Eckley and Hiegate

[2011] FamCA 438

FAMILY COURT OF AUSTRALIA

ECKLEY & HIEGATE [2011] FamCA 438

FAMILY LAW – CHILDREN – the terms upon which parental responsibility to be granted to the intervenor and subsequently the mother and the paternal grandparents for one or other of the children.

Family Law Act 1975 (Cth)

U v U (2002) 211 CLR 238

APPLICANT: Ms Eckley

RESPONDENT: Mr Hiegate

INDEPENDENT CHILDREN’S LAWYER: The Charlestown Law Firm

INTERVENOR: Department of Family & Community Services

FILE NUMBER: NCC 505 of 2009

DATE DELIVERED: 2 June 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Rose J

HEARING DATES: 31 May 2011 & 1 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Martin G Reilly, Solicitor
COUNSEL FOR THE RESPONDENT:	R Wilkinson
SOLICITOR FOR THE RESPONDENT:	Winder Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	T Bates
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	The Charlestown Law Firm
COUNSEL FOR THE INTERVENOR:	G Moore
SOLICITOR FOR THE INTERVENOR:	Crown Solicitor’s Office NSW

Orders

1. That all previous orders are discharged.

2. That the Minister NSW Department of Family & Community Services have parental responsibility for the children B (“B”) born … 1998 and C (“C”) born …2000 for the period from today until 2 June 2013 (“the children”).

3. That B live with Ms D Hiegate (“the paternal grandmother”) on the proviso that the paternal grandmother complies with the conditions set out in paragraph 3(a) of Exhibit 3 save and except that the paragraph is varied so that after the word “that” in the first line in paragraph 3(a) includes the words and figure “for a period of five (5) years from today” as follows:

   3That B live with the paternal grandmother, Ms D Hiegate on the proviso that the paternal grandmother complies with the conditions set out below:

   (a)That for a period of five (5) years from today the paternal grandmother accept the supervision of the Director-General in relation to B and that such supervision include, but not be restricted to the following matters:

   (i)The Director-General or her delegate may conduct random home visits to the paternal grandmother’s residence.

   (ii)The paternal grandmother is to ensure the Director-General or her delegate have entry to the premises at which B resides at all times.

   (iii)The paternal grandmother is to ensure the Director-General or her delegate may meet with and talk with B as and when the Director-General or her delegate may choose.

   (iv)The paternal grandmother accept all reasonable directions of the Director-General or her delegate in relation to her care of B.

   (v)The paternal grandmother accept and facilitate all reasonable referrals medical, educational and otherwise made by the Director-General or her delegate for B.

   (vi)The paternal grandmother to notify the Director-General or her delegate of any change of address for B.

   (vii)The paternal grandmother to ensure that B remains enrolled at and attends E School, the school she is currently enrolled in 2011.  The paternal grandmother is not to enrol B in any other school without the written permission of the Director-General or her delegate.

4. That C live with Ms Eckley (“the mother”) on the proviso that the mother complies with the following conditions as follows:

   (a)Order in terms of paragraph 4(a) of Exhibit 3 save and except that the paragraph is varied so that after the word “that” in the first line in paragraph 3(a) includes the words and figure “for a period of five (5) years from today”:

   4.That C live with the mother, Ms Eckley on the proviso that the mother complies with the conditions set out below:

   (a)That for a period of five (5) years from today the mother accept the supervision of the Director-General in relation to C and that such supervision include, but not be restricted to the following matters:

   (i)The Director-General or her delegate may conduct random home visits to the mother’s residence.

   (ii)The mother is to ensure the Director-General or her delegate have entry to the premises at which C resides at all times.

   (iii)The mother is to ensure the Director-General or her delegate may meet with and talk with C as and when the Director-General or her delegate may choose.

   (iv)The mother accept all reasonable directions of the Director-General or her delegate in relation to her care of C.

   (v)The mother accept and facilitate all reasonable referrals medical, educational and otherwise made by the Director-General or her delegate for C.

   (vi)The mother to notify the Director-General or her delegate of any change of address for C.

   (vii)The mother to ensure that C remains enrolled at and attends F School, the school she is currently enrolled in 2011.  The mother is not to enrol C in any other school without the written permission of the Director-General or her delegate.

   (viii)The mother not be under the influence of alcohol or illicit drugs while she cares for C.

5. That an Order is made in terms of paragraphs 5 and 6 of Exhibit 3 as follows:

   5.In the event of the Director-General becoming aware of facts or circumstances relating to the care of [B] which raise a concern for the Director-General as to the safety of [B] and/or there being a risk of psychological harm to [B] while living with the paternal grandmother, the Director-General is to consider exercising her discretion and removing [B] from her paternal grandmother’s care.  The Director-General may apply for further orders from this Court in those circumstances, or is at liberty to apply to a relevant State court.

   6.In the event of the Director-General becoming aware of facts or circumstances relating to the care of [C] which raise a concern for the Director-General as to the safety of [C] and/or their being a risk of psychological harm to [C] while living with the mother, the Director-General is to consider exercising her discretion and removing [C] from her mother’s care.  The Director-General may apply for further orders from this Court in those circumstances, or is at liberty to apply to a relevant State court.

6. That an Order is made in terms of paragraph 7 of Exhibit 3 save and except that the words and figures “twelve (12) months” are deleted and replaced with the words and figure “two (2) years from today”, and after the words “paternal grandmother” the words “and the paternal grandfather” are inserted as follows:

   7.In the event that the paternal grandmother complies with Order 3 such that there is no application by the Director-General for further orders in relation to [B] from this Court or any relevant State court before the expiration of two (2) years from today, then the paternal grandmother and paternal grandfather shall have parental responsibility for [B] until she attains the age of 18 years.

7. That an Order is made in terms of paragraph 8 of Exhibit 3 save and except that the words and figures “twelve (12) months” are deleted and replaced with the words and figures “two (2) years from today” as follows:

   8.In the event that the mother complies with Order 4 such that there is no application by the Director-General for further orders in relation to [C] from this Court or any relevant State court before the expiration of two (2) years from today, then the mother shall have parental responsibility for [C] until she attains the age of 18 years.

8. That an Order is made in terms of paragraph 9 of Exhibit 3 save and except that the word “grandmother” is deleted and replaced with the word “grandparents” as follows:

   9.That [B] spend time with the mother in accordance with [B’s] wishes and as agreed by the Director-General and the paternal grandparents.

9. That an Order is made in terms of paragraph 10 of Exhibit 3 save and except that the word “grandmother” is deleted and replaced with the word “grandparents” as follows:

   10.That [B] and [C] spend time with the father, [Mr Hiegate] in accordance with [B] and [C’s] wishes and as agreed by the Director-General, the mother and the paternal grandparents.

10. That an Order is made in terms of paragraph 11 of Exhibit 3 save and except that the word “grandmother” is deleted and replaced with the words “grandparents or either of them” as follows:

    11.That any time spent between the father and [B] and [C] is to be supervised by the paternal grandparents or either of them.

11. That an Order is made in terms of paragraph 12 of Exhibit 3 save and except that the “grandmother” is deleted and replaced with the words “grandparents or either of them” as follows:

    12.That any time spent between B and C with the paternal uncles, [Mr G] born … 1963 and Mr H (also known as Mr H) born … 1962 is to be supervised by the paternal grandparents or either of them.

12. That an Order is made in terms of paragraph 14 of Exhibit 3:

    14.That the father is restrained from drinking alcohol or taking illicit drugs at least twelve (12) hours prior to spending time with the children or either of them and throughout the whole of the period of time he spends with the children.

13. Liberty to apply to set aside, vary or suspend any of the Orders made this day upon three (3) days written notice being given.

NOTATION:

A.The Court notes the undertakings of the paternal grandparents being Exhibits 4 and 5 annexed hereto.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC505 of 2009

Ms Eckley

Applicant

And

Mr Hiegate

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings parenting orders were sought in relation to parental responsibility:  with whom the children should live; periods of time that the parents may spend with the children;  and the terms upon which each of those matters may occur.

2. The two children the subject of these proceedings are:

   (a)B, 13 years of age having been born in1998 (who for convenience I shall refer to as “B”);  and

   (b)C, 10 years of age having been born in 2000 (who for convenience I shall refer to as “C”).

3. Currently B lives with the paternal grandparents and C lives with the mother.  The father has spent irregular periods of time with B.  The father has not spent any periods of time with C for many months.

4. On 17 March 2011 in the Local Court, J Town an Apprehended Violence Order was made for a period of twelve months against the father for the protection of C.  The order was made without admissions.

5. Exhibit 2 is a document entitled “Agreed Facts - Agreed Issues in Dispute”.  Admissions are made in Exhibit 2 of an appalling history of alcohol and substance abuse, family violence, and the criminal antecedents of each of the parents.

6. The mother’s convictions include an assault on B.  The father’s convictions include an assault on his then three year old step-son.  There is also the current Apprehended Violence Order against the father to which I have made earlier reference.

Issue in dispute

1. Following discussions between the legal representatives for the parties, the issues for determination were narrowed as appears from Exhibits 2 and 3.

2. I conveniently summarise the issue in dispute as appears from paragraphs 1 and 2 of Exhibit 2:

   “1.The issue in dispute is whether parental responsibility for the children [B] born on …, 1998 now aged 13 and [C] born on …, 2000 now aged 10 is:

   (a)in the case of [B] granted to the Minister for 12 months on conditions set out in the Director-General’s proposed orders and then granted to solely to the paternal grandmother until the child obtains the age of 18 or parental responsibilities allocated to the Minister for Families and Community Services until the child obtains the age of 18

   (b)in the case of [C] parental responsibility is granted to the Minister for 12 months on conditions set out in the proposed orders of the Director-General and then granted solely to the mother until the child obtains the age of 18 years or parental responsibility is granted to the Minister for Families and Community Services until the child obtains the age of 18.

   2.The ICL seeks the Order to the Minister until each child attains the age of 18 years.  The Applicant, Respondent and Intervener [that is the parents and the intervener] seek the Orders proposed by the Intervener.”

3. The narrowing of the issues as appears from Exhibit 2 followed discussions between the legal representatives for the parties.  They are to be highly commended for the role that they have played in ensuring that appropriate advice was given and instructions received so that the issue for determination is the one to which I have referred, as opposed to the range of issues that otherwise appeared from the affidavits and reports that had  been filed in these proceedings.

Conclusion

1. With regard to the issue of parental responsibility I have determined that an order will be made in favour of the intervenor for a period of five years.

2. My reasons for doing so are as follows.

3. I principally rely upon and give weight to the evidence given by Ms K, a manager in the employ of the intervenor as well as the affidavits filed on the intervenor’s behalf.  I was impressed with the obvious experience, thoughtfulness and concern given by Ms K during the course of her oral evidence and the frankness with which she gave her evidence about matters which may have been rather controversial.

4. In essence, the practicalities of the situation are as follows.

5. The intervenor’s resources are stretched.  There is a limit as to the extent to which, from a practical viewpoint, the intervenor can carry out a meaningful role, as opposed to giving mere lip service to the important issue of parental responsibility.

6. The situation on the evidence, which I have accepted, is that after a period of twelve months the policy of the intervenor is that, so far as case management of issues involving the children and those entrusted with the responsibility for care of them, moves from the current team of caseworkers to others.  Following that period time the intervenor responds on a reactive basis to matters of concern.  That is, that should there be a report or notification made then the intervener would ensure that action in terms of home visits or other appropriate action takes place.  Otherwise, the intervenor by the staff carry out, in effect, a passive role.

7. Consequently, to make an order for the period as quite understandably contended by the independent children’s lawyer, that is until each child attains the age of 18 years, will be to provide responsibility to the intervenor which realistically cannot be carried out, except in the very limited circumstance to which I have referred.

8. The evidence given by the family consultant who prepared the family report, now seconded to a different area of government, is that in her opinion it is important that the intervenor be carrying out a role in the background as a means of being able to respond to situations which may develop which are adverse to the care of the children or either of them and otherwise to carry out such supervisory role as is appropriate.

9. I have given consideration to that approach.  I accept the submissions made by experienced and capable counsel for the independent children’s lawyer in terms of the emphasis upon the realistic situation that is likely to develop of matters of concern for both or either of the children given the lamentable history of matters which have affected the care of the children almost from the time of their birth.

10. However, notwithstanding those matters and given that unfortunately what might be ideal is not available in terms of parental responsibility by the intervenor, coupled with the practicalities of the manner in which parental responsibility might be carried out in the long-term, I have concluded that it is in the best interests of the children that I make the order as previously indicated by me namely, that the intervenor carries out the role for a period of five years.

11. The parties should not loose sight of the fact that it is always open to one or more of them to make an application in this Court to set aside, vary, suspend all or any of the parenting orders that might be made in the event that significant changed circumstances may have occurred to enable such an application to have a real measure of success.

12. Consequently, parenting orders are not final in the sense that they can never be set aside or varied.  As no doubt, advice would be given by experienced legal representatives to the parties, such an application can be made in the circumstances to which I have referred.

13. It is important also that the parents and the paternal grandparents understand that such an application can be made and one possible result might be that a child is no longer living with the adult who has that responsibility, or that a parent is no longer able to spend any periods of time or communicate with the child should it no longer be in the child’s best interests that such event occurs.

14. There is no issue that B live with the paternal grandparents.  She has been in their care since early this year.  The evidence, which I accept, is that she is now settled in that environment and making progress.

15. Similarly, there is no issue that C continue to live with the mother.  The mother has had a very difficult history in terms of the issues referred to in the introduction to this judgment.

16. I accept the evidence of Ms K that the mother has now made substantial progress.  The mother is living in a settled environment with her partner.  The mother needs to be more diligent in ensuring that urinalysis reports are provided as required by the intervenor.  The mother should understand that in the event that reasonable directions provided by the intervenor are not complied with, without reasonable excuse, then there is a real risk that C may no longer be living with the mother.  That in turn would be unsettling for the child as well as the mother.

17. There comes a time when parents have to accept responsibility for their children, rather than relying upon a government department to carry out a role that they themselves should be performing.

18. This is an opportunity for the parents to take a new approach to this matter.

19. These comments equally apply to the father in the limited role which he seeks namely, to spend time on a supervised basis with the children or either of them.

20. The father has a number of children by one or more other partners.  Notwithstanding the information that he apparently gave to the family consultant about periods of time that he spends with them, his own primary affidavit makes it clear that he has not had communication with them for a long period of time.

21. I raised an issue as to whether or not the father has been paying child support given his alleged dedication to the welfare of the children the subject of these proceeds.  I was informed that the father has resumed paying child support, albeit only to the mother.

22. Only the father knows why he considered it appropriate that his two elderly parents who include his mother, whose health has been poor in recent times, should be left to provide the sole financial support for his children, rather than the father making provision for them.  In that regard, I note the submission made by his counsel on instructions that the father has from time-to-time provided clothing for B.  The extent to which that has occurred and the cost involved is something which is not the subject of any evidence.

23. However, the father’s counsel has assured me on his instructions that the father will now pay to the paternal grandparents the same amount that he is required to pay to the mother and will make all payments to both of them promptly and as required.  Time will tell whether or not that approach is implemented in a satisfactory way or, has been merely indicated through his counsel to make a good impression.

1. I was also concerned about the period of time of supervision of each of the mother and initially the paternal grandmother and then accepted to be the paternal grandparents, in the context of each of the children living with one or the other.

2. Initially, it was submitted that such supervision be for a period of one to two years.  The independent children’s lawyers submitted that it be for a longer period.  Notwithstanding the limitations on the resources of the intervenor, I accept the evidence of the family consultant that it is nonetheless important that each of the parties understand, that is the parents and the grandparents, that the intervenor has a role to play.  The intervenor may well exercise that role for the purpose of ensuring in the best interests of the children that they are being appropriately and properly cared for.  Consequently, the order that I make in that regard will be for a period of five years from today.

3. I had also raised with counsel as to whether or not it is in the best interests of the two children that there be an order permitting the father to spend time with them or either of them in view of the history to which I have referred.

4. Upon further consideration, I have accepted the submissions made on the father’s behalf by his counsel that the issues in this matter were compromised as set forth in Exhibit 2 and the case then proceeded accordingly.  I am not bound by the proposals that either of the parties might make in terms of parenting orders as has been made clear by the High Court in U v U[1].

   [1] U v U (2002) 211 CLR 238

5. Due to my concerns about that matter I raised the issue so that submissions could be made.  I have concluded that it is in the best interests of the children that there be supervised periods of time that the father may spend with them in the terms set out in Exhibit 3.

6. Accordingly, orders will be made in that regard also that is in relation to the orders sought by the intervenor.

7. I have accepted the undertakings provided by the each of the paternal grandparents being Exhibits 4 and 5 and copies of those undertakings will be annexed to the engrossed sealed orders once they have been issued.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 2 June 2011.

Associate:     

Date:  15 June 2011