Clarke and Gordon and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE & GORDON & ANOR

[2014] FCCA 995

Catchwords:
FAMILY LAW – Parenting.

Applicant:

MR CLARKE

First Respondent:

MS GORDON

Second Respondent:

MS WILLDER

File Number:

PAC 2690 of 2012

Judgment of:

Judge Dunkley

Hearing dates:

11, 12, 13 and 14 June 2013, 28 November 2013, 16 and 17 December 2013 and 10 and 12 March 2014

Date of Last Submission:

12 March 2014

Delivered at:

Parramatta

Delivered on:

6 June 2014

REPRESENTATION

Solicitors for the Applicant:

No appearance

Counsel for the First Respondent:

Mr Ginges

Solicitors for the First Respondent:

JR Lawyers

Solicitor Advocate for the Second Respondent:

Mr MacDiarmid

Solicitors for the Second Respondent:

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

Mark MacDiarmid Family Law Specialist

Mr Guterres

Sarah Bevan Family Lawyers

ORDERS

The maternal grandmother Ms Willder shall have sole parental responsibility for the children X born (omitted) 1999 and Y born (omitted) 2003 (“the children”), and that:
(a)The maternal grandmother shall keep the applicant father and the first respondent mother advised of the matters relating to the children’s long term care, welfare and development;
(b)Each of the applicant father and the first respondent mother shall be entitled to communicate with the maternal grandmother any views in relation to matters relating to the children’s long term care, welfare and development; and
(c)The maternal grandmother shall give due regard to such views but, in the event that no agreement is reached, then the maternal grandmother shall be the person to make any final decision.
The applicant father shall have parental responsibility for making decisions in respect of the children that are not major long term issues whilst the children are in his care, including but not limited to, the children’s attendance at extra-curricular activities and social functions.
The children live with the maternal grandmother.
The children spend time with the applicant father as agreed between the maternal grandmother and the applicant father.
The children spend such time with the first respondent mother as follows and with the following conditions:
(a)For a period of two (2) years from the date hereof, for a minimum of three hours per week at times and locations to be determined by the maternal grandmother and conditional upon such time being supervised;
(b)After two (2) years, the mother’s time shall be for a minimum of six hours per week at times, locations and with a level of supervision to be determined by the maternal grandmother;
(c)Any time X spends with the mother shall be subject to her wishes;
(d)The mother’s time, where it is to be supervised, shall be supervised by either of the mother’s sisters or some other person agreed to by the maternal grandmother;
(e)The maternal grandmother shall not be the supervisor of the mother’s time with the children;
(f)The mother shall comply with any reasonable direction provided by the supervisor who shall be at liberty to terminate the mother’s time in the event the supervisor becomes concerned of any risk to the child, including but not limited to the mother appearing drug affected;
(g)Any unsupervised overnight time between the mother and the children be subject to the mother’s successfully completing a residential drug rehabilitation program and ongoing drug counselling and providing confirmation to the maternal grandmother and the Independent Children’s Lawyer of same, and shall not commence any earlier than two (2) years from the date hereof.
When the children are spending time with each party and for a period of 24 hours prior to such time taking place such party be and is restrained from consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales.
Each party be and is hereby restrained from consuming illicit substances while spending time with the children and for a period of 48 hours prior to such time taking place.
Each party be and is hereby restrained from denigrating (which word is taken to include, without limitation, making any negative comment or gesture) the other party or any member of the other party’s family or permitting any other person to denigrate the other in the presence of or in the hearing of the children.
Each of the parties shall keep each of the others advised of the health of the children including any serious illness, medication or hospitalisation of the children as soon as reasonably practicable.
The children shall communicate with each of the parties by telephone at any reasonable time when they are in another party’s care and each party shall do all things necessary to facilitate the children communicating with the other parties by telephone on a regular basis.
The appointment of the Independent Children’s Lawyer is extended with respect to the children X and Y for a twelve (12) month period from the date of the making of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Clarke & Gordon & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2690 of 2012

MR CLARKE

Applicant

And

MS GORDON

First Respondent

MS WILLDER

Second Respondent

REASONS FOR JUDGMENT

The evidence in this case was heard conjunctively and simultaneously with the evidence in the proceedings known as M & Gordon & Willder. That is because Ms Gordon (hereinafter the mother) is the mother of X born (omitted) 1999, Y born (omitted) 2003 and Z born (omitted) 2009.
Ms Willder (the maternal grandmother) intervened in both sets of proceedings.
Mr D is the biological father of X. He has played no part in the proceedings. He has never appeared. He has never filed any documents. X regards Mr Clarke as her psychological father.
Mr Clarke is the biological father of Y.
Mr M is the biological father of Z.
Mr Clarke ceased to participate actively in the proceedings sometime after orders were made on 7 November 2012. Such orders required that X and Y live with the maternal grandmother and be returned to that home by Mr Clarke by not later than 17 November 2012. The background to this order was that Mr Clarke had relocated with X and Y from New South Wales to Queensland without notice, and the sibling group had been split.
He did not file any documents for the purposes of the final hearing. He declined to participate in the preparation of the Family Report notwithstanding that he was ordered to do so, the Family Consultant having left several messages attempting to arrange his attendance.[1]
[1] Exhibit ‘H’, paragraph 73
His lawyers were granted leave to withdraw on the first day of the final hearing.
Notwithstanding this he seems to have remained on “good terms” with the maternal grandmother and has continued to spend some time during school holiday periods with X and Y.
The case has however proceeded to final hearing on an undefended basis as and against him.
Mr M has never sought parenting orders with respect to X and Y. Sensibly so as he has no real relationship with them, and each of X and Y view him with antipathy, and are fearful of him.
During the course of the final hearing Ms Gordon abandoned her application for the three children to live with her and indicated that she consented to final parenting orders being made in the terms sought by Ms Willder and the Independent Children’s Lawyer.
At the commencement of final submissions Counsel for the Independent Children’s Lawyer provided to the Court a Minute of Order which sought the following:
1. The maternal grandmother Ms Willder, have sole parental responsibility for the children X born (omitted) 1999 and Y born (omitted) 2003 (“the children”), and that:
1.1 The maternal grandmother shall keep the applicant father and the first respondent mother advised of the matters relating to the children’s long term care, welfare and development;
1.2 Each of the applicant father and the first respondent mother shall be entitled to communicate with the maternal grandmother any views in relation to matters relating to the children’s long term care, welfare and development; and
1.3 The maternal grandmother shall give due regard to such views but, in the event that no agreement is reached, then the maternal grandmother shall be the person to make any final decision.
2. The applicant father shall have parental responsibility for making decisions in respect of the children that are no major long term issues whilst the children are in his care, including but not limited to, the children’s attendance at extra-curricular activities and social functions.
3. The children live with the maternal grandmother.
4. The children spend time with the applicant father as agreed between the maternal grandmother and the applicant father.
5. The children spend such time with the first respondent mother as follows and with the following conditions:
i. For a period of twelve months, for a minimum of three hours per week at times and locations to be determined by the maternal grandmother and conditional upon such time being supervised;
ii. After two twelve months, the mother’s time shall be for a minimum of six hours per week at times, locations and level of supervision to be determined by the maternal grandmother;
iii. Any time X spends with the mother shall be subject to her wishes;
iv. The mother’s time, where it is to be supervised, shall be supervised by either of the mother’s sisters or some other person agreed to by the maternal grandmother;
v. The maternal grandmother shall not be the supervisor of the mother’s time with the children;
vi. The mother shall comply with any reasonable direction provided by the supervisor who shall be at liberty to terminate the mother’s time in the event the supervisor becomes concerned of any risk to the child, including but not limited to the mother appearing drug affected;
vii. Any unsupervised overnight time between the mother and the children be subject to the mother’s successfully completing residential drug rehabilitation program and ongoing drug counselling and providing confirmation to the maternal grandmother and the Independent Children’s Lawyer of same.
6. When the children are spending time with each party and for a period of 24 hours prior to such time taking place such party be and is restrained from consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales.
7. Each party be and is hereby restrained from consuming illicit substances while spending time with the children and for a period of 48 hours prior to such time taking place.
8. Each party be and is hereby restrained from denigrating (which word is taken to include, without limitation, making any negative comment or gesture) the other party or any member of the other party’s family or permitting any other person to denigrate the other in the presence of or in the hearing of the children.
9. Each of the parties shall keep each of the others advised of the health of the children including any serious illness, medication or hospitalisation of the children as soon as reasonably practicable.
10. The children communicate with each of the parties by telephone at any reasonable time when they are in another party’s care and each party shall do all things necessary to facilitate the children communicating with the other parties by telephone on a regular basis.
The submissions made by the Independent Children’s Lawyer were largely adopted by the advocate representing Ms Willder.
As a consequence of the above there was no real issue to be determined about the parenting orders to be made regarding X and Y.
Nevertheless the Court must be satisfied that the orders proposed by the Independent Children’s Lawyer and assented too largely without objection by the mother and the maternal grandmother and made on an undefended basis as and against the fathers of X and Y are in the children’s best interest and reasonably practicable.
For reasons of the mother’s drug addiction she is not at this time a capable or competent parent.
She professes a desire to enter into a residential drug rehabilitation course to deal with her drug addiction but has previously expressed this desire without carrying through with it.
At this point in time Ms Gordon lacks the emotional maturity to parent her children. She has committed crime whilst with X and Y.[2]
[2] Family Report dated 6 May 2013 paragraph 98
She is unable to protect them from exposure to the volatile and violent relationship that she had with Mr M.
She does not have access to a home in which to house the children.
She will need to focus much of her energy on overcoming her drug addiction, rebuilding her life so as to become a maturely functioning adult.
Until that time it is not in the best interests of the children to live with her nor for her to have a decision making power relating to the children by way of a parental responsibility order.
Ms Willder on the other hand is willing to devote herself to the care of the children. She is a capable functioning adult who has the children’s best interests at the forefront of her mind. She has a home. She is employed and is thereby able to meet the physical needs of the children.[3] Since mid-2012, apart from a short period, the children have lived with her and her partner in her home.
[3] Family Report dated 6 May 2013 paragraph 100
She has been somewhat naïve with respect to her daughter, Ms Gordon’s, shortcomings however she remains the only adult figure willing to take on the responsibility of a live with and parental responsibility order for X and Y.
The Family Consultant at paragraph 149 of her Report expresses the opinion:
The children appeared to have a well-developed bond between them and ideally they should live together.[4]
[4] Family Report dated 6 May 2013 Exhibit ‘H’
X prefers not to live with the mother. Y prefers to live with her mother.[5]
[5] Family Report dated 6 May 2013 paragraphs 97 & 111
Having heard the evidence I am satisfied that there is an unacceptable risk that if X and Y live with Ms Gordon they will be exposed to her drug addiction, her criminal activities and poor parental example and likely have their physical needs neglected. No such risk exists if they live with Ms Willder.
She is able to feed, house and clothe the children and support their schooling education.
For these reasons it is in the best interests of X and Y that they live with Ms Willder. Notwithstanding this is contrary to Y’s view.
The maternal grandmother will allow the children to maintain a relationship with Mr Clarke. She will ensure safety in their interactions with Ms Gordon.
I am satisfied that the orders proposed by the Independent Children’s Lawyer are reasonably practicable, because they give to the maternal grandmother the necessary power to make decisions for the children after considering the parents’ views. The proposal is also reasonably practicable because it enables the children to have a home and attend at schools that they are familiar with.
It is for the above reasons that the orders are made.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate:

Date: 6 June 2014

[2014] FCCA 995

6 June 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness