Grenville and Peyton and Ors

[2019] FamCA 332

FAMILY COURT OF AUSTRALIA

GRENVILLE & PEYTON AND ORS [2019] FamCA 332

FAMILY LAW – CHILDREN – Parenting – Final Orders – Where there are three children who were initially the subject of these proceedings – Where one child remains the subject of these proceedings – Where the subject child has been living with the Second Intervener who has been her primary carer for several years – Where the child’s parents both consent to the Second Intervener having sole parental responsibility for the child and for the child to live with her.

Family Law Act 1975 (Cth)

APPLICANT: Ms Grenville

FIRST RESPONDENT: Mr Peyton

SECOND RESPONDENT: Mr Vergona

SECOND INTERVENER: Ms Sullivan

INDEPENDENT CHILDREN’S LAWYER: Anthony Kingston

FILE NUMBER: BRC 10736 of 2013

DATE DELIVERED: 8 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 8 May 2019

REPRESENTATION

THE APPLICANT: No Appearance

THE FIRST RESPONDENT: No Appearance

THE SECOND RESPONDENT: No Appearance

THE SECOND INTERVENER: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston

Norman & Kingston

Orders

1. That all previous parenting orders in relation to the child, Y born … 2003, be discharged.

2. That the second intervener, Ms Sullivan, shall have sole parental responsibility for the child, Y born … 2003 (“the child”).

3. That the said child shall live with the second intervener, Ms Sullivan.

4. That the Independent Children’s Lawyer be discharged.

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 Grenville & Peyton and Ors 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 BRISBANE

FILE NUMBER: BRC 10736 of 2013

Ms Grenville

Applicant

And

Mr Peyton

First Respondent

And

Mr Vergona

Second Respondent

And

Ms Sullivan

Second Intervener

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings, which by their filing date appear to have been commenced by the Applicant (who is the mother in the proceedings) in 2013, were effectively judge managed by me over the last couple of years and ultimately listed for trial commencing today. It is a case about the parenting of the eldest of three girls, namely Y born in 2003, who is otherwise known by everyone in the proceedings as Y. 

2. There are two other children who have been the subject of the proceedings as they have been before me in this Court, namely Z born in 2005 and X born in 2013. The proceedings not only involved the mother of the three girls, but also two men as First and Second Respondents, namely Mr Peyton, who is the father of the two eldest girls, Y and Z; and the Second Respondent, Mr Vergona, who is the father of the youngest child, X. 

3. The proceedings also involve an intervener. Her name is Ms Sullivan. In fact, Ms Sullivan is the Second Intervener. There were some other interveners previously in the proceedings, namely Ms H and Mr J, who are the paternal grandparents of Y and Z, namely being the parents of Mr Peyton.  They withdrew along the way.

4. The proceedings were, as are so many in this Court, rather complicated. Colloquially one could describe them as “messy”, involving a number of complex, difficult and troublesome parenting issues. Just to deal with those briefly, from memory, there were serious allegations of family violence, allegations that such family violence was perpetrated on the Applicant mother during her relationship with the First Respondent, by him, and during her relationship with the Second Respondent, by him. There were also allegations that the girls had been subjected to or exposed to the family violence, that existed in their household when their mother was living with each of these men.

5. The proceedings became even more complicated by the fact that it was alleged by the child Y, the eldest child, that the Second Respondent had sexually abused her at some time. It became more complicated yet again by the fact that the allegations made by the child Y were not supported by the Applicant mother who actually asserted belief and support in the father of the youngest child, the Second Respondent, as against the eldest child, Y.

6. Ultimately, as might be expected in those circumstances, the three girls came not to be living in the household with their mother or either of their fathers. It seemed that at some point in time, the three girls were removed from, or removed themselves from, the care of their mother and ceased living in the same household as her, and were placed in the household of their paternal grandparents, the Peytons, and were being cared for by them. I have some memory that by the time it ultimately got to me in this Court, the eldest child Y had indeed left their household and gone to live in the household of the Second Intervener, Ms Sullivan, having voted with her feet. Ms Sullivan is the mother of a child who is a school friend of Y’s. 

7. As the matter progressed and resolution could not be achieved between the parents and all of the other parties involved, things worsened rather than improved, at least for the two younger girls. Mr and Ms Peyton, the paternal grandparents, were unfortunately and regrettably unable to continue providing residential care for the two young children. Both, I understand from memory, became ill, particularly Ms H who suffered cancer and began to seriously suffer the effects of that and its treatment. To their credit though, they made arrangements with the Queensland Department of Child Safety, Youth & Women, for the two younger children to be taken into care and placed in a foster family situation via a Children’s Court child protection order that went into place. Of course, pursuant to s 69ZK(1) of the Family Law Act1975 (Cth), once a child protection order is in place this Court does not have the power to make a parenting Order that affects those children save for where it is said to only come into effect upon the expiration of the child protection order that is in place.

8. Whilst the child protection order was in place, this Court’s power to determine parenting proceedings in respect to those two younger children was effectively removed. That left, however, proceedings in respect of Y, the oldest child, still on foot. Y was living happily, apparently according to at least the Family Report that was done in the proceedings, with Ms Sullivan and her family and I understand there was satisfaction all round, (save for the Applicant mother), that everything was as good as it could be in Y’s life having regard to all the circumstances I have just outlined. Ms Grenville, the Applicant mother, was determined, though, to continue with the proceedings and parenting Orders were contested. That is why the matter was ultimately listed for hearing today to take place over two days. 

9. I have not mentioned yet another party to the proceeding is the Independent Children’s Lawyer, Mr Kingston, who has been involved for as long as the matter has been before me, at least. Thankfully, just a few days before the matter was to commence before me, the mother decided that she would no longer proceed with her application. On 7 May 2019, yesterday, she sent an email that is now Exhibit 2 in the proceedings that is before me today, to a staff member at Domestic Violence Action Centre in Town C, and she said in that email:

   Dear [staff member],

   I would like to notify you and Judge Forest [sic] of Family Court in Brisbane that due to my daughter’s age [she has just turned 16] and wishes I agree for [Ms Sullivan] to have sole custody of my daughter [Y].

   All communication with [Y] and [Ms Sullivan] I will be having through DVAC.

   I withdraw myself from Family Court and will not be attending Trial.

10. Exhibit 1 in today’s proceeding is an email exchange between the Independent Children’s Lawyer and the father, the First Respondent, Mr Peyton, dated yesterday. In that, Mr Kingston wrote to Mr Peyton and said:

    We note you have informed us…

    1.You were not aware that the trial of this matter is proceeding in the Family Court of Australia at Brisbane tomorrow;

    2.         You agree to [Y] living with [Ms Sullivan];

    3.You agree to [Ms Sullivan] having sole parental responsibility for [Y];

    4.You are hopeful of continuing to rebuild your relationship with [Y] and [Z] depending on your work commitments and your ability to return to Queensland.

    Please confirm by return email that this is a correct statement of your position.

11. Mr Peyton wrote back:

    I, [Mr Peyton] agree to the points listed below as per discussion today 07-05-2019 with Tony Kingston

12. I also have before me copies of sealed copies of the Children’s Court in Town C of Orders dated 30 April 2019 from Magistrate Ryan pertaining to Z and X, making orders that long term guardianship of the respective children was granted to the Chief Executive of the Department of Child Safety, Youth and Women until that child reaches the age of 18. With such an order in place, as I have already said, as this Court’s jurisdiction to make parenting Orders expires on the eighteenth birthday of the subject child,  the Court has no interest at all, (if I can use that expression in the legal sense), in the two younger children. 

13. In the circumstances, as both the parents of Y have indicated their consent to Orders being made by this Court that Y live with Ms Sullivan, the Second Intervener, and that Ms Sullivan shall have “custody” as Mr Peyton put it, or sole parental responsibility for Y as the mother put it, that is what I will order, satisfied absolutely from all I know about this case that such orders are indeed in Y’s best interests. Accordingly, I order as set out at the commencement of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 May 2019.

Associate: 

Date:  23 May 2019