Harty & Chilton

Case [2021] FamCA 34

FAMILY COURT OF AUSTRALIA

Harty & Chilton [2021] FamCA 34

File number(s): PAC 1747 of 2018
Judgment of: FOSTER J
Date of judgment: 8 February 2021
Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the applicants are non-parents – Where consideration of applicable principles – Where orders made providing the maternal grandmother and maternal aunt with equal shared parental responsibility – Where orders made for the children to live with the maternal grandmother – Where orders made for younger children to spend defined time with the father – Where orders made for eldest child to spend time with the father as agreed between the father and the maternal grandmother and maternal aunt – Where orders made for children to spend time with the mother as agreed between the mother and the maternal grandmother and maternal aunt and under certain conditions – Where appropriate to make orders permitting the maternal grandmother and maternal aunt to obtain passports for the children and travel internationally with them – Where orders made for the maternal grandmother and maternal aunt to apply to the Registrar of Births Deaths and Marriages for birth certificates – Where orders made for the maternal grandmother and maternal aunt to apply to the Registrar of Births Deaths and Marriages to register the two younger children.  
Legislation:

 Family Law Act 1975 (Cth) ss  60CC, 61DA, 65C, 65DAA, 69ZN

Family Law Rules 2004 (Cth) rr 11.02, 16.07

Cases cited:

 Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Harty and Anor & Chilton and Anor [2018] FamCA 366
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539

Yamada & Cain [2013] FamCAFC 64

Number of paragraphs: 175
Date of hearing: 18 November 2020
Place: Parramatta
Solicitor for the Applicants: Mr Dunn of Watts McCray (NSW) Pty Ltd
First Respondent – self‑represented litigant: The First Respondent attended in person
Second Respondent – self‑represented litigant: The Second Respondent attended in person
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

PAC 1747 of 2018
BETWEEN:

MS HARTY

First Applicant

MS A CHILTON

Second Applicant
AND:

MS B CHILTON

First Respondent

MR DYSON

Second Respondent

MS DODSON

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

18 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The proceedings as to parenting proceed to final undefended hearing today.

THE COURT NOTES THAT

2.The Court is informed today by the Respondent father that he consents to the orders sought by the Applicants as set out in their Case Outline comprising Exhibit “A” today.

3.The Respondent mother Ms B Chilton appeared before the Court by phone today, she not having engaged in the proceedings for some…

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Details
AGLC
Harty & Chilton [2021] FamCA 34
Case
[2021] FamCA 34
Decision Date

CaseChat Overview and Summary

This case involved applications by the maternal grandmother and maternal aunt for parenting orders concerning three children. The proceedings were undefended, with the father consenting to the orders sought by the applicants. The mother, who had not engaged in the proceedings for some time, appeared by phone and was informed that the proposed orders allowed for agreed time with the children, and that she could apply to the court if such agreement was unreasonably withheld. The court noted the mother's assertion of changed circumstances, including completing a rehabilitation program and ceasing engagement with the Department of Communities and Justice, and her current residence in F Town.

The court was required to determine the best interests of the children in circumstances where non-parents were seeking parental responsibility. Specifically, the court needed to consider the appropriate living arrangements for the children, the extent of time they should spend with their parents, and whether the maternal grandmother and aunt should be permitted to obtain passports and travel internationally with the children. The court also had to consider authorising the maternal grandmother and aunt to register the births of two of the children and to obtain birth certificates for all three.

Applying the principles of the *Family Law Act 1975* (Cth), the court made orders for the maternal grandmother and maternal aunt to have equal shared parental responsibility for the children. The eldest child was ordered to live with the maternal grandmother, and the younger children were also to live with the maternal grandmother. The court made specific orders for the younger children to spend defined time with the father, and for the eldest child to spend time with the father as agreed between the father and the maternal grandmother and aunt. The children were to spend time with the mother as agreed between the mother and the maternal grandmother and aunt, with conditions including potential drug testing and supervision. The maternal grandmother and aunt were authorised to obtain passports for the children and travel internationally with them, and to apply for the children's birth certificates and registration for the two younger children. The court also made orders regarding communication with schools and medical professionals, notification of emergencies, and prohibitions against denigration.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The proceedings as to parenting proceed to final undefended hearing today.

THE COURT NOTES THAT

2. The Court is informed today by the Respondent father that he consents to the orders sought by the Applicants as set out in their Case Outline comprising Exhibit “A” today.

3. The Respondent mother Ms B Chilton appeared before the Court by phone today, she not having engaged in the proceedings for some time.

4. The Respondent mother is informed by the Court that the orders setting these proceedings down for undefended hearing would not be vacated but in circumstances whereby the orders proposed by the Applicants provide for the mother to spend time with the children in circumstances as agreed between the Applicants and the mother, then if it is the mother’s assertion that such agreement is being unreasonably withheld she is at liberty to make application to the Court for orders as to defined time with the children. It is noted that at present she is having weekly telephone time with the children and the mother asserts that her circumstances have changed somewhat in that she asserts that she has completed a rehabilitation program and her engagement with the Department of Communities and Justice has now ceased. The mother now resides in F Town. In those circumstances it is the contemplation of the Court that there should be no bar to the applicants agreeing to arrangements for a recommencement of the children’s relationship with the mother in a cautious way.

IT IS FURTHER ORDERED THAT

5. Ms Harty ("the Maternal Grandmother") and Ms A Chilton ("the Maternal Aunt"), shall have equal shared parental responsibility for the children, E born … 2004, C born … 2007 and D born … 2009, hereinafter collectively referred to as "the children".

6. The Maternal Grandmother and/or the Maternal Aunt may apply for a passport for the children, E, C and D without first obtaining the consent of Ms B Chilton ("the Mother") or Mr Dyson ("the Father").

7. The Maternal Grandmother and the Maternal Aunt be permitted to travel internationally with the children.

8. The Maternal Grandmother and/or the Maternal Aunt are hereby authorised to apply to the Registrar of Births Deaths and Marriages for the children C born … 2007 and D born … 2009 to be registered.

9. The Maternal Grandmother and the Maternal Aunt be authorised to apply to the Registrar of Births Deaths and Marriages for birth certificates for the children C, D, and E.

10. E live with the Maternal Grandmother or as otherwise agreed between the Maternal Grandmother and the Maternal Aunt.

11. C and D live with the Maternal Grandmother or as otherwise agreed between the Maternal Grandmother and the Maternal Aunt.

12. C and D shall spend time with the Father as follows:

12.1 Commencing the third (3rd) weekend from the date of these Orders, and each third (3rd) weekend of each calendar month from 10.00 am Saturday until 6.00pm Sunday.

12.2 From 10.00 am to 6.00 pm on Father's Day in the event that the D and C are not otherwise spending time with the Father.

12.3 During the Christmas school holidays each alternate year commencing in 2020 at such times as agreed between the Maternal Grandmother and the Maternal Aunt and the Father.

12.4 At any other time as agreed between the Maternal Grandmother and the Maternal Aunt and the Father.

13. The Father shall spend time with E as agreed between the Maternal Grandmother and the Maternal Aunt and the Father in writing.

14. The children shall spend time with the Mother at such times and under such conditions as may be agreed between the Maternal Grandmother and the Maternal Aunt and the Mother (including but not limited to drug testing, supervision and the persons to be present). Any such time is to be arranged through the Maternal Grandmother and the Maternal Aunt and not through the children.

15. The Maternal Grandmother and the Maternal Aunt are hereby authorised to communicate with, obtain information and copies of documents from the principal and staff at any school that the children may from time to time attend.

16. That each party shall use their best endeavours to notify the other parties as soon as reasonably practicable of any accident or emergency involving any of the children, which involves medical treatment or hospitalisation and whilst the children are in their respective care.

17. That neither party denigrate the other parties or members of the other parties' family to the children in the presence or hearing of the children.

18. That each party inform the other, in writing, of any change to his or her residential address or contact telephone number not less than seven (7) days after such change occurring.

19. That the Maternal Grandmother and the Maternal Aunt are granted leave to provide a copy of these Orders to any school that the children may, from time to time, attend.

20. That the Maternal Grandmother and the Maternal Aunt are granted leave to provide a copy of these Orders to Centrelink, and the Registry of Births Deaths & Marriages or any other relevant Government Department as may be required.

21. That the Maternal Grandmother and the Maternal Aunt are hereby authorised to communicate with, obtain information and copies of any documents from any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with children.

22. Noted that in the circumstances of this matter there is no application for costs by the Independent Children’s Lawyer.

23. Reasons for Judgment are reserved to a date to be fixed.

24. Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Annexure “A” attached hereto and these particulars are included in these orders.

25. The matter be removed from the active pending cases list.

26. All subpoenaed documents produced in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harty & Chilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Some months following this incident, both the maternal grandmother and the maternal aunt took on the role of the children’s primary carers and the maternal aunt deposes to further incidents of abusive behaviour displayed by the mother towards her. Family consultant’s evidenceChild Responsive Program Memorandum As outlined above, the parties were assessed by a family consultant for the purposes of the Child Responsive Program in May 2018. At the time of the assessment the eldest child who lived with the maternal aunt was 14 and the middle and the youngest child who both lived with the maternal grandmother were 10 and nine respectively. It was the maternal grandmother’s proposal on interview that the younger children live with her and spend time with each parent on every second or third weekend and during school holiday periods. The maternal aunt proposed that the eldest child live with her and spend time with each of the parents in accordance with the child’s wishes. The mother diametrically opposed the applicants’ proposal and sought that the children live with her and spend time with the other parties as agreed between them. The father generally agreed with the maternal grandmother’s proposal and sought that the younger children spend time with him every second or third weekend as agreed between him and the maternal grandmother. When interviewed, the eldest child expressed a desire to live with the maternal aunt explaining that the maternal aunt is “able to provide structure, routine and resources”. While this child also reported concerns regarding the mother’s emotional wellbeing, mental health status and other issues relating to substance abuse and accommodation difficulties, she stated a strong preference to have frequent overnight time with the mother on an ad hoc basis. The middle child spoke positively of his relationships with his parents and the maternal grandmother and appeared to the family consultant to have regular contact with each of them. While the youngest child’s preferences were less clear, the family consultant stated that he presented as having an “idealised view of his parenting arrangements that enable him to maintain relationships with frequent contact with [the mother], [the maternal grandmother] and [the father]”. All children reported difficulties in the relationships between the mother and the maternal grandmother and maternal aunt. Various issues were raised in the 2018 Memorandum to Court including the mother’s substance abuse and mental health, family violence, the children’s wellbeing and safety and the co-parenting relationship between the parties. With respect to family violence, the maternal grandmother reported that the relationship between the mother and father was characterised by high levels of conflict. She reported that the mother often sought refuge in the maternal grandmother’s household and at times women’s refuge centres. When interviewed, each parent alleged incidents of abuse perpetrated by the other, including that they would “yell at each other during arguments”, “shove each other” or were, otherwise, verbally abusive towards each other. The mother also reported that the father attempted to choke her in the past, although both denied concerns regarding family violence following separation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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