.
The grandmother seems to be the person best able to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence. However the mother lives with the maternal grandmother and there has been significant incidents of domestic violence with the mother as the respondent and maternal grandmother as the aggrieved.
Furthermore, I have concerns about the presence of the mother’s partner at the maternal grandmother’s home and the risk that he poses given his history of domestic violence.
Additional Considerations
Child’s Relationship with Significant Persons
This consideration is set out in s.60CC(3)(b) as follows:
“(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);”
There is no doubt X has a significant level of anxiety when she is away from the maternal grandmother. The maternal grandmother seems to be the primary carer for these two children. It is the father’s case as set out in the second family report:
“69. Mr Beaudin advised he was of the opinion the children were receiving adequate care by their mother and Ms Mitchell. Given this view and his deteriorating mental wellbeing he reported thinking it was best for the children to remain primarily in Ms Elbaum and Ms Mitchell’s care at this time, with Mr Beaudin reducing the amount of contact he has with the children. Mr Beaudin advised he thought this was also in X’s best interest as he is concerned about her level of anxiety when away from her maternal grandmother.”
The father’s relationship with the children has been stopped by the mother and the maternal grandmother since July 2020. He has spent no time with the children since then.
The Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(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;
…
(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;”
I do not consider the mother has the capacity to provide for the needs of the children while she is affected by drugs and is potentially exposing the children to domestic violence.
The father has had issues with drugs and mental health and has resorted to cannabis use in recent times. I accept that he is not presently able to adequately provide for the children’s emotional and intellectual needs as the resident parent.
This leaves the maternal grandmother with that role. I am concerned that the children have not seen the father since July 2020 and I am further troubled about the children being exposed to a risk of domestic violence in the maternal grandmother’s home either by the mother or the mother’s partner.
Effect of Any Changes in the Child’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
“(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;”
The orders I intend to make will not greatly change the children’s current circumstances.
I am very concerned about the lack of time the children are spending with the father but these orders will not make that situation any worse.
It is hoped the orders will afford the children the opportunity to spend the weekend time sought by the father with him.
Parental Responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
I note there has been significant domestic violence in this matter that might preclude making an order for equal shared parental responsibility.
The only person who might be able to exercise that responsibility absent the parents is the maternal grandmother.
Given the father and the Independent Children’s Lawyer seek an order for equal shared parental responsibility with the maternal grandmother, I intend to make that order.
CONCLUSION
I have asked the Department to attend to take this judgment because of the concerns I have for the children in the maternal grandmother’s care.
However, given the father is not a contender for residence I have a choice of making no order or the orders sought by the Independent Children’s Lawyer and the father.
I intend to make the orders sought by the Independent Children’s Lawyer and the father because they give the father a framework to use to attempt to reunite with the children.
I will also make the orders sought by the father that the Independent Children’s Lawyer neither consents to nor opposes in that they are recommended by the Family Report Writer.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy. Associate:
Dated: 10 December 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Standing
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Procedural Fairness
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Appeal
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