Dirks and Anor and Irvin
[2019] FCCA 2908
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRKS & ANOR & IRVIN | [2019] FCCA 2908 |
| Catchwords: FAMILY LAW – Interim parenting orders – child has intellectual disabilities –parents have intellectual disabilities – child has lived with the respondent grandmother since birth – child to spend time with parents and siblings – conflict between the mother and respondent grandmother – wishes of child to spend time with his parents and siblings – applicable principles – best interests of the child – equal shared parental responsibility between parents and respondent grandmother – Independent Children’s Lawyer – Family report. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 69ZL |
| Cases cited: Deitre & Deitre [2011] FamCAFC 82 |
| First Applicant: | MR DIRKS |
| Second Applicant: | MS ALDANA |
| Respondent: | MS IRVIN |
| File Number: | MLC 12431 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 October 2019 |
| Date of Last Submission: | 3 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Counsel for the Applicants: | Ms R. Dunlop |
| Solicitors for the Applicants: | Victoria Legal Aid |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms S. Macgregor |
| Solicitors for the Independent Children’s Lawyer: | Macgregor Barristers and Solicitors |
ORDERS
Parental responsibility and live with arrangements
The applicants and respondent have equal shared parental responsibility of the child [V] born … 2010 (the Child), and for the avoidance of doubt the parties’ equal shared parental responsibility includes, but is not limited to, decisions as to where the Child should attend school, the religion that he may practice and any issues related to elective medical surgery.
The Child live with the maternal grandmother.
Spend time
The mother and father spend time and communicate with the child as follows:
(a)commencing on Saturday, 5 October 2019, and every second Saturday thereafter from 10:00am until 5:00pm;
(b)commencing on Saturday, 11 January 2020 and every second weekend thereafter from 10:00am Saturday until 10:00am Sunday;
(c)commencing on Saturday, 7 March 2020 and every second weekend thereafter from 10:00am Saturday until 5:00pm Sunday;
(d)commencing on Friday, 8 May 2020 and every second weekend thereafter from 4:00pm Friday until 5:00pm Sunday;
(e)commencing with the September 2020 school term holidays, for the first half of all school term and long summer school holidays with time to begin at 4:00pm on the last pupil day of school and concluding at 4:00pm on the middle Saturday of the school holiday period;
(f)on the Child’s birthday as follows:
(i)from 4:00pm until 6:30pm if the birthday falls on a school day;
(ii)from 10:00am until 2:00pm if the birthday falls on a non-school day.
(g)for the birthdays of the mother, the father and the child’s siblings, being [W] born … 2012, [X] and [Y] born … 2013 and [Z] born … 2015 as follows:
(i)from 4:00pm until 6:30pm if the birthday falls on a school day;
(ii)from 10:00am until 2:00pm if the birthday falls on a non-school day and the child would not otherwise be in the care of the mother and father on that day;
(h)on Father’s Day from 10:00am until 5:00pm;
(i)on Mother’s Day from 10:00am until 3:00pm;
(j)for Christmas as follows:
(i)in 2019, from 10:00am until 5:00pm Christmas Day;
(ii)in 2020, and every second year thereafter from 4:00pm Christmas Eve until 4:00pm Christmas Day;
(iii)in 2021, and every second year thereafter from 4:00pm Christmas Day until 4:00pm Boxing Day.
(k)when the mother and father have booked tickets to attend the B Performance on Saturday, … 2020 from 9:00am on Saturday … 2020 until 5:00pm on Sunday … 2020;
(l)such further or alternative times as agreed in writing between the parties from time to time.
The mother’s and father’s time with the child be suspended and the Child spend time with the maternal grandmother as follows:
(a)commencing with the September 2020 school term holidays for the second half of all school term and long summer school holidays with time to begin at 4:00pm on the middle Saturday of the school holiday period;
(b)on the Child’s birthday from 2:00pm until 6:00pm if the birthday falls on a non-school day;
(c)on Mother’s Day from 3:00pm;
(d)for Christmas as follows:
(i)in 2020 and every second year thereafter from 4:00pm Christmas Day until 4:00pm Boxing Day;
(ii)in 2021 and every second year thereafter from 4:00pm Christmas Eve until 4:00pm Christmas Day.
(e)such further or alternative times as agreed in writing between the parties from time to time.
Subject to paragraph 6 of this Order, that handovers occur with;
(a)the mother and/or father or their agent to collect the Child from the maternal grandmother’s residence at the commencement of their time; and
(b)the maternal grandmother, or her agent to collect the child from the mother’s and father’s residence at the conclusion of their time.
If any party chooses to use a third party to attend handover on their behalf, they are to advise the other, by SMS text message of who that person will be.
If the respondent maternal grandmother fails to make the child available for spend time, without the prior agreement of the applicants she is to:
(a)provide a medical certificate outlining why the child was unable to attend time, and;
(b)provide make up time to the mother and father on the weekend immediately following the lost time.
Schooling
The mother, father and maternal grandmother are authorised to attend upon the Child’s school for parent/teacher interviews, school concerts, assemblies, and such other activities as parents may be permitted to attend from time to time and this Order shall operate as providing such authorisation.
The mother, father and maternal grandmother receive copies, at their expense, of the Child’s school reports, photographs, notices, newsletters and such other material as parents may receive from time to time.
If the Child is absent from school for all or part of the day, within 24 hours of such non-attendance, the maternal grandmother is to provide a medical certificate to the school and the mother and father regarding this absence.
Within seven (7) days of the date of these orders the mother and father be listed as emergency contacts for the child at the Child’s school.
Providing Information
Direct that the parties communicate by means of a Communication Book, or alternatively by MyMob, Our Family Wizard or other application.
The parties inform each other of any emergency medical treatment the Child may receive while in their care within four (4) hours of first contact with a health care professional.
Within seven (7) days of the date of this Order, the maternal grandmother provide the mother and father with the details of all medical and allied health care professionals seen by the child including their name address and contact details.
The parties advise each other of the details of any medical practitioners or health care professionals seen by the Child while in their care
The mother, father and maternal grandmother be permitted to speak and meet with all medical and allied health practitioners seen by the Child, and this Order constitutes such authorisation.
The parties advise each other of their current residential address, telephone and email contact details and advise of any change within twenty-four hours of any change being made.
Restraints
The parties be restrained from:
(a)denigrating, abusing or insulting the other parties and their extended family in the presence or hearing of the Child;
(b)discussing the court proceedings in the presence of hearing of the Child;
(c)permitting the Child to view court documents or leaving the court documents in a place where the Child might view them.
The respondent grandmother undertake a Parenting Orders Program conducted by Family Relationship Centre C and upon completion of that course provide a certificate of completion to the Independent Children’s Lawyer.
For the purposes of paragraph (19) of this Order:
(a)the Independent Children’s Lawyer be authorised to provide Family Relationship Centre C with a copy of this Order, the reasons for judgment given on 3 October 2019 and the family report of Mr D dated 7 August 2019;
(b)the documents provided to Family Relationship Centre C pursuant to paragraph 20(a) of this Order be kept confidential by Family Relationship Centre C and not disclosed to any person save with the leave of the court.
The mention fixed for 15 April 2020 be vacated.
Independent Children’s Lawyer have leave to issue more than five subpoenas.
A Further family report not later than 1 June 2020, pursuant to s 62G(2) of the Family Law Act1975 (Cth), the parties and the child [V] born … 2010 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report (the Report) to be given to the Court no less than 35 days prior to the hearing date.
The Report deal with the following matters:
(a)any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the likely effect on the child/ren if the Court were to make orders in terms of the father’s and the mother’s proposed orders;
(d)any other matters that the Family Consultant considers important to the welfare or best interests of the child/ren.
The parties send copies of all of their court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
If a party is not represented by a lawyer, then within 7 days of being notified that a Family Consultant has been appointed to prepare the Report, each party deliver to the Family Consultant copies of the following documents:
(a)all relevant applications or responses filed by, or on his or her behalf, in the proceeding;
(b)all relevant affidavits filed by, or on his or her behalf, in the proceeding; and
(c)any family violence intervention or restraining orders currently in force.
For the purpose of completing the Report, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceeding.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceeding relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
The Independent Children’s Lawyer is directed to seek that Family Dispute Resolution Services be arranged for the parties and Independent Children’s Lawyer following receipt of the further family report.
Liberty to apply.
AND THE COURT NOTES THAT:
A.The maternal grandmother is presently considering that she may move to a residence which is closer to the child’s current school (School A).
B.The applicant mother and father have installed a CCTV camera at the front of their home.
C.The Independent Children’s Lawyer advises that the Parenting Order Program conducted by Family Relationship Centre C provide flexible programs so as to facilitate the working commitments of persons who may wish to attend such courses.
D.The respondent grandmother submits that the child is progressing well, and is a popular student at his school and she desires that he should continue at that school for that moment.
E.The respondent grandmother concern is to ensure that the child mental wellbeing is properly addresses.
F.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
G.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Dirks & Anor & Irvin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12431 of 2018
| MR DIRKS |
First Applicant
| MS ALDANA |
Second Applicant
And
| MS IRVIN |
Respondent
Ex tempore REASONS FOR JUDGMENT
(Revised from transcript)
These reasons for judgment explain interim parenting orders that are made in anticipation of a trial which is fixed to occur in August 2020.
The parenting arrangements the subject of the present proceeding have had a long and protracted history in this court. By way of example only, no less than five family reports have been provided in relation to the parenting arrangements since February 2012.
The present application is brought by the applicant father and mother seeking a strictly regimented framework of orders by which the parties will be completely clear in the arrangements which are to be set in place until trial in order that the child, [V] born … 2010 (the Child), can spend more time with his parents and with his four siblings, all of whom live with the applicant parents.
The present proceeding was commenced on 26 October 2018 by the child’s parents seeking orders which would more closely regulate the parenting arrangements for the Child. The application was made following a consent order which was made between the parties and the respondent grandmother on 4 November 2015. It is to be emphasised that those orders were made by consent. When those orders were made, the parties were legally represented and they (together with the court), had the assistance of Ms Macgregor, Independent Children’s Lawyer (ICL). Following the institution of the present proceeding, an order was made for the appointment of an ICL and as events occurred it was possible for Ms Macgregor to accept reappointment as ICL. The court and the parties are very fortunate that Ms Macgregor has continued to provide assistance in the matter.
Following the institution of the present application in 2018, the proceeding has now been the subject of a mention on no less than three occasions. In the course of those mentions, orders were made setting the matter down for trial on 13 August 2020.
Orders were also made for a further family report. For the purpose of the present application, I have paid regard to the relief sought in the initiating application, the response and each of the affidavits that have been filed in the proceeding together with the parties’ notices of risk. It is unnecessary in the circumstances of the present application to rehearse the history as detailed in those affidavits.
Following the provision of the most recent family report, the applicant parents sought urgent interim relief so as to break what appeared to be a deadlock concerning the Child’s time with his parents and four siblings. The deadlock appears, regrettably, to have arisen out of a conflict between the mother and respondent grandmother. Perhaps more optimistically it appears that those relations may have some sign for potential improvement. It is to be hoped that this is so.
As concerns interim parenting applications the court is authorised by section 69ZL of the Family Law Act 1975 (Cth) to provide reasons in short form for a decision it makes upon interim parenting arrangements. These reasons are given in accordance with that provision.
Further, in Good & Goode,[1] the Full Court provided a pathway to be followed in making interim parenting orders and acknowledged that such applications involved an abridged process where the scope of inquiry was significantly curtailed. The Full Court accepted that on an interim application the court cannot and should not be drawn into deciding contested issues of fact where the merits of the substantial case has not been fully considered.[2] As noted above the principles to be applied in relation to interim parenting applications are well settled. Following Goode & Goode they were affirmed by the High Court in MMR & GR.[3]
[1] Good & Goode [2006] FamCA 1346.
[2]See also Marvel & Marvel [2010] FamCAFC 101 at 120 – 122; Deitre & Deitre [2011] FamCAFC 82, [61].
[3] MMR & GR [2010] HCA 4.
It is not necessary to set out at length the objects and principles underlying Part VII of the Act which concerns parenting.[4] When deciding whether to make particular parenting orders the court is required to have regard to the best interests of the child as the paramount consideration.[5] Section 60CC of the Act outlines both the primary and additional considerations that the court is required to take into account in determining what is in the best interests of the child.
[4] s 60B, Family Law Act 1975 (Cth).
[5] s 60CA, Family Law Act 1975 (Cth).
In the present case it is clear that at least on an interim basis the equal shared parental responsibility which was provided for by the order made, by consent, on 4 November 2015 should continue in operation. Likewise, in accordance with the proposals of both the applicants and the grandmother that the Child should continue to live with the grandmother until further order.
I have paid careful attention to the fifth and most recent report by Mr D, family consultant, whose report is dated 7 August 2019. Again, the court records its gratitude for the close attention which Mr D has paid to the best interests of the Child. While I will not rehearse the whole of Mr D's report its in extensive detail, I note that each of the parties are in receipt of Commonwealth benefits.
As stated above, the applicants have four other children who are the siblings of the Child, the subject of this proceeding. Whilst both parents acknowledge that they each suffer from an intellectual disability, they contend that this has not prevented them from caring for their four other children.
Likewise, the respondent grandmother who lives a little over half an hour from the applicants’ residence is in receipt of a Commonwealth benefit and is not working. She does, however, live with her partner who is engaged in employment.
The present application arises against a history of the Child being taken into the grandmother’s primary care not long after his birth. Following the making of consent orders in late 2015 for the Child to spend regular time with his parents, those consent arrangements continued on an informal basis until April 2017.
It appears that at about this time there was what Mr D described as a “falling out” between the grandmother and the mother which arose at a difficult time following the passing of the grandmother’s father. Endeavours were made to secure a further parenting plan with the assistance of Victoria Legal Aid who arranged mediation on 5 June 2018, doing so with a view to the Child building up his spend time with his parents. Although a second mediation was arranged, limited spend time occurred and the present application was initiated.
The family report writer paid close regard to important risk factors in assessing what would be in the best interests of the Child and noted the considerable involvement of the Department of Health and Human Services which I have also considered. The most recent family report provides insightful observations as to the absence or presence (as the case requires) of risk factors posed with respect to: family violence and abuse; child safety and wellbeing; alcohol and substance abuse; mental health and other matters.
The family consultant also paid close attention to the present position of each of the parents and their intellectual disabilities and their ability to cope as parents for their other four children. Consideration was also given to the position of the grandmother. The family report writer observed relevantly:
The main protagonists in this matter are Ms Irvin and her daughter, Ms Aldana. They have had an off and on relationship during the seven years this family consultant has been involved with them. When Ms Irvin ‘claimed’ [V] following his birth and continued to marginalise Ms Aldana, the conflict in their mother/daughter relationship has centred on [V]’ future care.
As concerns the Child and the views of the Child, the family consultant noted that [V] was now nearly nine years of age and was interviewed alone at his grandmother’s house and at his parents’ house. He was also observed during his time with his siblings. The family consultant observed that the Child spoke quietly and softly and was aware of the purpose of the interviews and understood that the family consultant wished to speak with each of him, his parents and grandmother on the topic of how much time he should spend with his parents in the future. It was further reported that the Child was also aware that after his interview the maternal grandmother would be taking him to his parents’ house in order that he could see his parents and his siblings. The family consultant concluded as follows:
[V] made it clear that he wanted to see more of them because he doesn’t see them very much. He spoke about a recent outing to the cinema with his parents, siblings and pop (Mr E) to see Toy Story. [V] stated he enjoyed being with them and knew who they were, even though he hardly sees them. When asked if he would like to stay for weekends at their house and stay overnight he immediately nodded his head in agreement.
The family consultant provided detailed consideration of his observations of the Child, both in the company of his grandmother, his parents and siblings and provided a considered evaluation as to how matters might progress in the best interests of the Child. A series of recommendations were made which have, in large part, been taken up in the outline of submission that has been filed on behalf of the applicant parents and the minute of proposed order, much of which was not the subject of any contest.
Those proposed orders were the subject of further consideration with counsel for the applicants and those orders were the subject of refinement. In addition to the orders, additional orders were proposed as a means of facilitating enhanced communication between the parties and for the undertaking of a parenting course.
In helpful submissions, Ms Macgregor for the ICL was wholly supportive of the orders that were proposed. The grandmother provided a number of helpful submissions. In particular, she was clear that she wants the Child to have a relationship with each of his parents and his siblings. She is to be applauded for the adoption of that position.
Further, the grandmother informed the court that arrangements were now in place for the Child to be the subject of assessment for whether he has an autism spectrum disorder. Funding has been secured for this assessment, which is due to occur in November 2019 (and will require some six or seven appointments). Likewise, the grandmother informed me of the assistance that the Child receives from an occupational therapist, a speech therapist and a special needs assistant at his school where he is progressing well and is a popular student. The grandmother acknowledged the need to improve communication with the parties and, to her credit, recognised the need that the parents should be properly informed by her of the Child’s particular needs (as she sees them) in relation to both parenting and foods.
I have given close consideration to the outline of submissions and oral submissions made in the application. In particular, I accept the submissions on behalf of the applicant parents concerning the primary considerations and each of the additional considerations which are thought to be of particular relevance in this case. I am satisfied, based upon those submissions and the expert evidence of the family consultant, that despite the parents’ intellectual disabilities they have a demonstrated ability to look after and raise their four other children (who have also been diagnosed with disabilities).
I am unaware whether any question arises in relation to the respondent grandmother’s own mental state and express no view about that issue. However, a powerful consideration in favour of the making of the orders sought is it is clear that all parties want the Child to have a relationship with his parents and with each of his siblings and, most importantly, he has expressed his clear wishes that he should have such relationships. Part VII of the Family Law Act 1975 (Cth) provides unambiguously that the rights of a child involve a right to spend time with each of his or her parents and extended family, including, relevantly, his or her siblings unless there is any countervailing reason why that should not occur. I am satisfied in this case that the orders as proposed by the applicant with the support of Ms Macgregor, the ICL, are appropriate orders to be made in this case.
I certify that the preceding twenty-seven (25) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly.
Associate:
Date: 23 October 2019
Key Legal Topics
Areas of Law
-
Family Law
0
4
2