Halit & Halit
[2024] FedCFamC1F 437
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Halit & Halit [2024] FedCFamC1F 437
File number(s): TVC 464 of 2023 Judgment of: BAUMANN J Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – CHILDREN – Where at trial both the Applicant mother and Applicant father did not participate – Final orders made in the best interests of the children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.26, 10.27
Cases cited: Allesch v Maunz (2000) 203 CLR 172 Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 5 June 2024 Place: Townsville Counsel for the First Applicant: The First Applicant did not appear Counsel for the Second Applicant: The Second Applicant did not appear Counsel for the Respondent: Mr Fellows Solicitor for the Respondent: Lee Turnbull & Co Counsel for the Independent Children's Lawyer: Mr R Pack Solicitor for the Independent Children's Lawyer: Collier Lawyers ORDERS
TVC 464 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HALIT
First Applicant
MR KADRI
Second Applicant
AND: MS B HALIT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the matter proceed on an undefended basis.
2.That all previous Orders made in relation to the child X born in 2010 and the child Y Halit (ALSO KNOWN AS Y KADRI) (“Y”) born in 2019 be discharged.
REGARDING Y
Parental responsibility
3.That the Respondent maternal grandmother have sole responsibility for making decisions about major long-term issues for Y.
4.That for the purposes of these Orders, a major long-term issue shall include, but is not limited to, issues about:
(a)Y’s education (both current and future);
(b)Y’s religious and cultural upbringing;
(c)Y’s health;
(d)Y’s names/name; and
(e)Changes to Y’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
5.That the maternal grandmother shall consult with the parents, MS HALIT born in 1993 (“the mother”) and MR KADRI also born in 1993 (“the father”) (collectively “the parents”) through the Our Family Wizard Application about major long-term issues as follows:
(a)She shall inform the parents about the decision/s to be made as soon as reasonably practicable;
(b)The parents are to respond within three (3) days advising of their view on the particular issue;
(c)The maternal grandmother must genuinely consider any views expressed by the parents; and
(d)After the period of three (3) days has expired and within three (3) days thereafter, the maternal grandmother is permitted to make the decision and inform the parents of the decision.
Living arrangements
6.That Y shall live with the maternal grandmother.
7.That Y spend time with the mother and the father on a supervised basis at a contact centre nominated by the maternal grandmother (“the contact centre”) at such times as can be arranged by the contact centre in consultation with the maternal grandmother.
8.That the mother, father and maternal grandmother forthwith do all acts and things to register with the contact centre.
9.That on one (1) occasion per year the maternal grandmother shall facilitate and be responsible for the costs of Y’s travel to City B (and return) to spend time with the mother and father at the contact centre in City B, and:
(a)the mother will be responsible for the costs of the supervised visits at the contact centre in City B when she is spending time with Y;
(b)the father will be responsible for the costs of the supervised visits at the contact centre in City B when he is spending time with Y;
(c)the mother, father and maternal grandmother are to comply with all reasonable requests of the contact centre in City B;
(d)in the event the mother or father do not complete their intake with the City B contact centre and/or do not confirm with the contact centre that they will attend the contact centre on the dates proposed by the grandmother, the grandmother is not required to bring Y to City B; and
(e)for the purposes of her time with Y, the mother shall encourage the child X to accompany her for any supervised visit that has been arranged.
10.That in the event either the mother or father travels to the area where the maternal grandmother resides, they shall be at liberty to spend time with Y at her/his cost, at the contact centre closest to the maternal grandmother’s residence and upon the giving of fourteen (14) days’ notice to the maternal grandmother of the intention to spend time with Y.
Telephone communication
11.That Y shall have video or phone communication with the mother between the hours of 6.30pm and 7.00pm each Monday, with the mother to initiate the call and the maternal grandmother to ensure that Y is available to take the call.
12.That Y shall have video or phone communication with the father between the hours of 6.30pm and 7.00pm each Wednesday, with the father to initiate the call and the maternal grandmother to ensure that Y is available to take the call.
13.That the maternal grandmother shall facilitate video or phone communication between Y, the mother and the father on the following special occasions, if Y is not otherwise spending time with the parents on these days:
(a)each parent’s birthday;
(b)the child’s birthday;
(c)Mother’s Day;
(d)Father’s Day; and
(e)Christmas Day.
14.That the maternal grandmother be at liberty to supervise the video/phone communication between the parents and Y and may terminate the call if either parent makes comments to Y that are abusive and/or denigrating of the other parent or the maternal grandmother and/or talking to Y about living/spending time arrangements that have not been agreed between the parties and/or discussing these proceedings.
Communication between the parties
15.That the mother, father and maternal grandmother will communicate in relation to all matters concerning Y by using the Our Family Wizard app, or any other co-parenting app agreed in writing, save for in an emergency, where they shall communicate by telephone call and the mother, father and maternal grandmother be responsible for their own costs associated with the Our Family Wizard app.
16.That within seven (7) days of the date of these Orders, the father shall provide his mobile phone number to the maternal grandmother.
17.That all parties shall keep each other informed as to their residential address, mobile telephone number(s) and email address, and advise the other of any change in these details within forty-eight (48) hours of such change.
Authority
18.That the maternal grandmother shall keep the parents promptly informed of any serious health issues that impact Y while he is in her care.
19.That the maternal grandmother be at liberty to provide a copy of these Orders to Y’s paediatrician, doctor, other allied health professionals, educational facilities, and any other professional agency involved with Y who he may attend upon from time to time.
20.That the maternal grandmother do all acts and things necessary to enable/authorise Y’s educational facility to provide to both parents all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports and school photographs.
21.That the maternal grandmother be permitted to apply for an Australian passport to enable Y to travel overseas, notwithstanding that the parents have not signed the passport application form.
22.That for the purposes of Order 21 herein and pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), it is requested that the Department of Foreign Affairs and Trade forthwith do all acts and things to issue an Australian passport in Y’s name.
23.That the maternal grandmother will retain possession of Y’s passport.
24.That the maternal grandmother will inform the mother and father in writing if she intends to take Y overseas, as follows:
(a)The time and date of departure from Australia and time and date of return to Australia;
(b)The address and contact details of where Y will be staying throughout the trip and
(c)A copy of the itinerary.
25.That no less than seventy-two (72) hours prior to overseas travel with Y, the maternal grandmother will register the child with Smart Traveller or similar authority of the Australian Government and provide the parents with confirmation and details of the same.
Restraints
26.That pursuant to s 68B of the Family Law Act 1975 (Cth), the mother and father be restrained from:
(a)approaching the child, apart from when they are spending supervised time with the child at a contact centre;
(b)removing the child from any place including, but not limited to, a contact centre;
(c)communicating with the child other than when spending supervised time with them at the contact centre or video communication in accordance with this Order;
(d)asking other persons to communicate with the child on the mother or father’s behalf;
(e)allowing the child to have contact with the paternal grandfather, Mr C;
(f)denigrating or insulting the maternal grandmother or the maternal grandmother’s family to or in the presence of Y and use his or her best endeavours to ensure that other persons do not denigrate or insult the maternal grandmother or the maternal grandmother’s family to or in the presence of Y;
(g)suggesting to Y that they will return to the mother’s or father’s care;
(h)suggesting or encouraging Y to run away/leave the maternal grandmother’s care;
(i)allowing Y access to any court documents;
(j)discussing these proceedings, allegations raised in these proceedings or documents prepared or produced for the primarily purpose of these proceedings with or in presence or hearing of Y;
(k)posting any derogatory remarks/information about the maternal grandmother on social media;
(l)posting any information or documents regarding these court proceedings on social media;
(m)attending any place Y lives without the consent of the maternal grandmother in writing and/or without an Order of the Court permitting them to do so.
27.That each party is restrained from discussing the proceedings with Y, or in the presence or hearing of Y, including in relation to the live with and spend time with arrangements that have not been agreed.
Privacy and non-denigration
28.That during the time Y is with either parent or the maternal grandmother, each party shall:
(a)respect the privacy of the other parties and not question Y about the personal life of the other parties;
(b)speak of the other parties respectfully; and
(c)not denigrate the other parties, any member of the other parties’ family and any associates of the other parties in the presence of Y and shall not permit any other person to denigrate the other parties, any member of the other parties’ family or any associates of the other parties in the presence of Y.
REGARDING X
Parental responsibility
29.That the mother and the maternal grandmother have responsibility for joint decision making about major long-term issues for X.
30.That for the purposes of these Orders, a major long-term issue shall include, but is not limited to, issues about:
(a)X’s education (both current and future);
(b)X’s religious and cultural upbringing;
(c)X’s health;
(d)X s names/name; and
(e)changes to X’s living arrangements that make it significantly more difficult for X to spend time with a parent.
31.That notwithstanding Order 30 herein:
(a)the mother shall be responsible for the daily care, welfare and development of X whilst she is living with or spending time with her; and
(b)the maternal grandmother shall be responsible for the daily care, welfare and development of X whilst she is living with or spending time with her; and
32.That the mother and the maternal grandmother shall consult with each through the Our Family Wizard app about major long-term issues which arise.
Living arrangements
33.That X live with the mother.
34.That X spend supervised time with the father at the Contact Centre in City B.
35.That X spend time with the maternal grandmother (and Y) at all reasonable times as agreed between the parties and failing agreement:
(a)for one (1) week during the term one, two and three school holidays each year on dates that are agreed, and failing agreement, for the first week; and
(b)For two (2) weeks during the Christmas school holidays each year on dates that are agreed, and failing agreement, for the fourth and fifth weeks.
36.That the maternal grandmother shall bear the cost or her and/or X’s travel for the purposes of Order 35 herein.
37.That the maternal grandmother (and Y) have video communication with X each Tuesday between 6.30pm and 7.00pm, for thirty (30) minutes in total, with the maternal grandmother to initiate the call and the mother to ensure X is available to take the call.
38.That this Order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other special persons dealing with X to provide to the mother and the maternal grandmother any and all information, including but not limited to school reports, newsletters, school photographs, orders forms sought by them and effect their request at their individual expense (if any).
39.That pursuant to s 68B of the Family Law Act 1975 (Cth), the mother and father be restrained from:
(a)allowing X to have contact with the paternal grandfather, Mr C;
(b)denigrating or insulting the maternal grandmother or the maternal grandmother’s family to or in the presence of X and use his or her best endeavours to ensure that other persons do not denigrate or insult the maternal grandmother or the maternal grandmother’s family to or in the presence of X;
(c)allowing X access to any court documents;
(d)discussing these proceedings, allegations raised in these proceedings or documents prepared or produced for the primarily purpose of these proceedings with or in presence or hearing of X;
(e)posting any derogatory remarks/information about the maternal grandmother on social media; and
(f)posting any information or documents regarding these Court proceedings on social media.
Other orders
40.That the Application in a Proceeding filed 8 September 2023 be dismissed.
41.That the Application in a Proceeding filed 8 September 2023 be dismissed.
42.That the Application in a Proceeding filed 12 October 2023 be dismissed.
43.That the Application in a Proceeding filed 2 November 2023 be dismissed.
44.That the Independent Children's Lawyer be discharged.
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 the pseudonym Halit & Halit has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
INTRODUCTION AND CONTEXTUAL HISTORY
Since final Orders were made in this matter on 28 August 2020, the children who are the subject of this litigation, X born in 2010 and her little brother, Y born in 2019, were to live with their maternal grandmother, Ms B Halit.
The events that preceded those final Orders provide some context to some of the difficulties we now face. I am satisfied on the evidence, and this history is taken from both the evidence of the maternal grandmother, the family report, and the other documents that are before the Court, that the mother, who is now aged 30 years, and the father who is now aged 31 years, were approximately 17 years of age when X was born in 2010.
The evidence shows that the relationship between the mother and father, perhaps shaped more by immaturity, but also shaped by family violence and use of drugs and illicit substances, meant there were often engagements with the Court system at a state level involving domestic violence applications, contraventions, charges for drug offences and the like.
The parents, who are of course the Applicants in this case, Ms Halit (“the mother”), and Mr Kadri (“the father), actually agreed to parenting orders initially in March 2012, which were further amended in November 2015. With the apparent decay in the relationship, and the risk to X and sadly, also Y, who was born in 2019, the parties consented (other than the father, who did not participate) to the final orders made on 28 August 2020.
Those Orders were shaped by a family report prepared by Mr D, which is relied upon in this case by the maternal grandmother, and which I have read.
The Orders of 28 August 2020 speak for themselves. They provided effectively for the children to live with the maternal grandmother and to spend time with the mother as agreed between the mother and the maternal grandmother. The father’s time was to be supervised as a result of the still uncertain risk that he had not satisfactorily overcome so far as the Court was concerned at that stage.
Importantly, Order 21 of those Orders indicated there was a right for the maternal grandmother to travel and to assist her elderly mother, who I will call the maternal great-grandmother, who was managing and/or owned a business 45 minutes’ drive from Town E in Region F.
It seems to me, looking at the history of this matter, that the understandable concerns created by the poor health of the maternal great-grandmother caused the maternal grandmother necessarily and culturally to temporarily move to Region F in 2020 with the children.
The grandmother says, and I accept, in her affidavit that it was not her intention that that be a permanent move at the time she went there. It has become a permanent move for the reasons she explains in her affidavit. The evidence of the maternal grandmother before the Court is extensive in a well-prepared affidavit which deals with the history. It shows clearly the difficult balance the maternal grandmother has had to find between her role as a grandmother to these children, as a mother to her daughter who has continued to show some erratic behaviour, and as the daughter of her mother who needed her assistance. I might observe that for any person so many obligations would be overwhelming. For the maternal grandmother, perhaps her training and experience as a social worker and her significant understanding of these issues both within her Aboriginal culture and more widely, gave her some insight and perhaps some resilience to deal with the issues.
The grandmother does not say she was always perfect. She acknowledged that in 2020 there was an interaction with X, who by this stage was 12 years of age, that resulted in X being hit by the grandmother. The grandmother regretted her reaction to X’s behaviour, apologised and on her evidence, which I am prepared to accept, moved on. My view is, however, that the mother’s actions at least since the final Orders in 2020 belie her acceptance of those Orders.
The evidence of the maternal grandmother, which I accept, is that effectively the mother, by actions and secret manipulation, was putting pressure upon X to not comply with the requirements in the home of her grandmother, then living in Region F. The full extent of how that occurred is difficult to unravel because of the failure by X and the mother to engage in the family report process. But even taking what the grandmother knows, it is clear that X was, it seems to me, encouraged by the mother to gather evidence in the maternal grandmother’s home to try and support the mother’s view that the children should live with the mother.
I am not satisfied on the evidence before me at this stage that any such evidence justified such an approach by the mother, but was perhaps more indicative of the mother’s own insecurity and failure to accept responsibility for her past behaviour.
Be that as it may, in around September 2022, a mere two years after the final orders had been made, the mother, whilst spending time with the children in a form of a supervised environment, in the way in which the grandmother explains in her affidavit, took control of the children and withheld them from returning to the maternal grandmother in Region F.
The mother, the father and a number of extended family members then brought an application to the Court on 3 May 2023 seeking effectively to have the children remain with her in Region G. Although the Court did not support such a position, by 31 May 2023 the mother had again, I find, as set out in paragraphs 117 and thereafter of the maternal grandmother’s affidavit, orchestrated a set of circumstances to arise which encouraged and supported X running away from the grandmother’s home. The evidence is that since May 2023, which is now over 12 months ago, X has not lived in the home of her grandmother and her grandmother has had little time with her.
Sadly in this case there has also been little time that has occurred between X and her little brother Y. In that regard, although I accept that their nine-year age difference puts them in quite different developmental positions, I think at least all family members accept it would be ideal if X and Y were in the same household where possible so that their sibling relationship could be developed. In my view, the actions of X, supported by the mother, (if not in fact encouraged by the mother) have made it very difficult for the children to maintain a relationship.
In that regard, I do not ignore the fact that Y has a number of additional needs. He is now five years of age. The maternal grandmother has seriously continued to take advice professionally and from other health professionals as to how to assist Y to function at the highest level, be it with medication or behaviour management. I am satisfied from the evidence I have read from the maternal grandmother, which I accept, that that is an ongoing project. He needs a lot of her time. She has drawn on support from his school and wider community of health professionals to help this boy reach his potential. In circumstances where there is evidence, for example, that the mother does not accept the diagnosis made by health professionals such as paediatricians, that does not augur well for him getting the same level of support and assistance if he was ever to live in the care of the mother. It is sad that the mother does not have the capacity to separate – this is but one example – her understandable desires and needs as the mother with the best interests of her children.
SHOULD THE MATTER PROCEED UNDEFENDED?
As Mr Fellows, Counsel for the grandmother, has identified in the case outline document that he relies upon, the progress of this matter has seen increasingly less and less engagement by the mother. Whilst the mother has been quite active in filing Applications in a Proceeding, challenging procedural Orders and/or filing appeals against procedural Orders both in respect of Judge Bowrey and also myself, all of which have been dismissed, mostly summarily, the mother has failed to engage. Mr Fellows, in his case outline prepared by him, says:
1.The Applicants have not complied with the Order made 16th June 2023 for drug testing. The Applicant [Ms Halit] has not complied with the requirement in that same order for the provision of a medical report concerning her [health condition].
2.Neither applicant has complied with Order 4 of the order dated 27th November 2023 concerning their participation in the family report process.
3.Neither applicant has complied with the trial directions made by the Order dated 8th March 2024.
I agree, to which I would add, save for an affidavit filed by the mother, which I will refer to shortly.
Those failures were relied upon by Mr Fellows to enliven the power through r 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and rr 10.26 and 10.27 to proceed in this matter, effectively on an undefended basis. In my view, the submission was properly made, and I accept it.
However, as decisions of the Full Court have made clear, undefended does not mean unheard. Parties, even if they do not file material and are not able to cross-examine by reference to the impediments under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), the other party may still be entitled, if they turn up, to cross-examine the other party, witnesses, including the report writer, and to make submissions. However, the mother and father did not avail themselves of that possible right today. Accordingly, I proceed on the undefended basis as urged upon me by Mr Fellows and supported by Mr Pack, Counsel for the Independent Children’s Lawyer.
Of all the failures, the one that I found most distressing in some ways is the failure of the mother to attend to second opportunity for family report interviews and observations which the Court to occur, after hearing from the mother when she was in my court on 27 November 2023 in City B. She said at that Court even that she understood the importance of attending and producing X for observations, not only with the mother and grandmother but also her little brother.
The report of the report writer, Ms H, identified the mother and X failing to attend was a limitation of the assessment process. I note, however, and my understanding is that the maternal grandmother and Y attended at least a second time for interviews personally with Ms H, no doubt expecting as a result of what the mother had told the Court on 27 November 2023 that she would comply with the order to attend and ensure that X would also be in attendance, after the publication of the first family report, limited though it was, on 27 February 2024.
In that regard, I pay tribute to the work in this case of Ms Collier, the Independent Children’s Lawyer. This has been a difficult case with difficult litigants and she has, in the best traditions of Independent Children’s Lawyers in this country and particularly in Queensland, in my view, done all she could to assist the Court in making decisions in the best interests of these children.
On 8 March 2024, the matter was listed for trial to commence today. Directions were made for the filing of material. The mother and father, as already noted, made apparently no attempt to comply with those trial directions save for an affidavit filed by the mother but not served upon, it seems, the maternal grandmother. The importance of that document is that it demonstrates to the Court that the mother was aware that the matter had been listed for trial and that she was required to file some trial material.
Mr Fellows has tendered emails from the Independent Children’s Lawyer to the mother and from the maternal grandmother’s sister to the mother which again, in my view, satisfy the obligations identified by authorities like Allesch v Maunz (2000) 203 CLR 172 that gives notice to the parties about the sorts of orders that are being sought and that may be pressed if there was an absence to attend. It is worth reminding everybody that in a civil justice system it is not possible necessarily to compel people to engage in the process. There are limited powers to arrest people for not complying, powers which are readily used properly under State law by Magistrates in the criminal justice system. What the authorities make clear is that a person as a matter of procedural fairness is entitled to be aware of what orders may be sought in their absence, and if they do not attend they can hardly complain.
On 26 March 2024, the mother filed an affidavit, which states:
1; that [Ms Halit] claims the standing, status and capacity of the Office, of the Executor and Beneficiary, for the Estate [MS HALIT], wishes, and wills that [MS HALIT] is perpetually forgiven all debts accrued to and for the Estate of [MS HALIT], and waives all benefits and privileges, which would accrue to the Estate of [MS HALIT];
2. further, [Ms Halit], wills that the property of [Ms Halit] being the offspring [Y] and [X] be immediately returned to the beneficiary's trust and possession;
3; that all Trustees administrating the estate of [MS HALIT] be immediately vacated for the illegal administration of the estate of [MS HALIT]; and, [Ms Halit], being the Executor and Beneficiary of the Estate of [MS HALIT] expressly wills and instructs to do so effectively immediately;
4;. the FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA trustees to make orders for the immediate return of the property of [Y] and [X];
from the office of……grantor by virtue of existence, Executor and Sole Beneficiary, of caps name on legis and all derivatives thereof;
(As per original)
That the mother would go to the trouble of having this affidavit sworn in front of a Justice of the Peace and then filing it, is troubling. It is a somewhat erratic statement and is akin to other statements the Court is now getting often, sadly, in some cases where a person adopting the mantra of some form of “sovereign citizen” asserts things about the jurisdiction of the Court or the right to obtain their children which they term as “property”. I cannot, from that document alone in the absence of evidence, infer how the mother is progressing at this stage. There is not enough evidence to be satisfied about that and that, of course, it is a great concern when X, at least, is in her care primarily.
Having said that, at least, I have read Exhibit 1 which is the school official absence report from the J School for X, which is troubling in terms of the number of late and non-attendances by X. I say that in circumstances where the evidence of the grandmother, which I accept, is that this child was on a trajectory for quite outstanding achievement as a young person in both sport and academia. It is hoped that eventually she will reach that potential but there must be some doubts about whether she can do so without proper support from a well-functioning mother which I am not satisfied she has at this stage.
Returning, however, to the comment about the mother’s engagement, the Independent Children’s Lawyer, as the law now requires, sought to interview X. She did what she could to make an arrangement for that to occur. On 30 May 2024, the Independent Children’s Lawyer, Ms Collier, sent a note to the mother which said:
As you're aware, my office has sent you requests, for me to meet with [X] by video. We have not had any response. Can you please advise if you will facilitate [X] meeting the ICL before next Wednesday by video?
(As per original)
On Monday 3 June 2024, the mother sent an email to Ms Collier in these terms:
You do not have a reason or purpose to meet with [X], other than to manipulate and intimidate the situation. The family report has already been submitted to the court, along with your recommendations. So the purpose of your “meeting: is irrelevant and holds no value to [X]
[X] has come home today and advised that you are even going as far as contacting the school to speak with [X]. You have now made my child feel embarrassed, threatened and intimidated at her place of learning.
This is a Phishing expedition, nothing more.
(As per original)
The mother’s response speaks for itself.
STATUTORY PATHWAY
Since 6 May 2024, a new legislative pathway applies in parenting cases although the end destination is the same. The Court is invited to make which on the evidence are in the best interests of children, which is a paramount consideration, although not the only consideration.
The objects under s 60B have been amended and now there are basically just two considerations: to ensure the best interests of children are met and to give effect to the United Nations Convention on the Rights of the Child .
The very expansive previous s 60CC(2) and (3) which had primary and additional considerations has been very much shortened. I note as well that the presumption of equal shared parental responsibility no longer applies in parenting cases.
Section 60CC now provides that when determining a child’s best interests, certain things must be considered, namely:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child also consider the matters set out in subsection (3).
In this regard, I am satisfied, as the maternal grandmother deposes to, that the children are Aboriginal or Torres Strait Islander children, although they have other heritage which is important and recognised by the maternal grandmother. The children, I note, have Aboriginal names. The children have a connection with their "tribe" through the maternal grandmother. The maternal grandmothers reference in her material to her need, through the Aboriginal culture, to look after “elders” which is her mother, is another example of the principles of Aboriginality being lived in the grandmother’s home whilst at the same time adopting other society norms that exist.
Subsection 60CC(2) and thereafter talks about general considerations which are as follows:
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection (3) which is in these terms, is relevant:
Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
In the reasons I have already given, I believe I have covered many of these matters, particularly in respect of the important Aboriginal issues. The evidence of the maternal grandmother gives ample satisfaction to the Court that the rights that these children have would be protected if the children live with her. It is not possible to be so confident about the mother’s engagement with her Aboriginal culture. I indicated on one earlier occasion when the mother was in the court she seemed to be supported by other people from the Aboriginal community. My understanding, from what the mother has told the Court previously, is she recognises and respects her Aboriginal heritage and, to that extent, it is to be hoped that X’s right will, especially in Region G where there are strong cultural connections, be met, but it is very difficult for the grandmother to do more about that. Certainly with respect to Y I have no concerns at all.
ORDERS SOUGHT
I turn to the orders which are being sought in this case. As I say, the failure of the mother and father to engage in any way with the process makes it difficult for me to understand what their current position is or any proposals they have. In that regard, the father has, on the evidence, spent little time with these children. Whether he and his extended family (who I note earlier had been participants in this Court proceeding before being removed from the proceedings by Orders of Judge Bowrey made on 16 June 2023) is uncertain. Certainly the maternal grandmother raises concerns about the paternal grandfather having a criminal conviction. Orders have been previously made restricting contact with him. That is an order which is sought to be continued now and should, in my view, be continued in the absence of any change of that gentleman’s status.
Certainly, the maternal grandmother’s concerns, as identified in her affidavit, is that there is some material, including, I think, social media posts and other hearsay from other persons that suggest the mother does not see the risk that the paternal grandfather presents to X if she is, in fact, in contact with him. Although it may be of no comfort to the maternal grandmother, it is usually the experience of the Court that persons with a conviction of this nature having contact with children contrary to their conditions of release is a matter taken very seriously by the Department and often Police. If there is compelling evidence that X is having contact with this male person, then appropriate notifications to authorities might be considered by her. I can take the matter no further today.
The orders which are being sought by the maternal grandmother today are supported by the Independent Children’s Lawyer. I agree with the orders. They do the best we can in the circumstances.
What has to be acknowledged, however, is that the orders now being sought were the expressed second alternative of the grandmother. Her primary position, as set out in her case outline and consistent with her material, was that both children should live with her. Mr Fellows from the bar table today has indicated to the Court that this has been a matter of serious contemplation by the grandmother and that she has, using his words, regrettably formed the view that rather than seek orders from the Court that the child X live with her, it is in the best interests of at least Y that she concede at this stage that X’s expressed wishes (which are likely shaped by the mother’s influence) that she live in Region G close to the mother, should be given some respect. Mr Pack on behalf of the Independent Children’s Lawyer expressed the same concerns however, on behalf of the Independent Children’s Lawyer, contends the orders are the best we can do at this time. I agree.
I make the orders acknowledging:
(a)that it is strongly arguable on the untested evidence that it is in the best interests of the child, X, that she lives with the grandmother;
(b)however, there are matters which have occurred since she began living with the mother some 12 months ago which the Court cannot ignore, not the least being the fact that she has chosen, perhaps manipulated by her mother, to remain in Region G; go to school reasonably regularly but not totally, and engage with the community of Region G to which she had been a member for most of her life; and
(c)further, a Court should not make orders which they are not prepared to enforce. To do so is to move into the abstract rather than the reality. This very experienced, capable and professionally trained grandmother accepts from her experience, which is wide, that an order that X live with her in Region F is more likely than not to involve further future applications to recover the child from the mother. This child is headstrong. Whether she is making mature decisions for her welfare – one would seriously challenge. But it would be a matter of great concern to the Court if, for example, the child was able to be contained for a moment in Region F, had another dispute with the grandmother or on whatever basis sought to return to Region G, how she would do it and what risk she would be at. There could be multiple applications for a recovery order. Recovery orders are, by their nature, enforced by Police. The Court is well aware of the effect recovery orders can have on teenagers and the Court is not unaware that the effect of Police involvement with a child of Aboriginal culture can have another dimension.
In my view, it has been a courageous decision by this excellent, caring, loving and capable maternal grandmother to not pursue orders of the Court as much as she wished it to occur for X to live with her. I recognise that courage. The orders I make support that position.
I also accept that Y’s additional needs are only likely to require more attention in the future. As he moves through the educational system, children with additional needs can often so easily be isolated from their peers and their social connections. This is an added impact on children with additional needs. This maternal grandmother is perfectly placed both by training, experience, and her management of the children since at least the Orders of 2020, to be alert to the ways, strategies, and support Y needs. There is every prospect that even if, for example, X was able to be contained within the confines of the area where the grandmother lives now, that that would result at some future time in misbehaviour or acting out which could well affect Y’s observance of appropriate rules and principles/values being applied in the grandmother’s home. That would be a detriment to him even though the orders I make do not guarantee, sadly, regular time between the siblings.
Finally, this Court is not critical of the maternal grandmother moving, as she did in 2020, to Region F. Whilst it might be said that that was not contemplated to be a permanent move in the Orders made at that stage, the circumstances have caused that to be the case. Many would say that a person so actively caring for an elderly relation, be they Aboriginal or otherwise, is a wonderful role model and value to be demonstrated to a child. I am sure there are challenges dealing with a five-year-old with some behavioural issues and an 85-year-old with other medical issues, but it seems to me that the grandmother is doing that as best she can. These orders are made on the understanding, unlike what was the position in 2020, that the grandmother will continue to live permanently at this stage in Region F.
Finally, as I indicated in submissions, I am satisfied that this grandmother will never abandon either her granddaughter X or her daughter. It is a sad reality of life that, notwithstanding all the skills and talents that people have, occasionally children act in a way that can be challenging. Ms Halit has, in many ways, demonstrated that. At 58 years of age, the maternal grandmother might not have anticipated, many years ago, having to take on a primary care role for a young child again. She, like so many grandparents in this country, have done so because of the love for their children and their grandchildren and they should be celebrated for that effort. But I am absolutely confident, whatever orders I make, that if X somewhere down the track, as is likely, acknowledges the benefit of a relationship with her grandmother and/or a continuing benefit of improving her relationship with her little brother and can feel the confidence to pursue that, maybe without totally abandoning any relationship with the mother, that this as a child who may follow that line and she will be greeted cautiously but lovingly by her grandmother. I can only hope but we will never know whether that comes to pass.
I make the orders which were marked as Exhibit 2 today on a final basis and are set out at the commencement of these Reasons. I discharge all other Applications in a Proceeding of which the mother had filed many and some seem to not to have been dealt with, but there is no need for them to be dealt with as the mother has not prosecuted them.
I will discharge the Independent Children’s Lawyer with the thanks of the Court.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 27 August 2024
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