Carlyle and Carlyle & Ors

[2019] FamCA 214

FAMILY COURT OF AUSTRALIA

CARLYLE & CARLYLE AND ORS [2019] FamCA 214

FAMILY LAW – CHILDREN – With whom the child lives – Where the children live with the maternal grandmother – where the children spend time with the mother as agreed – where there are no orders that provide for time or communication between the children and their respective fathers – where the mother has not engaged in the proceedings – where one father has not engaged in the proceedings – where one father is in gaol - where both children were exposed to significant domestic violence by the mother - where there are significant risk factors in the home of the mother – where there have been significant risk factors in the homes of the respective fathers – where there is an Apprehended Domestic Violence Order in place that protects one of the children from a parent – where one of the parents in the proceedings was charged with sexually assaulting one of the children and pleaded guilty – where the need to keep the children safe overrides any priority of the children having a meaningful relationship with their parents – where the children have the ability to feel safe and thrive in the home of the maternal grandmother – where the maternal grandmother is a protective person.

FAMILY LAW – CHILDREN – Parental Responsibility – where the maternal grandmother has sole parental responsibility for the children – where the children are safe and well cared for by the maternal grandmother – where orders that provide for parental responsibility for each of the parents is taken away – where orders in relation to parental responsibility are made in the best interests of the children – where the father of one child is in gaol for sexually assaulting the child.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – where orders are made on an ex-tempore basis – where the matter was undefended by two parties to the proceedings.

Family Law Act 1975 (Cth) s60CC

APPLICANT: Ms A Carlyle

FIRST RESPONDENT: Ms B Carlyle

SECOND RESPONDENT: Mr Park

THIRD RESPONDENT: Mr Lynton

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi Lawyer

FILE NUMBER: NCC 2281 of 2015

DATE DELIVERED: 31 January 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 31 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE FIRST RESPONDENT: Not Applicable

SOLICITOR FOR THE FIRST RESPONDENT:	Michelle Thomas Solicitor
COUNSEL FOR THE SECOND RESPONDENT: Not Applicable	Not Applicable
SOLICITOR FOR THE SECOND RESPONDENT:	Toronto Legal
COUNSEL FOR THE THIRD RESPONDENT:	Not Applicable
SOLICITOR FOR THE THIRD RESPONDENT:	Not Applicable
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not Applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi Lawyer

Orders

1. That all prior orders made in relation to C born … 2007 and D born … 2011 (“the children”) are discharged.

Parental Responsibility

1. That Ms B Carlyle (“the maternal grandmother”) have sole parental responsibility for the children to the exclusion of:

   2.1Ms A Carlyle (“the mother of the children”);

   2.2Mr Park (“the father of C”);

   2.3Mr Lynton (“the father of D”).

Residence

1. That the children live with the maternal grandmother.

Time with parents of the children

1. That the children spend time with the mother of the children as agreed in writing between the maternal grandmother and the mother at the sole discretion of the maternal grandmother.

2. That the children spend no time with:

   5.1The father of C;

   5.2The father of D.

Specific Issues

1. That the Independent Children’s Lawyer shall provide a copy of these orders to the principal of the school/s which each of the children attends and is thereafter discharged.

2. That all outstanding applications are otherwise dismissed.

The Court notes that

(A)There is a Final Order Apprehended Domestic Violence Order made on … 2018 in the Local Court at … NSW for the protection of C, and of anyone with whom C has a domestic relationship, from Mr Park.

The duration of the order is eight (8) years from date of order (expiring 10 October 2026).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlyle & Carlyle and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2281 of 2015

Ms A Carlyle

Applicant

And

Ms B Carlyle

First Respondent

And

Mr Park
Second Respondent

And

Mr Lynton
Third Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. Before the Court on 29 January 2019 were applications in respect of two children, C a girl aged 11 and D a boy aged seven years.

2. The two applicants for parenting orders were:

   a)The first respondent maternal grandmother, Ms B Carlyle. Both children live with her. C has done so since 8 January 2017 and D since 30 July 2015;

   b)The second respondent father, Mr Park. Mr Park is the father of the older child, C. C was about 15 months old when the mother and Mr Park separated. Mr Park is in gaol, having been convicted after pleading guilty to sexually assaulting C. He was sentenced to a total of five years in jail.

3. The applicant, who initiated proceedings in August 2015, is the mother of both children. She is Ms A Carlyle, aged 33 years. The mother ceased participating in proceedings before August 2018, when this hearing date was allocated. The Independent Children’s Lawyer wrote to the mother, and enclosed the orders of 13 August 2018, on the day after the orders were made.[1] The Independent Children’s Lawyer also advised the mother in writing, on 27 November 2018, of a subpoena that she had issued in anticipation of this trial.[2]

   [1] Exhibit 1

   [2] Exhibit 2

4. The third respondent to the proceedings is Mr Lynton. He is the father of the younger child, D. He has had very little involvement in the child’s life. The relationship between the mother and Mr Lynton ended before D’s birth. Mr Lynton ceased participating in these proceedings before August 2018, when this hearing date was allocated.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The First Respondent Maternal Grandmother

   a)Amended Response of the maternal grandmother filed 30/03/2016, superseded by a Minute of Order;[3]

   [3] Exhibit 3

   b)Affidavit of the maternal grandmother, filed 30/06/2016;

   The Second Respondent Father

   c)Response to Initiating Application of the second respondent father, Mr Park, filed 22/03/2016, superseded by a Minute of Order;[4]

   d)Notice of Child Abuse, Family Violence or Risk, filed 22/03/2016;

   e)Affidavit of Mr Park, filed 22/03/2016;

   Reports

   f)Family Report dated 7/10/2016;

   g)Updated Family Report dated 20/02/2017;

   h)Magellan Report dated 27/07/2016.

   [4] Exhibit 4

History of Relevant Events

1. Both children were exposed to domestic violence in the home of their mother. She has had at least five violent partners and has had Apprehended Violence Orders (“AVOs”) for her protection in respect of at least three of them.

2. The mother has been a marijuana user since her mid-teens. She has also been a user of the methamphetamine known as Ice since at least July 2015; that is when she told the maternal grandmother that she was using that drug.[5]

   [5] Affidavit of, Ms B Carlyle, the maternal grandmother filed 30/06/2016, pars 77 to 79

3. In July 2015, the maternal grandmother took D into her permanent care. It is apparent[6] that the maternal grandmother would also have kept C in her full-time care from that time if the mother had not already arranged for C to stay with her father.

   [6] Affidavit of, Ms B Carlyle, the maternal grandmother filed 30/06/2016, pars 34 to 40

4. The maternal grandmother, to use her words, “lashed out” at the mother as a result of her anger over the mother’s decision to place C with the father. In her affidavit,[7] the maternal grandmother reports that the mother had previously spoken to her about her fears that C might have been “meddled with” by the father. The maternal grandmother was charged with common assault, and made subject to an AVO for the protection of the mother, as a result of this incident.

   [7] Affidavit of, Ms B Carlyle, the maternal grandmother filed 30/06/2016, par 39

5. The maternal grandmother’s fears were very well founded. The subsequent conviction of Mr Park was for sexual assaults on C between 1 September 2015 and 3 March 2016. The affidavit of the father, sworn on 21 March 2016, was at the end of a nine-month period of offending by the father identified in those criminal records.

6. The child lived with the father from 31 July 2015 until January 2017. She was separated from her younger brother during that time. Her maternal grandmother had been charged for assaulting the mother over allowing that to happen. The facts suggest that, within weeks of the child coming to live with him, the father was indecently dealing with the child, and sexually assaulting her. The section of his affidavit entitled “Concerns”[8] setting out perceived risks for the child associated both with the mother and maternal grandmother, is richly hypocritical given his own criminal actions at the time.

   [8] Affidavit of Mr Park filed 22/03/2016, pars 49 to 65

The Law

1. In this case, the children have been living with the maternal grandmother for two years and three and a half years respectively. Orders were made on an interim basis, confirmatory of that arrangement, on 10 April 2017. Now the Court is asked to make final parenting orders.

2. When a Court is asked to make parenting orders, a Court must have regard to the best interests of a child as the paramount consideration. The legislation contemplates disputes between parents, but also grandparents and others with appropriate standing. The application of the maternal grandmother is undefended by the mother and Mr Lynton, D’s father.

3. Mr Park submits that either the mother or the maternal grandmother or both together should have parental responsibility. He does not propose any allocation of parental responsibility to himself. He does submit that he should be included in the decision-making process by way of being informed of decisions to be taken.

4. In these circumstances, where I am satisfied that the children are safe and well cared for in the home of the maternal grandmother, it is appropriate that she have sole parental responsibility.

5. Section 61D(2) of the Family Law Act 1975 (“the Act”) is as follows:

   A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

   (a)      Expressly provided for in the order; or

   (b)      Necessary to give effect to the order

6. For that reason, the order will expressly provide that the parental responsibility of each of the three parents arising by law is intentionally taken away.

7. In coming to parenting orders otherwise, I have taken into account the following matters under section 60CC of the Act:

8. First, the need to keep the children safe, which has priority over maintaining meaningful relationships. In this case, I am not satisfied that meaningful relationships exist between the children and their parents. Two of the parents were absent from the proceedings by choice. The third parent, Mr Park, is represented, but I have rejected the submissions made on his behalf around orders 11, 12, 15, 16, 19 and 20 in his Minute of Order.

9. The proposal that C be permitted to have liberal communication with her father, and to receive cards and gifts from him, is to reveal a failure to acknowledge or understand, or both, the destructive impact on the child of his criminal offending. It is also a failure to acknowledge the AVO made in in 2018, for a period of eight years, which orders the father to stay away from and not approach the child.

10. I reject the submission that the father may have been a person who entered a plea of guilty for reasons other than acknowledgement of a crime committed.

11. Further, I reject the submission that forgiveness is important for a child in C’s circumstances. It would be insightless and presumptuous for the father to assume anything on this topic. It is a matter for C, when she is an adult, to contemplate what has happened to her, and not for the father to create opportunities for her to “forgive him”.

12. Finally, I reject the submission that there would be no harm in the father having access to information about medical treatment and information about school progress, including school photographs. The most significant matter for C is her safety. She feels safe with her grandmother. The knowledge that her father was receiving such information represents a risk of undermining that sense of safety. That is a risk that should not be taken.

13. On behalf of the father Mr Park, there was no submission that touched on contrition or remorse. The absence of such a submission heightens the risk that the father is simply proposing orders for his own benefit and gratification.

14. The other considerations are that the parties, including the maternal grandmother, all have criminal records.

15. The maternal grandmother was a heavy marijuana user earlier in her life. However, I am satisfied that the maternal grandmother has changed as she has matured, and has been single-mindedly focused on providing a safe place for the children. She has now, as predicted, moved to a bigger house, closer in to Town E, and the children are happy and settled there. I have the benefit of information from the Independent Children’s Lawyer, who saw them in their new home, that they are doing well, and enjoying the prospect of return to school.

Conclusion

1. In the Family Report, the child D[9] was described as active and busy, with an obvious speech impediment. He has been diagnosed with global developmental delay, and has now, through his grandmother, been engaged in the NDIS scheme for support from a variety of sources.[10]

   [9] Family Report dated 07/10/2016, par 128

   [10] Family Report dated 07/10/2016, par 78

2. C was described by the Family Consultant[11] as active; did not enjoy school; no friends; mild memory difficulties. Since that report, C has progressed well at school, and is described by the ICL as thriving in her new circumstances.

   [11] Family Report dated 07/10/2016, par 121

3. The fact that the maternal grandmother is active at the school, and engaged in ensuring that the children can do the best they can, must be instrumental in that.

4. Orders are made accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Cleary delivered on 31 January 2019.

Associate: 

Date:  31 January 2019