Holm & Holm
[2022] FedCFamC1F 956
Federal Circuit and Family Court of Australia
(DIVISION 1)
Holm & Holm [2022] FedCFamC1F 956
File number(s): SYC 287 of 2019 Judgment of: CHRISTIE J Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – FINAL PARENTING – Undefended as against parents - Where the maternal grandfather seeks sole parental responsibility and care of the child in circumstances where the child has lived with him for majority of her life – Where the mother did not participate in the final hearing – Where the Court had the benefit of two family reports – Where the maternal grandfather and independent children’s lawyers proposed final orders are significantly aligned – long term supervision considered. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.26, 10.27.
Cases cited: Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198.
Burton & Churchin & Anor (2013) FLC 93-561; [2013] FamCAFC 180.
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 5 December 2022 Place: Sydney Solicitor for the Applicant: Ms Cantrall, Legal Aid NSW Bankstown Respondent: No appearance Solicitor for the Independent Children's Lawyer: Mr Hearl, Delaney Lawyers ORDERS
SYC 287 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOLM
Applicant
AND: MS HOLM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
5 december 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental responsibility
2.The maternal grandfather, Mr Holm, have sole parental responsibility for the major long term issues in respect of the child, X (born 2017), subject to the following:
(a)Mr Holm inform the mother, Ms Holm, about all significant decisions to be made with respect to X’s education, health or welfare as promptly as possible and, other than in case of emergency, prior to any final decision being made by him;
(b)Ms Holm may provide to Mr Holm any comment or response in relation to such decisions promptly upon receiving communication from Mr Holm;
(c)Mr Holm shall do all things as may be necessary to make a genuine and real effort to accommodate Ms Holm’s views wherever possible;
(d)In the event Ms Holm does not respond to any relevant communication from Mr Holm pursuant to this order within seven (7) days of Ms Holm receiving same, then Mr Holm shall be free to make such decision as he determines.
3.Mr Holm shall inform Ms Holm as soon as practicable of any significant medical conditions, health issue or illness suffered by X whilst in his care.
(a)This order shall not preclude Mr Holm from exercising sole parental responsibility with respect to X’s medical treatment, particularly in an emergency.
Care of the child
4.The child, X (born 2017) live with the maternal grandfather, Mr Holm.
5.X spend time with the mother, Ms Holm, as agreed between the parties in writing and failing agreement:
(a)From the date of these orders until 1 April 2023, for at least four (4) hours on the first Saturday of each calendar month between 11:00 am and 3:00 pm, supervised by Mr Holm or Mr Holm’s nominee;
(b)From 1 April 2023 on the first and third Saturday of each calendar month between 11:00 am and 3:00 pm, with Mr Holm to decide whether it must be supervised and his decision is final;
(c)For the purposes of Order 5(a) such time will occur in Sydney;
(d)For the purposes of Order 5(b) time on the first Saturday of the month will occur in B Town and time on the third Saturday of the month will occur in Sydney;
(e)It is noted that Ms Holm shall be free to join Mr Holm and X’s celebrations on Easter Sundays, for at least four (4) hours between 4:00 pm and 8:00 pm; and
(f)For the purpose of this order:
(i)Ms Holm shall give Mr Holm at least two (2) days notice of her intention by text message to spend time with X in accordance with Order 5(a);
(ii)Ms Holm shall give Mr Holm at least seven (7) days notice of her intention by text message to spend time with X in accordance with Order 5(b); and
(iii)The presence of any support person for Ms Holm during supervised time is at Mr Holm’s discretion.
6.In the event the parties agree that Ms Holm shall spend unsupervised time with X, Ms Holm shall give Mr Holm notice of the arrangements she has made including, but not limited to, where she intends to take X during contact and who will be present.
7.For the purposes of any face-to-face time between Ms Holm and X, Ms Holm and Mr Holm will attend change over at any place agreed between Ms Holm and Mr Holm in advance and if no agreement, the McDonalds closest to Mr Holm’s house or Ms Holm’s house as appropriate.
8.If Mr Holm or Ms Holm is running late for changeover, he or she must provide as much notice as possible to the other by text.
Specific issues
9.Mr Holm is to notify Ms Holm immediately if he is advised of any emergency relating to X.
10.Ms Holm is to notify Mr Holm immediately if she is advised of any emergency relating to X.
11.All communication between Mr Holm and Ms Holm relating to X be by text message unless Mr Holm and Ms Holm both agree in writing to another method.
12.Mr Holm and Ms Holm are restrained from swearing at each other or threatening each other.
13.Mr Holm and Ms Holm are restrained from blocking the other’s mobile telephone number.
14.Neither Mr Holm nor Ms Holm shall use any private number to call the other unless in an emergency.
15.Mr Holm and Ms Holm shall both inform the other of their residential address, mobile telephone number, landline telephone number (if applicable) and email address within 24 hours of these orders and inform the other of any change of these details within three (3) days of such change.
16.Mr Holm and Ms Holm shall each inform the other if the people living in their respective homes change, with such notice to be given within three (3) days of any such change.
17.Mr Holm shall authorise the school or day care centre attended by X to provide Ms Holm any information about X’s educational progress and other school related activities and supply her with copies of school reports, photographs, certificates and awards obtained by X. If Mr Holm does not authorise the school or day care centre then this order will permit Ms Holm to receive any such information. The cost of any copies is to be paid by the person requesting it.
18.Mr Holm is to nominate all emergency contacts for the school or day care centre attended by X and is to include Ms Holm as a contact.
19.During the time X is with either Mr Holm or Ms Holm, both Mr Holm and Ms Holm shall:
(a)Respect the privacy of each other and not question X about the personal life of Mr Holm or Ms Holm;
(b)Speak and communicate with each other without swearing or threatening each other; and
(c)Not allow any other person to insult Ms Holm or Mr Holm in the presence or hearing of X.
20.Each party shall deliver and return X’s clothing, school supplies and belongings and X’s belongings shall be returned in a clean condition where possible.
21.Ms Holm and Mr Holm are each able to attend at X’s school and after school activities being a function or activity normally attended by parents/carers.
22.The process to be used for resolving future disputes about X or these orders shall be as follows:
(a)A Family Relationship Centre closest to Mr Holm’s house shall be appointed as Family Dispute Resolution practitioner;
(b)Mr Holm and Ms Holm shall consult with the Family Dispute Resolution practitioner to assist with resolving any dispute in relation to X or reaching agreement about changes to be made to the parenting arrangements for X;
(c)Mr Holm and Ms Holm shall pay the costs (if any) of the Family Dispute Resolution practitioner.
23.There will be no order as to costs of the independent children’s lawyer.
24.The independent children’s lawyer is discharged.
THE COURT NOTES THAT:
A.Mr Holm intends to facilitate electronic communication between X and her sister F.
B.The independent children’s lawyer has informed the Court that he will provide a copy of these orders and any reasons for judgment to the mother.
C.Pursuant to 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 Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Holm & Holm has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings brought by Mr Holm for parenting orders in respect of his granddaughter X born 2017. The respondent to the application is X’s mother Ms Holm. There has been no participation in these proceedings by or on behalf of X’s natural father and his whereabouts are unknown.
The most significant adults in X’s life are her grandfather, Mr Holm and Mr Holm’s wife, Ms C.
X was born in 2017 and in late 2017 the NSW Department of Communities and Justice became aware of child protection concerns relating to X, apparently a consequence of family violence perpetrated by the mother’s then partner Mr D, towards the mother. After the intervention of the Department of Communities and Justice, the mother moved with X to live with Mr Holm, where she remained for the following 11 months.
When the mother left the home of Mr Holm in late 2018, X remained living in the home of Mr Holm and Ms C in a suburb of Sydney and has lived there ever since.
This case is one about the tension between the child’s right to know and be cared for by a parent and the need to protect her from the risk of harm.
The orders I make in this case will refer to the parties by their first names. This is appropriate given the confusion which may arise from shared surnames.
background
In 2018 when X was about 16 months old there was an argument between the mother and maternal grandfather. At this time the mother signed a statement in the presence of the police indicating she was leaving X in the grandfather’s care. At this point the mother returned to live in B Town. At the end of 2018 the mother, for a brief time, moved to live in Queensland.
In early 2019 the mother contacted Ms C to say her boyfriend had hit her twice and she was returning to Sydney.
Consent orders were made on 4 February 2019 that provided for X to live with her grandfather and see her mother Mondays, Wednesdays and Saturdays (supervised). Initially, the mother complied with those orders. By April 2019 the mother was attending once or twice each week. In May 2019 the time was reduced by agreement to Mondays and Saturdays.
The mother moved from Sydney and the time became less frequent again. In mid-2019 the mother moved to Melbourne. In the period between mid-2019 and mid-2020 the mother did not spend any time with X.
In early 2020 the mother’s relationship broke down and she initially moved to Sydney before moving again to E Town to live with a man – the evidence does not allow me to, nor do I need to resolve the controversy as to whether he was her boyfriend.
In 2020 the mother’s child, F was born. F is in the fulltime care of her father after intervention by the NSW Department of Communities and Justice. There is a final Apprehended Domestic Violence Order in place for the protection of F’s father from the mother.
Following a mediation in March 2021 the interim orders were varied to provide for supervised time twice a month. This time was only sporadically taken up by the mother.
There was an argument between the grandfather and the mother and the mother sent the grandfather an unfortunate text message in January 2022 and time did not occur.
On 23 March 2022 consent orders were made which provided:
2.That the child [X] (“[X]”) born on […] 2017 live with the maternal grandfather, [Mr Holm] (“[Mr Holm]”).
3.That [X] spend time with the mother, [Ms Holm] (“[Ms Holm]”) as agreed between the parties in writing and failing agreement:
a)From the date these orders are made, for a period of 3 months being until July 2022, for at least four (4) hours on the first Saturday of each calendar month between 11:00am and 3:00pm, supervised by [Mr Holm] or [Mr Holm’s] nominee;
b)From July 2022, for a period of 3 months being until October 2022, for at least six (6) hours on the first and third Saturday of each calendar month between 11:00am and 5:00pm, with [Mr Holm] to decide whether it must be supervised and his decision is final;
c)From October 2022, for a period of 3 months or until further order of the court, for at least six (6) hours on the first and third Saturday of each calendar month between 11:00am and 5:00pm, unsupervised;
d)[Ms Holm] shall join [Mr Holm] and [X’s] celebrations on Easter Day and Christmas Eve, for at least four (4) hours between 4:00pm and 8:00pm; and
e)For the purpose of this order:
(i)[Ms Holm] shall give [Mr Holm] at least 2 days’ notice of her intention by text message to spend time with [X] in accordance with subsections (a), (b), (c) and (d); and
(ii)The presence of any support person for [Ms Holm] during supervised time is at [Mr Holm’s] discretion.
4.[Ms Holm] shall give [Mr Holm] notice of the arrangements she has made to spend time with [X] in accordance with any unsupervised time pursuant to Order 3, including but not limited to where she intends to take [X] during contact, and who will be present.
5.That [X] shall communicate with [Ms Holm] as agreed between [Mr Holm] and [Ms Holm] and if no agreement as follows:
a)By Face-time, if possible and if not possible telephone each Sunday, Mother’s Day, on [X’s] birthday and on [Ms Holm’s] birthday from 6:00pm until 6:30pm.
6. To enable telephone or Facetime to happen pursuant to order 5(a);
a)[Mr Holm] is to nominate a telephone number for [Ms Holm] to call within 24 hours of the date of these orders and tell [Ms Holm] within 24 hours should that number change in the future.
b)[Ms Holm] is to make the call within 10 minutes of the starting time unless [Mr Holm] has agreed to another time in advance.
c)[Mr Holm] is to make sure that [X] can receive the call and is in a mobile serviced area and that the device [X] is using has enough credit and charge.
d)[Mr Holm] will support [X] to take the call from [Ms Holm] and give her privacy during the call.
e)[Ms Holm] will not complain if [X] only communicates for a shorter time if that is what [X] wants.
f)[Mr Holm] will not distract [X] during the time and not allow any other person to distract her.
g)If [X] is not able to speak to [Ms Holm] for any reason except [Ms Holm] not calling, [Mr Holm] will call [Ms Holm] to facilitate or telephone time from 6:00pm until 6:30pm, and [Ms Holm] will make her best effort to be available to take the call.
7.That all communication between [Mr Holm] and [Ms Holm] relating to [X] be in text unless [Mr Holm] and [Ms Holm] both agree otherwise.
8.[Mr Holm] and [Ms Holm] are hereby restrained from swearing at each other or threatening each other.
9.[Mr Holm] and [Ms Holm] are hereby restrained from blocking the other’s telephone number on their mobile telephone.
10.[Mr Holm] and [Ms Holm] shall not use any private number to call the other unless in an emergency.
11.[Mr Holm] and [Ms Holm] shall both inform the other person of their residential address, mobile, landline contact telephone number and email address within 24 hours of these orders and inform the other person of any change to these details within seven days of any change occurring.
12.[Mr Holm] and [Ms Holm] shall both inform the other should the people living in their homes change within seven days of any such change occurring.
13.[Mr Holm] and [Ms Holm] shall inform the other as soon as practicable of any medical condition, significant health issue or illness suffered by [X] while in their care. This Order authorises any treating medical practitioner or health care provider to release [X’s] medical information to [Ms Holm].
14.That [Mr Holm] authorise the school or day care centre attended by [X] to give [Ms Holm] any information about [X’s] educational progress and other school related activities and supply her with copies of school reports, photographs, certificates and awards obtained by the child, with the cost of any copies be paid by [Ms Holm].
15.[Mr Holm] is to nominate all emergency contacts for the school or day care centre attended by [X].
16.[Mr Holm] is to notify [Ms Holm] immediately if he is advised of any emergency relating to [X].
17.For the purposes of unsupervised time, [Ms Holm] is to notify [Mr Holm] immediately if [X] is in an emergency or injures or hurts herself whilst spending time with her.
18. That both [Mr Holm] and [Ms Holm] shall:
a)Respect the privacy of each other and not question [X] about the personal life of [Mr Holm] or [Ms Holm].
b)Speak and communicate to each other without swearing or threatening each other.
c)Not allow any other person to insult [Ms Holm] or [Mr Holm] in the presence or hearing of [X].
19.That [Ms Holm] is permitted to attend at [X’s] school and after school activities for the purposes of any function or activity normally attended by parents, but [Ms Holm] is not to attend [X’s] school during school hours for the purpose of spending time with [X].
20.Notwithstanding the effect of Order 19, [Ms Holm] shall notify [Mr Holm] if she intends to attend at [X’s] school or after school activities for [X], and [Mr Holm] shall keep [Ms Holm] informed of any activities [X] is enrolled in.
21.That the process to be used for resolving future arguments about [X] or the terms or operation of these Orders shall be as follows:
a)Family Relationship Centre closest to [Mr Holm’s] house shall be appointed as Family Dispute Resolution practitioner.
b)Both [Mr Holm] and [Ms Holm] shall consult with the Family Dispute Resolution practitioner to assist with resolving any dispute in relation to [X] or reaching agreement about changes to be made to the parenting arrangements for [X].
c)Both [Mr Holm] and [Ms Holm] shall pay the costs of the Family Dispute Resolution practitioner equally if any.
Notwithstanding the terms of those orders, in 2022 the mother has spent time with X on two occasions – on Easter Sunday and on Mother’s Day. It stands to reason that at the time of the final hearing the time has not become unsupervised.
In 2022 the mother gave birth to G. G lives with the mother and her partner.
At the time of hearing, X was five years old. She will start school next year. She is a First Nations child.
Preliminary Issues
These proceedings commenced in the Federal Circuit Court of Australia but are being determined in the Federal Circuit and Family Court of Australia (Division 1). X’s father, Mr H, was invited to participate in the proceedings but declined. A Judge of the Federal Circuit Court of Australia dispensed with the requirement that Mr H be notified of the proceedings on 16 May 2019.
On 18 November 2022 the solicitors acting for the mother filed a Notice of Ceasing to Act.
Directions for the filing of affidavit material had been made on 6 September 2022, with affidavits due to be filed by 18 November 2022. The mother did not comply.
On the morning of the hearing the independent children’s lawyer rang the mother who was in B Town and indicated she did not intend to participate.
At my request after 10.00 am the independent children’s lawyer made another telephone call to the mother to offer her the opportunity to participate by telephone or video. I was informed that she declined.
I note that the provisions of rr 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 are engaged.
I am satisfied it is in the interests of X that I proceed to hear this matter undefended as against the absent parties. I have however had regard to the mother’s material filed in March 2022.
The law
I am required to make an order which is, having regard to the evidence, an order which is in the best interests of X.
In reaching a conclusion about what orders will be in the best interests of X I am required to consider all the relevant matters set out in ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).
As far as possible I should make an order which is least likely to lead to further proceedings.
Whilst several of the provisions of s 60CC refer to parents, I take into account the dicta of the Full Court of the Family Court of Australia (“the Full Court”) in Burton & Churchin & Anor (2013) FLC 93-561. At [51], referring to the decision in Donnell & Dovey (2010) FLC 93-428 at [101], their Honours set out this:
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word …
But, as their Honours continued to explain at [57], “there can be no doubt that s 60CC(2)(b) has application in every parenting proceeding, no matter who the parties to those proceedings are”. I also take into account that, to the extent that I am required to consider the best interests of X, I am required to consider those paragraphs of s 60CC(3), which may refer to parents, under the catch all whereby I must consider anything which is relevant to X’s welfare.
Consideration
The independent children’s lawyer and solicitor advocate for the mother have reached agreement about many of the matters in issue. I must be independently satisfied that the proposed orders are in X’s best interests.
The grandfather and independent children’s lawyer seek orders for sole parental responsibility in favour of the maternal grandfather. An order for parental responsibility must function in the best interests of X. I am satisfied that the grandfather is an appropriate person to hold parental responsibility. I am satisfied that the presumption in s 61DA(1) of the Act does not apply. The evidence satisfies me that an order for equal shared parental responsibility is rebutted: s 61DA(4) of the Act. It may also be the fact that s 61DA(2) of the Act applies but it is not necessary for me to make a finding.
While the family reporter writer, Ms J, in exhibit 2, recommended an equal shared parental responsibility order in September 2021, that recommendation was made at a time when it was hoped that the mother would exercise the time provided for under the orders and before time in January 2022 was cancelled after a further dispute arose.
The single expert report (exhibit 3) persuades me that an order for sole parental responsibility is likely to reduce opportunities for conflict. This factor, coupled with the stability that X has experienced in the care of her grandfather, make the order for sole parental responsibility in his favour the most appropriate outcome.
Turning then to X’s time with her mother. An important factor in this particular case is the importance of X’s relationships with the significant adults in her life. There is no dispute, now, that X should continue to remain living with the maternal grandfather and his wife and accordingly it is therefore necessary, when considering the various statutory matters in s 60CC(3) of the Act, to understand that the dispute between the parties concerns the circumstances in which X ought spend time with her mother.
X has First Nations heritage from her mother and maternal grandfather and accordingly, I am satisfied that time with either of them will give her the opportunity to have access to her culture.
X’s mother was seeking orders which would provide for a graduation from supervised time to unsupervised time. X’s grandfather resisted the making of orders for unsupervised time to happen automatically in circumstances where the mother has not, to date, been consistent in exercising the time available to her, has insisted on exercising time with X in the presence of her partner and has, in the past, created a risk that she would retain X if time were not to be supervised. Additional risk factors include the possibility that X might be exposed to family violence whilst in the care of the mother and issues which relate to the mother’s sometimes precarious mental health.
I note the content of the NDIS assessment dated 14 April 2021 which says in part, in relation to the mother:
No formal diagnosis has been made for [Ms Holm], however, it is noted that [Ms Holm] has a speech impairment and a delay with processing information. [Ms Holm] has stated that she has [a mental illness] and struggles with her mental health. [Ms Holm] is open to ongoing assistance with her therapies.
I am not required to make a finding about the mother’s diagnosis. I accept that she herself has identified that she has mental health vulnerabilities.
The removal of two of the mother’s children from her care by state welfare authorities underlines the grandfather’s concern that unsupervised time may pose a risk and I accept that evidence.
The maternal grandfather has offered to be the person responsible for supervision of X’s time with the mother. This has both advantages and disadvantages. For X, it provides protection and is a more natural environment than professional supervision. However, there is a tension in the relationship between X’s mother and her maternal grandfather and in those circumstances, there is a possibility that supervision by a family member may expose X to conflict between them. I note the orders provide for the grandfather to nominate a third party. This is an appropriate compromise if it is required.
On balance, I am minded to order that the time be supervised, and supervised by the maternal grandfather or his nominee, until such time as the maternal grandfather, in the exercise of his parental responsibility, determines that X is not at risk in the mother’s unsupervised care. Making this order has the advantage of being the position least likely to result in the matter having to come back before the Court.
On the history of the mother’s inconsistent participation in time with X, I could not be confident that the time with X will occur as ordered and so any move to it being unsupervised may be both premature as regards development of the relationship between mother and child and potentially place X at risk of retention, exposure to family violence or exposure to conflict.
The next issue which arises is frequency of time. The mother is currently living in B Town whilst the maternal grandfather lives in Sydney. The maternal grandfather has offered to undertake travel to B Town to facilitate time with the mother. This is an appropriate approach on his part. He has taken into account the impact of considerable travel on X by proposing this occur once per month. At the moment, X is yet to start school but, from 2023, when she starts school, travelling every alternate weekend would place an unnecessary or unenviable burden on her and would also mean that she does not have the same opportunity as other children in her cohort to develop relationships with her peers on the weekend in the area where she lives. It would also inhibit her participation in extracurricular activities which require a commitment. There should be some balance between time spent in Sydney and time spent in B Town. Initially, I find that the proposal that the time occur in Sydney is an appropriate one. I find that subsequent to that, alternating time between Sydney and B Town strikes the correct balance and may allow the mother to participate in X’s activities in Sydney, to X’s benefit.
I find on the evidence that the grandfather has balanced the need to protect X from harm against the desirability that she develop a relationship with her mother. I have confidence he will continue to do so. I am conscious that the family report writer concluded X was “quite stable and…in a safe environment” in the care of the grandfather and Ms C. Any orders for time should protect that stability.
These orders create the possibility for time between X and her mother. It is in X’s interests that this time occur.
The proposed orders included some existing orders and notwithstanding the mother’s lack of participation in the proceedings have been framed taking into account some of the orders that she sought.
I have been asked by the independent children’s lawyer to make orders in terms of a proposed minute of order (exhibit 1). The grandfather was supportive of those orders. I raised with the parties making some modifications to increase clarity.
Exhibit 1 sought an order about attendance at extracurricular activities as follows:
That [Ms Holm] and [Mr Holm] are each able to attend at [X’s] school and after school activities the purposes of any function or activity normally attended by parents. If [Mr Holm] and or [Ms Holm] do not want the other to attend any activity then both [Ms Holm] and [Mr Holm] can attend. If only one person is allowed to attend then the decision as to who can attend is to be made by [X’s] school or the person responsible person for the after school activity and their decision is final.
(As per the original)
While I intend to make the orders largely in accordance with the proposed minute. I have declined to make proposed order 21 in the terms sought. It would provide for a third party to select who will attend an activity if only one parent or carer may attend. It is an abrogation of the decision making power to an unnamed third party and not an appropriate order. I have made a modified version of the order to reflect the apparent agreement between Ms Holm and Mr Holm that each ought be able to attend X’s school activities. This is in X’s interests.
The minute sought by the independent children’s lawyer also contained proposed order 13. Proposed order 13 provided that Mr Holm or Ms Holm authorise the school or day care centre attended by X to give Mr Holm or Ms Holm any information about X’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by X. If Mr Holm or Ms Holm do not authorise the school or day care centre, then Ms Holm or Mr Holm can, and the school or day care centre is hereby authorised, to provide any such information. The cost of any copies to be paid by the person requesting it.
I propose to make a modified version of proposed order 13 to take into account that, Mr Holm, as the person with sole parental responsibility, will be authorised by that sole parental responsibility order to obtain any and all information from schools, day cares etc. The mother will require this order in order to obtain information and to the extent that it is necessary, the order will reflect her capacity to obtain information directly from the school or child care centre.
These orders provide for supervision, potentially on a long term basis. In Bant & Clayton (2019) FLC 93-924 the Full Court reflected on the making of long term supervision orders at [53] – [54] as follows:
53 It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider crafting orders which might avoid permanent supervision (see Slater v Light (2013) 48 Fam LR 573 at 583-584; Champness & Hanson (2009) FLC 93-407 at [209], [215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at 79,780).
54 Circumstances may however arise in which the only appropriate response to the identified risk is to make an order, in effect, for indefinite supervision of a child’s time, if it is in the best interests of the child.
That is the case here. I note however that, in this case there is a mechanism for the grandfather to approve unsupervised time and to nominate a supervisor, not himself. Otherwise, the time will remain supervised. There is also provision in these orders for disputes in the first instance to be dealt with by alternate dispute resolution. This is the best outcome for X because it balances the need for the proceedings to be finalised against the need for her to spend time in an environment which is protective in the foreseeable future.
This court case will finalise legal arrangements for X in a manner which pays attention to her need for security and stability and leaves open the possibility that X develops a relationship with her mother and her siblings in an environment where she is safe.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 December 2022
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