Goodall and Anor and Kearns and Anor

[2015] FCCA 2946

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODALL & ANOR & KEARNS & ANOR [2015] FCCA 2946

Catchwords:
FAMILY LAW – Parenting orders – application pursuant to s.65C(c) of the Family Law Act 1975 (Cth) –undefended by the respondent biological parents – applicant maternal uncle and aunt to have equal shared parental responsibility of the child – the child to live with the Applicants – limited time to be spent with the Respondents.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 62G(2), 65C(c)

First Applicant: MR GOODALL

Second Applicant: MS GOODALL

First Respondent: MS KEARNS

Second Respondent: MR GRIFFITHS

File Number: MLC 572 of 2014

Judgment of: Judge Hartnett

Hearing date: 30 September 2015

Delivered at: Melbourne

Delivered on: 30 September 2015

REPRESENTATION

Counsel for the Applicants: Ms Paterson

Solicitors for the Applicants: Robinson Gill

The First Respondent: In Person

Counsel for the Second Respondent: Mr Fronistas

Solicitors for the Second Respondent: James Harris Lawyers

Counsel for the Independent Children's Lawyer: Mr James

Solicitors for the Independent Children's Lawyer: Westminster Lawyers Pty Ltd

ORDERS

1. There be final parenting Orders, by consent of the applicants and Independent Children’s Lawyer and undefended by the First and Second Respondents, in accordance with the engrossed Minute of Proposed Orders sealed and attached hereto AND IT IS DIRECTED THAT the Minute of Proposed Orders dated 30 October 2015 and marked ‘Exhibit A’ remain upon the Court file.

AND THE COURT NOTES THAT:

Pursuant to s.62B and s.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.

THE COURT ORDERS, BY CONSENT OF THE APPLICANTS AND INDEPENDENT CHILDREN’S LAWYER AND UNDEFENDED BY THE FIRST AND SECOND RESPONDENTS, THAT:

1. All previous parenting orders be discharged.

2. The applicants, Ms Goodall and Mr Goodall, have equal shared parental responsibility for the child X born (omitted) 2012 (“the child”).

3. The child live with the applicants.

4. The child spend time with the first respondent mother as follows:-

   (a)for one hour each month supervised at (omitted) Contact Centre at times to be agreed and failing agreement:

   (i)until the child commences primary school, from 9.00am to 10.00am on the last Friday of each month (unless Friday coincides with kinder in which case the applicants will notify the mother of another suitable weekday 14 days prior to any change); and

   (ii)from the time the child commences primary school, from 9.00am to 10.00am on the last Saturday of each month; and

   (iii)at such other or further times and upon such further conditions as may be agreed between the parties in writing.

   (b)the mother be responsible for any fees and costs associated with her time spent with the child including the costs of supervision.

5. The child spend time with the second respondent father as follows:-

   (a)for one hour each month supervised at the (omitted) Contact Centre at time to be agreed and failing agreement:

   (i)until the child commences primary school, from 10.15am to 11.15am on the last Friday of each month (unless Friday coincides with kinder in which case the applicants will notify the father of another suitable weekday 14 days prior to any change); and

   (ii)from the time the child commences primary school, from 10.15am to 11.15am on the last Saturday of each month.

   (iii)at such other or further times and upon such further conditions as may be agreed between the parties in writing.

   (b)the second respondent be responsible for any fees and costs associated with his time spent with the child including the costs of supervision.

6. The first respondent mother and second respondent father spend time with the child separately.

7. The first respondent mother send a text message to the applicants and the other parent no later than 4pm on the day 3 days prior to time occurring pursuant to Order 4 herein, to confirm she will exercise the time, and should she fail to do so, the visit will not occur.

8. In the event the mother forgoes her time spent pursuant to Order 4 hereof, then the father may at his option exercise the one hour forgone by the mother in addition to the time spent pursuant to Order 5 hereof, upon giving the (omitted) Contact Centre no less than 24 hours prior notice.

9. The second respondent father send a text message to the applicants and the other parent no later than 4pm on the day 3 days prior to time occurring pursuant to Order 5 herein, to confirm he will exercise the time, and should he fail to do so, the visit will not occur.

10. In the event the father forgoes his time spent pursuant to Order 5 hereof, then the mother may at her option exercise the one hour forgone by the father in addition to the time spent pursuant to Order 4 hereof, upon giving the (omitted) Contact Centre no less than 24 hours prior notice.

11. The first and second respondents’ time with the child pursuant to Orders 4 and 5 herein be revoked should they fail to attend such time on three consecutive occasions without providing evidence in writing to the applicants that justifies their non-attendance.

12. The first and second respondents each be at liberty to send, via prepaid post, to the home of the child a card and/or gift on the child’s birthday and for Christmas each year.

13. The applicants forthwith notify the respondents in writing in the event of any serious medical issue affecting the child.

14. Each of the first and second respondents forthwith notify the applicants in writing and keep the applicants informed of any medical condition suffered by themselves that may pose a risk to X’s the child’s health.

15. The parties keep each other informed of their current residential address and contact telephone numbers and inform the other in writing of any change of residential address or contact telephone numbers within 72 hours of such a change.

16. The applicants contact any educational institution attended by the child and instruct the said institution to forward to the respondents copies of the child’s school report, school photograph order forms, and any other information requested by the respondents or either of them as to the child’s progress at the said institution, at the expense of the respondents.

17. The respondents be restrained by injunction from attending at, or contacting by telephone or email or any other means, any educational institution, child care facility, extra-curricular group or activity or sporting group or event attended by the child without the prior consent of the applicants.

18. The respondents, their servants or agents each be and are hereby restrained by injunction from:-

    (a)discussing these proceedings with, or in the hearing or presence of, the child;

    (b)abusing, insulting or otherwise denigrating the other parties or members of another party’s family or friends, in the presence of hearing of the child;

    (c)swearing in the presence of the child and/or permitting the child to be exposed to any swearing;

    (d)smoking in the presence of the child and/or permitting the child to be exposed to any smoking; and

    (e)sharing food or drinks from his/her mouth with the child.

19. Each of the first and second respondents be restrained by injunction from ingesting, consuming, or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance for a period of 24 hours prior to, and during, any time the child spends with them save and except for:-

    (a)any legal medication prescribed for the first or second respondent by a registered medical practitioner, and taken or used by the first or second respondent strictly in accordance with such prescription; and

    (b)any over-the-counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the first or second respondent strictly in accordance with the directions appearing on such medication or pharmaceutical substances.

20. The respondents continue to attend upon their current treating psychologist/psychiatrist and follow all treatment recommendations including taking any medication as prescribed.

21. The child’s time with either of the respondents pursuant to Orders 4 and 5 herein be suspended on that occasion, at the discretion of the applicants, in the event the applicants consider the respondent with whom the child is to spend time has failed to comply with Order 19 herein.

22. The applicants be permitted to apply for, and when necessary renew, an Australian Passport for the child X born (omitted) 2012 without the need to obtain the consent of either the first respondent mother, or the second respondent father.

23. In the event the applicants take the child out of the Commonwealth of Australia or interstate on a holiday, the applicants shall give the first and second respondents at least 14 days written notice of the intention to travel, including details of departure and return dates, and of the place/s the child will be travelling to.

24. The child’s time with the first and second respondents pursuant to Order’s 4 and 5 herein be suspended for the duration of any overseas holiday provided the applicants comply with Order 23 herein.

25. The second respondent father be hereby restrained by injunction from going to, or remaining within, 200 metres of any premises where the applicants live or work.

26. The applicants be permitted to provide a copy of these Orders to:-

    (a)the Australian Passport Office;

    (b)any childcare centre, kindergarten or school attended by the child;

    (c)any medical practitioner or allied health professional who treats the child; and

    (d)the (omitted) Children's Contact Centre.

27. Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.

28. All extant applications be otherwise dismissed.

29. The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Goodall & Anor & Kearns & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 572 of 2014

MR GOODALL

First Applicant

MS GOODALL

Second Applicant

And

MS KEARNS

First Respondent

MR GRIFFITHS

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an application by the Applicants seeking parenting orders with respect to the child X, born on (omitted) 2012 (‘X’).  X is now aged two years and nine months.  The Applicants are the maternal uncle and aunt of X, the Second Applicant (‘Ms Goodall’) being the sister of the First Respondent (‘Ms Kearns’) in the proceedings.  The Second Respondent, Mr Griffiths, is X’s biological father.  The application is brought pursuant to the parenting order provisions of the Family Law Act 1975 (Cth)(‘the Act’). The Applicants are able to bring these proceedings pursuant to s.65C(c) of the Act.

2. The Court is satisfied that the Applicants satisfy s.65C(c) of the Act. They apply to the Court for a parenting order in relation to X as persons concerned with her care, welfare and development. The section relevantly provides that a person can be concerned with the care, welfare or development of the child.  The Applicants in this proceeding are concerned with all three descriptors.  The Court is satisfied that the best interests of X are served by the making of Orders this day as sought by the Applicants, and as supported by the Independent Children's Lawyer.  The proceeding is undefended in that neither the First nor Second named Respondent have filed any application (contained in a response document or otherwise) for orders to be made, nor any affidavit material in this proceeding.

3. Before leaving the issue of the nature of the proceedings, I note the following:-

   a)in the proceedings conducted in this Court, the First Respondent mother has either appeared in person or failed to appear.  This day she appears in person. She accepts that she is unable to care for X and that she continues to have significant drug issues which impact upon every aspect of her life, including her ability to obtain the basic necessities of life;

   b)the Second Respondent father did not appear in 2014, but subsequently appeared with Counsel representing him on 2 February 2015; appeared in person on 30 March 2015; and obtained the services of Solicitors who filed a Notice of Address for Service on behalf of the Second Respondent on 30 April 2015, which were thereafter withdrawn, with Perry Weston Lawyers filing a Notice of Withdrawal of Lawyer on behalf of the Second Respondent on 29 June 2015. The Second Respondent father was then a litigant in person until such time as he obtained further Solicitors who filed a Notice of Address for Service indicating their instructions to act for the Second Respondent by Notice filed on 31 August 2015.  The 31 August 2015 was the date of release of the Family Report that had been prepared in these proceedings by Ms D, dated 28 August 2015. The Second Respondent’s Solicitors communicated with the Solicitors for the Applicants on 2 September 2015 advising of their instructions to act for the Second Respondent;

   c)upon the hearing this day, Counsel appearing for the Second Respondent submitted to the Court that there had been difficulty with his instructor obtaining instructions from the Second Respondent, as he (the Second Respondent) had been unwell, and was undergoing some health treatment.  No evidence was placed before the Court in respect of that submission which was made upon an oral application for an adjournment of the hearing;

   d)Counsel further submitted that his instructing Solicitor was unable to get instructions from the Second Respondent for a variety of other reasons in relation to which there was no supporting evidence, or indeed any evidence, before the Court.  Counsel for the Second Respondent lastly submitted that in the face of the late filing of the Applicants material, the Second Respondent had insufficient time to prepare material by way of reply to the affidavits of the Applicants. Prior Orders however, provided that the Second Respondent file and serve his material prior to the Applicants filing any further material.  The filing of the Second Respondent’s affidavit evidence was not dependent upon any material being filed by the Applicants.  No right of reply was given to the Second Respondent in respect of the Applicants filing of material.

4. It is necessary in the interests of the administration of justice that this matter proceed.  There have been 23 proceedings in the Children’s Court of Victoria in respect of the care of the child X.  For over two years, she has remained in the care of the Applicants.  These proceedings commenced in January 2014 and it is now September 2015.  I accept that at the time of commencement of these proceedings there were ongoing proceedings in the Children’s Court of Victoria, and thus the proceedings in this Court were adjourned for many months until there was some proposed resolution of matters in the Children’s Court of Victoria.  That did not occur until February this year.  But the parties have been on notice since 31 March this year, which is now some six months ago, that the matter was proceeding this day as a final hearing of two days duration. These proceedings were allocated many months ago, and face the prospect of further allocation not before some perhaps nine months have elapsed, on the basis as the Second Respondent would have it, of an oral submission made without any supporting evidence for an adjournment of the proceedings.

5. Whether the Second Respondent was a litigant in person or represented by Solicitors, there was an onus upon him to file affidavit material if he sought any parenting orders in this matter.  The Second Respondent has not sought any parenting orders.  The filing of a response setting out what orders it is that he wished the Court to make is a very simple matter, but at no stage between 24 January 2014 and 30 September 2015 has the Second Respondent filed and served such a document.

6. The Applicants oppose the granting of any adjournment in this proceeding, as does the Independent Children's Lawyer.  Given the difficulties in X’s life to date, it is in her best interests that this matter proceed, and that stability and finality be afforded to her living arrangements.  It is also necessary that those who are caring for her can cease to be involved in litigation, so that their efforts can be directed entirely to the care of X rather than the pursuit of litigation in the Children’s Court of Victoria or the Federal Circuit Court of Australia.

7. Given that neither respondent sought any orders in this Court and filed no affidavit material, the Court determined that it would grant leave to the Applicants to file and rely upon the trial affidavits filed last week, being only a few days out of time, and putting before the Court necessary updating material as to the welfare of X.  I am satisfied that the Respondents have been afforded procedural fairness in that they have had an opportunity to read all of the evidence that is before the Court and which has been served on them, including the Amended Initiating Application. I add that the Applicants’ initial response to the adjournment application on the basis of the late filing of their material was that they would, if necessary, not seek to rely upon that updated material but rely on the material already on the Court file as sworn by the Applicants, together with the Family Report. That material in itself would have resulted in the making of the orders sought.

8. The Orders sought this day vary slightly from the Amended Application, but not in a manner of substance that would result in a denial of procedural fairness to the Respondents.  For instance, one of the orders changed time spent between each of the Respondents and their daughter to a Friday in each month, instead of a Wednesday, in response to the availability of the (omitted) contact centre.

9. For completeness sake, I note that the First Respondent mother did not seek an adjournment this day.  She wished to “advise the Court of her correct residential address” and to further advise the Court that, in fact, she has no current residential address, as she has been homeless for some weeks now.  She acknowledged that she has sought no orders and filed no affidavit material. 

History

1. The First Applicant maternal uncle was born on (omitted) 1962. He is now aged 53 years.  The Second Applicant maternal aunt was born on (omitted) 1968. She is now aged 46 years.  The Second Respondent father was born on (omitted) 1975. He is now aged 39 years. The First Respondent mother was born on (omitted) 1980. She is now aged 35 years.

2. On (omitted) 2008, X’s mother and father married. On (omitted) 2008, Y was born.  She is now aged six years.  On (omitted) 2012, X was born. Following her birth, she remained in hospital for a period of approximately four weeks due to a drug dependency, consequent upon the mother’s drug usage. The Department of Human Services became involved in her care.

3. On 23 July 2013, final orders were made in this Court in respect of the child Y, who is X’s sister.  Those orders provided for Y to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for Y.

4. Not long thereafter and on 4 September 2013, an interim accommodation order was made in the Children’s Court of Victoria providing for X to live with the Applicants.  X has, in fact, so resided with the Applicants continuously since that time, which is a period of just over two years.  Proceedings were had in the Children’s Court of Victoria on numerous occasions with respect to the care of X.  The matter was returnable in that Court on 23 occasions.  When proceedings commenced in this Court on 24 January 2014, on the application of the Applicants, proceedings were still pending in the Children’s Court of Victoria.

1. Because of the proceedings in the Children’s Court of Victoria these proceedings were adjourned until 2 February 2015, when interim orders were made by consent as between the Applicants and the Respondents.  On that occasion, Ms M appeared as amicus curiae on behalf of the Department of Human Services (‘DHS’). The Orders made 2 February 2015 provided for the appointment of an Independent Children's Lawyer, for the adjournment of the proceedings to 30 March 2015 for mention, and for parenting orders concerning X to take effect upon the expiration of the Supervised Custody Order dated 4 August 2014, then enforced in the Children’s Court of Victoria in proceeding number (omitted).

2. The parenting Orders referred to in the preceding paragraph provided that until further order, X live with the Applicants and spend time and communicate with each of the Respondents at separate times.  Relevantly, those Orders provided as follows:-

   “3. Until further order X spend time and communicate with the First Respondent:

   (a) each Wednesday from 9:30am to 11:30am at the (omitted) Play Centre; and

   (b) at such other times as are agreed between the First Respondent and the Applicants.

   3A. The First Respondent to send a text message to the Applicants no later than 4.00pm on the day prior to the time occurring pursuant to order 3(a) herein, and should she fail to do so, the visit will not occur.

   4. Until further order X spend time and communicate with the Second Respondent each Tuesday as follows:

   (a) in (omitted) between 9:30am and 11:30am each alternate week commencing 3 February 2015; and

   (b) in (omitted) between 8:30am and 11:30am each alternate week commencing 10 February 2015.

   4A. The Second Respondent to send a text message to the Applicants no later than 4.00pm on the day prior to time occurring pursuant to order 4 herein, and should he fail to do so, the visit will not occur.

   5. Until further order all time spent by the Second Respondent with X be supervised by either paternal grandparents or the paternal aunt.

   6. For 24 hours prior to and during all time spent with X, both the First and Second Respondents be and are hereby restrained from consuming or being under the influence of illicit drugs, alcohol, save for prescription medication taken in accordance with prescription of a registered medical practitioner.

   …

   9. Both the First and Second Respondents undertake supervised urine drug screen tests within 48 hours of any request to do so made by the Independent Children’s Lawyer, and provide the test results to the other parties and the Independent Children’s Lawyer as soon as practicable.

   10. The First Respondent file and serve a Response and any affidavit upon which she relies on or before 4.00pm on 23 February 2015.

   11. The Second Respondent file and serve a Response and any affidavit upon which he relies on or before 4.00pm on 23 February 2015.”

3. When the matter next came before the Court on 30 March 2015, the Court adjourned the matter to this day for final hearing. The Court ordered pursuant to s.62G(2) of the Act, that the parties and the child X attend upon a family consultant for the purposes of the preparation of a family report to be introduced into evidence in the proceedings. That Family Report was introduced into evidence this day. Otherwise, the Orders provided relevantly as follows:-

   “9. The First Respondent mother file and serve a response and any affidavit material she intends to rely upon not less than 28 days prior to the final hearing.

   10. The Second Respondent father file and serve a response and any affidavit material he intends to rely upon not less than 28 days prior to the final hearing.

   11. The applicants file and serve any further affidavit material they intend to rely upon not less than 14 days prior to the final hearing.

   12. In the event either the First Respondent or the Second Respondent fail to comply with order 8 or 9 herein then the applicants be granted leave to proceed on an undefended basis in respect of that party who has failed to file material in accordance with these Orders.”

4. Whilst the matter was in the Children’s Court of Victoria, all Orders made by that Court required each of the Respondents to have supervised time with X, and provided for other conditions in respect of the Respondents spending time with X to address the protective concerns of DHS.  The Department of Human Services’ case plan was originally one for reunification of the child with one or other of her parents, on the basis that they would rehabilitate.  Ultimately, the case plan became one of non-reunification as a result of the Respondents’ failure to comply with Orders.

5. Various subpoenas have been issued by the Independent Children's Lawyer in these proceedings since Westminster Lawyers filed a Notice of Address for Service on 9 February 2015.  Those subpoenas have included subpoenas to Victoria Police and DHS, (omitted) Community Health, (omitted) , (omitted) Hospital, (omitted) Psychologists, Dr N of (omitted) Medical Centre, Dr M of (omitted) Paediatric Group, and Dr D, Senior Specialist, Department of Paediatrics, (omitted) Hospital.

6. The Applicants rely upon the following documents as their evidence in the proceedings:

   a)Trial Affidavit of Ms Goodall filed on 24 September 2015, together with earlier Affidavit filed 24 January 2014;

   b)Trial Affidavit of Mr Goodall filed on 24 September 2015, together with earlier Affidavit filed on 24 January 2014;

   c)Trial Affidavit of Ms B filed on 24 September 2015 and earlier Affidavit sworn on 5 February 2014;

   d)Affidavit of Ms C filed on 29 September 2015; and

   e)the Applicants also rely upon a further Amended Initiating Application filed on 24 September 2015.

7. The expert report in this proceeding is the Family Report admitted into evidence this day and prepared by Ms D dated 28 August 2015.

8. The Applicants seek that they have equal shared parental responsibility with respect to the child X and that she live with them.  Due to the breakdown of communication between the parties and the parents neglect of their daughter, parental responsibility cannot be shared between the Applicants and either the mother or father.  The family report writer recommended sole parental responsibility to the Applicants.  That position was supported by the Applicants and Independent Children's Lawyer and indeed was initially sought by them. The order they proposed on hearing however was that the Applicants have equal shared parental responsibility of X. This is an order more aptly formulated.  It makes clear that each of them have parental responsibility for X and will continue to do so regardless of their circumstances into the future, unless by order of the Court, there is some alteration to that parenting regime.

Evidence

1. All of the evidence before the Court is as set out in the various affidavits and the Family Report and is unchallenged.

2. There has been long-term protective involvement by DHS with X’s parents due to drug addiction issues.  X was removed from parental care upon her birth.  She was born with drug addictions and required intensive care in hospital.  Initially, X was placed in the care of family members of her partner, Mr K, due to the possibility at that time that he was the biological father. Upon DNA testing results confirming that, in fact, Mr Griffiths was the biological father of the child, she was then placed with the maternal grandmother, Ms B, in June 2013.

3. In September 2013, X was placed with the maternal aunt and uncle, this reflecting an Interim Accommodation Order made in the Children’s Court of Victoria.  The Applicants have made a long-term commitment to caring for X within their family, which is supported by their adult children and by the maternal grandmother who has sole parental responsibility for her sister, Y.  Y has lived with the maternal grandmother since 2012.  Prior to that date, she had spent substantial time being cared for by the maternal grandmother.

4. The Applicants reported to the family report writer Ms D that the mother had not spent time with X since February 2015.  Prior to that date, arrangements had been directly negotiated with the mother, with time supervised by the maternal uncle or the maternal grandmother.  The Applicants reported that X had spent inconsistent time with her father, and that pattern was established over a significant period of time.  In November 2014, X’s father indicated to the DHS that he could not commit to weekly arrangements.  The Applicants reported that the father had spent time with X on 11 occasions from a total available of 40 access visits between 20 November 2014 and 18 August 2015.

5. The Applicants propose that X remain in their primary care and they have sole parental responsibility for her.  They propose that the parents spend time with X at a children’s contact centre on a monthly basis, with such time being supervised.  The First Respondent mother proposed to the family report writer that in the short term X remain living with the Applicants and that she spend time with her at the (omitted) children’s contact centre.  She indicated a desire in the future to resume care of both X and Y, stating that she was engaging in professional services in order to address her personal drug use and mental health issues.

6. The father stated to the family report writer that he was opposed to X remaining in the care of the Applicants.  He denied protective concerns as reported by DHS in respect of his ability to care, not only for X, but also for Y.  He proposed that X be returned to his care with assistance provided by his mother and sister.  In the short term, he proposed that he spend time with X twice a week.

7. The Applicants impressed Ms D as responsible, caring and focussed on the needs of X, both willing to speak openly in a calm and considered manner in respect to X, and her circumstances.  Their family lives in (omitted).  They have two adult children who live at home.  A is 19 years old, works part time, and has future intentions of study and travel. B is 22 years of age and is employed full time as a (omitted) at the (employer omitted).  Mr Goodall is employed full time in (omitted), travelling to (omitted) in Melbourne each day.  Ms Goodall is at home on a full-time basis.

8. The Applicants have an established support network consisting of the maternal extended (country omitted) family and paternal (country omitted) family.  They are in regular contact with the local child health nurse and paediatrician in respect to X.  Ms Goodall attends local playgroup with X and the family has close relationships with neighbours and friends.  Ms Goodall spoke of her own history of depression and health issues.  She stated her diagnosis of depression is well managed by medication and past counselling.  She described her emotional health as stable and said that she is “proud of my children”.

9. The Applicants openly expressed their love and commitment toward X and stated that they were providing a safe and loving home environment for her.  They acknowledge that DHS supported their application in this Court for X to remain in their care.

10. Ms Goodall described the current situation with her sister, X’s mother, as “heartbreaking”.  They have a past close relationship but there has been no contact since February this year.  X knows her mother as Mummy and the Applicants expressed their belief that the First Respondent had been agreeable to X being in their care.

11. In paragraph 19 of the Family Report, Ms D sets out Ms Goodall’s description of Mr Griffiths spending time with X.  She said as follows:-

    “… She described Mr Griffiths as non-compliant with court orders.  She described the experience for X of spending time with her father and paternal family members as ‘traumatic, she clings to me, cries, is scared, she is not happy, says no Mr Griffiths, she is distressed for days later and doesn’t sleep’. She added that X does ‘not see Mr Griffiths as a dad, it is not positive for her, Y has been damaged by contact with Mr Griffiths, he causes confusion for the girls, has no understanding and he spends a lot of time outside the play centre smoking and talking on his phone’.”

12. The maternal grandmother was also interviewed by Ms D.  She maintains daily contact with the First Respondent.  The First Respondent attends her home approximately three to four times a week in order to spend time with Y.  The Second Respondent was described as inconsistent in his attendance at her home, adding that in the last scheduled 23 arrangements, he had attended on 9 occasions, had been significantly late on 10, and attended on time on 4. 

13. The maternal grandmother expressed her belief to Ms D that her daughter Ms Kearns continued to experience significant issues with drug use.  She described a history of drug use from the age of 16 years with various treatment options and services attempted over the past 18 years.  She stated she was currently paying for treatment located at (omitted) Hospital.  She described communication with her daughter Ms Kearns as ‘difficult, inconsistent, it changes with her different moods’.  She said that whilst Ms Kearns is generally accepting of Y being in her care, ‘she tries to override me, I have to cope with a lot’. She added she knows Mr Griffiths well, noting, ‘he says things to Y that Ms Goodall will go to jail for taking X. This has affected Y’s relationship with her aunt’. She indicated that if she was unable to care for Y, there is agreement between her and the Applicants that Y would go to live with the Applicants with her younger sister.

14. When interviewed by Ms D, the mother described herself as in a dark and bad place at the present time.  She expressed her view that her sister was attempting to “break my bond with X”.  She acknowledged, however, that her sister was able to provide care for X.  It had been her preference for both X and Y to be cared for by her mother.  She acknowledged that she had been struggling with life since she was 18 years, stating that “drugs have ruined my life”.

15. The mother has been diagnosed with depression and has been prescribed antidepressant medication.  She experiences agoraphobia and at times is reluctant to leave her house.  She is on the methadone program administered at (omitted) Community Health.  She has recently commenced a new drug treatment program provided at (omitted) Hospital, attending once a fortnight as funded by her mother.  She has an established history of using heroin and marijuana.  She experienced a relapse two weeks prior to her interview with the family report writer.

16. To Ms D, the mother described her mental health as not good.  She stated she experiences panic attacks and feels a sense of personal isolation.  She described practical difficulties with travelling to (omitted) to see X, and expressed a willingness and preference to spend future time with X at a children’s contact centre in the (omitted) area.  She has no concerns with X’s placement or safety when with the Applicants.

17. In respect of the father, Ms D noted the father to become physically ill during the interview, requiring a break in the interview time.  He impressed her as a determined man, dogmatic and not accepting of reporting protective concerns.  He stated to the family report writer on 24 August 2015, that it was his intention to seek an adjournment of these proceedings in order for the Court to assess the return of both X and Y to his primary care.  He was dismissive of the involvement of DHS and claimed that he and his family had not been given the opportunity to care for X. He stated he continued to live with his parents, sister and her children in (omitted), an arrangement that had been in place for the past five years.  He wished for Y and X to be returned to the home of the paternal grandparents in order for him to receive help caring for them.  He acknowledged a past addiction to pain medication, but denied drug usage. He stated he had attended (omitted)  approximately two years ago for drug treatment, however was told that he didn’t have a problem.

18. Upon interview with Ms D, the child X impressed as “a bright, capable and delightful child”.  She interacted in a limited direct manner with the family report writer, preferring to be in close proximity with family members.  It was observed that X referred to her aunt and uncle as Mummy and Daddy.

19. Ms D concluded that the mother was a person who remains vulnerable and continues to struggle with issues of long-term drug addiction and issues in respect to her mental health.  The father, Mr Griffiths, impressed as a man who:-

    “…has limited insight into past circumstances and history that has involved protective involvement from the Department of Human Services over the past five years, this involving both Y and X.  He appears unaccepting of identified protective concerns and the decision to place X with Mr and Ms Goodall.  Mr Griffiths appears not to accept past protective decisions to remove both Y and X from paternal care, this including extended paternal family care.  He spoke in a negative and critical manner in respect to the involvement of the Department of Human Services and in respect to Mr and Ms Goodall.”

20. Ms D noted that Mr Griffiths had not provided any formal response to the application, nor had he provided requested drug screen results to the Independent Children's Lawyer.  His proposal that X live in paternal care was not supported by her as being in the child’s best interests.  She considered X benefitted from the stability and nurturing care provided by the Applicants.  She noted that X had developed a significant and primary attachment to them, with such attachment giving her consistency, predictability and reassurance.

21. Ms D considered that X would benefit from a change in the current arrangements in respect of her mother and father, noting she was described as distressed and traumatised by the current arrangements involving Mr Griffiths.  Ms D noted X required consistency in the area of paternal contact, which appeared absent at the present time.  Given the lack of insight demonstrated and articulated by Mr Griffiths in particular, issues for X remain present and continue to pose emotional challenges for X. 

22. Ms D recommended that X remain in the primary care of the maternal aunt and uncle, and that she have a future opportunity of spending time and maintaining her relationship with her mother and father by arrangements occurring at the (omitted) children’s contact centre on a monthly basis.  Additional time could be given to the mother to spend time with X at the home of the maternal grandmother, with arrangements negotiated between family members.

23. I accept the evidence and recommendations of the expert witness, Ms D. Those recommendations are adopted by the Applicants and the Independent Children’s Lawyer. They accord with the totality of the evidence before the Court. The father exhibits an extraordinary lack of insight, and has no current capacity to promote the best interests of his daughter. He has no capacity to provide her with any emotional, physical or financial security. X is wary of her father and expresses no wish to see him. The trail of litigation appears possibly vexatious and certainly exhausting for the Applicants. X is thriving in the care of the Applicants. They provide for all her needs, as set out in the s.60CC of the Act considerations. They do so, to the exclusion of the biological parents. Every relevant (to these circumstances) s.60CC factors to be considered, favour the Applicants. As a first priority however, and importantly, X’s parents cannot secure her safety when she is in their care. The consequences of their behaviours are potentially damaging to her.

24. The Court shall make the Orders as sought.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 5 November 2015