Gardner & Taylor
[2025] FedCFamC2F 850
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gardner & Taylor [2025] FedCFamC2F 850
File number(s): DGC 311 of 2024 Judgment of: JUDGE GLASS Date of judgment: 20 May 2025 Catchwords: FAMILY LAW – PARENTING – ex-tempore reasons – where the mother has not participated in proceedings – where the child will continue to live with the paternal grandmother and spend time with the father each weekend Legislation: Family Law Act 1975 (Cth) 60B, 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 10.13, 10.27, 15.15
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 20 May 2025 Place: Morwell Counsel for the Applicant: Ms Ferrari Solicitor for the Applicant: Dandenong Family Lawyers The First Respondent: No appearance Counsel for the Second Respondent: Mr Jackson Solicitor for the Second Respondent: Tyler Tipping Woods Counsel for the Independent Children's Lawyer: Mr Hall Solicitor for the Independent Children's Lawyer: Oldham Family Law ORDERS
DGC 311 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GARDNER
Applicant
AND: MS TAYLOR
First Respondent
MS GARDNER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2025
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Live With
2.The child X born in 2017 (“the child”) live with the Paternal Grandmother.
Parental Responsibility
3.The Paternal Grandmother have sole responsibility for making decisions concerning major long-term issues in relation to the child.
4.For the purposes of Order 3, and subject to Order 5 hereof:
(a)The Paternal Grandmother shall notify the Father and the Mother of any proposed decision in relation to the long-term care of the child in writing before a final decision is made, except in the case of an emergency;
(b)The Father and the Mother shall provide the Paternal Grandmother with their views about the proposed decision in writing within 7 days of receiving the Paternal Grandmother’s notification;
(c)The Paternal Grandmother shall take into consideration any views expressed by the Father and Mother in respect of such proposed decision; and
(d)The Paternal Grandmother shall advise the Father and the Mother of the final decision as soon as reasonably practicable.
5.For the purposes of giving effect to the preceding order:
(a)The Paternal Grandmother’s email address is …@...;
(b)The Father’s email address is …@...;
(c)The Mother’s email address is …@...; and
(d)Each party must provide written notice of any change of email address, residential address and/or telephone number within twenty-four hours of such change.
Time with the Father
6.That the child spend time with the Father as follows:
(a)From the conclusion of school each Friday until 5pm on Sunday; and
(b)At such other times as may be agreed by the Paternal Grandmother and the Father in writing.
Changeover
7.That the changeover between the Paternal Grandmother and the Father occur at the child’s school, or as otherwise agreed by the parties in writing.
Time with the Mother
8.That the child spend time and communicate with the Mother at such times, and on such terms as agreed between the Paternal Grandmother and the Mother in writing.
Restraints
9.The Mother and Father, their servants and agents be and are hereby restrained by injunction from:
(a)exposing or subjecting the child to all forms of family violence, profane language or allowing anyone else to do the same;
(b)denigrating any other party or their family to the child or any other person in the presence or hearing of the child or allowing anyone else to do the same;
(c)leaving the child unattended or unsupervised at any times;
(d)using or consuming any illicit substances or prescription medication other than as may be strictly advised, prescribed or recommended by a medical practitioner, while the child is in their care or in the preceding 24 hours;
(e)consuming alcohol to excess (in excess of .05% B.A.C.) from 24 hours prior to, or whilst the child is in that parent’s care, or from allowing the child to remain in the presence of any other person who is affected by alcohol to excess;
(f)exposing the child to adult-related matters, involving discussing or exposing the child to these proceedings, and/or the dispute between the parties or questioning the child, or allowing anyone else to do so, except as permitted by an order of the Court and in appropriate co-operation with a therapeutic practitioner or the Independent Children’s Lawyer;
(g)using physical or inappropriate forms of discipline on the child, or allowing anyone else to do same; and
(h)exposing the child to any illicit or age-inappropriate sexual material and/or content, including discussions, images and/or behaviour.
10.The Mother be and is hereby restrained by injunction from removing the child from any Primary or Secondary School without first obtaining the Paternal Grandmother’s consent in writing or Court Order, noting that the Paternal Grandmother shall not unreasonably withhold such written consent.
School Enrolment
11.The Paternal Grandmother be authorised to forthwith enrol the child at B School, City C, commencing in Term 3, 2025, and provide to the school a sealed copy of these Orders to facilitate that enrolment.
School Attendance
12.The parties are to ensure that that the child attends school and attends on time during the time the child is in their respective care, save and except in the event of emergency or illness supported by a medical certificate.
Extra-curricular Activities
13.The Mother and the Father shall ensure that the child attends any extracurricular activities that she is enrolled into and notify the Paternal Grandmother in advance if that parent is unable to transport the child to these activities.
Health
14.The Mother, Father, and Paternal Grandmother inform the other as soon as practicable of any emergency, serious illness or injury affecting the child whilst she is in their care and provide the other parties, name and contact details of the treating medical practitioner.
15.In the event that the child requires hospitalisation, the parents and Grandmother are at liberty to attend the hospital, regardless of whose care the child is in pursuant to these Orders.
Access to Medical Information, Compliance with Treatment
16.Each parent and the Paternal Grandmother are at liberty to contact the child’s treating medical practitioner, psychologists and/or counsellors to discuss the children’s health and shall comply with all treatment stages as recommended by the treating medical practitioner and follow directions for administration of medications according to any prescriptions.
Miscellaneous
17.The Paternal Grandmother, Mother, and Father and each be at liberty to:
(a)Attend any school, sporting, or extra-curricular activities involving or relating to the child to which parents are normally invited;
(b)Communicate directly with and obtain information directly from any school or education institution at which the child attends;
(c)Receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by the children’s school, including able to access any online learning portals, any notifications, reports, correspondence, photos and alike from the school as any parent would, at the requesting party’s expense and attend all parent teach interviews, concerts and alike as any parent would normally be invited to;
(d)Provide a copy of these sealed Orders to the child’s school, to any educational professional assisting the child, the Child Support Agency and any health and/or allied health professional assisting the child.
Procedural
18.All extant applications be otherwise dismissed.
19.The appointment of the Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A.The Paternal Grandmother will continue to rely upon the Paternal Grandfather, Mr D to care for the child when required.
B.That it may be necessary to review the appropriateness of unsupervised time between the child and the Applicant Father when she attains 12 years of age, in light of the contents of paragraph 102 of the Report of Mr E, psychologist which was filed in Court on 14 August 2024.
C.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
D.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, now seven years old.
Pursuant to extant interim Orders, X lives with her paternal grandmother, Ms Gardner, and spends each weekend from after school Friday until 5.30 pm Sunday with her father, Mr Gardner.
X has previously lived with her mother, Ms Taylor. Ms Taylor is in default of her obligations to participate in these proceedings. She has failed to file responding documents at any time, despite having been ordered to do so on 29 April 2024, 22 July 2024, 18 September 2024 and 22 January 2025. In breach of rule 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) , as well as specific directions of the Court, she failed to appear before the Court on 3 June 2024, 22 July 2024, 14 January 2025, 22 January 2025 and again this day.
Pursuant to rule 10.27 of the Court’s rules, I have a discretion to proceed on the non-defaulting parties’ evidence. Having regard to the principles espoused by section 69ZN of the Family Law Act 1975 (Cth) and the overarching purpose prescribed by section 95 of the Act, I exercise my discretion in favour of doing so. I note that Ms Taylor may apply to set aside orders made in her absence pursuant to 10.13 of the Court’s rules.
Mr Gardner, Ms Gardner and the Independent Children’s Lawyer propose that X continue to live with her paternal grandmother and spend the same configuration of time with her father. They propose that Ms Gardner have sole parental responsibility for X upon providing prior notice of any proposed major long-term decisions for X and taking into account any views expressed by her parents.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and each person who has the care of her (whether or not a person has parental responsibility for the child)
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
In July 2021, X sustained injuries including a fractured nose. X disclosed that the injuries had been caused by Ms Taylor throwing her on the bed. Those events led to Child Protection authorities removing X from her mother’s care.
Ms Taylor is recorded as having worked hard in 2021 and 2022 to have X returned to her care and engaged in practical and therapeutic assessment and support services. However, by late 2024, she is reported by Child Protection authorities to have been struggling to maintain X’s home environment and struggling to get X to school on time.
Ms Taylor has been abusing illicit substances and has been intoxicated while caring for X. Ms Taylor has failed to undertake ordered hair follicle testing to ascertain the extent of her present illicit substance abuse. It is trite to observe that X’s safety is unacceptably compromised by living with a parent under the influence of illicit substances. She would thereby be at unacceptable risk of exposure to neglect.
In June 2024, Ms Taylor angrily expressed a desire to place X on the road and run her over with her car, a comment which understandably very much distressed X. That comment is significant in light of X’s report of having been previously physically harmed by her mother in 2021.
Ms Taylor has previously been found to suffer from complex mental health issues and long-term substance use. She has been ordered to participate in psychological assessment and Child Impact Reports in these proceedings. She has failed to do so. I cannot be satisfied on the evidence now before me that X is generally safe in her mother’s care.
In 2011, 2013 and 2015 Mr Gardner was convicted for sexual offending with a child under the age of 16 and placed on the Sex Offenders Register. Child Protection authorities have nevertheless assessed X’s time with him to no longer require supervision and they have sanctioned the existing arrangements whereby X spends two overnights with her father each week. Those arrangements have been place since 2022 and were endorsed by the Department in February of this year. Even though Mr E opines that Mr Gardner’s psychological and psychosocial risk factors are estimated to fall in the moderate-risk range, no party in these proceedings now contends that Mr Gardner presents an unacceptable risk to X’s safety through a continuation of his existing time with her. I do not conclude otherwise.
In November 2024, the Department assessed that Mr Gardner continued to perpetrate emotional, financial and psychological abuse towards Ms Taylor, and continued to undermine her parenting capacity, creating feelings of stress and anxiety for her. Nevertheless, X was not then assessed to be at significant risk in parental care.
To his significant credit Mr Gardner attended upon a psychologist from 2022 until August 2024. Since that time, he has engaged a new psychologist and attended a further 14 sessions. He has engaged in cognitive behavioural therapy focused on parenting, co-parenting, navigating relationships, family of origin dynamics, harm minimisation of drug use and navigating physical health related issues. He has indicated a willingness to continue engaging in such therapy and has an extensive history of other engagement with various support services.
Mr Gardner has reflected considerably on his past behaviour and engaged in significant supports to address it. I am not satisfied that X’s safety presently requires any time between X and her father to be supervised or further limited in any way.
Any views expressed by X
X told the Independent Children’s Lawyer last week that she missed her mother and wanted to see her. She repeatedly asked when she would be able to see Ms Taylor. The Independent Children’s Lawyer nevertheless considers that X seems settled in Ms Gardner’s care.
X is always eager to spend time in Ms Gardner’s care.
The developmental, psychological, emotional and cultural needs of X
X’s primary residence has changed on several occasions throughout her life. In July 2021, at the age of three, she was removed from Ms Taylor’s care and placed with Ms Gardner. Fourteen months later, she was returned to Ms Taylor’s care. In January of this year, Orders of this Court provided for X to return to Ms Gardner’s primary care.
The capacity of each person who has or is proposed to have parental responsibility for X to provide for her developmental, psychological, emotional and cultural needs
In 2023, X missed 41 full days and 59 part days of school while in Ms Taylor’s care. In 2024, she missed 34 full days and 8 part days of school. X continued to miss school without explanation despite Orders being made by this Court in September to ensure X’s school attendance. I conclude that Ms Taylor fundamentally lacks capacity to provide for X’s educational needs.
She has also failed to provide for X’s other needs by neglecting to facilitate her attendance upon extra-curricular activities which X strongly enjoys.
Ms Taylor has inappropriately exposed X to conversations about adult matters. She has embroiled X in disputes about child support. She has told X about her father’s sexual offending. She has read the contents of Ms Gardner’s affidavits to X and told her it would cause Ms Taylor to go to jail. So much reflects very poorly on Ms Taylor’s capacity to provide for her daughter’s emotional wellbeing.
In the opinion of Court Child Expert Ms F, Ms Gardner’s presence in X’s life is a positive to her development and well-being. To her credit, Ms Gardner has provided for X’s primary care for extended periods of her life. No concerns are raised in the material about her capacity to continue to do so. It is further to her great credit that X’s needs have been met at times when concerns have arisen about X’s parent’s capacity to provide for her full-time care.
Ms Gardner has successfully facilitated X’s school attendance every day this year. She is supporting her reading which has improved greatly and facilitating her extra-curricular activities.
The benefit to X of being able to have a relationship with her parents, and other people who are significant to her, where it is safe to do so
Regrettably, Ms Taylor has not spent time with X since 6 January 2025 other than for a recent brief visit on Mother’s Day. Ms Taylor has failed to respond to proposals made by Ms Gardner for such time to occur and, most concerningly, has failed to respond to voicemails and calls left by X herself. Unfortunately, absent Ms Taylor’s participation in these proceedings, it is not possible to craft orders providing for X to spend time with her mother other than that which can be agreed between Ms Taylor and Ms Gardner.
It is proposed X continue to benefit of spending regular overnight time with Mr Gardner in the same configuration that has occurred since 2022.
X enjoys spending regular time with her paternal grandfather, Mr D who provides care for X as required by Ms Gardner.
CONCLUSIONS
I agree with Mr Gardner, Ms Gardner and the Independent Children’s Lawyer that it is now appropriate for Ms Gardner to have sole decision-making responsibility for X. It is in X’s best interests for such decisions to be able to be made in a timely way. I find no reason to doubt that Ms Gardner will appropriately consider any views expressed by X’s parents in relation to such decisions.
On the evidence before me, I am satisfied that a continuation of X’s existing living arrangements and her weekend time with Mr Gardner is in her best interests.
While I am conscious of the disruptions that have occurred for X in her life, I am satisfied that it is in her best interests to change schools to one located in City C where she will now reside pursuant to final Orders.
I find the injunctive relief now sought to also be in X’s best interests given the evidence before me of inappropriate conduct towards her by Ms Taylor.
I am satisfied that the other relief proposed is also in X’s best interests.
Whilst any application to re-open proceedings would be governed by statutory provisions, I am satisfied the second notation proposed appropriately reflects concerns that have been raised in these proceedings as to psycho-sexual risk that may be posed by Mr Gardner in the future.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 20 May 2025
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