FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRAKE & DRAKE & ANOR | [2014] FCCA 2950 |
| Catchwords: FAMILY LAW – Parenting – competing applications for live with Order for six Aboriginal Children by Aboriginal Maternal Grandmother and Department of Family and Community Services – Children removed from the Maternal Grandmother by the Department during course of proceedings without notice – Maternal Grandmother’s long history with the Department – poor communication between the Maternal Grandmother and the Department – Maternal Grandmother’s inadequate housing – superficial proposal by the Department for the Children to connect with their culture – Order made for the Maternal Grandmother to have sole parental responsibility for the Children and for Children to be returned to the Maternal Grandmother. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61F, 64B, 65DAC |
| Burton & Churchin & Anor [2013] FamCAFC 180 B & F [1998] FamCA 239 Donnell & Dovey [2010] FamCAFC 15 H & H [1994] 19 FamLR 165 H v W (1995) FLC 92-598 Hort & Verran (2009) FLC 93-418 In the Marriage of B and R (1995) FLC 92 636 Kitsannis & Netpoulis [2010] FamCAFC 214 Lawson & Warren [2011] FamCA 38 Malcolm & Monroe (2011) FLC 93-460 Mulvany & Lane (2009) FLC 93-404 R and R: Children’s Wishes (2000) FLC 93-000 Rice & Miller (1993) 16 Fam LR 970 at 977 Valentine & Lacerra & Anor [2013] FamCAFC 53 |
| Applicant: | MS J DRAKE |
| First Respondent: Second Respondent: Intervenor: | MS K DRAKE MR GARWOOD DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File Number: | SYC 501 of 2012 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 8, 9, 10, 11, 12 and 22 September 2014 |
| Date of Last Submission: | 22 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Speirs & Associates |
| Counsel for the First Respondent: | Mr Breeze |
| Solicitors for the First Respondent: | Jones Rolfe Rudd |
| Solicitors for the Second Respondent: | In person |
| Advocate for the Intervenor: Solicitors for the Intervenor: | Mr Harris Crown Solicitor’s Office |
| Advocate for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer | Ms Wearne Legal Aid Commission NSW |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The Children [U] born [omitted] 2003, [V] born [omitted] 2004, [W] born [omitted] 2006, [X] born [omitted] 2007, [Y] born [omitted] 2008, and [Z] (known by the Department of Family and Community Services as [Z]) born [omitted] 2010 live with the Maternal Grandmother.
The Children [U], [W], [Y] and [Z] be returned to the Maternal Grandmother by no later than 4.00p.m. on 19 December 2014 when the Department of Family and Community Services will arrange for the Children to be delivered to the Maternal Grandmother’s residence with their belongings.
The Children spend time with the Mother by arrangement with the Maternal Grandmother, but for no longer than 4 hours per day.
The Children spend time with the Father (whether in Sydney or [C]) by arrangement with the Maternal Grandmother, but for…
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- Case
- [2014] FCCA 2950
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the children, who would hold parental responsibility, and the specific arrangements for the children's time with their mother and father. Further issues included the extent of the maternal grandmother's engagement with various support services, the children's education and healthcare needs, and specific restrictions on the parties.
The court ordered that the six children live with the Maternal Grandmother, who was granted sole parental responsibility. The children were to spend time with their mother and father, but for no more than four hours per day, by arrangement with the Maternal Grandmother. The Maternal Grandmother was directed to engage with specific services for counselling, parenting support, and the children's education and health needs, including attending the Aboriginal Medical Service Redfern. Restrictions were placed on the Maternal Grandmother regarding drug use, the children's residence location, and contact with specific individuals. The mother and father were also restrained from consuming alcohol or illicit drugs prior to and during their time with the children, and the mother was restrained from allowing the children to spend time with a Mr S. The Independent Children's Lawyer was to remain involved for 12 months.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
2.
The Children [U] born [omitted] 2003, [V] born [omitted] 2004, [W] born [omitted] 2006, [X] born [omitted] 2007, [Y] born [omitted] 2008, and [Z] (known by the Department of Family and Community Services as [Z]) born [omitted] 2010 live with the Maternal Grandmother.
3.
The Children [U], [W], [Y] and [Z] be returned to the Maternal Grandmother by no later than 4.00p.m. on 19 December 2014 when the Department of Family and Community Services will arrange for the Children to be delivered to the Maternal Grandmother’s residence with their belongings.
4.
The Children spend time with the Mother by arrangement with the Maternal Grandmother, but for no longer than 4 hours per day.
5.
The Children spend time with the Father (whether in Sydney or [C]) by arrangement with the Maternal Grandmother, but for no longer than 4 hours per day.
6.
The Applicant Maternal Grandmother have sole parental responsibility for the Children.
7.
The Maternal Grandmother continue to engage with [M] Women’s Service and accept all referrals and recommendations made by her [M] caseworker in respect of her attendance at counselling, participation in parenting courses (including advice on nutrition), attendance at further drug and alcohol counselling, tutoring for the Children, nutrition, literacy assistance, and respite care.
8.
The Maternal Grandmother ensure the Children are enrolled at [L] School and/or [omitted] School or such other school as may be recommended for each of the Children pursuant to Personalised Learning Plans formulated for each Child by the Aboriginal Education Consultative Group of the NSW Department of Education.
9.
Except in the case of an emergency, the Maternal Grandmother ensure the Children and each of them attend at the Aboriginal Medical Service Redfern (“the AMS”) for management of their health needs and the Maternal Grandmother accept all referrals made for the Children to attend specialist or other appointments as recommended by the Aboriginal Medical Service.
10.
The Maternal Grandmother forthwith:
(a) Make an appointment with the AMS social worker to discuss arrangements to be made for:
(i) Coordination of the Children’s attendance at, and transport to, specialist medical and dental appointments; and
(ii) Advocating for services to address the Children’s special needs; and
(b) In respect of [U]:
(i) Arrange for [U] to be assessed by an AMS doctor for the development of an asthma plan; and
(ii) Take all steps to arrange counselling, including sexual assault counselling, for [U] through the Aboriginal Health Team at Royal Prince Alfred Hospital.
11.
The Maternal Grandmother continue to engage in the drug rehabilitation program with the Aboriginal Medical Service.
12.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) forward to the Aboriginal Medical Service a letter to be placed on each of the Children’s files detailing the following:
(a) That for any specialist appointments the Children need to attend, the Maternal Grandmother and Children will require assistance with transportation;
(b) Requesting assistance from the Aboriginal Medical Service social worker for the purposes of coordinating appointments and transport of the Children to appointments;
(c) Requesting assistance from the Aboriginal Medical Service social worker in advocating for services to address the Children’s (and in particular [W]’s) special needs.
13.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) provide to the Aboriginal Medical Service and [M] the following:
(a) A sealed copy of these Orders;
(b) A copy of the report of Mr R released by way of Order dated 4 September 2014.
14.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) request in writing that the Aboriginal Health Team at Royal Prince Alfred Hospital arrange counselling, including sexual assault counselling, for [U] and the Independent Children’s Lawyer provide to the Aboriginal Health Team:
(a) A sealed copy of these Orders;
(b) A copy of the report of Mr R released by way of Order dated 4 September 2014.
15.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) provide to Aunty [name omitted] of the Aboriginal Education Consultative Group and the Principal of [L] School a copy of these Orders.
16.
The Independent Children’s Lawyer have liberty to provide a copy of these Orders and Reasons to any Agency engaged to assist the Maternal Grandmother.
17.
Notwithstanding any other Order, the Mother and Father are authorised by these Orders to obtain from any school that the Children or each of them attend, information as to the Children’s educational progress, welfare and development, including but not limited to:
(a) Copies of all school reports, awards, and information regarding the Children’s achievements and activities;
(b) Any remedial learning or behaviour correction strategies required by the Children or each of them; and
(c) School photograph order forms so that each parent has the opportunity to order copies of the Children’s school photographs.
18.
The Maternal Grandmother use her best endeavours to have the Children involved in extra-curricular and/or team sporting activities including, but not limited to, the [omitted] or any of the child and adolescent sporting programmes offered by the National Centre of Indigenous Excellence.
19.
The Maternal Grandmother be restrained from:
(a) Using any drugs except as prescribed by a medical practitioner;
(b) Removing the Children’s residence from within a 15 km radius of the Sydney CBD; and
(c) Allowing Mr W to enter any place where the Children are living or spending time, and/or allowing any of the Children to spend any time with Mr W;
(d) Allowing Mr S to enter any place where the Children are living or spending time, and/or allowing any of the Children to spend any time with Mr S.
20.
Order 19(b) does not restrain the Maternal Grandmother from visiting [C] with the Children during the school holidays, on condition they do not miss any school days.
21.
The Mother and Father not consume alcohol and/or illicit drugs 12 hours prior to and/or during the time that the Mother and Father spend time with the Children.
22.
The Mother be restrained from allowing the Children to spend any time with Mr S.
23.
The Independent Children’s Lawyer remain in the matter for a period of 12 months and have liberty to apply in relation to implementation of these Orders on 5 days’ notice.
24.
The Maternal Grandmother’s solicitor be responsible for reading these Orders and Reasons to the Grandmother, or arranging for another person known to the Grandmother to do so, in full before the return of the Children
25.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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