FANNING & KRESS AND ANOR
[2020] FamCA 278
•28 February 2020
FAMILY COURT OF AUSTRALIA
| FANNING & KRESS AND ANOR | [2020] FamCA 278 |
| FAMILY LAW – CHILDREN – undefended – where both the mother and the father have failed to comply with court orders – where the child lives with the maternal grandmother – where the second respondent maternal grandmother seeks leave to proceed on an undefended basis – leave to proceed undefended is granted – where the maternal grandmother seeks sole parental responsibility of the child and that the child live with her and spend no time with the mother or the father – where both the mother and the father pose an unacceptable risk to the child – order that the maternal grandmother have sole parental responsibility – order that the child live with the maternal grandmother – order that the child spend no time with the mother or the father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Family Law Rules 2004 (Cth) r 11.02 |
| APPLICANT: | Mr Fanning |
| FIRST RESPONDENT: | Ms Kress |
| SECOND RESPONDENT: | Ms Sims |
| INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
| FILE NUMBER: | MLC | 6357 | of | 2018 |
| DATE DELIVERED: | 28 February 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 28 February 2020 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| THE FIRST RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Higgins, Higgins Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McNamee, Clark Family Lawyers |
Orders
That all previous orders be discharged.
That the second respondent have sole parental responsibility for the child, namely X, born … 2015 (“the child”).
That the child live with the second Respondent.
That the child spends no time with the applicant father or the first respondent mother.
That the applicant and first respondent have liberty to apply.
That the second respondent be at liberty to register the child’s birth with the Victorian Registry of Births, Deaths and Marriages and that the second respondent obtain a copy of the child’s Birth Certificate which, for the avoidance of doubt, can be done without the consent of the applicant or the first respondent.
That the second respondent be at liberty to apply for, obtain and maintain a passport and any necessary visa(s) with respect to the child, which for the avoidance of doubt, can be done without the consent of the applicant or the first respondent.
That the father be restrained, whether by himself his servants or agents or howsoever otherwise from communicating with or being within 200 meters of the second respondent or her residence.
That the order for the appointment of an Independent Children’s Lawyer be discharged.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all extant applications otherwise be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fanning & Kress and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6357 of 2018
| Mr Fanning |
Applicant
And
| Ms Kress |
First Respondent
And
| Ms Sims |
Second Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Introduction
These proceedings relate to the future parenting arrangements for the child, X born … 2015, aged almost five years.
The proceedings commenced their life in the Federal Circuit Court of Australia in June 2018 by way of an Initiating Application filed by the father for parenting orders in respect of X. Initially, those proceedings were as between the father and the mother. In March 2019 the second respondent, who is the maternal grandmother, sought and obtained leave to intervene in the proceedings.
Background
The parties to the proceedings are firstly, Mr Fanning, who is the applicant father and he is aged 51 years. The mother is Ms Kress and she is aged 26 years. Although she was previously residing at the home of the second respondent, currently her whereabouts are not known. The second respondent is the child’s maternal grandmother, Ms Sims and she is aged 65 years (“the maternal grandmother”). The maternal grandmother is an allied health worker who resides in Suburb P. The Department of Health and Human Resources (“DHHS”) have also had involvement and have intervened in the proceedings, although they have not participated in the proceedings since the matter was transferred to the Family Court of Australia.
Initially, these proceedings were listed for a final hearing before Judge Kelly in the Federal Circuit Court in June of 2019. At that time there was an interim hearing conducted before Judge Kelly over a period of two days. That hearing culminated in the orders made by his Honour on 27 June 2019. The orders then made included that until further order the maternal grandmother have sole parental responsibility for X; that until further order X live with the maternal grandmother; that until further order the mother spend time with X on condition that the time be substantially supervised by the maternal grandmother, and in such manner as the maternal grandmother considered appropriate; that the father spend time on a supervised basis at a child contact supervision centre.
Further orders were made for the mother and the father to attend for psychiatric assessment.
At that time the proceedings were then transferred to this Court. In his reasons for judgment, delivered in conjunction with the making of those orders, Judge Kelly sets out much of the history of these proceedings. There are substantial issues in this case arising from family violence and also as a result of substance abuse. As to family violence, it is alleged that the father has a significant criminal history. He has a conviction for murder and has served a significant period of incarceration arising from that conviction. He also has been involved in the trafficking and use of illicit substances, for which he has had convictions.
It is also alleged that the father has an affiliation with motorcycle gangs. The maternal grandmother also alleges that she has been subjected to family violence at the hands of the father. She has previously made an application for intervention orders against him, and as a result of the hearing before Judge Kelly there is an injunction against the father, restraining him from approaching the maternal grandmother or her residence. The maternal grandmother seeks a continuation of that order today.
There are also issues in relation to the mother’s use of illicit substances. She has had a long history of substance abuse, which has impacted her capacity to appropriately care for the child, or, indeed, to care for herself. The mother was, for a period of time, living at the home of the maternal grandmother; however, in about October 2019 the mother vacated the maternal grandmother’s residence. Currently, the mother’s whereabouts are not known.
The matter first came before me for trial directions in August 2019. At that hearing all parties were represented by lawyers, and I made directions listing the matter for a five day hearing commencing 24 February 2020.
In addition to fixing the matter for final hearing, I made the usual trial directions requiring the parties to file trial affidavit material. As a result of concerns regarding the compliance by the mother and the father with those trial directions, the matter was called on for mention before me on 6 February 2020. At that hearing I was informed that the mother, who had been living with the maternal grandmother and the child, had left the maternal grandmother’s home in about October 2019. Since that time, save for some sporadic text messages, the mother has made no contact with the maternal grandmother or the child. The mother has been listed with Victoria Police as a missing person and her whereabouts are not known.
I was also informed at that mention hearing that the father too has disengaged with the court process, that he has not filed material in accordance with my trial directions. Further, there had been some indication by him to the lawyers for the maternal grandmother that he was not wishing to further engage in court processes. As a result of that information, on 6 February 2020 I made orders as follows:-
1.That these proceedings remain listed in the defended list of case returnable before the Honourable Justice Johns on 24 February 2020.
2.That on or before 17 February 2020 the Independent Children’s Lawyer and the solicitor for the second-named respondent forward by way of service by email to the father at … and at … a minute of final orders to be sought at the final hearing listed on 24 February 2020.
3.That as soon as practicable the Independent Children’s Lawyer shall serve on the father by way of email care of … and … a sealed copy of these orders.
4.That the father personally attend Court on the first day of hearing, namely 24 February 2020 and in default of appearance the maternal grandmother, namely Ms Sims, be granted liberty to seek leave to have the proceedings proceed on an undefended basis.
…
In addition to those orders, I made notations as follows:-
A.The father’s solicitors have filed a Notice of Ceasing to Act.
B.A brief was delivered to Mr Potter of Counsel and on instructions, the brief was returned to the father’s former solicitors.
C.In the event of the father’s non-attendance at Court on 24 February 2020, the second respondent may seek to proceed with her application for final orders on an undefended basis and final orders may be made in the father’s absence.
It was the position of the maternal grandmother at that hearing, and remains so today, that in circumstances where both the mother and the father have disengaged with the court process, that the matter should proceed on an undefended basis.
The matter was again listed before me for final hearing on 24 February 2020. That day I was informed that the father had not been given notice of the hearing in accordance with my orders of 6 February 2020. As a result, I made further orders on 24 February, as follows:-
1.That by 4.00pm this day the Independent Children’s Lawyer cause the following documents to be served on the applicant father by way of substituted service to … and … :
a.Orders dated 6 February 2020;
b.Minute of Orders sought dated 24 February 2020; and
c.These orders.
I made a further order at paragraph 2, adjourning all extant applications for final hearing before me at 10am this day. Paragraphs 3 to 5 provided as follows:-
3.That by 12 noon on 25 February 2020 the second respondent file and serve an affidavit as to her knowledge of the respondent mother’s whereabouts and the circumstances of her disappearance.
4.That the father personally attend Court at the hearing on 28 February 2020.
5.In the event of the father’s failure to attend at Court on 28 February 2020 the second respondent have leave to seek to proceed with her application for final orders on an undefended basis.
A notation to that orders reads as follows:-
In the event of the father’s non-attendance at Court on [28 February 2020], the second respondent may seek to proceed with her application for final orders on an undefended basis and final orders may be made in the father’s absence.
On 24 February 2020, the independent children’s lawyer (“ICL”) caused the following documents to be served on the father at his last known email addresses:-
·Orders dated 6 February 2020;
·Orders dated 24 February 2020; and
·A minute of orders sought dated 24 February 2020.
This is evidenced by the affidavit of Rowan McNamee, affirmed and filed on 27 February 2020. At paragraph 5 of that affidavit, Mr McNamee deposes as to service on the father by email of the documents required pursuant to the 24 February 2020 orders. Annexed to his affidavit at RM-01 is a copy of the email forwarded to the father at his last used email addresses, namely, … and …. I note that the email was forwarded to those addresses on 24 February 2020 at 2.07 pm. Accordingly, having regard to that affidavit, I am satisfied that the father has had notice of the orders made by me and, further, notice of this hearing.
I am informed by Mr McNamee that there has been no response received by him in relation to the email sent on 24 February 2020. That fact is confirmed by Mr McNamee at paragraph 6 of his affidavit to which I have already referred. The father was called in the Court precincts at the commencement of this hearing. He did not respond to that call. In circumstances where the father was represented at the hearing before me in August 2019 when the matter was fixed for hearing and where he has had notice of the hearing date in the Notice of Ceasing to Act filed by his former lawyers on 4 February 2020, I am satisfied that the father has had notice of this hearing.
Should the maternal grandmother have leave to proceed undefended?
The father has filed no material in compliance with my trial directions of August 2019. Further, he has failed to attend Court personally in accordance with the orders made by me on 6 February and 24 February 2020. Rule 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:-
(1)If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
Note: This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.
The maternal grandmother submits that as a result of the father’s failure to engage in the proceedings or to comply with orders of this Court, the matter should be allowed to proceed on an undefended basis. As previously noted, I am satisfied that the father has had notice of the hearing listed this day and of the maternal grandmother’s intention to seek to proceed on an undefended basis in the event of his non-compliance with Court orders. I am also satisfied that the father has had notice of the orders sought by the maternal grandmother as provided in the minute of orders sought, which have been served upon him.
Having regard to all of the above matters, I am satisfied that the father has been afforded procedural fairness. He has had notice of the hearing, the orders sought by the maternal grandmother and the ICL and of the evidence relied upon by the maternal grandmother in support of her application. In circumstances where the father has not complied with the procedural orders made by me, has filed no substantive material in the proceedings and has not appeared at the final hearing, I am satisfied that the maternal grandmother should have leave to proceed with her application on an undefended basis.
The position with respect to the mother is also problematic. The affidavit of the maternal grandmother filed 25 February 2020 provides the history of her communication with the mother since the matter was placed in my docket in 2019. That affidavit details the circumstances of the mother vacating the maternal grandmother’s home in October 2019. At paragraph 8 of that affidavit, the maternal grandmother deposes as follows:-
Around late October 2019 the mother left my home. The mother left in the middle of the night without waking me. The mother did not take many of her personal belongings. I have packed up approximately 15 large bags of her clothing and belongings. I say that I did not observe any unusual behaviour by the mother on the days prior to her leaving my home.
Since that time, the maternal grandmother has had only limited text communication with the mother. It would appear from the tone and content of the text message exchanges between the mother and the maternal grandmother that the mother has resumed using illicit substances. On 7 November 2019, the maternal grandmother deposes that she received a text message from the mother which stated as follows:-
I am disconnecting my number after I have shot that I just made up [sic]. You know in your heart this is for the best. You won't be able to contact me so I've cancelled my bank card and there will be another one coming in the mail next week. Use that money for child care but don’t tell anyone. You will get into trouble. I will also give you my bank login details for internet banking. Just download the app.
On 21 November 2019 the maternal grandmother received an abusive and threatening text message from the mother. The maternal grandmother deposes that she received further text messages from the mother on 11 December and 23 December 2019. On 23 December 2019, the maternal grandmother deposes that she forwarded a text message to the mother stating:-
You need to check yourself into rehabilitation for at 3 months if you want anything to do with your daughter or your family as you have missed everything.
The last occasion upon which the maternal grandmother sighted the mother was on 13 February 2020. At paragraph 18 of her affidavit, she deposes that whilst X was playing outside her home, she observed a woman at the end of her street approximately 150 metres away who appeared to be the mother. That person did not approach the maternal grandmother and turned to leave. The maternal grandmother was unable to speak with the mother on that occasion. The maternal grandmother deposes that she notified the police of the woman’s presence and that the police undertook a search of the surrounds of her home but could not locate the mother.
The mother’s former solicitor filed a Notice of Ceasing to Act on 11 November 2019. That notice informed the mother of the final hearing listed to commence on 24 February 2020. The mother was called in the precincts of the Court on that day and did not respond to the call. In addition to her failure to attend Court events, the mother did not attend interviews for the family report in January of 2020. Arrangements for those interviews were made at a time when the mother was represented by her former solicitor.
Further, I note that the mother was represented at the first day hearing which occurred before me on 30 August 2019. At the time those trial directions were made, the mother was living with the maternal grandmother. Having regard to the history of the proceedings, I am satisfied that the mother has had notice of this hearing. The mother has failed to file any trial affidavit material in compliance with the trial directions made by me and she failed to attend the hearing listed before me on 24 February 2020. In the circumstances, I am satisfied that she has had notice of the proceedings and has been afforded procedural fairness.
Given the mother’s non-compliance with my orders, I am satisfied that the maternal grandmother should also have leave to proceed with her application for final orders insofar as it relates to the mother on an undefended basis.
Material relied upon and orders sought
The maternal grandmother relies on the following material in support of her application for final orders:-
· Case outline document dated 18 February 2020;
· Amended Response to Initiating Application filed 27 November 2020;
· Affidavit of the maternal grandmother filed 21 March 2019;
· Affidavit of the maternal grandmother filed 31 May 2019;
· Affidavit of the maternal grandmother filed 27 November 2019;
· Family Report prepared by Mr D dated 17 April 2019;
· Updated Family Report of Mr D dated 6 February 2020; and
· Psychiatric Assessment of the father prepared by Dr Q on 18 December 2019.
The material relied upon by the ICL is as follows:-
· Case outline document filed 14 June 2019;
· Family Report prepared by Mr D dated 17 April 2019;
· Updated Family Report of Mr D dated 6 February 2020; and
· Psychiatric Assessment of the father prepared by Dr Q on 18 December 2019.
Legal principles
Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act to ensure the best interests of children are met by (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. And I refer to and rely upon subparagraphs (a) to (e) of that section, set out as follows:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order, the best interests of the child is the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. That is provided by s 61DA of the Act. The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with their parent.
Discussion
The central issue in this case is the need to protect X from harm, that is, the harm that arises as a result of illicit substance abuse by the mother and also the harm that may be occasioned as a result of the father’s history of violence, and the concern expressed by experts as to the father’s capacity to contain his aggression in the child’s presence.
The orders sought by the maternal grandmother include orders that neither the mother nor the father spend time with the child. In support of her application, the maternal grandmother points to the recent observations made by Mr D of the father in the context of the preparation of the family report. The father is well aware, or was well aware, of the allegations made against him as to his inability to manage and contain his aggression. However, even in that report-writing setting the father was observed to lose control of his emotions and to display anger.
At page 11 of 20 of the updated family report dated 6 February 2020, Mr D notes the discussion he had with the father as to X’s progress in the care of the maternal grandmother. At paragraph 47 of the report Mr D observes as follows:-
In discussing these matters, in particular the father’s application to the Court and DHSS assessments, the father became agitated and then angry.
At paragraph 48 he notes:-
On this occasion the father became more agitated, stating that he was going to call his lawyer and withdraw from the current proceedings. The writer attempted to calm the father so the interview could continue, but the father was unable to contain his frustration and emotionality and eventually the interview was concluded.
Further, at paragraph 49:-
The father left in a highly agitated manner, and it is noted that a further incident apparently occurred in the registry where security and police were involved.
Similar observations were made of the father by Dr Q in his report dated 18 December 2019. Dr Q undertook a psychiatric assessment of the father on 7 November 2019. He interviewed the father for a period of approximately 70 minutes on that occasion. He discussed with the father in that setting the father’s application, the father’s history and his present circumstances.
At page 6 of his report, Dr Q observed that:-
It was striking that the father showed no self-criticism at interview for any of his behaviour. Rather, he minimised his crimes. With regard to the serious crime, he underlined how huge and therefore dangerous was the young man involved. With regard to the motorbike club, I surmise that if he has not ridden a motorbike with friends this year, this may relate to his attempt to gain custody of X.
In conclusion Dr Q observed as follows:-
I do not doubt his sincere wish to parent X. “I have spent $10,000 on lawyers so far”. However, he has no parenting experience, and his past behaviour under stress suggests that under stress, risk to X from him could never be ruled out.
Moreover I am concerned that his wish not to share her with her grandmother is so unrealistic that it raises a serious question about his judgment.
Consequently I would respectfully suggest that the Court consider supervised contact only.
It is evident from the reports of both experts that they have significant misgivings about the father’s presentation. The evidence of both Mr D and Dr Q, which is unchallenged and I accept, calls into question whether there is any benefit to X having a meaningful relationship with the father.
I am satisfied, having regard to the father’s history, that there is a need for X to be protected from physical and psychological harm, from abuse and family violence. As I have noted, and as is recorded in the judgment of Judge Kelly, there is a long history of family violence and criminal conduct which warrants the need for such protection.
I am also satisfied that given the mother’s history of drug use, and in circumstances where it would appear she has resumed her use of illicit substances, and where her whereabouts are unknown, that equally there is a need for X to be protected from, or subjected to, that conduct. Hence I am satisfied, having regard to those factors that it is appropriate that there be orders at this time that X spend no time with the mother or the father.
Mr D, in the context of preparing the family report, undertook observations of X with the maternal grandmother. At paragraph 59 of the family report he observed as follows:-
They appeared relaxed together with an easy sense of comfortability that comes with spending time together and being familiar. At the end of the interview process, while waiting to leave, they watched Frozen together, for apparently the 50th time, and there was much conversation about the characters and what they were doing and what would happen next. There was an easy engagement and apparent enjoyment in the interaction.
When evaluating the competing applications, at paragraph 76 of his report, Mr D notes:-
The maternal grandmother appears to be doing an extremely good job raising X despite steadfast opposition from the father, and a mother who appears to have again become lost in her own mental health and drug‑related issues.
During the preparation for the updated family report, Mr D did undertake observation of X with the father. At paragraph 63 of his report Mr D observed that:-
The father displayed a sensitivity and ability to focus very much on X and her needs.
Mr D observed that the father’s interaction with X was warm and positive, and that X appeared to remember previous times with her father, and some of the games they would play. Notwithstanding those positive observations, in evaluation Mr D noted that there remains an unfortunate pattern in the father’s behaviour of being unable to contain his behaviour, and verbal outbursts. He also noted that the Department of Health and Human Services remain concerned as to the father’s continued lack of insight and that they maintain protective concerns for X if placed in the father’s care.
Mr D observed in his report that there can be no contact between the maternal grandmother and the father given the history and concerns identified.
The reality for X is that although during observation with Mr D the father was able to engage appropriately with X, there remain ongoing and real concerns as to his capacity to appropriately care for X. It would seem that the father may, to some degree, recognise that fact, and that may be the explanation for his withdrawal from these proceedings. At this time, in circumstances where the father has elected not to participate in the proceedings, there seems little utility in attempting to formulate any orders for him to spend time with X.
For the same reasons, there is no purpose or benefit to X were I to make orders for X to spend time with the mother. The orders I am asked to make will provide consistency, certainty and continuity for X in her current living arrangements. All of the evidence supports a finding that X is thriving in the care of her grandmother; what is sought is that those arrangements continue.
The maternal grandmother has been the primary caregiver for X, at least since the last interim orders made in June 2019. The reality is that the maternal grandmother has been a constant in X’s life for a considerable period. She is X’s primary caregiver. She has demonstrated her capacity to meet X’s physical, emotional and intellectual needs. Having regard to the history, and the evidence of Mr D, I am satisfied that the maternal grandmother will continue to attend to all of X’s needs.
The maternal grandmother has displayed a positive attitude to X and to the responsibilities of parenthood. She has dedicated herself to X’s care and welfare. The Department of Health and Human Services support a continuation of the maternal grandmother remaining in X’s life as her primary caregiver.
These proceedings have been on foot since 2018. There have been two family reports prepared and there has been engagement with the Department of Health and Human Services. Having regard to that history, and in circumstances where both the mother and the father have elected not to participate in the Court process, I am satisfied that it is in X’s best interests that I make final orders today to ensure certainty and stability for her with respect to future parenting arrangements.
For all of those reasons, I am satisfied that it is appropriate that I make orders that will ensure that the maternal grandmother continues to have sole parental responsibility for X’s care. I am satisfied that it is in X’s best interests that I make orders that she continue to live with the maternal grandmother. Further, for the reasons articulated earlier in this judgment, I will make orders that X spend no time with either the mother or the father.
Given the matter’s history, I do not propose to give either the mother or the father liberty to apply. They have had ample opportunity to participate in these proceedings.
The maternal grandmother also seeks an order in relation to the registration of X’s birth. It appears that X’s birth was not registered by her parents. As a result, the maternal grandmother has had difficulty in obtaining support from government agencies including Centrelink and Medicare. It is necessary for her to have a birth certificate for X to enable her to attend to X’s needs in a timely and cost-effective manner.
It is appropriate that the maternal grandmother have access to supports available to other parents so that X can have all of the advantages that flow from those supports. Accordingly, I will make orders as sought by the maternal grandmother regarding the registration of X’s birth.
The maternal grandmother also seeks an order in relation to obtaining a passport and visas for X. It is her hope that she will have the opportunity in the future to travel internationally with X, and such documents are necessary for those arrangements to be made. In circumstances where I have made orders for the maternal grandmother to have sole parental responsibility for X, I am satisfied that it is appropriate that she also have the opportunity to obtain a passport for X, so that she can have the opportunity to travel with her grandmother.
Finally, I am asked to make an order to effectively continue the injunctions previously made against the father, preventing him from approaching the maternal grandmother or her residence. That order was originally made by Judge Kelly on 27 June 2019. It is an order restraining the father by himself, servants or agents, from communicating with, or being within 200 metres of the maternal grandmother, or her residence.
Having regard to my earlier reasons, noting the father’s inability to contain his anger and aggression, and noting the evidence of the maternal grandmother as to her concerns for her safety, and for X’s safety, given the history of the father’s conduct towards her and others (as is noted in some detail in Judge Kelly’s earlier judgment), I am satisfied that an order in those terms is appropriate.
Therefore I will make an order in the terms of paragraph 9 of the orders originally made on 27 June 2019. Otherwise I will make an order dismissing all extant applications before the Court, and an order dismissing the appointment of the ICL. I will direct that there be a transcript of these ex tempore reasons for judgment, which will be placed on the Court file.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 February 2020.
Associate:
Date: 28 February 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Remedies
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