Berg & Berg (No 2) - [2024] FedCFamC1F 857

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berg & Berg (No 2) [2024] FedCFamC1F 857

File number(s): SYC 5094 of 2024

Judgment of: ALTOBELLI J

Date of judgment: 4 December 2024

Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where neither biological parent made an appearance –Where serious allegations of risk and neglect are substantiated – Where the maternal grandmother seeks for the child to live with her – Where the Independent Children’s Lawyer consents to the maternal grandmother’s position – Where orders were made in favour of the maternal grandmother.

Legislation: Family Law Act 1975 (Cth) s 60CC, s 117

Division: Division 1 First Instance

Number of paragraphs: 12

Date of hearing: 4 December 2024

Place: Sydney

Solicitor for the Applicant: Willis & Bowring Solicitors

First Respondent: Litigant in person (did not participate)

Second Respondent: Litigant in person (did not participate)
ORDERS

SYC 5094 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BERG

Applicant

AND:
MS B BERG

First Respondent

MR KOOLEN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

4 DECEMBER 2024

THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), final parenting orders are made by consent in accordance with the document marked “A” dated this day and attached hereto.
2.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) 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 Annexure A and these particulars are included in these orders.
3.All outstanding applications otherwise are dismissed, and the matter removed from the list of cases awaiting finalisation.

THE COURT ORDERS THAT:
4.By no later than 4:00 pm on 11 December 2024, the solicitor for the Applicant Maternal Grandmother is to provide a copy of these orders to the First Respondent Mother at her last known email address.
5.There be no order as to costs.
6.Should this matter need to come back before the Court it should first be listed before Justice Altobelli, if his Honour is reasonably available and subject to any other application a party may make.

THE COURT NOTES THAT:
A.There was no appearance by or on behalf of the First Respondent Mother or Second Respondent Father when their appearance was called at 9:05 am.
B.
The final parenting orders in accordance with the document marked “A” were made by consent as between the Applicant Maternal Grandmother and the Independent Children’s Lawyer but on an undefended basis regarding the First Respondent Mother and Second Respondent Father.

“A”
FAMILY LAW ACT 1975
TYPESCRIPT OF MINUTE OF ORDER
SOUGHT BY APPLICANT GRANDMOTHER
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. SYC5094/2024
BETWEEN MS BERG
Applicant

AND MS B BERG
Respondent 1
MR KOOLEN
Respondent 2

AND INDEPENDENT CHILDREN'S LAWYER
UPON APPLICATION TO THE COURT IT IS ORDERED:
1.That the Applicant Maternal Grandmother, Ms Berg, have sole decision making responsibility regarding the care, welfare and development of the child, X (“the child”) born 2023 including but not limited to:-
1.1His education;
1.2His religious and cultural upbringing;
1.3His health;
1.4Any decisions with respect to change to be made to his name;
1.5All day to day decisions.

2.That X live with the Applicant Maternal Grandmother.
3.That X spend no time, save for Order 4, with the First Respondent Mother or the Second Respondent Father unless the requirements in that order are complied with.
4.That in the event the First Respondent Mother or the Second Respondent Father contact the Applicant Maternal Grandmother expressing a wish to spend time with X, that they not less than seven (7) days prior to doing so provide the Applicant Maternal Grandmother with a medical report written by their Registered Treating Psychiatrist or any other recommended Treating Specialist for the purpose of diagnosis and treatment for mental health impediments or drug and alcohol issues which affect their ability to care for X and for the purpose of assessing their general parenting capacity and establishment of the capacity to adhere to a treatment plan if required and/or any rehabilitation facility at which they may attend for the purpose of evidencing that they have stabilised the following behaviours:-
4.1Mental health difficulties;
4.2They are abstaining from consuming drugs of any nature;
4.3That they do not present a risk of harm either physically, emotionally or psychologically to X;
4.4Anger Management issues have been addressed or are in the progress of being addressed and do not propose a risk of harm to X;

5.That in the event such a Report is provided to the Applicant Maternal Grandmother in accordance with Order 4 above, thereafter that the Respondent Mother and/or the Respondent Father may spend time with X, supervised by a professional supervision facility such as Interrelate, Relationships Australia or a private supervisor at such times as may be facilitated by the Supervision Organisation and as agreed between the parties.
6.That in the event the Respondent Mother and/or the Respondent Father do spend supervised time with X that they not consume or be affected by or have present in their blood stream, alcohol or any substance within forty-eight (48) hours prior to spending time with X nor bring X into contact with any other persons who have consumed alcohol or prohibited drugs or substances within this period.
7.That the Applicant Maternal Grandmother have the liberty to provide a copy of these Orders to X’s school and any co-ordinator of any extra curricular activities in which X wishes to participate and or medical facility or treating practitioner upon which X is required to attend.
8.That pursuant to Section 65Y2(b) of the Family Law Act 1975 the Applicant Maternal Grandmother be authorised to travel with X outside the Commonwealth of Australia or to give her certified written consent for X to travel without the consent of either the Respondent Mother or the Respondent Father.
9.That X be permitted to travel internationally with the Applicant Maternal Grandmother or with the Applicant Maternal Grandmother’s certified written consent is provided for by Section 11(1)(b) of the Australian Passports Act 2005 and for this purpose the Applicant Maternal Grandmother is permitted to apply for the issue and renewal of an Australian Passport for X pursuant to the provisions of Section 11(4)(b)(i) of the Australian Passport Act 2005 without either parents consent.
10.For the avoidance of doubt, X’s Passport is to be retained by the Applicant Maternal Grandmother at all times.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berg & Berg has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:

This case is about X, born 2023 (“X”). X is about one year old. Since about 15 August 2023, he has been living with the maternal grandmother (“the maternal grandmother”). The other parties to this matter are as follows. X’s mother, Ms B Berg (“the mother”), is the first respondent and she is 24 years old. The second respondent is X’s father, Mr Koolen (“the father”). He is 35 years old. The Department of Communities and Justice (“the DCJ”) was a party to these proceedings, but is no longer so, being content with the Court to deal with this matter, ostensibly on the basis that X would remain with the maternal grandmother. X, of course, is represented by a very experienced Independent Children’s Lawyer, Mr Samuel.
The relevant material before the Court is as follows. There is the maternal grandmother’s Amended Initiating Application filed 26 November 2024 and her affidavit filed 26 November 2024 (“the maternal grandmother’s affidavit”). Very useful Outline of Case Documents were prepared by both the solicitor for the maternal grandmother, and the Independent Children’s Lawyer. Indeed, I incorporate into these, my reasons for judgment, as a first schedule, the chronology that is contained in the Outline of Case Document filed 29 November 2024 on behalf of the maternal grandmother. A significant body of documents became Exhibit A1, namely, the tender bundle of the maternal grandmother received 29 November 2024. This comprehensive bundle will form the basis for the reasons that follow, together, of course, with the affidavit of the maternal grandmother.
The first and foremost issue in this case is the safety of X. Safety, of course, gains prominence in the amended version of s 60CC of the Family Law Act 1975 (Cth) (“the Act”):
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
The mother and the father did not participate in the final hearing. I am satisfied, through the maternal grandmother’s affidavit, that extensive efforts have been made to notify them of the proceedings, including, more recently, the mother contacting the maternal grandmother’s solicitor by email. Notwithstanding all of those efforts, there is no attendance today. I am satisfied that it is in the best interest of X that this matter proceed to finalisation, albeit on an undefended basis.
The totality of the evidence before the Court creates this sad picture in relation to the life of X before he went into the maternal grandmother’s care, and, it would seem, the past, current and possibly ongoing lives of both the mother and the father. There is evidence before the Court of family violence that the father perpetrated on the mother. There is evidence of family violence that the mother has perpetrated on the maternal grandmother in the presence of X, and also on the mother’s sister.
There is evidence of sustained long-term drug and alcohol problems for both the mother and the father. The drug issue appears to centre around the use of a particular illicit substance. There is evidence of multiple, but unsuccessful, as yet, attempts to rehabilitate. There is evidence of the mental health issues that the mother experiences, in particular, indicating a possible diagnosis of multiple mental health disorders. The evidence indicates extensive involvement by the DCJ in the past, which has tapered off to the point where they are supportive of, but very much satisfied that, X is well cared for by the maternal grandmother.
In all of these circumstances, and despite the tragedy of the absence to X of the mother and the father, at least for the time being, he is undoubtedly, on the evidence before the Court, safe in the maternal grandmother’s care. She has been with him at all relevant times of his life, and her evidence satisfies me that that will continue to be the case, that she will be protective of his safety, but nonetheless conscious of, in particular, the importance of the relationship between X and the mother, and, indeed, the father, whilst prioritising safety issues.
The orders contemplate the possibility, and, indeed, one would hope, the probability, that the mother and the father would seek to be reintroduced to X and re-involved in his life. Mr Samuel, who is an experienced Independent Children’s Lawyer, quite properly expressed some concerns about what could be considered by some to be restrictions placed in the way of the mother and the father getting back into X’s life, so to speak. Ms Wood, solicitor for the maternal grandmother, has made submissions that satisfy me that, in effect, the restrictions are protections for X to ensure that, when he does recommence a relationship with the mother and the father, it is in a context and in a manner that ensures his safety.
Currently, the risks for X, if he were to be in the care of the mother or the father, or even having unsupervised time, would be completely unacceptable. I am satisfied that the restrictions are merely appropriate safety precautions
Based on the maternal grandmother’s evidence, I am satisfied that she is conscious of the need for X to have an ongoing relationship with both the mother and the father, but, consistent with the Act, I will prioritise safety. I am therefore satisfied that the order I have made is in the best interests of X.
The Independent Children’s Lawyer brings an application for costs in the sum of about $2,000, probably less, representing one third of the total costs of the Independent Children’s Lawyer. In the circumstances of this case, however, I apply the general rule that each party should pay and bear their own costs (s 117 of the Act). I am conscious of the role that the maternal grandmother has played in this case and of the cost that she herself has had to incur as a result of what has happened. In these circumstances, I think it is appropriate that each party pay and bear their own costs.
I am going to make a further order as follows, that should this matter need to come before the Court, it should first be listed before me, subject to me being reasonably available, and subject to any other application a party may make. It seems to me, given my knowledge about X and this case so far, it might be more expedient in the long run for it to come back before me, particularly should the mother or the father wish to re-engage. There might also be other circumstances where the maternal grandmother needs orders in relation to X. I accept that it is impossible to anticipate what further orders might be needed in the future, and on that basis, having a quicker method of coming back to the Court might be appropriate, and certainly in X’s best interests.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 11 December 2024
SCHEDULE ONE
Chronology of Events

Date Event

1979 Applicant Maternal Grandmother ("Ms Berg") Born - currently 45 years of age

1989 Second Respondent Father ("Mr Koolen") born - currently aged 35 years

2003 First Respondent Mother ("Ms B Berg") born - currently aged 21 years

2005 Ms E - second child of Applicant Grandmother and maternal aunt born - currently aged 19 years

2017 Ms B Berg pushes Ms Berg down a flight of stairs and commits assaults and other criminal acts -
Ms Berg seeks assistance from the high school, a mental health service and Counsellors.
Ms B Berg spends time in Juvenile detention.
[Affidavit of Ms Berg p11]

2019 Ms B Berg first engages with a drug counselling service (S3).
Between 2019 and 2024, in total Ms B Berg engages with the service in 11 programs including relapse prevention which is unsuccessful.
Ms B Berg diagnosed with multiple mental health disorders.
Ms B Berg commences living on the streets and in refuges

2019 -2024 Ms B Berg admitted on numerous occasions to hospital for drug related issues – Ms B Berg addicted to illicit drugs. (S2).

Early 2022 Ms B Berg assigned a Caseworker and file opened by DCJ.

2023 X born - presently 1 year old.

Mid-2023 X admitted to hospital for flu-like symptoms

Mid-2023 DCJ Prepares first Family Action Plan supportive of Ms Berg having care and responsibility for X.

Mid-2023 X re-admitted to hospital.

Mid-2023 X admitted to hospital - respiratory issues. In ICU for a period

15 August 2023 Ms B Berg vacates Ms Berg’s home leaving X in the care Ms Berg.

August 2023 X discharged from the hospital.

September 2023 Ms Berg advised Ms B Berg she was no longer welcome in the home

Late 2023 Ms B Berg attacks Ms Berg punching her in the head following discovery that Ms Berg has applied for financial assistance to Centrelink for costs associated with X's care - Domestic Violence incident
Ms B Berg arrested by NSW Police for assault and domestic violence.

Late 2023 Interim ADVO issued by NSW Police in favour of Ms Berg, Ms E and X. Ms B Berg the offender.

Late 2023 Second Family Action Plan issued by DCJ

February 2024 Supervised time commences with the assistance of DCJ between X, Ms B Berg and the Father Mr Koolen attends on two occasions only. Ms B Berg attends 14-16 times for one hour each week.

Mid-2024 DCJ ceases contact with the Mother Ms B Berg

Mid-2024 Proceedings are again before the Local Court for a further Interim ADVO against Ms B Berg whereby Ms Berg and Ms E are the protected persons.
Ms B Berg pleads mental health defence and ADVO amended to remove X. Local Court satisfied X in no immediate danger in circumstances where he is living with Grandmother.

Mid-2024 Ms B Berg discovered in backyard of unknown resident disorientated, heavily intoxicated and on illicit drugs with no shoes, summer clothing and no personal belongings except keys. Conveyed by Police to hospital (Police Material and S2).

Mid-2024 Ms Berg commences proceedings seeking orders for urgent parental responsibility and no time orders.
DCJ joined as Third Respondent - subsequently dismissed by Court as a party noting that DCJ consent to parental responsibility being allocated to Ms Berg for X care and welfare.
Proceedings for ADVO listed - no appearance by Ms B Berg. Adjourned to a later date - no appearance by Ms B Berg.

Mid-2024 Warrant issued for Ms B Berg’s arrest - proceedings relisted for a later date.

2 September 2024 Willis & Bowring receive a text message from number believe to belong to Ms B Berg "Who is this who has my son".

4 September 2024 Ms Berg receives text message from Paternal Grandmother Ms C "I do not know where [Ms B Berg] so I'm not able to help you".

5 September 2024 Willis & Bowring send correspondence, orders and pleadings to text number and seek email address to communicate with Ms B Berg, Ms B Berg provides email address and Willis & Bowring forward correspondence again by email.
Ms B Berg advises Willis & Bowring she has no contact with Mr Koolen and does not know how to contact him

Late 2024 Willis & Bowring Solicitors receive a telephone call from a legal centre who advise that proceedings against Ms B Berg in the Local Court were heard that morning - Final ADVO consented to in favour of Ms Berg and Ms E (and in directly X) for a period of 12 months.

26 November 2024 Willis & Bowring make final attempt to engage with Ms B Berg in the proceedings. No response is received.

File number(s):	SYC 5094 of 2024
Judgment of:	ALTOBELLI J
Date of judgment:	4 December 2024
Catchwords:	FAMILY LAW – PARENTING – Undefended hearing – Where neither biological parent made an appearance –Where serious allegations of risk and neglect are substantiated – Where the maternal grandmother seeks for the child to live with her – Where the Independent Children’s Lawyer consents to the maternal grandmother’s position – Where orders were made in favour of the maternal grandmother.
Legislation:	Family Law Act 1975 (Cth) s 60CC, s 117
Division:	Division 1 First Instance
Number of paragraphs:	12
Date of hearing:	4 December 2024
Place:	Sydney
Solicitor for the Applicant:	Willis & Bowring Solicitors
First Respondent:	Litigant in person (did not participate)
Second Respondent:	Litigant in person (did not participate)

SYC 5094 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BERG Applicant
AND:	MS B BERG First Respondent MR KOOLEN Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	4 DECEMBER 2024

Date	Event
1979	Applicant Maternal Grandmother ("Ms Berg") Born - currently 45 years of age
1989	Second Respondent Father ("Mr Koolen") born - currently aged 35 years
2003	First Respondent Mother ("Ms B Berg") born - currently aged 21 years
2005	Ms E - second child of Applicant Grandmother and maternal aunt born - currently aged 19 years
2017	Ms B Berg pushes Ms Berg down a flight of stairs and commits assaults and other criminal acts - Ms Berg seeks assistance from the high school, a mental health service and Counsellors. Ms B Berg spends time in Juvenile detention. [Affidavit of Ms Berg p11]
2019	Ms B Berg first engages with a drug counselling service (S3). Between 2019 and 2024, in total Ms B Berg engages with the service in 11 programs including relapse prevention which is unsuccessful. Ms B Berg diagnosed with multiple mental health disorders. Ms B Berg commences living on the streets and in refuges
2019 -2024	Ms B Berg admitted on numerous occasions to hospital for drug related issues – Ms B Berg addicted to illicit drugs. (S2).
Early 2022	Ms B Berg assigned a Caseworker and file opened by DCJ.
2023	X born - presently 1 year old.
Mid-2023	X admitted to hospital for flu-like symptoms
Mid-2023	DCJ Prepares first Family Action Plan supportive of Ms Berg having care and responsibility for X.
Mid-2023	X re-admitted to hospital.
Mid-2023	X admitted to hospital - respiratory issues. In ICU for a period
15 August 2023	Ms B Berg vacates Ms Berg’s home leaving X in the care Ms Berg.
August 2023	X discharged from the hospital.
September 2023	Ms Berg advised Ms B Berg she was no longer welcome in the home
Late 2023	Ms B Berg attacks Ms Berg punching her in the head following discovery that Ms Berg has applied for financial assistance to Centrelink for costs associated with X's care - Domestic Violence incident Ms B Berg arrested by NSW Police for assault and domestic violence.
Late 2023	Interim ADVO issued by NSW Police in favour of Ms Berg, Ms E and X. Ms B Berg the offender.
Late 2023	Second Family Action Plan issued by DCJ
February 2024	Supervised time commences with the assistance of DCJ between X, Ms B Berg and the Father Mr Koolen attends on two occasions only. Ms B Berg attends 14-16 times for one hour each week.
Mid-2024	DCJ ceases contact with the Mother Ms B Berg
Mid-2024	Proceedings are again before the Local Court for a further Interim ADVO against Ms B Berg whereby Ms Berg and Ms E are the protected persons. Ms B Berg pleads mental health defence and ADVO amended to remove X. Local Court satisfied X in no immediate danger in circumstances where he is living with Grandmother.
Mid-2024	Ms B Berg discovered in backyard of unknown resident disorientated, heavily intoxicated and on illicit drugs with no shoes, summer clothing and no personal belongings except keys. Conveyed by Police to hospital (Police Material and S2).
Mid-2024	Ms Berg commences proceedings seeking orders for urgent parental responsibility and no time orders. DCJ joined as Third Respondent - subsequently dismissed by Court as a party noting that DCJ consent to parental responsibility being allocated to Ms Berg for X care and welfare. Proceedings for ADVO listed - no appearance by Ms B Berg. Adjourned to a later date - no appearance by Ms B Berg.
Mid-2024	Warrant issued for Ms B Berg’s arrest - proceedings relisted for a later date.
2 September 2024	Willis & Bowring receive a text message from number believe to belong to Ms B Berg "Who is this who has my son".
4 September 2024	Ms Berg receives text message from Paternal Grandmother Ms C "I do not know where [Ms B Berg] so I'm not able to help you".
5 September 2024	Willis & Bowring send correspondence, orders and pleadings to text number and seek email address to communicate with Ms B Berg, Ms B Berg provides email address and Willis & Bowring forward correspondence again by email. Ms B Berg advises Willis & Bowring she has no contact with Mr Koolen and does not know how to contact him
Late 2024	Willis & Bowring Solicitors receive a telephone call from a legal centre who advise that proceedings against Ms B Berg in the Local Court were heard that morning - Final ADVO consented to in favour of Ms Berg and Ms E (and in directly X) for a period of 12 months.
26 November 2024	Willis & Bowring make final attempt to engage with Ms B Berg in the proceedings. No response is received.