GAILE & TALTON

[2015] FamCA 580

FAMILY COURT OF AUSTRALIA

GAILE & TALTON [2015] FamCA 580

FAMILY LAW – Application by maternal great aunt and uncle for final parenting orders

APPLICANT: Mr and Ms Gaile

RESPONDENT: Ms Talton

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4318 of 2015

DATE DELIVERED: 1 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teicher

SOLICITOR FOR THE APPLICANT: Ballards

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. The Applicant Maternal Great Uncle, Mr Gaile, and the Applicant Maternal Great Aunt, Ms Gaile, have sole parental responsibility for the children B (female) and C (female) both born … 2004 (“the children”).

2. The children live with the Applicants.

3. The Mother’s time with the children be reserved.

4. I reserve liberty to the Mother to apply to vary or set aside this order or as she may be advised and, in the event that she does so, she explain why she failed or neglected to attend Court today as well as set out matters relevant to her application for parenting orders. 

5. The applicants be responsible for serving a sealed copy of this order on the Respondent Mother in the manner provided for by paragraph 1(a) and (b) of the order made on 2 June 2015.

6. The applicants be responsible for sending a sealed copy of this order to the children’s father, Mr D, care of his parents, Mr and Ms E of F Street, G Town, Victoria ... 

7. The Initiating Application filed 15 May 2015 be and is hereby dismissed.

8. Pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS DIRECTED THAT:

1. The reasons for judgment of this day be transcribed, sent to the parties and placed on the file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaile & Talton 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 MELBOURNE

FILE NUMBER: MLC 4318 of 2015

Mr and Ms Gaile

Applicant

And

Ms Talton

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me in the duty list. The applicants are Ms Gaile and Mr Gaile, who are the maternal great uncle and aunt of the children B and C, both born in 2004.  The respondent to the application is the children’s mother, Ms Talton.  The application in terms of which final orders are sought was filed on 15 May 2015 and on an interim basis gave rise to a recovery order being made on 18 May 2015 and sought final orders as follows:-

   1. That the Applicant Maternal Great Uncle and Aunt have sole parental responsibility for the children B and C born in 2004.

   2. That the children live with the Applicants.

   3. That the Mother’s time with the children be reserved.

2. The mother was called at the door of the court, and there was no response. 

3. The application was the subject of orders made on 2 June 2015 for substituted service. It was ordered that the application and supporting affidavit material could be served by being sent by prepaid post to the respondent at H Street, Suburb I, J Street, Suburb I and K Street, Suburb L and also by sending an SMS message as set out in the order.  I am informed by Ms Teicher that the order for substituted service has been complied with, and that is apparent from the affidavit of Ms M sworn or affirmed on 16 June 2015. I accept that is the case.

4. I have had the opportunity to read the affidavit material on the court file.  Additionally there is a response pursuant to s 67Z and s 67ZA of the Family Law Act 1975 (Cth) from the Department of Health and Human Services (“DHHS”). It is undated, but it relates to these proceedings, which I note were not initiated until the applicants’ application filed on 15 May 2015, so I take it to be current. The records of the Court indicate that the response was received by the Court on 21 May 2015.

5. I am satisfied that the mother has been accorded procedural fairness.  In the event that there is any irregularity in the material upon which I have relied to form that view, I will be giving leave to the mother to vary or set aside the orders which I will shortly pronounce, providing that she gives an explanation as to her failure to attend today. 

6. The affidavit evidence of the applicants is not contradicted by the mother, who, as indicated, has not appeared at court today.  It appears to be plausible and, accordingly, I accept that it is accurate. 

7. The twins are the mother’s youngest children.  There are two older children, N, who did for some time live with the applicants and then did live with the mother but has been in the care of the applicants since last year, and Brooke, who resides with her paternal grandparents.  B and C are the children of Mr D.  The affidavit evidence in support of the application says that Mr D has had minimal contact with B and C since he and the mother separated in approximately 2009.  However, I am informed from the bar table that Mr D has commenced to see the twins again since they were recovered and delivered to the applicants pursuant to the recovery order. 

8. Mr D should be, but has not been, named and joined as a party to the proceedings.  He should have been a respondent.  Nonetheless, I am satisfied that he has notice of the application, because his parents, Ms and Mr E of F Street, G Town, are sitting in court.  They say that Mr D has not attended court today because he is working and, as I have indicated, he is not a party to the proceedings. 

9. The response from the DHHS recites that there have been eight previous child protection reports in relation to C and B from 2001 until December 2014.  It is recited that the DHHS has an extensive history in relation to the children, which reflects protective concerns primarily regarding the children being in the care of their mother, Ms Talton, the respondent.  The protective concerns have included the mother’s alleged drug addictions, criminal behaviour, verbal and physical violence perpetrated by her and her partners towards the children, the mother’s mental health issues, lack of supervision and the mother refusing to engage with child protection and exposing the children to parties or inappropriate recreational events with her friends. 

10. It is noted “that throughout child protection history Ms and Mr Gaile appear to have taken on the role of primary carers of the children on a regular basis”.  A summary of the current protective concerns held by the DHHS is helpfully set out in the response provided by the DHHS, Eastern Metropolitan Region, as follows:-

    Child Protection have read the Notice of Child Abuse 67z and attached affidavit material which has alleged concerns for [C] and [B] in the care of their mother [Ms Talton]. The concerns pertain to [C] and [B’s] exposure to family violence; [Ms Talton’s] alleged substance abuse; a lack of routine and stability as a result of [Ms Talton’s] transient lifestyle; [Ms Talton’s] inability to provide appropriate accommodation, food or clothing for the children; [Ms Talton’s] verbal abuse of [C] and [B]; [Ms Talton’s] alleged physical assault of the children’s older sibling and [C] and [B’s] exposure to this and the children’s lack of school attendance while in [Ms Talton’s] care.

    Child Protection are currently completing follow up in relation to the reported concerns and at this point in time have been able to confirm that the children did not attend school at all during the time they were residing with [Ms Talton] and this raised concerns in relation to their education needs not being met along with their stability and well being.

    It is also noted that [Ms Talton] did not appear to make any plans in relation to taking on the care of the children when she removed them from the care of [Mr and Ms Gaile] as she did not have any of their clothing or belongings with her.

    [Ms Talton] and the children are reported to have stayed with the maternal grandmother [Ms O Talton] until there was a reported incident of family violence between [Ms Talton] and her mother [Ms O Talton] which left [Ms Talton] and the children without accommodation and requiring assistance from a housing support service. [Ms Talton] and the children were placed in a motel overnight until the children were removed by the Australian Federal Police.

    At this point in time the allegations in relation to [Ms Talton’s] alleged substance abuse cannot be verified by Child Protection; however there does appear to be an ongoing pattern in relation to these allegations being made and further follow up is still being completed.

    Child Protection history does raise concerns in relation to the children in the care of their mother, [Ms Talton] and ongoing concern shave (sic) been raised in relation to [Ms Talton’s] ability to provide appropriate care for the children and engage with Child protection in a positive manner. No concerns have been noted at this point in time in relation to the children while in the care of [Mr and Ms Gaile] who appear to have been a stable influence on the children throughout their lives. Child Protection will continue to make enquiries at this point in time in relation to the reported allegations.

    and for the purpose of the transcript, I read in to it the six final paragraphs of the response, which starts “Child Protection have read the notice” and conclude “in relation to reported allegations”.

11. In making parenting orders I must regard the best interests of the children as the paramount consideration.  The manner in which I arrive at what is in the best interests of the children is set out as two primary considerations and a number of additional considerations.  The two primary considerations are a requirement that I consider what orders are necessary to protect the children from emotional and physical harm and a consideration by me of the benefit to the children of maintaining a meaningful relationship with both of their parents.  These proceedings are unopposed by the mother and not apparently opposed by the natural father of the children. 

12. The applicants seek sole parental responsibility, which would on the face of it appear to be an appropriate order to make.  I will do so.

13. As I am not making orders for shared parental responsibility, I do not have to consider the appropriateness of equal time with the parents or even substantial and significant time.  That said, because I am reserving to the mother liberty to apply, she may come back and seek orders for time with the children. 

14. I am satisfied on the evidence that it is in the interests of the children that there be some orderly control over their lives so that the applicant maternal great uncle and aunt can care for the children appropriately, as they have apparently done for some years now.  That appropriate care should not be vulnerable to interruptions by or on behalf of the mother by removing the children from their care.  That would not be in the best interests of the children. 

15. What I propose to do is to make the orders sought by the applicants but to reserve to the mother liberty to apply to vary or set aside this order as she may be advised.  If she elects to do so, she should explain why she did not attend court today, and that will be to do with notice she has of the proceedings, I expect, or perhaps some reason why she did not feel it was appropriate to come to court.  Any application which she or the natural father make to spend time with the children or for parental responsibility or that the children live with them will in due course receive the attention of the Court.  So, whereas this is a final parenting Order, it is not an order which precludes any application being brought by the natural parents subsequently. 

16. I am satisfied that this dispensation is in the children’s best interests.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 July 2015.

Legal Associate:

Date: 22 July 2015