Cudmore & Godley (No 2)
[2024] FedCFamC1F 220
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cudmore & Godley (No 2) [2024] FedCFamC1F 220
File number(s): NCC 3150 of 2021 Judgment of: SMITH J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – vacation of final hearing dates close to trial – child court expert strongly recommends against placement with either parent – paternal half-sibling and her husband joined as second respondents – second respondents assessed as suitable by the child court expert – second respondents withdraw for personal reasons - request for the Department of Communities and Justice to intervene – vacate final hearing. Legislation: Family Law Act 1975 (Cth) Pt IX s 91B Cases cited: Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 14 March 2024 Place: Newcastle Solicitor-advocate for the Applicant: Mr Shepherd Solicitor for the Applicant: Nls Law Solicitor-advocate for the First Respondent: Mr Whyte Solicitor for the First Respondent: Robert Whyte Solicitor Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Fielden Solicitor for the Independent Children's Lawyer: Fielden & Associates ORDERS
NCC 3150 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CUDMORE
Applicant
AND: MR GODLEY
First Respondent
MS LENIHAN AND MR LENIHAN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS BY CONSENT THAT:
1.The Second Respondents, Mr and Ms Lenihan be removed as parties from these proceedings.
THE COURT FURTHER ORDERS THAT:
2.The matter be listed for mention on Monday, 16 December 2024 at 11.00 am by Microsoft Teams.
3.The Final Defended Hearing commencing on Monday, 22 April 2024 at 10.00 am for four (4) days in-person be vacated.
4.Orders 8–12 of the Orders dated 7 December 2023 be vacated.
91B request – Department to Intervene
5.Pursuant to section 91B of the Family Law Act 1975 (Cth), the Secretary of the Department of Communities and Justice is requested to intervene in these proceedings in relation to the child X born 2019.
6.The parties are to forward to the Solicitor for the Secretary of the Department of Communities and Justice at its Head Office, not later than 4.00pm on 23 April 2024 copies of the documents filed by each of the parties to date.
7.Leave is granted to the Director-General of the NSW Department of Communities and Justice, or their delegate, to inspect and copy any documents on the Court file forming part of the Court record.
THE COURT NOTES THAT:
A.The recommendations in the Family Report dated 23 May 2023 prepared by Court Child Expert (“CCE”) Ms B at paragraph [176] states “[g]iven the risks in the matter, the CCE cannot make a recommendation for [X] to be in the care of either parent”.
B.In the Family Report Addendum dated 15 December 2023 prepared by CCE Ms B at paragraph [76] “[i]t is maintained that a recommendation cannot be made for [X] to be in the care of either parent”.
C.The subject child’s sibling, C (DOB 2017) was removed from the care of the parents by the Department of Communities and Justice immediately after his birth and placed in the care of the paternal grandparents (see paragraph 6, Family Report dated 23 May 2023).
D.The subject child’s maternal half-sibling, D (DOB 2010) was removed from the mother’s care shortly after birth by the Department of Communities and Justice and placed in foster care (see paragraph 7, Family Report dated 23 May 2023).
E.There are significant concerns regarding the parents’ parental capacity (see paragraph 89, Family Report dated 23 May 2023).
F.The father was convicted for multiple sexual offences against an adult woman. The subject child may have been present for one of the offences. The father was investigated for a sexual offence against a child, also reported to be in the room at the time of this alleged incident (see paragraphs 91-93, Family Report dated 23 May 2023).
G.The father has expressed comments to the Court Child Expert Ms B which were concerning, and also to DCJ staff (see paragraph 104, Family Report dated 23 May 2023).
H.The mother has significant mental health concerns (see paragraphs 110-113, Family Report dated 23 May 2023).
I.The Independent Children’s Lawyer sought to contact the paternal grandmother, who has custody care and control of C, to inquire as to whether she would consider intervening in this proceeding (see Notation D of orders dated 5 July 2023).
J.The Independent Children’s Lawyer attempted to contact the foster carer of D about intervening (see Notation B of orders dated 14 July 2023).
K.The second respondents were joined to these proceedings on 11 August 2023 pursuant to Order 2 as a possible kinship placement option.
L.A Family Report Addendum was Ordered on 3 October 2023 in view of the joinder of the second respondents. It was released to the parties on 15 January 2024.
M.The second respondents filed a Notice of Discontinuance on 14 March 2024 in the context of their own pregnancy.
N.In light of the Notice of Discontinuance filed by the second respondents on 14 March 2024, the parties and the Court have exhausted all available options with respect to other suitable persons who may seek parenting orders with respect to the subject child.
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).
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 by this Court under the pseudonym Cudmore & Godley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter is listed before me today for mention. It is listed for a final hearing on 22 April 2024.
This is a difficult and complex case in which there are significant current risks to the child X (born 2019) now aged 4.
The Court Child Expert Ms B’s strongly stated opinion is that she could not recommend placing X with either the mother or the father.[1]
[1] Family Report dated 23 May 2023 at [176] “[g]iven the risks in the matter, the CCE cannot make a recommendation for [X] to be in the care of either parent”; Family Report Addendum dated 15 December 2023 at [76] “[i]t is maintained that a recommendation cannot be made for [X] to be in the care of either parent”.
While the expert’s opinion is untested, and not binding, the reasoning process exposed in the Family Report, by reference to the available evidence, makes her opinion one which could prima facie be anticipated to be given significant weight.
X’s maternal half-sibling, D (born 2010) was removed from the mother’s care shortly after birth by the Department of Communities and Justice and placed in foster care.
X’s sibling, C (born 2017), was removed from the care of the parents by the Department of Communities and Justice immediately after his birth and placed in the care of the paternal grandparents.
The mother has significant mental health impairments which appear to significantly impair her parenting capacity.[2]
[2] Family Report dated 23 May 2023 starting from [110] –[119].
The father was convicted for sexual offences against an adult woman. Despite his convictions he denied committing the offences when speaking with the expert. For present purposes I rely on the convictions. Further, the child was apparently in the care and presence of the father at the time he committed these offences.
The father was also investigated for a sexual offence against a child. The father was accused of touching her on her vagina twice on the outside of her clothes and putting his hand up her shirt. This was not proceeded with for reasons which are not known.[3] The father denies the allegations, but his comments to the expert about the issue are themselves concerning. The evidence surrounding allegations will need to be considered noting that this Court assesses risks, not guilt or innocence.[4]
[3] Family Report dated 23 May 2023 at [91] – [93].
[4] Isles & Nelissen [2022] FedCFamC1A 97.
X lives with the father at present. That is currently the lesser of the two risks.
The father is facilitating time between X and the mother.
The paternal grandmother, who has C, is not in a position to also assist with X and is not, and will not become, a party.[5]
[5] Orders dated 5 July 2023, Notation D.
The ICL identified X’s paternal half-sibling and her husband, Mr and Ms Lenihan, as potential parties. They indicated that they were willing to be parties and to consider seeking live with and parental responsibility orders for the child. They were joined as the second respondents. The Family Report addendum, ordered to assess their suitability, identified them as more appropriate options than either parent.[6]
[6] Family Report Addendum dated 15 December 2023 at [73].
Mr and Ms Lenihan circumstances have recently changed with a pregnancy, and they are no longer able to offer to care for X. They have filed a discontinuance.
Whilst this is unfortunate, they were being asked to take on a great burden, and the Court thanks them for their consideration of the issue.
In circumstances where the second respondents have filed a notice of discontinuance it is no longer appropriate for them to be parties. The Independent Children’s Lawyer (“ICL”) and the other parties to the proceedings accept that it is appropriate that they no longer be parties. It may be that they will be witnesses in the proceedings, but they do not need to be, nor should they be, parties. Of my own oral motion and noting the consent of all parties, I remove Mr and Ms Lenihan as the second respondents from the proceeding and they are excused from any further attendance, unless asked to be witnesses.
In circumstances where the expert strongly recommends against the child living with either of the parties, the paternal grandmother cannot assist, and the paternal half sister and her husband are no longer options, it is clear that the matter must be referred to the Department of Communities and Justice (“the Department”) so that they can be requested to intervene.
I understand that the Department has very limited resources and a very large number of serious cases.
However, it seems to me that this is one of those cases which should attract the attention and intervention of the Department given the risks associated with leaving a little girl with a convicted sex offender, and one who has also been investigated for sexual offences against a child.
I make the formal order requesting the Department to intervene and that the relevant material is to be provided to the Department.
I vacate the hearing.
I vacate the orders for preparation for hearing.
I will relist the matter when we have a response from the Department.
Those are my reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 10 April 2024
0