FAMILY COURT OF AUSTRALIA
| ELIOT & DENT AND ANOR | [2016] FamCA 128 |
| FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Parental Responsibility – Where the Department of Family and Community Services has intervened – Issues of drug use and mental health of the parents – Where the children are currently in care – Non-parent party – Need to protect the children from harm – Orders made for the Department to hold parental responsibility. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C. |
| Aldridge & Keaton [2009] FamCAFC 229 |
| APPLICANT: | Mr Eliot |
| RESPONDENT: | Ms Dent |
| INTERVENOR: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Smythe Wozniak |
| FILE NUMBER: | PAC | 5823 | of | 2010 |
| DATE DELIVERED: | 3 March 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 22 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant appearing by telephone |
| COUNSEL FOR THE INTERVENOR: | Ms Boyle |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Smythe Wozniak |
Orders
It is ordered that:
All previous parenting Orders in relation to the following children (referred to collectively as “the children”) are discharged:
(a) B, born … 2008;
(b) C born … 2009; and
(c) D born … 2011.
PARENTAL RESPONSIBILITY
The Minister for Family and Community Services (“Minister”) exercise sole parental responsibility for the children.
LIVE WITH
The children shall live as directed by the Secretary, Department of Family and Community Services, (“Secretary”) or his delegate.
SPENDING TIME WITH THE MOTHER
Unless otherwise agreed, the children shall spend time with their mother, Ms Dent (“Mother”) on not less than six (6) occasions each calendar year, each occasion being a visit for a period of four (4) hours commencing at times and at a location nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
The Secretary’s delegate will prepare an annual schedule of dates and times on which the Mother will spend time with the children. The Secretary’s delegate will provide this schedule to the Mother in writing at the Mother’s nominated postal or email address and will inform the Mother in writing at her nominated email or postal address of any changes to the schedule.
The Mother will confirm that she is attending to spend time with the children by contacting the Secretary’s delegate at least 24 hours before the scheduled time, unless in the event of an unexpected emergency which results in the Mother being unable to contact the Secretary or his delegate, when she will…
Keep reading for free
Create a free CaseChat account to read Eliot and Dent and Anor and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] FamCA 128
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate exercise of parental responsibility for the children, where they should live, and the terms of any time the children would spend with their mother and father. Additionally, the court considered the exchange of information between the parties and the Secretary, and the imposition of restraints and injunctions on the parents.
Foster J ordered that all previous parenting orders be discharged. The Minister for Family and Community Services was granted sole parental responsibility for the children, and the children were to live as directed by the Secretary or his delegate. The mother and father were each to spend time with the children on no less than six occasions per year, for four-hour periods, with arrangements to be nominated by the Secretary or his delegate and supervised. Strict conditions were imposed on the parents regarding their conduct during these visits, including prohibitions on substance use, abusive language, and discussing the proceedings with the children. Further injunctions prevented the parents from approaching the children's residence, educational institutions, or extracurricular activity venues, and restricted communication to only that permitted by the orders. The Secretary or his delegate was to manage communication and information exchange, including the provision of school reports and notification of significant events concerning the children. The court also made provision for random drug testing of the parents.
Orders
Orders of the court
It is ordered that:
1.
All previous parenting Orders in relation to the following children (referred to collectively as “the children”) are discharged:
(a) B, born … 2008;
(b) C born … 2009; and
(c) D born … 2011.
PARENTAL RESPONSIBILITY
2.
The Minister for Family and Community Services (“Minister”) exercise sole parental responsibility for the children.
LIVE WITH
3.
The children shall live as directed by the Secretary, Department of Family and Community Services, (“Secretary”) or his delegate.
SPENDING TIME WITH THE MOTHER
4.
Unless otherwise agreed, the children shall spend time with their mother, Ms Dent (“Mother”) on not less than six (6) occasions each calendar year, each occasion being a visit for a period of four (4) hours commencing at times and at a location nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
5.
The Secretary’s delegate will prepare an annual schedule of dates and times on which the Mother will spend time with the children. The Secretary’s delegate will provide this schedule to the Mother in writing at the Mother’s nominated postal or email address and will inform the Mother in writing at her nominated email or postal address of any changes to the schedule.
6.
The Mother will confirm that she is attending to spend time with the children by contacting the Secretary’s delegate at least 24 hours before the scheduled time, unless in the event of an unexpected emergency which results in the Mother being unable to contact the Secretary or his delegate, when she will contact the Secretary or his delegate as soon as practicable thereafter.
7.
If the Mother does not attend a scheduled visit with the children within 30 minutes of the time it is nominated to commence, or does not inform the Secretary of her attendance pursuant to Order 6, or contravenes any of the Restraints and Injunctions set out at Order 23, the visit shall be cancelled.
8.
If two or more consecutive visits between the Mother and the children are cancelled pursuant to Order 7, the children shall spend time with their Mother at times, and for a duration, as nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
9.
In the event that the Mother is incarcerated, the children shall spend time with their Mother at times, and for a duration, as nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
SPENDING TIME WITH THE FATHER
10.
Unless otherwise agreed, the children shall spend time with their father,
Mr Eliot (“Father”) on no less than six (6) occasions each calendar year, each occasion being a visit for a period of four (4) hours commencing at times and at a location nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
11.
The Secretary’s delegate will prepare an annual schedule of dates and times on which the Father will spend time with the children. The Secretary’s delegate will provide this schedule to the Father in writing at the Father’s nominated postal or email address and will inform the Father in writing at his nominated email or postal address of any changes to the schedule.
12.
The Father will confirm that he is attending to spend time with the children by contacting the Secretary’s delegate at least 24 hours before the scheduled time, unless in the event of an unexpected emergency which results in the Father being unable to contact the Secretary or his delegate, when he will contact the Secretary or his delegate as soon as practicable thereafter.
13.
If the Father does not attend a scheduled visit with the children within 30 minutes after the time it is nominated to commence, or does not inform the Secretary of his attendance pursuant to Order 12, or contravenes any of the Restraints and Injunctions set out at Order 23 below, the visit will be cancelled and will not be rescheduled.
14.
If two or more consecutive visits between the Father and the children are cancelled pursuant to Order 13, the children shall spend time with their Father at times, and for a duration, as nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
15.
In the event that the Father is incarcerated, the children shall spend time with their Father at times, and for a duration, as nominated by the Secretary or his delegate. Such time is to be supervised at the discretion of and as directed by the Secretary or his delegate.
INFORMATION EXCHANGE AND COMMUNICATION
16.
The Mother and Father will each provide to the Secretary or his delegate in writing their nominated email or postal address and telephone number within 28 days of the making of these Orders.
17.
The Mother and Father will notify the Secretary or his delegate in writing of any change to their nominated email or postal address or telephone number within 14 days of this change occurring.
18.
Any written communication addressed to the Mother or Father, and delivered to the email or postal address nominated by the Mother or Father will be deemed to have been provided to the Mother and Father and to satisfy any requirement that the Secretary or his delegate provide documents or information to the Mother or Father.
19.
The Secretary or his delegate shall inform the Mother and Father as soon as practicable of any serious accident, medical emergency, or chronic developmental or medical conditions of any of the children.
20.
The Secretary or his delegate shall inform the Mother and Father as soon as practicable of any changes to the children’s living arrangements.
21.
The Secretary or his delegate shall provide the Mother and Father with copies of the children’s school reports.
22.
The Mother and Father may provide gifts, letters or cards addressed to the children to the Secretary or his delegate for forwarding to the children, subject to the Secretary’s delegate considering the material appropriate to be provided to the children.
RESTRAINTS AND INJUNCTIONS
23.
The Mother and Father are hereby restrained by injunction from:
(a) being under the influence of illicit drugs while spending time with the children, or permitting another person to do so, pursuant to these Orders;
(b) consuming any alcohol within twelve (12) hours of spending time with the children pursuant to these Orders;
(c) abusing, insulting or denigrating the children or any of the other parties, or a member of their family or household to or in the presence of the children or in telephone or written communication with the children, and from permitting another person to do so;
(d) discussing any allegation made or evidence given in these proceedings to or in the presence of the children or in her telephone or written communication with the children, and from permitting another person to do so;
(e) exposing the children to any form of family violence including verbal violence or using abusive language to, within, or in the hearing of the children;
(f) physically disciplining or striking the children;
(g) discussing with the children these proceedings, or any future court proceedings regarding the children; and
(h) questioning the children about the appropriateness of the other parties’ behaviour or parenting or partner’s behaviour or parenting while spending time with the children or communicating with the children by telephone or in writing.
24.
Unless otherwise agreed to in writing by the Secretary or his delegate, the Mother and Father are hereby restrained by injunction from entering or approaching:
(a) Within 200 meters of the residence of the children;
(b) Any educational institution attended by the children;
(c) Any venue where the children are participating in extra-curricular activities;
(d) Contacting the children or their carers by any means other than in accordance with these Orders.
25.
For the purpose of facilitating the children spending time with their Mother or Father, the Secretary or his delegate may request that the Mother or Father attend random chain of custody drug urinalysis screening in accordance with the current Australian Standard within twenty four (24) hours of a request of the Secretary’s delegate to do so.
NOTATIONS
(A) B and C currently reside with their paternal grandmother, Ms E, and D resides with authorised carers employed by the non-government organisation “Challenge Children’s Services”.
(B) The Secretary proposes that the children live together.
(C) In the event that the Secretary is unable to locate a placement for all of the children, the Secretary proposes that the children spend frequent and meaningful time together.
(D) In the event that one or more of the children is placed with authorised carers, the Mother and Father will be invited to participate in case reviews to discuss the children’s progress with their authorised carers and will be provided with a copy of the children’s annual case plans. Each case review shall take place on at least one (1) occasion each calendar year.
(E) The arrangements for the Mother and Father to spend time with or communicate with the children will be subject to ongoing review by the Secretary or his delegate, and will be reviewed in the annual case review of each child placed with authorised carers.
(F) The Secretary proposes that the children communicate with the Mother and Father by telephone. The arrangements for such telephone time are to be arranged in consultation with the children’s authorised carers and subject to this time being positive for the children.
(G) For the purpose of Orders 18 to 22 and Notation D, any documents provided to the Mother and Father by the Secretary or his delegate may be redacted to prevent disclosing identifying information of the children’s authorised carers or the private contact details of persons who are not parties to these proceedings.
(H) If the Secretary’s delegate becomes aware that the Mother or Father is no longer living at their nominated address and not receiving material sent to their nominated address, but no new address is provided, the Secretary’s delegate may stop writing to the nominated address if this would place the children at risk of harm or risk disclosing confidential information about the children or their authorised carers to persons who are not parties to these proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.