Kendrick & Gelens
[2022] FedCFamC1F 1065
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kendrick & Gelens [2022] FedCFamC1F 1065
File number(s): NCC 569 of 2020 Judgment of: SMITH J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – Parenting – Undefended final hearing – Ex tempore reasons – Where the child lives with the applicant maternal grandmother – Where the father has discontinued – Where the mother says she chooses not to take part – Where the paternal grandfather has discontinued – Where only the maternal grandmother actively seeks orders – Where it is appropriate to conduct an undefended final hearing.
FAMILY LAW – Where the father has been charged with offences involving a child– Where there is a no time order between the child and the father – Where the mother has had issues with illicit substances, serious mental health issues, has spent time in custody and has failed to comply with drug testing orders in these proceedings.
FAMILY LAW – Where the Independent Children’s Lawyer submits the maternal grandmother is a safe and appropriate person for the child to live with and to exercise parental responsibility – Where the child is an Aboriginal child and the maternal grandmother will be able to maintain the child’s connection to her Indigenous culture – Where the Court finds the maternal grandmother is a person who is ready, willing and able to provide the child with a safe environment and to meet her needs.
FAMILY LAW – Ordered the maternal grandmother have sole parental responsibility – Ordered the child live with the maternal grandmother – Ordered the child spend no time with the father – Ordered that supervised time and communication between the mother and child be at the sole discretion of the maternal grandmother.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 65B, 68B, 68C Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 19 December 2022 Place: Newcastle via Microsoft Teams Solicitor Advocate for the Applicant: Ms McDonald Solicitor for the Applicant: Legal Aid NSW Port Macquarie The Respondents: No appearance Solicitor Advocate for the Independent Children's Lawyer: Ms Hannaway Solicitor for the Independent Children's Lawyer: Hannaway Lawyers ORDERS
NCC 569 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KENDRICK
Applicant
AND: MR GELENS
First Respondent
MS B KENDRICK
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Court finally hear and determine this matter on an undefended basis forthwith.
2.The appointment of the Independent Children’s Lawyer be discharged.
3.The Independent Children’s Lawyer mandatory oral application for costs is refused.
4.All previous Orders be set aside.
Parental responsibility
5.The Applicant MS KENDRICK (‘the Maternal Grandmother’) born 1965 shall have sole parental responsibility for making decisions about the long term care, welfare and development of the child X (‘the child’) born 2013.
Live With
6.The child live with the Maternal Grandmother.
Time with the Mother
7.The Mother MS B KENDRICK born 1991 (‘the Mother’) shall spend supervised time with, and communicate with, the child at the sole discretion of the Maternal Grandmother, and under any and all such conditions as the Maternal Grandmother deems fit in her exercise of parental responsibility.
8.The Mother may not remove the child from school or spend time with the child other than in accordance with Order 7.
Restraint on the Father
9.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father MR GELENS born 1988 (‘the Father’) be restrained from:
(a)attempting to contact the child by any means, including through a third party;
(b)approaching or coming within 100 metres of any place where the Maternal Grandmother or child might reside from time to time;
(c)approaching or coming within 100 metres of any place where the child might attend school; and
(d)approaching or coming within 100 metres of any place where the Maternal Grandmother might work from time to time.
Medical
10.The Applicant shall notify the Mother as soon as possible if the child is admitted to hospital and each shall provide relevant medical practitioners with all consents necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.
Schooling
11.The Mother and Maternal Grandmother are permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
12.The Mother is at liberty to attend the said child’s school for the purpose of any function or activity normally attended by the parents.
Contact Information
13.The Mother and Maternal Grandmother shall keep each other informed of their telephone numbers, residential addresses and e-mail addresses, and shall notify each other within 24 hours of any change.
Passport
14.The Maternal Grandmother have sole parental responsibility in respect of the child in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
15.The Maternal Grandmother be authorised to apply and forthwith obtain, at her own cost, an Australian passport for the child so as to enable her to travel in and out of the Commonwealth of Australia.
16.The consent of the Mother and Father to the issuing of such an Australian passport for the child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
Service
17.The Maternal Grandmother is to serve these Orders on the Mother and the Father within 28 days.
18.Electronic service on the Mother at her last know email address shall be good service.
19.Electronic service on the Father at his last know email address shall be good service.
Other
20.The Maternal Grandmother is at liberty to provide a copy of these orders to such person or organization, including any school, Government department, or medical or allied health care provider, who deals with the child.
21.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are oral reasons for decision in an undefended final hearing in parenting proceedings pursuant to the Family Law Act 1975 (Cth).
I am required to make orders in the best interests of the child, X born in 2013.
The applicant in the proceedings is the maternal grandmother, Ms Kendrick.
The other parties are the child’s parents who are the father, Mr Gelens, aged 34 and who is the first respondent, and the mother, Ms B Kendrick, aged 31 and who is the second respondent.
The father filed a Notice of Discontinuance on 8 December 2022. It is not anticipated that he will appear.
The circumstances in which this has occurred are that pursuant to orders of this court there is currently a no time order between the child and the father. That no time order arises in the circumstances of the father having been charged with offences involving a child. That prosecution continues in the local court. The father is prevented from having any contact with a child by reasons both of an AVO and by reason of his bail conditions. I note there appears to be a strong prima facie case, however, no findings can be made here. If it turns out that there is no conviction, noting this is an undefended hearing, he may be able to seek to reengage and re-liven this matter.
The mother has not actively participated in the proceedings. It appears that she has had an issue with an illicit substance, has had mental health issues, spent time in custody, and significantly for these purposes has failed to comply with drug testing orders in the matter.
The Independent Children's Lawyer has provided an email from the mother of 8 December 2022:
I see no reason for me to continue in these proceeding I have already emailed my lawyer and I refuse to sign onto any court website to put it in further writing… I am tired of the court system persicuting myself and attacking my current character of some false reports and vindictive reports made in regard to myself by others.. I prefer to not participate in the continues harrassment of myself and the putting of myself against my mother my daughter is well cared for now she has been heard and listened to by her current support network rather than a court system that is so far outside the cultural conflict awareness… I have ended my legal aid claim told the lawyer I do not require her services and I reply now to this current statement that I wish no longer be apart of any of these court proceedings and if I am to sign anything it is under duress from harrassment from the court pen pushers…
Warmest regards […]
(As per the original)
It is in these circumstances that the mother is not participating.
I understand the paternal grandfather was involved but had also filed a Notice of Discontinuance on 3 August 2022.
In the circumstances where there is only an applicant and no respondents present, it is appropriate to consider dealing with the matter on an undefended basis.
As part of doing that I must also turn my mind to whether the maternal grandmother is an appropriate person, or whether the Department should be notified and invited to intervene.
The evidence and the submission of the ICL both indicate that the maternal grandmother is a safe and appropriate person for the child to live with and a person who will exercise parental responsibility in the child’s best interests. In those circumstances, I am satisfied that it is appropriate to hear this matter on an undefended basis.
Fortunately for the child, there is one competent and caring parent who is willing to take on the difficult task of caring for a grandchild. The child is very lucky that she is in the position where her grandmother is ready, willing and able to provide her with a safe environment and to meet her needs.
I note the expert report.
I note that the child suffers from an intellectual disability which is managed by the grandmother and, fortunately, she now has an NDIS plan.
I note and accept the submission by the ICL, that the maternal grandmother is a person who has strongly demonstrated an ability to support the child’s relationship with both her maternal and paternal families in a way which promotes her safety. In this context I do not consider it necessary to detail all of the evidence which establishes this proposition.
X is an Aboriginal child through her maternal grandparents, and her maternal grandmother will be able to maintain her connection to her Indigenous culture.
The applicant seeks these orders, but the ICL also strongly supports them, noting they are a continuation of the current interim orders.
I should now deal with the proposed orders which I plan to largely accept.
The essence of the orders are that all previous orders will be set aside. The maternal grandmother will have sole parental responsibility for the child.
I will not go through all of the principles. The mother and the father have discontinued or chosen not to take part. I am satisfied to the extent in which there is a presumption they would have parental responsibility, their failure to participate means it is not in the child’s best interests for either parent to assume or share parental responsibility. The maternal grandmother is the only competent adult who is ready, willing and able to care for this child and she must therefore have sole parental responsibility.
In terms of the mother, she has unfortunate difficulties. She has chosen not to participate. X would like to maintain a relationship with her and to the extent to which it is possible, noting what is in the Family Report, it would be good if the child could maintain a relationship with the mother. Nevertheless, though, that relationship needs to be safe. The safeguards can be provided by the exercise of the maternal grandmother of sole parental responsibility.
At the moment, the father’s AVO and bail conditions prevent him from communicating with the child. Those conditions may lapse at some stage. In those circumstances, even though he is not present, based upon the material before me, I think it is appropriate on an ex parte basis to make the order pursuant to section 68B of the Family Law Act that is sought in relation to the father. I might make it in the standard court terms with reference to 68C.
I note that the paramount consideration in the making of parenting orders is section 60CA and 65AA. I note the principles in 60CC. I am satisfied that the need to protect the child from harm justifies the no time, no communication, and 68B order in respect of the father.
I am satisfied that, unfortunately, the restraints need to be placed upon the mother’s time with the child for the same reasons, but the safeguards of the grandmother exercising her judgment will at least allow the child to benefit from such meaningful relationship with the mother as the mother is able to assist the grandmother to facilitate.
In the context of an undefended hearing, those are my reasons.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 11 January 2023
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