Carlin & Hill
[2024] FedCFamC1F 739
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carlin & Hill [2024] FedCFamC1F 739
File number: CAC 1696 of 2024 Judgment of: BRASCH J Date of judgment: 29 October 2024 Catchwords: FAMILY LAW – CHILDREN - CRITICAL INCIDENT LIST - Where children’s mother passed away – Where children’s father passed away - Where no parent available to care for the children – Where children are Aboriginal and living on Country - Where interim orders had been made to allow for the applicant paternal grandmother to access service providers for two of the three children – Where the respondent maternal grandmother, with care of the third child, has not participated in the proceedings but has communicated with the applicant about them – Where the grandmothers live in a small community and the siblings see each other regularly - Where the Department is not working with the families – Final orders made Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 29 October 2024 Place: Brisbane Solicitor for the Applicant: Legal Aid New South Wales Respondent: No Appearance ORDERS
CAC 1696 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARLIN
Applicant
AND: MS HILL
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.Pursuant to s 61D of the Family Law Act 1975 (Cth), parental responsibility be allocated to the Applicant, for all major long term decision related to the children X (born 2010) and Y (born 2011) (“the children”) (but not including Z born 2017), including:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)Requesting that Medicare issue cards for the children and claiming Medicare benefits for the children;
(e)Requesting a copy of the children’s birth certificates;
(f)Dealing with NDIS and making any applications required; and
(g)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers.
2.X and Y live with the Paternal Grandmother Ms Carlin.
3.X and Y spend time with the Maternal Grandmother Ms Hill and Z as agreed between the Applicant and Respondent.
Provision of services for the children
4.Pursuant to s 114Q of the Family Law Act 1975, the Applicant be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the children.
5.These Orders are authority for the Applicant to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.
AND THE COURT NOTES THAT:
A.This is the second return of the matter on the Critical Incident List.
B.The Paternal Grandmother is the Applicant and the Maternal Grandmother is the Respondent.
C.The Court is satisfied that this matter and this hearing has been brought to the attention of the Maternal Grandmother and that she has emailed the Applicant’s solicitors in relation to the matter.
D.The Court is also satisfied the Maternal Grandmother has been served with the relevant documents, been given the opportunity to file material in response, been invited to attend mediation, given suggestions to secure legal advice and has been provided the link for the hearing today.
E.The Court will not make orders sought by the Applicant in favour of the Maternal Grandmother given she has not participated in the proceedings, as is her right.
F.There will be nothing stopping the Maternal and Paternal Grandmothers from engaging with each other and reaching agreements about all three children.
G.The children currently reside in Town B within close proximity of one another. The children spend time together multiple times per week and see their extended family on a regular basis. It is intended this will continue.
H.This is an Order to which rule 10.13(1)(a) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 applies.
I.An update has been received from the NSW Department of Communities and Justice indicating that they are not working with the family and have no update since their first report dated 11 September 2024 which was marked Exhibit 1. Their update dated 28 October 2024 is marked Exhibit 2.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my Ex Tempore reasons which I have corrected for grammatical error and to make the spoken word more amendable to reading.
I have before me an application today concerning three children: X, Y and Z (“the children”). The applicant is the paternal grandmother, Ms Carlin (“the paternal grandmother”). The respondent is Ms Hill, the maternal grandmother (“the maternal grandmother”).
Very sadly, the three children’s father died in 2020 and their mother recently, in 2024. X and Y have, on her case, lived with the paternal grandmother since about 2018. Z lived with the mother, and when she became unwell at the start of this year, went to live with the maternal grandmother.
Service on respondent and her knowledge of the proceedings
I am satisfied the maternal grandmother has been served with these documents and mediation has been proposed. She has been offered legal assistance, and she has communicated back to the paternal grandmother’s legal team.
Critical Incident List
As sad as it is, this is an application where there are no parents available or appropriate (as required by the Critical Incident List) to make urgent major long-term decisions for the children. When the matter first came before me, I was satisfied that the paternal grandmother needed decision-making responsibility for X and Y.
Principles
This is, of course, an application that comes within Part VII of the Family Law Act 1975 (Cth). Section 60B of the Act sets out the objects of the part. Section 60CA tells me the children’s best interests are the paramount consideration, and section 60CC tells me how I ought consider the children’s best interests.
The children’s best interests
As is clear from the notations I will make to the orders, given the maternal grandmother has not participated, as is her right, I am not content to make orders in her favour or orders that involve Z, but there is nothing stopping the paternal grandmother and maternal grandmother from coming to their own agreements. I am fortified by the Notation that was included both in the paternal grandmother’s final orders and in a proposed minute of consent to the maternal grandmother, where it was noted:
The children currently reside in [Town B] within close proximity of one another. The children spend time together multiple times per week and see their extended family on a regular basis. It is intended this will continue.
That gives me great comfort that the children are enjoying their sibship, and most importantly, they are on Country. They are of multiple Nations.
I turn to section 60CC, and, of course, subsection (1) says I must consider the matters in subsection (2), and if the child is Aboriginal or Torres Strait Islander, then to also consider the matters set out in section 60CC(3).
I have already mentioned that the children are living on Country and, from the notations, surrounded by their wider family. Therefore, when I turn to subsection (c), I am satisfied on the sworn evidence that the children – all three of them – will enjoy their rights as Aboriginal children to:
·Having the support, opportunity and encouragement necessary to connect and maintain their connection with members of their family and with community, culture, country and language; and
·Exploring the full extent of that culture, consistent with their ages and development and their views; and
·Developing a positive appreciation of their culture; and.
·I am satisfied, as best I can be in the circumstances, that the proposed parenting order will have a positive impact on those rights.
I now turn back to the subsection (2) matters.
First, what arrangements would promote the safety of the children, as that is defined or elaborated upon in ss 60CC(2)(a) and (2A). I am comforted by Exhibits 1 and 2 that the Department [of Communities and Justice] is not working with the family, which says to me no Child Protection concerns are raised. I am also struck by the fact that the paternal grandmother brought this application, which demonstrates to me that she is acting in a way to promote the children’s safety. I also have no doubt, even though I am not making orders for Z, that Z will be included within the wider family and her safety promoted.
This is not a matter where the children’s views are before me in any formal way (s 60CC(2)(b)), but I am well-satisfied, particularly by the reference to the Notation, to which I have already extracted, that the children’s views will be taken into account.
The developmental, psychological, emotional and cultural needs of the children are, of course, multi-faceted; s 60CC(2)(c). I have already referred to their cultural needs and my satisfaction under s 60CC(3).
The children, as I said at the beginning of this, have lost their father and most recently lost their mother. One of the reasons the paternal grandmother applied [for orders] was so she could secure appropriate and culturally safe therapeutic supports for the children. That really dovetails into s 60CC(2)((d), being the capacity of each parent to promote those needs of those children. The fact of the application that the paternal grandmother has brought demonstrates that to me. I am also satisfied that the children will be living in a way that will ensure they see Z regularly and often and spend time with the maternal grandmother as well.
Section 60CC(2)(e) is a sad because (e) speaks of the benefit to the child of being able to have a relationship with the child’s parents. Sadly, that is an opportunity that is not available to them now, but it goes on and says, “and other people who are significant to the child where it is safe to do so”. I again refer to the Notation to the final orders and the Notation in the proposed minute of consent that was sent to the maternal grandmother and have extracted above.
Section 60CC(2)(f) is anything else that is relevant to the particular circumstances of the child. One of the points of the Critical Incident List is where children no longer have parents appropriate or available to make decisions for them, then, where it is in their best interests, the person who is going to be holding that parental responsibility be able to navigate through the Court process as quickly as the best interests of the children allow.
The paternal grandmother, no doubt, has her own grief to deal with, as has the maternal grandmother. There are options available to the maternal grandmother if she wishes to renegotiate or negotiate something with the paternal grandmother or, indeed, make her own application to Court. In those circumstances, I am satisfied that this is one of those matters where the children’s best interests, including Z, will be best served by making final orders today.
As the situation presently exists, s 60CC(2)(a)(ii) [parenting arrangements between the parties] is not one that I need turn my mind to as between the paternal grandmother and the maternal grandmother.
In all of the circumstances, I will make the orders and notations that I worked through with Ms Pollock before I gave these Reasons.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 4 November 2024
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